Canal Company", for which water they pay three-fourth, and Lessors one-fourth the cost. All grain and crops to be removed from the premises by Lessee on or before September lot each year, Lessors to pay taxes on the land and im. prvoments, and Logsee on his stock and the growing crops. The water bill, and advances made by Lessors, with interest at one per cent. per month, to be paid in gold coin, with a lien upon crops of Lcssee, and which crops shall remain in possession of Lessors till paid, and if not paid on or before August 1st, Losgors may sell same, with or without notice, for enough to pay such amounts due.

These leases were not acknowledged or recorded. Under these leases, the said lessees entered, raised crops of wheat and barley, and harvested, and on July 22d, 1875, Pool had delivered the one-fourth part of his wheat as rent to Miller & Lux, and left his own share in the field.

McNeil's crop was mostly cut, but not threshed, -i. e. two stacks of wheat and two of barley. Pool this day executed to Messrs. Wentworth & Oesborn, the plaintiffs, a bill of sale for over 50,000 pounds (400 sacks), of wheat in pay. ment for $750 on a promisory note for $900. He orally delivered the sacks of grain to Orsborn, who marked them “W. & 0." and placed in charge of McNeil. At the same time McNeil was indebted also to Wentworth & Org. born $1,000, for which he gave bill of sale of the two stacks of wheat and two of barley, orally delivering them to Orsborn, who placed them in charge of one Fain.

At this time, Pool was indebted to Miller & Lux for advances, over $2,000 ; and McNeil was so indebted over $2,500. On July 27th, Pool settled accounts with Miller & Lux, and gave them a bill of sale for 1020 sacks of wheat, and certain farming implements, for amount of $2,416.76. On August 4th, defendants learned from Pool of his sale of the 400 sacks of wheat to plaintiffs, and they at once took all the wheat to their warehouse, under protest from McNeil, who was still in charge for Wentworth & Orsborn. Before defendants took the stacks of grain from the McNeil field, they obtained from him a bill of sale of all his interest in them,--this bill of sale being subsequent to the one given to Wentworth & Orsborn by him. The value of the wheat on the Pool tract proved to be $696 : the wheat and barley on the McNeil place $1,050. Case was tried August 10th, 1876, jury waived, and judgement for plaintiffs for $1,662.63 and costs, $88.20. The sum of this judgement made up as fol. lows: 1st. -For the 400 sacks of wheat from the Pool tract, $696 ; 2d. For the wheat and barley from the McNeil tract, $1,050, less $49.84, cost of threshing, - $1,000.16. Then less the one-fourth for rent, $250.04, leaving a balance of $750.12; total, $1,446.12 with interest from September 1st, 1875. Judgment recorded February 27th, 1877; Motion for new trial, and denied, upon which bill of exceptions was filed May 14th, 1877, and appeal taken April 7th, 1877, from the judgment and the order denying a new trial.

N. C. Briggs and J. J. May attorneys for plaintiffs and respondents.
W. S. McPheeters attorney for defendants and appellants.

OPINION BY THE COURT. Whatever may be the character of the instrument recited in the findings and denominated a lease, it is clear that by the

terms of the contract, the grain after it was cut was under the control of defendants, and in so far as it was in possession of the lessees, so called, was in their possession simply as servants of defendants.

The purchasers from the lessees acquired no other or greater interest in the grain than that of the parties named as lessees and could assert no right to the possession as against the defendants.

Judgment and order reversed and cause remanded. Remittitur forthwith.

(No. 5968.]
[Filed April 29, 1878.)



for the overflow of water from defendant's ditch, running through his land, the court instructed the jury that defendant was responsible for injury resulting either directly or remotely from his negligence. Held, that this was erroneous as to injury resulting remotely,- -as recovery can only be had where negligence is the proximate cause. Also held, that another instruction given, tending to cure this, produced a contradiction which made it impossible to determine on which of them the jury

acted. Appeal from Thirteenth District Court, Tulare County,

J. B. CAMPBELL, Judge.

STATEMENT OF FACTS. The plaintiff Samuel B. Chidester, owning 280 acres of land, which he uses for agricultural and grazing purposes, and through which runs the large water ditch of the “Consolidated People's Ditch Co." brings action for damages for the overflow of the ditch, carrying away his fences, gullying his land, and de. positing coarse sand upon it, etc.--through neglect to repair the ditch. Claims damages in three separate counts, for three different years, between November 24th and July 15th each, --amounting to $1,174.99. Defendant claims he is prevented by plaintiff from going upon his land to do repairs, through threats and menaces, thus constituting contributory negligence;-that it has run through plaintiff's land for more than ten years, and that cause of action is barred by sec. 318 C. C. P.

Tried by jury on January 23, 1877, and verdict for plaintiff for $600, and costs $337.50. Defendant appeals from the judgment, January 7, 1878, on a bill of exceptions for review,-urging that the Court gave no charge to the jury-only instructions, at the request of the contestants, which were contradictory, -hence ground for a reverse of judgment.

W. W. Cross, and Atwell & Bradley, attorneys for plaintiff and respondent. Brown & Daggett, attorneys for defendant and appellant.

OPINION BY THE COURT. By the fourth instruction given at the request of the plaintiff, the Court instructed the jury that for any injury to the lands of the plaintiff, caused by the overflow of the waters en. tering the defendant's ditch, "resulting either directly or remotely from the negligence of the defendant in not keeping the same in good repair, or in the manner of its use while under defendant's exclusive control, defendant is responsible for such damages as he has sustained by reason thereof."

This instruction is erroneous, in so far as it declares the defendant to be responsible for damages resulting "remotely" from the defendant's negligence. The law is well settled that in actions for negligence the damages to be recovered are only those of which the negligent act is the proximate cause. The maxim applicable to such actions is "causa proxima, non remota spectatur," Shearman & Redfield on Negligence, secs. 9-595, and cases there cited. See also Civil Code, sec. 3333. If it be claimed that the error in this instruction was cured by the first instruction given at the request of the defendant, the answer is that the two instructions are in this particular contradictory, and it is impossible to determine on which of them the jury acted. People vs. Campbell, 30 Cal., 312; Brown vs. McAllister, 38 Cal., 573; People vs. Anderson, 44 Cal., 65.

Judgment reversed and cause remanded for a new trial. Remittitur forthwith.

[No. 5462.)
[Filed April 22, 1878.)

Appeal from Twelfth District Court, San Francisco,
This being the second appeal in the same cause.

DAINGERFIELD, Judge. FINDINGS-WAIVER.---The findings of fact not being filed, and it not appearing

in the bill of exceptions that they had not been waived,--the appellant could not avail himself of the error as a ground for a new trial.

STATEMENT OF FACTS. E. A. Lawrence, the defendant gave to D. P. Smith, plaintiff, a promissory note for $200, on January 30, 1858, payable one day after date, with interest at

two and a half per cent. per month;—and on February, 18, 1858, another note of same amount, on demand, with interest.

The payment of these notes was assumed by one Austin W. Hammitt in a written contract between him and Geo. E. Parmelee of New York City, ( by the said Lawrence as his attorney in fact), on April 15, 1858, together with the pay. ment of an additional note given to Lawrence of $378,--all as purchase money consideration for 129 acres of land, a part of the “Romero Rancho,” in Contra Costa County, and Hammitt to have a conveyance for the land soon as said payments be made, etc. Plaintiff agreed to forbear suing on said two notes, until the decision of the title of the “ Romero Rancho," then ponding in the United States Distrrct Court. On February 28, 1864, said title was declared invalid by the United States Supreme Court.

Hence, he now demands judgment for the amount of said two notes, $400, and interest, --April 25, 1867. Defendant denies the allegations of the plain. tiff, and avers that notwithstanding the“Romero Rancho "title is not perfected, yet, Hammitt is still in possession and occupation of the land, and has not yet abandoned the contract, and that his title was perfected by act of Congress of May 5, 1854, and also Act of July 23, 1866; and that he, Hammitt, has a patent for the land now pending; and further that Smith by written contract agreed to accept Hammitt (his brother in law) in place of Lawrence in the payment of the notes. Also claims this suit is barred by lapse of time--foury ears. --Case tried February 23, 1875 without jury-and judgment for plaintiff, for $2,446.25, and costs $565.55. Motion for new trial on ground of newly discovered evidence, etc. Motion granted on the ground of failure of the Judge to file findings, and that they had not been waived, upon which plaintiff appeals from the order, November 17, 1876.

E.B. and J. W. Mastick and Crockett, Whitney & Naphtaly, attorneys for defendant and appellant. E. A. Lawrence, in propria persona for defendant and respondent.

OPINION BY THE COURT. The court below granted the motion for a new trial, upon the assumption that it appeared in the settled statement that findings of fact had not been waived. In this it was mistaken The only allusion to that matter is found in the eleventh assignment of error, in which the fact of non-waiver is assumed as a basis for stating the alleged error therein set forth.

There is no statement in the body of the bill of exceptions that findings had not been waived, and the fact of such non-waiver is not otherwise, or in any manner, made to appear in the record.

There are no specifications of the particulars in which the evidence is insufficient, and there was no error of law committed at the trial, excepted to by the defendant, such as would entitle him to a new trial. Order reversed. Remittitur forthwith.

(No. 5232.]
[Filed April 29, 1878.]

Appeal from Third District Court, Alameda County.--

S. B: MCKEE, Judge. PRACTICE,--MOTION FOR NEW TRIAL,--NOTICE OF.---An acceptance by the

respondent, in the settled statement, that appellant has given notice of motion for new trial, includes intention that said notice is given in due time and form. Objection to said notice is also debarred by respondent's failing at the settlement of the statement, to allege want of proper no

tice, or to object to the settlement on that ground. MORTGAGE DEFICIENCY,_OFFICIAL ACTS.--The 'creation of a lien, or its

amount, on the general property of a judgment debtor, for a deficiency balance on a mortgage debt, does not depend on the action of the sheriff in the performance of his official duty. Neither the sheriff nor the clerk can adjudge any sum due from a defendant to a plaintiff. A mistake in calculation made by either officer may be brought to the atten.

tion of the court by the injured party. Jennett B. Frost, plaintiff, claining to be owner in fee simple of land lying in Oakland, by mesne conveyance from one Tinsley, through deed from Gideon Aug. hinbaugh, of October 15, ,1855; brings action in ejectment againtst defendant, Thcodore Meetz,-joined with E. B. Mastick,—who are in occupation. Default being entered against Mastick, Meetz, in answer, claims actual possession for more than five years, and ownership in fee, by written conveyance, and that action is now barred by section 318 and 319, of C. C. P. Produces in evi. dence the judgment roll of the court, showing that this land, ( with other lands,) was legally sold under execution against Aughinbaugh by the sheriff, in Janu. ary, 1856, to cover a deficiency of $18,859.70 on a former foreclosure of a mortgage:-- also another sale on foreclosure for $10,000, through both of which sales he derives title, and that the last named foreclosure was complete before the deed was given by Aughinbaugh to Tinsley, through which plaintiff derived title.

Cause tried November 8, 1875, without jury, and judgment for plaintiff, and costs $28.65. Defendant gave notice of motion for a new trial, on statement of case, and Bill of Exceptions, December 11, 1875. New trial denied, and appeal taken by defendant, on May 26, 1876. The decision now rendered is upon a rehearing. - The proceedings upon the executions and forclosures against Aughinbaugh, as introduced in evidence by defendant are understandingly shown in the opinion.

Jennett B. Prost, in pro. per. and Z. Montgomery, attorneys for plaintiff and respondent. H. H. Haight d. E. R. Taylor, attorneys for defendant and appellant.

OPINION BY THE COURT. The statement and bill of exceptions on motion for a new trial were settled by the Judge of the Court below on the 9th day of February, 1876, and on the 31st of March following the

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