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one not in custody, but steps are directed to be taken in such case
to secure his person. Pen. Code, §§ 945, 979-984. And unless an
arrest is effected the cause can proceed no further. The defendant
is arraigned in person and pleads in person (§ 977, Pen. Code),
unless in case of misdemeanor. Id. Every plea must be oral. Pen.
Code, § 1017.

By § 1253 of the Penal Code it is provided, as to criminal causes,
that *' the judgment maybe affirmed if the appellant fail to appear,
but can be reversed only after argument, though the respondent
fail to appear; " and by § 1255, that " the defendant need not per-
sonally appear in the appellate court."

It may be urged that inasmuch as the defendant need not per-
sonally appear in the appellate court (§ 1255, Pen. Code, ut supra)y
he has a right to appear by counsel, whether he is in custody or
not. For the reasons here given, sustained by the cases cited, we
think the defendant has no longer a right to appear by counsel
when he has escaped from custody, until he has returned into cus-
tody. By breaking jail and escaping he had waived the right
to have counsel appear for him. Com, v. AndreicSy 97 Mass. 543, ut
supra. In fact his right to constitute counsel and invest him with
authority no longer exists while his absence from custody continues.

Digitized by



Davis y. Rock Creek L. F. & M. Go.

We think it best Id view of all the circumstances to direct that
the motion to dismiss at once be denied, and although it is unlikely
that he will ever surrender himself into custody, it is oixlered that
the appeal herein stand dismissed, unless the defendant shall, before
the first Monday of May, 1881, return to the custody of the proper
officers of the law. See the orders in Sherman^s case, 14 Gratt 677;
LeftwicVs case, 20 id. 716; and Smith's case, 94 U. S. 97.

Appeal dismissed.

Mtrick and Sharpstbin, JJ., concurred.

Davis v. Rock Creek L. F. ft M. Oa


Corporation — trustee — eonslruetive fraud,

A corporation resolved to borrow money upon mortgage to pay its debts.
The president had purchased the debts and had them assigned to a firm of
which he was a member. He executed the mortgage, as president, to the
firm, to secure the debts. Held^ invalid, because there was no borrowing;
and because of the fiduciary relation between the president and the corpo*

i CTION to foreclose a mortgage. The opinion states the case.

Gray £ Oale and J. 5. Belchevy for appellant

J. M. Burt and Harrison <6 Harris, and F. C. Lush^ for respond-

RosB, J. The complaint alleges that on the 14th day of June,
1877, the defendant corporation, for a valuable consideration, exe-
cuted to A. Wolf & Co three several promissory notes, each for the
sum of $4,328.33, making in the aggregate the sum of $12,985, and
to secure the payment of the notes executed on the same day to
Wolf & Co. a mortgage upon the property of the corporation. The
notes and mortgage were afterward assigned to the plaintiff, and
not having been paid, this action was instituted to foreclose the
mortgage. McGrath, who held a subsequent mortgage from the
corporation, was made a party defendant. He answered, denying
that the defendant corporation ever executed the notes and mort-
gage mentioned in the complaint,and setting up his own mortgage.
The default of the defendant corporation was entered, which was

Digitized by


APRIL TERM, 1880. 41

Davis T. Rock Creek L. F. & M. Co.

afterward, on motioiiy based upon affidavits, set aside by the courts
and an answer permitted to be filed by the corporation. By its
answer the latter also denied that it ever executed, or caused, or
authorized to be executed, the notes and mortgage set out in the
complaint as the basis of the plaintiff's action.

We think there was no abuse of discretion on the part of the
court in setting aside the default and permitting the answer to bo

Tlie record shows that there were five trustees of the corporation,
and that these trustees held all of its capital stock. The A. Wolf,
of the firm of A. Wolf & Co., to whom the notes and mortgage
were given, was one of the trustees and the president of the corpo-
ration ; and he, as president, together with one Fairbanks, as secre-
tary, executed them on behalf of the corporation. As the basis
of their authority so to do, the plaintiff offered and read in evi-
dence, at the trial, a resolution of the board of trustees, in words
and figures as follows:

** At a meeting of the trustees of the Rock Creek Lumber, Flume
and Mining Company, held the 15th day of June, 1877, the follow-
ing resolution was offered and unanimously adopted — the follow-
ing trustees being present: A. Wolf, E, McGrath,H. A. Fairbanks,
C. Wright, J. F. Dana:

** It is unanimously resolved by the trustees of the Rock Creek
Lumber, Flume and Mining Company, a corporation, to borrow
$12,985, and to secure the payment of said sum of money, to exe-
cute a mortgage upon the property of said corporation, said sura
of money to be applied to the payment of the debts of said corpo-
ration, and to this end A. Wolf, president, and H. A. Fairbanks,
secretary, of said Rock Creek Lumber, Flume and Mining Com-
pany, are hereby directed and authorized to make, execute and de-
liver, and on behalf of said corporation, and as its act and deed, a
mortgage upon said corporation proj^erty, and to affix to said mort-
gage and the notes which it secures, the corporate name of said

(Signed) H. A. Fairbanks, Secretary.

A. Wolf,
H. A. Fairbanks,
E. McGrath,
C. Wright,
J. F. Dana,
Vol. XXX >ri-6 Tnistees.''

Digitized by



Davis V Bock Creek L. F, & M. Ca

It will be observed that the complaint alleges that the notes and
mortgage were executed on tlxe 14th day of June, 1877, whereas
the resolution does not appear to have been adopted until the day
following, June loth. If, therefoi*e, the plaintiff be held bound by
the allegations of his complaint in this particular, there would ap
pear no autiiority whatever for the execution of the notes an<l
mortgage. It was said, however, at the argument, that thej were
not in fact executed until after the adoption of the resolution, and
Fsirbanks, the secretary, and a witness for the plaintiff, testified
tiiat they " were executed in pursuance of tlie resolution or oi*der
of the trustees." We shall so ti^eat them for tlie purpose of this

Fairbanks, who was the only witness introduced on the trial, also
testified that ** A. Wolf did not borrow any money for the corpora-
tion that 1 know of, but purchased and assumed said debts in the
name of A. Wolf & Co., and for the payment of which said notes
and mortgage were executed." The resolution did not authorize or
contemplate the execution of the notes and mortgage for any sucli
purpose. It authorized and contemi)lated the borrowing of $12,-
085, and to that end authorized and directed the president and
secretary to execute for and in the name of the corporation, the
necessary notes, together with a mortgage upon the corporate pro}>-
erty. To borrow the money and to execute the notes and mort-
gage of tlic corponition to secure its payment was the sole iK)wer
conferred on the president and secretary by the resolution. This
they did not do, nor attempt to do, so far as the recoi*d shows. In-
stead, the president ** purchased and assumed said debts in the
name of A. Wolf & Co," of which firm he was at the time a mem-
ber, and then [)roceeded, in connection with the secretary, to exe-
cute the notes and mortgage in suit. This was clearly unauthor-
ized by tlie resolution a:loptcd by the board of trustees. Koehlcr
V. Black River Falls Iron Cojnpany, 2 Black, 719. But apart from
this consideration, the transaction in question cannot be upheld.
The law, for wise reasons, will not permit one who acts in a fidu-
ciary capacity thus to deal with himself in his individual capacity.
The position of A. Wolf as a member of the firm of A. Wolf & Co.,
and his position as trustee and president of the corporation de-
fendant, were inconsistent and conflicting. In purchasing the
debts of the coi-poration in his individual capacity, it was to his
interest to buy them at as great a discount as jiossible. The

Digitized by


APRIL TERM, 1880. ^

Hayea v. Campbell.

greater the discount the greater liis gam. If he succeeded m pur-
chiising the debts at a7iy discount, to that extent he secured to
himself an advantage not common to all of the stockholders. To
permit this to be done would be to permit the violation of one of
the plainest principles of equity upphcable to trustees. In this
particular case it does not appear that Wolf secured the demands
against the corporation at any discount, neither does it appear that
he dia not. Nor does the policy of the law permit any inquiry
into that question. Occupying as he did the position of trustee,
he should not have put himself in a position advei*se to his ceshns
qite trust. One cannot faithfully serve two masters whose interests
are diverse. Andreivs v. Pratt y 44 Cal. 309 ; San Diego v. S. D. and
L. A. li. Ji. Cb., id. 106; Wilbur v. Ly7ide, 49 id. 290; s. c, 19
Am. Rep. 645; Pickett v. School District No, 1, 25 Wis. 652; s. c,
3 Am Rep. 105; Crcmberland Coal Co. v. Sherman, 30 Barb. 553;
Aberdeen Railway Co. v. Blakie, 1 MacQucen,46l ; Field on Corp.,
§§ 174. 175, and authorities there cited.

Respecting the i>oint made to the effect that the transaction wiis
ratified by the corporation, it is sufficient to say that even if it ad-
mitted of ratification, there was no evidence of such ratification.
Ctunberland Coal Co. v. Sherman, 30 Barb. 575, and authorities
there cited. It results from these views that the court below was
right in sustaining the defendant's objections to the notes and

Judgment ami order affirmed.
McKiNSTRT and McEee, JJ., concurred.

Hayes v. Campbell.

(55 Cal 4S1.)

Agency — maritivie lien — charter-partp.

Hie plaintiff sent wheat to M., to be shipped to Europe and sold on his aoconnt.
M. shipped a part of it in his own name, on a vessel of which defendant waa
master, the defendant having no knowledge or notice of the plaintiflTs own-
erehip. When the cargo was half loaded, M. became insolvent, and refused
lo complete the loading. Held, that defendant had a lien on the wheat ou
b->anl for freight and charges.

Digitized by



Hayes v. Campbell.

MiUon Andros aiid Charles Paye^ for appellant.

/. 6'. Ball, ./. H. Mc/itiue ami W. F. George, for respondent

McKee, J. The case presented for eonsidei*ation is this: In
1S74, E. E. Morgan's Sons were general shipping and commission
merchants, doing business in the city and county of San Francisco,
and engaged in buying and selling wheat, and in chartering vessels
for the transportation of wheat from ports of California to ports of
Europe, to be there sold by them for account of the owners. In that
business they had chartered the ship Charles Mnrdock, of which
the defendant in this action was master and part owner. The ship
had proceeded to Vallejo to take on board a cargo of wheat for the
charterers, according to the terms of the charter-party. Plaintiff,
being the owner of the wheat in con trovei*sy , foi-warded it to Mor-
gan's Sons at Vallejo, to be shipj^d to Europe, to be there sold by
them for his account. Upon receiving the wheat, Morgan's Sons
l)hiced it on board the Charles Murdoch in their own names, and
the defendant received it on board, in the regular course of busi-
ness, as the wheat of Morgan's Sons. When he received it he did
not know that it belonged to the plaintiff, or to any other person
or persons than Morgan's Sons; but he knew that they were ship-
ping grain as the agents of the Grangers or farmers of the State.
After the wheat had been placed on board, and the ship had re-
ceived about half her cargo, Morgan's Sons became insolvent, broke
the terms of their charter-party, and failed to proceed with the
loading of the ship. UiM)n ascertaining that fact, the plaintiflf de-
manded of the defendant the possession of his wheat, but made no
tender to him then^ or at any other time, of the freight or charges.
Tlie defendant refused to deliver the wheat, but was ready and willing
to carry it under his charter-party, and the plaintiff brought this
action of claim and delivery, in which the wheat was taken from
the ship and delivered to the plaintiff. In shipping and relanding
the wheat, the defendant incurred no exi^ense. The stevedores who
loaded and relanded it were paid by the charterers or by the

Upon the case the court below found, as a conclusion of law, that
the defendant had never acquired any lien upon the wheat, and
gave judgment for the plaintiff.

We are of opinion that the judgment is not supported by the find-

Digitized by


APHIL TERM, 1880. 45

Hayes v. Campbell.

ings; for it is apparent tliat the defendant, in i*eeeiving the wheat,
dealt with Morgan's Sons either as owners of the wheat {Oreefi v.
Campbelly 52 Cai. 580), or as agents, having power and authority
to ship it and deal with it as their own (Civ. Code, g 2369); and
considered as owners or agents, with power to ship it in their own
names, and sell and receive the money for it from the purchaser,
the legal conclusion would be the same; for having power to do
every thing necessaiy or proper and usual, in the ordinary course of
the business of shipping and selling the wheat (§ 2319, Civ. Code),
the plaintiff would be bound by their acts within the scope of their
authority. Of course, as factors or agents they had no power to
make any irregular tmnsfer of the proj^erty consigned to them, or
to deal with it in any way outside the usual course of business.
An agent with power to ship and sell and receive the money from
the purchaser, has no power to affect the property consigned to him
for those purposes by tortiously selling it, or mortgaging or pledg-
ing it as a satisfaction or security for his own debt The utmost
that he could do, in that respect, would be to mortgage or pledge
it to the extent of any lien which he might have upon it Wright
V. Solomon, 19 Cal. 76; Warner v. Martin^ 11 How. 209; subd. 2, §
2368, Civ. Code.

But the shipment of the wheat by Morgan's Sons was not a pledge.
They had no authority to pledge it. Subd. 2, § 2368, supra. But
they had authority to ship in their own names, and sell at the port
of delivery; and that included the power to deal with the wheat as
their own in any contracts within the scope of their authority with
the defendants, who had no knowledge that the plaintiff was the
actual owner of it; and the actual owner was chargeable with knowl-
edge that he had placed his property in the hands of his agents for
the veiy purpose of enabling them to make such contracts as might
be necessary and proper for transmitting it to Europe for sale on
his account He knew, that in execution of the agency they had
to make contracts to which the law would attach a lien upon the
property. When, therefore, the factora shipped the wheat in their
own names, they were the only persons to whom the defendant
could look, and with whom he dealt in i-eceiving it. In the absence
of knowledge that it belonged to the plaintiff, they, as shippers,
were to him, in contemplation of law, the owners. From them and
for them he received it as a common carrier for carriage, and the
l^al rights and duties of both parties became fixed by law the

Digitized by



Hajrea v. Campbell.

moment the wheat was placed on board of the ship. Having re-
ceived it for the purpose of carriage, the defendant became bound
to the shippei-s for the safe transportation and delivery of tho
wheat at the pore of destination, and he was entitled to a lieu on
it for payment of his freight and charges on the completion of the
voyage. Bulkley v. Natimkeag Steam Cotto7i Co., 24 How. 391.

This lien was created by law (or the benefit of the carrier the
moment that he received the goods for the purpose of carriage.
** Such a lien," says Mr. Justice Clifford, " is regarded in the juris-
prudence of the United States as a maritime lien, because it arises
from the usage of commerce, independently of the agreement of
tho parties, and not from any statutory regulations. The legal
effect of such alien is, that the ship's owner, as carrier by water,
may retain the goods until the freight is paid, or he may enforce
tho same by a proceeding in rem in the proper court." The Bird
of Paradise, 5 Wall. 555.

The fact that the ship-owners had chartered the ship to Morgans'
Sons for the voyage did not operate to deprive them of the beneGt
of the lien upon tho cargo. !Nor do the terms of the charter-party,
or the circumstances of the shipment, show that the lien had been
waived or extinguished . According to the charter-party, the owners
had let only tho carrying capacity of the ship, and not the ship
itself. They retained tho possession, command, and navigation of
the ship, and the contract made between them and the shippers
and charterers to carry the wheat on freight for tho voyage for which
the ship was chartered, is considered in law as a contract of affreight-
ment. Marcardier v. CJiesapeake Ins. Co., 8 Cr. 39.

" In short, it appears to me," says Mr. Justice Story, "that if
tho absolute owner does i*etain the possession, command, and con-
trol of the navigation of the ship during the voyage, and the master
IS deemed his agent, acting under his instructions for the voyage,
though authorized and required to fulfill the terms of the charter-
party, the absolute owner must, under such circumstances, be still
deemed owner for tho voyage, and be liable as such to all persona
who do not contract personally and exclusively with the charterer
by a sub-contract with the latter, knowing his rights and character
under the charter-party." Certain Logs, 2 Sum. 696. Such is the
settled doctrine of American law upon the subject MclntyrB
V. Botone, 1 Johns. 229; Oracie v. Pahner, 8 Wheat 632; 3
Kent, 137-8. Under the circumstances stated, the fi-eighter

Digitized by


JULY TERM, 1880. 47

Ex parte Westerfield.

18 not clothed with the character or legal responsibility of own-
ership; nor was the ownership, in the case in hand, divested
by the contract of affreightment made between the charterers and
the defendant, consequently the wheat in the possession of the
defendant A7as subject to the lien for the freight and proper charges
which were due upon it.

This right of lien was inseparably associated with the possession
of the wheat. So that when the defendant rightfully obtained
possession of it for the purpose of carriage, from those who had
the authority to deal with it, he was entitled to retain possession
until his duty in relation to it had been discharged, or if from
any cause the carriage was dispensed with, until his lien upon it
had been extinguished by payment of the freight and charges or
its equivalent.

And although the insolvency of Morgans' Sons, before the ship
was laden and had "broken ground," but after the wheat had been
placed on board, may have ended the transaction between them and
the plaintiff as to the shipment and sale of the wheat, and dispensed
with its carriage, yet the plaintiff was not entitled to the possession
until be extinguished, or offered to extinguish, the lien which had
attached to it. The defendant was not bound to reland it and
deliver it to the plaintiff at the port of outfit, without tender or
payment of the freight, or such other charges as were liens upon it-
Story on Bailm., §585; Campbells. Connor, 70 N. Y. 424; Hut-
chinson on Carriers, § 476, note; Abbott on Shipping, 595.

Judgment reversed, and cause remanded to the Superior Court
of Sacramento county for a new trial.

Judgmeni reverted^

Boss and McEinstry, J J., concurred.

Ex Parte Westerfibld.


OonttUvtioruU law — ipecial restraint tf irade*

ASondaj law making It a misdemeanor " for anj person engaged In the btul.
ens of baking to engage, or permit others In his employ to engage, in ths
bcsinem of baking for the purpose of sale, between the hoars of 6 o'eloek
I-. >L un Saturday and 6 o'clock P. !£• on Sunday/' etc, is a special law, and
^s AQcii, uuconstitutionaL

Digitized by



Ex parte Westerfield.

TJABEAS CORPUS. The opinion states the case.

F. H. Casselhun and H. E. Highton^ for petitioner.
Graves £ Collins, contra.

M YRiCK, J. The petitioner is in the custody of the chief of
police of the city and county of San Francisco, under a warrant
charging a misdemeanor under an act entitled ''An act to regulate
and provide for a day of rest in certain cases," approved April 16,
1880. Stat. 1880, p. 80.

The act provides that "it shall be unlawful for any person en-
gaged in the business of baking to engage, or permit others in his
employ to engage, in the labor of baking, for the purpose of sale,
between the hours of 6 o'clock p. m. on Saturday and 6 o'clock p. M.
on Sunday, except in the setting of sponge preparatory to the
night's work; provided, however, that restaurants, hotels, and
boarding-houses may do such baking as is necessary for their own
consumption; " and a violation of the act is made a misdemeanor,
punishable by fine or imprisonment, or both.

This act is in conflict with § 25, art. 4, of the Constitution, and
is therefore void.

'* Section" 25. Tlio legislature shall not pass local or special laws
in any of the following enumerated cases, that is to say: * * *
Second. For the punishment of crimes and misdemeanors.*'

The act purports, according to its title, to be an act to provide
fur 11 day of rest. Instead of pursuing that intent, it goes on to
say that certain acts, viz., the labor of baking for the purpose of
sale, if performed by certain persons, viz., persons " engaged in the
business of baking for the purpose of sale," shall constitute a crime
and shall be punished. The employees are not to be punished.
This is special legislation. A certain class is selected. As well
might it have said, if master carpenters or blacksmiths, or if attor-
neys having clerks, shall labor or permit employees to labor, they
shall be deemed guilty of a misdemeanor and be punished; carpen-
ters or blacksmiths, not master v/orkmen, or attorneys without
clerks, may labor at their will. The baking of bread is in itself
lawful and necessary. Even if there be authority to restrain the
labor on some one day, it must be, if at all^ under a general law re-
straining labor on that day.

Let the petitioner be discharged,

Thornton, J., concurred.

Digitized by


JULY TERM, 1880. 49

Ex parte Westerfield.

MoKiNSTRY, J., concurring. I concur. I entertain no doubt
that the validitj of the statute under which the defendant was ar-
rested may be determined upon habeas corpus*

'' Sunday laws'' have been held not to be violative of a provision
of a Constitution, that *' the free exercise and enjoyment of reli-
gious profession and worship, without discrimination or preference,
shall forever be allowed in this State." Ex parte AndrewSy 18 Cal.
678. Such laws have been sustained as imply requiring a periodical
cessation from labor — the power to pass them resting upon the
right of the legislature to pass laws for the preservation of health
and the promotion of good morals. I do not deem it necessary, in
this place, to assent to the proposition that a law which enforces,
nnder penalty of fine and imprisonment, a cessation from labor on
Sunday by one whose religious belief has imposed upon him the duty
of taking his rest on Saturday, in no degree discriminates against
his "religious profession." But admitting the constitutionality of
general laws prohibiting all labor upon Sunday, or upon any other
day, I think the act of April 16, 1880, is a '* special law," within
the meaning of those terms as employed in § 25, art. 4 of the pres-
ent Constitution. The act does not declare the business of " bak-
ing," as ordinarily conducted, to be a nuisance, nor does it contain
any intimation that the business of baking may tend to interrupt
divine worship by any class of sectaries, or can otherwise interfere
with the rights or privileges of any citizen. The baking of bread
is not only lawful and necessary, but we will take notice that there
is nothing so peculiar in the occupation as that those engaged in it

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