While the original appeal (Carpy v. Dowdell, 115 Cal. 677) was pending in this court, defendants having given no stay bond, a portion of the personal property mortgaged was sold under foreclosure proceedings. The judgment upon that appeal was subsequently reversed and the cause remanded. for a second trial. Thereupon, defendants filed a supplemental answer, setting out that the notes and mortgages forming the subject matter of the litigation had been fully paid, satisfied, and discharged. At the present trial in the superior court, for the purpose of establishing this allegation of payment, defendants offered in evidence the execution and proceedings had thereunder pending the first appeal. This evidence was rejected, but evidence was received which proved substantially the same facts, and for that reason no error amounting to prejudice was committed by the trial court, even conceding the ruling erroneous, which proposition we do not decide. It is not disputed but that the sale took place pending the appeal, and that the proceeds of the sale, to the amount of the judgment, were paid over to the plaintiff. But the contention of plaintiff is that those acts did not in law amount to payment of the notes. With that contention we agree, and the court so found the fact and the law. The sale under foreclosure, subsequently followed by a payment of the proceeds thereof over to the plaintiff, may indicate that he has a large amount of money belonging to defendants; but it falls short of proving payment of the notes involved in this litigation. There is no pretense that defendants in any way consented to this sale, but, on the contrary, one of them testified that they did not consent. The judgment upon which the sale was based was reversed and set aside by this court. The foundation upon which the order of sale and all the proceedings had thereunder rested was taken away. By the reversal of judgment the litigation took the form it had prior to its entry, and the notes stood unpaid. Thereafter, the parties stood in the same position as if no judgment had ever been rendered. Counsel for appellants cite no authority which holds that the acts here considered amount to a payment of the notes. Upon the other hand, there is both authority and principle looking to the contrary. (2 Freeman on Judgments, sec. 482.)

The property which may be designated as the Chevalier wine was not included in the judgment of foreclosure. Hence in view of the law as declared in this cause upon appeal from the judgment, no error was committed by the trial court in rejecting the evidence bearing upon that transaction, for this evidence of Chevalier and others was not material upon the question of estoppel other than as to the Chevalier wine. Neither did it tend to establish a novation.

For the foregoing reasons the order appealed from is affirmed.

Harrison, J., and Van Dyke, J., concurred.

Hearing in Bank denied.

[Sac. No. 659. In Bank.-February 4, 1901.]

DAVID ADAMS and ELLA ADAMS, Respondents, v. CITY OF MODESTO, Appellant.

NUISANCE-USE OF OPEN SEWER BY CITY.-The use of an open sewer by a city in the vicinity of the land of the plaintiffs, upon which they reside with their family, constitutes a nuisance, which the plaintiffs are entitled to have abated.

ID.-DAMAGES-PRESENTATION TO BOARD OF TRUSTEES NOT Required.—

The damages caused by a nuisance maintained by the city are not required to be presented to the board of trustees; and are not included in a provision requiring "demands" against the city to be “presented and audited by the board of trustees," which refers to demands arising upon contract for a determinate sum, and not to those arising from torts.

ID. INSUFFICIENT EVIDENCE AS TO DAMAGES.-Although the plaintiffs were damaged by the nuisance, yet where they failed to show that they were damaged in the amount found, or in any other ascertainable amount, a new trial must be granted, unless the plaintiffs prefer to release the judgment for damages.

APPEAL from a judgment of the Superior Court of Stanislaus County and from an order denying a new trial. William O. Minor, Judge.

The facts are stated in the opinion of the court.

P. J. Hazen, for Appellant.

Needham & Dennett, for Respondents.

THE COURT.-Appeal from a judgment in favor of the plaintiff for the abatement of a nuisance and for damages, and from an order denying a new trial. The plaintiffs are owners of a tract of land in the city of Modesto, on which, until a short time before the commencement of the suit, they resided with their families. The nuisance complained of is an open wooden trough, passing about three hundred yards from the plaintiff's house, and constituting part of the sewerage system of the city, through which, for a distance of about four hundred and fifty yards, the sewerage matter of the city is passed. This the court found was a nuisance, interfering with the comfortable enjoyment and obstructing the free use of the plaintiff's property, and that the plaintiffs were damaged thereby in the sum of six hundred and fifty dollars.

That the use of the open sewer by the city in the vicinity of the plaintiff's land constituted a nuisance, and that the plaintiffs were entitled to have it abated, is too clear to require discussion. (Civ. Code sec. 3479; Peterson v. City of Santa Rosa, 119 Cal. 387, 392; Lind v. City of San Luis Obisqo, 109 Cal. 340; Wood on Nuisances, sec. 781, note 1.)

With regard to damages it is objected that the demand was not presented to the board of trustees as required by the provisions of section 864 of the municipal corporation act (Stats. 1883, p. 266 et seq.), applying to cities of the sixth class, of which the city of Modesto is one; which provides that "all demands against such city or town shall be presented and audited by the board of trustees," etc. But we do not think this provision was intended to apply to cases of this kind. The term "demands" is indeed sufficiently broad to include all claims, whether arising from contract or tort; but when used in this connection the term does not usually include demands of the latter class. (15 Am. & Eng. Ency. of Law, 1194.) That the term is here used in the narrower sense as referring only to demands arising from contract and for determinate amounts is shown by the purpose for which they are required to be presented, which is that they may be "audited"—a

term that is not applicable to demands arising from torts. (Law Dictionaries of Anderson, Abbott, Black, Wharton, etc.; Century Dictionary.)

We do not think, however, that the finding as to damages is sustained by the evidence. In the complaint it is alleged not only that the sewerage matter of the city was conducted through the trough, but that it was habitually discharged upon and spread over the land toward the land of the plaintiffs; and the damages claimed were alleged to proceed jointly from both causes-that is, not only from the use of the sewer, but from "running the sewage on the ground"; and the testimony of the plaintiff, David Adams, is to the same effect. But the finding of the court refers only to the running of the sewage through the trough, and nothing is said about the discharge of the sewage on the ground, and there is nothing in the testimony to determine how much proceeded from the latter and how much from the former cause. The testimony of the plaintiff is also otherwise indefinite. He speaks of sickness in his family caused by the nuisance, which "entailed doctor bills and medicine bills," but no amounts are given. He says also he "lost the use of the place for two years," and that he could have rented it for two hundred and fifty dollars a year if it hadn't been for the sewer. But the place contained about twenty acres of land and its use-except as a dwelling place- could not have been lost by reason of the nuisance complained of, and, indeed, the witness expressly says he "lost the use of it because [he] didn't care to improve it." The plaintiffs were undoubtedly damaged, but the evidence fails to show they were damaged in the amount found or in any other ascertainable amount. A new trial must, therefore, be granted, unless the plaintiffs prefer to release the damages.

The order denying the defendant's motion for a new trial is, therefore, reversed, unless the plaintiffs, within thirty days after notice of the filing of the remittitur, file their stipulation in writing agreeing that the judgment be modified by striking therefrom the part thereof that relates to damages. Upon the filing of such stipulation the judgment shall be modified accordingly, and as thus modified shall stand as affirmed.

Rehearing denied.

[S. F. No. 1592. Department Two.-February 7, 1901.]

BEHREND JOOST, Appellant, v. LEE D. CRAIG et al., Respondents.

NOTARY PUBLIC-LIABILITY UPON BOND FOR NEGLIGENCE-ACKNOWLEDGMENT JUDICIAL ACTION-CODE PROVISION.-A notary public and the sureties on his official bond are liable, under section 801 of the Political Code, for all damages resulting from his official misconduct or neglect. That section sets at rest the contention that, because the notary acts judicially in taking an acknowledgment, he is not liable in damages for mere negligence therein.

ID.-FORGED DEED-FALSE CERTIFICATE OF ACKNOWLEDGMENT-RECOVERY OF MONEY PAID BY GRANTEE-MARKET VALUE.-The notary and his sureties are liable for a false certificate of acknowledgment by him of a forged deed, falsely stating that the person making the acknowledgment was known by him to be the person described in the instrument, and whose name was subscribed thereto; and an innocent grantee injured thereby may recover from them the money paid for the deed, which is shown to be the market value of the land.

ID.-PURCHASE FROM REAL ESTATE AGENT-RELIANCE UPON NOTARY'S CERTIFICATE-CONTRIBUTORY NEGLIGENCE.-One who purchased the property from a real estate agent, who delivered to him a deed purporting to be properly acknowledged by the owner of the record title, which was in fact forged, and who is not shown to have had any complicity in the forgery, or to have introduced the person making the acknowledgment, was not chargeable with contributory negligence because of relying solely upon the notary's certificate and paying the money to the real estate agent for the acknowledged deed without making further inquiry. He had the right to rely upon the notary's certificate.

ID.-DUTY OF NOTARY-CERTIFICATE OF PROOF OF UNKNOWN PERSONS.If the notary does not in fact know the person making the acknowledgment, in order to relieve himself and his sureties from liability if the instrument is not genuine, he is in duty bound to take the precautions required by the statute, to have the identity of the person prescribed in the instrument and who appears to have executed it proved by the oath of a credible witness, whose name must be stated in the certificate.

ID.-INTRODUCTION OF PERSON NOT SUFFICIENT.-It is not sufficient to relieve the notary from liability for a false certificate of acknowledgment, that the person making the acknowledgment was introduced to him by a responsible person whose oath or affirmation he does not take and certify as required by the statute.