proof of labor done would be inadmissible because in the nature of parol proof where something higher is required. Here the claim is not based at all upon a written instrument, but upon adverse use and that having been established the subsequent conveyances were admissible to show ownership in plaintiff.

Certain leases made by Zumwalt in 1885 and 1886 by which he agreed that one Adlesback might use the ditch were admitted. This was in plaintiff's rebuttal and was for the purpose of meeting certain evidence which concerned defendants Peter and Marie Adelsbach. There was some evidence tending to show adverse use by the Adelsbachs and counsel stated that the purpose was to show that they used the ditch under lease from Zumwalt, whose interest plaintiff had acquired. We cannot see that the evidence injuriously affected appellants under the offer.

Defendants' error marked 13 was cured by their subsequently drawing out the facts sought.

Witness Fay was a defendant and when called as a witness for defendants testified that he had gone frequently into the Mooney field to work on the ditch. He was asked by defendants if he did not before doing this work get permission from John or Hugh Mooney. The question was objected to and objection sustained as irrelevant, incompetent and self-serving. He subsequently testified that J. J. Mooney directed him about the work. This answer appears to us to have met the point defendants were making. If Fay was working under direction of Mooney the latter's permission would seem to follow.

Certain objections were made to evidence which appears to have concerned defendants other than appellants and was admitted not so much as bearing upon appellants' interests as upon the interests of other defendants or as tending to contradict certain of their witnesses. We cannot see that appellants were injuriously affected by this testimony.

Discovering no prejudicial error in the record the judgment and order are affirmed.

We concur:

BUCKLES, J.

MCLAUGHLIN, J.

CHIPMAN, P. J.

Civil No. 267. Third Appellate District. September 18, 1906. SAN FRANCISCO COMMERCIAL AGENCY. (a Corporation), Plaintiff and Respondent, v. M. K. MILLER et al., Defendants; WILLIAM H. DUNPHY and CHARLES DUNPHY, Appellants. STOCKHOLDERS' LIABILITY-ACTION ON-PLEADING INSUFFICIENCY OF COMPLAINT.-In an action against certain stockholders of a corporation to recover their proportionate share of the indebtedness of said corporation, where in the complaint the number of shares issued and the number of shares subscribed for and owned by the defendants is stated, but the number of shares constituting the whole of the subscribed capital stock is not averred, the complaint is fatally defective. The averment that a certain number of shares were issued is not equivalent to a statement that only that number of shares were subscribed.

Appeal from the Superior Court of the City and County of San Francisco-J. M. Troutt, Judge.

For Appellants-W. J. Bartnett.

For Respondent-P. A. Bergerot and G. H. Perry.

This is an action against certain stockholders of the Eureka Consolidated Oil Company to recover their proportionate share of the indebtedness of said corporation. The only question presented for decision involves the sufficiency of an allegation in the complaint which reads as follows:

"That the capital stock of said Eureka Consolidated Oil Company now is, and at all the times hereinafter mentioned was, the sum of Sixty Thousand Dollars, divided into 60,000 shares of the par value of One Dollar each; that at all said times there had been issued by said Company 37,735 shares of its capital stock, and no more, which shares were duly subscribed for, owned and held by the shareholders of said company, and that there are now owned and held, and at all the times hereinafter mentioned there were owned and held by the defendants above named the number of shares set after their respective names," etc.

The appellants demurred to the complaint on the ground that no cause of action was stated; the demurrer was overruled, and the appeal is taken from the judgment thereupon entered in favor of plaintiff.

Section 3 of article 12 of the constitution provides that "Each stockholder of a corporation or joint-stock association shall be individually and personally liable for such proportion of all of its debts and liabilities contracted or incurred during the time he was a stockholder, as the amount of stock or shares owned by him bears to the whole of the subscribed capital stock or shares of the corporation or association."

In the complaint before us, the number of shares issued and the number of shares subscribed for and owned by the defendants is stated, but we are left groping as to the number of shares constituting the whole of the "subscribed capital stock". It is contended that the averment that but 37,735 shares were issued, is equivalent to a statement that only that number of shares were subscribed. With this contention we cannot agree. In the case at bar the averment in question might be absolutely true, and yet the remaining number of shares might have been subscribed by one or more persons not made defendants in this action. "To constitute the subscribers stockholders, it was not necessary that the certificates of stock should have issued to them." (S. J. L. & W. Co. v. Beecher, 101 Cal. 79; Cal. S. H. Co. v. Callender, 94 Cal. 127; Mitchell v. Beckman, 64 Cal. 121.) The averment that stock has been issued amounts to no more than a statement that the stock certificates have issued. (Tulare Sav. Bank v. Talbot, 131 Cal. 49.) And it is a matter of common knowledge that stock is invariably subscribed for before it is issued.

From this it follows that one element necessary to fix the proportion of the indebtedness for which appellants were liable is entirely wanting. We know the amount of stock issued and the

number of shares owned by appellants, but we are not informed as to the total number of shares subscribed.

It has been held repeatedly that a complaint failing to state the whole number of shares subscribed is fatally defective and we have neither the inclination nor the right to depart from a rule so well settled and sound. (John A. Roebling's Sons Co. v. Butler, 112 Cal. 678; Bidwell v. Babcock, 87 Cal. 32; Const. art. 12, sec. 3; Civ. Code, sec. 322.)

The judgment is reversed.

We concur:

BUCKLES, J.

CHIPMAN, P. J.

MCLAUGHLIN, J.

Civil No. 259. Third Appellate District.

September 20, 1906.

JAMES MARTIN, Appellant, v. E. J. MOLERA, Respondent.

ACTION OF EJECTMENT-PLEADING-CROSS-COMPLAINT.-Where the relief demanded in a cross-complaint can be had upon the denials and averments of the answer, a cross-complaint is unnecessary; but under section 442 of the Code of Civil Procedure, whenever the defendant seeks affirmative relief affecting the property to which the action relates, he may in addition to his answer, file a crosscomplaint. It is held in this action for restitution of certain premises and for damages that a cross-complaint was properly interposed and that the court properly overruled the demurrer thereto.

Appeal from the Superior Court of Monterey County-M. T. Dooling, Judge.

For Appellant-D. M. Delmas and J. J. Wyatt.

For Respondent-Chas. W. Slack.

It is alleged in the complaint herein that on a specified date the plaintiff was the owner, seized in fee and in the possession of a designated tract of land and at the time the action was commenced he was the owner and entitled to the possession of said land. This is followed by an averment that on the date mentioned the defendant entered upon and ousted and ejected plaintiff to his damage in the sum of one thousand dollars. The prayer demands restitution of the premises with damages in the sum stated. The defendant filed an answer denying each of the allegations of the complaint and pleading a judgment rendered in an action between plaintiff and defendant's predecessor in interest, involving the title and possession of the land here in controversy, which judgment was affirmed by the supreme court (see Molera v. Martin, 120 Cal. 544). In connection with this special defense it was alleged that in the complaint in the former action one of the calls in the description of the land read "South 82 degrees West, 3.35 chains to station", and by reason of a clerical misprision and mistake this call read "South 82 degrees West 5.35 chains to a station", as inserted in the judgment pleaded. Immediately following this, in a portion of the pleading designated a cross-complaint, the defendant pleaded the facts touching the former action between plaintiff and defendant's

grantor, and inserted a copy of the judgment in said former action. The above mentioned mistake in one of the courses and distances as inserted in the judgment was then set forth, and this was followed by three paragraphs specifically fixing the starting point in the description of the tract of land involved in the former judgment, and more particularly describing one of the boundaries of the tract with reference to the old channel of the Salinas river and the cabin of Buckskin Joe, which was destroyed by fire after the commencement of said action. The cross-complaint further contained specific allegations to the effect that the lands described in the complaint herein are a part of the lands involved in the former action and that the present action is contrary to equity and good conscience, and is intended to harass, vex and annoy defendant by compelling him to relitigate the same questions which were tried and determined in the action of De Molera v. Martin, and that cross-complainant has no plain, speedy or adequate remedy at law.

The plaintiff demurred to the cross-complaint on the ground that it did not state facts constituting a cause of action. The demurrer was overruled and plaintiff answered, but later withdrew his answer and elected to stand on the demurrer to the cross-complaint. His default was thereupon entered and the court proceeded to hear evidence touching the averments of the cross-complaint, all of which were found to be true as pleaded. Judgment was thereupon entered in favor of defendant, and from such judgment this appeal is prosecuted.

Appellant contends that the court erred in overruling his demurrer to the cross-complaint, and this contention presents the only point urged in the brief filed in his behalf.

It is urged that in cases like the one at bar a cross-complaint is always unnecessary and improper, and Doyle v. Franklin, 40 Cal. 106, is cited as supporting this view. Waiving the fact that the court expressly declined to pass on this particular point in that case, an examination and analysis of this and cases of like tenor, shows that our highest court has simply decided that where the relief demanded in the cross-complaint can be had upon the denials and averments of the answer, a cross-complaint is unnecessary, (Nelson v. O'Brien, 139 Cal. 629; Miller v. Luco, 80 Cal. 261; Wilson v. Madison, 55 Cal. 8.) This, however, is far from saying that a cross-complaint may not, under some circumstances, be both proper and necessary. The rule in ejectment is identical with the rule in actions to quiet title, and the reason underlying one supports the other, hence authorities applying to the latter class of actions apply with equal force to actions in ejectment. In Winter v. McMillan, 87 Cal. 264, e supreme court, in passing upon the question before us here, said: "Appellants contend that the demurrer to the cross-complaint ought to have been sustained: that a crosscomplaint is improper in actions of this kind. In support of this contention, they cite Wilson v. Madison, 55 Cal. 8. All that case decides is, that where the relief demanded by defendant can be had upon the denials and averments of his answer, a cross-complaint is unnecessary. But there may be cases in which full relief cannot be given the defendant upon answer, and as in ejectment, a cross

complaint in such cases is recognized as a proper pleading so that the whole controversy may be settled in one action." This doctrine has received express or implied sanction in a number of cases where the point was involved. (Angus v. Craven, 132 Cal. 698; Islais & S. W. Co. v. Allen, 132 Cal. 438; Am. & Eng. Ency. Pl. & Pr., vol. 17, pp. 354, 356.)

Under section 442, Code of Civil Frocedure, whenever the defendant seeks affirmative relief affecting the property to which the action relates, he may in addition to his answer, file a cross-complaint. That the affirmative relief demanded by the defendant related to the property to which this action relates, cannot be gainsaid. That such relief involved more than title and right of possession seems equally clear. The plaintiff was bound by the former decree if the property in controversy here formed part of the land embraced in the prior litigation. The defendant was entitled to relief against harassing, annoying and vexatious attempts to relitigate questions already adjudicated and settled, and if so, we can conceive of no better time or place to seek uch relief than in an action practically identical with the case already determined against the plaintiff's assertion of right. It is not necessary to consider the propriety of thus litigating some questions arising out of facts stated in the amended cross-complaint. The single question presented for determination here is whether the crosscomplaint states facts sufficient to entitle the defendant to any affirmative relief. Having concluded that it does, the judgmert must be affirmed, and it is so ordered.

We concur:

BUCKLES, J.

CHIPMAN, P. J.

MCLAUGHLIN, J.

Crim. No. 30. Third Appellate District. September 20, 1906. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Appellant, v. W. M. AMER, Defendant and Respondent. CRIMINAL LAW-EMBEZZLEMENT-MISCONDUCT OF DISTRICT ATTORNEY-COMMENT ON DEFENDANT'S FAILURE TO TESTIFY-EXCEPTION.In a prosecution for embezzlement, where the district attorney in his argument to the jury, states: "The court will instruct you that' the defendant under the law does not have to take the stand; but it seems to me that if you were confronted with the same evidence and you were innocent, why a reasonable man certainly would seek to explain it," this constitutes misconduct for which the court is authorized to grant a new trial; and where defendant's counsel at the time says, "Exception," this is sufficient objection to it. The instruction of the court to the jury at the time to disregard the statement will not cure the error.

Appeal from the Superior Court of Madera County-W. M. Conley, Judge.

For Appellant-U. S. Webb, Attorney-General.

For Respondent-Lewis H. Smith; F. G. Ostrander; Raliegh E. Rhodes and Geo. C. Goucher.