knows it not to be true, is within the statute and is indictable:" State v. Stanley, 64 Maine, 157.

The doctrine that, in the language of Russell, the pretense "need not be such an artificial device as will impose upon a man of ordinary caution, is fully established, at least in the English courts. And the pretense need not be such as cannot be guarded against by common prudence: 2 Bishop's Cr. Law, section 436. "It is substantially settled that any false representation, extending beyond mere opinion, concerning the quality, value, nature or other incident of an article offered for sale, whereby a purchaser, relying on the representation, is defrauded, is a violation of these statutes:" Id., section 447. "A mere opinion is not a false pretense; but any statement of a present or past fact is, if false:" Id., section 454. "There need be only one false pretense; and although several are set out in an indictment, yet if any one of them is proved, being such as truly amounts in law to false pretense-the indictment is sustained:" Id., section 418. A false representation that one Conlin was a liquor-dealer, doing business as such in Boston, was held to be within the statute: Commonwealth v. Stevenson, 127 Mass., 449.

We have examined the numerous cases cited by the learned counsel for defendant, but find none of them going to the extent claimed. Other questions are made in the brief of defendant's counsel, but they do not properly arise. We have considered the only questions presented by the record on this appeal, and are of opinion that the judgment sustaining the demurrer appealed from should be reversed. It is so ordered.

Ross, J., MYRICK, J., THORNTON, J. and McKINSTRY, J. concurred.

No. 9.696.

MANSFIELD v. STERN.

Department Twb. Filed October 8, 1884.

APPEAL UNDERTAKING-STAY OF EXECUTION.-An undertaking on appeal to stay execution may be filed at any time, after the appeal is taken, and before the execution is satisfied.

APPEAL from a judgment of the superior court for the city and county of San Francisco.

Napthaly, Freidinrich & Ackerman, for the appellant.

Eyre & Frunk, for the respondent.

THE COURT. On the authority of Hill v. Finnigan, 54 Cal., 495, the appellant is allowed to file within twenty days a bond in the sum of four thousand dollars, with sureties to be approved by Hon. E. W. McKinstry, associate justice of this court; and upon the filing of such bond, execution on the judgment in the court below be stayed pending the appeal.

No. 9,663.

LE BRETON, ADMINISTRATOR, ETC. v. SUPERIOR COURT.

In Bank. Filed October 10, 1884.

ACTION TO ENFORCE TRUST ON REAL AND PERSONAL ESTATE-PLACE OF TRIAL.-An action to enforce a trust on both real and personal estate, is not based on a lien, nor is it a suit to enforce a lien. Such action may be brought and prosecuted in the county in which the trustee resides, although the real estate subject to the trust is situated is another county.

APPLICATION for a writ of prohibition. The opinion states the

facts.

Pillsbury & Blanding, for the petitioner.

F. H. Merzbach and Garber, Thornton & Bishop, for the defendants. MORRISON, C. J. The petition of plaintiffs prays for a writ of prohibition against the superior court of the city and county of San Francisco, under section 1,102 of the code of civil procedure, which declares that such writ arrests the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person." And the following section 1,103 provides that the writ shall issue in all cases "where there is not a plain, speedy and adequate remedy in the ordinary course of law."

The petition filed in the case is of very great length; but the important facts which it contains may be briefly stated as follows: On the first day of October, 1870, Juana M. Estudillo and others were indebted to Theodore Le Roy, John B. Felton and others, in the sum of nearly four hundred and fifty thousand dollars, of which amount there was due John B. Felton the sum of twenty-four thousand and five hundred dollars, and to secure the same they, Juana M. Estudillo and others, executed to Le Roy a deed of trust on certain lands therein described, situate in the counties of Alameda, Santa Barbara and San Luis Obispo, in this state, with power to sell said lands, collect the rents falling due thereon, pay the taxes and to exercise various other acts of confidence and trust respecting said lands, not only for his own benefit but for the joint benefit of himself and the other parties named in the deed as cestuis que trust.

The third article of the deed of trust made it the duty of the trustee to sell the lands conveyed to him, and by the fourth article he was directed to pay off the indebtedness specified therein. The said Le Roy entered upon the duties imposed by the trust deed, and in the course of the execution thereof commenced an action on the twenty-sixth day of September, 1874, in the district court of the then third judicial district, against Juana M. Estudillo and others, and procured an order of the court for the sale of the trust property to pay the debts embraced in, and provided for, by the trust deed. In pursuance of said order of sale, the commissioners appointed by the court for that purpose proceeded to sell the trust

property, at which sale Le Roy became the purchaser thereof, and deeds for the same were executed to him by the commissioners. But the amount for which the property was sold was not sufficient to satisfy the trusts provided for in the deed. Le Roy failed to pay the claim of Felton, or any part thereof, and departed this life in April, 1882. In the following May the petitioner Edward J. Le Breton, was appointed administrator of his estate. John B. Felton died in May, 1877, and in the following June his executor, Henry Barroilhet, and executrix, Katherine B. Felton, commenced the action complained of, and sought to be prohibited, in the superior court within and for the city and county of San Francisco. In the complaint in that action the foregoing facts substantially were set forth, and also the additional fact that Theodore Le Roy and Edward J. Le Breton, his administrator, who was the defendant in the action brought by Barroillet and Katherine B. Felton, had been in the possession of the lands and premises described in the deed of trust, and had received therefrom rents and profits amounting to one hundred and forty thousand dollars. The prayer of the complaint in the action against Edward J. Le Breton is that an account be taken between the plaintiffs and defendant of and concerning the said trust, and of the advances and acts of the said Theodore Le Roy; that the trust be executed by selling the lands, premises and property subject thereto; that the proceeds thereof be apportioned between the plaintiffs and the defendant in the proportions in which they may be entitled to the same, and that plaintiffs have and

recover costs.

The only question which we have at present to consider in the case is one of jurisdiction. Has the superior court of the city and county of San Francisco the right to entertain jurisdiction of the proceeding in the case of Barroilhet and Felton against Le Breton, administrator of the estate of Theodore Le Roy?

It is claimed, on behalf of petitioner, that it has not, because it is a proceeding to enforce a lien on real estate, and under section 5, article VI of the constitution, "all actions for the recovery of the possession of, quieting the title to, or for the enforcement of liens upon real estate, shall be commenced in the county in which the real estate, or any part thereof, affected by such action, or actions, is situated." It is admitted that the lands described in the deed of trust are situate out of the county of San Francisco; and if the action in question belongs to any one of the kinds named in the constitution, the superior court, where the action was brought, has no_jurisdiction.

But, on the other side, in support of the jurisdiction of the superior court, it is contended, in the first place, that the action is not of the kind named in the constitution, and secondly, that if it does in part come within the language of the constitution, there is another part that does not fall within the constitutional provision. In other words, that the object of the proceeding is to reach personal property as well as realty; and that in such case there is concurrent

jurisdiction created by law, in the court of the county in which the defendant resides. We will notice, briefly, both of these points.

The proceeding is not based on a lien, neither is it a suit to enforce a lien on real estate; but it is a proceeding to enforce a trust on both personal and real property. In such a case the rule is that the trustee may be sued wherever he can be found. In the case of Massie v. Watts, 6 Cranch, 160, chief justice Marshall said: "Upon the authority of these cases, and others which are to be found in the books, as well as upon general principles, this court is of opinion that in case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree." And this, although the lands lie in a foreign jurisdiction: 1 Perry on Trusts, sections 70, 71 and 72. The suit was brought against the administrator in the county in which he resides, to enforce a trust, and we have no doubt the supreme court of that county had jurisdiction.

In the second place, the suit is brought to reach personal property in the hands of the trustee, and that fact gave the court jurisdiction. In the case of Black v. Black, 27 Geo., 40, the court says: "It is true that the object of the bill was to compel the defendant to convey to the complainant an interest in the unsold lots of the town of Orglethorpe, but it is equally true that another, and probably a much greater object of it, was to compel the defendant to pay over to the complainant his part of the profits, made by the defendant from the sales of the sold lots of that town; and, in so far as this last was the object of the bill, the proper county for the bill was the county of defendant's residence; and in that county it was brought. There was then at least as much reason that the bill should be brought in the county in which it was brought, as there was that it should be brought in the other county-that in which the land lay. This being so, a court of equity of either county would have jurisdiction of the case." To the same effect is the case of Ashurst et al. v. Gibson, 57 Ala., 584, where it is said: "Land must be the subject-matter, and the exclusive subject-matter of suit, or the jurisdiction conferred by this act does not attach. Remedies must be pursued in the district of the residence of a material defendant, if Îand and personal property are the subject-matter of suit."

For these reasons, therefore, and on both of the grounds above considered, we think jurisdiction over the case attached to the superior court of the city and county of San Francisco.

We are of opinion that the writ should be denied, and it is so ordered.

MCKINSTRY, J., MYRICK, J., and SHARPSTEIN, J., concurred.

The civil code is at most only an outline. It does not purport to embody the entire jurisprudence of the state; it contains only portions of that jurisprudence, and even those portions are given in a fragmentary manner. One very noticeable feature of the code is, that it makes no distinction whatever between the rules of law and of equity. By far the greater part of its definitions, doctrines, and rules are purely legal; and when any equitable doctrines and rules are given, they are commonly mingled up with legal rules, as though the two departments had no separate existence. Indeed, the code seems to be drawn up on the assumption that all distinctions between "law" and "equity" had been abrogated, and that the two had been combined into one homogeneous system; and it absolutely gives no indication whether any rule is legal or equitable. As a whole, the code is exceedingly meager and deficient in the statement of equitable doctrines. A very great number of the most important, well settled, and necessary doctrines and rules of the equity jurisprudence are nowhere formulated, mentioned, nor alluded to, nor included by necessary implication in any portions of the text.

In the chapters or titles upon each distinct topic, such as agency, partnership, negotiable instruments, guaranty, suretyship, trusts, wills, etc., etc., the uniform plan of the code is as follows: It gives general and elementary definitions of legal relations, terms, and transactions, which are uniformly stated in an exceedingly brief and concise manner, and are often stated in language differing somewhat from that which has been usually employed by judges and text writers. It formulates a number, greater or less, of the more general doctrines, which are sometimes clothed with a new phraseology, and are always expressed in an exceedingly abstract, condensed, and concise manner, without amplification or explanation, without illustrations or applictions, and without going into any detail of the separate individual consequences or results flowing from these very general doctrines. These very con