the executor and his allowance of it, within four years after a right of action accrued on it. The holder of the claim could not have maintained an action on it until after it had been presented to the executor: Id., 1,500. And as the executor allowed it within ten days after its presentation to him, no action could be maintained on it until ten days after its presentation to the judge, unless he rejected it within that period. So that the action on the claim was staid by statutory prohibition from the date of its presentation to the executor to that of its rejection by the judge, and the intervening time, "is not part of the time limited for the commencement of the action:" Id., 356. Excluding that time from the computation, the action was commenced within four years after a right of action accrued on the claim; and the demurrer ought not to have been sustained, on the ground that the right of action set out in the complaint was barred by section 337, code of civil procedure. And if not barred by the statute, we think the right of action cannot be held to b lost by reason of the negligence of the plaintiffs in the prosecution of the claim on which the action is founded. We think in the title of the action it appears quite as clearly as in the body of the complaint, that the defendant is sued as executor of the estate of Anna McDonald, deceased. It appears by the complaint that after the allowance of the claim by the executor, he offered to present it to the judge for allowance, and that the offer was accepted by the plaintiffs, and in the language of the complaint: "That said claim was accordingly then and there intrusted to said McDonald, who failed and neglected to file the same, and who, as plaintiffs believe, either lost or destroyed it. That it cannot now, after the utmost endeavor, be found. That plaintiffs have searched the files of said probate court for said claim, have interrogated the said McDonald as to its whereabouts, and have been unable to find it;" and that a copy of said lost claim, verified by the oaths of Barnes and Nally, plaintiffs, with a copy of the allowance thereof by the executor, was duly presented to the judge of the superior court, and by him rejected. In addition to the ground that the claim when presented to the judge was barred by sections 337 and 1,499, code of civil procedure, which we have already considered, it is urged that the judge could not allow the claim because it purported to be a copy of the claim on which the executor had indorsed his allowance. The demurrer, of course, admits that the papers presented to the judge were true copies of originals which had been lost or destroyed. That being so, we think the judge was bound to treat them the same as if they had been the originals. Section 1,496, code of civil procedure, in our opinion, has no bearing upon this question. Judgment reversed and cause remanded, with directions to the court below to overrule the demurrer to the complaint, with leave to the defendant to answer within ten days after being notified thereof. THORNTON, J., and MYRICK, J., concurred. LARCENY POSSESSION OF PROPERTY RECENTLY STOLEN.-The possession by the defendant of any part of property recently stolen, unless satisfactorily explained, is not of itself suffi cient to justify a conviction for larceny, but is a circumstance to be considered, in connection with other suspicious facts, in determining the defendant's guilt or innocence. APPEAL from a judgment of the superior court of the city and county of San Francisco, entered upon a verdict convicting the defendant of larceny, and from an order denying him a new trial. The opinion states the facts. C. B. Darwin, for the appellant. Attorney General, for the respondent. THE COURT. The court in effect charged the jury that if the property which the defendants were charged with having stolen was found in their possession, soon after it was stolen, it was a circumstance tending to show their guilt, and that they were bound to explain the possession in order to remove the effect of it, and that such possession was a circumstance to be considered in connection with other suspicious facts and circumstances which might have been shown in the case; and that if.the jury found that a part of the property was found in the possession of the defendants, and that they had failed to explain to the entire satisfaction of the jury how the defendants became possessed of it, that might be taken into consideration with all the other facts and circumstances as tending to show their guilt. And if the jury believed that the property described in the indictment was stolen, and that a part of it was afterwards found in the possession of the defendants, the jury were authorized to presume that all the property which they found to have been stolen was taken at the same time and place as that part which was found in the possession of the defendants. We think the jury must have understood the court to mean, that if the defendants were found in possession of any part of the property described in the indictment, soon after such property was stolen, such possession, unless satisfactorily explained, was a circumstance to be considered in connection with other suspicious facts, in determining their guilt or innocence. The charge, taken as a whole, would not, we think, convey to the jury the idea that the possession of stolen goods, unexplained, would, of itself, be sufficient to justify a conviction. If the jury were satisfied that the defendants stole so much of the stolen property as was found in in their possession, then the jury might presume that all the property stolen at the same time and place, was stolen by the defendants, unless there was some fact or circumstance tending to show that it was not. The defendants did not request the court to further instruct the jury on these questions, or as to the rules applicable to circum stantial evidence. In the absence of such a request, we think the failure to further instruct the jury does not constitute an error for which the judgment should be reversed. As we construe the charge it is not substantially erroneous. Judgment and order affirmed. No. 8,198. CARLSON ET AL. v. MUTUAL RELIEF ASSOCIATION. Department Two. Filed March 23, 1885. WHERE THE EVIDENCE IS SUBSTANTIALLY CONFLICTING on a material issue, the finding of the jury thereon will not be disturbed. IF A VERDICT IS JUSTIFIED BY THE EVIDENCE it is not against law. ERRORS IN THE ADMISSION OF EVIDENCE, not affecting the substantial rights of the defeated party, will not warrant a reversal. APPEAL from a judgment of the superior court of Mendocino county, entered in favor of the plaintiffs, and from an order denying the defendant a new trial. The opinion states the facts. E. S. Lippitt, for the appellant. T. L. Carothers, for the respondents. SHARPSTEIN, J. Two of the grounds of the motion for a new trial in this case are, that the evidence is insufficient to sustain the verdict, and that it is against law. The action was brought by the heirs of Elizabeth Carlson, deceased, to recover the sum which it is alleged the defendant agreed to pay on the death of the said Elizabeth Carlson to her heirs. The plaintiffs' right to recover depends on deceased being a member of the defendant association at the time of her death. If previous to her death she paid all the assessments of which she had notice, then she was a member when she died. That was a question, and the only question, which the jury had to determine. And if there was any substantial conflict in the evidence on it, this court will not disturb the order denying the motion for a new trial. The by-laws of the defendant provide that a member shall have twenty days within which to pay an assessment, after notice of it; and if he do not pay within that time, he may retain his membership by paying one dollar and twenty-five cents within the next twenty days. But if nothing be paid within forty days after the first notice, the person so in default ceases to be a member. Defendant's rules require all notices to be delivered to a member or sent by mail. In this case it is not claimed that any notice was delivered. The insistance is, that the notices to which the deceased was entitled were sent by mail. Defendant's secretary testified that his assistant, Mr. Gilbert, did the mailing. The latter, on his direct examination, stated that he duly mailed the notices to which deceased was entitled. But on being asked, on his cross-examina tion, if he could testify that he actually mailed any notices to Mrs. Carlson, the deceased, he answered, "No, I cannot." He further stated that he had no means of knowing whether the notices were received by the parties to whom sent. The surviving husband of the deceased did not testify as clearly, as we think he might have done, in regard to the receipt of notices of assessments, but he certainly denied that notices of the unpaid assessments were received in the lifetime of the deceased. The defendant claims that the notices were duly mailed. It was incumbent on it to prove that they were, and the only person who was introduced to prove that fact, said he could not testify to it. It is too plain to admit of argument that this court, on evidence of such a character, cannot hold that the jury were bound to find that notices of the unpaid assessments were duly mailed to the deceased in her lifetime; a fortiori that the court erred in denying the motion for a new trial on the ground of insufficiency of the evidence to justify the verdict. If the verdict was justified by the evidence it was not against law. The notice sent out for Mrs. Carlson after her death, and the forwarding of money to the defendant by the husband thereafter were immaterial circumstances, and the admission of evidence to prove them could not, we think, under the charge and instructions of the court, have prejudiced the defendant. And as we cannot see that the error, if such it was, could possibly have affected the substantial rights of the parties, it is the duty of the court to disregard it. Judgment and order affirmed. MYRICK, J., and THORNTON, J., concurred. [END OF VOLUME V.] INDEX. ABANDONMENT. See MINES AND MINING, 11. ABATEMENT. 1. PLEA IN ABATEMENT JUDGMENT, AFTER TRIAL OF ISSUE ON-UNLIQIDATED DAMA- Saxton. See ESTATES OF DECEASED PERSONS, 15, 16. ACCOMPLICE. See CRIMINAL LAW AND PRACTICE, 11. ACCOUNT. 1. ACTION ON ACCOUNT-COMPLAINT ITEMS NEED NOT BE ALLEGED.—In an action for 2. ACCOUNT STATED-EVIDENCE TO IMPEACH ACCOUNT WHEN INADMISSIBLE.-In an 3. THE SAME ASSIGNEE OF BANK PASS-BOOK CANNOT DISPUTE ACCOUNT STATED.- 4. ACCOUNT-FORM OF VERIFICATION-OBJECTION WHEN WAIVED.-A technical ob- 5. ACTION FOR DEPOSIT IN BANK-EVIDENCE SHOWING MISTAKE.--In an action against 6. AN ACCOUNT STATED MAY BE IMPEACHED FOR FRAUD OR MISTAKE.--In such case See ASSIGNMENT, 5; EXECUTORS AND ADMINISTRATORS, 3. |