effect, if he had been convicted of certain felonies, under other names than Brown; the objections were that the evidence called for was incompetent, irrelevant and immaterial. The witness did not decline to answer, on the ground that his testimony would tend to degrade him, but answered voluntarily. The evidence was not irrelevant nor immaterial. It was not incompetent: C. C. P., 2,051. Sixth. There was no material error in the portions of the judge's charge referred to in appellant's points. Conceding the court erred, after having held that the deceased was thoroughly convinced of his impending dissolution, and admitted the declarations, in permitting the jury to reject the declarations, if they should believe deceased did not think he was dying, the error could not have prejudiced defendant, since the declarations were adverse to him. No. 9,142. IRVING v. CUNNINGHAM ET AL. In Bank. Filed October 8, 1884. BOUNDARIES-PAROL EVIDENCE-INTENTION OF GRANTOR.--In a legal action for the recovery of land, the boundary of which is described in the deed as commencing at a given point, and running thence to a point on a small creek about two hundred varas south, and thence, etc., parol evidence is inadmissible to show that the grantor intended the line to run to a creek one thousand eight hundred and fifty feet in the same direction. If there was no such creek in that direction nearer than one thousand eight hundred and fifty varas, the reference to "a small creek," should be rejected. APPEAL from a judgment of the superior court for Alameda county, entered in favor of the plaintiff and from an order denying the defendant a new trial. The opinion states the facts. James McCabe, M. Mulleny and E. J. & J. H. Moore, for the appellants. H. P. Irving and Tully R. Wise, for the respondent. SHARPSTEIN, J. The principal controversy in this case, is as to the northern boundary of the tract conveyed by José Domingo Peralta to McAllister and others, on August 16, 1853. In the deed "the northern side line" is stated to be "a line drawn from a point two hundred varas south of a house occupied by a squatter, Espejo, and passing to a point at a small creek about two hundred varas south of the house now occupied by said Domingo with his family, and thence northeastwardly in a straight line to the top of the mountains." As to where two of the monuments-the houses of " Espejo " and "Domingo "-stood, there is no dispute. But the defendants offered to prove that there was not before, nor at the date of the said deed, a small creek about two hundred varas south of the house of said Domingo, and that it was one thousand eight hundred and fifty varas from said house to the nearest creek in that direction. In connection with that offer the defendants offered to prove other facts having a tendency to show that the grantor supposed the reference to a creek about two hundred varas south of his house, was really to the one thousand eight hundred and fifty varas south of it. If such had been the fact, the demanded premises would not have constituted any part of the tract conveyed by said deed. The offer was rejected, and the defendant's counsel insist that in rejecting it the court erred. If a written contract does not substantially express the intention of the parties to it, a court of equity will, in a proper action, correct or reform it, so as to make it conform to the real intention of the parties. But it is only in such an action that parol evidence is admissible to contradict or vary the terms of a written contract. This being an action at law, the rule which excludes parol evidence when offered to contradict or vary the terms of a written contract must be observed. If there had been a small creek about two hundred varas south of the house occupied by the grantor, the evidence offered and rejected would have been clearly irrelevant and immaterial. If there was no small creek about two hundred varas south of his house, or nearer, in that direction, than one thousand eight hundred and fifty varas, the case is one in which the description is true in part, but not true in every particular; and so much of the description as is false must be rejected; and the instrument will take effect, if a sufficient description remains to ascertain its application: 1 Greenl., 301. If the words "at a small creek," be omitted from the clause we are considering; enough will remain to show plainly the intent. The words exclusive of the falsa demonstratio are sufficient of themselves to describe the property intended to be conveyed. We think the circumstances of there having been a small creek at the distance of one thousand eight hundred and fifty varas south of the grantor's house, is altogether immaterial. The deed must be construed as it would be if there had never been a small creek in that direction from his house. It is legally incredible that the grantor could have had that creek in his mind when referring to one about two hundred varas south of his house. The description is not ambiguous. If there was a small creek about two hundred varas south of the grantor's house the description is correct in every particular. If there was no such creek in that direction nearer than one thousand eight hundred and fifty varas of his house, the reference to "a small creek" is of no manner or effect. In either view of the case the ruling of the court was correct. Judgment and order affirmed. MCKINSTRY, J., Ross, J,, MYRICK, J., MORRISON, C. J., and THORNTON, J., concurred. No. 10,905. PEOPLE V. JORDAN. In Bank. Filed October 8, 1884. TRANSCRIPT ON APPEAL-ATTACK ON IN SUPREME COURT.-The verity of a fact stated in the transcript on appeal cannot be attacked by affidavits in the supreme court. OBTAINING MONEY UNDER FALSE PRETENSES INDICTMENT. An indictment for obtaining money under false pretenses, charged that at a certain time and place the defendant J., with intent to defraud one K., of his property, did unlawfully, knowingly and designedly, falsely pretend and represent to him that certain bonds of a railroad were of the market value of $650; that any bank in San Francisco would lend that amount on them; that the road of said company, issuing said bonds, was in running order, and was paying expenses; and that K., believing said false pretences and representations, was induced, by reason of the same, to loan and deliver to the said J., on the pledge of said bonds, the sum of $1,365. It further charged that said money was obtained by the defendant unlawfully, knowingly and designedly to defraud said K. The indictment then denied the truth of the false and fraudulent representations, charging that said bonds had not any market value; that no bank in San Francisco would loan any money thereon, and that the company issuing the bonds had no road that was in running order, or that was paying expenses, all of which facts the defendant knew. Held, that the indictment was sufficient, and a demurrer thereto should have been overruled. APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the defendant. The opinion states the facts. Attorney General and C. B. Darwin, for the appellant. MORRISON, C. J. The principal grounds on which defendant based his motion to dismiss the appeal have already been considered and overruled by the court; opinion filed September 30, 1884, ante, page 84. But there is another ground not heretofore considered, on which the defendant asks that the appeal in this case may be dismissed, and that is, because section 1,240 of the penal code has not been complied with. That section provides that an appeal is taken by filing with the clerk of the court a notice of appeal, and serving a copy thereof on the attorney of the adverse party. The contention here is, that the notice of appeal in the case now under consideration, was served on the adverse party one day before the same was filed in the office of the clerk. This fact defendant attempts to establish by affidavits. Without passing on the question as to what would be the effect of such a proceeding, if true, it is sufficient to say that the transcript shows a different state of facts, to-wit: that the notice was filed and served on the same day. It is not competent to correct the record of the court below by affidavits. If the record does not speak the truth it should have been corrected in a proper proceeding in the court below, and its verity cannot be attacked in the manner attempted in this case. The motion to dismiss must be denied; and we will now consider the merits of the appeal. The prosecution in this case is under section 532 of the penal code, which provides that "Every person who knowingly and design edly, by false or fraudulent representations or pretenses, defrauds any other person of money or property, or who causes or procures others to report falsely of his wealth or mercantile character, and by thus imposing upon any person obtains credit, and thereby fraudulently gets into possession of money or property, is liable, etc. The above section, which is substantially copied from the English statute, and finds a place in the penal codes or criminal enactments of other states, was considered by the supreme court of Massachussetts in Commonwealth v. Drew, 19 Pick., 182, and it was there. held, that to constitute the offense described, four things must concur, and four distinct averments must be proved: "1. There must be an intent to defraud; "2. There must be an actual fraud committed; "3. False pretenses must be used for the purpose of prepetrating the fraud, and, "4. The fraud must be accomplished by means of the false pretenses made use of for the purpose, viz., they must be the cause which induced the owner to part with his money." And Mr. Bishop, speaking of this offense, says: "In spite of somewhat varying terms, the essential elements of most of the statutes defining this offense, are the same. And the indictment to cover them as construed, must set out a pretense or pretenses, which it alleges to be false, and known to the defendant to be so, made to a person named, for the purpose of defrauding him or another, by means whereof he obtained from the defrauded person some specified thing of value of a sort included in the statutory inhibition. Herein the statutory words and phrases should be employed, and the facts be given with such minuteness and directness as to satisfy the common law rule of pleading:" 2 Bishop on Criminal Procedure, sec. 163. If the indictment in this case is subjected to the test laid down in the foregoing authorities, it will be found to contain all that is required in such an instrument. The indictment charges that the defendant, at a certain time and place therein mentioned, with intent to defraud Joseph Kreling of his property, did unlawfully, knowingly and designedly, falsely pretend and represent to him that two certain bonds which he, Jordan, then and there had and produced to said Kreling, each of which purported to be a bond of the Arizona and Nevada Railroad and Navigation Company, and each being a promise to pay James G. Fair, or the holder thereof, one thousand dollars, the same being duly signed and executed, (giving a copy thereof), and did then and there unlawfully, knowingly, designedly, falsely and fraudulently represent and pretend to said Joseph Kreling that each of said bonds was then and there, in said city and county of San Francisco, of the market value of six hundred and fifty dollars, and that any bank in San Francisco would lend that amount on each of said bonds, and further, that the road of said company issuing said bonds was in running order and was paying expenses. And the said Joseph Kreling then and there believing said false pretenses and representations, and being deceived thereby, was induced, by reason of such false pretenses and representations so made, etc., to loan and deliver, and did then and there deliver to sad Jordan, on the pledge and security of said bonds, the sum of thirteen hundred and sixty-five dollars in money. It is further charged that said money was secured and obtained by the defendant, unlawfully, knowingly and designedly, to defraud said Kreling. The indictment then proceeds to deny the truth of the false and fraudulent representations and pretenses, charging that said bonds, at the time and place the same were pledged, had not any market value whatever; that it was not true that any bank in the city of San Francisco would loan any money thereon, and that the company issuing said bonds had no road that was in running order, or that was paying expenses, all of which facts the said Jordan then and there knew. We cannot see in what respect the indictment is defective, and are of opinion that the court below erred in sustaining the demurrer thereto. It is true that the authorities may be somewhat conflicting, and that in many of them very nice and not entirely satisfactory distinctions are drawn between cases that are, and cases that are held not to be, within the statute; and as was said by Dewey, J., in the case of Commonwealth v. Norton, 11 Allen, 267: "It may be difficult to draw a precise line of discrimination applicable to every possible contingency, and we think it safer to leave it to be fixed in each case as it may occur." But we have found no case that holds such representations as are charged in this case, not indictable. The following principles and authorities may be cited in further support of the views herein expressed: A false pretense is defined to be "a representation of some fact or circumstance calculated to mislead, which is not true:" Commonwealth v. Drew, 19 Pick., 179. What is said to be a fuller and practically better definition is the following: "A false pretense is such a fraudulent representation of an existing or past fact, by one who knows it not to be true, as is adapted to induce the person to whom it is made to part with something of value:" 2 Bishop on Criminal Law, sec. 415. In the case of Reg v. Evans, 8 Cox's C. C., 257, note to 2 Bishop's Cr. Law, p. 235, it is said: "Had the prisoner represented the note to be of five pounds value, when she knew it was not of that value, and the jury had found the false pretense, and that the note was of less value than five pounds to her knowledge, it would have been sufficient to sustain a verdict of guilty." In the case of Commonwealth v. Stone, 4 Metcalf, 43, the supreme court of Massachusetts held that the passing of a bill of a broken bank at its nominal value by one who represents it to be of such value, yet knows it to be nearly if not quite worthless, is an indictable pretense under the statute, although the bill may be of some value. "A representation that a horse is sound, by one who |