ment recovered by him against the sureties for the sum of $13,108.32. This judgment was on the 3d of March, 1883, assigned by Nunan to the defendants McAllister and Bergin, for a sum of money due them by him, for services rendered him as attorneys and counselors at law. It appears that a portion of the moneys for which Berry defaulted was for commissions and fees collected by him for his principal, and which it was the duty of Nunan as sheriff to pay into the treasury of the city and county above named.

McAllister and Bergin notified Adams and Platshek of the assignment by Nunan of the above-mentioned judgment to them, and filed it with the papers in the action of Nunan against Adams and Platshek.

The plaintiff herein, on the 21st of July, 1881, commenced an action on his official bonds against Nunan and the sureties thereon, in the superior court of the city and county of San Francisco, to recover a portion of the commissions and fees above mentioned; and on the 9th of February, 1885, commenced another action on his official bonds against Nunan and the sureties thereon, to recover another portion of the commissions and fees above mentioned.

On the 9th of February, 1885, the plaintiff caused writs of attachment to be issued in the actions just mentioned, which were by Peter Hopkins, sheriff of the city and county aforesaid, duly served on Adams and Platshek, the judgment debtors above mentioned, with a notice that the moneys in their hands belonging to Nunan, and debts due by them to the same, were attached in pursuance of the writs so served. Adams and Platshek refused to pay the sheriff the moneys due upon the said judgment, and informed him of the notice to them of the assignment of the judgment to McAllister and Bergin.

McAllister and Bergin on the eleventh day of February caused a writ of execution to be duly issued on the

judgment to them, and is about to collect the moneys due on the judgment.

Plaintiff asks for an injunction to restrain the collection of the money due on this judgment, and that Adams and Platshek be required to pay it into court.

The court refused the injunction, and rendered judgment in favor of defendants.

McAllister and Bergin were the assignees of the judg ment against Adams and Platshek prior to the issuance and levy of the writs of attachment sued out by the plaintiff.

The bond on which suit was brought by Nunan against the sureties of Berry was the property of Nunan and the recovery belonged to him. He could use it to pay his creditor. In the absence of any intent to hinder, delay, or defraud the plaintiff herein, by Nunan and his assignees, the assignment was good against the city and county. We find no fraud either charged or found in this case. The court finds that the assignment to McAllister and Bergin was made in good faith and for a valuable consideration, and the finding is sustained by the evidence.

There was no privity between Berry and the plaintiff herein which would give the plaintiff any property in the bond executed by Berry and his sureties to Nunan to indemnify him against Berry's defaults, or any interest in the moneys recovered on the judgment. There was no relation existing between Nunan and the plaintiff which would subrogate plaintiff to the rights of Nunan in the bond given him by Berry or in the recovery on it. The plaintiff was protected against the defaults of Nunan by his official bonds, on which, if aggrieved, it had its remedy. We do not see that plaintiff occupies a position different from that of any creditor. This is a case of a contest between two creditors, in which that one prior in point of time is superior in right, and McAllister and Bergin hold the vantage-ground of priority in time and superiority in right.

In

The argument for plaintiff proceeds on the ground that Adams and Platshek hold the very moneys collected by Nunan through Berry for the city and county. this there is a mistake. These moneys were appropriated by Berry. Damages arising out of this appropriation by Berry were recovered of his sureties as indemnity for the moneys so appropriated.

The principle on which this case is decided is illustrated in the case of Cunningham v. Commonwealth F. & M. Ins. Co., 1 Bosw. 152, and Herckenrath v. Mutual Ins. Co., 3 Barb. Ch. 63. The contract on which Nunan recovered is distinct and different from that which he made with the city and county, as evidenced by his official bonds.

We find no error in the case, and the judgment is affirmed.

MCFARLAND, J., and SHARPSTEIN, J., concurred.

[No. 12403. In Bank.-May 22, 1888.]

PERRY D. LEWIS, A MINOR, BY PERRY D. COVER, HIS GUARDIAN AD LITEM, RESPONDENT, v. RIVERSIDE WATER COMPANY, Appellant.

NEGLIGENCE OVERTURN OF WAGON-INSTRUCTION.-The action was brought to recover damages for personal injuries caused by being thrown from a wagon through the negligence of the defendant. The evidence showed that the plaintiff sprang from the wagon while it was overturning. The court instructed the jury in effect that if the plaintiff. without negligence, was thrown from the wagon by reason of the negligent act of the defendant, he was entitled to recover. There was no evidence that the act of the plaintiff, in springing from the wagon, was unnecessary, or contrary to what a person of ordinary prudence would have done under the circumstances. Held, that the instruction was proper.

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

The action was brought to recover damages for personal injuries to the plaintiff, alleged to have been caused through the negligence of the defendant, in allowing a water ditch owned by it to be and remain in a dangerous condition at a place where it crossed a highway. The complaint alleged that the plaintiff, while driving in a wagon along the highway in the night-time, by reason of the defendant's negligence, accidentally ran off the bridge over the ditch, and was thrown from the wagon, thereby suffering the injury complained of. The defendant denied its negligence, and set up contributory negligence on the part of the plaintiff in jumping from the wagon when the accident happened. The case was tried before a jury, who returned a verdict for the plaintiff, upon which judgment was entered. From this judgment, and an order refusing it a new trial, the defendant appealed. The further facts are stated in the opinion of the court.

Curtis & Otis, for Appellant.

H. C. Rolfe, for Respondent.

MCKINSTRY, J.-There was ample evidence to justify a finding that the plaintiff was not guilty of contributory negligence.

Appellant asserts error, in that the court instructed the jury that if plaintiff without negligence drove off the bridge, "and was thereby thrown from the wagon and bruised or wounded," the defendant was liable. The point of the objection is, that the instruction, abstractly correct, was misleading, because there was no evidence that plaintiff was thrown from the wagon.

The witness Kleinfelter testified that the plaintiff was thrown from the wagon. True, the plaintiff testified, "I made a spring when the wagon went down." But the impelling force of the overturn did not necessarily deprive the plaintiff of all voluntary action, even while the

If there had been evidence

overturn was in progress. that the wagon was not overturned, or that he leaped from it unnecessarily, when a person of ordinary prudence would not have leaped, and that he would not have been injured had he retained his seat, different questions might have been presented. (Lawrence v. Green, 70 Cal. 417.)

But here both the complaint and the answer allege that the plaintiff was thrown from the wagon, and if the matter had been in dispute, as there was evidence of the fact that he was thrown, the instruction was as favorable as defendant was entitled to have, accompanied, at it was, by full instructions upon the subject of contributory negligence.

Judgment and order affirmed.

SEARLS, C. J., PATERSON, J., MCFARLAND, J., and SHARPSTEIN, J., concurred.

[No. 11208. Department One.-May 23, 1888.] ELLEN A. DODGE, EXECUTRIX ETC. OF J. W. DODGE, DECEASED, RESPONDENT, v. ABRAM YATES, APPEL

LANT.

PUBLIC LANDS-PRIOR POSSESSION-RIGHT OF POSSESSION-INCLOSURE -INDICIA OF OWNERSHIP.-In an action of ejectment for public lands, in which the plaintiff bases his right of recovery upon prior possession, the question is for the jury to determine whether or not the artificial barriers erected by the plaintiff, and his acts of dominion, were sufficient to notify the public that the land was appropriated, and to impart to the claim of appropriation the characteristic notoriety and indicia of ownership.

ID. GRANTEE OF PRIOR POSSESSOR-CONSTRUCTIVE POSSESSION.-SUBSEQUENT INTRUDER INTO POSSESSION.-The grantee from an actual prior possessor of a tract of public land, the whole of which has been inclosed with a substantial fence, and on which valuable improvements have been erected, by entering into the actual possession of a portion of the tract, acquires a constructive possession of the whole as against a subsequent intruder.