Opinion
Appeal from the Fourth District.
Suit for two hundred and twenty-four dollars, for services as Gauger under the Act of May 3d, 1852--the complaint being a single count in assumpsit. Answer, a general denial.
The facts as agreed upon are, that plaintiff was the State Gauger under the act named; that during the year 1859 defendant received from France seven hundred and fifty casks of claret wine, containing in the aggregate 45,000 gallons; that upon the arrival of said casks of wine in San Francisco, plaintiff, as Gauger, gauged and inspected them, and marked thereon the quantity and quality of the same, charging defendant for such service one-half of one per cent. per gallon; that when plaintiff so marked said casks they had just been landed from the ship, were still in the original form and packages, and had not become incorporated and mixed with the rest of the property of the State; that it is the custom of merchants to sell the wine in said casks by the cask without reference to the number of gallons contained in the casks, and without inspection thereof; that plaintiff's services at that rate amounts to two hundred and twenty-five dollars; and that he inspected said wines by virtue of his office, and not by request of defendant.
Upon these facts, the Court below held that plaintiff was not entitled to recover, and entered judgment for defendant. Plaintiff appeals.
COUNSEL:
Geo. F. & W. H. Sharp, for Appellant, cited People v. Naglee (1 Cal. 232); People v. Coleman (4 Id. 46); Smith v. Judge of Twelfth District (17 Id. 547); Moore v. Patch (12 Id. 165); McCulloch v. State of Maryland (4 Wheat. 316); 12 Id. 419, 657; 2 Pet. 449; 4 Id. 514; 6 Id. 515, 691; 14 Id. 526; 16 Id. 435; 3 How. 151; 5 Id. 504; 6 Id. 507; 7 Id. 283; 16 Id. 369; Smith's Com. on Const. 331, sec. 201 et seq.
Whitcomb, Pringle & Felton, for Respondent, cited Const. of Cal. art. II, sec. 13; Id. art. I, sec. 11; Const. of U.S. art. I, sec. 8; Brown v. State of Maryland (12 Wheat. 419); 22 How. U.S. 241; Almy v. State of California (24 Id. 169).
JUDGES: Baldwin, J. delivered the opinion of the Court. Field, C. J. and Cope, J. concurring.
OPINION
BALDWIN, Judge
The appeal is dismissed upon the authority of Hastings v. Halleck (10 Cal. 31) and Elliott v. Chapman, (15 Id. 383) without prejudice to a second appeal. If a second appeal be taken, the appellant can use the transcript on file with the same effect as if transmitted with it.