pealed to this court from the judgment of conviction and the order denying his motion for a new trial.

The case was placed on the calendar of the January, 1918, term of this court, and when the cause was in its regular order called for hearing, neither of the two attorneys of record of the defendant appeared orally to argue the appeals, nor was there then or is there now a brief filed by said attorneys in support of the appeals, although the transcripts containing the record on appeal were filed on the third day of August, 1917, and the attorneys for the defendant duly notified by the clerk of this court that the case would be called for argument and submission on Monday, January 14, 1918. Under this state of the record there was either one of two courses only to be pursued by the attorney-general, viz.: To move, upon notice, to dismiss the appeals; 2. The submission of the cause for decision upon the record. (People v. Magri, 32 Cal. App. 536, [163 Pac. 503]; People v. Coates, 32 Cal. App. 533, [163 Pac. 502]; People v. Maschini, 33 Cal. App. 424, [165 Pac. 546].) The attorney-general elected to adopt the latter course, hence we have been required to examine the record to ascertain whether upon the face thereof there are errors compelling a reversal.

The defendant and three other parties were jointly charged with the larceny of a quantity of rope, a number of tents, and other articles, of the aggregate value of over two hundred dollars and the personal property of one Charles Ross. The crime was committed in the month of January, 1917, in the city of Sacramento.

The evidence need not be set out herein in detail. It is sufficient to say with respect to the proofs that there is ample testimony to support the conclusion of the jury that the defendant and at least one of the other men jointly charged with him stole the articles described in the information on a night in the said month of January and had them hauled from the premises of the owner to the home of one Gilfillen, who owns an express wagon and carries on an express business, and that said articles were kept at Gilfillen's residence for several days, when the defendant and one of his codefendants, one Cummings, had them removed to another. place in Sacramento. Two of the witnesses introduced by the people to support the prosecution were codefendants of the accused. Upon the close of the people's case, the de

fendant, through his attorneys, moved the court to advise the jury to acquit on the ground that the testimony of the aid witnesses, one of whom was confessedly an accomplice of the defendant in the commission of the crime, had not been corroborated as required by section 1111 of the Penal Code. The court denied the motion, and properly so. The testimony of Mrs. Gilfillen that she saw the defendant at her home at about 9 o'clock of the night of the larceny, heard him ask her husband to go to the place where the stolen articles had been left by him (Wagner) and haul them to his (Gilfillen's) home, and saw the rope, tents, etc., at her home the following day, itself constituted sufficient corroboration. of the testimony of the accomplices to satisfy the demands of the statute in that respect. There was, however, other corroboration of the accomplices in the testimony of another witness, who declared, under oath, that, a few days after the goods were stolen, he packed them at the request of Wagner and one of his confederates. Our conclusion is that the verdict is sufficiently supported by competent evidence.

We have examined the court's charge and in it we have found no error. It presented to the jury in clear language all the principles of law pertinent to the case as made by the information and the evidence.

Nor have we discovered any error prejudicial to the rights of the accused in the rulings of the court touching the admissibility of evidence.

The case seems to have been well and fairly tried and the verdict, so far as we are capable of judging from the bare record, is just.

The judgment and the order appealed from are affirmed.

Chipman, P. J., and Burnett, J., concurred.

[Civ. No. 2111. First Appellate District.-January 25, 1918.]

FRANK PANTER, Respondent, v. NATIONAL SURETY COMPANY (a Corporation), Appellant.

ACTION ON INJUNCTION BOND-CONSIDERATION-ADMISSIONS OF PLEADING. In an action to recover damages upon a bond given to secure plaintiff against damages resulting from an injunction issued in a prior action against him, the failure of the defendant to deny the allegation of the complaint that the bond was such an undertaking was an admission that the bond was given in consideration of a preexisting injunction, and the recital of the consideration in the bond, although it was attached to and made a part of the complaint, did not as a matter of pleading control and prevail over the specific allegations of the complaint as to what was the actual consideration for the bond.

ID. RECITALS OF EXHIBITS ATTACHED TO COMPLAINT.-In the absence of a special demurrer for uncertainty, direct and essential allegations in a complaint will not be modified, controlled, or defeated by the recitals of an instrument attached to the complaint.

ID. DAMAGES-INTEREST ON COUNSEL FEES AND EXPENSES IN INJUNC TION SUIT. In view of section 3287 of the Civil Code, in an action on a bond to secure plaintiff against damages resulting from an injunction issued in a prior action against him, interest on the amount allowed for counsel fees and expenses incidental and necessary to plaintiff's successful endeavor to secure the dissolution of the injunction are recoverable, since such items of expense are not uncertain or incapable of being made certain by calculation.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge.

The facts are stated in the opinion of the court.

Metson, Drew & McKenzie, and R. G. Hudson, for Appellant.

Morrison, Dunne & Brobeck, and R. L. McWilliams, for Respondent.

LENNON, P. J.-This is an appeal from a judgment in favor of plaintiff in an action to recover damages upon a bond given by the defendant National Surety Company.

The facts of the case briefly stated are these: On December 21, 1910, a prior action was instituted in the superior court.

of Mendocino County by one Jacobs against Frank Panter, the plaintiff here, and others, in which action on the said twenty-first day of December, 1910, the court issued an order of injunction, restraining the defendants there from the commission of certain acts and prohibiting the Crocker National Bank from paying or crediting to the account of Frank Panter, the plaintiff here, any moneys or stock then in its hands or thereafter to be received by virtue of a certain contract. Thereafter, on January 11, 1911, the defendant National Surety Company executed its undertaking in the sum of two thousand five hundred dollars, which purported to be obligated to protect the plaintiff here from any damages resulting to him by reason of the issuance of an injunction in that action. After the service of the injunction on the bank, Panter demanded of it payment to him of the sum of $35,544.57, the amount which it had in its possession credited to his account. In compliance with the writ the bank refused payment. The cause was transferred to the superior court of Shasta County and the injunction of December 21, 1910, was there dissolved on April 4, 1911.

In the present action upon the bond, judgment was rendered and entered for plaintiff Frank Panter in the sum of $1,576.05, being $750 paid to counsel for securing a dissolution of the injunction, $252.43 interest on that sum from date of its payment to January 27, 1916, at seven per cent, $36.20 expenses of Panter for two trips necessary and incidental to the securing of the dissolution of the writ, and $12.19 interest thereon, and the sum of $525.23 as the reasonable value of the use of the sum of $32,544.57 from January 12, 1911, to April 4, 1911.

The principal point presented upon this appeal is that the bond in suit was without consideration. This contention is based on recitals in the bond, which was attached to and made a part of the plaintiff's amended complaint. The recitals. referred to are that, "Whereas the above named plaintiff had commenced or is about to commence an action . . . against the above named defendants and is about to apply for an injunction in said action against said defendants ... Now, therefore, the undersigned, National Surety Company, a corporation, . . . in consideration of the premises, and of the issuing of said injunction, does hereby undertake in the sum of $2500 and promise to the effect that in case

...

said injunction shall issue, the said plaintiff will pay to the said parties enjoined, such damages, not exceeding the sum of $2500 as such parties may sustain by reason of said injunction . . ."

The bond was approved and filed on the eleventh day of January, 1911, three weeks after the issuance of the injunction out of which the alleged damages arose. It is contended that the undertaking, having been given after the issuance of the writ, could not, in the face of the recitals above quoted, be considered as having been given in consideration of the issuance of the writ, and that inasmuch as the record does not show that any writ was subsequently issued, it must be held that the undertaking was executed without consideration.

This contention is answered by the pleadings in the case. The defendant neither denied nor attempted to deny the allegations of the plaintiff's amended complaint to the effect that the bond in suit was an undertaking executed by the corporation defendant to protect the plaintiff herein against the damages resulting from an injunction which had been. issued in the prior action. The failure to deny that allegation was an admission that the bond in suit was given in consideration of a pre-existing injunction. And it is the rule that a fact admitted by the pleadings need not be further proved or found.

The recital of the consideration in the bond, even though the bond was attached to and made a part of the complaint, did not as a matter of pleading control and prevail over the specific allegations of the complaint as to what was the actual consideration for the bond. This is so because it is the rule that "matters of substance must be alleged in direct terms and not by way of recital or reference, much less by exhibits merely attached to the pleading. Whatever is an essential element of a cause of action must be presented by a distinct averment and cannot be left to an inference to be drawn from the construction of a document attached to the com-* plaint. (Burkett v. Griffith, 90 Cal. 532, [25 Am. St. Rep. 151, 13 L. R. A. 707, 27 Pac. 527]; Mayor v. Signoret, 50 Cal. 298; Hibernia Sav. & Loan Soc. v. Thornton, 117 Cal. 481, [49 Pac. 573]; Ahlers v. Smiley, 11 Cal. App. 343, [104 Pac. 997].)