the range of inquiry allowed to a court or judge in matters of judicial knowledge: Sec. 1,875, C. C. P.

If judge McFarland, without any information as to the testimony in the cause, passed on the motion, it would be an act highly arbitrary, and we have no reason to think that he did so act or would so act. We do not believe he would. But if he acted without information and denied a new trial, this is a strong reason why this court should struggle to furnish a remedy to the plaintiff.

But, in fact, the procedure as prescribed, is entirely independent of the personality of the judge who presided in the court. It is really the same court throughout, to which application is made, and which is exercising the powers entrusted to it, and administering the remedies to be sought in it. It would be strange if the remedy should stop short by the change of the judge who presides in the court, especially where this change occurs without fault of the party invoking its jurisdiction. The motion for a new trial is made to the court, and granted or refused by the court. It is the court's ruling, and not the ruling of the judge, to be passed on. It is not the decision of judge McFarland to be here passed on, but the ruling of the court, and action of the court which tried the cause. Who ever may have been judge, though there may have been several changes of the judicial incumbent, it is still the ruling of the court to be passed on. It should further be considered that the motion for a new trial is a means of getting the case to this court to be reviewed on appeal, and to review really what has been done by the actual trial court.

If the law has made no provision for settling the statement, then, by section 653, C. C. P., the power to direct in what manner this statement shall be settled is given to this court. The power may be exercised by order or rules of court, and as this statement has been settled by judge Denson, and no doubt properly settled as regards its contents (at any rate neither party asserts that it is not), this court would be authorized to accept it as properly settled, within the rule laid down in Pieper v. Centinella Land Co., 56 Cal., 174, followed in People v. Jordan, 4 W. C. Rep., 84; and as it had a right to order, and no doubt would have ordered it in advance, to be settled before judge Denson, as the most proper person to perform this duty, it is authorized after the statement has been settled by Denson, to accept it as properly settled. And for this reason, also, this court should consider the statement as part of the record, and proceed to hear the cause.

It is said as a reason why judge Denson should not have settled the statement, that the law prescribes that the statement shall only contain the grounds argued before the court for a new trial, and so much of the evidence or other matter as may be necessary to explain them, and it shall be the duty of the judge to exclude all other matter from the statement: Č. C. P., sec. 661.

Let this be conceded to be true, as it undoubtedly is, still it does not go to the power, and the proper judge having settled the state

ment, it is to be taken as properly settled. The judge settling the statement, no doubt informed himself as to all such matters. The power to settle, conferred by law, invested him with all means lawful, necessary and appropriate to its proper settlement. Further, it does not appear that any objection on this ground has been made or taken.

It may be urged that the judge who heard and tried the case, and he only, can pass on the motion for a new trial when made on the minutes of the court, for the reason that the minutes are the notes of such judge, and usually his memory of the testimony adduced on the trial; and this being so the statute does not provide for settling the statement in such a case. What is said before is an answer to this. Surely the question is, whether and to whom the power is given? If the legislature can confer the power (and we do not see how this can be successfully controverted), and has conferred it on the judge who heard and tried the cause, this is all that is required to dispose of the contention. If the power is not conferred on the judge above designated, and no provision of law specifically states who is to do this work, then, under section 661, C. C. P., this court can direct, by order or rule, by whom and how it shall be done; and as to the course this court should pursue herein, has already been pointed out.

The conclusion follows, from what has been said above, that Denson, who heard and tried the cause, and not McFarland, who denied the new trial, was the proper officer designated by law to settle the statement; that such statement is properly in the record, and is before us for consideration.

Turning now to the record; is any error apparent? We think there is. One of the grounds on which the motion was made is, that the decision is against law. There must be a finding in all the material issues in a cause. In the absence of findings on all such issues, the decision is against law. So held in Knight v. Roche, 56 Cal., 15, approved and followed (not cited), in Soto v. Irving, 60 Id., 428; see Brown v. Burbank, 59 Id., 538.

In our judgment, such issues are not passed on herein. The evidence of plaintiff, at least, tended to show that about the thirty-first day of January, 1877, he pledged to the defendant for money lent, the property alleged in the complaint to have been converted by him. This was contradicted by defendant, and it was a material issue whether the property was pledged or not. There is no finding on this issue. There is evidence tending to show that a sale had been made of the property alleged to have been pledged without the notice required by law. On this issue, which is material, there is no finding. Then, the decision being against law, the plaintiff is entitled to a new trial.

In our opinion the order should be reversed and the cause remanded for a new trial.

No.: 8,549.

BAILEY V. RICHARDSON ET AL.

Department One. Filed February 10, 1885.

COVENANTS RUNNING WITH LAND.-Covenant for the erection by the lessee of a building on the leased premises, and for payment therefor by the lessor at the expiration of the term of the appraised value thereof binds the assignee of the lessor.

SAME. This rule applies to an assignment taken by the lessor's lessor, the latter, the original lessor, having by his acts shown an intention to keep the estate distinct, thereby preventing a merger.

SAME. The court will enforce this rule as against the real assignee, the assignee in fact being but an instrument of the former.

NEW TRIAL-SURPRISE. -Being misled by the prayer is a legal surprise, but will not be ground for a new trial, if the party failed to relieve himself therefrom by asking a continuance.

APPEAL from an order of the superior court of the city and county of San Francisco, denying defendant's motion for a new trial. The facts appear from the opinion.

Geo. D. Shadburne, for the appellants.

Sawyer and Ball, for the respondents.

MCKINSTRY, J. The court below found: "That on the first day of September, 1868, the defendant Benjamin Richardson leased, by his written indenture of lease, South Beach and Water Block sixteen, of the city and county of San Francisco, to Henry F. Williams for a term of thirteen years. That said indenture of lease was by various mesne assignments vested in and belonged to Maurice Dore, who then entered into possession of said land, under said lease, and thereafter paid said Richardson rent, stipulated in said lease, up to May 1, 1879.

"On the second day of February, 1874, the said Maurice Dore leased to plaintiff and James Hartley, that part of block sixteen which is two hundred feet by one hundred and forty feet on the corner of King and Fifth streets, for the term of seven years, from January 1, 1874. That a copy of said lease is attached to the complaint as Exhibit A' of this action.

"That by the terms of said lease, of which 'Exhibit A' is a copy, the lessor, his heirs or assigns covenanted with the lessees, their heirs, assigns, that upon the expiration of said lease all buildings placed upon said premises last above described, and more particularly described in said lease, of which 'Exhibit A' is a copy, by said lessees, during the term of said lease, and which should be standing thereon at the expiration of said lease, should be appraised by appraisers to be appointed by said lessor and lessees, each of whom was to appoint one appraiser; and in case they could not agree, then the two appraisers should choose a third appraiser, and the report of a majority of said appraisers should be the appraised value of said building, and the lessor, his heirs, executors and assigns, covenanted to pay, within thirty days after said appraisement, to said lessees, their heirs, executors or assigns, two-thirds of said appraised value of said buildings.

"That after the execution of said lease, of which Exhibit A' is a copy, and during the year 1874 the said Bailey and Hartley, lessees, erected on the premises described in 'Exhibit A,' a fire-proof brick building covering the entire lot, at a cost of fourteen thousand two hundred and twenty-five dollars, which said building was on said lot at the expiration of said lease, 'Exhibit A,' is still there in good condition, and is now of the value of ten thousand dollars.

"That on or about November 9th, 1874, the said Hartley, sold, assigned and transferred to said Bailey, the plaintiff, all his interest in said lease, 'Exhibit A,' and said building.

"That on or about the first day of May, 1879, the defendant, Richardson, purchased of said Dore the lease described in the complaint, and the lease of which 'Exhibit A' is a copy, together with the property and estate created thereby, and paid said Dore for said leases and other sub leases about twelve thousand dollars, the purchase price thereof, and said defendant, Richardson, thereby became subrogated to all the rights, conditions, covenants and obligations of said Dore.

"That the defendant, Richardson, for the purpose of concealing the purchase of said lease, of which 'Exhibit A' is a copy, from said plaintiff, and defrauding him out of the two-thirds value of said building, took the assignment of said lease, as well as the assignment of all other leases affecting said premises, to one William P. Lean, who then was a policemen of said city and county, a man without any property, and a mere instrument of said Richardson. "That the said Richardson caused the said assignment of the lease of September 1st, 1868, to said Lean, to be recorded in the recorder's office of said city and county, about May 1st, 1879, and thereupon took a secret assignment to himself.

"That said Richardson concealed from said plaintiff the fact that he was the real owner of said leases, and he held out that said Lean was the real owner.

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That from and including May 1st, 1879, to the thirty-first day of December, 1880, the termination of said lease, 'Exhibit A,' said Bailey paid the monthly rent of said premises, occupied by him to said Richardson, and said Bailey kept all the covenants and conditions on his part.

That previous to December 31st, 1880, said Bailey notified said Richardson that he would, on said last named day at 3 o'clock P. M., surrender possession of said premises then occupied by him to said Richardson, and he did yield up and surrender said premises at said last named time.

"That on or about the fifth day of January, 1881, said Bailey notified said Richardson that he had appointed an appraiser in accordance with the provisions of lease Exhibit A,' to appraise the said building, and requested said Richardson to appoint an appraiser.

"That said Richardson neglected and refused to appoint an appraiser.

"That by such neglect and refusal aforesaid the plaintiff was prevented from obtaining an appraisement of said building.

"That defendant Lean did not on the first day of May, 1879, nor at any other time, procure an assignment to him of lease first mentioned in the complaint, or together with all the right, title and interest of Maurice Dore in or to the premises leased, but the said Richardson did procure said assignment to the said Lean, as hereinbefore stated, as a cover for the purposes herein before stated.

"That the defendant, Lean, never took or remained in posses sion of said premises described in said lease, or any part thereof, but the same was taken possession of December 31st, 1880, by said Richardson, who still remains in possession thereof.

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That said Lean did not remain in possession of said premises, or any part thereof, until February 23d, 1881, or at all, nor was he ejected therefrom under a writ of possession sued out in the case of Benjamin Richardson v. Wm. P. Lean.

"That such an action was instituted in the superior court of the city and county of San Francisco, and said lease declared forfeited, but the same was done for the sole purpose of concealing the aforesaid fraud between said Richardson and Lean.

"That said plaintiff, at the institution of this action and up to the time of the surrender of the said premises described in 'Exhibit A,' was the sole owner of said building on said premises, and the same has not been sold for taxes."

The findings determine issues made by the pleadings, and there was evidence to justify them.

It is contended by appellants that the assignment by Dore of the two leases and of his rights under them, if made at all, were made to Lean and not to Richardson. The complaint charges and the court below found that the assignment by Dore of the under-lease and of his rights as lessor, was made actually to defendant Richardson, but in form to defendant Lean-an irresponsible person-for the purpose of depriving plaintiff of the benefit of his covenant, and to avoid the payment by Richardson of the two-thirds of the value, etc. The evidence sustained the finding. The court-clothed with the jurisdiction of a court of equity-having found that Richardson was the real assignee, was empowered to proceed to a judgment in favor of plaintiff upon the covenant.

Treating Richardson as the assignee of Dore's reversion and of the under-lease, and of Dore's interests therein, there can be no doubt that the covenant (requiring payment of two-thirds of the value of any building, etc.) is binding upon him, since the assignment was made prior to the breach of the covenant, and the covenant was entered into by the parties to the under-lease "for themselves, their heirs, executors, administrators and assigns:" Spencer's case, 5 Rep., 16: Senette v. Anderson, 5 Cow., 407; Thompson v. Rose, 8 Id., 269; Coffin v. Talman, 8 N. Y., 465; 1 Wash. Real Prop., 331.; 2 Rob. Pr., 94; Taylor's L. and T., 260.