We think the rulings of the court upon the objections of the defendant were not erroneous. The witness was being cross-examined, and we think it was proper to ask him such questions as these, for the purpose of testing his competency as an expert. If he had testified that the hypothetical facts embraced in either question indicated insanity, we think the jury would have doubted his sanity. We think the defendant's counsel could not have relied upon those facts as tending to prove insanity. It seems to be well settled that experts of all classes may be asked as to an hypothetical case, and if the facts on which the hypothesis is based fall, the answer falls also.

One of the grounds upon which defendant based his motion for a new trial was newly-discovered evidence, which he could not with reasonable diligence have discovered and produced at the trial. At the hearing of the motion the defendant produced the affidavits of the witnesses by whom he expected such evidence to be given. To entitle a party to a new trial, on the ground of newly-discovered evidence, it must appear-"First, that the evidence, and not merely its materiality, be newly discovered; second, that the evidence is not cumulative merely; third, that it is such as to render a different result probable on a retrial of the cause; fourth, that the party could not with reasonable diligence have discovered and produced it at the trial; and, fifth, that these facts be shown by the best evidence which the case admits." 1 Hayne, New Trial & App. § 83. "Applications on this ground are addressed to the discretion of the court below, and the action of the court will not be disturbed, except for an abuse of discretion; the presumption being that the discretion was properly exercised." Id. § 87.

The affidavits produced in this case do not make it clear to our comprehension that the court below, in denying the motion for a new trial, abused its discretion. It is by no means clear that the defendant could not with reasonable diligence have discovered and produced the evidence claimed to be newly discovered at the trial, nor are we prepared to say that it is such as to render a different result probable on a retrial. Of that the court below was in a much better position to judge than we are. And this court has laid down the rule that applications on this ground are to be regarded with distrust and disfavor. Baker v. Joseph, 16 Cal. 180; O'Brien v. Brady, 23 Cal. 243; Jones v. Singleton, 45 Cal. 94; Bartlett v. Hogden, 3 Cal. 58; Hobler v. Cole, 49 Cal. 250; Arnold v. Skaggs, 35 Cal. 684. It not appearing to us that there was any abuse of discretion by the court below, we cannot disturb the order on that ground.

The statement in defendant's brief that "the court, in its instructions to the jury, assumed that the killing was admitted as proved," is not borne out by the record, as far as we can discover. All the instructions which defendant's counsel requested to be given were given. Judgment and order affirmed.

We concur: SEARLS, C. J.; MCFARLAND, J.; PATERSON, J.; MCKINSTRY, J.; TEMPLE, J.; THORNTON, J.

(73 Cal. 520)

MORGAN and another v. TILLOTSON and another. (No. 11,916.)

(Supreme Court of California. September 29, 1887.)

1. EJE TMENT-PLEADING-DENIAL OF PLAINTIFF'S TITLE.

In an action of ejectment, it is sufficient to deny the ownership and title to possession of plaintiff. Averments as to the ownership of plaintiff's grantors are immaterial, and need not be denied.

2. MINING CLAIMS-PLACER MINES-ANNUAL EXPENDITURE-RELOCATION.

A failure to comply with the provisions of Rev. St. U. S. 2324, which requires an annual expenditure of $100 by the locator of a placer mining claim, renders the claim subject to relocation.

Department 2. Appeal from superior court, Placer county; B. F. MYRES, Judge. C. A. & F. P. Tuttle, for appellants. Hall & Craig, for respondents.

THORNTON, J. Action of ejectment to recover mining ground constituting a placer claim. The question of title was put in issue by the answers. The material averment of plaintiffs' ownership and title to the possession was deThe averment in the complaint in relation to the ownership of plaintiffs' grantors and predecessors in interest was entirely immaterial, and need not have been denied. Coryell v. Cain, 16 Cal. 567.

nied.

The question whether the provision of the Revised Statutes of the United States (section 2324) which requires an annual expenditure of a certain amount for labor and materials on each mining claim until the patent is issued, a failure to comply with which provision renders the claim subject to relocation, we regard as settled in the affirmative by the case of Russell v. Brosseau, 65 Cal. 605, 4 Pac. Rep. 643, in this court; and Jackson v. Roby, 109 U. S. 440, 3 Sup. Ct. Rep. 301, in the supreme court of the United States. These cases show clearly that judgment should have been rendered for defendants on the evidence, the whole of which was comprised in an agreed statement of facts. Under such circumstances, we consider it unnecessary and unjust to put the defendants to the toil and expense of a new trial.

The judgment and order are therefore reversed, and the cause remanded to the court below, with directions to enter judgment for defendants for the land in controversy. Ordered accordingly.

BARNHART v. FULKERTH and another. (No. 11,849.)

(Supreme Court of California. September 30, 1887.)

1. PLEDGE-LEVY ON PROPERTY PLEDGED-PLEDGEE CANNOT SET UP TITLE ADVERSE TO PLEDGEOR.

A pledgee, in an action against a sheriff who has levied on the pledge as the the property of the pledgeor, cannot set up a title, adverse to the pledgeor, acquired subsequent to the levy of the execution.

2. SAME-TENDER TO PLEDGEE-WAIVER OF CONDITIONS.

A pledgee who admits the sufficiency, so far as the amount is concerned, of a tender of what is due him from the pledgeor, made by a sheriff in execution, thereby waives his right to object to a condition annexed that he surrender the note secured by, or the warehouse receipt for, the pledge.

Department 2. Appeal from superior court, San Joaquin county; J. G. SWINNERTON, Judge.

W. E. Turner, for appellant. J. H. Budd, for respondent.

THORNTON, J. This action was brought to recover possession of 4,255 bags of wheat, or their value, in case a delivery cannot be had, and for $2,000 damages, etc. The material allegations of the complaint were denied by the answer, and defendant Fulkerth justified under a levy on the wheat sued for, made by him as sheriff of the county of Stanislaus, of a writ of attachment issued in the action brought in the district court for the county just named by H. O. Matthews et al. against J. T. Davis, and further under a levy on the same property of a writ of execution issued upon a judgment recovered in the above-entitled action.

At the trial it appears that on or about the seventh day of November, 1878, the plaintiff lent Davis the sum of $2,500, and received the wheat in question in pledge as security for its repayment to him. These facts are established by uncontroverted evidence. At the time of this loan the wheat was stored in a

warehouse at Turlock. It had been stored at Turlock before plaintiff made the loan to Davis, having been placed there by Davis in the September preceding. For this wheat a receipt was given by the warehouseman, defendant Perley, of which the following is a copy:

"TURLOCK, CAL., September 16, 1878. "Received in good order and well-conditioned, from E. C. Vancel, five thousand and fifty-five (5,055) bags wheat, weighing six hundred and fifty-four thousand three hundred and eighty-nine pounds, (654,389 lbs.,) which I hereby agree to deliver in like order and condition, (the danger from fire excepted,) upon return of this receipt and payment of storage at the rate of 50 cents per ton for the first month, commencing August 26, 1878, and 25 cents per ton per month thereafter. Total storage not to exceed one dollar ($1) per ton for the season ending June 1, 1879.

"Stored in the grain warehouse at Turlock, known as Chas. Dallas' Warehouse.' GEORGE PERLEY." This receipt was delivered to the plaintiff by Davis on the seventh of November, 1878, with the following indorsements on it:

"To dispose of for me to the best advantage, I assign the within to John T. Davis. E. C. VANCEL." "NOVEMBER 5, 1878. Received on the within receipt 800 bags wheat; estimated weight, one hundred and four thousand pounds.

"J. T. DAVIS."

"I assign the within receipt to H. Barnhart to secure to him the payment of $2,500. J. T. DAVIS." The last indorsement of Davis was made at the time of the loan of $2,500. This pledge was a bailment by Davis to the plaintiff. Davis and the plaintiff sustained to each other the relation of pledgeor and pledgee. Plaintiff's transaction was with Davis only. He lent Davis the money, and took his note for it. When the money lent should be paid back by Davis, the plaintiff was bound to return him the wheat pledged.

It is contended on the part of plaintiff that this wheat was the property of one Vancel. Can the plaintiff be allowed to show this? It does not appear that any transactions took place between Vancel and plaintiff until after this action was commenced. Barnhart testified that he lent money to Vancel on this wheat and other property in April, 1879. This action was brought on the seventeenth of February, 1879. Barnhart must recover on his title as it was when the action was commenced. If Barnhart cannot call in aid the title of Vancel when the suit was commenced, it will not avail him to recover in this action. He may show that the money-$2,500-that he paid over to Davis in November, 1878, and for which Davis executed to him his note, was merely a loan to Vancel through Davis, as agent of the latter, and that Van'cel, and not Davis, was the pledgeor; that the transaction was one, not with Davis, but with Vancel through Davis as the agent of the former. If the loan was to Davis as principal, and the pledge was made by Davis on his individual account, and the wheat belonged to Vancel, and Barnhart had, before this action was brought, turned over the wheat to Vancel as owner, and received it back from him as his (Vancel's) custodian, he might have relied on Vancel's title. Palmtag v. Doutrick, 59 Cal. 154. Nor does it appear that Barnhart ever lent any money to Vancel until after he had brought suit. He and Davis both testify that the money was lent by the plaintiff to Davis, and that Davis pledged the wheat to him. The plaintiff received the wheat from Davis on a loan made to him, and to him only. It does not appear that Vancel's name was ever mentioned in the transaction at all. Vancel does not appear in the case until after the wheat had been attached by the plaintiffs in the suit of Matthews et al. v. Davis, and a tender, admitted by Barnhart to have been sufficient, of the amount due him by Davis, had been made to him, and refused. The interposition of Vancel as owner, by Barnhart,

Cal.]

WALDEN v. PURVIS.

seems to have been an afterthought resorted to to ward off and defeat the defense herein set up.

We are of opinion that Barnhart showed no right in this case to rely on His right to invoke the title of Vancel to defeat the defense relied on. such title did not arise until after he had begun his suit; and, inasmuch as he could only recover on the title which he had when his action was instituted, a right or title afterwards acquired could not be here available to him. Barnhart testified that he told Hewel (the agent of the sheriff to make the tender) that so far as the amount was concerned, and the sufficiency of the tender, he admitted it. Having made this admission, Barnhart should not be permitted afterwards to allege that the tender was not good by reason of the fact that Hewel said to him, when the tender was made, that he wanted Davis' note from him and the warehouse receipt. If the above should be construed as annexing conditions to the tender, Barnhart waived all right to object to them by admitting the sufficiency of the tender. Civil Code, § 1501.

We do not think that there should be a reversal because the court refused to permit a question to be put to the witness, Davis, on his cross-examination by counsel for defendants, whether, since the seventh or eighth of November, 1878, he had paid the loan of $2,500, or any part of it. We are not clear that it was allowable on cross-examination, and that the court erred in ruling it out for that reason. We are the less disposed to reverse, on account of this ruling, for the reason that the defendants might have made Davis their own witness as to the matter inquired about.

Having held that Barnhart was estopped, by reason of his relation to Davis, to avail himself of the title of Vancel, there is but slight necessity to pass on another point of estoppel urged by defendants, based on the statements made by Barnhart, prior to the levy of the attachment, to the attaching creditor (Matthews) and the sheriff, that the wheat was the property of Davis. We do not think this estoppel made out, for the reason that it does not appear that the levy was made in sole reliance upon the statements made by Barnhart.

We see no error in the court's refusing to sign the findings presented by counsel for defendants, for the reasons given in Miller v. Steen, 30 Cal. 402, and Porter v. Woodward, 57 Cal. 538.

It follows from the foregoing that the judgment and order denying a new trial must be reversed, and the cause remanded, that a new trial may be had. So ordered.

We concur:

(73 Cal. 518)

MCFARLAND, J.; SHARPSTEIN, J.

WALDEN v. PURVIS. (No. 11,957.)
(Supreme Court of California. September 29, 1887.)

EVIDENCE-ADMISSIONS OF DONOR-FRAUD IN GIFT.

In an action against a sheriff, for wrongfully taking cattle donated to plaintiff by his father, a statement alleged to have been made by the father after he had parted with the possession of the cattle is inadmissible, either to prove the fraudulent character of the gift, or for any other purpose.

Commissioners' decision. Department 2.

Appeal from superior court, Stanislaus county; WM. O. MINOR, Judge.
Wright & Hazen, for appellant. Schell & Bond, for respondent.

HAYNE, C. Action against the sheriff for taking 111 head of cattle, alleged to have been the property of the plaintiff, under attachment against plaintiff's father. The plaintiff claimed 80 of the cattle under a sale from his father. Whatever errors may have been committed by the court in admitting or re

jecting evidence in relation to these 80 cattle cannot be considered, because the court held the sale of those cattle to have been fraudulent and void, and so far as they are concerned the judgment was in favor of the appellant.

The balance of the cattle, viz., 31 head, were claimed by the plaintiff before the sale above mentioned. His account of these cattle is as follows: "I know the cattle in controversy. Part of them I bought from my father, and some were my original cattle; thirty or forty, or possibly fifty, head,-what I called my original stock; some of them I got from my father. Farmers would leave some cattle for ranch fees, and he would give them to me, and I also got some by taking the calves of stray cows on the ranch, or a cow would get drowned, or mired in the mud, and the calf was mine. Have had cattle for a number of years; some of them for ten years. Could not say how many I have had for one, nor how many for two, years. Owned them since they were calves. They range from one to seven or eight years."

This being the general position of the parties, the counsel for defendant then asked that the witness be allowed to state what Miner Walden [the father] said at that time while in possession of the cattle in controversy. The plaintiff objected to the testimony, and the court sustained the objection, and refused to allow the testimony; to which ruling the defendant then and there excepted." So far as "the cattle in controversy" included the 80 head, it makes no difference whether there was error or not; because, as above stated, the court held in appellant's favor that that sale was void. So far as it relates to the 31 head for which the plaintiff had judgment, the deciaration sought to be proven was a declaration of the donor after he had parted with the property, and was inadmissible either to prove fraud or otherwise. Cohn v. Mulford, 15 Cal. 52; Jones v. Morse, 36 Cal. 207.

The other points made do not, in our opinion, materially affect the judgment for the 31 head. We therefore advise that the judgment, and order denying a new trial, be affirmed.

We concur: BELCHER, C. C.; FOOTE, C.

BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are aflirmed.

PEOPLE ex rel. SEDGWICK v. SHEAR. (No. 10,000.)

(Supreme Court of California. September 24, 1887.)

1. OFFICE AND OFFICERS-REMOVAL.

Where the duration or time of holding an office is not prescribed by law or by the constitution, the appointing power may remove the incumbent of the office at its pleasure.

2. SAME.

California act of March 31, 1876, providing for the appointment of a superintendent for the house of correction of San Francisco by the board of supervisors, and "that said superintendent shall only be removed for just and sufficient legal cause after a fair and impartial investigation of his case by said supervisors," does not restrain or limit the power of removal to the manner indicated in the act, and the board of supervisors have power to remove the superintendent at their pleasure; following People v. Hill, 7 Cal. 97; Smith v. Brown, 59 Cal. 672.

In bank. Appeal from superior court, city and county of San Francisco; JOHN HUNT, Judge.

Action to try the title to the office of superintendent for the house of correction of the city and county of San Francisco, brought by the people, upon the relation of respondent, against the appellant. Appellant, Samuel Shear, on January 29, 1883, was appointed, by the board of supervisors of the city and county of San Francisco, superintendent for the house of correction of said city and county, under "An act to utilize the prison labor, and govern