that the court erred in giving an instruction, proof that the gun was loaded, but the deto the jury defining the offense charged.

[1] (1) As to the question of variance, the information charges that the draft in question was drawn on the "National Bank of Commerce, doing business in the city of Seattle, state of Washington," and the evidence shows that it was in fact drawn on the National Bank of Commerce of Seattle. Defendant claims that such a variance is fatal. But the evidence also shows that there is no other National Bank of Commerce in Seattle, or any other bank there of similar name, and that this one is called by and does business under both names. We therefore hold that defendant's position on this point cannot be maintained. Such a variance would not be regarded as material in a criminal prosecution, even in the name of the defendant (People v. Oreileus, 79 Cal. 178, 21 Pac. 724), nor in that of the injured party (People v. Hughes, 29 Cal. 262). In the last case, under an indictment charging arson for the purpose of defrauding the Hartford Insurance Company, evidence that the name of the company was the Hartford Fire Insurance Company did not constitute a fatal variance. See, also, People v. Leong Quong, 60 Cal. 107; People v. Armstrong, 114 Cal. 570, 573, 46 Pac. 611.

fendant, after quarreling with the prosecuting witness, left the premises, and soon thereafter returned with the gun, which he pointed at him, threatening to kill him. These circumstances, with the fact that he persisted in remaining about the premises, and threatened others, were held sufficient to justify the jury in drawing the inference that the gun was loaded. In the cases of People v. Eppinger, 105 Cal. 36, 38 Pac. 538, and People v. Terrill, 133 Cal. 120, 65 Pac. 303, it was held that the absence of a certain name from the city directory was sufficient, in the case of forgery, to show that it was the name of a fictitious person. In Commonwealth v. Locke, 114 Mass. 294, the court said: "The burden of proving affirmatively that the sale or intended sale was in violation of law, by negativing the authority or license of the person by whom it was made or intended, was placed upon the government; but the court rightly ruled that it need not be proved by direct evidence, but might be inferred from circumstances."

On this question of the degree of proof necessary to establish the corpus delicti before permitting proof of the defendant's extrajudicial statements or confessions, we think the case of People v. Jones, 123 Cal. 65, 55 Pac. 698, is particularly in point. There the evidence showed that four detach

that this fact tended to show that the buildings were separately fired, and therefore sufficiently established the incendiary character of the fire to admit evidence of the confession. The court described this evidence as weak and unsatisfactory, and in the course of the opinion said: "A distinction must be taken between the evidence which upon the whole case would justify a conviction, and that degree of proof of criminal agency in the burning of the buildings for the purpose of letting in evidence of the confessions or admissions of the defendant. To justify a conviction, the jury must be satisfied beyond a reasonable doubt of the existence of every fact necessary to constitute the offense, and to identify the defendant as the perpetrator; but it is not necessary that the evidence of the criminal act should be of that conclusive character in order to justify the admission of the defendant's confessions."

[2] (2) As to the second point, defendant contends that, independently of his extrajudicial statements and confessions, the evidence fails to establish the corpus delicti, ined buildings were burned; and the court held that it does not show that he had not sufficient credit at the bank, and that therefore the court committed error in admitting such confessions and statements. The rule on the subject is stated in People v. Simonsen, 107 Cal. 345, 40 Pac. 440, as follows: "The corpus Jelicti involves the elements of crime; and, in order to prove it, all of the elements of the crime must be made to appear before defendant's confessions or admissions are admissible for any purpose; and they cannot be used to establish any necessary element for the commission of the crime." But here the defendant represented that he had on deposit in the Seattle bank $20,000; that within a few days he expected $75,000 more; yet when his draft was presented for payment a few days later he had on deposit approximately only $200. These facts, together with the circumstance that the check was dishonored, were quite sufficient to warrant the jury in drawing the inference that the defendant did not have sufficient credit with the bank to meet the draft, and consequently justified the court in admitting proof of the extrajudicial statements of the defendant without further evidence to establish the corpus delicti. The authorities support this view. In People v. Montgomery, 114 Pac. 792, the defendant was charged with an assault with a deadly weapon, with intent to kill; and in order to permit the verdict to stand it was necessary that the proof in the case should show that the gun with which the assault was made was loaded. There was no direct

[3] (3) Finally, the defendant insists that the court erred in not reading the whole of section 476a of the Penal Code. The court read all of that section, except the last part, which defines the word "credit." In view of the fact that throughout the trial, in various ways, the defendant contended that there was no evidence sufficient to establish the lack of credit with the bank, it would seem that the court should have read, not a part of the section, but the whole of it. People v. Tapia, 131 Cal. 647, 63 Pac. 1001. But the jury must have understood the meaning of a word of such common use. Moreover, the

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 117 P.-66

at the time the resolutions were adopted can be affected by the action taken. Furthermore, the stock upon which the defendants secured the releases was treated ever afterwards as the stock of the company, and a large number of shares thereof were resold to new subscribers. This action was brought more than six months after the compromise agreement was entered into. At a meeting of the stockholders, held in December, 1906, the records of the corporation show that appellants were recognized by the corporation as holding only one-half of the number of shares of stock originally subscribed for by them. The compromise agreement between the corporation and defendants was fully executed. The corporation dealt with the surrendered stock as its own, and resold, on November 8, 1908, 50 shares thereof to Lewis C. Warner, and 100 shares thereof to C. Dana Warner; these shares so sold being the number which the trial court apportioned to the holdings of the two Fleishhackers and Bachman as a credit. All of these facts would seem to make the case a proper one for the application of the rule of estoppel, which would prevent any stockholder from now objecting to the authority of the directors to make the releases complained of, and to war

fendants here and the Wentworth Hotel Company, by its board of directors; that is, in consideration of the subscriber paying for a portion of the shares agreed to be taken, he is released, so far as the corporation is concerned, as to liability for the remainder. We quote: "The directors of a corporation ordinarily have no authority to release stockholders from liability on their subscriptions otherwise than in pursuance of a bona fide compromise, or for a sufficient consideration. But they may compromise with subscribers, as with other debtors, and may release a subscriber where there is a sufficient consideration, so that there is no fraud or wrong as against creditors or other stockholders." Clark & Marshall on Private Corporations, vol. 3, § 692, subd. 1. Again: "The corporation, in case of a subscriber's inability to pay for his shares, or in case of bona fide disputes as to his liability, may bona fide compromise the dispute upon surrender of his shares, and release him from liability thereon. While the directors may compromise doubtful claims, they have no authority to release stockholders from liability upon their binding and undisputed contracts of subscriptions. * Section 242. The directors or corporate officers may compromise doubtful claims against subscribers to capital stock." | rant the conclusion that all stockholders acPurdy's Beach on Private Corporations, vol. 1. See, also, section 841, vol. 2, Morawetz on Private Corporations. In Cook on Stock and Stockholders, at section 171, the author says: "A compromise differs from a cancellation, in that the subscriber pays to the corporation a part of the subscription price, in order to be released from the balance. The stock is delivered back to the corporation. The corporate authorities-generally the directorshave power to compromise any corporate debt; and if in the collection of subscriptions there is reasonable doubt as to the liability of the subscriber, or if the subscriber is insolvent, the corporation may compromise the liability and release a part for the purpose of securing the residue. All that is required is good faith." We cite, also, Republic Life Ins. Co. v. Swigert, 135 Ill. 150, 25 N. E. 684, 12 L. R. A. 328; Morgan v. Lewis, 46 Ohio, 1, 17 N. E. 558; Whitaker v. Grummond, 68 Mich. 249, 36 N. W. 62; Erskine v. Peck, 13 Mo. App. 280. We think the action taken by the board of directors of the Wentworth Hotel Company, in making the releases in favor of the appellants, under the statements of the text-writers quoted from and decisions just cited, was within the authority of such board as the managing agents of the corporation.

[7] But let us assume that the action was not within the power conferred upon the directors. It would have undoubtedly been valid, if accompanied by the unanimous consent of the remaining stockholders. No stockholder, so far as the record in the case shows, has ever repudiated the action of the directors, and no creditor whose debt existed

quiesced therein. It is not claimed that the
directors acted in bad faith, nor that the
action taken was not, as the resolution re-
cited, for the best interests of the company,
and because of the fact that appellants were
unable to take and pay for more than one-
half of the stock agreed to be taken under
the terms of their subscription contract. Our
Supreme Court has said, in the case of Tulare
Savings Bank v. Talbot, 131 Cal. 45, 63 Pac.
172: "While it is true that a contract of sub-
scription may be modified or annulled only
by the unanimous consent of the stockhold-
ers, or by the board of directors duly author-
ized thereto (Pacific Fruit Co. v. Coon, 107
Cal. 452 [40 Pac. 542]), such release may be
proved, not only by the records, but as well
by the acquiescence of the stockholders of the
corporation." The act of the directors was
not ultra vires, because the result effected
might at first consideration appear to be that
some of the capital stock had thereby been
withdrawn. Treating of a similar situation,
the Supreme Court of Ohio, in the case of
Morgan v. Lewis, supra, used this language:
"The finding of the referee that this transac-
tion worked a reduction of the capital stock
of the company is not tenable. There was
nothing in the way of the company reissuing
this stock, or its equivalent, to others, who
may have desired it. There was nothing in
the fact that these certificates were marked
'canceled' on the face by the secretary of the
company, and by him treated as surrendered
stock, to authorize the finding that the capi-
tal stock was reduced. This was no part of
the transaction with Morgan, and there was
nothing in the fact of the re-exchange of the

stock for the furnace which called upon the officers of the company to treat the stock as canceled, or the capital pro tanto reduced. Green's Brice, Ultra Vires (2d Ed.) 191, 192. This conclusion is not qualified by the fact that the stock was not thereafter represented." See, also, Cook on Stock and Stockholders, vol. 1, § 282. We conclude, therefore, first: The board of directors had authority to enter into the compromise agreement releasing defendants from a portion of their subscription liability, and accepting the surrender of a part of the shares of stock agreed to be taken, and that defendants ceased to be stockholders from the time of the making of that agreement; second, assuming that no authority existed authorizing the directors to so act, that the corporation and stockholders thereof have become bound by acquiescence from raising any question as to the validity of the releases.

settlement by appropriate pleading for fraud,
accident, or mistake. *
* Since defend-
ant pleaded facts showing that the original
contract was superseded by a new obligation,
he showed that neither party has any rights
based upon it." The resolution of the board
of directors of the hotel company expressly
recited that the obligors on the original sub-
scription contract were then released, and the
effect of the transaction, which was fully car-
ried out, as we have before mentioned, was to
put an end both to the right of appellants to
demand more than one-half of the stock sub-
scribed for by them, and also to the right of
the corporation to enforce payment for more
than a like proportion of the subscription in-
debtedness.

[9] The release of defendants Neustadter was shown by the resolution of the directors to have been made on October 10, 1906, and it was in consideration of the payment of $7,500 in cash by each of these two men. The fact that the payment of these amounts of money was shown to have been made two days before the resolution of release was adopted and recorded is, we think, immaterial. It is sufficiently clear that the payments were made pursuant to the compromise agreement entered into by the officers of the corporation, which by the action of the board of directors was made binding. It follows, then, that on October 5, 1906, at the time the indebtedness of $22,500 to the First National Bank of Pasadena was incurred by the hotel company, the two Fleishhackers were the owners of 871⁄2 shares each, instead of 175 shares originally subscribed for by each, and that S. Bachman was the owner of 175 shares, instead of 350 originally subscribed for. The release of the Neustadters not being made until October 10, 1906, these latter appellants were liable for the indebtedness of $22,500 on the full number of shares represented by their subscription agreement. The indebtedness on the note, dated on November 16, 1906, executed to the Union Sav

[8] The record shows that the deferred payment on account of the purchase price of one-half of the stock was made by the Neustadters on October 8, 1906. The fact that a portion of the money required to be paid by the defendants Fleishhackers and Bachman, under the terms of the resolutions of release, was provided to be paid on a day subsequent to the date of the making of the cash payment did not postpone the effect of the compromise agreement until all of the money had been paid. A new contract was entered into at the time of the adoption of the resolutions between the corporations and appellants, which was, in effect, a novation. A novation is made: "1. By the substitution of a new obligation between the same parties, with intent to extinguish the old obligation." Civ. Code, § 1531. The obligation of all of the parties to the subscription contract was changed. On the part of the corporation, certificates for one-half of the number of shares of stock subscribed for were not to be issued, but the stock was to be held by it, and a large amount of money was paid as a further immediate consideration mov-ings Bank of Pasadena, for the sum of ing to the corporation. The time for payment of the balance of the purchase price being deferred did not have the effect of continuing Mortimer and Herbert Fleishhacker and S. Bachman in their relation as stockholders, for [10, 11] The resolution of the board of dithe full amount of their subscription, until the rectors, whereby authority was given to the final payment had been made. In the case of managing officers of the corporation to borGriswold v. Pieratt, 110 Cal. 263, 42. Pac. 820, row money and execute notes therefor, did a change was worked in the agreement of not give express authority to such officers to the parties to the contract there considered bind the corporation by contract to pay atby the introduction of new and different torney's fees in the event suit was brought terms. In discussing the question as to the to recover on any promissory notes so exeffect upon the original obligation in that ecuted. That resolution was in the followcase, the Supreme Court said: "The original ing form: "On motion duly made and secondcontract was suspended, if not extinguished ed, it was resolved that arrangements be made (Civ. Code, 1531, 1682); the plaintiff, while for borrowing such sums as may be needed, the new compact between himself and defend- and that the president and secretary be auant remained in force, could maintain no ac- thorized to execute notes therefor." Schaltion for any breach of duty by defendant un- lard v. Eel River Nav. Co., 70 Cal. 144, 11 der the former. His only proper course, if Pac. 590; Gribble v. Columbus Brewing Co., such breach had occurred, was to impeach the | 100 Cal. 67, 34 Pac. 527. No doubt, under the

$25,000, was incurred after the several appellants had been released from their obligation to accept more than one-half of the number of shares of stock subscribed for.

fendants here and the Wentworth Hotel Com-, at the time the resolutions were adopted can pany, by its board of directors; that is, in consideration of the subscriber paying for a portion of the shares agreed to be taken, he is released, so far as the corporation is concerned, as to liability for the remainder. We quote: "The directors of a corporation ordinarily have no authority to release stockholders from liability on their subscriptions otherwise than in pursuance of a bona fide compromise, or for a sufficient consideration. But they may compromise with subscribers, as with other debtors, and may release a subscriber where there is a sufficient consideration, so that there is no fraud or wrong as against creditors or other stockholders." Clark & Marshall on Private Corporations, vol. 3, § 692, subd. 1. Again: "The corporation, in case of a subscriber's inability to pay for his shares, or in case of bona fide disputes as to his liability, may bona fide compromise the dispute upon surrender of his shares, and release him from liability thereon. While the directors may compromise doubtful claims, they have no authority to release stockholders from liability upon their binding and undisputed contracts of subscriptions. Section 242. The directors or corporate officers may compromise doubtful claims against subscribers to capital stock." Purdy's Beach on Private Corporations, vol. 1. See, also, section 841, vol. 2, Morawetz on Private Corporations. In Cook on Stock and Stockholders, at section 171, the author says: "A compromise differs from a cancellation, in that the subscriber pays to the corporation a part of the subscription price, in order to be released from the balance. The stock is delivered back to the corporation. The corporate authorities-generally the directors have power to compromise any corporate debt; and if in the collection of subscriptions there is reasonable doubt as to the liability of the subscriber, or if the subscriber is insolvent, the corporation may compromise the liability and release a part for the purpose of securing the residue. All that is required is good faith." We cite, also, Republic Life Ins. Co. v. Swigert, 135 Ill. 150, 25 N. E. 684, 12 L. R. A. 328; Morgan v. Lewis, 46 Ohio, 1, 17 N. E. 558; Whitaker v. Grummond, 68 Mich. 249, 36 N. W. 62; Erskine v. Peck, 13 Mo. App. 280. We think the action taken by the board of directors of the Wentworth Hotel Company, in making the releases in favor of the appellants, under the statements of the text-writers quoted from and decisions just cited, was within the authority of such board as the managing agents of the corporation.

be affected by the action taken. Furthermore, the stock upon which the defendants secured the releases was treated ever afterwards as the stock of the company, and a large number of shares thereof were resold to new subscribers. This action was brought more than six months after the compromise agreement was entered into. At a meeting of the stockholders, held in December, 1906, the records of the corporation show that appellants were recognized by the corporation as holding only one-half of the number of shares of stock originally subscribed for by them. The compromise agreement between the corporation and defendants was fully executed. The corporation dealt with the surrendered stock as its own, and resold, on November 8, 1908, 50 shares thereof to Lewis C. Warner, and 100 shares thereof to C. Dana Warner; these shares so sold being the number which the trial court apportioned to the holdings of the two Fleishhackers and Bachman as a credit. All of these facts would seem to make the case a proper one for the application of the rule of estoppel, which would prevent any stockholder from now objecting to the authority of the directors to make the releases complained of, and to warrant the conclusion that all stockholders acquiesced therein. It is not claimed that the directors acted in bad faith, nor that the action taken was not, as the resolution recited, for the best interests of the company, and because of the fact that appellants were unable to take and pay for more than onehalf of the stock agreed to be taken under the terms of their subscription contract. Our Supreme Court has said, in the case of Tulare Savings Bank v. Talbot, 131 Cal. 45, 63 Pac. 172: "While it is true that a contract of subscription may be modified or annulled only by the unanimous consent of the stockholders, or by the board of directors duly authorized thereto (Pacific Fruit Co. v. Coon, 107 Cal. 452 [40 Pac. 542]), such release may be proved, not only by the records, but as well by the acquiescence of the stockholders of the corporation." The act of the directors was not ultra vires, because the result effected might at first consideration appear to be that some of the capital stock had thereby been withdrawn. Treating of a similar situation, the Supreme Court of Ohio, in the case of Morgan v. Lewis, supra, used this language: "The finding of the referee that this transaction worked a reduction of the capital stock of the company is not tenable. There was nothing in the way of the company reissuing this stock, or its equivalent, to others, who [7] But let us assume that the action was may have desired it. There was nothing in not within the power conferred upon the di- the fact that these certificates were marked rectors. It would have undoubtedly been 'canceled' on the face by the secretary of the valid, if accompanied by the unanimous con- company, and by him treated as surrendered sent of the remaining stockholders. No stock, to authorize the finding that the capistockholder, so far as the record in the case tal stock was reduced. This was no part of shows, has ever repudiated the action of the the transaction with Morgan, and there was directors, and no creditor whose debt existed | nothing in the fact of the re-exchange of the