Argument for Appellants.

property had been adjudicated by a Court of competent jurisdiction.

The Court below sustained the demurrer, and plaintiffs appealed.

The other facts are stated in the opinion of the Court.

Nathaniel Bennett, for Appellants.

The complaint is framed with a double aspect; one to procure a new trial in the old case of Wenborn v. Boston, and the other, in case it should be deemed impracticable to grant the relief of a new trial, to procure the determination of the merits of the controversy between the present parties in the suit commenced by this bill.

A motion for a new trial was made and granted on the payment of costs, the costs were tendered, but Boston and wife have never been able to procure a new trial. That a bill in equity will lie for a new trial as well since as before the code, seems to be conceded in Mulford v. Cohn, 18 Cal. 42. Our action is to obtain the new trial itself, after the order granting the new trial has already been made in the proper suit. In such a suit as ours, it would be an absurdity to set forth the same facts which would be necessary in such a complaint as that spoken of by Mr. Justice Baldwin in Mulford v. Cohn. That the Bostons are entitled to a new trial is determined by the order granting such new trial. That they have not been able to obtain it-that they have been guilty of no laches and that they exhausted every imaginable remedy, but the present, in seeking such new trial, are all facts which are manifest on the face of the complaint. But this complaint is easily sustainable as a suit for independent relief, wholly irrespective of the suit of Wenborn v. Boston and Wife. Here Mrs. Boston is to be taken as the owner in her own right by way of gift of the land. If she is not barred by the former judgment, then she is entitled to maintain this suit. One object of the suit is to obtain a decree setting aside that pretended power of attorney and deed under it. That gives the suit an equitable character; and the Court having once

Argument for Respondents,

acquired an equitable jurisdiction over the subject matter, will retain jurisdiction for all purposes, and will do complete justice between the parties, by restoring the possession of the premises to the real owner, as well as by setting aside the deed and power of attorney.

Daniel Rogers, for Respondents.

Although the character of the bill filed in this cause is difficult to define, yet it may be and can only be called a "bill of review." Its object seems to be to obtain a new trial of an action at law more than twelve years after the entry of the judgment. This bill, tested by the ordinances of Chancellor Bacon, is substantially defective, because it neither alleges error of law apparent in the original proceedings, nor is it based upon new matter which has arisen or come to the knowledge of the party since the entry of the original judgment. The "ordinances" still govern bills of review. (Massic's Heirs v. Graham's Administrator et al., 3 McLean, 41.)

The bill is also defective because it does not allege that the appellants here have complied with the order of the Court in the original proceedings, namely the payment of costs, the condition upon which a new trial was granted by the Court below. The only allegation is "that the plaintiffs herein have ever since been, and still are, ready and willing to pay the said costs," etc. An allegation of readiness to pay is insufficient. (Wiser v. Blakely, 2 John. Ch. 491.)

The principle is too well settled to require authority "that a party will not be aided after a trial at law unless he can impeach the justice of the verdict by facts, or on grounds of which he could not have availed himself, or was prevented from doing it by fraud or accident, or the act of the opposite party unmixed with negligence or fault on his part." "This point," says Chancellor Kent, (3 John. Ch. 356,) "has been so often ruled that it cannot be necessary or expedient to discuss it again."

In the suit of Gregory v. Haynes, 13 Cal. 592, the Court

pass upon the effect of this judgment upon the rights of Boston and wife. The Court say that the judgment was conclusive as to Boston and wife. The bill shows the fact that a motion for a new trial made by these appellants in the Court below was granted upon condition of the payment of costs; they had then a sufficient, full and complete remedy. It also appears that the condition was not complied with, for upon motion of the defendants- these appellants-to put the cause on the trial calendar, the Court denied the motion, and adjudicated that the former order-granting a motion for a new trial—had not taken effect. The effect of this order has been reviewed by this Court in the case of Gregory v. Haynes, 21 Cal. 447-8. This order was made June 20th, 1855, and is the last order made in the case. The appellants had their right of appeal, but they declined to avail themselves of it, and now ask this Court to grant them a new trial as a reward for their own negligence. This Court has passed upon the effect of the original judgment in the two cases above mentioned, and also in the case of Haynes v. Calderwood, 23 Cal. 409.

By the Court, SANDERSON, J.:

We are unable to find anything in the complaint which entitles the plaintiff to a new trial in the case of Wenborn v. Boston and Wife. On the contrary, the complaint is entirely silent as to what transpired at the trial of that case except that the trial took place in their absence. Why they were absent is not stated. It is not stated that the trial was brought on in their absence by the fraud of the plaintiff. In short, none of the grounds upon which equity will interfere and grant a new trial are stated or attempted to be stated. (Mulford v. Cohn, 18 Cal. 46; Mastick v. Thorp, 29 Cal. 447.) On the contrary, the complaint would seem to be felo de se on the question of new trial. It is alleged that a motion for a new trial was made and granted upon the condition that the defendants pay the plaintiffs' costs up to that date. True, it

is further alleged that the Court thereafter refused to proceed with the new trial, notwithstanding the defendants had tendered the costs, and directed that the judgment theretofore entered be and remain the final judgment of the Court; so that, in point of fact, no new trial was ever had. But how or why this was done is shown, and in the doing the defendants (plaintiffs in this case) were not made the victims of any fraud, mistake, or accident. On the contrary, it is alleged that they made a motion to put the case on the calendar for a new trial, and that their motion was resisted upon the ground that the costs had not been paid, and that therefore the condition upon which the defendants were to have a new trial had not been performed by them. So the very question which is now made as to the payment or tender of the costs was then made, and must have been then decided against the defendants, (now plaintiffs,) for their motion was denied and the previous judgment ordered to stand as the final judgment in the case. It is not pretended, that in the determination of this motion even, there was anything done or omitted on account of which a Court of equity would interfere. Nor is it shown why, if there was error, the defendants did not have a complete remedy by appeal or mandamus. On the contrary, the complaint shows that they did have a remedy both by appeal and mandamus, but that they committed a blunder in taking the former and were defeated in the latter. In short, the complaint gives a detailed account or history of the case, from which we can readily see that the present plaintiffs have lost all their rights, if they ever had any, through their own blunders and laches; but it utterly fails to show a single fact or circumstance of fraud, mistake, surprise, excusable neglect, or anything else on account of which a Court of equity can now relieve them from the legal effect, whatever it may be, of the judgment which was rendered in the case. So far as a new trial is concerned, the complaint seems to proceed upon the theory that the plaintiffs are entitled to it because it was granted to them in the original case, and yet they did not get it. Such a showing is not enough. They must show a case for a new trial by a statement of the facts,

and in addition they must show that they failed to get it through no fault of theirs.

Thorp, supra.)

(Mulford v Cohn; Mastick v.

So far as this case can be regarded as an action to set aside and cancel the power of attorney from the plaintiffs to Strathearn, and the deed from him to Wenborn, and to restore the plaintiffs to the possession of the land, the complaint is also felo de se, for it is conclusively answered by the record and judgment in the action of Wenborn against the plaintiffs to quiet the title which is set out and referred to. By referring to the answer of Boston and wife in that case, it will be found to contain, substantially, the same allegations upon the question of the validity of the power of attorney and deed, and the condition of the title, which are found in the present complaint. Such being the case, the judgment in that action is conclusive upon the same matters in this.

Judgment affirmed.

JAMES W. MANDEVILLE v. MARIA S. SOLOMON.

IMPLIED TRUST.-An implied trust cannot exist in respect to a claim of title to land, which claim is without foundation. IMPLIED TRUST AS BETWEEN COTENANTS. If one of two tenants in common, who have the title to land in fee, buys in an outstanding claim of title which is void, without an agreement to purchase for the use of his cotenant, an implied trust cannot be raised in favor of his cotenant as to the void claim thus purchased.

APPEAL from the District Court, Second Judicial District, Butte County.

Plaintiff recovered judgment in the Court below, and the defendant, Maria S. Solomon, appealed.

The other facts are stated in the opinion of the Court.

R. R. Provines, for Appellant,

Had there been a previous agreement between the plaintiff and Solomon that this title should be purchased for their