tation he was not in office. Besides, the office had terminated long before his death, for one of his wards attained the age of majority in November, 1870, and the other in August, 1876. When a ward attains the age of majority, the office of guardian comes to an end, and it is then the duty of the guardian, and one of the obligations of his bond, to exhibit a final account of his guardianship to the probate court, make a settlement with the probate judge, or with the ward, and deliver all the property in his hands belonging to the ward. Code Civil Proc. § 1754. Failure to do this constitutes a breach of his bond, for which he and his sureties are liable after settlement of the guardianship. Settlement of the final account of a guardian only includes transactions during the minority of the ward; it does not include transactions occurring after the ward has attained its majority. When that event happens, the ward is sui juris; and the legal liability which attaches to him, for any services rendered to him by his guardian, arises, not out of the relation of former guardian and ward, but out of the contractual relation established by the transactions between them as contracting parties. Such a liability is not enforceable within the jurisdiction of a probate court; the remedy upon it lies, not in a probate proceeding, but in an action at law.

Of the charges in the account presented by the executors of the deceased guardian against the appellants, as his former wards, for transactions between him and them after they had attained their majority, the court had no jurisdiction. Nor had it jurisdiction of the account itself, for after the death of the guardian, without settlement of his guardianship in the probate court, his executors had no authority to present his final account to the probate court for settlement, for charges made by him against the wards, either during or after their nonage; and the court had no authority to receive, or in any way to act upon it. Presentation of such an account is no part of the duties involved in the administration of the estate of the testator; for, although the property, which was under the control of their tes tator as guardian, may have come into the hands of the executors, yet the guardianship was a personal trust which did not pass to them on the death of the testator, and the property held by him as guardian did not become assets in their hands to be administered; they merely held it for its preservation until the persons whose estate it is, and for whose benefit it is held, can obtain a settlement of the trust, terminated by the death of the trustee, in the proper forum, where the rights of all parties to the trust may be definitely deter mined. This settlement can only be had in a court of equity, by a proceeding against the executors of the deceased guardian and other necessary parties. Lathrop v. Bampton, 31 Cal. 17; Chaquette v. Or tet, 60 Cal. 600; Theller v. Such, 57 Cal. 447; Peck v. Braman, 2 Blackf. 141. But the executors had no authority to institute such a proceeding for settlement in the probate court; and the probate court

Wetzler v. Fitch,

had no authority to exercise jurisdiction over it.
52 Cal. 639; Bush v. Lindsey, 44 Cal. 121.
Judgment and order reversed, and cause remanded.

We concur:

Ross, J.; McKINSTRY, J.

(65 Cal. 237)

WETMORE v. RUPE. (No. 7,838.)

Filed May 14, 1884.

In an action for claim and delivery of personal property, a defendant who recovers judgment, where the property has been delivered to the plaintiff, is entitled to a judgment for a return of the property, or, if all of it cannot be returned, to a judgment for the value of the whole; the wrong doer cannot through his wrongful act acquire a privilege of restoring to the owner a particular article, or instead thereof paying its value, as found by the jury.

Where the finding of the court is that an action was commenced, and that judgment therein was duly given and made, held, a sufficient finding of the facts necessary to give the court jurisdiction.

Department 1. Appeal from the superior court of Sonoma county. This was an action for the recovery of the possession of certain personal property, or the value thereof. Defendant denied the ownership of the property by plaintiff, alleging the same to have been the property of one John Ward, and that he, defendant, holds the same, as constable, by virtue of certain writs of attachment and execution. The court found, among other things, that there was an agreement between said Ward and this plaintiff for the sale to the latter of such property, but before such agreement was consummated that the defendant herein, as constable, had made a proper levy on the same by virtue of said, attachments and execution. The other facts are stated in the opinion.

Porter & Rutledge and R. A. Frame, for appellant.

George A. Johnson, for respondent.

BY THE COurt. 1. The court below found there was not an immediate delivery and actual and continued change of possession to and in plaintiff of the goods demanded in this action, and this is not contradicted by the other findings.

2. Appellant contends the judgment should be reversed, because neither it nor any finding determines the value of each article sued for, separately. In support of this contention appellant cites Wallace v. Hilliard, 7 Wise, 627; Farmers' Loan, etc., Co. v. Com. Bank, 15 Wise, 425; Whitfield v. Whitfield, 40 Miss. 369; and Hoeser v.

Kraeka, 29 Tex. 455. The first of these cases only decides that the verdict should find the value of the property sued for, and the second that defendant may waive a return of the property and take a judg ment for its value alone. In California it has been held that defendant may waive his right to the alternative judgment for value, and may rely on his judgment for the return of the property. Waldman v. Broder, 10 Cal. 379; Whitfield v. Whitfield, cited from the Mississippi Reports, decided that a judgment in favor of a plaintiff which did not follow a verdict, specifying the value of each article, but which required the defendant to deliver all the articles of property, or pay their aggregate value, was erroneous. Hoeser v. Kraeka-the Texas case seems to uphold the view of the appellant. There the court held erroneous a verdict which did not find a separate value of each article recovered, saying: "The defendant should have the privilege of returning any one or more of the articles recovered, instead of paying its value, and vice versa; but this would be denied him unless the separate value of each article were found."

We do not agree that the wrong-doer may, through his wrong-doing, acquire a privilege of restoring to its owner a particular article, or paying instead its value, as found by a jury. Under our Code, the judgment is primarily for the return of all the property wrongfully taken or withheld, and the judgment for its value comes into operation only "in case a return cannot be had." Code Civil Proc. 667. So, by section 627, the jury are to find the value of any specific portion of the property only, "if so instructed." Error can therefore only arise in a case where such instruction would be pertinent and proper, and the instruction was asked and refused. In De Thomas v. Witherby, 61 Cal. 92, this court held that where a plaintiff replevied goods from a defendant, and a judgment was rendered against him for a return of the property or its value, the plaintiff could not be excused from satisfying the judgment upon a plea that the property had been lost in his hands, even by act of God. In De Thomas v. Witherby the language of the superior court of New York in Suydam v. Jenkins, 3 Sandf. 614, is cited with approval. "The undertaking of the plaintiff in the replevin bond we conceive is absolute to return the goods, or pay their value at the time of the execution of the bonds. We do not think that a wrong-doer is ever to be treated. as a mere bailee, and that the property in his possession is to any extent at the risk of the owner." It cannot be doubted that a plaintiff who, without right, has seized the property of a defendant under a writ is a wrong-doer.

Under our Code, the defendant who recovers a judgment in an action like the present, where the property has been delivered to the plaintiff, is entitled to a judgment for a return of the property; and if the property-all of it-cannot be returned, then to a judgment for the value of the whole. In the case at bar the court found the value of the property to be $400, but ordered an alternative judgment

for $155.45. Appellant cannot complain that the judgment was for less than the value of the property.

3. The answer alleges that defendant was a constable, and that in the action, Glenn v. Ward, in the justice's court, an attachment issued upon an affidavit and undertaking,-the contents whereof, showing conformity to the Code, are set forth,-and that defendant, as constable, under the attachment levied on the property, it being in the possession of Ward; that in the action, Glenn v. Ward, a judg ment was afterwards duly given, upon which execution issued to defendant, who levied the same on the attached property, etc. The findings are as full as the pleading, the finding with respect to the judgment being that it was "duly given and made." The facts constituted a defense for the constable. Thornburgh v. Hand, 7 Cal. 554. It is urged that there is no finding there was anything due from Ward to Glenn at the commencement of the attachment suit. But there is a statement in the answer that the suit was commenced on "an obligation incurred in Santa Rosa, said county;" and, if this was an imperfect averment of indebtedness, plaintiff did not demur generally or specially. The court found: "All the other issues than those herein before specifically mentioned are found in favor of defendant."

4. It is said by appellant that the judgment in the attachment suit is void, because Ward was not served with summons. This must mean that it does not affirmatively appear he was served in the findings herein. But the finding is that the action was commenced in the justice's court, etc.; judgment "duly given and made." This includes a finding of the facts necessary to give the court jurisdiction. Judgment affirmed.

(2 Cal. Unrep. 303)

PEOPLE V. BIGGINS. (No. 10,859.)'

Filed May 15, 1884.

Where a demurrer to an information is overruled, and a plea of not guilty is entered, the court may set aside the order overruling such demurrer, and allow counsel for the people to confess the demurrer, and file a new information, and such order will be equivalent to an allowance of the demurrer.

An information is sufficient, on demurrer, which complies substantially with the provisions of the statute.

Where, by the evidence, it was shown that deceased while drunk had assaulted defendant, who thereupon knocked him down, and, while lying helpless on the ground, jumped with both feet on his face, from which act death ensued, held, that the killing was unlawful and felonious; that there were none of the elements of involuntary manslaughter in such act; and that the charge of the court to that effect was correct.

Where, at the request of a party, certain instructions are given, he cannot thereafter complain of them.

Instructions to a jury should be given with reference to the imminent facts in the case. If controverted, instructions upon them should be hypothetical, leaving 1 Reversed in banc. See 4 Pac. 570, 65 Cal. 565.

the supposed facts which the evidence tends to prove to the consideration of the jury. If uncontroverted, the court may assume them.

Where the charge to the jury, considered as a whole, correctly states the law, and no portion of it is calculated to mislead the jury, the verdict should not be disturbed, although some part of the charge, standing alone, may contain some inaccuracy of expression which would be the subject of criticism.

Department 1. Appeal from the superior court of Fresno county. W. D. Tupper, for appellant.

Atty. Gen. Marshall, for respondent.

MCKEE, J. On August 28, 1882, an information was filed in the superior court of Fresno county against Patrick Biggins, charging him with having committed the crime of murder. Upon demurrer it was held to be defective, and, by direction of the court, a new information was filed, to which a demurrer was interposed, which was overruled, and the defendant then entered a plea of not guilty; but upon the day fixed for trial counsel for the people moved the court to set aside the order overruling the demurrer to the information, and allow him to confess the same. The court granted the motion, and entered an order setting aside the overruling of the demurrer, and thereupon, as was recited in the order, counsel for the people confessed the demurrer, and the court directed another information to be filed. Upon the filing of the third information the defendant, after a demurrer to it had been overruled, entered two pleas,-one not guilty and the other a former acquittal. Upon these he was tried and convicted of murder of the second degree.

In the course of the preliminary proceedings it was objected, and on appeal it is now objected-First, that after a plea of not guilty had been entered to the second information, upon which the case was set down for trial, it was error for the court to set aside its order overruling the demurrer, which had been filed to the information, and to allow counsel for the people to confess the demurrer and to file a new information; secondly, after the order overruling the demurrer had been set aside, and the demurrer was confessed, the court erred in not rendering or entering judgment upon the demurrer; and, thirdly, that the court erred in overruling the demurrer to the third information.

1. The court had jurisdiction to set aside the order, and to allow counsel to confess the demurrer and to direct the filing of a new information. Code Civil Proc. § 128; Penal Code, § 1008.

2. When the order was set aside it would have been more formal to have entered an order allowing the demurrer. Penal Code, § 1007. But the order entered, allowing the confession of the demurrer, and directing a new information to be filed, was the equivalent of an order allowing the demurrer. In legal effect the confession involved and

« ForrigeFortsett »