Mello

Plaintiff appeals from a judgment entered in favor of defendant, pursuant to an order sustain ing demurrer to the second amended complaint without leave to amend.

According to the complaint, one Crieghton was in custody of a constable by reason of his nonpayment of a fine of five hundred dollars which had been imposed upon him with the alternative of imprisonment until the fine be paid. Crieghton, by 'means of certain misrepresentations concerning his ownership of property, etc., induced the plaintiff to deliver to him a check payable to Crieghton for the sum of five hundred dollars. The stated purpose of Crieghton was to avoid going to jail that night, and he promised that he himself would pay the fine next day. Plaintiff informed Crieghton and the constable that he had not sufficient funds in the bank to pay the check, and instructed them to hold the check until noon of the next day. The constable so informed Kendrick, the justice of the peace, “before noon” of said next day. Nevertheless Crieghton was released from custody on the day when the check was given. The complaint does not state whether or not Crieghton paid his fine or was ever re-arrested. On said next day, which…