Paine v. Linhill.

indebtedness to the plaintiffs, but it does not contain any specific denial of the execution of the draft.

The plaintiff obtained judgment against the corporation for the amount due on the draft, and a decree for the sale of the right, title, and interest, of McCall and Clary, in the mortgaged premises, the application of the proceeds to the payment of the judgment, and execution for any deficiency against the corporation. From this judgment and decree the corporation appeals, and assigns as error: first, that the decree is, in part, against McCall and Clary, who are not named in the complaint as defendants, and were not served with process; second, that the complaint does not aver notice to the drawee of the presentation and non-payment of the draft; and, third, that the draft is not an obligation of the company, but only of McCall and Clary.

The first error assigned can not be taken advantage of by the appellants. The corporation is not injured if the decree does embrace parties not named in the complaint, or served with process.

The second assignment of error is answered by the fact that the drawee of the draft is an officer of the company. The draft is only an order of the company upon itself-from its head and secretary, upon its treasurer; and it is well settled that in such cases no notice of presentation and non-payment is necessary.

The third assignment is answered by the fact that the execution of the draft by the corporation is not put in issue by the pleadings.

Judgment affirmed.

PAINE v. LINHILL et al.

On an appeal from an order made on affidavits filed, no statement is necessary. The affidavits must be annexed to the order, in place of a statement, and the certificate of the clerk should specify the affidavits used, and to enable him to do so he should, at the time, mark them as filed on the motion.

MOTION to vacate an order of dismissal, and to reinstate the cause on the calendar.

Charles E. Filkins for the motion.

R. S. Mesick in opposition.

FIELD, J., delivered the opinion of the Court-TERRY, C. J., and BALDWIN, J., concurring.

The appeal in this case was dismissed at the present term, for failure of the appellant to file a transcript of the record. The

Bradley v. Gardner.

appellant now moves to vacate the order of dismissal upon the certificate of the clerk of the Court below that the statement prepared was submitted some months since to the District Judge for settlement, and has not as yet been settled.

In answer to the motion, the respondent shows that the order appealed from was made upon affidavits of the respective parties, and insists that no statement is required.

The Practice Act, after designating the manner in which statements shall be prepared, expressly excepts appeals from an order made upon affidavits filed, and provides that the affidavits shall be annexed to the order, in place of the statement. (§§ 339, 343.) All that is requisite, then, in such cases, is that the certificate of the clerk should specify the affidavits used, and to enable him to do so he should, at the time, mark them as filed on the motion. Motion denied.

BRADLEY v. GARDNER.

In an action of slander, for words spoken in the presence and hearing of the plaintiff, and immediately after the defendant had uttered the slanderous words the plaintiff replied to them, which reply plaintiff offered to prove on the trial, and the Court refused to hear such proof: Held, that such ruling of the Court was error, as the reply might have qualified or explained the slanderous words, or shown in what sense they were uttered, or might have even admitted their truth.

APPEAL from the District Court of the Third Judicial District, County of Santa Clara.

This was an action for slanderous words spoken by the defendant, of and concerning the plaintiff, and in his presence.

On the trial, James Brownley, a witness for the defendant, after stating that plaintiff and defendant were quarreling in front of a saloon, in the town of Santa Clara, and detailing the slanderous words used by defendant, testified as follows: The plaintiff called Gardner a Christ-killer. After this, Gardner went across the street to wait on a lady." Record then proceeds: "Witness was then about to tell what Bradley hallooed to Gardner immediately after he went across the street, to which plaintiff objected, and defendant insisted on witness making the statement, on the ground that it was a part of the same conversation. The Court sustained the objection, on the ground that it was statements of the plaintiff made after the slanderous words were spoken by the defendant." To which ruling of the Court, defendant excepted.

The cause was tried before a jury, who returned a verdict for plaintiff, and assessed the damages at $500. Judgment was en

Stewart v. Street.

tered thereon. Defendant moved for a new trial, which was refused, and he appealed to this Court.

Williams and Ryland for Appellant.

Vories and Archer for Respondent.

BALDWIN, J., delivered the opinion of the Court-TERRY, C. J., and FIELD, J., concurring.

Without considering the other assignments of error, it is apparent that the judgment must be reversed, on the ground that the Court below, on the trial, refused to admit the proof of the entire conversation between plaintiff and defendant at the time of the uttering of the alleged slanderous words. The question asked was as to the reply made by the plaintiff when the defendant uttered the words for speaking which suit was brought. That reply might have qualified or explained the words, or shown in what sense they were uttered, or even admitted their truth. At all events, they were a part of the transaction out of which the suit arose; and the plaintiff was entitled to have them if he thought them material. For this error, the judgment must be reversed, and the cause remanded.

STEWART v. STREET & CO.

To a complaint sworn to, on a promissory note payable in a sum certain," in monthly pro rata instalments, out of the first net proceeds from sale of water," and an allegation that defendants turned off the water from the ditch, the proceeds of the sales of which water were to be applied to the payment of the note, and thereby diminished the quantity, etc.-the defendant answered by admitting the making of the note, but denied, "to the best of his knowledge, information, and belief, all and singular the other allegations in said complaint:" Held, that such answer did not amount to a specific denial of the allegations of the complaint.

The statute makes such an instrument prima facie evidence of indebtedness, though no consideration be expressed therein.

APPEAL from the District Court of the Fifth Judicial District, County of Tuolumne.

This was an action brought on three several promissory notes, of $115 68 each. They are all in the same form, which is as follows:

"SULLIVAN'S CREEK AND, TUOLUMNE RIVER WATER CO.,}

"$115 68-100.

Flat,

"The undersigned promise to pay J. S. Stewart, or bearer,

Lehmaier v. King.

one hundred and fifteen 68-100 dollars, in monthly pro rata instalments, out of the first net proceeds from sale of water. "No. 18. J. STREET & Co., Proprietors."

The complaint, after setting out the notes and the averment of the amount due thereon, alleges that defendants turned off the water from the ditch that was in operation, and conveying water to various mining localities in Tuolumne county, at the time said instruments of writings were executed, and that the quantity of water was thereby greatly diminished, etc. The complaint was verified.

To this complaint, the defendants answered by admitting the making of the several instruments, and "denied, to the best of their knowledge, information, and belief, all and singular the other allegations in said complaint."

The cause was tried before a jury—a verdict was rendered for plaintiff, and judgment entered thereon. Defendants appealed. The record contains no statement on appeal.

Barber for Appellants.

L. Quint for Respondents.

BALDWIN, J., delivered the opinion of the Court-TERRY, C. J., and FIELD, J., concurring.

The defendants are in no condition to avail themselves of the points made in their briefs, if, indeed, there is anything in them. In the first place, there seems to be no statement. In the second, the allegations of the complaint are not specifically denied ; and, in the third place, we think that the only point seriously urged by the appellants-the want of consideration in the paper sued upon-is unfounded, because whatever the rule may be at common law, the statute (Wood's Digest, 75, 81) makes such an instrument as that sued on, prima facie evidence of indebtedness, though no consideration be expressed therein. Judgment affirmed.

LEHMAIER et als. v. KING.

Nelson v. Nelson (6 Cal. R., 430) affirmed.

APPEAL from the District Court of the Fourth Judicial District, County of San Francisco.

This action was commenced on the first day of April, 1857, in

Green v. The Jackson Water Company.

the Fourth District Court, on three several promissory notes, made by defendants, in the city of New York, and dated, respectively, January 27, 1853, and May 20, 1853. The notes are payable in six, ten, and eight months, after their respective dates.

The defendant plead the Statute of Limitations; "that the notes were made out of this State; and the several causes of action arising thereon, and mentioned in the said complaint, accrued to the plaintiff more than two years before the commencement of this suit." To which answer the plaintiffs demurred, on the ground that the same "does not state facts sufficient to constitute a cause of defence."

The Court sustained the demurrer, and the defendant appealed to this Court.

Crockett, Baldwin, and Crittenden, for Appellant.

Harmon and Labatt for Respondents.

TERRY, C. J., delivered the opinion of the Court-FIELD, J., concurring.

Judgment affirmed, on the authority of Nelson v. Nelson, (6 Cal., 430.)

GREEN v. THE JACKSON WATER COMPANY, J. B. BAYERQUE, (INTERVENOR.)

Where a civil engineer's lien for work done for the defendants in the construction of a canal or ditch, was filed in the recorder's office of the county where the ditch is located, on the 6th day of May, 1856, and suit was not commenced to enforce the lien until the 26th day of January, 1857: Held, that the time fixed by statute for the enforcement of the lien had expired before the commencement of the suit, and that the plaintiff was not entitled to a judgment giving a lien upon the property. Where a complaint was filed on the 30th day of October, 1856, and no summons was issued thereon, and an amended complaint was filed on the 26th of January, 1857, and summons issued thereon: Held, that the suit was not commenced until the issuing of the summons.

APPEAL from the District Court of the Fifth Judicial District, County of Amador.

George W. Green brought suit to recover of the Jackson Water Company, a corporation doing business in the county of Amador, the sum of $1952 91-100, for labor, as civil engineer, performed in the construction of a certain water-race, ditch, or canal, in the county of Amador, and to enforce a laborer's lien against the ditch for that amount. The labor was performed