rnn nmmus cssm. 25
party obtaining it no right in addition to those secured in his notarial act;
and need assign no reasons." See Hennen, Dig. 651, No. 5. ,
In general practice in this state it is well understood to have so little
of "the force of the thing adjudged" that on very slight occasion the i
whole proceeding is turned into the action via ordinwria. Praying for
citation, praying for a personal judgment, taking testimony, and pray-
ing for a judgment in answer to an injunction, or on a rule to dis-
solve, have each been held to avoid the fiat and change the proceed-
ing into an ordinary suit. The order of seizure and sale is rendered
upon a title importing a confession of judgment, but it by no means
has the force of a judgment by confession. In fact, prior to the con-
stitution of 1868, under statutes of 1861 and 1862, in the major part
of the state this order could be granted by the clerks of the court.
See Fuqua, Code Prac. 323. ,_
In the case of Stanton v. Embrey, supra, it was decided by e full I V ‘
bench, upon authority, (1) that where a defendant appeared and
A pleaded in abatement the pendency of a prior suit in a state court,
and, upon his plea being successfully demurred to, upon leave he an-
‘ swered to the merits, he waived his objections to the jurisdiction;
(2) that the pendency of a prior suit in a state court is no bar to an
action in another jurisdiction, even though the two suits are for the
same cause of action, and between the same parties. Either one of
these propositions defeats the demurrer in this case, for the two cases
are parallel in pleading and circumstances.
On the whole case I am well satisned that the demurrer should be
overruled, the court retaining the case. Since, as shown by the sup-
plemental bill, the property is no longer actually or constructively in
custodia legis, we can proceed to a decree unless the rights of the
parties shall be first adjudicated in some other court.
An order overruling the demurrer will be entered, with costs.
_ THE Dmsnis CASE. ‘
Woonnurr v. Noam Bnoomrmnn Gmvm. Mrmne Co. and others.
(Circuit Court,   Oalifornia. April 9, 1883.)
1. Mmrrrmmousnnss-Norsmcm. i
Several parties owning extensive mines at various points on the alllucnts of
the Yuba river work them independently of each other by the hydraulic process,
discharging their waste earth and other debris into the stream, whence it ilows
down into the main river, where the debris becomes mingled into one indistin-