Nickerson v. California Stage Company.

"That the petition for the revocation of said letters was defective, in not showing affirmatively that there were no descendants of the deceased who would be entitled to a moiety of the estate."

George W. Tyler for Appellant.

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

The Court below erred in entering the order appealed from, upon the allegations and proofs before it.

In order to entitle a surviving husband or wife to the whole common property, it must be affirmatively shown that there are no descendants of the deceased. (§ 10 of Law concerning Husband and Wife, Wood's Digest, 488.)

Judgment reversed, and cause remanded.

Cummings v. Chevrier, (No. 2.)-Reversed and remanded, for the reason stated in the opinion in Cummings v. Chevrier, (No. 1.)

We concur :

TERRY, C. J.
BALDWIN, J.,
FIELD, J.

NICKERSON v. CALIFORNIA STAGE COMPANY.

Plaintiff brought an action of replevin against the defendants to recover certain property, and obtained a judgment for its restitution, and damages for its illegal detention; defendants paid the damages, but the property was not restored. Plaintiff then brought an action of trover to recover the value-defendants plead the former recovery as a bar; Held, that the judgment in replevin did not constitute a bar to the action of trover, the judgment in replevin not having been satisfied.

The judgment in the action of replevin was, as between the parties, conclusive evidence of the plaintiff's title to the chattel in question, and it only remained for the Court, in this action, to determine its value.

Nor was it necessary to the right of the plaintiff to recover in this action, that the value of the property in the replevin-suit should have been found, and an alternative judgment for the return of the property or the payment of its value.

APPEAL from the District Court of the Eleventh Judicial District, County of Placer.

This was an action of trover.

It appears that plaintiff, some time before the institution of this suit, commenced an action in replevin for the same property, and recovered a judgment for its restitution, with damages for its illegal detention.

The damages were paid, but the order for the restitution of the property was never complied with; and, failing to recover

Nickerson v. California Stage Company.

the possession of his property, plaintiff commenced this suit for its value.

The defendants pleaded a former recovery, which plea was overruled, and judgment entered for plaintiff, and from this judgment the defendants appealed.

Smith and Hardy for Appellants.

Myers and Crocker for Respondent.

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

The judgment in replevin constitutes no bar to this action, unless it be shown that it has been satisfied. The cause of action was in both cases the same, but the object was essentially different. In the one case, the plaintiff sought to recover a specific personal chattel, which was wrongfully detained; in the other, the value of such chattel, when, owing to the acts of defendants, it was not in his power to procure a return.

"Where the cause and object of both actions are the same, a judgment in the prior bars the subsequent suit. When the cause or object of the actions are different, though the point in dispute is the same in both, the prior judgment is no bar to the subsequent action, but the verdict is matter of evidence to prove the point." (Swift's Evidence, 17.)

Thus, in an action of ejectment, the value of the use and occupation may be recovered, but a judgment in ejectment, when no claim for use and occupation is made, is no bar to an action to recover for such use, though the judgment in ejectment is conclusive evidence in the second suit. (13 Johns., 447.)

So it has been decided that when, in an action of replevin, no damages were recovered for detention of the property, such damages might be recovered in a subsequent suit. (33 Maine, 382.) The judgment of a Court of competent jurisdiction, directly upon a particular point, is, as between the parties, conclusive in relation to such point, though the purpose and subject-matter of the two suits be different; and hence a judgment may not only be evidence, but conclusive evidence, and still be no bar to a second action. (4 Phil. Ev., note 12.)

The judgment in the action of replevin was, as between the parties, conclusive evidence of the plaintiff's title to the chattel in question, and it only remained for the Court, in this action, to determine its value.

The defendant objects that under our statute there should have been a finding of the value in the replevin-suit, and an alternative judgment for the return of the property or the payment of its value. This would have been necessary to enable the plaintiff to recover against the sureties on the replevin-bond,

Primm v. Gray.

but the failure to do so can not affect his rights as to the defendants. There are many kinds of property which have a peculiar value in the eye of the owner far beyond their intrinsic worth. In an action for the possession of such property, the plaintiff would prefer to lose his right to proceed against the sureties rather than enter an alternative judgment, the effect of which might be to enable the defendants to retain the property by paying its estimated value. In all such cases, according to the argument of the appellants, if the defendants should by their own act render restitution impossible, the plaintiff could have no remedy. The position is, in our opinion, opposed to principle, and would seem to be entirely unsupported by authority, as no case has been cited which sustains it.

The appeal is without merit, and the judgment is affirmed, with twenty per cent. damages for a vexatious appeal.

PRIMM et al. v. GRAY et al.

To support a plea in abatement founded on the pendency of a prior action, it is necessary to show that process was issued in such action.*

APPEAL from the District Court of the Eleventh Judicial District, County of Yolo.

This was an action to recover the sum of $2256, for work and labor, and materials furnished, and to foreclose a mechanic's lien on certain premises.

The defendants plead a former suit pending between the same parties, and for the same subject-matter, but failed to show that a summons had been issued and returned in the former suit. The Court below gave judgment for the plaintiff, and decreed the foreclosure of the mechanic's lien. Defendants appealed.

B. F. Ankeny for Appellants.

John Heard for Respondents.

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

The first and second assignments of error are not supported by the record.

The third is not well taken. To support a plea in abatement

See Weaver v. Conger, ante, 233.

Fuller v. Hutchings and Sweetzer.

founded on the pendency of a prior action, it is necessary to show that process was issued in such action. (See Weaver v. Conger, 10 Cal.)

The fourth is not supported by the record. Upon the whole, it appears that the appeal was taken merely for delay, and the judgment is affirmed, with ten per cent. damages.

FULLER v. HUTCHINGS AND SWEETZER.

A check given for a gaming debt is void in the hands of all persons except a bona fide holder, without notice.

A party taking a check after its presentation for payment to the bankers upon whom it is drawn, and its dishonor, takes it subject to all the defences to which it was subject in the hands of the original holder.

Where the illegal consideration of a check is admitted, it is incumbent on the holder, even if he took it before dishonor, to show that he took it without notice, and for value.

With a check, the presumption is that it is given upon a valid consideration, but this presumption being rebutted, the necessity is thrown upon the holder of proving that he received it in good faith, without notice of the illegality of the consideration. Surprise at the ruling of the Court, on the trial, as to the admission of testimony, is not ground for a new trial.

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

This is an action upon a check of the defendants, composing the firm of Sweetzer, Hutchings & Co., for $2500, dated on the 22d of September, 1857, and drawn upon Tallant & Wilde, bankers, at San Francisco, and payable to S. L. James, or bearer. It was admitted, on the trial, that the check was given by the defendant Hutchings, for losses at a public banking-game called "faro," to one Wm. D. Chapman, and that there was no other consideration for it; that Chapman, on the same day, presented it for payment, which was refused. There was no evidence of the time it was transferred to the plaintiff, except what may be inferred from the presentation by Chapman, or that the plaintiff had any knowledge of its consideration.

On the trial, the defendant read the following stipulation in the case:

"For the purposes of this action, we hereby admit that the defendants can prove that the check was given to Wm. D. Chapman for money lost in playing cards at a banking-game called 'faro,' and that no other consideration was paid or passed between the drawer and said Chapman.

"In making said admission, the plaintiff is in no manner to be

Fuller v. Hutchings and Sweetzer.

considered as admitting that the plaintiff had anything to do with the original contract with Chapman, or the defendants, but, on the contrary, expressly denies all knowledge of the same, and alleges that he is an innocent holder, without notice. But the defendants are not to be considered, and do not admit that the plaintiff had no notice of the real consideration, or that the plaintiff is a bona fide holder for valuable consideration.

"G. F. & W. H. SHARP, Plaintiff's Attorneys."

The defendants also read in evidence the following notice in the case, served by them on the plaintiff's attorneys:

"Please take notice, that the defendants will insist upon the plaintiff's making proof of the manner in which he received the check in question, and the consideration, if any, that he paid for the same, or inform the defendants so they can make the same[proof.] Yours, etc., Cook & FENNER, Attorneys for S. & H. "Dated November 2, 1857."

"We admit service of a copy of the within notice, November 2, 1857. G. F. & W. H. SHARP."

After judgment was rendered for the defendants, the plaintiff moved for a new trial on his own affidavit and the affidavit of one of his attorneys. In his own affidavit he stated that he was an innocent purchaser, and the manner by which he came into the possession of the check, but did not give any excuse for omitting to make proof of the facts on the trial. The attorney, in his affidavit, stated that he supposed that the facts contained in the stipulation would not be admitted in evidence unless followed up by proof that the plaintiff took said check with notice; and that he was taken by surprise when the attorney of the defendants read on the trial authority for the notice of November 2, 1857.

The motion for a new trial was denied, and the plaintiff appealed from the order denying the motion, and also from the judgment.

G. F. and W. H. Sharp for Appellant.

I. By the third section of the Act of 1855, "An Act to suppress Gaming," a check is only void as between the parties; the statute expressly excepting such as hold or claim without notice of the illegality of the consideration.

Whenever the statute declares notes void, they are and must be so in the hands of every holder. But when they are adjudged by the Court to be so for a failure or the illegality of the consideration, they are void only in the hands of the original parties, or those who are chargeable with or have had notice of the consideration. Haight v. Joyce, 2 Cal.; Bryant v. Mead, 1 Cal., 441;