there is no error. We will add here that the answer of defendant, in section 1158, Penal Code, is the plea which he tenders on arraignment. See People v. King, 12 Pac. L. J. 322.

It is stated that the court, in charging the jury, read certain sections of the Penal Code, the number of which is not given, and therefore it is in error. The bill of exceptions states what occurred in the following words: "The Court. I will instruct you, gentlemen, in the language of the statute, [reads section-of Penal Code,] ‘Larceny in other cases is petit larceny." The words in italics are the words used in section 488 of the Penal Code. It does not appear that more than one section was read, and the language of one section is given in the charge. Does this disclose error? We cannot say that

it does. It may be that the court read other sections, but this does not appear. Error must be deducible from the record. If it does not appear, it does not exist; and it must be recollected that all intendments are in favor of the correctness of the action of the court below.

It may be argued that the language used, "that larceny in other cases is petit larceny," shows that a section was read defining cases which were not petit larceny. Granting this to be so, it would also show that the other sections in relation to grand larceny were read, and this would identify them sufficiently to bring them within the rule of People v. Mortier, 58 Cal. 262. Sections of the Code may be identified otherwise than by the numbers. If it was stated that the sections in relation to grand larceny were read, this would identify them sufficiently, and, according to the rule in People v. Mortier, supra, there would be no error.

The defendant was charged in the indictment with stealing, on the twenty-ninth of December, 1881, a cow, the property of Robert Farran, William A. Boose, and Edward Clysdale. At the time the indictment was found (third of May, 1882) Boose had deceased. It is said the indictment should have alleged the ownership, and the proof should have followed the allegation. This is assigned as an error. The indictment alleged the ownership as of the date when the offense was committed. The ownership was properly alleged as the date mentioned, and the evidence established the allegation.

The defense of once in jeopardy is untenable under the settled law of this state. People v. Stanley, 47 Cal. 113.

The direction as to the form of the verdict was correct, and the evidence was sufficient to justify the verdict.

No error appearing in the record, the judgment and order are affirmed.

We concur: MORRISON, C. J.; MYRICK, J.; SHARPSTEIN, J.

(64 Cal. 400)

PFISTER

v.

SUPERIOR COURT OF SANTA CLARA CO.

Filed December 29, 1883.

There is no authority in a court to quash subpoenas issued by a notary to take depositions. Objection should be made to the reading of the depositions if the proceedings are irregular.

In Bank.

J. J. Burt, for petitioner.

BY THE COURT. This is a proceeding by a writ of review to review an order of the court below quashing subpoenas. An action was pending in said court, and upon affidavit and notice the plaintiff therein was proceeding to have the depositions of witnesses taken before a notary public, when, upon the motion of the defendant therein, the court made an order quashing the subpoenas on the ground that the affidavit upon which they were isused was not suffi cient. The subpoenas had been issued by the notary under subdivision 2, § 1986, Code Civil Proc.

Without determining whether or not the affidavit was sufficient, we find no provision in the Code authorizing the order to quash the subpoenas. The party desiring to do so has the right to take depositions, and the adverse party will have the right to object when the depositions shall be offered to be read, if the proceedings shall be found to be not in compliance with the statute.

Order annulled.

An injunction is not dissolved or superseded by the taking of an appeal therefrom, and where such appeal is taken this court will grant no order staying the op eration of the injunction regularly obtained in the court below, to await the determination of the appeal. Indeed, such a power is no part of its appellate jurisdiction.

In Bank.

W. C. Stratton, for plaintiff and respondent.

P. R. Wright and R. B. Canfield, for appellant.

THORNTON, J. This is an application in this court by appellant, Sheppard, for an order staying the operation of an injunction pending the appeal. The action in the court below was for an injunction restraining the diversion of the waters of Brush creek, and, on final hearing, there was judgment in favor of plaintiff for a perpetual injunction. From this judgment the applicant has prosecuted an appeal to this court, which was here for hearing when this application was made. The application bears the marks of an original suit for an injunction, and we cannot see that it comes within the original jurisdiction held to be conferred on this court by the constitution. This court is authorized by the constitution to issue all writs necessary or proper to the complete exercise of its appellate jurisdiction. Const. art. 6, § 4. But there is here no impediment to the exercise of the appellate jurisdiction. The cause is here on appeal as fully as the appellant desired to bring it, and the appellant has encountered no obstacle in so doing. There is then no ground for invoking this jurisdiction. See Eldridge v. Wright, 15 Cal. 88; Hicks v. Michael, Id. 107.

The court below in this case having adjudged on the trial, after full hearing, that the plaintiff was entitled to an injunction, it does seem to us that this court would be going very far in interfering to suspend the force of its judgment. Such action would have very much the appearance of taking A.'s property and handing it over to B., and referring A. for compensation to an action on a bond.

We are referred to Hill v. Finnigan, 54 Cal. 495. In that case the appellant filed an undertaking to stay execution; the sureties were excepted to, and they failed to justify. This court, on application, allowed the appellant to file a stay undertaking. In relation to this, it was observed that "the statute does not treat of undertakings in

the supreme court, and we have no doubt but this court has an inherent power to secure to the appellant the fruits of a successful appeal, if it can be done without depriving the respondent of a substantial right." It will be found that the court had held, as the opinion shows, that the appellant had a right to file a stay undertaking under the statute. See first point in syllabus of case.

The excuse for not filing it previously, in accordance with the provisions of the statute, was satisfactory to the court, and it acting under the general equity powers pertaining to every court, and so frequently availed of and administered on motions, duly accorded to appellant a right which the statute gave him. But in granting it under its inherent equity powers, it declared, in effect, that when the granting of the application would deprive the respondent of a substantial right that this power should not be exercised.

Of this application it may be observed that neither statute law nor law of any kind accords the applicant a stay such as is asked for on filing an undertaking or bond. It is different in that regard from the condition of the appellant in Hill v. Finnigan; and further, it having been, on full hearing and trial, adjudged that the plaintiff was entitled to the injunction to restrain the diversion by the moving party of the waters mentioned above, it would be depriving the respondent of a substantial right to suspend or interfere with the exercise of a right as to these waters solemnly decreed to him.

The application must be denied, and it is so ordered.

We concur: MORRISON, C. J., MYRICK, J.

SHARPSTEIN, J., concurring. It was early held in this state that an injunction is not dissolved or superseded by the taking of an appeal from the order granting it. Merced Mining Co. v. Fremont, 7 Cal. 130. That case has not been overruled, and the statute, in respect to the question now raised, has not been substantially changed. The only question raised by the appeal is whether the injunction was properly granted, and that question must be determined upon the record. Until so determined the presumption is in favor of the correctness of the judgment of the court below. We could not grant this motion without at least modifying the judgment appealed from. If the judgment be reversed it will then be apparent that the appellant was deprived of the use of his property by the granting and continuance of the injunction. But if we grant this motion and finally affirm the judgment it will be equally apparent that the respondent was deprived, in the mean time, of the use of his property.

There is nothing in this case which materially distinguishes it from most of the cases in which appeals are taken from orders or judgments granting injunctions.

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

(64 Cal. 410)

LUNING

บ.

WISE.

Filed December 29, 1883.

Mere authority to execute a promissory note for another does not include authority to pay the note when it becomes due.

A presentment to one of two joint makers of a promissory note is insufficient to charge an indorser, unless some legal excuse be shown, for the failure to make presentment to the other, and the death of one of the joint makers does not constitute such excuse, if presentment may be made to the executor or administrator of his estate.

When the maker of a promissory note has no place of business, or his place of business cannot with reasonable diligence be ascertained, presentment for payment is excused. Civil Code, § 3131.

It is presumed that an indorsement on a note was made for valuable consideration before maturity.

In Bank.

Sydney V. Smith & Son, for respondent.

Sully R. Wise, for appellant.

MCKEE, J. Action by the indorsee against the indorser upon a promissory note, of which the following is a copy:

"$475.00.

SAN FRANCISCco, March 24, 1879.

"Thirty days after date, without grace, we promise to pay to the order of T. R. Wise, four hundred and seventy-five dollars, with interest at the rate of one per cent. per month from date until paid. Principal and interest payable only in gold coin of the government of the United States, for value received.

"EDWARD W. JONES. "By his attorney in fact, Thomas H. Holt.

"THOMAS H. HOLT."

At its maturity the note was not presented to Jones, one of the joint makers, and upon that fact the indorser makes his contention. that he is not bound to pay. The note is not made payable at any particular place, but being dated at San Francisco, the presumption is that the makers resided, or had their place of business, there, or at some other place within the state. Story Prom. N. 230.

Upon that presumption it would be necessary for the holder, in order to charge the indorser, to make presentment of the note at maturity to the makers at their respective places of residence or business, at the place where it was dated, or elsewhere in the state, if with