suit brought. If this is so, it is probably because this statute, and the corresponding one relating to district courts, are deemed sufficient, and confirms me in my view of its general character. But it might happer. that a plaintiff would be prosecuting his claim for judgment against a defendant who did not deny liability to the plaintiff, but had not the means at hand with which to make a tender. In such case, without this statute, the defendant would be compelled to suffer the increased expense of a trial, and the court would have to determine from evidence what the parties in fact admit. It was this latter class of cases the statute was intended to reach, and, in my judgment, it was intended by it to give to a defendant thus situated the right to tender to the plaintiff all that the court in which he is proceeding could give him a judgment for the amount due; and by keeping it in tender for him until the trial, if it then remains unaccepted, to be released from any admission, by reason of it, and, in case the plaintiff failed to recover more than the offer, that then the defendant might use it to recover costs against the plaintiff from the time the tender was made. But the statute does not provide for any other rejection of the tender, but the expiration of the time stated in it, which is the time of the trial. It gives the plaintiff the right to choose at that time between a trial and acceptance of the offer. It recognizes no affirmative action on the part of the plaintiff respecting it, other than accepting it, or going to trial with the subsisting offer unaccepted. Then, for the first time, does the defendant acquire any right under it, or to use it for any purpose. A plaintiff may, in the animosity engendered by his contention or disagreement with a defendant, especially in cases where the amount in dispute is unliquidated and uncertain, when an offer of judgment is first presented, say, "I will not accept it;" but before the time fixed by the statute expires, cooler and more moderate judgment may prevail; and before trial, rather than enter upon a contest, he may conclude to accept it. I think it is not only within the literal terms of the statute, but within its policy, to permit him to do so. I think a defendant might as well be precluded from answering in

a civil suit after service of summons, and within the time allowed him by statute to do so, because he had in the mean time said he would not answer.

In a late case in California, decided since this case was heard in the district court, (Scammon v. Denio, 14 Pac. Rep., 98), I think the precise point in controversy here, at least in principle, was passed upon. The statute was substantially like ours, except that it gave the plaintiff five days to accept the offer, instead of up to the time of trial. The defendant, less than five days before the trial, made an offer of judgment. The plaintiff refused it. On the trial, the plaintiff recovered less than the offer. The defendant claimed the benefit of his offer, upon the ground that it had been made and refused, and the district court so held. The court, in reversing that judgment, say: "It will be observed that this section requires no affirmative action on the part of the plaintiff, unless he elects to accept the offer, and then he must give and file a notice of acceptance. There is no provision for an affirmative refusal to accept, and he may give and file the notice at any time within five days. The offer, therefore, has no effect whatever until after the expiration of five days, unless, before that, plaintiff accepts in the mode provided

* It is true that the court found that appellant refused to accept the offer, but, in the first place, there is no provision for a refusal, except by a failure to file and serve a notice of acceptance, which may be done at any time within five days." The court also further found, in that case, that the court below erred in finding the fact that there was a refusal; but it argued, as above stated, upon the theory that there was. If the case at bar is reversed, on another trial in the district court, it will be identical with Scammon v. Denio. The defendant will have the benefit of an offer of judgment, which the plaintiff is denied the privilege of accepting within the statutory time, by reason of the refusal before made.

This discussion is not upon a case where the defendant, acting upon the refusal of the plaintiff to accept, has undertaken to withdraw his offer, and all claim of benefit under it, as though it had never been made. It is not

claimed that the offer was withdrawn, and in the opinion just read it is said: "There is nothing in the case that could be treated as a withdrawal." Indeed, no such claim could be made; for defendant, in his answer to the letter of plaintiff, which is construed as a refusal, in refusing to make any further offer, expressly reaffirms his offer by saying: "We would rather proceed than accept your terms. Have nothing further to say upon the subject." The offer, then, remained in full force, and I think could have beenaccepted after as well as before, and at any time before trial.

I think the judgment and order appealed from should be affirmed.

WILLIAM E. BURLOCK, AND ANOTHER, APPELLANTS, v. ELIZABETH SHUPE, AND ANOTHER, RESPOND

ENTS.

PLEADING AND PRACTICE.--NOTICE OF MOTION FOR NEW TRIAL.--
Where, after a decision rendered by the court, a party against
whom the decision was made applies for time in which to give
notice of his intention to move for new trial, such application
is not such a waiver of the notice of decision required by section
536 of the Code of Civil Procedure, as to cause the time for giv-
ing notice of intention to move for new trial to begin to run.
ID. LACK OF DILIGENCE IN PROSECUTING NEW TRIAL. -The ques-
tion of want of diligence in prosecuting a motion for new trial is
one resting in the sound discretion of the court trying the motion
and in the absence of anything showing that the court did not
exercise a sound discretion, the action of the trial court concern-
ing the question of diligence will not be disturbed.
ID. FRAUD.-A cross-complaint alleging that the real property in
dispute belonged to S., deceased, that defendants were his heirs,
that one defendant in the action, as administratrix of said de-
ceased, obtained an order from the probate court for a sale of the
said property; that at the sale one H. became the purchaser, sub-
ject to confirmation, that before confirmation H. became insol-
vent and repudiated the sale and did not pay the purchase price,
that afterwards plaintiffs obtained judgment against H. and sold
H.'s interest on execution; that they falsely and fraudulently rep-
resented to the probate court that H. had the equitable estate in
said property, which they had bought, and that the sale should
be confirmed to them; that the probate court, well knowing the

above facts, made a pretended order confirming said sale at the solicitation of plaintiffs; that on the administratrix refusing to make the deed she was removed, and another person appointed who did make the deed; held, that the cross-complaint charged fraud and that the rejection of proof under it was error.

APPEAL from an order of the district court of the first district granting a new trial. The opinion states the facts.

Mr. James N. Kimball, and Mr. A. R. Heywood, for appellants.

Defendant's written request for a stay of proceedings was a waiver of any possible necessity that plaintiff might be under of giving notice of the decision of the court: Cottle v. Leitch, 43 Cal., 322; Thorn v. Finn, 10 Pac. Rep., 414; Allenspach v. Wagner, 10 Pac. Rep., 805.

It was also a written acknowledgment of notice, as the request was in writing and showed by its language that defendants' attorney was fully cognizant of the decision of the court beyond all doubt: Mullaly v. Irish, 11 Pac. Rep., 217.

He certainly is foreclosed from saying that he had no notice. A written notice would only convey to him what he had already on the very day of filing decision acknowledged in writing, and its service would therefore have been a vain act: Barron v. Deleral, 58 Cal., 98; Hayne, New Trial, sec. 19.

The law discourages the doing of vain acts.

The defendants were also guilty of gross laches in calling up settlement of statement; it being served May 1, and settled July 29, 1886.

Plaintiffs' motion to dismiss defendants' motion for new trial should have been granted.

Statement settled and filed July 29, 1886, and our motion filed May 6, 1887. This is such laches or abandonment on part of defendant as should dismiss motion for new trial: Eckstein v. Caldewood, 27 Cal., 413, sec. 537, Code C. P.; Boggs v. Clark, 37 Cal., 237.

The court held correctly in sustaining objection to evidence under cross-complaint. It does not state any facts

that would constitute fraud. To prove fraud, facts, and not conclusions, must be stated: Bliss Code Pleading, sec. 211.

The matters therein stated were exclusively in the jurisdiction of the probate court, and if that court erred advantage could only be taken by appeal: Wells Jurisdiction, sec. 274; Florentine v. Barton, 2 Wallace, 210; Utah Laws, 1884, p. 161, sec. 37.

In any event it would be wholly incompetent to dispute the adjudications of the probate court by parol testimony. That court says that Higginbotham did have an interest in that property, and that adjudication stands to-day.

We maintain that the decision was squarely within the law: Comstock v. Crawford, 3 Wallace, 396; Florentine v. Barton, 2 Wallace, 210; McNitt v. Turner, 16 Wallace, 352; Kelly v. Morrell, 29 Fed. Rep., 736; Fisher v. Bassett, 33 Am. Dec., 239; Res Adjudicata (Wells) sec. 386.

A minor being a party does not change the law: Re Hawley, 100 New York, 206; Stringfellow v. Cain, 9 Otto, 610.

Mr. Thomas Maloney, for respondents.

The time within which the law requires respondents to give notice of their intention to move for a new trial does not begin to run till written notice of the decision is filed and served on them: Biagi v. Hawes, 66 Cal., 469; S. C., 6 Pac. Rep., 100; Emerie v. Alvarado, 64 Cal., 529; S. C., 1 West Coast Rep., 414; People ex rel. v. Center, 64 Cal., 551, 570; S. C., 5 Pac. Rep., 268; Carpenter v. Thursten, 30 Cal., 125; Roussin v. Stewart, 33 Cal., 208; Sawyer v. San Francisco, 50 Cal., 375; State ex rel. v. Murphy, (Sup. Ct. Nev.), 6 West Coast Rep., 351; S. C., 6 Pac. Rep., 340; Eiler v. Frevert, 18 Nev., 278; Carpenter v. Hewel, 67 Cal., 589; S. C., 6 West Coast Rep., 732; S. C., 8 Pac. Rep., 314.

In construing a similar statute in New York it was held: "That it is not enough that the party have knowledge of the judgment or order; that no oral communication nor