error which materially affects the finding above referred to. We therefore advise that the order appealed from be affirmed. We concur: BELCHER, C. C.; FOOTE, C. PER CURIAM. For the reasons given in the foregoing opinion the order appealed from is affirmed. (82 Cal. 187) ALLEN V. NAPA COUNTY. (No. 12,603.) CONSTABLES-FEES. wall & Waldo or by Green, it was extin- 1. Pen. Code Cal. §819, provides that a warrant issued by any magistrate other than a justice of the supreme court or judge of the superior court may be directed to any constable in the county in which it is issued, and may be executed in that county, or, if defendant be in another county, it may be executed therein upon the written direc tion of a magistrate of that county indorsed on the warrant. Held, that a constable may recover his fee for executing in another county a warrant issued by a justice of the peace, though the complaint does not allege that the warrant was indorsed by a magistrate of the county in which it was executed, as it will not be presumed that the constable acted unlawfully. With reference to errors in law the appellant's counsel has the following: "Having made so clear a case for a reversal of the order denying a new trial on the facts of the case, so far as errors are concerned, we here simply point out where they are to be found in the transcript;" and a list of folios of the record is added. We do not suppose that the court will think it necessary to examine questions submitted to it in this manner. And we merely say that, while the case appears to have been very loosely tried, we have seen no 2. Under Act Cal. March 5, 1870, providing that constables shall receive such fees as are now or hereafter may be allowed by law, "and that cou stables shall receive mileage for "every mile necessarily traveled, in going only, in executing any warrant of arrest, subpoena, or venire, bringing up a prisoner on habeas corpus, taking prisoners before a magistrate, "a constable is entitled to mileage both for the distance traveled in going to make an arrest, and for that traveled in bringing his prisoner from the place of arrest to the magistrate. 3. Act Cal. March 5, 1870, providing that con stables shall receive the same fees as are allowed to sheriffs, does not make applicable to constables of counties of the thirteenth class the provision that sheriffs of counties of the thirteenth class shall receive a salary of $5,000 per annum, and their necessary expenses for transacting criminal business outside their counties. Commissioners' decision. Department 2. Appeal from superior court, Napa county; R. CROUCH, Judge. Action to recover fees and mileage of a constable for executing a warrant of arrest outside of his county. Plaintiff had judgment, and defendant appealed. Pen. Code Cal. § 818, provides that, "if a warrant is issued by a justice of the supreme court or judge of the superior court, it may be directed generally to any sheriff, constable, marshal, or policeman in the state, and may be executed by any of those officers to whom it may be delivered." Section 819 provides that, "if it is issued by any other magistrate, it may be directed generally to any sheriff, constable, marshal or policeman in the county in which it is issued, and may be executed in that county; or, if the defendant is in another county, it may be executed therein, upon the written direction of a magistrate of that county indorsed upon the warrant," etc. H. M. Barstow, Dist. Atty., and Henry Hogan, for appellant. Henry C. Gesford, for respondent. HAYNE, C. This was an action against Napa county by the assignee of a constable warrant be issued by a justice of the supreme court, district judge, or county judge, it may be directed generally to any sheriff, consta ble, marshal, or policeman in this state, and may be executed by any of those officers to whom it may be delivered. Sec. 112. If it be issued by any other magistrate, it may be directed generally to any sheriff, constable, of Napa township, in said county, for official services in making an arrest under a warrant issued by a justice of the peace of Napa township. In executing the warrant the constable traveled to San Pedro, in Los Angeles county, arrested the alleged criminal there, and brought him before the justice who issued the warrant. The claim is mainly for mileage in going to San Pedro, and in bring-marshal, or policeman in the county in which ing back the prisoner. The trial court overruled a demurrer to the complaint, and, no answer having been put in, gave final judgment for the plaintiff for the amount claimed. The only questions which have been argued are whether the constable was authorized to execute process outside of his county, and, if so, whether he was entitled to mileage in taking his prisoner before the magistrate. 1. Was the constable authorized to execute the warrant outside of his county? As will be shown below, the provisions of the present statutes in relation to this question are not materially different from those formerly in force. The construction given to the old statutes will therefore aid in the solution of the question. The definition of the duties of a constable given in the act of 1850 seems to have restricted him to acts "within his township." See Laws 1850, p. 263. § 2. And it was accordingly held under this provision that a constable could not serve a summons in a civil action outside of his township. Lowe v. Alexander, 15 Cal. 297. It will be observed that this case related to the service of a summons. With reference to writs of execution, however, section 601 of the civil practice act (as amended in 1854) provided that the writ, "when issued by a justice, shall be directed to the sheriff, or to a constable of the county," etc. And the construction which this seems to have received was that it meant any constable of the county; and that, consequently, it might be directed to a constable of a different township from that of the justice, or from that where the property to be levied on was situated. The inference was that a constable could act outside of his township. This was, in effect, held in Lafontaine v. Greene, 17 Cal. 296. The court, per COPE, J., distinguished Lowe v. Alexander, above cited, saying: "The question there related to the service of a summons, and the decision was based upon the language of the second section of the act of April, 1850, prescribing the duties of constables. There was no other statute affecting the point in controversy." Soon after this decision the legislature amended the act of 1850 so as to extend the duties of a constable to the performance of acts "within his county," instead of "within his township." See Laws 1861, p. 23. If there were no other provision, it might be plausibly argued that a constable could not go outside of his county. But in relation to criminal process, at least, there were other provisions. Sections 111 and 112 of the criminal practice act (1699 and 1700, Hitt. Gen. Laws) were as follows: "Sec. 111. If a it is issued, and may be executed in that county; or, if the defendant be in another county, it may be executed therein, upon the written direction of a magistrate of that county, indorsed upon the warrant," etc. Under these provisions, it was held in Cunningham v. San Joaquin Co., 49 Cal. 323, that a constable could go outside of his county to execute criminal process. The opinion is short, and does not refer to any statute or authority, but the briefs show that the provisions above quoted were the ones upon which reliance was placed by counsel, and we have no doubt that the decision was based upon them. The existing law is substantially the same as that upon which the decision last cited was based. Section 158 of the county government act is not more restrictive in its definition of the duties of constables than the act of 1861 above referred to, which latter was in force when the facts of Cunningham v. San Joaquin Co. occurred and were passed upon. And the provisions of the criminal practice act, above quoted, are reproduced in the Penal Code. See sections 818, 819. This being the case, we think it plain that constables may execute criminal process outside of their counties, if such process be properly issued and indorsed. The complaint does not allege that the warrant under which the plaintiff's assignor acted was indorsed by a magistrate of the county of Los Angeles. It alleges merely that the arrest was made "under and by virtue of a warrant of arrest for the said John Williams, issued out of the justice's court of said Napa township," etc. But we think that the foregoing is sufficient in an action to recover fees. It will not be presumed in such an action that the officer acted unlawfully. 2. Was the constable entitled to mileage for bringing his prisoner before a magistrate, or only in going to make the arrest? It is agreed by counsel that Napa is a county of the thirteenth class. And by the county government act it is provided that constables of counties of that class shall receive "such fees as are now or hereafter may be allowed by law." Laws 1883, p. 342; Laws 1885, p. 174. The only provision of law regulating the charges of constables is contained in the fee bill of March 5, 1870. This act, after making provision for certain services of constables, provides that they shall receive “for all other services the same fees as are allowed to sheriffs for similar services." Laws 1869-70, p. 171. The same act has the following provision in relation to the services of sheriffs of the kind rendered by the plaintiff here: "For every mile necessarily trav Cal.) GOLDEN GATE MILL & M. CO. v. JOSHUA HENDY MACHINE WORKS. 45 eled, in going only, in executing any warrant of arrest, subpoena, or venire, bringing up a prisoner on habeas corpus, taking prisoners before a magistrate or to prison, or for mileage in any criminal case or proceeding: provided, that in serving a subpoena or venire, when two or more jurors or witnesses live in the same direction, but one mileage shall be charged,-30 cents: provided, further, that in the counties of Amador and Sacramento, for every mile necessarily traveled in any criminal case, 20 cents." Laws 1869-70, p. 159, § 9. Two points are made by the appellant in relation to this latter provision: (a) It is contended that it does not apply. The same act, it is said, provides that constables shall receive the same fees as sheriffs, and the county government act provides that sheriffs of counties of the thirteenth class shall receive a salary of $5,000 per annum, (Laws 1883, p. 342,) and his necessary expenses in transacting criminal business outside the county, (section 164, County Gov. Act 1883, renumbered as section 211 in 1885, Laws 1885, p. 194.) But we do not think that this position can be sustained. The act of 1870 did not provide as much compensation for constables as for sheriffs. Similar services were to be charged at similar rates by each class of officers; but the legislature must have had in view the fact that constables have comparatively little to do. It could not have been the intention to give each constable of a township the same compensation as is given to an important and busy county officer like the sheriff. And the language does not imply this. It is not said that a constable shall receive the same salary as a sheriff, but that he shall receive the same fees for similar services. Fees are not salaries; nor do they come under the head of "necessary expenses." The only logical result of the appellant's argument in this regard would be that after the sheriffs' fees were abolished the constables would receive no fees whatever. But this could not have been intended. We think, therefore, that the provision of the act of 1870, above quoted, is the one which regulates the matter. (b) It is contended that the proper construction of the provision last mentioned is that the constable was only entitled to his mileage in going to make the arrest, and not in bringing his prisoner before the magistrate. This contention is based upon the words "in going only." But this question was decided adversely to the appellant's view in the case of Cunningham v. San Joaquin Co., above cited; and we are inclined to agree with the majority of the court in that case. The words "in going only" would in all probability prevent the officer from charging mileage for the return trip when he does not succeed in making the arrest. But where, as in this case, (and as in the case referred to,) he does succeed, and consequently has to take the prisoner before a magistrate, it would seem that the case is covered by the words, "taking prisoners before a magis | trate." But, however this may be, the decision does not appear to have been questioned during 15 years, and, according to the respondent, "it has been the universal practice ever since for constables to charge mileage both in going to execute a warrant and in taking the prisoner before the magistrate who issued the warrant," and we think that, if the rule is not satisfactory, recourse must be had to the legislature. We therefore advise that the judgment be affirmed. We concur: BELCHER, C.C.; VAN CLIEF, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment is affirmed. (82 Cal. 184) GOLDEN GATE MILL & MIN. Co. v. JOSHUA 1. Under Code Civil Proc. Cal. § 1035, which provides that the clerk shall include in the judgment any interest on the verdict from the time it was rendered, it is properly allowed on a judgment entered on a verdict one year after its rendition. 2. In an action against three defendants, there was a verdict against one and in favor of another, but no reference was made to the third, and no answer was filed by him. Held, that the omission to mention his name in the verdict, or to take judg ment by default against him, was not a thing of which his co-defendant can complain. 3. In an action to recover damages for a trespass, the possession of plaintiff is sufficient evidence of title as against a mere trespasser. 4. Proof of the existence of a corporation de facto, in an action by it to recover damages for injury to its property, is sufficient as against a mere trespasser. 5. A mere trespasser, who is sued by a corporation for a trespass on its property, cannot question the capacity of the corporation to take and hold property under Civil Code Cal. § 358, providing that the incorporation of a company claiming to be duly organized shall not be inquired into in any private suit in which the company is a party. Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; JOHN HUNT, Judge. Civil Code Cal. § 358, provides that the due incorporation of a company claiming in good faith to be incorporated shall not be inquired into in any private suit to which it is a party. Wm. H. H. Hart, for appellant. H. W. Philbrook and Arthur Rodgers, for respondent. HAYNE, C. This was an action of trespass, for breaking into the building of the plaintiff, and injuring and carrying away certain machinery which was affixed thereto. There was a verdict for the plaintiff for $900, and the defendant against whom it was rendered appeals from the judgment, and from an order denying a new trial. 1. We do not think that the appellant's criticisms upon the complaint are well founded. 2. The judgment was not entered until one year after the rendition of the verdict, and, in entering it, the clerk included therein in terest on the amount of the verdict from the time of its rendition. It is objected that this was unauthorized. If the point were well taken it could only lead to a slight modification of the judgment at the appellant's costs. But it is not well taken. The statute expressly provides that "the clerk must include in the judgment entered up by him any interest on the verdict or decision of the court, from the time it was rendered or made." Code Civil Proc. § 1035. This provision authorized the course taken. There is nothing to the contrary in Alpers v. Schammel, 75 Cal. 590, 17 Pac. Rep. 708. If there were, the decision would be in direct conflict with the statute, and would have to be overruled. ། 3. The action was against three defendants. The verdict was against one and in favor of another, but omitted all reference to the third. And it is argued that this is error for which the defendant, against whom judgment was rendered, is entitled to a reversal. But the record does not show that the omitted defendant put in any answer. There was no issue as to him. Consequently, the verdict properly omitted all reference to him; and the omission to enter a judgment by default against him, for failure to plead after the overruling of his demurrer, is not a thing of which his co-defendant can complain. There are other answers to the objection, but the foregoing is sufficient. 4. It is contended that the plaintiff showed no title to the property, and that there were errors in the introduction of his attempted chain of title. But the plaintiff introduced evidence to the effect that it was in possession of the property. And this was sufficient as against a mere trespasser. The appellant seems to be under the impression that this evidence was overcome by certain other evidence. But if it be assumed that such would be the effect of the latter evidence, it is suthcient to say that it was stricken out, and the ruling in this regard was, in our opinion, proper. The evidence of the witness was by deposition, and the answer he gave was not responsive to the interrogatory. The evidence as to plaintiff's possession renders it unnecessary to consider the questions raised in regard to its chain of title. 5. The allegation of the corporate existence of the plaintiff was denied, and it is contended that there was no sufficient proof on the subject. But the evidence showed that the plaintiff was at least a corporation de facto, claiming in good faith to exist. And, this being so, a mere trespasser could not raise the question of its corporate existence in an action by it to recover damages for injury to its property. Civil Code, § 358; Rondell v. Fay, 32 Cal. 361. Neither could such a trespasser raise the question of its capacity to take and hold property. 6. The deed from Nevin was properly excluded. We therefore advise that the judgment and order appealed from be affirmed. PER CURIAM. For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed. (82 Cal. 219) In re MCEACHRAN. (No. 12,225.) (Supreme Court of California. Dec. 28, 1889.) DISCHARGE IN INSOLVENCY-FRAUDULENT DebtsEVIDENCE. 1. On the trial of an application for discharge of an insolvent debtor under Act Cal. April 16, 1880, $ 50, providing that an opposing creditor may file specifications of the grounds of his opposition, which the debtor may answer, and section 49, specifying the grounds on which a discharge may be opposed, and section 52, providing that a debt fraudulently contracted shall not be discharged, a judgment for a debt so contracted is not a ground for opposing a discharge. 2. On such trial, a deed of land by the debtor to his wife for the consideration of natural affection, made more than two years before he instituted homestead thereon, are inadmissible in evidence, the insolvency proceedings, and her declaration of where there is no proof that they were made with fraudulent intention. 3 An order discharging the insolvent in the language of section 51, and excepting "such debts, if any, as are by said insolvent laws excepted from the operation of a discharge in insolvency," does not release the insolvent from debts fraudulently contracted. 4. An objection that the oath required to be taken on obtaining the discharge under section 49 was taken in one year before the discharge was granted, comes too late on appeal. Commissioners' decision. Department 2. Appeal from superior court, Napa county; R. CROUCH, Judge. Trial of an application by C. T. McEachran, an insolvent debtor, for a discharge from his debts under the insolvent act of 1880. The discharge was opposed by William Matheson, a creditor. Act Cal. April 16, 1880. § 50, provides that an opposing creditor may file specifications of the grounds of his opposition to the discharge, which the debtor shall answer, and the issues thus raised shall be tried by the court, with or without a jury, as in civil actions. The court granted the discharge of the debtor, from which decision the opposing creditor appealed. Spencer & Henning, for appellant. lace & Johnston, for respondent. Wal BELCHER, C. C. On the 18th day of February, 1885, the respondent, C. T. McEachran filed his petition in the superior court of Napa county, praying that he be adjudged an insolvent debtor. On the same day he was adjudged insolvent; and in March following an assignee of his estate was appointed. On the 31st of October, 1885, the appellant, William Matheson, filed his claim against the estate of the insolvent, and therein set up that the insolvent was indebted to him, in the sum of $3,351.11, upon a judgment rendered in the superior court of Napa county on the 26th day of October, 1883. On the 27th of March, 1886, the respondent filed in court his petition for a discharge from his debts. The appellant opposed the discharge. and tiled specifications in writing of the real property, and also a certificate of homestead made by the wife upon the property conveyed to her, which was in proper form, and was duly acknowledged and recorded on August 29, 1882. The same objections were made to these offers as to the judgment roll, and sustained. The appellant reserved an exception to each of the rulings. At the conclusion of the trial the court granted the prayer of respondent, and gave him a certificate of discharge from his debts, in the language provided in 'section 51 of the insolvent act. Act Cal. April 16, 1880. The appeal is from this order, and the action of the court in excluding the three items of evidence above mentioned constitutes the principal grounds urged for a reversal. grounds of his opposition; and thereupon | the respondent made and filed the oath required, by section 49 of the insolvent act, to be taken and subscribed before any discharge | can be granted. Thereafter, on the 16th of June, 1886, the appellant filed amended specifications of the grounds of his opposition to the discharge. The specifications set up that from the year 1870 to the 26th of October, 1883, a partnership existed between respondent and appellant; that on the day last named this partnership was dissolved by a decree of the superior court of Napa county; that the court found and determined that respondent was indebted to appellant, in a sum named, for money advanced and delivered to respondent by appellant for their joint benefit, and which respondent fraudulently misapplied and appropriated to his own use; and that respondent was also indebted to appellant, in another sum named, for money received by respondent in the partnership business, and which sum of right belonged to appellant as his share and interest in the partnership, but which the respondent fraudulently misapplied and appropriated to his own use; that thereupon judgment was duly given and rendered in favor of appellant and against respondent for the aggregate of these sums, being $3,049, with costs of suit; and that only $195.50 had ever been paid on this judgment. The specifications further set up that a short time prior to the commencement of the action before mentioned the respondent transferred and conveyed to his wife, Emelie McEachran, the undivided one-half of the lands and premises then and theretofore owned in partnership by respondent and appellant; that the conveyance was without consideration, and was made for the sole purpose of defrauding appellant, and to prevent him from recovering the amount due him out of said partnership; that the said Emelie McEachran, immediately after such transfer, caused to be filed and recorded a declaration of homestead upon the premises so conveyed to her; and that this was done at the instigation of respondent, and in furtherance of a plan on his part to cheat and defraud appel-ceived and disposed of by defendant, and that lant, and to prevent a recovery of such sum of money as might be found due him out of the said partnership. The respondent filed an answer to the objections of appellant to his discharge, and therein fully denied all the charges of fraud made against him. The matter came on for trial before the court without a jury, on the 22d day of April, 1887, and the appellant offered in evidence the judgment roll in the case before referred to. The respondent objected to the offered evidence on the ground that it was irrelevant, immaterial, and incompetent; and the court sustained the objection. The appellant then offered in evidence a deed made by respondent to his wife under date of June 28, 1882, and purporting to convey to her, in consideration of love and affection, the undivided one-half, and all the right, title, and interest of respondent of, in, and to certain 1. The action, the judgment roll in which was offered in evidence, was commenced by the appellant against the respondent, in 1883, to dissolve a partnership existing between the parties, and for an accounting. The court found, in substance, that in the year 1870 the parties entered into a partnership for the purpose of purchasing certain lands in Napa county, and improving and cultivating the same for their joint benefit; that the plaintiff was to advance the money necessary to purchase, improve, and cultivate the lands while they should remain unproductive, and the defendant was to give his whole time, labor, and skill in clearing, improving, and cultivating the same; that, in pursuance of the partnership agreement, the defendant purchased the lands, and went into possession thereof, and that the partnership business was continued and carried on until some time in the year 1882; that the plaintiff advanced to defendant for partnership purposes, and upon his representations that it was all necessary therefor, the sum of $1,299 more than was necessary, and more than was in fact used by defendant for or on account of the partnership, and that defendant fraudulently kept and appropriated this last-named sum to his own use; that during the seven years next prior to 1882 crops were raised on the land owned by the partnership which were re the net profits arising therefrom were $3,500; that all of such protits were the property of the partnership, and the plaintiff was entitled to one-half thereof, but the defendant fraudulently kept and appropriated to his own use the plaintiff's half, and refused to account for the same. The court further found that prior to the commencement of the action the real property was partitioned and disposed of by the parties. Judgment was accordingly entered that the partnership be dissolved, and that the plaintiff recover the aggregate of the sums found to have been fraudulently misappropriated, with interest thereon. Section 49 of the insolvent act specifies the grounds upon which a creditor may oppose the discharge of an insolvent debtor, and section 52 declares what debts shall not be dis charged. The last-mentioned section reads as follows: "No debt created by fraud or em |