nonsuited and judgment taken against the other two: Held, that there is no error in such judgment. Stoddard v. Van Dyke, 12 Cal. 438.

18. In suit, on an account against Randall & Inas," partners, the former only being served with process, a joint judgment was rendered against both: Held, that the judgment is void as against the party not served. Inas v. Winspear, 18 Cal.

397.

19. Plaintiff sells goods to C. on his individual account. Subsequently, C. directs plaintiff to charge the goods to the joint account of C. & J., which is done. Plaintiff sues C. & J. jointly. Proven that C. had no authority to bind J.: Held, that, although J. is not liable, judgment may be rendered against C.; that our Practice Act (Sec. 145) has modified the common law rule; that, in suit against several joint debtors, plaintiff must recover against all or none-so far, at least, as to permit judgment against a portion of the defendants wherever the contract purports on its face to be the contract of all the parties sued, and it turns out in proof that a portion only are liable. Lewis v. Clarkin, 18 Cal. 399.

20. In suit against two on a joint assessment for taxes, judgment may be rendered against one only of the defendants, if the other be not liable. People v. Frisbie, 18 Cal. 402.

21. The common law rule, that where defendants are sued on a joint contract, recovery must be had against all or none, modified by our Practice Act. Id. 22. Query: whether the rule is entirely abrogated. New York cases cited. Id. 23. In an action against two for injury to property without force, the evidence showed that the injury resulted from the joint act of the two, but the jury found that each was liable for a part only of the injury, and they severed the damages accordingly, and judgment was entered for a different sum against each: Held, that neither judgment could be sustained, and it was not a case for permitting the plaintiff to elect, since it was impossible to say upon what ground the jury had based the liability of either. Turner v. McCarthy, 4 E. D. Smith's C. P. R. 247. 24. Two defendants were sued together as having jointly committed a tort, and on the trial it was proved, by competent and sufficient evidence, that they jointly did the wrong, and that the plaintiff had been damaged to the amount of six hundred dollars. The referee before whom the cause was tried, severed the damages, assessing them at one hundred and fifty dollars against one defendant, and six hundred dollars against the other. On his report, the plaintiff entered judgment against both for six hundred dollars, without any formal remittitur as to the lesser amount: Held, on appeal from the judgment, that the severing of the damages was rightly disregarded in entering the judgment, and that the judgment so entered was correct, and should be affirmed, with leave to the plaintiff to modify its form, (if so advised) so as to state that he elected to remit the lesser sum, and take judg ment against both for the larger sum. O'Shea v. Kirker, 8 Abb. Pr. R. 69.

§ 146. Judgment may be against one party and action proceed as to others.

In an action against several defendants, the Court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper.

N. Y. Code, § 274.

§ 147. The relief to be awarded to the plaintiff.

The relief granted to the plaintiff, if there be no answer, shall not exceed that which he shall have demanded in his complaint; but in any other case, the Court may grant him any relief consistent with the case made by the complaint, and embraced within the issue. N. Y. Code, § 275.

1. Where judgment is taken by default, no relief can be given beyond that demanded in the complaint. Raun v. Reynolds, 11 Cal. 19.

§ 148. Action may be dismissed or nonsuit entered.

An action may be dismissed, or a judgment of nonsuit entered in the following cases:

1st. By the plaintiff himself, at any time before trial, upon the payment of costs, if a counter claim has not been made. If a provisional remedy has been allowed, the undertaking shall thereupon be delivered by the Clerk to the defendant, who may have his action thereon.

2d. By either party, upon the written consent of the other.

3d. By the Court, when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal.

4th. By the Court, when upon the trial, and before the final submission of the case, the plaintiff abandons it.

5th. By the Court, upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the jury. The dismissal mentioned in the first two subdivisions shall be made by an entry in the Clerk's register. Judgment may thereupon be entered accordingly.

1. First subdivision.-Plaintiff has not the absolute right to take a nonsuit after the case has been finally submitted and the jury has retired; but such right does exist at any time before such final submission and retirement. Brown v. Harter, 18 Cal. 76.

2. Plaintiff has a right to take a nonsuit at any time before the jury retires, there being no counter claim. Hancock Ditch Co. v. Bradford, 13 Cal. 637.

3. Nor, under the one hundred and forty-eighth section of the Practice Act, is he bound to tender costs before the nonsuit. The provision as to costs is simply that, by the nonsuit, plaintiff becomes subject to costs. ld.

4. Third subdivision.-Where the plaintiff fails to appear and prosecute his suit, and the defendant moves for a nonsuit, the Court has no alternative but to grant it. Peralta v. Mariea, 3 Cal. 185.

5. Fifth subdivision.-Where four persons were sued as codefendants on a joint contract, and the plaintiffs adduced no evidence to establish the joint liability of all, and a motion for a nonsuit was made on this ground, but refused by the Court, and judgment was rendered against all the defendants jointly: Held, that the judgment was erroneous; but held further, that the plaintiffs might have discontinued the suit as against those not shown to be liable, and have proceeded to judgment against those whose liability was established, upon such terms and conditions as should appear to be just. Acquital v. Crowell, i Cal. 121.

6. If there be some evidence which tends or conduces to prove all the material allegations of the complaint, the sufficiency thereof is a question for the jury; but where there is no evidence on some material point necessary to be proved in order to make out a cause of action, it becomes the duty of the Court, on motion of the defendant, to order a nonsuit. Ringgold v. Haven, 1 Cal. 108.

7. An action was brought against the defendants to recover damages for injuries to goods in being carried from New York to San Francisco, founded not upon contract, but upon the common law duty of carriers: Held, that it was necessary

for the plaintiff to establish, not only the delivery of the goods to the defendants, but that they were engaged in the business of transporting goods as common carriers; and there being no evidence whatever that the defendants were common carriers: Held, also, that a motion for a nonsuit should have been granted by the Court below. Id.

8. The doctrine of Ringgold v. Haven & Livingston, (ante, 108) that it is the duty of the Court in a proper case to nonsuit the plaintiff, affirmed. Dalrymple v. Hanson, 1 Cal. 125.

9. Where there is no evidence to make out a cause of action, the Court should nonsuit the plaintiff. Id.

10. If the evidence of the plaintiff will not authorize a jury to find a verdict for him, or if the Court would set it aside, if so found, as contrary to evidence, it is the duty of the Court to nonsuit the plaintiff. Mateer v. Brown, 1 Cal. 221.

11. Courts should, of their own motion, dismiss a case based upon a consideration which contravenes public policy, whether the parties to the suit take the objec tion or not. Valentine v. Stewart, 15 Cal. 387.

12. Referee may grant.-Under our statute, the referee takes the place of the Judge, in the trial of all cases referred to him, and may grant a nonsuit. Plant v. Fleming, 20 Cal.

13. What operates as a discontinuance. The plaintiff commenced an action of forcible entry and detainer against the defendant, in a Justice's Court. The Justice, instead of trying the case, certified it to the District Court: Held, that the transfer was illegal, and could not defeat the plaintiff's rights by operat ing as a discontinuance. Larue v. Gaskins, 5 Cal. 507.

14. The submission of a cause in Court to arbitration operates as a discontinuance of the suit. Gunter v. Sanchez, 1 Cal. 45.

15. Generally.-Where the complaint in an action on a bill of exchange describes it as payable to the order of A, whereas the bill offered in evidence is drawn payable to B, it is a variance to be taken advantage of by objecting to the evidence, or by a motion of nonsuit. Farmer v. Cram, 7 Cal. 135.

16. Where a motion is made for a nonsuit, without stating the grounds upon which it is made, it is not error to overrule the motion. Kiler v. Kimball, 10 Čal. 267.

17. Nonsuit not proper where there is any evidence tending to prove the indebtedness. Cravens v. Dewey, 13 Cal. 40.

18. Where a defendant moved for a nonsuit, and afterwards introduced evidence supplying the defect in the plaintiff's testimony, on which the motion for nonsuit was founded: Held, that the defendant had thereby waived his motion, and could not insist upon it in this Court. Ringgold v. Haven, 1 Cal. 108.

19. Per BENNETT, J.-The practice of nonsuit and of demurrer to evidence considered. Id.

20. The decision in Ringgold v. Haven, (ante, 108) that the power of compulsory nonsuit exists, approved. Mateer v. Brown, 1 Cal. 221.

21. It is error to refuse, in an action of ejectment, a nonsuit as to such defendants as were not in possession of the premises at the commencement of the action. Garner v. Marshall, 9 Cal. 268.

22. In ejectment, upon disclaimer of possession or interest in the property, a judgment for plaintiff cannot be entered. When such disclaimer is relied upon, the only proper judgment is one of nonsuit. Noe v. Card, 14 Cal. 576.

23. Where plaintiffs, having excepted to the ruling of the Court excluding certain evidence, take, in consequence of such ruling, a nonsuit, with leave to move to set it aside, they do not waive any of their rights as to the exception taken. Objections to the introduction of evidence confined, in the appellate Court, to the grounds taken below. Natoma Water and Mining Co. v. Clarkin, 14 Cal. 544.

24. A failure on the part of a plaintiff to make out his case, and error in the Court in refusing to instruct the jury as in case of nonsuit, can be cured by the testimony of the defense. Winans v. Hardenburgh, 8 Cal. 291.

25. Costs, by way of indemnity, ought not to be taxed in case of a nonsuit. Rice v. Leonard, 5 Cal. 61.

26. Where a bill disclosed that the same subject matter had been litigated between the same parties in a prior suit, and that in the said suit the plaintiff in

this suit had set up the same equity which he claims by this bill, the bill was ordered to be dismissed. Barnett v. Ritchey, 3 Cal. 327.

27. When the evidence, and the presumption reasonably arising therefrom, tend to prove the facts in controversy, a nonsuit is improper. The case should be submitted to the jury. De Ro v. Cordes, 4 Cal. 117.

28. Where a motion for a nonsuit was improperly denied, but the defendant then introduced testimony enabling the plaintiff to supply the defect in his case: Held, that defendant thereby waived the objection. Smith v. Compton, 6 Cal. 24; Perkins v. Thornburg, 10 Id. 189.

29. On a motion for a nonsuit, the Judge, for the time being, unites, like a referee, the character of Judge and jury. As jury, he ascertains the facts; as Judge, he applies the law to them; and when he announces his decision, it is to compound result of an ascertainment of the facts and the application of the law. The details do not necessarily appear in the decision of the motion, any more than they appear in the verdict of a jury, or the report of a referee. And if a party wants these details, he must get them by a special application, at the time, to the Court for that purpose. In this way only can the several questions which properly arise be distinctly presented and intelligently passed upon, and the rights of all parties be carefully guarded. Barnes v. Perrine, 2 Kern. 22; People v. Cook, 4 Seld. 78; Notton v. Moses, 3 Barb. 31; Beekman v. Bond, 19 Wend. 444; Jackson v. Packard, 6 Id. 415; Jackson v. Timmerman, 12 Id. 299; Hunter v. Trustees of Sandy Hill, 6 Hill, 410; Bidwell v. Lament, 17 How. Pr. R. 357.

30. The dismissal of the complaint, under the Code of Procedure, in an action in the nature of what were formerly termed common law actions, is identical with a nonsuit under the former practice. Coit v. Bland, 12 Abb. Pr. R. 462.

31. On a motion for nonsuit, the defendant must bring the special grounds which justify a nonsuit before the notice of the Court. Such a motion, based upon general grounds, no objection being taken to the form of pleadings, or to the admissibility of evidence under them, does not raise the question that the action should have been case for the defendant's negligence, instead of trespass for a direct injury. Such objections will not be listened to, unless distinctly made. Castle v. Duryea, 32 Barb. 480.

§ 149. Judgment on the merits, when.

In every case, other than those mentioned in the last section, the judgment shall be rendered on the merits.

CHAPTER II.-Judgment upon failure to answer.

SEC. 150. In what cases judgment may be had upon the failure of the defendant to answer.

Judgment may be had, if the defendant fail to answer the complaint, as follows:

1st. In an action arising upon contract for the recovery of money or damages only, if no answer has been filed with the Clerk of the Court within the time specified in the summons, or such further time as may have been granted, the Clerk, upon the application of the plaintiff, shall enter the default of the defendant, and immediately thereafter enter judgment for the amount specified in the summons,

including the costs, against the defendant, or against one or more of several defendants in the cases provided for in section thirty-two.

2d. In other actions, if no answer has been filed with the Clerk of the Court within the time specified in the summons, or such further time as may have been granted, the Clerk shall enter the default of the defendant; and thereafter the plaintiff may apply at the first, or any subsequent term of the Court, for the relief demanded in the complaint. If the taking of an account, or the proof of any fact, be necessary to enable the Court to give judgment, or to carry the judgment into effect, the Court may take the account or hear the proof; or may, in its discretion, order a reference for that purpose. And where the action is for the recovery of damages, in whole or in part, the Court may order the damages to be assessed by a jury; or, if to determine the amount of damages, the examination of a long account be necessary, by a reference as above provided.

3d. In actions where the service of the summons was by publication, the plaintiff, upon the expiration of the time designated in the order of publication, may, upon proof of the publication, and that no answer has been filed, apply for judgment; and the Court shall thereupon require proof to be made of the demand mentioned in the complaint and if the defendant be not a resident of the State, shall require the plaintiff or his agent to be examined on oath, respecting any payments that have been made to the plaintiff, or to any one for his use, on account of such demand, and may render judgment for the amount which he is entitled to recover.

1. First subdivision.-A default may as well be taken against a municipal corporation as against a private person. The rules of pleading are general; they were designed to embrace all persons, natural or artificial, capable of suing or being sued. Hunt v. City of San Francisco, 11 Cal. 250.

2. A judgment by default may as well be taken against an administrator as any other party. Chase v. Swain, Administrator, 9 Cal. 130.

3. Where the complaint is verified, and the defendant fails to answer, plaintiff is entitled to judgment on the complaint without proof of the facts alleged therein. Tuolumne Redemption Co. v. Patterson, 18 Cal. 415.

4. A final judgment by default can properly be rendered upon an unliquidated demand, where the defendant has been notified in the summons of the amount for which the plaintiff will take judgment. Hartman v. Williams, 4 Cal. 254.

5. The several counts are distinct causes of action; and the fact that by reason of one of them having been imperfectly stated, no judgment could be rendered on that count, does not affect the right of plaintiff to take judgment on those which are rightly stated. Hunt v. City of San Francisco, 11 Cal. 250.

6. A default on a complaint containing special counts defectively stated will support a judgment-the default being a confession of the indebtedness for the causes and on the accounts alleged in the complaint. Id.