Volume 1 — California Reports

<p>The facts are sufficiently stated in the opinion of the court. The cause was argued by</p>

<p>This court has no jurisdiction of an appeal from the court of First Instance, where the judgment appealed from is for less than the sum of two hundred dollars; and •where an appeal was brought from a judgment of $166 80, it was ordered that the appeal should be dismissed with costs.</p>

<p>Where a complaint alleges that the plaintiff was in the quiet and peaceable possession of premises, and was dispossessed by the defendants, by force, or under an illegal order made by an officer having no jurisdiction, the answer should take issue directly upon the allegations of the complaint, or, confessing them, should state, distinctly and positively, new matter sufficient to avoid them.</p> <p>It seems that under the Mexican system, alcaldes, alone, have no judicial power whatever. Per Lyons, J.</p> <p>A person cannot be dispossessed of his property under an order of a court, proceeding ex parte on the statement of the plaintiff, and without citation or notice to the defendant. Per Bennett, J.</p> <p>Ch. J. Hastings dissenting from the conclusion to which the majority of the court arrived.</p>

This was an appeal from a judgment rendered by the court of First Instance for the district of San Francisco. The facts sufficiently appear in the opinion of the court. The cause was argued by

<p>On an appeal from a judgment of a court of First Instance, where the record contained none of the proceedings of the court below, except the pleadings and judgment, and these were sufficient, no portion of the evidence being returned ; held, that this court would presume, nothing appearing in any way to the contrary, that the proceedings were regular, and that sufficient evidence was adduced at the trial to warrant the judgment.</p>

The action was brought to recover damages for neglecting to supply tbe plaintiff with wholesome food on the passage from Panama to the port of San Francisco, and for the loss of the plaintiff’s baggage. Tbe value of tbe baggage was estimated by witnesses to have been about $400, in the city of JMew York, and from $1200 to $1000 in San Francisco.

<p>This was an action brought in the court of First Instance of San Francisco, against James Collier and his two sons Edwin D. Collier and John A. Collier, to recover damages for an assault and battery claimed to have been committed by them on the plaintiff, while crossing the country from Santa Fé to California. Much conflicting evidence was given at the trial, but no questions of law were raised. The cause was tried before a jury, who found a verdict for the plaintiff in the sum of $1675, upon -which judgment was rendered by the court. The defendants made a motion for a new trial in the court of First Instance, and the court ordered that “ the verdict should be set aside and a new trial granted, unless the plaintiff would consent that the verdict be reduced to five hundred dollars.” The plaintiff refused to consent, but appealed from the order to this court.</p>

<p>Appeal from the court of First Instance of the district of San Francisco. The facts are fully stated in the opinion of the court. The case was argued by</p>

<p>Appeal from the court of First Instance of the district of San Francisco. The facts are fully stated in the opinion of the court.</p>

<p>The submission of a cause pending in the court of First Instance to referees, to hear and determine the same, is not to be considered as an arbitration by which the cause will be discontinued.</p> <p>The submission of a cause in court to arbitration, operates as a discontinuance of the suit.</p> <p>The ordinary mode of enforcing an award is by action; and it seems -where no statute exists authorizing the court to enter judgment on an award upon motion, that the court has no right to proceed in that way. And a consent to submit a matter to arbitration, does not imply a consent that the party in whose favor the award is made, may enter judgment upon it in court as a matter of course.</p> <p>The practice of the court of First Instance, sanctioned by custom and approved by the profession, to refer causes to referees to hear and decide thereon, sustained. By such reference the suit is not discontinued.</p> <p>It is not necessary to make a motion in the court of First Instance to set aside the ■report of referees, before a party can appeal to this court. Hastings, Ch. J. dissenting.</p> <p>The decision of referees upon a question of fact will be regarded on appeal as conclusive as the verdict of a jury, and will not he interfered with.</p> <p>Gold dust is not cash, within the meaning of a contract calling for the payment of cask.</p> <p>A. purchased of B. a cargo of lumber for $38,000, one half of the purchase money to be paid in cash, and one-half in bills at 60 days. The bills were given, and A. offered to pay the balance of the purchase money in gold dust, at G the ounce, which B. refused to receive at a higher rate than $15,50 per ounce. A. thereupon paid the whole amount due in gold dust at the latter price, and B. accepted it at that rate. In an action by A, to recover damages for the non-delivery of the lumber within a reasonable time, and also the difference between the gold dust at $15.50 per ounce, and $16 per ounce; held, that the portion of the judgment of the court below allowing this difference as damages, should be reversed, and that the rest of the judgment, being for damages sustained by reason of the nondelivery of the lumber, should be affirmed,</p> <p>It is no answer to the action for non-delivery of the lumber, that the plaintiff resold it soon after the purchase; it appearing that the purchaser from the plaintiff had a claim against him for non delivery.</p>

The plaintiff, through his agent M. Dore, sold to the defendants on the 21st day of December, 1849, fifty thousand three hundred and twenty-five feet of lumber, then being, or supposed to be, on board of a ship in the harbor of San Francisco. The contract was in the form of a sale note, of which the following is a copy :—- “ Sold Messrs. Swanston & Taylor, 50,325 feet lumber, ex Duchess Clarence, for account Captain Cole, ® $150 per M. “ 21st Dec. 1849.

This was an appeal from a decree of the court of First Instance of the district of San Francisco. The facts of the case are sufficiently stated in the opinion of the court. The cause was argued in this court by

<p>Appeal from the court of First Instance of the district of San Francisco. All material facts are stated in the opinion of the court. The cause was argued by</p>

By an act of the legislature passed at its first session, entitled “ an act for the better regulation of the mines, and the govern- “ ment of foreign miners,” foreigners were not permitted to mine in this state without obtaining a monthly license for that purpose, for which every foreigner was required to pay the sum of twenty dollars per month.

Warner instituted proceedings before a justice of the peace in the city of San Francisco, against Hall, under the statute of forcible entry and detainer, and recovered judgment against him for restitution to the possession of the premises claimed, and for §180 damages. Hall appealed to the county court of the county of San Francisco, where the judgment of the justice was affirmed.

<p>Appeal from the court of First Instance of the district of San Francisco. The plaintiff was the Catholic priest of the Mission Dolores, and the premises in controversy constituted a part of what was formerly known as Mission land ; but the evidence was very uncertain and unsatisfactory upon the question whether the premises were within that portion of the Mission property which had been confiscated by the Mexican government, or that portion reserved for the uses of religion. The plaintiff claimed that, being the priest of the Mission, he was entitled to possession of the reserved Mission property. The only claim which the defendant set up to the land was that he .was in actual possession. The cause was tried before a jury, who found a verdict in favor of the plaintiff, upon which judgment was entered by the court. The defendant thereupon appealed. A bill of exceptions was returned with the record, which set forth the testimony and the exceptions, but in some one of the numerous fires which have occurred in San Francisco it has been lost, and the reporter cannot state what the improper evidence was, by reason of which the judgment was reversed. The cause was argued by</p>

The facts upon which the judgment of the court is based, are stated in the opinion of the court. The cause was argued bj '

ArrEAT. from the court of First Instance of the district of San Francisco. The defendant, being the owner of a lot of land in San Francisco, and being desirous of selling it, engaged one Stephen Harris to sell it, but gave him no other than a verbal authority, except that be delivered to him the title deeds.

<p>Where nothing appears on the record, either in the pleadings, evidence, or judgment, from which this court can ascertain the rights of the parties, and where, from what does appear, it is highly probable that the judgment of the court below is founded neither upon law nor equity; held, that the judgment appealed from should he reversed under the provision of the statute, which declares that this court, “ when “from the character of the record no tangible point is presented for determination, “may remand the cause for new trial.”</p>

The action was commenced in the court of First Instance and was transferred into the district court, upon the organization thereof, by virtue of the provisions of the statute of Feb. 28th, 1850. The suit was brought against the bark Alice Tarlton and master to recover damages for injuries to goods on board the Alice Tarlton on her passage from New York to San Francisco, and not delivering them in good order.

On the application of Swanston & Taylor, an attachment was issued against the property of George S. and Thomas Wardle, and was executed by the plaintiff, who was the sheriff, or oornmissario, of the court of First Instance.

This case not being deemed of importance as a precedent, a detailed statement of the proceedings in the court below is omitted. It is sufficient barely to state that the defendant was tried before a jury for the crime of murder and was convicted, and that final judgment of death was rendered against him by the court of First Instance. The evidence was not returned to this court.

<p>Appeal from the court of First Instance of the district of San Francisco. The facts are fully stated in the opinion of the court.</p>

The action was brought to recover possession of a lot of land in the city of San Francisco. The plaintiff had made a verbal contract with the defendants to sell to them the premises in controversy for the sum of $.5000, of which $1000 was to be paid down, and the balance in two months, with interest at the rate of two per cent, a month.

<p>Appeal from the court of First Instance of the district of San Francisco. One Yogan was indebted to the plaintiffs, Swauston & Taylor, in the sum of §6000, and in order to secure that indebtedness, delivered to their possession a quantity of lumber for them to sell and pay their debt out of the proceeds. Burgoyne & Plume, two of the defendants, recovered judgment against Yogan, and directed Sublette, the other defendant, who was sheriff of the court of First Instance, to levy upon the lumber and sell it for the satisfaction of their judgment. This he did. Swanston & Taylor then brought this action against Sublette and Burgoyne and Plume jointly, to recover the value of the lumber. Judgment was rendered in the court below in favor of the defendants, and the plaintiffs appealed.</p> <p>The lumber was not subject to seizure or levy on execution against Yogan ; certainly, not without satisfaction of plaintiff’s debt of 06000, which was more than the property was worth.</p> <p>The record does not state that no other evidence was adduced, and the intendment of law is in favor of the judgment.</p> <p>The evidence is conflicting, and in such case a new trial will not be granted.</p>

<p>Appeal from the court of First Instance of the district of San Francisco. The facts of the case will be found in the opinion of the court.</p>

<p>All the facts necessary to be stated in this case, are contained in the opinion of the court.</p>

<p>Where a. contract is made to convey land by a quit-claim deed at a future time, an action cannot be maintained by the vendee against the vendor, on the ground that a third’person has intruded upon a portion of the land, and the vendee cannot obtain possession, there being no stipulation in the contract that the vendee shall be put in possession.</p> <p>Nor can such action be sustained on the ground that the vendor, long after the execution of the contract, gave the vendee a certificate to the effect, that, at the time of making the agreement, he consented and agreed that the vendee should take possession of the lot forthwith.</p>

<p>Where a summons was issued and served in the morning, by which the defendants were cited to appear and answer the complaint in the court of First Instance, at 10 o’clock, and judgment was rendered against them at 9 o’clock in the morning of the same day ; Held, that the judgment was irregular, and should be reversed, notwithstanding the court offered them permission to come in at a subsequent day and make their defence.</p>

<p>Appeal from the district court of Santa Clara county. The only material facts will be found in the opinion of the court.</p>

<p>Appeal from a judgment of the Second Alcalde of the district of Sonoma. The facts will be found in the opinion of the court.</p>

<p>By a final judgment is to be understood, not a final determination of the rights of the parlies in the subject matter of the litigation, but merely of the particular suit.</p> <p>Thus, where a judgment was rendered in the court of First Instance, and the defendant filed a complaint in the district court to vacate and annul the judgment on the ground of fraud, &c., to which an answer was put in, and the cause tried in the district court, and judgment given in accordance with the prayer of the complaint ; held, that this was a final judgment from which an appeal would lie to this court.</p> <p>The definition of a final judgment given in Loring v. lllsley, (ante, p. 24,) explained.</p> <p>Where it appears on the face of the judgment record itself, that there was no trial before a jury and no evidence given to the court, it will not be presumed on appeal that any evidence was adduced in the case, but the court will presume that the cause was heard on the pleadings alone.</p> <p>It seems, that the certificate of the clerk of the district court could not he received to contradict the plain import of the judgment.</p> <p>The supreme court alone has a revisory jurisdiction, by way of appeal, over judg-merits of courts of First Instance; and in respect to such judgments, district courts are not courts of review, and have no jurisdiction to examine into their regularity or validity, unless, perhaps, in case of a judgment fraudulently rendered.</p> <p>The decision in Von Schmidt v, Huntington, (ante, p. 55.) that where a cause is heard on bill and answer the allegations of the latter are to be taken' as true, affirmed.</p> <p>Thus where a bill was filed to set aside and vacate a judgment, on the ground that it was obtained through fraud, venality and corruption, and these charges were all sufficiently denied in the answer, and the cause was heard on the pleadings; held, that the effect of the denial in the answer was the same as if the charges in the bill had been disproved by testimony.</p>

This was an application for a writ of mandamus to the district judge of the eighth judicial district, to command him to 'vacate an order striking the names of the relators from the roll of the court as attorneys. The facts are stated in the opinion of the court.

This was an application for a mandamus to the district court of the eighth judicial district to vacate an order punishing the relator for contempt. The only facts material in the case are stated in the opinion of the court.

The defendant Ruckle executed his promissory note on the 1st day of January, 1850, whereby he promised to pay on demand to Richard M. Harmer, or order, $1000, with eight per cent, per month interest until paid. The note was afterwards transferred by Harmer, and endorsed by him, as follows : “ Pay “ to the order of T)r. Wm. II.

<p>Appeal from the district court for the fourth judicial district. The facts are stated in the opinion of the court.</p>

<p>Appeal from the superior court of the city of San Francisco. The proceeding was commenced under an act of the legislature passed April 10, 1850, providing for the collection of demands against boats and vessels, by which any person having a demand belonging to one of four different classes enumerated in the statute, might, at his option, instead of proceeding against the master, agent, owner, or consignee, institute suit against the boat or vessel by name, and have a warrant of attachment against her, her tackle, apparel, and furniture. The demand of the plaintiff belonged to one of the classes enumerated in the statute; and the superior court held that the Sea Wiick was a vessel used in navigating the waters of this state, and gave judgment against her for the amount of the plaintiff’s demand, from which judgment an appeal was taken to this court.</p> <p>The point on which the judgment was reversed by this court was, that the Sea Witch was not a “ vessel used in navigating “ the waters of this state,” within the meaning of that phrase in the statute ; and so far as that point is concerned, the facts are sufficiently stated in the opinion of the court.</p>

<p>Appeal from the superior court of the city of San Francisco. The facts in this case were in all respects, so far as concerns the liability of the ship Russell, under the Attachment Act of April 10, 1850, the same as in the case of the Sea Witch, {ante, 162.) Judgment having been rendered in the superior court in favor of the plaintiff, an appeal was taken, and the judgment reversed by this court, on the ground that the case was controlled by the decision in Souter v. The Sea Witch. A petition was then presented for a re-hearing, and the matter was argued by</p>

The point on which the judgment of the court is based, is sufficiently stated in the opinion of the court. The cause was twice argued. On the first argument, the court, taking for its guide the case of Merri field v. Cooley, {iHow. N. Y.Pr. Ilep. 272,) reversed the judgment of the superior court. The opinion was delivered by Bennett, J., as follows: “ The action was brought against the defendants Chandler & “ Dennison upon an alleged joint indebtedness.

Conflicting evidence was adduced by the different parties upon the points in controversy in the superior court, and the court, before whom the cause was tried without a jury, found in favor of the plaintiff, and gave judgment accordingly.

The action was brought to recover the price of thirty-five cases of boots and shoes alleged in the complaint to have been bargained and sold by the plaintiff to the defendants. No objection was made, and no exception taken, by the defendants at the trial, on the ground that a legal contract of sale was not established, and the evidence appeared from the record to have been but partially returned.

<p>Appeal from the district court of the county of San Joaquin. The plaintiff, Walker, filed his complaint in the district court for the county of San Joaquin, for the purpose of enforcing a lien which he claimed to have upon a building which he had erected for one Hauss-IIijo. The latter disputed the Hen. The defendant .Dickenson was not originally made a party to the suit, but was, on his own application, admitted to defend for the purpose of protecting a prior lien which he claimed as mortgagee of the premises on -which the building was erected. It appeared, at the trial, that more than sixty days had elapsed after the completion of the building before the plaintiff filed any notice of his lien, and the court was asked to charge the jury that the lien, if any ever existed, was for this reason lost. The court refused so to charge and the defendants excepted. The- jury found a verdict in favor of the plaintiff against Hauss-Hijo for the amount of his claim, but did not find that he was entitled to a lien, or that he had filed the requisite notice. The court, however, not only gave judgment personally against Hauss-Hijo for the amount found due by the jury, but also rendered a further judgment declaring the plaintiff’s claim to be a lien on the land, and ordering the same to be sold for the satisfaction of the lien. From this judgment the- appeal was brought.</p> <p>The court erred in refusing to charge the jury as requested. (Sec. 7 and 9, of act to provide for Mechanics Hens / Smith v. Drew, 5 Mass. Hep. 815; lyle v. Ducomb, 5 Binney, 585 ; 14 Pick. 4-9.)</p> <p>The mortgagee cannot control the mortgagor : a sale of the land under the judgment would convey a perfect title to the purchaser, and thereby defeat the security of the mortgagee. (9 Watts, 54 ; 5 id. 487.) The judgment should have been for a sale of the equity of redemption only. (9 Serg. & liawle, 315.) The judgment was not in accordance with the verdict.</p> <p>As to Dickenson’s right to interplead, see 14 Piole. 49.</p>

<p>This court vriH not disturb the verdict of a jury where nothing appears upon the record of the proceedings at the trial, except conflicting evidence upon a question of fact submitted to, and passed upon, by the jury; and the finding of the court below upon a question of fact will be regarded in the same light as the verdict of a j'«7-</p>

<p>Where an order of the district court, fining and imprisoning for cor$ not specify on its face wfeerem the contempt consisted, it will be reversed os certiorari.</p>

The facts on which the motion was based will be found in the opinion of the court, and in The People, ex rel. Mulford v. The Judge of the Eighth Judicial District, (ante,p. 143,) and in The People, ex rel. Field v. The same, (ante, p. 152.)

<p>Where a person has been admitted as an attorney and counsellor of this court, the district court has no authority to remove him from office; and if it does, a mandamus may issue to restore him, although the party might have a remedy by action, it appearing that such remedy would be inadequate and -would subject the party to great delay.</p>

<p>Where it appears by the plaintiff’s testimony at the trial that there is a non-joinder of persons who should have been made plaintiffs, and a motion for a nonsuit ⅛ made on this ground, the court may permit an amendment by adding the name of a co-plaintiff on such terms as may be just.</p> <p>Where four persons were sued as co-defendants on a joint contract, and the plaintiffs adduced no evidence to establish the joint liability of all, and a motion for a non-suit was made on this ground, but refused by the court, and judgment was rendered against all the defendants jointly; Held, that the judgment was erroneous.; but held further, that the plaintiffs might have discontinued the suit as against those not shown to be liable, and have proceeded to judgment against those whose liability was established, upon such terms and conditions as should appear to be just.</p> <p>It seems, that where the verdict is clearly contrary to evidence, this court may reverse the judgment on that account.</p>

The points in this case, which are given in the opinion of the court, came up on a re-argument of the case of Buckle v. Grogan & Lent, (cmie,p. 158.)

The action was brought to recover a penalty. The defendants demurred to the complaint, and the superior court gave judgment for the plaintiffs ; and the defendants appealed.

<p>On an application for justification of bail on appeal, the merits of the appeal will ndt be considered.</p> <p>If the appellants have been guilty of no laches in perfecting their appeal, the court may enlarge the time for them to file their bond to entitle them to a stay of proceedings under the statute, and in the mean time order a stay of all proceedings in the inferior court until the extended period shall have expired: in such case the court may impose such terms as shall appear to be proper.</p>

A demurrer was filed to the complaint, and the cause was heard and decided in the superior court upon the demurrer, and judgment rendered thereon in favor of the plaintiffs. The case, without the formality of a regular appeal, was submitted to this court by stipulation of the respective attorneys, under the agreement that the decision of the court upon the question presented by the demurrer should be final.

The complaint was filed for the purpose of foreclosing a mortgage upon certain premises situated in the city of San Francisco, made and executed by the defendant Guzman to the plaintiffs, on the 14th day of August, A.D. 1849. Guzman, at the time of making the mortgage, claimed to own the premises under a deed of conveyance from one Samuel Brannan, executed by said Brannan on the 17th day of June, 1849.

<p>Where a demurrer to the complaint is put in, and overruled, and the defendant then answers, the answer is a waiver of the demurrer.</p> <p>Where a special contract for the performance of work is proved, but it is also shown that the contract has been deviated from, the judgment will not be reversed on the ground that the court below admitted testimony as to the value of the plaintiff’s services.</p> <p>Where there has been a special contract to erect a building at a specified price, and according to an agreed plan, and the contract is afterwards deviated from by consent, the plaintiff cannot recover upon the express contract; for the reason that the work has not been performed according to the terms of the express contract; though, at the trial, the measure of compensation must be graduated by the terms of the contract, so far as the work can be traced under it.</p>

The parties agreed to waive a jury trial in the court below, and stipulated that the following facts should be taken as a special verdict, and that the court should render judgment thereon, to be of the same force and effect as if they had been specially found by a jury; viz.: “ That Wm.

The action was against the defendant as a common carrier for the non-delivery of goods. All necessary facts are stated in the opinion of the court.

The action was brought by the wife against the husband for a divorce, on the ground of adultery, cruel treatment, &c., and a judgment of divorce and division of property was rendered by the court below, from which the defendant appeals.

The only question of importance presented by the case was as to the jurisdiction and powers of Alcaldes. The cause was twice argued. On the first argument the papers returned to this court were of the most loose and unsatisfactory character, and on this account principally, the cause was remanded for a new trial.

The action was brought to recover $5500 worth of gold dost, claimed to have been lost in the inn of the defendant, while the plaintiff was staying there as a guest. All the important facts of the case will be found in the opinion of the court.

<p>This was a re-hearing of the case of Mateer v. Brown, {ante, p. 221.)</p>

The proceeding in this ease was an information in the nature of a quo warranto instituted by the attorney general against the defendant, the object of which was simply to procure the opinion of the court upon the constitutionality of the law requiring foreigners to pay a license fee of twenty dollars a month for the privilege of working the gold mines in this state.

The action was brought bj Antonio SnHol, Pedro Sansevaine and ITenry M. Naglee against James Hepburn, William Stewart and Charles Stewart, to recover possession of a lot of land, situated in the valley of San José. The action was brought and the judgment rendered before the passage of the statute adopting the common law, and was what is designated in the civil law as a possessory action.

The action was brought to recover possession of a portion of a 100 vara lot in the city of San Francisco. The defendants were in the actual possession of the lot claimed, having purchased it of a third person for a Ml consideration, and having erected valuable improvements upon it.

<p>Appeal from the court of First Instance of the district of San Francisco. Judgment was rendered in the court below in favor of the plaintiff, and the defendant appeals. The facts are stated in the opinion of the court.</p>

<p>This was an application for the incorporation of a college. The statute required an endowment of $20,000, and the subscriptions, by reason of which the charter was asked, consisted almost entirely of lands ; but they were not sufficiently definite to enable any one to locate the lands.</p>

<p>An attorney has no lien upon a judgment recovered by him in favor of his client, for a quantum meruit compensation for his services. Such lien extends only to costs given by statute.</p>

When this cause veas called on the calendar, the appellant not appearing, the respondent moved for an affirmance of the judgment; blit he presented to the court no proof of service of notice of argument. It was, in fact, conceded that he had given no such notice; but it appeared that the appellant had given such notice.

The sections of the statute under which the following decision was made, are as follows : “ Sec. 163. All or any of the issues in the action, whether of “ fact or of law, or both, may be referred, upon the written con- “ sent of the parties., “ Sec. 164.

<p>Appeal from the district court of the district of San Francisco. The facts are sufficiently stated in the opinions given in the case.</p>

The decision of this court was based solely upon the ground that the superior court had no jurisdiction in the premises. The section of the act by which the superior court was established, and which defines its jurisdiction, is in the following words :— “ Sec. 4.

<p>The case of the People, ex reí. Hughes v. Gillespie, {ante, p. 342,) confirmed,</p>

<p>Section 74 of the Practice Act, which provides for the arrest of a debtor in certain cases, does not apply in the case of one partner sueing to recover money received by another.</p> <p>A., being the owner of an invoice of goods in the city of New York, sold one half interest therein to B., with an arrangement that the latter should proceed to San Francisco, and there dispose of the same on joint account; Held, that this constituted a partnership between them, and that B. was not subject to arrest in an action by A. to recover a part of the proceeds of the sales.</p> <p>A party will be discharged from arrest, where the process, though proper in form, has been issued in an improper case.</p>

<p>The appellate jurisdiction of this court does not extend over judgments of inferior tribunals, from whose decisions no appellate jurisdiction has been conferred on this court by the legislature ; and where a certiorari had been issued to a county court, and a return was made, the proceedings were dismissed for want of jurisdiction.</p> <p>The principle of the case of The People ex rel. Mulford v. Turner^ {ante, p, 143,) so far as relates to the appellate jurisdiction of this court, approved.</p>

This was a proceeding under the Act to provide for the collection of demands against boats and vessels, passed April 10, 1850. The superior court gave judgment in favor of the plaintiffs, from which judgment this appeal was taken. The material facts are given in the opinion of the court.

<p>Where A. was indebted to B., to secure which indebtedness the latter held the promissory notes of the former, and it was agreed that A. should give a mortgage upon real estate to secure the indebtedness, and that B. should give up and cancel the notes and waive all claim upon the personal responsibility of A,; Held. in an action. to foreclose the mortgage, that B, was not entitled to a personal decree against A, for any balance which should remain unpaid after the sale of the mortgaged premises. But the court, not being able to see, on account of the imperfectness of the record returned, the true state of facts between the parlies at the time the mortgage was given, a new trial was ordered, for the purpose of ascertaining, whether at the time of making the mortgage, it was agreed that the mortgagee should look to the mortgaged premises alone for the satisfaction of his debt, without any recourse to the personal responsibility of the mortgagor: and held further, that in case no such agreement was made, the mortgagee was entitled to a personal decree against the mortgagor for the balance remaining unpaid after the sale of the premises.</p>

<p>In an action against a common carrier for non-performance of bis contract to carry a passenger, remote and contingent damages cannot be recovered : So hetd¿ in a case where the plaintiff, through the violation of the agreement of the defendants, was detained at New Orleans and at Panama, on his way to California, an unreasonable length of time, and the court charged the jury that the measure of damages would be the wages at the then rates in San Francisco during the period of such detention.</p> <p>It seems1 that evidence, showing that the plaintiff was a good bookkeeper, was proper to be submitted to the jury, to enable them to form an estimate of the damages which the plaintiff had probably sustained»</p> <p>Although this court may be satisfied that the verdict of the jury is reasonable in amount, a new trial will be granted where an erroneous instruction has been given by the district judge, which may have influenced the verdict.</p>

<p>Appeal from the court of First Instance of the district of San Francisco. The facts will be found sufficiently stated in the opinion of the court. Judgment was rendered in the court below in favor of the plaintiff.</p>

<p>An action for obtaining property by false and fraudulent representations, cannot be sustained, where it appears on the face of the complaint that the alleged representations were made some months after the property was obtained by the defendants; So held, where the complaint alleged that the defendant, in March, 1850, obtained of the plaintiff $3300. by means of false and fraudulent representations, contained in an instrument executed by the defendant in October, 1850.</p> <p>Pleadings should set forth facts, and not merely the opinions of parties, and must, when ambiguous, be construed most strongly against the pleader. Thus, where the complaint alleged that the plaintiff was “ satisfied” that the defendant procured certain property through fraud, but there were no other allegations in the complaint showing fraud ; Held, that the issue tendered was immaterial, it not presenting a point upon which the cause could be decided on its merits.</p>

<p>A defendant should set forth the true nature of bis defense in his answer, and in case he does not, should not be permitted to insist upon it.</p> <p>The report of a referee upon the facts of a case will be considered the same as the verdict of a jury.</p>

Appeal from the district court of the district of San Francisco, The facts are fully stated in the opinion of the court,

<p>Appeal from the superior court of the city of San Francisco, where judgment was rendered in favor of the plaintiffs. The facts upon which the decision of this court was based are given in the opinion of the chief justice.</p>

<p>To entitle a defendant to set off a claim against the demand of the plaintiff, he must set forth in his answer the nature of the claim which he intends to set off—and where this was not done ; Held, that the court below properly rejected evidence of the claim proposed to be set off.</p>

<p>Where this court sees clearly and beyond all doubt that the rejection of proper, or the admission of improper evidence, could iri no way materially affect the result, the judgment of an inferior court will not, on that ground, be disturbed.</p> <p>A.. purchased of the plaintiffs in the city of New York certain merchandise, and gave his promissory note payable in six months for tbe purchase money. The goods were shipped for San Francisco, and, by the bill of lading as well as by tbe agreement of the parties, were deliverable to the order of the shippers; but they were were insured for and on account of A.; at the time of the purchase, he received a bill of sale, gave his note for the purchase money, and took a receipt for its payment, and the acts of the plaintiffs in New York, and of their agent in San Francisco upon the arrival of the goods there, as well as the conduct of A, indicated that all parties considered the transaction as a sale of the goods to A., subject to the right of the plaintiffs to retain possession until the payment of the note given by A. i—■ Held, in an action by the plaintiffs against the roaster of the vessel on which the goods were shipped, to recover the market value thereof at San Francisco, on account of his having delivered them to A. without the orders of the shippers, that the transaction between the plaintiffs and A. was a sale, and transferred to the latter the property in the goods, subject to a lien thereon for the purchase money in favor of the plaintiffs, and that the master of the vessel was liable to the plaintiffs only for the value of the plaintiffs’ property in the goods with interest.</p> <p>Instead of remanding a cause for a new trial, where the judgment below is erroneous, this court will so modify it as finally to settle the controversy, when the rights of the parties appear from the record to be fully ascertained.</p>

<p>Appeal from the district court of the seventh judicial district. The facts are stated in the subjoined opinion.</p>

<p>Appeal from the district court of the sixth judicial district.</p>

Justice Lyons. Rut in addition to that portion of the decision of the judge of First Instance, given in the opinion alluded to, are found several other matters. Two questions were presented by the pleadings, one of title, the other of possession ; and the judge of First Instance, in giving his judgment, sets out in full the title of the plaintiff, without in any way whatever alluding to his possession, and then decides that the plaintiff was entitled to judgment in his favor.

<p>Where an order granting a new trial was made in the court helow upon the payment of costs, and the defendants paid the costs, and the plaintiff then appealed from the order, and a motion was made to dismiss the appeal on the gronnd that the acceptance of the costs by the plaintiffs attorney was a waiver of the right to appeal; Held, that the acceptance of the costs was not a waiver of the right of appeal, and the motion was accordingly denied.</p>

The tacts, so far as the points of law decided in the ease are concerned, are sufficiently stated in the opinion of the court.

<p>Appeal from the superior court of the city of San Francisco. The facts are stated in the opinion of the court.</p>

<p>Where the evidence given on the trial of a cause is conflicting, and no legal point has been improperly ruled by the court, the verdict of a jury is conclusive.</p> <p>Where a written or printed instrument, as for instance a “ card” published in a newspaper, is proposed to be given in evidence, and is rejected by the court, such evidence or the substance of it must be returned with the record, or this court will not attempt to review the decision of the judge at the trial</p> <p>A card published in a newspaper by a witness, without the knowledge of either of the parties to the suit, is admissible in evidence for no purpose, unless it be to im- ' peach the credibility of the witness. Per Bennett, J.</p> <p>Where the defendant calls the plaintiff as a witness, and the latter testifies to new matter not responsive to the inquiries put to him by the defendant, the defendant may offer himself as a witness on his own behalf, in respat to stick new matter, but his testimony must be limited to an explanation or contradiction of such new matter.</p> <p>Instructions of the court to the jury must all be taken together, arid if, when thus viewed, the case appears to have been fairly presented to the jury, the verdict will not be disturbed.</p> <p>A public officer, who stands in the relation of agent of the government or of the public, is not personally liable upon contracts made by him as such officer and within the scope of his legitimate duties; but the public administrator of the county of San Francisco is not a public officer within the meaning of the rule, and is personally liable upon a contract made in relation to estates upon which be administers, unless the idea of such personal liability be excluded by the contract.</p>

<p>Under Mexican law, a person who furnishes materials for the erection of a building, has no lien on the building to secure payment for the materials furnished.</p> <p>The plaintiff having a claim against A., brought suit against him to enforce the claim, and, in the same action, sought to set aside a conveyance of real estate from A. to B., on the ground that it was executed in fraud of the creditors of A., and made B. a party to the suit; Held, there having been no objection taken, either by demurrer or answer, on the ground of an improper joinder of several causes of action, that the plaintiff was entitled to contest the validity of the conveyance from A. to B.</p> <p>If several causes of action are improperly united in the same action, the objection must be taken either by demurrer or answer, or it will be deemed to have been waived.</p>

<p>A motion for a new trial in the district court, must be made within four days after rendition of the judgment.</p> <p>An injunction order is inoperative, until the undertaking required by the statute be given.</p> <p>A party against whom an injunction has been issued, is not hound to obey it, until after due service thereof on him. Giving him verbal notice that an order enjoining him has been made, is not sufficient.</p> <p>An injunction order and the due service thereof on the party enjoined, do not operate to enlarge the time within which an act is required to he done by the party procuring the order.</p> <p>It seems, if a party be in court at the time an injunction order is made, and thus has personal knowledge of the order, that he would be bound thereby. Per Bennett, J.</p>

<p>Appeal from the superior court of the city of San Francisco. The facts of the case are stated in the opinion of the court.</p>

<p>The case of Souter v. The Sea Witch (ante,p. 162.) affirmed.</p>

<p>Appeal from the district court of the county of San Joaquin. The material facts are stated in the opinion of the court.</p>

The facts of the case were substantially as follows : The defendant was regularly elected county judge of the county of San Francisco, at an election regularly appointed and held in… Held: the legislature, then in session, passed an act repealing the act by virtue of which such election was held, and conferred upon the governor the power to appoint the county judge. This repealing act was approved by the governor on the same day, but at what hour of the day did not appear.

<p>A judgment rendered by a district court after the time appointed by law for its adjournment is invalid, and will be reversed on appeal.</p>

<p>Appeal from the district court of the county of San Joaquin. All the material facts are stated in the opinion of the court.</p>

<p>A deed, purporting to convey real estate, executed by an agent or attorney in his own name, instead of the name of his principal, is not binding upon the latter, and does not transfer the title to the property. Per Hastings, Ch. J.</p> <p>An agent, authorized by power of attorney to wind up and adjust the affairs of a mercantile house in the city of New York, which had been conducted in the name of his principal, derives no authority from such power of attorney to bind his principal by a promissory note given on the purchase of real estate in the city of San Francisco. Per Hastings, Ch. J.</p> <p>Where a promissory note was given on the sale of real estate, and the vendor had neither title, nor color of title, nor possession; Held, that as between the original parties, the consideration might be inquired into, and that, there being no consideration, the payee could not recover as against the maker; and, held, further, that the defendant, who had, as a part of the original transaction, and without consideration, guaranteed the payment of the note, was not liable to pay the same.</p>

The only fact necessary to be stated, which is not mentioned in the opinion of the court, is, that the sale by the auctioneer took place in the forenoon.

<p>Appeal from the district court of the ninth judicial district. The facts will be found in the opinion of the court.</p>

<p>The consignee named in a bill of lading is to be deemed, prima facie, the owner of the goods mentioned therein, and upon payment of freight, may maintain an action against any person who assumes a control over them in violation of his right of property.</p> <p>A merchant of Baltimore shipped to the plaintiffs at San Francisco certain goods by a bill of lading in which they were named as the consignees, and which required the delivery of the goods to them, on their paying freight. On the arrival of the ship at San Francisco, the defendants, who were the general consignees of the vessel, indorsed on the bill of lading an order to the master to deliver the goods to the plaintiffs, and afterwards indorsed on a duplicate bill of jading an order to the master to deliver the same goods to D. & H. The latter bill of lading being first presented, the goods were delivered to D. & H. Held, in an action brought to recover the value of the goods, it appearing the plaintiffs had paid the freight, or tendered payment of it, that the property in the goods was vested in them, and that the defendants were liable for a conversion.</p>

<p>Appeal from the district court of the fourth judicial district. The facts of the case are stated in the opinion of the court.</p>

<p>Though interest is, as a general rule, not recoverable except by virtue of statutory regulations, a small rate may be allowed in some cases by way of damages. So held, where a referee, to whom a cause had been referred by consent of parties, had allowed the plaintiff’ interest at the rate of six per cent, per annum on the balance of an account found due to him.</p> <p>Query ? Was not that the rate of interest fixed by the decrees of the Mexican republic at the time of the occupation of California by the Americans.</p>

<p>Where it appears clearly from a charter-party, that the intention of the owner of the ship and the charterer is that the former shall have no lien on the freight, hut shall give a personal credit to the charterer, the former loses his right of lien on the cargo, and can look only to the personal responsibility of the charterer for the payment of the hire of the vessel,</p> <p>Thus, where it was agreed in a charter-party, that a vessel should be chartered for áfteen months, at 2000 dollars per month, to be employed in the Pacific trade^ and that the payments for the hire of the vessel should be made semi-annually in the city of New York; Held, that the owner of the vessel had lost his right of lien on the cargo for the non-payment of the sum stipulated in the charter-party.</p>

<p>Appeal from tie district court of tie district of San Francisco. Tie facts are stated in tie opinion of tie court.</p>

<p>A certificate of exemplification of a judgment rendered in another state, when attested by the clerk under the seal of the court, and when the presiding judge of the court certifies that the attestation is in due form of law', is sufficient under the act of Congress of May S6, 1790, to sustain an action upon the judgment in another state.</p> <p>A judgment was obtained against one John P. Manrow in the city of New York, and an action was brought upon the judgment against one John P. Manrow, in the city of San Francisco : Held, that the identity of the person was to be presumed.</p>

<p>Where a motion for a new trial is made on the ground that the party was taken by surprise at the trial by the non-attendance of witnesses, it should appear that the party had used reasonable diligence in endeavoring to procure the attendance of his witnesses at the first trial.</p> <p>Where it did not appear that the defendant had made any efforts to have his witnesses subpcenaed, or to procure their attendance, until the morning of the day for which the cause was set down for trial, and on which it actually was tried ; held, that the party had not used proper diligence, and that the decision of the district court, refusing a new trial, was correct.</p> <p>Where a motion for a new trial is made on the ground of surprise, the affidavits on which the motion is founded, should set forth particularly and distinctly the facts which the party expects to be able to prove by his witnesses -on a new trial: and held, where the affidavits did not set forth the facts to which the party expected his witnesses would testify, that a new trial was properly refused.</p> <p>The affidavits of the witnesses themselves should, also, if practicable, he procured, setting forth the facts, within their knowledge, to which they can testify, in case a new trial should be granted. Per Bennett, J,</p> <p>The same rules apply in case a new trial is asked for on the ground of newly discovered evidence. Per Bennett, J.</p> <p>An auctioneer who receives and sells stolen property, innocently, and in the ordinary course of his business, is liable to the true owner for the conversion thereof; and that, too, without the previous prosecution and conviction of the felon, and although the auctioneer had paid over to the felon the money received on the sale of the goods, before notice that the goods had been stolen.</p> <p>Whether an action could he sustained against the felon himself; Qrnry!</p>

<p>It is too late to object at the trial that a bill of particulars is not properly verified by the oath of the party. The party upon whom a bill of particulars is served, if he is not satisfied with it, either because it is defective in form or substance, or because it is not verified by the plaintiff, should immediately return it, or move the court for a further or amended bill.</p> <p>It is too late to move for a new trial after the expiration of four days from the rendition of judgment, unless an order extending the time has been procured.</p>

<p>In a suit to recover money received by a person as agent, he cannot be arrested without showing some fraudulent conduct on his part, or a demand on him by the principal and a refusal by him to pay. An arrest in such case is prohibited by section 15, Art. 1, of the constitution.</p>

<p>Appeal from the superior court of the city of San Francisco. The facts are stated in the opinion of the court.</p>

The record returned in this case was very imperfect, and the defects were attempted to be supplied by affidavits. The affidavits on one side were directly contradictory to those presented on the other side, and it did not appeal* from the affidavits of the appellants, that injustice had been done to them on the merits.

The facts are stated in the opinion of the court. The judgment of the court below was rendered in favor of the defendants.

<p>On an application for the incorporation of a College, a cash subscription of $27,500, with the subscription list annexed to the petition, and accompanied by affidavits, showing that the subscribers are severally worth the respective sums set opposite their names, is a sufficient compliance with the Act of April 20th, 1850, to authorize this court to grant a charter of incorporation.</p>

<p>Where a complaint filed to compel a partnership account, contained sufficient to call upon the defendants for an account as to a particular branch of their business, but was, in other respects, inartificially drawn and insufficient, and a demurrer was put in to the whole complaint: Held, that the demurrer must be overruled.</p> <p>The law of Louisiana requires a partnership contract to be in writing—the law of California does not require it to be in writing: Held, that a verbal partnership agreement entered into in Louisiana, but which was to be executed in California, was valid.</p>

<p>Appeal from the district court of the third judicial district, where judgment was rendered in favor of the plaintiff. The facts will be found in the opinion of the court.</p>

<p>The case of the Sea Witch, {ante, p, 162,) affirmed.</p> <p>Note,—At the same term of the court, the case of the Sea Witch was also affirmed in the case of Morey v. The Ship Andalusia,</p>

<p>The case of Dunbar v. The Ayuntamiento of San Francisco, (ante, p. 355,) affirmed.</p>

<p>The case of Macondray v. Simmons, (ante, p. 393.) affirmed.</p>

<p>The case of Folsom v. Root, {ante, p. 374,) affirmed on the principle of stare decide.</p>

<p>Appeal from the superior court of the city of San Francisco, where judgment was rendered in favor of the defendants. The facts are stated in the opinion of the court.</p>

The facts, so far as they are material to an understanding of the grounds upon which the opinion of the court was based, aré stated, in the opinion.

<p>An appeal may be taken from a judgment of the district court, without moving for a new trial in that court.</p> <p>A vessel in the harbor of San Francisco, moored in the usual track of bay and river steamers, should set a light and keep a watch in a dark night, or she cannot recover damages for an injury sustained by being run into by a steamer, where there was neither gross negligence nor intentionai wrong on the part of the steamer. The want of such watch and light is to be deemed negligence per se, and the court should instruct the jury in such ease to find a verdict in favor of the defendant. Per Hastings, Ch, J.</p> <p>The declarations of an agent, when but the bare narration of an act which had already taken place and was fully ended, do not form a part of the res gesta, and are inadmissible in evidence against his principal. Per Bennett, J,</p> <p>Where improper evidence is submitted to the jury, under objection, a new trial will be granted on appeal, unless the court can see that such evidence could not possibly have had an effect upon the jury prejudicial to the appellant.</p>

<p>Appeal from the superior court of the city of San Francisco. The facts of the case are fully stated in the subjoined opinions.</p>

<p>Appeal from the superior court of the city of San Francisco, where judgment was rendered in favor of the plaintiff. The facts are stated in the opinion of the court.</p>

<p>Appeal from the district court of the fourth judicial district. The facts are fully stated in the opinion of the court.</p>

<p>Where, on appeal, the complaint is so radically defective as not to authorize the judgment of the court below, a new trial may be granted, with leave to the plaintiff to amend his complaint, on such terms as the court below may deem just</p> <p>A plaintiff most recover, if at all, according to the averments in his complaint, and a court is not warranted in rendering a judgment in favor of the plaintiff, when there is no averment in the complaint upon which the judgment can be based.</p> <p>It seems, that the joinder of two persons as co-defendants, who have no joint interest in the subject matter of the suit, andaré under no joint liability, will, unless the mistake be corrected in the court below, be error.</p> <p>One part owner of a vessel has no Hen on the shares of the other part owners for his advances and disbursements.</p>

<p>An answer to a complaint after demurrer overrules the demurrer.</p> <p>The owner of a ship, chartered by, and in the name of, his agent, may, although he is not mentioned in the charter-party, be shown, by extrinsic evidence, to be the principal in the contract, and will be allowed to avail himself of its provisions.</p> <p>The register of a ship is admissible in evidence in favor of the person claiming to be the owner, in connexion with other evidence tending to establish the ownership.</p> <p>In the absence of any custom to the contrary, Sundays are computed in the calculation of lay days at the port of discharge : but where the contract specifies working lay days, Sundays and holidays are excluded in the computation.</p> <p>It seems, that where a chartered vessel is seized and detained by a revenue officer of the United States, the charterer cannot be made liable for demurrage during the period of such detention.</p>

<p>Appeal from the superior court of the city of San Francisco. The facts are stated in the opinion of the court.</p>

<p>Where a last will and testament was executed, on the 19th day of Sept. 1840, by a Mexican citizen of California, before the judge (Juez) of the place, who certified at the foot of the will, that the testator was possessed oí his entire judgment and understanding, and retained his perfect memory; Held, that it was incumbent on the person contesting the validity of the will to establish, that the testator was not of sound mind and disposing memory,</p> <p>A verdict of a jury will not be disturbed on the ground that evidence was offered and received at the trial, after objection, that a custom had prevailed in California, amongst Spanish and Mexican residents, before the acquisition of the country by the Americans, that no more than two witnesses were requisite to attest the execution of a will, when it appears from such evidence that the custom had prevailed generally and for a long time.</p> <p>The civil law, except so far as it has been expressly adopted by the legislative power, is without authority either in Spain or Mexico. Per Bennett, J,</p> <p>By Spanish and Mexican law, wills are divided into solemn or sealed, and open or nuncupative. The former need not be written by, nor be subscribed by, the testator, but must be attested by the escribano of the place and seven witnesses, by subscribing their names on an envelope in which the will is enclosed, the testator saying to them, "This is my will; I desire you to write your names upon it-^ such a will was, probably, never made in California-, in the latter, the testator declares his will, either viva voce, or in a writing which he reads himself, or has the escribano read, if one is in attendance, or any one of the witnesses present, so that all the witnesses present may hear it. Such a will need not be signed by the testator.</p> <p>Where an open will (testamento abierto) was admitted, on the face of the complaint, to have been u dictated" by the testator, and was reduced to writing, and signed by three subscribing witnesses, citizens (vecinos) of the place, one of whom was the Alcalde, and it was recorded in the proper hook of the Juzgado; Held, that the will was valid, although the testator had not signed it, and although it was not made in the presence of an escribano.</p> <p>By the civil law, an escribano may act in the double capacity of escribano and witness, in the execution of a will. Per Bennett, J.</p> <p>Where authorities differ, the court ought to adopt that opinion which is most in unison with the former condition of things in California, and which will best conduce to uphold and carry into execution the intention of the parties. Per Bennett, J.</p> <p>A will is valid, although one of the three subscribing witnesses was Alcalde of the place.</p> <p>Where a testator had precisely ordained in what way his property was to be disposed of, and what duties the executors were to perform; Held, that the will was valid, notwithstanding one of the three subscribing witnesses was named in the will as one of the two executors, he not being named as heir or legatee, nor empowered to institute an heir, nor vested with any discretion in respect to the disposition of the estate; and held, further, that such executor was competent as a witness to testify in support of the will.</p> <p>The formalities of opening and publishing a sealed will considered. Per Bennett, J.</p> <p>A will in writing, having been acknowledged by the testator to be his last will and testament before the Alcalde, who possessed, in California, the powers and jurisdiction of an ordinary judge, (juez ordinario,) having been attested by the Alcalde and two witnesses, and there having been no escribano in the place, and the will having been registered by the Alcalde in his book of records: Held, that it was a public writing (escritura publica) as fully as it could have been made so in California, and required no further probating in order to authorize the executor to act under it; and held, also, that the omission to reduce it to the form of & public writing would not have affected its validity; and held, further, that it was not necessary in order to uphold acts of the executor, done in conformity with the provisions of the will, to show that he had taken out letters testamentary, the will itself being his authority and commission.</p> <p>Alcaldes in California had all the powers and jurisdiction of judges of First Instance in districts where there were no judges of First instance. Mena v. Le Roy (ante, p. 216,} affirmed.</p> <p>The records of the place in which the testator lived and where his will was made, having been scattered or destroyed by a public enemy; it must be presumed, under the maxim omnia prccsumuntur rilé et solenniter esse acta, that the will was duly registered in the proper book of records. Per Bennett, J.</p> <p>An Alcalde appointed in a will as executor, but not named therein as heir or legatee, nor deriving any profit or advantage under it, and being allowed by law no compensation for his services, is competent to authenticate the will in his judicial capacity.</p> <p>Where a full inventory of all the effects of the deceased is embodied in a will, it seems to be unnecessary for the executors to make out a new inventory; at all events, their neglect or omission to do so will not invalidate the will.</p> <p>Where a testator, in his will, appointed two persons as executors, and gave to each of them all the power over his property which he himself possessed as fully as in law may be required, and empowered them to sell it as to them should seem proper, for the purpose of carrying into effect a provision in his will to pay his debts, and one of the executors, in good faith, and for a fair price, sold a portion of land for the purpose of raising money to pay the debts of the testator ; Held, that the transfer, when attacked by the heirs of the testator, was valid, although not executed by the co-executor, when it appeared probable, from the testimony, that he advised and assented to the sale; and held, further, that a private sale was good, and that it need not have been at auction.</p> <p>A part of the purchase money having been paid down, it seems that the heirs could not rescind the contract of sale, without first refunding the amount so paid. • Per Bennett,!.</p> <p>By Mexican law, the wife, during the continuance of the marriage, has a revocable and feigned dominion in, and possession of, one half the property jointly acquired by her and her husband, (gananciales;) but the husband is the real and veritable owner, and has the irrevocable dominion in, all the gananciales, and may sell and dispose of them at pleasure.</p> <p>After the death of the wife, the husband may dispose of the gananciales, without being obliged to reserve for the children of the marriage either the property in, or proceeds of, the gananciales.</p> <p>If the heirs of a deceased wife be the children of the marriage, they have the right of succession, on the death of the father, to the whole estate, (gananciales,) with the right in the father to dispose of one fifth ; but by the estate in law is understood the residue, after all debts have been paid.</p> <p>A father, during his life time, and after the death of his wife, may, although there have been children of the marriage, dispose of the gananciales for any honest purpose, when there is no intention to defraud the children, and may, by last will and testament, direct the sale of them for the payment of his debts.</p> <p>A. having married, and there being children of the marriage, and his wife having died, and there being common property acquired during the marriage, {ganancia-les,) Held, that the children, upon the death of the wife, did not acquire a vested estate in the common property, (gananciales,) and that the father had the absolute dominion in, and control over, and power to dispose of, such property during his life, and the power by last will and testament to direct the sale of the same for the payment of debts, not only such as were contracted during the continuance of the marriage, but also such as were contracted by the husband after the dissolution of the marriage by the death of his wife.</p>

By consent of parties, judgment for the defendant was entered up in the court below; from which the relator, Casserly, appealed. Held: if at all. Admitting that Devoe was rightfully in the office, the election by the legislature (May 1st, 1851,) took effect upon the expiration of his term, which event took place the following day. This is the established law of elections, that no matter when held, they take effect upon the expiration of the current term.