651, was a bequest of money to be applied to the purchase of water works for the inhabitants of a town: Held, à charitable use void by the Statute of Mortmain. McDonough vs. Murdock, 15 How. 367, determined the validity of legacies, for charities, to the cities of Baltimore and New Orleans; and held, inter alia, that the cities were authorized to take, by the laws of Maryland and Louisiana. In Mitford vs. Reynolds, 1 Phillips, 105, it seems to have been assumed that a devise to the "Government of Bengal" was a devise to the Governor-General as an individual. In Attorney-General vs. Heelis, 1 Sim. Stu. 67, it was said that a fund derived wholly from assessments under an Act of Parliament, and not at all from bounty, was not a charitable fund to be administered by a Court of equity. Webb vs. Neale, 5 Allen, 875, and Coggeshall vs. Pelton, 7 Johns. Ch. 292, decide that certain cities were competent to be trustees. In Inglis vs. Trustees of Sailors' Snug Harbor, 3 Peters, 99, it was held that a bequest to the Chancellor of the State of New York was equivalent to a designation of that officer by his proper name, and the trust was to be executed by him in his individual character. In Nightingale vs. Colbourne, 2 Phil. 594, that a bequest to the Chancellor of the Exchequer was a bequest to the holder of the office. It It may be admitted that one may sometimes be charged as trustee who is clothed with a power with reference to real estate, although the legal title may not be vested in him. is very possible that, in a proceeding brought by the State, the Yosemite Commissioners might be compelled to an accounting, etc., in case of misappropriation of funds. But this would not make them any the less officers, nor could it affect the question of the power of the Legislature to provide for their removal, and the appointment of other persons in their stead. The statute of April 15, 1880, like that of April 2, 1866, provides for eight Commissioners, to be appointed by the Governor, who, with that officer, are required to munage the property in accordance with the stipulation entered into by the State when the grant was accepted. Inasmuch as the Commissioners originally appointed were officers, their term of office expired four years after their appointment. (Constitution of 1849, Article 10, Section 7.; Constitution of 1879, Article 20, Section 16.) Judgment reversed and cause remanded, with direction that the Court below enter judgment as prayed for in the complaint. We concur: Sharpstein, J., Myrick, J., McKee, J. I dissent, and will hereafter file an opinion: Thornton, J. DEPARTMENT No. 2. [Filed August 13, 1880.] STEPHEN SMITH, APPELLANT, VS. W. H. SILSBY ET AL., RESPONDENTS. PROMISSORY NOTES-PRACTICE. That a note has been given through false and fraudulent representations is a good defense against one who was a party to the representations. And a party who purchases the note at its full value, but with knowledge of these false and fraudulent representations, cannot be said to be a bona fide holder. PRACTICE. The rule is well settled that the judgments of Courts below will not be interfered with where there is a substantial conflict in the evidence. Appeal from the District Court of the Tenth Judicial District, Colusa County. W. F. Goad and H. M. Albery, for appellant. MORRISON, C. J., delivered the opinion of the Court: This is an action on a promissory note, executed by respondents Blodgett and Stockwell, and W. H. Silsby, to one Tapscott, and by Tapscott assigned to the plaintiff. The execution of the note is admitted, but the answer sets up fraud in procuring its execution. Silsby & Co. were indebted to Tapscott, and through the joint agency and influence of debtors and creditors, the defendants Blodgett and Stockwell were induced to sign the note as sureties for the principal debtors-Silsby & Co. It appears from the evidence that the note sued on was made for the sole use and benefit of Silsby & Co., they receiving the entire consideration, and that the defendants Stockwell and Blodgett signed the note as sureties only; and that to secure them against loss, Silsby & Co. executed to them a second mortgage on certain lands in Colusa County. The answer avers that Tapscott and Silsby falsely and fraudulently represented to Stockwell and Blodgett that the land upon which they took a second mortgage as security. was incumbered to the amount of only nine dollars and fifty cents per acre, and that Tapscott and Silsby well knew, at the time they made such false and fraudulent representations, that it was mortgaged to the amount of twenty-two dollars per acre, its full value. The Court found that fraud ulent representations of the character set up in the answer were made by Tapscott and Silsby; and in our opinion the evidence in the case fully justified such finding. It results, therefore, that the defendants had a good defense to the note in the hands of Tapscott. It is claimed, however, that the plaintiff Smith was a bona fide holder of the note for value, and that he took it by assignment before its maturity. As to this issue, the Court also found in favor of defendants. We have carefully examined the evidence in the case, and find it very conflicting. The statements of Tapscott are in many material particulars in conflict with the evidence of the plaintiff Smith as to the date and circumstances connected with the assignment and possession of the note; and in addition to this we find that Tapscott stated, in the presence of the witness Coover and others, that he had assigned the note to one Frank Goad, and also that the plaintiff Smith stated, in the presence and hearing of the witness Oates, that "he had nothing to do with the note, and did not want anything to do with it." There are other circumstances in the case of a character tending to impeach the bona fides of the assignment of the note in question. The plaintiff Smith and Tapscott, the payee of the note, were closely related by affinity; the note was in the possession and under the control of Tapscott long after the pretended assignment; the note was endorsed by Tapscott, and his signature was afterwards erased. Tapscott handed the note to the notary Robinson for protest without mentioning the name of Smith (a fact sworn to by Robinson, but denied by Tapscott); and we have the still more significant fact, testified to by the plaintiff himself, that when Tapscott told him he had the note, Smith remarked: "You will be fooled with that note, the same as you were with those other fellows' notes. These big farmers are bursting up all the time." Why did he purchase the note and pay full value therefor, as he pretends to have done, under such circumstances? It is not our purpose or our duty herein to go into a full analysis of the evidence for the purpose of determining upon which side of the case there was a preponderance of evidence; for it is sufficient for us to know that there was a substantial conflict in the evidence. The rule is well settled by numerous cases that this Court will not interfere with the judgment of the Court below in cases in which there was a substantial conflict in the evidence. We find in the transcript sufficient evidence to justify the conclusions arrived at by the learned Judge who tried the case, that the note sued on was obtained by fraud, and that the plaintiff was not a bona fide holder for value. Judgment and order affirmed. We concur: Myrick, J., Sharpstein, J. IN BANK. [Filed August 12, 1880.] FRITZ ECK, APPELLANT, VS. FRANZ HOFFMANN ET AL., RESPONDENTS. ATTACHMENT. To authorize the issuance of an attachment upon a contract not made in this State, there must be an express stipulation that it shall be paid in this State. Appeal from the District Court of the Twelfth Judicial District, San Francisco County. T. H. Reardon, for appellant. SHARPSTEIN, J., delivered the opinion of the Court: This is an action upon three several dishonored bills of exchange drawn by one of the defendants upon the other in favor of the plaintiff. The drawee defendant accepted the bills before their maturity. At that time all the parties resided in Germany, and the bills were drawn and payable there. After the acceptance, and before the maturity of the bills, both of the defendants left Germany and came to the United States under an assumed name, which they adhered to until the commencement of this action. They arrived in New York in the month of July, 1877, and came from there to San Francisco the same month, where they remained until the following October, when they purchased a farm in Sonoma County, in this State, and immediately went to live upon it. They remained upon it until the commencement of this action, a period of about eight months, although they have seemed desirous much of the time to sell it. At the time of the issuance of the summons, the plaintiff sued out a writ of attachment in this action upon an affidavit which stated that the bills sued on were payable in this State, and that the defendants were non-residents thereof. The affidavit did not state that there was any express stipulation that the bills should be paid in this State, nor did it deny that the defendants came and remained here as above stated. The theory was that, although the bills were drawn at one place in Germany and payable in the same country, on their dishonor they became payable wherever the defendants might be found. That is true in a general sense, but that is not the sense in which the phrase "is made or is payable in this State" is used in the statute. If a contract is not made in this State, there must be an express stipulation that it shall be paid in this State to authorize the issuance of an attachment in an action upon it. That was settled more than a quarter of a century ago in Dulton vs. Shelton, 3 Cal. 206; and although there have been several revisions of the statute since, and changes have been made in the very sections containing the clauses construed in that case, those clauses have remained unchanged. Upon well settled principles the Court must regard the construction given to the statute in that case as a correct interpretation of the intention of the Legislature. Otherwise that body would have changed the statute in that respect. The only other question we have to consider is, whether the defendants were residents or non-residents of this State at the time of the commencement of this action. And conceding all that is claimed by the plaintiff, that they left Germany and came to the United States as absconding debtors, that the debt sued upon was fraudulently contracted, that the defendants assumed a fictitious name for the purpose of more successfully eluding the vigilance of their creditors, that they have advertised their farm for sale, and have said that in the event of their selling it they would leave the United States, we fail to perceive that the non-residence of the defendants is established. The rules by which this question must be determined are the same whether the persons whose residence is disputed are honest or dishonest men. We are aware of the impossibility of reconciling the decisions upon what does or does not constitute a residence; but we have never met with any case, nor has any been cited, in which it has ever been held that acts similar to those of the defendants in this case were not sufficient to establish a residence. If the defendants had come to this State free of debt, we do not think that the question of their residence would admit of the slightest doubt. And the question whether they did so come or not is in our opinion wholly immaterial. We therefore think that the order of the Court dissolving the attachment should be affirmed. The question of the correctness of the order of the Court giving leave to the plaintiff to amend his affidavit for |