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motion for a new trial was made in his behalf and denied. From the order made therein and the judgment of conviction he appealed. The grounds of this appeal are that the verdict of the jury was contrary to the evidence, and that the court should have granted a new trial for that reason and that of newly-discovered evidence. The preponderance of the evidence certainly went to prove the guilt of the defendant as charged, and the verdict against him should not be disturbed. People v. Ah Loy, 10 Cal. 301; People v. Gill, 45 Cal. 285; People v. Simpson, 50 Cal. 304.

It appears that it was within the defendant's power to have introduced on his trial the most of that which he terms newly-discovered evidence. And the material parts of it are flatly contradicted by a counter-affidavit of Mr. Fenner.

There is no error in the record, and the judgment and order should be affirmed.

We concur: BELCHER, C. C.; Searls, C.

BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(2 Cal. Unrep. 564)

OLIVER, Adm'r, etc., v. BLAIR and others. (No. 8,809.)


Filed November 25, 1885.

On authority of the opinion rendered in department 2, 6 Pac. Rep. 847, judgment affirmed.


In courts of equity, if the specific relief asked cannot be granted, such relief as the case stated in the bill authorizes, may be had under a prayer for general relief; but under such prayer no relief can be granted beyond that which is authorized by the facts stated in the bill.

Commissioners' decision.

In bank. Appeal from superior court, city and county of San Francisco.

W. S. Goodfellow, for appellant.

W. M. Pierson, A. Compte, Jr., and Joseph Naphtaly, for respondent.

FOOTE, C. A rehearing was granted to Henry Coubrough, one of the defendants herein. An examination of the record, petition for rehearing, and authorities, convinces us that the opinion delivered by department 2 of this court, on the thirtieth day of April, 1885, was in all respects correct. 6 Pac. Rep. 847.

The complaint upon which default was taken against Coubrough stated facts amply sufficient to support the judgment. After asking for certain specific relief, the prayer of that pleading concludes as follows: "And for such other or further and different relief in the

premises as shall be just and equitable, and for the costs of this action."

The action was equitable in its nature. In Carpentier v. Brenham, 50 Cal. 552, it is said: "In courts of equity the rule is universal that under the prayer for general relief no relief can be granted beyond that which is authorized by the facts stated in the bill; and to the same effect is our statute;" meaning thereby section 147 of the practice act, which was in force when the action was tried, the language of which is identical with that of section 580 of the Code of Civil Procedure. In Rollins v. Forbes, 10 Cal. 300, where a default was taken, this authoritative declaration was made: "If the specific relief asked cannot be granted, such relief as the case stated in the bill authorizes may be had under the clause in the prayer for general relief; and even in the absence of such clause, where an answer is filed. Practice Act, § 147."

The judgment should be affirmed.

We concur: SEARLS, C.; BELCHER, C. C.

BY THE COURT. For the reasons given in the foregoing opinion the judgment is affirmed.

(2 Cal. Unrep. 566)

BOWMAN v. DEWEY. (No. 8,480.)

Filed November 25, 1885.


A tax founded on a special and supplemental assessment, made in the year 1880-81 by the assessor in the city and county of San Francisco, of certain personal property, did not become a lien on the property of the person assessed, as such assessment was invalid. On authority of People v. Pittsburg R. Co., 8 Pac. Rep. 381. MYRICK and THORNTON, JJ., dissent.

Commissioners' decision.

In bank. Appeal from superior court, city and county of San Francisco.

Cope & Boyd, for appellant.

Doyle, Barber, Galpin & Scrilpture, for respondent.

BELCHER, C. C. This is an action to enforce the specific performance of a contract for the sale of a lot in the city of San Francisco, and to require the defendant to pay certain taxes which, it is alleged, are a lien on the lot. The contract provided that the title to the lot should be "good and marketable, and free of all incumbrances." The complaint alleges that in the fiscal year 1880-81 the assessor of the city and county of San Francisco made a special and supplemental assessment of certain personal property owned by the defendant, under the provisions of the act of March 18, 1874, (St. 1873-74, p. 477,) and that the taxes so levied have not been paid, and are a lien and incurabrance on the lot. The defendant demurred to the complaint, and at the same time answered thereto. By his answer

he denied that the said taxes ever became or were a lien on the lot, and he alleged, among other things, that the said special or supplemental assessment was invalid because it was made after the fourth Monday of July, 1880, and after the board of equalization had adjourned, and without any order or direction of the board of supervisors, or the board of equalization. The plaintiff demurred to the answer on the ground that it did not state facts sufficient to constitute a defense or counter-claim to the cause of action set forth in the complaint. The court sustained the demurrer to the complaint, and overruled the demurrer to the answer; and, the plaintiff declining to amend, judgment was entered in favor of the defendant. The ap

peal is from that judgment.

It is apparent that the only question presented for decision is, was the tax founded on the assessment in question a lien upon the lot of land described in the complaint? A similar assessment was involved in the case of People v. Pittsburg R. Co., 8 Pac. Rep. 381, and was held by this court to be invalid.

Upon the authority of that case the judgment here should be affirmed.

We concur: SEARLS, C.;

BY THE COURT: For the reasons stated in the foregoing opinion the judgment is affirmed.

We dissent: MYRICK, J.: THORNTON, J.

(68 Cal. 29)

SHARON V. SHARON. (No. 11,123.)

Filed November 20, 1885.



In an action on a contract for the payment of money, a defense that the consideration of the agreement was past illicit cohabitation, if relied on, must be pleaded, when it does not appear in the complaint; and, if not so pleaded, evidence cannot be given in regard thereto, and a finding thereon is without the issue.


An agreement to pay money is sufficiently supported to be valid, by a consideration that the party to whom the money is promised shall cease to disturb or annoy or make any demands upon the promisor.

Department 2. Appeal from superior court, city and county of San Francisco.

W. H. L. Barnes and O. P. Evans, for appellant.
Tyler & Tyler and D. S. Terry, for respondent.

MYRICK, J. Action on an agreement in writing. The agreement is in the following words:

"PALACE HOTEL, SAN FRANCISCO, November 7, 1880. "I hereby agreeto pay Miss S. A. Hill two hundred and fifty dollars for each and every month of the year A. D. 1883. WM. SHARON."

The defendant admitted the execution and delivery of the writing to plaintiff, and that he had not paid the installments alleged to be due for October, November, and December, 1883; and averred that to induce plaintiff to desist from making unwelcome visits, and annoying and disturbing him in his rooms, and on the consideration that she would cease to disturb or annoy him, or make any demands upon him, he promised to pay her $7,500; and in pursuance of that promise he paid her $3,000, gave her his note for $1,500, which has been paid, and gave her the paper set out in the complaint. The answer contains the statement that the defendant "denies that there ever was any consideration for the note" sued on.

The case comes up on the judgment roll, without the evidence. The court found:

"That said instrument was given by defendant to the plaintiff in consideration of past illicit intercourse between them, and also in consideration of a promise then and there made by plaintiff to defendant to make no further demand upon defendant, and not to further annoy him in any manner, and also in consideration of the following instrument in writing:

"Received of William Sharon $7,500, in full of all claims and demands of every name, nature, and character. S. A. HILL.' "

The defendant on this appeal presents the point that as the court found a portion of the consideration to be past illicit cohabitation, the entire contract is void, under sections 1607, 1608, and 1667 of the Civil Code; and after claiming that the illegality of the consideration was sufficiently pleaded by the denial of any consideration, cites Oscanyan v. Winchester R. A. Co., 103 U. S. 261, as authority that the defense need not be specially pleaded, but could be interposed under the general issue. It doubtless has been and is the rule that a contract in consideration of future illicit cohabitation is void. It seems to have been the rule formerly that a contract under seal for past illicit cohabitation could not for that reason be avoided, but that a written contract not under seal could be avoided. The distinction may, perhaps, have been done away with by the Code.

In commenting on a contract under seal, it is said in 1 Story, Cont. § 541: "The contract [for past acts] is done, and may otherwise be remediless; and there is no principle of law which forbids a party to redress a past injury, or atone for a wrong which he has already committed." And the writer continues: "If the consideration be illegal, the contract may be avoided by a proper plea, even though it be a specialty, and the illegality be not apparent on the face of the instrument." Without deciding that a contract to pay money for past illicit cohabitation can be enforced or avoided under a proper plea, we are of opinion that the defense was not pleaded in this case, and was not in the issues, and the finding of the court in that respect should therefore be disregarded. The case of Oscanyan v. Winchester R. A. Co., above cited, was decided on the plaintiff's statement, and the points involved were necessarily presented by him in endeavor

ing to make out a case; and it was held that he could not recover. The necessity of pleading the defense by the defendant was not in any manner involved in the case.

In the case at bar there is nothing in the case as stated in the complaint to suggest any illegal consideration. The defendant admitted the execution and delivery of the writing, and stated the consideration to be that she should cease to disturb or annoy him, or make any demands upon him. The defendant doubtless studiously avoided pleading illicit cohabitation. He was, under our system of pleading, bound by the omission, and it was not competent for him to give in evidence the matters omitted. The judgment is affirmed. Ordered that this judgment be entered as of November 12, 1885.

We concur:

(68 Cal. 37)


EDWARDS v. CREPIN. (No. 9,163.)

Filed November 23, 1885.


Where employers, in a contract of hiring of services, promise to pay the employe for his time and work while employed, even though he be discharged for inability or dereliction of duty, it is not void as being against public policy.

Commissioners' decision.

Department 2. Appeal from superior court, city and county of San Francisco.

R. A. Redman, for appellant.

Newman & Eickhoff, for respondent,

FOOTE, C. The plaintiff sued the defendants for services rendered by his assignor, one Taubles, under the provisions of a certain written contract. In the first instance, judgment passed for the plaintiff in the sum of $600, which, upon the court's suggestion, he agreed to allow to be reduced to the sum of $225.65, with legal interest and costs to the amount of $51.75, and from that the defendants appealed. The cause comes here on the judgment roll alone.

The defendants make the points-First, that the clause of the contract under which judgment was obtained is void, being contrary to public policy; second, that the judgment was for less than $300, and therefore did not carry costs, under section 1025, Code Civil Proc.

The respondent confesses error as to the last, so that the first question alone remains for decision.

Although the findings are not so clear as they might have been, we think that the trial court therein determined that the plaintiff's assignor rendered services to the defendants for the space of one month or thereabouts, under the conditions of the written contract, and that then the defendants discharged him from their employment for mis

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