[No. 11838. Department Two.-May 22, 1889.] DASHAWAY ASSOCIATION, APPELLANT, v. DANIEL ROGERS ET AL., RESPONDENTS.

VENDOR AND PURCHASER-RECOVERY BACK OF DEPOSIT-PRINCIPAL AND AGENT PLEADING-PARTIES.-When a vendor assumes to convey land of which he represents himself the owner, but of which he has no title, and receives a deposit of the purchase-money for the joint benefit of himself and another person for whom he acted as agent, and who received a share of the deposit, both are jointly liable as principals in an action to recover back the deposit, and it is immaterial that plaintiff did not know of the connection of the other person with the transaction at the time the contract was made. A complaint against such persons jointly to recover the money is not demurrable for misjoinder of causes of action or of parties defendant. ID. ASSUMPSIT-MONEY HAD AND RECEIVED PLEADING-COMMON COUNT. A common-law count for money had and received is proper in an action to recover a deposit of money wrongfully obtained from the plaintiff by the defendants, and which they wrongfully refused to pay the plaintiff upon demand.

APPEAL from a judgment of the Superior Court of the city and county of San Francisco.

The facts are stated in the opinion of the court.

Tilden & Tilden, for Appellants, cited Story on Agency, sec. 446; Thomas v. Moody, 57 Cal. 215-219; Kreutz v. Livingston, 15 Cal. 346; Stanwood v. Sage, 22 Cal. 516; Van Santvoord on Precedents, 420; Adams v. Holly, 12 How. Pr. 326; Reynolds v. Harris, 9 Cal. 338; 1 Story's Eq. Jur., sec. 760; Civ. Code, secs. 1431, 1659.

Daniel Rogers, for Respondent, cited Code Civ. Proc., sec. 1973, subd. 5; Civ. Code, sec. 1624, subd. 5; Stone v. Wood, 7 Cow. 453; 17 Am. Dec. 529; Haskell v. Cornish, 13 Cal. 45; Shaver v. Ocean Mining Co., 21 Cal. 45; Hall v. Crandall, 29 Cal. 571; 89 Am. Dec. 64.

MCFARLAND, J.-Each of the two defendants demurred separately to the complaint. Both demurrers were sus

tained, and judgment rendered for defendants. Plaintiff appeals from the judgment.

We think that the court erred in sustaining the demurrers. The facts alleged in the first count of the complaint are substantially these: The defendant R. C. Rogers represented to plaintiff that he (R. C.) was the owner of a certain piece of land. Plaintiff, relying on his representation, and believing that he was acting for himself alone, entered into a written contract with him, by which he agreed to sell said land to plaintiff for $11,500, and make a good title, etc., within two weeks. In pursuance of this contract plaintiff deposited with him $1,150, to be applied on said purchase price if he complied with the contract; and if not, to be returned and paid back to plaintiff. As a fact, however (so it is averred), said R. C. Rogers, in entering into said contract and securing said deposit of money, was acting for himself and for the other defendant, Daniel Rogers, on their joint behalf and for their joint benefit. R. C. was the agent of Daniel, and they were both joint principals in the transaction. R. C. received said $1,150 for the joint benefit of himself and said Daniel, and it was divided between them. Neither of them had any title to the land, and they were entirely unable to convey, and did not convey, a title thereto. Plaintiff demanded the $1,150 deposited as aforesaid from both the defendants, and they refused to pay the same, or any part thereof.

The case here is not confused by those subtleties by which the question whether a principal or agent should be sued is often embarrassed. The defendants were both principals. R. C. Rogers was himself a principal, and was also the hand by which the other principal, Daniel, acted. It makes no difference that plaintiff did not know of Daniel's connection with the transaction at the time the contract was made. In this respect the case cannot be distinguished from Thomas v. Moody, 57 Cal. 215. The money deposited by plaintiff was received

for the joint benefit of both defendants, and it is averred that they divided it between them; and that under the circumstances they can retain it as said in Thomas v. Moody "is a proposition which can be no more sustained in law than in morals." (See also Kreutz v. Livingston, 15 Cal. 345.) There was no misjoinder of causes of action or of parties defendant. There was only one cause of action, viz., money of plaintiff which defendants had, and which they wrongfully refused to pay; and defendants were jointly liable to pay said money.

2. The second cause of action stated in the complaint is in the form of a common-law count for money had and received, and we cannot see why it is in any way defective. (Stanwood v. Sage, 22 Cal. 517.)

Judgment reversed, with directions to the court below to overrule the demurrers to the complaint.

THORNTON, J., and SHARPSTEIN, J., concurred.

[No. 12966. In Isank.-May 22, 1889.]

NORTH PACIFIC COAST RAILROAD COMPANY, RESPONDENT, v. JACOB GARDNER, APPELLANT.

MANDAMUS-ENFORCEMENT OF EXECUTION-JUDGMENT RENDERED IN JUSTICE'S COURT.--A writ of mandate will lie to compel a sheriff to execute a writ of execution issued under a judgment rendered in a justice's court.

APPEAL from a judgment of the Superior Court of Marin County, and from an order refusing a new trial.

The proceeding was brought to compel the defendant, as sheriff of Marin County, to execute a writ of possession issued from a justice's court upon a judgment rendered therein in favor of the plaintiff for the restitution of certain premises described in the judgment and in the

writ. The defendant demurred to the petition, and his demurrer was overruled. He then answered, setting up as an excuse for his refusal to execute the writ that he was unable to locate the premises by the description therein contained. The court held that the description was sufficient, and by its judgment ordered the issuance of a peremptory writ of mandate commanding the defendant to forthwith execute the writ of possession, or any further writ that might be issued by the justice's court upon its judgment. From this judgment, and from an order refusing him a new trial, the defendant appeals.

Edward P. Cole, and J. B. Southard, for Appellant.

Mandamus is not the appropriate remedy in this case, as the plaintiff has a plain, speedy, and adequate remedy in the justice's court to compel the execution of the writ by proceeding against the sheriff for contempt. (Kimball v. Union Water Co., 44 Cal. 175; 13 Am. Rep. 157; Code Civ. Proc., secs. 33, 128, 177, 178; Leese v. Clark, 29 Cal. 666; McMann v. Superior Court, 74 Cal. 108; Fulton v. Hanna, 40 Cal. 280.)

F. William Reade, for Respondent.

The jurisdiction of the justice's court is special and limited, and does not include the power to punish for contempt a sheriff who refuses to perform his duty. (Weimmer v. Sutherland, 74 Cal. 343; Rutherford v. Holmes, 66 N. Y. 371; Code Civ. Proc., sec. 906; State v. McDuffie, 52 Ala. 4; Thompson v. Acres, 69 Ala. 178; In re Kerrigan, 33 N. J. L. 349; Rhinehart v. Lance, 43 N. J. L. 311; 39 Am. Rep. 592; Batchelder v. Moore, 42 Cal. 412; Galland v. Galland, 44 Cal. 475; 13 Am. Rep. 167.) Mandamus is the proper remedy in this case. (Freemont v. Crippen, 10 Cal. 215; Fogarty v. Sparks, 22 Cal. 143; Babcock v. Goodrich, 47 Cal. 508; Moore v. Muse, 47 Tex. 215.)

THORNTON, J.-We do not feel clear that a court of a justice of the peace can compel, on motion, a sheriff to execute a judgment rendered in such court, and punish him for contempt on his failure to obey its order. In such case, the party seeking the enforcement of his judg ment can apply to the superior court for a writ of mandate (on the refusal of the sheriff to execute the writ of execution) to compel him to execute it.

We find no error in the record.

Judgment and order affirmed.

SHARPSTEIN, J., WORKS, J., and MCFARLAND, J., con

curred.

Rehearing denied.

[No. 13061.

Department One.-May 23, 1889.]

THOMAS M. SPENCER, PETITIONER, V. F. W. LAWLER, JUDGE OF THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, RESPOndent.

DIVORCE-ALIMONY-CONTEMPT-DISCHARGE FROM IMPRISONMENTMANDAMUS-DISMISSAL--COSTS.--When the defendant in a divorce suit is adjudged guilty of contempt for refusal to pay alimony after an examination into his ability to pay the same, the judge of the court cannot be immediately required again to examine into the matter before the lapse of ten days, upon an application to discharge the prisoner under sections 1143 et seq. of the Code of Civil Procedure, and mandamus will not lie to compel the hearing of such application. If the judge responds to a petition for mandamus that he would have made another examination if the application had been renewed, at any time after the expiration of ten days and before the filing of the petition for mandamus, the petition will be dismissed at the costs of the petitioner.

APPLICATION for a writ of mandate to the judge of the Superior Court of the city and county of San Francisco.

The facts are stated in the opinion of the court.