(Citing Bid

the subject as to which the statute had run?" del v. Brizzolara, 64 Cal. 354, [30 Pac. 609].) In that case the supreme court said: "It is very certain that an actual promise can be made only to the creditor, and it follows that the acknowledgment from which the promise is to be inferred must be made to the creditor. An admission to a stranger of the existence of the debt cannot be construed an acknowledgment to the creditor such as indicates an intention on the part of the person making the admission to hold himself bound to pay, nor is it expressive of his willingness to pay. 'An unqualified acknowledgment to a stranger will not take the case out of the statute or constitute a good cause of action.' (Trousdale's Admr. v. Anderson, 9 Bush, 276; Kyle v. Wells, 17 Pa. 286, [55 Am. Dec. 555]; Taylor v. Hendrie, 8 Nev. 243.)" See, also, Rounthwaite v. Roun thwaite (Cal.), 68 Pac. 304, where the supreme court said: "Section 360 (Code Civ. Proc.) refers to the acknowledgment or promise of the party charged by the original contract, to the person in whose favor the contract was made." The Nevada case was decided under a statute the same as ours.

In Kyle v. Wells, 17 Pa. 286, [55 Am. Dec. 555], cited in Biddel v. Brizzolara, 64 Cal. 354, [30 Pac. 609], the court said: "There is a maxim in the Roman law, Per extraneam personam nihil nobis acquiri potest-through a stranger we can acquire no rights; and though this maxim is not in form found in our law, yet its principle is at the foundation of all our rules as to the privity of contract and estate, and as to matters inter alios acta. If, then the defendant had expressly told the witness that he would call and pay this would have been but the expression of a determination revocable at pleasure and would have created no legal duty. It is a perversion of the word 'promise' to apply it to a declaration made to one who has no interest in or connection with the subject spoken of; and we cheat the law and morality too, of their rights, when we distort the meaning of words to reach a desired conclusion: 1 Bouvier's Institutes, 339." (See, also, Fort Scott v. Hickman, 112 U. S. 161, [5 Sup. Ct. 56]; Sheppard v. Thompson, 122 U. S. 238, [7 Sup. Ct. 1229]; Sibert v. Wilder, 16 Kan. 176, [22 Am. Rep. 280]; Kenan v. Holloway, 16 Ala. 53, [50 Am. Dec. 162].) In Wakeman v. Sherman, 9 N. Y. 85, it was held that "the promise must be made to the creditor or some one acting for him, or if

made to a third person, must be calculated and intended to influence the action of the creditor." (Citing Bloodgood v. Bruen, 8 N. Y. 362.) In Ringo v. Brooks, 26 Ark. 540, it was held that the promise must be to the creditor. So, also, in Niblack v. Goodman, 67 Ind. 174; Wachter v. Alba, 80 Ill. 47; Cape Girardeau Co. v. Harbison, 58 Mo. 90.

In Farrell v. Palmer, 36 Cal. 187, it was held that an acknowledgment of a debt to the administrator of the estate of the creditor, deceased, is sufficient, since the administrator stood as the legal representative of the creditor. But in Visher v. Wilbur, 5 Cal. App. 562, [90 Pac. 1065, 91 Pac. 412], such an acknowledgment was insufficient where the acknowledgment was to an heir of the deceased, who afterward became administrator. At the time of the acknowledgment he sustained no relation to the estate.

Appellant makes a distinction between an acknowledgment or promise given before the statute has run and one given after it has run, which latter was the case in Biddel v. Brizzolara, 64 Cal. 354, [30 Pac. 609], and Visher v. Wilbur, 5 Cal. App. 562, [90 Pac. 1065, 91 Pac. 412]. The argument is that as the basis of the action in the latter case is the new contract, there must be a meeting of the minds of the parties. whereas in the former, the basis of the action being the original contract, no subsequent meeting of minds is necessary. "In such case, the purpose of the statute," it is urged, "is to require the solemnity of a written acknowledgment which admits the indebtedness as an existing liability, if the presumption of payment arising from lapse of the statutory period is to be considered by the court as rebutted; but that solemnity and definiteness of evidence is equally obtained whether the acknowledgment is made to the creditor himself or to a third party, and therefore the purpose of the statute is accomplished in the latter case." We fail to recognize any just ground for this distinction so far as concerns the fact of making the promise-either as to the character or nature of the promise or the person to whom made. As said by Mr. Wood: "The distinction between the acknowledgment of a debt before and one after the statute has run consists merely in its effect upon the debt and the remedy." (Wood on Limitations of Actions, sec. 81. See, upon the point, Southern Pacific Co. v. Prosser, 122 Cal. 413-416, [52 Pac. 836, 55 Pac. 145].) If this be true, there is as much

reason in requiring the acknowledgment to be made to the creditor or some one in privity with him or representing him, in the one case as in the other. It is not alone the solemnity of the acknowledgment that suspends the operation of the statute, but it is that fact coupled with the further fact that it is made under such circumstances as would have the effect either to keep alive the original contract or create a new contract; and it seems to us that the fact should be communicated to the creditor for equally strong reasons in both of the cases suggested by appellant. Indeed, there is additional reason why the acknowledgment, when made before the statute has run, should be made to the creditor or some one representing him. Presumably the creditor knows when the statute will bar his action. If the debt is acknowledged to him, he may safely assume that the statute begins then to run, that a new period of limitation is agreed upon and the debtor is estopped to deny it. But if not made to him or his representative, and he allows the statute to run, the creditor should be held to the consequences of his neglect to bring his action in time. Conceding that this result follows properly where the debtor acknowledges the indebtedness to a stranger after the statute has run, we feel quite satisfied that like consequences should follow where a similar acknowledgment is made before the statute has run.

It is further claimed that, conceding the rule to be as contended by respondent, the acknowledgment to the county assessor for the purpose of relieving the defendant of a portion of his taxes, "is sufficiently connected with the mortgagee to allow him to rely upon it as a waiver of the statute." We do not agree with appellant in this contention. We incline to appellant's view that the statement made to the assessor was voluntary, for, as we read the statute pleaded (Pol. Code, sec. 3629), it would seem to be the duty of the mortgagee to return the mortgage indebtedness as part of his property, and that it cannot be regarded as the property of the mortgagor or that there is any duty put upon him to return it. His object in doing so is to secure a reduction pro tanto of his taxable property and to avoid the possibility of its being overlooked by the assessor and the burden cast upon the land instead of the mortgagee. The mortgage is the property of the mortgagee, whose duty it is to return it 11 Cal. App.-34

for taxation. But however this may be, the return made by the mortgagor was to the assessor for his information alone, and had no necessary connection with the mortgagee, and there is no presumption that the mortgagee knew of it or acted upon it, and there is no allegation that it had any knowledge of it until the complaint was prepared, which was three years after this statement was made, or that it was with intention that it be communicated to the mortgagee. It seems to us that the assesssor stood in no different relation to the mortgagee in the matter than any stranger to whom such a statement or acknowledgment has been made.

The judgment is affirmed.

Burnett, J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 16, 1909.

[Crim. No. 110. Third Appellate District.-October 22, 1909.] In the Matter of the Application of AUSTIN LEWIS for a Writ of Habeas Corpus for one JOHN R. ROBINSON.

HABEAS CORPUS-LEGALITY OF COMMITMENT OF INSANE PERSON TO STATE HOSPITAL-COLLATERAL ATTACK-PRESUMPTION OF REGULARITY. Upon an application for a writ of habeas corpus to test the legality of the commitment of a person adjudged insane to the state hospital, the attack upon the commitment is collateral, and where the commitment shows upon its face that all of the statutory requirements essential to a legal arrest, hearing and commitment were observed, and it cannot be said from the commitment that the alleged insane person was not given a reasonable opportunity to produce witnesses on his behalf, it must be presumed upon such collateral attack that the proceedings were regular in all respects, and the insane person cannot be discharged from custody for any presumed illegality in the proceedings. ID.-DETERMINATION OF "REASONABLE OPPORTUNITY" COMMITTED TO SOUND DISCRETION OF COURT.-The determination of what is a "reasonable opportunity" to produce witnesses is committed by the statute to the sound discretion of the court, to be exercised in view

of the surrounding circumstances of each particular case, and where it does not appear on the face of the proceedings that such discretion has been abused, the judgment of the court cannot be disturbed for the alleged reason that the person adjudged insane has not been given such "reasonable opportunity" to produce his witnesses and cause them to be examined.

APPLICATION for writ of habeas corpus to secure a release from the State Hospital for the Insane at Napa.

The facts are stated in the opinion of the court.

Austin Lewis, for Petitioner.

R. L. Beardsly, G. M. Reynes, and Frank M. Silva, for Respondent.

HART, J.-On the twenty-sixth day of February, 1909, John R. Robinson was adjudged insane by the judge of the superior court in and for the county of Solano and ordered committed to the State Hospital for the Insane at Napa. Said Robinson has ever since been and is now detained in said hospital under said commitment, and it is now claimed by the petitioner, on behalf of said Robinson, that said insane patient is illegally restrained of his liberty for the alleged reason that the court by which he was committed never acquired jurisdiction to hear and determine the charge of insanity preferred against him. The only point urged by the petitioner in support of his claim is that Robinson was not, prior to the trial resulting in his commitment to the hospital, accorded by the court the opportunity to prepare himself to meet and resist the charge to which he was entitled under the law.

The commitment upon which the authorities of the state hospital detain Robinson shows that a verified complaint in due form was, on the 25th of February, 1909, filed in the justice's court of Suisun township, Solano county, charging Robinson with being insane, and that a warrant was thereupon issued and, on said twenty-fifth day of February, placed in the hands of the sheriff of the county for execution; that on the same day the sheriff arrested Robinson and immediately took him before the judge of the superior court. On the following day-February 26th-Robinson