No. 8,204, MILIKEN V. HOUGHTON ET AL. Department One. Filed October 21, 1884. AMENDED COMPLAINT SERVICE OF ON DEFENDANTS.-Where a plaintiff amends his complaint in matter of substance, he must serve his amended pleading upon all the defendants, including those in default. APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff. Tobin & Tobin, for the appellant. J. M. Wood, for the respondent. THE COURT. On the authority of Diggins v. Reay, 54 Cal., 525; Harney v. Applegate, 57 Cal., 205, and Thompson v. Johnson, 60 Cal., 295, judgment as to defendant, the Hibernia Savings and Loan Society, reversed and cause remanded for further proceedings. No. 8,266. PELTRET V. FRANK. Department Two. Filed October 21, 1884. MOTION MADE AFTER JUDGMENT APPEAL FROM ORDER-IDENTIFICATION OF PAPERS— Copies of papers used on a motion made after judgment, will not be considered on appeal, although contained in the transcript, unless the same are identified by the certificate of the judge, or otherwise, as having been used or considered on the hearing. APPEAL from certain orders of the superior court for the city and county of San Francisco, made after judgment. The opinion states the facts. E. J. Linforth, for the appellant. Robinson, Olney & Byrne, and F. J. Castlehun, for the respond ent. THE COURT. Appeal from orders made after judgment. In addition to a copy of the judgment roll, the transcript contains what purports to be copies of affidavits, and of the official reporter's notes of the oral evidence of two witnesses. These are not incorporated in a bill of exceptions, nor are they identified by a certificate of the judge, or otherwise, as having been used or considered on the hearing of any motion in the case. Under the circumstances we cannot consider anything except the judgment roll, and as that discloses no ground for a reversal of the orders appealed from, they are affirmed: Baker v. Snyder, 58 Cal., 617; Angel v. Delmas, 60 Id., 254; Walsh v. Hutchings, Id., 228, and White v. Longmire, XI Pac. C. L. J., 154. Orders affirmed. No. 7,865. VOGT v. COPE ET AL. Department One. Filed October 21, 1884. MARKET VALUE OF STOCK, HOW SHOWN-REPORTS OF SALES BY EXCHANGE BOARD.—— The market value of shares of stock cannot be shown by evidence of the "report of sales" made by a stock exchange board, in the absence of evidence showing how such " reports of sales "were made up, where the information they contained was obtained, and whether the quotations of prices made were derived from actual sales or otherwise. APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff, and from an order denying the plaintiff a new trial. The opinion states the facts. E. Bartlett, for the appellant. Jarboe & Hurrison, for the respondents. Ross, J. Action for the conversion of certain mining stocks. The plaintiff recovered judgment, but only for nominal damages, inasmuch as there was no proof of the value of the property converted. The record shows that the plaintiff offered to read in evidence from the published reports of sales of mining stocks in the San Francisco Stock Exchange Board for the month of September, 1878, to show the highest market value of said stock since the conversion of the same, and which it was agreed might be read with the same effect as the original records of said stock exchange, subject to such objections as might be otherwise made. The plaintiff then offered to prove by these reports" that the stocks converted by the defendants sold at certain prices between the date of conversion and the bringing of the suit. The defendants objected to the introduction of the proffered evidence on the ground, among others, that it was irrelevant, immaterial and incompetent. The court sustained the objection, and the plaintiff submitted his case without making any proof of the value of the stocks converted. As the case was submitted in the court below, that court could only award the plaintiff nominal damages. And if this ruling with respect to the plaintiff's offer was correct, we must affirm the judgment. There was nothing to show, or tending to show, how or in what manner the "reports of sales" were made up; where the information they contained was obtained, or whether the quotations of prices made were derived from actual sales, or otherwise. In the absence of some such proof, the "reports of sales" offered by the plaintiff were incompetent, and the court below was right in its ruling: Whelan v. Lynch, 60 N. Y., 474. It would have been a very simple matter to have proved the value of the stocks in question, but, simple as it was, the proof was not given. We must affirm the judgment and order. So ordered. MCKINSTRY, J., and MCKEE, J., concurred. PAROL EVIDENCE-STATUTE OF FRAUDS-OBJECTION IN SUPREME COURT.- An objection to parol evidence of an agreement required to be in writing by the statute of frauds, cannot be made in the supreme court for the first time. APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff and from an order denying the defendant a new trial. The opinion states the facts. T. F. Crowley and Alex. Campbell, Jr., for the appellant. Ross, J. Assuming that the agreement upon which the plaintiff relied on for a recovery was required to be evidenced by writing, the plaintiff was permitted in the court below to give proof of the agreement without objection that it was not in writing. Such objection cannot be made here for the first time: Reed on the Statute of frauds, vol. 2d, secs. 540, 541, and authorities there cited. The evidence upon which the verdict was based was substantially conflicting and there were no exceptions taken in the court below to the instructions of the court. Judgment and order affirmed. MCKINSTRY, J., and MCKEE, J., concurred. No. 9.476. BANK OF CALIFORNIA v. DUNN, CONTROLLER, ETC. Department Two. Filed October 23, 1884. THE BONDS ISSUED UNDER THE ACT OF APRIL 4, 1864, ARE VALID, and the interest due thereon must be paid by the state to the holders thereof. APPEAL from a judgment of the superior court for Sacramento county, entered in favor of the plaintiff. W. W. Foote and McCune & George, for the appellant. THE COURT. The court below rendered judgment that the defendant draw his warrant for the amount of an interest coupon on a bond issued under the act of April 4, 1864: Stats., 1863-4, p. 344. We are of opinion that none of the matters presented on behalf of defendant are sufficient to justify the withholding of the warrant. The act above referred to pledged the faith of the state to the payment to the holder of the bonds, mentioned therein, of such interest as is involved in this action Judgment affirmed. NOTES. The distinction between a creditor's bill and a bill to set aside fraudlent conveyances of real estate was clearly stated in the recent case of Wadsworth v. Schisselbaur. In delivering the opinion of the court, Mitchell, J., said: "There are two classes of cases, both commonly called creditor's suits, which, although closely allied, are clearly distinguishable. The first, a creditor's suit strictly so called, is where the creditor seeks to satisfy his judgment out of the equitable assets of the debtor which could not be reached on execution. The general rule is that such an action cannot be brought until the creditor has exhausted his remedy at law by the issue of an execution and its return unsatisfied. This was required because equity would not aid the creditor to collect his debt until the legal assets were exhausted, for until this was done he might have an adequate remedy at law. The execution had to be issued to the county where the debtor resided, if a resident of the state. Its issue to another county would not suffice: Reed v. Wheaton, 7 Paige Ch., 663. "The second class of cases is where property legally liable to execution has been fraudulently conveyed or incumbered by the debtor, and the creditor brings the action to set aside the conveyance or incumbrance as an obstruction to the enforcement of his lien; for, though the property might be sold on execution, notwithstanding the fraudulent conveyance, the creditor will not be required to sell a doubtful or obstructed title. In the latter class of cases, the prevailing doctrine is, that it is not necessary to allege that an execution had been returned unsatisfied, or that the debtor has no other property out of which the judgment can be satisfied; for that is not the ground upon which the court of equity assumes to grant relief in such cases, but upon the theory that the fraudulent conveyance is an obstruction which prevents the creditor's lien from being efficiently enforced upon the property. As to him the conveyance is void, and he has a right to have himself placed in the same position as if it had never been made. The fact that other property has been retained by the debtor may be evidence that the conveyance is not fraudulent; but if the grantee's title be tainted with fraud, he has no right to say that all other means to satisfy the debt shall be exhausted before he shall be disturbed: Botsford v. Beers, 11 Conn., 370; Weightman v. Hatch, 17 Ills., 281; Vasser v. Henderson, 40 Miss., 519." 224 WEST COAST REPORTER. WHOLE NO. 45. NOVEMBER 6, 1884. VOL. IV. No. 6. RIPARIAN RIGHTS. Perhaps no case, since the celebrated San Francisco Pueblo case, has ever been decided by the supreme court of California, of more importance, or more widely affecting private interests in all parts of the state, than the case of Lux v. Haggin, decided a few days ago, and reported in the present number of the West Coast Reporter. The case has long been under advisement, and has evidently received the most careful consideration from the court. Having been favored with copies of the printed briefs on each side, we know that all the legal questions, directly or indirectly, involved in the controversy, were argued with the utmost learning and ability, and in a most exhaustive manner. Every assistance which the research and ability of counsel can furnish to a court was rendered in this case. It will be seen that the decision fully confirms all of the most important and material conclusions which were reached in our series of articles upon Riparian Rights,-conclusions which were based upon the previous decisions of the court, extending through almost the entire period of the state's existence as a commonwealth, and upon the title concerning water rights, contained in the civil code. It holds that the doctrine of "prior appropriation" is confined to streams running wholly through the public lands of the United States, or of the state; that, unless a prior appropriation had been made of a stream while it was thus running wholly within the public lands, the riparian rights of private proprietors, owning lands situated on its banks, are those conferred, regulated, and protected by the common law; that as soon as a private proprietor acquires title to a tract of land, situated on the banks, or bank of a stream, where no prior appropriation of it had been made, while it was wholly public, his common law riparian rights. at once attach and become vested, and they cannot be lawfully destroyed or interfered with by any subsequent appropriation of the stream, even though he has not yet made any actual artificial appropriation of its waters, so as to divert them upon his own land; and, finally, that these common law riparian rights, of private proprietors on a stream, are fully and intentionally saved, reserved, and protected by §1,422 of the civil code, so that the preceding affirmative provisions of the same title are |