corporation for the purpose of furnishing gas to the inhabitants of the city of Sacramento at cheaper rates than were then prevailing there, and took stock therein, paying therefor less than its par value. They supposed that they could issue and dispose of the stock at such price as they might deem proper, and upon that understanding they took and paid for their respective shares at an agreed price, the average being about eight dollars per share. They expected to raise the sum of $100,000, and the funds necessary to start the works, from the sale of stock, and did so. At the time the works should have been completed, as well as the time they were in fact completed, the stock had no market value. There was then, and had been for years, in existence and in operation an incorporated company called the Sacramento Gas Company, whose stockholders consisted of wealthy and influential citizens of Sacramento and San Francisco, so that when the new company commenced operations it at once encountered active competition. By reason of this competition the price of gas was reduced from time to time, and so reduced that both companies were losing largely. In conducting its business, the Citizens' Gas-light & Heat Company was compelled to expend large sums of money and incur large liabilities, in order to meet which it levied an assessment of $1.50 upon each share of its capital stock. The assessment was made in good faith, for the purpose of paying the proper and legal expenses of the corporation, in the exercise of the best judgment of its board of directors, and under the advice of its counsel. The assessment was paid upon all of the stock by the holders thereof, except upon the stock of Morris. The assessment upon that was not paid. It was subsequently advertised for sale because of such non-payment, and at the appointed time, there being no other bid, it was bought in by the corporation.

In this condition of affairs, Morris came to the state of California, when the officers of the corporation offered to allow him to retake the stock so sold, upon his payment of the amount of the assessment thereon, and the amount of the advances made to him by the company; which offer was refused,―he saying the stock was not worth redeeming, and after some unsuccessful efforts to adjust their differ-ences he left the state and has never returned. Before the levy of the assessment, however, Albert Gallatin, on behalf and by authority of the Citizens' Gas-light & Heat Company, went to Philadelphia, and there endeavored to have Morris pay the company the amount of money advanced to him over and above the contract price, which the company claimed to be about $46,000. This Morris declined to pay, but offered to pay $30,000 in settlement. This was refused, so the attempted adjustment in Philadelphia failed, as did the subsequent one in California, already referred to. After Morris' departure from California, the competition between the Citizens' Gas-light & Heat Company and the Sacramento Gas Company continued, at heavy loss to both companies, until finally, in the year 1875, the two cor

porations agreed to consolidate their interests. To effect such consolidation it was necessary that the Citizens' Gas-light & Heat Company should discharge all of its debts and liabilities. It was then indebted to the Savings & Loan Society, a corporation, in the sum of $65,000, which sum was secured by a mortgage on the property of the Citizens' Gas-light & Heat Company. To pay this, as well as other indebtedness of the company, the 6,500 shares of the Morris stock, which was bought in by the company at the sale for the nonpayment of the assessment thereon, was sold by the corporation at $11 per share, as follows: To R. C. Clark, 200 shares; to A. Gallatin, 150 shares; to J. R. Watson, 155 shares; to C. H. Cummings, 200 shares; to E. H. Miller, Jr., 195 shares; to Mrs. L. Miller, 200 shares; to John Miller, 300 shares; to Frank Miller, 100 shares; to Leland Stanford, 1,250 shares; to Mark Hopkins, 1,250 shares; to C. Crocker, 1,250 shares; and to C. P. Huntington, 1,250 shares. The stock then had no market value, and the only inducement to the purchasers to buy, was the then proposed and contemplated consolidation of the two companies, without which the stock could not have been sold at any price, and Morris knew that such was the then condition of the stock.

The consolidation was subsequently effected by the organization of a new corporation called the Capital Gas Company, with a capital stock of $2,000,000, divided into 40,000 shares, of the par value of $50 each, one-half of which was to be issued to the stockholders of each of the old companies, in proportion to their respective interests therein, upon the conveyance to the new corporation by the old ones of all their property and effects, freed of incumbrances. This arrangement was carried out, and, because of the consolidation and the removal of competition, the stock of the new company attained a market value of from eight to eleven dollars per share; those being the extreme figures from the time of the consolidation until the commencement of the present action. The court below further found that Morris, although cognizant of all the facts, purposely refrained from the assertion of any right to the stock in question after the same was sold for non-payment of the assessment, and until after the consolidation of the old companies and the formation of the new, imparted to the stock of the latter some market value, when the present suit was commenced by the plaintiff, who is a clerk in the employ of Morris, and sues as his assignee. The court below further negatives all of the allegations of fraud contained in the bill.

The findings, in some respects, are earnestly challenged by appellant's counsel as being unsupported by the evidence; but, whatever might otherwise be held with respect to the findings in some particulars, there can be no doubt that the court below was justified in finding that Morris knew of the assessment of his stock, and its sale for non-payment of the assessment, and of the then condition and prospects of the company and its stock. If the assessment and sale

were invalid, he then had the right to commence proceedings to vacate the assessment and sale, and recover his stock. The reason he did not do so is manifest from the evidence as well as the findings. By reason of the formidable competition that existed to the business of the company, the stock had little or no value, and the prospects of the company were poor. All of this he knew. When, after the sale, the company offered to return him the stock upon his payment of the assessment and the amount of the company's advances to him; he refused, saying the stock was not worth redeeming. If he had the right to repudiate the sale of his stock upon the ground that it was not assessable, or for any other cause, was it not incumbent upon him to act with diligence? Could he acquiesce in the sale as long as the stock of the company was of but little value, but when, by the exertions of others, the consolidation of the company with a rival one imparted to the stock of the combined properties more value, come into a court of equity and claim an equivalent of the stock of the new company? We think not.

In the case of Hayward v. National Bank, 96 U. S. 611, certain mining stocks, deposited by Hayward with the bank as collateral for a loan, were sold by the bank to three of the bank directors, but at a price above the market rate, and for a sum sufficient to pay the loan. Hayward was informed of the sale at the time and did not object. Subsequently the stock greatly enhanced in value, and then-about three years and a half having elapsed-Hayward filed a bill against the bank, asserting a right to redeem the stock, and praying for general relief. The court held that he was entitled to no relief; saying, at the end of the opinion:

"If Hayward was defrauded of his stock; if the title did not pass from him or the bank because of the peculiar relations which the purchasers held to him and the property; if he had the right originally, upon any ground, to repudiate the sale and reclaim the stock,-it was incumbent upon him, by every consideration of fairness, to act with diligence, and before any material change in the circumstances and in the value of the stock had intervened. No sufficient reason is given for the delay in suing. His poverty or pecuniary embarrassment was not a sufficient excuse for postponing the assertion of his rights. He must be deemed to have made a final election not to disturb the sale of 1868; and a court of equity should not permit him, under the circumstances, to recall that election. Upon the grounds, then, both of acquiescence and lapse of time, he should be held to have forfeited all right to relief in a court of equity."

The court further held that

"The question of acquiescence or delay may often be controlled by the nature of the property which is the subject of litigation. A delay which might have been of no consequence in an ordinary case, may be amply sufficient to bar relief when the property is of a speculative character, or is subject to contingencies, or where the rights and liabilities of others have been in the mean time varied. If the property is of a speculative or precarious nature, it is the duty of a man complaining of fraud to put forward his complaint at the earliest possible time. He cannot be allowed to remain passive, prepared to affirm the transaction if the concern should prosper, or to repudiate it if that should

prove to his advantage; " citing Kerr, Fraud & M. (Bump's Ed.) 302, 306; Twin-Lick Oil Co. v. Marbury, 91 U. S. 587.

These principles we think decisive of the case against the appellant. It becomes, therefore, unnecessary to decide other questions discussed by counsel.

Judgment and order affirmed.

We concur in the judgment: MCKINSTRY, J.; MCKEE, J.

(67 Cal. 133)

WALLACE, Adm'r, v. CENTER. (No. 8,929.)

Filed June 23, 1885.

ACTION-DISMISSAL AFTER DEATH FOR WANT OF PROSECUTION.

The dismissal of an action for want of prosecution, though made after the death of a plaintiff, is not void, even if no substitution of personal representatives has been made.

Department 1. Appeal from superior court of the city and county of San Francisco.

Wilson & Wilson, for appellants.

E. Kirkpatrick, for respondent.

Ross, J. It appears from the record that on the nineteenth of July, 1865, Elizabeth Perkins commenced an action against the defendants. Years passed, and finally, on the eighteenth of September, 1876, the cause was regularly called for trial in the late Fourth district court, and, no one appearing on the part of the plaintiff, the defendants, by their counsel, moved the court to dismiss the action for want of prosecution, and judgment of dismissal was accordingly entered and recorded on the nineteenth of October, 1876. Term after term of the district court passed, and no motion of any character was made in the case. The statutory time of one year allowed for appeal from the judgment elapsed without appeal; the court itself went out of existence with the year 1879, and was succeeded by the superior court created by the new constitution, and to that court there was presented, on the first of August, 1882, an affidavit stating that Elizabeth Perkins died on the third day of November, 1875, prior to the judgment of dismissal, and upon that affidavit, and the suggestion of the death of Elizabeth Perkins, an order was made by the superior court, substituting James Wallace, administrator of the estate of Elizabeth Perkins, as plaintiff in the case. And subsequently, upon notice given to the former counsel of the defendants, and based upon the affidavit showing the death of the original plaintiff, the superior court made an order vacating and setting aside the judgment of dismissal. The appeal is from that order.

It is entirely clear that the order can only be sustained upon the theory that the judgment of dismissal was absolutely void; and that it was not so is shown by the recent case, entitled Phelan v. Tyler,

64 Cal. 80. The right to attack the judgment for "irregularities" was long since lost by lapse of time.

Order reversed.

We concur: MCKEE, J.; McKINSTRY, J.

(67 Cal. 130)

MARINI v. GRAHAM. (No. 8,718.)

Filed June 23, 1885.

1. PUBLIC NUISANCE-OBSTRUCTION OF STREETS.

A private individual who suffers injury or annoyance, of the same kind as that sustained by the public, by an obstruction in a street, which is a public nuisance, receives no special injury for which, in law, he is entitled to a private action, or in equity to a writ of injunction, or in a special procceding to a writ of mandate.

2. SAME

LEGALIZED OBSTRUCTION IN STREET IS NOT.

An obstruction in a sidewalk of a street, if authorized by the board of supervisors, is not a nuisance.

Department 1. Appeal from superior court of the city and county of San Francisco.

John T. Humphreys and Wellington C. Burnett, for appellants. Aug. D. Splivalo and Wm. H. Mott, for respondents.

MCKEE, J. This is an application for a writ of mandate. It ap. pears from the record in the case that section 7 of order No. 1,588 of the general orders of the board of supervisors of the city and county of San Francisco provides:

"No person owning or having the control of any building shall maintain any approach or entrance thereto from the sidewalk except in accordance with the following provisions:

"1. No entrance, which shall be a descent from the sidewalk, shall occupy more than three-tenths of the width of the sidewalk, nor more than four feet thereof. * **

"2. No approach to a building which shall be an ascent from the sidewalk shall occupy more than three-tenths of the width of the sidewalk, nor more than four feet thereof, nor be more than five feet in height, and shall be protected by balusters and railings, built to the satisfaction of the superintendent of public streets, highways, and squares."

Dupont street, between Union and Filbert streets, in said city and county, has a sidewalk 10 feet wide. Ascending from the sidewalk to a building, Nos. 1505 and 1507, fronting on the street, there is an approach and entrance consisting of a flight of steps seven feet and eight inches high, which occupies three feet and five inches of the sidewalk. This approach having been, as alleged, maintained by the owner of the building in violation of the ordinance, demand was made upon the superintendent of public streets and highways of the city and county to "cause and compel the said approach to be maintained and constructed in accordance with the provisions of the ordinance." This he refused to do; and, it is alleged, "his refusals have annoyed and greatly injured the petitioner," who is the owner of adjacent