WOOD V. CURREY, 49 Cal. 359

By the Court, Wallace, C. J.: 1. The objection that the remedy of the plaintiff was by motion in the original cause, and not by bill in equity, even if well founded in practice (a question upon which we express no opinion), will not be considered. The defendant made no motion in the Court below to dismiss the bill, on that or any other ground, but answered to the merits. The cause was then referred, by consent of parties, to a referee, who was authorized to hear evidence and report a judgment to the Court.

Under these circumstances, the objection upon the point of procedure, made for the first time before the referee, came too late. 2. The bill of exceptions contains many assignments of supposed error committed by the referee in admitting testimony upon the part of the plaintiff, but we discover none which injuriously affected the substantial rights of the defendant, or which would justify us in directing a new trial of the case. 3. Upon the material issues between the parties, the evidence was sharply conflicting.

The principal point of controversy was as to whether the settlement had between Currey and Gibbons—a son-in-law of Wood—was intended by the parties to include a satisfaction of the judgment of Currey against Wood; and the evidence upon this point, as to details, was contradictory. It is apparent, however, that the defendant has, in point of fact, collected and received the full amount of his judgment against the plaintiff Wood, and more than that amount.

Under such circumstances, his duty to enter satisfaction of the judgment is clear, unless it were distinctly made to appear that by express agreement of parties he was at liberty to keep the judgment on foot, even after receiving the whole of the moneys due thereon. Under such circumstances the burden of establishing such an agreement was, of course, cast upon the defendant.

The referee found for the plaintiff; the Court below, upon motion made for a new trial, was satisfied with the findings, and refused to set them aside, and we certainly see nothing either in the evidence or the circumstances pf the case which would warrant us in overruling both the referee and the Court below, upon the questions of fact involved. Judgment and order affirmed. Remittitur forthwith. Mr, Justice McKinstry did not express an opinion.