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tax collector, has this day the amounts as given below to be paid into the county treasury.” The auditor “handed that certificate to Morgan personally, and he took it away with him.” And the auditor thereupon credited the tax collector with the amount as paid, and charged the treasurer with it. This certificate was afterwards found in the treasury. It is not necessary to consider what would have been the result if the defendants had offered evidence showing that the misappropriation had in fact occurred before Morgan went to the auditor, and that his subsequent proceedings were a sham. No such evidence was offered, and, as above stated, the presumptions are the other way. These presumptions have for a basis the admissions of the defendant Morgan. He accepted, without any question, the certificate of the auditor, which contained an express statement that he then had in his hands, o be at once paid into the treasury, the amount in question; and he acted upon this statement by depositing it in the treasury. This conduct certainly amounts to an admission that the statement was true. This admission was evidence against the other defendants. For “where the question in dispute between the parties is the obligation or duty of a third person, whatever would be evidence for or against such person is prima facie evidence between the parties.” (Code Civ. Proc., sec. 1851.) And in view of the requirement of the statute that the auditor’s certificate shall accompany the payment into the treasury, the fact that the certificate was found in the treasury gives rise to an inference that the payment accompanied the certifiCate. We perceive no error in the record, and we therefore
advise that the judgment and order appealed from be affirmed.
BELCHER, C. C., and Foote, C., concurred.
The Court.—For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.
Hearing in Bank denied.
[No. 12319. Department Two.—April 28, 1888.) W. D. WRISTEN, REspondent, v. W. C. CURTISS,
Joint DEBTORs—RELEASE OF ONE—PROMIssoRY NOTE.-Under section 1543 of the Civil Code, the release of one of several persons jointly liable on a promissory note, who are not mere guarantors, does not release the other co-obligors.
APPEAL from a judgment of the Superior Court of Yolo County, and from an order refusing a new trial.
The facts are stated in the opinion of the court.
SHARPstEIN, J.-On the 24th of January, 1879, W. C. Harris, W. R. Forman, and the plaintiff executed and delivered to the defendant their two certain promissory notes of that date, each of which notes was joint and several in form, for the sum of two thousand dollars each, payable one year after date, with interest at the rate of one per cent per month from date until paid, payable monthly or compounded.
Thereafter the defendant commenced an action against said Harris, Forman, and plaintiff herein, to recover the amount due on said notes. The case was tried, and by the court taken under advisement, and while the court had the same under advisement the defendant herein received of said Forman the sum of $2,200 and executed and delivered to him a release in writing, of which the court and plaintiff herein were ignorant; and about two weeks thereafter the court rendered its decision and judgment in favor of defendant herein, and against said Harris, Forman, and the plaintiff herein, for the sum of $6,223.41, together with the costs, being the full amount sued for in said action. Thereafter an execution was issued upon said judgment for the amount thereof, less said sum of two thousand two hundred dollars, and certain real and personal property of the plaintiff herein were levied upon and advertised for sale under and by virtue of said execution. For the purpose of preventing the sale of said property and obtaining its release from said levy, plaintiff paid to the sheriff making the levy the sum of $4,315.99, the full amount due upon said execution, with all costs, which was paid to the defendant herein. The plaintiff recovered judgment against the defendant herein for the amount so paid in satisfaction of said execution, and from that judgment, and from the order denying defendant's motion for a new trial, this appeal is prosecuted. - The main question presented here is, whether the release of Forman relinquished the obligation of plaintiff. The code provides that “a release of one of two or more joint debtors does not extinguish the obligation of any of the others unless they are mere guarantors; nor does it affect their right to contribution from him.” (Civ. Code, sec. 1543.) That the plaintiff, Harris, and Forman were, upon the face of the notes which they executed to the defendant, joint debtors, is too clear to admit of doubt, and unless the plaintiff was a mere guarantor, his obligation was not extinguished by the release of Forman. But the court, by request of plaintiff, instructed the jury that “a release of one of two or more sureties without the consent of the other co-sureties is a release of all the sureties.” This is clearly contrary to the provision of the code relating to the same subject, and “the code establishes the law of this state respecting the subjects to which it relates.” The instruction being clearly erroneous, the judgment and order must be reversed. Judgment and order reversed.
THoRNTON, J., and McFARLAND, J., concurred.
Hearing in Bank denied.
[No. 12093. In Bank.-April 28, 1888.] AUGUST HEILBRON ET AL., RESPONDENT, v. CENTERVII.LE AND KINGSBURG IRRIGATION DITCH COMPANY, APPELLANT.
APPEAL FROM JUDGMENT—TIME For TAKING—DISMIssal.—An appeal from a judgment must be taken within one year after its entry; if taken subsequently, the appeal will be dismissed.
ID.—RULING ON DEMURRER—How REVIEWED.—Alleged error in overruling a demurrer to the complaint can be reviewed only on an appeal from the judgment, and not on an appeal from an order denying a new trial.
ID.—FINDING—IN SUFFICIENCY of Evidence—SPECIFICATION of PARTICULARS.–A finding against the issue raised by a plea of the statute of limitations will not be reviewed on appeal, on the ground that it is not justified by the evidence, when the statement on motion for a new trial fails to contain a specification of the particulars in which the evidence is alleged to be insufficient. A general specification that the court erred in finding as it did, and in not finding contrary thereto, is insufficient to present the question.
APPEAL from a judgment of the Superior Court of Tulare County, and from an order refusing a new trial.
The facts are stated in the opinion.
BELCHER, C. C.—The plaintiffs commenced this action to obtain an injunction restraining the defendant from diverting the waters of Kings River, and to recover damages for past diversions. The defendant demurred to the complaint, and its demurrer was overruled. It then answered, and among other things, set up the statute of limitations. The case was tried by the court without a jury, and the findings and judgment were in favor of the plaintiffs. The defendant moved for a new trial, and has appealed from the judgment and order denying its motion. The judgment was entered on the twelfth day of September, 1885, and the appeal was taken on the first day of March, 1887. As more than a year elapsed between the entry and the appeal, the appeal from the judgment cannot be considered, and must be dismissed. It is claimed for the appellant that the demurrer to the complaint should have been sustained. The point is not well taken. The ruling on a demurrer is a matter to be reviewed on an appeal from the judgment, and not on an appeal from an order denying a new trial. Beside, on an appeal from an order refusing to grant a new trial, only such errors can be considered as are specified in the statement, and this alleged error is not specified or referred to in the statement presented here. (Code Civ. Proc., sec. 659, subd. 3.) It is further claimed that the action was barred by the statute of limitations, and that the findings of the court to the contrary were not justified by the evidence. This point cannot be maintained. At the conclusion of the evidence and rulings set out in the statement on motion for a new trial, the statement proceeds as follows: “And the defendant assigns and specifies the following as errors occurring at the trial”; and then follows a statement of twenty-one instances in which it is alleged the court erred; and among them are these:— “The court erred in finding in its findings of facts