DAMAGES-EXCESSIVE, AS GROUND FOR Reversal of JudgMENT. — The supreme court will set aside a verdict as excessive when satisfied that the evidence does not support the assessment of damages: Furnish v. Missouri Pac. R'y Co., 102 Mo. 438; 22 Am. St. Rep. 781. The amount of damages recoverable in actions for personal torts must be left to the discretion of the jury, and a new trial will not be granted on the ground that they are excess. ive, unless the verdict impresses the court with the conviction that it resulted from passion or prejudice: Ward v. White, 86 Va. 212; 19 Am. St. Rep. 883, and note; Sheehy v. Kansas City etc. R'y Co., 94 Mo. 574; 4 Am. St. Rep. 396; note to Central R. R. Co. v. Smith, 2 Am. St. Rep. 40; see New Orleans etc. R. R. Co. v. Statham, 42 Miss. 607; 97 Am. Dec. 478, and note; Florida Railway etc. Co. v. Webster, 25 Fla. 394; O'Connell v. St. Louis etc. R'y Co., 106 Mo. 482. DAMAGES WHAT ALLOWABLE. - Exemplary damages, when allowable, should be proportioned to the actual damages sustained: International etc. R. R. Co. v. Telephone etc. Co., 69 Tex. 277; 5 Am. St. Rep. 45, and note. Where the death of one person is caused by the wrongful act or omission of another, the damages are purely compensatory for pecuniary loss: Hutchins ▼. St. Paul etc. R'y Co., 44 Minn. 5; Vicksburg v. McLean, 67 Miss. 5; Tuteur v. Chicago etc. R'y Co., 77 Wis. 505. The physical suffering of the deceased, who came to his death through the negligence of the railroad company, preceding his death, can form no basis for damages: Texas etc. R'y Co. v. Lester, 75 Tex. 56; see note to Western U. Tel. Co. v. Rogers, 24 Am. St. Rep. 308. Damages for mental suffering in actions for negligence resulting in death are discussed in an extended note to West v. Western U. Tel. Co., 7 Am. 8t. Rep. 535. BLANO V. PAYMASTER MINING COMPANY. [95 CALIFORNIA, 524.] CREDITOR'S SUIT — FRAUDULENT GRANTOR PROPER BUT NOT NECESSARY PARTY.A fraudulent grantor, though a proper, is not a necessary party defendant in an action to subject to the lien of the plaintiff's judgment property alleged to have been fraudulently conveyed. PRACTICE FINDINGS IMPLIED, AND MAY BE EXCEPTED TO, WHEN. Where findings are waived, and no express findings are therefore found in the record, such findings on all matters of fact in issue as are necessary to support the judgment of the court in favor of the successful party are implied, and if the evidence is insufficient to justify the court in finding any material or necessary fact, such implied finding of fact may be excepted to in the same manner and with the same effect as if it were an express finding. JUDGMENT AGAINST FOREIGN CORPORATION ENFORCEABLE ONLY AGAINST PROPERTY ATTACHED WHEN. Where a foreign corporation has no managing agent or other officer in a state upon whom service of summons can be made, the only valid judgment that can be rendered against it in an action of assumpsit is one in the nature of a judgment in rem, against such property as was seized under a writ of attachment therein. The fact that a judgment rendered in such action is a general one for the recovery of money only, and makes no reference to the fact that any property has been attached therein, does not render it void, if in fact such attachment was made; but if no property was attached in the action, the court is without jurisdiction to render any judgment that can be enforced against the property of the defendant. - RETURN UPON ATTACHMENT NOT CONCLUSIVE OF VALIDITY OF ATTACHMENT WHEN. The return upon a writ of attachment is not conclusive of the validity of the attachment in a subsequent action against the successor of the corporation defendant. SUMMONS-SERVICE OF, UPON FOREIGN CORPoration cannot be MADE UPON CLERK IN ITS STORE. A person employed by a foreign mining corporation in the capacity of a clerk in a store belonging to it is not the managing agent or cashier of the corporation upon whom summons may be served, within the meaning of section 542 of the California Code of Civil Procedure, although he has the custody of money belonging to the corporation, and it is a part of his duty to keep the accounts of the men employed in the mine from data furnished him by the superintendent, and to pay them. The word “cashier,” in that section, refers to an executive officer of a corporation, as the cashier of a bank, —and not to a simple - employee, who is not a managing agent. FRAUDULENT CONVEYANCE RECOVERY OF JUDGMENT BY CREDITOR NOT NECESSARY TO ENABLE HIM TO ATTACK, WHEN. — Although, as a generarule, a creditor must have first recovered judgment against his debtor, and have execution returned unsatisfied, before he can resort to an equitable action to reach property fraudulently transferred by his debtor, yet this rule does not apply to a case of a transfer of all the property of an insolvent corporation, without consideration, to a new corporation through the fraud of the managing agent of the insolvent corporation, as part of a scheme to cheat and defraud the creditors and other stockholders of such insolvent corporation. In such a case, the new corporation will be regarded by a court of equity as a continuation of the old one, and be held liable for its indebtedness to the extent of the value of the property that it received from it without consideration, although there has been no valid judgment against the old corporation for the amount of the claim. Harris and Gregg, for the appellant. Hunsaker, Britt, and Goodrich, and J. E. Wadham, for the respondent. DE HAVEN, J. The complaint in this action alleges, in substance, among other matters, that the Esperanza Company, a foreign corporation doing business in Arizona, became, in February, 1884, indebted to plaintiff upon two promissory notes, one for the sum of one thousand dollars payable on demand, and the other for the sum of five thousand dollars payable February 12, 1885; that thereafter the said Esperanza Company became indebted to its various stockholders, and a pretended assignment was made of all its property to its "acting managing officer and agent," one Blaisdell, for the alleged purpose of paying the debts of such corporation, and the said Blaisdell made a pretended sale of such property at public auction, at which sale "he claims to have become the purchaser of the tools, machinery, stamp-mills, engines, and boilers belonging to the said Esperanza Company, all of the value of seventy-five thousand dollars, at a purely nominal sum, to wit, the sum of fifty dollars "; and thereupon said. Blaisdell, "together with the principal officers, agents, and stockholders of the said Esperanza Company, proceeded to organize the defendant," and turned over to it all of the said property, for the purpose of cheating and defrauding plaintiff and other creditors of the Esperanza Company; and in this connection, the complaint further charges "that the said the Paymaster Mining Company, defendant, was so organized by the said Blaisdell, the officers and agents and stockholders of the said Esperanza Company, with the view of taking and receiving said property as a part of said plan for defrauding the creditors of the Esperanza Company, and particularly the plaintiff," and that said defendant never paid any consideration whatever for said property. It is also alleged that the Esperanza Company having failed and refused "to pay the just demands of this plaintiff," he instituted a suit against. said company in one of the superior courts of this state "for the collection of the said sum of six thousand dollars," and interest, and a writ of attachment was issued therein, and the property before referred to was attached, etc., and judgment was duly given in his favor, and against said Esperanza Company, for the sum of $7,784.74 and costs, and that nothing. whatever has been paid on said judgment. The prayer of the complaint is, "that the pretended sales of the said Blaisdell to the defendant be declared void," and "that it be adjudged . . . that the said defendant holds the said property charged with the payment of the plaintiff's claim of $7,784.74, with interest and costs," and that the same be sold to satisfy the same, and for general relief. To this complaint the defendant interposed a demurrer, upon the general ground of insufficiency of the alleged facts to constitute a cause of action, and upon the further ground that there is a defect of parties defendant, because of the failure to make the Esperanza Company and Blaisdell defendants. The demurrer was overruled. Upon the trial, findings were waived, and a judgment rendered in favor of plaintiff in accordance with the prayer of the complaint. The defendant appeals. It is argued by the appellant here that the court erred in its ruling upon the demurrer to the complaint; and also that certain implied findings are not justified by the evidence. 1. The demurrer to the complaint was properly overruled. The complaint states a cause of action, and the Esperanza Company and Blaisdell were not necessary parties to the action. Upon the facts alleged in the complaint, neither of them has any interest, either legal or equitable, in the property, and neither could be prejudiced by the judgment which the plaintiff seeks to obtain; and the omission to make them defendants did not in any manner preclude the defendant from interposing any defense which it may have had to the matters alleged in the complaint, and therefore it cannot complain that they were not made parties defendant: Fox v. Moyer, 54 N. Y. 130; Potter v. Phillips, 44 Iowa, 353; Coffey v. Norwood, 81 Ala. 512. In Potter v. Phillips, 44 Iowa, 353, the court, in answer to the objection that the fraudulent grantor was not made a party defendant in an action to subject to the lien of plaintiff's judgment the property alleged to have been fraudulently conveyed, say: "Whilst a proper party, we do not see wherein he can be regarded as a necessary party. Whether the conveyances were fraudulent or in good faith, the property has irrevocably passed beyond his control. In no way can he be prejudiced, in a legal sense, by a determination which subjects the property to the payment of his debts." And in Coffey v. Norwood, 81 Ala. 512, the supreme court of Alabama reach the same conclusion, saying: "Neither the debtor if living, nor if he be dead his personal representatives, can enjoy any of the fruits of a successful prosecution of the suit to set aside the fraudulent conveyance; for after the complaining creditor's demand is satisfied, the remainder of the fund goes to the fraudulent grantee. The debtor, therefore, has no interest, legal or beneficial, either in the property sought to be subjected or in the litigation having reference to it, except remotely or indirectly. Nor can the grantee be prejudiced in any manner by omitting to join the grantor or his personal representative, as he can make any defense to the complainant's demand which the grantor or personal representative could do if he were a party to the suit." 2. The appellant contends that the evidence does not justify the implied finding of the court, that in the action of the plaintiff against the Esperanza Company mentioned in the complaint, an attachment was levied upon the property sought to be reached by this action, and that the evidence is also insufficient to justify the further implied finding, that in the action referred to a judgment was rendered in favor of this plaintiff, and against the Esperanza Company, for the sum of $7,784.74. It is claimed by respondent that inasmuch as findings were waived, and none are to be found in the record, there are no findings to which exception can be taken, and nothing to which appellant's specifications of insufficiency of evidence can relate. We do not think this is a correct view of the law upon this point. There are no express findings in the record, but it is the presumption of law that the court found all the matters of fact in issue, and necessary to support its judgment in favor of the successful party. Such findings are implied, and if the evidence is insufficient to justify the court in finding any material or necessary fact, such implied finding of fact may be excepted to in the same manner and with the same effect as if it were an express finding. The action of the appelant in thus excepting to the implied findings was proper. 3. The Esperanza Company is a foreign corporation, and had no managing agent or other officer in this state upon whom service of summons was or might have been made in the action which plaintiff brought against it to recover the amount due upon the notes referred to in the complaint. This being so, the only valid judgment which could have been rendered in that action was one in the nature of a judgment in rem, against such property as may have been seized under the writ of attachment therein: Anderson v. Goff, 72 Cal. 65; 1 Am. St. Rep. 34; Pennoyer v. Neff, 95 U. S. 714; Cooper v. Reynolds, 10 Wall. 308. The judgment rendered in that action was a general one, for the recovery of money only, and made no reference to the fact that any property had been attached therein; but it was not for this reason void, if in fact such attachment was made. In such case the judgment would be held to have the effect of perpetuating the attachment lien, and would be regarded as "so far in the nature of a proceeding in rem as to uphold a sale of the attached property, and considered for that purpose and to that extent is not void": Anderson v. Goff, 72 Cal. 65; 1 Am. St. Rep. 34; Cooper v. Reynolds, 10 Wall. 308. It follows necessarily, from this view of the law, that in considering whether the court below was justified in finding that plaintiff recovered against the Esperanza Company the judgment alleged in the complaint, it must be first determined whether the evidence is sufficient to sustain |