Porter

— In July, 1863, the board of directors of the state prison made a contract with the plaintiff for the employment by the latter of certain convict labor for the period of three years. In May, 1865, the members of the board having *716 been changed by new election, the contract, in a modified form, was extended by the then existing board for the period of four years from the first day of September, 1866. In April, 1868, the defendants, then constituting the board of directors as successors to the board last above named, notified the plaintiff that they deemed and held the contract theretofore made between him “and the former board of directors, to be of no effect or binding force upon the present directors, or the state of California, after the expiration of the term of office of the former board,” and that they would thereafter demand an increased price for convict labor. The plaintiff protested against this action, and refused to comply with the terms imposed. Thereupon the board withheld from the plaintiff the convict labor. The action is in trespass, against the defendants individually.

Upon these facts proven, the defendants moved for a non-suit upon the grounds, among…