one sued for in this action. The statute does not make the toll-gatherer liable for acts or omissions of the board of supervisors, or of the corporation which employed him. It is when he demands and receives more than he is authorized by law to collect that he becomes liable to the party aggrieved. In this case it is claimed that the corporation was not entitled to demand and receive anything, and, therefore, that any sum whatever was more than the toll-gatherer was authorized to collect. We think section 31 of the act of 1853 does not apply to such a case, but to a case where the law authorizes the collection of some amount of toll, and the toll-gatherer demands and receives more than that amount. If the defendant in this case was authorized to collect anything, he collected no more than he was authorized to collect. If he was not authorized to collect anything, and did collect something, it would not be construing the word "more" according to the context and the approved usuage of the language to say that he collected more than he was authorized to coliect. It is only when a toll-gatherer demands and receives more than he is authorized to collect that he incurs the penalty prescribed. In this case it is not found that anything was demanded by the defendant. The finding is that plaintiff paid, and the defendant received, the amount of the toll, and that the plaintiff paid that amount "without any objection whatever," as he had frequently done before. The court does not distinctly find that the defendant made no demand, but the facts found negative the idea that any was made; and, if none was made, no penalty was incurred, for there must be a demand, as well as a receipt, of toll to constitute the offense. Judgment affirmed. LUCO v. BROWN and others. (No. 11,839.) JUDGMENT-VALIDITY-DEFECTIVE SUMMONS. In California an injunction will not issue to restrain a levy of execution on a justice's judgment docketed in the superior court, when the relief sought is based on the ground that the judgment is void because the summons was fatally defective. Under the law of that state the judgment debtor has ample remedy at law, by motion in the justice's court, to arrest the execution. Commissioners' decision. Department 1. Appeal from superior court, San Diego county. Thos. J. Arnold, for Luco, appellant. Edward J. Linforth, for respond ents. BELCHER, C. C. This action was commenced in the superior court of San Diego county to obtain an injunction restraining the defendants "from levying upon or attaching plaintiff's property, or any part thereof," under an execution issued upon a judgment rendered against plaintiff in a justice's court in Tuolumne county. The facts set up in the complaint may be briefly stated as follows: On the fourteenth day of August, 1885, the defendant Brown filed a complaint in a justice's court in the county of Tuolumne against the plaintiff here and two other persons, in which he alleged that the defendants were indebted to him in a certain sum of money for labor and services done and performed by plaintiff for defendants at their special instance and request. On the twenty-sixth of September following, Brown caused a summons to be issued by the justice upon his complaint, which was served upon plaintiff in the city and county of San Francisco, where he then, and has ever since, resided, and was never served upon him in the county of Tuolumne. The summons so served was defective and void, because there was not attached to it a certificate under seal by the county clerk of the county of Tuolumne, to the effect that the person issuing the same was an acting justice of the peace at the date of the summons, as required by section 849 of the Code of Civil Procedure. On the day of November, 1885, Brown caused the default of plaintiff for not answering to be entered in the cause, and thereupon judgment was made and entered against him for the sum of $252.74. Thereafter Brown caused an abstract of the judgment to be filed in the office of the county clerk of the county, and an execution thereon, under the seal of the superior court, to be issued to the sheriff of San Diego county. The defendant Bushyhead is the sheriff of San Diego county, and the execution so issued has been placed in his hands, and under it he is about to levy upon, advertise, and sell the plaintiff's property, situate in his county. It is then alleged that all the allegations in the complaint filed in the justice's court, so far as the plaintiff here is concerned, are untrue; that Brown never at any time performed any work or labor for plaintiff, at his instance or request or otherwise, and that plaintiff is not and was not, either individually, or in connection with his co-defendants, indebted to Brown in the sum named in his complaint, or in any sum of money whatever, and that he never agreed to pay him the sum alleged in his complaint, or any other sum whatever; that plaintiff never had any notice or knowledge of the commencement of the action in the justice's court, (except from the service of said void summons upon him;) or of the default taken, or of the judgment rendered therein, or of the issuance of the execution, until demand was made upon him by defendant Bushyhead, for payment and satisfaction of the same; and that the levy upon and sale of the plaintiff's property, under the execution, will cloud his title and do him irreparable injury. This action was commenced on the ninth day of February, 1886, and on the same day a temporary injunction was granted. The defendants demurred to the complaint, and, on coming on to be heard, their demurrer was sustained and the injunction dissolved. The plaintiff excepted to the rulings of the court, and now prosecutes this appeal therefrom. Assuming, as claimed by the appellant, that the judgment rendered against him in the justice's court was void, for the reason that the court never acquired any jurisdiction of his person, still it does not follow that he can maintain this action. The same question was involved in Comstock v. Clemens, 19 Cal. 77, in which the court, by FIELD, C. J., said: "The plaintiff seeks to enjoin the sale of certain personal property under an execution issued upon a judgment recovered against him in a justice's court, and bases his claim for relief upon the ground that the court never acquired any jurisdiction of his person. He avers that the summons issued in the action, in which the judgment was entered, was never served upon him. If this averment be true, he has an effectual remedy by motion to the court to set the execution aside. The justice possesses the power at all times to arrest process issued upon judgments entered in his docket which are void." And in that case the judgment in favor of the defendants was affirmed. The same question was again presented in Gates v. Lane, 49 Cal. 266. There the plaintiffs sought to enjoin the enforcement of an execution issued on a judgment rendered against them in a justice's court, upon the ground that the summons had never been properly served upon them. The defendants demurred to the complaint, and this court said: "The demurrer was properly sustained. If the judgment obtained against the plaintiffs was void on the face of the proceedings in the justice's court for want of jurisdiction, as the complaint avers it to have been, these plaintiffs had an adequate remedy by motion in that court, to arrest the execution and stay further process on the judgment; citing cases. Nor did the fact that the execution was issued by the county clerk, on a transcript of the justice's docket filed in his office, obstruct the remedy by motion in the justice's court. Though issued by the clerk, the execution was subject to be recalled by the justice who rendered the judgment." In Ede v. Hazen, 61 Cal. 360, it is said: "As appears upon the face of their complaint, the plaintiffs discovered within forty days after the entry of the judgment, and within six months after the entry of their default, all the facts upon which they now base their right to have it set aside; and if it be conceded that, upon those facts, they are entitled to the relief they now claim, it is clear that they had a speedy, complete, adequate, summary remedy in the same proceeding, and that the complaint shows no circumstances which entitle them to maintain a separate and distinct equitable action." Upon the authority of the foregoing cases we think the demurrer was properly sustained, and that the order dissolving the injunction should be affirmed. We concur: FOOTE, C.; HAYNE, C. BY THE COURT. For the reasons given in the foregoing opinion the order is affirmed. (Supreme Court of California. June 29, 1887.) Commissioners' decision. Department 1. Appeal from superior court, San Diego county. Thos. J. Arnold, for Luco, appellant. Edward J. Lin, for respondents. BELCHER, C. C. There is no material difference between this case and the case of Luco v. Brown, ante, 366. Upon the authority of that case the order dissolving the injunction should be affirmed. We concur: FOOTE, C.; HAYNE, C. BY THE COURT. For the reasons given in the foregoing opinion, the order is affirmed. (73 Cal. 9) ROSENTHAL and others v. LEVY, Assignee. (No. 12,016.) (Supreme Court of California. June 29, 1887.) APPEAL-FINAL ORDER-INSOLVENCY. An order directing an accounting by the assignee of an insolvent debtor, who has qualified, but who has failed to render an account within the three months prescribed by section 29 of the California insolvent act, is not a final order, and is not appealable. Department 1. Appeal from superior court, Nevada county. Complaint by Rosenthal, Feder & Co. and B. Blumenthal & Co., respondents, to compel Marcus Levy, assignee of L. Hyman, to file his account. There was a decree for the complainants, ordering the account to be filed, and Levy appealed. Thornton & Merzbach and A. Burrows, for appellant. John Caldwell and A. D. Mason, for respondents. TEMPLE, J. The order appealed from in this case is in no sense a final order, and is not appealable. Furthermore, it is one the court should have made of its own motion, upon mere suggestion. The assignee was apparently in default, as he had not complied with section 29 of the insolvent act, which required him to render an account at the expiration of three months. The assignee cannot at any time be heard to object to an order requiring him to render an account. The court may require it as often as occasion seems to require. Appeal dismissed. (72 Cal. 577) ROSE'S ESTATE. (No. 12,160.) (Supreme Court of California. June 24, 1887.) APPEAL-TIME OF TAKING. Code Civil Proc. Cal. 8 1704, provides that in probate cases "all orders and decrees of the court or judge must be entered at length in the minute-book of the court;" and section 1715, that "the appeal must be taken within 60 days after the order * is entered." Held, that an appeal from an order settling the account of an administrator, taken before the order had been so entered, was premature, and should be dismissed. In bank. Appeal from superior court, Tulare county. Wal. J. Tuska, for appellant. Stetson & Houghton, for respondent. SEARLS, C. J. This is a motion to dismiss an appeal upon the ground that it was prematurely taken. It appears from the affidavits on file that on the twelfth of March, 1887, findings of fact and an order or decree were signed and filed with the clerk, settling the account of H. Hirshfield, the administrator of the estate of Rose, deceased. Afterwards, and on the twenty-seventh day of April, 1887, the administrator perfected an appeal to this court from such order or decree. At the time of taking such appeal the decree appealed from had not been entered in the minute-book of the superior court of Tulare county, where the proceedings were had where the cause was pending. In probate cases it is provided by section 1704 of the Code of Civil Procedure that "all orders and decrees of the court or judge must be entered at length in the minute-book of the court." If an appeal is taken in such a case, it "must be taken within sixty days after the order, decree, or judgment is entered." The appeal in this case was premature. People v. Center, 66 Cal. 570, 5 Pac. Rep. 263, and 6 Pac. Rep. 481; McLaughlin v. Doherty, 54 Cal. 519; Thomas v. Anderson, 55 Cal. 43. The motion is granted, and the appeal dismissed. We concur: MCKINSTRY, J.; THORNTON, J.; SHARPSTEIN, J.; TEMPLE, J.; MCFARLAND, J.; PATERSON, J. (74 Cal. 250) LOUGHBOROUGH, Adm'r, etc., v. MCNEVIN and others. (No. 9,520.) (Supreme Court of California. June 27, 1887.) 1. PLEDGE-LIEN-EXTINGUISHMENT-TENDER. The lien of a pledgee is extinguished when a tender of the amount due on the debt is made according to law, and is refused by the pledgee. 2. SAME REFUSAL TO DELIVER-CONVERSION. A refusal by a pledgee to deliver up the pledge to an assignee of the pledge, upon a sufficient tender being made by the assignee of the amount due him, is conversion, and the fact that the property pledged had been attached by a third person, with whom the assignee had no privity, is no justification. 3. SAME. In an action of trover to enforce the redemption of a pledge, the pledgee will be held responsible for any depreciation in the value of the pledge, after the tender of the amount due, and refusal by the pledgee. 4. SAME-INTERVENING CLAIMANT. One to whom a pledge has been assigned pending litigation concerning it, may file a complaint in intervention, under section 386, Code Civil Proc. Cal., which provides for order of substitution. 5. TENDER-SUFFICIENCY. Where one who held certain shares of stock as security for money loaned, demanded payment of the debtor, which was refused, and afterwards an assignee of the stock tendered to the pledgee the whole amount due him, with interest, held a sufficient tender, under section 1492, Civil Code Cal., which provides that where delay in the performance of an obligation is capable of exact and entire compensav.14p.no.7-24 tion, and time has not been declared to be of the essence of the contract, an offer of performance, accompanied by an offer of such compensation, may be made at any time after the obligation is due. 6. SAME. A tender to a pledgee of the amount secured by the pledge is not vitiated by a condition that the pledge be delivered to the one tendering payment. 7. SAME. A tender of the amount due a pledgee by an assignee of the pledge is sufficient, without bringing the money into court. Department 2. Appeal from superior court, San Francisco. Wilson & Wilson, for appellant. D. L. Smoot, Ogden Hiles, M. N. Stone, and B. B. Newman, for respondents. THORNTON, J. The plaintiff's intestate, some time prior to October, 1876, lent defendant Henry P. McNevin a sum of money for which he received as security some shares of stock. On the nineteenth of July, 1877, McNevin assigned to defendant L. P. Drexler his interest in the stock above mentioned, in consideration that Drexler would assume the payment of his debts due to Casserly on said stock. This assignment Drexler accepted, and on the twentyfirst of the same month informed Casserly of such assignment. On receiving this notice, Casserly, on same day, declared his willingness to deliver the stock to Drexler upon receiving the money secured by it. On the twentysecond of September, 1877, Drexler made a legal tender to Casserly of the amount due to him on the stock, and demanded a delivery of it. Casserly made no objection to the tender, admitted that it was correct and sufficient, but refused to accept the money and deliver the stock, on the ground that process of garnishment in the matter of an order for money against Henry P. McNevin in favor of defendant Teresa E. McNevin had been served on him on September 1, 1877. On the twenty-eighth of September, 1877, six days after the tender was made and refused, this action was commenced by Casserly. Henry P. McNevin, Teresa E. McNevin, and Drexler were made defendants to the action. The object of the action was to have an account taken of the amount due by McNevin to him; that the money found due him be adjudged to be paid him by Teresa E. McNevin or Drexler, as either shall be found entitled thereto; and in default of payment that the defendants be foreclosed of all right of redemption, etc., for a sale, etc. H. P. McNevin answered, stating that he had, on the nineteenth of July, 1877, sold and assigned the stock to Drexler in good faith, for the consideration of $11,000 paid him by his vendee. T. E. McNevin answered, denying that Drexler ever purchased the stock of Henry P. McNevin; denied that there was due to Casserly from H. P. McNevin any sum greater than $9,837.27, secured as above mentioned; and stated that she claimed a lien upon the stock under executions issued in the action brought by her against Henry P. McNevin, by means of which the stock was attached. The executions mentioned were issued on orders made in the action just above mentioned. In the same action an order was made, which was served on Casserly on the sixteenth day of September, 1877, directing him not to pay over or transfer any property held by him belonging to H. P. McNevin. Drexler in his answer set up the assignment to him; the notification to Casserly of this assignment; the tender to Casserly, and its refusal by him, as they are set forth herein; and averred his willingness and readiness to pay, and then offered to pay, into court the amount due Casserly, as the court should direct, upon Casserly's delivering to him the stock held by him as security. J. F. Eagan, on the eighteenth of February, 1879, filed a complaint in intervention, in which he averred an assignment to him by Drexler of the stock held by Casserly as security, and also of all claim for damages by Drexler for the conversion of the stock thereinafter mentioned. He then goes on to aver the facts showing a conversion by Casserly, which are the facts above set |