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A STATEMENT OF THE CASE.

T. Jeff. White died April 12, 1876, in Los Angeles, aged 27, leaving a will, dated March 10, 1877, which gives an undivided half of all his property to his ir fant son, T. Jeff. White, Jr., and to Katie M. Bachman the other undivideo. half of all, and appoints her sole guardian of the person and estate of the infant son, and Executrix of the will without giving bond. This will was duly probated and she qualified.

On July 7, 1877, Virginia R. Green was appointed guardian by the Court. The estate was found to be indebted over $6,000, while many of its assets proved to be of small value, so that the personal property would not pay t debts, requiring real estate to be sold for that purpose. Hence, V. R. Green, as guardian, asks for a bond from Katie M. Bachman, and the Court orders a bond for $8,000, with two sureties, and on August 13, 1877, revoked her letters festimentary. From this she appeals on September 18, 1877. She had approved claims against the estate amounting to $1,626.50 and rejected $5,687.71.

Hertman & Haley and A. J. King, attorneys for appellant.

Thompson & Ellis, attorneys for Virginia R. Green.

OPINION BY THE COURT.

Section 1396 of the Code of Civil Procedure provides that when letters have been issued without bond, a bond may nevertheless be subsequently required, when it appears from any cause necessary or proper.

Section 1401 provides that a sworn petition may be presented setting forth waste by the executor and praying that he be required to give bond, and that, when such petition is filec, the power of the executor may be suspended until the matter can be heard and determined. This section in no way con licts with section 1396, which gives the Probate Court the general power to require a bond in proper cases. Crder affirmed.

[No. 5578.]
[Filed April 4, 1878.]

WETZLAR vs. FITCH.

On appeal from the 14th District Court, Placer county. PROBATE COURT--JURISDICTION OF. Has no jurisdiction to receive or act in any way upon an account presented by an Executor of the estate of a deceased Executor of another estate which account was unsettled at the time of his death. (Bush vs. Linsev, 44 Cal., 121.)

STATEMENT OF FACTS.

The petitioner, Julius Wetzlar, was the survivor of three Executors of the estate of John C. Keenan, deceased. Keenan had been the Executor of the

estate of his deceased wife, Rosanna H. Keenan, who left a will, and a minor heir, Geo. B. Keenan. When John C. Keenan died, his wife's estate was unsettled, and no account had been rendered, but he had expended $5,565.80, in legacies, maintainance and education of the son, taxes, repairs, and iusurance, and interest on money borrowed and used for the estate. He left a will, which was admitted to probate, and his estate is still in probate and unsettled.

On December 29, 1876, plaintiff Wetzlar, filed the accouut of John C. Keenan in Probate Court against the estate of R. H. Keenan, for $9,481.93, with vouchers. The Court denied the motion for a hearing, and plaintiff obtained a writ of mandate from the 14th District Court to compel a hearing. From this order, the Probate Judge, J. Ives Fitch, appeals to the Supreme Court, claiming that the District Court has no jurisdiction, as the Probate Court is not "an inferior Court," and that there is no law requiring a Probate Judge to give hearing to the account of a deceased Executor, and that Wetzlar should have presented his account to the new Administrator of the R. H. Keenan estate, and finally that this order would give the District Court Appellate power. George Cadwalader, attorney for petitioner and respondent.

Hale & Craig, J. M. Fulweiler, and Du Brutz & Dickinson, for defendant and appellant.

OPINION BY THE COURT.

The Probate Court had no jurisdiction to receive, or in any way to act upon the account presented by the petitioner as executor of John C. Keenan, deceased (Bush vs. Linsey, 44 Cal., 121).

It is not necessary to decide whether the Probate Court is an "inferior tribunal" to which mandate may issue out of the District Court.

Judgment reversed and cause remanded with directions to dismiss the action and proceedings.

[No. 5671.]

[Filed April 3, 1878.]

BILLINGS vs. DREW.

On appeal from the Sixth District Court, Sacramento Co. INSTRUCTIONS TO JURY-WHEN ERRONEOUS.-Parties to an action have a

right to both affirmative and negative pleadings; and instructions must not be given by the Court to find a verdict based on the one that will deprive the party of any benefit contained in the other.

SAME-Affirmative or negative matter, separately pleaded, does not operate as a waiver or withdrawal of other portions of the pleadings. (Buhue vs. Corbett, 43 Cal. R., 264.)

STATEMENT OF FACTS.

The defendant, M. M. Drew-as Sheriff-seized, by attachment, in behalf of E. M. Skaggs, certain saloon property in possession of, and apparently owned

by one A. S. Woods. The plaintiff, E. L. Billings, held a bill of sale from Woods for the property (though Woods continued in its possession and use up to time of the seizure), and brought action to recover value and damages. Defendant denied his ownership and possession, and set up that the sale by Woods to plaintiff was fraudulent and for the purpose of delaying and hindering creditors of Woods from obtaining their just debts and particularly E. M. Skaggs. Upon instructions from the Court, the jury gave a verdict for the plaintiff, and the Court denied a new trial and entered judgment. Defendants appealed. A. C. Freeman and P. Dunlap, attorneys for defendants and appellants. J. W. Armstrong and Add C. Hinkson, for plaintiffs and respondents. OPINION BY THE COURT.

The answer of the defendant contained several denials and one averment of new matter relied upon as a defense. The denials were : First-That plaintiff was owner of the personal property mentioned in the complaint. Second-That the plaintiff had, at any time, the possession of said personal property. Third-That the defendants took the property from the possession of the plaintiff. The new matter set up in the answer was to the effect that the property was the property of Woods, and that it was taken by the defendant Drew as Sheriff, by virtue of a writ of attachment issued against Woods at the suit of the defendant Skaggs, and in this connection, and as part of the affirmative defense, it is alleged that the plaintiff claims the property "under and by virtue of a pretended purchase thereof from the said A. Š. Woods, and that said pretended sale of said goods and chattels by the said Woods to plaintiff, if made at all, was made fraudulently and for the purpose of hindering and delaying creditors of the said A. S. Woods in collecting their just debts, and particularly," etc.

In this condition of the pleadings the Court below, at the instance of the plaintiff, gave the jury the following instruction :

"The defendants in their answer seek to justify the taking of the property under an attachment issued out of this Court on the 24th day of October, 1876, in an action in which the defendant E. M. Skaggs was plaintiff, and A. S. Woods and John N. Larkin were defendants, which the defendants allege was levied upon the property by the defendant Drew, as Sheriff, as the property of A. S. Woods, and they allege that Billings, the plaintiff, claims to be the owner of said property under and by virtue of a purchase thereof from A. S. Woods, and that the sale by Woods to the plaintiff was made fraudulently for the purpose of hindering and delaying the creditors of said Woods in collecting their just debts, and particularly

the defendant E. M. Skaggs. By these averments the defendants admit that there was a sale of the property by Woods to the plaintiff, which was a valid sale as between Woods and the plaintiff, and as the defendants seek to avoid the sale on the grounds that it was made for the fraudulent purpose of hindering and delaying the creditors of said Woods, the burden of proof is upon the defendant to show affirmatively by a preponderance of evidence that said sale was made by Woods for the fraudulent purpose of hindering and delaying his creditors or the defendant E. M. Skaggs out of his debt; and if the evidence in this case fails to show that said sale was made by Woods to the plaintiff for the purpose of hindering or delaying the creditors of said Woods, you will find a verdict for the plaintiff."

This instruction was erroneous, in that it deprived the defendants of the benefit of the denials contained in their answer. They had the right to set up negative as well as affirmative defenses to the action, and the affirmative matter, separately pleaded, did not operate as a waiver or withdrawal of the denials contained in other portions of the answer. (Buhne vs. Corbett, 43 Cal. R., 246.)

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

[No. 5299.]

[Filed March 14, 1878.]

GREEN vs. CAMPBELL.

FACTORS WHEN THEIR CONTRACTS BIND THE OWNER.-Contracts made by third parties with a factor in respect to the property, without knowledge on the part of said party that said factor is not the real owner, will be binding upon the owner. A factor has ostensible authority to deal with the property as his own in transactions with persons not having notice of the real ownership.

STATEMENT OF FACTS.

Green, the respondent, forwarded from Yolo county, certain wheat consigned to E. E. Morgan's Sons, shipping and commission merchants, doing business at San Francisco, to be forwarded to a European port by said Morgans Sons and there sold by them for account of respondent. The said Morgans' Sons had previously been largely engaged in buying, selling, and shipping wheat to Europe on their own account. Morgans' Sons shipped the aforesaid wheat belonging to Green in their own name, on board of the appellant Campbell's ves

sel, to be sent to Europe in accordance with the terms of a charter party. Morgans' Sons became insolvent, and Green claimed delivery of his wheat from Campbell, without making tender of freight and charges. Campbell filed an amended answer, setting up that the wheat "was shipped by Morgans' Sons, merchants and factors as aforesaid, in their own name and the usual course of trade, without knowledge or notice on the part of this defendant, of the alleged ownership thereof, by said plaintiff or of the ownership thereof by said plaintiff or of the ownership thereof by any person, or persons, other than said Morgans' Sons." A demurrer to this amended answer was sustained, and Campbell appealed.

McKune & Welty, attorneys for plaintiff and respondent. Milton Andros and Chas. Page, for defendant and appellant.

OPINION BY THE COURT,

The amended answer of Campbell to which a demurrer was sustained set up that the wheat "was shipped by E. E. Morgans' Sons, merchants and factors, as aforesaid, in the usual course of trade, without knowledge or notice on the part of this defendant of the alleged ownership thereof by said plaintiff, or of the ownership thereof by any person other than said E. E. Morgans' Sons."

The demurrer should have been overruled, for under the provisions of the Civil Code (§ 2369) Morgans' Sons, factors of the plaintiff, had ostensible authority to deal with the property as their own in transactions with persons not having notice of the actual ownership.'

In this respect the case differs from that of Green vs. Meyer just decided.

Judgment reversed and cause remanded for a new trial.

Supreme Court Unwritten Opinions.

THE case of the Farmers' Storage and Commission Company vs. De Lappe is an appeal from a judgment of the District Court of Colusa County to the Supreme Court. The defendant contracted to sell his wheat crop in the field to one Howell Davis, and to deliver the same to his order at plaintiff's warehouse. Defendant delivered the wheat as per agreement in loads, taking cards for each, showing the number of

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