Tarpey v. Shillenberger.

a several decree for the amounts due from the defendants, on the hypothesis that each was only liable for his respective share of the debt, the consequence would be that if some were unable to pay, the proportions would have again to be adjusted, and the whole matter would be thrown into confusion.

We have arrived at this result with some hesitation, and certainly the question is not free from difficulty; but we think, on the whole, that this is the most satisfactory mode of settling this controversy.

No account is necessary. This debt seems, from the record, to be the only matter between these parties, and we can not go out of the case to imagine other transactions, which would render the statement of an account necessary.

Decree affirmed.

TARPEY v. SHILLENBERGER et als.

In an action against the sureties on an injunction-bond, the condition of which is, that the plaintiffs in the suit for whom the sureties undertook, should pay all damages and costs that should be awarded against the plaintiff by virtue of the issuing of said injunction by any competent Court, and the complaint did not aver that any damages had been awarded: Held, that such complaint is fatally defective.

The sureties are entitled to stand on the precise terms of the contract, and there is no way of extending their liability beyond the stipulation to which they have chosen to bind themselves.

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

This suit was brought against the sureties to an undertaking to obtain an injunction. The defendants demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The Court below sustained the demurrer, and the plaintiff appealed. The ground upon which the demurrer was sustained appears in the opinion of the Court.

John and M. D. Wilson for Appellant.

P. L. Edwards and R. F. Peckham for Respondents.

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

This suit was brought in the Third District, upon an undertaking entered into by defendants, as sureties for other parties, on the latter obtaining an injunction. The condition of the undertaking is, that the plaintiffs in the suit for whom the sureties

Walsh v. Harris.

undertook, should pay all damages and costs that should be awarded against the plaintiff by virtue of the issuing of said injunction by any competent Court. No sufficient breach is averred, since it is not alleged that any damages were so awarded. The sureties are entitled to stand on the precise terms of the contract, and we know of no way of extending their liability beyond the stipulation to which they have chosen to bind themselves. None of the voluminous matter set up in the complaint helps it. It is fatally defective, and the Court below was right in sustaining the demurrer. The judgment is affirmed.

WALSH et als. v. HARRIS et als.

In an action for damages for the diversion of water from the plaintiffs' ditch, the defendants denied the diversion, and alleged that the water used by them was used by agreement between the Volcano Water Company and themselves, and the water came from the reservoir of the Volcano Water Company. On the trial, after the plaintiffs had introduced in evidence the judgment wherein the right to the use of the water had been adjudged between the plaintiffs and the Volcano Water Company, and offered to prove by oral testimony that the water used by defendants is the same water that was in controversy in that suit: Held, that such evidence was proper, and should have been admitted, as there was no other means than by parol of establishing this fact.

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

This was an action to recover damages for the diversion of water by the defendants from the plaintiffs' ditch, and for an injunction to restrain defendants from a continuation thereof. Plaintiffs were incorporated under the name of the "Sutter Creek Water Company," and claimed the waters of the north branch of Sutter Creek, in the county of Amador.

The defendants owned mining-claim, and claimed that the water used by them for the working of their claim, leaked through the dam, or reservoir, of the Volcano Water Company, and was used and appropriated by them in pursuance of an agreement with the "Volcano Water Company?

The case was tried before a jury. On the trial, the plaintiffs introduced and read in evidence the judgment in the case of the Sutter Creek Water Company v. The Volcano Water Company, wherein the right to the use of the water had been adjudged between the plaintiffs and the Volcano Water Company, under whom the defendants claimed. Plaintiffs then offered to prove by parol that the water in controversy in that suit was, and is,

Middlesworth v. Sedgwick.

the same water now in dispute between the parties to this suit, which evidence the defendants objected to, and the Court sustained the objection and refused to allow the evidence to to go the jury. Plaintiffs excepted. The jury returned a verdict for the defendants, plaintiffs moved for a new trial, which was denied, and they appealed to this Court.

Robinson, Beatty, and Heacock, for Appellants.

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

Suit in May, 1856; judgment in October, 1856.

The Court erred in refusing to admit testimony offered by plaintiffs to show that the water alleged in this suit is the same water for which a recovery was had in former cases between the present plaintiffs and the parties under whom the defendants claimed. There was no other means than by parol to establish this fact; and for this error the judgment is reversed, and cause remanded.

MIDDLESWORTH v. SEDGWICK.

Where M. made a bill of sale to G. of forty-two barrels of vinegar, then in possession of G., as keeper for the sheriff, as collateral security for a debt due G., and G. subsequently gave back the bill of sale to M. without any liquidation of the debt or change of the possession of the property, and the property was afterwards sold by the defendant as sheriff, M. bringing an action of trover against the defendant, to recover the same: Held, that M. had no title to the property upon which he could recover in such an action, as the mere handing back the bill of sale to M. did not re-vest the title in him.

In trover, the plaintiff must either have the possession, or the immediate right to the possession of the property, to entitle him to recover.

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

This was an action to recover of the defendants one thousand dollars damages for the taking and converting to his use fortytwo barrels of vinegar, alleged to be the property of the plaintiff. The cause was tried before a jury, who returned a verdict for the plaintiff, and assessed the damages at $510. Judgment was entered thereon. Defendant moved for a new trial, which was denied, and he appealed to this Court. The facts upon which the decision of this Court turned, appear in the opinion of the Court.

Barber for Appellant.

Calhoun v. Knight.

E. F. Hunter for Respondent.

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

Trover for the conversion of forty-two barrels of vinegar.

It is not necessary to consider any point in this curious case but one, which seems fatal to respondent. No proof was made by the plaintiff which, on his own case, entitled him to recover. The barrels in which the vinegar was, it seems, were in a brewery, occupied by Slater & Anderson, against whom the plaintiff had process. They were removed from the premises and put in the keeping of one Garrison, who receipted for this and other property to the sheriff. After this, and while the barrels were in possession of Garrison, Middlesworth turned the vinegar over by making a bill of sale of it to Garrison, as collateral security for a debt due to Garrison, the keeper. Garrison says that he gave back the bill of sale to Middlesworth, and that the plaintiff still owes the money, and that he, witness, docs not know that he has any interest in the judgment that may be had in this suit. We think even if this proof shows that the plaintiff ever had any interest in this vinegar, it shows that he parted with all his interest before the bringing of the suit. By the bill of sale and contract, he parted with his title to Garrison, who then had possession, and Garrison's merely handing back the bill of sale to plaintiff did not re-vest the title in him. In trover, plaintiff must either have the possession, or immediate right to the possession, to maintain the action.

This being the proof as to the title, and being insufficient to maintain it, the Court should have granted a new trial. Judgment reversed, and new trial ordered.

CALHOUN v. KNIGHT.

Where two mules are claimed as exempt from forced sale on execution, it must be shown that the party claiming the mules habitually earned his living by the use of the animals in question, or that he is one of the persons mentioned in the statute.

APPEAL from the District Court of the Eighth Judicial District, County of Siskiyou.

This was an action to recover possession of two mules, sold by the sheriff under execution against the plaintiff, but which plaintiff avows were exempt from execution. Plaintiff had judgment, and defendant appealed to this Court.

Van Pelt v. Littler.

J. A. Fletcher for Appellant.

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

We think the evidence was insufficient to sustain the judgment. The statute exempts from forced sale, "two horses, oxen, or mules, by which a cartman, teamster, or other laborer, habitually earns his living."

It is not shown that the plaintiff is one of the persons mentioned in the statute, or that he habitually earned his living by the use of the animals in question. Judgment reversed.

VAN PELT v. LITTLER et als.

F. sold and delivered to V. P. certain goods, the possession of which V. P. retained for two or three days, when he leased the premises in which the goods were, and delivered the goods to F., his vendor, and one M., who after carrying on the business in connection with F. for a few days, retired, leaving F. in the exclusive possession of the property, which possession continued until the goods were seized by L., as constable, under an execution against F.: Held, that the sale of the goods to V. P. was void as to creditors, and the goods were subject to the execution against F.

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

This was an action on the bond of a constable, to recover the value of certain goods seized on execution as the property of one Foster. The cause was tried before a jury, who returned a verdict for the plaintiff, and judgment was entered thereon. Defendants moved the Court for a new trial, which was refused, and they appealed to this Court. The other facts will be found in the opinion of the Court.

Hardy, Vaughn, and Smith, for Appellants.

Robinson, Beatty, and Heacock, for Respondent.

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

The evidence introduced by the plaintiff shows that Foster was the owner of the goods, in November, 1855; that he continued such owner until February, 1856, when he sold to plaintiff; that plaintiff took and retained possession for two or three days, when he leased the premises and delivered the goods to Foster, his vendor, and one Myers, who, after carrying on the business