of cohabitation and repute which tends to show | peared that defendant had, after this cohabitaa marriage between the parties. Such cohabitation and repute "is a mode," as said by Lord Westbury in Campbell v. Campbell, supra, "of making inanifest to the world that tacit consent which the law will infer to have been a ready interchanged." L. R. 1 H. L. Sc. 211. The repute, which was nearly all one way prior to 1858, afterwards underwent a change. We think the evidence tends to show that the parties bad agreed to stand in the relation of husband and wife. The defendant treated the plaintiff as his wife. If he did not in so many words formally introduce the plaintiff to bis father and mother and sister as his wife, his conduct convinced them that she was his wife; and, according to the testimony of the sister (Mrs. Kimball), she and the father and mother of defendant received plaintiff and treated her as defendant's wife. They did not go much into society, but in the contracted circle into which they went they were regarded and treated as husband and wife. This treatment was induced by the conduct of defendant and plaintiff. We do not think that the law requires the formal introduction by the husband of the woman as his wife to each member of the social circle into which they go, but that his conduct should justify her reception in such circle as his wife. The defendant's styling the plaintiff "the madam," might well induce persons to whom he so introduced her, or to whom he thus spoke of her, to believe that she was his wife. He admits that he did introduce her as his wife, and this is evidence that be sometimes spoke of her as his wife. He explains the introduction of her as his wife as a mode of shielding his children, but such mental reservation cannot be considered of much weight. The credit to be given to such reservation, aud the weight and value of the testimony, are matters for the consideration and de'ermination of the court below. That tribunal weighed the testimony, and found a marriage; and there is not such a lack of testimony here as will authorize this court to say that the evidence was insuflicient to justify the conclusion of the trial

court.

But it is urged that, inasmuch as the divorce is sought here on the ground of adultery, that a marriage cannot be proved by cohabitation and repute; and, to sustain this, two cases are referred to, decided in this court: Case v. Case, 17 Cal. 600, and People v. Anderson, 26 Cal. 133. In the latter case, which was an indictment for murder, a witness was called for the people, whose competency was challenged by the defendant on the ground that she was his wife, and an attempt was made to show that such was the relation of the witness to the defendant by cohabitation and repute. The court, per Sanderson, Ch. J., said that the gen eral rule is that such evidence was admissible (citing several authorities to sustain this prop. osition), and then adds. “Actions of crim. con., divorce, indictments for bigamy and like cases, where the marriage is the foundation of the claim to be enforced, or the crime to be punished, are exceptions to this rule." 26 Cal. 134. Case v. Case was an action for divorce on the ground of adhery. The only evidence of marriage between the parties to the action was that of cohabitation and reputation. It ap

tiou, married another person. The evidence of cohabitation and reputation was objected to, and this court held it inadmissible. The court, per Cope, J., said: "We think that, under the circumstances, an actual marriage should have been proved. The general rule that in actions of this nature the marriage may be inferred from the cohabitation of the parties, we do not understand to be applicable. We cannot indulge this inference without presuming that the defendant has been guilty of the crime of bigamy; and the fact that it involves such a presumption is sufficient to repel it. In the absence of criminative proof, it is never to be supposed, as a matter of legal presumption, that a person has violated the criminal law; and the presumption in favor of innocence, says a learned writer, is not confined to proceedings instituted with a view of punishing the supposed offense, but holds in all civil suits where it comes collaterally in ques ion." The learned justice then proceeds to quote two extracts from Bishop on Marriage and Divorce, and refers to Rex v. Trying, 2 Barn. & Ald. 386, and Clayton v. Wardell, 4 N. Y. 230. The cases cited sustain the decision of the court in ase v. Case. But it will be observed that in both cases there had been an actual marriage, by which, if there was a prior actual marriage, the party would have been guilty of a violation of the criminal law from having commit ted the offense of bigamy. Case v. Case and the two cases go no further than what is just above pointed out, and they proceed on the ground that where a presumption of marriage is met by the presumption of innocence, which the defendant, on his trial for bigamy, has a right to make, the weaker presumption gives way to the stronger, which is the presumption of innocence. This question is considered and passed on in a criminal action in People v. Feilen, 58 Cal. 218, and is thoroughly discussed in Jones v. Jones, 45 Md. 157, 158, 48 Md. 397, 398 et s q. In every case above referred to, the strife was between two marriages; the antecedent marriage being one attempted to be made out by the presumption or inference from cohabitation and repute, and the other an actual marriage. See Taylor v. Taylor, 1 Lee, Eccl. 571, 5 Eng. Eccl. Rep. 454; Rex v. Troyning, 2 Barn. & Ald. 386; Poultney v. Fair haven, Brayt. 185; Senser v. Bower, 1 Pen. & W. 450; Myatt v. Myott, 44 Ill. 473; State v. Holyskins, 19 Me. 158, 159.

The presumption of innocence will only arise when there is evidence brought to show that a party has been guilty of a penal offense; and this, we think, is the meaning of the portions of the text of Best on Presumptive Evidence (page 64), and Bishop on Marriage and Divorce (sections 324, 325, referred to in Case v. Case, The language in the work on Presumptive Evidence denotes that a violation of the criminal law is referred to. The author says that the presumption of innocence is not confined to proceedings for punishing the supposed offense, but holds in all civil suits where it comes collaterally in question. What can it refer to but to the offense which is punishable? It is evident that Bishop, in the extract made in the opinion (17 Cal. pp. 600, 601), refers to adul tery as an offense against the public law. He

speaks of the benign influence of the presump- returned to the court below. During the crosstion of innocence, "in order to prevent the sus-examination of the plaintiff, defendant's counpicion that an offense has been committed." sel, with a view of showing contradictory state We cannot find this section (325) in the last ments made by her, read to her from this depo edition of Bishop on Marriage and Divorce. sition several questions and answers, and inIn section 442 (vol. 1) Bishop states the rule quired of the witness "if that was correct;" thus: "The marriage has been required to be "Is that what you said then?" "Is that true?" proved by evidence other than of cohabitation An objection was made to this mode of crossand repute in actions for criminal conversation, examination. The court sustained the objecand indictments for polygamy, for adultery, tion, and the defendant excepted. The court, for incest, and for loose and lascivious cohab- no doubt, would have allowed the defendant itation,"-citing cases which sustain this as to to put in such portions of the deposition as he adultery. It will be remarked that he con- might have selected to discredit the witness. fined this rule to indictments for adultery. The defendant certainly has a right to show the This could only be so where adultery was an contradictory statements. To do this, as the indictable offense. Now, we have no statute, witness was a party to the action, it was not and never have had one, in this State, making necessary to call her attention to the statements mere adultery a penal offense. It was not a formerly made, inconsistent with her statepenal offense at common law. 4 Bl. Com. 65. ments made on her then examination. Her The statute in this State makes the living in statements appearing in the deposition were open and notorious cohabitation and adultery admissions, and might have been offered as an offense. See Stat. 1871-72, p. 380; People v. such. The mode of cross-examination was obGates, 46 Cal. 52. jectionable. It consumed time in doing what was utterly useless in asking the questions as above stated. The court has the power, and should have it, to control the mode of examination of a witness, provided it does not trench on the rights of a party. The defendant might have put in portions of the deposition to show the contradictory statements, and the court would have allowed the plaintiff to put in the remaining portions. The deposition was subsequently offered and admitted. The statements which the defendant desired to get be fore the court did thus get before it. In this state of the case, conceding that the court erred in its ruling, putting a stop to defendant's mode of cross-examination, the error was rendered harmless to the defendant by placing the depo

Section 123 of the Act concerning crimes and punishments only refers to adultery between persons living within the degrees of consanguinity within which marriages are declared by law to be incestuous and void. We think that the weight of authority shows the rule to be that evidence of cohabitation and repute is admissible to show a marriage in all cases where there is no question of a public offense involved.

The statement of the rule in People v. Anderson, supra, as regards actions for divorce, is a mere dictum, outside of the case, and is not sustained by the decided cases or by the law. There are cases which tend to show that such evidence is admissible in a civil action when it proved the commission of a public offense.sition before the court as evidence; and, as no Archer v. Haithcock, 6 Jones, L. (N. C.) 421, 422, 423; Sneed v. Ewing, 5 J. J. Marsh. 464, 491.

injury was done by defendant, there can be no reversal for such ruling.

It is objected that the plaintiff's counsel was permitted to ask of the plaintiff, on her reexamination, a question admitted by the court to be leading. The allowance of leading questions, it is a well-settled rule in this State, is in the discretion of the trial court, and there should be no reversal for such allowances, unless there is a manifest abuse of this discretion. As we find no such abuse here, there is no error.

In Jewell v. Jewell, 42 U. S. 1 How. 224 [11 L. ed. 110], the evidence seems to have been admitted by the lower court without objection, and the point was not distinctly made in the supreme court. In the North Carolina case it is said that the only exceptions to the rule are an indictment for bigamy and an action for criminal conversation. The court expressed the opinion that what is competent evidence in one case ought to be so in another. In this case the evidence was admitted in an action of ejectment to defeat rights under a second marriage, though the second marriage was formally solemnized and proved by direct evi dence. Gardiner, J., in a dissenting opinion in Clayton v. Wardell, supra, expressed the opinion that such evidence should be held admissible in all cases. He said the distinction between civil actions and criminal or quasi criminal proceedings was established by Lord Mansfield, and has been adopted without ques-acter that it could not have prejudiced plaintion or investigation, apparently. We think such evidence was admissible here, and that nothing in Case v. Case is adverse to it. The point was not decided in People v. Anderson, It was not involved in the case, and we are convinced that the dictum there pronounced is not sustained by authority or law.

It appears that a deposition of the plaintiff had been taken herein previous to the trial and

The admission of the mortgage of plaintiff and defendant to W. B. Spears, over the objection of defendant that it was irrelevant, is not error. When the court tries the case, this court never reverses for the admission of irrelevant evidence, unless it appears that the court, in making its decision, relied on the irrelevant evidence. It does not appear herein that the court relied on such evidence. Conceding that the admission of the acknowledgment of the mort age was erroneous, the court is of the opinion that the evidence is of so trifling a char

tiff, and it declines to reverse for such ruling.

It is contended that there is no finding on the issue of extreme cruelty, which was pleaded by defendant in recrimination. The court is of opinion that the evidence on this issue was insufficient to have sustained or justified a finding by the court below of extreme cruelty by plaiutiff to defendant. The only evidence worthy of consideration is that regarding the

and needy, as far as lay in their power.' The name adopted was the Dasha way Association,' the meaning of which is said to be that it was the object to encourage the members and their friends to "dash away" the intoxicating cup from their lips. In May, 1859, a more extended constitution was adopted. After reciting that the original plans were "10 bring under our banner all inebriates, not only here, but in other parts of the State," it pro vided for the establishment of branch associations, and that all persons admitted as members should take the pledge. The substance of the previous constitution was adopted.

500 was divided among 49 members, including the trustees. The answers deny that the defendants "unlawfully or fraudulen ly" took or received any of the money, or that they took or received any money "that was held by said corporation in trust,' but do not deny the taking or receiving, and the evidence of the taking is uncontradicted.

At a meeting of the members held in December, 1883, the minute-book shows the following entry: "Brother Eagan then moved that the Association donate to each member in good standing the sum of $1,500 for past services, on signing a receipt for the same. Carried unanimouslv." And this is followed by a receipt in the following form: "San Francisco, December 31, 1883. We, the underacknowledge the receipt of $1,500, donated to us for past services by order of the Association." This receipt was signed by 49 members, including the trustees, the sum of $1,500 being opposite each name.

The enterprise seems to have received the approbation and assistance of the public. The press gave it encouragement; the Reverend Thomas Starr King consented to deliver a lec-signed, members of the Dasha way Association, ture for its benefit; and donations of books, of building materials and of money were received. On one occasion the Association received a "donation in money" of $ 57.50; on another, a subscription of $1,200; on another, $2,107.83; on another, $134.50; on another, $154.75,-and letters of sympathy were received from other States. In 1860 the Association purchased a lot on Post Street, near Dupont, for the sum of $6,250, and a building was erected upon it for the use of the Associa tion. This is the lot which was subsequently sold, as mentioned below. It was mortgaged for part of the purchase money, and subsequently other mortgages were placed upon it. In 1862 the Association was incorporated. The articles were evidently framed under the provisions of the incorporation of "religious, social, benevolent and learned associations." 1 Hittell, Gen. Laws, § 1024 et seq.

There was no capital stock. The articles state that the organization was "a benevolent Association, formed for the purpose of promoting the cause of temperance." A "home" for the care of inebriates was provided, under the auspices of the Association; but for this purpose a separate corporation was formed.

It was admitted at the trial "that there were no services rendered by the defendant members other than in the line of being good and efficient members of the organization, in accordance with the constitution and by-laws and general objects of the Association, and that that is all any of the defendants rendered to the society.” The by-laws provide that "no oflicer of this Association shall receive compensation for his services, except the secretary and collector, who shall receive such compensation as may from time to time be fixed by the Association." It is admitted by the pleadings that the Association "still is" a corporation, and no proceedings for its voluntary dissolution are shown.

That

The argument for the respondents is that the organization was not a charity, in its legal sense, and that therefore it could do what it pleased with its property. "Take all the evidence," say the learned counsel, "search the record through and through, and not one word indicating a charity can be found." We do The Association had a numerous member- not find it necessary to decide this question, ship. "There were 8,163 names before the in- and, for the purposes of this opinion, shall ascorporation, and 4,964 since the i corpora- sum that the Association stands upon the same tion." In 1892, however, from some cause fooing as any other private corporation. So which is not explained by the record, the mem- regarding it, we think it clear that any membership had dwindled to 59; and in the follow- ber has the right to the aid of the courts in ing year notice was given of a meeting of mem setting aside such a plain misappropriation of bers to consider the question of selling the the corporate funds as is above shown. property above mentioned, in order to pay the any stockholder or member has this right in indebtedness, "und to reinvest in other prop- equity is well established. The rule is thus erty suitable for the Association." At this stated in a recent work: "Even the majority meeting a resolution was passed that the trus-, have no right to direct the affairs of a corpotees be instructed to sell the property, pay the ration except in accordance with the provisindebtedness "and purchase other cheaper ions of its charter, for the powers of the maproperty suitable for the uses and purposes of jority are derived wholly from the agreement the Association." A petition for leave to sell of the stockholders, as set out in the charter; the property was accordingly filed in the suaud every individual stockholder has the right perior court, stating, among other things, that the Association was incorporated "purely and solely for the benevolent and laudable purpose of aiding and promoting the cause of temperance, and not pecuniary profit;" and the court granted leave to sell, reciting in its order the above mentioned resolution. The property was then sold for the sum of $156,000. Of this sum $45,000 was used in discharging indebtedness; $31,543.54 was placed in savings banks, where it is to be presumed that it now is; and $73,

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to stand upon his contract, and forbid any departure from its terms. It may accordingly be stated as a rule that any departure from the chartered purposes of a corporation is an injury to every individual stockholder, for which equity will, under proper circumstances, provide a remedy." Morawetz, Priv. Corp. 403.

Another learned writer says: "It is ultra rires and illegal for the board of directors to donate the funds of the corporation to charitable or public purposes, or to aid corporations

of a similar character, however praiseworthy | Wright v. Oroville G. S. & C. Mining Co. 40 the purpose of the donation may be. Nor can | Cal. 20, in which case it was held that a stockthe directors legally use the funds of the cor- holder could compel the company to refund poration to induce promoters to abandon a pro- the sum paid by him for the redemption of posed rival company. A stockholder maven-corporate property which the directors had join the directors from making free of tolls a allowed to be sold, and had wrongfully bridge from which a corporation derives its in- neglected to redeem, and Wallace, J., delivercome. The directors may be held liable for ing the opinion, said: "It is settled that allowing the president to use the corporate courts of equity in this country will, at the infunds for lobbying purposes. An unreason- stance of a stockholder, control a corporation able use of the corporate profits of a leased and its officers, and restrain them from railroad to build up and improve the lessor doing acts even within the scope of corporate Tailroad, without reference to the rights of the authority, if such acts, when done, would, unformer, has been held to be good cause of com der the particular circumstances, amount to a plaint on the part of a stockholder in the leased breach of the very trust upon which, as we railroad company; and, in general, any mis- bave seen, the authority itself has been conapplication or waste of the property of a cor-ferred. Dodge v. Woolsey, 59 U. S. 18 How. poration may be remedied by a member there- 341 [15 L. ed. 404]. of." Cook, Stock and Stockholders, § 674.

The Supreme Court of Rhode Island, in reference to the misappropriation of corporate funds by a director, said: "The jurisdi tion does not appear to be so firmly settled and defined in England as in this country; but we do not believe any English judge has ever decided | that a president or director who fraudulently couverts or embezzles corporate funds cannot be sued in equity by a stockholder, when the corporation willfully neglects or refuses to bring the suit. Indeed, to bold that a corporation could gratuitously condone or release such a fraud by anything short of unanimous consent would be monstrous; for it would be, in effect, to hold that a president or director who can control a majority vote in the corporation may rob or despoil it with impunity." Hazard v. Durant, 11 R. I. 206, 207.

"And upon the same principle the court will, even after such an act has been done, relieve an injured stockholder from loss, if, in the mean time, no superior equity has intervened, nor the rights of innoceut third parties atached." See also Neal! v. lill, 16 Cal. 145; Beach v. Cooper, 72 Cal. 99; Chicago v. Cameron, 120 Ill. 458, 9 West. Rep. 507.

And the relief does not depend upon the existence of a fraudulent intent, although such iatent very frequently exis s.

Now, in the present case there was a plain misappropriation of corporate funds. The corporation was not dissolved, or, so far as appears, to be dissolved. It was a simple case of rustees who were in possession and in control of corporate funds, acting in pursuance of a vote of the majority of the members, “donating" the corporate furds to themselves and In accordance with those principles, it has other members upon the pretext of "past servbeen held that a stockholder may restrain the ices," although the fact was, as admitted at directors from paying an unfounded claim of the trial, that no services had been rendered the secretary for ex'ra services (Butts v. Wood, other than such as the parties were bound to 87 N. Y. 317), and may compel the repayment render as members of the Association. The of funds misappropriated by the directors answers deny that the Association was not a (Sears v. Hotchkiss, 25 Conn. 177), and may corporation for profit. But it is too plain for recover from a trustee property of the co pora- discussion that this Jenial was untrue. The tion which he has converted to his own use corporation was not for profit. It articles de(Carpenter v. Roberts, 56 How. Pr. 216), and fine it as "a benevolent Association, formed may prevent corporate securities from being for the purpose of promoting the cause of misapplied to the benefit of other corporations temperance;" and it is evident, as stated in the (Chicago v. Cameron, 120 111. 447, 9 West. Rep. petition for leave to sell the property, that the 507), and may have annulled a lease made in Association "was incorporated purely and excess of corporate powers (Mills v. Central R. solely for the benevolent and laudable purpose Co. 41 N. J. Eq. 1, 2 Cent. Rep. 239), and of aiding and promo ing the cause of tempermay prevent the collection of payment of a tax ance, and not pecuniary profit.' This being illegally levied (Dodje v. Woolsey, 59 U. S. 18 so, the division of more than one half of the How. 31, 15 L. ed. 401), and may prevent corporate property among 49 members was a the payment of dividends out of a fund which | diversion of the same from the cause of temperought to have been appropriated to repairs of ance, which was the "benevolent and laudathe company's works (Dent v. London Tramble" purpose of the institution, into the private ways Co. L. R. 16 Ch. Div. 344), and may prevent the conversion of the corporate assets by the officers (Atlanta Real Estate Co. v. Atlanta Nat. Bank, 75 Ga. 45), and may have restrained acts which amount to a violation of trust, or a breach of the charter (March v. Eastern R. Co. 40 N. II. 548; Wilcox v. Pickel, 11 Neb. 154; Teac' out v. Des Moines B. G. Street R. Co. 75 Iowa, 127; Manderson v. Commercial Bank, 23 Pa. 379), or which amount to a fraud upon the company (Ryan v. Leavenworth, A. & N. W. R. Co. 21 Kan, 365), or to a breach of its charter. Cook, Stock and Stockholders, § 672. In California the rule was laid down in

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pockets of said members. It was an attempt to make a profit out of an undertaking which was not for profit. It is not inconsistent with the conclusion that the preamble of the constitution of the unincorporated association stated that the object of the members was "to advance our own interests." It is perfectly clear, from the circumstances, that this meant their interes s with respect to temperance and sobriety. But, aside from this, the old constitution was supersede 1 by the articles of incorporation, which expitcitly define the object of the Association, as above stated.

If such a transaction as appears here would