strongest reason in this case for a strict | 25th of February, 1889, this motion was application of the statute of frauds. Judg-again called up for hearing, when objection ment and order reversed, and cause re- was made by counsel for plaintiff that it manded. We concur: Fox, J.; PATERSON, J. ROMINE V. CRALLE et al. (No. 13,228.) (Supreme Court of California. Sept. 30, 1889.) DISMISSAL OF APPEAL. " had been heard and decided on the 15th day of October, 1888, and should not be heard, and, if heard, should be denied. Thereupon the court denied the motion. It is objected that the order of the 25th of February, 1889, is not an appealable order. This contention must be sustained. The appeal should have been taken from the order of the 15th of 1. The supreme court can, after an order dis-October. As an appeal from the order last missing an appeal, and after a remittitur is sent to the court below, modify the order of dismissal so as to read "without prejudice.' 2. A motion for a new trial was heard and denied October 15, 1888. Defendant excepted, but took no appeal. February, 1889, the motion was again called up, and denied on the ground that it had been decided in October. Held, that the order of February was not appealable, and an appeal from the order in October, taken more than 60 days thereafter, came too late. 3. The order denying the motion for new trial was not void because made in the absence of one attorney of record, where another was present, and the record shows no lack of authority to appeal on his part. In bank. Appeal from superior court, Sonoma county; WALTER H. LEVY, Judge. John F. Burris, (Carroll Cook and R. M. Swain, of counsel,) for appellants. Laughlin & Thompson, for respondent. THORNTON, J. Motion by respondent (plaintiff in court below) to dismiss two appeals. One of these appeals is from the judgment, and the other from the order denying a new trial. The appeal from the judgment is the second appeal from it. It appears that on the 18th day of January, 1889, an appeal from the judgment in this case was dismissed. On the next day the remittitur was sent to the court below. On the 22d of the same month the order dis named, as it was taken more than 60 days after it was made, it was too late. It is said that the order of the 15th of October, denying the motion for a new trial, should be regarded as void, because it was made in the absence of one of the attorneys of record. But another of the attorneys of record appeared for the moving party. It is said that the latter attorney was not authorized to appear. The record shows no lack of authority. He signed the answer of the defendant (the moving party) as one of his attorneys. If he was not authorized to appear, that should have been inquired into by the court below. We cannot consider it. The record filed herein shows that he had authority, and this court cannot go behind the record. The motion to dismiss the appeal from the judgment is denied, and the motion to dismiss the appeal from the order denying a new trial is granted. So ordered. We concar: MCFARLAND, J.; Fox, J.; SHARPSTEIN, J.; WORKS, J.; PATERSON, J. MOULTON V. MCDERMOTT et al. (No. 12,089.) (Supreme Court of California. Oct. 1, 1889.) EJECTMENT-PARTIES-TENANTS IN COMMON. * Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; JOHN HUNT, Judge. H. A. Powell, for appellant. Carl T. Graef, for respondents. Under Code Civil Proc. Cal. § 384, providing missing the appeal was, on motion of ap- that "all persons holding as tenants in common, pellant's counsel, modified so as to read or any number less than all, may jointly without prejudice." It is now urged that or severally commence or defend any civil action this court had no power to modify the order or proceeding for the enforcement or protection of of dismissal after the remittitur had been the rights of such party," one of several co-distribissued; but we are of opinion that this utees of the estate of a decedent may maintain court had, notwithstanding this fact, pow-ejectment against another person in possession of the entire premises distributed. er over the order, and to modify it so as to permit the prosecution of a second appeal. The matter of prosecuting a second appeal from the ju lgment was one peculiarly within the power of this court, with the exercise of which power the lower court had no concern. This court could, in the exercise of its discretion, allow the plaintiff to prosecute a second appeal, and it was not divested of such power by the issuance of the remittitur on the dismissal of a prior appeal. The modification was one still within its discretion. We think the modification of the order of dismissal was properly made; therefore the motion to dismiss the appeal from the judgment is denied. HAYNE, C. Ejectment. The answer, among other things, pleaded a non-joinder of parties plaintiff, as follows: "That there is a defect of parties plaintiff, which defect does not appear on the face of the complaint, for the non-joinder of Calvin R. Moulton, Ellen N. Verrinder, nee Moulton, and Frank E. Moulton, in this, viz.: That plaintiff claims as the devisee of one E. S. Moulton, deceased, who in his life-time pretended that he had a right of property in the parcel of land described in the complaint, and made plaintiff and other said parties co-devisees thereof." The plaintiff gave evidence tending to show that the defendant was the tenant of one Mrs. Chase; that while defendant was such tenant Mrs. Chase conveyed to one E. S. Moulton; that Moulton died, and a decree of distribution of his es tate was regularly made, "which distrib-estate to the heir at law. The only point utes the premises in controversy, three- made by appellants is that the court erred quarters thereof to Mary S. Moulton, the in holding void for vagueness and uncer plaintiff; one-twelfth thereof to Calvin R. tainty the following clause of the will: "I Moulton; one-twelfth thereof to Ellen N. also require my said executors to purchase, Verrinder; and one-twelfth thereof to at a price not exceeding $———, a tract of Frank Moulton." The defendant objected land at or near the residence of said Wilto the admission of this decree "on the sons, at Santa Barbara, for a cattle pastground that it shows title in others than ure; the free and exclusive use of which the plaintiff, and that it only shows she has the said Wilsons shall have during their received a portion of the title of an outside life-time, and the survivor of them, but party." This objection was overruled, and which tract of land shall at the death of the defendant excepted to the ruling, and both of them vest in fee in their daughter, specified the same as error. The plaintiff Kitty Bell." We think that the judgment had a verdict and judgment, and the defend- of the superior court was right. Counsel ant moved for a new trial. As appears for appellants argue the case, mainly, as if from a bill of exceptions, the court "granted the only question were, did the failure to said motion on the ground of non-joinder state the amount to be expended render of parties plaintiff, and that the co-distribu- the devise void? But that is only half of tees of plaintiff should have joined with her the problem. If there had been any ceras plaintiffs in the action; the court at the tainty in the description, or, indeed, any same time expressly overruling all other description at all of the land directed to be grounds urged by defendants on such mo- purchased, it may be that the will should tion." The plaintiff appeals from the order have been construed as directing the purgranting a new trial. chase of the land described, no matter what it might cost. But when we go from the blank dollar-mark to look for a description of the land, we come upon another blank as empty as the first. There is no description, either by common name, or by metes and bounds, or by quantity, or by any other sort of designation, by which any particular piece of land can be indicated. The case is very different from the cases cited, where bequests for the education, or support, or maintenance, etc., of infants and others, without specifying the amounts to be used for such purposes, have been maintained. In such instances the amount necessary for the purpose, considering the station in life of the legatee and the condition of the estate, can readily be ascertained with reasonable certainty. But in the case at bar there is no path that will lead the inquirer out of the labyrinth. Judgment affirmed. We think that the order was erroneous. So far as is shown by the record, the codistributees were tenants in common. And it is expressly provided by statute that "all persons holding as tenants in common, | joint tenants, or co-parceners, or any number less than all, may jointly or severally commence or defend any civil action or proceeding for the enforcement or protection of the rights of such party." Code Civil Proc. §384; Morenhaut v. Wilson, 52 Cal. 268, 269; Himes v. Johnson, 61 Cal. 259. No brief has been filed for the respondent, and we do not see that there was any error at law occurring at the trial. We therefore advise that the order granting a new trial be reversed. We concur: BELCHER, C. C.; FOOTE, C. PER CURIAM. For the reasons given in the foregoing opinion the order granting a new trial is reversed. In re TRAYLOR'S ESTATE. (No. 13,200.) (Supreme Court of California. Oct. 2, 1889.) WILLS CONSTRUCTION. A clause in a will, requiring the executors "to purchase at a price not exceeding $, a tract of land at or near the residence" of certain persons, for the latters' use during life as a cattle pasture, without any other description of the land to be bought, is void for uncertainty. Department 2. Appeal from superior court, city and county of San Francisco; J. V. COFFEY, Judge. DUNCAN V. THOMAS. (No. 12,028.) 1. A claim against the estate of a decedent, presented to the personal representative, for servces rendered, which gives the number of days' service in each month, the total for each year, and the grand total for all, with the wages per day, stating the full amount, and then credits the amounts received on account during each year, leaving a certain balance, is sufficient in form. 2. In the absence of application of payments Petition by Elizabeth H. Siddall for con- by the parties, payments in each year are not apstruction of the will of Elizabeth D. Tray-plied on the services for the corresponding year, lor, deceased. From the decree rendered but, under Civil Code Cal. § 1479, on the obligation certain contestants appeal. earliest in time, and the statute of limitations does not run against balances due on certain years, where there are subsequent payments. Selden S. & George T. Wright, (Harmon Bell, of counsel,) for appellants. D. Wm. Douthitt, (J. C. Bates, of counsel,) for respondent. MCFARLAND, J. This is an appeal taken by Joseph and Margaret Wilson and Kitty Bell from a judgment of the court below construing the will of the deceased, and ordering a distribution of the residue of the Judgment and order affirmed. ministratrix, and rejected; action brought | $772, and the evidence sustains the findings. thereon; issue joined; judgment for plaintiff; motion for new trial denied, and defendant appeals. We concur: PATERSON, J.; WORKS, J. HERRLICH V. MCDONALD. (No. 12,235.) (Supreme Court of California. Sept. 7, 1889.) TROVER AND CONVERSION-PLEADING. Department 1. Appeal from superior court, city and county of San Francisco; OLIVER P. EVANS, Judge. Action by Herrlich against McDonald. Judgment for plaintiff. Defendant appeals. Whittemore & Sears and W. B. Tyler, for appellant. Charles F. Hanlon, for respond ent. The first point made by appellant is that the claim, as presented to the administratrix, was unintelligible and insufficient. The claim was sufficient in form, under the rule prescribed in Fallon v. Butler, 21 Cal. 25, and Estate of Swain, 67 Cal. 641, 8 Pac. A complaint alleged that plaintiff placed in Rep. 497. And the complaint stated facts defendant's hands $3,600 with which to buy mining suflicient to constitute a cause of action; stock, which she agreed to use for that purpose; that on a certain day defendant bought, for account from which it follows that it was not error of plaintiff, $600 worth of stock; on a certain other to overrule defendant's objection to the in- day, $1,500 worth; and on another day, $1,500 worth troduction of evidence in support of it. Held, that the complaint contained a sufficient alThe facts, as shown by the claim present-legation of the value of the property to support a ed, the complaint and the findings, (which money judgment for the amount for which defendare fully supported by the evidence,) are ant had sold it. briefly stated, as follows: Decedent was the owner of a grain warehouse at the town of Gilroy. Plaintiff was employed by him as foreman of such warehouse, and rendered service as such on such days as service was required, during every month, from January, 1881, to June, 1885, both inclusive; the service in the different months varying from 6 days to 27 days. He kept a tally of the service by the day, and WORKS, J. This action was brought by charged for it at the rate of $2 per day, the respondent against the appellant to rewhich was the minimum of value proved at cover certain mining stock, and the divithe trial. No settlement seems ever to dends thereon, or their value. It was alhave been had, but decedent made payments leged in the complaint, and the court found, from time to time on account of such serv-in substance, that the plaintiff had intrustice, and shortly before his death stated to ed to the defendant a large sum of money his banker that he was indebted to plain- with which to purchase mining stock for tiff, and was looking over his account to see the former; that she, the defendant, purif he had a balance sufficient to pay him chased the stock and retained it, and colup. The account, as stated to the adminis-lected the dividends; that the plaintiff detratrix, and as sued upon, gave the num-manded said stock and dividends, but the ber of days' service in each month, the total number in each year, and the grand total for all the years and months; being 951 days, at $2 per day, $1,902. It also credited the amount of money received on account thereof in each year, to-wit, 1881, $380; 1882, $200; 1883, $200; 1884, $250; 1885, $100: total, $1,130; and leaving a balance of $772. There was no conflict of evidence as to the number of days' service, or when it was rendered, or as to its value; The appellant contends that the comand the amount of credits to which the es-plaint contained no allegations upon which tate was entitled was accepted as being the money judgment was proper, and that correctly stated in the claim as presented. the findings do not support such a judgDefendant pleads payment, and the stat-ment. The claim is that the action was ute of limitations, and under these pleas one to recover the stock, and that the cominsists that the payments of each year plaint contained no allegation as to the must be applied to the service of the cor- value of the stock as a basis for a money responding year, and that, when they are judgment. The complaint is not as specific so applied, whatever balance there was on in this respect as it should have been, but account of service rendered prior to July, we think that it was sufficient. It alleges 1883, (decedent having died July 3, 1885,) is that the plaintiff placed in the hands of barred by the statute of limitations, and the defendant, with which to purchase the that this will show that all the service ren- stock, the sum of $3,600, which she agreed dered since that time has been fully paid to use for that purpose, and "that on the for or nearly so. We know of no law, and first day of November, 1876, or thereabouts, we are cited to none, which will support the defendant bought, for account of plainsuch a contention. On the contrary, in a tiff, six hundred dollars' worth of mining case like this, of several obligations, where stock; and on the first day of April, 1877, neither party has made any express appli- or thereabouts, the defendant purchased cation of the fund paid to any particular for the plaintiff fifteen hundred dollars obligation, the law itself applies each pay- worth of other mining stock; and on the ment to the extinguishment of the obliga- first day of May, 1877, or thereabouts, the tion earliest in date of maturity. Civil defendant purchased for the plaintiff fifCode, § 1479. So applied, no part of this teen hundred dollars worth of other mining claim is barred by the statute of limita- stock." This was a sufficient allegation of tions. The court found in favor of the the value of the stock to support the judgplaintiff for the full amount of his claim, ment. defendant refused to surrender or pay the same. The court found that the defendant had invested for the plaintiff the sum of $3,600 in mining stock, and had sold the same at a profit, and had realized therefrom net, over and above all payments made to the plaintiff, $4,950, and found certain credits in favor of the defendant which reduced the amount to $4,705, for which sum judgment was rendered. A demand and refusal was alleged, which | did make it. The only thing tending to was sufficient, with the other allegations show that a motion was made is a recital of the complaint, to show a conversion of in the order appealed from that the "cause property belonging to the plaintiff, and a came on to be heard this day on defendant's judgment for its value was proper. The motion to vacate and set aside writ of excourt found the value of the property, and ecution issued December 31, 1886." There is that the defendant had converted it to her no bill of exceptions, and the certificate of own use, which was sufficient to warrant the judge as to what papers were used rethe judgment rendered. There is no merit in cites that "upon the motion to recall exethis appeal. It is obvious that it was tak- cution in the above-entitled action the folen for delay. The judgment is affirmed, lowing papers were read and referred to.” with 15 per cent. damages. Neither of these show that a motion was actually made, but, if they did, the grounds upon which it was made nowhere appear. This being the state of the record, we might properly affirm the order on the ground that no error is made apparent. The practice in this respect seems to be extremely loose. Counsel seem to confound We concur: PATERSON, J.; Fox, J. HERRLICH V. MCDONALD. (No. 12,161.) (Supreme Court of California. Sept. 11, 1889.) INSOLVENCY-DISCHARGE. 1. On a motion to discharge an execution because of defendant's discharge in insolvency it ap peared that the findings in the action in which the judgment on which the execution issued was rendered, were made and filed in 1881, but that the judgment was not recorded until 1886. Held, that defendant had had no opportunity to set up as a defense a discharge in insolvency, obtained between these dates, and hence it could not be held that she had waived her right to assert it on the motion to discharge the execution. 2. Though insolvency act Cal. § 53, makes the certificate of discharge prima facie evidence of the regularity of such discharge, she is still bound to show that the debt sought to be avoided is one which was affected thereby. 3. The complaint alleged that defendant was a dealer in mining stocks; that plaintiff employed her to purchase mining stock, and gave her a certain sum to be used for that purpose; that defendant purchased stock worth that sum, and collected the dividends thereon; and that plaintiff demanded the stock and dividends, but defendant refused to deliver them. The court found that defendant had sold the stock at a profit, for the amount of which judgment was rendered. Held, that the debt was created "while acting in a fiduciary capacity," and under insolvency act, § 52, was not discharged. Department 1. Appeal from superior court, city and county of San Francisco; T. H. REARDEN, Judge. the notice of motion with the motion itself. The notice is not a motion, and should not be so treated. The careful practitioner will either prepare and file his motion in Writing, stating the grounds thereof, or have the same entered in the minutes. This is not necessary, however. The motion may be made orally; but in every case, whether the motion is made in writing, entered on the minutes, or stated orally, the same should be preserved by a bill of exceptions and brought to this court in that way, on appeal, so that we can see from the record that a motion was made, and the ground upon which it was made. It is also a matter of serious question whether any of the papers claimed to have been used on the alleged motion are properly authenticated. As we have said, there is no bill of exceptions. The only authentication is by the certificate of the judge of the court below, at the close of the transcript, as follows: "I, T. H. Rearden, judge of department seven of said court, hereby certify that upon the hearing of the motion to recall the execution in the above-entitled action, the following papers were read and referred to: The judg ment roll in said action; adjudication of insolvency, stay of proceedings, and order of publication of notice to creditors upon petition in insolvency of M. H. MeWORKS, J. This is an appeal from an or- Donald, filed August 4, 1882, herein; certider refusing to recall and set aside an exe-ficate of final discharge of defendant, M. cution. The judgment upon which the ex- H. McDonald, in insolvency, filed Januecution was issued has been affirmed by ary 30, 1883, in the insolvency proceedings; this court. Herrlich v. McDonald, ante, affidavit of defendant, filed March 18, 1882; 298, (opinion filed September 7, 1889.) The affidavit of Julia Herrlich, filed March 27, ground upon which the motion to recall 1882; affidavit of Marguerite Beneux, filed the execution was made, if there was such a March 27, 1882, and notice of motion to remotion, seems to have been that the defend-call execution, filed January 26, 1887; the ant had been discharged in insolvency. execution, with its return and indorseThe record on this appeal is in an anomal- ments.' T. H. REARDEN, Judge of said ous condition. It appears that a notice was given that on a certain day a motion would be made to recall and set aside the execution on certain grounds stated; but no such motion appears in the transcript, nor is it shown in any proper way that any such motion was made. The grounds of the motion, if one was made, do not appear in any way. The notice was that the defendant would make such a motion on certain grounds, but whether she did make it or not on those or any other grounds is left wholly to conjecture. We presume the appellant expects us to infer that because she said she would make the motion she W. B. Tyler and W. H. Sears, for appellant. Charles F. Hanlon, for respondent. Court, Department Seven. Dated March 17, 1887." Formerly it was expressly provided that on motion for a new trial affidavits used might be identified by indorsement by the judge or clerk, at the time, as having been read or referred to on the hearing. St. 1861, p. 590; Hayne, New Trials & App. 790. The present Code has no such provision. It is simply provided that "on appeal from a judgment rendered on an appeal or from an order, except an order granting or refusing a new trial, the appellant must furnish the court with a copy of the notice of appeal, of the judg ment or order appealed from, and of papers It is further claimed by the respondent that the order of adjudication and certificate of discharge was not sufficient, without the other proceedings in insolvency, to show that the discharge was valid. Section 53 of the insolvency act provides that the certificate shall be prima facie evidence of the regularity of such discharge. This being so, it was sufficient to introduce the certificate alone. But while the certificate was sufficient prima facie to show a valid discharge from all debts from which the appellant was dischargeable, it does not follow from this that her case was made out by such proof alone. There are certain obligations from which she could not be discharged. Insolvency Act, § 52. We think it was incumbent upon her to show, not only that she had been discharged, but that the debt sought to be avoided was one which was affected thereby. Whether this was shown by the complaint on which the judgment was rendered will necessarily be considered in passing upon the next point made by the respondent. used on the hearing in the court below." of the judgment. Therefore, having had no Code Civil Proc. § 951. We are of the opinion opportunity to plead and prove her disthat without a statutory provision author-charge at the trial, she cannot be held to izing the authentication of copies of papers have waived the right to assert it in the in some other way, the only proper way manner attempted in this motion. that they can be brought into the record and identified is by bill of exceptions. There are decisions of this court, however, in which it has been rather taken for granted that a certificate of the judge is sufficient. Walsh v. Hutchings, 60 Cal. 228; Nash v. Harris, 57 Cal. 243; Larkin v. Larkin, 76 Cal., 323, 18 Pac. Rep. 396. And in one case it was held in department that, as the statute prescribed no mode in which such papers should be authenticated, "this court had power to prescribe by rule how such papers should be brought before it on appeal; and if it had power to make such a rule in advance, it had the power to ratify the mode adopted by the court below;" and upon this proposition was founded the decision in that case that the certificate of the judge of the court below was sufficient. Pieper v. Land Co., 56 Cal. 173. But the Code does provide, in express terms, how all papers, proceedings, and exceptions, not otherwise a part of the record, may be made such, viz., by a bill of exceptions or statement. Code Civil Proc. §§ 646, 649-651. In case of an appeal from any decision made after judgment a bill of exceptions is the proper, and, in our opinion, the only proper, mode of authentication. Id. § 651. But the respondent has not asked us to affirm the order on the ground that the question is not properly presented, and in view of this fact, and considering the state of uncertainty in which the question is left by the decided cases, we prefer to decide this case on its merits. We must say, however, that if this court has the power to determine that papers to be used on appeal may be authenticated in a way not provided for by statute, when a different way is provided for,-which we very much doubt, -it should be done by a rule adopted in advance, and made applicable to all cases, and not be left for the court to say in each case whether or not the mode adopted in that case is sufficient. It is also claimed that the debt for which the judgment was recovered was one created" while acting in a fiduciary character," and that for that reason it was not discharged. Section 52 of the insolvency act provides: "No debt created by fraud or embezzlement of the debtor, or by his defalcations as a public officer, or while acting in a fiduciary character, shall be discharged under this act, but the debt may be proved, and the dividend thereon shall be a payment on account of said debt; and no discharge granted under this act shall release, discharge, or affect any person liable for the same debt for or with the debtor, either as partner, joint contractor, indorser, surety, or otherwise." The question is, therefore, whether the complaint on which the judgment was recovered was for a debt contracted while acting in a fiduciary capacity. The complaint alleges, in substance, The respondent contends that the dis- that the defendant was a dealer in mining charge in insolvency, relied upon by the ap-stocks, but whether on her own account pellant, could not avail her on this motion, or as a broker or factor does not appear; for the reason that she had such discharge that the plaintiff employed the defendant before the judgment was rendered against to purchase mining stock for her, and gave her, and the same was not pleaded as a de- her $3,600 to be used for such purpose; fense. This position would no doubt be that she purchased stock worth that sum, unanswerable if it were true that the judg- and retained and collected the dividends ment was rendered after the discharge was thereon; that the plaintiff demanded the given. But it does not so appear. The stock and dividends, but she refused to defindings of the court were made and filed liver the stock or pay the dividends. The November 28, 1881, and the judgment bears prayer of the complaint was for the stock the same date, but it is indorsed, "Record- and dividends, or their value. In addition ed June 24, 1886," and the execution com- to the facts alleged in the complaint, the plained of recites the judgment as of the court found that the defendant had actuallatter date. Now, conceding that the judg-ly sold and disposed of the stock at a ment could not have been enforced or appealed from until it was recorded, it does not follow that the defendant was at fault in not pleading her discharge. At the time of the trial and rendition of the judgment she had not procured her discharge, and consequently could not have pleaded it, nor could she have pleaded or set up such discharge in any way, to make the same available, between the rendition and recording profit, and for the amount for which the judgment was rendered. The appellant contends that this does not show that the debt was created by fraud or embezzlement, or while acting in a fiduciary character, but that the defendant was shown to have been acting as a factor, and that such a debt is dischargeable in insolvency. There are authorities holding that where a party doing business as a factor had |