remedy to enforce payment. It could not, of course, appropriate the hose, and leave the party furnishing it remediless. The only question, then, is, what was his remedy? Had he a plain, speedy, and adequate one by an ordinary action at law?

certain goods which it has received under the contract, and now refuses to pay for. The refusal is a simple breach of contract, for which the party has an ample remedy by action. I see no reason why a municipal corporation should be treated differently from a natural person in such a case.

It has been held in this state that, to supersede the remedy by mandamus, the party must not only have a specific, adequate legal remedy, but one competent to afford relief upon the very subject-matter of his application, and one which is equally convenient, beneficial, and effective as the proceeding by mandamus. Fremont v. Crippen, 10 Cal. 215; Babcock v. Goodrich, 47 Cal. 508; Railroad Co. v. Railroad Co., Id. 551. The board contracted to pay respondent for the hose which he furnished, but, as it only had power to pay by drawing drafts on the school fund, its contract must be construed to be one to draw drafts, and not to pay money directly. If, then, respondent could have maintained an ordinary action, it must have been an action against the members of the board to recover damages for neglect of duty. But such an action evidently would noted,' as used in the act with reference to dehave been equally convenient, beneficial, and effective as the proceeding by mandamus, since it would not have compelled the board to do what it had contracted to do, and what, as we have seen, official duty required it to do.

THORNTON, J. I dissent. The applicant for the writ in this case has never presented his claim to the board of education for their examination and allowance, and consequently he is not in a position to ask a mandate from a court to command the board of education to draw a draft in his favor for any sum payable out of the school fund of the city and county of San Francisco. Section 82 of the consolidation act provides that no payment can be made from the treasury or out of the public funds of said city and county unless the same be specifically authorized by this act, nor unless the demand which is paid be duly audited, as in this act provided, and that must appear on the face of it. Section 83 of the same act provides that “the term ‘auditmands upon the treasury, is to be understood their having been presented to and passed upon by every officer and board of officers, and finally allowed by law; and this must appear upon the face of the paper representing the demand, or else it is not The argument that the board had the dis- audited." Section 84 of the same act is as cretion to allow or reject the claim, and follows: "Sec. 84. Every demand upon the that its action was final and conclusive so treasury, except the salary of the auditor, far as this proceeding is concerned, is with- and including [the] salary of the treasurer, out weight. It is true that, under the stat- must, before it can be paid, be presented ute, the board may reject any demand "for to the auditor of the city and county to be good cause." But, although the board is allowed, who shall satisfy himself whether to be" the sole judge "of what is good cause, the money is legally due and remains unstill the rejection cannot be arbitrary or paid, and whether the payment thereof capricious. There must at least be the from the treasury of the city and county is semblance of a cause. The board, after authorized by law, and out of what fund. obtaining materials which it has ordered If he allow it, he shall indorse upon it the and needs for school purposes, cannot say: word 'Allowed,' with the name of the fund "True, the materials are of the kind and out of which it is payable, with the date quality ordered, but we have concluded of such allowance, and sign his name therenot to pay for them, and therefore reject to; but the allowance or approval of the the demand." And whether there was a auditor, or of the board of supervisors, or semblance of cause for rejecting the claim any other board or officer, of any demand, or not, was a question which might be which upon the face of it appears not to and was properly tried in the court below. have been expressly made by law payable Code Civil Proc. § 1090. If there was no out of the treasury or fund to be charged semblance of cause, then it is clear that it therewith, shall afford no warrant to the was the duty of the board to draw the treasurer or other disbursing officer for drafts, and the writ was properly granted paying the same. No demand can be apto compel the performance of this duty.proved, allowed, audited, or paid, unless See Wood v. Strother, 76 Cal. 545, 18 Pac. it specify each several item, date, and valRep. 766, where the authorities upon the sub-ue composing it, and refer to the law by tiject are very fully collated and reviewed. tle,date, and section authorizing the same." Our conclusion is that the judgment was Section 85 of the act contains the followright, and we therefore advise that it being provision as to demands payable out of affirmed.

the school fund: "All demands payable out of the school fund must, before they can be allowed by the auditor or paid, be personally approved by the board of education, or by the president thereof, and su

We concur: HAYNE, C.; FOOTE, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment is af-perintendent of common schools, acting unfirmed.

I dissent: PATERSON, J.

Fox, J. I dissent. The contract set up in substance in the opinion was one made by competent authority on the part of a municipal corporation, for the purchase o

der the express authorization of said board." The school fund is kept by the treasurer of the city and county. Section 95, Consolidation Act, subd. 2. By the act of April, 1872, (St. 1871-72, p. 846,) the board of education has power "to examine and allow, in whole or in part, every demand payable out of the school fund, or to reject

The petition does not state facts sufficient to justify the issuance of the writ, and the demurrer to it should have been sustained The cause should be remanded, with directions to the court below to deny the writ and dismiss the application.

HUMPHREYS et al. v. HOPKINS. (No. 12,626.)

any such demand for good cause, of which | judgment of the court below is erroneous. the said board shall be the sole judge." The seventh section of the act of 1872 is as follows: "Sec. 7. All moneys received or collected on account of public education in the city and county of San Francisco shall be deposited in the city treasury, and be known as the School Fund.' Payments from said fund shall only be made by the treasurer of the said city and county upon drafts drawn on him by the board of education, signed by the president and superintendent of common schools, and countersigned by the auditor of said city and county, and all drafts shall be made payable to the person or persons entitled to receive the same." Upon a consideration of these provisions of the statutes, valid in their enactment, I cannot perceive what right the applicant has for the mandate he asks. It does not appear that the demand has ever been pre

(Supreme Court of California. Dec. 2, 1889.)
RECEIVERS EXTRA JURISDICTIONAL POWERS.
not vest the title to the property in them, but
Receivers, appointed by an order which does
merely directs them to take possession of and pre-
serve it, cannot, when they have sent it into a for-
eign jurisdiction, reclaim it as against a sheriff
who has seized it on attachment at the suit of citi-
zens of the foreign jurisdiction to enforce their
THORNTON and MCFARLAND, JJ., dissenting.
demands against the owner of the property.

On rehearing. For former report, see 20
Pac. Rep. 713.

Frank M. Stone, for appellant. T. Z. Blakeman, for respondents.

BEATTY, C. J. The plaintiffs in this action are receivers of the road and other property of the Wabash, St. Louis & Pacific Railway Company. They were appointed by the United States circuit court for the eastern district of Missouri, May 25, 1884, by an order made in an action to which the railway company was a party, and were thereby authorized to take possession of said road, to manage, control, and operate it, and preserve and protect all its property. At the date of their appointment a certain freight-car belonging to the

sented to the board of education forexamination or allowance. The board has had no opportunity to examine it and allow it or reject it. Non constat, that when properly presented, as required by law, 1. e., with the specifications of each item, date, and value, (section 34, Consolidation Act,) it will not be allowed. It has never been presented to the auditor for his action, as the law requires. The appellant is not entitled to a draft for the amount until his demand has been audited and allowed, and this audit and allowance indorsed on the claim. Such is the distinct provision of the statute as cited above. The petition for the writ fails to aver that any of these things have been done. The averments in each count of the complaint are that the plaintiff presented to the board the certificate in writing of Edward Casser-company was at Toledo, in the state of ly, the duly appointed and acting storekeeper of the board, to the effect that he (Casserly) had received from plaintiff the hose contracted for, and demanded a draft. This is not a presentation of the demand which the statute requires, and is insufficient. The findings show no ground for ordering the writ to issue. The law does not enjoin on the board of education the duty of drawing a draft in favor of a claimant until his demand has been presented and allowed, as required by law, by the board. The conclusion reached in the prevailing opinion is not sustained by Wood v. Strother, 76 Cal. 545, 18 Pac. Rep. 766. That case was entirely different from this, as a perusal of it will demonstrate. The conclusion here arrived at is sustained by Purdy v. Sinton, 56 Cal. 133; Christie v. Sonoma Co., 60 Cal. 164. If the writ was granted in this case it would control the discretion vested by law in the board of education. This cannot be done. Clune v. Sullivan, 56 Cal. 249; Cosner v. Colusa Co., 58 Cal. 274; Rhodes v. Spencer, 62 Cal. 43. It may be as well to add that, if the mandate asked for here issues, the treasurer would not be justified by law in paying it. The board has had no opportunity here to act, and it is therefore unnecessary to say what would be the remedy of plaintiff, if the board, on its presentation, rejected the claim. It will be in order to consider that question when the claim has been presented to the board and been rejected by it. In my opinion, the

Ohio, where, on the 29th of May, 1884, it came into their possession. It was subsequently brought by them, in the course of their business as receivers, to the city of St. Louis, in the state of Missouri, a place within the jurisdiction of the court by which they were appointed. On the 16th of March, 1885, they loaded the car with freight consigned to San Francisco, intending that when the freight was unloaded at San Francisco the car should be returned to St. Louis. While the car was in San Francisco it was attached by the defendant, as sheriff of San Francisco, in a suit brought by Henry Payot and Isaac Upham against the railway company. Payot and Upham were citizens of California, resident and doing business in San Francisco. This action was thereupon commenced by the plaintiffs to recover the car so attached. The judgment of the superior court was in their favor. Defendant appeals.

The question presented by the appeal is whether a receiver appointed in a foreign jurisdiction to take possession of the property of a railway corporation, and carry on its business, and who in pursuance of his authority as such receiver has taken the property into his actual possession within the jurisdiction of the court by which he was appointed, can hold such property against the claim of a citizen of this state who, upon finding the property here, has, in pursuance of our laws, caused it to be attached as security for his just demands against the railway company. Counsel

We concur: Fox, J.; WORKS, J.; PATERSON, J.

for appellant contends for the proposition | but that, on the ground of comity, the that a foreign receiver has no capacity court will, in a just and proper exercise of to sue in his official character in our a sound legal discretion, permit such suits courts, but we do not understand the au- to be maintained for the purpose of therethorities to sustain this extreme view. The by doing justice, where the good of a larger question, however, need not be decided in number would demand it, by recognizing this case, for the plaintiffs, besides being re- the orders and judgments of the courts of a ceivers of the road, had an actual and law- sister state. But in none of the cases is ful possession of the property at the time of such right to sue conceded, or the suit perits seizure, and by virtue of that possession mitted to be maintained by the foreign recould undoubtedly have recovered it from ceiver, where the claim sought to be ena mere trespasser. But their mere posses- forced conflicts with the rights of citizens sion of the property of a foreign debtor or creditors in the state where the suit is cannot be held to exempt it from the claims brought." We think that the effect of the of attaching creditors. A debtor cannot, decisions is correctly stated in this extract by placing or allowing his property to be from Mr. Freeman's note, and we think that in the possession of a third party, screen it in this case justice to our own citizens refrom attachment. However lawful the quires that we should not extend the possession of the bailee, the property is principle of comity so far as to award this still subject to attachment or garnishment property to the representatives of creditors at the suit of a creditor of the owner. Such residing in other states, and who are seekrights as the bailee may have to the use or ing to hold it for their own exclusive possession of the property, and such liens benefit. The judgment and order appealed as he may have upon it, will, of course, be from are reversed, and cause remanded. protected, but, saving the rights of the bailee, the creditor may take it. The question in such cases, therefore, is not as to the lawfulness of the bailee's possession, or his right to recover the property from a mere trespasser; it is a question as to which right is superior,-his or the attaching creditor's. And such is the question here. Conceding, as we think must be con-nied. Appeal by defendant from judgceded, that these plaintiffs could have re- ment and order denying the motion for a covered the car in controversy from a mere new trial. wrong-doer, by virtue of their lawful possession at the date of the seizure, if not by virtue of their office, still it remains to be decided whether they could reclaim it from the defendant, who justifies under a writ of attachment issued at the suit of citizens of the state of California to enforce a just demand against the owner of the property. The solution of this question depends upon the effect to be given to the order of the court of Missouri, under whose appointment the plaintiffs are acting. For, we repeat, the mere possession by the plaintiffs of the debtor's property, however lawful, does not screen it from attachment. To show a right superior to that of creditors they must fall back upon the order appointing them receivers, and must depend upon the comity of this state as to the effect to be allowed that order.

The substance of that order has been already stated. It does not pretend to vest the title to the property of the railroad company in the receivers; it merely directs them to take possession of and use the property for the benefit, presumably, of creditors of the company who have resorted to that particular forum for the enforcement of their debts. The authorities as to the effect to be given in other jurisdictions to such orders are collected in a note to the case of Alley v. Caspari, reported in 6 Amer. St. Rep. 185, 14 Atl. Rep. 12. The result is summed up by the editor (page 189) as follows: "We deduce, therefore, from a thorough examination of the cases and text-books upon the subject, that the great weight of authority is, and should be, in keeping with the decision rendered by Mr. Justice WAYNE, in Booth v. Clark, 17 How. 334, that a foreign receiver has no right to sue in another state;

THORNTON, J., (dissenting.) Action to recover a car. Trial by the court, and judgment in favor of plaintiffs. Motion of defendant for a new trial, which was de

It is conceded that on the 25th day of May, 1884, the plaintiffs were, by an order of the United States circuit court for the eastern district of Missouri, wherein the Wabash, St. Louis & Pacific Railway Company was a party, appointed receivers of the railroad, and all the property of the company, with power and instructions to take possession of the railroad, and to manage, control, and operate it, and preserve and protect all its property. It further appears that the car in suit came into the possession of the receivers above named at Toledo, Ohio, on May 29, 1884, when it was delivered by the company to the plaintiffs, as receivers, and that the receivers have used this car in carrying on the business of the railroad from that day until it was attached, as appears in this action, on the 1st day of April, 1885. After the car came into the possession of the receivers it was by them brought, in the course of their business as receivers, to the city of St. Louis, state of Missouri, a place within the jurisdiction of the court by which the plaintiffs were appointed. The receivers, on the 16th day of March, 1885, loaded the car with freight, destined for the city of San Francisco, and sent it so loaded to San Francisco, with the intent that the freight of said car might be delivered at San Francisco, and that the car might then be returned to St. Louis. The car was brought to San Francisco, and while there was attached by Henry Payot and Isaac Upham, citizens of the state of California, in an action wherein said Payot and Upham were plaintiffs, and the abovenamed railroad company was defendant. Under this attachment the defendant, as sheriff of the city and county of San Francisco, justifies.

It is argued that the plaintiffs, suing as til it was attached, take the case, as we receivers, cannot maintain this action, in- conceive, out of the range of the foregoing asmuch as a receiver cannot maintain an principles. We are of opinion that, by the action out of the jurisdiction of the court receiver's taking possession of the barge in which appointed him. It may be conceded question within the jurisdiction of the court chat this is the general rule, and still the that appointed him, he became vested plaintiffs can maintain this action. The with a special property in the barge, like right to sue and maintain the action is that which a sheriff acquires by the seizure founded on the possession of the car, deliv- of goods in execution, and that he was enered to the plaintiffs as receivers by the rail- titled to protect this special property while road company, in May, 1884, at Toledo, it continued, by action, in like manner as Ohio, and its being taken from that place if he had been the absolute owner. Havby plaintiffs in the course of their manage- ing taken the property in his possession, he ment, carrying on, and control of the busi- was responsible for it to the court that apness of the company, to St. Louis, where it pointed him, and had given a bond in a was loaded and sent to the city of San large sum to cover his responsibility as Francisco. This possession was given by receiver, and to meet such liability he the owner of the car, the railroad company, might maintain any appropriate proceedin pursuance of the order of the court, and ing to regain possession of the barge which was never afterwards disturbed by the had been taken from him. Boyle v. company. The possession of the car re- Townes, 9 Leigh, 158; Singerly v. Fox, 75 mained in the receivers, unchanged and Pa. St. 114. It is well settled that a sheriff never interfered with, until it was attached does, by the seizure of goods in execution, in this state, on the 1st of April, 1885. The acquire a special property in them, and plaintiffs, under the undisputed authority that he may maintain trespass, trover, or of the court making the appointment, and replevin for them." The court concludes without challenge by the railroad com- its observations on this point as follows: pany, were, during the period of this pos-"By taking the barge into his possession session, using this car in carrying on the within the jurisdiction of the court that business of the railroad company. The tak- appointed him, a special property in the ing possession of the car by the plaintiffs, barge became vested in the receiver; and as receivers, was lawful, and their contin- it is the established rule that, where a leued possession was also lawful, and such gal title to personal property has once possession vested in them as individuals a passed and become vested in accordance special property, on which title they can with the law of the state where it is situas individuals maintain this action. This ated, the validity of such title will be recconclusion is supported both on principle ognized everywhere." Citing Cammell v、 and by authority. Sewell, 5 Hurl. & N. 728; Clark v. Peat Co., 35 Conn. 303; Taylor v. Boardman, 25 Vt. 581; Crapo v. Kelly, 16 Wall. 610; Waters v. Barton, 1 Cold. 450. Cagill v. Wooldridge, 8 Baxt. 580, is to the same effect. In that case the contest was also between the receiver and an attaching creditor. The case was ruled in favor of the receiver.

A receiver of an important manufacturing company, appointed by a court of New Jersey, who took possession of its assets for the purpose of completing a bridge which the corporation had contracted to build in Connecticut, purchased iron with the funds of the estate, and sent it into that state, and it was held that the iron was not open to attachment in Connecticut by a creditor residing there. Pond v. Cooke, 45 Conn. 126.

The case of Railway Co. v. Packet Co., 108 III. 317, is directly in point. There the contest was between a receiver of the property and effects of the Northern Line Packet Company, regularly appointed by the circuit court of St. Louis, Mo., in an action brought against that company, and an attaching creditor on a writ brought in the circuit court of Adams county, state of Missouri. The court held that the title of the receiver was good against the attaching creditor in the state of Missouri, and judgment was accordingly rendered in favor of the receiver. The court, speaking to the point, said: "The general doctrine that the powers of a receiver are co-extensive only with the jurisdiction of the court making the appointment, and particularly that a foreign receiver should not be permitted, as against the claims of creditors resident in another state, to remove from such state the assets of the debtor, it being the policy of every government to retain in its own hands the property of a debtor until all domestic claims against it have been satisfied, we fully concede; and were this the case of property situate in this state, never having been within the jurisdiction of the court that appointed the re-stolen from the possession of the receiver, ceiver, and never having been in the pos- and came into the state of Louisiana. The session of the receiver, it would be covered owner brought suit in the latter state, and by the above principles, which would be its highest court adjudged that he could decisive against the claim of the appellee. recover. It may be observed that the But the facts that the property at the property sued for in this case was in the time of the appointment of the receiver possession of the receivers, within the juwas within the jurisdiction of the court risdiction of the court appointing them. making the appointment, and was there The receivers got their possession in Ohio taken into the actual possession of the re- by delivery from the owner, and took the ceiver, and continued in his possession un-car to St. Louis, where it was within the

In McAlpin v. Jones, 10 La. Ann. 552, and in Hurd v. City of Elizabeth, 41 N. J. Law, 1, receivers were allowed to maintain actions without the jurisdiction of the court appointing them. In the case cited from 10 La. Ann. the receiver had been appointed by a chancery court in Mississippi. He there took possession of the property, under the order of the appointment. A portion of the property, viz., four slaves, were

jurisdiction of the circuit court of the Unit- work on Conflict of Laws, makes the foled States for the eastern district of Mis-lowing observations: "516. And here it souri. The fact that they got possession may be necessary to attend to a distincof the car out of the jurisdiction of the ap- tion important in its nature and consepointing court cannot make any material quences. If a foreign administrator has, difference, when the property was at once in virtue of his administration, reduced the carried into such jurisdiction, and therein | personal property of the deceased, there sitretained in their possession. That it can- uated, into his own possession, so that he not affect the right of plaintiff to recover has acquired the legal title thereto, accordthat the car was afterwards sent by the ing to the laws of that country, if that receivers in the course of their duty, and property should afterwards be found in in the prosecution of the business which another country, or be carried away and they were appointed to carry on, see Rail- converted there against his will, he may road Co. v. Packet Co., 108 П. 323, 324. maintain a suit for it there in his own name and right personally, without taking out new letters of administration; for he is, to all intents and purposes, the legal owner thereof, although he is so in the character of trustee for other persons. In like manner, if a specific legacy of personal property is bequeathed in a foreign country, and the legatee has, under an administration there, been admitted to the full possession and ownership by the administrator, he may afterwards sue, in his own name, for any injury or conversion of such property, in another country where the property or wrongdoer may be found, without any probate of the will there. The plain reason in each of these cases is that the executor and the legatee have, each in his own right, become full and perfect legal owners of the property by the local law; and a title to personal property, duly acquired by the lex loci reisitæ, will be deemed valid, and be respected as a lawful and perfect title in every other country. 517. The like principle will apply where an executor or administrator, in virtue of an administration abroad, becomes there possessed of negotiable notes belonging to deceased, which are payable to bearer; for then he becomes the legal owner and bearer by virtue of his administration, and may sue thereon in his own name, and he need not take out letters of administration in the state where the debtor resides in order to maintain a suit against him. And for a like reason it would seem that negotiable paper of the deceased, payable to order, actually held and indorsed by a foreign executor or administrator in the foreign country, who is capable there of passing the legal title by such indorsement, would confer a complete legal title on the indorsee, so that he ought to be treated in every other country as the

In the same line of decision with the foregoing are Low v. Burrows, 12 Cal. 188, and Lewis v. Adams, 70 Cal. 403, 11 Pac. Rep. 833. In Low v. Burrows the action was brought by the assignee of a judgment recovered in New York. The assignment was made by an administrator in New York. It was contended that the administrator in New York had no right to assign the judgment, the debtor residing at that time beyond the state of New York. This contention was based on the ground that the authority of the administrator did not extend beyond the state in which the letters were granted. The court disposed of this contention adversely to counsel presenting it, and it was held that the administrator, having recovered the judgment, owned it, and could assign it. In Lewis v. Adams, supra, the action was brought on a judgment recovered by the plaintiff, as the executor of the last will of one Nat Lewis against the defendant, P. T. Adams, in the district court for the county of Bexar, state of Texas. In the complaint in this suit the plaintiff described herself as executrix of Lewis, and it was contended that she having been appointed executrix by a Texas court, her authority was confined to the state of Texas, and that she could not maintain any action in this state. It was held that the judgment recovered in Texas vested the title in her; that she was accountable to the court in Texas from which she received her appointment: and that she could maintain the action here on her own title as an individual. The whole subject is ably and fully discussed, and the authorities cited, in the opinion of Justice MCKINSTRY. See 70 Cal. 406, 407, 11 Pac. Rep. 833.

accordingly, in the same manner that he would be if it were a transfer of any personal goods or merchandise of the deceased situate in such foreign country." Story, Confl. Laws, §§ 516, 517. To support the statements of the text, the learned author cites decided cases in the notes to the sections quoted. The cases above referred to are all governed by the rule that a title to personal property, once vested and duly acquired by the lex rei sitæ, will be deemed valid, and be respected as a lawful and perfect title in every other country. Id. § 384.

In the same line of decisions is Wilkinson v. Culver, 25 Fed. Rep. 639, where a judg-legal indorsee, and allowed to sue thereon ment was recovered by a receiver of a corporation appointed by a New Jersey court, and the receiver, as owner of the judgment in his individual capacity, was allowed to recover on it in an action brought in the United States circuit court for the southern district of New York. See, also, Biddle v. Wilkins, 1 Pet. 686, and Talmage v. Chappel, 16 Mass. 71; Trecothick v. Austin, 4 Mason, 34, 35; Barton v. Higgins, 41 Md. 539; Cherry v. Speight, 28 Tex. 503; Rucks v. Taylor, 49 Miss. 552. The three cases last cited were actions brought by foreign administrators on judgments which they had recovered as such administrators in their own states, and they were allowed to sue upon the judgments in their own names in the other states. See, also, Morton v. Hatch, 54 Mo. 408.

There is nothing in the foregoing in conflict with what is laid down in Booth v. Clark, 17 How. 322. In that case the action was attempted to be maintained in the circuit court for the District of Columbia on the mere order of a chancery court of the On this subject Justice Story, in his able state of New York appointing a receiver.