trial. Therefore, no objection which might have been ground for a new trial on his part alone, can be considered.

3. By stipulation of counsel, the answer originally filed was made to stand as the answer to the complaint as amended.

We cannot say the court below was not justified in finding that the deeds in question were made in fraud of the plaintiff's rights.

5. The order striking out the answer of defendant Hildreth is not appealable; the appeal therefrom is therefore dismissed and the judgment and order refusing a new trial are affirmed. MCKEE, J., and MCKINSTRY, J., concurred

No. 8,274.

DORLAND v. Dorland.

Department One. Filed December 8, 1884.

LOAN-TIME OF REPAYMENT--PRESUMPTION-STATUTE OF LIMITATION.-A loan of money is presumed to be repayable on demand, when no time for repayment is specified; and the statute of limitations commences to run against such loan from the date thereof.

ESTATE OF DECEASED PERSON-CLAIM BARRED BY STATUTE OF LIMITATIONS-ALLOWANCE OF. An administrator has no authority to allow a claim against the estate based on a loan which has become barred by the statute of limitations.

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.

J. M. Wood, for the appellant.

M. Lynch, for the respondent.

Ross, J. The real contest between the parties to this action relates to the cause of action stated in the first count of the complaint, as amended, wherein it is averred that on the twenty-eighth of April, 1877, the defendant's intestate-Henry S. Dorland-became indebted to the plaintiff's assignor James F. Dorland-in the sum of two thousand five hundred dellars, gold coin, "for money lent by said James F. Dorland to said Henry S. Dorland, and for money paid, laid out, and expended by said James F. Dorland to and for the use of said Henry S. Dorland, and at his request, which sum he then and there promised and agreed to repay to said James F. Dorland in six months thereafter, with interest," at a certain rate. The court below, in effect, found the facts to be as alleged; and this finding, the appellant contends, and we think, is unsupported by the evidence.

The action grew out of the refusal of the administratrix of the estate of Henry S. Dorland, who died April 14, 1878, to allow a claim presented by James F. Dorland against the said estate for the amount here in question, together with some other amounts concerning which no question is made. There was testimony given on behalf of plaintiff

to the effect that in the early part of 1872, James F. Dorland borrowed of the German Savings and Loan Society for the benefit of his brother, the deceased Henry S. Dorland, the sum of five thousand dollars, for the repayment of which he executed to the bank his promissory note for that amount, secured by a mortgage upon certain real estate; that Henry S. received the money as a loan from James F. Dorland, and paid the interest on the note and mortgage to the bank, and on the twenty-fourth of February, 1873, paid to the bank three thousand five hundred dollars of the princial of said note and mortgage. On the twenty-eighth of April, 1877, the statute of limitations had nearly run against the note and mortgage executed by James F. Dorland in 1872, and there was then due and unpaid thereon the sum of one thousand five hundred dollars. The bank had, also, upon a written order of James F. Dorland, paid one thousand dollars in discharge of a street assessment against the mortgaged property, due from James F. Dorland. For the balance due upon the note and mortgage of 1872, and for the amount paid by the bank in discharge of the street assessment, aggregating two thousand five hundred dollars, James F. Dorland, on the twenty-eighth of April, 1877, executed to the bank a new note and mortgage. One thousand dollars of this amount was for the money the bank paid on the written order of James F. Dorland in satisfactian of a debt due from him. With respect to the remaining fifteen hundred dollars of the amount, the note and mortgage of April 28, 1877, was but a renewal to that extent of the note and mortgage of 1872. It was in 1872 that James F. Dorland let Henry S. Dorland have the money. No time being specified within which it was to be repaid, the presumption of law is that it was to be repaid on demand; and that being so, the statute of limitations commenced to run from the time of the loan: Angell on Limitations, sec. 95, and authorities there cited. To take the case out of the operation of that statute, there must have been some acknowledgment or promise, evidenced by writing, signed by Henry S. Dorland: Code of Civil Procedure, sec. 360; Estate of Galvin, 51 Cal., 215. None such was shown. The statute of limitations had run against the loan to Henry S. Dorland, and the administratrix of his estate was, by section 1,499 of the code of civil procedure, prohibited from allowing a claim against the estate based upon it.

The appeal from the judgment, having been taken too late, must be dismissed.

Appeal from judgment dismissed. Appeal from order refusing a new trial reversed, and cause remanded for a new trial.

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

No. 8,280.

DOOLAN ET AL. v. CUNNINGHAM, Administrator, etc.

Department Two. Filed December 8, 1884.

CLERICAL ERROR IN CONCLUSIONS OF LAW-IMMATERIAL ERROR.-The use of the word "defendant" instead of "defendants," in the conclusions of law found by the court, is a mere clerical error and entitled to no regard.

APPEAL from a judgment of the superior court for the city and county of San Francisco.

George W. Tyler, for the appellants.

Cary & Troutt, for the respondent.

THE COURT. We have examined the record in this case, and find it without error. The use of the word "defendant" instead of "defendants" in the conclusions of law, is so clearly a mere clerical misprision, that we do not think it entitled to any regard. Judgment affirmed.

No. 8,200.

LUNDY v. CENTRAL PACIFIC RAILROAD COMPANY.

Department Two. Filed December 8, 1884.

RAILROAD-TICKET LIMITED AS TO TIME-RIGHTS OF PASSENGER.-A railroad ticket entitling the purchaser to a continued passage between two given points, if used within a certain time, is good for such continued passage if the same be commenced within the time limited.

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

W. H. Fifield, for the appellant.

Wilson & Wilson, for the respondent.

THORNTON, J. The court below, in granting the nonsuit in this case, misconceived the meaning of the contract for passage between the plaintiff and defendant. In our view, it was only required of the plaintiff that he present himself at the cars of the Union Pacific Railroad Company, or of the defendant, and take passage at any time within nine days from the twelfth day of March, 1874. The plaintiff took passage on the twenty-first of the same month, and was illegally ejected from the cars of defendant by its servant, on the morning of the twenty-fifth following.

The admission of defendant showed clearly that the contract for carrying the plaintiff from Omaha to San Francisco, though made by the Union Pacific Railroad Company, was made by authority of defendant.

We have no doubt that the action was properly brought against the defendant.

We see nothing in the evidence to uphold the ruling of the court below, non-suiting the plaintiff, and the judgment and order denying a new trial are, therefore, reversed and the cause remanded, that a new trial may be had in accordance with the views herein expressed. SHARPSTEIN, J., and MYRICK, J., concurred.

No. 8,476.

SAMUELS v. YOUNGER AND WIFE.

Department Two. Filed December 8, 1884.

DEMURRER TO THE COMPLAINT HELD PROPERLY Overruled.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff.

E. W. McGraw, for the appellants.
Carl S. Graef, for the respondent.

THE COURT: The court below did not err in overruling the demurrer to the complaint.

We find no error in the record, and the judgment is affirmed.

No. 8,267.

MCCORMICK V. FITZPATRICK ET AL.

Department Two. Filed December 8, 1884.

DEMURRER HELD PROPERLY OVERRULED, and no error in refusing to set aside the judg

ment.

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 refusing to set aside the judgment.

M. C. Hassett, for the appellants.

F. L. Sullivan, for the respondent.

THE COURT. The demurrer to the complaint was properly overruled.

We find no error in the rufusal of the court to set aside the judgment against the defendants.

Judgment and order affirmed.

No. 9,578.

LEWIS ET AL. v. S. P. C. R. R. Co.

In Bank. Filed December 9, 1884.

ACTIONS AGAINST CORPORATIONS-VENUE-CONSTITUTIONAL LAW.-Section 16 of article XII of the constitution, providing that "a corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs, or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases," is applicable to actions arising from torts as well as from contracts. Such provision is not in conflict with the fourteenth amendment to the constitution of the United States.

APPEAL from an order of the superior court for Santa Clara county, denying a motion for a change of venue. The opinion states the facts.

Walluce, Pillsbury & Blanding, for the appellant.

Laine & Johnson, for the respondents.

Ross, J. Section 16 of article XII of the present constitution of the state reads: "A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs, or in the county where the principal place of such corporation is situated, subject to the power of the court to change the place of trial as in other cases.

The defendant is a corporation, having its principal place of business in the city and county of San Francisco, and was sued by the plaintiff in the county of Santa Clara to recover damages for injuries alleged to have been inflicted upon him by defendant on the tenth of July, 1883, in the said county of Santa Clara.

Defendant claims the right to have the action tried in the county where it has its principal place of business and a motion to that end having been denied by the court below, the appeal is from the order of refusal. It is urged that the provisions of the constitution quoted, apply exclusively to matters of contract and have no application to actions of tort. We do not think the language employed admits of such restriction. And that none such was intended by the framers of the instrument plainly appears from the proceedings of the constitutional convention at the time the section in question was adopted: Vol. 1, pp. 452-3.

Nor are we able to see wherein the provision of the state constitution in question conflicts with the provision of the fourteenth amendment to the constitution of the United States.

Order affirmed.

MYRICK, J., SHARPSTEIN, J., MORRISON, C. J., and MCKEE, J., concurred.

THORNTON, J. I concur in the judgment.