ing Company against Bagge and others to think, therefore, that the judgments should recover on street assessments. Judgments be reversed, and the causes remanded, with for defendants, and plaintiff appeals. directions to the court below to render judgHenry Vrooman, J. C. Martin, and C. T.ments for the plaintiffs upon the findings, H. Palmer, for appellant. E. F. Preston, as prayed for in the complaint. for respondents.

FOOTE, C. In both of the above-styled causes the questions involved are the same, and a decision as to one is conclusive as to the foregoing opinion, the judgments are rethe other. The appeals were taken by the plain-versed and the causes remanded, with directiff from judgments rendered in favor of the tions to the court below to render judgments defendants, and are here upon the judgment for the plaintiffs upon the findings, as prayed for in the complaint.

public offense for which he has once been pended. To this plea there was a demurrer, prosecuted and convicted or acquitted." Pen. and the court adjudged the plea sufficient. Code, § 687. The only question in this case The court said, among other things, that the is whether the second prosecution is for the act of possessing the several notes was one same offense as the first. If so, it cannot be and the same offense, as much as the act of maintained. The first prosecution was for stealing a number of articles at the same a libel contained in an article published by time and place, and the information might the defendant in a newspaper. The second have specified each note which the prisoner prosecution is for a libel contained in the had in his possession, as was done in the same article, and published in the same issue several cases cited in King v. Sutton, Cas. t. of the same newspaper às the first. The Hardw. 372. "Had that been done," said words alleged to be defamatory are not the the court, "it would hardly be claimed that same in both informations. If they were, there could have been several punishments. the case would be a plain one. But the pub- The offense, then, is one and the same oflication in both cases was one and the same fense." State v. Benham, 7 Conn. 414. The act. "The act which is the essential ele- whole matter published might have been set ment in the wrongs, slander, and libel is a forth in the information, and, if it had been, wrongful publication of language." Townsh. no one would claim that there might have Sland. & Lib. 121. The essential element of been several punishments, or that the acthe offense was the same act in both cases. quittal on the trial of that information would In Reg. v. Elrington, 9 Cox, Crim. Cas. 86, not be a bar to a subsequent information for COCKBURN, C. J., said: "It is a fundamental any defamatory matter contained in the artirule of law that out of the same facts a series cle. The law does not permit a single indiof charges shall not be preferred." Bishop vidual act to be divided, so as to make out of says: To give our constitutional provision it two distinct, indictable offenses. Drake v. the force evidently meant, and to render it State, 60 Ala. 43. Although, when a man has effectual, the same offense' must be inter-done a criminal act, the prosecutor may carve preted as equivalent to the same criminal as large an offense out of the transaction as act." 1 Bish. Crim. Law, § 1060. "The he can, yet he is not at liberty to cut but state cannot split up one crime, and prose- once. Here the essential ingredient of the ofcute it in parts. A prosecution for any part fense was the publication of an article conof a single crime bars any further prosecu-taining several alleged libels. There was tion based upon the whole or a part of the same crime." Jackson v. State, 14 Ind. 327. In State v. Lewis, 2 Hawks, 98, the first indictment was for the burglary accomplished by the actual commission of the larceny; and the conviction on it was for the larceny only. The second indictment was for the robbery, and it was held to be barred by the first. In State v. Cooper, 13 N. J. Law, 361, it was held that a defendant could not be convicted and punished for two distinct felonies growing out of the same, identical act, and when one is a necessary ingredient in the other, and the state has selected and prosecuted one to conviction. By the same act, and with the same intent, F. took a horse, wagon, and harness, the property of H. Two indictments were found against F. One for stealing the horse, the other for stealing the wagon and harness. On the trial for stealing the horse, F. pleaded not guilty, and was acquitted. This acquittal was held to be a good plea in bar against the indictment for stealing the wagon and harness. Fisher v. Com., 1 Bush. 211.

To an information charging the prisoner with having in his possession a forged banknote or bill of the Troy Bank, with intention to alter and pass the same, and to defraud the said bank of Troy, he pleaded a former information filed against him for having in his possession a bank note of the Mechanics' Bank, with the intent to alter and pass the same, and to defraud said Mechanics' Bank. Upon which last information, the plea averred, trial had been had, the prisoner had been found guilty, and judgment thereon im

but one criminal offense, and that cannot be split up and prosecuted in parts, without violating the rule of law "that a man shall not be twice vexed for one and the same cause." "There is," said PIERPOINT, C. J., in the case of State v. Smith, 43 Vt. 324, "considerable conflict in the authorities upon this subject, but we think the rule is now well established that, when one offense is a necessary element in and constitutes an essential part of another offense, and both are in fact but one transaction, a conviction or acquittal of one is a bar to the prosecution for the other." We think the court erred in not admitting the evidence offered to prove a former acquittal of the offense charged in the information in this case.

The other alleged errors are not, in our opinion, entitled to much consideration. The more serious of them are not well founded in fact. Under the circumstances, we do not feel called upon to discuss them seriatim. Judgment and order reversed.

We concur: BEATTY, C. J.; WORKS, J.; THORNTON, J.; PATERSON, J.

MCFARLAND, J. dissent. I do not think that appellant had any defense under the pleas of "once in jeopardy" and "former acquittal." If a man in one part of his newspaper says that a certain person is a thief, and, in another part, that he killed his mother, the two libels are just as distinct as are the crimes of larceny and matricide. Putting the two things under one head-line, or "article," makes no difference. If the

two libels should appear in the same issue of the newspaper, there would be an identity of time of publication; but they would be distinct in every other respect. That identity of time would no more make the two libels one than would a unity of time alone make a joint tenancy at common law.

(79 Cal. 420)

CURDY V. BERTON. (No. 11,949.) (Supreme Court of California. June 4, 1889.) WILLS-TRUSTS.

Testatrix gave by will all her money and property in France to one B., to be distributed "according to private instructions I give him." At the same time she verbally instructed B. to distribute the property among certain relations in France. B. carried out his instructions. Held, in a suit by an heir to whom nothing had been left to have it declared that B. held the property in trust for all the heirs, and for an accounting and distribution, that, though the laws of California require a will to be in writing, yet equity would charge the legatee with a constructive trust in favor of the beneficiaries intended by the testatrix, and B. properly distributed the property in accordance with the instructions given him which he at the time promised to fulfill.

Department 2. Appeal from superior court, city and county of San Francisco; JOHN HUNT, Judge.

Action by Frank Curdy against G. A. Berton, executor of Francis Berton, deceased, to declare a trust, and for an accounting. Judgment for defendant, and plaintiff appeals.

D. M. Delmas, for appellant. D. W. Douthitt and Smith, Wright & Pomeroy, for respondent.

the action, and his executor, George A. Berton, was substituted as defendant. The court gave judgment for defendant, and plaintiff appeals from the judgment, and from an or der denying a new trial.

The

Upon the main point in the case the position of appellant is, in brief, that, as the statute law of this state requires a will to be in writing, therefore, "where a testator devises property in trust to be applied to such uses as the testator has verbally specified to the devisee, the trust attempted to be created by parol fails, and the devisee takes the property in trust for the heirs of the testator." contention of respondent is, in brief, that, independent of the statute of wills, where a testator bequeaths property in trust to a legatee without specifying in the will the purposes of the trust, and at the same time communicates those purposes to the lega tee orally, or by unattested writings, and the legatee, either expressly or by silent acquiescence, promises to perform the trust, and the trust itself is not unlawful, there a court of equity will raise a constructive trust in favor of the beneficiaries intended by the testator, and will charge the legatee as a constructive trustee for them, upon the ground that the legatee will not be countenanced in perpetrating a fraud by encouraging the testator to make a bequest which would not otherwise have been made, and then refusing to execute his promise. We think that respondent's view of the law, as above stated. is correct. There are some cases which support the proposition of appellant, notably, the case of Olliffe v. Wells, 130 Mass. 221; but the weight of authority and the better reason are the other way.

MCFARLAND, J. Madeline Curdy died February 9, 1877, in Alameda county, Cal. She left a will duly executed, in which, after bequests to several persons, including the Obviously, the clear intention of the tesplaintiff herein, there occurs the following: tatrix, as expressed in the written will, was "I give in trust to Francis Berton, now Swiss that the property in question should not go consul in San Francisco, all the moneys I to plaintiff. He, however, says, in effect: possess in France, and principally my share "True, the property was not to come to me. of the Italian rentes deposited in the banking- It was given to Berton upon the understandhouse of Messrs. Hentsch, Lutscher & Co., ing, between him and the testatrix, that it of Paris, to be distributed according to the was to go to the benefit of certain other perprivate instructions I give him." Berton sons; but, as they cannot establish their was present when the will was made, and rights as beneficiaries, according to the statwrote it for the testatrix at her request; and ute of wills, Berton must be held to be my at the time of the making of the will she ver- trustee, against the intention of the testatrix. bally instructed him to distribute said prop-I stand upon what I claim to be the dry law." erty or its proceeds to certain relations and others in France, other than the plaintiff herein, and gave him an order for said property. The facts in proof show that he at least impliedly agreed to accept the trust. After her death, and before the commencement of this action, said Berton faithfully distributed said property in accordance with the said instructions of said testatrix. This action is brought by plaintiff, a brother of the deceased, and one of her heirs-at-law, to have it decreed that Berton held the legal title to said property in trust for the heirs of said deceased, for an accounting, and for the payment to him of his proportionate share of said property, with interest, profits, etc. Francis Berton died during the pendency of

Evidently, in a doubtful case, no just impulse would move a court to lean towards a proposition involving such consequences; and, as the question is an open one in this state, we are at liberty to follow those authorities, and that line of reasoning which appear to us to be most in consonance with the true principles of equity and justice.

We find in the Case of O'Hara, 95 N. Y. 403, a very full statement of the considerations which, in our opinion ought to govern the decision of the case at bar. In that case the testatrix, by her will, practically disin herited her relations in favor of strangers, giving the bulk of her estate to three lega tees, who were her lawyer, her doctor, and her priest. The will was attacked by the

heirs, on the ground of want of testamentary | tain and definite beneficiary, capable of takcapacity and undue influence. As there ing the provision intended, the law would was considerable evidence to support these fasten upon the legatee a trust for such charges, the legatees finally, to establish some beneficiary, and enforce it, if needed, on the reasonable explanation of a diversion of the ground of fraud. Equity acts, in such case, estate to strangers having influence from not because of a trust declared by the testaconfidential relations, showed that they were tor, but because of the fraud of the legatee. not to have any beneficial interest in the For him not to carry out the promise by estate, but were to devote it entirely to cer- which alone he procured the devise and betain charitable uses, according to instructions quest is to perpetrate a fraud upon the degiven them by the testatrix at the time the visor, which equity will not endure. The will was made. It appeared, however, that authorities on this point are numerous." these charitable uses were in direct violation (Here follows a long list of cases.) "The of the statute law of the state. The heirs at circumstances in these cases were varied and law then began an action in equity to estab- sometimes peculiar, but all of them either lish a trust, which, failing as to the intended recognize or enforce the general doctrine. It beneficiaries on account of illegality, should has been twice applied in our own state. result to them. The legatees then, although Brown v. Lynch, 1 Paige, 147; Williams v. intending to carry out the wishes of the tes- Fitch, 18 N. Y. 546. In the last of these tatrix, stood upon their rights under the cases the making of a bequest to the plaintiff terms of the will, which upon its face gave was prevented by an agreement of the fathem the property absolutely; denied that ther, who was next of kin, to hold in trust they had accepted any trust, or that any for the plaintiff; and the English cases were could be proven by extrinsic matter lying cited with approval, and the trust enforced. outside the will; and insisted that the prop- All along the line of discussion it was steaderty was theirs absolutely. The question ily claimed that a plain and unambiguous thus presented was, in substance, the one devise in a will could not be modified or cut presented here. The only difference is that down by extrinsic matter lying in parol, or in the O'Hara Case the instructions were in unattested papers, and that the statute of writing, while in the case at bar they were frauds and that of wills excluded the evioral. But neither in the argument of coun- dence; and all along the line it was steadily sel, nor in the opinion of the court, was there answered that the devise was untouched; any distinction made between written and that it was not at all modified; that the proporal instructions or promises. The principles erty passed under it, but the law dealt with announced applied equally to both. There the holder for his fraud, and out of the facts was no claim that the letter of instructions raised a trust ex maleficio, instead of resting came within the rule that an extraneous pa- upon one as created by the testator. The per may be incorporated into a validly exe-character of the fraud which justifies the cuted will by a direct reference to it in the equitable interference is well described in will itself. There was no reference what- Glass v. Hulbert, 102 Mass. 40. It was said ever in the will to the letter. The court in to consist in the attempt to take advantage the O'Hara Case, after stating that "the of that which has been done in performance proof is uncontradicted that the testatrix or upon the faith of the agreement, while remade the residuary devise and bequest in its pudiating its obligation under cover of the absolute and unconditional form in reliance statute.' The other parts of the opinion upon a promise of the legatees to apply the discuss the question whether, as the charifund faithfully and honorably to the charit-table uses could not be enforced, because forable uses dictated in the letter of instructions," proceeds to discuss the question whether or not one of the legatees, McCue, expressly promised to accept the trust. After We have thus referred at length to the reviewing the evidence (which was some- O'Hara Case because it contains a lucid what contradictory) on that point, the court statement of the principles which apply to says; "Where, in such case, the legatee, even the case at bar, and for the additional reason by silent acquiescence, encourages the tes- that in the opinion of the court and the briefs tatrix to make a bequest to him, to be applied of counsel nearly all the authorities bearing by him to the benefit of others, it has all the upon the question are cited. We also refer force and effect of an express promise. Wall- especially to the case of Williams v. Vreegrave v. Tebbs, 2 Kay & J. 321; Schultz' land, 32 N. J. Eq. 135, which declares the Appeal, 80 Pa. St. 405. If he does not mean doctrine above stated; and in the notes to to act in accord with the declared expecta- which are collated extracts from about 40 tion which underlies and induces the devise, different cases, all of which are confirmatory he is bound to say so, for his silent acquies- of said doctrine. See, also, Hooker v. Axcence is otherwise a fraud. Russell v. Jack-ford, 33 Mich. 453; In re Fleetwood, L. R. son, 10 Hare, 204." The court then proceeds 15 Ch. Div. 594; In re Boyes, L. R. 26 Ch. to state the principles which should deter- Div. 531; and Riordan v. Banon, 10 Ir. Eq. mine the main question under discussion, as follows: "If, therefore, in her letter of instruction the testatrix had named some cer

bidden by the statute, the legatees could be held as trustees for the heirs, but that question does not arise in the case at bar.

469. The cases cited will show that it is immaterial whether the instructions given by a testator are oral or in writing. Indeed, in

the allegations of the complaint; and, by way of counter-claim, set up an equitable title to the land in controversy. The answer discloses about this state of facts: The respondent was the owner of five separate tracts of land. She leased four of these tracts to the appellant T. W. Maples for the term of four years, in consideration of which he agreed, in the contract of leasing, that he would sow certain named quantities of the land in certain designated crops, and pay certain assessments that were expected to be made against the respondent by certain water companies for water used on the land, and pay the state and county taxes. At the same time, the respondent executed to both of the appellants, who are husband and wife, an agreement to convey to the wife the other tract of land, above mentioned, on certain conditions to be performed. It was stipulated in said last-named contract: "Provided, always, that said parties of the second part shall and do yearly, on or before the last day of each year of said period, pay to said party of the first part the sum of $584, lawful money of the United States of America, and pay and discharge, as the same becomes due and payable, all state, county, and school-district taxes that may be levied or assessed upon said land during the period they occupy the same under this agreement; and provid

the opinion of the court in the O'Hara Case, (above quoted,) where the phrase "lying in parol, or unattested papers" is employed, the word "parol" is evidently used in its usual meaning, as synonymous with "verbal" or "oral," and not in its broader meaning of "not under seal." The California cases of De Laurencel v. De Boom, 48 Cal. 581; Estate of Shillaber, 74 Cal. 144, 15 Pac. Rep. 453;| and Estate of Brooks, 54 Cal. 475,-while in harmony with the principles above stated, are not directly to the point involved in the case at bar. Our conclusion is that the court below correctly decided that Francis Berton, deceased, properly distributed the property in France, in accordance with the instructions given him by the testatrix when the will was made, and which instructions he, at that time, agreed to carry out. Of course, the case must be distinguished from one where a testator, intending to give certain property directly to a certain person, for that person's sole benefit, fails to designate in the will either the property or the person. In such a case no question of trust could arise. These views make it unnecessary to determine the other two points made by respondent: (1) That the order for the property in France, given by the testatrix to Berton at the time the will was made, constituted a transfer of the property in præsenti; and (2) that the action was barred by the statute of limitations.ed, also, that the said T. W. Maples, one of The judgment and order are aflirmed.

We concur: THORNTON, J.; SHARPSTEIN, J.

(79 Cal. 433)

WALLACE v. MAPLES et ux. (No. 12,896.) (Supreme Court of California. June 10, 1889.)

SET-OFF-VENDOR AND VENDEE-EJECTMENT.

said second parties hereto, shall, at all times, well and truly perform all the stipulations, promises, and agreements on his part contained in that certain written farming contract bearing even date with these presents, the party of the first part, and said T. W. wherein the party of the first part hereto is Maples is the party of the second part, and not otherwise." And upon said conditions 1. Plaintiff agreed to convey certain land on being complied with, and the sum of $5,840 payment to her of certain sums annually, as rent, and the taxes and assessments, and on the break paid, the respondent bound herself that she ing and sowing of a portion of the land, and the would on the 1st day of October, 1888, conpayment of a gross sum at the end of the term. vey the property to the wife by a good and It was conceded in ejectment for the land that de-sufficient deed. The appellants took possesfendants had failed to pay the water assessments. Held, that it was no excuse for such failure that the water company was indebted to one of defend ants, such claim being no set-off to the assessment against plaintiff.

2. The tender of all that was due, and payment into court, would not avail where defendants failed to break and sow the land, as required by

the contract.

3. Evidence of what defendants had instructed

their men to do if the weather changed, when the land, being dry, was not in condition to be plowed, was incompetent.

4. A question to defendants as to whether they

sion of this last-named tract of land under said agreement to convey, and this action is to recover the possession thereof. The appellants alleged in their counter-claim that they had fully complied with the terms of the said contract on their part. Whether they had or not was the question litigated in

the case.

It was found against them by the court below. A new trial was denied, and they appeal. The main contention of the appellants is that the findings of the court, had performed all the conditions of the contract was properly excluded, as calling for a conclusion. that the appellants had not complied with 5. The fact that defendants had made improve-the terms of the “farming contract," as it is ments on the land would not defeat recovery in ejectment.

In bank. Appeal from superior court, Tulare county; W. W CROSss, Judge.

A. B. Hunt and P. D. Wiggington, for appellants. A. N. Drown and Oregon Sanders, for respondent

WORKS, J. This is an action in ejectment. The defendants answered, denying

termed, in that the land was not cultivated as provided for, and the assessments for water and the taxes were not paid, are not sustained by the evidence. There was evidence sufficient to warrant the court in finding that the appellant T. W. Maples failed, without sufficient excuse, to break and sow a large part of the ground. It is conceded that the water assessments were not all paid. It appears that the appellant paid the greater