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the cause of action mentioned in the first count of his complaint, but the court ruled the same out, on the ground that his claim for such damages was barred by the said former judgment. Plaintiff admitted that he had no claim for damage to his lot in block 19, caused by the construction of the railroad's main track.

The record fails to show the introduction or offer of any evidence of damage by reason of the construction and maintenance of the switch. The plaintiff asked the court to instruct the jury that the former settlement and judgment were not a bar to any claim for damages done to the lot in block 20; that such damages, if any, constituted a separate cause of action. from that sued for in the former case, and if any such were found, the same should be included in a verdict for plaintiff. The court refused to so instruct the jury, and, on the contrary, instructed the jury that, as the case was presented, the only question for their consideration was the damages, if any, done to the lot in block 19 by reason of the construction and operation of the switch and side-track in front of his premises in that block. To all these rulings the plaintiff excepted.

We think there was no error in the rulings or instructions of the court in this behalf, so far as relates to any damage accruing to either of plaintiff's lots prior to and up to the time of filing his complaint or making his settlement in the former action. The elements of his damage up to that time may have been multifarious, but the cause of it was a unit, the construction and operation of a single railroad which was complete at the time. The fact that it damaged two lots belonging to the same man, at the same time and by the same means, no more created two causes of action than if two horses belonging to the same man had been killed by a single collision with a locomotive, and this has been held to constitute but a single cause of action: Brannenburg v. Indianapolis etc. R. R. Co., 13 Ind. 103; 74 Am. Dec. 250. In cases of tort, the question as to the number of causes of action which the same person may have turns upon the number of the torts, not upon the number of different pieces of property which may have been injured. Each separate tort gives a separate cause of action, and but a single one: 1 Sutherland on Damages, 183, and cases cited. Whenever by one act a permanent injury is done, the damages are assessed once for all: 3 Sutherland on Damages, 372. This principle is established in Marble v. Keyes, 9 Gray, 221, and in very many other cases. There is

nothing in the authorities cited by appellant in conflict with this view.

Appellant claims that he was entitled to recover for the damages sustained by the continued operation of the railroad after the settlement and judgment in the former case. This claim conflicts with the authorities already cited, but under Hopkins v. Western Pac. R. R. Co., 50 Cal. 190, and Ford v. Santa Cruz R. R. Co., 59 Cal. 290, there might be some force in the argument, if there was anything in the case upon which to base it. But the record shows that plaintiff admitted that he had no claim for damages to the lot in block 19, accruing after the date of the former complaint, and it fails to show any proof of damages to either lot after that date.

Appellant also claims that he was entitled to recover for the damages to his lot in block 19 by reason of the construction and operation of the switch and side-track. The court ruled in his favor in that regard, and he proved the fact of the construction and operation of the switch and side-track, but his record fails to show that he offered to prove any damages by reason thereof. We cannot therefore disturb the verdict of the jury in that regard.

Appellant also complains of the action of the court in permitting the answer to be amended after the jury was impaneled, and in denying his subsequent motion to strike out the amendment. This was a matter entirely in the discretion of the court. The plaintiff does not seem to have been taken by surprise, or to have suffered any injury therefrom, and we do not perceive that there was any abuse of discretion.

Judgment and order affirmed.

WORKS, J. (concurring). I concur in the judgment. Under the circumstances of this case, the lots claimed to have been affected lying near to, if not adjoining, each other, and the road being completed at the time the first action was brought, the settlement of that case was rightly held to be a bar to the second action. But a case might arise where a road being constructed would pass over and affect two tracts of land owned by the same person, the tracts being a long distance apart, and that part of the road affecting one piece of land be constructed long before the part affecting the other piece. In such a case, the construction of the whole road could not with any propriety be treated as but one act, and

the land-owner be compelled to delay his action until the whole road is completed, and join his action for damages to both pieces of land, or bring his action for both, when it may be uncertain whether the last part of the road will ever be completed or not. Under such circumstances, separate actions should be allowed, and, in my judgment, the opinion of Mr. Justice Fox is too broad in its language in this respect.

JUDGMENTS-MERGER OF ORIGINAL CAUSE OF ACTION. A recovery of part of an entire demand merges the whole, and bars any further recovery thereof: Oliver v. Holt, 11 Ala. 574; 46 Am. Dec. 228; for an entire demand cannot be split up so as to authorize the bringing of several suits thereon: Bendernagle v. Cocks, 19 Wend. 207; 32 Am. Dec. 448, and note 454, 455.

DALY V. PENNIE.

[86 CALIFORNIA, 552.]

JUDGMENTS. - RELIEF FROM AN ERRONEOUS ORDER OF A COURT DISTRIBUTING AN ESTATE of a decedent must be sought by an appeal, and cannot be obtained by a bill in equity, to restrain compliance therewith. JUDGMENTS. RELIEF FROM A JUDGMENT WILL NOT BE GRANTED IN EQUITY on the ground that the attorneys or their clerk inadvertently omitted to file an undertaking on appeal therefrom, for which omission such appeal was dismissed, and all remedy thereby lost.

JUDGMENTS. RELIEF FROM A DECKEE DISTRIBUTING THE ESTATE of a de cedent will not be granted in equity on the ground that the persons interested did not receive any personal notice of the proceedings, if the statute did not require such notice and there is no allegation that such notice as it did require was not given.

Henry E. Wills and John F. Burris, for the appellants.

A. H. Loughborough, for the respondents.

HAYNE, C. The defendants had final judgment upon demurrer to the second amended complaint, and the plaintiffs appeal. The material facts shown by the pleading are as follows:

Anna J. Skerrett died in London, England, being a resident of said place at the time of her death, and leaving a will This will was proved in an English court, and an administrator with the will annexed appointed there. A duly authenticated copy was filed in the probate court of San Francisco, and the defendant Pennie was appointed administrator with the will annexed here. In due course, the San Francisco

court made a decree of settlement of the final account of its administrator, and of final distribution of the property remaining in his hands. This decree recited, among other things, that there were unpaid creditors in England, whose claims had not been presented here; that the estate in England was not sufficient to pay such claims, and that all the legatees and devisees resided in England, except one, whose legacy had lapsed, and another, who had received his share, and contained a provision that the sum remaining in the hands of the administrator here should be delivered to the administrator in England: See Code Civ. Proc., sec. 1667. The plaintiffs are the successors in interest of certain heirs at law, and the suit is for an injunction to restrain the defendants from obeying the decree of distribution, and for a review thereof, and for a decree of distribution in accordance with the plaintiffs' views of what is proper under the circumstances.

The main ground upon which relief is sought is, that the decree of distribution is erroneous both as to the law and as to the facts; that the bequests were void under the law of this state and of England; and that, upon a proper construction of the will, the persons to whose interests the plaintiffs succeeded would be entitled to portions of the estate.

But an appeal from the decree is provided by the statute (Code Civ. Proc., sec. 963), and on such appeal the whole decree can be reviewed. If it be erroneous, either as to the law or the facts, the remedy is by appeal. Mere error is not a ground for relief in equity.

It is alleged, however, that an appeal was taken, but that "the clerk having charge of such matters in the office of the plaintiffs' attorneys inadvertently omitted to file an undertaking on appeal within the time required by law, and said appeal was for that reason dismissed by the supreme court without hearing the merits thereof." This is not a ground for relief in equity: Barnett v. Kilbourne, 3 Cal. 327.

"It is further alleged that the plaintiffs' assignors "received no notice of said proceeding, and did not appear therein." But the statute does not require that personal notice should be given: Code Civ. Proc, secs. 1633, 1634. And it is not alleged that the notice which is required was not given: In re Griffith, 84 Cal. 109.

The other matters do not require special notice.
We therefore advise that the judgment be affirmed.

FOOTE, C., and BELCHER, C. C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment is affirmed.

Hearing in Bank denied.

EQUITY. — As to the power of equity to correct or set aside settlements of accounts or decrees of distribution, see extended note to Green v. Creighton, 48 Am. Dec. 744–751.

[IN BANK.]

CUTTING PACKING COMPANY v. PACKERS' EXCHANGE OF CALIFORNIA.

[86 CALIFORNIA, 574.]

CONTRACT, ASSIGNABILITY OF. A CONTRACT WHEREBY ONE PERSON AGREES TO BUY AND ANOTHER TO SELL a crop of apricots which the former shall raise during certain specified years, though not negotiable, is transferable, under the Civil Code of California, by indorsement. The indorsement and transfer by a purchaser cannot compel the vendor to accept the transferee nor to release the original purchaser, but the purchaser on accepting the fruit from the vendor may require the assignee in turn to accept it from him and to pay him the contract price therefor. BALE POTENTIAL EXISTENCE. Where a contract of sale and purchase relates to the fruit which shall grow on a seller's trees during the five years succeeding that in which the contract is made, such fruit must be regarded as having a potential existence sufficient to support the contract of sale.

ASSIGNEE'S LIABILITY. If a contract for the purchase of property is as signed by the vendee, but the vendor refuses to accept the assignee as his debtor or to release the original vendee, the assignment nevertheless transfers to the assignee the duty to receive the property from his assignor, and to make payment therefor according to the terms of the ori ginal contract of sale, and failing to do so, he is answerable in damages to his assignor, who must be regarded as being his surety and as having received and paid for the property in that capacity.

A. N. Drown, for the appellant.

Olney, Chickering, and Thomas, for the respondent.

WORKS, J. This appeal is brought here on the judgment roll, which includes a bill of exceptions, from a judgment rendered in favor of plaintiff in an action for damages for breach of contract tried before the court without a jury.

In September, 1881, the plaintiff and one William C. Blackwood made the following contract of purchase and sale:

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