We find no error in the proceedings below, substantially affecting the rights of the defendants, and the judgment and order must be affirmed. So ordered. We concur: Ross, J., McKinstry, J. DEPARTMENT No. 2. [Filed December 20, 1880.] SAMUEL WILD, RESPONDENT, VS. JOHN A. ODELL, APPELLANT. MALICIOUS PROSECUTION-CAUSING ARREST FOR ALLEGED GRAND LARCENYACTUAL MALICE. When A finding B's cattle in his garden, drove them into his corral and sent word to B to come, pay damages and take them away, but B, instead of doing so replied Pay hell! I'll have him arrested;" and then upon a representation to his attorney that A had his cattle secreted, was advised to have A arrested for grand larceny, which he did: Held, that the circumstances were amply sufficient to show actual malice and want of probable cause for the arrest, and to justify a judgment for malicious prosecution. MALICIOUS PROSECUTION-EXCUSE OF ACTING UNDER ADVICE OF COUNSEL. In an action for malicious prosecution, where defendant pleaded that he had acted, in causing the arrest, under the advice of counsel: Held, that such a defense was entirely overcome by evidence that he did not state the facts to counsel. Appeal from the District Court of the Sixth Judicial District, Sacramento County. E. M. Martin, for appellant. Taylor & Crossett, for respondent. SHARPSTEIN, J., delivered the opinion of the Court: The plaintiff in his complaint alleges that the defendant maliciously and without probable cause procured the arrest and imprisonment of the plaintiff upon a charge of grand larceny. The defense is that the prosecution was not malicious, but was instituted by the defendant for good and just motives. It appears from the statement on motion for a new trial that the plaintiff, Wild, testified on the trial of this case that about 3 A. M., October 20, 1878, he found two cows in his garden eating vegetables and destroying trees, and drove them into his corral. That in the morning he tried to find out who owned them. That about 9 A. M. of the same day, one Morgan came to plaintiff's house in search of stray cows. That plaintiff told Morgan the foregoing facts, and described the cows to him. That Morgan said that they were defendant's cows, and that he (Morgan) was looking for them. That plaintiff "told him to go to Odell (defendant) and tell him to come over and see the damage the cows had done, and to pay the damage and take the cows away." Morgan was called as a witness by the plaintiff, and corroborates him fully in this statement of what occurred between plaintiff and Morgan, and then adds: "I went to Odell (defendant) and told him that Wild had taken up his cows for trespass and wanted him to come and see the damages, and take them away, and pay the damages, and Odell said: 'Pay hell! I'll go down town and have him arrested.' These facts are not contradicted by the defendant, but he testifies in his own behalf as follows: "I am defendant. I had plaintiff arrested. I missed my cows and I heard the plaintiff had secreted them and I could not find them. I went to O. C. Lewis, an attorney at law, and told him that I had heard that the plaintiff had my cows, and that he had secreted them, and I could not find them. Lewis said I had better have plaintiff arrested for larceny, and Lewis made out the complaint and I swore to it. At the time I had the complaint made I thought the plaintiff herein was guilty; after I learned all the facts I ordered the dismissal. I acted under advice of my attorney. I thought he knew." The attorney to whom defendant refers was sworn and stated that he was told by the defendant that he had lost his cows and had heard that the plaintiff had them secreted, and that he, the witness, told plaintiff "if that was so, it was grand larceny," and made out a complaint and had plaintiff arrested; and that after learning the facts he, the witness, had the case dismissed. We These facts were submitted to a jury which brought in a verdict in favor of the plaintiff. The defendant on his motion for a new trial relies entirely upon the point that the evidence is insufficient to justify the verdict. And specifies that neither malice nor want of probable cause is shown; and it is shown that the defendant acted under the advice of counsel. differ with appellant's counsel upon each of these propositions. There is uncontradicted evidence tending to prove actual malice, and want of probable cause, and the defense that defendant consulted counsel and acted under his advice is entirely overcome by evidence that he, defendant, did not state the facts of his case to his counsel. Judgment and order denying the motion for a new trial affirmed. We concur: Thornton, J., Myrick, J. DEPARTMENT No. 2. [Filed December 17, 1880.] RUDOLPH WITTENBROCK, APPELLANT, VS. JOHN BELLMER ET AL., RESPONDENTS. AUTHORITY GIVEN PRESIDENT OF A CORPORATION MUST BE STRICTLY PURSUED. An authorization by the trustees to the president of a building and loan association to accept payment of a note and mortgage from a certain person, does not authorize the president to assign them to some other person. ACTION BY ASSIGNEE ON VOID ASSIGNMENT NOT HELPED BY SUBSEQUENT RATIFICATION. Where the president of a corporation without authority assigned a note and mortgage belonging to the corporation and the assignee commenced suit thereon, and afterwards the corporation ratified the assignment Held, that the assignee could not maintain the suit on the cause of action subsequently acquired. PLAINTIFF MUST BE ENTITLED TO SUE AT COMMENCEMENT OF ACTION. If a party has no cause of action at the commencement of a suit, he cannot maintain it by filing a supplemental complaint founded upon matters which have subsequently occurred. A NEW TRIAL SHOULD NOT BE GRANTED AGAINST ONE NOT A PARTY TO THE MOTION. Where, in an action to foreclose a mortgage against the mortgagor, a third person, who had been made a party defendant, appeared on his own behalf and filed an answer to the mortgagor's crosscomplaint, and the judgment was against the mortgagor but in favor of this person, and afterwards on a motion by the mortgagor, addressed only "to the plaintiff and his attorneys," a new trial was granted: Held, that the order, in so far as it granted a new trial against the third person, was erroneous. Appeal from the District Court of the Sixth Judicial District, Sacramento County. L. S. Taylor and Haymond & Allen, for appellant. SHARPSTEIN, J., delivered the opinion of the Court: This is an appeal from an order granting a new trial. The action was brought to foreclose a mortgage executed by two of the defendants to the Germania Building and Loan Association to secure the payment of $3,000 and interest, according to the provisions of a promissory note of the same date. The plaintiff alleges that on the ninth day of July, 1878, the association assigned and transferred the note and mortgage to him. This allegation is denied by the answer of Bellmer. The Court found that the allegation of the plaintiff was true. One of the grounds upon which the motion for a new trial was based is that the evidence is insufficient to justify the findings and decision of the Court in this particular. If that be so, or if there is any evidence to justify a finding to the contrary, the order granting a new trial cannot be disturbed. The evidence shows that on the day when the assignment is alleged to have been made, the President of the Association attempted to assign the note and mortgage to the plaintiff, and for that purpose executed an instrument which is sufficient in form to effect that object. His authority to assign or transfer those instruments is denied. And it appears that up to the time of the alleged assignment the trustees of the association had only authorized him to accept payment of the note and mortgage from one William Kleinsorge. This clearly would not authorize an assignment of them to some other person; and we do not understand that it is claimed that it did. But after this action had been pending for several months the Trustees of the Association attempted to ratify the previous action of its President in the premises, and it is claimed that such ratification related back to the the date of the act ratified, and was equivalent to an original authority, according to the maxim that omnis retihabitio mandate aequiparatur. That such was its effect as between the Association, its President and the assignee, we do not doubt. And yet we are unable to discover any principle upon which the defendant's rights could be affected by such ratification. Conceding that at the date of the commencement of the action the plaintiff had no cause of action, it does not seem to us that he could maintain the action upon a cause of action subsequently acquired, against the defendant. The case was at issue, and if it had been tried at any time prior to the date of the ratification, the judgment must have been for the defendant. Could a stranger to the action step in at any time before the trial and deprive the defendant of that right by placing in the hands of his adversary an instrument upon which he might have maintained an action? Or one which he alleged that he had, but in fact did not have, when he commenced the action? Clearly not. If a party has no cause of action at the time of the institution of his action, he cannot maintain it by filing a supplemental complaint founded upon matters which have subsequently occurred. It is only when the plaintiff is at the time of the commencement of his action, entitled to some relief, that he can avail himself of facts which afterwards occur, by setting them out in a supplemental complaint. In this case the plaintiff could not have availed himself of the facts occurring after the commencement of his action either by an amendment to his original complaint, or by filing a supplemental complaint, and a fortiori he could not without doing either. Upon this ground the order granting a new trial as to the defendant Bellmer must be affirmed. But a judgment was rendered in favor of one William Kleinsorge who was made a party to the action, filed an answer to the defendant's cross-complaint, and now appeals from the order which he insists should be reversed as to him on the ground that he was not made a party to the motion. The notice of the motion was addressed to "the plaintiff and his attorneys." and was served upon the attorneys of the plaintiff alone. It was not served upon Kleinsorge who appeared in the action in person. Under such circumstances, he could not be affected by the order granting a new trial, and as to him it must be reversed. Order affirmed as to the plaintiff and defendants in the action, and reversed as to William Kleinsorge. We concur: Myrick, J., Thornton, J. DEPARTMENT No. 2. [Filed December 20, 1880.] S. N. SWEENEY, APPELLANT, VS. CENTRAL PACIFIC RAILROAD CO., RESPONDENT. RAILROAD COMPANY NOT RESPONSIBLE FOR DEATH OF ENGINEER CAUSED BY DANGER OF WHICH HE WAS FULLY AWARE. Where a railroad engineer who was well acquainted with the road and knew that it was unfenced at a certain curve, in rapidly running such curve, ran over stray cattle, whereby the train was thrown from the track and the engineer killed: Held, that the railroad company was not responsible for his death. Appeal from the District Court of the Fourteenth Judicial District, Placer County. J. M. Fulweiler and C. A. Tuttle, for appellant. MYRICK, J., delivered the opinion of the Court: Plaintiff's husband was engineer and conductor of a construction train of defendant, and as such had been for some time, and was at the time of the occurrence herein spoken of, running the train on the road of defendant between Newcastle and New England Mills. The train had taken a load of gravel up the road, and having unloaded, was back |