cover;" the instruction, when considered in con- | hook, and the evidence does not show a denection with the other instructions, meaning sim- fective hook. But we think that if the ply that if the machinery and apparatus were safe, maintenance of the rod, hooks, and chains, and the accident was caused by the careless moving of the crane, the plaintiff cannot recover, and as above described, was carelessness for there being no evidence requiring the jury to find which appellant was liable, then the comthat the crane was moved carelessly or negii-plaint was sufficient to include that cause gently. of action. The complaint, after describing 3. The finding of the jury that the machinery the apparatus "consisting of a high frame, was defective and unsafe is supported by evidence to which was fastened a hook, and from showing that the rod and chain were unfastened, said hook a heavy chain," etc., avers "that loose jointed, and liable every day to be dislocated said machinery and apparatus were then by a blow from the crane. 4. It is not such misconduct as will warrant and there unsafe, and the chain aforesaid the granting of a new trial for a juror to state to was not securely fastened, and the hook several of the other jurors, during the course of aforesaid was defective and unfit for the the trial, that if certain precautions had been tak-purpose of holding and supporting said en the accident could not have happened, illustrat-chain and lever; and by reason thereof the ing his meaning with the model used at the trial, said chain fell from said hook, and down as it was the statement of a self-evident fact, which could not have improperly influenced the upon the plaintiff." Appellant contends verdict, and the defendant, knowing of the circum- that the phrase "by reason thereof" should stance at the time of its occurrence, making no ob- be referred solely to some defect in the textjection until after verdict. ure or strength of the hook. We think, however, that the averment clearly includes a defect in the method by which the rod Department 2. Appeal from superior court, city and county of San Francisco; JOHN HUNT, Judge. and chain were attached. T. Z. Blakeman, for appellant. W. S. Goodfellow and Henry Perry, for respond-insufficient to prove that the machinery ent. 2. Appellant argues that the evidence was was defective or unsafe. But it would be going beyond the province of this court to hold that the jury erred in finding this unfastened, loose-jointed skeleton of rod and chain, liable every day to be dislocated by the blow of a long-armed crane, unsafe. It is argued that it had hung suspended there for some years without accident; but that circumstance is only a matter of wonderment, and is an instance of how good luck will sometimes protect carelessness for long periods. 3. The most grave point made by appellant is that the verdict was against the second instruction asked by appellant, and given by the court, to the effect that if the accident was caused by plaintiff, or his co-employes, "carelessly or negligently moving the arm of the crane against said suspended rod and chain, then plaintiff cannot recover in this action." But, in the first place, there was no evidence requiring the jury to find that the crane was moved "carelessly or negligently;" and, in the second place, the said instruction must be considered in connection with all the other instructions, and, considered thus together, they mean, simply, that if the machinery and apparatus were not unsafe, but the accident was caused by the careless moving of the crane, then plaintiff cannot recover. MCFARLAND, J. This is an action to recover damages for a personal injury. The verdict and judgment were for plaintiff, and defendant appeals from the judgment, and from an order denying a new trial. The main facts of the case are these: The defendant was engaged in the business of rolling railroad iron, and used certain works, machinery, and apparatus for that purpose. Among other things so used was an iron rod, about an inch thick and 14 feet long, with a hook at each end, by which it was attached at each end to a chain, the whole hanging suspended from a beam in the building. The only means of securing the connection between the rod and the chains was the open hook at each end, placed in a ring in the chain. The hooks were not closed or fastened in any way. The lower end of the lower chain is connected with a lever, and the whole apparatus is used for handling heavy bars of railroad iron. Near this apparatus is a crane, consisting of a perpendicular shaft turning upon a pivot, with an arm orjib projecting from the shaft at right angles, and about 12 feet from the ground. The crane is used to change the rolls, dies, etc., and, as it swings arcand the arm, projects about a foot and a half beyond the said suspended rod and chain, and will strike the latter, unless it is swung out of the way. Plaintiff was an employe of defendant. His main work was in the yard 5. There is a point made on the misconoutside of the building, and he knew noth-duct of the jury, the point being that during of the condition of the rod, chains, etc. ing the course of the trial one of the jurors On August 8, 1882, he was ordered to do stated to several of the other jurors that some work inside of the building; and if the hook at the top of the suspended rod while he, with one or two other employes, had been entirely closed or lashed the acciwere moving the crane, as directed to do, dent could not have happened," and "illusthe outer end of the arm caught the sus-trated to them with the model used during pended rod, and pushed it out of the upper ring, when it fell and injured plaintiff. The jury returned a verdict of $1,500. The gist of the action was the careless maintenance of the machinery, as above described. 1. Appellant contends that the proof does not sustain the cause of action alleged in the complaint, because, as he contends, the alleged cause of the injury was a defective 4. There was no evidence calling upon the jury to find respondent guilty of contributory negligence. the trial." It is, of course, improper for jurors to talk with each other about a case before it is finally submitted; but here all that was said is fully disclosed, and it is apparent that this statement of a self-evident fact could not have improperly influenced the verdict. Moreover, this circumstance was known to appellant at the time of its occurrence, and no objection was made; and he could not thus remain quiet | sworn averment that the defendant was and take the chance of a favorable verdict, the owner of five lots in block 210, Alameda and keep this point in reserve. 1 Hayne, county. These rulings were, in our opinNew Trial & App. § 27, and cases there cited. ion, erroneous. The affidavit itself contains There are no other points requiring no- no such statement. The words, "five lots tice. Judgment and order affirmed. in block 210, Alameda county," by themselves assert nothing. They do not consti We concur: SHARPSTEIN, J.; THORNTON, J. tute a complete sentence, and they have no PEOPLE V. BARTMAN. (No. 20,500.) (Supreme Court of California. Nov. 9, 1889.) PERJURY EVIDENCE. In a trial for perjury the evidence showed that defendant, in connection with a bail-bond, had sworn to an affidavit which read "that he is worth the sum of $300, exclusive of property exempt from execution, and over and above all debts and liabil, ities. Five lots in block 210, Alameda county." Held error to admit evidence that defendant was not the owner of these lots, as the words "five lots in block 210, Alameda county," by themselves, assert nothing, not constituting a complete sentence, and having no grammatical or logical connection with the rest of the affidavit. In bank. Appeal from superior court, city and county of San Francisco; D. J. MURPHY, Judge. Haggin & Dibble, for appellant. George A. Johnson, Atty. Gen., for the People. grammatical orlogical connection with the rest of the affidavit. The mere surmise that the defendant, or the person who drew the affidavit, intended to have it understood. that he owned said lots is not sufficient. The language used must sustain that construction, and this clearly does not. For the error indicated the judgment must be reversed. Other assignments of error, in this view, become immaterial. Judgment reversed, and cause remanded. We concur: Fox, J.; THORNTON, J.; SHARPSTEIN, J.; WORKS, J., MCFARLAND, J. PEOPLE V. ROGERS. (No. 20,592.) (Supreme Court of California. Nov. 18, 1889.) * is BURGLARY-INDICTMENT-RECORD ON APPEAL. 1. An information for burglary, omitting the word "feloniously," but charging the offense in BEATTY, C. J. The defendant appeals is sufficient. the language of the statute, (Pen. Code Cal. § 459,) from a judgment convicting him of the 2. Under Pen. Code Cal. § 459, providing that crime of perjury. The indictment charged "every person who enters any house with in substance that, one Maggie Farley hav-intent to commit * larceny ing been arrested for a misdemeanor, and guilty of burglary," a charge that defendant burduly admitted to bail in the sum of $300, glariously entered a store occupied by J. & H., the defendant procured her discharge from out alleging that the occupants were partners, or with intent to commit larceny, is sufficient, withcustody by executing and delivering a bail- that they owned the building and its contents. bond, to which was appended an affidavit, by which he made oath that he was a freeholder of the state of California, worth $300 over and above his debts and liabilities, exclusive of property exempt from execution, and that his property consisted of five lots in block 210, Alameda county; whereas he was not a freeholder, not worth $300, and not the owner of said lots. 3. Where there is no bill of exceptions, certain instructions asked by defendant, not shown by the transcript as either given or refused, and which are in no manner authenticated by the trial judge, do not form a part of the judgment roll, and will not be considered on appeal from the judgment. Department 1. Appeal from superior court, Butte county; JOHN GALE, Judge. The appellant, George Rogers, was convicted of the crime of burglary. Pen. Code Cal. § 459, provides: "Every person who with intent to commit grand or petit larceny, or any felony, is guilty of burglary." W.J. Herrin, for appellant. Lewis Freer and George A. Johnson, Atty. Gen., for the People. The only evidence offered at the trial as to what the defendant did swear to in connection with said bail-bond was the affida-enters any house vit itself, which reads as follows: "State of California, city and county of San Francisco-ss. J. A. Bartman, being duly sworn, deposes and says that he is a resident of the city and county of San Francisco, state of California, and a freeholder in said state of California, and that he is Fox, J. Information and conviction of worth the sum of $300, exclusive of proper- burglary. The appeal is from the judgty exempt from execution, and over and ment, and comes up on the judgment roll. above all debts and liabilities. Five lots in The first point made by appellant is that block 210, Alameda county. JOHN A. BART- the information failed to state facts conMAN. Subscribed and sworn to," etc. No stituting a public offense, and that the deattempt was made to prove that the defend-murrer thereto should therefore have been ant was not a freeholder, or that he was sustained. The alleged defect consists in not worth $300 at the date of said affidavit, the omission of the word "feloniously." but evidence was offered tending to show The information charges the offense in the that he did not own any part of any block language of the statute, and is sufficient. 210, in Alameda county. To the introduc- People v. Lewis, 61 Cal. 366. tion of this evidence the defendant objected, upon the ground that it had not been shown that he ever swore that he owned any such property. His objection was overruled, and the evidence admitted. By this ruling, and by various other rulings in giving and refusing instructions, to all of which the defendant duly excepted, the court construed the affidavit above quoted as containing a The charge is that defendant burglariously entered the store occupied by Jones & Harding, with intent to commit larceny, etc. A point is made that it is not alleged that Jones & Harding were partners, or that they were the owners of the building or its contents. Under the Code definition of burglary, it was not necessary to allege the partnership, and the ownership of the building and its contents was sufficiently depraved, and wanton spirit. (Given as designated. People v. Henry, 77 Cal. 445, modified.) C. H. GAROUTTE, Judge." 19 Pac. Rep. 830. Clark & Aram, for appellant. E. E. GadIt is claimed that the court erred in refus-dis, Dist. Atty., for the People. ing to give certain instructions asked by defendant, which are set out in the transcript, numbered, respectively, 2, 3, and 5. The transcript does not show whether these instructions were given or refused. They are in no manner authenticated by the judge. There is no bill of exceptions, in or by which to make them a part of the record. They are, therefore, not a part of the judgment roll, (People v. January, 77 Cal. 179, 19 Pac. Rep. 258,) and cannot be considered by this court. Fox, J. The defendant was convicted of malicious mischief in putting a poisonous substance into a watering trough, with intent that the same should be taken and swallowed by the horses, etc. The appeal is from the judgment and the order denying a new trial. It is contended by the appellant that the information does not state that the crime was committed in Yolo county, the county in which the action was brought and tried. The making of such a These are the only points made. Judg-point is trifling with the court, for the ment affirmed. We concur: PATERSON, J.; WORKS, J. PEOPLE V. KEELEY. (No. 20,597.) (Supreme Court of California. Nov. 19, 1889.). MALICIOUS MISCHIEF-INSTRUCTIONS-RECORD ON APPEAL. * very first allegation of the information is that the offense charged was committed "on the twenty-fifth day of February, A. D. 1889, in the county of Yolo," etc. The next point made is that the information does not charge a crime, in that it does not state that the act was feloniously done, and does not specifically name the poisonous subtance, or that it was a substance that would kill; and here we are treated 1. Under Pen. Code Cal. § 596, providing that to a long dissertation upon the fact that "every person who * *maliciously exposes poison is found in a large number of any poisonous substance, with intent that the same substances used for food and for medicine, shall be taken or swallowed" by any animal, the for both man and beast. But there can be property of another, shall be punished, an informano misunderstanding of what the statute tion need not state that the act was feloniously (Pen. Code, § 5961) means when it uses the done, nor need it specify the poisonous substance, term "poisonous substance." The offense is charged in the language of the statute, and the charge is sufficient. People v. Lewis, 61 Cal. 366; People v. Henry, 77 Cal. 445, 19 Pac. Rep. 830; People v. Rogers, ante, 592, (filed November 18, 1889.) There is nothing in People v. Van Deleer, 53 Cal. 147, cited by appellant, in conflict with this conclusion. There the question was as to the sufficiency of the proof and the correctness of the charge. or state that it would kill. 2. An instruction that a malicious intent need not be proved by direct testimony, and that, if the jury found that the natural and probable results of an act would be to injure or destroy the property of another, no motive appearing from the evidence, malice may be implied, if the circumstances show a wicked, depraved, and wanton spirit, is not misleading, especially when followed by others, treating the subject fully and liberally. 3. Where an instruction found in the transcript is not brought up in a bill of exceptions, nor in any manner authenticated by the trial judge, nor indorsed as either given or refused, it forms no part of the record in the cause. as Several exceptions are taken to instructions said to have been given at the request of the prosecution. A paper is found in the Department 1. Appeal from superior transcript headed "Instructions Asked by court, Yolo county; C. H. GAROUTTE, the People," containing paragraphs numJudge. bered from 1 to 11, inclusive. The first obInstructions 1 and 2, asked by the people,jection is to the paragraph marked 1, but appear as follows in the transcript on ap- that is not indorsed as either given or repeal: (1) The question as to the guilt of fused. It is in no manner authenticated by the defendant in this action involves two the judge, nor is it brought up in any bill of distinct propositions: First, was a poison- exceptions. Taken by itself, it cannot be. ous substance, known as 'strychnine,' mali- considered by the court as part of the recciously exposed in a watering trough be- ord in the cause. People v. January, 77 Cal. longing to the prosecuting witness, G. W. 179, 19 Pac. Rep. 258; People v. Rogers, suOliver, with intent that it should be taken pra. But paragraphs 1 and 2 must necesand swallowed by the horses of said Oliver? sarily be read together, to make sense of and, second, was such substance placed them an instruction. The latter is there by the defendant in this action? (2) marked "given," and, reading them togethIn reference to the first proposition, if you er, they make one complete instruction, not find that such a substance was deposited open to the objection made to either of in the watering trough of the witness Oli- them separately. Paragraph 2, even if ver, then it is not necessary that the intent taken by itself, as an independent instrucshall be proved by the direct testimony of tion, is not open to the charge of being misany witness. The jury have a right to in-leading, as claimed by appellant, especialfer the object and intent by all the circum-ly when followed by the very full and libstances of the case; and, if the jury find eral instructions given at the request of the from the evidence that such an act was defendant. Paragraph 3, to which excepdone by some one, and that the natural and probable results thereof would be to injure or destroy the property of another, and if no motive appears from the evidence, malice may be implied, if the circumstances of the commission of the act show a wicked, v.22p.no.18-38 * * 1 Pen. Code Cal. § 596, provides: "Every person who substance, with the intent that the same shall be *maliciously exposes any poisonous taken or swallowed" by any animal, the property of another, "is punishable by imprisonment in the state-prison not exceeding three years," etc. peal is perfected as provided in the foregoing sections, proceedings shall be stayed, the giving of a bond at the proper time and in due form will have that effect, without reference to the sufficiency or insufficiency of the sureties. 4. An order not contained in the transcript, but which, with leave of the supreme court, has THORNTON, J., dissenting. tion is taken, is not authenticated as a part 3. Under Code Civil Proc. Cal. 38 911-945, proof the record, but even if given, was not er-viding for undertakings on appeal in certain cases, roneous. The same may be said of para-and section 946, providing that, whenever an ap graph 6, to which exception is also takenl. It is also claimed that the evidence was insufficient to justify the verdict. Much of the evidence was circumstantial; but this, taken in connection with the direct evidence, made out a very strong case against the defendant. Circumstantial evidence was, introduced tending to show that it was possible that the offense might have been committed by some other person; but it was for the jury to determine from all the evidence, and to be satisfied beyond a reasonable doubt, whether or not the defendant was the guilty party. They heard and saw all the witnesses, and were the sole judges of the credibility and weight to be given to each part of the evidence. We cannot say, from the evidence, that they were not fully justified in the conclusion which they reached. There was no error in the rulings of the court in the admission of testimony, or in refusing to strike out portions that had been given. The objection now taken to the testimony of the committing magistrate was not taken in the court below, and cannot be taken in this court for the first time. A point is also made upon the fact that the charge and conviction is for malicious mischief, and the judgment is one of imprisonment in the state prison. The judgment is fully authorized by section 596 of the Penal Code, under which the information is filed. Judgment and order affirmed. WORKS, J. I concur in the judgment. PATERSON, J. I concur in the judgment on the ground that in the present condition of the record the questions raised by the appellant (except as to the sufficiency of the indictment, and there is no merit in that,) cannot be considered. There is no statement or bill authenticated by the judge. In bank. Appeal from superior court, city and county of San Francisco; T. H. REARDEN, Judge. Defendant, the Quan Wo Chong Company appeals from an order discharging a rule on the sheriff ordering him to show cause why further proceedings under a writ of possession, obtained by plaintiff in judgment in his favor, under the landlord and tenant act, should not be stayed, and the property taken thereunder returned to defendant. Code Civil Proc. Cal. pt. 3, tit. 3, c. 4, in "Summary proceedings for obtaining possession of real estate in certain cases, after defining "forcible entry," (§ 1159,) "forcible detainer," (§ 1160,) and "unlawful detainer," (§ 1161,) provides. in § 1176: "An appeal taken by the defendant shall not stay proceedings upon the judgment, unless the judge or justice before whom the same was taken so directs." Smith & Murasky and James F. Smith, for appellant. Chas. S. Wheeler, for respondent. WORKS, J. This was an action to recover the possession of certain real estate in the city of San Francisco, under the landlord and tenant act, and for the recovery of treble rents for its detention. Trial was had, and judgment rendered in favor of the plaintiff; and a writ of possession was duly issued, and placed in the hands of the sheriff. The writ was partially executed when application was made by the defendant, asking that the judge of the court direct that proceedings be stayed on his filing the necessary undertaking. The order LEE CHUCK V. QUAN WO CHONG CO. (No. was made, and a bond was given, but the 13,397.) (Supreme Court of California. Nov. 19, 1859.) WRIT OF POSSESSION-APPEAL - SUPERSEDEAS BOND-RECORD. sheriff declined to stay proceedings, or to return the property that had been taken into possession by him to the defendant. The defendant then made application to the court for a rule upon the sheriff to show cause, why further proceedings should not be stayed, and the property returned and restored to the defendant. The order to show cause was duly issued; and, after 1. A writ of possession, obtained by plaintiff after judgment, for the possession of land and for treble rents for its detention, is not fully executed at the time of the making of an order staying execution of the writ and the giving of a bond by defendant, where it appears from the sheriff's return that he had only taken out of the building on the a hearing, the court below discharged the premises in question so much of the personal prop-rule, and declined to restore the defendant erty levied on by him as was necessary to satisfy to possession. This appeal is from the plaintiff's money judgment, and that he had been last-named order, discharging the rule to unable to remove the balance, as, while so engaged, the order staying execution had been served upon him, and where other evidence shows that the property remained in the possession and under the control of an employe of the sheriff, though the employe states in his affidavit that he holds by license of the plaintiff. * 2. Under Code Civil Proc. Cal. § 1176, providing that in actions of forcible entry and unlawful detainer "an appeal taken by defendant shall not stay proceedings upon the judgment, unless the judge before whom the same was renderea so directs," after the trial judge has directed a stay, and a bond has been given in the amount fixed by him, he cannot withdraw his direction, and discharge the order. show cause, and refusing to order the sheriff to restore the property to the defendant. It is claimed on the part of the defendant that, after the order directing a stay of proceedings upon the giving of a staybond, and the due execution of such bond, the court below had no further power or jurisdiction in the matter, and that the defendant was entitled upon the execution of such bond to the immediate restoration of the property. On the other hand, the plaintiff and respondent contends that at the time the first order, staying proceedings, was made, and the bond executed, the writ of restitution had been fully exe- | premises; that he still continues to remain cuted, and the plaintiff put in possession upon said premises, but that ever since the of the property, and that for that reason delivery thereof to plaintiff as aforesaid he the order upon the sheriff was inoperative, has remained thereon by the license of said and that he could not restore the property plaintiff; and that at no time since has he, to the defendant. nor has any other agent or employe of said The main question, therefore, is whether sheriff, been in possession of said premises, or not the writ of restitution had been fully but that the said Lee Chuck ever since said executed at the time the first order for a time has continued in possession thereof." stay of proceedings was given. In the an- The return of the sheriff, which was introswer of the plaintiff to the order to show duced in evidence, is as follows: "I herecause why the proceedings should not be by certify that, in obedience to the writ of stayed, and the property be restored to possession issued in the case of Lee Chuck the defendant, it was averred "that at the vs. Quan Wo Chong & Company, I did, on hour of 11 o'clock, or thereabouts, on said the 22d day of December, 1888, at 11 o'clock 22d day of December, 1888, the sheriff of the A. M., cause the therein named plaintiff to city and county of San Francisco fully ex- have quiet and peaceable possession of the ecuted said writ, so far as the same re- premises therein described; that on the quired the delivery of the possession of 21st day of December, 1888, under and by said premises, by formally delivering over virtue of the said writ of possession, I levthe possession thereof to plaintiff's agents; ied upon certain personal property situate and that this plaintiff, by his agents, has in said premises, and removed a portion of held the continual and exclusive possession the same for safe-keeping to the warehouse thereof ever since said time, and that he of Davis, Heber & Company, auctioneers, has refused, and still refuses, to allow the San Francisco, where the same will be sold defendant to enter thereon; that, after the at public auction, at sheriff's sale, to satissheriff had taken away from said premises fy the judgment recovered by the plaintiff a portion of the personal property levied in the said action. The other portion of upon, the order of this honorable court, the personal property so levied upon I staying further proceedings, was served have not been able to remove, as, while enupon said sheriff, or his deputy; and that gaged in the act of removing, an order of thereafter, for the protection of said sher- this court, commanding me to release the iff, and for the protection of said defend- property so levied upon, was served upon ant, and for the protection of this plaintiff, me, and I at once stayed all proceedings this plaintiff granted permission to said under said writ. This is a partial return sheriff to place one or more persons on said only to the said writ, and is made under premises, whose business it should be to an order of court this day made and enlook after the personal property belonging tered." It appears from these proceedings to defendant thereon; that, under the that the premises involved in this litigalicense of this plaintiff, granted as afore- tion were occupied and used by the defendsaid, said sheriff has had one or more per-ant as a mercantile establishment, and the sons upon such premises, in charge of said personal property therein was a stock of personal property, but that said persons merchandise. The return of the sheriff, claim no right whatever to the possession and other evidence, clearly shows that at of the premises, and that this plaintiff is the time the first order staying execution now, and ever since the delivery of the pos- of the writ was made, and the stay-bond session to him, as aforesaid has been, in executed, the sheriff had only taken out of the exclusive possession thereof; that the building so much of the personal propplaintiff's agent in charge of said property erty as was necessary to satisfy the money is not now, nor has he been at any time judgment recovered by the plaintiff, and mentioned herein, in the employ of the sher- that the balance of the property still reiff's office; that the writ of possession mained in the building. There was the utissued upon plaintiff's judgment was fully most expedition on the part of the attorexecuted upon the part of the sheriff prior ney for the plaintiff to procure his writ to any stay of execution herein; that plain- and obtain possession of the property, and tiff has obtained possession of said prem- this was done before the defendant or its ises by virtue of his judgment herein, and attorney had notice that the judgment had in strict accordance with law, and if the been rendered, and before an opportunity defendant, through failure to obtain a stay to procure an order directing a stay of of proceedings prior to the execution of proceeding and give the necessary bond plaintiff's writ, has suffered, it is not in the was given. The sheriff defied the first orpower of this court to relieve it from the der of the court, or, to say the least, disreconsequences of its laches at the expense of garded it, and, either before or after the orplaintiff's rights." It further appears. der was made, turned over to the plaintiff, from the affidavit of one John O'Shea that nominally, not only the possession of the during all of the times mentioned he was real estate but of the defendant's stock of in the employ of the sheriff of the city and merchandise also. It is perfectly apparent, county of San Francisco, and that he was however, that this giving of possession in possession of the property, and was was merely nominal, and with the hope of "then and there instructed by the sheriff thereby showing a full execution of the that the possession of said premises had writ. The misfortune of the showing is been surrendered to Lee Chuck, the plain- that it appears that the sheriff never had in tiff above named, and that said sheriff had fact turned over the possession to the plainno further right to the possession thereof; tiff. On the contrary, the property reand that ever since said time he has been mained in the possession and under the in charge of the personal property belong-control of the employe of the sheriff. The ing to the defendant which is upon said fact relied upon, and stated in the affidavit |