complaint in the suit, the undertaking for the injunction, the decree, the execution issued upon the decree, and the sheriff's return thereon. Judgment was rendered for plaintiff in the sum of $1,000. Defendants appeal.

Thomas Brown (Carson & Brown, on the brief), for appellants. A. O. Condit and Geo. G. Bingham, for respondent.

days before the date of the contract the deed had been executed by Rebecca A. Moore, conveying the land to G. J. Moore. Whether it had been delivered or not on March 19, 1906, the date of the contract, is not shown. It was not recorded until June 2, 1909, but we deem it immaterial which of them owned the lanu.

Rebecca A. Moore, G. J. Moore, and C. E. Nash were all required to sign the contract, and were bound by it to the extent that their interest in the hops, at least, and the lease, under which Nash was raising the hops, was made by Rebecca A. Moore, and if, at the time of the execution of the contract, she had conveyed the land to G. J. Moore, it has no bearing upon the contract, as he is also a party to it; and at the time of the issuance of the injunction he was the owner of the land and the hops, and was the real party in interest, and is not estopped from so alleging and proving. Defendants also urge that, by plaintiff's answer in the equity suit, he disclaims any interest in the hops, and that he should now be estopped from contradicting that fact. As we understand the answer, the allegations therein, as to the ownership of the hops, relate to the condition at the time the contract was signed, when Nash was the owner of the hops and not at the time the answer was filed, and therefore was not a disclaimer of the ownership of the hops at that time. On the contrary, by the deed of the land to him, and by the assignment of the lease to him, he became the only party in interest to the hops at the time the injunction was issued, and is not estopped to so allege.

EAKIN, C. J. (after stating the facts as above). [1, 2] It is first contended by defendants that there is a variance between the undertaking offered in evidence and the allegations of the complaint, to the effect that the obligors undertake to pay this plaintiff all costs, damages, etc., and that by its terms the undertaking is made payable to defendants in the suit, namely, G. J. Moore, Rebecca A. Moore, and C. E. Nash. The undertaking is set out as an exhibit and made a part of the complaint. We do not deem this a variance, in view of the fact that the undertaking creates a liability in favor of any one of the defendants in the suit. The remedy was not confined to a liability running to all the defendants jointly. Subsequent to the execution of the lease, plaintiff became the owner of the land, thus succeeding to the interests of Rebecca A. Moore, and on September 10, 1906, prior to the commencement of the suit, Nash assigned the lease to plaintiff, whereby he became the sole owner of the hops, and, by the authority of Ruble v. Coyote G. & S. M. Co., 10 Or. 39, and section 37, L. O. L., the real party in interest may sue alone on the undertaking. To the same effect [4] (3) Defendants contend that the amount is Summers v. Farish, 10 Cal. 347, 351, where of plaintiff's recovery should be the amount it is held that, "though given to all the obli- of the depreciation in the value of the gors by name, and using no words directly ex- hops between September 29, 1906, when the pressing a several obligation, yet necessarily injunction was issued, and December 21, creates a several liability, the design of it 1906, when the injunction was made permabeing to secure each and all of the obligees nent; and that the court erred in instructing from damage or injury; * * * (otherwise) the jury that, "You are entitled to consider it would operate very harshly, and, in many depreciation of the value of hops, not only cases, amount to no security at all, if recov- after the decision in the circuit court, but eries could only be had for joint injury." until it was finally decided in the Supreme Our statute, section 37, L. O. L., has done Court, and the mandate entered in the ciraway with the necessity of following the cuit court." Defendants' contention would old form of action, which requires the acseem to be supported to some extent by Webtion to be in the name of the obligees in the ber v. Wilcox, 45 Cal. 301; Lambert v. Hasundertaking, even though they be naked trus kell, 80 Cal. 611, 22 Pac. 327; and Houghton tees. See, to the same effect, Browner v. Dav. Meyer, 208 U. S. 149, 28 Sup. Ct. 234, 52 vis, 15 Cal. 9; Fowler v. Frisbie, 37 Cal. 34; L. Ed. 432, which is the case of Cortelyou Wason v. Frank, 7 Colo. App. 541, 44 Pac. v. Houghton, 27 App. D. C. 188, removed to 378. Therefore, where the undertaking was the Supreme Court by writ of error. The set out hæc verba by exhibit in the com- condition of the undertaking in the Caliplaint, it was not fatal to the pleading to al-fornia case (Webber v. Wilcox) is that the lege that the obligors undertook to pay plaintiff his costs and damages, as the complaint alleged that he is the real party in interest.

[3] (2) It is contended by defendants that, by the contract for the sale of the hops, plaintiff solemnly states that Rebecca A. Moore was the owner of the land upon which the hops were to be grown. It appears that two

makers were to pay "such damages *
as such parties may sustain by reason of
said injunction. if the said court finally de-
cide that the said plaintiffs were not entitled
thereto." Thus the liability is made to de-
pend upon the ruling of the district court,
and this is according to the requirements
of the statute. In the case of Houghton v.
Meyer, the United States court distinguishes

between an interlocutory injunction and a the undertaking created a liability for costs temporary restraining order, under section | incurred after the temporary injunction was 718, U. S. Rev. St. (U. S. Comp. St. 1901, p. 580), providing for a restraining order, until the hearing of the motion for an interlocutory injunction. In that case it is held that the injunction was given to secure the defendants against the loss because of a temporary restraint, but the court say: "As we have seen, an interlocutory injunction is usually granted until the coming in of the answer or until the final hearing of the cause, and stands as a binding restraint until rescinded by the further action of the court." See, also, High on Inj. § 3.

court, and the whole loss was suffered be
cause of the temporary injunction, but for
which the permanent injunction would have
been prevented or rendered harmless.
was not error to authorize the jury to find
for plaintiff for the whole loss.

It

made perpetual by the circuit court, namely, the undertaking must be "to the effect that he will pay all costs and disbursements that may be decreed to the defendant, and such damages, not exceeding an amount therein specified, as he may sustain by reason of the injunction, if the same be wrongful or without sufficient cause." Section 417, L. O. L. The present case is a good illustration of the fact that the damage resulting from the injunction is not alone that suffered prior to the final decree of the circuit court, but it is continuing. At the time the In Dodge v. Cohen, 14 App. D. C. 582, it writ was issued, the hops were worth 17 is held, that the injunction remained in cents per pound. Hops are a commodity the force after the final hearing in the circuit price of which is liable to sudden fluctuations, court, and that, as long as it remained in and there was in this case a great depreciaoperation, the undertaking remained in force tion in price immediately after September as a means of indemnity. Some of the text- 29, 1906. By the temporary injunction, books seem to have followed the California this plaintiff was held until his hands were decision, but fail to note the language of tied by the permanent injunction. He was the undertaking, limiting the liability to the prevented from selling at the top price, time of the final order of the district court. which he says he would have done, or afterHowever, in a very recent case (Columbia ward until the injunction was made permaAmusement Company v. Pine Beach Inv. nent. The price may have continued to deCorp., 109 Va. 325, 63 S. E. 1002), the ques-cline after the final decree in the circuit tion here involved was directly before the court, in which the counsel for plaintiff in error made the same contentions as are made by the defendants here. The court say: "This seems to be a very narrow interpretation of the injunction bond. By its terms the obligors therein became responsible to pay all such costs as may be awarded against the said plaintiff, and all such damages as shall be incurred in case the said injunction be dissolved. It specifically embraces all costs and all damages. The circuit court had required, as a condition to granting the relief which the Columbia Amusement Company prayed for, that it should execute a bond; upon the faith of that bond the injunction was granted, and by the decree of the circuit court the injunction so granted was perpetuated and remained in force until dissolved by the decree of this court. Whatever costs and damages were incurred and suffered from the time the injunction was granted until its dissolution seem to be plainly within the terms of the injunction bond, and any other interpretation or construction would fall short of securing to a party who had been hindered and restrained by injunction at the suit of his adversary compensation adequate to the injury suffered. We are of the opinion that this assignment of error cannot be maintained." That case is reported in 16 Am. & Eng. Ann. Cas. 1120, 1122, in which the note only cites the California cases and Houghton v. Meyer, supra, as holding to the contrary, and Officer v. Morrison, 54 Or. 459, 102 Pac. 792, as supporting the main case. In the latter case the only controversy was as to the recovery of all the costs in the case; but it was held that, by the terms of the statute,

[5] (4) It was also assigned as error that the court authorized the jury to consider and allow plaintiff the amount of the depreciation in value of the hops between the time the injunction was issued and the time the sait was finally dismissed, as there was no evidence showing the value of the hops on the date the suit was dismissed (March 19, 1908); the instruction not being restricted to the issues made in the pleading. The hops were sold on the 16th of January, 1907, and plaintiff alleges that he received $1,064 on May 23, 1908, from the sale of the hops, and asks judgment for the difference between their value on the 29th of September, 1906, and the amount he so received. Defendants are not prejudiced by this instruction. They could not return the hops to plaintiff on March 17, 1908, or at any time after January 16, 1907. Therefore, if the hops were worth more on March 17, 1908, than on January 16, 1907, defendants can claim no advantage of it, as the hops had been converted by them. If the value of the hops was less on March 17, 1908, than on January 16, 1907, plaintiff was not entitled to prove that fact, because he had already received the price bid at the sheriff's sale, representing a greater value. In fact, the proceeds of the sale ($1,064) were the value of the hops at the time the suit was dismissed, as the hops had been disposed of, and the money took their place at that time. If there was any error in the instruction

complained of, it was in defendants' favor, office. He was accused by the grand jury of the and harmless.

county of San Joaquin of willful misconduct in

Code. He has asked for a writ of prohibition restraining the superior court from proceeding to try said accusation. The questions presented in his behalf are the same this day disposed of in No. 615, in the case of John H. Craig v. Superior Court of said county.2 Upon the authority of the decision in that case, the writ is denied.

We concur: HART, J.; BURNETT, J.

[6] (5) Error is also assigned in the admis-office under section 758 et seq. of the Penal sion in evidence of the sheriff's return upon the execution, which showed the price obtained for the hops, and intended as evidence of their value at that time. Although the courts are not uniform in their holding upon this question, we think the weight of authority is in favor of the admission in evidence of the price obtained at an execution sale of personal property, as constituting some evidence of the value of the property at the time of the sale, if it is not made to appear that the sale was made in an unusual way or under extraordinary circumstances. This is the holding in New York. Montignani v. Crandall Co., 34 App. Div. 228, 54 N. Y. Supp. 517; 13 Ency. of Ev. 541; 2 Sedg. on Damages (8th Ed.) § 495; 3 Sedg. on D. § 1298; McCown v. Kitchen (Tex. Civ. App., not officially reported) 52 S. W. 801; Hildreth v. Fitts, 53 Vt. 684. Therefore it was not error to admit in evidence the sheriff's return on the execution. The judgment is affirmed.

MEMORANDUM DECISIONS

BRIARE v. SUPERIOR COURT OF SAN JOAQUIN COUNTY et al. (Cr. 617.) (District Court of Appeal, Third District, California. April 28, 1909.) Petition for prohibition by Frank B. Briare against the Superior Court of San Joaquin County and another. Writ denied. Ashley & Neumiller, for appellant. Geo. F. McNoble, Dist. Atty., for respondents.

Court of Appeal, Second District, California.
Ex parte STEVENS.
(District
(Cr. 209.)
June 14, 1911.) Application of C. F. Stevens
for a writ of habeas corpus. Denied. Tom L.
Johnston, for petitioner.

decisions in People v. Lee Look, 143 Cal. 218,
PER CURIAM. Upon the authority of the
76 Pac. 1028, and People v. Warner, 147 Cal.
548, 82 Pac. 196; also in consideration of the
provisions of section 103, Code Civ. Proc., sec-
tions 808, 811 et seq. Pen. Code, the writ is de-

nied.

TERRITORY ex rel. ARAGON v. BOARD OF COM'RS OF LINCOLN COUNTY. (Supreme Court of New Mexico. Sept. 1, 1911.) Appeal from District Court, Lincoln County; before Justice Edward R. Wright. Petition for quo warranto by the Territory, on the relation of J. J. Aragon, against the Board of County Commissioners of Lincoln County. From a judgment dismissing the petition, relator appeals. Affirmed. Frank W. Clancy, Atty. Gen. (T. B. Catron, of counsel), for appellant. John Y. Hewitt and Andrew H. Hudspeth, for appellee.

PARKER, J. This is an appeal from a judgment of the district court of the Sixth judicial district, sitting in and for the county of Lincoln, dismissing the petition for a writ of quo warranto secured upon the relation of appellant. The case involves no point which has not court in the case of Gray et al. v. Taylor et al., been heretofore thoroughly considered by this 15 N. M. 742, 113 Pac. 588, and the judgment of the lower court upon the authority of that case is affirmed; and it is so ordered.

POPE, C. J., and McFIE, ABBOTT, MECHEM, and ROBERTS, JJ., concur. WRIGHT, J., having heard the case below, did not participate in this decision.

CHIPMAN, C. J. Petitioner, a police officer of the city of Stockton, was accused by the grand jury of the county of San Joaquin, under section 758 et seq. of the Penal Code of willful misconduct in office. He applies for a writ of prohibition restraining the superior court of said county from trying said accusation. It was stipulated at the argument by counsel for the ALEXANDER v. STATE. (Criminal Court respective parties that the questions here involv- of Appeals of Oklahoma. Sept. 23, 1911.) Aped are the same as were involved in No. 615, peal from Garfield County Court; James B. Craig v. Superior Court, this day decided.1 Up-Cullison, Judge. Bert Alexander was convicted on the authority of Craig v. Superior Court, the of violating the prohibitory law, and appeals. writ is denied. Affirmed. H. J. Sturgis, for plaintiff in error. Smith C. Matson, Asst. Atty. Gen., for the State.

We concur: HART, J.; BURNETT, J.

PER CURIAM. Plaintiff in error was convicted in the county court of Garfield county on the 18th day of February, 1910, on a charge of

CARROLL v. SUPERIOR COURT OF SAN JOAQUIN COUNTY et al. (Cr. 616.) (Dis-selling intoxicating liquor, and on the 26th day trict Court of Appeal, Third District, California. April 28, 1909.) Petition for prohibition by Michael Carroll against the Superior Court of San Joaquin County and another. Writ denied. Jacobs & Flack, for appellant. Geo. F. McNoble, Dist. Atty., for respondents.

CHIPMAN, C. J. Petitioner is a policeman of the city of Stockton duly appointed to that 1 The case of Craig v. Superior Court was transferred to the Supreme Court after the handing down of the decision above mentioned; the effect of the transfer being to nullify such decision. Subsequently, however, the Supreme Court rendered a decision to the same effect, which can be found in 157 Cal. 481, 108 Pac. 310.

of February thereafter was sentenced by the court to pay a fine of $100 and be confined in the county jail 30 days. No brief has been filed in this court on behalf of the plaintiff in error, and no appearance made for oral argument. The transcript has been carefully examined, and the judgment is affirmed under rule 4 (101 Pac. vii) of this court.

* The case of Craig v. Superior Court was transferred to the Supreme Court after the handing down of the decision above mentioned; the effect of the transfer being to nullify such decision. Subsequently, however, the Supreme Court rendered a decision to the same effect, which is reported in 157 Cal. 481, 108 Pac. 310.

GOODPASTER v. STATE. (Criminal Court of Appeals of Oklahoma. Sept. 23, 1911.) Appeal from Craig County Court; Theo. D. B. Frear, Judge. Roy Goodpaster was convicted of violating the prohibitory law, and appeal. Affirmed. James S. Davenport, for plaintiff in error. Smith C. Matson, Asst. Atty. Gen., for the State.

PER CURIAM. Plaintiff in error was convicted in the county court of Craig county on a charge of unlawfully selling intoxicating liquor, and on the 21st day of February, 1910, prisoned in the county jail for 30 days. The was sentenced to pay a fine of $50 and be imappeal was filed in this court on the 21st day of April, 1910. No brief has been filed by the plaintiff in error, and no appearance made for