cedure. The trial court sustained the objection and refused to permit Stewart to testify regarding such matters.

Appellant contends that this ruling constituted prejudicial error. Also, that the evidence produced shows a delivery of the promissory note and that there was a valid consideration therefor.

nesses:

[1] As to the first point, section 1880 of the Code of Civil Procedure provides: "The following persons cannot be wit3. Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator upon. a claim, or demand against the estate of a deceased person, as to any matter or fact occurring before the death of such deceased person." We think Stewart quite clearly came within the excluded class as a person "in whose behalf" the action was being prosecuted. Upon the death of Easter Belle Stewart, intestate, title to all her property, both real and personal, immediately vested in Neil Stewart and James Brown, as her heirs, subject only to the control of the probate court and to the possession of the administrator for purposes of administration. (Civ. Code, sec. 1384.) Letters of administration of the estate of Easter Belle Stewart were issued to Willam S. Dennis, the original plaintiff herein, as the nominee and at the request of Neil Stewart, the surviving husband of deceased. The test seems to be whether or not the witness' interest in the claim amounts to an existing property right. "An action against an executor or administrator on a claim against a deceased person is one brought 'on behalf of' any person not a party to the action who, nevertheless, has an existing property right in the claim." (Badover v. Guaranty Trust & Savings Bank, 186 Cal. 775, 781 [200 Pac. 638, 640]; Uhlhorn v. Goodman, 84 Cal. 185, 192 [23 Pac. 1114].) As before observed, Neil Stewart had a vested interest-an existing property right (Brenham v. Story, 39 Cal. 179, 188; Smith v. Olmstead, 88 Cal. 582, 586 [22 Am. St. Rep. 336, 12 L. R. A. 46, 26 Pac. 521]; Phelan v. Dunne, 72 Cal. 229 [13 Pac. 662])—and the trial court properly excluded the testimony objected to.

[2] As to delivery of the note in suit and consideration therefor, appellant argues that the statements contained in the father's letter to his daughter that he had deposited the note in the safe-deposit box conclusively proved that fact;

that such a deposit constituted a delivery to Mrs. Stewart, and the note being in writing, a consideration would be presumed; and, further, that the evidence showed certain bonds constituted the consideration.

There is sufficient evidence in the record to support a finding that the note had been delivered and that a valuable consideration had passed if the trial court had desired to make such a finding. There is also some evidence to support the finding to the contrary which the trial court did make, and under repeated rulings of the supreme court this is sufficient to support the finding.

Judgment affirmed.

Langdon, P. J., and Sturtevant, 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 August 2, 1923.

[Civ. No. 4553. First Appellate District, Division Two.-June 7,

1923.]

TONY BISPO, Respondent, v. JACK SURABIAN et al.,

Appellants.

[1] ASSAULT AND BATTERY-MALICE-EVIDENCE-FINDING

APPEAL.—

In this action for assault and battery, while there was much reason in the position taken by defendants that there was no evidence to support the finding that the attack upon plaintiff was malicious, it could not be said that there was not some evidence from which the trial court could draw the inference of malice in support of such finding; and under those circumstances the appellate court could not grant defendants any relief.

-

[2] ID DAMAGES EVIDENCE APPEAL. The trial court having determined that the attack upon plaintiff was malicious, but it not having designated how much of the amount awarded was allowed as actual damages and how much was allowed for exemplary

2. Excessive verdict in action for damages for personal injuries not resulting in death, notes, Ann. Cas. 1915A, 488; Ann. Cas. 1916C,

damages, and there being nothing in the record indicating that the judgment was the result of passion or prejudice or that the feeling of plaintiff's counsel against defendants because of their nationality was reflected in the amount of damages awarded, the appellate court could not say that the judgment for fifteen hundred dollars damages was excessive, even though the evidence showed that plaintiff suffered a very minor injury so far as actual damages were concerned.

APPEAL from a judgment of the Superior Court of Fresno County. S. L. Strother, Judge. Affirmed.

The facts are stated in the opinion of the court.

W. D. Crichton and Krekor Ohanian for Appellants.

Lindsay & Conley for Respondent.

NOURSE, J.-This is an appeal from a judgment in favor of the plaintiff for assault and battery. The defendant Sumpat Surabian and Jack Surabian, brothers, were living upon an eighty-acre tract of land belonging to them, part of which was planted in melons. About 10 o'clock of the evening of August 27, 1921, they were disturbed by the barking of their dogs on the premises and one of the defendants, Sumpat Surabian, took his automobile and drove to the county road, where he saw a car parked by his ranch. He then returned to the house and told his brother, Jack Surabian, and his cousin, K. Surabian, what he had discovered, and all three returned to the place, where they discovered a Mexican named Cardenas in their melon patch. Cardenas informed them that he had a partner with him. While they were questioning him the plaintiff came up and jumped into his car, the one parked along the highway, and endeavored to drive off. He was unable to do so because one of the defendants had removed the key to the machine. The defendants then questioned the plaintiff as to what he was doing upon their property, but he refused to answer, and after a heated controversy between the parties, the defendant K. Surabian struck the plaintiff over the head with a stick. For the injuries resulting the trial court, sitting without a jury, awarded the plaintiff a judgment in the sum of fifteen hundred dollars, rejecting defendants' request that the findings designate the amount thereof allowed

as actual damages and the amount allowed for exemplary damages.

The appeal is taken under the provisions of section 953a of the Code of Civil Procedure and is based upon four grounds: The insufficiency of the evidence to justify the findings; that the decision is against law; that the judgment allowed is excessive; and errors in law occurring at the trial. Reliance, however, is placed upon the claim of the insufficiency of the evidence and excessive damages.

[1] The argument in support of the first point is that there is no evidence of any nature to support the finding that the attack upon the respondent was malicious. There is much reason in the position taken by the appellants in this regard, but it cannot be said that there is not some evidence from which the trial court could draw the inference of malice in support of this finding. Under repeated rulings of the supreme court this is sufficient to prevent this court from granting the appellants any relief.

[2] On the question of damages, this, too, was a matter which the trial court was called upon to determine. The evidence plainly shows that the respondent suffered a very minor injury so far as actual damages were concerned, but we are unable to say how much of the judgment covers actual damages and how much covers exemplary damages. It is only in cases where the judgment appears to be the result of passion or prejudice that the appellate court may reduce or set aside the award of damages by the trial court. Though the record discloses a high state of feeling on the part of respondent's counsel against the appellants and an endeavor in their brief filed in this court to create a state of prejudice against the appellants on account of their race, we cannot say that this was reflected in the trial court when it fixed the amount of damages to be awarded.

Judgment affirmed.

Langdon, P. J., and Sturtevant, 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 August 6, 1923.

[Civ. No. 4559. First Appellate District, Division Two.-June 7, 1923.]

ROWENA MESSERSMITH, Administratrix, etc., Respondent, v. LUCAS F. SMITH, Jr., Executor, etc., Appellant.

[1] PLEADING QUIETING TITLE-TENANCY IN COMMON-PARTIES.-The administratrix of an estate, as a tenant in common in real property, is entitled to sue either jointly or severally for the protection of her interest therein.

[2] EVIDENCE-ESCROW INSTRUCTIONS TO ATTORNEY-PRIVILEGED COMMUNICATIONS.—The escrow instructions given by the grantor in a deed are not privileged communications even though such instructions are given to a party who has theretofore, or at the time occupies the position of attorney to the grantor. (Opinion of supreme court on denial of hearing.)

[3] ID.-PROFESSIONAL EMPLOYMENT OF ATTORNEY-HOLDING OF DEEDINSTRUCTIONS.-Instructions to the holder of a deed delivered in escrow with reference to its delivery are not "in the course of the professional employment" of the attorney within the meaning of subdivision 2 of section 1880 of the Code of Civil Procedure, although the delivery be made to the grantor's attorney, but are instructions which he is bound to reveal at the request of the grantee for whose benefit the instructions are given. (Opinion of the supreme court on denial of hearing.)

APPEAL from a judgment of the Superior Court of Santa Cruz County. Benj. K. Knight, Judge. Affirmed.

The facts are stated in the opinion of the court.

Lucas F. Smith and Stanford G. Smith for Appellant.

Rea, Cassin & Caldwell for Respondent.

NOURSE, J.-This is an action to quiet title commenced by the plaintiff as administratrix of the estate of Elizabeth Hans, deceased, against the defendant as executor of the estate of Elizabeth Schwan, deceased. Judgment was rendered in favor of the plaintiff. Defendant appeals under

3.

Privileged communications between attorney and client, notes, 66 Am. St. Rep. 213; Ann. Cas. 1913A, 3; Ann. Cas. 1916E, 335.