true that the order of the court recites that | tions, the jury might have found the defend"the reporter, clerk, deputy sheriff, judge of ant guilty, although it had not been proved the court, and the defendant, will accom-that he had received all the cattle menpany the jury in this view, and the defend- tioned in the indictment. But that was ant's counsel;" but it does not appear that not error. The character or grade of the they did so, or that the court assembled at statutory crime with which appellant was the place where the steer was, as an organ- charged did not depend upon the value of ized court, and conducted the examination the property received by him; and it was in the usual way, as a part of the regular not necessary to prove either that he had trial. The order appointed Samuel Miller, received all the property stated in the inone of the witnesses, "to show and point dictment or that the part which he did reout said animal to the jury." There does ceive was of a particular value. Bish. Crim. not appear to have been any opportunity Proc. § 723. for counsel to examine or cross-examine 3. Appellant objected to testimony of witMiller, or to call the attention of the jury ness Miller as to defendant's manner at the to the particular features of the brands and time of his arrest. But all that Miller said marks on the animal about which there was was that when defendant was arrested "he a conflict of evidence. The record merely got very mad;" "he got boisterous;" and states that "the jury inspected the steer." stamped, and said it was a disgrace to be It is difficult to see, therefore, how the pro-arrested, and he had a very creditable peoceeding can be taken out of the rule that ple, much more so than I had." It is una jury must base its verdict upon evidence necessary to inquire into the admissibility regularly introduced before it during the of this testimony, for we do not see how it trial, and must not receive evidence out of could possibly have been injurious to appelcourt; although it seems to have been lant. countenanced in People v. Bonney, 19 Cal.

446.

66

used in certain counties. The testimony to impeach the witness Fagan was properly admitted. The testimony of Miller as to William Carter was admissible, as it tended to prove that the cattle had been stolen. The evidence was sufficient to support the verdict, and we see no material error in the record.

The judgment and order affirmed.

We concur: BEATTY, C. J.; WORKS, J.; SHARPSTEIN, J.; Fox, J.; THORNTON, J.

MCDANIEL v. CUMMINGS. (No. 13,173.) (Supreme Court of California. Sept. 12, 1889.) SURFACE WATER-UNOBSTRUCTED FLOW. Under Civil Code Cal. § 801, providing that the right of receiving water from or discharging it upon land, and "the right of having water flow without diminution or disturbance of any kind," may be attached as easements to other lands, the and unobstructed flow of the surface water on owner of upper land is entitled to the natural and across adjoining land, and if the common-law

4. There are no other points necessary to be noticed in detail. Miller showed suffiBut the appellant did not object upon the cient knowledge about the brands and catground that the proceeding itself was irreg- tle marks to testify upon the subject, alular, illegal, or unauthorized, and the at-though not familiar with particular brands tention of the court was not called in any way to that view of the subject. The ground of the objection to the order was that "the animal in question has not been shown to be in the same condition it was when the animal is alleged to have been received by the defendant." To which counsel for the prosecution responded: "We don't claim the brand is the same; but that the ear-marks and dewlap is the same." The order for the view having then been made, counsel for defendant said: "To which order the defendant excepts on grounds heretofore stated in objecting to the motion." He then asked the court as to the scope of the investigation, and the court replied that the order was that "the jury inspect this steer, and they can examine all parts of him. That is the extent of the order of the court." Whereupon counsel for the defendant said: "To which we will except, and I will ask the court to instruct the jury not to inspect the brand, as it has been shown to have been changed. The court denied the motion, and defend-rule is otherwise it is abrogated by Pol. Code Cal. ant excepted. These are all the objections and exceptions upon the point. If the attention of the court below had been called to what is now claimed to have been the vice of the proceeding, the ruling might have been different; but the objections which were then made were untenable, and we do not think that, under the circumstances, the appellant should be heard to make here for the first time the point which he now urges. It may be remarked that sending a jury out to view premises, even when clearly within section 1119, Pen. Code, is a hazardous proceeding, and frequently leads to difficulties; and it would be well for trial courts not to make use of the power therein given except in cases which seem to imperatively call for it.

2. There was no error in the instructions given to the jury; and they were quite favorable to defendant. The contention of appellant on this point is that, under the instruc

4468, providing that the common law is the rule of decision "so far as it is not repugnant to or inconsistent with the constitution of the United States, or the constitution or laws of this state."

In bank. Appeal from superior court, Colusa county; E. A. BRIDGFORD, Judge. H.M. Albery, for appellant. Edwin Swinford and John T. Harrington, for respondent.

WORKS, J. The appellant being the owner of lands above and adjoining the lands of the respondent, the surface water from the lands flowed, naturally, on and across the lands of the latter. To prevent such flow the respondent constructed a dam on the line of his lands, thereby obstructing the waters and backing them onto the appellant's lands to his damage. This action was brought to enjoin the respondent from thus obstructing the flow of the water as stated. A temporary injunction was is

FOOTE, C. The defendants were charged by indictment with the commission of a misdemeanor, in that they conspired, combined, and agreed together, feloniously to kill and murder a certain W. B. Drew. The defendants demurred to the indictment upon the ground, among others, that the superior court of the city and county of San WORKS, J This action was brought by Francisco, in which they stood indicted, three plaintiffs, jointly, to foreclose their and by which they were to be tried, was separate material-men's liens on the mining without jurisdiction to consider and de-claim of the defendant for materials fur

not certainly fixed by the evidence the court may take further evidence if it be necessary to ascertain the exact value of the material not used and make the necessary modification.

nished for repairs on said claim. The work of the court on questions of evidence, and on the mining property was done by a con- the findings are criticised, but these objectractor, who was to erect hydraulic pow- tions are unfounded. The findings were er hoisting works and pumping works sustained by the evidence, except as to a building, gallows frame and track, lay down part of the claim of the plaintiff Johnston. a water-pipe to supply water to the mine it appears that certain track iron furnished and to pump out the mine to the third level. by Johnston to the contractor, to be used There was but one contract to do all of the in repairing the mine, was not used in such work named for a certain number of the repairs. It is not enough, in an action shares of stock of the company, and the con- against the owner of the property, for tract was not recorded. The evidence material furnished a contractor, to show shows that the materials sold by the plain- that such material was sold to be used in tiffs were sold to be used in the repairs of the structure to be erected. It must appear said mine, and, with the exception herein- that it was used therein. As to this item after mentioned, were used therein, some be- of material, therefore, Johnston was not ing used in one of the improvements men- entitled to recover. The amount of this tioned and some in another. The court material is stated in the briefs to have been finds, generally, that the materials "were $62.27. If this be the correct amount, and used in and on said premises in the altera- no further evidence is offered on the point, tion thereof." The appellant contends that the court below will modify its findings and the statute does not give to material-men | judgment accordingly, but if the amount is liens upon mining claims, but only "upon each separate structure, and convenient space around the same, and not for materials supplied, and used generally for the alteration and repair of a mining claim," and upon this basis it is argued that, the notices It is claimed by the appellant that it was of the liens being against the mine, and not relieved from liability by the posting of a the structures erected in repairing the same, notice that it would not be responsible for they were invalid; and, further, that, as materials furnished the contractors; but, some of the structures were completed more conceding that such a notice, properly than 30 days before the notices were filed for posted, would prevent the attachment of record, they were inoperative. We cannot the lien, the court below found, upon sufficoncur in this view. The lien given by the cient evidence, that the plaintiffs had no acstatute is upon the mining claim, as a whole, tual knowledge that such a notice had been and not upon the separate pieces of work posted, and that it was not posted in a condone in its repair. Code Civil Proc. § 1183. spicuous place, as required by the statute The mine is a structure within the meaning which meets this point. There is no error of the statute. Helm v. Chapman, 66 Cal. appearing in the record except the one 291, 5 Pac. Rep. 352. The work done in this stated above. The judgment and order apcase became and was a part of the mining pealed from are affirmed as to all of the reclaim, and the whole claim, including the spondents except Johnston, and as to him added improvements, was subject to the the court below is instructed to modify the lien. Civil Code, § 661. Therefore the notice judgment as above indicated unless the parof lien, as against the mining claim, was ties, or either of them, desire to offer addivalid, and the contract for the several items tional evidence on the one question whethof improvement being entire, the notice er the material named was actually used in given within 30 days after the completion the repairs of the mining claim, or, if not of the whole work was in time. It is ob-used, as to its value, and modify the judgjected that the findings were not sufficient-ment in accordance with the facts proved. ly full on some of the issues, but we regard them as sufficient.

It is claimed that the court erred in admitting the several notices of liens in evidence, for the reason, as stated above, that no such lien was given by statute, and for the reasons that they were not shown to have been filed in the recorder's office, recorded, or verified. The first of these objections we have answered. As to the others, the record contains the notices of the seyeral liens, with the names of the claimants in each attached, and substantially the following, immediately after the signature as it appears in the transcript: "Duly sworn to. Indorsed: Recorded at request of Peter Johnston, September 5, 1887, in book 4 of Liens, pages 443, 444, records Nevada county, Cal. JOHN A. RAPP, Recorder." We are bound by the recital in the statement that the notices of liens were duly sworn to, and the recorder's indorsement on the paper is prima facie evidence at least of their filing and the date of their recording, which fully answers the other objections made to their introduction in evidence.

We concur:

THORNTON, J.; PATERSON, J.; SHARPSTEIN,
BEATTY, C. J.; Fox, J.;
J.; MCFARLAND, J.

DE COSTA V. COMFORT. (No. 13,048.) (Supreme Court of California. Sept. 11, 1889.) ALLOWANCE OF ATTORNEY'S FEES.

In an action by a mortgagee against a third person to recover the amount of a note secured by a chattel mortgage, on the ground that defendant tortiously converted the mortgaged property, the mortgagee can recover attorney's fees and interest on the whole, though it appears that part of the property was sold by mortgagor to defendant with an agreement that he would satisfy the mortgage out of the proceeds of sale.

In bank. Appeal from superior court, San Joaquin county; J. G. SWINNERTON, Judge.

Action by A. De Costa against A. M. Com fort. Judgment was rendered for plaintiff

Objections are made to some of the rulings and defendant appeals.

Baldwin & Campbell, (Edward 1. Jones, | There is no merit in this appeal. Judgof counsel,) for appellant. Carter & Smith, ment affirmed, with 20 per cent. damages. for respondent.

WORKS, J. This action was brought by the respondent against the appellant to recover the amount due him on a note given by one Hughes, and secured by a chattel mortgage, on the ground that the appel lant had converted the mortgaged property to his own use. The court found for the respondent, and rendered judgment in his favor for the amount due under the mortgage, including interest and attorney's fees, as provided for therein. The appeal is from the judgment, and comes to us on the judgment roll.

We concur: BEATTY, C. J.; MCFARLAND, J.; SHARPSTEIN, J.; Fox, J.; THORNTON, J.

BRYANT V. LANGFORD et al. (No. 12,931.) (Supreme Court of California. Sept. 16, 1889.) ASSIGNMENT FOR BENEFIT OF CREDITORS.

quired by Civil Code Cal. § 3467, the assignor can-
When an assignee fails to give bond as re-
not annul the assignment, but may have the as-
signee removed.

San Joaquin county; J. G. SWINNERTON,
In bank. Appeal from superior court,
Judge.

The appellant contends that, the action being for a tort, the plaintiff could not re- Langford, R. E. Wilhoit, and Charles BamAction by M. E. Bryant against B. F. cover the attorney's fee, nor the interest from the time of the alleged conversion. ert. Judgment was rendered for defendWe think otherwise. The property taken ants and plaintiff appeals. by the appellant was subject to the pay-counsel,) for appellant. J. C. Campbell, for Joseph H. Budd, (James H. Budd, of

ment of the full amount due on the mort

gage, and he having converted the same respondents.
to his own use must be held personally lia-
ble for the same amount. It would be a
strange doctrine that would allow the
mortgagor to relieve his property of a part
of the debt for which he has pledged it by
smuggling it into the hands of a third
party, and that such third party could es-
cape liability for the full amount by saying
that his taking of the property was in the

nature of a tort.

pellant to set aside a deed of assignment of WORKS, J. This is an action by the apcertain real estate, made by him to the respondents for the benefit of his creditors. The sole ground alleged in the complaint for setting aside the deed is that the assection 3467 of the Civil Code, the amount signees failed to give the bond required by of such bond having been fixed by the judge correctly sustained a demurrer to the comof the superior court. The court below plaint. The failure to give the bond did not affect the validity of the deed. The execution and delivery of the deed vested the failure on the part of the assignor to file an title to the property in the assignee. A inventory, or a failure to record the deed, renders the assignment void as "against creditors of the assignor and against purand for value," and until the inventory and chasers and incumbrancers in good faith affidavit have been filed, and the assignee has given the required bond, such assignee has no authority to dispose of the estate or convert it to the purposes of the trust. as between the assignor and assignee, and Civil Code, §§ 3461-3468. But the title passes the assignment is irrevocable. Forbes v. Scannell, 13 Cal. 288; Warner v. Jaffray, 96 N. Y. 256. If the assignor has any remedy, it is to have the assignees removed, and he certainly has this remedy, as he, as well as the bond and the due performance of the his creditors, is interested in the giving of trust by the assignees. Judgment affirmed.

It is further contended that the taking by the appellant was not tortious. The court finds that the appellant, learning that an attachment was about to be is sued against the property, which consisted of a lot of grain, informed Hughes of the fact, and requested him to transfer the same to him; that he did thereupon transfer to him 800 sacks of the wheat at $1.30 per 100 pounds; that the appellant paid Hughes $5 on the wheat, and at the time agreed that the price of the wheat, after paying plaintiff's mortgage, should be ap; plied to a certain note due by one of Hughes' creditors to the appellant, and that he took into his possession 373 sacks of the wheat not sold to him, making in all 1,173 sacks, weighing 157,493 pounds; that the appellant sold the whole of the wheat to a certain corporation, and, with the consent of Hughes, paid the purchaser an amount due it, presumably from Hughes, and himself received the balance, amounting to $1,113.46. As to the 373 sacks, this was a tortious taking of the property, as there was no purchase of it from Hughes. As to the wheat actually transferred by Hughes to the appellant the court finds that it was under an express agreement that the respondent's mortgage should be first satisfied out of the proceeds to be derived from its sale, and the money due the respondent was converted to the appel-(Supreme Court of California. Sept. 17, 1889.) lant's use, if not the wheat. If it were not ANIMALS-SHEEP-KILLING DOGS. a tortious taking, the appellant, by his 1. Under Civil Code Cal. § 3341, subsec. 2, propromise, bound himself to pay the respond-viding that any one finding a dog, not on the prement his money when the wheat was sold, and should be held to this promise. Whether the taking be regarded as a tort or not, the findings clearly show a liability on the part of the appellant to the respondent in the full amount of the judgment.

We concur: BEATTY, C. J.; MCFARLAND,
J.;
SHARPSTEIN, J.; THORNTON, J.

JOHNSON V. MCCONNELL. (No. 13,120.)

ises of its owner, worrying, wounding, or killing auy sheep, may at the time kill the dog without liability for damages, it is necessary, in order to actually worrying, wounding, or killing, and a justify the killing of a dog, to prove that it was finding that the sheep were running about the eld in a greatly agitated and frightened manner, pur

2. In said section the words "at the time" do not import that the killing of the dog must be in the very act of worrying, etc., but it may be done after an extended pursuit of the dog.

sued by the dog, which was apparently worrying | greatly worry and injure them, which was and injuring them, and that the effect of chasing known to defendant when he pursued and was to greatly worry and injure them, is not suffi- killed the dogs; that they were in fact incient. BEATTY, C. J., and MCFARLAND and THORNjured and worried thereby; that the plainTON, JJ., dissenting. tiff was the owner of the dogs; that they were never known to molest sheep before this; that they were valuable hunting dogs, trained and educated, and were worth $225. On these findings the court concluded in favor of the defendant, and rendered judg ment accordingly. The plaintiff moved for a new trial, which was denied, and he appeals.

In bank. Appeal from superior court, Sacramento county; W. C. VAN FLEET, Judge.

Action by T. W. Johnson against Thaddeus McConnell. Judgment was rendered for defendant, and plaintiff appeals. Taylor & Holl, for appellant. Grove L. Johnson, for respondent.

It is extremely doubtful from the evidence Whether the dogs were in fact chasing or worrying the sheep at all, or whether they were not hunting in the field where the WORKS, J. This action was brought by sheep were, and thereby frightened them, the appellant against the respondent to re- and the court below does not find that they cover the value of three dogs alleged to have were, but that they seemed to be chasing been maliciously killed by the latter. The them, and were apparently worrying and respondent admitted the killing, but justi- injuring them, and that the defendant befied it on the ground that the dogs were lieved that they were so doing, and believed at the time in the act of worrying sheep be- at the time of killing them that it was the longing to his mother, and in his charge. only effectual method of preventing them As to the fact tending to show such justifi- from returning and injuring the sheep. cation the court found as follows: "On the There is no finding that the dogs were in fact 1st day of February, 1887, the defendant worrying the sheep, or that the defendant was in the employment of his mother, Mrs. had reasonable cause to believe they were, Ellen M. Wilson, and engaged in attending except so far as this may be inferred from to and caring for the sheep upon the ranch the finding that they were apparently doin Sacramento county. A portion of said ing so. Our Code provides: "Any person, sheep consisted of a band of ewes, about on finding any dog or dogs, not on the three hundred in number, which were at the premises of its owner or possessor, worrytime heavy with lamb, and had been segre- ing, wounding, or killing any sheep, Angora gated from the rest of the sheep and put in or Cashmere goats, may, at the time of so a field by themselves, for the purpose of giv- finding said dog or dogs, kill the same, and ing them more careful attention and protec- the owner or owners thereof shall sustain tion during the lambing season. This field no action for damages against any person was at the time a part of Mrs. Wilson's so killing such dog or dogs." Subsection 2, land, and in her possession, and it was some § 3341, Civil Code. Dogs are property, for three miles from the residence of the plain-the malicious destruction or injury of which tiff. On the date named, defendant, while an action for damages will lie. 1Suth. Dam. at some distance from said field, discovered 802; State v. McDuffie, 34 N. H. 523; Dodsaid ewes running about the field, followed son v. Mock, 32 Amer. Dec. 677; Wheatley v. by three or four dogs, which seemed to be Harris, 70 Amer. Dec. 258, and note. At chasing them. Thinking said sheep in dan- common law, and in some of the states, they ger, the defendant immediately went to his are not the subject of larceny. State v. house, a quarter of a mile distant, and, pro- Doe, 79 Ind. 9: Ward v. State, 48 Ala. 161. curing a repeating rifle, returned to said But even in those states it is held that they field. He found the ewes still running about are the subject of a criminal prosecution for the field in a greatly agitated and frightened malicious trespass. State v. Doe, supra; manner, pursued by four dogs, which were Kinsman v State, 77 Ind. 132; Parker v. apparently worrying and injuring them; Mise, 27 Ala. 480; Ward v. State, supra. and the defendant, thinking that said ewes In this state they are declared to be propwere being so worried and injured, and in erty, and made the subjects of larceny, (Pen. danger of being killed by said dogs, at once Code, § 491;) and, while it has been said that proceeded to and did shoot and kill three of they have nearly always been held "to be said dogs; that is to say, defendant imme- entitled to less regard and protection than diately started after said dogs, when the lat- more harmless domestic animals," it is ter, perceiving him enter the field, turned equally true that there are no other domesand ran, when defendant pursued and shot tic animals to which the owner or his famithree of them in quick succession and ly can become more strongly attached, or as soon as he could get in range of them, the loss of which will be more keenly felt. out not until they had gotten something like As to these dogs the plaintiff testified: a quarter to a half mile from where defend- "These dogs were trained animals. The ant first started after them. None of the setter was trained by a regular dog-trainer, dogs were on the land or premises of the Mr. Schultius. The setter dog was a good plaintiff when killed." The court further retriever. If I dropped anything, I could found that the defendant had never seen the send him back for it any ordinary distance, dogs, and did not know to whom they be--half a mile or so. If I left my coat on the longed; that he killed them because he be- other side of the field when I went to dinlieved that it was the only effectual method ner, he would bring it to me. He encourof preventing them from returning and in-aged my greyhounds to go out and hunt juring the sheep, and not with any mali-rabbits, and would start the rabbits for the cious or wrongful intent or feeling; that the greyhound. He was a good deer dog, just effect of the chasing of the sheep was to as well-trained as a deer dog, and would