No such general rule, therefore, applicable to all cases could be adopted. Planes so constructed could not result as matter of law.

Planes through the lode at the end lines of the location, at right angles to the general course, would impose the required limitation upon the rights of the locator along the lode. The rule that they must be so constructed would be universally applicable; at least, theoretically. The congressional system for the sale of mineral lands is founded upon the proposition that the course of the lode can be traced. That nature, in her infinite variety, does not always so deposit her mineral gifts, is unfortunate; but I think, in construing the law, we may have regard to the views of the lawmakers in regard to its subject, however crude and inadequate such views were. The law of 1866 is said to have been but a crystallization of the rules and customs of the miners. The first lodes worked were, I think, nearly in a uniform direction. The individual claims were short, usually 200 feet. Under such circumstances, it was not difficult to appropriate to each his number of feet on the dip at any depth. In California mines such claims were very often consolidated and disputes avoided. Often, as on the Comstock lode, the miners agreed upon a base line from which the surface form of locations were projected, or to which they were adjusted. would result in parallel end lines.

This

The general practice, I think, was to have their claims bounded, so far as the lode was concerned, by parallel end lines, whatever might be the form of their surface location. In fact, they adopted the idea put forth by Judge Field in the Eureka Case. Their rights on the lode were limited to planes at the limit of their right to the lode on the surface, at right angles to the general course of the lode. The Eureka Case is perhaps the only express authority for this proposition, but I do not find, as claimed by the learned counsel for the appellant, that it has been repudiated by later cases. On the contrary, these cases which imply extralateral rights when the end lines are not parallel seem to concede this rule. I am unable to understand Walrath v. Mining Co., 171 U. S. 293, 18 Sup. Ct. 909, 43 L. Ed. 170, upon any other theory. There was liberty of surface form under the act of 1866, but the law strictly confined the right on the vein below the surface. This accords both with the Eureka Case and the Flagstaff Case, 98 U. S. 463, 25 L. Ed. 253. In the latter case it was said: "But our laws have attempted to establish a rule by which each claim shall be so many feet of the vein lengthwise of its course to any depth below the surface, although laterally its inclination shall carry it ever so far from a perpendicular." But rights on the strike were limited by the surface lines of the location under both laws. Judge Field was familiar with the mining customs and laws. I have no doubt he expressed in the Eureka Case what had been and was the universal understanding and

practice of miners. The rule there declared seems to me reasonable, and, in fact, the only one that can be applied to such patents issued under locations made before the law of 1872 came into existence. If, as suggested, the officers of the land office usually adjust and make the end lines of locations parallel before issuing the patent, such patents, when issued, will be conclusive evidence that such also was the location.

A case has been cited in which the end lines of the location converge in the direction of the dip. Carson City Gold & Silver Min. Co. v. North Star Min. Co. (C. C.) 73 Fed. 597. It was held that the locator had extralateral rights because the conveyance would give less rather than more on the dip of the vein. This may be all right, as it seems to me, however, not because the patent carries less rather than more than would pass had the end lines been parallel, but because that which is granted is described so that it can be definitely located. Under the force of the restriction contained in section 3 of the law of 1872, the locator could not take beyond planes through his end lines. This confined him, within well-defined boundaries, to less on the dip below the surface than he had upon the surface. If this was an attempt to construe the act of 1872, the logic might be questioned. That act, as construed, does not grant extralateral rights because the end lines are parallel or converge towards the dip of the vein, but if they are parallel. The location there under consideration was made un der the act of 1866, and carries extralateral rights because the extent of such rights is definitely described. At least, such was the fact, and no other reason was required. It was therefore not necessary in that case to consider the point here under debate. If this position be correct, the complaint does definitely describe the segment of the lode from which the ore was taken. The judgment is affirmed.

We concur: BEATTY, C. J.; McFARLAND, J.; GAROUTTE, J.; HENSHAW, J.; HARRISON, J.

(131 Cal. 85)

HOXIE V. BRYANT. (L. A. 774–776.)1 (Supreme Court of California. Dec. 22, 1900.)

EXECUTION-LEVY ON NOTE AND MORTGAGEORDER OF COURT-RIGHT TO OBJECT. 1. It is immaterial whether a levy on a note, which could be taken on execution and sold, was made by an order of court or otherwise.

2. Code Civ. Proc. § 17, subd. 3, includes notes in its definition of personal property. Section 688 provides that property may be attached or taken on execution in like manner as on writ of attachment; and by section 542, subd. 3, personal property capable of manual delivery must be attached by taking it into custody. Held, in view of these provisions, that a note of which the sheriff may peaceably take actual possession may be levied on and sold under execution.

3. A judgment provided that a note and mortgage filed in the case should be delivered Rehearing denied January 22, 1901.

to defendant on his payment of the judgment, but he failed to pay the same, and made no attempt to prevent the note becoming barred by the statute of limitations. Held, that he could not object to a levy on, and sale of, the note and mortgage under the judgment.

Commissioners' decision. Department 2. Appeal from superior court, Los Angeles county; D. K. Trask, Judge.

Action by H. E. Hoxie against E. I. Bryant. There was a judgment for plaintiff, and from orders denying defendant's motion to set aside an order of court authorizing a levy, and denying a motion to set aside a levy and sale, and denying a motion to declare the judgment satisfied and discharged, defendant appeals. Affirmed.

Goodrich & McCutchen, for appellant. Works & Lee and Chas. T. Howland, for respondent.

COOPER, C. In May, 1894, the defendant was the owner of a promissory note and mortgage made by one Lewis to him for the sum of $500. The maker of the note was insolvent, and the lands described in the mortgage were of small value, not to exceed $100. Defendant went to plaintiff, and by false representations in regard to the value of the land mortgaged, and by taking plaintiff and showing her different lands, representing that he was showing the lands mortgaged, succeeded in selling the note and mortgage to plaintiff for its face value, $500. As soon as plaintiff discovered that she had been deceived and defrauded, she brought the present action in the superior court to rescind the sale, and to recover of defendant the amount paid him, with interest. The judge of the court below found the transaction on the part of defendant fraudulent, fully stating the facts constituting the fraud, and adjudged that the sale be rescinded, that plaintiff recover the amount paid to defendant, with interest and costs, and that the note and mortgage, which had been filed with the clerk of the court, be delivered up to defendant upon his paying the amount so adjudged to be due plaintiff. This judgment was entered October 27, 1897, and has become final. The defendant has never paid the judgment, and it does not appear that plaintiff can in any way obtain satisfaction of the same. On the 11th day of March, 1899, the plaintiff filed a petition setting forth, among other things, that the note and mortgage had been filed as exhibits at the trial, and were in the clerk's office; that the judgment had never been paid, and that the note and mortgage would become barred by the statute of limitations on the 5th day of April, 1899; and praying for an order permitting the sheriff to levy an execution in the action upon the said promissory note, and sell the same thereunder. The court made an order as prayed for in the petition, and authorized the clerk to deliver up the said note and mortgage to the sheriff, for the purpose of permitting execution to

be levied thereon. In pursuance of the order, the sheriff levied upon the note and mortgage, took them into his possession, and after notice sold them to plaintiff, who was the highest bidder therefor. On April 4, 1899, the day before the statute would run against the note and mortgage, plaintiff filed a complaint for the foreclosure thereof, which action is still pending. On April 12, 1899, the defendant made three motions: (1) To set aside the order of court authorizing the levy on the note and mortgage; (2) to set aside the levy and sale, and recall the writ of execution; (3) that the judgment in the action be declared paid, satisfied, and discharged. These motions were each denied, and defendant has appealed from the orders by three separate appeals, which are brought up in the same transcript. The first two motions involve practically the same proposition, and may be considered together.

The main question involved and discussed is as to whether or not the sheriff may levy a writ of execution upon a promissory note, and sell it as personal property capable of manual delivery. If the note could be so levied upon and sold, it is immaterial whether done by order of court or otherwise. The order probably was unnecessary, but it did no harm. There is no question here involved as to the right of the sheriff to take possession of a promissory note in the hands of the judgment debtor. Neither is there any question as to the rights of any other creditor, except the plaintiff, who had the execution issued upon her judgment. The question, then, is simply as to the right of the plaintiff to levy an execution upon a promissory note in such position and custody that the sheriff may peaceably take the actual possession of it. The promissory note was personal property. Code Civ. Proc. § 17, subd. 3. Property may be attached or taken on execution in like manner as upon writ of attachment. Id. § 688. Personal property capable of manual delivery must be attached by taking it into custody. Id. § 542, subd. 3.

In the case of Davis v. Mitchell, 34 Cal. 81, the matter was fully considered, and it was held that under the provisions of the practice act, which are similar to the provisions of the Code on the same subject, a promissory note is subject to seizure and sale under execution. This case was cited with approval in Donohoe v. Gamble, 38 Cal. 352, and has never been overruled, and we see no reason for changing the rule as therein laid down. This court in McBride v. Fallon, 65 Cal. 303, 4 Pac. 19, refers to the case of Davis v. Mitchell, supra, and says: "We could not, with our present views, assent to the doctrine of that case;" but the court was discussing the question as to whether or not a judgment could be levied upon and sold under execution as personal property capable of manual delivery. The question here presented was not in any way involved in the case. In Dore v. Dougherty, 72 Cal. 235, 13

Pac. 621, It was held that a judgment was not subject to levy and sale under execution as personal property capable of manual delivery. The distinction between a judgment and a promissory note is plain. The judgment is a matter of record. It is the record evidence of the debt due by the judgment debtor. It is not capable of being taken out of the book where it is recorded and personally delivered. The sheriff cannot seize the judgment, take possession of it, and sell it. But a promissory note, negotiable in form, which passes in the commercial world by indorsement and delivery, and is subject to sale, is quite different. The owner of such promissory note cannot refuse to pay a just judgment against him, and claim the note as exempt from execution. If it, in any way, can be found and seized by the sheriff on execution, it may be sold and delivered to the purchaser. A similar statute exists in Louisiana (article 647, Code Prac.), and it is held in that state that promissory notes may be levied upon and sold. Fluker v. Bullard, 2 La. Ann. 338; Stockton v. Stanbrough, 3 La. Ann. 390; Nugent v. McCaffrey, 33 La. Ann. 271. In Iowa an execution may be levied upon a promissory note, and the note sold by the sheriff. Rev. St. Iowa, § 3272; Earhart v. Gant, 32 Iowa, 483. And so in Indiana. 2 Rev. St. 1876, p. 208, § 438; Bay v. Saulspaugh, 74 Ind. 399. In Freem. Judgm. (3d Ed.) § 112, the author in stating the rule says: "There are many choses in action which, from their intangible character, seem to be incapable of being made the subjects of direct levy and sale. Of this character are all debts and credits not evidenced by writing, or by something capable of being seized and taken into possession, or in some manner made to bear witness to a change in their ownership." He then enumerates both accounts and judgments as being such property. In a late case decided by the supreme court of New York (Kratzenstein v. Lehman, 46 N. Y. Supp. 71), in speaking of the authority given by the Code of New York to levy upon a promissory note, the court said: "While they do not always pass by delivery, but sometimes require an indorsement to transfer a complete title, yet they are usually paid or payable only to the person who has them in his actual possession; and the possession itself is ordinarily required as satisfactory evidence of the right to recover the money which is to be paid by their terms. While they are, in a technical sense, choses in action, yet practically the paper itself is property, is regarded as such, and is dealt with like other tangible personal property." The motions were therefore properly denied. Aside from the main point, the defendant is not in position to complain. He does not appear to have paid the judgment, or to have in any way attempted to get the promissory note and mortgage. He made no attempt to prevent the note from becoming barred by the statute, and when he made

these motions the statute, but for the act of plaintiff, would have run. If the motions had been granted, the promissory note and mortgage barred by the statute would probably be worthless. In seems that defendant intends, as appears by this record, not only to leave plaintiff's judgment unpaid, but to attempt to keep plaintiff from selling the mortgaged lands, which the court found to be what is known as "wash land and worthless." While defendant is entitled to his legal rights, yet his position here certainly does not commend him to the favorable consideration of a court of equity. It follows that the orders, and each of them, should be affirmed.

We concur: HAYNES, C.; CHIPMAN, C.

PER CURIAM. For the reasons given in the foregoing opinion, the orders, and each of them, are affirmed.

(131 Cal. 51)

ROONEY v. SNOW, City Auditor.
(S. F. 1,629.) 1

(Supreme Court of California. Dec. 21, 1900.) MANDAMUS-TO CITY AUDITOR-VOLUNTARY PAYMENT-INVALID ORDINANCE.

1. Mandamus will not lie to compel a city auditor to draw a warrant pursuant to an ordinance appropriating money to pay the claim of R., and directing the auditor to draw his warrant in favor of R. for such sum, his duty not being ministerial merely under the city charter providing that every demand shall be presented to him for approval, and that he shall "satisfy himself whether the money is legally due."

2. The voluntary character of a payment to a city for license under the supposition that the place of business is within the city limits is not changed by the subsequent discovery that it is outside; so that an ordinance providing for its repayment is invalid.

Department 1. Appeal from superior court, Alameda county; F. B. Ogden, Judge. Mandamus by Owen F. Rooney against R. W. Snow, auditor of the city of Oakland. Judgment for defendant. Plaintiff appeals. Affirmed.

Reed & Nusbaumer, for appellant. W. A. Dow, for respondent.

VAN DYKE, J. In April, 1898, the city council of the city of Oakland passed an ordinance, the first section of which reads as follows: "The sum of one thousand dollars is hereby appropriated from the general fund of the city of Oakland for the year 1897-98 to pay the claim and demand of Owen F. Rooney for moneys erroneously collected by the city of Oakland from said Owen F. Rooney, and paid by him under protest, as liquor license for the saloon and restaurant kept by said Owen F. Rooney at the end of the Oakland pier." By the second section of the said ordinance the auditor is directed to draw his warrant in favor of said Rooney for the sum of $1,000, and the treasurer of the city is ordered to pay said Rehearing denied January 19, 1901

warrant. The respondent, Snow, as auditor of the city of Oakland, refused to draw his warrant upon the treasurer, as required by said ordinance. Thereupon the plaintiff applied to the superior court of Alameda county for an alternative writ of mandate against said respondent as such auditor, requiring him to show cause why he did not draw a warrant in favor of the plaintiff, as required by said ordinance. The respondent demurred to plaintiff's petition, and the lower court sustained the demurrer. Plaintiff declining to amend, judgment was entered in favor of the defendant for costs, from which judgment this appeal is taken.

The appellant relies upon said ordinance as the foundation of his claim, and maintains that the auditor of said city has no discretion in the matter, but merely a ministerial duty to perform in drawing the warrant in accordance with the ordinance. By section 40 of the charter of the city of Oakland every demand, before it can be paid, must be presented to the auditor to be approved, "who shall satisfy himself whether the money is legally due and remains unpaid, and whether the payment thereof from the treasury of the city is authorized by law, and out of what fund. After such examination he shall approve or reject the claim in whole or in part, and endorse upon such demand his approval or rejection over his signature, together with the date thereof. If it is approved, the fund out of which it is to be paid shall be designated. If the claim is rejected, or any part of it, unless the party presenting it is willing to take in full of the entire demand the sum offered, the auditor shall return it to the council, board or other body which originally authorized it, then if it is allowed by a majority vote of all the members of the council, or of the members of the board or other body authorizing it, and approved by the mayor, it can be audited in the same manner as if it had not been rejected: provided, the said council, board or other body had the authority to make the expenditure out of which the claim arose." St. 1889, p. 531. It is manifest from the city charter that the powers conferred and the duties imposed on the auditor in the premises require the exercise of judgment and discretion, and not merely the performance of clerical or ministerial duties. And this power conferred upon the auditor comes from the same source as that conferred upon the city council, and is of equal rank. The city council has no power to direct the auditor to audit an illegal claim, or to draw his warrant for payment of the same, or one which there is no authority in law to allow; and, if the council should pass such an ordinance, the auditor would not be required to carry out the direction, but it would be his plain duty to refuse to do so,-he must "satisfy himself whether the money is legally due." As said in Von Schmidt v. Widber, 105 Cal. 151, 38

Pac. 682: "Powers of a municipality are to be exercised through its legally constituted agents, and the authority of such officer, board, or department to exercise any of the corporate power with which a municipality has been clothed must be distinctly conferred upon that officer, board, or department, or its acts create no obligation against the municipality." The only statement in the petition in reference to the nature of the plaintiff's demand is contained in the said ordinance, which is set out in said petition; and the language of the ordinance is that the claim is for money erroneously collected by the city of Oakland from said Rooney for a liquor license for his saloon and restaurant kept by him at the end of Oakland pier. But the petition does not show how or why the money was erroneously collected. It appears, however, that in City of Oakland v. Oakland Water-Front Co., 118 Cal. 160, 50 Pac. 277, this court held that "ship channel," being the western boundary line of the city of Oakland, was the ine of ordinary low tide. The end of the Oakland pier, at which point this plaintiff's saloon and restaurant were kept, was discovered not to be within the city of Oakland. The plaintiff and others were supposed to know where the boundary lines of the city of Oakland were as well before as since the decision in question. The charter of the city of Oakland, defining its boundaries, is a public statute, and the lines were not altered or changed by such decision, but simply defined according to the act itself. The payment of the license by Rooney, although it was stated in the ordinance to have been under protest, was, nevertheless, voluntary on his part, and as such cannot be recovered back. "The illegality of the demand paid constitutes of itself no ground for relief. There must be, in addition, some compulsion or coercion attending its assertion, which controls the conduct of the party making the payment." Brumagim v. Tillinghast, 18 Cal. 271. In Maxwell v. San Luis Obispo Co., 71 Cal. 466, 12 Pac. 484, the plaintiff alleged that "the moneys sued for were exacted and collected by the tax collector without authority of law, and as a condition precedent to the carrying on of business, and by threats, menaces, legal prosecutions, suits, actions, processes, attachments, seizures, confiscations, and sequestrations, which he, the said tax collector, gave out and made for the purpose of causing the payment of said moneys; and that said moneys were all paid under and by reason of said threats and menaces, and would not have been paid but for such threats and menaces." Yet this court in its decision says: "The tax collector had no real or apparent power to execute the threats of seizure, confiscation, and sequestration. The law under which he assumed to exact license taxes authorized him to direct suits to be brought for the recovery of such taxes, and to have attach

ments issued in such actions;" and adds that the plaintiff was "not liable to anything beyond civil and criminal prosecutions in which the invalidity of the law which authorized the collection of the taxes would have been a perfect defense." Many cases are referred to in support of this view of the court, which it is unnecessary here to quote. It was held in that case that the complaint did not state a cause of action for the recovery of money, and the judgment was reversed, with directions to the court below to sustain the demurrer to the complaint. In Phelan v. City and County of San Francisco, 120 Cal. 1, 52 Pac. 38, it is said that, in order to constitute a payment under duress, there must be some coercion or compulsion, or some exercise of authority over the person or property of the party making the payment which controls his action, and which can be avoided only by making the payment. Nor does the payment of the taxes under protest of such party take from the payment its voluntary character unless it is necessary in order to protect his person or property. To the same effect are O'Brien v. Colusa Co., 67 Cal. 503, 8 Pac. 37, and Grimley v. Santa Clara Co., 68 Cal. 575, 9 Pac. 840. The payment of the license tax by the appellant was voluntarily made under the supposition, doubtless, that his place of business was within the city of Oakland. But, because that turns out not to be so, the character of the payment is not altered. In law it is still deemed to be a voluntary payment, and the city is not responsible in the matter, nor required to refund the money so paid. This being so, the ordinance under consideration is without authority of law, and invalid, and the respondent was fully justified in refusing to follow its direction. Judgment affirmed.

1. Where an action is brought against a sheriff for the wrongful sale of exempt property, and the full value thereof is recovered, it is error to refuse a new trial on the ground of newly-discovered evidence on a showing that the owner of the property repurchased it after the sheriff's sale for less than it was worth, since the measure of damages is the sum necessary to compensate the owner as authorized by Civ. Code, § 3333, and not the value of the property as authorized by section 3336, as the latter section does not apply when the property is repurchased.

2. On the trial of an action against a sheriff for the wrongful sale of exempt property, the plaintiff's pleadings did not show that the property had been repurchased after the sale for less than its value, and the plaintiff did not testify to such fact, but a witness testified that 'Rehearing denied January 23, 1901

he saw part of the property in plaintiff's possession after the sale. Plaintiff recovered a verdict for the value of the property. Held not to show such a want of diligence on the part of defendant as would warrant a refusal of a new trial on a showing of such repurchase.

3. Where a sheriff wrongfully sells exempt property in connection with other property, and all is repurchased by the owner for less than its value, the amount so paid should be apportioned between the exempt and the other property in determining the damage caused by the sale of the exempt property, in an action against the sheriff to recover therefor.

Commissioners' decision. Department 2. Appeal from superior court, Merced county; William O. Miner, Judge.

Action by H. C. Blewett, administrator, against Henry Miller and others, for the wrongful levy and sale of exempt property. From a judgment in favor of the plaintiff, and from an order denying a new trial, the defendants appeal. Reversed.

E. N. Rector and Frank H. Farrar, for ap pellants. Chas. H. Marks and B. F. Fowler, for respondent.

SMITH, C. The appeal is from a judgment in favor of the plaintiff and from an order denying the defendants' motion for a new trial, but the only point made by the appellants' counsel, and the only point that need be considered, is that a new trial should have been granted on the ground of newly-discovered evidence. The defendant Warfield is sheriff of Merced county, and, it is found, seized under attachment certain property of the plaintiff's intestate that was exempt from execution, namely, a harvester and five gang plows. The other defendants are the sureties on his official bond. The suit was brought to recover damages for this taking. The court found that the harvester was at the time of the taking of the value of $1,000, and the plows of $60, and gave judgment for the aggregate amount, with legal interest from the time of the taking. It appears from the affidavit of Warfield that at the sale of the property levied on by him-consisting of the property in controversy and 23 mules and other property-the whole of the property was sold to C. F. Blewett (plaintiff in the attachment suit) for the sum of $750, who, on the same day, sold the same to the plaintiff's intestate for the sum of $1,100, and that the mules alone were worth more than that sum. Had this fact been known at the trial, the result must have been different; for the plaintiff— his intestate having recovered the propertywas not entitled to recover its full value. The rule is that, "where one recovers his property again which had been unlawfully taken from him, he is considered as having received it in mitigation of damages"; and the measure of damages, in the absence of special damage, is the expense of procuring its return (with interest). 1 Suth. Dam. 239. And see 3 Suth. Dam. 527, and to same effect 1 Sedg. Meas. Dam. § 58. The rule applies generally without regard to the means by which the return