The defend

accept from defendant said sum or any part thereof. ant has at all times been ready and willing to pay plaintiff said sum of six thousand three hundred and thirty-four dollars and fiftysix cents, and did, at the time of filing his answer herein, bring into court and deposit therein for plaintiff said sum so tendered to plaintiff as aforesaid."

By section 2,076, C. C. P., it is provided that "the person to whom a tender is made, must, at the time, specify any objection he may have to the money, instrument or property, or he must be deemed to have waived it: and if the objection be to the amount of money, the terms of the instrument, or the amount or kind of property, he must specify the amount, terms or kind which he requires, or be precluded from objecting afterwards."

Under the circumstances of this case, it was no great hardship for the plaintiff to be charged with the costs of the litigation, and we must affirm the judgment.

Motion to dismiss the appeal denied.
Judgment and order affirmed.

MYRICK, J., and Ross, J., concurred.

No. 20,003,

PEOPLE v. RIGHETTI.

Department Two. Filed December 2, 1884.

LARCENY VALUE OF PROPERTY, HOW STATED-INFORMATION. An information for larceny need not allege that the value of the property stolen was "in current coin of the United States."

WITNESS SWEARING FALSELY-EFFECT OF TESTIMONY-INSTRUCTION.-The court may instruct the jury that "if any witness has, in their opinion, sworn falsely in any material respect, he is to be distrusted in all others, and his testimony is not to be accepted and acted on without great caution."

LARCENY IN SECOND DEGREE-PETIT LARCENY-VERDICT.-A verdict finding the defendant guilty of larceny in the "second degree," is equivalent, under section 486 of the penal code, to a verdict for petit larceny.

PETIT LARCENY-PUNISHMENT FOR-FINE AND IMPRISONMENT.-A judgment upon a conviction for petit larceny may provide for a punishment by fine or imprisonment, or both, If both are ordered, the judgment may direct that the defendant be further imprisoned until such fine be paid, in conformity with section 1,205 of the penal code.

APPEAL from a judgment of the superior court for San Luis Obispo county. The opinion states the facts.

J. M. Wilcoxson, for the appellant.

Attorney-General, for the respondent.

THE COURT. Information for grand larceny. The defendant, Thomas Righetti, was separately tried.

The information charges the theft to have been of thirty sacks of barley of the value of forty-five dollars and seven sacks of wheat of the value of twelve dollars, all of the value of fifty-seven dollars, the property of Mark Elberg, and that the offense was committed in the county of San Luis Obispo, on the twentieth of September, 1883.

1. There is nothing in the point that the information should have averred that the value stated was in current coin of the United States:" People v. Poggi, 19 Cal., 600; Penal Code, 487.

The articles are stated to have been taken at the same time and place, sufficiently to constitute grand larceny.

The demurrer was therefore properly overruled.

2. The court instructed the jury: "If any witness has, in your judgment, sworn falsely in any material respect, he is to be distrusted in all others, and his testimony is not to be accepted and acted on without great caution."

The defendant urges that the court should have said "wilfully false," and cited, with other cases, People v. Sprague, 53 Cal., 494. The instruction given, preceding the sentence in italics, is in effect the language of the statute: C. C. P., 2,061. This court held, in People v. Sprague, supra, that the word "wilfully" did not change the effect of the language; that the word "false is not the equivalent of mistake; therefore, if a witness be believed to have sworn "falsely," he is believed to have sworn so wilfully. The addition of the words in italics constituted no error. If a witness is declared by law to be distrusted, is not his testimony to be acted on with caution-great caution? Would defendant's counsel present to us, in earnest, the proposition that if a witness is to be distrusted, still his testimony is to be taken without caution?

3. The instructions concerning circumstantial evidence, considered together, show no error.

4. The jury found the defendant guilty of "larceny in the second degree." The defendant urges that this is no offense known to the law. A complete answer is found in the penal code, section 486: "Larceny is divided into two degrees, the first of which is termed grand larceny, the second petit larceny." Here the degrees are given, and a name is given to each degree. We think the language of the statute justified the use of the term "larceny in the second degree," as standing for and representing "petit larceny."

5. The defendant was sentenced to imprisonment for six months, and to pay a fine of three hundred and sixty-five dollars, with the addition that is case said fine is not paid at the expiration of said term of six months, he shall be confined in said county jail until said fine be satisfied, not exceeding three hundred and sixty-five days from the eqpiration of said term of six months, at the rate of one dollar per day for each day of said imprisonment."

Petit larceny is punishable by fine, or imprisonment, or both: Penal Code, section 490. A judgment that the defendant pay a fine, may also direct that he be imprisoned until the fine be satisfied, specifying the extent of imprisonment, which must not exceed one day for every dollar of fine: Section 1,205, Penal Code. This last section is not, as contended for by appellant, limited to cases of fine only, but applies to cases of fine whether the fine be coupled with a sentence of imprisonment, or whether the fine stand alone as the only punishment.

Judgment affirmed.

No. 8.463.

BOARD OF EDUCATION V. FRANKLIN ET ALS.

Department Two. Filed December 5, 1884.

RECORD HELD TO DISCLOSE NO MATERIAL ERROR.

APPEAL from a judgment of the superior court for the city and county of San Francisco. This was an action to recover possession of a lot claimed to belong to the school department of the city and county of San Francisco. The plaintiff had judgment.

George F. & W. H. Sharp and Jarboe & Harrison, for the appellants.

C. H. Parker, for the respondent.

THE COURT. Without the aid of any argument, oral or written, or any brief, we have examined the record, and we think it discloses no material error.

Judgment affirmed.

No. 9,761.

IN RE TREADWELL.

In Bank. Filed December 6, 1884.

REMOVAL AND SUSPENSION OF ATTORNEY-WHAT CAUSES WILL JUSTIFY.-Whether an attorney can be removed or suspended from the bar for causes other than those specified in section 287 of the code of civil procedure, quaere; but in this case the court concludes not to investigate any other charges.

PROCEEDING for removal of an attorney from the bar.

G. E. Harpham, for the petitioner.

A. C. Adams and W. C. Belcher, for the respondent.

THE COURT. Without expressing any opinion upon the question whether this court could remove or suspend an attorney for causes other than those specified in section 287, code of civil procedure, we have concluded in this case not to investigate the charges which, if proven, would not clearly constitute a cause for suspension or removal under the provisions of the code. Therefore the objections to the charges growing out of respondent's transactions with the Bank of Woodland and with Adolph Heine and wife, or either of them, are sustained, and the specifications relating to said charges are ordered stricken out.

And it is further ordered, that the issue raised by respondent's plea of not guilty to the remaining charge be referred to A. P. Catlin, Esq., of Sacramento, to take testimony, and report the same to this court with all convenient dispatch.

No. 8,490.

REYNOLDS v. ROBERTSON.

Department Two. Filed December 8, 1884.

ACTION ON JUdgment-Defense of nul TIEL RECORD-DEMURRER.-A defense of nul tiel record to an action on a judgment is good, and a demurrer thereto should be overruled.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff. The opinion states the facts.

1. C. Van Ness, for the appellant.

H. C. Firebaugh, for the respondent.

THE COURT. The first defense set up in the answer of defendant is substantially that of nul tiel record. Such a defense to an action on a judgment is a good one, and the court, therefore, erred in sustaining a demurrer to it.

Judgment reversed and cause remanded for a new trial.

No. 8.441.

GANAHL ET AL. v. SOHER ET AL.

Department One. Filed December 8, 1884.

MINORITY-PERIOD OF, WHEN TERMINATES STATUTE OF LIMITATIONS-EJECTMENT.-A male person born on the eleventh day of April, 1855, becomes of age, under section 26 of the civil code, at the first minute of the eleventh day of April, 1876. His right of action for the recovery of real estate in the adverse possession of another commences to run from such day, and expires after a period of five years, on the tenth day of April, 1881.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the defendants, and from an order denying the plaintiffs a new trial. The opinion states the facts.

Carter P. Pomeroy, for the appellants.

H. J. Tilden, for the respondents.

Ross, J. The plaintiffs claim title to the lot of land in controversy as the heirs-at-law of Henry Ganahl, who died intestate, in the state of Georgia, on the twelfth day of May, 1855. That whatever rights, if any, the plaintiffs, Maria Ann and Ann Elizabeth Ganahl, acquired in the premises as such heirs-at-law, became barred by the provisions of the statute of limitations, prior to the commencement of this action, admits of no question. The remaining plaintiff, Henry Gordon Ganahl, was born April 11, 1855. Sections 25 and 26 of the civil code of this state provide:

"Section 25. Minors are:

"1. Males under twenty-one years of age.

"2. Females under eighteen years of age.

"Section 26. The periods specified in the preceding section must be calculated from the first minute of the day on which persons

are born to the same minute of the corresponding day completing the period of minority."

Under the rule prescribed by the section last quoted, Henry Gordon Ganahl became of age the first minute of the eleventh day of April, 1876, and, by virtue of section 328 of the civil code of procedure, he was entitled to commence an action for the recovery of whatever interest he had in the land within the period of five years thereafter, but not after the expiration of that period. In computing the period of five years we must include the eleventh day of April, 1876, because as the plaintiff in question attained his majority the first minute of that day, he had the whole of the day in which to sue; and computing that as the first day of the five years, the whole period of five years expired with the tenth day of April, 1881, and the action not having been commenced until the eleventh day of April, 1881, was barred by the provisions of the statute. We are not, therefore, called upon to consider any other question in the case.

Judgment and order affirmed.

MCKEE, J., and MCKINSTRY, J., concurred.

No. 8,251.

BEACH v. HODGDON ET AL.

Department One. Filed December 8, 1884.

ACTION TO SET ASIDE FRAUDULENT CONVEYANCE-PLACE OF TRIAL OF.-An action by an execution creditor to set aside a deed made by his execution debtor, upon the ground that the same was fraudulently executed, is not an action to enforce a lien upon real property, and need not be commenced in the county where the land is situated.

NEW TRIAL--GROUND FOR AFFECTING ONE PARTY ONLY.-An objection, good as a ground for a new trial on the part of one party only, if not raised by him, cannot be relied on by another party.

AN ORDER STRIKING OUT AN ANSWER IS NOT APPEALABLE.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff, and from an order denying the defendants a new trial. The opinion states

the facts.

W. H. Tompkins, N. F. Flood and R. H. Lloyd, for the appellants. E. J. & J. H. Moore, for the respondent.

Ross, J. 1. This is not an action to enforce a lien upon real property, but a bill in aid of execution to set aside two certain conveyances made by the execution debtor, upon the ground that they were fraudulently executed. Therefore, the provision of the present constitution requiring actions for the enforcement of liens upon real estate to be commenced in the county in which such real property is situated, does not apply.

2. There is no specification calling in question the order striking out the answer of Hildreth. Nor did Hildreth move for a new