ing in which a reform school is to be hereafter conducted, but it is an act to establish a school. There can be no school without pupils. It is not simply an act to establish a school, but a school for juvenile offenders. This is a clear indication of an intention to provide for an in. stitution for a certain class of criminals, -children who have offended against the laws of the state. No one can be condemned without a hearing. The title of the act necessarily implies, therefore, that some officer or tribunal shall hear and determine the question whether certain persons charged with crime shall be committed to a reform school, or treated as ordinary juvenile offenders are treated under the penal laws of the state. Any person of ordinary intelligence, reading the title of the act in question, would naturally be led to the inquiry, what juvenile offenders may be sent to this school, under what circumstances may they be committed to this institution, and who is to determine whether or not they should be sent there?

The title of the act clearly shows what the legislature intended to accomplish, and the provisions referred to simply conduce to that object; they are auxiliary to and promotive of the main purpose of the act, and have a "necessary and natural connection" therewith. They are germane to the subject stated in the title of the act; there is no attempt to conceal the purpose or scope of the act, and no attempt in the act itself to blend diverse and independent subjects. It is admitted that the constitutional provision under consideration has always been given a liberal construction; and this must be so, because the constitution itself does not define the degree of particularity with which a title shall specify the subject of a bill. The matter must therefore be left largely to legislative discretion. Mills v. Carleton, supra; Hannibal v. Marion Co., 69 Mo. 576; State v. Ranson, 73 Mo. 86; People v. Parks, 58 Cal. 635; San Francisco & N. P. R. Co. v. State Board, 60 Cal. 12. While it is the duty of the court to place such a construction upon this constitutional provision as will prevent mischievous and vicious legislation, we should guard against such a rigorous interpretation of the language as will impale upon its sharp points the good with the bad. The cases cited by the petitioner do not support his contention. The Colorado case, upon which he places his chief reliance, is clearly distinguishable from the case before us. The title of the act under consideration in that case stated that it was an act "to provide for the maintenance, government, and police of the penitentiary, also the mode of appointing officers, and fixing the salary of the same, and to repeal several acts relating thereto," while the act itself made "certain offenses felonies punishable by confinement in the penitentiary, that otherwise would be considered and punished as misdemeanors." The court properly held that the act dealt with a subject not expressed in the title. At the time of the passage of the act the penitentiary was in existence, and a reading of the

title at once induces the conclusion that the various provisions of the act relate alone to the preservation of the building, management of the institution, and the pay of the officers. Brooks v. People, (Colo. Sup.) 24 Pac. Rep. 553.

2. Section 19 of the act gives to the person accused the right to a private examination on the question whether he ought to be committed to the reform school, unless his parent demands a public trial. The matters to be inquired into are collateral to the main issue of guilt or innocence. Either before or after conviction the court may inquire as to the habits and disposition of the defendant, and determine whether he is a fit person to be committed to the school. The inquiry can be made before conviction only with the consent of the accused, (section 18;) but after conviction it is the duty of the court to hear testimony upon the question, (St. 1889, p. 116.) It does not follow, however, that a failure to give the defendant a private examination or public trial will render the judgment void. It is mere error which can be corrected on appeal. The petitioner alleges that he did not demand a public trial and did not waive a private examination, but it is not alleged that he demanded a private examination. It appears apon the face of the judgment, however, that the court did hear testimony after the defendant had entered his plea of guilty, and found that the petitioner was "a suitable person to be committed to the instruction and discipline of the reform school for juvenile offenders at Whittier," and this adjudication is conclusive so far as this proceeding is concerned.

3. We think there is no merit in the contention that section 16 is void, because not made a part of the Penal Code. It is true it could have been enacted as an amendment to the Code, and perhaps it would have been more consistent with our system of codification if it had been, but we know of no provision which requires penal statutes to be made a part of the Code.

4. Counsel for petitioner cites section 1388 of the Penal Code, but it does not clearly appear for what purpose it is cited. If there be any conflict between that section and the act under consideration, the latter must prevail. There can be no question as to the power of the legislature to provide for the detention and education of juvenile offenders, as it has done in this act; and the provisions of the act are not obnoxious to the criticism that it prescribes unjust or unequal penalties. It is true the term of detention at the reform school may be made greater by the judgment of the court than the term of imprisonment in the county jail or in the state prison for the same offense would be, but it cannot be said that the punishment inflicted is greater than could be put upon a adult for the same offense. The object of the act is not punishment, but reformation, discipline, and education. Section 12. While detained for a longer period, perhaps, than he would be if sent to state-prison or the county jail, the conditions surrounding the child are

vastly different. He is given the opportunity and instruction to learn a trade, and qualify himself for the duties of citizenship, so that at the end of his term he will go out prepared to take care of himself, and those dependent upon him, without the odium which attaches to an exconvict. There is no doubt of the power of the state to make and enforce provisions for the compulsory education of all children within the state; and it is equally clear that the state may arrest the downward tendency of those who have offended against its laws, and manifested a disposition to follow a criminal career, by placing them in an institution where they will receive the care, education, and discipline necessary to prepare them for honorable citizenship. The records of the penal institutions of this state show that a large majority of their inmates are young men,-many of them juveniles. The legislature, in its wisdom, has endeavored to provide a place for children manifesting criminal traits, where they can be cared for without being thrown under the baneful influence of veterans in crime. We think the policy of the act a wise one, and we see no constitutional grounds for declaring it invalid. It is ordered, therefore, that the writ be discharged, and that the petitioner be remanded to the custody of the officers of the reform school.

We concur: BEATTY, C. J.; DE HAVEN, J.; MCFARLAND, J.; HARRISON, J.; SHARPSTEIN, J.; GAROUTTE, J.

(93 Cal. 647)

BRONZAN V. DROBAZ. (No. 13,547.) (Supreme Court of California. March 23, 1892.) ACTION ON JUDGMENT - PLEADING-JURISDICTION -EVIDENCE-RES JUDICATA.

1. In an action on a judgment, a complaint stating that such judgment was duly "given and made," and that no part of it has been paid, is sufficient.

2. Where the judgment roll offered in evidence shows that the action was commenced against a corporation; that defendant was there required, in proceedings supplementary to execution, to appear before a referee, and answer concerning property in his possession belonging to the corporation, which defendant did; that the referee found that he was indebted to the corporation in a certain sum; and that the court confirmed the report, and adjudged that the money be paid to plaintiff,-it does not appear on the face of the roll that the court did not have jurisdiction.

3. Though defendant was not a party to the orginal action against the corporation, the fact that copies of the order requiring him to appear before the referee, and of the affidavit on which it was based, were served on him, and in obedience thereto he appeared and was examined, sufficiently shows that the court had jurisdiction of defendant's person in the supplementary proceedings.

4. The report of the referee that defendant owed the corporation a certain sum, and the confirmation thereof by the court, constitutes a judgment which cannot be assailed collaterally.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; F. W. LAWLER, Judge.

Action by John Bronzan against Matteo Drobaz to recover the amount of a judgment. From a judgment for plaintiff,

defendant appeals. Modified and affirmed. J. D. Sullivan and Herbert Choynski, for appellant. A. F. Morrison and O'Brien & Daingerfield, for respondent.

BELCHER, C. On the 27th day of October, 1887, the plaintiff herein recovered a judgment in the superior court of the city and county of San Francisco against the Gold Lead Gold & Silver Mining Company, a corporation, for the sum of $1,271.95, and $18 costs of suit. On this judgment an execution was issued, and returned unsatisfied. The return states that the execution was duly levied upon "all moneys, goods, credits, effects, debts due or owing, or any other personal property in posses. sion or under control of Matteo Drobaz, belonging to the defendant named in said writ." Thereafter, under and in pursuance of the provisions of section 717 of the Code of Civil Procedure, an order was made by the judge of the court requiring Drobaz to appear, at a specified time and place, before a referee appointed for the purpose, to answer concerning the property in his possession belonging to the defendant. At the time and place named Drobaz appeared, with his attorney, before the referee and was examined. As the result of the examination the referee found and reported to the court that Drobaz had in his possession $217.26, which he admitted was the property of the defendant corporation, and also that he had in his possession $128 and $55, moneys of the corporation, which he claimed had been paid out and expended for the corporation, but that this claim was sham, and not made in good faith. Wherefore it was ordered that Drobaz apply $400.26-the aggregate of the said sums-towards the satisfaction of the plaintiff's judgment in the action. Subsequently an order was made by the court requiring Drobaz to appear at its courtroom at a time named, "to show canse, if any he have, why said report and order should not be confirmed and approved by the court; and also why he should not pay plaintiff's costs, amounting to $58.60, incurred in these proceedings. "" At the time appointed the parties appeared by their attorneys, and, after argument and consideration, it was by the court, on March 9, 1888, "ordered and adjudged that said report and order of said referee, as filed in this court on the 24th day of January, 1888, be, and the same are hereby, confirmed and approved in all respects, and that the said Matteo Drobaz do pay to the said plaintiff the sum of $400.26, to be applied towards the satisfaction of plaintiff's judgment herein, as ordered by said referee. It is also ordered that the application of plaintiff, as regards the payment of said costs by said defendant, be denied." On June 7, 1888. the plaintiff commenced this action, and in his complaint averred that, by the proceedings supplementary to the execution in the action before mentioned, "a judgment was duly given and made in favor of plaintiff, and against said Matteo Drobaz, defendant herein, for four hundred ($400) dollars principal, and fifty-eight and fifty hundredths ($58.50) dollars costs,

and that no part of said judgment has ever been paid." Wherefore he prayed judgment against the defendant Drobaz for $458.50, with interest and costs. The defendant interposed a general demurrer to the complaint, which was overruled, and then answered by a general denial. At the trial the plaintiff was permitted against the objections of defendant to introduce in evidence the judgment roll in his action against the Gold Lead Gold & Silver Mining Company, the execution is. sued on the judgment and the sheriff's return thereon, and all the proceedings supplementary to the execution. And when the plaintiff rested the defendant moved for a nonsuit on the ground that, "upon the face of the judgment roll offered in evidence, it appears that the court had no jurisdiction to make any order, and, in particular, that Drobaz was not indebted to the corporation in the sum of $400.26. " The motion was denied, and an exception reserved. The defendant was then called as a witness in his own behalf, and was asked by his counsel: "Now, at the time that you were examined as a garnishee, as a man that owed some money, or was said to owe some money, to this Gold Lead Mining Company, did you owe the company anything, Mr. Drobaz?" And also "Did you ever get a summons and complaint, or any papers in the other case?" Both questions were objected to as irrelevant and immaterial, and the objections were sustained, and exceptions taken. The case was then submitted, and the court made its findings, and entered judgment in favor of the plaintiff for the amount claimed. From this judgment and an order denying him a new trial, the defendant appeals.

1. Appellant contends that the complaint did not state facts sufficient to constitute a cause of action, and that the court, therefore, erred in overruling his de murrer. We think the complaint sufficient and the ruling proper. The complaint stated that the judgment sued upon was duly given and made," and that no part of it had been paid. It was not necessary to state that no appeal had been taken from the judgment, nor that the plaintiff was authorized by an order of court to institute the action.

2. Appellant also contends that his motion for nonsuit should have been granted, because the proofs introduced were wholly insufficient to authorize a decision in favor of the plaintiff. The only ground on which this ruling can be reviewed is that specifically stated when the motion was made. Other grounds cannot now be considered. Raimond v. Eldridge, 43 Cal. 508; Coffey v. Greenfield, 62 Cal. 608; Loring v. Stuart, 79 Cal. 201, 21 Pac. Rep. 651; Miller v. Luco, 80 Cal. 261, 22 Pac. Rep. 195. We do not think it appears on the face of the judgment roll offered in evidence that the court had no jurisdiction to make any or der, nor that Drobaz was not indebted to the corporation in the sum of $400.26. The referee found that Drobaz was indebted to the corporation in the sum named, and the court approved and confirmed the report, and adjudged that the money be paid over to the plaintiff. Surely the

court had jurisdiction to make the order, and the most that can be said of its action is that it was erroneous. The order was the final determination of the rights of the parties in the proceeding, and it, in effect, constituted a judgment, (section 577, Code Civil Proc.,) on which an execution might have been issued, (section 1007, Id.,) and from which an appeal might have been taken, (section 963, Id.)

3. It is further contended that the evidence was insufficient to justify the findings, and that a new trial should have been granted for that reason. The specifications as to the insufficiency of the evidence are as follows: "(1) The evidence shows that the court had no jurisdiction of the person of the defendant, Drobaz, in the action of Bronzan v. Gold Lead Gold & Silver Min. Co., and proceedings thereto supplementary to execution. (2) There is no evidence to show that Drobaz was indebted to said corporation in the sum of $400.26, or any sum whatever. (3) There is no evidence to show that Drobaz was ever served with any process whatever to give the court jurisdiction in the case of Bronzan v. Gold Lead Gold & Silver Min. Co." The appellant was not a party to the original action against the mining company, and it was not necessary that any process issued therein be served on him. It was shown, however, that copies of the order, and of the affidavit on which it was based, requiring appellant to appear for examination before the referee, were duly served upon him, and that in obedience thereto he did appear and was examined. This was certainly sufficient to show that the court had jurisdiction of his person in the supplementary proceed. ings. There was also evidence to show that appellant was indebted to the corporation in the sum of $400.26; for, as we have seen, the report of the referee, and the confirmation thereof by the court, amounted to a final determination that such indebtedness existed, and, in effect, constituted a judgment, which cannot be assailed here collaterally. The finding, however, of the court below was that the referee "made and filed his report on said order of examination, and regularly ordered defendant to apply to the satisfaction of the aforesaid judgment against said corporation the sum of $458.50, which sum was found by said referee to be owing. from said defendant to said corporation, and that "said report was regularly confirmed in all respects by an order duly given and made by this court in said action." This finding as to the $58.50, which was claimed as costs, was evidently not justified by the evidence; for the reason that the plaintiff's application to be allowed that sum for costs incurred in the proceedings was denied by the court in its order of confirmation. It is objected for respondent that the specification is not sufficient to raise this point, but we think it is.

4. The point is made that the plaintiff's evidence was all irrelevant and immaterial, and that the court erred in admitting it. We see no error in the rulings complained of. It is further suggested that the findings do not cover all the issues raised by the pleadings, but we think them suffi

cient in that respect. It follows, in our opinion, that the judgment should be modified by striking therefrom the sum of $58.50, and as thus modified it should be affirmed.

We concur: FOOTE, C.; VANCLIEF, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment will be modified as therein indicated, and as so modified will stand affirmed.

(93 Cal. 664)

FAIVRE V. DALEY. (No. 14,400.) (Supreme Court of California. March 24, 1892.) CONVEYANCE OF HOMESTEAD - CONSTRUCTION OF DEED-CONSTRUCTION OF CONTRACT-EVIDENCE.

1. A quitclaim deed is a "grant," within the meaning of Civil Code, § 1243, providing that a homestead can be abandoned only by a declaration of abandonment or a "grant" thereof, executed by the husband and wife.

2. A grant, bargain, and sale deed of certain land contained the following clause: "This conveyance is intended to reconvey and release only such title as the parties of the first part obtained to such premises by virtue of a deed from the parties of the second part to the parties of the first part. Held, that such clause should not be construed to be repugnant to the grant, and therefore void, as the manifest intention of the parties would thereby be defeated.

3. A husband and wife conveyed by a quitclaim deed the land in which they had a home. stead estate to plaintiff, who conveyed his right

of title and interest in such land to defendant under an agreement that the latter should protect plaintiff's title, perfect it if necessary, and sell the land for plaintiff. Thereafter defendant procured a grant, bargain, and sale deed of the land to himself from plaintiff's grantors, and then sold the land. Held that, in an action to recover the proceeds of the sale in the hands of defendant, testimony by the grantees of defendant that they relied on the deed to defendant from plaintiff's grantors was immaterial.

4. In such case, plaintiff testified as follows: "He [defendant] agreed to give me one-half. I told him I would give him one-half what he got." And defendant testified that he agreed to give plaintiff one-half of whatever he recovered under the deed, that plaintiff was to give him the land, and that he was to divide the receipts with plaintiff. Held, that such evidence was sufficient to

support a finding that defendant was to pay all costs incurred in the recovery, sale, or disposal of the land.

In bank. Appeal from superior court, San Diego county; W. L. PIERCE, Judge.

Action by Faivre against Daley for money had and received. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

Hunsaker, Britt & Goodrich, for appellant. John M. Lucas, (Johnstone Jones and J. E. Deakin, of counsel,) for respond ent.

PATERSON, J. George D. Carleton, a married man, became the owner of the property referred to in the complaint on January 11, 1868, and on July 7, 1868, he filed a homestead thereon. On April 8, 1870, Carleton executed and delivered to A. E. Horton a deed of conveyance of the property; and thereafter Horton's interest, if he acquired any, passed through mesne conveyances to S. S. Clark. The trustees of Clark's estate executed and delivered a deed of the land-grant, bargain, |

On

and sale in form-to plaintiff, on June 22, 1885; the consideration named being $7. 087. On July 8, 1885, Carleton and wife executed and delivered to plaintiff and Pauly a quitclaim deed of the property. March 1, 1886, plaintiff and Pauly executed and delivered to the Clark trustees a grant, bargain, and sale deed of the land, but the deed contained the following clause: "This conveyance is intended to reconvey and release only such title as the parties of the first part obtained to said premises by virtue of a deed from the parties of the second part to the parties of the first part." On March 18, 1886, plaintiff and defendant entered into an agreement by the terms of which, it is alleged and found, defendant was to "sell and dispose of any part or all of the interest of the plaintiff in and to said lands and premises, and if necessary, at his own cost and expense, to bring suits in law or equity to recover any part or all of said interest which the said plaintif had in the said lands, * and to do and cause to be done whatever he, the said Thomas J. Daley, should deem just and proper for the purpose of selling or disposing of said interest of plaintiff as aforesaid;

#

*

the said defendant to pay all costs and expenses which might be incurred in or about the recovery, sale, or disposal of said lands," and was to receive one-half of all moneys obtained from the sale, the other half to be paid to plaintiff. Notwithstanding the conveyance to plaintiff and Pauly of July 8th, Carleton and wife executed and delivered a grant, bargain, and sale deed of the premises to the defendant on June 30, 1886. On October 5, 1886, the Clark trustees also executed and delivered a deed of the land to one Hensley. Hensley afterwards conveyed certain interests to Platt, Morrill, Bates, and Parrish. The defendant on February 7, 1887, quitclaimed the larger part of the land to Platt, who took the conveyance, however, for the benefit of himse' and the other persons last named. On April 2, 1887, defendant conveyed another portion of the land to McLaren. The remaining portion he sold to Wilde and Frink.

This action was commenced on April 30, 1888, to recover one-half of the sums of money received by defendant,-$5,450. Although the evidence is undisputed that defendant received from Platt the sum of $10,000 for the deed of February 7th, and $400 for the deed to McLaren of April 2d. the court found that the defendant had sold plaintiff's interest in that portion of the land purchased by Platt for the sum of $5,000, and his interest in that portion sold to McLaren for the sum of $400. It is a singular fact, too, that although the court found defendant was "at his own cost and expense to bring suits, and to pay all costs and expenses which might be incurred in or about the recovery, sale, or disposal of said lands," and that all money obtained from the sale was to be equally divided between plaintiff and defendant, $562.50 was allowed the defendant as costs incurred by him in making the sale and conveyance. Plaintiff was given judgment for only $2,418.75, (that being one-half of the balance remain

*

ing after deducting $562.50 from $5,400,) and interest at 7 per cent. from August 2, 1887. Defendant moved for a new trial, and the motion was denied. From this order and the judgment, he has appealed. The court made no finding as to the interest purchased by Wilde and Frink, but the evidence shows that the plaintiff had parted with his interest in the land sold to them before he made the deed to defendant.

It is claimed by appellant that plaintiff acquired no interest in the land through the quitclaim deed received from Carleton and wife, and, if he did, such interest was conveyed by him to the Clark trustees by the deed of March 1, 1886, and therefore the defendant took nothing by the plaintiff's deed of March 18, 1886. Conceding that the defendant, although his contract with plaintiff has not been rescinded, is not estopped from setting up these defenses, we think there is no merit in either contention. Section 1243, Civil Code, upon which appellant relies, provides that a homestead can be abandoned only by a declara. tion of abandonment or a grant thereof, executed and acknowledged by the husband and wife, but the word "grant" is here used in its generic, not its technical, sense, and as so used is a term applicable to all transfers of real estate. Section 1053, Civil Code, says that "a transfer in writing is called a 'grant,' or 'conveyance,' or 'bill of sale." Washburn says that "though the word 'grant' was originally made use of in treating of conveyances of interests in lands, to denote a transfer by deed of that which could not be passed by livery, and, of course, was applied only to incorporeal hereditaments, it has now become a generic term, applicable to the transfers of all classes of real property, and will be used in that broad sense in speaking of the formal transfer of titles to lands.

*

or

Wood, in his treatise on Conveyancing, says: "The word "grant," taken largely, is where anything is granted or passed from one to another; and in this sense it comprehends feoffments, bargains, and sales, gifts, leases in writing or by deed, and sometimes by word without writing.'" 3 Washb. Real Prop. (5th Ed.) pp. 193, 375. A statute of New Jersey provided that it should be lawful for any married female to receive, "by gift, grant, devise, or bequest, and hold to her sole and separate use, as if she were a single female, real and personal property;" and the court held that the legislature did not intend to use the terms "gift" "grant" in their technical sense, but to embrace within the meaning of the terms used all the modes of acquiring_property, except perhaps by descent. The court said: "The Vermont statute provides that any rights in real estate which a feme covert may acquire by gift, grant, devise, or inheritance, during coverture, shall not be liable for the debts of the husband. These words, 'gift' or 'grant,' came up for construction in the case of Peck v. Walton, 26 Vt. 85, wherein REDFIELD, C. J., in delivering the opinion of the court, says: 'It is very apparent that the stat ute was intended to embrace all rights in .29p.no.5-17

real estate which the wife shall acquire during coverture. It would be a very nice, and, as it appears to me, a very unintelligible, construction of this statute, to limit the word "grant" to its narrowest technical import. It evidently was intended to apply to all conveyances by deed which were not gifts.' In our statute, by the term 'grant,' the legislature intended all the ordinary modes of acquiring property by deed, whether operating by force of the statute of uses or not, that by long usage such had become not only the popular but also the technical meaning of the term." Ross v. Adams, 28 N. J. Law, 165. In Durant v. Ritchie, 4 Mason, 69, the court said: "The word 'grant' is nomen generalissimum. It includes all sorts of conveyances. In Wisconsin the statute provides that a married woman "may receive by inheritance, or by gift, grant, devise, or bequest, from any person other than her husband, and hold to her sole and separate use, real and personal property." It was claimed in McVey v. Railroad Co., that the statute did not permit a wife to acquire real estate by deed of bargain and sale, and hold the same as her separate property. Mr. Justice LYON, speaking for the court, said: "But the word 'grant' has also a larger meaning in the law. It is said in Shepard's Touchstone that this word is taken largely where anything is granted or passes from one to another. And in this sense it doth comprehend feoffments, bargains and sales, gifts, leases, charges, and the like; for he that doth give or sell doth grant also.' * Hence, in any view we can take of the question, we are impelled to the conclusion that the word grant,' as used in the statute, includes deeds of bargain and sale." 42 Wis. 536. It is admitted that Carleton was the owner of the property at the time the declaration of homestead was filed; and, as a quitclaim deed in this state passes all the title which the grantor has, (Lawrence v. Ballou, 37 Cal. 518,) we think the deed from Carleton and wife to plaintiff was a grant, within the meaning of section 1243, Civil Code, which operated as an abandonment of their homestead right, and that it conveyed to plaintiff all the interest they had in the property.

#

The other point made by appellant is equally untenable There is no doubt that, where the language in the habendum is irreconcilable with that used in the premises, the premises will prevail; but, like the words in a contract, all the words employed in the deed should be given some effect, if possible, and if consistent with the evident purpose and operation of the deed. Havens v. Dale, 18 Cal. 366. There can be no possible question as to what the parties to the deed of March 1st intended. The word 'grant,' as used in deeds, has a well known signification; but the parties may limit or qualify its meaning, and if they choose to do so the court should not hesitate to carry out their expressed intention. Morrison v. Wilson, 30 Cal. 344; Castro v. Tennent, 44 Cal. 253. The language used in the deed is so plain and unambiguous that the intention of the parties appears upon the face of the