Kilburn

This is an application for a writ of prohibition against Hon. J. K. Law, judge of the superior court of Merced county, commanding him to desist from any further proceedings against the petitioners as bank commissioners in the matter of the accusation of W. N. Sherman against them.

October 8, 1895, said Sherman filed in the Superior court of Merced county a verified accusation charging that the bank commissioners had willfully neglected to perform the duties of their office in that, having the means so to do, they did not, up to. September 1, 1895, ascertain that the Merced bank was insolvent and unable to fulfill its obligations, and that it was unsafe to continue business. And that, having the means to ascertain these facts, they did not report the same to the attorney general of the state of California, as required by law; and having ascertained on the twelfth day of September, 1895, that said bank was insolvent, and in an unsafe condition, did not report, and have not since reported, such facts to the attorney general.

The accusation also charged that the Merced bank was insolvent and unsafe, and that on the sixteenth day of October, 1894, it suspended payment and closed its…

concurred in the foregoing opinion, and cites the recent cases of In re Curtis, 108 Cal. 661 , and Wheeler v. Donnell, 110 Cal. 665 , as directly deciding that an accusation brought under section 772 of the Penal Code is a criminal proceeding.