Opinion of the Court Rhodes, J.

pany v. The Crescent Company, judicially determined that the transfer was legal, and the Whitney Company and its privies are bound by such judicial determination.

Fifth -That the plaintiff is not shown to have been a creditor of the Whitney Company at the time of the transfer. Sixth-There is nothing in the record to show that either of the defendants ever received any moneys belonging to the Whitney Quartz Mining Company.

RHODES, J., delivered the opinion of the Court:

The note of the Crescent Company was assigned by the Secretary of the Whitney Company in his official capacity. The assignment purports to be made by the Whitney Company, but it was not executed by the corporation. It is not, therefore, a corporate act, unless the Secretary was not only authorized to make the assignment, but also to make it in his official capacity. The Secretary is not vested with such authority by virtue of his office, and no delegated authority from the corporation is shown; and under the authority of Gashwiler v. Willis, (33 Cal. 16), and the cases therein cited, the assignment was void. No ratification, by the corporation, of the assignment is shown. The alleged settlement made between the corporation and Bollinger, and the giving of the credit by the latter to the corporation, was only an arrangement between Bollinger and the Secretary of the company, but it does not purport to be a corporate transaction; and no corporate authority to the Secretary to conclude such an arrangement appears; nor has the corporation adopted the act of the Secretary in that behalf.

The money received by the defendants on the note, or rather on the judgment obtained by them on the note, was the money of the Whitney Company, unless the latter was estopped by the judgment from setting up a claim to the money. An action had been commenced by the Whitney Company against the Crescent Company, the maker of the note, before the attempted assignment of the note to the defendants, and judgment was afterward rendered in the action against the Crescent Company and in favor of one of

the present defendants, the assignee of the note, but for the benefit of both defendants. The position of the defendant as to the effect of the judgment is fully met by either of these considerations: It does not appear that the fact of the assignment of the note was in issue between the Whitney Company and the alleged assignee; and if that fact was in issue, and was determined in favor of the assignee, the estoppel is not pleaded in this cause.

For these reasons we think the Court was in error in granting a nonsuit.

Order reversed and cause remanded for a new trial.

CROCKETT, J., did not participate in the decision.

G. W. KING, APPELLANT, v. WELLMAN & PECK, RESPONDENTS. PRESUMPTION IN FAVOR OF THE JUDGMENT WHEN THERE ARE NO FINDINGS.— If no findings are filed, on the trial of a case by the Court without a jury, in support of the judgment, It will be assumed that the facts necessary to authorize the judgment were found in behalf of the party in whose favor it was rendered.

APPEAL from the District Court of the Fourth District, City and County of San Francisco.

The case is stated in the opinion.

Williams & Bush, for Appellants.

G. G. Blanchard and E. W. Taylor, for Respondents.

SAWYER, C. J., delivered the opinion of the Court:

The questions in this case are of fact rather than of law. If at the time of the formation of the partnership between Brusie and King the latter was aware of the indebtedness from Brusie to Wellman, Peck & Co. for the goods put into the partnership business by Brusie, and it was at the time understood by them as a part of the partnership arrangement, that the same indebtedness from Brusie to Wellman, Peck & Co. should be paid by the firm, or what is the same

Points decided.

thing, out of the property of the partnership; or if King subsequently assented to the arrangement by Brusie and defendants, Wellman, Peck & Co., then the judgment is correct. The Court filed no findings, and in support of the judgment it must be assumed that upon these points, or one of them, at least, the fact was found for defendants. That the finding is not supported by the evidence in those particulars is the main ground relied on to reverse the judgment and order. But the evidence on the point is such that we cannot disturb the findings. We are not satisfied that there is any error.

The judgment and order denying a new trial must, therefore, be affirmed, and it is so ordered.

ROBERT MURDOCK, RESPONDENT, 0. ROBERT C. BROOKS, JOHN SHIRLEY AND WILLIAM E. REID, APPELLANTS.

PLEADING COMPLAINT UPON AN UNDERTAKING GIVEN ON APPEAL-In an action upon an undertaking given on appeal from the judgment of a District Court for the possession of real estate, for costs and damages, and for the value of the use and occupation of the premises, it is not necessary to aver in the complaint that the District Court had jurisdiction to render the judgment appealed from.

IDEM. Nor is it necessary to allege that the undertaking had the effect to stay the execution of the judgment, if it appears therein that proceedings for the execution of the judgment were never taken, and that the appellant has full benefit of a stay pending his appeal.

IDEM.-If a copy of the undertaking be set out in the body of the complaint it will be taken and considered as a part thereof.

IDEM.-A complaint, in such a case, is not defective, because it contains no

averment that an execution had been issued, and returned unsatisfied, or because no demand for payment is alleged to have been made on the principal. IDEM. Nor is it necessary to allege that the plaintiff in the judgment was entitled to the possession of the premises pending the appeal.

ASSIGNEE OF UNDERTAKING ON APPEAL.-An assignee of an undertaking on

appeal cannot recover, without alleging and proving an assignment of the judgment, or the claim which has been secured by the undertaking. ASSIGNMENT OF UNDERTAKING AND JUDGMENT ON CLAIM.- An assignment which purports to transfer to the assignee all the right, title and interest of the assignor in the undertaking, “and in the amount thereby secured," is broad enough to enable the assignee to recover for use and occupation, pending the appeal, and costs.

ACTION FOR USE AND OCCUPATION UPON AN UNDERTAKING ON APPEAL-In an action for use and occupation upon an undertaking on appeal, the defendants are estopped from denying that the defendant in the judgment was in the possession at the time he took his appeal and gave the undertaking.

Argument for Appellants.

IDEM-COUNTER CLAIM.—A judgment for costs, in an action for the recovery of real property, against the tenants in possession, which was defended by the landlord in the name of the tenants, cannot, as such, be enforced against the landlord, or be made the ground of a counter claim against him.

APPEAL from the District Court of the Fifteenth District, City and County of San Francisco.

The case is stated in the opinion.

E. A. Lawrence, for Appellants, submitted the following points and authorities:

First-The complaint must show that the Court, in which the judgment appealed from was rendered, had jurisdiction to render the judgment and receive the undertaking. (Tar bell v. Gray, 4 Gray, Mass. 444.)

Second-The complaint does not state that the undertaking filed had the effect to stay the execution. The mere filing the undertaking does not give the right of action against the undertakers. It is the damage sustained by the respondent, because he has been deprived of his writ, which authorizes a recovery. (Thompson v. Blanchord, 2 N. Y. R. S. 61.)

Third-The copy of the undertaking, set forth in the complant, is a matter of evidence, and not of pleading. The complaint must state a complete cause of action without the undertaking. The 53d Section of the Practice Act does not provide for making the instrument a part of the pleadings. (Curtiss v. Murray, 26 Cal. 635; Bentley v. Dorcas, 11 Ohio, N. S. 398.)

Fourth The fourth point of the demurrer is made on the theory that the obligation of the undertakers is collateral, not that they will pay, but the appellant will pay the value of the use and occupation pending the appeal.

Fifth The fifth point of the demurrer is well taken. Calderwood assigned to plaintiff the undertaking on appeal, and nothing more. He did not assign to him the judgment or convey to him the land, and it does not appear that he was the owner of the land. It requires no argument to show that the rents, pending appeal, did not belong to the one

Argument for Respondent.

who held the undertaking, but to the one who owned the land.

Sixth-The sixth point is well taken, that it does not appear that Calderwood was entitled to possession of the premises sued for. He must allege and prove that he was entitled to possession before he can recover for the use and occupation of the premises. (Whitney v. Allen, 21 Cal. 233.) The eleventh point is that the undertaking is not assignable, the plaintiff cannot maintain suit thereon.

We think we had a clear right to show the fact that R. C. Brooks had not been in possession during the time sued for, but had been turned out by the Sheriff, and that, there fore, he was not liable for the rents. He had not excluded Calderwood, but another (Edmond Brooks) had, and therefore Calderwood was not entitled to possession against him, during the appeal. (Whitney v. Allen, 21 Cal. 233.)

P. G. Buchan, for Respondent.

First-The first point the appellants' counsel makes is, that the complaint did not show the Court had jurisdiction. It does not lie in the mouth of the appellants to raise that question, as they gave the undertaking on appeal from the judgment against them in that action.

Second-The next point made by the demurrer is, that the complaint does not state that "the undertaking filed had the effect to stay the execution." That is a question of law from the facts and not a fact. A defendant on appeal from the District Court on a money judgment, gives the undertaking required by Section 349 of the Practice Act in double the amount of the judgment recovered. The execution is stayed by that fact. In an action on the undertaking, it certainly would not be necessary to inform the Court, as a question of law, that such an undertaking had the legal "effect to stay the execution."

Third It is not, according to the terms of the undertaking or the law, that the obligee in the undertaking should first make a demand on the appellants before he could proceed against the sureties. (Brown v. Davis, 15 Cal. 11.)

Fourth-The answer to appellants' fifth point is, that the