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ing to be the owner of certain outside lands of said city and county, caused the same to be delineated on the "Outside Land Map," under section 4 of Order 800, and paid six hundred and nine dollars to the said Austin as tax-collector, taking his receipt therefor; that a suit then pending between plaintiff and other claimants terminated against plaintiff, and the other claimants were adjudged to be the owners of the lands; and that, by leave of the board of supervisors, she was permitted to withdraw her protest and the receipt. Austin subsequently died, without having paid the money to the city and county treasurer. The defendant Doolan was appointed administrator of the estate of Austin, and in due time the plaintiff presented a claim against said estate, which claim was disallowed; plaintiff thereupon brought suit against said administrator and the defendants herein, and summons was served, and such proceedings were had that, after the commencement of this suit, but before the filing of the amended complaint, judgment was rendered against said administrator.

The point is presented that there is a misjoinder of parties defendant, in that the administrator of Austin's estate is joined with the sureties on the official bond of Austin. It has been held in some cases that the representative of a deceased obligor cannot be joined with the co-obligors in an action on a bond, on the ground that one is charged de bonis testatoris, and the others de bonis propriis, and the judgment against the one would be different from that against the other. That reason does not prevail under the practice in this state, as the court is by the code authorized to render such judgment as will give effectual relief. The statute requires that before an administrator can be sued on an obligation arising in the life-time of the deceased, a claim should be presented; after presentation and disallowance, suit may be brought against the representative, as such, but the judgment, as against him, must be that the amount be paid in due course of administration. That does not prevent the rendering of a proper judgment against surviving coobligors.

Second-It is urged that two causes of action are improperly joined, viz: an action against the administrator to establish a claim, and against the sureties on his official bond. The point is not well taken. What is said above as to the first point will apply here.

Third-It is claimed, that as it was the duty of the tax-collector to turn over to the treasurer all moneys lawfully received by him as such (the plaintiff, in such case, to have recourse upon the city and county treasury), his sureties are not responsible for moneys so received by him but not turned over. As the tax collector received the money in his official capacity (giving his receipt therefor) and did not pay it over, we apprehend that the sureties are not in a position to avail themselves of his failure to pay over.

If it was his duty to pay over, his paying over would, of course, relieve his sureties; would his failure to pay also relieve his sureties? We think not.

Fourth-As to the statute of limitations: Although plaintiff paid the money to the tax collector in 1870, yet, not until February, 1878, was the suit of Lawrence v. Ballou (the suit involving the rights of the respective claimants to the lands) finally disposed of; not until September, 1878, had she leave to withdraw her protest and receipt; and this action was commenced January 14, 1880, clearly within the proper time as to either of those dates. The statute of limitations did not commence to run until plaintiff had a right to have her money, which was not before February, 1878. If she had sued before that date, she must have gone out of court, as being premature.

Judgment reversed and cause remanded with directions to overrule the demurrers, with leave to answer.

THORNTON, J., and SHARPSTEIN, J., concurred.

No. 8.852.

NUNAN V. BERRY ET AL.

Department Two. Filed January 10, 1885.

PRINCIPAL AND SURETIES-DEATH OF PRINCIPAL--DISCONTINUANCE OF ACTION.- An action against the principal and sureties on a bond, may, upon the death of the principal before service of summons on him, be discontinued as to him, upon motion of the surviving defendants and consent of the plaintiff.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff, and from an order denying the defendants a new trial. The opinion states

the facts.

G. F. & W. H. Sharp, for the appellants. McAllister & Bergin, for the respondent. THE COURT. Action on a bond. Nunan was sheriff, and he appointed Berry deputy sheriff and bookkeeper. Berry executed to Nunan a bond, with the other defendants as sureties, conditioned for the faithful performance of his duties, and for the accounting and payment to Nunan of all moneys collected by Berry as deputy sheriff and bookkeeper. The penalty of the bond was ten thousand

dollars.

After the commencement of the action, but before service of summons on him, Berry died, and when the cause came on for trial, on motion of the attorney for the surviving defendants, the sureties, as appears by the statement, the action was discontinued as to Berry, plaintiff consenting. We see no error in this of which the defendants can complain.

The court found that Berry received ten thousand dollars and upwards, by virtue of his office, which he failed to pay over, and rendered judgment for plaintiff for ten thousand dollars, the amount

of the penalty of the bond, with interest at the rate of seven per cent. per annum.

We have examined the various points presented by appellants, but do not think them of sufficient importance to be considered at length. We think the evidence sufficient to sustain the findings, and that the rulings of the court were correct. Judgment and order affirmed.

No. 9,666.

MCKUNE v. CALIFORNIA SOUTHERN RAILROAD COMPANY.

Department Two. Filed January 10, 1885.

CONTRIBUTORY NEGLIGENCE-LABORER ON RAILROAD.-A construction laborer on a railroad is not guilty of contributory negligence for returning from his place of work on a hand car, at a later hour than usual, if he was acting under the direction of a foreman as to the hours of labor, and as to the movements of the hand car.

THE SAME TRAIN DISPATCHER AND LABORER NOT FELLOW EMPLOYEES.-A material man' and train dispatcher for a railroad, having authority to employ and discharge men, and direct the movements of trains, is not a fellow employee with an ordinary track laborer, within the meaning of section 1,970 of the civil code.

APPEAL from a judgment of the superior court for San Diego county, entered in favor of the plaintiff, and from an order denying the defendant a new trial. The opinion states the facts.

M. A. Luce, for the appellant.

Z. Montgomery and Conklin & Hunsaker, for the respondent.

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MYRICK, J. Action for damages, for injuries received by plaintiff, a laborer, while in the employ of defendant.

The defendant was constructing a railroad from San Diego to Colton. Some twenty miles of the road had been constructed, from National City towards Colton. The plaintiff was a laborer who, with four others, under one Lynch, foreman.of the gang, had been sent out on the twenty-fourth of October to make some repairs at a point on the line of the road. On the same day an extra gang of five men was sent out to assist them. Lynch's men went out on a hand-car, furnished for the purpose, the extra men being taken out on a construction train and set down at the point of work. Lynch had instructions to bring in the extra men with him, at night, on the handThe usual direction was to be in as near six o'clock as could be. In order to comply with this direction the men usually worked at that season of the year until some time between five and six o'clock, when the hand-car would be put on the track, and the men would come in on it. On the occasion involved in this action, Lynch directed the men to stop work at about five o'clock, earlier than usual, having the five extra men to bring in, and put the handcar on the track for return. The having eleven men instead of six, the usual number, would naturally, and did delay the moving of the hand-car, so much so, that at about half-past six o'clock, the time.

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the occurrence took place, the men had not reached the station. A special train, consisting of a locomotive and flat car, was sent out about 5:50 P. M., to go up the road and bring in other men. This train was sent out by one Fisher, who was material agent and traindispatcher for defendant, and had charge of the moving of trains. This train was backing up, the conductor, with a conductor's white light, being on the flat car; the conductor had no orders as to the hand-car, and the men on the hand-car had no information that the train was to be sent out. The only train running regularly was a construction train which was at the upper end of the track, and was delayed to bring in some men from that point. At about half-past six, after dark, the hand-car and the special train came together. The plaintiff was engaged in turning the crank of the hand-car, and therefore, not in a condition to be on the lookout; others on the car saw a white light some distance ahead, and supposing it to be the light of some carpenters at work on a tank near the track, gave no alarm. The men on the hand-car had no light. The conductor of the train had a white light in his hand, and he was at the brake. The train was then running at the rate of twenty miles an hour. He saw no object on the track, until, as he says, when within about one hundred feet he saw something, but could not say what it was; he gave signal to reverse the engine, and applied the brake; but too late, for the collision immediately occurred. Just before the collision, the foreman on the hand-car saw the danger, and gave the alarm, and all the men except the plaintiff jumped off, and escaped comparatively unhurt; the plaintiff was not able to escape in time to save himself, and received serious injuries.

The jury gave the plaintiff a verdict of ten thousand dollars damages, and the defendant appealed.

The defendant thinks the plaintiff should not be allowed to have his judgment, because,

First-He was guilty of contributory negligence. It was usual for hand-cars to be in at the station at 6 o'clock; by remaining on the track after that hour, the plaintiff contributed to the cause of the injury.

In regard to this point, it is sufficient to say that plaintiff was under the direction of a foreman, as to the hours of labor, and as to the movements of the hand-car. The company, by its authorized officer, had encumbered the hand-car by an extra and unusual number of men. Notwithstanding the men, by order of the foreman, quit work and started to return earlier than usual, yet the extra load prevented them from making the station before dark-which, at that season of the year, was about six o'clock.

Second-Fisher, the material agent and train-dispatcher, was a fellow-employee with the plaintiff within the meaning of section 1,970, civil code, and therefore the defendant is not liable.

A rule of the company declared that no extra engine, either with or without train, unless in company with a regular train, would pass over any portion of the road, except on an order from the material

agent or train-dispatcher. The train in question was sent out by the material agent and train-dispatcher, and showed no light except the usual conductor's light, which was easily mistaken for a light at the side of the road. We think that Fisher was not a fellow employee with the plaintiff within the meaning of the section referred to: Beeson v. Green Mountain G. M. Co., 57 Cal., 20. He represented the defendant; was a vice principal; he employed and discharged men, and directed the movements of trains. When he directed the extra train to go up the road the company directed it.

We think the jury was justified in concluding that the facts presented a case where a laborer, placed by the company under the direction of a foreman, and while acting in accordance with such direction, in the ordinary pursuit of his labor for the company, was injured by an occurrence caused by the company-not intentionally, of course, as to the result, yet caused by the company-and that the company alone was guilty of negligence.

This view practically disposes of the questions presented by the appellants.

Judgment and order affirmed.

THORNTON, J., and SHARPSTEIN, J., concurred.

No. 9.249.

SCHROEDER ET AL. v. SCHWEITZER LLOYD.

Department One. Filed January 10, 1885.

MARINE INSURANCE-DEVIATION IN VOYAGE-DISCHARGE OF INSURER.-A marine policy of insurance implies a warrant that the vessel shall not deviate from the voyage declared in the policy. Any voluntary deviation is a change of the risk, and forms a departure from the contract, the legal effect of which is to discharge the insurers from liability for any loss happening to the thing insured subsequent to the unauthorized deviation.

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THE SAME-TRANSHIPMENT OF CARGO--SUBSEQUENT LOSS-BILL OF LADING.--The defendant insured certain wheat on the steamer Colorado, for a voyage from San Francisco, by way of the port of Yokohama, to the port of Hongkong, and thence by the usual nections" to Batavia; it was the usual practice for the company's steamer to carry its cargo to Hongkong without transhipment at Yokohama, or connecting for that purpose, with any other vessel, at the last named port; such usage was well known to the defendant when it issued the policy. Held, that a transhipment of the property insured at Yokohama was a deviation from the policy and released the insurer from liability thereunder for a loss subsequently incurred. This result follows, although the bill of lading, the form of which was well known to underwriters in San Francisco, provided that the carrier might tranship at Yokobara, in the absence of proof that it had ever before made such transhipment.

BILL OF LADING-ASSENT OF CONSIGNOR TO EXEMPTIONS, HOW MANIFESTED.-A provision in a bill of lading reserving the right to the carrier to tranship at an intermediate port, is not binding on the consignor, under section 2,176 of the civil code, unless he expressed his assent to it by signing the bill of lading.

APPEAL from a judgment of the superior court for the city and County of San Francisco, entered in favor of the defendant and from an order denying the plaintiff a new trial. The opinion states the facts.

No. 56-3.

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