Plaintiff brought this action to recover the same vicinity is ordinarily used for, and damages for the alleged wrongs above recited, for which it is naturally fitted. Any repairs and in the first count of his complaint he made necessary by such ordinary use must asked damages in the sum of $400, and in be made by the ditch-owner, and not by the the second in the sum of $600. Under land-owner, and the land-owner is not liable the instructions of the court, the jury found for any damages caused by such ordinary that the plaintiff was damaged by the ob- use." struction of his drainage in the sum of $150, and by the trespasses of defendant's cattle in the sum of $210, and for these aggregate sums judgment was entered. The defendant moved for a new trial, and has appealed from the judgment and order denying his motion.

The question then presented for decision on this branch of the case, conceding that plaintiff had acquired an irrevocable right to have his ditch maintained over defendant's land, is, to what extent does that right interfere with and limit defendant's right to use his land? Must defendant, if he would use his land for the pasturage of stock, fence in the ditch, or cover it over so that the stock cannot tread down its sides? And, if he so uses it, is the burden cast upon him to keep the ditch clear and unobstructed, so that water will continuously flow through it? It must be admitted that the use of land for pasturage is a common and legitimate use of

did not exercise ordinary care over his stock. Plaintiff was a witness for himself, and testified: "I suppose that Garvey pastures the cattle in that field as people ordinarily pasture their cattle. He has a portion of the field fenced to the south-west, and I suppose he turns his cattle in there and lets them stay there, confined by the fence. I can't say that he has a herder; he has a man there to look after them; I don't know that he herds them. In order to keep the cattle from getting into that ditch he would have to protect it by fence, or build bridges across the ditch where those cattle go from one side to the other. Building bridges would prevent them from tramping the ditch to a great extent. The cattle feed along and up and down the ditch and cave it in. The soil is very soft, but the most serious damage is done in places where they cross. He would have to fence the ditch, or make a blind ditch, the same as I do, (cover it over,) in order to pro

1. The theory of plaintiff, developed at the trial, in reference to his first cause of action, was that he had acquired a prescriptive right to the use of the ditch leading from his lower line to the arroyo, and that defendant had no right to make any use of his land which would cause an obstruction of the ditch, and that if he did so he must keep it cleared out, or be liable for any damages caused by the ob-it, and there is no pretense that defendant struction. On the other hand, the theory of defendant was that plaintiff had acquired no prescriptive right to the use of the ditch, and that, if he had, defendant had a right to use his land for any legitimate and ordinary purpose, and if, while so using it, the ditch was injured or obstructed the burden was upon the plaintiff to remove the obstructions and keep it in repair. In accordance with plaintiff's theory, and at his request, the court instructed the jury as follows: "If you believe from the evidence that there was no natural channel over the lands of the defendant, or the lands occupied by him, at the place alleged in the complaint, except on the southwesterly side of the lower Garvey tract, but believe from the evidence that there was a natural depression there through which the plaintiff constructed a ditch for the purpose of carrying off the water from his own land, and did carry off said water through the same into a natural channel on defendant's land, and has used the same for such pur-tect it from the cattle." Now, if the plainpose openly, peaceably, continuously, noto- tiff's theory be correct, the defendant cannot riously, uninterruptedly, and adversely to the use his land as a pasture, though that may defendant and his predecessors for more than be the best and perhaps only profitable use five years before the commencement of this he can make of it, unless he employs men to action, and before the obstructions alleged in patrol the ditch and keep the cattle away from said complaint, you are instructed that the it, or goes to the expense of fencing it in or plaintiff thereby acquired a right to the use covering it with bridges. It does not seem of such ditch, and the defendant is liable for to us that the plaintiff's easement on the any damages sustained by the plaintiff for land can impose any such burden as that on the obstruction by defendant, or stock under the defendant. The general rule is that any his control, of said water-way." And the man may use his own land in his own way, court refused to give to the jury the follow-provided he does not use it negligently, so ing instruction asked by defendant: "Even as to injure his neighbor; and the rule is, where one has, by adverse use, acquired aalso, that, where one man has an easement right to use a ditch over the land of another over the land of another, the duty of keeping to carry water off of his own land he is bound to keep such ditch in repair himself. He has no right to call upon the land-owner to make any repairs unless such repairs are made necessary through the negligence of the landIt is not negligence for the landowner to use his land in the same manner and for the same purposes as similar land in

owner.

the easement in repair rests upon its owner, and when repairs are necessary he may enter on the servient tenement to make them. God. Easem. 285; Gale & W. Easem. 215; Prescott v. Williams, 5 Metc. 435. It does not appear that plaintiff was ever denied the privilege of making any repairs upon his ditch. and it would be going to an extreme

and unwarranted length, as it seems to us, | ment for defendant. Plaintiff appeals from to hold that in a case like this defendant is the judgment. made liable. In our opinion the court erred in giving the instruction above quoted for plaintiff and in refusing to give, without modification, that asked by defendant.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and or-ing had been filed months before the objecder are reversed, and the cause remanded for a new trial, unless the plaintiff shall, within 30 days after the going down of the remittitur, file in the court below a release of $150, and his costs in that court, and if he does file such release that the judgment and order stand affirmed.

Where, in an action for slander, no undertaking for costs is filed before the issuance of the summons, as required by act Cal. March 23, 1872, but UPPER SAN JOAQUIN CANAL CO. ROACH. a few days afterwards such an undertaking is filed, it is error to dismiss the complaint upon an objection being made, months after the filing of the undertaking, that it was not filed in time.

York to sell some of its stock. He sold some | yesterday, and passed resolution that no prostock to the defendant's intestate, and took ceedings should be taken against you on the note sued on in payment. It is claimed your note. All trouble originated from Terthat at the time of the sale the president rep-rin refusing to betray you. Party leaves resented to the vendee that the canal could this week to look at Alta, Holland, and Pool be completed for $50,000, when, as a matter mines. [Signed] B. B. MINOR.' The arof fact, more than $300,000 was required to gument is that the foregoing amounts to an complete it. The evidence shows that some agreement not to sue, and that an agreement sort of representation was made to the ven- not to sue operates as a release; but, assumdee. The president (whose testimony is re-ing in favor of the defendant that the resolied on by the defendant to make out his lution is not the mere expression of the comcase) so states. But he says in one place: pany's intention, but contains words of "I expressed to him that in my opinion it promise or obligation, it cannot operate as would not cost over $50,000. I did not an agreement not to sue, because there was bind myself that it would not, and it was no consideration for it. The want of conwith the understanding that it would not sideration is not obviated by section 1541 of cost $50,000 that he went into the enter the Civil Code. That section provides that prise." In another place he says: "We said "an obligation is extinguished by a release it would cost probably less than $50,000." therefrom given to the debtor by the credThe representation was made in perfect good itor, upon a new consideration, or in writfaith. Everybody supposed at that time ing, with or without new consideration." that the canal could be completed for the We think that this provision applies to exsum mentioned. The increased cost result- press releases, given with intent to extined from unforeseen difficulties, arising from guish the obligation, and not to things which the nature of the soil. The position is that might have that result in a roundabout way. there was a misrepresentation as to a mate- In dispensing with a consideration, the legrial matter. But if it be assumed in favor islature dispensed with the substance of the of the defendant, for the purposes of this transaction, and we do not think it ought to opinion only, that there was such a misrep- be assumed, in the absence of language to resentation as entitled the vendee to some that effect, that the intention was to dispense relief, such relief could consist only in dam- with both form and substance. The resoluages for the misrepresentation, or in the re- tion, therefore, cannot operate as a release scission of the contract. No question as to within the meaning of the section, because such damages arises in the case, because no it does not purport to be a release, and, as counter-claim was set up. We do not in- above stated, it cannot operate as a covenant tend by this to say that the relief could be not to sue, because there was no considerahad by way of counter-claim. It is sufficient tion. The other matters do not require spefor present purposes that nothing of the kind cial notice. We therefore advise that the was attempted. And the vendee did not judgment and order denying a new trial be elect to rescind. He kept the stock after be-affirined. ing informed of the true state of the case, and after it was sold for assessments his adBELCHER, C. C.; FOOTE, C. ministrator brought an action to recover its value from the company, which action was PER CURIAM. For the reasons given in pending at the time of the trial herein. It the foregoing opinion, the judgment and oris perfectly clear that a misrepresentation der denying a new trial are affirmed. does not enable the vendee to keep the thing sold, and avoid paying what he agreed to pay for it. If he wishes to avoid paying, he must rescind the contract, and return the

property (if it have any value) within a reasonable time after becoming aware of the truth. Gifford v. Carvill, 29 Cal. 589; Fitz v. Bynum, 55 Cal. 459. It is contended, in the next place, that the plaintiff gave to the defendant a release of the obligation. What is claimed to constitute a release consists in the following: At a meeting of the plaintiff's board of directors the following resolution was passed, viz.: "Resolved, that in the opinion of this board the note of William Schley is worthless, and that no proceeding to collect the same by law shall be commenced or authorized by this company against the said Schley, and that he be notified of this action by the board." Upon the passage of this resolution, the secretary of the company sent the following telegram to Schley: "We got possession of the board v.21p.no.4-20

We concur:

(78 Cal. 573)

WASHBURN . HUNTINGTON et al. (No. 12,666.)

(Supreme Court of California. April 17, 1889.)

INSOLVENCY-RIGHTS OF ASSIGNEE.

1. The California insolvent act of 1880, § 55, which provides that if a transfer of property by a debtor is not made in the usual course of business it shall be prima facie evidence of fraud, means fraud on the provisions of the insolvent act; and where a debtor transfers property out of the usual and ordinary course of business it is prima facie evidence that the transferee had reasonable cause to believe that the transfer was made by the debtor with a view to prevent his property from coming to his assignee in insolvency, and to prevent it from being distributed ratably among his

creditors.

Cal. § 667, providing that in an action brought to recover the possession of personal property, judg ment for the plaintiff may be for the possession of the property, or the value thereof, in case a delivery cannot be had, an omission to find whether or not plaintiff is entitled to recover the property sued for, and a judgment simply awarding the

2. In an action brought under Code Civil Proc.

plaintiff the value of the property, constitute cause above, is that stated in the title of the Civil for reversal.

In bank. Appeal from superior court, Sacramento county; JOHN W. ARMSTRONG, Judge.

Albert M. Johnson, for appellants. W. J. Herrin, for respondent.

Code in regard to assignments for the benefit of creditors, (Civil Code, § 3450,) and we can see no reason why this is not correct under the insolvent act of 1880. That the defendants were aware that Jones' financial condition was precarious is shown by their application for the transfer made to them as THORNTON, J. This action is brought by security. If the defendants had pursued the the plaintiff, as assignee in insolvency of one inquiry, they would have found a state of Jones, to recover certain book-accounts things existing such as was disclosed by transferred by Jones to the defendants on Jones' testimony, in which a statement of the 27th of July, 1886. The transfer was his assets and liabilities appear, and this made by orders drawn by Jones on his debt- statement, in our judgment, shows that ors in favor of defendants. Within less Jones was, on the day when he made the than one month after the transfer, viz., on transfer, insolvent. We entertain no doubt the 23d day of August, 1886, Jones filed his that the finding that when the defendants petition in insolvency, and on the same day accepted the transfer of the accounts from was declared an insolvent. The ground on Jones they had reasonable cause to believe which a recovery in the action was urged is that he was insolvent is sustained by the evthat the defendants, when they received and idence. We think that the court correctly accepted the transfer above mentioned, had found that the assignment to defendants was reasonable cause to believe that the transfer-out of the usual and ordinary course of busrer was insolvent, and that such transfer iness of the debtor, Jones, and there is no eviwas made with a view to prevent the prop-dence to the contrary. By the last clause of erty of the transferrer from coming to his section 55 of the insolvent act of 1880, (conassignee in insolvency, or from being dis- stituting article 8, and relating to fraudutributed ratably among the creditors of the lent preferences and transfers,) in reference transferrer, and to defeat the object of, and to such assignment as is spoken of above, hinder, impede, and delay the operation and it is provided that if such assignment “is to evade the provisions of, the act of insolv- not made in the usual course of business of ency of April 18, 1880, by preventing the the debtor, that fact shall be prima facie property of the assignor from being subject-evidence of fraud.” The same clause will ed to the payment of the debts of the trans- be found in section 35 of the late United ferrer other than the debt due to the defendants.

States bankrupt act. And fraud mentioned in this clause has been construed to mean fraud on the provisions of the bankrupt act. See the following cases in which it was so

In re Meyer, 2 N. B. R. 422; In re Hunt, Id. 542; In re Dean, Id. 91; Collins v. Bell, 3 N B. R. 587; Martin v. Toof, 4 N. B. R. 492, 493. And we think this construction should be adopted here, that the fraud mentioned in the clause of the fiftyfifth section above cited means fraud on the provisions of the insolvent act. In this view, the transfer to the defendants being out of the usual and ordinary course of business of the debtor, it is prima facie evidence that the defendants had reasonable cause to believe when such assignment was made and accepted by them that it was made with a view to prevent the debtor's property assigned to defendants from coming to his assignee in insolvency, and to prevent the property of the debtor from being distributed ratably among his creditors. There being no evidence to rebut the prima facie case of fraud so established, it must be held to be conclusively established that the assignment to defendants was made with the view above stated. See Ohleyer v Bunce, 65 Cal. 544, 4 Pac. Rep. 549. The action was brought to recover possession of the orders mentioned

It is urged that the evidence is insufficient to show that Jones was insolvent on the 27th of July, 1886. We do not think this conten-held: tion maintainable. The evidence of the witnesses of Jones, Sheets and Hinkle, all tended to show that Jones was then insolvent, and justify the court in so finding. We will remark here in relation to the evidence of Hinkle, which attorneys for defendants (appellants here) contend was improperly admitted in the court below, that in our view it was admissible as relevant to the issue of Jones' insolvency on the 27th of July, 1886. It is further contended that the evidence is insufficient to justify the finding that the defendants had reasonable cause to believe Jones insolvent on the 27th of July, 1886, or that they had any cause to believe that the assignment was made with a view to prevent the property of Jones from coming into the hands of the plaintiff as assignee, or to evade any of the provisions of the insolvent act, or to impede its provisions. We think that the facts deposed to by Jones and Sheets were sufficient to put defendants on inquiry as to Jones' solvency, which inquiry, if prosecuted by defendants, would have disclosed to them that Jones was, when he made the transfer above mentioned, unable to pay his debts above, or the value thereof, stated to be $383, from his own means as they became due. When this is the condition of a debtor, he is, within the meaning of the act of 1880, insolvent. The definition of insolvency, given

in case delivery of the orders could not be had. The court below held as a conclusion of law from the facts found that the piaintiff was entitled to judgment for $250, and

J. M. Lesser and Davis Louderback, for petitioner. Jas. D. Page, Dist. Atty., W. A. Nygh, and J. H. Durst, for defendant.

ordered that judgment be entered accord- J. C. Green was indicted in the superior ingly, which was done; but the court did not court of the city and county of San Francisco find as a conclusion of law that he was enti- for conspiring with others to extort money. tled to a recovery of the orders sued for. It He applies for a writ of prohibition to reis provided by section 667 of the Code of strain the court from proceeding therein, alCivil Procedure that in an action to recover leging that it had no jurisdiction of the of the possession of personal property judgment fense. for the plaintiff may be for the possession, or the value thereof in case a delivery cannot be had, and damages for the detention. Thus a clear and statutory rule is laid down as to the judgment which shall be entered, and we cannot perceive that a judgment can be entered for the alternative value unless it is found that the plaintiff is entitled to recover the property sued for. This omission to find whether or not the plaintiff was entitled to recover the orders sued for was error. The judgment as entered is also erroneous. If the plaintiff is not entitled to recover the property sued for, we cannot see that he is entitled to a judgment. If he is entitled to recover such property, the judgment must be as prescribed in section 667, Code Civil Proc. Berson v. Nunan, 63 Cal. 552. The judgment is therefore reversed, and the cause remanded, with direction to find on the facts found whether or not, as a conclusion of law, the plaintiff is entitled to recover the orders sued for, and to enter judgment in accordance with such finding; that is to say, if it is determined on the facts found that plaintiff is entitled to recover the orders (the value of which have been found to be $150) that judgment be entered as provided in section 667, Code Civil Proc. If it is determined that plaintiff is not entitled to recover the orders, judgment should be entered for defendants. Ordered accordingly.

We concur: BEATTY, C. J.; MCFARLAND, J.; SHARPSTEIN, J.; WORKS, J.

(78 Cal. 556)

GREEN v. SUPERIOR COURT OF SAN FRAN-
CISCO. (No. 20,514.)

(Supreme Court of California. April 16, 1889.)
STATE COURTS-JURISDICTION..

1. Const. Cal. art. 6, §§ 1, 5, 13, vests the judicial power in superior and other enumerated courts, and in such inferior courts as the legislature may establish in any incorporated city or town, or city and county," and gives the superior courts jurisdiction of felonies, and of all "misdemeanors not otherwise provided for, "and further provides that the legislature may fix the jurisdiction of any inferior courts so established. St. 1871-72, p. 84, and cther statutes, create the police court of the city and county of San Francisco, and give it juris diction of all misdemeanors punishable by fine not exceeding $1,000, and imprisonment for one year, or both. Held, that the effect of these acts was to deprive the superior court of jurisdiction over the offense of conspiring to extort money, that being among the misdemeanors "otherwise provided for" by the acts.

2. It is immaterial whether such conspiracy is an offense known to the common law as an "in

famous crime," and hence punishable only by indictment or information, and that no such procedure is provided for in such inferior courts, as no such class of misdemeanors is recognized under the law of California.

Application for a writ of prohibition.

WORKS, J. This is an application for a writ of prohibition to prevent the superior court in and for the city and county of San Francisco from proceeding further in an action of the people against the petitioner, upon a charge of conspiracy. The ground upon which the jurisdiction of the superior court is contested is that conspiracy is punished by imprisonment not exceeding one year, or by fine not exceeding $1,000, or by both, and that jurisdiction in such cases is exclusive in the police court of said city and county. The judicial power of this state is vested in the senate, sitting as a court of impeachment, in a supreme court, superior courts, justices of the peace, and such inferior courts as the legislature may establish in any incorporated city or town, or city and county. Const. art. 6, § 1. The constitution provides that the superior courts shall have jurisdiction in all criminal cases amounting to felony, and cases of misdemeanor not otherwise provided for. Id. § 5. It is further provided that the legislature shall fix by law the jurisdiction of any infericr courts which may be established in pursuance of section 1 of this article, and shall fix by law the powers, duties, and responsibilities of the judges thereof. In pursuance of these constitutional provisions the legislature of the state has, by what is known as the "Consolidation Act," as amended in 1872, prescribed the jurisdiction of the police court of the city and county of San Francisco, and among other things it is provided that said court shall have jurisdiction of misdemeanors punishable by fine not exceeding $1,000, or by imprisonment not exceeding one year, or by both, which necessarily includes the offense charged in this case, and of which the superior court has assumed jurisdiction. The po nt made and relied upon in this application is that, under the provisions of the constitution, the legislature has the power to establish inferior courts, and to confer upon such courts jurisdiction in cases of misdemeanor, and that, when such jurisdiction is so provided for, the jurisdiction in that class of cases is taken away from the superior courts, for the reason that they become misdemeanors "otherwise provided for," within the meaning of the constitution.

Conspiracy is punishable by a fine of not exceeding $1,000, and imprisonment for one year, or by both, and jurisdiction in this class of cases is clearly conferred on the police judge's court. St. 1871-72, p. 84. And this statute is still in force under the present