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After the jury had been out four hours they returned into court and requested further instructions. The court then instructed them that "Walbridge testified that the quilts were his, and were in the Union hotel the day before they were missed." The court was in error. Walbridge so testified as to one of the quilts only. He said he could not swear to the other two; they looked like the ones he had; he could not swear to them. If it were clear to our minds that this error could not have prejudiced the defendants, we might disregard it; but, as we view the case, they may have been prejudiced by it. If all three of the quilts had been positively identified by Walbridge as his, and as having been in his hotel, the evidence would be somewhat stronger against the defendants than it now is. As the case now stands, it does not positively appear to whom two of the quilts belonged, or that they were taken from the house of Walbridge. Therefore, the testimony of Walbridge, as stated by the court, is somewhat stronger against the defendants than it was as given by Walbridge. The court at the same time instructed the jury that "if the defendants took the quilts between sunset and sunrise they committed burglary in the first degree." The only question which can arise in regard to this is whether the jury must not be presumed to have understood by it that if the defendants entered the house mentioned in the indictment between sunset and sunrise, and stole the quilts mentioned in the indictment from said house, they committed burglary in the first degree; in other words, that the jury connected this instruction with those which had been previously given. Possibly they did; but we cannot base a presumption on a bare possibility. The court made no reference to anything which had gone before. The instruction as given is without qualification, and we think it would be unsafe to assume that the jury understood it otherwise. If the court had instructed the jury that "if the defendants entered the house between sunset and sunrise they committed burglary in the first degree," the same presumption might be invoked to sustain it. It might then be said that the jury must be presumed to have supplied the defects and omissions by the same process which it is claimed they supplied those in the instruction excepted to.

These constituted the only substantial errors disclosed by the record as we view it.

Judgment and order reversed.

We concur:

MCKINSTRY, J.; THORNTON, J.; MORRISON, C. J.

Ross, J. I concur in what is said by Mr. Justice SHARPSTEIN in regard to the first instruction set out in his opinion, and in the judgment.

(2 Cal. Unrep. 314)

In re ESTATE OF FEELEY, deceased. (No. 7,953.)

Filed May 20, 1884.

Evidence held insufficient to justify the decision and findings.

Department 1. Appeal from the superior court of Santa Cruz county.

This was a proceeding for the settlement of the account of the executor of this estate. Objections were filed to said account, and thereafter the court duly settled such account. From such settlement, and the orders and findings thereon, the executor appeals.

W. D. Story and Moore, Laine & Johnston, for appellant.

Z. N. Goldsay and J. A. Barham, for respondent.

BY THE COURT. Appellant urges that the court found, against the evidence, that the executor was to be charged with 17 acres of land, "a little more or less;" that the court finds, and "there is no dispute," that Pagels bought the two-acre piece; that one acre was washed away without the fault of the executor; and that "there was no dispute" but the railroad purchased four and one-half acres. But the court found that Pagels bought the one-acre tract, "a little more or less," and the executor swore: "I received $180 from Pagels for the one acre, sold by order of the court." Take from the 23 acres, of which deceased was seized at his death, the one acre sold to Pagels, the one acre washed away, and the four and one-quarter acres sold to the railroad company, and there would remain 162 acres. The specification of insufficiency of evidence in the statement, on motion for a new trial, is to the effect that the executor should not be charged with a greater quantity of land than 16 acres; and the statement for new trial avers that there was evidence "showing" that there was left "in the hands of the executor" 16 acres. It would seem, therefore, that the court should have found 163 instead of 17 acres as being all the land remaining in possession of the executor. But while the court found that of the 20-acre tract 1 acre had been washed away and 4 acres had been sold to the railroad in 1874, leaving of that tract 14 acres,-it charged the executor with the rental value of 17 acres of the 20-acre tract from June, 1871, and also charged him with the value of the use of the two-acre tract for a portion of the same time.

There is no finding as to the $170 alleged to have been stolen from the executor, nor as to the item of about $25 contested.

The interests of justice demand a new trial of the issue. Order reversed and new trial granted.

(65 Cal. 257)

BROUGHTON v. COUNTY OF SANTA BARBARA. (No. 9,481.)

Filed May 20, 1884.

A sheriff, in serving a warrant of arrest, is entitled to mileage for traveling in going only, and not for traveling in different directions in looking for a person charged with crime, who is not arrested.

Department 1. Appeal from the superior court of Santa Barbara county.

John J. Boyce, for appellant.

for respondent.

BY THE COURT. The action is brought by the sheriff to recover $321.30, as "mileage" for traveling "to serve warrant of arrest" on one charged with felony. Plaintiff relies upon the provision of the statute which reads as follows:

"For every mile necessarily traveled, in going only, in executing any warrant of arrest, subpoena, or venire, bringing up a prisoner on habeas corpus, taking prisoners before a magistrate or to prison, or for mileage in any criminal case or proceeding: provided, that in serving a subpoena or venire, when two or more jurors or witnesses live in the same direction, but one mileage shall be charged, thirty cents: provided further, that in the counties of Amador and Sacramento, for every mile necessarily traveled in any criminal case, twenty cents." St. 1869-70, p. 159.

The clause in the section, "or for mileage in any criminal case or proceeding," does not authorize the sheriff to charge mileage for other traveling than that which is expressly mentioned in the statute, but simply fixes the rate which may be charged when mileage is allowed by any other law or statute. Thus, if there be any other service for which a statute requiring it to be performed does not fix the compensation, but which involves traveling, the sheriff may charge for such traveling, "in going only," 30 cents a mile.

In Ex parte Wyles, 1 Denio, 658, Beardsley, J., said:

"The rule is probably without exception, that no fees are allowed to any officer for traveling, in order to serve process, unless the service is actually made. I think the principle is entirely settled, and it is, moreover, one of sound policy. It excites to vigilance and fidelity, whereas the opposite rule would afford a strong temptation to remissness and fraud."

Certainly, the intent of the legislature, after having carefully stated that the sheriff shall receive mileage at a certain rate "in going only," when a warrant is executed, to allow mileage for traveling in different directions in looking for one charged with crime who is not arrested, should be very clearly expressed. But, as we have seen, the clause of the statute relied on will support another and equally plausible interpretation.

Judgment reversed.

(65 Cal. 263)

ROBINSON V. PLACERVILLE & S. V. R. Co. (No. 9,118.)

Filed May 20, 1884.

Evidence held sufficient to justify the findings.

If certain facts in an answer constitute a defense, it is no objection that other facts be stated, even though they do not constitute any cause of defense.

A plea of payment is sustained by evidence showing that the debt has been paid, satisfied, and discharged. A technical payment need not be proven.

A third person may buy in claims against a debtor for less than their face value, for the benefit of the debtor.

Where the result would have been the same if a finding had been in favor of a party, he cannot complain of failure to find on certain issues.

A plaintiff will not be permitted to dismiss his action after filing of an answer claiming affirmative relief.

Certain depositions held admissible.

In bank. Appeal from the superior court of the city and county of San Francisco.

The plaintiff in this action alleged that he was the owner of certain bonds of the defendant corporation, which bonds were secured by a mortgage of its property. He charged the trustees of the corporation with abandonment of their trust, and neglect of the interest of the bondholders, and prayed their removal and the appointment of new trustees. The defendant denied the validity of the bonds and mortgage, and alleged that after the execution thereof the defendant corporation executed and delivered to Wells, Fargo & Co. a promissory note secured by a deed of trust on its property; that L. L. Robinson, and not the plaintiff, was the owner of the bonds aforementioned, and that said L. L. Robinson, together with plaintiff and others, agreed with said Wells, Fargo & Co. that as the validity of the first bonds and mortgage had been questioned, the latter should foreclose their mortgage, purchase the road at foreclosure sale, form a new company, and pay to the bondholders their interest by shares of stock in the new company; that this agreement was consummated by one Alvord purchasing the road as trustee for the creditors of the company at the foreclosure sale, certificates of such stock in the new company were delivered to said Robinson for his interest, and defendant claims that the old bonds were thereon surrendered and canceled, and thereby paid, satisfied, and discharged. Thereafter the road was sold, and certain sums of money were paid in "further satisfaction and payment" of said bonds and coupons to said L. L. Robinson. Defendants further alleged that in consequence of the surrender of said bonds, and the acceptance of said sums of money as payments, the bonds were fully satisfied and discharged; and, further, that if the same were not canceled and discharged, then there was still in the hands of said L. L. Robinson the sums of money last mentioned; in which case defendant prayed that L. L. Robinson be made a party to this suit, and that an accounting be made of such moneys. In the

course of the proceedings the parties stipulated that certain depositions were regular and in proper form, and might "be read by either party" on the trial, etc. Plaintiff, on the trial, objected to the admission of certain of these depositions, claiming that such stipulation was only as to the form of such depositions. The trial court admitted them under the stipulation notwithstanding the objection.

Edward J. Pringle, for appellant.

Cope & Boyd, for respondent.

BY THE COURT. 1. It would seem to be the theory of plaintiff, the appellant, that the conveyance by Alvord transferred only the title acquired through the decretal sale based upon the foreclosure of the second mortgage; that is, the title of defendant subject only to the lien of the prior mortgage. Inasmuch as the original scheme fel! through, by reason of the failure effectively to organize a new corporation, it may, for the purposes of this decision, even be conceded that Wells, Fargo & Co., the second mortgagee, would have been entitled to receive the whole consideration for the conveyance of the Alvord title, except for the agreement with respect to its distribution entered into between Wells, Fargo & Co. and the agent of plaintiff. The testimony of plaintiff's brother is clear to the point that a large portion of the consideration for the Alvord title was paid to him, with the consent of Wells, Fargo & Co., to be by him appropriated in the proportions stated in the circular of Wells, Fargo & Co., to the payment and satisfaction of such of the currency bonds of defendant as should be surrendered for cancellation. A portion of the consideration was in fact paid to the witness on his promise to apply the same to the taking up of the currency bonds. Of the money so received the witness paid to plaintiff a sum at least equal to the percentage or proportion to be paid for the surrender of the bonds claimed by him. True, the witness testifies that in his opinion the agreement between himself and Wells, Fargo & Co. "was not binding on anybody," and that plaintiff refused to take the money for his bonds. But the witness and plaintiff, each in turn, took the money,-the latter with full knowledge of all the facts, and with notice that the agreement with Wells, Fargo & Co. was binding on the witness, because he received the money (having otherwise no claim to it) with the distinct understanding that it should be applied to the satisfaction of defendant's bonds. We think the court below was fully justified in reaching the conclusion, upon the testimony of plaintiff's brother alone, that plaintiff received the money for, and in consideration of, the surrender and cancellation of his bonds. But there was evidence not only that plaintiff, by his agent, receipted for bis proportionate number of shares of the new corporation, but that he actually surrendered his bonds to Wells, Fargo & Co. Further, that

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