judge, and the further hearing continued for one week. July 1st an order was made and entered by said court to the effect that said sureties were insufficient, and requiring the administratrix to file additional security within five days. This order was not served upon the administratrix, nor was any notice thereof given her, nor was any order made that she be notified thereof. July 9, 1895, an order was made by the court suspending the powers of the administratrix, and also another order appointing a special administrator of said estate. The present application is for a writ of review, and to annul the last-named orders, upon the ground that they were without the jurisdiction of the court. The ground upon which it is claimed by the petitioner that the order was without the jurisdiction of the court is that no notice of the order requiring her to give the additional security was ever served upon her, and that before she could be in default for not complying therewith she was entitled to notice thereof, and that without such service of notice the court had no power to make an order visiting her with any penalty.

The proceedings were taken under the provisions of section 1394, Code Civ. Proc., and the petitioner was present in person and by her attorney at the hearing under the citation. At the close of the examination on that day an order was made by the court, and entered in its minutes, "that the further hearing of the matter be regularly continued and deferred for one week, to wit, July 1, 1895, at 1:30 p. m." July 1st the court made an order finding that the sureties were insufficient, and "that said administratrix, within the five days next ensuing, cause to be executed and presented to this court, or the judge hereof, for approval, additional security, as follows" (specifying the amount); and it was also stated in this order, "that said administratrix is represented in court at the time of the rendition and entry of this order by her attorney, and that she was regularly cited to be present at this hearing." The minutes of this day were subsequently amended by the court to show "that said administratrix was represented in said court at said time by her attorney, W. B. Lardner, and that said Lardner then and there, on her behalf excepted to the said order requiring further security, and granting her five days within which to give the same." July 9th an additional bond was presented on behalf of the administratrix, with a request by her counsel that the same be approved by the court. This request was denied, and the court then made an order "that the right of the administratrix to the administration of this estate cease," and on the same day made another order "that her powers as such administratrix be and the same are hereby suspended, and her letters as such revoked, until a further hearing upon the question of her permanent removal, now pending, be heard on September 12, 1895."

The administratrix was present in person, and was also represented by her attorney, at the hearing on June 24th; and, if the court, at the close of the hearing on that day, had determined that the sureties were insufficient, and made the order requiring her to give additional security within five days, it would have been a personal direction to her to that effect, and her failure to comply with such order would have caused her right to the administration to cease. Section 1395 does not require any order to be served upon the administratrix, but declares that the mere failure to give the security within the time fixed by the judge's order shall of itself without any further action on the part of the court, cause the right of the administrator to the administration to cease. The continuance of the hearing from June 24th to July 1st had the legal effect to continue until that day the appearance in person and by attorney, which the administratrix made on the 24th of June, and to give to the order that was made on the 1st of July the same effect as if it had been made at the close of the hearing on the 24th of June. Having taken an exception to the order when it was made, it would not be competent for the administratrix afterwards to make the objection that the order had not been served upon her. Her subsequent request to the court to approve "the additional bond heretofore required by the court" must also be regarded as a waiver of the service of the order, even if a service thereof was required.

Upon the failure of the administratrix to file. the additional security required by the order of June 24th, and the consequent cessation of her right to the administration of the estate, the court was required by section 1395 to appoint as administrator "the person next entitled to the administration on the estate, who will execute a sufficient bond," and was authorized to make an order suspending the powers of the petitioner until such fur ther appointment could be made, and in the meantime to appoint a special administrator of the estate. Code Civ. Proc. § 1411. The alternative writ heretofore issued is discharged.

bezzlement of money collected by him from a debtor of his principal, after his discharge, the indictment alleging ownership in the debtor, evidence of embezzlement from the principal about the same time is admissible.

4. In embezzlement against an agent, receipts given by him to debtors of his principal over his own name are admissible in evidence against him.

5. That defendant's counsel on cross-examination presented a paper to the witness, and requested him to identify certain entries therein, but did not offer the paper or the items in evidence, does not entitle the prosecution on reexamination to introduce the paper in evidence.

6. In a prosecution for embezzlement, it is error to allow the prosecution to cross-examine defendant as to bets made by him at a race track, defendant not having testified in regard thereto on his examination in chief.

7. It is error to allow witnesses to reiterate their testimony under the guise of rebuttal.

8. Under Const. art. 6, § 19, prohibiting judges from instructing in criminal cases as to the matters of fact, an instruction to the jury on defendant's testimony that in "weighing his testimony you are to consider what he has at stake. You are to consider the temptations brought to bear upon a man in his situation to tell a falsehood for the purpose of inducing you to acquit him or to disagree," is ground for reversal.

Department 2. Appeal from superior court, city and county of San Francisco; W. R. Daingerfield, Judge.

W. W. Van Eman was convicted of embezzlement, and appeals. Reversed.

Bruner & Bruner, for appellant. Atty. Gen. Fitzgerald, for the People.

He ap

Al

MCFARLAND, J. The defendant was charged with embezzling $100, the property of one J. Poppa, and was convicted. peals from the judgment, and from an order denying his motion for a new trial. though the case must be reversed for reasons hereinafter given, a few of the points made by appellant which are not tenable must be noticed because they may arise upon another trial.

1. It is contended that the money alleged to have been embezzled was not the property of Poppa, but was the property of the Savage Commercial Company. The appellant had for several years been the agent of said company, with authority to sell goods and collect bills. He had sold goods frequently to Poppa, and had collected the amounts due said company for said goods. On December 13, 1893, he collected from Poppa the $100 alleged to have been embezzled. Now, witnesses for the prosecution testified that appellant had been discharged from the employ of said company several days prior to said December 13th. If this is true, then there was no fatal variance between the indictment and the proof; and, in that event, the fact that Poppa was not notified of appellant's discharge, and therefore could compel the company to credit him with the money, makes no difference. If, however, appellant had not been discharged on the 13th, then the money was the property of said company, and appellant could not be convicted under

the indictment. We do not think that a demand by Poppa on appellant for the money was, under the circumstances, necessary. We do not think that the court erred in allowing evidence tending to show other embezzlements by appellant of moneys of said company about the time of the alleged embezzlement charged in this indictment. Neither do we think that the court erred in admitting receipts given by appellant over his own signature to certain customers of said company. We do not mean to say that such a receipt would, itself, be sufficient to show an embezzlement; but it would be an act of a defendant admissible as evidence on that issue. The question presented in Ford v. Smith, 5 Cal. 314, was a very different one. There it was attempted to introduce the receipt of a third party to prove that the defendant in that case had paid money.

2. On the cross-examination of the people's witness, Ade, counsel for appellant presented a paper to the witness and asked him to identify two items in it, but did not offer the paper or the items in evidence. On re-examination the prosecution offered the paper in evidence in explanation of the two items, and it was admitted over appellant's objection; but as the appellant had not offered the items in evidence, it was clearly erroneous to allow the introduction of the paper by the prosecution at that time. The court also erred in allowing appellant to be cross-examined about some bets which he made on said December 13th, at the race track. It was not proper cross-examination, for it was not a matter about which he testified in chief, nor was it relevant; and its effect was to prejudice appellant in the minds of the jurors. We think that the court improperly allowed witnesses for the prosecution to reiterate their testimony under the guise of rebuttal. There are also minor points made on alleged errors in rulings on the admissibility of evidence, which are hardly of importance enough to demand special notice.

3. But, whether or not the errors above noticed are sufficiently grave to cause a reversal, the judgment and order appealed from must be reversed on account of the instructions given by the court to the jury on the subject of the credibility of the appellant as a witness. If the question were entirely an open one, we would feel constrained to hold, upon principle, that any instruction at all as to the credibility of any witness, or the weight to be given to his testimony, is violative of section 19 of article 6 of the constitution, which provides that "judges shall not charge jurors with respect to matters of fact," and section 1847 of the Code of Civil Procedure, which, referring to a witness, provides that "the jury are the exclusive judges of his credibility.". But in People v. Cronin, 34 Cal. 191, which was decided nearly a generation ago, an instruction was approved which stated in general terms that, when a defendant had appeared him

self as a witness, the jury should consider the situation under which he gave his testimony, the consequences to him from, the result of the trial, and the inducements and temptations "which would ordinarily influence a person in his situation." During succeeding years a similar instruction was several times approved, and as district attorneys and trial courts persisted in asking for and giving it on all occasions, it was evident that the rule could not be changed without causing reversals in nearly every case on its way here by appeal. Moreover, the instruction in the Cronin Case was very general in its language, and could hardly be construed as an intimation from the judge that he doubted the truth of the defendant's testimony in a particular case, and as therefore it could probably do no harm, it was no doubt better to allow the rule to stand than to disturb the course of justice in many cases by overruling it. But trial courts, moved, no doubt, in many instances by prosecuting officers, began to gradually expand the Cronin instruction, and to substitute for it their own language; and the danger of that course has been many times pointed out by this court. It will be profitable, perhaps, to notice here a few of the opinions and decisions upon the subject, with the hope that officers intrusted with the administration of the criminal law who have not read those opinions and decisions may happen to notice the present opinion.

In People v. Murray, 86 Cal. 31, 24 Pac. 802, the court, speaking of the Cronin instruction, said: "That instruction has been affirmed in subsequent cases, and it is now too late to question its correctness; but if courts and prosecuting attorneys think it their duty to have an instruction on that subject in every case, they should be careful to go no further in that direction than courts have already gone. An instruction giving the general rule can do no harm, and is not of much consequence, for every intelligent juror knows, without any instruction on the subject, that a defendant, whether innocent or guilty, is deeply interested in being acquitted. But when such an instruction is reiterated, and put into exceedingly strong language, so as to give it peculiar emphasis, it is too apt to lead the jury to believe that the court thinks the defendant in the particular case on trial to be unworthy of belief. The credibility of the witness in such a case should be left as much as possible to the jury." In People v. Faulke, 96 Cal. 20, 30 Pac. 837, the court, after alluding to the Cronin instruction, and saying "that it is too late now to question its correctness," and that "it is an instruction that can rarely be necessary," and alluding to the danger of changing it, say: "If district attorneys, as well as courts, would be careful while framing instructions not to tread upon that dangerous borderland which lies between matter of fact and matter of law, the result

of the trial would rarely be changed, and the occasion for an appeal would be avoided. After a proposition of law involved in an instruction has been often approved upon appeal, the trial court will obviate further appeal thereon if it will limit its instruction upon that proposition to the terms in which it has been approved, rather than attempt a variation upon such terms." In People v. O'Brien, 96 Cal. 182, 31 Pac. 45, the court, speaking of a like instruction, say: "As a slight change in the phraseology of the instruction, however, is liable to be construed as going beyond the limits of what has been approved, it would be a safer course, and one which would work no injustice to the people, if it were entirely omitted from the instructions asked and given on behalf of the prosecution." In People v. Curry, 103 Cal. 549, 37 Pac. 503, the court, speaking of a similar instruction about a defendant's testimony as a witness, say: "We nave often suggested that the better practice would be to refrain from instructing jurors to the effect as evidenced by the foregoing instruction, but the suggestion appears to fall upon stony places, and brings forth no results. We shall limit the rule strictly as it has been heretofore declared, and new trials will be the result if those limits are overstepped to any extent." In People v. Lang, 104 Cal. 368, 37 Pac. 1031, the court quoted with approval the language used in the opinion in People v. Murray, supra. In People v. Anderson, 105 Cal. 35, 38 Pac. 513, the court, speaking of a similar instruction, said: "While the instruction is not so wide a departure from instructions which have been allowed to pass by this court as not furnishing sufficient ground for reversal, we deem it proper to again call attention to the criticism of similar instructions in the recent cases of People v. Murray, 86 Cal. 31, 24 Pac. 802, People v. Curry, 103 Cal. 548, 37 Pac. 503, and People v. Lang, 104 Cal. 363, 37 Pac. 1031." In People v. Hertz, 105 Cal. 663, 39 Pac. 32, the trial court had undertaken to carry the doctrine so far as to include the relatives of the defendant; and the court, in its opinion reversing the case, said: "An instruction to the jury bearing upon the credibility of a defendant's testimony is not looked upon with favor by this court. We have repeatedly frowned upon the doctrine, and said that it would be limited within the strictest lines." And in the recent case of People v. Shattuck, 42 Pac. 315, in which the judgment was reversed for an instruction touching the testimony of a relative of the defendant, and in which the case of People v. Hertz, supra, was approved, the court said: "The court has fre quently hinted that a similar instruction in regard to the defendant is erroneous, because it violates the constitutional provision that the judges shall not charge juries with respect to matters of fact."

As to the general proposition that a judge

is precluded from instructing about the credibility of a witness, or any matter of fact, see People v. McNamara, 94 Cal. 509, 29 Pac. 953; People v. Cesena, 90 Cal. 383, 27 Pac. 300; People v. Travers, 88 Cal. 233, 26 Pac. SS; People v. Fong Ching, 78 Cal. 169, 20 Pac. 396; People v. Dick, 34 Cal. 663; McMinn v. Whelan, 27 Cal. 320; People v. Stanton, 106 Cal. 142, 39 Pac. 525; People v. Choynski, 95 Cal. 643, 30 Pac. 791. Instructions about the credibility of a defendant as a witness are, no doubt, sometimes given through habit, or to round out a charge; but, considering the many expressions of opinion and decisions above referred to, it is difficult to logically attribute the giving of any instruction whatever on the subject to anything else than a purpose to expressly disparage a witness before a jury,-the very thing that a court has no authority to do. However, if the language used be kept well within the general terms of the instruction in the Cronin Case, this court, for the reason that has been so frequently given, will not, on account of such language, reverse the judgment; but when the language used is such as to strongly suggest to the jury that in the case then before them the defendant testified falsely, or to intimate that such is the opinion of the court, then the judgment cannot stand. And in the case at bar we think that the language used, as was said in People v. Murray, supra, tended to "lead the jury to believe that the court thinks the defendant in the particular case on trial to be unworthy of belief." There was considerable said in the charge about the defendant's testimony. The jury was called upon to consider "what he said," and "what he didn't say"; and they were finally told: "In weighing his testimony you are to consider what he has at stake. You are to consider the temptations that may be brought to bear upon a man in his situation to tell a falsehood for the purpose of inducing you to acquit him, or to disagree." This was going far beyond the general platitudes of the instruction in the Cronin Case. It is difficult to see how it was intended for anything else than an argument against the truthfulness of appellant's testimony. Why were the jurors warned against the temptation that appellant was under to cause them, by his false testimony, to disagree? Why was anything said about disagreement before the case had been submitted to the jury? The suggestion at that time of a disagreement was a suggestion that at least some of the jurors would, or ought to, be in favor of a conviction. Indeed, it is almost impossible to conceive how the jury could have failed to understand that the opinion of the court was adverse to the credibility of the appellant. And where the language used by a court in commenting on the testimony of a defendant is materially different from that used in the Cronin Case, and we cannot see that the difference has not been prejudicial, the

on the subject that is kept within proper limits is of no real benefit to the prosecution, and therefore unnecessary; if pushed beyond those limits, it is erroneously prejudicial to the defendant. Justice would therefore be more surely accomplished if no instruction at all were given, and the credibilty of the defendant were left entirely to the jury. The correctness and justice of such a course has been frequently pointed out by this court; and if it were followed, there would be no difficulty on the subject.

The judgment and order appealed from are reversed, and the cause remanded for a new trial.

We concur: TEMPLE, J.; HENSHAW, J.

(111 Cal. 139) PURSER v. EAGLE LAKE LAND & IRRIGATION CO. et al. (Sac. 33.) (Supreme Court of California. Jan. 28, 1896.) EVIDENCE AS TO ACTION OF DIRECTORS OF CORPORATION-MORTGAGES-WHAT CONSTITUTES.

1. An instrument, in form a certified copy of a resolution by the board of directors of a corporation, duly attested by the signatures of the president and secretary, under the corporate seal, ratifying the execution of a mortgage, and sent to the mortgagee, is presumably the act of the corporation, and admissible in evidence to prove the ratification, without proof of the loss of the corporate record of such resolution.

2. An instrument reciting that defendant, to secure a certain indebtedness to plaintiff, conveys to him certain land, and that the agreement is on the express condition that, if defendant conveys to plaintiff certain other land, the instrument shall be void, and that, when defendant shall have conveyed to plaintiff the land, he shall pay defendant a certain sum, and, after defendant has made certain improvements on the land, plaintiff shall pay him a further sum, is a mortgage, entitling plaintiff to foreclose on default in payment or conveyance of the other land, without demand for such conveyance, or tender of the price to be paid thereon.

Department 1. Appeal from superior court, Lassen county; W. T. Masten, Judge.

Action by Edward T. Purser against the Eagle Lake Land & Irrigation Company, a corporation, and others. There was a judgment for plaintiff, and defendants appeal. Affirmed.

Goodwin & Goodwin, J. E. Pardee, and Spencer & Raker, for appellants. Shinn & Shinn and F. A. Kelley, for respondent.

VAN FLEET, J. Action to foreclose a mortgage given by defendant, Eagle Lake Land & Irrigation Company, to secure a promissory note of the corporation. Judgment was for plaintiff, and defendants appeal therefrom, and from an order denying them a new trial.

1. It is claimed that the finding that the corporation executed the mortgage in suit is not sustained by the evidence. This is based upon the contention that no authority was shown in the officers of the corporation to ex

ecute that instrument, and that there was no sufficient evidence of ratification of their act. The original instrument was shown to have been lost, and a certified copy of the record thereof in the county recorder's office was introduced in evidence. From this copy it appeared that the instrument had been signed and acknowledged in due form by the president and secretary of the corporation, but it did not appear that the seal of the corporation had been affixed thereto. No proof was offered to show that the seal was attached to the original instrument, nor was there evidence tending to show any antecedent authority by the corporation for the execution of the mortgage; but plaintiff produced, and was permitted, against the objection of defendants, to put in evidence an instrument purporting to be a ratification of the execution of the mortgage. This instrument was, in form, a certified copy of a resoIution by the board of directors of the corporation, duly attested by the signatures of the president and secretary, under the corporate seal. It recites that the resolution was unanimously adopted, at a special meeting of the board called for the purpose, refers to and identifies the note and mortgage in suit and certain other notes, and resolves that the execution of said instruments was "for the best interests of said corporation, and each, every, and all of said acts are hereby ratified and confirmed, and are hereby declared to be the acts of this corporation, with the full and unqualified approval of the directors of this corporation." The objection was, not that this paper, if established, did not show a ratification, but that its contents could only be competently proven by the production of the record thereof in the books of the corporation, or after a showing that no such record had been kept. We think the resolution was properly admitted. was shown that it had been furnished to plaintiff by the secretary of the corporation, and it was authenticated by the corporate seal.

It

It was, therefore, presumptively the act of the corporation, and admissible in evidence as such; and, in the absence of any countervailing proof, its recitals were binding upon the corporation. Hawley v. Paving Co., 106 Cal. 337, 39 Pac. 609; Ditch Co. v. Zellerbach, 37 Cal. 597; Underhill v. Improvement Co., 93 Cal. 300, 28 Pac. 1049.

2. It is further contended that, assuming the execution of the mortgage or instrument in suit to have been competently proven, it is not, in fact, a mortgage, but an executory contract for the sale and purchase of land; and that, as such, the plaintiff did not make a case entitling him to recover thereunder, for the reason that he failed to show that he had tendered the balance of the purchase price of the land and made demand for a conveyance, and that the defendant corporation was, consequently, not put in default. The instrument recites that the party of the first part, the corporation, "is justly indebted to

the party of the second part in the sum of $6,800, United States gold coin, secured to be paid by a certain promissory note," and then follows a copy of the note; that "for the better securing of the payment of the said sum of money so secured to be paid by the said promissory note, with interest," etc., the corporation grants, bargains, sells, and conveys to the party of the second part (the plaintiff here) certain lands, describing them. It is then provided "that these presents are upon this express condition: that if the said party of the first part shall, on or before March 1, 1893, convey or cause to be conveyed to the said party of the second part, by good and sufficient deed, free from all incumbrances," certain described lands (other than the mortgaged lands), containing 680 acres, together with a deed to sufficient water from the irrigation system of the corporation, at certain stipulated annual rates, to perpetually irrigate said land, "then, in that case, these presents and the estate hereby granted shall determine and be void." It is further provided "that, when said corporation shall have conveyed said 680 acres of land to said party of the second part, as aforesaid," the latter shall pay to the corporation the further sum of one dollar per acre for the 680 acres; that the corporation "shall grub, clear, burn, and remove the brush from said 680 acres of land, and break and plow said land" in a manner to make it suitable for seeding and cultivation; and that, upon the completion of such work, the plaintiff shall pay the corporation the additional sum of four dollars per acre for the 680 acres, on demand, in a manner therein provided. It is then finally provided that, in case the corporation makes default in the conveyance of the land as provided, then plaintiff is empowered to foreclose, and to sell the mortgaged premises, and out of the proceeds pay the principal and interest of said note, with costs, charges, and attorneys' fees, etc.

Regarded in its entirety, we think this paper was clearly a mortgage. It was designed to serve a double purpose, perhaps, but its primary purpose was to secure the indebtedness due the plaintiff. It gave the corporation the option of liquidating that indebtedness by the conveyance of certain lands and water rights, it is true; but it is not clear that it conferred upon plaintiff any corresponding right to enforce such conveyance in the event the corporation failed to exercise its right to make it. Assuming, however, that it did, it clearly gave plaintiff his election between such remedy and that of foreclosure,-upon the default of the corporation to either make such conveyance or pay the indebtedness. Nothing remained for plaintiff to perform to put the corporation in default. It is said he should have tendered the balance of the purchase price, and demanded deeds of the land and water, before suing. But we fail to discover wherein, under the peculiar provisions of the contract, there was