and building alone. Allen v. Woodard, 125 Mass. 400. We concur: FOOTE, C.; VANCLIEF, C.. PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed. which it is annexed, the intention of the person who made the annexation, and the purpose for which the premises are used. There was a bill of sale of "all the maFratt v. Whittier, 58 Cal. 126: 1Jones.Mortg. chinery, boilers, pipes, shafting, belting, $$ 429, 444. The fixtures here consisted of candle-moulds, presses, wheels, pulleys, bara digester made of gun-metal, 2 soap-ket-rels, tubs, tallow, and any and all other pertles, 1 high-pressure boiler, and 13 candle-sonal property" on the premises, given to machines The digester was 20 feet long the Mege Pacific Commercial Company with and 40 inches in diameter. It was 4 or 5 feet the deed of the premises. This, together with under the ground below the basement floor, certain parol evidence, was adduced by deand extended up through this floor and fendants to show that at the time the about 3 feet above the next floor. There sale of the premises and fixtures was conwas a brick wall 4 inches thick surrounding summated all the parties thereto underit and extending up to the second floor. stood all the appliances on the premises, The digester contained a pump, and was whether detached or not, to be personal connected by steam-pipes with the high- property, and that the bill of sale was given pressure boiler. The soap-kettles were as evidence of the sale thereof, and the Jarge, each having a capacity of 50,000 mortgage, being a mortgage of real proppounds. They were attached to heavy brick erty, was not intended to, and did not, inwalls, extending about 5 feet above the clude them. But the trial court, in finding basement floor, by sheet-iron bolted there- that the articles for which damages were to, and were also connected by steam-pipes awarded were part and parcel of the realty, with the boiler. The high-pressure boiler and were covered by the mortgage, which was 16 feet long and 3 feet in diameter, and finding, as before remarked, cannot be diswas connected with two other boilers by turbed, must have concluded that the bill a brick wall and steam-pipes and a heavy of sale, if it had any operation at all, transcast-iron front piece. It rested on a brick ferred only the fixtures that, at the time, foundation, and was all inclosed, except the were severed from the premises, and that front, with brick walls, which formed a the deed carried the undetached fixtures as nest. The sides of this nest were bolted to- part of the realty. Looking at the entire gether with iron bolts three-fourths of an record, we perceive no error, and therefore inch in diameter, extending through from advise that the judgment and order be afone side to the other, and were fastened firmed. with nuts. On one side they ran through the timbers that supported the building, and on the other side through iron braces. The candle-machines were on the third floor of the building, and were nailed to scantlings, which were in turn fastened to the floor. They contained perforated steampipes, and were attached to the boilers by steam-pipes. All these appliances were of a SMITH V. SMITH. (No. 12,955.) permanent character, and were put into (Supreme Court of California. Sept. 2, 1889.) and attached to the building by the plaintiff with the intention of using them for the EJECTMENT-JOINDER OF ACTIONS-MORTGAGES— making of soap and candles, for which pur- 1. Under Code Civil Proc. Cal. §§ 427, 1048, propose the premises were used and solely ap-viding that claims to recover specific real property propriated by him prior to his lease thereof may be united in the same complaint, and that two to Easterbrook, and the subsequent trans- or more causes of action pending at the same time fer of the property in November of the same between the same parties, and in the same court, year to the Mege Pacific Commercial Com- upon causes of action which might have been pany. Thus it is clear, considering the char- joined, may be consolidated, two actions of ejectacter of the appliances, the manner in and ment brought in the same court, at the same time, the intention with which they were affixed tracts of land in the same county, are properly between the same parties, to recover separate to the land and building, and their necessity consolidated. for the uses to which the premises were devoted, that they were fixtures, and formed part of the realty within the meaning of the provisions of the Civil Code; and as the court has found upon evidence that is not without conflict that they were all in position and undetached at the time the mortgage was executed, we cannot disturb the finding. The mortgage contains this clause: "All boilers, engines, and fixed machinery shall be deemed to be included in said property." As the fixtures in dispute were part of the realty, they passed with the grant of the property to the Mege Pacific Commercial Company, and became subject to the lien of the mortgage that was given back to plaintiff, which created "a lien upon everything that would pass by a grant of the property." Civil Code, § 2926. Therefore the words quoted. in the absence of evidence aliunde, cannot be construed to restrict the operation of the mortgage to the land ADVERSE POSSESSION-EVIDENCE. 2. Whatever may be the exact nature of the interest which a partner takes under a deed of land to the firm, he takes a sufficient interest to enable him to maintain ejectment against a mere intruder, the deed, absolute on its face, under which plaintiff 3. Where the evidence in ejectment shows that claims, was in fact given to secure a debt, and is therefore merely a mortgage, he has failed to show either title or right of possession. 4. Defendant set up in his answer that the deed under which plaintiff claimed was only a mortgage, and that the debt had been fully paid; but he did not ask for any affirmative relief from the mortgage. Held, that the answer was in ef fect only a denial of plaintiff's title; that whether the debt had been paid or not was immaterial; and that plaintiff was not entitled to proceed first with the trial of the question as to whether the deed was a mortgage, on the ground of an equitable defense. of adverse possession that plaintiff "told me to go 5. Defendant testified in support of his claim on the place, and live on it, and make it my home, and he would give it to me for to stay there per manently." Also, that the arrangement was that he was to take some of plaintiff's sheep on the place, and take care of them on shares. He admit ed that he afterwards agreed to take a lease from plaintiff if one could be made to suit him. During a portion of the time of his possession, he caused the land to be assessed to plaintiff. Defendant would not deny that he knew of an offer made by his wife during the time to purchase the land from plaintiff, or that he did not object thereto. Held, that the evidence failed to show adverse posses sion. the payment by defendant to him of the sum of $1,192.93. It further adjudged "that said defendant pay to said plaintiff the said sum of eleven hundred and ninety-two and 93100 dollars within twenty days from the date of this decree;" "that if payment or tender of payment is not made within the time herein specified, then this decree shall be null and void and of no effect, and judgment shall be entered for plaintiff as prayed BEATTY, C. J., and THORNTON, J., dissenting. for in his complaint;" "that upon payment In bank. On rehearing. For former or tender of payment by said defendant to opinion, see 21 Pac. Rep. 4. said plaintiff within the time herein proCode Civil Proc. Cal. § 427, provides that|vided, then at the time of such payment or "the plaintiff may unite several causes of tender of payment said plaintiff shall exeaction in the same complaint where they cute and deliver to said defendant a good all arise out of * claims to recover and sufficient deed of the premises in the specific real property," and section 1048 complaint herein described;" "that if said provides that "whenever two or more ac- plaintiff shall refuse and neglect to execute tions are pending at one time between the and deliver such deed for the space of one same parties, and in the samé court, upon day after such payment or tender of paycauses of action which might have been ment, then the clerk of the superior court, joined, the court may order the actions to or his successor in office, is hereby be consolidated." constituted and appointed the commissionJ. K. Law and E. Jackman, for appel-er of this court, with full power to make, exlant. E. A. Rodgers, J. C. Campbell, Thos. Gardner, and C. H. Clement, for respondent. PER CURIAM. A rehearing was granted in this case and the same has been reargued; but we adhere to our former decision, and adopt the former opinion of Commissioner HAYNE as the opinion of the court. The judgment and order are reversed as to the N. W. of section 13, township 2 S., range 13 E., and the cause remanded for a new trial as to said property, and said judgment and order are, in all other respects, affirmed, the appellant to recover one-half of the costs on appeal. ecute, deliver, and have recorded such deed.” The plaintiff moved for a new trial of the case. The defendant, on the twentieth day after the decree was rendered, tendered to the plaintiff the amount of money named in the decree, and demanded a deed of the premises, but the plaintiff refused to accept the money or make the deed. The defendant did not deposit the money, and never applied to the commissioner appointed by the court to execute a deed. Subsequently the plaintiff moved the court to enter judg ment in his favor, on the ground that defendant had failed to comply with the terms of the decree. The court denied the motion for new trial and the motion for judgment, and the plaintiff appealed from both orders. We dissent: BEATTY, C. J.; THORNTON, J. Judgment affirming the orders appealed WARD V. MATTHEWS. (No. 13,095.) (Supreme Court of California. Sept. 2, 1889.) TRUSTS-TAX-TITLES TO TRUST-ESTATE--JUDGMENT. 1. Although a tax-title to land acquired by one who holds the legal title to the land in trust to secure the payment of a debt is also held in trust, yet where the debtor was in possession, claiming ownership, when the tax assessment was made, and failed to pay the taxes, he can only demand a conveyance of the trustee's interest on payment of the amount of the debt, taxes, costs, from was entered in this court on the 30th day of June, 1887, (73 Cal. 13, 14 Pac. Rep. 604,) and thereafter, on the 8th day of July, 1887, plaintiff tendered to defendant a deed of the premises, duly executed, conveying in and belonged to plaintiff on and prior to all the right, title, and interest which vested the 12th day of June, 1885, and demanded payment of the amount of money named in the decree, but defendant refused to accept the deed or pay the money. The deed was then left by plaintiff in the office of the clerk of the court. On the 17th day of January, 2. Where a decree orders a conveyance to the 1889, the plaintiff again moved the court be debtor within a specified time, upon payment low that judgment be entered in his favor, or tender of the specified amount, and the trus- on the ground that the defendant had failed tee appeals therefrom, a refusal by the latter and refused to pay to plaintiff the money, to accept a tender made by the former within the or any part thereof, which he was adjudged time specified does not entitle the debtor to a to pay, or to comply in any respect with commissioner's deed conveying a good title, as the the terms of the decree. The motion was decree is not final until the appeal is decided. made upon affidavits showing all of the Commissioners' decision. In bank. Ap-foregoing facts. The defendant opposed the peal from superior court, Butte county; P. O. HUNDLEY, Judge. and interest. Gray & Sexton, for appellant. H. V. Reardan, for respondent. BELCHER, C. C. The plaintiff brought an action of ejectment to recover possession of 320 acres of land. The case was tried upon the issues raised by the answer, and on the 12th day of June, 1885, the trial court found and adjudged that the plaintiff held the title to the demanded premises in trust to secure motion by a counter-affidavit, made by himself, in which he stated, among other things, that on the first Monday in March, 1885, the legal title to the land in controversy stood in the name of plaintiff, and that it became and was plaintiff's duty to return the property to the county assessor as his, and thereafter to pay and discharge all taxes levied against it for that year; that plaintiff failed and neglected to return the property to the assessor, and it was assessed to defendant; that the taxes became delinquent, We concur: GIBSON, C.; VANCLIEF, C, PER CURIAM. For the reasons given in the foregoing opinion, the order appealed from is affirmed. and the land was sold therefor in Febru- | costs, with interest thereon, then, on failary, 1886; that at the sale the plaintiff be- ure of defendant to make such payment came the purchaser, and, there being no re- within a reasonable time, the relief asked demption, he, in the month of February, for should be granted. The order here ap1887, demanded and received from the tax pealed from should be affirmed. collector a deed of the premises; that on the 13th day of May, 1887, plaintiff commenced another action, based upon his tax deed, to eject the defendant from the land, which action is still pending; that, in consequence of the said deed and action, defendant's right to the land became clouded and uncertain, and it was impossible for him to raise any money upon the land; that defendant is a poor man, and has no other means of complying with the decree, except by raising money on the land; that defendant is now, and has at all times been, ready to pay to plaintiff the money found to be due him, but the plaintiff has at all times refused to execute a deed conveying all his title to the land. Upon this showing the court denied the plaintiff's motion, and the appeal is from that order. CARTER V. PAIGE. (No. 12,637.) (Supreme Court of California. Aug. 31, 1889.) PLEADING JUDGMENT. In pleading a judgment it is unnecessary, after alleging the giving and entry of the judg ment, to allege further that said judgment was in full force, and not appealed from. THORNTON, J., dissenting. In bank. On rehearing. For former report, see 20 Pac. Rep. 729. D. S. Terry, (Edward J. Pringle, of counsel,) for appellant. Stanton L. Carter, for respondent. The motion seems to have been resisted and denied on the ground that the deed tendered by plaintiff did not include the interest acquired by him under the tax sale and BEATTY, C. J. In this cause there were deed. And in support of the ruling it is so many motions and proceedings to disargued that, as plaintiff held the title in miss the appeal, amend the record, etc., pretrust for defendant when the assessment liminary to the hearing on the merits, and was made and when the property was sold so many printed arguments were filed by and the tax-deed executed, he took the tax-counsel, that the court cannot be severely title also in trust, and was not entitled to blamed for having overlooked one of the the relief demanded until he offered to con- additional and supplemental briefs filed on vey all the title which he then held. The ar- the part of the appellant. When the case gument appears to be sound, but, conced- was taken up for decision, we considered ing it to be so, still, as the defendant was in the single point made by appellant in his possession of the property, claiming owner-points and authorities, and pronounced the ship, when the assessment was made, it was opinion reported in 20 Pac. Rep. 729. Our properly assessed to him, and it was his attention being called to the fact that we duty to pay the taxes when they became had neglected to notice a point made in a due. Reily v. Lancaster, 39 Cal. 357; Christy supplemental brief filed by appellant under v. Fisher, 58 Cal. 259. He failed to perform leave of the court, a rehearing was granted this duty, and the plaintiff was, therefore, in order that we might consider that point. justified in buying in the property for his The suit is for damages for the malicious own protection, and has now a just claim levy of an attachment by the defendant for the repayment of the taxes and costs, upon lands of the plaintiff. The complaint with legal interest thereon. Plaintiff has shows that the attachment suit was upon a also a just claim-and this is not ques-promissory note not alleged to have been tioned-for the payment of the amount secured by mortgage or otherwise, and found due him by the decree. This money shows, consequently, that defendant had he might and perhaps should have taken an undoubted right to an attachment, if when it was tendered to him at the end of there was anything due on the note. But the 20 days, but he had a right to question it is alleged that the note had been paid the correctness of the decision by a motion before suit brought, and that the malice of for new trial and appeal, and the judgment defendant consisted in suing and attaching was not final until the appeal was decided. when he knew that his debt had been paid. And in this connection it was said on the It is clear from all the allegations of the former appeal, (73 Cal. 17, 14 Pac. Rep. 608:) complaint that the question of malice or "It will still be incumbent on the defendant no malice in issuing the attachment deto tender to and deposit the money with the pended entirely upon the further question commissioner named in the decree before he whether the defendant had a right of action, can obtain a deed to the land, which will—whether, in other words, his note had divest the plaintiff's title thereto." been paid. This being so, defendant conEvidently the defendant ought not to be tends in support of his appeal from the permitted to retain both the land and mon-judgment entered against him by default ey, and the plaintiff should have some that the amended complaint is not suffimeans of securing his rights. In our opin-cient to support the judgment, because, as ion, the plaintiff ought to be permitted to he claims, it does not show that a final renew his motion in the court below, and judgment was given or entered against him If he shall do so, and shall tender to defend- in the attachment suit before this action ant a good and sufficient deed, conveying was commenced. The allegations of the all the interest he has in the property, upon complaint on this point are as follows: payment by defendant of the sum directed"That thereafter, to-wit, on the 8th day of by the decree to be paid by him, and also December, 1880, said cause came on for trial the amount paid by plaintiff for taxes and in the said superior court of the county of Stanislaus, state of California, in which | heard has no jurisdiction of the case at that time, court said action was then duly pending, where it has jurisdiction when the motion is made. and upon said trial judgment was duly giv- will be "based upon the papers, pleadings, and 2. Though the notice states that the motion en. made, and entered in favor of this plain-records in said cause, and upon affidavits hereaft tiff, (the defendant therein,) and against er to be filed," the court may hear evidence outthis defendant, (the plaintiff therein,) which side of that mentioned in the notice, if necessary. said judgment was duly entered and re- 3. Under Civil Code Cal. § 331, providing that corded in the judgment book of said court, the directors of a corporation may levy assessments in vol. 1, at pages 831 and 832, and no ap-"for the purpose of paying expenses, conducting peal was taken from said judgment within business, or paying debts," an assessment to pay for the repair of an engine and other machinery five days after the entry thereof, and no necessary in conducting the corporation's business bond or undertaking was given to con- is valid. tinue said attachment in force, and because 4. A finding that a meeting of directors of a and by reason thereof said attachment be- corporation was "duly and regularly convened," came and was dissolved and discharged by and that an assessment made thereat was "lawfulsaid judgment." It will be seen that herely and rightfully" levied, includes a finding that the necessary notice was given. In bank. Appeal from superior court, Sacramento county; JOHN W.ARMSTRONG, Judge. WORKS, J. This is a suit to enjoin the enforcement of an assessment of the stock of a corporation on the grounds that the meeting of the board of directors, at which the assessment was ordered, was not legally called, and that the assessment was not made for any of the purposes allowed by law. There was a temporary injunction. The suit was commenced in the county of Santa Cruz, and subsequently transferred to the county of Sacramento. On the 13th of August, 1888, that being the day the order transferring the cause was made, the defendants gave notice that they would, on the 23d of the same month, move the superior court of Sacramento county to dissolve the injunction. At the time and place named in said notice, the attorney for the plaintiff appeared and objected to the hearing of the motion, on the ground that at the time the notice was served upon him the papers in the case had not been filed in that court. His objection was overruled, the motion heard, and the injunction dissolved. A trial was subsequently had which resulted in findings and a judgment in favor of the defendants. A motion by the plaintiff for a new trial was denied, and this appeal is from the order dissolving the temporary injunction, the final judgment, and the order denying a new trial. is an allegation that judgment was given and entered for the defendant in the attachment suit, (plaintiff here,) and that no appeal was taken therefrom within five days. Evidently the theory upon which the com- L. N. Goldsby, for appellant. S. C. Denplaint was drawn was that a right of ac-son and C. H. Oatman, for respondents. tion for a malicious attachment accrued at least as soon as the attachment was dissolved, irrespective of the finality of the judgment, and that the attachment was finally dissolved by judgment for the defendant, unappealed from within five days. Code Civil Proc. § 946. We doubt the correctness of this theory, but we deem it unnecessary to decide upon it. We may concede for the purposes of our decision that the appellant is right in his contention that no cause of action could have accrued against him on account of the attachment in his suit against respondent until final judgment was given and entered against him therein, for we must hold that such final judgment is sufficiently alleged. It was not necessary, after alleging the giving and entry of the judgment, to allege further that it was in full force and effect, and not vacated, set aside, reversed, or appealed from. Such allegations are not uncommon where a judgment is pleaded, but they are not necessary. If the judgment has been appealed from, or set aside, or reversed, or is for any reason no longer in force, the allegation of that fact comes more properly from the party against whom it is pleaded. Campbell v. Cross, 39 Ind. 156, 157, and authorities there cited. The allegation that the judgment was not appealed from within five days cannot be held an admission that it had been appealed from after five days. It The appellant contends that the notice was clearly intended for no other purpose of the motion to dissolve was not given in than to show a dissolution of the attach-time, and that it was not effective, as a noment on the theory above stated, and, with tice, for the reason that the court in which respect to the material fact of the finality of the motion was to be heard had no juristhe judgment, must be treated as surplus-diction of the case at the time it was given. age. We think the amended complaint was sufficient to sustain the judgment, and the judgment is affirmed. There is no force in either of these points. We concur: MCFARLAND, J.; SHARP- was not a proceeding in court, and it was STEIN, J.; WORKS, J. not necessary to its validity that the superior court of Sacramento county should have had jurisdiction of the case at that time. It was enough that it had jurisdiction when the motion was made. The further point is made that the notice stated that the motion would be "based upon the papers, pleadings, and records in said cause, and upon affidavits hereafter to be filed," and that the court below erroneously admitted in evidence an answer filed by the defendants after the notice was 4. The state courts have jurisdiction of such the general police power of the state, though it is offense, under the statute which is an exercise of also punishable under a federal statute. given. There was no error in this ruling. I set out sufficiently to show that they were "bankThe notice did not confine the defendants notes. " to the use, as evidence, of such pleadings, only, as were on file at the time it was given; but if it had, the court might in its discretion very properly hear evidence outside of that mentioned in the notice, if necessary to aid it in arriving at a proper determination of the question. There was no error in the order dissolving the injunction. 5. A charge in substance that to constitute the crime a mere possession and intention to use, though without ability to use, is sufficient, is proper. Commissioners' decision. In bank. Appeal from superior court, city and county of San Francisco; D. J. MURPHY, Judge. It is contended in support of the appeal from the judgment and order denying a Information against McDonnell for havnew trial that the evidence shows that ing counterfeiting tools in his possession. the meeting of the board of directors, at Pen. Code Cal. § 959, subd. 6, provides which the assessment was levied, was not that the information is sufficient if it shows a legal meeting, for the reason that no no-that the act or omission charged as the tice of the meeting was given. But the offense is clearly and distinctly set forth, in court below found that the meeting was ordinary and concise language, without "duly and regularly convened," and that repetition, and in such a manner as to enthe assessment was "lawfully and right-able a person of common understanding to fully" levied. This included a finding that know what is intended." Section 960. the necessary notice was given, and the find- "No indictment or information is insuffiing is supported by sufficient evidence. cient, nor can the trial, judgment, or other The secretary testifies that written notices proceeding thereon be affected by reason of were sent to the directors of all of the any defect or imperfection in matter of form meetings of the board, whether regular or which does not tend to the prejudice of a special, and the plaintiff, who was himself substantial right of the defendant upon its one of the directors, admitted having re- merits." Defendant was convicted, and ceived notices of some of the meetings, and appeals. declined to say that this meeting was not one of them. The minutes of the meeting proved the other facts necessary to show that the same was regularly and legally held, and that the levy of the assessment was properly made. C. B. Darwin, (Crittenden Thornton and F. H. Merzbach, of counsel,) for appellant. George A. Johnson, Atty. Gen., and Davis Louderback, for the People. FOOTE, C. The defendant was charged by It is further contended that the levy of information, under section 480 of the Penal the assessment was not made for the pur-Code, with having knowingly, willfully, pose of "paying expenses, conducting bus- unlawfully, and feloniously in his possesiness, or paying debts," as authorized by sion a certain stamp, block, and plate, made section 331 of the Civil Code. The evidence use of in counterfeiting bank-notes, designed shows that the defendant corporation was and engraved for the purpose of striking an electric light company, and that the and printing counterfeit bank-notes, in the money to be raised by the assessment was likeness and similitude of the genuine "five necessary for the repair of its engine and pound" notes of the "Bank of England;" other machinery, and that without such re- such possession being had by him for the pairs the company would be unable to an- purpose of knowingly and feloniously counswer the demands upon it for the supply of terfeiting such "bank-notes." His demurrer electric lights. This brought the case to the information on various grounds was clearly within the provisions of the statute. overruled. He then pleaded not guilty, The judgment and orders appealed from are was tried, and convicted as charged. A moaffirmed. tion for a new trial was made and refused, as also a motion in arrest of judgment. From the two orders made upon the motions mentioned, and the judgment of conviction, the defendant has appealed. We concur: SHARPSTEIN, J.; PATERSON, J.; MCFARLAND, J.; Fox, J.; THORNTON, J. PEOPLE V MCDONNELL. (No. 20,509.) 1. Pen. Code Cal. $ 480, providing that "every person who makes, or knowingly has in his possession," anything employed in counterfeiting bank-notes or bills, is punishable," applies to foreign as well as domestic bank-notes. 2. Under Pen. Code Cal. § 959, subd. 6, 960, providing that an information is sufficient if the offense charged is set forth in such clear and distinct manner as to enable a person of common understanding to know what it is, and defendant is not prejudiced in any substantial right by the defect, an information for having possession of tools for counterfeiting notes of the "Bank of England" need not allege the incorporation of such bank. 3. Proof that the bank is known and acting as a corporate company, and as such issues bills which come within the statute, identifies the notes The jurisdiction of the trial court is assailed on the ground that the information did not present any offense against the laws of this state, in that the note set out, and Which the plate was said to be intended to print, was not sufficiently averred to be a "bank-note;" that if it was a "bank-note" it was a foreign one, and not within the "bank-note" protected by the Penal Code of this state, in section 480 thereof; that if the language of his brief, "did fall within the note set out in the information, to quote the bank-note named in our state Code, yet the state had no jurisdiction herein, because the congress of the nation, by virtue of its international power, and in discharge of its international duty, had enacted a law for the protection of the very same bank-note, and denounced the very same plate, in the same terms, and with the same intent, and had therein submitted the jurisdiction to |