There was sufficient evidence to sustain the finding.

The court then proceeded to find that the other deeds mentioned in the complaint were not made by Yorba by the direction of Francisco Palomares, and that the judgment in favor of plaintiff, and described in the complaint, never became a lien on the lands conveyed by Francisco Palomares to Yorba. The judgment in favor of plaintiff and against the said Francisco is alleged in the complaint to have been rendered October 28, 1879-more than three months after the deed to Yorba.

The findings above recited dispose of the case, and make it our duty to affirm the judgment and order, unless errors occurred at the trial, or a new trial ought to have been granted on the ground of newly discovered evidence.

It is contended by appellant, that the court erred in refusing to allow him to prove that the defendant Lugarda, after her husband's death, paid off all of his debts except that of the plaintiff. There was no offer to prove that this was done in pursuance of an acknowledgment of an obligation to pay them. The mere fact that she paid such debts would not tend to establish an obligation on the part of the said defendant to pay a debt due from her deceased husband to the plaintiff.

The court did not err in refusing to permit plaintiff to introduce declarations of Francisco, made after the assignment to Yorba of his interest in cattle held in partnership with Hutchinson, to the effect that the assignment was made to avoid payment of plaintiff's debt. Such declarations would not tend to prove the invalidity of his conveyance of lands to Yorba, because made after the execution of the conveyance: Page v. O'Neal, 12 Cal., 483; Cohn v. Mulford, 15 Id., 50; Spanagel v. Dellenger, 38 Id., 278; Hutchings v. Castle, 48 Id., 152; Bump. Fraud. Conv., 548. Nor was evidence of Palomares' declarations rendered relevant by the release to Hutchinson from Yorba, given after the cattle had been divided by Palomares and Hutchinson. The court did not abuse its discretion in refusing to allow the witness Hutchinson to be recalled after the cause had been continued for argument.

The evidence stated in the affidavits to be newly discovered is cumulative.

Judgment and order affirmed.

Ross, J., and MCKEE, J., concurred.

No. 10,980.

PEOPLE v. WASHINGTON.

Department One. Filed December 19, 1884.

CRIMINAL PROSECUTION INSTRUCTIONS-BILL OF EXCEPTIONS.-In the absence of a bill of exceptions the court is unable to say that the instructions given were prejudicial to the defendant, and the judgment, therefore, is affirmed.

APPEAL from a judgment of the superior court of the city and county of San Francisco, entered upon a verdict of conviction.

L. I. Mowry and J. F. Ellison, for the appellant.

Attorney General, for the respondent.

THE COURT. The counsel for the appellant in this case was granted several extensions of time within which to file a brief on behalf of his client, but has failed to do so. The last extension expired on the twenty-seventh of November. If he did not desire to file a brief, he should have so informed the court. An order will now be entered submitting the case for decision.

We have examined the record and find in it nothing demanding a reversal of the judgment which sentences defendant to life imprisonment under a conviction of murder in the first degree. The record contains no bill of exceptions, nor indeed anything assigning or suggesting an error. It does contain what purports to be the instructions given to the jury, but the evidence is not brought up, and we are unable to say that there was any error prejudicial to the defendant on the part of the court in relation to the instructions. Judgment affirmed.

No. 8,405.

OLD SAUCELITO LAND AND DRY DOCK Co. v. COMMERCIAL UNION ASSURANCE CO.

Department One. Filed December 19, 1884.

AGREEMENT FOR SUBMISSION TO ARBITRATION WHEN BINDING-LIQUIDATION OF DAMAGES. A general provision that all disputes which may arise in the execution of a contract shall be decided by arbitrators will not be allowed to deprive the courts of their jurisdiction. But the parties to a contract may fix on any mode they may think fit to liquidate damages, in their nature unliquidated, and in such case no recovery can be had until the prescribed methou has been pursued, or some valid excuse exists for not pursuing it.

THE SAME-FIRE INSURANCE-CONSTRUCTION OF ARBITRATION CLAUSE.-A policy of fire insurance was made subject to all the conditions and stipulations indorsed thereon, one of which was "that in case of difference of opinion as to the amount of loss or damage, such difference shall be submitted to the judgment of two disinterested and competent men

whose award shall be conclusive and binding on both parties;" held, that the submission to arbitration or a fair effort on the part of the insured to obtain it, was a condition Precedent to his right to bring an action to recover his loss, where the amount thereof was in dispute between him and the insurer.

APPEAL from a judgment of the superior court of the city and County of San Francisco, entered in favor of the defendant, and from an order denying the plaintiff a new trial. The opinion states the facts.

P. G. Galpin, for the appellant.

T. C. Van Ness, for the respondent.

MCKINSTRY, J. The defendant, an English Insurance Company, insured plaintiff upon a certain building in Marin county, in a sum not to exceed one thousand five hundred dollars, and received the premium. The building was destroyed by fire.

The policy of insurance provided: "The capital stock and fund of the company shall be subject and liable to pay to said insured, his, or her, or their executors and administrators, all the damage and loss which the insured shall suffer by fire on the property hereinbefore mentioned, not exceeding, on each item respectively, the sum herein before declared to be insured thereon, and not exceeding the whole sum of fifteen hundred dollars, United States gold coin, but subject always to the conditions and stipulations indorsed hereon, and which constitute the basis of this insurance.'

Among the conditions and stipulations indorsed were the following:

"VIII. That persons insured by this company sustaining any loss or damage by fire, shall forthwith give notice of such loss, and shall, within a reasonable time, render an accurate and particular account of their loss or damage respectively, as the nature and cir cumstances of their respective cases will admit; such account of loss to have reference to the value of the property destroyed or damaged, immediately before such fire, and shall verify the same by solemn declaration or affirmation, before a justice of the peace, and shall produce such other evidence as the directors or their agent may reasonably require; and until such declaration or affirmation, account and evidence are produced, the amount of such loss or any part thereof, shall not be payable or recoverable. And if there appear any fraud or false declaration, or that the fire shall have happened by the procurement or willful act, means or connivance of the insured or claimants, he, she or they shall be excluded from all benefit under this policy.

"IX. That, in every case of loss or damage for which the said company shall be liable, the same, on being duly proved, and the accounts adjusted, shall either be paid immediately, or the company shall have the option, where the insurance may be on goods, to supply the insured with the like quantity of goods of the same sort and kind, and of equal value and goodness with those destroyed or damaged by fire; or where the insurance may be on houses and buildings, the said company shall have the option, with all convenient speed, to rebuild, or repair, and re-instate the same, and put them into as good and substantial condition as they were in at the time when such fire happened.

"X. That, in case of difference of opinion as to the amount of loss or damage, such difference shall be submitted to the judgment of two disinterested and competent men, mutually chosen, (who, in

T

case of disagreement shall select a third) whose award shall be conclusive and binding on the parties."

The plaintiff, in its complaint, after stating facts showing that a difference arose as the amount of loss, adds:

"That the plaintiff thereupon and on request of defendant, chose one S. M. Hill, and the defendant chose one A. A. Snyder, to whose judgment the plaintiff and defendant mutually submitted all differences of opinion between the plaintiff and defendant, resulting from or growing out of said loss, and all difference of opinion as to the amount of said loss, and said plaintiff notified said Hill to arbitrate said amount of loss. That said Hill and Snyder met to arbitrate said amount, but failed to agree upon the amount of said loss or any amount as due from defendant to plaintiff by reason of said loss, and failed to adjudicate upon any differences between plaintiff and defendant growing out of said loss -and failed to select a third person as provided in section X of the conditions, annexed to the policy of insurance, to assist in determining said amount, and failed to make any award; and thereupon said plaintiff, after waiting a reasonable time, withdrew from said arbitration and notified the defendant that it had so withdrawn, prior to the commencement of this action, and no award has ever been made." The answer denies these averments.

The court below found. "That no arbitrators were appointed or mutually chosen by the parties to this action to appraise, at its true cash value, or at all, the amount of loss or damage, and that the difference of opinion between plaintiff and defendant had not been. submitted, as required by the tenth condition of the policy. That the plaintiff had at no time offered to submit such difference of opinion to arbitration, or take any steps to procure arbitration or award, and that the failure to submit such difference of opinion to arbitration, was in no manner the fault or result of any action suffered or taken by defendant, but, that, on the contrary, defendant had always been willing to submit such difference, etc.

The finding passed upon the issue. The complaint does not allege that plaintiff offered to submit, etc., and that defendant refused, but on the contrary, that the parties did select arbitrators. If, however, the averments could be construed as averments that plaintiff had sought to have the matter, as to amount of loss, submitted, the court found that plaintiff at no time offered to submit it, or took any steps to procure such submission, etc.

The evidence justified the findings of the court.

The appellant contends:

First-The agreement to submit the difference of opinion as to the amount of loss or damage to the judgment of two disinterested men, etc., whose award should be conclusive and binding (in the absence of an agreement that the arbitrators shall be the exclusive and only tribunal to which the parties will appeal) does not debar the aggrieved party from appealing to the courts.

Second-The promise of defendant being to pay damages incurred by fire-not an award-its contract is broken by its failure to pay such damages.

It is well settled that a general provision that all disputes, which may arise in the execution of a contract, shall be decided by arbitrators, will not be allowed to deprive the courts of their jurisdiction. But the parties to a contract may fix on any mode they think fit to liquidate damages, in their own nature unliquidated, and, in such case, no recovery can be had until the prescribed method has been pursued, or some valid excuse exists for not pursuing it. In the case now here if the parties made the submission to arbitration a condition precedent to the right to bring an action on the policy, the judgment should be affirmed.

In Elliott v. Royal Exchange Insurance Company, 2 Excheq. L. R., 241, the form of the policy was a covenant by the defendants that their capital stock, etc., should be subject to make good the plaintiff's loss, not exceeding two thousand two hundred pounds sterling, "according to the exact tenor of the articles hereunto subjoined. One of the articles subjoined was. "All persons assured by this corporation are, upon any loss or damage by fire, forthwith to give notice thereof to the office in London, or to the known agents of the said corporation, and within fifteen days after such fire, deliver as particular an account of their loss or damage as the nature of the case may admit, and make proof of the same by their oath or affirmation, and that of their domestics or servants, and by their books of accounts, or such other proper vouchers as may be required; which loss or damage, after the same shall be adjusted, shall immediately be paid in money by the said corporation without any deduction; or they shall at their option forthwith provide or supply the assured with the like quantity and quality of goods with those burnt or damaged by fire; or at the expiration of sixty days after notice of the said fire, they shall expend in rebuilding or repairing any building damaged or destroyed by fire the sum assured thereon, under the direction of able and experienced workmen, if the loss and damage shall, in their opinion, amount thereto. case any difference shall arise touching any loss or damage, such difference shall be submitted to the judgment and determination of arbitrators indifferently chosen, whose award in writing shall be conclusive and binding on all parties; but if there shall appear any fraud or false swearing, the claimant shall forfeit all benefit of claim."

In that case it was urged by counsel, as is contended here, that the provision as to arbitration was no bar to the action, but at mos a collateral covenant, on which, if broken, suit could be brought It was admitted that that question in such cases- -as held in Scott v Avery, 5 H. L. C., 811, and Horton v. Sayer, 4 H. & N., 643-i whether the provision is a condition precedent to the right of pay ment, or is only a collateral covenant. The court held that resor must be had to the mode of adjustment by arbitration before sui