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GAROUTTE, J. Action to quiet title. The appeal is taken from a judgment in favor of plaintiffs, and the only question involved is as to the location of the western boundary line of the rancho Pasa de Robles. The rancho was surveyed in 1859, and its boundary lines, as far as it is necessary to examine them for the purposes of this case, are described as commencing at a post marked "P. R. No. 3;" then west 84 chains and 20 links to a post marked "P. R. No. 4;" thence south 255 chains 87 links to the corners of sections 31, 32, 5, and 6. There is no dispute either as to the location of P. R. No. 3, or the termination of the west line at the point where the four sections corner, but the post marked "P. R. No. 4" is destroyed; and this litigation is the result, for the location of the corner where that post originally stood is determinative of the merits of this case. The township of government land lying immediately west of the aforesaid rancho was surveyed and sectionized in 1869, long after the title to the rancho was settled, and its exterior. boundaries finally located. Hence, if any conflict arises between these respective surveys. the grant survey must prevail. Appellant contends that P. R. No. 4 should be located by running north 255 chains and 87 links from the corner of the four sections mentioned. Respondents insist that the northwest corner of the rancho should be located by running west from P. R. No. 3 84 chains and 20 links, and with this determination we agree. The northwest corner of the rancho is located by the patent at a post marked "P. R. No. 4." It is also located as being 84 chains and 20 links west of a post marked "P. R. No. 3." Hence, it is not only located by a monument, but by course and distance. The location by monument is valueless, for the monument has disappeared. Hence, the course and distance is necessarily controling. If the patent had referred to no monument at this corner of the rancho, but had

located the corner simply by the course and distance given, then no question could arise but that the corner should be 84 chains and 20 links west of P. R. No. 3; and the monument having disappeared, and there being no oral testimony as to its former location, the case is here presented as if no monument marked P. R. No. 4" was referred to in the patent. In locating P. R. No. 4, the court has followed the footsteps of the surveyor, rather than to take the reverse course, and run a north line from the common section corner, and this is the proper course. There is no reason why the north line of the grant should be shortened to 75 chains and 59 links, which is the point where appellant locates P. R. No. 3, and thus contradict the calls of the patent in this regard, in order that the west line should run due south, and conform to the calls of the patent. If the west line of the rancho cannot run due south without shortening the north line, then, as between the two lines, the course of the west line must give way, for it runs to a monument, and the monument is controlling. The question here presented is elementary, and we see no necessity for a citation of authority. Judgment affirmed.

We concur: HARRISON, J.; PATERSON, J.

WREN v. WREN. (No. 14,296.) (Supreme Court of California. Nov. 10, 1893.) HUSBAND AND WIFE-AGREEMENTS BETWEENWIFE'S EARNINGS.

1. Under Civil Code, § 158, allowing husband and wife to enter into any engagement or transaction with each other respecting property, and section 159, providing that they may by contract alter their legal relations to property, and section 160, making their mutual consent a sufficient consideration for such an agreement, a husband may relinquish to his wife his right in money to be earned by her in nursing and boarding a person, so that she may sue therefor without joining him. Read V. Rahm, 4 Pac. Rep. 111, 65 Cal. 343, explained.

2. She is not required in such case to allege that defendant had notice of the agree ment between herself and husband when the services were rendered.

In bank. Appeal from superior court, city and county of San Francisco; Walter H. Levy, Judge.

Action by Wren against Wren. From a judgment for defendant, plaintiff appeals. Reversed.

Frank J. Sullivan, for appellant. Mich. Mullany and Wm. Grant, for respondent.

DE HAVEN, J. The plaintiff, who is a married woman, brought this action to recover $300 from the defendant for personal serv ices as a nurse, alleged to have been rendered by her to him. At the time these services were rendered, the plaintiff and her husband were living together, and the defendant was

an inmate of their house, but neither the plaintiff nor her husband was under any natural or legal obligation to care for the defendant without charge. In addition to the foregoing facts, it is alleged in the complaint that, prior to the rendition of the services mentioned, it was orally agreed between plaintiff and her husband that she should have and receive all moneys earned by her in nursing defendant as her sole and separate property. The superior court sustained a demurrer to the complaint, and thereupon rendered judgment in favor of defendant.

The sole question to be determined on this appeal is whether the complaint shows that the earnings of plaintiff in nursing defendant became her separate property, or whether such earnings constitute community property, for which her husband alone has the right to sue. The earnings of a wife during marriage and while living with her husband and in his house are community property, and, as such, are subject to the management, control, and disposition of the husband; but the husband may relinquish to the wife the right to such earnings, and when he has done so they become the separate property of the wife. This general proposition is not disputed by defendant, but he contends that the agreement alleged in the complaint did not have this effect, because it related to future earnings, something not then in existence, and therefore not the subject of a verbal gift. We do not, however, regard this agreement as constituting a "gift," pure and simple, in the legal sense of that term. Section 158 of the Civil Code provides that "either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property which either might if unmarried;" and section 159 of the same Code provides that a husband and wife may by contract alter their legal relations as to property; and the succeeding section makes the mutual consent of the parties thereto a sufficient consideration for such an agreement. Under these sections, there can be no doubt that a husband and wife may agree between themselves, without any other consideration than their mutual consent, that money earned by the wife in performing any work or service which does not devolve upon her by reason of the marriage relation shall belong to her as her own, and, when money has been earned by the wife under such an understanding or agreement with the husband, it is her separate property, and she may maintain an action to recover the same. An agreement between husband and wife by which the husband relinquishes all claim to the earnings of the wife, is one which relates to the acquisition of property by the wife, and is an engagement or transaction respecting property, within the meaning of section 158 of the Civil Code, above cited. This same question arose in

the case of Riley v. Mitchell, 36 Minn. 3 29 N. W. Rep. 588. Under section 4, c. 09. of the General Statutes of that state, (1878) husband and wife are given the right to "contract with each other as fully as if the relation of husband and wife did not exist," except in matters concerning real estate; and the supreme court in that case held that an agreement between husband and wife that the latter might receive the compensa. tion to be earned by her in nursing a boarder in the family gave her the right to such earnings, and the consequent right to maintain an action for the purpose of collecting the same. The court in that case said: "While it may be true that a married woman will not, solely by virtue of the provisions in Gen. St. 1878, c. 69, § 1, be entitled to moneys due from boarders or others earned by her in and about the keeping and management of the family household, there can be no doubt that under section 4, same chapter, she may become entitled to receive the same by virtue of a contract between herself and her husband. We do not mean by this that they may stipulate for a pecuniary compensation to be paid by one to the other for performing the duties that pertain to the rela tion, such as caring for and managing the family, and the household of the family, but confine the proposition to services rendered to others, and compensation from others fær such services." We think this may be re garded as a correct statement of the right given to husband and wife to contract with each other in relation to the savings of the wife by the sections of our own Civil Code above cited. It must be conceded that there is language found in the opinion of this court in the case of Read v. Rahm, 65 Cal. 343, 4 Pac. Rep. 111, which seems to sustain the contention of defendant here that the alleged agreement between the plaintiff and her husband was in the nature of a gift, and ineffectual for that purpose, because it re lated to future earnings. The following is the language contained in that opinion which is relied upon by the defendant: "There can be no doubt that any indebtedness due from Welsh for board for himself and sons was due to the community, nor could the hus band make a gift to his wife of his interest in what should be paid by Welsh for such board in the future. He could not give that which he had not yet acquired." The question involved in that case related to the ef fect of a deed made by the wife by the direc tion of her husband in settlement of an indebtedness due to the community, and the court held that such deed operated as a gift from the husband to the wife. As this was the only question before the court, it is erident that its attention was not particularly called to the different matter referred to in the above quotation, and what is there said cannot be regarded as an authoritative de cision upon the point presented here. The

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CLARKE v. BAIRD. (No. 15,178.) Supreme Court of California. Nov. 10, 1893.) APPEAL-Record.

On appeal by plaintiff from an order vacating an order for the inspection of books of account, and from an order denying a moion to strike out defendant's answer, no error s shown where the record states that final udgment was rendered for plaintiff several nonths before the order for inspection was nade, and before the motion to strike out, and he purpose of the order and motion at such time is not disclosed.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; J. V. Coffey, Judge.

Action by Johanna F. Clarke, administrarix, against Andrew Baird. From an order acating an order for the inspection of books f account, and from an order denying a notion to strike out defendant's answer, laintiff appeals. Affirmed.

Alfred Clarke, for appellant. H. C. chaertzer, for respondent.

■ VANCLIEF, C. The transcript contains wo notices of appeal,-the first from an or er vacating "an order for inspection of cerain books of account," made at the instance f plaintiff; and the second "from the order enying plaintiff's motion to strike out the nswer of defendant," on the alleged ground hat he had refused to give his deposition in he case. The transcript consists of two bills f exceptions, one to each order appealed rom, but contains no part of the pleadings in he action. It is stated in each of the bills of xception that "plaintiff recovered judgment November 28, 1891," but not even the subtance or nature of the judgment is stated. t appears that the order for the inspection f books of account was an ex parte order, nade on July 15, 1892, seven and a half

months after the judgment in favor of plaintiff, and that the order vacating the abovementioned order was made on July 29, 1892. Plaintiff's motion to strike out defendant's answer was heard and denied on July 29, 1892. It is difficult to conceive what lawful purpose could have been subserved by strik ing out defendant's answer, and inspecting his accounts with a third person, (Hannah Wittram,) or even with the plaintiff, eight months after final judgment; and surely no such purpose is made to appear by the bills of exception. From aught that appears in the record, it would seem that plaintiff should have moved to strike out defendant's answer, and to inspect his books before judgment, if she was entitled to such relief in that action. Had she done so, the action of the court, if properly excepted to, might have been reviewed on appeal from the judgment. As the record discloses no error, the orders appealed from should be affirmed.

We concur: BELCHER, C.; HAYNES, C. MCFARLAND and FITZGERALD, JJ. For the reasons given in the foregoing opinion the orders are affirmed.

DE HAVEN, J. I do not think either of the orders appealed from an appealable order, but, as the practical effect of a dismissal of the appeals is the same as their affirmance, I concur in the judgment affirming the

same.

ASEVADO et al. v. ORR et al. (No. 18,139.) (Supreme Court of California. Nov. 10, 1893.) INJUNCTION - DAMAGES ACTION ON THE CASE

BOND-PLEADING-DEMURRER-JURY.

1. An action on the case will not lie for improperly suing out an injunction unless it is charged in the complaint as an abuse of the process of the court through malice and without probable cause.

2. The voluntary dismissal of an action is not an admission of want of probable cause.

3. Where it is not alleged in an action on an injunction bond that plaintiff in the injunction suit is a party thereto, the action cannot be maintained against him.

4. To determine the liability of the obligors in an injunction bond, the voluntary dismissal of the suit by plaintiff has the same effect as a decision of the court that the injunction was improperly sued out.

5. In an action on an injunction bond defendants cannot escape liability on the ground that the writ of injunction was ambiguous, and should not have been obeyed, as they are in no position to make such an objection.

6. A demurrer to a complaint containing two counts cannot be sustained if either count is good. 7. A joint demurrer by several defendants must be overruled if the complaint is good as to either of them.

8. A complaint is not necessarily defective in which there is united with some defendants another against whom no liability is shown, and an order overruling a demurrer for misjoinder of parties is not reversible error if the

rights of the parties have not been prejudiced. | injunction against the plaintiff, and upon the

9. The fact that the court excused a juror is no ground for reversal where no exception was taken by appellants to the jurors who tried the case, and it does not appear that they did not have an opportunity to exercise all the peremptory challenges allowed them.

Department 1. Appeal from superior court, Siskiyou county; J. S. Beard, Judge.

Action by Joseph Asevado and others against Thomas Orr and others. From a judgment for plaintiffs, defendants appeal. Reversed in part.

Warren & Taylor and T. M. Osmont, for appellants. Gillis & Tapscott, for respondents.

HARRISON, J. The appellant Thomas Orr brought an action in June, 1891, against the respondents in the superior court of Siskiyou county to restrain them from depositing any sand or gravel in North Fork Cornish ditch, and from diverting the waters of Main Greenhorn creek from said ditch during a certain portion of each day; and immediately after the commencement of the action procured a writ of injunction to issue out of the court, which was served on the plaintiffs herein, restraining them pending the litigation from doing the acts complained of. For the purpose of procuring the issuance of the injunction the plaintiff, in accordance with the order of the judge therefor, filed an undertaking in the amount of $500, executed by the other appellants herein, conditioned "that, in case the said injunction should issue, the said plaintiff, Thomas Orr, would pay the defendants in the said action such damages, not exceeding the sum of $500. as the defendants therein might sustain by reason of the said injunction, if the said superior court should finally decide that the said plaintiff, Thomas Orr, was not entitled thereto." In December, 1891, the action was dismissed upon motion of the plaintiff's counsel, and thereafter the respondents herein brought this action against Orr and the sureties on the undertaking to recover the damages sustained by reason of the injunction. The complaint contains two counts, one against Orr, claiming the sum of $6,150 for damages resulting from the issuance of the injunction; and the other against the sureties upon their undertaking to respond in the sum of $500 for the amount of such damages. The defendants jointly demurred to the complaint, and, their demurrer having been overruled, they answered the complaint, and a trial was thereafter had in which the jury found that the plaintiffs had suffered damages in the sum of $750. Judgment for that amount was entered against the appellant Orr, and for $500 against the other appellants. From this judgment the defendants have appealed.

1. In Robinson v. Kellum, 6 Cal. 399, an action was brought against the defendant to recover damages for wrongfully suing out an

appeal from the judgment rendered therein in favor of the plaintiff the court said: “AD action on the case will not lie for improperly suing 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. If the act complained of is destitute of these ingredients, then the only remedy of the injured party is an action upon the injunction bond, which is specially provided by the statute as a protection against injury, even without malice;" and reversed the judgment because the complaint failed to aver those facts. To the same effect are the following authorities: Cox v. Taylor, 10 B. Mon. 17; Manlove v. Vick, 55 Miss. 567; Burnett v. Nicholson, 79 N. C. 548; Hayden v. Keith, 32 Minn. 277, 20 N. W. Rep. 195; Lawton v. Green, 64 N. Y. 330; High, Inj. § 1648. The courts of the state are open to every citizen for the redress of his wrongs, and unless he is at liberty to seek such redress without rendering himself liable in damages to the defendant in case he shall fail to establish his complaint, this right would in many instances be a barren privilege. The law has provided that in certain classes of actions a defendant may be restrained during the pendency of the action from enjoying property, or exercising dominion over the same, where his right to the property or of dominion is controverted by the plaintiff; and in such cases the plaintiff is required to indemnify the defendant against any injury that he may sustain from such restraint if it shall be finally determined that the plaintiff did not have a cause of action. The amount of this undertaking is fixed by the court as the measure of damage to be sustained, and is the limit of the defendant's right of recovery. It is to be assumed that the court has properly exercised its discretion in determining this amount; but if, at any time pending the litigation, it should be made to appear to the court that the undertaking is insufficient, it would have the power, and it would be its duty, to require an increase of the undertaking as the condition of allowing the plaintiff to continue the injunction. It is only when the process of the court is abused, or when the plaintiff seeks to avail himself of its power to harass or injure another by suing him upon a charge in which he is conscious of having no right of action, that be becomes amenable in damages for bringing such suit. Such an action is, however, in the nature of a malicious prosecution, and in any action to recover damages therefor want of probable cause and malice are es sential ingredients to the complaint, and must be clearly alleged and proved in order to sustain the action. Cox v. Taylor, supra. The complaint in the present case does not aver either malice or want of probable cause, and therefore fails to show any cause of ac

tion against the defendant Orr. The contention on the part of the respondents that the voluntary dismissal of the action was an admission by the plaintiff that he had no probable cause for commencing it, is not tenable. The plaintiff may have commenced the action in good faith, and, in the absence of any averment to the contrary, it must be so assumed; but if, after its commencement, he had become satisfied that he would not be able to establish his allegations, either by reason of having been originally misinformed, or because he was unable to procure witnesses in support thereof, good faith towards the defendants would prompt him to dismiss the action, rather than to force them to the annoyance and trouble of contesting his claims at a trial. It is not alleged that the appellant Orr was a party to the undertaking filed by him upon the issuance of the writ of injunction, and consequently he is not liable thereon. Lindsay v. Flint, 4 Cal. 89; Ghiradelli v. Bourland, 32 Cal. 588. It follows that the complaint fails to state any cause of action against Orr, and that the judgment rendered against him was without authority, and must be reversed.

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2. The appellants Bohnert and Walbridge agreed by their undertaking that they would pay to the plaintiffs herein any damages which they might sustain by reason of the issuance of the injunction. Their liability depends simply upon proof that the injunction was issued, that the defendants suffered damages thereby, and that the court has decided that the plaintiff was not entitled to the injunction. The voluntary dismissal of the action by the plaintiff had the same effect as a decision of the court that he was not entitled to the injunction, (Dowling v. Polack, 18 Cal. 625;) and the evidence before the jury was sufficient to justify its verdict for the amount in which it was rendered. These appellants, however, urge that their demurrer to the complaint should have been sustained. They united with Orr in a general demurrer to the complaint upon the grounds that it did not state facts sufficient to constitute a cause of action; that there was a misjoinder of parties defendant; and that several causes of action were improperly united, viz. an action on the case for damages, and an action upon a special contract. The demurrer upon the two latter grounds is in reality but one, as the specification for misjoinder of parties states as its ground the joining of an action against Orr for damages with an action against these appellants upon their bond; but, assuming the demurrer to be sufficient in form, we think it was properly overruled. The second count in the complaint sufficiently states a cause of action against these appellants upon their undertaking, and a demurrer to the entire complaint cannot be sustained if either of the counts is good. So, also, a joint demurrer by all of the defendants must be overruled if the

complaint is good against either of them. A complaint is not necessarily defective in which there is united with some defendants another against whom no liability is alleged or recovery sought, and an order overruling a demurrer for misjoinder of parties defendant does not constitute a reversible error if it can be seen that the rights of the parties have not been prejudiced. The complaint in the present case seeks no recovery against these appellants except upon their undertaking, and it is evident that their rights could not be prejudicially affected by the fact that their principal, who did not unite with them in the undertaking, has been made a codefendant. The repetition in the second count of the complaint of the matters set forth in the first count, and which affect Orr alone. may be regarded as merely surplusage, and, as these matters are insufficient to constitute a cause of action against Orr, they could not have injured the appellants. In Stark v. Wellman, 96 Cal. 400, 31 Pac. Rep. 259, the two causes of action which the plaintiff had united in his complaint were against the same defendant, and it was held that the statute gave him the right to object to their being so united. In the present case, however, the cause of action alleged against Orr is different from the cause of action alleged against these appellants; and, where the substantial rights of the parties have not been affected by a misjoinder of causes of action, a judgment that is rendered after a trial of the case upon its merits should not be reversed because the court overruled a demurrer for such misjoinder. Reynolds v. Lincoln, 71 Cal. 183, 9 Pac. Rep. 176, and 12 Pac. Rep. 449.

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The action of the court in excusing the Juror De Witt did not give to the defendants an available exception. Assuming that he was competent to be a juror in the case, it does not appear that the defendants were prejudiced by his exclusion. Their right to have the cause tried by an impartial jury did not give them the right to have it tried by any particular jurors. No exception was taken by them to any of the jurors who tried the cause, and it does not appear that they did not have an opportunity to exercise all the peremptory challenges allowed them.

The court did not err in refusing to instruct the jury that the writ of injunction was void by reason of its ambiguity, and that, therefore, the plaintiffs were not entitled to damages because of their obedience to it. They were bound to obey the spirit as well as the letter of the injunction, and were justified in acting so as not to render themselves liable for a contempt in disregarding it on the ground that it was ambiguous. It does not lie in the mouth of one who has secured an injunction which is ambiguous in its terms to object to its obedience on the part of the defendants, or to their claim for recompense for the damage they have sustained thereby.

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