'Campbell & Welton sold all the property (excepting lots 13 and 14, in block No. 13, in the town of Red Bluff) to the Sierra Flume & Lumber Company for the price of $275,000, out of which said Sierra Flume & Lumber Company retained the amount of said promissory note," etc. ** * * This is a very clear admission and statement that the Sierra Flume & Lumber Company were purchasers for value. There is no finding that the Sierra Flume & Lumber Company, or the trustees in bankruptcy, or defendant, had actual notice of the transfer of the personal property to the trustees. The record of the deed of trust operated no constructive notice of the transfer of personal property. It may be conceded that the general power of the trustees to sell and convey was co-extensive with their legal ownership, and that such power was entirely distinct from the special power to sell contained in the deed, and, as a consequence, that the deed to plaintiff passed the naked legal title to the lands therein described. There can be no doubt, however, that if plaintiff had commenced an action of ejectment, the defendant could have filed a cross-complaint, praying that the sale and conveyance to plaintiff be set aside. as But the present suit cannot be upheld as an action at law for the recovery of the possession of the real property. Even if the averment of probative facts as to the transfer of the legal title to the real estate could be held to be sufficient in the action here known as “ejectment," plaintiff has not contented himself with alleging a transfer by deed of the legal title to the trustees, and from the trustees to himself, but has averred an exact execution of the special power of sale set forth in the deed of trust. Thus the plaintiff tendered an issue as to the due execution of the special power-an issue which, claimed by appellant, could not have been tried in an action at law; an issue proper to be determined in a court of equity. It is urged by appellant that the allegation of the complaint that the sale was at public auction, to the highest bidder, for cash, is not denied by the answer. But the answer denies that the trustees had power to make the sale, and alleges that the purchase was for the trustees. The testimony that the sale was not for cash, nor as required by the special power, was admitted without objection on the part of the plaintiff. Had objection to the testimony been taken in the court below, the answer might have been amended so as to render it strictly admissible. Stringer v. Davis, 30 Cal. 318; Clark v. Phoenix Ins. Co. 36 Cal. 175. But a party cannot, for the first time, in this court object, on any ground, to evidence which was introduced by the adverse party at the trial in the court below without objection made thereto. Bliss v. Ellsworth, 36 Cal. 310. Where evidence is not objected to in the court below, because not admissible under the averments of the answer, it is too late to raise the objection in the supreme court. Hutchings v. Castle, 48 Cal. 152; Henry v. Southern Pac. R. Co. 50 Cal. 176. The issue tendered by the plaintiff was, in fact, tried, and the case is here to be treated, as if the answer had specifically denied that the sale was at public auction, or to the highest bidder, for cash. This equitable issue having been, in effect, made and tried, defendant ought not to be deprived of the benefit of a finding in its favor-as to the execution of the special power of sale, and the validity of the conveyance based upon the sale-merely because of its omission to pray that the sale be set aside and the conveyance annulled. But not only do the averments as to the due execution of the special power and the counter-statement of defendant present an issue of fact to be tried appropriately only in a court of equity, but the whole tenor of the complaint indicates a purpose to resort to the court as a court of equity. The complaint concludes with the general prayer "for such other and further relief as the equity of the case may warrant." Instead of the brief and comprehensive averments held to be sufficient in the action at law, the complaint contains a long recital of probative facts, many of which would have no place in the evidence, treating the action as simply one at law, and including statements of special equities upon which was based an application for the appointment of a receiver. A receiver was, in fact, appointed by the court below. A receiver cannot be legally appointed in an action of ejectment. Bateman v. Superior Court, 54 Cal. 285. Plaintiff selected his forum, and, having appealed to a court of equity, was not entitled to have that court try an ejectment, even if his bill should have been dismissed on the ground that he had a complete remedy at law. But he asked for appropriate decree in equity, and if he had got all implied by his allegations and prayer, the sale under the special power would have been validated. Even if we would be justified in any case in culling separated allegations from a complaint purporting to be an application to the equity side of the superior court, and, disregarding all other portions of the pleadings, in uniting such separated allegations, and creating out of them a sufficient complaint at law, we would not be justified in doing so for the purpose of maintaining a technical right to the possession on the part of the holder of the naked legal title, acquired under a sale found (upon an issue actually made) to have been a violation of the trust. In the view we have taken it is not necessary to consider the effect of the releases introduced by defendant. The judgment and order denying a new trial are affirmed. We concur: SHARPSTEIN, J.; MYRICK, J.; Ross, J. '67 Cal. 65) POWERS v. CRANE. (No. 9,841.) Filed May 25, 1885. FORECLOSURE OF CHATTEL MORTGAGE-APPEAL-BOND, EFFECT TO STAY EXECU TION. The statutory undertaking of $300, given on an appeal from a judgment of foreclosure of a chattel mortgage, will operate as a stay of execution; and if, for the purposes of staying execution, the appellant gives another undertaking, it is without consideration, and cannot be enforced against the sureties thereon. Department 1. Application for peremptory mandamus. The petitioner here recovered judgment against Johnson & Wyman in the lower court for foreclosure and sale of certain newspaper property mortgaged to secure the debt for which judgment was rendered. A new trial having been denied, Johnson & Wyman appealed, perfecting their appeal by an undertaking in $300, and an undertaking in the sum of the judgment. The judgment was affirmed, remittitur issued and filed below, and an order of sale issued thereon. On sale of the property, after payment of costs, $80 was left to be applied to the judgment. The balance of the judgment was docketed against Johnson & Wyman. Application was then made for judgment against the sureties according to the condition of the undertaking. The application was refused. Edward Lynch, for petitioner. B. McFadden and Flournoy, Mhoon & Flournoy, for respondent. Ross, J. The petitioner's counsel states that if the undertaking given to stay execution in the action entitled Johnson v. Powers was not binding upon the sureties thereon, it would be idle to compel the respondent by mandamus to act upon the petitioner's motion. In this respect we agree with petitioner, and therefore inquire whether the undertaking is binding upon the sureties. Johnson v. Powers was an action in which, by cross-complaint, the defendant therein sought the foreclosure of a chattel mortgage. The court, by its decree, ascertained the amount due from the plaintiff to the defendant, and ordered a sale of the mortgaged property to pay the amount, with the usual provision in regard to the payment of costs, commissions, etc., and directing that in the event the proceeds of the sale be insufficient to pay the mortgage debt, that a judgment be docketed against the plaintiff in defendant's favor for such deficiency. From that judgment the plaintiff appealed, and, for the purpose of staying execution of the judgment, gave, in addition to the statutory undertaking of $300, an undertaking in double the amount of the sum ascertained by the decree to be due from the plaintiff to the defendant. On appeal the judgment was affirmed, and upon the going down of the remittitur the defendant's costs of appeal were paid to him, and an order of sale issued, under which the property was sold; and, having realized but a trifle of the amount of the mortgage debt, the defendant, who is the petitioner here, sought by motion in the court below to have judgment entered against the sureties on the undertaking for the amount of the deficiency. On behalf of the sureties, who are the real parties in interest here, it is claimed that the undertaking, except in so far as the $300 is concerned, and about which no question arises, was without consideration and void. The pretended consideration therefor was a stay of execution of the decree appealed from. And if the law itself operated a stay upon the giving of the $300 bond, it would seem that the point is well taken. That the statute did so operate was held by this court in the case of Snow v. Holmes, 64 Cal. 232. As the statute itself wrought the stay, there was no consideration for the sureties' promise. The benefit which the plaintiff in the case of Johnson v. Powers secured from the appeal, came from the statute and not from the promise of the sureties. Hence what is said in Hathaway v. Davis, 33 Cal. 169, is not applicable. Writ denied. We concur: (67 Cal. 79) MCKINSTRY, J.; MCKEE, J. NIDEVER V. HALL. (No. 8,343.) Filed May 28, 1885. SLANDER-ACTIONABLE WORDS, PROOF OF. In slander for words not actionable per se, the plaintiff may prove the existence of some extraneous facts which make the words spoken actionable per se, and under the general issue plaintiff may have the right to disprove such facts. The plaintiff must aver and prove that the words were actually used in their actionable sense, and were applied to the plaintiff, and that the hearers so understood them; and the testimony of hearers as to their understanding of the words is admissible on this point. Department 1. Appeal from the superior court of the county of Monterey. A. S. Kittredge, A. Craig, and S. F. Gill, for appellant. MCKEE, J. This is an action of slander. Substantially the charge is that, pending an action for seduction, brought by Barbara M. Hook against James A. Hall, R. F. Hall, the father of the said James A., in the presence of the father of the plaintiff in this case, and in the presence of several other persons, published of and concerning the plaintiff these words: "He [the plaintiff] virtually acknowledged to me that he had sexual intercourse with Barbara M. Hook;" and that by the publication of these words to his father and to the other persons, pending the suit for seduction, the defendant intended to impute to him a want of chastity. At common law the words laid in the complaint were not actionable in themselves, or by reason of the existence of extraneous acts and circumstances tending to prove that they were spoken for the purpose of imputing a want of chastity; because unchastity, as a subject of ecclesiastical cognizance, was not punishable in common-law courts. In that particular, however, the common law has been changed by the Code law of the state. Section 46, Civil Code, declares: "Slander is a false and unprivileged publication other than libel, which (1) charges any person with crime, or with having been indicted, convicted, or punished for crime; (2) imputes in him the present existence of an infectious, contagious, or loathsome disease; (3) tends directly to injure him in respect to his office, profession, trade, or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profit; (4) imputes to him impotence or a want of chastity; or (5) which, by natural consequence, causes actual damage." And upon subdivision 4 of the section this action was brought. Plaintiff did not consider the words laid in his complaint as slanderous in themselves. He therefore connected them, by proper averments, with the extrinsic facts and circumstances in which they were published, in order to show the slanderous meaning expressed by them. On the complaint defendant took issue by specific denials of each of its averments; and he affirmatively alleged that there was in general circulation, in the neighborhood and surrounding country where Barbara M. Hook and the plaintiff resided, a report prejudicial to the character of the plaintiff as to his chastity, in connection with the name of the said Barbara, and for the purpose of ascertaining the truth of the report he interviewed the plaintiff himself on the subject, and in that interview the plaintiff acknowledged that the report was true; and afterwards, when the father of the plaintiff and other persons made inquiries of him as to the matter, he spoke to them the words laid in the complaint, without meaning, or intending thereby to assert or chårge, that the plaintiff was, in fact, guilty of unchastity. The issues raised by the answer involved the publication of the words laid in the complaint, the truth or falsity of the extrinsic facts and circumstances in which they were published, whether they were published concerning the plaintiff, and whether they were understood by the persons in whose presence they were published to have the slanderous meaning imputed to them. On the trial of the questions at issue plaintiff rested his case upon evidence tending to prove the publication of the words as averred in his complaint, the pendency of the action for seduction, and the conversations between defendant and himself, and defendant and other persons, as to the transactions involved in that action, without evi dence that the persons with whom the defendant had those conver sations understood the meaning of the words to be what the plaintiff alleged. There was a motion made for a nonsuit, which was denied. The defendant was then called as a witness in his own behalf, to testify as to the conversations between himself and the plaintiff and other persons in connection with the charge against him, the trans |