the fact to be entered in its journal; and the undertaking of bail or the money deposited in lieu thereof, as the case may be, is thereupon forfeited." [5] In respect to forfeiture, the allegation of the complaint is "that on the 23d day of June, 1903, an order was made by the Honorable A. L. Frazer forfeiting said bond to the state of Oregon." The date alleged, it will be observed, is nearly four years earlier than the commencement of proceedings in the municipal court. This may be a clerical error; but, in the absence of any suggestion of a diminution of the record, it is binding upon the court as an allegation. MCBRIDE, J.. [1] The power to grant new trials is in its inception a common-law right. 3 Blackstone (Lewis' Ed.) § 387. Courts of general common-law jurisdiction have inherent power to grant new trials. This power is not taken away by statute, unless the intent to do so is clear. 29 Cyc. 722, and cases there cited. Statutes limiting this power are in derogation of the common law, and such statutes should be strictly construed. Furgeson v. Jones, 17 Or. 204, 20 Pac. 842, 3 L. R. A. 620, 11 Am. St. Rep. 808. [2] In our opinion, chapter 8 of title 2, L O. L, has reference exclusively to motions for new trial made by the parties, and was not intended to restrict the common-law pow [6] The averment, however, is still further defective, in that it states that the order of forfeiture was made by Judge Frazer. “A judge may exercise out of court all the powers expressly conferred upon a judge as contradistinguished from a court and not other of the courts in order to correct their own erwise." Section 958, L. O. L. A judge, as distinguished from a court, is not authorized to declare a forfeiture, as by section 1668, L. O. L, that must be done by the court, and the fact authorizing the declaration of a forfeiture must be entered upon the journal. For all that appears, the cause may never have been called for judgment or any situation have arisen where the presence of the defendant Reed in court might be lawfully required. [7] The history and identity of the proceedings from the beginning to the giving of the undertaking should be accurately traced in the pleading, and the order of forfeiture should be shown by the journal of the circuit court. The cases of Clifford v. Marston, 14 Or. 426, 13 Pac. 62, and Malheur County v. Carter, 52 Or. 621, 98 Pac. 489, are instructive upon the principles involved in this case. The complaint is insufficient as against the objections urged; but, as it is possible that the pleading may be amended, the cause is reversed and remanded to the court below for further proceedings not inconsistent with this opinion. (60 Or. 493) DE VALL v. DE VALL. (Supreme Court of Oregon. Jan, 23, 1912.) 1. NEW TRIAL (§ 1*)—POWER TO GRANT. Courts of general common-law jurisdiction have inherent power to grant new trials; and the power will not be deemed to have been taken away by statute, unless intent to do so is clear. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 1-3; Dec. Dig. § 1.*] 2. NEW TRIAL (§ 1*)-POWER TO GRANT. L. O. L. § 173-178, authorizing motions for new trial, has reference solely to motions for new trial, and does not restrict the common-law power of courts to correct their own mistakes. [Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 1-3; Dec. Dig. § 1.*] mistakes. The motion practically takes the (161 Cal. 632) Ex parte LA DUE. (Cr. 1,658.) (Supreme Court of California. Dec. 20, 1911.) 1. ARREST ( 19*) — CIVIL ACTION—Order— JURISDICTION. An order of arrest in a civil action may be issued by a justice of the peace when the defendant has been guilty of fraud in contracting the debt or incurring the obligation for which the action is brought, as provided by Code Civ. Proc. § 861, subd. 3, and the party applying for the order proves to the satisfaction of the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes justice, on his own affidavit or that of another, | cannot consider conflicting evidence as to the the facts necessary to authorize the order, as merits of the case. prescribed by section 862. [Ed. Note. For other cases, see Habeas Cor[Ed. Note. For other cases, see Arrest, Cent. pus, Cent. Dig. §§ 81, 83, 87-96; Dec. Dig. § Dig. § 48; Dec. Dig. § 19.*] 92.*] 2. ARREST ( 35*)-CIVIL ACTION-PROCEED INGS. That an order of arrest may be issued in a civil action, there must be a complaint on file, showing that plaintiff has a cause of action against the defendant on a debt or obligation, in the contracting or incurring of which the fraud has been committed. [Ed. Note. For other cases, see Arrest, Cent. Dig. §§ 84-87; Dec. Dig. § 35.*] 3. ARREST ( 35*) - DEBT FRAUDULENTLY CONTRACTED-COMPLAINT-AFFIDAVIT. A complaint alleged that A. paid defendant $175 in money, which was plaintiff's property; that defendant received it in a fiduciary capacity, and did not deliver it to plaintiff, but, without plaintiff's consent, converted it to his own use, and, on demand, refused and failed to deliver the same, or any part thereof, to plaintiff. An affidavit for an order of arrest showed that defendant received the money as trustee for plaintiff, and, without plaintiff's consent, converted the same, and refused to deliver it. Held, that such allegations were sufficient to show that the debt was fraudulently contracted, and to authorize an order of arrest as provided by Code Civ. Proc. §§ 861-865. [Ed. Note.-For other cases, see Arrest, Cent. Dig. §§ 84-87; Dec. Dig. § 35.*] In Bank. Application by Stanley S. La Due for writ of habeas corpus. Writ denied, and petitioner remanded. See, also, 117 Pac. 586. T. E. De la Matyr and Hugh J. Crawford, for petitioner. F. E. Davis and Paul W. Schenck, for respondent. SHAW, J. The petitioner, being in the custody of the sheriff of Los Angeles county upon two orders of arrest made by the justice's court of said county in civil actions pending in said court, obtained from this court a writ of habeas corpus to inquire into the validity of said orders. He claims that the justice's court was without jurisdiction to make said orders. [1, 2] An order of arrest in a civil action may be issued by a justice of the peace in the manner and upon the conditions prescribed in sections 861 to 865 of the Code of fendant has been guilty of a fraud in conCivil Procedure. It may issue "when the de 4. HABEAS CORPUS (§ 1*)-SCOPE OF WRIT-tracting the debt or incurring the obligation JURISDICTION. Where a complaint and affidavit for an order of arrest in a civil action was sufficient to confer jurisdiction on the justice to make the order, defendant could not secure his release on habeas corpus; that writ being unavailable to serve the office of a demurrer or appeal. for which the action was brought." Section 861, subd. 3. The party applying for the order must prove to the satisfaction of the justice, upon his own affidavit or that of another person, the facts necessary to authorize the order. Section 862. There must, of [Ed. Note. For other cases, see Habeas Cor- course, be on file a complaint showing that pus, Cent. Dig. § 1; Dec. Dig. § 1.*] plaintiff has a cause of action against the 5. HABEAS CORPUS (§ 92*) — CIVIL ACTION-defendant upon the debt or obligation, in the COMPLAINT AND AFFIDAVIT-CONCLUSIVE- contracting or incurring of which the fraud NESS. Where a complaint to recover a debt and an affidavit for an order of arrest alleged positively that the debt was fraudulently contracted, importing that affiants had personal knowledge of the facts stated, such positive statement, under oath, was evidence which the justice might consider and accept as proof of the facts, on application for the order of arrest; and hence another court, on habeas corpus, could not revise the justice's determination, on the theory that the facts were such that the affidavits must have been made on information and belief; it not being certain that the affiants could not have had positive knowledge thereof. [Ed. Note.-For other cases, see Habeas Corpus, Cent.Dig. §§ 81, 83, 87–96; Dec.Dig. § 92.*] 6. ARREST (§ 35*) - CIVIL ACTION - DEBT FRAUDULENTLY CONTRACTED-COMPLAINTAFFIDAVIT. Where a complaint and affidavit for warrant of arrest in a civil action alleged that defendant had received plaintiff's money as plaintiff's trustee, and, on demand, had failed and refused to deliver the same, it sufficiently alleged that the sum was due on demand, so as to support an order of arrest. [Ed. Note. For other cases, see Arrest, Cent. Dig. 88 84-87; Dec. Dig. § 35.*] 7. HABEAS CORPUS (§ 92*)-HEARING-CON FLICTING EVIDENCE. On habeas corpus to secure petitioner's release from arrest in a civil action, the court was committed. The two actions here involved being in all respects alike, a statement of one will be sufficient. In the first case, the complaint alleged that on November 10, 1910, one Allen paid into the hands of the defendant $175, in money, which was the property of the plaintiff, and that defendant received it in a fiduciary capacity; that defendant did not deliver it to plaintiff, but, without plaintiff's consent wrongfully converted it to his own use, and, upon demand, fails and refuses to deliver the same, or any part thereof, to the plaintiff. In support of the application for the order of arrest, the plaintiff filed his own affidavit, stating that on November 10, 1910, Allen paid into defendant's hands $175, the property of plaintiff, to be turned over to plaintiff; that defendant represented plaintiff in a fiduciary capacity in receiving said money; that de fendant, without cause or legal right, converted the same to his own use, without plaintiff's consent, and that plaintiff had demanded the same of defendant, who thereupon refused to deliver the same. [3, 4] The complaint may not be as full and specific as might be necessary to make a •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes [6, 7] It is further insisted that the complaint and affidavit does not show that the money sued for was then due. It is not so alleged in terms, but the facts stated show that the money was due on demand. The demand and the refusal are also set forth. From this the legal conclusion follows that it was then due. Legal conclusions need not be, and should not be, averred, either in pleadings or affidavits. There were opposing affidavits, contradicting the essential facts above stated. No authority is necessary for the proposition that we cannot consider conflicting evidence upon habeas corpus proceedings instituted to test the validity of an order made upon such evidence, produced in another court having jurisdiction of the cause. Whatever may be the facts upon the merits of the case, they are beyond the reach of any inquiry which we can make in this proceeding. good pleading in the superior court, if at-acting within his jurisdiction in accepting it tacked by a demurrer for uncertainty. But as sufficient, and his order made thereon is it is sufficient as a statement of a cause of not void. action to recover money, under the liberal rules applicable to pleadings in a justice's court. The affidavit, which is the foundation of the order, is more specific and certain. It shows that defendant received the money as trustee of plaintiff; that his specific duty as trustee was to deliver it to plaintiff; that, instead of doing so, he converted it to his own use, and, upon demand, had refused to make delivery to plaintiff. Upon these facts, he was personally liable to plaintiff for the sum so converted, and his conduct in thus violating his trust was fraudulent. This was sufficient to make a case, within the terms of the statute, and, as the justice thereupon made the order of arrest, we must presume that the facts were proved to his satisfaction. Nothing more is required to confer jurisdiction to make such an order. Habeas corpus proceedings cannot be made to serve the office of a demurrer or appeal. If jurisdiction is shown, in cases like the present, the inquiry into the cause of the custody ceases, and the petitioner must be remanded to abide the orders of the court in which the jurisdiction reposes. Ex parte Williams, 121 Cal. 330, 53 Pac. 706; Ex parte Ah Men, 77 Cal. 201, 19 Pac. 380, 11 Am. St. Rep. 263. The petitioner is remanded to the custody of the sheriff of Los Angeles county. We concur: SLOSS, J.; HENSHAW, J.; ANGELLOTTI, J. et al. (L. A. 2,730.) (161 Cal. 621) (Supreme Court of California. Dec. 20, 1911.) 1. CORPORATIONS (§ 298*)-BOARD OF DIREC TORS MEETINGS LEGALITY-OFFICE." Where a majority of the board of directors of a corporation met pursuant to a regular call for a special meeting of the board, and were unable to obtain access to the office in the hallway of the building just outside of of the corporation, and convened as a board the office, and then adjourned the meeting to a designated date, the meeting of the board was did not meet at the office, within Civ. Code, § valid as against the objection that the board 319, requiring the holding of meetings of boards of directors at the corporation's office. [5] There is nothing in the record which supports the petitioner's claim that the facts SEAL OF GOLD MINING CO. v. SLATER stated in the affidavit are made on information and belief, and therefore, as he claims, not sufficient as a basis for the order. The statements are in positive language, which imports the affiants' personal knowledge of the facts stated. Petitioner argues that these facts are of such a nature that the plaintiff could not have had personal knowledge thereof; and hence that this court must declare them to be made on information and belief, notwithstanding the positive language used in the affidavit. Whether or not any court would be justified in thus disregarding positive averments as to facts of this character is a question we need not consider. At all events, it is beyond the power of this. court in this case to do such a thing. It would be a usurpation by this court of the powers and functions of the court to which the evidence was addressed. It cannot be said that the facts stated could not have been within the personal knowledge of the plaintiff. It is clearly possible that he may have been present at the time the money was delivered, so that he could hear and see what took place. The positive statement, under oath, was evidence which the justice had power to consider, weigh, and accept as proof of the facts stated. Code Civ. Proc. §§ 2002, 1844, 1845. Another court cannot, in habeas corpus, revise the determination of the justice's court as to the credibility and weight of such evidence. The justice was 298.* [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1292-1319; Dec. Dig. § For other definitions, see Words and Phrases, vol. 6, pp. 4921-4931; vol. 8, p. 7736.] 2. CORPORATIONS (§ 292*)-Officers-RESIGNATION-PARTICIPATION IN MEETING. A director of a corporation who in a writhis resignation to take effect on acceptance ing addressed to the board of directors tenders may participate in meetings of the board until his resignation is accepted. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1255-1257; Dec. Dig. § 292.*] 3. CORPORATIONS (§ 298*)-MEETINGS OF OFFICERS FRAUD. Where a meeting of the board of directors of a corporation had been regularly called and all the directors had been duly notified, the mere fact that a director told another director that he would not attend the meeting, and that in consequence thereof the latter director be •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes lieving that a quorum would not be present remained away, did not amount to fraud for a majority of the board, including the director who had stated that he would be absent, to meet pursuant to the call and transact proper business. [Ed. Note.-For other cases, see Corporations, Cent. Dig. 88 1292-1319; Dec. Dig. & 298.*] 4. CORPORATIONS (§ 298*)-BOARD OF DIRECTORS MEETINGS NOTICE. Under the by-laws of a corporation authorizing a quorum of the board of directors to adjourn a meeting from time to time, and providing that all the acts regularly done at meetings regularly adjourned from meetings called shall be valid, as if done at meetings regularly called and held, a director receiving notice of a meeting is not entitled to notice of an adjournment of the meeting, but he is bound to know that a quorum may adjourn, and that business may be transacted at the adjourned meeting. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1292-1319; Dec. Dig. & 298.*] 5. CORPORATIONS (§ 298*)-Board oF DIRECTORS MEETINGS-TRANSACTION OF BUSINESS. Where a majority of the board of directors of a corporation met pursuant to a regular call and notice for a meeting of the board and adjourned to a subsequent time, the board at the subsequent time could transact any business proper for the board to transact at a regularly called meeting. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1292-1319; Dec. Dig. & 298.*] 6. CORPORATIONS (§ 298*)-BOARD OF DIRECTORS MEETINGS SPECIAL MEETINGS-NOTICE. Under Civ. Code, § 320, providing for the calling of meetings by special notice, a notice of a special meeting of the board of directors of a corporation need not specify the purpose of the meeting, but a notice informing the directors that a special meeting is called, specifying the time and place, is sufficient for the transaction of any proper business. [Ed. Note. For other cases, see Corporations, Cent. Dig. 88 1292-1319; Dec. Dig. § 298.*] 7. CORPORATIONS (§ 295*)-OFFICERS-RESIGNATION-FILLING VACANCY. Under Civ. Code, § 305, authorizing the board of directors of a corporation to fill a vacancy in the office of a director, etc., the board of directors of a corporation may accept the resignation of a director and elect his succes sor. [Ed. Note. For other cases, see Corporations, Cent. Dig. § 1206; Dec. Dig. § 295.*] 9. CORPORATIONS ( 398*)-BOARD OF DIRECTORS-QUALIFICATIONS TRANSFER OF COB PORATE STOCK-EFFECT. The acts of a director of a corporation who continues to act as such, notwithstanding the transfer of his stock, are valid as to third persons dealing with the corporation, and his title to office cannot be impeached collaterally. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1592-1594; Dec. Dig. 398.*] 10. CORPORATIONS (§ 298*) - MEETINGS OF BOARD OF DIRECTORS-NOTICE. Where the time of meeting of a board of directors of a corporation is prescribed by the by-laws of the corporation, it is not necessary to notify directors of the time of meeting; but directors receiving due notice of the changed location in the same city of the office of the corporation have due notice of the time and place of meetings of the board, and acts taken by the board at such a meeting are valid if within the power of the board. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1292-1319; Dec. Dig. § 298.*] 11. WORDS AND PHRASES "CONVEYED" "CONVEYANCE." The term "conveyed" or "conveyance" in its strict legal sense imports a transfer of legal title to land, but it is also habitually used to define any transfer of title legal or equitable, and the meaning of the term in any particular case must be ascertained from the context. [Ed. Note.-For other definitions, see Words and Phrases, vol. 2, pp. 1570-1584; vol. 8, pp. 7618, 7619.] 12. CORPORATIONS ( 409*)-BY-LAWS-CON"CONVEYANCE" - LEASE OF STRUCTION PROPERTY. -- The word "conveyance" in the by-laws of a corporation, declaring that no mortgage or conveyance shall be made without the consent of the holders of at least two-thirds of the stock of the corporation, is used in its more restricted sense as importing an act whereby the legal and equitable title to real property of the corporation is transferred, and a lease of a part of the property of the corporation for a term of five years is not a conveyance, and the board of directors may execute such a lease under their power to manage and control the affairs and property of the corporation. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1620-1622; Dec. Dig. § 409.*] Department 1. Appeal from Superior Court, Los Angeles County; Frederick W. Houser, Judge. Action by the Seal of Gold Mining Company against H. B. Slater and others. From 8. CORPORATIONS (§ 297*)-BOARD OF DIREC- | a judgment for defendants, plaintiff appeals. TORS-POWERS-LOCATION AND REMOVAL OF OFFICE OF CORPORATION-OFFICE." Under Civ. Code, & 305, authorizing the board of directors of a corporation to exercise corporate powers and control the business and property of the corporation, the board of directors may remove the office of the corporation from one location to another in the same city, notwithstanding section 321a, declaring that the principal place of business of a corporation can be changed only with the consent of the holders of two-thirds of the stock, though the word "office" is deemed equivalent to the words "principal place of business." Affirmed. M. E. C. Munday, Chas. S. McKelvey, Curtis & McNab, Ward Chapman, and McNutt, McNutt & Hannon, for appellant. Purington & Adair, for respondents. SLOSS, J. The plaintiff, claiming to be the owner and entitled to the possession of certain mining claims in San Bernardino county, brought this action, alleging in its complaint that the defendants had entered [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1274-1291; Dec. Dig. into the possession of said premises, ousting plaintiff therefrom, had destroyed buildings 297.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes on said properties, and extracted gold-bearing ores therefrom. It was alleged that the defendants were still in possession, and would, unless restrained, continue to extract ore, and would destroy the value of the property. The prayer of the complaint was for damages and for a temporary injunction restraining waste. The defendant Slater answered, averring that neither of his code fendants claimed any interest in the property. For himself he admitted plaintiff's ownership of the property, but asserted that he was in possession and entitled to possession by virtue of a lease of the mining claims, made by the plaintiff corporation to him. The destruction of buildings was denied, and the taking of ore was justified under the lease. The findings of the court were in support of the allegations and denials of the answer, and judgment in favor of defendants followed. The plaintiff appeals from the judgment and from an order denying its motion for a new trial. The one question in the case is whether the lease, which was the sole foundation for Slater's claim of a right to enter and work the property, was valid and binding upon the plaintiff. The Seal of Gold Mining Company was a California corporation. It had a board of seven directors. Prior to September 18, 1908, H. A. Landwehr was president of the corporation and one of its directors, and the other directors were George H. Moore, Edgar Sharp, C. F. Huse, Alex Strachan, A. N. Younglove, and P. T. Evans. The office of the corporation was room 306 of the Douglas building, in the city of Los Angeles. A special meeting of the board of directors was regularly called for the 18th day of September, 1908. At the time set four of the above-named persons, to wit, Sharp, Strachan, Younglove, and Evans, came to the Douglas building, but were unable to obtain access to room 306, the office of the corporation; the door to said room, which was also the office of Landwehr, being locked. They convened as a board in the hall of the building, "just outside of the office of the company," and adjourned the meeting to the 21st day of September, 1908, at 11 o'clock a. m. The same four met at the office of the company, at the time to which the meeting of the 18th had been adjourned, and after accepting the resignation of George H. Moore as director elected W. L. Peters to succeed him. Peters, who was present, at once took his seat as director. A resolution was then adopted removing Landwehr from the office of president and electing Strachan in his place. A further resolution, moving the office of the company to room 459 of the Pacific Electric building, was adopted. The by-laws of the corporation provided for a regular meeting of the board of directors, without notice, on the 10th of each month, at noon. On October 10th, at noon, Younglove, Evans, Strachan, and Peters met as a board of directors at room 459 of the 120 P.-2 Pacific Electric building, and adopted a resolution authorizing the president and secretary to execute and deliver to Slater the lease under which he claims, and the instrument was accordingly executed. The various objections to this transaction urged by appellant are based in part on the facts stated above, and in part on further facts that will be set forth in discussing the particular points upon which they bear. While the lease in question was authorized at the regular meeting of October 10th, the validity of the acts done on that occasion depends upon the regularity of the two prior meetings. The meeting of October 10th was participated in by a director elected at, and was held at a place fixed by, the meeting of September 21st, which was itself an adjournment of the meeting of September 18th. [1] 1. The validity of the meeting of September 18th is assailed on the ground that the directors did not meet at the office of the corporation. Section 319 of the Civil Code provides that "the meetings of the stockholders and board of directors must be held at its office or principal place of business." We need not inquire what is meant by the phrase "principal place of business" in this section. Apparently it is not used in a sense synonymous with that of "office." Its precise significance is unimportant here, for the reason that the notice of the meeting in question specified the office of the company as the place of meeting. Doubtless, therefore, the board was required to convene at such office. We think, however, that the facts above set forth show a substantial compliance with the requirement that the meeting be held at the office of the corporation. A majority of the directors, attempting to assemble pursuant to a regular notice, found the door of the office locked. They convened in the hall, outside of the door. No other director could have been thereby deprived of the opportunity to attend had he desired to do so. The place was in immediate proximity to the office, and was the only place available under the circumstances. The provision relied upon is that the meeting must be held "at," not "in," the office. It cannot be under any reasonable construction of the statute that any person who happens to be in possession of the office of the corporation has the power by excluding the directors and members to absolutely prevent the holding of meetings. [2] 2. It is claimed that Sharp, who partici pated in the meeting of September 18th, and whose presence was necessary to constitute a quorum, had resigned, and so ceased to be a director. He had, in a writing addressed to the board, tendered his resignation, but the resignation was, by the terms of the writing, "to take effect upon acceptance"; and there was evidence sufficient to warrant the trial court in believing that it was not accepted until the 21st day of September. [3] 3. We see no force in the contention that it was a fraud upon the corporation to |