under said section 1664, and said petition and other proceedings thereupon are pending, distribution cannot be made until the court has ascertained and declared the

rights of all persons as aforesaid in the manner prescribed in said section, and upon the ground that said Adele Freeman, having filed her petition claiming to be heir to the said deceased, and entitled to distribution of his estate, is entitled to have her rights and claims ascertained and determined in the mode and manner provided in said section in preference to any other mode allowed by law in cases where proceedings are not had or taken under said section, and before any order of distribution is made in said estate."

When the matter of the petition for distribution was called for hearing on the 21st of February, 1888, the motion for a continuance was first heard and denied. To this ruling, petitioner, Adele Freeman, excepted, and appeals from the judgment herein.

That the question of the heirship of Adele Freeman might as well have been heard and determined on the hearing of the petition for distribution of the estate is too plain to admit of doubt. That the trial of such question is regular when the application for distribution is brought on for hearing, and no previous determination of such question has been had in proceedings taken under section 1664, we think is clear. This appears from the provisions of the section. (See last sentence of section 1664.)

We cannot conceive that the pendency of the proceeding under section 1664 excludes the usual proceeding for the determination of the question of heirship at the hearing of the application for distribution. When in advance of any determination of the court of the questions involved in the proceeding under section 1664, an application is made for distribution, we see no reason why the court should not hear the latter, determine all questions of heirship, and dismiss the other proceeding.

It will be observed that the application for a continuance here was not made on the ground that the applicant was not ready to proceed with the hearing of the question of her right as heir of Oxarart. She did not urge as a ground for postponement of the hearing that the witnesses she wanted to offer to establish her claim were not present, although regularly and in time summoned, or that she desired to introduce documentary evidence in existence, which she could she could procure, but which, in the exercise of all proper diligence on her part, she had been unable to procure, but entirely upon the ground that she had a short time before commenced proceedings for the trial and determination of a claim of heirship preferred by her, and which was still pending and undetermined.

From the views heretofore expressed, from which it appears that the question desired to be tried could as well be heard and determined at the hearing of the application for distribution as on the proceedings commenced under the section of the statute above mentioned, the question of postponement became one merely of discretion on the part of the court below. The exercise of this discretion by the court, unless abused, this court will not interfere with. In our judgment, the court very properly exercised its discretion in refusing to postpone the cause. If resort is to be had to the provisions of section 1664 to delay the settlement and distribution of estates, it had better never been passed. We have no doubt that the object of its enactment was to expedite such distribution by enabling persons claiming interests in estates to have their claims determined in advance of the application for distribution, and when such application was made and came on for hearing, the court would have no trial of such questions to make, and would at once decree to such person ascertained to be entitled the portion of the estate adjudged to him. The determination of the proceedings initiated by the

appellant in this court, under section 1664, would have involved much delay, and would have deprived the devisee of the estate of his right on the showing made of having the question determined then and there on the application for distribution made by him.

Judgment affirmed.

MCFARLAND, J., WORKS, J., SHARPSTEIN, J., and PATERSON, J., concurred.

[No. 12552. In Bank.-January 14, 1889.]

J. B. DALE, RESPONDENT, v. R. B. PURVIS, APPEL

LANT.

STATUTE OF FRAUDS-SALE-DELIVERY AND CHANGE OF POSSESSIONAPPEAL-REVIEW OF EVIDENCE.-The evidence in this case held to be sufficient to sustain the verdict of the jury upon the question of a sufficient delivery and continued possession of personal property sold to plaintiff, as against an execution creditor of plaintiff's vendor. (BEATTY, C. J., dissenting.) APPEAL-REVIEW OF INSTRUCTIONS-SPECIFICATIONS OF ERROR.-In order to call upon the appellate court to review the action of the court below in respect of instructions, the appellant should point out in what respect the instruction objected to is erroneous, and not assail the instruction as a whole.

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

The action was brought to recover six mules, which had been levied upon November 13, 1886, as the property of V. B. Dale, by his creditor, being at the time of levy upon his ranch. The plaintiff, J. B. Dale, who was the son of V. B. Dale, and who lived upon his father's ranch, claimed that two of the mules levied upon had been exchanged for two mules which were presented to him by his father when he became of age, in the winter of 1884-85, and that he bought the other four mules from

LXXVIII. CAL-8

his father in August, 1886, for a consideration of $750. There was testimony to the effect that V. B. Dale exercised no control or acts of ownership over the mules in controversy after they were transferred to the plaintiff, but that plaintiff had fed, worked, and hired them to others as his own. The further facts are stated in the opinion of the court.

Hatton & Fulkerth, for Appellant, cited the following cases as to what constitutes the change of possession required by section 3440 of the Civil Code: Stephens v. Irwin, 15 Cal. 503; Hesthal v. Myles, 53 Cal. 625; Woods v. Bugbey, 29 Cal. 479; Stephens v. Halstead, 58 Cal. 193; Bell v. McClellan, 67 Cal. 283; Grum v. Barney, 55 Cal. 254; Engles v. Marshall, 19 Cal. 320; Gray v. Cory, 48 Cal. 209; Cook v. Rochford, 12 Pittsb. Rep. 568; Watson v. Rodgers, 53 Cal. 401.

Turner & Maddox, for Respondent.

The question of change of possession was one of fact, which it was the peculiar and special province of the jury to decide. (Williams v. Lerch, 56 Cal. 334.)

WORKS, J.-This is an action to recover six mules. The defendant answered that he was the sheriff of Stanislaus County, and as such took and held the mules, first under attachment, and subsequently under an execution issued upon a judgment in favor of one Carmichael, and against V. B. Dale, father of plaintiff, and at the time they were so levied upon and taken by defendant said mules were the property of said V. B. Dale.

The controverted question in the case was, whether the sale to plaintiff, who claimed to have purchased said mules from his father, was "accompanied by an immediate delivery, and followed by an actual and continued change of possession."

The case was tried by a jury, who returned a verdict for the plaintiff.

The defendant appeals, and insists that the verdict is not sustained by the evidence as to the question of delivery and continued possession. We have examined the evidence, and find it sufficient to sustain the verdict of the jury. To set out or comment upon the evidence would extend this opinion to no purpose.

Appellant contends that certain of the instructions given by the court were erroneous. Counsel in their points and authorities object to the instructions in the language of their specifications of errors of law. "The court erred in giving respondent's instruction 4." The only commendable feature of such a mode of attack is its extreme brevity; and although brevity in the argument of counsel is pleasing to the court, we think in the present instance, it has been a little overdone. We respectfully suggest to counsel that, in order to call upon us to review the action of the court below, they should point out in what respect the instruction attempted to be brought in question is erroneous. Such a requirement is absolutely necessary to the proper dispatch of the business of this court, and should in fairness to opposing counsel be insisted upon if the point is seriously urged. We have, however, examined the instructions and find no error in them. This failure on our part may further tend to convince counsel of the necessity of greater particularity in pointing out defects. relied upon.

We see no error in the record, and feel satisfied that a correct result was reached.

Judgment and order denying a new trial affirmed.

SHARPSTEIN, J., PATERSON, J., THORNTON, J., and MoFARLAND, J., concurred.

BEATTY, C. J., dissenting.-I dissent. In my opinion, all the evidence in the case shows without substantial conflict that the delivery to the plaintiff by his vendor