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books of the company, and if he shall refuse an inspection, then the trustees of the company shall be liable to a penalty of $200, and the secretary refusing shall be guilty of a misdemeanor for the refusal. Needles and other stockholders of the Woodville Company demanded an "inspection and to copy the books, etc., of the company, but the secretary refused to permit copies to be taken, however allowing an examination of the books, etc. Needles had the secretary arrested, convicted, and fined in the Police Court, when, still persisting in his refusal to allow copies to be taken, he commenced, in the Justice's Court, a suit against the five trustees of the Woodville Company for the sum of $200, serving summons upon John W. Pearson alone. This was the first suit ever commenced under the statute. Upon a careful trial before Judge Joachimsen, judgment was rendered for the plaintiff for $200 and costs. Defendants appealed to the County Court, where, upon trial, the plaintiff was nonsuited, on the ground that the incorporation of the company had not been proved, Judge Wright holding, with good authority, but against the current practice, that the certified copy of articles of incorporation of a company, as filed with the Secretary of State, is not sufficient to prove an incorporation, but that the only proof of an incorporation is the certificate of the Secretary of State, issued by him to the trustees of the company at the time of incorporation, and of which certificate no record is kept. In view of this ruling the query naturally presents itself: How could an incorporation be proved if the trustees, on receiving the certificate, should destroy it? The plaintiff then made another demand, and receiving a like refusal as before, commenced another action in the Justice's Court, containing two causes of action (by reason of two refusals) for $400, less $101, the latter amount having been waived, to bring the case within Justice's Court jurisdiction. The case was the last one tried by Judge R. Aug. Thompson, now deceased. After careful consideration a written decision was given by him for plaintiff, for the sum sued for and costs. An appeal was again taken by defendants, when, after a trial de novo and a long and careful advisement, judgment was rendered for the third time for plaintiff judgment, $299, and costs, $58. In the meantime the causes of action of some twenty or thirty other stockholders, who made like demands for, and were refused to copy the books at the same time of Needles, and who were awaiting the result of his action before commencing their suits, have been barred by the statute of limitations (such claims outlawing in one year). J. W. Pearson has also assigned all his property away (?) to a corporation, but whether he shall be execution-proof remains to be tested by Needles. This case presents two very important points: 1st. The construction of the statute giving stockholders the right to inspect and examine the books of mining corporations; and 2d. The burden of proof resting upon the stockholder to prove the incorporation of the company in an action under the statute. It will be observed that the court judiciously held that, under the statute, stockholders were not confined merely to an inspection or examination of the books of the company, but could copy or take memoranda from them. To restrict stockholders to the rigid construction claimed by the defendants would effectually close all avenues to the discovery of frauds and strip the statute of the very object for which it was passed. The controlling authority cited by plaintiff is Cotheal vs. Brower, 5 N. Y. 562. The court held also that it is incumbent upon the plaintiff to prove the incorporation of the

company by the introduction of the certificate. By this is meant, not a certified copy of the articles of incorporation, but the certificate that is sent by the Secretary of State to the trustees of the company. No record is kept of these certificates. They are in the possession of the company, and usually deemed of no great importance, and they become lost. Just what secondary proof would be admitted in case of loss of the certificate is not suggested-perhaps the Secretary of State as a witness. In any event, it is important, both to those contemplating suit against mining corporations and to the corporation contemplating suit against others. The rule must apply with as much force in the one case as the other-either must prove the incorporation when it is in issue, by the production of the certificate.

Notes of Unwritten Opinions.

IN Tully vs. Tranor (reported in S. F. LAW JOUrnal, Vol. 1, No. 8) the Supreme Court then held that section 3336 of the Civil Code, as amended, is retrospective and is applicable to cases of conversion which occurred prior to its passage; that the statute was intended to establish a legal presumption to operate only at the trial of a cause, and under the amendment evidence can be given only as to the value of property at the time of the conversion, and not as to the highest market value of the property at any time between the conversion and the verdict, though the conversion occurred prior to the amendment. Mr. Robert Harrison, attorney for plaintiff, has filed a petition for rehearing. His argument is forcible and logical and has induced the court to grant a rehear ing. It is claimed in the petition that the point on which the case was decided was not argued, on account of an intimation from the court that that point was not in dispute, or would be considered favorably to plaintiff. The main authorities cited in the petition for rehearing are, Kay vs. Penn. R. R. Co., 65 Pa. St. 277; Dash vs. Van Kleek, 7 John. 500; Billings vs. Harvey, 7 Cal. 6-18. If the former decision is overturned upon the rehearing we will advise the profession.


SHEARER VS. BLIVEN (appeal from Second Judicial District, county of Butte, SEXTON, J.) was an action of ejectment for a portion of Block 1 in the town of Chico, Butte county. On the twenty-ninth of September, 1875, the respondent, Mrs. Bliven, and her husband, the defendant, were residing on said premises. On that day J. E. Shearer, the plaintiff and appellant, acquired title thereto. On the same day Mrs. Bliven executed and acknowledged a declaration of homestead on said premises, which was placed on record prior to the deed of appellant. Shearer brought this action to recover possession of the property. Mrs. Bliven was not made a party, nor did she intervene. The defendant made default, and judgment was rendered for plaintiff. After one


term of the court a writ of restitution was issued on said judgment. Prior to its service Mrs. Bliven gave notice of a motion to quash and vacate said writ as to her, based on her declaration of homestead and affidavit. She obtained an order staying the execution of said writ till the motion could be heard. Upon the hearing the court ordered that the stay upon said writ be continued in force. Shearer appealed. The appellant contends that the respondent, even if entitled to the relief she desires, can not obtain it by motion in this manner; that her husband should join with her in the motion; and next, that the declaration is void on its face. The declaration sets forth that she is married, and the wife of B. B. Bliven, and that, at the time of making the declaration, she resided on the lot in question, and that it was her intention to claim it as a homestead, and that she did select it as a homestead, and the value was three thousand dollars. It is claimed that the declaration is not sufficient because it does not show that she is the head of a family and that her husband has not made such declaration, and therefore she makes the declaration for their joint benefit. The Supreme Court affirmed the judgment of the court below. The court, it will seen, decides that the husband is not a necessary party to a motion by the wife to quash a writ running against her homestead. It will be observed, also, that the order of the court below is not to quash the writ, but to continue the stay. This, perhaps, controlled the court in affirming the judgment.


IN People vs. Ah Tye the Supreme Court affirmed the decision of the court below. The court below sustained a demurrer to the following indictment, because it did not conform to sections 950, 951, and 952 of the Penal Code, for lack of sufficient certainty and particularity: “The said Ah Tye, on or about the fourth day of October, 1871, at the county of Calaveras and State of California, unlawfully and feloniously did attempt to take, steal, and carry away gold dust from and out of the certain mining claims belonging to Joseph Gardello, Antonio Gardello, Angelo Demartini, and Alexander Demartini.”

IN Turney vs. Dougherty et al., complaint was filed praying an injunction restraining Hagan, Street Superintendent, from issuing a warrant or making an assessment for grading a street in which plaintiff's property was located. Plaintiff alleged certain fraudulent representations to have been made by the defendant Dougherty in obtaining the contract to grade said street; that the resolution was void, etc., and asked for an injunction. Defendant demurred, and the court overruled the demurrer, and answer was filed. Defendant then made a motion to vacate the injunction, which motion was refused, and he appealed. The question raised is whether or not injunction will lie to restrain the levy of street assessment and the issuance of a warrant in case of alleged fraud in the procurement of the contract to grade the street, on the ground that said warrant and assessment, being a lien, would be a cloud upon the title to said property. The Supreme Court affirmed the order of the court below.

Supreme Court of California.

[January Term, 1878.]

[No. 5507.]

[Filed January 16, 1878.]


EVIDENCE-HEARSAY, WHAT IS.--Conversation between parties concerning the guilt of a third party, not in the presence or hearing of the third party, is hearsay.

Griffin was indicted for forging a certain order for the payment of money--signing the name of Smith & Harris, who were school trustees. Smith testifies that he did not write the order. "Walker asked me if I wrote the order. I told him I did not; that as I had sent down another order to Roman & Co., which was a printed form, and as this order was written, he (Walker) thought there was something wrong about it. That Griffin had told him (Walker) that the order-book of printed forms was exhausted, and that that was the reason that this order had been written out in full on this paper. Nobody was present at this conversation but Walker and myself and Harris."

This was objected to by defendant's counsel, on the ground of hearsay. The court overruled the objection and allowed the testimony to go to the jury. Defendants appealed.

The Attorney-General confessed the error before the Supreme Court.
By the court.

It was error to permit the witness Smith to testify to the prior conversation between himself and Walker. The conversation was not had in the presence or hearing of the defendant. It was purely hearsay evidence, and very clearly inadmissible. For this error the judgment must be reversed. It is unnecessary to notice other palpable errors committed at the trial.

Judgment and order reversed and cause remanded for a new trial.

[No. 5486.]

[Filed January 1, 1878.]



This decision was rendered upon a rehearing. The former decision is reported in S. F. LAW JOURNAL, No. 10. The court modify their opinion only as to the lien created by the McCracken judgment, inasmuch as a "certified copy was sufficient under the statute as it existed at that time;" but they do not change their opinion otherwise, which is to the effect that the judgment only

being appealed from, there is nothing to show that it is erroneous-the findings not being attacked.

By the court.

It is true, as claimed in the petition for a rehearing, that the redemption made under the McCracken judgment was made before the taking effect of the Code of Civil Procedure, and that, therefore, the recording of a certified copy of the judgment in the Recorder's office was sufficient to create a lien upon the premises in controversy, and to this extent the petition heretofore filed must be modified.

But it is not claimed in the petition that the finding, ninth in number, as follows: "Ninth. That said defendant, Helena Crowell, alias Golinski, has a good and perfect title to said property" (adverted to in the former opinion) is not sufficient in itself to support the judgment for the defendant rendered below.


The action is ejectment, and the finding just recited is not attacked as being without support in the evidence. The appeal is taken directly from the judgment, and assumes that the findings are correct in point of fact. It is true that the record contains a number of findings, besides the ninth finding just adverted to, but there is no necessary conflict between the ninth finding and the othThe latter concern the various steps taken about the sheriff's sale, the redemption, etc., but it is perfectly consistent with all the findings to assume that the title, "good and perfect," which the defendant is found to have had at the trial of the action, is the very trial which was the subject of the redemption, and which the defendant may have purchased from the plaintiff subsequently to the delivery of the sheriff's deed on November 20, 1874, and before the commencement of the action, or possibly the true title to the premises outstanding at the time of the redemption proceedings, and in the hands of a stranger to these proceedings, and from whom the defendant may have subsequently and before the commencement of this action, purchased.

In short, under the established rules of practice prevailing here, the plaintiff can not, in this condition of the findings, disturb the judgment, except through a proceeding by which the correctness of the findings disturbs the judgment, except through a proceeding by which the correctness of the findings in point of fact might be inquired into. Smith vs. Acker, April term, 1877.

We are satisfied with the judgment heretofore rendered, and the petition for a rehearing is denied.

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