« ZurückWeiter »
162; Ross v. Austill, 2 Cal. 183; Hoagland v. Clary, 2 Cal. 474; Burgoyne r. Holmes, 3 Cal. 50; Webb v. Hansor, 3 Cal. 65; Egery v. Buchanan, July T. 1851; Harley v. Young, 4 Cal. 284; Sullivan v. Davis, 4 Cal. 291 ; Gates r. Buckingham, 4 Cal. 286; Moraja v. Emeric, 4 Cal. 308; Pinkham v. McFarland, Jan. T. 1855; Howard r. Harmon, Jan. T. 1855 ; Survey v. Wells, Jan. T. 1855 ; McHenry v. Moore, Jan. T. 1855 ; Wenborn v. Boston, Jan. T. 1855; Middleton v. Gould, 5 Cal. 190; Hunter v. Supervisors Tuolumne County, July T. 1855; Meiggs t. Scannell, April T. 1866; Brown v. Tolles, April T. 1857; Sacramento v. Cal. Stage Co. id. See Attachment.
ARBITRATION AND AWARD. 60. The submission of a cause pending to arbitration operates as a discontinuance. Gunter v. Sanchez, 1 Cal. 45.
61. A consent to submit a matter to arbitration does not imply a consent that judgment may be entered upon the award. Id.
22. Our statute rospecting arbitrations is but a reafirmance of the common law. Peachy v. Ritchie, 4 Cal. 205.
63. To constitute a submission so as to give the effect of a judgment, the submission must be filed with the clerk, and motion for judgment made upon notice. Heslep v. San Francisco, 4 Cal. 1.
64. It is the duty of arbitrators to pass upon the whole subject in controversy. And if it appears upon the fice of the award that they have not disposed of the whole matter, or if the terms of the award render a further inquiry necessary, to ascertain a sum paid or an act to be done, it is void; and after the award is publielies and delivered to the parties, it cannot be revised or corrected without the consent of the parties. Porter t. Scott, April T. 1867.
Yoonz r. Starkey, 1 Cal. 426; Muldrow v. Norris, 2 Cal. 74; Pierson v. Norman, 2 Cal. 599; Montifiori v. Engols, 3 Cal. 431; Fountain Water Co. v. Jarvis, 5 Cal. 179.
ARREST AND BAIL.
66. A party will be discharged from arrest on habeas corpus when the process, though proper in form, has been issued in an improper case. Soulé v. Hayward, 1 Cal. 345.
66. Where a party has been once arrested and discharged, he cannot be arrested again in the same action. McGilvery r. Moorhead, 2 Cal. 607.
67. To entitle a party to the remedy of arrest it is not necessary that he should show positively the commission of a fraud; it is sufficient if the circumstances detailed would induce a reasonable belief that a fraud was intended. Southworth v. Rising, 3 Cal. 377.
69. The facts on which an arrest is based must be affirmatively found, and the fraud must be stated in the judgment, in order to authorize an arrest on final process. Mattoon v. Eder, Jan. T. 1856.
69. By putting in bail and neglecting to move for a discharge, the party consents to the process and waivos all irregularities. Id.
70. Unless the bail surrender the defendant within ten days after judgment they will be charged, though no procesa be issued to enforce the judgment. Id.
11. A party in attendance on a court as witness, juror or party, is exempt from arrest in a civil action. Page e. Randall, Jan. T. 1856.
12. In an action against bail, it is a good defense that the affidavit does not show facts sufficient to warrant tha writ of arrest. Nelson v. Gordon, Oct. T. 1854.
13. The district attorney can bring suit against bail at any time after the adjournment of the term at which the recognizance was declared forfeited. People v. Carpenter, April T. 1857.
74. A bail bond need not state at what court the defendant shall appear, as the law prescribes in what court be shall be tried. Id. 73. Sureties cannot object to the sufficiency of the justification. Id. In re Holdforth, 1 Cal. 438; People v. Laforge, 3 Cal. 130; Sturgis v. Barry, July T. 1854.
ATTACHMENT. 14. A reszel belonging to the port of New York, and intended for the New York and China trade, having been in the harbor of San Francisco but a few days, and never otherwise used in navigating the waters of this ate than by sailing into the harbor of San Francisco from the ocean, is not a vessel used in navigating the waters of this state. Souter v. The Sea Witch, 1 Cal. 162.
17. Evidence of the general effect of an attachment upon the credit and reputation of merchants is not compelatt. Heath v. Lent, 1 Cal. 410.
71. The sheriff cannot maintain action in his own name, to recover a sum owing to the attachment debtor by a third person, for goods sold and delivered. Sublette v. Melhado, 1 Cal. 104.
13. The affidavit of defendant, denying the indebtedness and averring that he has a good defense on the Derits, is no ground for dissolving an attachment. Reiss r. Brady, 2 Cal. 132.
50. The remedy of attachment is confined to indebtedness arising upon contract. Griswold v. Sharpe, 2 Cal. 17.
$1. The liability of a garnishee dates from the service of the attachment and affidavit, and not from the notáce to appear.
Johnson v. Carry, 2 Cal. 33. 12. An attachment bond should precede the writ and accompany the affidavit. Benedict v. Bray, 2 Cal. 251.
3. The obligee in an attachment bond cannot recover for injuries sustained by reason of the attachment, if the bood is void. Id.
64. A debt due for merchandise sold in Boston to residents of this state, and forwarded to the latter, they Toing to pay by remitting funds to Boston, is not the subject of attachment under the act of April 29, 1851. Datura r. Shelton, 3 Cal. 206. The contract must be made or payable in this state. Id.
4. If the attaching creditor of the plaintiff in the execution was otherwise remediless, it may be that chancery wuld afford relief by process of sequestration. Clymer v. Willis, 3 Cal. 363.
4. The Sheriff cannot attach money collected on execution, in his own hands. Id.
87. An affidavit for an attachment must state the ground in positive terms, and not in the alternativo. Law. leg r. Dalmas, 4 Cal. 195. ** The attachment bond does not release the property attached. Low v. Adams, July T. 1856.
89. The remedy by attachment is not a distinct proceeding in the nature of an action in rem, but is simply auxiliary to the action at law. Id.
9). Damages for wrongfully suing out attachment. Weaver v. Page, Oct. T. 1856. 91. A fund in the hands of a receiver, appointed by a competent court, is not liable to attachment. County of Yuba t. Adams & Co. Jan. T. 1857.
92. The surplus money remaining in the hands of a sheriff, after he retires from office, cannot be attached; be must be garnisheed as a private person. Graham v. Endicott, Jan. T. 1857.
93. The debt itself gives no right to seize the property but the attachment, and it is essential that it should have been issued in conformity with law. Thornbury v. Hand, April T. 1857. As against a stranger its regularity must be shown. Id.
9. On motion by defendant to set aside an attachment, refusal by the court and judgment, exception being
taken, defendant may appeal both from judgment and order refusing to discharge. Taaffe, McCahill & Co. o. Rosenthall, April T. 1857.
95. It is no objection that the undertaking on attachment is given to the people of the state, etc. instead of to the defendant. Id. 96. An appeal will not lie from an order refusing to discharge an attachmeut. Baker v. Rosenthall, id.
CERTIORARI. 97. Where error has occurred in proceedings which cannot be reached by a writ of error, the writ of certio rari is a proper remedy. People r. Turner, 1 Cal. 152.
98. A writ of certiurari will not lie from the supreme court to review the decision of a district court affirming, on appeal, an order of a court of sessions, granting a ferry license. In re Hanson, 2 Cal. 262.
99. A certiorari to the board of supervisors, on the ground of want of jurisdiction, is premature, if taken ben fore the action of the board. Wilson r. Sacramento County, 3 Cal. 386.
100. The statute only authorizes this remedy where there is not a plain, speedy and adequate remedy by appeal. Gray v. Schupp, 4 Cal. 155.
101. A party against whom a judgment is sought to be enforced, although not a party to the mandamus, may apply for a writ of certiorari. Clary r. Hoagland, 5 Cal. 476.
102. The writ of review is not the proper remedy where there has been no excess of jurisdiction. Coulton v. Stark, Jan. T. 1857.
COMMOX LAW. 103. Where a statute provides a remedy not known to the common law, and by which no personal notice to the person proceeded against is required, the statute should receive a sirict construction and núi be exiended to cases which do not clearly fall within its language. Souter r. Sea Witch, 1 Cal. 162.
104. The common law is presumed to be in force in other states unless the contrary is shown. Thompson e.
105. At common law, judgments do not bear interest. Id.
107. A statute requiring the complaint to contain a statement of the facts constituting a cause of action in
109. An order of court adjudging a party guilty of contempt, should always show upon its face the facts upon which the exercise of the power is based. Id. 152.
110. Where an order of the district court, fining and imprisoning for contempt, does not specify on its face wherein the contempt consisted, it will be reversed on certioruri. Ex parte Field, 1 Cal. 187.
111. The judgments and orders of courts or judges on the subject of contempts are by our statutes declared to be final and conclusive. Under the writ of habeas corpus, this court cannot review the orders of another court in such cases. Ex parte Cohen, 5 Cal. 194,
112. If a court having jurisdiction should issue an erroneous order, it is obligatory until reversed by an appellate court, and a disobedience of it is a contempt.
113. Courts have exclusive jurisdiction of their own contempts, but a party cannot be imprisoned for neglect-
114. An attachment for contempt in disregarding an injunction, may be compelled by mandamus. Merced
117. The court has power to allow the amendment of a bill of costs and accompanying affidavit. Burnham o. Hays, 3 Cal. 115.
118. An amendment allowed after the time prescribed for filing the bill of costs, relates back to the time of filing the original bill. Id.
119. If the original attidavit was a nullity, the defendant should have taken steps to set it aside or appealed from the judgment, on the ground that the costs had been waived by operation of the statute. Id.
121). Atidavit to a bill of costs by the attorney is good. Id.
121. Where costs are imposed as a condition for re-opening a case after the adjournment of the term, the acceptance of the costs by the opposite party will not be construed into a consent to have the cause reinstated. Carpentier v. Hart, 5 Cal. 406.
122. Costs by way of indemnity ought not to be taxed in case of a nonsuit. Rice v. Leonard, 5 Cal. 61.
124. A mistake in the computation of interest or taxation of costs, cannot be attacked for the first time in an
125. Where a mortgage contained a stipulation for all costs of foreclosure, including counsel fees, not exceed. ing five per cent. of the amount due, it was held, that the limitation of five per cent. was intended to apply to counselfves alone, and that complainant would be entitled to recover the whole of his costs independent of any stipulation. Gronfier v. Minturn, 5 Cal. 492.
Von Schmidt v. Huntington, 1 Cal. 55; Parker r. Shephard, 1 Cal. 131 ; Marysville v. Buchanan, 2 Cal. 212; Dominguez v. Dominguez, 4 Cal. 186; Edgar v. Gray, 5 Cal. 267; Guy v. Franklin, 6 Cal. 416; Hudson v. Doyle, Jan. T. 1856.
126. In an action on an attachment bond, evidence of the depreciation in value of the real estate attached is inadmissible. Heath . Lent, 1 Cal. 410.
1:27. A witness is not excluded on the ground of interest, unless he comes within one of the exceptions of the statute. Johnson r'. Carry, 2 Cal. 33.
128. Proof of the loss of an instrunient of writing, may be by the party's own affidavit, to lay the foundation for proving its contents. McCann v. Beach, 2 Cal. 25.
1:29. Interest is not recoverablo on a judgment of another state without proof that the law of such state allows interest on judgments. Thompson v. Maurow, 2 Cal. 19.
130. The testimony of a witness residing in the county, can only be taken by the commissioner for such county. McCann ,, Beach, 2 Cal. 25.
131. All the requirements of the statute must be strictly complied with, and this must appear upon the depositions. Dye r: Bailey, 2 Cal. 383.
132. A co-defendant is not a competent witness when his testimony will inure to his own benefit. Sparks 0. Kohler, 3 Cal. 299.
133. A defendant is a competent witness to show that his co-defendant was not his partner. Id. 134. It is error to admit evidence to prove partnership by general reputation. Sinclair v. Wood, 3 Cal. 98. 135. To admit proof of the handwriting of a subscribing witness to an instrument, it must be shown that the witness is beyond the jurisdiction of the court, or that he could not be found after diligent search. Powell's Heirs r. Hendricks, 3 Cal. 427.
136. To prove payment of taxes, the best evidence is the testimony of the collector, and in his absence, his receipt, with proof of execution. Id.
137. Where written notice of the taking of depositions was defective, parol proof of such notice is admissible. Mills r. Dunlap, 3 Cal. 94.
138. The law of another state of the Union must be proved like any other fact. Cavender v. Guild, 4 Cal. 250.
139. A court may, of its own motion, rule out improper evidence though not excepted to. Parker v. Smith, 4 Cal. 105.
140. Where it appears that the witness would have the judgment which might be recovered, to apply to the payment of his debts, be is incompetent. Jones v. Post, 4 Cal. 14; Polhemus v. Griffin, Oct. T. 1854; Griffin v. Alsop, 4 Cal. 406.
141. Chinese are not competent witnesses against whites. People v. Hall, 4 Cal. 399. 142. The term “ Indian" includes the whole Mongolian race. Id. 143. The statute excludes every person from testifying against a white person who is not of white blood. Id.
144. A witness who testifies that he had negotiated the contract between the parties, and that his compensation depended on the plaintiff's recovery, is incompetent. Shaw v. Davis, 5 Cal. 466.
145, The stockholders of a corporation are not competent witnesses on behalf of the corporation. Barnstead v. The Empire Mining Co. 5 Cal. 299.
146. In a prosecution for rape, it is admissible to show that the prosecutrix has been guilty of particular acts of lewdness with other men. People v. Benson, July T. 1856.
147. The maker of a note after judgment by default, is a competent witness for the indorser. Oct. T. 1856.
18. The certificate of the person taking a deposition should set forth that the deposition was read to the witDess before signing it. Williams v. Chadburn, Oct. T. 1856.
149. Ordinarily the maker is a good witness against the indorser, because he is liable at all events, either to the holder or to the indorser. · Palmer v. Tripps, Jan. T. 1856.
154). Mining laws, when introduced in evidence, are to be construed by the court, and the question whether by virtue of such laws a forfeiture had accrued, is a question of law, and it was therefore improper to submit to the jury. Fairbanks o. Woodhouse & Bear, Oct. T. 1856.
151. As to evidence of loss of paper to warrant secondary proof of its contents. Folsom's Executors v. Scott, Oct. T. 1856.
152. Parol evidence is not admissible to vary the terms of a written contract so as to make it embrace property pot described therein. Osborn r'. Hendrickson, Jan. T. 1857.
13. It is true, as a general proposition, that the account book of a tradesman is not admissible to establish a charge of money loaned, but where it appears that no money was actually loaned but that articles purchased by plaintift for defendant were charged as so much money loaned, it is admissible. Le Frane v. Herrick, Jan. T. 1857.
154. A trader's book is not admissible to prove a single item, but where goods were bought at various times, w only one charge was entered after the order was filled, it seems the book is admissible. Id.
13. Where plaintiff had obtained judgment in another court for a quarter's rent, under a lease, in an action eft mihle entry for non-payment of another quarter's rent under the same lease, between the same parties, the plaintiff could introduce the former judgment as evidence on the points identical in the two cases. Love, adnistrator r. Bennet, Jan. T. 1857. 14. A party cannot testify on behalf of his co-plaintiff or co-defendant. Lucas, Turner & Co. v. Payne & Deary, Jan. f. 1857.
A*itness is not privileged from answering on the ground that his answer would disgrace him, but skly she ground that he is not compelled to give evidence which would criminate himself. Ex parte Rowe,
Jan. 1. 157.
Mnumz-Sublette v. Melhado, 1 Cal. 104. Surrey-Vines v. Whitton, 4 Cal. 230. Books of account, Kingbury r. Perkins, Oct. T. 1856. Froud-Lucas, Turner & Co. v. Payne, Jan. T. 1857. Judgment, how eta ind-Whitwell v. Barbier, Jan. T. 1857. Replerin-Thornburgh v. Hand, Jan. T. 1857. Witness, interest of-Live Yankee Co. t. Oregon Co. Jan. T. 1857; Finn v. Vallejo Street Wharf Co. id.
Kendall e. Vallejo, 1 Cal. 371 ; Brooks v. Minturn, 1 Cal. 481 ; Grogan v. Ruckle, 1 Cal. 158 ; Matur v. Brown, 1 Cl. 221; Yonge 0. P. M. S. S. Co. 1 Cal. 353; Dwinelle v. Henriquez, 1 Cal. 387; Innis v. The Senator, 1 Cal.
: Lennard r. Vischer, 2 Cal. 37; Benedict v. Bray, 2 Cal. 251; Folger v. Buckelew, 2 Cal. 313; McDaniel v. Pia, 2 Cal. 320; Smith v. Truebody, 2 Cal. 341; Bailey v. The New World, 2 Cal. 370; Collin v. Card, 2 Cal. $2] ; Hotaling e. Cronise, 2 Cal. 60; McCann v. Beach, 2 Cal. 25 : Beach v. Covillaud, 2 Cal. 237; Tabor v. StanIl 2 Cal. 240; Lord r. Sherman, 2 Cal. 498; Vanduslice r. Hanks, 3 Cal. 27 ; Webb v. Hanson, 3 Cal. 65; Peoper Savis, 3 Cal. 106; Hyatt v. Argenti, 3 Cal. 151; Cotes r. Campbell, 3 Cal. 191 ; Tobin v. Post, 3 Cal. 373; Sath worth r. Rising, 3 Cal. 377; Lubert r. Chavitean, 3 Cal. 458; Johnson v. Henderson, 3 Cal. 368; Powell
v. Herri ks, 3 Cal. 427 ; Buckley r. Manife, 3 Cal. 441; Rich r. Davis, 4 Cal. 22; Stearns r. Martin, 4 Cal. 227 ; Treisill r. Wells, 4 Cal. 260; Morey r. Starbuck, 4 Cal. 274; Vines v. Whitton, 4 Cal. 230; Jessup v. King, 4 Cal. 331 ; Cook r. Bennett, 4 Cal. 397 ; Warner r. Wilson, 4 Cal. 310; Mayer v. Gorham, 5 Cal. 322 ; Tomlinson 2. spender, 5 Cal. 201 ; Montgomery . Hunt, 5 Cal. 366; Landsberger r. Gorham, 5 Cal. 450 ; Monson v. Cooke, 6 Cal. 437, Washburn r. Alden, 6 Cal. 463; Cunningham v. Harris, 5 Cal. 81; Chenery v. Palmer, 5 Cal. 131; Ehrete r. Adams, April T. 1855; Ord v. Mekee, 5 Cal. 515; Jarvis t. The Fountain Water Co. 5 Cal. 179; Case ». Marey, July T. 1855; Morrison v. The Corporation of B. & B. Co. 5 Cal. 503; Connolly v. Goodwin, id. 220; Goodalt e. We*t id. 339: Norris v. Russell, id. 249; May r. Hanson, id. 360; Frasier r. Hanlon, id. 156; McDermott t. Taylor, July T. 1855; Ford v. Smith, 5 Cal. 314; Dopman v. Hoberlin, id. 413; People v. Clingan, id. 389; Ellis t. Jaszynsky, íd. 444.
EXECUTION. 158. The right of a master to the possession and command of a vessel, is not the subject of sale on execution. Loring r. Illsby, 1 Cal. 24.
1:39. Property left with another as security for a debt, is not subject to seizure under an execution without payment in the first place of the debt. Swanston r. Sublette, 1 Cal. 123.
16. When a case is remitted from supreme court to district court, the clerk of district court may issue execution for the costs without the order of the district court. Marysville v. Buchanan, 3 Cal. 212.
161. A public street is not subject to sale on execution. Wood v. San Francisco, 4 Cal. 190. Neither can any portion of the revenue of a city be so sold. Id.
162. The sheriff in selling property on execution has no right to impose conditions, etc. Thorne v. San Francisco, 4 Cal. 127.
163. No statute should be so construed as to give it a retrospective effect to divest the rights of individuals vested previous to its passage. Thorne v. San Francisco, 4 Cal. 127.
164. The suspension of remedies, or any part thereof, existing when the contract was made, is more or less impairing the obligation of the contract. Id.
165. Neither the mayor nor commissioners of the funded debt of San Francisco, by virtue of their offices or otherwise, are authorized to redeem, under act of April, 29, 1851, lands of the city sold under executions against her. Id.
166. Neither can the city attorney ratify their act of redemption, by plea, after suit brought. Id.
167. A payment to the sheriff for the redemption of land sold under execution, cannot be made in certified checks. Id.
168. A purchaser of real estate at a sheriff's sale on execution, is not invested with the title until the expiration of six months after sale. Deuprey v. Moran, 4 Cal. 196.
169. A sheriff is not bound to demand the purchase money before setting aside the bid, but a delay to pay until the return day of the execution, will be deemed a refusal to pay. People v. Hays, 5 Cal. 66.
170. A purchaser at sheriff's sale acquires no right unless he pays in cash the whole purchase money. Id.
171. The term “wagon,” used in the act exempting property from execution, does not include a “ hackney coach.” Quigley v. Gorham, 5 Cal. 418.
172. Statutes respecting the levy and notice of sale under execution, are merely directory, and the failure of the officer to comply with the requirements of the law in this respect, would not vitiate the sale. Smith o. Randall, Jan. T. 1856.
173. The execution first levied should be first satisfied. Johnson v. Gorham, April T. 1856.
175. The time the sheriff makes his return to an execution has nothing to do with its validity or the sale under it. Id.
176. Debts or credits due the judgment debtor are property and subject to execution. Adams v. Hackett, Jan. T. 1857.
177. The purchaser of real estate at sheriff's sale is entitled to receive the rents from the tenant from the date of sale. Reynolds v. Lathrop, Jan. T. 1857.
178. Things in action are property and subject to be taken in execution. Johnson v. Reynolds, Jan. T. 1857.
capable of manuel delivery, must be by taking the property in custody; if allowed to remain in the hands of the debtor it will be subject to subsequent executions. Dutertre v. Duirard, April T. 1857.
Smith v. Morse, 2 Cal. 524;. Israel v. Ferguson, April T. 1855; Munroe v. Thomas, 5 Cal. 470; Johnson v. Gorham, April T. 1856.
GARNISHMENT. 181. The liability of a garnishee dates from the service of the attachment and affidavit, and not from the natice to appear. Johnson v. Carry, 2 Cal. 33. 182. Where a garnishee, in discharge of a rule, answers on oath that he was released by the plaintiff
, and that the plaintiff had abandoned his examination, he should be discharged by the court without further delay, unless his answer is controverted by affidavit of plaintiff. Ogden v. Mill, 3 Cal. 253.
183. Where a party is garnisheed to answer on a certain day, and appears, and the summoning party do clines, or is not prepared to take his answer, and a term elapses without any action on the garnishment, the summons is discontinued, and the party discharged from liability to answer. Id.
184. Unless the answer of the garnishee disclose liens having priority of claim upon the fund in his hands, an order for a bill of interpleader will not be granted. Cahoon v. Levy, 4 Cal. 243.
186. A garnishee can only be required to answer as to his liability to the debtor defendant, at the time of the service of the garnishment. Norris v. Burgoyne, 4 Cal. 409.
186. A garnishee should be allowed to amend his answer whenever it appears that he has committed a mistake or fallen into an error, which could not reasonably have been avoided. Smith v. Brown, 5 Cal. 118.
187. An order requiring a garnishee to pay into court the amount for which judgment has been rendered against him, is improper. Id.
o188. The doctrine of garnishment, although partially regulated by statute, is not the less a common law proceeding; and, therefore, in proceedings against a garnishee, the parties are entitled to a jury trial. Cahoon v. Levy, 5 Cal. 294.
189. It is the duty of the court simply to render a judgment against the garnishee for the amount found due, and an order to pay the same into court is improper. Brummagin v. Boucher, Jan. T. 1856. 190. The service of a copy of an execution and
notice of garnishment upon a third party constitutes no lien upon property of the debtor, in his hands, capable of manual delivery. Johnson v. Gorham, April T. 1856.
191. Where A transfers stock to B, as security for a debt, and the stock is regularly transferred on the books of the company, B is the only proper garnishoe in a suit against A. Edwards v. Beaugroot, Jan. T. 1857.
192. The garnishee must be brought into court by process, like any other defendant.' Adams e. Hackett, Jan. T. 1857.
193. The statute must be strictly pursued, and the right of the garnishee to be heard as to his indebtedness cannot be affected by his indebtedness having been ascertained by a judgment. Id.
194. A garnishee out of the state can be reached by publication, like any other defendant. Id.
195. Debts or credits due the debtor are considered property in the statute. A judgment is a debt of record. Adams v. Hackett, Jan. T. 1857.
196. Where a sheriff collects money on an attachment more than sufficient to satisfy the attaching creditor, leaving a balance in his hands, after the expiration of his office, another attaching creditor cannot attach the surplus, and make the sheriff liable on his official bond; he can only be garnisheed as a private person. Graham v. Endicott, Jan. T. 1857.
197. An injunction order is inoperative until the undertaking is given. Elliott v. Osborne, 1 Cal. 396. 198. Mere verbal notice of an injunction does not bind the party to obey it. Id.
199. An injunction doos not operate to enlarge the time within which an act is required to be done by the party procuring the order. Id.
200. If the party is in court at the time an injunction order is made, and thus has personal knowledge of it, it seems that he would be bound thereby. Id.
201. The court may order a reference to ascertain the damages sustained by an injunction issued without cause. Russell v. Elliott, 2 Cal. 245.
202. A party filing an undertaking to obtain an injunction is deemed to have waived the right to a trial by jury, and an order of reference is no violation of the constitutional right to trial by jury. Id.
203. An injunction will not lie to restrain a sale of property for taxes. Dewitt v. Hays, 2 Cal. 463 ; Mintura . Hays, 2 Cal. 590.
204. In an action on an injunction bond to recover damages for the wrongful issuing of the writ, the amount paid to counsel as a fee to procure the dissolution of the injunction was properly allowed as part of the damages. Ah Thaie r. Juan Wan, 3 Cal. 216.
205. In an action on an injunction bond the judgment of dissolution is conclusive, and the only question is the amount of damage sustained. Gelston v. Whitesides, 3 Cal. 309.
206. The dissolution of an injunction, and dismissal of the suit in which it issued, is no admission that the injunction was improperly sued out. To maintain an action on the bond it must be shown that there was no canse for the writ. Id.
207. To entitle a party to an injunction in case of nuisance, it is necessary that the injury must be such as cannot be compensated by damages; or it must be irremediable. Middleton v. Franklin, 3 Cal. 236.
208. An injunction granted by a court of concurrent jurisdiction, in a previous suit between the same parties respecting the same subject matter, restraining proceedings relative thereto, when brought to the notice of another court, in which proceedings had been subsequently instituted in disregard of the injunction, should be respected by that court, and operate as a stay of proceedings. Engels v. Lubeck, 4 Cal. 31.
209. An injunction operates to restrain not only the party enjoined, but other courts, on the ground of judicial comity. Id.
210. An injunction restraining the disturbance of the possession of land restrains the prosecution of a suit to recover possession. Id.
211. An injunction is a mere remedial process, and when judgment has been obtained upon the cause, the court will not revise the propriety of granting the writ. Hicks v. Davis, 4 Cal. 67.
212. An order of injunction restraining the bringing of an action will be reversed. King v. Hall, 5 Cal. 82.
213. It is proper to refuse to dissolve an injunction where only two of several defendants have answered. Buckelew v. Estell, 4 Cal. 108.
214. An injunction by a party in possession of land for agricultural purposes, to restrain miners from digging for gold, cannot be sustained. Stoakes v. Barritt, 5 Cal. 36.
215. An injunction will not be granted to restrain a trespass, unless the injury would be irremediable. Waldron v. Marsh, 5 Cal. 119; Cal. Steam N. Co. v. Brown, April T. 1856.
216. A court of chancery is always chary of granting injunctions in cases of mere trespass. Gates v. Teague, Oct. T. 1856.
217. An action on the case will not lie for improperly sning out an injunction unless it is charged in the declaration as an abuse of the process of the court, through malice and without probable cause. Robinson t. Killum, Oct. T. 1856; Crandall r. Woods, Oct. T. 1856.
218. A court of equity will only interfere to enjoin a judgment at law, rendered by fraud or accident, without fault or negligence of the party.' Phelps v. Peabody, Jan. T. 1857.
219. An injunction is not superseded or dissolved by an appeal. Merced Mining Co. v. Fremont, Jan. T. 1857.
220. An order refusing to dissolve an injunction is not appealable. The appeal should be taken from the order granting it. Martin v. Travers, Jan. T. 1857.
221. To sustain an injunction the compiaint must allege that the injury is continuous, or threatens to be so. Coker r. Simpson, April T. 1857.
212. An injunction will lie to restrain trespass in entering on a mining claim, and removing gold bearing quartz therefrom, where the injury threatens to be continuous and irreparable. Merced Mining Co. v. Fromont, April T. 1857.
23. Where the bill sets forth that plaintiff is owner of land on which are growing trees, vines, etc. which defendant is removing, and that plaintiff will be irreparably injured unless an injunction issue, it is sufficient. MeFarland r. Abila, April T. 1857.
Cunningham v. Breed, 4 Cal. 384; Flint v. Lindsay, 4 Cal. 88; Hicks v. Davis, 4 Cal. 67 ; Gregory v. Hay, 3 Cal. 332; Weber v. San Francisco, 1 Cal. 455; Elliott v. Osborne, 1 Cal. 396.
JUDGMENT. 224. A judgment rendered after the time appointed by law for the adjournment of the court is invalid. Smith 1. Chichester, 1 Cal. 409; Coffinberry c. Horrill, 5 Cal. 493; Peabody v. Phelps, Jan. T. 1857.
225. A judgment by default before the expiration of the full time from the service of the summons will be teritied Burt r. Scranton, 1 Cal. 416.
Ajoint judgment against several defendants who are not jointly liable is erroneous. Pierce v. Minturn, 1 Cal 90.
22. A judgment by default is erroneous where the summons is radically defective. People v. Woodlief, 2 Cal 441.
228. Judgment by default will be set aside on the ground of surprise. Bidleman v. Kewen, 2 Cal. 248. 29. Judgment may be amended nunc pro tunc at any time. Morrison r. Dapman, 3 Cal. 255. 21. A court cannot disturb its judgment after the adjournment of the term. Suydam v. Pitcher, 4 Cal. 280. 31. In entering judgment the correct rule is to add the interest to the principal, and enter judgment for the gross amount. Such judgment then bears interest at the rate agreed on until paid. Guy v. Franklin, 5 Cal. 416.
232. Judgment by default will be reversed where the record does not show that the defendant had been legally served with process. Joyce v. Joyce, 5 Cal. 449.
23. Application to set aside judgment by confession must show that the claim was not just, and that the judgment onght not to have been confessed. Arrington v. Sherry, 5 Cal. 515.
234. A mere clerical error in a judgment can be corrected, but is not ground for reversal. Anderson v. Parker, April T. 1556.
235. Judgment against one of two joint makers of a note is a bar to a joint action against both. Stearns v. Aquerre, April T. 1856.
236. Courts have no power to disturb a judgment after the expiration of the term, except in the single case where the defendant has not been served with process. White et ux. o. Williams, Oct. T. 1856.
257. Every intendment is in favor of a judgment, and the appellate court must suppose that it was based on proper evidence, unless the contrary be male clearly to appear. Grewell v. Henderson, Jan. T. 1857.
23. Proof of judgment in another state. Parke v. Williams, Jan. T. 1857.
29. Where defendant is served with process but was not given the time to answer allowed by statute, the judgment is irregular, but not void. Whitwell v. Barbier, Jan. T. 1857.
240. A former judgment of reversal is not necessarily a bar to further proceedings in the action. After the reversal the parties still have the same right they originally had. Stearns v. Aquerre, April T. 1857.
241. Where two defendants are jointly sued and service had on both, the clerk has no authority to enter judgment by default against one. Id.
242. A judgment of the supreme court, in same cause, upon substantially the same facts, is the law of the case. Id.
Gonzalez v. Huntley, 1 Cal. 32; Palmer v. Brown, 1 Cal. 42; Thompson v. Manrow, 1 Cal. 428 ; Dwinelle v. Henriquez, 1 Cal. 387 ; McQueen v, The Russell, 1 Cal. 165; People v. Turner, 1 Cal. 143; Belt v. Davis, 1 Cal. 134; Parker 0. Shepard, 1 Čal. 131; Helm v. Dumars, 3 Cal. 454; Parsons v. Davis, 3 Cal. 421 ; Palmer v. Rey.