was held, that the contractor, F, was the agent or servant of the corporation, and that the city was not, in consequence, liable. 8 Cal. 493.

SEC. 9. As a general rule, no one can be held responsible as principal who has not the right to choose the agent from whose act the injury follows. 8 Cal. 493.

SEC. 10. The distinction as to the liability of a party, where he engages a contractor to erect structures on his own premises, and when he engages such contractor to erect them on the premises of another, does not rest on any just principle. If the enterprise undertaken be a lawful one, and be intrusted to competent and skillful architects, there is no just reason why liability should attach to the projector for injuries occurring in its progress, any more if such enterprise be executed on his own land than if executed elsewhere. If a man, wishing to build a house for his own use, upon his own premises, lets it out by contract to an architect, who is to provide all materials, and deliver it completed, upon no just principle should his liability be greater than if he undertook the building of a similar house upon his neighbor's property and let it out by contract in the same way. If the structure amount to a nuisance-if the injury complained of arises, not from its negligent or unskillful construction, but from the fact that it is constructed at all-then liability would attach, whether the erection be made under his own supervision and control or let out by contract to others. To illustrate this positionif the owner of land erect a dam, or permit a dam to be erected, across a stream running through his property, by which his neighbor's land is flooded, he is liable for damages, for the injury results, not from the manner in which the dam is erected, but from the fact that it is erected at all. He has used, or permitted his property to be used, to the injury of others, and must be responsible. But if no injury follows from the dam itself, and its construction is let out by contract, there is no reason why the owner should be responsible for injuries arising from the negligence or unskillfulness of the contractors during the progress of the work, from the fact that it is a structure upon his own land, if such liability would not attach to him if the structure were on the land of another. 8 Cal. 496, 497.

SEC. 11. Parties for whom work contracted for is undertaken must see to it before acceptance that, the work, as to strength and durability and all other particulars necessary to the safety of the property and persons of the third parties, is subjected to proper tests and that it is sufficient. By acceptance and subsequent use, the owners assume to the world the responsibility of its sufficiency, and to third parties the liability of the contractors has ceased and their own commenced. 8 Cal. 498.

SEC. 12. Where parties employed architects, reputed to be skilled in their profession, to construct at a designated point on a creek, a dam or embankment, of certain specified dimensions, capable of resisting all floods and freshets of the stream for a period of two years, and to deliver it completed by a given time, and before the embankment was completed it was broken by a sudden freshet, and a large body of water, confined by it, rushed down the channel of the stream, carrying away and destroying in its course the store of plaintiffs, with their stock of merchandise. The employers exercised no supervision, gave no directions, furnished no materials, nor had they accepted the work. Plaintiffs having brought suit to recover the damage sustained by them against the employers and contractors:" Held that the latter alone were liable. 8 Cal. 469.

SEC. 13. A county is not liable for damages for injuries sustained by individuals, caused by a road overseer placing the abutment of a bridge in the bed of a stream in such a manner as to cause the waters of the stream to flow out of their usual channel and wash away land or the improvements thereon. The relation between a county and its road overseer bears no resemblance to that of master and servant nor to that of employer and employé. If an abutment to a bridge is wrongfully built in the channel of a stream the remedy, if any exists, is against him by whom the injury was committed. 25 Cal. 313.

SEC. 14. Intoxication of the plaintiff is no defense to an action for damages for injuries caused by falling through an uncovered hole in the sidewalk of a public street. If the defendants were at fault in leaving an uncovered hole in the sidewalk of a public street, the intoxication of the

plaintiff cannot excuse such gross negligence. A drunken man is as much entitled to a safe street as a sober one and much more in need of it. 5 Cal. 461.

SEC. 15. Vindictive damages may be given in a civil action for a personal injury though the act be punishable by a criminal prosecution. 2 Cal. 54.

SEC. 16. In an action on the case where the injury of which plaintiff complains has resulted from the negligence of both parties without any intentional wrong on the part of the defendants, the action cannot be maintained. 1 Cal. 367.

CHAPTER LVII.

INSOLVENT.

SECTION 1. Every insolvent debtor may be discharged from his debts as hereinafter provided, upon executing an assignment of all his property, real, personal or mixed, for the benefit of all his creditors, and upon compliance with the several provisions of this act: provided, said assignment be made bona fide and without fraud. The district court only shall have original jurisdiction in the subject-matter herein contained.* Gen. Laws, 3810.

SEC. 2. The county court shall have original civil jurisdiction: 1st. Of actions of forcible entry and detainer. 2d. Of proceedings in cases of insolvency. 3d. Of actions to prevent or abate a nuisance. 4th. Of all such special cases and proceedings as are not otherwise provided for. Gen. Laws, 1262.

SEC. 3. A discharge under the insolvent act, to be a bar to actions in indebtedness mentioned in the petitioner's schedule, must be in strict conformity with the various provisions of the law, otherwise it is void. 8 Cal. 44.

SEC. 4. A joint application of two partners for the benefit of the insolvent act is void, there being no authority for such applications in the act. A schedule attached to such a petition showing a surrender of all the joint property of

* The county courts have now original jurisdiction in insolvent cases.

the partners is not a compliance with the act which requires a surrender of all the property of the insolvent. 8 Cal. 44.

SEC. 5. An assignment of property to a creditor, to be sold at public auction and the proceeds to be applied: 1st, in payment of the claim of such creditor; and 2d, the residue to be distributed pro rata among the creditors of such debtor, is not in contravention of the statute which prohibits assignments by insolvent debtors for the benefit of creditors. If such creditor were insolvent at the time of the assignment, the party contesting the validity of the assignment should affirmatively show such fact. The insolvency could not be presumed from the language of the assignment. 12 Cal. 245.

SEC. 6. There is no rule of law which prevents a debtor, in insolvent circumstances, from the application of his property to the payment of one debt rather than another. 10 Cal. 494.

SEC. 7. When issuing the order for the meeting of creditors, the judge shall order that all proceedings against the debtor be stayed: provided, however, that the said stay of proceedings shall not prevent the judge who shall have granted it from appointing a receiver to take possession of all property of the debtor for the benefit of all his creditors, if one or more of his creditors, his agent or attorney in fact, shall apply for such appointment and swear that he has reason to believe, and does believe, that the debtor may avail himself of the stay of proceedings and keep his property from his creditors, if no cause sufficient, in the judgment of the court, shall have been shown why the debtor should not have the benefit of this act, and shall produce satisfactory proof of the facts on which his affidavit is founded. Gen. Laws, 3818.

SEC. 8. After a petition and schedule in insolvency are filed, the control and dominion of the insolvent's property are transferred to the court, and a creditor cannot, after such filing, certainly not after the order staying proceedings, seize the property. The order operates by its own force from its date, and no notice need be given of it to a sheriff with a writ against the insolvent. 14 Cab. 47.

SEC. 9. If the accusation of fraud brought against the debtor is declared to be ill-founded or if there be no opposition to the surrender of his property, and provided said surrender has been made according to the provisions of this act, said debtor shall be released and fully discharged from any and all debts until then contracted and contracted after the passage of this act and from every judicial proceeding relative to the same: provided, always, that the release and discharge authorized by this section shall not apply to debts and liabilities not mentioned and set forth in the schedule, unless the insolvent shall declare in his petition that it is his desire to be discharged from all his debts and liabilities, and that he has described them according to the best of his knowledge and recollection; in which case the discharge and release authorized by this section shall embrace all his debts and liabilities, notwithstanding they may have been imperfectly described or not described at all. Gen. Laws, 3833.

SEC. 10. An insolvent's discharge, under the statute, must be by the judgment of the court and in the same county in which the proceeding was instituted. Therefore, a discharge made at chambers by the district judge in the same district but in another county from that in which the proceeding was instituted, is no defense to an action against the insolvent. 6 Cal. 288.

SEC. 11. Whenever an insolvent debtor has had the benefit of this act, if thereafter at any time it is made to appear that he has concealed any part of his property or estate, or given a false schedule or committed any fraud under the provisions of this act, it is hereby declared that he has forfeited all benefit and advantage which he would otherwise have had by the virtue of this act, and he cannot avail himself of any of its provisions in bar to any claim that may be instituted against him. Gen. Laws, 3841.

SEC. 12. A decree discharging an insolvent debtor from his debts will not afford him any protection in bar of an action brought against him for debts contracted prior to such decree, if it is made to appear that he has concealed any part of his property, or given a false schedule or committed any fraud in procuring such discharge. 26 Cal. 279.