The defendant moved, on the complaint alone, to dissolve the injunction, upon "the ground that the complaint does not state facts sufficient to warrant the issuance or continuance of an injunction." This motion was denied, and the appeal is from the order denying it.

I think the motion to dissolve the injunction should have been granted.

It appears by the complaint that the building complained of as being an obstruction to plaintiff's use of the road had been erected before the commencement of the action, and it is not alleged that defendant has threatened to do any other or further act tending to obstruct the road, or otherwise to injure the plaintiff. There was, therefore, no foundation in the complaint for a merely preventive injunction; and mandatory preliminary injunctions are seldom granted, and only in a peculiar class of extreme cases, of which this case is not one. (High on Injunctions, secs. 2, 4; Murdock's Case, 2 Bland, 461; 20 Am. Dec. 381, and notes citing the principal English and American cases.)

To say the least, there is nothing in our Code of Civil Procedure more favorable to mandatory injunctions than is to be found in the general current of English and American authority. Indeed, our code definition of an injunction (Code Civ. Proc., sec. 525) entirely omits the mandatory ingredient found in nearly all the definitions. of the text-writers. (High on Injunctions, sec. 1, and note.) But, without regard to statutory provisions, it seems to be well settled that a very strong and urgent case is required to justify a mandatory preliminary injunction. A clear case of prospective injury for which the plaintiff will have no adequate remedy at law is indispensable.

In this case it is only alleged that plaintiff will be damaged in the sum of five thousand dollars; and there is no allegation that the defendant is not responsible for that sum, nor that there will be any extraordinary im

pediment in the way of recovering that sum by action at law. (Tomlinson v. Rubio, 16 Cal. 204; Mechanic's Foundry v. Ryall, 62 Cal. 418.) Besides, it has been decided by this court that a preliminary injunction "will not be retained where it appears (by the answer, uncontradicted by affidavit) that the acts, the performance of which is sought to be restrained, had been performed before the order for the injunction was made or served." (Delger v. Johnson, 44 Cal. 182.) A fortiori, where the fact of performance appears in the complaint, as in this

case.

I think the order denying the motion to dissolve the injunction should be reversed, with direction to grant the motion.

HAYNE, C., and GIBSON, C., concurred.

The COURT.-For the reasons given in the foregoing opinion, the order denying the motion to dissolve the injunction is reversed, with direction to grant the motion.

[No. 12335. Department One.-November 4, 1889.]

COTTON W. BEAN, RESPONDENT, v. A. M. LORYEA, APPELLANT.

ACTION UPON FOREIGN JUDGMENT EVIDENCE OF AUTHENTICATION.The clerk's certificate attached to the copy of the record of a judg ment rendered in the supreme court of the state of New York is sufficient, under section 1905 of the Code of Civil Procedure, if the seal of the court is annexed, and the "presiding justice" of the court attaches his certificate that the attestation is in due form. Such certificate is not objectionable for not showing who was the legal keeper of the records, nor because the certificate of attestation is not signed as "chief judge" or "presiding magistrate." ID. DISCHARGE IN INSOLVENCY-NON-RESIDENT CREDITOR.-A discharge in insolvency granted in this state is no bar to an action in this state upon a judgment rendered in another state in favor of a resident thereof who was not a party to the insolvency proceedings. ID.-EXTRATERRITORIAL EFFECT OF DISCHARGE JUDGMENT A CONTRACT OR DEBT-JURISDICTION.-A suit upon a judgment is an action

upon a contract or debt within the meaning of the decisions denying extraterritorial effect to a discharge in insolvency. Being a debt, the rights accruing to plaintiff under it could not be taken away by a court which did not have jurisdiction over him.

APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.

The facts are stated in the opinion.

C. Wittram, for Appellant.

E. E. Haft, for Respondent.

FOOTE, C.-This action was upon a judgment rendered in the supreme court of the state of New York in and for the city and county of New York. Judgment was rendered as prayed for, and from it and an order denying a new trial, the defendant appeals. He makes the point in favor of his demand, that the certificate of the clerk of the court authenticating the copy of the record of the judgment obtained in New York is not sufficient, because it does not show that the clerk was the legal keeper nor where the legal custody of such records belong, and the certificate of the judge as "presiding justice" is insufficient.

Section 1905 of the Code of Civil Procedure, under which a judicial record such as that now in hand can be proved, provides that "a judicial record of this state or of the United States may be proved by the production of the original, or of a copy thereof certified by the clerk or other person having the legal custody thereof. That of a sister state may be proved by the attestation of the clerk and the seal of the court annexed, if there be a clerk and seal, together with a certificate of the chief judge or presiding magistrate that the attestation is in due form."

Here the clerk attested the copy of the judicial record, and annexed the seal of the court. Attached to the cer

tificate is that of the "presiding justice" of the court, which is the equivalent of "chief judge," or "presiding magistrate" thereof, that the attestation is in due form. This is a full compliance with the law.

The proof of the judgment being sufficient, it remains to be considered whether the certificate of discharge in insolvency, obtained from the proper court in the state of California, was a bar to the recovery of the plaintiff, who is a resident of the state of New York.

The supreme court of the United States held, in Baldwin v. Hale, 1 Wall. 234, that "insolvent laws of one state cannot discharge the contracts of citizens of other states because they have no extraterritorial operation, and consequently the tribunal sitting under them, unless in cases where a citizen of such other state voluntarily becomes a party to the proceeding, has no jurisdiction in the case. Legal notice cannot be given, and consequently there can be no legal obligation to appear, and of course there can be no legal default."

In the present case the plaintiff did not become a voluntary party to the insolvency proceedings.

The appellate court of Vermont, in Bedell and Warden v. Scruton, 54 Vt. 493, has followed the rule laid down by the supreme court of the United States, and the appellate court of California takes the same view of the matter in Rhodes v. Borden, 67 Cal. 7.

The appellant seeks to avoid the force of these decisions. by claiming that an action upon a judgment is not a suit based upon a contract, and that therefore these cases are not in point. In this position he is not supported, as it has been declared by the court of last resort in this state that suits upon judgments are actions upon contracts. (Stuart v. Lander, 16 Cal. 375; 76 Am. Dec. 538; Reed v. Eldridge, 27 Cal. 348; Wallace v. Eldredge, 27 Cal. 499.)

We do not understand the case of Larrabee v. Baldwin, 35 Cal. 168, to be in conflict with the decisions just re

ferred to. It is there said: It is there said: "The claim of the respondent that the judgment itself is a contract creating a new debt, within the meaning of the statute [that is, an act authorizing the formation of mining corporations], for which all who were stockholders at the date of the rendition of the judgment are personally responsible, is too absurd to require argument to refute it. That a judgment is a contract of record, in a certain legal sense, may be conceded, but it creates no such new liability as the statute in question contemplates."

It has also been held by the same tribunal that a judgment is a debt. (McBride v. Fallon, 65 Cal. 303.) Being a debt, the rights accruing to the plaintiff under it could not be taken away by a court which did not have jurisdiction over him.

We therefore advise that the judgment and order be affirmed.

BELCHER, C. C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment and order are affirmed.

[No. 12269. Department One.-November 5, 1889.] WILLIAM E. HOLLOWAY, RESPONDENT, v. G. W. MCNEAR, APPELLANT.

CUSTOM

CHARTER-PARTY-PROVISION FOR PAYMENT OF COMMISSION-USAGE AND EVIDENCE.-Parol evidence of the usage and custom of trade is inadmissible to contradict or vary an unambiguous clause of a charter-party providing that a commission at a specified rate shall be paid by the vessel after loading to the charterer.

ID. ADMISSION OF EVIDENCE WITHOUT OBJECTION.-Where evidence of such usage is admitted without objection on the trial, the court may properly instruct the jury not to consider it for the purpose of varying the terms of the written instrument.

APPEAL from a judgment of the superior court of the city and county of San Francisco, and from an order refusing a new trial.