void, because it directs that the plaintiff be imprisoned until such fine and costs be paid, in a manner not authorized by law, and that the law does not authorize imprisonment for costs, and because the defendant had no authority by law to remand the plaintiff to the custody of the marshall of Manti city, and alleges that he is without any plain, speedy or adequate remedy at law. Without expressing any opinion as to whether the defendant had authority or jurisdiction to render the judgment shown by the record, or as to the effect of the irregularities complained of, or as to whether the plaintiff had a speedy, plain adequate remedy by appeal, or otherwise, at law, it is quite clear that the payment of the sums of money named in the alleged judgment as fine and costs determined the issues involved in the proceedings or action, which, by virtue of such payment were at an end, and the alleged judgment thereby satisfied and passed beyond review by certiorari: Ketchum v. Superior Court San Joaquin county, 3 West Coast Rep., 488. It is ordered that the writ be dismissed. HUNTER, C. J., and EMERSON, J., concurred. CLAWSON'S CASE. Filed November, 1884. BAIL ON APPEAL DISCRETIONary-Order DENYING BAIL WHEN NOT REVIEWED.-A defendant convicted and under sentence for a public offense, is not entitled as of right, to be admitted to bail pending an appeal by him, even though a certificate of probable cause for the appeal has issued, but bail in such cases is discretionary, and where the court in which the conviction was had, has in the exercise of its discretion, denied bail to a defendant pending an appeal by him, the appellate court will not revise its action, where it is not plainly to be seen that the discretion has been abused. HABEAS CORPUS-Review on of Order DenyING BAIL. --Whether the appellate court, in any event, can, by habeas corpus, review the action of the trial court in denying bail, considered doubtful but not decided; for the writ is not one of review and confers no appellate jurisdiction. Rudger Clawson was convicted in the third district court of the crime of polygamy, and on the third day of November, 1884, was sentenced to imprisonment for four years, and to a fine of five hundred dollars with imprisonment until the fine was paid. The same day he appealed to the supreme court, and the judge before whom the cause was tried granted a certificate of probable cause under section 366 of the criminal practice act. After perfecting his appeal, defendant moved the district court in which the conviction was had, for an order admitting him to bail pending the appeal, and the district attorney, on behalf of the government, moved for the commitment of the defendant to abide the judgment of the appellate court; whereupon the following order was entered: "The court having passed its sentence therein upon the defendant, the defendant now moves that bail be fixed pending the appeal and the motion is argued by counsel for the parties, and the court now having considered the same, and being of the opinion that the defendant ought not to be admitted to bail after conviction and sen tence, unless some extraordinary reason therefor is shown, and there being no sufficient reason shown in this court, it is ordered that the motion and application for bail be and the same is hereby denied, and the defendant is remanded to the custody of the United States marshal." Subsequently the defendant applied to the supreme court for a writ of habeas corpus, which was issued, whereupon the foregoing facts were returned. The criminal practice act provides: Sec. 360. An appeal may be taken by the defendant. 1. From a final judgment of conviction; 2. From an order denying a new trial; 3. From an order made after judgment affecting the substantial rights of the party. Section 358 of the act provides that appeals can be taken upon questions of law only. Sec. 366. An appeal to the supreme court from a judgment of conviction stays the execution of the judgment, upon filing with the clerk of the court in which the conviction was had, a certificate of the judge of such court, or of a justice of the supreme court, that, in his opinion, there is probable cause for the appeal, but not otherwise. Sec. 367. If the certificate provided for in the preceding section is filed, the sheriff must, if the defendant be in his custody, upon being served with a copy thereof, keep the defendant in his custody without executing the judgment, and detain him to abide the judgment on appeal. Sec. 388. After a conviction of an offense not punishable with death, a defendant, who has appealed, may be admitted to bail: 1. As a matter of right, when the appeal is from a judgment imposing a fine only; tion 2. As matter of discretion in all other cases. Sec. 401. In the cases in which the defendant may be admitted to bail upon an appeal, the order admitting him to bail may be made by any magistrate having power to issue a writ of habeas corpus. The laws of the United States provide for a writ of error from the supreme court of the United States to the supreme court of the territory from final judgment in polygamy cases. F. S. Richards and Bennett, Harkness & Kirkpatrick, for the petitioner. W. S. Dickson, U. S. attorney, for the respondent. THE COURT, per Twiss, J., remanded the petitioner to custody, announcing ore terme : 1. After conviction for a public offense, and sentence of impris. onment pronounced thereon, a defendant is not entitled, as of right, to bail pending an appeal by him from the judgment, but the matter of admission to bail in such cases is discretionary, even though a certificate of probable cause for the appeal has been granted, and where the court in which the conviction was had, has, in the exer cise of its discretion, refused to admit a defendant to bail, the court will not revise such action where it was not plainly to be seen that the discretion thus exercised had been abused. 2. The court is not prepared to say, in view of section 360 of the criminal practice act, that the defendant can be released on habeas corpus, upon the giving of bail, as a consideration of this question would involve a review of the ruling of the district court ordering the defendant into custody, pending the appeal, and it is doubtful if this review can be had under the writ of habeas corpus, which is not a writ of review, and confers no appellate jurisdiction. ZANE, C. J,, and Emerson, J., concurred. SUPREME COURT OF CALIFORNIA. JOHNSTON, EXECUTOR v. HANCOCK ET AL. In Bank. Filed November 18, 1884. NEW TRIAL-ORDER GRANTING WILL NOT BE PRESUMED ERRONEOUS.-The appellate court will not presume error nor an abuse of discretion in the action of the lower court in granting a new trial. APPEAL from an order of the superior court for San Diego county, granting the plaintiff a new trial. The opinion states the facts. J. O. W. Paine and Works & Titus, for the appellants. THE COURT. The plaintiff commenced an action of ejectment for certain lands described in the complaint, situate in the county of San Diego. Defendants had judgment and the court granted plaintiff's motion for a new trial. This appeal is by defendants from the order of the court below granting the motion for a new trial. The evidence in the case, clearly established plaintiff's title,-possessory title at least, to the land in controversy and the unlawful withholding thereof by the defendants, the appellants. The occupancy and cultivation of the land, as well as an actual residence thereon, by plaintiff's testatrix and the subsequent entry thereon by the defendants, all affirmatively appear in the evidence. It was with license too of the plaintiff, and under a full recognition of his right to the possession that the defendants made the first entry upon the premises in controversy, and after having surrendered the possession thereof, they made a second entry, which was without license, and wrongful, for the avowed purpose of holding the possession until a certain claim, or money demand made by Hancock's daughter, was satisfied. We think it was a proper case for a new trial, and there was no abuse of discretion in granting the same. This court will not presume error: Thompson v. Morrow, 2 Cal., 99. * Order affirmed. No. 8,323. MCCLOSKEY v. CITY AND COUNTY OF SAN FRANCISCO. Department One. Filed November 18, 1884. ASSIGNMENT OF CONTRACT-PAYMENTS TO ORIGINAL CONTRACTOR AFTER NOTICE OF ASSIGNMENT.-The assignee of a contract for grading a public square, in the city and county of San Francisco, upon performing the work contracted for, is entitled to payment of the full contract price. The amount of money paid by the city and county to the workmen of the original contractor for work done by them under the contract, after it had notice of the assignment of the same, cannot be deducted. APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff, and from an order denying the defendant a new trial. The opinion states the facts. J. F. Cowdery, for the appellant. J. M. Wood, for the respondent. MCKEE, J. This was an action to recover a balance due upon a contract in writing, by which the defendant promised to pay Thomas Barden the contract price of five cents per cubic yard for grading Jefferson square in the city and county of San Francisco-payment to be made when the work was finished. On the 13th of April, 1873, the work called for by the contract was finished; and the defendant, in performance of the contract on its part, paid to the plaintiff's intestate, as assignee of the original contractor, the moneys due for the work, except a balance of $1,260, which it refused to pay him, because it had applied the money to pay workmen of the original contractor, for work and labor done by them upon the job for the contractor, and for which he was liable to them. But when the defendant applied the money for that purpose, it had notice of the assignment of the contract to the plaintiff, and that the right to the money was vested in him; the contract in the hands of the assignee was, therefore, not affected by the payment of the money to the creditors of the assignor. But it is contended that the contract was not assignable, because "it contained a condition that it should be strictly non-transferable, and that neither of the contracting parties shall be permitted to assign or transfer the same, except by the consent of a majority of the Board of Supervisors." The contention, however, is not predicated upon the record in the case, for the finding of the court below is, that the Board of Supervisors consented to the assignment. There is no error in the record. Judgment and order affirmed. Ross, J., and MCKINSTRY, J., concurred. No. 10,984. PEOPLE v. HICKS. Department Two. Filed November 18, 1884. LARCENY INFORMATION-ALLEGATION OF OWNERSHIP-An information for larceny which alleges that "the property taken was the personal property in the possession of Frederick Schwartz, and that the same was taken from the person and against the will of him, the said Schwartz," sufficiently describes the ownership of the property. APPEAL from a judgment of the superior court for Yuba county, entered upon a verdict of conviction. The opinion states the facts. E. A. Davis, for the appellant. Attorney-General, for the respondent. MCKEE, J. The only point made by the appellant in this case is, that "the information fails to allege that the property taken was the property of some person other than the defendant." But the information contains this averment, viz., "that the property taken was the personal property in the possession of Frederick Schwartz * * * and that the same was taken from the person and against the will of him, the said Schwartz." We think this is a sufficient averment that the property belonged to Schwartz, and that it was taken from him by the defendant. Judgment affirmed. Ross, J., and MCKINSTRY, J., concurred. No. 9,683. DORE v. DOUGHERTY ET AL. Department One. Filed November 19, 1884. APPEAL-MOTION FOR NEW TRIAL-SERVICE OF PROPOSED STATEMENT.-An appeal from an order denying a new trial will not be dismissed merely because the proposed statement, on which the motion for a new trial was based, was not served upon one of the adverse parties. MOTION to dismiss an appeal from the superior court of the city and county of San Francisco. The opinion states the facts. Jos. M. Nougues and C. E. Nougues, for the appellant Miller. H. C. Firebaugh, for the defendant Hallidie. J. C. Bates, for the respondent Dougherty. MCKEE, J. The respondent moves to dismiss the appeal taken from the order denying a motion for a new trial in this case, principally upon the ground that the transcript shows on its face that the proposed statement on the motion was not served upon one of the "adverse parties," as required by subdivision 3, section 659, C. C. P. It is conceded that the proposed statement was served on all the parties, except one, viz., the defendant Hallidie; upon him it was |