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"Prescription" is not a term strictly applicable to a right acquired by the public by the use of a way for any period of time. The law allows prescriptions only to supply the place of grants, and inasmuch as the public cannot take by grant, the term prescription, in its strict sense, has no application to highways. The true doctrine would seem to be that immemorial use by the public is evidence of a dedication, just as such use by an individual is evidence of a grant to him: Angell on Highway, sec. 131. But where there is a statute that roads shall be deemed public highways which have been used as such for a named period, the right of the public to continue to use them as public roads is fixed and established. Whether such statutes may be considered as creating or recognizing a rule of evidence, and to declare that the public use for the named time shall be conclusive evidence of dedication, or rest on some other principle their validity has not been doubted.

The court below found that for more than twenty-five years prior to commencement of this action, the road mentioned in the answer was used and traveled by the public as a public road. Also that for more than six years the road had been used and traveled as a public road, and there was evidence to sustain the finding. Section 2,619 of the political code provides: "All roads used as such for a period of more than five years are highways." This is more than a declaratory law to the effect that the fact of use of a road as a public road for more than five years shall be evidence, prima facie or conclusive, of dedication by the owners of the lands through which it runs. It is in the nature of a statute of limitations, which gives to the public the right to use the road as a highway, in case it has been so used. We know of no constitutional inhibition of such legislation. In New York there is a statutory provision to the effect that all roads not recorded which have been or shall have been used as public highways for twenty years or more, shall be deemed public highways: 1 R. S., 521, 100; 3d Ed., 696, 120. Our attention has not been called to any decision in that state which questions the power of the legislature to adopt such enactment. Similar provisions of statutes have passed unchallenged in other states. The fact, as found, that in the fall of 1877 the plaintiff placed gates at the points where the road entered upon and emerged from this land, which did not prevent the passage across it, does not overcome the effect of the finding that the road was used as a public road. Nor does the fact that plaintiff "a short time" before he commenced this action notified the defendant that it was not a public road. Judgment and order affirmed

The order was not made by the court on its own motion. It does not purport to be such an order, but was made on the application of the defendant.

Order reversed.

No. 7,743.

SAN JOAQUIN VALLEY BANK v. BOURS.

Department One. Filed May 20, 1884.

CASHIER'S LIABILITY FOR MISAPPROPRIATION OF FUNDS.-A cashier of a bank, empowered to transact its business, subject to the direction of the board of trustees, who loans large sums of moneys to a single individual without taking any security therefor, and without entering the same upon the books of the bank; and who, in order to conceal such loan from the knowledge of the bank officials, falsely reports to them the amount of cash on hand, is liable for the amount of such loan lost to the bank, although the trustees neglected their duty in not regularly examining the cash as required by the by-laws.

ACQUIESENCE BY THE TRUSTEES OF A BANK FOR A PERIOD OF SEVEN YEARS in the charges regularly made by their cashier, on account of his salary, is equivalent to an agreement that such amount constituted his salary.

APPEAL from a judgment of the superior court for San Joaquin county, entered in favor of the plaintiff, and from an order denying the defendant a new trial. The opinion states the facts.

Terry, McKinne & Terry, for the appellant.

Dudley & Hall, for the respondent.

Ross, J. The plaintiff is a banking corporation and the defendant, from the 30th day of March, 1868, to March 17, 1877, was its cashier. By the by-laws of the bank the president and cashier were each empowered "to discount bills, notes or other evidences of debt, to buy and sell bills of exchange, to make loans with or without security, * * * and generally to transact and carry on the business of the bank, subject to the direction of the board of trustees, expressed through the by-laws, or such express resolution as may, from time to time, be passed; and they shall each report to the board of trustees when required, each and everything by them, or either of them, transacted." The evidence shows, and the findings of the court below are to the effect, that the defendant was the active manager of the bank. Between the first day of January, 1871, and the first day of October, 1874, he loaned personally and through the assistant cashier, to one De Blainville, divers sums of the plaintiff's moneyin the aggregate thirty-six thousand five hundred and ninety-nine dollars, or thereabouts. Those loans were made without any security being taken therefor, and no entry or memorandum thereof was made in the books of the bank. Nor was any note or memorandum of any kind whatever made or kept by defendant of the transactions with De Blainville save and except memoranda upon slips of paper, called in the record "tags," and kept in the bank on a wire, which tags showed the amounts loaned to and paid by De Blainville, and the balance due by him from time to time. On the 12th day of March, 1877, there remained and ever since has remained unpaid, of the moneys so loaned to De Blainville by defendant, the sum of

nine thousand two hundred and forty-seven dollars and forty-nine

cents.

The by-laws required that the board of trustees should every month examine into the affairs of the bank, count its cash and compare its assets and liabilities with the balances on the general ledger, for the purpose of ascertaining the condition of the bank, and whether the books were correctly kept. The duty thus imposed upon the board, seems, from the record, to have been grossly neglected; for prior to the month of March, 1877, the cash does not appear ever to have been counted by it, and none but the most superficial examination made into the affairs of the bank. The board, however, met monthly, and to it at each meeting the defendant presented as his report a book of general balances, which, among other things, purported to represent the amount of cash on hand. These representations-so far at least as the item of cash was concerned-were untrue; for the amount of cash represented by the book of general balances, was more than the amount of cash in the vaults of the bank by the amount represented by the "tags" already alluded to. The defendant thus represented to the board of directors that certain money of the bank was in the vaults, whereas in truth he had loaned it to a man not only without security and without taking from him the slightest evidence of indebtedness, but, so far as appears, without interest, and from whom he never made the slightest effort to collect it. And there is testimony going to show that when, in March, 1877, the board of directors concluded to count the cash, defendant, on being informed of that intention instructed the assistant cashier to put the "tags" away, immediately left the bank, and a few days afterward resigned his position. To hold that one intrusted with the care and management, for profit, of funds of another, can dispose of those funds as did the defendant, without liability to himself, would be, as we conceive, to do violence to the most obvious principles of law and justice. It is no justification of the defendant to say that the directors of the bank did not do their duty; that if they had counted the cash they would have found it short, and their attention would thus have been attracted to the "tags," and so to the fact of the loans to De Blainville. The defendant stood in a position of trust and confidence, and he was at least bound to act in good faith in respect to the property intrusted to him.

If it be admitted that he was not bound to report the condition of the affairs of the bank to the board of directors, unless such report was by the board required, still he was bound in law and conscience to make such such report as he did make speak the truth. Defendant was rightly held liable by the court below for the amount of the De Blainville indebtedness. But upon another question in the case the judgment and order must be reversed and the cause remanded for a new trial. The defendant was first appointed cashier by the board of trustees of the plaintiff on the 30th day of March, 1868, for the period of three months. On the first Wednesday of July,

The order was not made by the court on its own motion. It does not purport to be such an order, but was made on the application of the defendant.

Order reversed.

No. 7,743.

SAN JOAQUIN VALLEY BANK v. BOURS.

Department One. Filed May 20, 1884.

CASHIER'S LIABILITY FOR MISAPPROPRIATION OF FUNDS.-A cashier of a bank, empowered to transact its business, subject to the direction of the board of trustees, who loans large sums of moneys to a single individual without taking any security therefor, and without entering the same upon the books of the bank; and who, in order to conceal such loan from the knowledge of the bank officials, falsely reports to them the amount of cash on hand, is liable for the amount of such loan lost to the bank, although the trustees neglected their duty in not regularly examining the cash as required by the by-laws.

ACQUIESENCE BY THE TRUSTEES OF A BANK FOR A PERIOD OF SEVEN YEARS in the charges regularly made by their cashier, on account of his salary, is equivalent to an agreement that such amount constituted his salary.

APPEAL from a judgment of the superior court for San Joaquin county, entered in favor of the plaintiff, and from an order denying the defendant a new trial. The opinion states the facts.

*

Terry, McKinne & Terry, for the appellant.

Dudley & Hall, for the respondent.

Ross, J. The plaintiff is a banking corporation and the defendant, from the 30th day of March, 1868, to March 17, 1877, was its cashier. By the by-laws of the bank the president and cashier were each empowered "to discount bills, notes or other evidences of debt, to buy and sell bills of exchange, to make loans with or without security, * and generally to transact and carry on the business of the bank, subject to the direction of the board of trustees, expressed through the by-laws, or such express resolution as may, from time to time, be passed; and they shall each report to the board of trustees when required, each and everything by them, or either of them, transacted." The evidence shows, and the findings of the court below are to the effect, that the defendant was the active manager of the bank. Between the first day of January, 1871, and the first day of October, 1874, he loaned personally and through the assistant cashier, to one De Blainville, divers sums of the plaintiff's money— in the aggregate thirty-six thousand five hundred and ninety-nine dollars, or thereabouts. Those loans were made without any security being taken therefor, and no entry or memorandum thereof was made in the books of the bank. Nor was any note or memorandum of any kind whatever made or kept by defendant of the transactions with De Blainville save and except memoranda upon slips of paper, called in the record "tags," and kept in the bank on a wire, which tags showed the amounts loaned to and paid by De Blainville, and the balance due by him from time to time. On the 12th day of March, 1877, there remained and ever since has remained unpaid, of the moneys so loaned to De Blainville by defendant, the sum of

and defendant deraign, nor can defendant assail the title of the common grantor. The unity of possession where both derive from the same source cannot be denied by either.

The deed from Evans and wife to plaintiff and Hammond (grantor of defendant) was executed February 22, 1854, prior to the passage of the act which, it is claimed, first-made quit-claim deeds operative as conveyances, without any precedent, estate or interest in the grantee. But, as was said in Graff v. Middleton, 43 Cal. 344, " In this state, from the earliest times, quit-claim deeds have been in everyday use for the purpose of transferring title to land, and have been considered as effectual for that purpose as deeds of bargain and sale." In Sullivan v. Davis, 4 Cal. 291, decided at the October term, 1854, it was held that a quit-claim conveyed all the right and title of the grantor or releasor. And in Frey v. Clifford, 44 Cal. 343, the supreme court said that under the registry law a quit-claim deed received in good faith, and for a valuable consideration, which is first recorded, will prevail over an older deed subsequently recorded. So in Lawrence v, Ballou, 37 Cal. 521, it was held that a quit claim deed passed the title. No reference is made to the statute of 1855. Without making the rule in any respect dependent upon the statute, Downer v. Smith, 24 Cal. 123, and Carpentier v. Williamson, 25 Cal. 154, concur in construing Sullivan v. Davis, supra, as holding that an ordinary quit-claim deed in this state is sufficient to pass any estate the grantor had, and to enable the grantee to maintain ejectment if his grantor could have done so. As we have seen, the defendant here cannot dispute the title of Evans, the grantor of plaintiff and Hammond.

The complaint (certainly in the absence of a special demurrer) sufficiently alleges an ouster by defendants: Payne v. Treadwell, 16 Cal. 244. It avers: "Defendants are in possession of said lands and premises and the whole thereof, withhold the possession of the whole thereof from plaintiff, and exclude plaintiff from the same. Judgment affirmed.

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