suit against Bransford for the conversion of their property. Upon being sued, the latter notified one of the indemnitors of the bringing of the suit. The attorney of the defendants in this action appeared in that action and made defense. Judgment was recorded against Bransford for $445 damages and $72.60 costs. Upon the rendition of the judgment, Bransford assigned the indemnity bond to the plaintiffs, "in consideration," says Bransford, "that I was released from all liability to plaintiffs on account of the judgment against me, and I have never paid anything on that judgment. By giving the bond of indemnity, the defendants participated in the trespass of the officer, and they became, with him, joint trespassers, and jointly liable for the damages which the plaintiffs might sustain by their unlawful acts. (Lewis vs. Johns, 34 Cal. 633.) To recover such damages plaintiffs were entitled to sue them separately or jointly. They did sue the officer, and recovered judgment against him. But the recovery of that judgment did not prevent them from afterward suing the others for the same trespass. The judgment so recovered could not be used as a plea in bar to such suits, unless it was fully satisfied; and having been recovered against the officer in an action in which the indemnitors had an opportunity to defend, and which they in fact defended, it was binding, until satisfaction, on each and all of them in any action or actions which the plaintiffs might afterwards bring against the indemnitors as joint trespassers. (Dutil vs. Pacheo, 21 Cal. 438; 13 Cal. 297.) But the relation between the indemnitors and the officer is different from the relation between them and the plaintiffs. The liability of the former to the plaintiffs arises out of tort; while their liability to the officer arises out of contract, and depends simply upon the terms of their contract. By their bond they contracted to save harmless the officer from all damages, expenses, costs, and charges, and against all loss and liability which he might sustain or be put to by reason of the sale of the property claimed by the plaintiffs. But if the officer has not sustained any damage, loss, and liability, there is no breach of the conditions of the bond. Judgment, it is true, has been recovered against him on account of the acts for which the bond was given; but the plaintiffs have not averred in their complaint, and there is consequently no proof, that the officer has paid any part of the judgment, or has incurred any liability in consequence thereof. On the contrary, the officer himself has proved on the trial that he had not paid anything on the judgment, and that he was released from all liability to the plaintiffs on account of it. Under these circumstances, we do not see that the officer himself could maintain an action upon the bond; and the plaintiffs, as assignees of the bond, are in no better position than the officer himself. If the officer has not paid anything on the judgment, and has been released from all liability on account of it, there is no breach of the condition of the bond for which the defendants are liable. In Lott vs. Mitchell, 32 Cal. 24, the Court says: "The obligors do not undertake that suits shall not be brought against the officer, nor that judgment shall not be rendered, nor that executions shall not be issued against him. On the contrary, the undertaking assumes that such things shall or may arise, and provides, if they should, that the obligors will indemnify the officer for any actual damages that he may sustain by reason thereof. No such damages are averred. The complaint does not allege the payment of the judgment, and consequently there has been no breach of the indemnifying bond. The Sheriff was not indemnified against a liability, but against actual damages; and he sustains no damages until he pays." We are of opinion that the plaintiffs have shown no cause of action against the defendants upon the bond, and that the Court erred in instructing the jury to return a verdict for the plaintiffs. Judgment reversed and cause remanded. IN BANK. [Filed August 6, 1880.] JOHN SHEEHY, PETITIONER, VS. SAMUEL A. HOLMES, SUPERIOR JUDGE, RESPONDENT. PETITION FOR WRIT OF PROHIBITION. Appeal from the Superior Court of Fresno County. Grady & Griffith, J. C. Burch, and C. G. Sayle, for petitioner. H. J. Dixon and J. H. Smythe, for respondent. By the Court: In this cause no answer has been filed by the respondent, nor was there any appearance on his behalf at the hearing. We have examined the case, and think the petitioner entitled to the writ prayed for. Let the peremptory writ issue. DEPARTMENT No. 1. [Filed July 28, 1880.] No. 7128. ISIDORE DANIELWITZ, APPELLANT, VS. F. P. F. TEMPLE ET AL., RESPONDENTS. JURISDICTION IN LAND CONTEST. The judicial department of the State has no jurisdiction of a contest between opposing applicants for the purchase of lands belonging to the State, unless referred to it by the proper official. Appeal from the District Court of the Seventeenth Judicial District, Los Angeles County. W. F. Hazard, for appellant. W. Neely Johnson, G. W. Nourse, A. W. Hutton, and Thom & Stephens, for repondents. By the Court: The action was dismissed by the Court below upon the ground that the complaint did not show by proper averments that the alleged contest between the parties had been, by order of the Surveyor-General, referred to the Court for trial. The judicial department of the State has no jurisdiction of a contest between opposing applicants for the purchase of lands belonging to the State, unless it has been specially referred to a Court by the Surveyor-General or Register of the State Land Office, according to the provisions of the Act for regulating the sale of such lands. It is by virtue of the order of reference that a Court acquires jurisdiction to hear and determine the contest, and, as a jurisdictional fact, the order must be proffered or averred in the complaint, and proved. In Berry vs. Cammet, 44 Cal. 347, the Court says: "In order to give a Court jurisdiction of a controversy arising between applicants for the purchase of lands of the State, the facts conferring jurisdiction must be stated in the complaint." There is no error in the record. Judgment affirmed. (Morrison, C. J., sat in the foregoing case in the place of Ross, J., the latter being disqualified and taking no part in the decision.) Abstract of Recent Decisions. ADMIRALTY.— In the absence of shipping articles, the implied contract is that the mariner is to be returned to the port of shipment. In case a vessel engaged in internal navigation is detained by ice, the mariners should return home by rail if possible. The rule for their compensation is, the amount of their necessary transportation and expenses, together with their rate of wages, from the date of discharge to their arrival at port of shipment.Worth vs. Steamboat Lioness, U. S. Dist. Court, E. D. of Missouri. A part owner of a vessel condemned and sold in Admiralty, who has a claim against the vessel for his wages as engineer, will not be permitted to assert his claim in opposition to creditors, who, by a State statute, have liens against the vessel for debts for which such owner is personally liable, jointly with the other owners. Any person having an interest in a fund in the registry of a Court of Admiralty may apply by petition to have his claim satisfied out of the fund, although he may not be entitled to prosecute a suit in Admiralty to enforce his claim.Petrie vs. Tug Coal Bluff, U. S. Dist. Ct., W. D. of Penn. Pittsburg Legal Journal, June 30, 1880. ADVANCES TO VESSEL-BOTTOMRY BOND. While a ship was in her home port, her master, who was also her owner, borrowed money from parties abroad, and gave them a written agreement, providing that for such money they should have, "besides the responsibility of the owners, a lien on the ship and freight," that the same were hypothecated to them, and that he would make them a remittance of the freight from Oporto (the vessel's destination): Held, that this instrument was not a bottomry bond. -The Brig E. A. Barnard, U. S. Cir. Ct., E. D. of Penn. Federal Reporter, June 29, 1880. RESPONSIBILITY FOR DAMAGES. A steam tug employed to tow a canal barge into the mouth of a canal, abandoned her at a dangerous point outside of the mouth. To escape the danger, the master of the barge endeavored to pole himself into the canal; but in consequence of not having sufficient force for that purpose, the vessel was lost. The force would have been sufficient for the management of the boat, and she would have been safe had she been placed in the canal: Held, that the tug was responsible.-Kenah vs. Tug John Markee, Jr., U. S. Dist. Ct., E. Ď. Penna. Legal Intelligencer, July 9, 1880. DECLARATION-ADMISSION. Declarations of the master as to the cause of the accident, made in the absence of the owners after suit brought, and after he had ceased to command the vessel, are inadmissible. The allowance of an amendment to the answer, withdrawing an admission of a material fact in the libellants' case, will not relieve the respondent from its effect as an admission, and in a conflict of testimony it will be considered.Ib. AGENCY. Where an insurance company holds a person out to the world as its financial agent, permitting him to make loans, and foreclose mortgages therefor, and such agent upon foreclosing a mortgage takes the certificate of sale in the name of his principal, and assigns the same to a third party to whom he had agreed to sell the land, receiving from such third party the money for the land, the insurance company, if treating the agent as its debtor, will be bound by the acts of its agent, so far as regards the right of such third person to the land. Where another agent of such company, sent to procure a deed of the land sold for the use of the company, after being informed of the sale of the land to another by the former agent, demands of such agent payment to the company of the consideration received for the land, it will be considered a ratification of the first agent's acts.-Union Mut. Life Ins. Co. vs. Masten et al., U. S. Cir. Ct., Dist. of Indiana. An agent who deposits the money of his principal in a bank to his own credit, without the assent of his principal, assumes all the risks of the solvency of such bank; and if the bank fails, and the money so deposited is lost, the loss falls upon the agent.Sargeant vs. Downey, Sup. Ct. Wisconsin. AUCTION SALE-WARRANTY.— Where, at a sale by auction of a horse warranted a good worker, one of the conditions of the sale was that any horse not answering a warranty must be returned by five o'clock on the day after the sale, to be tried by a competent person appointed by the proprietors of the repository where the sale took place, whose decision should be final: Held, that no action could, in the absence of fraud, be brought by the purchaser for breach of warranty, the horse not having been returned on the day after the sale. Hinchcliffe vs. Barwick, 42 Law Times, 492. BAILMENT.— Where a bathing house manager, to induce the public to patronize him, agrees to furnish a safe place for the valuables of bathers, he is a bailee for hire, and is responsible for the loss of such valuables, unless he can show that the loss was occasioned by force of circumstances beyond his control; and upon this point the burden of proof is upon him. The fact that the key of the box where the valuables were deposited was given to their owner does not relieve him from his liability.-Levy vs. Appleby, New York Marine Court. BANKRUPTCY.— Mere suspicion on the part of a creditor taking security for his |