Pacific Coast Law Journal. VOL. 2. NOVEMBER 16, 1878. No. 12. Current Topics. THE Contest between the applicants for the receivership in the French Bank case, pending before the Fourth and Fifteenth District Courts of this city, presents to the profession quite an interesting question of jurisdiction. The main questions are, whether either court has jurisdiction to appoint a receiver in the case of an insolvent corporation, and which of the two courts has jurisdiction, the complaint having been filed in the Fourth District Court prior to the appointment of a receiver by the Fifteenth District Court. The whole matter is now before the Supreme Court, and these intricate questions will soon be settled. IN Urquhart vs. Brayton (18 Alb. L. J. 371), in the Supreme Court of Rhode Island, recently decided, upon the following statement of facts: "A made three successive mortgages of his realty to B, C, and D; he then sold this realty to E, describing the mortgages in his deed of conveyance, and adding the words, "Which said mortgages are hereby assumed by E, as part of the consideration of this deed." Subsequently B, the first mortgagee, sold the realty under the powers of his mortgage. D, the third mortgagee, then brought assumpsit against E, the purchaser from A, for the amount of A's mortgage note to D. Held: (1) that E was liable for the amount of the note; (2) that E's liability was under an implied contract, and hence not subject to the Statute of Frauds; (3) that E's liability, not arising from a sealed contract, might be enforced by assumpsit, and (4) that D was entitled to re cover. "Semble, that E's implied contract with D is by novation substituted for A's contract with D." THE holder of negotiable paper, taking it good for consideration in the usual course of business, without knowledge of facts impeaching its validity, holds it by a good title. It is not enough to defeat his recovery to show that he took it under circumstances that might tend to excite suspicion. This was recently held by the Supreme Judicial Court of Maine, in Farrell vs. Lovett. Supreme Court of California. OCTOBER TERM. [No. 6,076.] [Filed October 28, 1878.] BABE vs. COYNE. SHERIFF-JUSTIFICATION Under Writ oF ATTACHMENT.-A Sheriff makes out a prima facie case of justification of the seizure of property under a writ of attachment, by the production of the writ and affidavit on which it was issued, notwithstanding the affidavit before amendment was insufficient, and its amendment was subsequent to the seizure, if the property was in the possession of the defendant, and attached as his property. The Sheriff is entitled to show such justification, irrespective of any question respecting the sale to the plaintiff's lessor, as being, for any reason, fraudulent or void. Appeal from Eighteenth District Court, County of San Diego. This action was brought against the defendant as Sheriff of San Diego County, for the recovery of certain personal property, or its value. The defendant showed, by his answer, that he, as Sheriff, levied on the property by virtue of an attachment, in the suit of Patrick vs. Horton; that the plaintiff now had possession of the property. At the trial, defendant offered in evidence all the papers in the suit of Patrick vs. Horton, from which it is seen that in said suit a motion was made to dismiss the attachment and denied, and leave was given to Patrick to amend the affidavit for attachment, to which the defendant in said action excepted. To the introduction of said papers the plaintiff in this action objected, on the ground that the writ of attachment appears insufficient as a justification of the defendant in this case, because the original affidavit upon which it was issued was insufficient, and because the amended affidavit was made and filed since the levy on plaintiff's property, and since his rights accrued, and since the beginning of the cause. The court overruled said objections, and gave judgment for defendant for a return of the property. M. A. Luce and C. H. Robinson, for appellant. PER CURIAM. When the record and proceedings in the case of Patrick vs. Horton, including the papers in the attachment proceedings in that case, were offered in evidence, the plaintiff objected, on the ground, among others, that the affidavit on which the attachment was issued was insufficient; and that the amended affidavit, filed by leave of the court, was filed after the levy of the attachment, and after the commencement of this action. The court found-and for the purposes of this question it must be taken to be true-that the goods, when attached, were in the possession of Horton, and were attached as his property. In the proceedings in the action of Patrick vs. Horton, the court denied the motion of Horton to dissolve the attachment, and gave Patrick leave to file an amended affidavit for an attachment, as of the date of the original affidavit. These orders and affidavit were valid as against Horton, unless set aside in direct proceedings for that purpose. The property in controversy, when seized, being in Horton's possession, the Sheriff would make out a prima fucie case of justification of the seizure of the property as the property of Horton by the production of the writ of attachment, and the proceedings and affidavit above mentioned. The Sheriff was entitled to show such justification, irrespective of any questions respecting the sale to the plaintiff's lessor, as being, for any reason, fraudulent or void. Judgment affirmed. [No. 5,973.] [Filed October 28, 1878.] HUSTON ET AL., RESPONDENTS, VS. LEACH ET AL., APPELLANTS. WATER RIGHTS-Decree-CONSTRUCTION.-The clause of the decree enjoining the defendants "from in any manner interfering with the waters of said springs so as to prevent the same or any part thereof from flowing into Lytle Creek," applies to defined streams, and not percolations, where it is shown that a portion only of the water percolating through the land form springs, and from them run little streams. Appeal from Eighteenth District Court, San Bernardino County. This action was brought to enjoin the defendants from diverting and using water from Lytle Creek. The plaintiff's rights are based upon prior appropriation. The defendant, Wilson, was a pre-emptor of 160 acres of land, upon a portion of which there is a cienega, or swampy land, in which water rises in several small springs, and runs down into said Lytle Creek; and he therefore claims the right to appropriate this water, either before or after it reaches said creek. The evidence showed, that upon this cienega the water rose in different places in little springs, and run into the creek, and in some places it seeps out of the ground, and then runs into the creek. Some of them form little rivulets, and, after coming off the bench or table land, form a little stream. Some of them come off on the edge of this little bench, and a little seep comes out. A part only of the water seeps above the ground and runs into the creek. The court below enjoined the defendant from diverting the waters of said creek, and from interfering in any manner with the waters of said springs, so as to prevent the same from running into said creek. Defendant Wilson appealed. PER CURIAM. 66 The clause of the decree by which the defendant, Wilson, is enjoined from in any manner interfering with the waters of said springs, so as to prevent the same, or any part thereof, from flowing into Lytle Creek," only applies to defined streams, and does not restrain him from availing himself of percolations, even though he might thereby diminish the water which would otherwise issue from the springs. Judgment and order affirmed. Unwritten Opinions. SUPREME COURT OF CALIFORNIA—OCTOBER TERM. Winnegar vs. Purrington-5997. Decided October 5, 1878. The complaint shows that the defendant, Tyler, conveyed the premises in controversy to Simpson, plaintiff's testator, and took a lease of the same for one year, and was to pay all accruing taxes as a part of the consideration. At the same time, Simpson agreed to reconvey to Tyler, on the payment of $3,000. By a renewal of the agreement, said payment was to be made by the 14th of March, 1876. (The court found that these agreements constituted a mortgage, but the evidence of Tyler, upon which it was based, was excepted to, because of Section 1880, C. C. P., and because it varied from the written agreements.) Tyler failed to pay the taxes, and the land was sold to one Yeager, and the deed was dated September 2, 1875. Before this, Tyler en |