should not have been allowed, and upon a retrial should be avoided.

The court should also have sustained defendant's objections to certain questions put to the defendant on cross-examination, having for their purpose to prove that he was in the habit of having women in his rooms at all hours of the night drinking liquors. The manifest purpose of these questions was to show that defendant was an immoral and dissolute person, and thus to excite in the minds of the jury a prejudice against him for matters in no way connected with the homicide for which he was being tried; and this is the use the district attorney made of this evidence on this subject in his argument to the jury. He there argued that defendant kept large quantities of whisky and brandy in his room "which which to ply and debauch women who visited him at all hours of the night," and that "he kept a regular harem there." The objections to the questions touching his drinking with women should have been sustained. People v. Lee Dick Lung, 129 Cal. 493, 62 Pac. 71; People v. Wailace, 89 Cal. 161, 26 Pac. 650; People v. Webster, 89 Cal. 573, 26 Pac. 1080.

had identified and placed the pistol in evi- | cross-examination: "Q. Could you say whethdence. It had also been proved that defend- er or not he was a man of violent temper? ant shot McGowan with a shotgun. Up to Q. Was he not a man of violent temper?" the time the questions hereinbelow set forth The witness had testified to defendant's were asked of defendant on his cross-exami- drinking habits, but had given no evidence nation, the only weapons mentioned in any that would warrant an attack upon his charof the testimony were the shotgun and the acter such as is involved in the above quespistol drawn on Beatty, which had been iden- tions. Defendant had not offered evidence tified and put in evidence by the prosecution. of good character for peace and quietness, Over the objections and exceptions of defend- and in the absence of such evidence the prosant the district attorney was allowed to ask ecution may not blacken the character of a of defendant the following questions: "Q. defendant by showing that he has a violent Saying this was the revolver you drew that temper. People v. Gordon, 103 Cal. 573, 37 morning, didn't you have another revolver Pac. 534. The answers of the witness were on those premises? A. I did. I don't know such as probably precluded any injury to dewhere the revolver is. It was a loaded re-fendant's cause. Nevertheless the questions volver. Q. Wasn't it in that room the morning you drew the revolver on Beatty? A. Yes, it was. Q. Wasn't it loaded with cartridges? A. Yes. Q. Where did you leave it? A. In a nightdress pocket. I think it was in one of my coat pockets. Q. Has not Gallagher informed you that he took that loaded revolver away from those premises? A. He did." By this action of the court defendant, in violation of his constitutional right, was forced to give evidence against himself. A defendant who testifies in his own behalf may be properly cross-examined fully about any testimony that he has given upon his direct examination, but not about new matter. People v. Wong Ah Leong, 99 Cal. 440, 34 Pac. 105; People v. O'Brien, 66 Cal. 602, 6 Pac. 695; People v. Bishop, 81 Cal. 116, 22 Pac. 477; People v. Baird, 104 Cal. 462, 38 Pac. 310. The case of People v. Wong Ah Leong, supra, is particularly in point. There a defendant, who was charged with an assault with a knife, was compelled in cross-examination to testify about a loaded pistol that he had on his person when the assault was committed, although he had not testified about such pistol in his direct examination. Other witnesses, however, had testified to the fact that he did have such pistol. For this violation of the defendant's constitutional right the judgment of conviction was reversed. We are unable to distinguish the case at bar from the case above cited. In neither case had the defendant in his direct examination testified about the pistol about which he was compelled to testify in cross-examination. In the case at bar no evidence had We concur: been given about such pistol. This loaded GAN, J. pistol was brought into the case only through the questions objected to. The admission of this evidence was clearly erroneous, and the error was emphasized by the district attorney in his argument, when he urged that defendant had an arsenal in his house, mentioning the shotgun and the two pistols, and that he kept the weapons for the purpose of doing murder.

We think the court also erred in overruling objections to the following questions asked

It is also claimed that the court erred in refusing certain instructions requested by defendant. We think, however, that the subject-matter of the instructions refused were sufficiently covered by instructions given.

For the errors above noted, however, the judgment and order are reversed, and the action remanded for a new trial.

COOPER, P. J.; KERRI

(9 Cal. App. 571) GAGOSSIAN v. ARAKELIAN et al. (Civ. 538.)

(Court of Appeal, First District, California.
Dec. 23, 1908.)

1. QUIETING TITLE (§ 20*) - STATUTORY AC-
TION FOR DETERMINING ADVERSE CLAIM—
GROUNDS OF ACTION-OBLIGATION BETWEEN
PARTIES.

Code Civ. Proc. § 1050, authorizes an acof the witness Eells by the prosecution on tion to determine an adverse claim for money or

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

*

property upon an alleged obligation. The com-, and still prevents, the issuance of a new cerplaint alleged that the owner of a stock certificate transferred it to plaintiff, that thereaft- tion to said plaintiff. tificate of membership by the said corporaer a judgment was recovered against his transThe prayer of the ferror and the stock certificate was sold under complaint is as follows: "Wherefore plainexecution to defendant, the sheriff executing a tiff prays for the judgment of this court decertificate of sale and notifying the corpora- termining the title to the said certificate, and tion that defendant was the owner of the stock certificate, whereby defendant has prevented the adjudging that the said certificate No. 67 issuance of a certificate to plaintiff, and the is the property of this plaintiff, and prayer was that title to the certificate be de- that the said defendant Harry Arakelian has termined and ownership adjudged in plaintiff. no estate, right, title or interest in or to the Held, that the statute authorized an action in the nature of a bill quia timet to prevent fu- said certificate of membership." ture probable injury to the parties' rights, and to determine an adverse claim upon an alleged obligation between the parties, and, since the complaint did not allege an obligation between the parties, it did not state a cause of action under the statute.

[Ed. Note. For other cases, see Quieting Title, Dec. Dig. § 20.*]

2. QUIETING TITLE (§ 34*)-PLEADING-SUFFICIENCY-QUIA TIMET BILL.

The complaint did not state a good bill quia timet, not having alleged that plaintiff feared injury by the vexatious use of the certificate by defendant, or that he might use it against her if evidence to impeach it was lost, or that it constituted a cloud on her title.

[Ed. Note.-For other cases, see Quieting Title, Dec. Dig. § 34.*]

Appeal from Superior Court, Fresno County; H. Z. Austin, Judge.

Appellant contends that this is an attempt to maintain an action to quiet title to personal property; that such an action is not authorized under the practice in this state (Code Civ. Proc. § 738; Fudickar v. East Riverside Irrigation District, 109 Cal. 29, 41 Pac. 1024), and that therefore the demurrer to the complaint should have been sustained. Respondent, on the other hand, contends that this is an action under the provisions of section 1050 of the Code of Civil Procedure. We think with the appellant that the complaint does not state a cause of action. Section 1050 of the Code of Civil Procedure reads: "An action may be brought by one person against another for the purpose of determining an adverse claim, which the latter makes against the former for money or property upon an alleged obligation; and also against two or more persons, for the purpose of compelling one to satisfy a debt due to the other, for which plaintiff is bound as surety." A. M. This section provides for an action in the nature of a bill quia timet, the object of which is to prevent a party from anticipated future probable injury to his rights or interests, as, for example, when it is sought to cancel an instrument which creates at least a primia facie liability against the plaintiff, or constitutes a cloud on his title to property, or where a surety is fearful of injury from neglect of his principal to pay the debt. The section quoted incorporates into the Code only part of this remedy. Under its provisions, as we read it, one may

Action by Hanum Gagossian against Harry Arakelian and another. From a judgment for plaintiff, the defendant named appealed. Reversed.

M. F. McCormick, for appellant. Drew, for respondent.

KERRIGAN, J. A demurrer to the complaint was overruled. The case was dismissed as to all the defendants except Harry Arakelian. After trial the judgment went against him in favor of the plaintiff. This appeal is from the judgment on the judgment roll.

Plaintiff alleges, and the court found, that on June 26, 1905, S. A. Gagossian was the owner of a certificate of membership No. 67 issued by the Grocers' Winery & Distillery | maintain an action against another to deterAssociation of Parlier, a corporation organized under the co-operative incorporation laws of California; that on said day he sold, assigned, and conveyed all his right, title, and interest in said certificate of membership to the plaintiff, who ever since has been and now is the owner thereof. The complaint also alleges, and the court found, that on November 20, 1905, John Arakelian recovered a judgment for a substantial sum against S. A. Gagossian; that thereafter, an execution having been issued, and levied on this certificate No. 67, it was sold, and the sheriff executed a certificate of sale of the interest of S. A. Gagossian to the purchaser Harry Arakelian, and notified the corporation that the latter was the owner and entitled to the possession of said certificate; that by reason of these facts Harry Arakelian has prevented,

mine an adverse claim upon an alleged obligation existing between them. In this case the claim is adverse, but it is not upon an obligation between the parties, but is an obligation or duty of a third party to one of them. Hence we think the section is not broad enough to cover this case. Nor do the facts alleged in this case constitute a good bill quia timet. Among other things the respondent does not allege that she apprehends danger to her property, in that the instrument held by appellant may be vexatiously or injuriously used against her when the evidence to impeach it may be lost, or that it throws a cloud or suspicion over her title. 2 Story, Eq. Jur. § 694. All she complains about is that the corporation, because of the claim made against it by the appellant, refused to recognize her as the legal holder of

(Court of Appeal, Second District, California. portation, agreed to furnish to and perform at each performance given by the latter during the regular traveling season of 1907: 1. EVIDENCE (§ 459*)-PAROL EVIDENCE-CA-"Two acts (only), high wire act, acrobatic

3. CONTRACTS (§ 179*)-CONSTRUCTION-PAR-defect of parties plaintiff because the "Eddy

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

consideration, the contract would be, as ap-| pellant claims, a straight contract between appellant and respondent. As to the words following the signature of "Wm. Eddy," there is nothing in the contract requiring the "Eddy family" to perform any act or do anything which can be construed to be a consideration for the payment to plaintiff of the salary, board, and transportation agreed to be paid to, and furnished for, him by respondent. The reservations as to the "Eddy family" are all matters which might be construed to relate to the accommodation of plaintiff's family when accompanying him on his travels and showing, not that they were to do any act in respondent's show, but that they were not to do certain things. The instrument, in its body, purports to be a contract between appellant and respondent, and contains no covenants which compel the construction that the "Eddy family" are parties to the contract. The question, then, of whether the signature is that of William Eddy as principal, or as agent for the "Eddy family" is one of fact which may be established by parol evidence. The rule is well settled that where a reading of a simple contract, however inartificially it may be drawn, discloses that it is executed for and on behalf of a principal, or discloses an intent to bind such principal, or even leaves the matter one of doubt, parol evidence may be employed to determine whose contract it is, and this even in cases where the instrument is sufficiently clear to bind the agent. It is no contradiction of a contract, which is silent as to the fact, to prove by parol that a party is acting therein, not on his own behalf, but for another. It does not release the agent, but binds the principal In addition to the agent. S. P. Co. v. Von Schmidt, 118 Cal. 368, 371, 50 Pac. 650; McCormick v. Stockton, etc., R. R. Co., 130 Cal. 100, 62 Pac. 207.

TODIAN OF RETURNS.

Under Laws 1905, p. 136, c. 88, providing that precinct election returns shall be sent to the county clerk, such officer becomes the custodian of all the returns to be considered by the

county canvassing board.

[Ed. Note.-For other cases, see Elections, Cent. Dig. § 227; Dec. Dig. § 251.*] 2. ELECTIONS (§ 223*) - RIGHT TO VOTE CHALLENGED Voter.

When a person offering to vote at an elec tion is challenged, he is required by Rev. St. 1899, § 323, to take a prescribed oath that he is a qualified voter, and also to deliver to the judges of election an affidavit of two qualified electors of that precinct, stating that the per son offering to vote is the identical person whom he represents himself to be, and that the deponents have known him for at least six months, and that they believe him to be a qualified see Elections,

elector.

[Ed. Note.-For other cases,
Cent. Dig. 8 192; Dec. Dig. § 223.*]

3. ELECTIONS (§ 259*)-PRECINCT RETURNS-
CANVASSING BOARD DUTIES - EXAMINA-
TION OF BALLOTS.

cinct returns, the canvassing board is not auIn making abstracts of votes shown by prethorized to examine and recount the ballots or to go behind the entry made in the pollbooks showing the result of the count by the judges and clerks, or to examine and pass on the sufficiency of the affidavits of challenged or unregistered voters or those of voters in precincts where prior registration is not required, or to do more than determine the genuineness of the returns; their duty being otherwise only min

isterial.

[Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 234, 235; Dec. Dig. § 259.*] 4. ELECTIONS (§ 259*)—Voters-PLACE-AF

FIDAVITS.

The only ground of demurrer upon which the ruling of the trial court can be sustained, if it can be sustained at all, is that of uncertainty. This arises from the ambiguous form of the signature to, and the consideration of the references in, the contract upon the theory that it is signed "for the Eddy Under Laws 1905, p. 136, c. 88, § 2, profamily." As this uncertainty may be entire- from his precinct, in order to vote in another viding that a qualified voter unavoidably absent ly removed by parol evidence, it cannot be precinct, must obtain from the registration ofsaid that the complaint cannot be amended ficers of his own precinct a certificate showing to show who was the real party of the seche is entitled to vote, and section 3, declaring that the voter shall make a prescribed affidavit ond part in the contract, and therefore, in so which shall be signed by one of the judges and far as the order denied the plaintiff leave inclosed with the ballot in an envelope to be to amend, we think the discretion of the trial returned to the county clerk, the duty of incloscourt was abused. If the cause of actioning the affidavit with the ballot devolves on the be made certain in favor of the plaintiff such duty constitutes no ground for the rejecjudges of election, and their failure to perform alone and so established by evidence, he tion of the ballot by the county canvassing would be entitled to recover; and, if the conboard. tract were in fact made on behalf of the "Eddy family," this question would be squarely presented by an amendment to that effect, and the cause could thereby be determined on its merits.

[Ed. Note. For other cases, see Elections, Dec. Dig. & 259.*]

5. ELECTIONS (§ 259*)-CANVASSING BOARD-
BALLOTS OF ABSENT VOTER "TAKEN."
Laws 1905, p. 137, c. 88, § 5, provides that,
when ballots of absent voters are not challenged

before the county canvassing board, the board | box any hallot on which the official indorsement shall count such absent voters "taken," as herein provided, and add the same to the total result of the election in the precinct where the voter resides. Held, that the votes of absent voters are "taken" when they are received by the judges on election day, and hence, where the envelopes are found to be genuine and entitled to be opened, the board has no discretion, in the absence of challenge, to refuse to count the votes.

[Ed. Note.-For other cases, see Elections, Dec. Dig. § 259.*

For other definitions, see Words and Phrases, vol. 8, pp. 6850, 6851.]

6. ELECTIONS (§ 259*)—ABSENT VOTERS-BALLOTS—AFFIDAVITS.

The fact that other or different affidavits than those prescribed by Laws 1905, p. 137, c. 88, 3, are found in the envelope with a ballot cast by an absent voter was immaterial and did not authorize the county canvassing board to refuse to canvass the ballot.

did not appear. Section 345 also declared that
in the canvass of the votes any ballot not in-
dorsed with the official stamp or not having the
name or initials of the judge of election should
be void and should not be counted. By Laws
1907, p. 66, c. 54, § 1, section 334 was amended
so as to provide that it should be the duty of
the judges of elections to see that the ballots
were officially indorsed before depositing them in
the ballot box, and section 341 so as to provide
that in the canvass of votes, if it should appear
that there was a greater number of ballots in
list, the judges should reject any ballots not of-
the box than the number called for by the poll
ficially indorsed "until" the number in the box
agreed with the poll list. Held, that such
amendment changed the prior law so that under
the amendment a ballot accepted and deposited
was not invalidated nor excluded from the
count, in the absence of fraud, merely because
of the absence of a proper indorsement of the
name or initials of a judge of the election.
[Ed. Note.-For other cases, see Elections,

[Ed. Note. For other cases, see Elections, Cent. Dig. § 149; Dec. Dig. § 177.*] Dec. Dig. § 259.*]

7. ELECTIONS (§ 259*)—ABSENT VOTERS-BALLOTS-CANVASSING BOARD.

Error to District Court, Carbon County; Charles E. Carpenter, Judge.

Mandamus by the State, on relation of D. B. Campbell, against John Pratley, County Clerk, and others, constituting the County

Under Laws 1905, p. 136, c. 88, providing a method by which absentees may vote in the precinct where he may be on election day, and section 5, authorizing a challenge of such votes before the county canvassing board, and declar-Canvassing Board of Carbon County. Judging that if no challenges are made the board ment for relator, and defendants bring error. shall open all envelopes containing ballots and Affirmed. record the ballots on the poll sheets, where the ballot of an absent voter was not challenged, it was the duty of the board to count the vote, though the voter might not in fact have been entitled to vote, leaving that question to be determined in a proper contest.

[Ed. Note. For other cases, see Elections, Dec. Dig. § 259.*]

8. ELECTIONS (§ 259*)-CANVASSING BOARD

VOTES OF ABSENTEES-AFFIDAVITS.

The presence of an affidavit other than that prescribed for an absent voter by Laws 1905, p. 137. c. 88. § 3, in the envelopes returned with his ballot to the county clerk, and the absence of the affidavit specified, is not conclusive of the fact that the proper affidavit was not made. [Ed. Note. For other cases, see Elections, Dec. Dig. § 259.*]

9. ELECTIONS (§ 259*)-VOTES OF ABSENTEES -DELIVERY TO COUNTY CLERK.

Under Rev. St. 1899, § 345, providing that informality in the delivery of election returns, in the absence of fraud, shall not invalidate the vote of any precinct, and the general rule that, in the absence of suspicious circumstances, mere irregularity in such delivery will not warrant a rejection of the returns, the fact that a ballot of an absent elector, after being placed in the envelope and sealed by the judges as required, was delivered to the county clerk in person by a courier, instead of by mail, and that others were mailed to another officer of the County mistakenly named as the county clerk, did not authorize the canvassing board to reject the votes, in the absence of any charge of fraud; the clerk having received the ballots, and the board having found that they were genuine. [Ed. Note.-For other cases, see Elections, Dec. Dig. 259.*]

10. ELECTIONS (§ 177*) - BALLOTS OF JUDGE.

INITIALS

Rev. St. 1899, § 285, provided that no election officer should deposit in the ballot box any ballots not stamped and marked with the name or initials of the judge of election, and section 334 declared that no judge should deposit in the

L. E. Armstrong, Chris Mathison, and George E. Brimmer, for plaintiffs in error. McMicken & Blydenburgh, for defendant in

error.

POTTER, C. J. This case comes to this trict court sitting within and for Carbon court on error from a judgment of the discounty granting a peremptory writ of mandamus requiring the county canvassing board of said county to assemble and convene and proceed to count and record and enter upon the proper poll sheets, as required by law, 13 ballots cast by electors of said county who were absent from their polling precincts on the day of election, viz., November 3, 1908, which ballots were returned to the clerk of

said county and had been opened by said canvassing board, and to include the result of said count in the abstract of votes cast for the office of sheriff. The judgment and peremptory writ required said board to assemble and convene on the 9th day of December, 1908, at the hour of 10 o'clock a. m., and to make known to said district court the manner of their execution of said writ on the 10th day of December, 1908. The suit was brought in the name of the state, on the relation of D. B. Campbell; said relator having been a candidate for the office of sheriff of such county at said general election.

The ballots in question were cast in precincts other than the one in which the voters respectively resided under the provisions of chapter 88, p. 136, of the Laws of 1905. Section 1 of said act provides that any qualified elector of the state, unavoidably absent on the occurrence of any general election from

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes