Wilson v. Southern Pac. R.R.

By the Count : Sec. 1838 of the Civil Code is as follows: “ If a thing is lost or injured during its deposit, and the depositary refuses to inform the depositors of the circumstances under which the loss or injury occurred, so far as he has information concerning them, or willfully misrepresents the circumstances to him, the depositary is presumed to have willfully or by gross negligence permitted the loss or injury to occur.” The section authorizes a written or oral demand for information upon the depositary. It provides for a proceeding in pais, which may be taken before or after an action is commenced, and it is not within the province or authority of the attorney at law employed by the depositary to defend an action brought by the depositor for the destruction of the deposit, to make in pais admissions or statements in respect to the circumstances under which the destruction occurred, which are binding upon the depositary. The Court below should have sustained the objections of defendant to the written demand served upon the attorney for defendant in this action and the answer thereto, inasmuch as the demand was served on no person other than such attorney. As there was an entire want of authority on the part of the attorney, the objection that the demand and response were irrelevant and immaterial was sufficient. [737] Judgment and order reversed, and cause remanded for a new trial. Remittitur forthwith. o