bezzlement of the debtor, or by his defalcations as a public officer, or while acting in a fiduciary character, shall be discharged under this act; but the debt may be proved, and the dividend thereon shall be a payment on account of said debt," etc. It is argued for respondent that appellant's judgment did not constitute a debt which was "excepted from the operation of a discharge in insolvency,' and that it therefore furnished no ground for opposition; and in support of this position counsel cite Hennequin v. Clews, 77 N. Y. 427; Palmer v. Hussey, 87 N. Y. 303; Neal v. Clark, 95 U. S. 704; Hennequin v. Clews, 111 U. S. 676, 4 Sup. Ct. Rep. 576. We do not consider it necessary to decide this point; for, conceding that the judgment debt was excepted from the operation of the discharge, still we do not think it furnished any good ground for opposition. The provisions of the last United States bankrupt act were substantially the same as those of our statute in regard to the discharge from debts. Under that act it seems to have been uniformly held by the bankrupt courts that the fact that a debt was created by fraud was not ground for opposing the discharge of a bankrupt. In Bump, of Bankr. (5th Ed.) 436, it is said: "Fraud in the creation of a debt is no ground for withholding a discharge:" citing numerous cases. And in Re Rosenfield, (1 N. B. R., 575,) one of the cases cited, the district court of New Jersey, by FIELD, J., said: "Is the creation of a deb: by fraud a good ground upon which to oppose the discharge of a bankrupt? The thirtythird section of the act provides: That no debt created by the fraud of the bankrupt shall be discharged under this act; but the debt may be proved, and the dividend thereon shall be a payment on account of said debt.' Why, then, should a creditor be allowed to object to the discharge of a bankrupt on the ground that the debt due to him was created by fraud? So far as he is concerned, the bankrupt is not discharged at all. Such creditor is in fact a favored creditor. Like other creditors, he is entitled to receive a dividend, but this dividend, instead of being a payment in full, is only a payment on account, and the bankrupt is forever liable for the balance of the debt; and this balance is much more likely to be paid if the bankrupt is discharged from the payment of all his other debts than if he is not discharged at all. Such a creditor, therefore, has not only no right to oppose the discharge, but it is not his interest to do so. This, no doubt, is the reason why the fact that the debt was created by fraud is not by the twenty-ninth section made a ground for refusing a discharge." This reasoning seems to us correct, and to be entirely applicable to the proceedings under our insolvent act. There was therefore no error in excluding the judgment roll. 2. The deed and declaration of homestead which were offered in evidence were made more than two years before the insolvency proceedings were commenced; and the land affected by them was partitioned and disposed of by the partners before the action was commenced to dissolve the partnership. No proof was offered, tending to show that the husband had any fraudulent purpose in making the deed, or that the wife had any in filing the homestead claim. There is certainly nothing fraudulent per se in the fact that a husband conveys land, which he owns, to his wife, in consideration of love and affection, and she subsequently declares a homestead thereon. Under these circumstances, we are unable to see that the offered papers had any' relevancy whatever to the matter before the court; and, in our opinion, they were properly excluded. 3. It is urged that the decision is against law, and should be reversed, because it purports to discharge the petitioner from all debts, and does not except from its operation debts contracted in fraud. But the order re ferred to does not purport to discharge the insolvent from any debts. It is simply an order that the application be granted. The final order granting the discharge is in the language of section 51, and it expressly excepts "such debts, if any, as are by said insolvent laws excepted from the operation of a discharge in insolvency." 4. The appellant makes the point that the oath required by the last clause of section 49 to be taken and subscribed by an insolvent before any discharge is granted was made in May, 1886, while the discharge was not granted until April, 1887. It is said that the statute intended that the oath should be taken at the time of granting the discharge. A sufficient answer to this point is that when respondent's oath was offered in evidence no objection was made to it by appellant, and the objection comes now too late. If objection had been made at the proper time, respondent could, and probably would, have taken and subscribed a new oath, and thereby have removed any question of irregularity. We advise that the order appealed from be affirmed. We concur: HAYNE, C.; FOOTE, C. PER CURIAM. For the reasons given in the foregoing opinion the order appealed from is affirmed. (82 Cal. 523) HITCHCOCK . CARUTHERS. (No. 18,233.) (Supreme Court of California. Jan. 10, 1890.) STIPULATION-JURY-SLANDER-PLEADING AND EVIDENCE. 1. A stipulation by defendant to allow his de murrer to the complaint to be overruled, on leave to answer, does not estop him from therea 'ter, at any stage of the proceeding, objecting that the complaint does not state facts sufficient to constitute a cause of action, within Code Civil Proc. Cal. § 434. 2. The fact that a case is tried before 11 instead of 12 jurors, there being no objection thereto, is not ground for a new trial. 3. Under Civil Code Cal. § 46, providing that language imputing a want of chastity is actionable per se, a complaint which alleges that defendant said of plaintiff, a girl of 17, that a certain man 4. In an action for slander for charging plaintiff with want of chastity, defendant's witness testified to having had intercourse with plaintiff. Held, that it was competent for plaintiff, in rebuttal, to testify that he had never, at any time, offered or suggested improper liberties to her. Department 2. Appeal from superior court, Fresno county; J. B. CAMPBELL, Judge. R. H. Ward and Meux & Edward, (P. D. Wiggington, of counsel,) for appellant. Church & Cory and Grady & Welsh, for respondent. MCFARLAND, J. Action for slander. Judgment for plaintiff; from which, and from an order denying a new trial, defendant appeals. 2. Appellant asks for a new trial, because it appears that the case was tried with only 11 jurors. But we will not presume the extraordinary spectacle of a court compelling a party to go to trial, against his consent, with less than 12 jurors, upon a record which not only fails to show any objection or exception on the point, but which does state that "a jury of eleven persons was regularly impaneled and sworn to try said action. 3. There is an exception to a ruling of the court about the admissibility of evidence. One Hardwick, called as a witness for defendant, testified that the general reputation of plaintiff for virtue was bad. On cross-examination, he was asked if one Carlisle had not gone to San Benito county, where Hardwick lived, and brought him down to Fresno county, as a witness; if he had not told Carlisle that he, Hardwick, had seduced plaintiff; and if he had not told Carlisle that he would swear that he had se 1. Appellant contends that the complaint does not state facts sufficient to constitute a cause of action. Respondent contends that this point cannot be heard here, because, after appellant had demurred to the complaint on that ground, in the court below, he stipulated that the demurrer might be overruled, and defendant allowed to answer within a certain time. It is not necessary to determine what consequence would have followed if appellant had expressly stipulated that the complaint did state a cause of action; for it is evident that the stipulation in this case did not go to that extent, and, under any view of the law, did not estop appellant from rely-duced plaintiff. No objection was made by ing, at any future stage of the case, under defendant to either of these questions, and section 434 of the Code of Civil Procedure, the witness answered them all in the affirmaon the alleged failure of the complaint to state tive. On further cross-examination he stated, sufficient facts. But we think that the com- without objection from defendant, that he plaint does state facts sufficient to constitute had seduced plaintiff about 3 years previous a cause of action. The main objections made to the trial, at which time she must have by the appellant to the sufficiency of the com- been not over 14 years old. The defendant plaint are,-First, that there is no distinct then took the witness again, and, upon reaverment that plaintiff was an unmarried direct examination, led him to give a dewoman, and therefore she may have been the tailed account of the circumstances under wife, either of the defendant, or of the man which he claimed to have had illicit interwith whom defendant charged her with hav- course with plaintiff, and to swear that he ing sexual intercourse; and, second, that the had not "seduced" her, in the ordinary sense language alleged to have been used by de- of the word, because, as he testified, she had fendant does not impute to plaintiff a want been unchaste with others before her alleged of chastity. The plaintiff named in the com- relation with him. Plaintiff was afterwards plaint is "Ida Hitchcock, an infant, by her recalled on her own behalf, and, after having guardian ad litem, L. W. Scronce," and she testified that she had never had any acis averred to be of the age of 17 years. The quaintance with the witness Hardwick, was slanderous language alleged to have been used asked by her attorney this question: "Did by defendant about plaintiff refers to her as he, at any time, offer or suggest any im"the girl." He is alleged to have said, among proper liberties with you?" To this quesother things, that a certain man named Scronce tion the defendant objected as “irrelevant, was cohabiting with plaintiff as his mis-immaterial, and incompetent, and not in retress;" that "he was keeping the girl for im- buttal of anything in the case that was moral purposes;" and that he "was using Ida brought out by the defense." The objection as his mistress. This, with other language was overruled, and defendant objected. The not repeated here, shows that plaintiff was a witness answered the question, and one or young unmarried woman, and shows most two other questions of similar import, in the clearly, at least, that she was not the wife of negative. The testimony was not "incomthe man whose name was connected with her petent;" that is, if the fact sought to be in the alleged slanders. That the alleged proved was a proper fact to be proved, the slanderous language imputes to plaintiff a testimony offered to prove it was not secwant of chastity is too plain to warrant dis-ondary, or hearsay, or not the best evidence, cussion. We shall not repeat the language or not the evidence prescribed by the statute 66 v.23p.no.1-4 in a particular case, or within any of the categories of incompetent evidence. And a denial of the grave charges made by Hardwick was certainly neither “irrelevant" nor "immaterial." Neither was it "not in rebuttal of anything in the case that was brought out by the defense." If the defendant had let the witness Hardwick alone when plaintiff had concluded the cross-examination, this particular phase of the objection would have presented a somewhat different aspect; but he took the witness again, and drew out new matters on redirect examination of which the testimony of plaintiff was clearly in rebuttal. Moreover, cons.dering the things which usually and properly influence human belief, we think that plaintiff had a right to show that the witness came from a place beyond the reach of a subpoena to voluntarily testify to his own undue intimacy with a young girl; and that, in addition to the extent to which that fact alone might weaken his testimony before the jury, the plaintiff had a right to show by express testimony, if she could, that his statement was absolutely false. We think, therefore, that there was no error in admitting the evidence. Respondent contends that no alleged errors in ruling on the admission of evidence on the subject of plaintiff's character for chastity can be considered, because her character is not assailed by any averment in the answer; that the commonlaw rule, which allowed the character of a plaintiff in a slander suit to be attacked under the general issue, has been abrogated by section 461 of the Code of Civil Procedure; and that, under said section, there can be no proof of mitigating circumstances which are not alleged in the answer. This might be an interesting question if properly presented; but, as evidence to character went before the jury without objection, respondent cannot be heard to make the objection here for the first time. We see no error in the rulings of the court on the subject of instructions which were excepted to by appellant, and the case seems to have been correctly presented to the jury. Judgment and order aflirmed. We concur: THORNTON, J.; SHARPSTEIN, J. (82 Cal. 502) WARD. CLAY. (No. 12,302.) (Supreme Court of California. Jan. 11, 1890.) PLEADING EXHIBITS-FINDING STIPULATIONS. 1. In an action on a promissory note, the complaint alleged the date of, the parties to, the consideration, and the execution of, the note; also the "principal sum" and rate of interest: that the principal sum and interest remained due and unpaid; that defendant refused to pay the same, or any part thereof; and that plaintiff still held the note; and prayed judgment for the principal sum and interest. Held sufficient on general demurrer, as defects of form of averment or uncertainty cannot be considered on general demurrer. 2. Under Code Civil Proc. Cal. § 447, providing that when an action is brought on a written instrument, and a copy is annexed to the complaint, the genuineness and due execution of such instru ment are deemed admitted, unless the answer deuying the same be verified, a copy of a note at tached to a complaint in a suit thereon, and which is alleged in the complaint to be a copy in "words and figures" of the note executed by defendant may be treated as part of the complaint on demurrer to its sufficiency. 3. In an action on a promissory note, a finding that there is now due and owing from defendant to plaintiff on the note a certain balance is equiva lent to finding that the balance remained unpaid. 4. Under Code Civil Proc. Cal. § 473, providing that the court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading or proceeding by correcting a mistake in the name of a party, or a mistake in any other respect, etc., it is within the court's discretion to set aside, on proper terms, a stipulation in a pending case, entered into between attorneys, that certain facts alleged in the answer should be admitted without proof, where it is shown that the stipulation was made without plaintiff's knowl edge, and that plaintiff's attorney was mistaken as to its legal effect, and that it admitted material averments which were not true, which would pre vent the case being tried on its merits. Commissioners' decision. Department 2. Appeal from superior court, Mendocino county; R. MCGARVEY, Judge. R. Percy Wright, for appellant. J. W. Ward, Jr., and J. A. Cooper, for respondent. VAN CLIEF, C. Action upon a promissory note for $2,546.48, on which plaintiff recovered a balance unpaid of $790.75 and costs. The appeals are from an order denying defendant's motion for new trial, and from the final judgment. The complaint states: "(1) That on or about the 7th day of December, 1883, the defendant, Mrs. Sadie I. Clay, and her husband, Frederic Clay, (since deceased,) were indebted to the said plaintiff, John T. Ward, in the sum of twenty-five hundred and forty-six and 48-100 ($2,546.48) dollars, and on said 7th day of December, 1883, in consideration of said indebtedness, Mrs. Sadie I. Clay, defendant herein, and Frederic Clay aforesaid, executed and delivered to said John T. Ward their promissory note, in words and figures, which in a copy of said note annexed to this complaint, and marked Exhibit A,' are fully set forth." The second paragraph alleges certain collateral security "for the aforesaid note of $2,546.48.” “(3) That the principal sum of $2,546.48 on said note of Mrs. Sadie I. Clay and Frederic Clay, and the interest thereon at 10 per cent. per annum, payable quarterly, in accordance with the terms of said note, from the 7th day of March, 1885, remains due and unpaid, and defendant, though often requested, has neglected and refused, and still neglects and refuses, to pay the same, or any part thereof. (4) That plaintiff is still the holder of said promissory note for $2,546.48, and of the said note and mortgage for $2,000, assigned to this plaintiff as collateral security in part as aforesaid." Attached to the complaint is a copy of the note marked "Exhibit A," as follows: "$2,546.48. San Francisco, Cal., Dec. 7, 1883. Twelve months after date, without grace, we promise to pay to the order of John T. Ward, at his office in this city, the sum of $2,546.48, payable in United States gold coin, with interest thereon in like gold coin, from date until paid, at the rate of 10 per cent. per annum, payable quarterly, and, if not so paid, to compound and become a part of the principal, and bear interest thereafter at the same rate, for value received. SADIE I. CLAY. FREDERIC CLAY." 1. It is contended by appellant's counsel that, without reference to the copy of the note exhibited, the complaint does not state a cause of action; that the copy of the note forms no part of the complaint, and cannot be referred to for the purpose of supplying any deficiency in the substance of the complaint; and that the court erred in overruling a general demurrer to the complaint based solely upon the ground that it does not state facts sufficient to constitute a cause of action. I think the material substance and legal effect of the note may be read from the body of the complaint without reference to the copy exhibited, although inartificially and indirectly stated. The first paragraph avers the date of, the parties to, and the execution of, the note, for a consideration of $2,546.48. The second paragraph refers to it as "the aforesaid note of $2,546.48." The third paragraph states the "principal sum" and rate of interest; and that the principal sum of $2,546.48, and the interest from March 7, 1885, remain due and unpaid, and that the defendant refuses to pay the same, or any part thereof. Fourth, that plaintiff is still the holder of the note. Prayer for judgment for $2,546.48. and interest from March 7, 1885. Tested only by a general demurrer, this seems sufficient. Defects of form of averment or uncertainty cannot be considered upon general demurrer. Phelps v. Owens. 11 Cal. 25; Slattery v. Hall, 43 Cal. 195; Berry v. Cammet, 44 Cal. 352; Reynolds v. Hosmer, 45 Cal. 630; Chase v. Evoy, 58 Cal. 352. I think, also, that the copy of the note referred to in the body of the complaint. and annexed to it, might properly have been referred to by the court for the purpose of ascertaining the "words and figures" and the form of the note. Emeric v. Tains. 6 Cal. 156; People v. De la Guerra, 24 Cal. 78; Clary v. Thomas, 103 Mass. 44; Hall v. Foster, 114 Mass. 18. It was properly annexed to the complaint for the purpose of informing the defendant of its form and contents, and, unless denied by a verified answer, its "genuineness and due execution," in the form exhibited, are admitted for all purposes of the trial. Code Civil Proc. § 447. In Los Angeles v. Signoret, 50 Cal. 298, cited by counsel for appellant, the plaintiff was required to state facts creating a lien upon land; but the complaint merely stated "that, in pursuance of facts set forth in a notice and claim of lien recorded in the recorder's office," which notice was annexed to the complaint as an exhibit, "the plaintiff laid out and constructed a sewer over and along the lot, and that by virtue of the premises the plaintiff acquired a lien on the lot for the assessments levied thereon." There was no averment that plaintiff had performed any act stated in the notice and claim of lien; nor that the facts therein stated were true; nor even that plaintiff had filed the notice and claim for record. By reference to the acts of the legislature under which the lien was claimed, it will be readily seen that this court very properly said: "Several matters of substance are lacking in the averments found in the complaint, which are sought to be supplied only by reference to the recitals found in an exhibit annexed to the complaint." In the case at bar the complaint directly alleges that the defendant executed and delivered to plaintiff the promissory note a copy of which is annexed to the complaint, and referred to for the purpose of showing its form, and the exact words and figures of which it is composed, and thereby enabling the defendant to determine whether she made it or not. Lambert v. Haskell, 80 Cal. 611, 22 Pac. Rep. 327. The copy of the note thus exhibited is a part of the single count of which the complaint is composed, and is stated and referred to in the manner and form authorized by section 447 of the Code of Civil Procedure; and therefore Loup v. Railroad Co., 63 Cal. 97, and other cases requiring each count to state a complete cause of action without reference to other counts, cited by appellant's counsel, have no application to this case. 2. The objection that "there is no finding of the amount remaining unpaid on the promissory note sued upon" is answered by the "ninth" finding, as follows: "That there is now due and owing from defendant, Sadie I. Clay, to the plaintiff, on the promissory note sued on in this case, a balance of $790.75." This implied that the balance found to be due and owing remained “unpaid." 3. On October 3, 1886, two days before the commencement of the trial, the attorneys for the respective parties signed a written stipulation as follows: "It is hereby stipulated that the plaintiff admits the truth of all the facts alleged in the answer herein, and that defendant need not offer any evidence on the trial of the above-entitled action, except as to the following facts alleged in the answer, viz.: The facts alleged in said answer on page 1 thereof, and on page 2, up to and including line 14 on said page. The words and before,' on page 3 of said answer, line 3, are struck out, and on line 5 of said page the word 'and' is inserted between 'plaintiff and said.' J. W. Ward, JR., Attorney for Plaintiff. R. PERCY WRIGHT, Attorney for Defendant." This stipulation was filed with the clerk on October 5th, the day of the commencement of the trial, and after plaintiff had rested his case was introduced in evidence by defendant's counsel. The evidence for both parties was closed, and the argument of counsel commenced on the 5th, when the court adjourned until the next day (October 6th) to hear further argument. At the opening of court, on October 6th, counsel for plaintiff moved for an adjourn- ing having a like effect. The Code of Civil ment of the trial to afford him an oppor- Procedure (section 473) provides that "the tunity to move the court, upon affidavits, to court may, in furtherance of justice, and on set aside said stipulation, and to relieve the such terms as may be proper, allow a party plaintiff from the effect thereof, on the to amend any pleading or proceeding * * * ground that it was inadvertently entered in- by correcting a mistake in the name of a party, to under a mistake of fact and a misappre- or a mistake in any other respect. * * hension of its legal effect. The court there- The court may likewise, in its discretion, upon ordered that, upon the payment by after notice to the adverse party, allow, upon plaintiff to defendant's attorney of $100, the such terms as may be just, an amendment to case would be continued until the following any pleading or proceeding in other particuNovember. Plaintiff paid to defendant's at-lars; * * * and may also, upon such torney $100, and the case was continued un- terms as may be just, relieve a party or his til the November term. On October 20th legal representative from a judgment, order, plaintiff filed and served notice on the mo- or other proceeding taken against him through tion, and the grounds thereof, with the affi- his mistake, inadvertence, surprise, or excus. davits of plaintiff and his attorney, appoint-able neglect." It was said by BALDWIN, ing November 8th for the hearing. After J., in Roland v. Kreyenhagen, 18 Cal. 457: hearing, the court "ordered that said motion "The power of the court should be freely be granted, and said stipulation is hereby set and liberally exercised, under this and other aside on the ground that the plaintiff's attor- sections of the act, to mould and direct its ney was mistaken as to the legal effect of proceedings, so as to dispose of cases upon said stipulation when he signed the same.' their substantial merits, and without unreasonable delay, regarding mere technicalities as obstacles to be avoided, rather than as principles to which effect is to be given in derogation of substantial right. * ** It [the court] can also usually prevent unjust or unfair advantages, or serious injury arising from casualties or inadvertence." In Kirstein v. Madden, 38 Cal. 163, the original answer failed to deny material allegations of the complaint, the defendant moved to amend it by denying those allegations, and the court denied the motion. Upon appeal the appellate court, by SAWYER, C. J., said: "We think he [defendant] ought to have been permitted to amend his answer. From oversights of counsel, committed under pressure of business, pleadings are often defective. In such cases, when an offer to amend is inade, at such a stage in the proceedings that the other party will not lose an opportunity to fairly present his whole case, amendments should be allowed with great liberality." In Richardson v. Musser, 54 Cal. 198, this court, by MCKINSTRY, J., said: "There can be no doubt of the power of the trial court to relieve a party from the effects of a stipulation which admits as a fact that which is not true, if the application is made in proper time." It is true that the mistake in the case last cited was a mistake as to a matter of fact; but the general principle announced by the court is in accord with section 473 of the Code of Civil Procedure, which extends the power of the court to grant relief in this class of cases, "by correcting a mistake in the name of a party, or a mistake in any other respect." It is contended by appellant's counsel that this action of the court was error, for which the judgment and order should be reversed. The affidavits of plaintiff and his attorney tend to prove, and, if true, do prove, that the allegations of the answer admitted by the stipulation were not true; that the stipulation was hastily and inadvertently entered into without the knowledge or consent of the plaintiff, and by mistake as to the truth of those facts induced by representations of defendant's counsel, and also under a mistaken view of the legal effect of those facts and of the stipulation. On the part of the defendant, the affidavit of her attorney tended to disprove all the material facts stated by affiants on the part of the plaintiff, except the facts that the stipulation was entered into without the knowledge or consent of the plaintiff, and that plaintiff's attorney was mistaken as to the legal effect of the stipulation. No doubt that his attorney had authority to bind the plaintiff by the stipulation, and the only question to be decided is, did the court, in relieving the plaintiff from the effect of the stipulation, exceed or abuse its discretionary authority? I think the learned counsel for appellant is mistaken in contending that the stipulation should be treated as an ordinary contract not relating to proceedings in a court, from the obligation of which a party will not be relieved, as a general rule, except on the ground of fraud or mistake as to matter of fact. The stipulation in this case related to proceedings in a pending action. Its sole object was to settle and limit the issues of fact to be tried; and its obligation was not different from nor any stronger than that incurred by an express admission of fact by a pleading. Indeed, it stands in the place and performs the function of an express replication to the answer in this case, and is therefore subject to be amended or set aside by the court to the same extent, and under like circumstances, as would be a plead The principal purpose of vesting the court with this discretionary power is to enable it "to mould and direct its proceedings so as to dispose of cases upon their substantial merits," when it can be done without injustice to either party, whether the obstruction to such a disposition of cases be a mistake of fact or a mistake as to the law; although it may be that the court should require a stronger showing to justify relief from the effect of |