1. Money Paid — 'Vohjkttsbr—Payment Made jjy Claimant to Protect Property during Litigation.

A decree adjudged that the defendant In the suit held certain mining stock as trustee for the complainant, and directed its transfer on payment by complainant of a sum found due the defendant for disbursements, and which was made a lien on the stock. The defendant appealed from the decree to the supreme court, claiming the stock as absolute owner. Pending the appeal, assessments were made on the stock, the payment of which was necessary to prevent the stock from being sold, and which the defendant paid. The decree below was affirmed, after which, for the first time, the complainant tendered payment of the sum thereby found due the defendant. Hold, that the appeal taken by the defendant was only an exercise of a legal right, and could not be regarded as wrongful, although a repudiation of the trust; and as, in any event, he was entitled to protect his lien on the stock, his payment of the assessments was not officious nor the act of a volunteer, and that on the complainant’s taking advantage of the decree after Its affirmance, and obtaining from the court a transfer of the stock, he at once became liable as upon an implied promise to repay to the defendant the amount of such assessments, as having been made to his use and benefit.

2. Limitation or Actions — Accrual or Cause or Action.

A cause of action to recover the money paid on such assessments did not arise until the complainant in the suit availed himself of the decree by talcing a transfer of the stock, and thus obtaining the benefit of such payments; and an action thereon would not be barred under the California statute until two years from that time.

3. Evidence — Admissions by Record.

When it appears from the bill of exceptions that the evidence upon the-trial consisted of admissions of fact made by the parties in open court, the-circuit court of appeals will treat such admissions as equivalent to a formal case agreed, and thereupon direct the circuit court to render a proper judgment upon such undisputed facts.