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word "seal" in the margin; but it may be otherwise sufficiently indicated, as in this case, by the certificate of the clerk contained in the published copy that the seal was attached to the original: Jones v. Martin, 16 Cal. 166.

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4. The remaining objection to the jurisdiction is, that the publication was in a weekly newspaper issued only on Sundays. But this, we think, was unobjectionable. "Except as to judicial acts, which are void when done on Sunday, ... the common law makes no distinction between Sunday and any other day": 2 Bouvier's Law Dictionary, word "Sunday," p. 1067. See, also, Bouvier's Law Dictionary, word "Dies Non." The rule, indeed, is, "That no judicial act ought to be done on that day, but ministerial acts may be lawfully executed on the Sunday." For otherwise, it is added, peradventure they can never be executed; and God permits things of necessity to be done on that day; and Christ says in the Gospel, "Bonum est benefacere in Sabbatho": 219 MacKalley's Case, 5 Coke, 120, p. 9, fol. 66a. Accordingly, it was held in the case cited that an arrest made on Sunday was good, and though at a later date service of process was forbidden by statute (29 Car. 11; Scamm v. City of Chicago, 40 Ill. 148), this has no force here. The rule as given by Coke has been generally recognized by the courts. Ball v. United States, 140 U. S. 130, 11 Sup. Ct. Rep. 761; Swann v. Broome, 1 W. Black. 529; State v. Ricketts, 74 N. C. 193.

In this state, the transaction of "judicial business" on Sunday or holidays is forbidden (Code Civ. Proc., sec. 134), and` it may be that the expression quoted is somewhat broader in meaning than the expression "judicial acts" used by Coke. But it can hardly be extended to the service of process, or other ministerial acts, and certainly not to the publication of service: Reclamation Dist. v. Hamilton, 112 Cal. 613, 44 Pac. 1079.

6. The objection is also made that there was no assignment to the plaintiff of her assignor's cause of action against the sureties. But it is a familiar principle that in equity "the assignment of a demand entitles the assignee to every remedy, lien, or security that could have been used, or made available by the assignor as a means of indemnity or payment" (2 White & Tudor's Leading Cases in Equity, 1667, and cases cited); and it follows that the assignment of the judgment against the guardian operated as against the guardian's bond. Nor can there be any doubt, under our practice, of the right of the

equitable assignee to maintain an action against the sureties: Code Civ. Proc., sec. 367.

The decision in Moses v. Thorne, 6 Cal. 87, cited by respondent seems to be inconsistent with this view. But in that case it was in effect admitted that the assignment of the judgment operated as an equitable assignment of the bond, and the decision was put on the ground that the assignment, being merely equitable, could not "confer the right of bringing a common law action upon it." But in this the court overlooked the provisions of section 4 of the Practice Act, corresponding to section 367 of the Code of Civil Procedure, requiring that "every action must be prosecuted in the name of the real party in interest."

In the case of Childstrom v. Eppinger, 127 Cal. 326, 78 Am. St. Rep. 46, 59 Pac. 696, and note, also 220 cited, the decision in Moses v. Thorne, 6 Cal. 87, was inadvertently followed.

For the reasons given the judgment and order appealed from must be reversed, and it is so ordered.

Hearing in Bank denied.

Ministerial Acts may be performed on Sunday: Hanover Fire Ins. Co. v. Shrader, 98 Tex. 35, 59 Am. St. Rep. 25, 32 S. W. 872, 33 S. W. 112; Whipple v. Jill, 36 Neb. 720, 38 Am. St. Rep. 742, 55 N. W. 227. A search-warrant issued on Sunday is not invalid for that reason: State v. Conwell, 96 Me. 172, 90 Am. St. Rep. 333, 51 Atl. 873. But in Burke v. Interstate Sav. etc. Assn., 25 Mont. 315, 87 Am. St. Rep. 416, C4 Pac. 879, it is held that service of summons on Sunday, while not a nullity, is voidable. See, also, the note to Sanford v. Edwards, 61 Am. St. Rep. 488.

The Assignment of a Judgment carries with it the cause of action on which it is based, together with all the beneficial interests of the assignor in the judgment and all of its incidents: See the monographic note to Chilstrom v. Eppinger, 78 Am. St. Rep. 50, on the effect of assignments of judgments.

ALDRICH v. BARTON.

[138 Cal. 220, 71 Pac. 169.]

TRUSTEE'S ACCOUNT —Fraud in Settlement of.—If trustees under a will, in the absence, and without the knowledge of, the beneficiary, present a false and fraudulent account to the court and secure its settlement and allowance, this is fraud extrinsic to the case, and the beneficiary, on discovering the fraud after the time limited to move in the matter or to appeal from the order, may maintain a suit in equity to compel the trustees to pay her the sum of which she has been defrauded. (pp. 44, 45.)

A. Everett Ball, for the appellant.

Drown, Leicester & Drown and J. F. Leicester, for the respondents.

221 GRAY, C. In this action the demurrer to the amended complaint, based on the ground that the complaint failed to state a cause of action against defendants, was sustained, and the plaintiff refusing to further amend, judgment was entered against her, from which she takes this appeal

The amended complaint alleges in substance that plaintiff is the surviving wife of William A. Aldrich, deceased, and that under the will of said deceased, and under a decree of distribution made in the estate of said deceased to certain trustees upon the trust named therein, she was and is entitled to be paid onefourth of the rents, income, issues, and profits of the residue of the estate of said deceased by the defendants, who are the trustees under said will and the appointment of the court, for the purpose of carrying into effect the terms of the decree of distribution under said will; that defendants filed an account in the probate court.

Quoting from the amended complaint, it further avers:

"That said trustees, in said account so rendered as aforesaid, falsely and fraudulently, and with intent to cheat and defraud this plaintiff out of the money received by them as net rents, income, issues, and profits derived from said one-fourth part of the said residue of the said estate, which should come to and belong and be paid to her, placed the following items as re ceived by them on account of the sale of certain forty-three shares of capital stock of the Germania Lead Works, which said stock was a part of the one-fourth of the residue of said estate distributed to, and held by, said trustees for said plaintiff, as aforesaid—viz., the sum of $2,713.40, the sum of $430, and the

sum of $190.92 aggregating the sum of $3,334.32-while in truth and in fact said sums of money were no part of the purchase price of said stock, but were dividends upon said stock, and as such should have been credited to the account of this plaintiff, as income, issues, and profits, which fact was well known to said trustees, but said trustees falsely and fraudulently concealed said fact from said court and this plaintiff.

222 "That said trustees, by so falsely and fraudulently charg ing said sums of money to the principal as part of the onefourth of said residue, cheated and defrauded this plaintiff out of said sums of money.

"That thereafter, and on the eleventh day of June, 1900, said court, by its order, settled and allowed said account as rendered, as there was nothing upon the face of said account to indicate the fraud so perpetrated upon this plaintiff, and no opportunity to call the attention of the court to the same, or to determine any issue of fraud, and the court, as well as this plaintiff, was imposed upon and deceived, and the settlement and allowance of said account so rendered was had without any knowledge of the court as to the fraud so perpetrated.

"That at the time said account was filed in said court, as aforesaid, said plaintiff was a resident of the Hawaiian Islands, and had no notice of the filing of said account or of its contents, or of the hearing thereof, except such notice as the court ordered-viz., posting for ten days-and that the said account was settled and allowed without any knowledge thereof upon the part of said plaintiff, and said plaintiff was not represented at the hearing thereof, and she did not know of any of the matters contained in said account, or anything regarding the same, until she came to California, on or about the fourteenth day of January, 1901, when she was informed of the true state of the facts as set forth above, when she immediately took steps to have the matter adjusted.

"That said plaintiff relied, as she had a right to do, upon the said trustees exercising the utmost good faith toward her, and upon their rendering true and correct accounts of their trust.

"That more than six months had elapsed since the settling and allowing of said account, at the time she first became aware of the facts alleged herein, and that she had been defrauded out of the money by said trustees, and her right to move in the matter or to appeal from the order settling said account had passed, and the only remedy left her was to appeal to the equitable jurisdiction of this court."

We think the amended complaint states a cause of action, and shows just grounds for granting that portion at least of the prayer of the complaint which asks to have the trustees compelled to credit and pay to plaintiff the sum of $3,334.42. 223 The facts alleged show that they have, or ought to have, in their hands as trustees for plaintiff that amount of money, which in equity and good conscience they should at once pay to her, and the order of the probate court obtained, as it is alleged to have been, for the purpose of defrauding plaintiff, should constitute no obstacle to plaintiff obtaining this relief.

The trustees took advantage of the absence of the cestui que trust to present a false and fraudulent petition to the court and have it acted upon without her knowledge. This was a fraud upon the court as well as upon the absent interested party, and this is held to be a fraud "extrinsic to the case," which prevented the plaintiff from being properly represented at the hearing, or from being represented at all: Sohler v. Sohler, 135 Cal. 323, 87 Am. St. Rep. 98, 67 Pac. 282. In the Sohler case the fraudulent decree was the result of a conspiracy between the trustee and another, but the principle of that case applies with equal force here, for a fraud is equally abhorrent to equity, and is to be measured by the same rules, whether it be the result of a conspiracy or arises from the corrupt motives of the trustee alone. The demurrer should have been overruled.

We advise that the judgment be reversed.

Chipman, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion the judg ment is reversed.

Garoutte, J., Harrison, J., Van Dyke, J.

In Silva v. Santos, 138 Cal. 536 71 Pac. 703, it is decided that if a decree settling the final account of the guardian of an incompetent is obtained by fraudulent concealment of funds misappropriated by the guardian, and misrepresentation to the court that he has made advances to the estate, equity has jurisdiction to grant relief and compel a full and just accounting. It is said in the course of the opinion: "Appellant contends, and we think the law is, that equity has jurisdiction to interpose and furnish appropriate relief where a judgment or order has been attained by the employ. ment of frauds and artifices such as would justify interference of such court. Appellant cites Dean v. Superior Court, 63 Cal. 473; Tobelman v. Hildebrandt, 72 Cal. 313, 14 Pac. 20; Lataillade v.

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