H. J. Tilden, for the appellant.

Jarboe & Harrison, for the respondent.

THE COURT. On the authority of Barstow v. Savage Mining Co., 1 West Coast Rep., 116, judgment and order reversed and cause remanded, with directions to the court below to enter judgment for plaintiff on the findings for possession of the property, or, in the event its delivery cannot be had, for its value and costs.

No. 7,067.

DUNPHY v. POTRERO COMPANY ET AL.

Department One. Filed November 28, 1884.

APPEAL FROM JUDGMENT BY PERSON NOT A PARTY.-A person who is not a party nor privy to, nor aggrieved by a judgment, cannot appeal therefrom.

APPEAL from a judgment of the superior court for the city and county of San Francisco. The opinion states the facts.

T. J. Crowley and Alex. Campbell, Jr., for the appellant.
John A. Stanly, for the respondent.

THE COURT. This appeal is by Laura A. Mowrie from a judgment rendered in favor of the plaintiff against the following named defendants, viz: The Potrero Company, L. A. Lowrie, John Edwards, Ah Wing, Ah Wun and Henry F. Williams. The appellant was not a party nor privy to, nor a person aggrieved by, the judgment; therefore the appeal must be dismissed.

It is so ordered.

No. 7,808.

ESTATE OF MERRIFIELD.

In Bank. Filed November 28, 1884.

ADMINISTRATOR USING ASSETS OF ESTATE MUST PAY INTEREST.—An administrator who uses the assets of the estate in his own business and for his own profit, may be charged interest thereon at the rate of seven per cent. per annum, with annual rests.

EXECUTORS AND ADMINISTRATORS-APPEAL FROM DECREE OF DISTRIBUTION.-A decree of distribution of an estate will not be reviewed on an appeal by an executor or administrator, where he, as such, has no interest in the matter sought to be reviewed.

APPEAL from a decree of the superior court for Solano county. The opinion states the facts.

Wendell & Kelly, for the appellant.

O. R. Coghlan, for the respondents.

MYRICK, J. The court below made a decree settling the account of the administrator and distributing the estate. From this decree the administrator, as administrator, appealed to this court.

1. In settling the account the court found that the sum of five thousand five hundred and forty dollars and sixty-one cents, assets

of the estate, had been used by the administrator in his own business and for his own profit, and charged him with interest at the rate of seven per cent. per annum, with annual rests. This finding

is attacked for want of evidence to sustain it. We think the court was clearly justified in charging the administrator with the interest. Merrifield (administrator here) was the purchaser of real estate from the administrator of one Longmire, deceased, (the former husband of this intestate), and in making payment therefor receipted to the administrator of Longmire for five thousand six hundred and thirty-one dollars as received by him as administrator of the estate of this intestate, and returned in his inventory that amount as money in hand belonging to his intestate (Susannah Merrifield). He thus had his purchase, and had also the purchase money, which he, as administrator, did not set apart from his individual funds as money of the estate.

2. The appellant may have been interested as an individual, in the distribution of the estate, claiming, as he did, to be the assignee of some of the heirs; but, as administrator, he had no interest. It is now well settled in this state that a decree of distribution will not be reviewed on an appeal by an executor or administrator, where he, as such, has no interest in the matters sought to be reviewed: Bates v. Ryberg, 40 Cal., 463; Estate of Marrey, 3 W. C. Rep., 49. The decree is affirmed.

SHARPSTEIN, J., Ross, J., McKINSTRY, J., MCKEE, J., and MORRISON, C. J., concurred.

No. 8,034.
BULL v. FORD.

Department One. Filed November 28, 1884.

CONVEYANCE TO HINDER, DELAY AND DEFRAUD CREDITORS-PURCHASER WITH NOTICEATTACHMENT OF PROPERTY FRAUDULENTLY CONVEYED.-A conveyance of property made with intent to hinder, delay and defraud the creditors of the grantor is void, both as against the grantee and a subsequent purchaser with notice, although the latter may have paid a valuable consideration. The property so conveyed may be levied upon and sold at the instance of the creditors of the fraudulent grantor as if no conveyance had ever been made. ALLEGATION OF FRAUDULENT INTENT SPECIAL DEMURRER. --An allegation that a conveyance was made "with intent to hinder, delay and defraud" the creditors of the grantor is a sufficient averment of fraudulent intent to sustain a judgment. Whether the same would be sufficient if objected to by special demurrer, quaere.

APPEAL from a judgment of the superior court for Santa Clara. county, entered in favor of the plaintiff and from an order denying the defendant a new trial.

Kittredge & Halstead, for the appellant.

D. M. Delmus, for the respondent.

Ross, J. That the conveyance of Felipe Alvarado of all his interest in the Rancho San Bernarbe to Ascension Mendilla, was without consideration, and made by Alvarado solely for the purpose of

hindering, delaying and defrauding his creditors, was distinctly found by the trial court, whose finding in that regard is not assailed.

The asserted interest of the defendant in the property is derived from a conveyance from Mendilla made at the instance and request of Alvarado. And, with respect to that conveyance, the finding is, that at the time defendant took it, he "well knew that the aforesaid conveyance from Alvarado to Mendilla was without any consideration and a sham, and had been made with intent to hinder, delay and defraud the creditors of Alvarado." It is urged that this finding is contrary to the evidence. But it is clear, under the rule prevailing here, that we cannot so hold.

The testimony of Alvarado and Mendilla, if true, was to the effect stated in the finding, and the credibility of the witness was for the court below to determine, and is not a matter for us to consider. Besides, the instructions given by the defendant to Mendilla not to answer the inquiry by the attorney of one of Alvarado's creditors in respect to the conveyance from Alvarado to Mendilla, strongly tended to show knowledge on the part of defendant of the real nature of the transaction. We must, therefore, accept the finding as stating the truth of the matter. And with that fact established, the legal conclusion is the same, whether the further fact be, as testified by defendant, that the conveyance to him, although absolute in form, was in reality as security only for certain advances made by him, or the firm of which he was a member, to and on account of Alvarado, or, as testified by Alvarado, that defendant took the title, without consideration, to hold for Alvarado, to the end that the creditors of the latter be hindered, delayed and defrauded: Bump on Fraud. Conv.; pp. 483-4, 594-5; Goodwin v. Hammond, 13 Cal., 168; Swinford v. Rogers, 23 Cal., 236. The conveyance to defendant being void as against Alvarado's creditors, the creditors were authorized to levy upon and sell the preperty, as if no conveyance had ever been made by their debtor: Freeman on Executions, sec. 136 and authorities there cited. This the creditor under whom the plaintiff claims did; and by virtue of that sale the interest of Alvarado in the property became vested in the plaintiff.

But one other point need be noticed, and that is, the claim that the allegation of the complaint, that the conveyance was made "with intent to hinder, delay and defraud" the creditors of Alvarado, is an insufficient allegation of fraudulent intent. Whatever might be held, if the point had been made by special demurrer, we think the allegation certainly sufficient after judgment and in the absence of such demurrer. The case of Hagar v. Shindler, 29 Cal., 60, would, however, seem to sustain the averment in question, even in the face of a special demurrer

Judgment and order affirmed.

MCKINSTRY, J., and MCKEE, J., concurred.

No. 8,191.

TUEBNER ET AL. v. CALIFORNIA STREET RAILROAD COMPANY.

Department Two. Filed November 28, 1884.

RIGHTS OF PERSONS TO USE AND ENJOYMENT OF PROPERTY.--Any person may use his own property in such lawful manner as to him may seem fit, having reference always to the right of others to use their property But a person cannot use his own property, even in and about a business in itself lawful, if it be used in such a manner as to seriously interfere with another in the enjoyment of his property.

THE SAME NUISANCE-STREET RAILROAD-LICENSE WHEN NOT A JUSTIFICATION. --The defendant corporation operated a street railroad along a street in that portion of San Francisco usually devoted to dwelling purposes, and, for the purpose of using steam as a motive power in propelling its cars by means of a cable, constructed a building on a lot adjoining the plaintiff's premises, for use in connection with its street railroad, as a car and engine house. Such use produced a loud and continuous noise; caused the plaintiff's house to be constantly shaken and jarred; cracked the plastering in his rooms, and covered his premises and furniture with soot. Held, that such acts of the defendant constituted a nuisance for which it was liable, although the municipality of San Francisco had granted it a franchise to operate its road, and all its structures and machinery were necessary to that end, and were properly constructed.

NUISANCE-ABATEMENT OF PENDING ACTION-DAMAGES.-In an action to recover damages for injuries caused by such nuisance, the fact that the defendant has, since the commencement of the action, remedied the evil complained of, does not interfere with plaintiff's right to recover for injuries sustained before the commencement of the action.

NUISANCE MEASURE OF DAMAGES-VALUE OF INJURY.-In such action the plaintiff need not prove his injury by value; it is for the jury to determine a reasonable sum as proper compensation.

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

H. S. Brown and J. E. Foulds, for the appellant.

E. F. Preston, for the respondents.

MYRICK, J. The action was brought to abate an alleged nuisance and to recover damages. The jury gave a verdict for the plaintiffs for one thousand dollars damages, and from the judgment rendered therefor and an order denying a new trial the defendant appealed. The case is, in substance, as follows: The plaintiffs, owners of a lot of land near the corner of Larkin and California streets, in the city and county of San Francisco, had thereon two dwelling-houses, (one occupied by the family of one of the plaintiffs, the other by the family of the other plaintiff,) and on the rear of the lot a two story building, in the lower story of which the plaintiffs carried on the manufacture of show cases, the upper story being occupied by a tenant. The defendant constructed a street railroad along California street, and, for the purpose of using steam as a motive power in propelling the cars, by means of a cable, constructed a building on the corner of the streets above named, which building adjoined the property of plaintiffs. This building was used, in connection with the street railroad, as a car house, and had an engine and furnace with a smoke stack extending to a point twenty feet higher than plaintiffs' houses. Cars were elevated from one story to another by the aid of machinery. We quote substantially from the testimony of plaintiffs for the purpose of showing the case as presented by them.

to the court and jury: "From the time the railroad commenced running, about February 1, 1878, to August 2, 1878, when this suit was commenced, we were annoyed by soot, and by the machinery and the elevator running up and letting down cars. It shook the whole house; commenced about seven o'clock in the evening, and continued until ten, eleven or twelve o'clock at night, sometimes until one and two; the noise was continuous during that time; there was a jarring and shaking of the building; the plastering was cracked some; the elevator sometimes shook the whole house; the soot came from the smoke stack to our houses, and came in at 'the windows, and in the back yard, in the morning I could clean up a whole pail full; if I lay my hands on the banisters they are all black; we were troubled every day with soot; if I open the windows the dust comes into the whole house; in the evening sometimes when I am reading the paper, they would put the cars upon a small track; I would jump up thinking it was an earthquake; the noise mostly is when they are elevating the cars; when the cars went in, there was shaking, and soot that troubled us all the time; sometimes it shook the house so you would have thought it was an earthquake; as for the soot, it was not possible to clean the stairs or place; if you clean it four or five times it would be the same thing over.

Besides a denial of the shaking, noises and soot, the defendant pleaded its incorporation for the purpose of operating a street railroad along California street with endless ropes and stationary steam engines, and that it had authority from the board of supervisors of the city and county so to operate its road, and that all the structures and machinery were necessary to that end, and were properly constructed and operated.

When the defendant offered the orders of the board of supervisors in evidence, the court sustained the plaintiffs' objection thereto. The defendant assigns this ruling as error, on the ground that, if it had the legal right to run its cars along the street, the acts complained of could not constitute a nuisance, because the doing of that which is lawful cannot be a nuisance. If this position be correct, in its application to this case, the court erred. There is no doubt that the municipality may grant the right to run cars along streets, to be drawn by horses or propelled by steam. The annoyances complained of were not the immediate result of the running of cars; they were caused by the stationary furnace and machinery of the defendant on its own premises. If the defendant had a right to operate its furnace and machinery in the manner and with the results detailed, the orders of the board of supervisors would not add to such right. The object of the testimony offered was to show that the defendant, in operating its road, was doing a legal act, and to claim that, as a stationary engine was necessary, all the results to follow the reasonable use of the engine and its appliances were also legal.

To sustain the ruling of the court, it must be conceded that the defendant had a legal right to run its cars on the street, propelled