judgment creditor to so docket his judgment is not such a breach of the stipulation as to destroy his right to share in the amount paid for the first judgment.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. John J. Van Nostrand, Judge.

The facts are stated in the opinion of the court.

Robert H. Borland, for Appellants.

Henry Ach, and Joseph Kirk, for Respondent.

LENNON, P. J.—This is an appeal from the judgment on the judgment-roll. This case was before this court before on an appeal from the order of the trial court granting defendant's motion for a nonsuit (27 Cal. App. 474, [150 Pac. 650]).

The effect of the former decision of this court was to establish the sufficiency of the complaint, and to construe the meaning of the word "avails" to include moneys obtained from the sale of the Lindemann judgment.

Briefly, the facts are these: On the ninth day of May, 1910, defendants Harding and Monroe, through their assignee Lindemann, brought suit against the California Consolidated Mines Company for $10,193.25 for legal services, and procured an attachment upon the company's property. At this time certain creditors of the defendant Mines Company assigned their claims to W. F. Cordes, who brought an action against the Mines Company and caused an attachment to be levied on June 20, 1910, on the same property of the company which had been previously attached in the suit brought by Lindemann. A stipulation was thereupon made, entitled in the court and causes of Lindemann and Cordes against the Mines Company by the attorneys for the respective plain-, tiffs in each case, providing in part "that all recoveries or avails effected in either of said suits under or by virtue of the attachments which have been issued therein and levied upon the property of the California Consolidated Mines Company, a corporation, in the county of Amador, state of California, shall be ratably apportioned between said plaintiffs, according to the respective amounts of their claims or

according to the respective amounts of the judgments rendered and entered in said suits should judgments be recovered or entered." Lindemann subsequently obtained a judgment for $8,883.10 but did not levy execution. Prior to December 1, 1911, Lindemann recorded a transcript of this judgment in Amador County, in which county the property was situated. On November 23, 1910, plaintiff Cordes in his suit against the Mines Company obtained a judgment for $2,371.16, but no transcript of this judgment was filed until after December 22, 1911. Prior to May 12, 1910, and prior to the attachment of either Lindemann or Cordes, the Chichizola Estate Company recovered a judgment in Amador County against the Mines Company for the sum of ten thousand dollars. Under this judgment, on December 10, 1910, the mining properties under attachment were sold on execution to the plaintiff in that action. December 15, 1911, the Chichizola Estate Company sold and assigned this judgment to one Magee. On December 22, 1911, defendants in this action told Magee that they proposed to redeem. After negotiations, Magee bought the Lindemann judgment, paying therefor seven thousand dollars. The plaintiff here, claiming that this money received by defendants was avails effected by the Lindemann attachment, brought this action for his proportion thereof, pursuant to the terms of the stipulation. Prior to the expiration of the period of redemption under the Chichizola sale, defendants in this action, for plaintiff Lindemann, who had become a redemptioner by having filed a transcript of her judgment in Amador County, served upon the purchaser at that sale a demand for a statement of the rents and profits under the provisions of section 707 of the Code of Civil Procedure, thereby obtaining for plaintiff Lindemann an extension of the time to redeem. The sale of the Lindemann judgment to Magee was made before this extension of time had expired.

Appellants contend that the Cordes attachment, owing to the failure of Cordes to file the transcript of his judgment in time to become a redemptioner from the Chichizola execution sale, had become worthless, that Cordes had failed to comply with the implied agreement of the stipulation that he should do everything necessary to keep alive his attachment, and consequently, for this alleged breach on his part, that Lindemann was no longer bound by the stipulation.

Looking at the stipulation itself, it is impossible to say that there was any implied agreement that plaintiff should docket his judgment in the county where the property was situated, so as to acquire a lien on the property of the judgment debtor in that county. Appellants' argument rests upon the speculative theory that if plaintiff had put himself in the position of a redemptioner qualified to redeem from the Chichizola sale, Magee would have paid him something for his judgment. But upon the other hand, Magee might not have purchased plaintiff's judgment at all. There is no evidence or finding to the effect that he would have done so. It might well have been that plaintiff, by refraining from making his judgment a lien on the property of the judgment debtor, thereby facilitated the sale of the Lindemann judgment; that while Magee was willing to buy the Lindemann judgment, he might have been unwilling to redeem when he found the property more heavily encumbered.

Since there was no duty on the part of plaintiff, express or implied, to docket the judgment, and as the record discloses no request or demand from the respondents that plaintiff advantage their position by docketing that judgment, we cannot say that plaintiff's failure to do so was a breach on his part of the contract.

Judgment affirmed.

Kerrigan, J., and Richards, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 17, 1917.

[Civ. No. 1722. Third Appellate District.-October 20, 1917.] EVA MARKS, Administratrix of the Estate of Harry Marks, Deceased, Respondent, v. M. REISSINGER, Appellant.

ACTION FOR DEATH-ASSAULT AS CAUSE CONFLICT OF EVIDENCE-VERDICT NOT DISTURBED.-The record disclosing a substantial conflict in the evidence as to whether the defendant struck the deceased without cause or not in necessary self-defense, and also as to

whether death was caused by the blows alleged to have been struck, the verdict awarding damages cannot be disturbed on appeal. ID. STATUTE OF LIMITATIONS-TIME FOR COMMENCEMENT OF ACTION.The time for bringing an action of this character begins to run from the time of the death of the injured person, and not from the time the injury causing his death was inflicted upon him.

ID.-RIGHT OF ACTION OF HEIRS-FAILURE OF DECEASED TO SUE.-The right of heirs and representatives to sue under section 377 of the Code of Civil Procedure is not affected or barred by the failure of the deceased to sue in his lifetime. ID.-EVIDENCE-INADMISSIBILITY OF DECLARATIONS OF DECEASED.-The right of action given to heirs or personal representatives by section 377 of the Code of Civil Procedure is a new right of action distinct from that which accrued to the injured person as a result of the defendant's wrongdoing, and therefore declarations of the deceased to the effect that he was not struck or injured by the defendant are inadmissible, and objections to evidence of such declarations as hearsay are properly sustained.

ID. GENERAL REPUTATION FOR PEACE AND QUIET.-Testimony as to the general reputation of a person should be based upon the result of the knowledge of the witness of such general reputation and not upon specific acts tending to show a good or bad character which have come under the personal observation of the witness. ID. INSTRUCTIONS-BURDEN OF PROOF JUSTIFICATION FOR ASSAULT AS A DEFENSE.-The jury were properly instructed to the effect that there is no legal presumption that a bodily injury is justifiable, and the justification therefor, if any, must be proven by him who assert's it.

ID. CAUSE OF DEATH-PNEUMONIA CONCURRING WITH INJURIES.—It is not the law that, to hold a wrongdoer for his tortious act whereby he produces damage to, or the death of another, such act must be the sole proximate cause of the injury or death, and therefore an instruction that if the jury believed from the evidence that after the assault and prior to his death the deceased contracted pneumonia, and that cerebral meningitis, as a result of the assault, "proximately concurred with said pneumonia in causing his death, and that said death would not have occurred at said time from pneumonia alone," the verdict must be in favor of the plaintiff, correctly states the law.

APPEAL from a judgment of the Superior Court of the County of Yuba, and from an order refusing a new trial. Eugene P. McDaniel, Judge.

The facts are stated in the opinion of the court.

W. H. Carlin, for Appellant.

Jeremiah F. Sullivan, Sullivan & Sullivan, Theo. J. Roche, E. I. Barry, and J. E. Ebert, for Respondent.

HART, J.-The action was brought by plaintiff as administratrix of the estate of her husband, on behalf of herself and her three minor children, to recover damages for the death of her husband, alleged to have been caused by blows wrongfully inflicted upon him by defendant. The jury returned a verdict in favor of plaintiff in the sum of ten thousand dollars, and judgment was entered accordingly. The appeal is by defendant from said judgment and from an order denying him a new trial.

Briefly, the facts of the case may be stated as follows: Harry Marks, the deceased, was the owner of a number of work horses with which he engaged, in the summer months, in the business of logging in Plumas and Sierra counties and, in the winter months, in plowing for different parties in Yuba and Butte counties. In March, 1912, he was engaged in plowing some land about six and one-half miles from Marysville and had spent the night of March 12th with his family in Marysville. On the morning of the 13th of March, George W. Hughes, a brother of Mrs. Marks, who was employed by Harry Marks, drove into Marysville with a fourhorse team for the purpose of securing supplies for the men and teams. He was accompanied by a man named Frank Robinson and another named Petrie. Late in the afternoon, these three men, accompanied by Marks and a man named Craig, started to drive back to the place where they were working. Some of the party had been drinking during the day and Hughes testified that Robinson and Craig were "pretty drunk" and that Marks and Petrie were sober. When the party arrived at the saloon and brewery owned and conducted by the defendant, Robinson, desiring another drink, alighted from the wagon and started toward the saloon. He became engaged in a controversy with Herman Fehr, an employee at the brewery, which soon became a scuffle. Marks remarked that he was "going in to get Mr. Robinson, went to where the two men were. Shortly afterward Hughes followed him and he testified that Robinson and Fehr were scuffling and that Marks was standing by looking on. He