was proved that the bank of the creek where the ram was placed was from 6 to 10 feet high, and was nearly perpendicular, and that from the fence to the top of the bank was about 12 feet. The road was therefore narrow at that point, and, as stated by defendant, it was difficult, if not impossible, to drive a four-horse team with a loaded header wagon over it. This was because there was quite a sharp bend in the road there, and also because there was a large sycamore tree standing near, which made the passage round the bend more difficult. Defendant testified that he wanted to cut down the tree, but plaintiff objected to his doing so, and "said the tree belonged to him, and not to do it. He says he sold me the right of way, but never sold me the timber." And one of his witnesses testified that "if the tree would be taken down, and you drive four horses, it will give your leaders more room to swing around the road where the bend is." The plaintiff testified: "I am prepared, at any time that defendant wishes to widen his driveway by put ting in a bulkhead, to take my ram further over, and would be willing to set my fence further away. I told Machado that, whenever the rams interfered with his road or his business, I would take them out of there; and, if he wishes to widen his road by putting in a bulkhead, I will take them away. The creek is very crooked; so is the road." In accordance with this offer, the judgment, as we have seen, permits the defendant to widen his road by filling up or bridging over the gulch described in the findings, where the same encroaches upon his way, and limits the plaintiff's right to use the way in any manner that will prevent defendant from using the same for a convenient road, or from repairing the same. As thus entered, the judgment promotes justice, and does no wrong to either party. There was no material error in the rulings of the court. The judgment and order appealed from should be affirmed.

We concur: SEARLS, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

(114 Cal. 526)

MURPHY v. CLAYTON. (Supreme Court of California. ADMINISTRATORS

(No. 15,914.)1

Feb. 4, 1896.) RIGHT TO PROPERTY SOLD BY DECEDENT.

A sale of chattels by decedent, though not accompanied by delivery, having been valid against him and his heirs, and therefore his administrator, recovery thereof by the purchaser from the administrator cannot be defeated, under Code Civ. Proc. §§ 1589, 1590, providing that, when there is a deficiency of assets in the hands of an administrator, he shall sue for, and may recover, for the benefit of creditors, property conveyed by decedent in fraud of creditors; it not appearing that the claims against the estate which have been allowed by the adminis

Rehearing granted

HAYNES, C. This action is in claim and delivery, brought by the plaintiff to recover from the defendant the possession of certain horses. The complaint is in the usual form, and was unverified. The defendant, in his answer, first pleaded a general denial, followed by two separate defenses, the first of which alleged that Daniel J. Murphy, in his lifetime, was the owner of, and in the exclusive possession of, and entitled to the possession of, all said property; that he died intestate June 20, 1893; that on July 21, 1893, the defendant was duly appointed administrator of the estate of said decedent; and that the said properties "all and singular were at the date of decedent's death, and ever since have been, and now are, a part of said estate, and defendant then took them, and has ever since held them, as part of said estate, and for the purpose of administration thereof, as administrator aforesaid, and not otherwise." The second special defense alleged the facts above stated concerning the death of Daniel J. Murphy and defendant's appointment as administrator, and further alleged "that said properties all and singular were at the date of decedent's death, and ever since have been, and are now, a part of said estate for the purpose of its administration, and for the payment of the debts of said decedent and of said estate; that defendant, as administrator, and not otherwise, took said properties, and has ever since held and now holds them, as part of said estate, for the purpose of administration thereof as aforesaid; that the value of the personalty of said estate, including said properties, does not exceed $15,000; that the debts of said estate aggregate $90,000, and are wholly unpaid." The action was tried by the court, without a jury. The court found that the plaintiff had acquired certain of the horses from her husband, James Murphy, in his lifetime; and these, together with their offspring, the court found she was entitled to recover, together with certain other of the horses which were purchased by defendant's intestate for the plaintiff with her funds; and that the deceased, Daniel J. Murphy, was at the time of his death the owner of two of said horses, known as "Viva" and "Viva Williams." There is no controversy here as to any of the horses above mentioned. The fifth and sixth findings are as follows: "(5) That on or about the 25th day of May, 1892, said Daniel J.

Murphy, in settlement of his accounts with the plaintiff, sold and transferred to the plaintiff, in consideration of said settlement, certain horses in controversy in this action, namely, Carrie Malone, Danton Moultrie, Governor Pico, Clyde, Chloe Thorne, Alien, and her colt foaled in 1893. (6) That on and before the 25th day of May, 1892, and at the time of said sale and transfer, said Daniel J. Murphy was the sole owner of and in the sole possession and control of all said animals in his own name; that said sale was complete and valid between the parties thereto, but was not accompanied by an immediate or any delivery, or followed by an actual or continued or any change of possession of said animals, or any of them, mentioned in finding 5, but said animals remained in the sole possession of said Murphy continuously to the day of his death; that during the same period all other property of the plaintiff was in his keeping, as her general manager and agent." The court further found that Murphy died June 20, 1893; that defendant was appointed and qualified as administrator July 21, 1893; that notice to creditors had been published, but the time for the presentation of claims would not expire until May 27, 1894; that claims against decedent, aggregating, with interest, about $80,000, had been presented, allowed, and filed, and were unpaid; that the value of said estate is in personalty $14,377.75, and in realty $106,835.17; that plaintiff had brought suit, which is still pending, in which she asserts title in herself to a portion of said realty of the value of $17,500, and had also brought another suit, which is still pending, in which she asserts a life estate of the value of $10,000; that, in addition to said claims allowed and filed, suits are pending for the recovery of judgments against said estate amounting to $6,000; that plaintiff had also brought suit against said administrator to recover personal property aggregating in value $2,869; that the court had awarded to the widow of `decedent the sum of $225 per month, from June 20, 1893, and also certain personalty, as exempt, of the aggregate value of $1,000, and also a homestead of the value of $3,000. The court further found "that plaintiff was at the commencement of this suit, and is now, the owner of all the animals mentioned in the complaint, except Viva and Viva Williams"; that she was then, and is now, entitled to the possession of all except Viva and Viva Williams and those named in finding No. 5; and "that she was not then, and is not now, entitled to the possession of said lastnamed animals." As conclusions of law, the court found that the transfer of the animals mentioned in finding No. 5 was void as to the creditors of the decedent; that the defendant, as administrator, is entitled to retain possession of them "for the purpose of applying the same, if necessary, to the payment of the creditors of said decedent, in due course of administration of said estate." Judgment

was entered accordingly, and this appeal is by the plaintiff, upon the judgment roll, from that part of the judgment which awards to the defendant the possession of the animals mentioned in finding 5, "for the purpose of applying the same, if necessary, to the payment of the creditors of said decedent, in due course of administration of said estate of D. J. Murphy, deceased."

Counsel for appellant contends that the findings, so far as they relate to that portion of the judgment involved in this appeal, are outside of the issues; that, as between the plaintiff and her son Daniel J. Murphy, the sale of the horses to her was good and valid; and that in order to avoid the sale, in the interest of creditors, the facts which it is claimed made such sale void as to creditors must be alleged, and could not be proved under ar allegation of ownership of the decedent at the time of his death, nor under a general denial of plaintiff's ownership and right of possession. In this contention I think that appellant is clearly right, though respondent asserts that the evidence upon which the findings were based was introduced without objection that it was inadmissible under the pleadings, and that, therefore, the judgment cannot be reversed upon that ground. This controversy between counsel becomes immaterial in view of the conclusion, hereafter reached, that the findings do not support that part of the judgment appealed from. The court found that, as between the plaintiff and her son, the sale was valid, and that she was the owner of the property in question; and therefore, unless other facts existed affecting the transfer or the property transferred, it could not have been part of Daniel J. Murphy's estate. sale, being valid between the plaintiff and the heirs of the deceased, to whom his estate descended, and therefore valid as against the administrator, gave him no right of possession resulting merely from his appointment and qualification as administrator; nor could he assume the existence of any facts or circumstances which, if shown to exist, might authorize him to acquire the possession by a judicial proceeding. Besides, the possession of the deceased after the sale was as the general agent of the plaintiff, and his possession was her possession. The record contains no statement or bill of exceptions, and the circumstances attending the possession by the deceased, and giving it character, are not before us; and we must therefore accept the finding, and assume for the purposes of the case that the change of possession was not such as the statute requires.

The

The only authority given executors or administrators to recover, for the benefit of creditors, property conveyed or transferred by the deceased in his lifetime, is found in sections 1589 and 1590 of the Code of Civil Procedure. These sections are as follows:

"Sec. 1589. When there is a deficiency of assets in the hands of an executor or admin

istrator, and when the decedent in his lifetime has conveyed any real estate, or any rights and interests therein, with intent to defraud his creditors, or to avoid any right, debt or duty of any person, or has so conveyed such estate that by law the deeds or conveyances are void as against creditors, the executor or administrator must commence and prosecute to final judgment any proper actior for the recovery of the same; and may recover for the benefit of the creditor all such real estate so fraudulently conveyed; and may also, for the benefit of the creditors, sue and recover all goods, chattels, rights or credits which have been so conveyed by the decedent in his lifetime, whatever may have been the manner of such fraudulent conveyance.

"Sec. 1590. No executor or administrator is bound to sue for such estate, as mentioned in the preceding section, for the benefit of the creditors, unless on application of the creditors, who must pay such part of the costs and expenses of the suit, or give such security to the executor or administrator therefor as the court, or a judge thereof, shall direct."

Assuming (without deciding) that section 1589, Code Civ. Proc., applies to transfers which are void as against creditors under section 3440 of the Civil Code, as well as to transfers and conveyances made with intent to defraud creditors, specified in sections 3439 and 1227 of the same Code, and that an administrator is one on whom a decedent's estate "devolves in trust for the benefit of others than himself" (sections 3439 and 3440, Civ. Code), the facts found by the court in this case would not have authorized the administrator to have prosecuted an action to recover the property in question, and therefore do not constitute a defense to this action, or sustain. the judgment appealed from. In Field v. Andrada, 106 Cal. 107, 110, 39 Pac. 323, it was said: "The obvious intent and meaning of this section is that two things must concur to authorize the administrator to commence an action to set aside a deed of his intestate as void against creditors: (1) There must exist creditors to be paid; and (2) there must be an insufficiency of assets in the hands of the administrator to meet their demands. Both of these facts must coexist to bring the case within the limitations of the statute. Ohm v. Superior Court, 85 Cal. 545, 26 Pac. 244. If there are no creditors, or, there being creditors, the administrator has sufficient assets of the estate in his hands to meet their demands, in either case he is without power to maintain the action. ** It is held in Ohm v. Superior Court, supra, that, to constitute a creditor within the meaning of the statute, 'he must be a creditor whose claim has been allowed by the administrator, or is evidenced by & judgment;' citing Mesmer v. Jenkins, 61 Cal. 153; McMinn v. Whelan, 27 Cal. 300." Under these authorities, claims against the

estate which, have not been accepted or allowed by the administrator, or which have not been reduced to judgment, do not bring the claimants within the category of creditors; and it therefore appears from the findings that there is not a deficiency of assets in the hands of the administrator to meet the demands of creditors, and therefore the circumstances do not exist which would authorize a recovery against the plaintiff by the administrator. The findings therefore do not support the judgment appealed from, but require a judgment for the plaintiff as to all the property except the two horses Viva and Viva Williams. The statement in the eleventh finding "that she [the plaintiff] was not then, and is not now, entitled to the possession of said last-named animals" (the ones here in question), is an erroneous conclusion of law from the facts precedently stated. We therefore advise that that part of the judgment appealed from be reversed, with directions to the superior court to enter judgment in favor of the plaintiff for the animals mentioned in the fifth finding.

We concur: SEARLS, C.; VANCLIEF, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment awarding the defendant the possession of the animals mentioned in the fifth finding is reversed, with directions to the superior court to enter judgment upon the finding in favor of the plaintiff for the possession of said animals, or for the value thereof as found by the court in case a delivery thereof to the plaintiff cannot be had.

(111 Cal. 237) KILBURN et al. v. LAW, Judge. (S. F. 287.) (Supreme Court of California. Feb. 8, 1896.) REMOVAL OF BANK EXAMINER-CRIMINAL PROSECUTION-WRIT OF PROHIBITION-JURISDICTION.

1. An accusation under Pen. Code, § 772, requiring the superior court, on presentation of a sworn statement accusing a public officer of malfeasance or neglect of duty, to cite such officer to appear, and to hear the accusation and evidence, and, if the charge is sustained, to enter decree of removal, and judgment of $500 in favor of the informer, is a criminal, and not a civil. proceeding.

2. Bank examiners cannot be prosecuted under Pen. Code, § 772, providing for the removal of public officers from office for malfeasance or neglect of duty, since, by Id. §§ 888, 889, prosecutions for removal can only be maintained against district, county, municipal, or township officers

3. The fact that the objection that a com plaint does not state a case is in the nature of a demurrer, of which the superior court has jurisdiction, cannot be urged against the jurisdiction of the supreme court to entertain an application for prohibition to stay proceedings in the superior court in a case where no facts could be alleged which would give the lower court jurisdiction.

R. B. Carpenter, for petitioners. Andrew J. Clunie and V. G. Frost, for respondent.

TEMPLE, J. This is an application for a writ of prohibition against Hon. J. K. Law, judge of the superior court of Merced county, commanding him to desist from any further proceedings against the petitioners as bank commissioners in the matter of the accusation of W. N. Sherman against them. October 8, 1895, said Sherman filed in the superior court of Merced county a verified accusation charging that the bank commissioners had willfully neglected to perform the duties of their office, in that, having the means to do so, they did not, up to September 1, 1895, ascertain that the Merced Bank was insolvent and unable to fulfill its obligations, and that it was unsafe to continue business, and that, having the means to ascertain these facts, they did not report the same to the attorney general of the state of California, as required by law, and that having ascertained on the 12th day of September, 1895, that said bank was insolvent and in an unsafe condition, they did not report, and have not since reported, such facts to the attorney general. The accusation also charged that the Merced Bank was insolvent and unsafe. and that on the 16th day of October, 1894, suspended payment and closed its doors, and that said suspension has ever since continued, and the bank has paid no part of the sums due its depositors, and that the neglect of duty on the part of the bank commissioners has entailed great loss on the part of depositors in said bank. The petitioners state that neither of them was a citizen of the county of Merced, wherein the accusation was filed, but were then temporarily at Merced when this proceeding was commenced, engaged in the discharge of their official duty. Upon the presentation of said accusation to the superior court of Merced county, it is averred, the court issued a citation, which was served upon the petitioners, requiring them to appear and answer the accusation; and the petitioners charge that notwithstanding said accusation was filed without authority of law, and the proceeding is illegal, respondent will, unless restrained, entertain the same, and will enter judgment removing petitioners from office. The answer admits all the material allegations, except that respondent denies that he will proceed to remove petitioners from office, but avers that he will proceed to hear the accusation, and determine the same, as required by section 772 of the Penal Code.

Petitioners contend that, inasmuch as the bank commissioners are state officers, and not district, county, municipal, or township officers, they cannot be prosecuted and removed from office under section 772 of the Penal Code, and they claim that sections 888

this it is suggested that, although section 772 is in the Penal Code, the proceeding there authorized constitutes a civil case; it is simply a law misplaced. It is even contended that an action upon a statute to recover a fixed penalty was at common law an action of | debt,—that is, a civil action,-and the legislature cannot, by providing for such a case in the Penal Code, thereby convert that which is essentially a civil action into a criminal proceeding. That the legislature intended to make it a criminal prosecution is, to my mind, clear. It is a proceeding for the punishment of an offense in its nature criminal. No one denies that willful neglect of official duty is, or may be made by statute, a crime. It has always been so treated. That this section is in the Penal Code is, of itself, sufficient to indicate the legislative intent. But this is not all. Section 682 of the Penal Code provides that every public offense must be prosecuted by information or indictment, except (1) "Where proceedings are had for the removal of civil officers of the state," etc. Section 888, that offenses triable in the superior courts must be prosecuted by indictment or information, except as provided in the next section. Section 889: "When the proceedings are had for the removal of district, county, municipal or township officers, they may be commenced by an accusation or information, in writing, as provided in sections seven hundred and fiftyeight and seven hundred and seventy-two." Here is an express provision for the prosecution of certain officers for public offenses under section 772. This is equivalent to an express declaration by the legislature that the proceeding authorized by section 772 is the prosecution of a public offense. Is there anything in the nature of the proceeding authorized by section 772 which would make it a case at law, rather than a criminal prosecution? There are many civil actions, the result of which may be highly penal, and which partake of the nature of criminal prosecutions. And yet, since the purpose is to redress or prevent a private injury, they cannot be classed as criminal proceedings. But when the object is to punish the defendant for the commission of an act, and the public, and not individuals, as such, are interested in the judgment sought, and where, as here, the act is declared a public offense, and especially if at common law it was so considered,-the presumption is very strong, if not conclusive, that the proceeding is a criminal prosecution. The features of section 772 which gave it the appearance of providing for a civil action are: (1) The defendant is cited to appear and answer; (2) the court must proceed to hear the evidence in a summary manner, which, it is claimed, means that a jury is not required; (3) the court must enter a decree depriving the ac cused of his office, and judgment in favor of the informer for $500 and costs; and, (4) as

it is claimed, the proceeding is not in the name of the people, as directed by section 684 of the Penal Code. Probably no one would think any one of these provisions sufficient to constitute the proceeding a civil case, in view of the provisions alluded to, which declare that this is a criminal proceeding, but it may be thought that all together plainly indicate a civil case. The first cannot be of consequence. The legislature may provide for the prosecution of a criminal action without the arrest of the defendant. If the fact that it is a criminal proceeding implies the right to a trial by jury, it would follow that, in a prosecution under this section, defendants are entitled to a jury, and the decree and judgment provided would follow a verdict of guilty. The judgment imposing a fine, which, in whole or in part, shall go to the informer, is not such an anomaly in criminal practice as to require discussion. Perhaps a prosecution under this section ought to be in the name of the people. There is nothing indicating a contrary intent in the statute. The cases have been entitled as they were under the act of 1853. This was natural, as that act seemed to make it a proceeding by the informer against the person accused. The matter does not appear to be of much consequence; and it is enough to say that the statute has not provided that the action shall be in the name of the informer, and if section 684 is applicable, as I think it is, it ought to be in the name of the people. It follows that the point that such prosecution cannot be had, under this section, against the bank commissioners, must be sustained. They are not district, county, municipal, or township officers; and, by sections 888 and 889, prosecutions under section 772 can only be maintained against such officers.

It is said that the objection that the complaint does not state a case of which the court has jurisdiction is in the nature of a demurrer, and that the superior court has jurisdiction to consider all such questions, and they cannot be made the ground for a writ of prohibition. This point cuts too deep, and, if sustained so broadly, would deprive this court of all power to issue writs of prohibition in cases where a lower tribunal is exceeding its jurisdiction. It certainly is not good in a case like this, where no facts could be alleged which would give the lower court jurisdiction. Let the writ issue as prayed for.

We concur: MCFARLAND, J.; HENSHAW, J.; VAN FLEET, J.; HARRISON, J.

BEATTY, C. J. I concur in the judgment.

GAROUTTE, J. I concur in the foregoing opinion, and cite the recent cases of In re Curtis (Cal.) 41 Pac. 793, and Wheeler v. Donnell (Cal.) 43 Pac. 1, as directly deciding

that an accusation brought under section 772 of the Penal Code is a criminal proceed. ing.

(5 Cal. Unrep. 277) SILVA v. SPANGLER. (S. F. 104.) (Supreme Court of California. Feb. 7, 1896.) NUISANCE-PLEADING-DEMURRER-WAIVERWAY-DEDICATION AS HIGHWAY.

1. Under Code Civ. Proc. § 430, the failure of a complaint, in an action to abate an embankment, to allege any damage to plaintiff different or peculiar from that resulting to the common public, is not a ground of demurrer, though, in a proper case, the objection may be urged, under a demurrer, on the ground that the complaint does not state facts sufficient to constitute a cause of action.

2. Under Code Civ. Proc. § 434, providing that if objections to a complaint are not taken, either by demurrer or answer, the defendant must be deemed to have waived the same (with certain exceptions), the objection that a complaint is ambiguous or uncertain, that being a specific ground of demurrer, is waived, if not raised by demurrer.

3. The fact that a strip of land, over which a private right of way had been granted by the owner to two other landowners, to enable them to reach a highway from their land, is used, without objection, by others, going to and from their own lands, or the places of the two grantees, does not establish a dedication to the public.

4. In an action to abate an embankment, thereby throwing surface water over plaintiff's right of way, where there is no allegation that the right of way was a public one, it is unneces sary to allege any special injury differing from that resulting to the public.

Commissioners' decision. Department 1. Appeal from superior court, Santa Clara county; John Reynolds, Judge.

Action by Emanuel P. Silva against Antonio Spangler. Decree for plaintiff, and defendant appeals. Affirmed.

Wm. L. Gill, for appellant. C. L. Witten and Jackson Hatch, for respondent.

SEARLS, C. This action is brought to abate an embankment constructed by defendant, whereby the surface water is alleged to be prevented from flowing from and over a private right of way owned and possessed by him,, the said plaintiff, and to enjoin defendant from maintaining such embankment. Plaintiff had a degree as prayed for, and this appeal is from the judgment, and from an order denying defendant's motion for a new trial. The amended complaint of plaintiff was demurred to, upon two grounds, viz., "that said amended complaint does not state facts sufficient to constitute a cause of action," and upon the further ground "that plaintiff does not allege any damage different or peculiar than that resulting to the common public." The last cause of demurrer assigned is not one for which a demurrer can be properly interposed, under section 430 of the Code of Civil Procedure. The same cause may, however, be urged, in a proper case, under the objection that the "complaint does not state facts