as in the McNealy case, there was no such "sufficient certainty."

Really, the most important underlying question in the case (not discussed by counsel) is, whether the provisions. of sections 1021 and 1165, above referred to, are in violation of the provision of the constitution that "no person person shall be twice put in jeopardy for the same offense." But they were held in People v. McNealy, supra, not to be in conflict with the constitution.

Judgment and order affirmed.

WORKS, J., SHARPSTEIN, J., BEATTY, C. J., PATERSON, J., and THORNTON, J., concurred.

[No. 11953. Department Two.-May 20, 1889.)

J. W. ANGELL, RESPONDENT, v. PETER HOPKINS, APPELLANT.

DEMURRER FOR MISJOINDER OF CAUSES OF ACTION-IMMATERIAL ERROR. -Error in overruling a demurrer for misjoinder of causes of action is immaterial if no injury resulted therefrom. Instance. CONVERSION-MEASURE OF DAMAGES-VALUE OF PROPERTY-EVIDENCE OF ITS COST.-In determining what was the value of the property at the time of the conversion, evidence is admissible of the cost of the property,-not as showing the value conclusively, but as a circumstance to aid in arriving at the value at the time in question. ATTACHMENT-Seizure of PROPERTY NOT BELONGING TO THE DEBTOR.— ESTOPPEL. That an attaching creditor had reason to believe that the property was the property of his debtor does not justify the sheriff in seizing such property, and is no defense to an action by the owner for a conversion.

APPEAL for an order of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.

The action was brought to recover the possession, or its value in case a delivery could not be had, of certain personal property. The amended complaint, after alleging

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facts showing a conversion of the property by the defendant, in the same count averred that at the time of the unlawful taking, the defendant damaged other property of the plaintiff in a specified sum, and that by reason of the unlawful detention of the property, he had been and would continue to be damaged in a specified amount per day. The prayer of the complaint was for the possession of the property, or its value in case a delivery could not be had, for damages for the injury done to the plaintiff's other property, and for damages for the detention. The defendant demurred on the ground of misjoinder of causes of action, and his demurrer was overruled. He then answered, and attempted to justify the taking, as sheriff, by virtue of a writ of attachment against one A. G. Spencer. Judgment was rendered in favor of the plaintiff for the possession of the property sued for, or for its value in case a delivery could not be had. From the judgment, and from an order refusing a new trial, the defendant appealed. The further facts are stated in the opinion.

John H. Dickinson, for Appellant.

Gray & Haven, for Respondent.

HAYNE, C.-Action for the conversion of personal property. Judgment for plaintiff. Defendant appeals. Several points are made.

1. It is said that the demurrer for misjoinder of causes of action should have been sustained. But assuming, for the purposes of the case, that this is so, no injury resulted to the appellant, for the reason that the findings show that the value of the property was the only basis for the judg ment given. Error in overruling a demurrer for misjoinder of causes of action is immaterial, if it does not affect the substantial rights of the parties. (Reynolds v. Lincoln, 71 Cal. 185.)

2. It is contended that there was error in admitting evi

dence as to what the property cost the plaintiff. It is quite true that the measure of damages is the value of the property at the time of the conversion with certain additions in certain cases. (Civ. Code, sec. 3336.) But in arriving at such value, it was proper to take into consideration what the property cost as a circumstance, to aid at arriving at its value at the time in question. (Luse v. Jones, 39 N. J. L. 708; Jones v. Morgan, 90 N. Y. 10; 43 Am. Rep. 131; Norton v. Willis, 73 Me. 580; Small v. Pool, 8 Ired. 47; Boggan v. Horne, 97 N. C. 268; Rawson v. Prior, 57 Vt. 615; Ford v. Smith, 27 Wis. 567; Roberts v. Dunn, 71 Ill. 50.)

The circumstances claimed to show that the attachment creditor had reason to believe that the property belonged to his debtor instead of the plaintiff, do not estop the plaintiff from showing that he was the owner.

The other matters do not require special notice. We therefore advise that the judgment and order appealed from he affirmed.

We concur.

FOOTE, C., and BELCHER, C. C., concurred.

The COURT.-For the reasons given in the foregoing opinion, the judgment and order are affirmed.

Hearing in Bank denied.

[No. 11926. Department Two.-May 20, 1889.]

FRANK F. PORTER, APPELLANT, v. ALFRED IMUS, RESPONDENT.

CONSTITUTIONALITY OF INSOLVENCY ACT OF 1880-IMPAIRING OBLIGATION OF DEBTS PREVIOUSLY CONTRACTED.-Under the insolvency act of 1880, a discharge can be granted of a debt contracted in 1878. ID. DEBTS TO RESIDENTS OF OTHER STATES-BURDEN OF PROOF.-The certificate of discharge is prima facie valid, and a discharge of all previous debts, with certain specified exceptions. If the creditor was a resident of another state, the burden is on him to show such fact.

APPEAL from a judgment of the Superior Court of Santa Cruz County.

The facts are stated in the opinion.

Joseph H. Skirm, for Appellant.

Unless the plaintiff was a citizen or resident of Califor nia at the time the note was executed, or subsequently, the discharge of the defendant in insolvency was inoperative as against him. (Rhodes v. Borden, 67 Cal. 7.)

S. F. Geil, and H. V. Morehouse, for Respondent.

HAYNE, C.-Action upon a promissory note made and payable in this state, and dated in 1878; defense, a discharge in insolvency obtained in 1881. The court below gave judgment for the defendant, and the plaintiff appeals.

The first point is, that the insolvency act of 1880 impairs the validity of the contract; in other words, that under that act a discharge could not be granted which would bar a debt contracted in 1878. This precise question, however, has been decided against the appellant. (Pomeroy v. Gregory, 66 Cal. 574; Hundley v. Chaney, 65 Cal. 363.)

The only other point made is, that it is not pleaded or found that the plaintiff was a citizen or resident of the state. The insolvency act provides, however, that the discharge shall be a bar to all the debts which were or might have been proved, with certain specified exceptions (of which this is not one), and "may be pleaded by a simple averment that on the day of its date such discharge was granted to him, setting forth the same in full, and the same shall be a complete bar to all suits brought on any such debts, claims, and liabilities or demands, and the certificate shall be prima facie evidence in favor of such facts, and of the regularity of such discharge." (Sec. 53.),

Under this provision, if the plaintiff was not a citizen or resident of the state, and consequently not affected by the discharge, he should have proved the fact.

We therefore advise that the judgment appealed from be affirmed.

FOOTE, C., and BELCHER, C. C., concurred.

The COURT.-For the reasons given in the foregoing opinion, the judgment is affirmed.

[No. 11879. Department Two.-May 20, 1889.]

LOUISA BEETS ET AL., APPELLANTS, v. OBED CHART ET AL., RESPONDENTS.

APPEAL DEFECTIVE TRANSCRIPT-DISMISSAL.-When there is no certificate of the clerk identifying the papers contained in the transcript as having constituted a part of the record of the court below, and nothing to indicate that a notice of appeal was filed or served, the attempted appeal cannot be heard, and will be dismissed. ID. STATEMENT ON APPEAL-MOTION FOR NEW TRIAL.-The settlement of what is called a statement on appeal to the supreme court, made after a motion for a new trial has been heard and determined, is not provided for in the code; and if such statement is not certified, settled, or signed by the judge of the trial court, it cannot be considered either as a statement on motion for new trial or as a bill of exceptions.

APPEAL from judgment of the Superior Court of Sonoma County, and from an order denying a new trial.

The facts are stated in the opinion.

George Pearce, for Appellants.

Thompson & Thompson, and Williams D. Bliss, for Re spondents.

FOOTE, C.-The appeal in this case was attempted to be taken without having attached to the transcript any