SEC. 2. An agreement to pay a fixed sum in grain, at the market price, on a day specified, if not fulfilled by the delivery of the grain at the time fixed becomes a debt payable in money. Where such an agreement exists no demand of the grain is necessary, but a failure to deliver makes the sum fixed a money debt. 23 Cal. 65, 66.

SEC. 3. If the debtor at the time of, or previous to, payment, neglects to designate to which of several debts he applies his payment, his right to control the application is gone, and the creditor may exercise it at any time before suit. The institution of suit evidences the creditor's application of the payment. If the creditor has once made the appropriation, whether by verbal declaration or rendering an account, or by conduct inducing a reliance on a particular appropriation, or bringing suit in a way which declares the application, he cannot afterwards change it, but subject to this he may make the application at any time. 14 Cal. 446, 449.

SEC. 4. Where the defendant, being indebted to plaintiff, a banking firm, made a payment on account in the bank to one of plaintiff's clerks, and on a subsequent day agreed to lend to the clerk the amount thus paid, who took the money and used it, and the amount thus paid was never credited to the defendant on the books of the plaintiff: Held, that the amount paid by defendant in the usual way of business was a legal payment; the possession having been changed and the defendant having lost all control over it. If the defendant is ultimately liable for the amount thus advanced to the clerk, it must be in an action for thus advancing it, and not in an action on the original indebtedness. 6 Cal. 283, 284.

SEC. 5. When the plaintiff employs an agent to collect a note due from defendant, and the defendant employs the same agent to collect other notes due him and apply the same on plaintiff's note, and the agent fails after collecting money on defendant's account, the loss occasioned by the failure of the agent must fall on the defendant, unless the appropriation was actually made. The law does not make the application. The law does not apply money until it has passed from the debtor; so long as it remains in the hands

of the debtor or his agent it may be diverted for any other purpose, and there can be no legal appropriation thereof. 7 Cal. 83.

SEC. 6. Gold dust is not cash. A party may receive it at such price as he choose in lieu of cash--the same as he might accept any other article of merchandise instead of cash. 1 Cal. 49.

SEC. 7. Gold dust is constantly fluctuating in its market value; it is an article of traffic, like merchandise, and a payment in it is a payment for just so much as the parties agree and for no more. 1 Cal. 49.

By Mistake of Law or Fact.

SEC. 8. In the absence of fraud or mistake, a party cannot escape the consequences of an arrangement voluntarily made by him because of a misunderstanding of its legal effect. 22 Cal. 344.

SEC. 9. If money be paid in mistake of law and not of fact, the court cannot relieve. 2 Cal. 587.

SEC. 10. Money paid under a mistake or ignorance of law of our own country, but with a knowledge of the facts or the means of such knowledge, cannot be recovered back. 16 Cal. 565.

SEC. 11. Plaintiff is not entitled to relief on the ground of mistake which was of law and not of fact. 16 Cal. 145. SEC. 12. Every man is to be charged, at his peril, with a knowledge of the law. There is no other principle which is safe and practicable in the common intercourse of mankind. 20 Cal. 642.

SEC. 13. The principle that a liability cannot be discharged by a less sum than what is due, applies to payments in money, and has never been extended to a case where a certain quantity of goods which were of less value than the debt were delivered and accepted in satisfaction. 2 Cal. 497.

Under Protest.

SEC. 14. The object of a protest is to take from the payment its voluntary character, and thus conserve to the party a right of action to recover back the money. It is available only in cases of payment under duress or coercion, or when

undue advantage is taken of the party's situation. It has no application to voluntary payments. 9 Cal. 417.

SEC. 15. Where money is paid upon compulsion, the law raises an obligation to refund, and the form of the action is for money had and received to the plaintiff's use. 9 Cal. 418.

SEC. 16. The compulsion or coercion which is sufficient in law to render a payment involuntary, must come from the party to whom or by whose direction the payment is made, and arise from the exercise or threatened exercise of some power possessed or supposed to be possessed by him over the person or property of the party making the payment. 18 Cal. 404, 405.

SECTION 1. If a justice of the peace in the discharge of any of his ministerial or judicial duties act corruptly, to the injury of the party, his conduct is a breach of the condition of his official bond (3 Blackf. 72), as if he corruptly discharge an offender by taking insufficient securities for his reappearance (15 Wend. 277), or corruptly refuse to take security required to be given on the prosecution of an appeal. His liability to an action in the latter case is because his duty in such proceeding is ministerial and not judicial. 8 Wend. 462.

SEC. 2. A magistrate is not liable for what he does in a judicial capacity, unless he acts corruptly or oppressively. 2 Bay, 1, 385; 38 Maine (3 Heath), 530; 2 N. & M. 148; 3 Cush. 543. If a public officer, in performing an act judicial in its nature, commit an error in fact or law in the exercise of his authority, he is not answerable in damages, and his act will be valid until reversed or set aside. 21 Barb. (N. Y.) 207. The rule of common law, except so far as it

has been changed by statute, exempts a judge from a civil suit or indictment for any act done by him when sitting as a judge. 8 B. Mon. 214.

SEC. 3. There is, however, a marked difference in the liability of a justice of the peace when he acts ministerially. The following are some of the acts which are purely ministerial, viz: the taking of security required to be given on the prosecution of an appeal (8 Wend. 462); the refusing an appeal and issuing an execution where the doing so is in violation of good faith and an abuse of discretion (38 Maine, 3 Heath, 530); the entering a recognizance so as to make it ineffectual (4 Hane, 331); in making a return upon an appeal so that a party is injured by reason of an error in such return (1 Denio, 589); in making a false return to an appeal (1 Denio, 589); in making a false return to a certiorari (14 Johns. 195); in entering satisfaction of a judgment on his docket, no matter for what consideration, unless the creditor is a party to it. 2 Blackf. 135. If a justice of the peace thus carelessly and improperly act, he will be liable; and in every instance, whether it be in his judicial or ministerial character, if it can be shown that his conduct is the result of malice, undue partiality or any other corrupt influence, he will be liable for such injury as may result therefrom.

Of Constables.

SEC. 4. After execution returned by a constable, judgment was recovered against him for neglect, the justice not having entered the return in his docket and the constable being unable to prove it aliunde: Held, that the neglect of the justice did not render him liable to the constable. 6 Hill, 487.

SEC. 5. If an attachment issue without the proof required by statute and be executed, the justice and the plaintiff and the constable are trespassers. 3 Cow. 206.

SEC. 6. An execution issued by a court of competent jurisdiction is a legal justification to an officer for taking and selling the judgment-debtor's property thereon, and he is not bound to investigate the genuineness or sufficiency of a receipt shown to him by the debtor in settlement of the judgment. 10 Cush. (Mass.) 46.

SEC. 7. Where a justice notifies a constable that an appeal has been entered and execution in his hands superseded, any subsequent sale under the execution is void and the constable is a trespasser. The regularity of the appeal is the justice's business and not the constable's. 27 Penn. State, 199.

SEC. 8. A ministerial officer may not be sued as a trespasser for simply obeying the command of a writ, regular on the face of it, and therefore trespass cannot be maintained against an officer who sells a horse by virtue of an execution, though the proceedings in the suit were irregular. Penn. State (11 Harris), 189.

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SECTION 1. The pleadings are the formal allegations by the parties, of their respective claims and defenses, for the judgment of the court. Gen. Laws, 4976.