in the act." Chapman v. Forsyth, 2 How. (U. S.) 202, 11 L. Ed. 236.

In Palmer v. Hussey, 119 U. S. 96, 7 Sup. Ct. 158, 30 L. Ed. 362, where the bankrupt had received certain bonds "as the agent and broker" of the plaintiff, and had converted them to his own use, the same court held that there was no such fraud in the creation of the debt, and no such trust in respect to the possession of the bonds by the defendant, as to bar the operation of the discharge.

In Upshur v. Briscoe, 138 U. S. 365, 11 Sup. Ct. 313, 34 L. Ed. 931, it was held by the same court that an instrument appointing a person as attorney to receive moneys for the benefit of another, and to pay the interest annually to such other, and at her death to pay the principal sum to her legal issue, or in default of such issue the said sum to revert to the maker of the instrument, did not create between the attorney and the beneficiary a trust in its technical sense, nor a debt of a “fiduciary character" within the meaning of the bankruptcy act, although the obligation was called a "trust," and the attorney a "trustee," in the instrument. The court says (page 377 of 138 U. S., page 317 of 11 Sup. Ct. [34 L. Ed. 931]) that, within the meaning of the exception in the bankruptcy act, the debt is not created by a person while acting in a fiduciary character, merely because it is created under circumstances in which trust or confidence is reposed in the debtor, in the popular sense of these terms.

In the case of Noble v. Hammond, 129 U. S. 65, 9 Sup. Ct. 235, 32 L. Ed. 621, the record showed that the defendant was a produce dealer, and had been requested by certain parties to collect money for them, and to keep it until it should be called for. After collecting the money, he deposited it in bank in his own name, and before he paid it over was forced into bankruptcy. The court held that the parties' claim against him was not created by the fraud of the bankrupt, or by his defalcation while acting in any fiduciary character within the meaning of the bankruptcy act; and that, even if the agreement might be construed as creating a trust in some sense, it was not such a trust as comes within the provisions of the bankruptcy law. Most of the above decisions arose under former bankruptcy acts, but section 17 of the act of 1898 is practically identical with the corresponding provisions of the earlier acts, and has received the same construction in such cases as have arisen since its enactment. In re Basch (D. C.) 97 Fed. 761.

In Bracken v. Milner (C. C.) 104 Fed. 522, decided under the act of 1898, where defendant had received money from another to be loaned for that other's account, and was authorized to receive payments of the interest or principal of such loans, and remit the same to the owner, and afterward became bankrupt without having paid over the moneys, it was held by the Circuit Court that the

defendant had not received the money in a fiduciary capacity within the meaning of the statute, but merely as an agent; and that the plaintiff's claim for the money was one from which the defendant was released by a discharge in bankruptcy.

The judgment is, therefore, modified by striking therefrom the following: From paragraph 1 thereof the words, "and plaintiff's assignor's claim therefor was not such a claim as would be released by a discharge of defendants in bankruptcy," the words "in trust" occurring in the phrase "to be held in trust by defendants," and the word "trust" occurring in the phrase "entitled to the return of said trust moneys." And from paragraph 2 thereof the following: "And since said assignment said defendants have been and now are holding said sum and interest thereon in trust for this plaintiff, and plain. tiff's claim therefor is not such a claim as would be released by a discharge of defendants in bankruptcy."

As so modified, the judgment is affirmed. We concur: COOPER, P. J.; HALL, J.

(7 Cal. App. 178) BURKE v. SUPERIOR COURT OF CALI FORNIA, IN LOS ANGELES COUNTY, et al. (Civ. 410.)

(Court of Appeal, Second District, California. Dec. 21, 1907.)

1. DEPOSITS IN COURT-APPLICATION FOR OBDER-CORPORATIONS-DISSOLUTION-FUNDS.

Plaintiff alleged that the directors of a corporation, desiring to wind up its affairs, authorized him to pay its debts and distribute its assets, and alleged that defendants owed certain sums on stock subscriptions, to which defendants by cross-complaint alleged that plaintiff, as an officer of the corporation, had a certain sum which he held as funds of the company, and asked that he be required to deposit the amount in court. Plaintiff's answer to the cross-complaint admitted having received such sum, but set up a claim for disbursements and expenses and for compensation for services. Held, that these allegations were deemed denied under Code Civ. Proc. § 462, and therefore plaintiff's title to that part of the fund which he claimed constituted an issue to be tried in the ordinary manner, and it was error to order him to pay the same into court under section 572, authorizing an order for such payment when it is admitted by the pleading or shown that a party has in his possession any property, the subject of litigation, held by him as trustee for another party or which belongs to another party.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 16, Deposits in Court, § 1.]

2. PROHIBITION-JURISDICTION.

Where the pleadings did not disclose the requisite facts necessary to confer jurisdiction on the superior court to make an order requiring a party to pay money into court under Code Civ. Proc. $572, such an order was void, and, the court having no jurisdiction to entertain subsequent proceedings for contempt based thereon, the writ of prohibition would issue.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Prohibition, §§ 37-56.]

Application by Edmund Burke for writ of prohibition against the superior court of the

county of Los Angeles and Hon. Frederick W. Houser, Judge. Writ granted.

Edmund Burke, in pro. per. Henry J. Stevens and O'Melveney, Stevens & Millikin, for respondents.

SHAW, J. Soto Heights Land & Improvement Company is a corporation of which the petitioner is the secretary, as well as a member of the board of directors. A complaint was filed by plaintiff, wherein it is alleged that the board of directors of the corporation determined to abandon the prosecution of the business for which it was incorporated, and authorized petitioner to take such steps as might be deemed necessary to obtain an accounting and wind up its affairs, pay its debts, and distribute the remaining assets to the stockholders in proportion to their respective rights. A number of persons alleged to have subscribed for stock, upon whose subscriptions a balance was due, were made party defendants, against whom judgments were asked for such sums as might be found due the corporation, and praying that an order be made directing payment of the amount which might be found due to plaintiff and other creditors of the corporation; it being alleged that said corporation was indebted to plaintiff and others for services, money advanced, salary, disbursements, office rent and legal expenses, as well as for other purposes. In answer to this complaint, the defendants California Cornice Works, Pacific Coast Planing Mill Company, and Arletta F. Davenport, alleged in the complaint to be indebted to said corporation for moneys due on their subscriptions to stock, filed cross-complaints wherein, among other things, they alleged that plaintiff, as an officer of the corporation, had in his hands as such officer the sum of $2,050, which he held as funds of the company and for its use and benefit, and asked for judg ment that said plaintiff be required to deposit said sum of $2,050 in court. In his answer to these cross-complaints plaintiff admits that he did receive of the funds of said corporation the sum of $2,050, and that prior to the commencement of the action said crosscomplainants and the other defendants authorized him, as trustee, in his and their behalf, to take such steps as he deemed proper to wind up the affairs of the said corporation, and to that end collect amounts due, pay its obligations, and divide the residue among those found to be entitled to the same; that pursuant to such authorization he, among other things, instituted this action, and is maintaining the same for said purpose. It is then alleged that said corporation is indebted to plaintiff in various sums, for advancements and disbursements actually made for and on its behalf, amounting in the aggregate to several hundred dollars, as well as for salary as secretary of the corporation since the date of its incorporation at $150 per month; and alleging, further, that he claims the right to

deduct from the funds in his possession the amount due him from said corporation, and asks that the rights of all parties to said action be adjudicated therein. Upon these pleadings the cross-complainants, upon notice duly given, moved the court for an order requiring plaintiff to deposit in court the sum of $2,050, the ground therefor being that he had in his possession such sum of money belonging to said corporation; whereupon the court granted said motion and ordered plaintiff forthwith to pay into court the sum of $2,050. Thereafter a motion was made by plaintiff to vacate and annul said order, or modify the same to the extent of crediting plaintiff with the amount of cash expended for and in behalf of said corporation as its secretary, which motion the court denied, and on June 21, 1907, the court made an order requiring petitioner to appear before it on June 28, 1907, then to show cause why he should not be adjudged guilty of contempt for disobeying said order requiring him to pay into court said sum of $2,050, and why he should not be punished for such disobedi

ence.

The order requiring petitioner to deposit this $2,050 in court was made under and by virtue of section 572 of the Code of Civil Procedure, which is as follows: "When it is admitted by the pleading, or shown upon examination of a party, that he has in his possession, or under his control, any money or other thing capable of delivery, which, being the subject of litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same, upon motion, to be deposited in court or delivered to such party, upon such conditions as may be just, subject to the further direction of the court."

The court's jurisdiction to make the order requiring petitioner to deposit in court the sum of $2,050 was, under the provisions of said section, dependent upon whether or not petitioner by his pleading admitted having in his possession said sum of money belonging to the corporation. If he did not make such admission, then it would seem clear that the court was without jurisdiction to make such order. Petitioner in his answers to the crosscomplaints admits having received funds of the corporation to the amount of $2,050, but as against this he sets up a claim for several hundred dollars on account of disbursements made and expenses incurred by him for and on behalf of the corporation, and also claims compensation for services rendered since the incorporation of the company as secretary thereof. These allegations, under the provisions of section 462 of the Code of Civil Procedure, are deemed to be denied; and therefore petitioner's title to that part of the fund which he claimed by way of compensation for services rendered as secretary, and on account of disbursements made for the corporation, constituted an issue to be tried, not in this summary manner, but in the usual

and ordinary action wherein a verdict of the jury or finding of the court could be had thereon. His answer showed that petitioner claimed the right to part of the fund in his possession, and the court was without jurisdiction to compel him to surrender to another what he claimed to be his property, until there had been a judicial determination, upon the hearing of all the facts, that he had no right to it. To justify the making of the order, the admission in the pleadings of having money in possession belonging to another must be free from any claim thereto. "If money is ordered to be brought in which is not clearly due, very gross injustice may be done, as the defendant may be put to great inconvenience, and afterwards be told that his view of the case was correct." Hagall v. Currie, L. R. 2 Ch. App. 449.

Furthermore, the fund must, under the provisions of said section, be the "subject of the litigation." "If the money in the possession of the party is not the subject of the litigation, but its payment is an incident thereto, dependent upon the judgment to be rendered in the action, as in the case of an action for * * accounting * * the provisions of this section do not authorize such order." Green v. Duvergey, 146 Cal. 379, 80 Pac. 234. The pleadings clearly show the action to be one having for its purpose the procuring of an accounting between the corporation and its stockholders, and to determine the amount of money in the possession of any of the parties to the action belonging to the corporation, with a view of having it paid into court and winding up the corporate affairs.

In our judgment the pleadings do not disclose the requisite facts necessary to confer jurisdiction upon the court to make the order requiring a deposit of the money in court. The order is therefore void, and, being void. it follows that the court had no jurisdiction to entertain any subsequent proceedings based thereon and instituted for the purpose of having the petitioner adjudged guilty of contempt for disobedience of such order.

Our conclusion renders it unnecessary to pass upon other alleged points affecting the validity of the order.

The alternative writ of prohibition heretofore granted is made peremptory.

didate not receiving a plurality of votes given at an election was not entitled, in order to secure his own election, to have disregarded the votes cast for an ineligible candidate.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 18, Elections, §§ 207-215.] 2. SAME-COSTS.

Under the express provisions of Code Civ. Proc. $1125, where an election is annulled and set aside, judgment for costs must be rendered against the party whose election was contested in favor of the party contesting the same.

Appeal from Superior Court, Santa Clara County; M. H. Hyland, Judge.

Proceeding by James H. Campbell against Arthur M. Free to contest an election. From a judgment declaring void the election of Free, but refusing to declare contestant elected, contestant appeals. Modified as directed in opinion, and, as modified, affirmed.

John E. Richards, C. C. Coolidge, and Jas. P. Sex (H. S. Bridges, of counsel), for appellant. Rogers, Bloomingdale & Free, for respondent.

COOPER, P. J. This proceeding was brought by plaintiff as contestant to determine the question as to who, if any one, was elected to the office of district attorney of the county of Santa Clara at the general election held in November, 1906, and to have it declared that the election of respondent be anulled and set aside. The trial court, upon its findings, ordered judgment, annulling and setting aside the declaration of the official board of canvassers and declaring void the alleged election of respondent, but refused to declare the appellant elected to said office. This appeal is from the judgment so entered.

Respondent does not question the judgment annulling the election as to him. Appellant contends that it should have been further adjudged that he was duly elected to the said office. The record contains many questions as to rulings on ballots, and as to whether or not certain ballots were properly rejected or counted. It is, however, to the credit of counsel, conceded that, if the ruling of the court was correct on the main question, the ballots concerning which the rulings are questioned, however counted, would not change the result. All other questions are therefore eliminated, except the single one as to whether or not the appellant was elected to the office of district attorney at the said election.

The facts material to the question, as found by the court, are as follows: Respondent received at said election 5,840 legal votes, and appellant 5,748. The respondent at the time of said election held the office of postmaster at Mountain View, with a compensation exceeding $500 per annum, and was therefore ineligible to the office. The Constitution provides (article 20, § 13) that a plurality of the votes given at an election shall constitute a choice; and the Political Code (section 1066) states that "the person receiving at any elec tion the highest number of votes for any

office to be filled at such election is elected thereto." The appellant did not receive the plurality of the votes given at the election. He contends that the votes cast for respondent should not be considered in any manner in the count, for the reason that the respondent was ineligible; that the case should be determined in the same manner as if the votes respondent received had been cast for the King of England or the Man in the Moon. To such doctrine we cannot accede. The respondent was a citizen of the state, a resident and elector of the county, and it does not appear that he even knew of his own ineligibility. The law contemplates that the electors shall decide the question as to who shall be elected to an office, and that it is necessary to a choice that some one legally qualified shall receive a plurality of the "votes given at the election." The appellant. did not receive such plurality. The votes cast for respondent were votes given at the election. It is not necessary to discuss the question as to the effect of votes given for a name in mythology, or to some one whose name has come down in history, as Julius Cæsar, or Mohammed. In such case the elector would clearly appear not to have intended to express his choice as to who should hold the office. The electors usually take a pride and an interest in casting their votes for the person or candidate of their choice, not as an idle act, but with a view of giving the office, with its honors and emoluments to such person or candidate. If the person for whom such votes are cast is ineligible, the votes are not to be counted for the next highest candidate on the list. If a majority of the voters, either by mistake of law or of fact, happen to cast their ballots for an ineligible candidate, it does not follow that the next highest on the list would receive the office. The votes, if given in good faith for a person who is a candidate for the office, and who afterwards is found to be ineligible, are notwithstanding legal votes. It sometimes happens, notwithstanding all care, that a political convention nominates a person to an office who is afterwards found to be ineligible,and that such fact was not only unknown to the convention which nominated him and to the voters, but also unknown to himself. In such case it is consistent with the theory of our institutions, and the right of the people to have officers of their own choosing, to consider the election void, because it is not an expression of the will of the people by a plurality of the votes cast. Any other rule might result in giving an office to a very incompetent or dishonest man who received only a few votes. In the case at bar one Brandt received 407 votes out of about 12,000 cast for the office of district attorney. Suppose the appellant was also Ineligible to that office, if his views are correct the courts would have to declare Brandt the duly elected district attorney.

The views we have expressed are support

ed by decisions in our own state. Saunders v. Haynes, 13 Cal, 145; Crawford v. Dunbar, 52 Cal. 36; People v. Rodgers, 118 Cal. 373, 46 Pac. 740, 50 Pac. 668. In the latter case it is said: "The election of appellant was declared void, and was annulled by reason of his ineligibility to the office; but inasmuch as he received a majority of the votes cast at the election, the court was not authorized to declare that any other person was elected." The same rule prevails in Pennsylvania. Commonwealth v. Cluley, 56 Pa. 270, 94 Am. Dec. 75. It is there said: "Even in England it has been held that votes for a disqualified person are not lost or thrown away, so as to justify the presiding officers in returning as elected another candidate having a less number of votes, and, if they do so, a quo warranto information will be granted against the person so declared to be elected on his accepting office. Under Constitutions such as ours there are even greater reasons for holding that a minority candidate is not entitled to the office, if he who received the highest number of votes is disqualified." And in New York (People v. Clute, 50 N. Y. 451, 10 Am. Rep. 508); and in Michigan (Crawford v. Molliter, 23 Mich. 341); and in Kentucky (Howes v. Perry, 92 Ky. 260, 17 S. W. 575, 36 Am. St. Rep. 591); and in West Virginia (Dryden v. Swinburne, 20 W. Va. 89); and in Arkansas (Sweptson v. Barton, 39 Ark. 549); and in Missouri (State v. Walsh, 7 Mo. App. 142; State v. Vail, 53 Mo. 97). In Indiana the rule appears to be to the contrary, but we do not approve of the doctrine as laid down in the cases from that state.

In the judgment, after annulling and setting aside the election of respondent, the court directed "that each party pay their own costs." This is not in accord with the plain mandate of the statute in regard to election contests (Code Civ. Proc. § 1125), which provided at the time of this contest that, "if the election is annulled and set aside, judgment for costs must be rendered against the party whose election was contested in favor of the party contesting the same."

The trial court is directed to modify the judgment by striking therefrom the portion quoted, and inserting in lieu thereof "and the contestant is entitled to judgment for costs against respondent"; and, as so modified, the judgment is affirmed.

We concur: HALL, J.; KERRIGAN, J.

(7 Cal. App. 155) CAMPBELL v. BOARD OF SUP'RS OF SANTA CLARA COUNTY et al. (Civ. 447.)

(Court of Appeal, First District, California. Dec. 19, 1907. Rehearing Denied by Supreme Court Feb. 17, 1908.)

1. OFFICERS-PUBLIC OFFICE-"INCUMBENT." Under Pol. Code, § 996, providing that "an office becomes vacant on the happening of either

of the following events before the expiration of the term: (1) The death of the incumbent

* *"-one who has been elected to an office, but who fails to qualify by filing the bond, is in the sense of the statute the incumbent, though he never was in possession of nor performed any duty in connection with the office.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Officers, § 82.

For other definitions, see Words and Phrases, vol. 4, pp. 3518, 3519.]

2. SAME-VACANCY.

*

Under Pol. Code, § 996, providing that "an office becomes vacant on the happening of either of the following events before the expiration of the term: (1) The death of the incumbent. *(10) The decision by a competent tribunal declaring void his election or appointment" -an office became vacant on the decision of the court declaring void an election on the ground that the person elected, but who had not taken possession of the office, and who failed to qualify and take his official oath, was ineligible to take the office at the time of the election, in proceedings to contest the election under Code Civ. Proc. 1111, providing that the right of any person declared elected may be contested when he was not at the time of the election eligible to the office, and section 1122, providing that, after hearing the proofs and allegations of the parties, the court must pronounce judgment either confirming or annulling and setting aside such election.

Appeal from Superior Court, Santa Clara County; A. L. Rhodes. Judge.

Action by James H. Campbell against the board of supervisors of the county of Santa Clara and others to enjoin defendants from declaring a vacancy in the office of district attorney of said county and then filling such office by appointment, and also to enjoin the county clerk from issuing a certificate of appointment to any person appointed by the board to such office. Judgment for plaintiff, and defendants appeal. Reversed.

Rogers, Bloomingdale & Free, for appellants. James H. Campbell (John E. Richards, of counsel), for respondent.

COOPER, P. J. This action was brought to enjoin the board of supervisors of Santa Clara county and the several members thereof from declaring a vacancy in the office of district attorney of said county and then filling such office by appointment, and also to enjoin the county clerk of said county from issuing a certificate of appointment to any person who might be appointed district attorney of said county by said board of supervisors. Judgment was entered for plaintiff as prayed for, and this appeal is from the judgment.

At the general election held in November, 1902, plaintiff was duly elected district attorney of said county for the term of four years, his term to commence on the first Monday of January, 1903. He duly qualified, entered upon the discharge of the duties of his office, and ever since has continued in possession of said office and in the discharge of the duties thereof. At the general election held in November, 1906, the plaintiff and one Arthur M. Free were each candidates for

the said office of district attorney. Free received a plurality of the votes cast at such election, and was declared by the board of supervisors duly elected to such office. He declined and refused to file his official bond and take the oath of office. After the declaration by the board of supervisors to the effect that Free had been duly elected, the plaintiff instituted proceedings in the superior court of said county to contest the election of said Free, which resulted in a judgment declaring that at the time of the election Free was ineligible to the office by reason of the fact that he held a lucrative office under the United States government, the compensation of which exceeded $500 per year, and annulling his election for this reason. The judgment, besides declaring that at the time of his election Free was ineligible to the said office, in effect adjudged that plaintiff was not elected to said office. This judgment has this day been affirmed here. Campbell v. Free (No. 440) 93 Pac. 1060. The question therefore resolves itself into whether or not there is a vacancy in the office of district attorney of said county, which the board of supervisors are authorized to fill by appointment.

It is provided in the Code of Civil Procedure (section 1111) that the right of any person declared elected may be contested when the person was not at the time of the election eligible to the office. The Code evidently contemplates that cases may arise in which the person declared elected, and who receives the highest number of legal votes, was at the time of his election ineligible to the office. In many cases the evidence as to the ineligibility of a candidate is conflicting, and it requires a careful weighing and analysis of the evidence by the trial court to determine the ultimate fact. The Code in such case provides for a contest as to the right of a person declared elected to an office, although he be at the time of the election ineligible. It provides (section 1122) that after hearing the "proofs and allegations of the parties the court must pronounce judgment in the premises, either confirming or annulling and setting aside such election." We must then look to the Political Code as to when an office becomes vacant. It is there provided (section 996): "An office becomes vacant on the happening of either of the following events before the expiration of the term: (1) The death of the incumbent. * * (10) The decision by a competent tribunal declaring void his election or appointment."

The court declared void the election of Free before the expiration of his term, and the question therefore narrows itself to the one as to whether or not he was the incumbent. It has been held, and is the rule in this state, that one who has been elected to an office, but who fails to qualify by filing the bond, is in the sense of the statute the incumbent, although he never was in possession of nor