at the right time, yet that did not affect the validity of the arraignment, nor render it void; nor was the defendant thereby deprived of any substantial right, for the record shows that he appeared by counsel in all the subsequent proceedings.

The fact that the defendant, without counsel, on his arraignment, pleaded not guilty, did not deprive him of his statutory right to demur, or to move to set aside the information. Even after his plea was entered, he had the right, at any time before trial, to apply to the court for leave to withdraw his plea, for the purpose of demurring or moving to set aside the information: People v. McCreery, 41 Cal., 458. But he did not apply; and as his counsel went to trial on the plea entered by the defendant, it must be held that all irregularities in the proceedings before the arraignment and plea were waived. Any statutory objections to an information, or any defects apparent upon its face, cannot, after a plea of not guilty, be availed of on the trial, nor on a motion for a new trial, nor on a motion in arrest of judgment. It is only a want of jurisdiction, or a failure to state facts which constitute a public offense, which may be taken advantage of at any time in the course of criminal proceedings: Section 1,012, Penal Code; People v. Swenson, 49 Cal., 388; People v. Turner, 39 Id., 370; People v. Burgess, 35 Id., 115; People v. Jim Tie, 32 Id., 60.

III. We find nothing in the challenged instructions, which the court of its own motion gave to the jury, prejudicial to the rights of the appellant.

Judgment and orders affirmed.

MCKINSTRY, J., and Ross, J., concurred.

No. 9,699.

ESTUDILLO v. AGUIRRE.

Department One. Filed December 15, 1884.

PROMISSORY NOTE-FAILURE OF CONSIDERATION.-A promissory note given in part for a definite sum which was represented to have been allowed the payee by the probate court, for his services as guardian of the maker, is wanting in consideration to the extent of such sum, if the probate court never made such allowance.

APPEAL from an order of the superior court for Los Angeles county, granting the defendant a new trial. The opinion states the facts.

F. H. Howard and J. R. Scott, for the appellant.

Graves & Chapman, for the respondent.

THE COURT. The appeal is by plaintiff from an order granting a new trial. The promissory note sued herein was given, in part, for five hundred dollars, which plaintiff informed defendant had been allowed him by the probate court for his services as guardian of defendant. The plaintiff had been informed by his attorney that five hundred dollars had been so allowed for his services, and believed

his informant, but, in fact, the probate court had not made such allowance. At the trial in the court below of the action now here, the court, notwithstanding defendant's objection that the same was irrelevant, immaterial and incompetent, admitted evidence tending to prove the character, nature and extent of plaintiff's services as guardian, and what his services were reasonably worth. The defendant duly excepted to the ruling.

The note was given in part for a definite sum which was represented to have been fixed, determined and allowed by the probate court. There was no settlement between plaintiff and defendant at which five hundred dollars was agreed upon as a proper compensation for plaintiff's services as guardian. The note was given on the representation (innocently made) that the probate court had made the allowance. As the allowance had not been made, the consideration of the note failed to the extent of five hundred dollars. We think the court properly granted the new trial.

Order affirmed.

No. 8,369.

BRADY V. PAGE ET AL.

Department One. Filed December 15, 1884.

GUARDIAN AD LITEM-ORDER APPOINTING-JUDGMENT ROLL.-An order appointing a guardian ad litem for a minor defendant constitutes no part of the judgment roll.

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

J. M. Nougues, for the appellants.

C. H. Parker, for the respondent.

THE COURT. The order of December 21, 1877, purporting to appoint a guardian ad litem for the minor defendant, constitutes no part of the judgment-roll: Emeric v. Alvarado, 1 W. C. Rep., 708. As the judgment-roll discloses no error and the appeal is from the judgment on the roll alone, the judgment is affirmed.

No. 8,368.

BRADY V. PAGE ET AL.

Department One. Filed December 15, 1884.

JUDGMENT affirmed on authority of Brady v. Page, ante.

APPEAL from a judgment of the superior court for the city and county of San Francisco. The facts were similar to those in Brady v. Page, ante.

J. M. Nougues, for the appellants.

C. H. Parker, for the respondent.

THE COURT. On the authority of Brady v. Page, No. 8,369, ante, judgment affirmed.

No. 9,723.

HARRIS v. MORE ET AL.

Department Two. Filed December 15, 1884.

RECORD OF CONVICTION OF MURDER-EVIDENCE OF.-The record of conviction is admissible in evidence, for the purpose of showing that the person convicted was implicated in a murder.

APPEAL from a judgment of the superior court for Santa Barbara county, entered in favor of the defendants, and from an order denying the plaintiff a new trial.

W. C. Stratton, for the appellant.

Thomas McNulta, for the respondents.

THE COURT. We think the record of the conviction of Sprague of the murder of W. T. More was competent for the purpose of showing that Sprague was implicated in said murder, and that the court erred in excluding it for that purpose.

The evidence introduced, together with that offered and erroneously excluded, was sufficient to entitle the plaintiff to have the issues submitted to the jury, and the court erred in granting a nonsuit. Judgment and order reversed.

No. 8.278.

HARLEY ET AL v. GOLDEN STATE AND MINERS' IRON WORKS.

Department Two. Filed December 16, 1884.

IMPLIED WARRANTY-SALE-CONTRACT OF SALE. --A mere contract of sale or agreement to sell does not imply a warranty. No warranty can be implied except in cases of sale.

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 defendant a new trial. The opinion states the facts.

George A. Nourse, for the appellant.

Cary & Troutt, for the respondents.

MYRICK, J. The second cause of action stated in plaintiffs' complaint is evidently based on a warranty of the articles specified. Although there is not in the complaint a direct allegation of sale, yet from the language used, in connection with the allegation of warranty, the pleader must have intended to aver a sale with warranty. This is further apparent from the fact that, if no averment of sale was intended, there are not averments of an agreement by defendant to hold the plaintiffs harmless of any expenses they might be put to in and about the property, its transportation or fitting for use. The defendant would not be liable, unless there was a sale with warranty, or unless there was an agreement to hold harmless or to refund. Therefore, we conclude that the pleader in

tended to aver a sale with warranty. The court found there was no sale. It follows, there was no warranty. "A warranty is an engagement by which a seller assures to a buyer the existence of some fact affecting the transaction:" Sec. 1,763, Civil Code. A mere contract of sale or agreement to sell does not imply a warranty: Sec. 1,764, Civil Code. Doubtless the defendant could have contracted, for a consideration, that the concentrators should prove to be of a certain quality, and able to perform certain work, independent of a sale; it could also have contracted to send the concentrators to plaintiffs, for experiment, and guaranteed their fitness, and agreed to refund all expenses; but such contracts do not appear in this case. There being, then, no sale found by the court, and there being no sufficient averments to show liability on the part of defendant without a sale with warranty, the court was not justified in rendering judgment against defendant for any of the items of expenses paid by plaintiffs. There must be a trial de novo.

Judgment and order reversed and cause remanded for a new trial. SHARPSTEIN, J. and THORNTON, J., concurred.

No. 9,519.

PEOPLE EX REL. ETC., v. LARUE ET AL.

Department Two. Filed December 16, 1884.

DEMAND FOR CHANGE OF VENUE-AUTHORITY OF ATTORNEY TO MAKE.-An attorney has authority, at the time he appears for the defendants, to sign a demand for a change of the place of trial.

CHANGE OF VENUE-AFFIDAVIT OF MERITS, WHAT MUST STATE.-An affidavit of merits, for use on a motion for a change of the place of trial, must aver that the affiant has fully stated the case to his counsel; an averment that he had fully stated his case, and the facts constituting his defense in the action, is not sufficient.

APPEAL from an order of the superior court of the city and county of San Francisco, denying a motion for a change of the place of trial. The opinion states the facts.

J. F. Wendell, for the appellants.
T. C. Coogan, for the respondent.

THE COURT. Appeal from an order refusing to change the place of trial.

Both defendants filed a demurrer to the complaint, and filed a demand in writing signed by their attorney that the place of trial be had in the county where they resided. Notice of the motion for change of place of trial was given by both defendants and stated that the motion was based on the papers on file and the affidavit of Greenlaw. The affidavit of merits was the affidavit of defendant Greenlaw alone, and stated that "he has fully and fairly stated his case and the facts constituting his defense in the said action" to his attorney.