to the loss of plaintiff in the sum of $4,000; that defendant is insolvent, and has no property subject to execution out of which the value of the rents and profits of the premises, or the value of the use and occupation thereof during the time allowed for the redemption, could be made; and that unless a receiver be appointed to protect the rights and interests of the plaintiff, he will be wholly deprived of the rents and profits and the value of the use and occupation. Upon the filing of this complaint an order was made appointing a receiver as prayed for. Thereafter, on motion of the defendant, said order was revoked, the receiver discharged, the demurrer sustained, and the plaintiff's action dismissed.

We think that the judgment should be affirmed. Under our statutes the judgment debtor is entitled to remain in possession of the land until the expiration of the time allowed for redemption. During that period the court may restrain the commission of waste on the property on the application of the purchaser; but we know of no provision of the Codes, of any decision, or of any principle, upon which the purchaser is entitled to place a receiver in charge of the property during the period of redemption. The defendant had six months within which to determine whether or not he would redeem the property, and was entitled to use the property and take the proceeds thereof. It is true the statute provides that the purchaser, from the time of the sale until redemption, is entitled to receive from the tenant in possession the rents of the property sold, or the value of the use and occupation thereof; but this is no warrant for the appointment of a receiver to oust the judgment debtor from his possession, and take from him the crops which have been produced through his labor, and that is what was sought in this action. The plaintiff was no more entitled to have a receiver put in charge of the defendant's property than he would have been if he had brought an ordinary action of assumpsit; and this is true, even if it be conceded that plaintiff was entitled to sue for "the rents of the property sold, or the value of the use and occupation thereof," before the expiration of the period allowed for the redemption. White v. Griggs, 54 Iowa, 650, 7 N. W. Rep. 125.

In determining the question involved in this appeal, we have again to say that we have received no assistance from the respondent. No brief has been filed, no suggestion made in any form. The vice of such a practice, and the injustice to the court, is especially noticeable in this case, where we have to go outside of the theory discussed by appellant, and upon which it is asserted the court below proceeded, in order to affirm the judgment. Judgment affirmed.

J.

We concur: HARRISON, J.; GAROUTTE,

WILLS-PROBATE AND Contest.

1. Under Code Civil Proc. § 1312, requir ing a copy of the opposition to probate of a will to be served on petitioner and others interested in the estate, where a written opposition to the probate of a will is filed at the time set for hearing a petition by the executor for probate, and shows personal service thereof on him, it is error to strike it from the files, on his motion, on the ground that there is no proof of service on the other persons interested, and te refuse to hear proof of such service, on the ground that it comes too late.

2. Such an order will not be affirmed on the ground that afterwards, on motion of contestant, the court vacated the order, and gave her time to serve the opposition, where it refused to set aside an order admitting the will to probate and granting letters to the executor. Department 2. Appeal from superior court, Lassen county; W. F. Masten, Judge.

Petition by W. P. Hall to probate the will of William Stewart, deceased. Mary E. Stewart filed an opposition, which was stricken from the files, and an order was made admitting the will to probate, and issuing letters to petitioner. From these orders, and from an order refusing to set aside the order admitting the will to probate, contestant appeals. Reversed.

Spencer & Raker, Clay W. Taylor, J. Chadbourne, and C. McClaskey, for appellant. Goodwin & Dodge, for respondents.

MCFARLAND, J. William Stewart died in Lassen county on May 13, 1892, leaving what purported to be his last will, in which the respondent W. P. Hall was named as executor, and in which the daughters of the deceased, May M. Atteberry, aged 24 years, and Nellie Stewart, aged 11 months, both residents of said Lassen county, and his daughter Lena M. Stewart, aged 20 years, resident of Butte county, were made devisees of all his property. Hall filed a petition for the probate of the will, and the hearing of the petition was fixed for the 11th day of June, 1892, at 10 o'clock A. M. At the ap pointed time the appellant, Mary E. Stewart, who is the widow of the deceased, filed her written opposition to the probate of said will with a written indorsement thereon of admission of service thereof by the attorneys of record of said petitioner Hall, and also the indorsement of what purported to be the signature of said devisee Mrs. Atteberry, admitting service of said contest; but there was no other proof of such service. Counsel for petitioner Hall, in the absence of counsel for contestant, moved orally-no notice there of having been given-to strike the said written opposition of Mary E. Stewart from the files, on the ground that the same had not been filed or served as required by law. This motion was taken under advisement until 2 o'clock P. M. of said day. In the mean time the contestant furnished proof

that the written oppositica had been personally served on said Hall and on said Mrs. Atteberry; and proof was also made that said infant devisee, Nellie Stewart, was in the care and custody of her mother, said Mary E. Stewart, and that a copy of said opposition had been served on said Mary, and also on said infant, Nellie; and contestant also had filed a petition for the appointment of a guardian ad litem of said infant Nellie, to take charge of her interests in said litigation. The court, however, refused to consider said proofs, upon the ground that they "came too late, and should have been filed at 10 o'clock A. M. of said day." The court then, on motion of petitioner, struck said opposition from the files, and proceeded to hear the petition for the probate of the will, entirely disregarding said opposition, and made an order admitting said will to probate, and appointing said Hall executor, to all of which rulings contestant objected and excepted. From said order the contestant, Mary E. Stewart, appeals.

As

The written opposition of contestant was in proper form, and set forth many alleged facts which, if true, established the invalidity of the asserted will; and the court erred in denying said opposition, and proceeding to probate the will, and to issue letters testamentary to Hall, without any hearing of the matters alleged in said opposition. This course, it seems, was based upon the provision of section 1312, Code Civil Proc., that the contestant must file a written opposition, "and serve a copy on the petitioner and other residents of the county interested in the estate." But it had been served on the attorneys of Hall; and, this being so, the court should not have refused to give the appellant an opportunity to prove the averments of her written opposition, although there was not at 10 o'clock A. M. sufficient proof of service on the other persons mentioned in said section of the Code. against Hall, at least, there was a full showing by the pleading on file that the will was invalid, and that he had no rights in the premises. The court should have ordered that contestant furnish proper proof of service on the other parties, and that the latter should have proper time in which to demur or answer the opposition, as provided by the Code. However, on the return day, and before the hour to which the matter had been continued, the contestant did furnish proper proof of service upon all the persons mentioned in the Code, except, perhaps, the infant, Nellie, and, as to said infant, had furnished proof of all the service that could possibly have been made upon her, and had asked for the appointment of a guardian ad litem. Under these circumstances, we see no ground upon which the order appealed from can be affirmed. It is true that afterwards, on July 5th, the court on motion of

appellant, made an order vacating the order striking out said opposition, and giving contestant certain time to serve the same; but that order is no answer to this appeal, for the court refused to set aside the order admitting the will to probate, and granting letters to Hall. Appellant had a right to be heard before the will was probated and Hall appointed executor. "Contesting a will after probate," under sections 1327-1333, is a different thing.

Appellant also appeals from the order of June 11th, striking out her written opposition, and from the order of July 5th, refusing to set aside the order admitting the will to probate. Respondent does not raise the question that these orders are not appealable, and the question would not be important here. The orders appealed from are reversed, with directions to the court below to hear and determine the original question whether or not the said will should be admitted to probate, and letters testamentary issued to said Hall, upon the issues made by said written opposition, after proper service thereof and such pleadings as respondents may choose to make thereto.

We concur: DE HAVEN, J.; FITZGERALD, J.

(100 Cal. 265)

BOYNE v. RYAN, District Attorney. (No. 14,760.)

(Supreme Court of California. Nov. 8, 1893.) MANDAMUS-WHEN LIES - TO CONTROL DISTRICT ATTORNEY.

1. Section 8 of the county government act, (Laws 1891, p. 296,) authorizing the district attorney of any county, and making it his duty, to institute suit for money paid out by the board of supervisors without authority of law, vests the attorney with a discretion in determining whether to bring suit which a court cannot control by mandamus.

2. Mandamus will not lie to compel the district attorney to institute a suit to recover money unlawfully paid out by the board of supervisors, as the court could not compel him to prosecute it, and it will not undertake by mandamus what cannot be accomplished.

In bank. Appeal from superior court, Saoramento county; A. P. Catlin, Judge.

Petition by William Boyne against F. D. Ryan, district attorney, for a writ of mandamus. From a judgment for respondent, petitioner appeals. Affirmed.

Johnson, Johnson & Johnson, for appellant. H. L. Buckley and A. J. & Elwood Bruner, for respondent.

MCFARLAND, J. This is an appeal by petitioner from a judgment for respondent in a proceeding to obtain a writ of mandate. The petition avers that petitioner is a citizen, taxpayer, and resident of Sacramento county; that respondent is district attorney of said county; that McClatchy & Co., pro

prietors of the Bee newspaper, presented a claim of $1,567 to the board of supervisors of said county for advertising the delinquent list, which the board considered and allowed for the sum of $1,317, and the same was paid to said McClatchy & Co.; and that the same was allowed and ordered paid by said board without authority of law. It is averred that the allowance was without authority of law, because the said claim was not properly itemized; because it was not properly verified; because there was no contract made with McClatchy & Co. for the advertising, after a publication inviting bids therefor; and because the amount allowed was too large. It is then averred that the respondent knew of these facts; that he was requested by petitioner and other taxpayers to institute a suit against McClatchy & Co. to recover said money paid to them as aforesaid; and that he refuses to do so. The prayer is that respondent be commanded by mandate to institute such suit. The court below sustained a general demurrer to the petition, and, petitioner declining to amend, judgment went for respondent.

*

We think that the judgment of the superior court was right. The proceeding is founded on section 8 of the county government act, (Laws 1891, p. 296,) which, so far as material here, is as follows: "Hereafter, when any board of supervisors shall without authority of law order any money paid as a salary, fees, or any other purposes, and such money shall have been actually paid, the district attorney of such county is hereby empowered, and it is hereby made his duty, to institute suit, in the name of the county, against such person or persons, to recover the money so paid, and twenty per cent. damages for the use thereof." As the expense of the publication of the delinquent list is a charge against the county, and as the board of supervisors are given the power to examine, settle, and allow accounts chargeable against the county, it is perhaps questionable if the averments of the petition show that the allowance of the claim of McClatchy & Co. was "without authority of law," within the meaning of said section 8. But, waiving that point, we think that the district attorney, in determining whether or not, in any particular instance, he shoul1 bring an action under said section, is vested with a discretion which a court cannot control by mandamus. Of course, if in a clear case he should willfully, corruptly, or inexcusably refuse to perform his duty in the premises, he could be proceeded against for malfeasance or nonfeasance in office. There are also other remedies for the protection of the public treasury; as, for instance, the supervisors are personally liable for the allowance of illegal claims. Moreover, a court will not do a vain or fruitless thing, or undertake by mandamus what cannot be accomplished. As was said by Chancellor Kent,

(Trustees, etc., v. Nicoll, 3 Johns. 598:) "It has hitherto been considered as a settled principle that a court will not undertake to exercise power but when they exercise it to some purpose." Now, it is not contended that the language of section 8 goes any further than to declare it to be the duty of the district attorney "to institute suit." But to compel a district attorney, against his will and contrary to his judgment, to merely commence an action, would be an idle thing, in the absence of power to compel him to prosecute it to final determination; and such power is not contended for by appellant, and, indeed, there could be no practicable exercise of such power. The court granting the writ of mandate could not follow the district attorney through the case, and see to it that he filed proper pleadings, offered sufficient evidence, made necessary objections to evidence offered by the defendant, used proper arguments and authorities in discussing questions raised before the court or jury, and conducted the trial with reasonable care and diligence. The judgment is affirmed.

We concur: DE HAVEN, J.; HARRISON, J.; GAROUTTE, J.; PATERSON, J.; FITZGERALD, J.

(4 Cal. Unrep. 329)

IRWIN v. MCDOWELL. (No. 19,149.) (Supreme Court of California. Nov. 10, 1893.) CHATTEL MORTGAGES-DISCHARGE-PledgePLEADING AMENDMENT AT TRIAL.

1. In an action by a mortgagee for conversion of the mortgaged chattels, there is no abuse of discretion in allowing defendant, at the trial, to amend his answer, and to aver that the mortgage was released before defendant took the property.

2. An instrument termed a "bill of sale," executed by C., authorizing I. to take and sell the articles therein specified till C.'s debt to I. is satisfied, when the residue shall be returned to C., and reciting that it is given as security for the debt, is a contract for a pledge, within Civil Code, § 2987, providing that every contract by which the possession of personal property is transferred as security, only, is a pledge.

3. Though such instrument, by reciting that it is given in lieu of a certain chattel mortgage, shows an intention that it shall take the place of the chattel mortgage, it does not, in the absence of the delivery of the articles thereby agreed to be pledged, release the chattel mortgage; Civil Code, § 2988, providing that no pledge is valid till the property is delivered to he pledgee.

Commissioners' decision. Department 2. Appeal from superior court, San Diego county; W. L. Pierce, Judge.

Action by I. Isaac Irwin against S. A. McDowell for conversion of chattels mortgaged to plaintiff. Judgment for defendant. Plaintiff appeals. Reversed.

M. S. Babcock, for appellant. Hunsaker, Britt & Goodrich, for respondent.

SEARLS, C. The defendant had judgment in the above-entitled cause, from whien, and

except upon showing that he had received the consideration upon which his agreement was predicated. The mortgage remained of record, and was notice to the sheriff who levied the attachment, and who, a few days later, upon learning of the existence of the mortgage, released such attachment. Berson v. Nunan, 63 Cal. 550. We must not be understood as holding that a mortgage may not be satisfied in fact without a discharge of record, but only that in this case, as the consideration was never received by plaintiff, it was not in fact waived or discharged, and, as it still remained of record, and notice to all the world, even the defendant here, who was sheriff, was not misled by any act of the plaintiff. We are of opinion that the court below erred in holding that the chattel mortgage was released prior to the levy of the attachment, for which error the judgment and order appealed from should be reversed, and a new trial ordered.

(4 Cal. Unrep. 333) PEOPLE ▼. BANNISTER et al. (No. 21,014.) (Supreme Court of California. Nov. 10, 1893.) CRIMINAL LAW-VERDICT-DEGREE OF GUILT.

1. Under Pen. Code, § 1157, providing that whenever a crime is distinguished into degrees, the jury, if they convict, must find the degree of which defendant is guilty, the jury are not excused from finding the degree though the indictment was for burglary, of which there are but two degrees, and the court instructed that if the jury found defendants guilty they could find them guilty of no higher offense than burglary in the second degree.

2. Where the verdict fails to find the degree of the crime of which defendant is guilty, he is not entitled to a discharge, but merely to a new trial.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; W. R. Dangerfield, Judge. Arthur Bannister and Frank Hawley were convicted of burglary, and appeal. Reversed. W. I. Brobeck and P. A. Bergerot, for appellants. Atty. Gen. Hart, for the People.

SEARLS, C. Defendants were informed against and convicted of burglary. The crime consisted of entering a freight car of the Southern Pacific Company with intent to commit larceny. Defendant Bannister was sentenced to one year's imprisonment in the state prison at San Quentin, and defendant Hawley to three years at the state reform school for juvenile offenders at Whittier. The appeal is from the judgment, and the cause comes up on the judgment roll, there being no bill of exceptions. By their verdict the jury found the defendants "guilty as

charged," and recommended them to the mercy of the court. The crime of burglary is by the Penal Code divided into two degrees. Burglary committed in the nighttime is burglary of the first degree. Burglary committed in the daytime is burglary of the second degree. The judgments recite that the court, by its instructions before verdict, advised the jury that if they found the defendants guilty, they could not find them guilty of any higher offense than burglary in the second degree. The jury did not, however, by their verdict, specify the degree of burglary of which they found the defendants guilty. This was error. Section 1157 of the Penal Code provides that "whenever a crime is distinguished into degrees, the jury if they convict the defendant must find the degree of the crime of which he is guilty." The reason for a specification of the degree of the crime becomes apparent when we bear in mind that the severity of the punishment depends upon it. This court has so often declared such a verdict to be erroneous that further comment is unnecessary. People v. Lee Yune Chong, 94 Cal. 379, 29 Pac. Rep. 776; People v. Ah Gow, 53 Cal. 628; People v. Jefferson, 52 Cal. 452; People v. Travers, 73 Cal. 580, 15 Pac. Rep. 293; People v. O'Neil, 78 Cal. 388, 20 Pac. Rep. 705; People v. Campbell, 40 Cal. 129; People v. Marquis, 15 Cal. 38.

The defendants were not entitled to be discharged upon the rendition of the faulty ver dict, but are entitled to another trial. Peo ple v. Travers, supra; People v. Lee Yune Chong, supra.

It is stated in respondent's brief that one Thomas Cornwell was informed against in the same information, and that by mistake his name is omitted from the copy of the information in the printed transcript. We do not find in the minutes of the trial any allusion to him, except that he moved to set aside the verdict. There is no judgment in his case, and he is not included in the notice of appeal. We are not called upon to reverse a judgment, of the very existence of which we have no information, upon an ap peal which, so far as we know, has never been taken. If Thomas Cornwell was informed against, tried, found guilty, and sentenced to punishment, it may well be he has elected to satisfy the Judgment in preference to taking the chances of another trial, and possibly enhanced punishment, even if error intervened, which we do not presume. His case, if any he has, is not involved in this appeal.

The judgments appealed from in cases of Arthur Bannister and Frank Hawley should be reversed, and a new trial ordered.

We concur: VANCLIEF, C.; HAYNES, O.

PER CURIAM. For the reasons given in the foregoing opinion the judgment appealed from is reversed, and a new trial ordered.