Pacific Coast Law Journal.

VOL. 1.

APRIL 13, 1878.

No. 7.

Current Topics.

IN Estate of Selby the Supreme Court affirms the order of the Probate Court. Selby died June 9th, 1875. Letters testamentary were issued July 12th, 1875. Notice was immediately given to creditors to present and prove their claims. The appellants presented their claim for $107,826 87, and on the 30th of September it was approved by the Probate Judge. On the 21st of June, 1876, the estate paid ninety per cent. of the debts, the amount of which percentage paid to appellants was $97,044 19. No interest had been claimed at this time. Sept. 4th, 1876, appellants filed their petition, the object of which was to show that by the terms of the sale of the certain ore mentioned in the claim, Selby was to pay interest after twenty days, and asking to amend their claim so as to be allowed interest. The Probate Court refused to allow interest on the claim.

The appellants relied upon Est. of Hidden, 23 Cal. 362. Respondent cited C. C. P. 1493, 1917; 14 Cal. 171-3, claiming that appellants were concluded by their claim as presented and allowed.

IN Farmers' Storage and Com. Co. vs. DeLappe, recently decided by our Supreme Court, an interesting question arose concerning warehouse receipts. DeLappe, the defendant, sold certain wheat to Davis and delivered the wheat to the Farmers' Storage and Commission Co., the plaintiff in this action, and the company gave him a receipt for a certain number of pounds, payable to the order of Davis. DeLappe took the receipt to Davis and Davis paid him according to the number of pounds of wheat named in the receipt. It was soon ascertained that the secretary of the storage company

had made an error and issued the receipt for a greater number of pounds than had been actually received—an error in addition. Davis demanded all the wheat he had paid DeLappe for or its value, and the storage company paid him, and then brought suit against DeLappe to recover the amount paid Davis for the wheat not received.

The defendant claimed that if he was indebted to any one it was Davis, and not to the plaintiff, and that negotiations were pending between him and Davis looking to an arrangement of the difference, and that without his consent there could not be a change of creditors.

The court below gave judgment for the plaintiff, and the judgment was affirmed.

THE Supreme Court has just affirmed the judgment of the court below in People vs. Thomasson. The defendant stole a pig and was sentenced to the penitentiary for ten years, the full extent of the law. There was no legal proposition involved worthy of notice.

It is a noticeable fact that at nearly every term of the court criminal appeals are affirmed on the sole ground that counsel for defendants make no appearance nor file any briefs on behalf of their clients.

WE have the most thorough arrangement for procuring all the decisions of the Supreme Court sitting at Sacramento. We have procured the services of a lawyer whose long experience in such matters enables him to collate with precision and accuracy all that is interesting and of value concerning the late decisions and disposition of cases. As the court proceeds with its calendar our notes each week from Sacramento will prove of great interest to the bar.

IN The People vs. Moore, just decided by the Supreme Court, this most wholesome and proper principle is announced. Moore owned a certain interest in a mining claim which he contracted to transfer to Parrott. Two friends of Moore, Williams and Nash, also held interests in the same property. Moore represented to Parrott that the interest of Nash could be purchased for $2,000 and that of Williams for $3,000. Parrott advanced $5,000 to Moore to be used in the purchase of

these interests. Moore obtained a deed of the property from Williams and Nash to himself and then deeded the same to Parrott. Parrott subsequently learned, and as the fact was, that Moore paid nothing to Williams and Nash for the deed, and kept the $5,000. Moore was indicted for embezzlement. The Attorney General argued that Moore was an agent for the purpose of acquiring the interests of Williams and Nash, and having falsely represented that $5,000 was necessary for the purpose, and having received it for nothing, it was his duty to return the money; not having done so, he was guilty of embezzlement. Judgment affirmed holding Moore guilty.

OUR attorney at Sacramento has just handed down a memorandum showing the disposition of the following cases: 5765-Zeimwaldt vs. Sac. City R. R. Co.-Suit on notes executed by the President and Secretary of the railroad company by order of the Board of Directors, for work and labor done by the plaintiff as gardener in East Park, which park was owned by the defendant, and being at the terminus of the road, was improved by it for gain and to increase travel on their railroad. The defendant set up the plea of ultra vires. The court below gave judgment for plaintiff. Judgment affirmed. 5604-Union Savings Bank vs. Nolan.-Defendant executed a deed of trust of certain real estate to secure the payment of money. After failure to pay at the time stipulated, plaintiff brings suit in equity to have the deed of trust declared to be a mortgage and for a foreclosure thereof. Judgment for plaintiff below. Judgment affirmed. 5806Harris vs. Walker.-Defendant promised payment to plaintiff for goods furnished a third party. Defendant claimed that instead of being an original promise it was simply a guaranty, and not being in writing, was void under the Statute of Frauds. The court below found it to be an original, as contra-distinguished from a collateral promise, and gave judgment for plaintiff. Judgment affirmed. 6016-Snyder vs. Johnson.-Argued and submitted. This case involves the construction of the Act of 1873-4, known as the Oakland Sewer Act. Plaintiff says the Act was mandatory and, therefore, unconstitutional. Defendant argued that the Act was simply permissive and not obnoxious to the decision in People vs. Lynch.

Supreme Court of California.

JANUARY TERM, 1878.

COPARTNERSHIP

[No. 5,780.]

[Filed April 3, 1878.]

BARBER vs. BARNES.

DISSOLUTION. The seizure by attachment of the partnership property and the application of the property to the payment of creditors of the firm, and the fact that the firm did not do business after the attachment was levied, do not of themselves necessarily and conclusively operate as a dissolution of the partnership. The commencement of an action by the firm, subsequent to the attachment, to recover a debt due the firm, and the action not yet having been determined, tends to rebut any inference of the dissolution arising

from the above facts.

The complaint was filed Oct. 6th, 1876, and alleges that on the 24th day of January, 1873, the plaintiff and defendant entered into copartnership under the firm name and style of Barnes & Barber, and that said copartnership has never been dissolved; that said copartnership was formed for the purpose of carrying on a box manufactory, and that the plaintiff advanced of his own individual money, for the purpose of material and the payment of an indebtedness of the copartnership, the sum of $1,752 over and above the amount contributed by defendant, and that the defendant collected from persons indebted to the firm large sums of money, which were used by said defendant.

The plaintiff prays for a decree of dissolution and for an accounting. The defendant demurred to this complaint: 1. That the complaint does not state facts sufficient to constitute a cause of action. 2. The cause of action, if any, is barred by Section 339 of the Code of Civil Procedure.

The court below overruled this demurrer, and the defendant filed an answer denying all the allegations in the com

plaint, and alleging that he had paid the sums of money in full to the plaintiff; and for a further answer alleged that the said cause of action did not accrue to plaintiff within two years next before the commencement of this action, and the said action is barred by Section 339 of the Code of Civil Procedure. At the trial the plaintiff testified in his own behalf substantially to the allegations in the complaint, and that there is now a suit pending in this court against Hunt and Anderson, brought by defendant and himself, arising out of the partnership. Upon cross-examination he stated "That there was a suit brought against us by Wise and Bryte upon a note of the firm for $2,500. I told Wise that the firm could not pay the note; that the only way to save himself was to sue. Wise is my brother-in-law. I did not say anything to defendant about this conversation, because I knew he had no money to pay it."

"All the property of the firm was attached in the suit of Wise & Bryte against us. The suit was finally settled by the creditors meeting and appointing one of their number assignee, who collected all debts due the firm, which paid ninety cents."

The firm of Barnes & Barber did not do business after the attachment was levied.

The suit of Barber & Barnes against Hunt and Anderson was commenced on the 24th day of June, 1874.

The attachment in the suit of Wise & Bryte against Barber & Barnes was levied on the 5th day of May, 1874.

The defendant moved for a nonsuit upon the ground that the Statute of Limitations had run, and the action barred by Section 339 of the Code of Civil Procedure.

The court below granted the motion, from which order the plaintiff appealed.

L. S. Taylor attorney for plaintiff.

J. H. McKune attorney for defendant.

PER CURIAM.

The Court granted a nonsuit on the ground that the cause of action was barred by Section 339, Code of Civil Proced