For the reasons herein stated, I have no doubt such are the rights of the present cestuis que trust, the plaintiffs in this suit, and they having established a prima facie right to have the deed and contracts canceled, and the lands sold re-conveyed to them, it is my duty to restrain the defendants, until the hearing of this cause, as asked for in the complaint and. supplemental complaint.

The plaintiffs have the right to their real estate, or anything into which it has been transmitted. It is therefore proper to restrain the defendant from transferring the stock owned by them in the Hoffman Coal Company, which but represents the real estate of the plaintiffs, and the privileges and advantages secured by the transportation contract.

The motion for an injunction is therefore granted.

New York special terin, January 31, 1859. DAVIES, Justice.

BATES V. SIERRA NEVADA LAKE, WATER AND MINING COMPANY.

(18 California, 171. Supreme Court, 1861.)

Striking out part of answer. Upon suit for services under a contract defendant answered that plaintiff had violated his contract and also alleged certain torts by him committed, in slandering the credit of the company. Held, that the allegations of tort were properly stricken from the answer.

Notice of termination of contract. Plaintiffs contract was subject to termination on six months' notice being given on either side from any period. Held, that the notice contemplated by the contract, was notice from the corporation organized and doing business in California, and not notice of instructions from the committee of the London agency.

Appeal from the Eleventh District.

The complaint alleges that defendant is a corporation under the laws of California; that on March 15th, 1857 he was engaged by certain persons claiming to have authority to come from London, England, to California to take charge

of a part of defendant's works. That thereupon he came to California and here learned that the persons who engaged him had no authority; but that the trustees of defendant at a meeting at San Francisco on June 2d, 1857, engaged plaintiff as their general superintendent, at a salary of $1,500, with board and lodging; that the contract was "subject to termination on six months' notice being given on either side, from any period;" that plaintiff then entered upon the discharge of his duties and continued therein. That defendant notified him on Aug. 18th, 1859 that his employment would be terminated in six months; that plaintiff continued to discharge the duties of his office until Feb. 18th, 1860; and that defendant is indebted to him in the sum of $2,696.

The answer denies that plaintiff was employed by the defendant at San Francisco on June 2d, 1857, but alleges that the contract had previously been made by large stockholders in the company, called the London committee, at their meeting in London, April 16th, 1857, and that the San Francisco meeting had simply ratified a previous contract, made by persons who had authority to bind defendant. The answer further alleges that the contract with plaintiff was terminated on June 6th, 1859, by notice given six months previously; but admits his services from May 25th, 1857, when he arrived in San Francisco, until his departure therefrom in September, following, and denies any other services-averring that plaintiff left the employment of defendant, neglected and refused to discharge his duties, etc.; that defendant was compelled to employ in plaintiff's place one Josiah Bates, etc.

"Defendant further answering, avers that plaintiff has not complied with the terms of said contract on his part, but has broken and forfeited the same, and among the many delinquencies and wrong doings on his part, in violation of said contract, defendant enumerates the following, to wit: That during the time that plaintiff ought to have been in the employ of said defendant under said contract, from the day of September, 1857, to the day of June, 1858, plaintiff left the county of Sierra, in which the property and business of said corporation are situated, and the employment of the defendant, and resided inthe city of San Francisco, whereby defendant was greatly injured and damaged; that plaintiff,

during the whole time which he professed to act for and be in the employ of said corporation, was in the habit of circulating false and injurious reports, to the effect that the said corporation was bankrupt and insolvent, and that the same had always been a swindle; for the purpose and with the intent of destroying the credit of said corporation in California, so that he and others might get and obtain the management and control of the property of said corporation by means of forced sales and the like, and that by such means the credit and good name of said corporation were greatly injured and damaged, to wit: in the sum of $50,000;" that he failed and refused to discharge the duties of his employment, "but on the contrary, was constantly engaged in circulating false and injurious reports about and against the corporation, and in conspiracy with divers other persons, for the purpose of transferring the property of the corporation in California to himself and his co-conspirators, to defraud his employers and the stockholders, and to acquire the management and control of said corporation; that said plaintiff was in the habit, during the time mentioned, of carrying the books and papers of the corporation to Downieville, and consulting lawyers, to obtain information how he could disincorporate said corporation, and take an undue advantage thereof, and turn the same to his own benefit; wherefore, defendant denies that plaintiff ever did or performed any services of any value for said corporation after his departure for San Francisco in September, 1857."

Before the trial, plaintiff moved to strike out those portions of the answer next preceding, and embraced in quotation marks. Motion granted.

The notice to terminate the contract between the parties is as follows:

"MR. BATES:

FOREST CITY, Dec. 6th, 1858.

"Dear Sir-In accordance with instructions which I have received from the committee of the London agency, dated fifteenth October last, I hereby give you notice that in six months from this date, the California part of your engagement will terminate with this company. And you are required

at the expiration of that time to return to London and to resume your duties as secretary there.

66

"I am yours, most respectfully,

"JOSIAH BATES."

This notice was given in obedience to a resolution passed at a meeting in England, of the London committee, Oct. 15th, 1858, to the effect that "on the receipt of these dispatches, Mr. Josiah Bates is authorized to give Mr. Joseph Bates six months' notice of the company's closing their engagement with him in California, in order to require his duties as secretary here."

Plaintiff refused to give up his position under this notice, and on the twenty-third of July, 1859, the secretary of the corporation gave him another notice that the engagement between him and the company should cease in six months. This is the evidence of the secretary, though from the briefs of counsel it would seem that this notice was effected by the board of trustees, ratifying, at a meeting held July 23d, 1859, the previous notice given by Josiah Bates.

The court below found that the notice required by the contract was this latter notice, and accordingly gave judgment for plaintiff for compensation up to January 23d, 1860. Defendant appeals.

STEWART & THORNTON, for appellant.

VANCLIEF & PRATT, for respondent.

BALDWIN, J. delivered the opinion of the court, COPE, J. concurring.

We think the court did not err in striking out the parts of the answer to which objection was taken by the plaintiff. This matter seeins to be rather in the nature of a tort than matter showing a violation of contract on the part of the plaintiff. The remainder of the answer, after the expunged portion, was sufficient to let in any proper proof of a violation of the contract by inattention to or neglect of the business of the defendant.

As to the second point, we think the notice contemplated

by the contract was notice from the corporation organized and doing business in this State, and not notice of instructions from the committee of the London agency.

Judgment affirmed.

CAREY V. THE PHILADELPHIA AND CALIFORNIA PETROLEUM COMPANY.

(33 California, 694. Supreme Court, 1867.)

Appointment of agent by corporation-Evidence. In the appointment of their agents, private corporations stand upon the same footing as natural persons, unless limited to some particular mode by their charters; and parol evidence is admissible to prove such agency. Account stated-Evidence. An account stated is in the nature of a new I promise or undertaking, and in this case was properly admitted as written evidence of a contract or obligation on the part of the defendant to pay in gold coin of the United States. Continuance-Discretion of court. An affidavit for a continuance on the ground of the absence of material witnesses failed to give their names, or to state what was expected to be proved by them. Held, that a motion for a continuance based on this affidavit was addressed to the discretion of the court, and that the discretion was not improperly exercised in denying the motion.

Appeal from the District Court of Los Angeles County, First Judicial District.

GLASSEL & CHAPMAN, for appellant.

V. E. & C. V. HOWARD, for respondent.

By the Court, Shafter, J.

This is an action upon an account stated, which, as the complaint alleges, was "settled and agreed upon between plaintiff and defendant, July 23d, 1866." It is further alleged that the defendant then acknowledged, in a writing duly signed by him, that the indebtedness ascertained by the account (three hundred and eighty-two dollars and eighty-six