Fairbanks v. Dawson. nothing therein "contained shall alter or take away, or lessen the effect of any payment of any principal or interest made by any person whatsoever." (Chitty on Con., 712, a.) Under this express proviso, the effect of a part payment remains the same as before the passage of the act. But as no such proviso is found in our Statute of Limitations, the question arises, whether there is any distinction intended between a promise or acknowledg ment in express words, and a promise or acknowledgment in act. It is plain, that the makers of the English statute thought it necessary to put in this special proviso, otherwise the other portion of the act would include a part payment. It will be seen, upon examination, that the language of the act of Parliament and that of our statute, is very similar, showing that our act was copied from the English statute. The language of the British statute is, that "no acknowledgment, or promise by words only, shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of said enactments, unless such acknowledgment or promise shall be made or contained, by or in some writing, to be signed by the party chargeable thereby." * * * The difference in the language of the English and California statutes is very slight, while the substance and meaning are the same. The English statute was passed as explanatory of a previous statute, while the section of our statute was but a part of the original act itself. Hence, some slight difference in phraseology was required. From the fact that the proviso found in Lord Tenterden's act is left out of our statute, it would seem to be clear that the Legislature intended to put all acknowledgments and promises upon the same footing, to be governed by the same rule of evidence. A part payment has always been regarded simply as an acknowledgment of the debt by act, and not by word; but the same effect was given to the act of part payment, as was given to an express acknowledgment of the debt. They were both held to be evidence of a fresh promise. (Chitty on Contracts, 712, 721.) An admission of a party, by word or act, that he owes another a certain debt, is evidence of a promise to pay that debt. The object of the statute was to avoid the mischief arising from parol testimony to prove either an express promise, or facts from which a promise would follow as a legal and logical result. The true theory of the statute would seem to be this: The acknowledgment or promise is incorporated with the terms of the original contract, and, both taken together, constitute a new contract. By the legitimate operation of the statute, the original debt is paid when the time fixed by the act expires. In making the original contract, the parties incorporated into it the terms of the statute, without any express stipulation to that effect. Under the terms of the contract, as controlled by the existing Harvey v. Fisk. law, the debt is paid by the failure of the creditor to sue within the time agreed upon. But the original debt, being a good moral consideration, is sufficient to support a new contract. It is unnecessary to examine the other questions. HARVEY v. FISK. In an action against a purchaser at sheriff's sale, for not paying the amount of his bid, it cannot be set up in defence, that no sufficient notice of the sale was given. If such be the fact, the recourse of the purchaser is against the sheriff. APPEAL from the District Court of the Fourteenth Judicial District, County of Sierra. This was a motion by plaintiff, as constable, made on notice, under the two hundred and twenty-fourth section of the Practice Act, for judgment of $650, against defendant Fisk, as defaulting bidder at a constable's sale, of property under execution. The only defence relied upon by defendant was, the illegality of the officer's notice of the sale of the property. Francis J. Dunn for Appellant. Taylor & Kirkpatrick, and William M. Stewart, for Respondent. A defective notice does not affect the title of a purchaser of property at sheriffs' or constables' sales. Smith v. Randall, 6 Cal., 47. The objection that there was no tender, by Harvey, of a certificate of sale, has been decided by this Court, in the case of The People ex rel. Kohler v. John Č. Hays, 5 Cal., 66. A tender is there held unnecessary. TERRY, C. J., delivered the opinion of the Court-BURNETT, J., concurring. This was a proceeding under the two hundred and twentyfourth section of the Practice Act, to recover from defendant,. the loss occasioned by his refusal to pay the amount of his bid at a sale under execution of certain property. There are numerous objections to the rejection of testimony: offered by defendant, which it will not be necessary to notice in detail, as the testimony offered was not pertinent to any material issue raised by the pleadings. The plaintiff alleged the sale of the property under execution, after lawful notice, the purchase by defendant, his refusal to pay Escolle v. Merle. the purchase-money, the re-sale of the property, for a less sum than that bid by defendant. Defendant admitted all the facts alleged, except that lawful notice of the sale was given, and set up fraud and collusion in the officer and purchaser at the second sale. No evidence was introduced to prove the allegation of fraud, the defendant seeming to rely on the insufficiency of the notice, and the failure of the officer to tender a certificate of sale. In the case of Smith v. Randall, (6 Cal., 47,) we decided that the neglect of the officer making a sale, to give the notice required by law, did not affect the validity of such sale, but that the party aggrieved had his remedy against the officer, for any injury sustained by reason of his neglect. The question raised by the pleadings, as to the sufficiency of the notice, was therefore immaterial, as it did not affect the validity of the sale, or the obligation of the defendant to pay the amount of his bid: the evidence on this point was properly rejected. The evidence offered, to show that at the time of the sale there were several executions against the property in the hands of the officer, one of which belonged to defendant, was properly rejected: first, because no such issue was raised by the pleadings; and second, the fact, if admissible and true, was no defence, as there was no offer to pay the sum bid, after deducting the amount due on defendant's execution. The objection, that there was no tender of a certificate of sale, is frivolous; the question has already been twice decided by this Court. (See Kohler v. Hays, 5 Cal., 66, and Williams v. Smith, 6 Cal., 91.) The appeal was without merit, and was evidently taken for delay. Judgment affirmed, with ten per cent. damages and costs. ESCOLLE AND WIFE v. MERLE. When an appeal is taken on questions of fact alone, the Appellate Court will not disturb the verdict, when there is any evidence to support it. APPEAL from the District Court of the Twelfth Judicial District. This action was brought to recover $870, wages due from appellant to plaintiff, Adelaide Elizabeth, before her marriage with plaintiff, Honoré Escolle. Defendant, in his answer, alleges, that he took Adelaide, when only twelve years of age, into his family, at the request of her Escolle r. Merle. mother, to raise; and that he supported, clothed, and protected her, until her marriage with plaintiff. On the trial, defendant tried to prove the facts set up in his answer, by the letters of plaintiff, Adelaide, but failed to prove her handwriting. The case was tried by a jury, and verdict and judgment for plaintiff. Defendant moved the Court for a new trial, and based his motion on two grounds: first, surprise upon the trial, which ordinary prudence could not guard against; second, insufficiency of the evidence to justify the verdict. The Court denied the motion, and the defendant appealed. Sidney V. Smith for Appellant. There was no evidence to justify the verdict. The evidence showed that the respondent's wife was taken by appellant to live with him out of charity. There was no evidence of agreement for wages. Smith's Master and Servant, 42; Alfred v. Fitzjames, 3 Espin., 3; Murdock v. Murdock, April T., 1857; Nicholson v. Patchin, 5 Cal., 474; Rivers v. Chapman, July T., 1855. The Court erred in refusing a new trial, on ground of surprise. 3 Graham on New Trials, 953; Taylor v. California Stage Co., July T., 1856. Isaac J. Wistar, for Respondents. No brief. TERRY, C. J., delivered the opinion of the Court-BURNETT, J., concurring. The appeal in this case is taken on questions of fact alone. We are of opinion that the evidence introduced by the plaintiff was sufficient, if uncontradicted, to support the verdict; and we have uniformly held that we will not interfere with the verdict of a jury, when there is any evidence to support it. The affidavit, and counter-affidavit, filed on motion for new trial, raised a question of fact as to whether the letters mentioned contained the admissions alleged by defendant and denied by plaintiff. This question was decided by the Judge below, and, we must presume, decided correctly. Judgment affirmed, with twenty per cent. damages, and costs. Marks v. Marsh. MARKS AND WIFE v. MARSH. In an action to foreclose a mortgage against a husband, where the defendant sets up the right of homestead, the Court should order the wife of defendant to be brought in as a party, as no decision upon the question of homestead can be conclusive, either upon the husband or the wife, unless both are parties. APPEAL from the District Court of the Twelfth Judicial District. This action was brought to foreclose a mortgage given by the defendant, August 29, 1854, to secure the payment of a promissory note of the same date, signed by defendant, and payable to N. J. Pflaum, or order, for $4,000. At the time of the execution of the note and mortgage, N. J. Pflaum was unmarried, but subsequently married A. Marks. At the date of the note and mortgage, the defendant was married, and lived on the mortgaged premises as his homestead. On the trial, the defendant proved, that at the date of the note and mortgage, he was married, and lived on the premises as his homestead. To the ruling of the Court, allowing this evidence, the plaintiff excepted; alleging, that the defendant, his wife not being a party, was estopped, by the execution of the mortgage, from setting up a claim of homestead to the premises. The plaintiff offered to prove, that at the time of the execution of the note and mortgage, that defendant represented himself to plaintiff as an unmarried man; which testimony was denied by the Court, and the plaintiff excepted. The Court gave judgment against defendant, for the amount specified in the note, and decreed that the premises described in the mortgage should be set apart as a homestead of defendant and his wife, and that said premises be discharged from the effect and lien of said mortgage. From which judgment, plaintiff appealed. F. M. Haight for Appellant. The wife not being a party to the suit, defendant was estopped by the execution of the mortgage to deny the operation thereof, or to claim a homestead. The husband cannot alone set a homestead. Revalk et al. v. Kraemer et al., July T., 1857; Dezell v. Odell, 3 Hill, 215; Petrie v. Fecter, 21 Wend., 172; Foster v. Newland, ib., 94; Watson's Ex. v. McLaren, 19 Wend., 557; Truscott v. Davis, 4 Barb., 495. The objection, of want of parties, was not taken at the trial, and, if it had been, the chancery practice is, to let the cause stand over, and amend. Gunnison, Parker & Cowles for Respondent. |