Volume 1 — California District Court Reports

<p>Written Instrument set forth in Answer—Notarial Bond— Amendment.</p> <p>When suit is brought by a mortgagee against a Notary on his bond for an informal acknowledgement to a mortgage whereby the mortgagee lost his lien, if the Notary plead a release the defendant must deny the validity of the release as a forgery, under oath, by an affidavit filed in the cause.</p> <p>If the execution of the release is not so denied, under oath, then the release is a complete bar to the action.</p> <p>The Court will allow the plaintiff to withdraw a juror and amend by filing an affidavit afterwards, on a proper ground of surprise.</p>

<p>Orders of Arrest—The Nature of Action to be set out in Writ.</p> <p>The validity and sufficiency of the affidavit on arrest cannot be examined on habeas corpus.</p> <p>The order of arrest is defective which does not state with sufficient certainty the cause of action, to show that it was a case in which an arrest is allowed by law.</p>

<p>Slander.</p> <p>The words, “he would steal,” are not, per se, actionable.</p>

<p>Surety on Bond.</p> <p>A party in interest, if not a party of record, may be a surety.</p>

This was an application by the assignee of the Insolvent to have the Sheriff deliver over goods attached in a suit commenced against the Insolvent, prior to the filing of the petition in bankruptcy.

<p>Householder.</p> <p>A Householder, in the meaning of fts statute, ae a cisraty, is onljrs ¡aeunenent resident and not necessarily the head of a family.</p>

<p>Power oe the Board oe Supervisors to Purchase Stock in Plank Roads—Void Instruments.</p> <p>The power given under the Act of 1855 to the Board of Supervisors of the several counties, to lay out, control and manage roads, &c., does not include the power to purchase roads already laid out by individuals or corporations.</p> <p>The Board of Supervisors is the mere agent of the county, with limited power and jurisdiction, and can exercise no greater authority than has been delegated, and such as may be absolutely necessary to carry into effect the delegated powers.</p> <p>The Supervisors have no power to purchase stock in a corporation and make the county stockholders.</p> <p>Courts of equity may interpose their authority to order a cancellation or delivering up of written instruments void on their face.</p>

<p>Escape from Sheriff—Ietsahiit.</p> <p>If a Sheriff unlawfully take a prisoner out of his County, every continuous act of the Sheriff thereafter in the premises is unlawful.</p> <p>In the absence of evidence of a lawful removal of a prisoner from the proper County, the Court will infer that the removal was unlawful.</p> <p>The County Judge of a County adjoining the one in which a felony has been committed, has no right to examine into the insanity of a prisoner.</p> <p>Whatever order a County Judge of an adjoining County makes in the matter of the insanity of a prisoner of another County, is void.</p> <p>A SheriE who holds a prisoner trader a wmmiÉiBQmí ibbbS daicsta Mm maffil fes s lawMly discharged.</p>

<p>Action to set aside a deed as fraudulent and as a cloud upon title.</p>

<p>Homestead—Purchase Money.</p> <p>If the mortgagee advances money to the mortgagor for the express purpose of releasing or cancelling a prior mortgage made for the purchase money of the property, this mortgagee becomes subrogated to the equities of the mortgagee whose lien has been . extinguished, and this second mortgage is regarded as given for the original purchase money.</p>

<p>Sheriff Sale.</p> <p>A sale void as to third parties may be valid between the contracting parties.</p> <p>A Deputy Sheriff cannot be a purchaser at a Sheriff’s sale, s'. e.¡ his principal, even though he be a judgment creditor or the assignee of a judgment creditor.</p>

<p>Homestead.</p> <p>There must be overt acts of dedication to family nse to constitute a right of homestead in property.</p> <p>A mortgage lien acquired on property before such overt acts of dedication will survive a subsequent right of homestead.</p>

<p>This was a suit in the nature of a bill quia timet.</p>

<p>Change of Venue.</p> <p>The court will change the place of trial in a transitory action, and remove it to the county where the principal transactions occurred. Goodrich vs. Vanderbilt, 7 How P. B., 467—sustained.</p>

This case was tried by the court without the intervention of a jury, and the court, substantially finds the following facts: In June, 1852, Jane' Shurr was in possession of a town lot in the city of Placerville, and at that time conveyed the same by quit-claim deed to plaintiff. Plaintiff recorded his deed and went into possession of the lot. He remained in possession until the fall of 1852, when he sold to Alex. ' Hunter by verbal contract only and placed him in possession.

<p>Highways.</p> <p>A direction to open a highway, though given by the Board of Supervisors, deflecting from the established line, could not change the highway.</p> <p>A highway must be designated in width, and be clearly defined.</p>

<p>This was a case in which plaintiff asked for a divorce from defendant, on the alleged ground of extreme cruelty.</p>

Plaintiff obtained judgment against defendant in April, 1852, for §2,045, and applied for an execution to issue on same. The affidavit on file alleges that the judgment has never been satisfied, but by mistake or otherwise, the same appears by the entry on the record to have been satisfied under an execution issued out of the Justice’s Court of the Second Township of this city, in the suit- of H. B. Den-man against John Cramer, which was issued against Cramer as defendant.

This was a suit to obtain a decree of this Court, to set aside and declare void a certain judgment for 85,417, entered by default in the Superior Court, against plaintiff herein, on the 3d of July, 1854, and now held by defendant Bowman. The case was tried without a jury.

<p>Motion to dissolve an injunction.</p>

<p>Costs.—Traveling Expenses.</p> <p>The necessary expenses incurred in traveling to and from a place to take a deposition, will be allowed as disbursements.</p> <p>Disbursements in our practice has a'more extensive meaning than under the Common Law system.</p>

<p>The plaintiff had a mortgage, dated 12th May, 1854, for f>800, made by one C. A. Dupuy, and acknowledged before defendant Fin-lay. The mortgage was recorded on the 23d May, 1854.</p> <p>On the 21st April, 1854, the same property had been mortgaged by Dupuy to Lewis Wolf, for 81800, which mortgage was recorded on the same day the mortgage was made.</p> <p>On the 3d November, 1854, a satisfaction of the mortgage to plaintiff, purporting to be executed by him and acknowledged before G. J. Hubert Sanders was placed on record.</p> <p>On the 7th April, 1855, a satisfaction of the mortgage to Wolf was made and recorded, and a new mortgage to take its place for 82500, being 8700 in addition to the old mortgage, was made and recorded.</p> <p>In the spring of 1855, G. J. Hubert Saunders left this city to escape trial for forgery.</p> <p>In July, 1855, Fogarty commenced a suit for the foreclosure of Ms mortgage, in the Superior Court. On the trial of that cause, two issues were determined—first that the mortgage to Fogarty was genuine ; and second, that the satisfaction filed of that mortgage placed on record was a forgery; foreclosure of the mortgage was consequently ordered.</p> <p>In October following, Wolf commenced suit in the Twelfth District Court, for foreclosure of his mortgage, making Fogarty a party, and alleging that Fogarty’s mortgage was second to his.</p> <p>On the trial of this case, Fogarty’s mortgage being offered in evidence, as a properly acknowledged and recorded instrument, giving notice of its contents, it was objected to on the ground that the Notarial certificate was defective, it not stating that Dupuy was known or proved to the Notary to be the person who executed the instrumént, and consequently was not entitled to be recorded.</p> <p>The Court sustained the objection, and rejected the mortgage, and Fogarty being unable to prove notice in fact of the existence of his mortgage to Wolf, judgment of foreclosure in Wolf’s favor followed. The Supreme Court on appeal sustained the opinion on the question of the insufficiency of the Notarial certificate, and the property was exhausted in satisfying Wolf’s mortgage.</p> <p>Fogarty thén.brought the suit against Finlay, the Notary who made the defective certificate, and the sureties on his official bond, claiming to receive from them the amount of his mortgage, interest, and costs and counsel fees in the suits in the Superior and Twelfth District Courts before mentioned.</p> <p>The defendants put in issue the genuineness of the mortgage and release, which were determined by the jury in the same way as in the Superior Court.</p>

<p>A motion to amend a complaint in divorce by adding a count charging adultery, Avithout filing the necessary affidavit.</p>

<p>Demurrer to an answer pleading a set-off.</p>

<p>Action brought to settle adverse claims to the proceeds of property sold under a mortgage by virtue of possession of different notes covered by the same mortgage. The facts are reported in the opinion.</p>

<p>Corporations-—Transfer of Funds—Employment of Counsel.</p> <p>Corporations possess not only such powers as are expressly granted, but such as are necessary to carry into effect the powers so expressly conferred.</p> <p>The City Council of. Sacramento have no right to transfer moneys in its treasury from ' one special Fund to another, and the abuse thereof will be restrained by injnnction. The Council have an undeniable right to employ Counsel, other than the .City Attorney, to protect its interest abroad, although the Charter may not specially provide therefor.. . . , .</p>

On the 7th day of September 1854, John Revalk married, and from that day forward resided with his wife upon property previously owned by Revalk in the city of San Francisco. On the 11th day of December, 1854, Revalk alone executed a mortgage on the premises to defendants, Charles W. Kraimer and John Eisenhardt for $4000, which mortgage was immediately recorded. Subsequently, on the 9th day of July 1856, Revalk and wife executed a mortgage to plaintiff for $1000.

Motion to dissolve injunction. This was a suit to obtain a decree of this Court to enjoin defendants from selling or interfering with certain water lots situate in this city.

The plaintiffs are merchante, doing business in Boston, Massachusetts and the defendant is a gesident merchant of San Francisco. The present action was instituted by them to recover @2,867, due om four promissory notes, made by defendant in September, 1856, by his duly authorized attorney in the city of Boston. The suit was commenced on March 26th, last, and an amended complaint filed on the 13th April.

This was an application for a mandamus to compel Mr. Mickle to audit and allow the claim of plaintiff on the County Treasury for f 150, salary for the month of April last as Secretary of the Fire Department. The affidavit of Mr. Ezekiel sets out: That he is the Secretary of the Fire Department of the City and County of San Francisco, and, as such, is ex officio Fire Warden. That he was elected to said office on the 24th day of November, 1856, for the term of one year.

.This was a hill to enjoin the Sheriff from proceeding to sell a lot on California street, between Davis and Drumm, which the Sheriff had advertised for sale under a warrant issued by the Police Judge, and countersigned by the Superintendent of Streets and Highways, to coerce the payment of $1082, by a sale of the lot, in favor of the defendant, Hueston, a Street Contractor.

George Scott and Christopher Hutchinson, on 4th of May, 1855, leased to George D. Gregory by parol lease, from month to month, certain premises on the south-east corner of Howard and Hubbard streets. The property was then in possession of Thompson, as tenant of Lawrence Webb, the executor of Wembom, who also claimed the fee. Gregory took possession and a few weeks after was evicted by Webb.

Motion to set aside an execution as having been improperly issued. Heslep brought suit against Brayton, and having recovered a judgment thereupon issued execution and levied upon the property of the defendant. The defendant however, within the two days allowed by law, gave notice to the plaintiff of a motion for a new trial, but did not file the same with the Clerk of the Court.

Indictment for an offer and attempt to bribe the District Attorney of said County. Judge Lewis, Presiding.

This was an action brought to recover the possession of personal property, and damages for the taking and detention thereof. The complaint alleges a wrongful taking ; does not allege where taken or detained, and does not state the value of the property. The other facts are stated in the opinion of the Court.

This was an action in the nature of a replevin, to recover- hack a certain amount of tools and implements, valued at $600, used by the plaintiff in the prosecution of his business as a blacksmith in this ctiy, which he claimed as exempt from execution. It appeared by the testimony in this case that Conroy & O’Connor recovered judgment against plaintiff, and by virtue of an execution, the defendant seized the property now in controversy.

It appears from the complaint that McKinley sues Garrison for $1250 balance due for professional services, wMch were performed by himself and brother, and which claim he avers now belongs to himself as it came to him in the settlement of the partnership affairs of McKinley & McKinley.

This is an action in ejectment wherein the plaintiff averred in his complaint that he was seized and in possession of the land in Januuary, and that in the month of April following the defendant ousted him. The defendant demurs to the complaint, on the ground that the plaintiff should aver that he was in possession at the time the defendant is alleged to have ousted him.

This is a demurrer to a complaint which contains the common counts in assumpsit for money loaned or advanced. The defendant demurred under the sixth subdivision of section 40 of the Practice Act, and sought to have the complaint aver the facts out of which the cause of action arose.

The defendant, Marye, against whom and his co-defendant, Whelan, a decree of foreclosure and sale had been taken, made application to set aside the default against him, and the decree, and to be permitted to answer.

This is an application to compel the Sheriff of Marin. County to execute a deed to the Relator, for the “ Punta de Reyes” Ranch, in that County, The facts as shown by the alternative writ, return and proofs in the ease are these: On the 5th day of December, 1857, Antonio M. Osio who was then fee owner of fee premises, executed a mortgage on the same. This mortgage was afterwards assigned to Thomas Gr. Cary, Jr., and the premises after that sold to Andrew Randall.

Newell & Williams sued El Dorado County for $5000 for services rendered at the request of a former Board of Supervisors, in the prosecution of certain parties charged with the crime of murde.r. They presented their account to the present Board who allowed a thousand dollars of the amount, and refused to allow the residue; whereupon this suit was brought.

<p>Demurrer to answer. The facts are fully set out in the opinion.</p>

Demurrer to an answer. Lee & Brewster brought suit against Block and Block upon a judgment obtained in the Circuit Court of Alabama, in this Court on the 1st of April, 1857, as the statute of limitations expired the next day.

This is an action to recover $700, amount of an undertaking on attachment. On the 7th. of February last, W. P. Thompson commenced in this Court his action against the plaintiffs herein, and procured the issuance of an attachment. The defendants executed an undertaking in the usual form required by law, conditioned that if Lyon & Cannon recovered judgment against Thompson, they would pay to them the amount of the bond.

This is an action on three promissory notes, each being in the words following: San Francisco, April 5th, 1855 : Eight months after date, we, the undersigned, Trustees of the First African Methodist Episcopal Church, in behalf of the whole board of Trustees of said association, promise to pay to Darius Stokes, or order, four hundred and ninety eight dollars and seventy-five cents, with interest at three per cent, per month, until paid, for value received by said association.

This was an action to recover $20,000 for alleged slanderous words spoken by defendant, of and concerning plaintiff. The first count in the complaint sets forth that in March, 1856, plaintiff was in the employment of Bull, Baker & Co., at Shasta, and in consequence of the utterance of the words complained of, and given below, Penniman was discharged from his situation.

This is a suit to obtain a decree of divorce from the bonds of matrimony existing between Nancy and George S. Banks, and for an injunction restraining the defendant from conveying or in any way encumbering the joint property acquired during coverture. The ground of complaint is alleged extreme cruelty, and the facte set forth in the bill certainly show a vast amount of oppression on one side and suffering on the other.

Judgment was entered by default against defendant for money advanced on the 14th inst., for $1396. Defendant now applies to open the judgment and for leave to defend. It appeared defendant was in the employ of the Pacific Mail Steamship Company, in Oregon, and had come to this city en route for New York.

<p>New Trial—Erroneous Verdict.</p> <p>Ths Court has the power to set aside the verdict of a jury, in part, for good cause shown, and order a new trial upon that part alone which has been set aside.</p> <p>When this is done the verdict will stand good in every other respect, except the part eat saide.</p>

This was an aefcio'n brought on an official bond of Marston, as Treasurer of the County of Alameda, against Marston and his sureties. The breach alleged is that he received, as such Treasurer, $8,551 86, which he has failed to account for, and which is deficit in the treasury. Of this sum $1,395 42 belonged to the State Fund; $1,306 17 belonged to (he County Fund; $419 02 belonged to the School Fund; $5,431.25- belonged to the County Building Fund.

Action to recover $25,912 due on a promissory note, dated June 4th, and payable ten days after date, without grace. Defendants failed on the 18th of 'June, and plaintiff is the first attaching creditor. Their liabilities are $190,000. Assets, $80,000, besides stock in store which has realized $40,000 at auction.

This is an action for malicious- prosecution, growing out of plaintiff taking from, possession of defendant, last February, certain books and papers belonging to the Mountain Lake Water Company.. Both plaintiff and defendant claimed then to be the regularly elected President of the corporation, and acting on their belief the plaintiff removed from the office of the Company the books, etc., referred to.

The following are the facts of the case as agreed upon by stipular tion, the other facts referred to in the opinion arose from depositions taken, or other evidence. 1. That the plaintiffs in this action compose the firm of Russell & Co., and James Purdon & Co., of Canton, named in. the assignment of Rye Brothers & Co., hereinafter referred to. 2.

<p>Parent and Child—Custody of Children.</p> <p>The general rule is that the father is entitled to the custody of the children, because it is supposed he is better capable of educating and supporting them.</p> <p>Next to the right of the father that of the mother must be recognized.</p> <p>If the husband is insolvent, and unable .to provide for the maintenance of the children» and the mother is possessed of property, and with the children in her custody, is properly supporting and educating them, the Court will not interfere with that custody while an action for divorce is pending between the parties.</p> <p>The Court will take into consideration the abandonment of the family by the father, and the probable desire to annoy and harrass the mother by this application, because she has applied for the divorce on the ground of desertion.</p>

Action to recover possession of fifty vara lot No. 786, situate at the southwest corner of Fremont and Harrison streets. The complaint alleges that on the 21st September, 1853, one Henry A. Ford was owner in fee simple of the premises, and in their actual and exclusive possession, and that he mortgaged the same to Dennis GL Perkins. In July, 1856, Perkins obtained a decree of foreclosure, and sale of the property, and became the purchaser at Sheriff’s sale himself.

The plaintiff, receiver in the affairs of Page, Bacon & Co., commenced this action for the recovery of f228, money advanced defendant in February, 1855. Defendant demurs on the ground that the facts stated do not constitute a cause of action, and on the argument made the point that the complaint failed to show the authority of the receiver to bring this action, and in the absence of that authority shown, it was to be presumed against him.

Motion to vacate judgment, and for leave to come in and defend upon the answer filed. Judgment was entered on verdict in favor of plaintiff, on the 11th Juné, for $400, value of certain cattle found to be wrongfully taken by defendant. The trial in this Court was ex parte, there being no appearance for defendant, hut an answer to the complaint was put on file.

<p>Receivers.</p> <p>it is contraiy to good policy to allow receivers of partnership property to incítate suits for the discovery of assets of the estate they represent, not claimed by the parties.</p> <p>It is necessary it should be done by creditors to whom the benefit accrues, and at their</p>

In the complaint in this action the plaintiff avers, that on April 80th, 1856, one E. B. Stone delivered to defendant sundry iron doors and shutters, weighing 80,345 lbs., to be sold on his (Stone’s) account, and that at the same time defendant agreed to pay him three cents per lb. for the wares, as fast as they should be sold; deducting from the amount to be paid for the first sales $157, advanced by Stone to defendants, and $48 for drayage and labor.

This suit is founded on a note made by Haines in the name of the firm of Haines & Dobinbish, in the year 1850, for @1,600, at 5 per «sent, per month interest. On the note was endorsed a credit of @500, five days before the Statute of limitations would have barred the debt. This payment. was made by Haines.

This was a suit to obtain a perpetual injunction, restraining defendant, Bourdin, and the Justice of the. First District Court, and his sue- cessors in office, from taking any proceeding, or issuing execution .in a certain judgment entered against plaintiff in 'said Court, and. that the judgment be declared void.

This was an action of ejectment brought by Eldridge against the See Yup Company, to recover the lot and buildings thereon on Pine street, known as the See Yup Asylum. Both parties claim title under the same deed, which was made in May, 1853, by Gay & Barbour to G. Ah Thai, “ in trust for the use of a Chinese church, or place of religious worship and moral instruction,” under the rules of the See Yup Company, for whom Ah Thai was then agent.

Shis was an action of ejectment, to recover one undivided half of a tract' of land situated at Hunter’s Point. The facts were as follows: Defendant, being owner, and in possession of the land in question, conveyed the same to Wm. B. Swain, on the 17th of February, 1855. On the 17th of April, of the same year, Swain conveyed to the plaintiffin this action. Welden was a married man at the time he executed his deed.

This was an action brought for divorce on the ground of intemperance on the part of the husband, in the State, of Massachusetts. Itappears that the wife- resides in this' State, and that the husband is in the State of Massachusetts, and that she left him in the year 1855. There was no evidence to show desertion on the part of the husband, nor .any evidence of his being at the present time an intemnerate man.

<p>Venue—Impartial Trial.</p> <p>The feet that a fair and impartial , trial cannot be had must be clearly and positively established. The venue will not be changed unless it clearly appears to-be essential to'the ends of justice. A publication, by newspapers, of the facts of a homicide, with comments ahd the evidence before the coroner’s jury, is not sufficient to demand a change of venue.</p>

At the sale of real estate, part of the property of the late Captain Folsom, which took place last November, under an order of the Probate Court of Sain Francisco County, defendant became purchaser of certain lots. With the exception of two lots, Guy held mortgages on the entire quantity so bought, for money loaned in 1854. Suit was brought by the executors of. Folsom, for $15,850, the amount of sales.

<p>Foreign Judgments—Service op Process.</p> <p>The Act of Congress providing that judicial records of one State shall have faith and credit ini all courts within the United States, does not preclude inquiry into the . jurisdiction of the 'courts where they are rendered.</p> <p>Unless, the court, when judgment was rendered, obtained jurisdiction of the person of defendant it is of no efficiency in this State.</p>

<p>Fobeign Judgments—Copabtnebships.</p> <p>After the dissolution of a partnership one partner cannot, without special authority, authorize ah appearance for the other partner in a court of Justice; nor can service of procesa upon one of. the partners of the late firm give jurisdiction to eater judgment against the ether.</p>

<p>Telegraph Companies.</p> <p>Telegraph Companies mnst be regarded as common carriers of messages, and subject to most, if not all, the provisions of the common law of carriers.</p> <p>It seems that a Telegraph Company will be held liable for damages, upon the»wrongful transmission of a message.</p>

<p>Conveyance of Real Estate.</p> <p>A grantee in a deed, absolute upon its face, cannot invalidate his own title, except on the ground of fraud, accident or mistake.</p> <p>Parol evidence is inadmisssble to contradict or deny the legal import of a written in. strument.</p>

This was an action to foreclose a mortgage. The land is situated in the Fourth Judicial District, and this action is brought in the District Court of the Twelfth Judicial District. Both Districts are in the county of San Francisco. The Fourth Judicial district comprises all that part of San Francisco county north of Bush, Kearny, and Clay streets, and the Twelfth Judicial District all that part south of Bush, Kearny, and Clay streets, and San Mateo county.

This was an action brought for divorce by the wife against the husband, on the ground of desertion and neglect to support. The facts are, that plaintiff and defendant being married, resided in Buffalo, New York; that during marriage they separated, apparently a mutual desertion, and the wife went to St. Louis, Missouri, to reside, and the husband came to California many years ago. She arrived in California in March, 1857, and in April filed this bill.

This was a motion to set aside the report of a referee who was appointed on proceedings supplementary to execution,, and who duly examined J. M. Jewett, a brother of the defendant, -and reported that he was indebted to the plaintiff in the amount of ¡a promissory note due his brother, and ordered him to pay the amount .to the plaintiff, but made no report as to where the note was, or into whose hands it could be traced.

This is an' action on two obligations, one of which is in the words and figures following, to wit: Due Wm. H. Robinson k Co. two hundred and two dollars, value received. $202. Stockton Jan’y 28,1850.

Action to recover $10,000 for alleged injuries suffered by plaintiff by reason of an assault and battery committed by defendants.

Ik this case, the plaintiff, a judgmónt creditor of Samuel Deitz, filed a Complaint in the nature of a creditor’s bill to set aside an assignment made by Deitz to Stanford Brothers, and to have certain property and assets applied, to the payment of his judgment. The - complaint shows that the plaintiff’s judgment was for S3,602.50. recovered in'the Twelfth District Court on the-6th day of June,.'1857; that execution issued to the sheriff on the same day ;.

This was an action to recover $14,000, balance alleged to be due on three promissory notes made on the 22d March, 1851, by Grove C. McMiekle, and payable to Bagley & Sinton. The notes were to bear interest at ñve per cent, per month; and were afterwards assigned by Sinton to Bagley. Plaintiffs introduced and read in evidence the two following affidavits, to show the destruction of the notes, and to -lay the foundation for proving their contents by secondary evidence.

The facts of this case aré sufficiently referred to in the opinion of the court, to give a correct view of its merits. The decision was given on a motion to dissolve an injunction restraining one of the defendants from selling under execution partnership property to pay an individual debt of one of the copartners.

<p>Motion to grant an injunction, and bill to quiet title! The case is stated in the opinion.</p>

This is amotion of plaintiff’s, for an order directing the clerk to enter the default of the defendant, and judgment against him.

<p>Conveyance—-Homestead.</p> <p>Where A gives a deed to B, as a mortgage, and the terms of the mortgage aré satisfied,* and B gives a deed back to A, this second deed wiil.be considered as a siinple release of the mortgage.</p> <p>The character of a homestead having by residence been once possessed upon a piece of property, no act of the husband alone can deprive the wife of the interest she has thereby acquired.</p>

<p>District Attorney’s Fees.</p> <p>The fees of a District Attorney, allowed by statute apon conviction, are not a eoonty ebatgo by law, when they cannot be collected of ft® defendant.</p>

The question, submitted to the court is, whether the sheriff is entitled to his commissions when he has levied upon property without sale and without collecting the money, the parties having compromised the claim.’ The facts are, that an execution was placed in the hands of the sheriff to make the amount of the judgment in the ease, and by him levied on real property of the defendants.

<p>Illegal Abbest.</p> <p>The failure to specify definitely and precisely the charge upon which the defendant is held to answer on attest, is fatal.</p>

<p>Feme Sole. Trader.—Mortgage.</p> <p>A feme sole trader can alone execute a valid mortgage upon property acquired by her subsequent to the day of-recording her declared intention to become benefited by tiie. act, if such property was necessary to carry on the business which she selects,</p>

The main object of this suit is to-obtain a decree that the defendants account, for the benefit of the plaintiffs. In Sept,, 1852, the Santa Clara Steam Mill Company was'organized,' the stock of which consisted of 300 Shares at $100 per share. The plaintiffs, the defendants, (except the corporation,) and others, were shareholders.

<p>Attachment Undertakings—Action on Damages.</p> <p>In an action against the sureties, on an undertaking, given apon the issuing of ¡sa attachment, the proof of damages should be limited to the costs and expenses incarred, and such actual damages as are the natural and proximate results of the authoritative acts done under the writ, sustained by being deprived of the use of property, or from its loss, deterioration, or destruction.</p> <p>Damages, in consequence of injury to credit and reputation as® not liabilities impoegfi upon the sureties, and such proof is inadmissible.</p>

The object of this suit is for an injunction to restrain the defendant removing from the quarry of the plaintiff’s, lime rock; and cutting down and removing timber trees, growing upon the land of the plaintiff’s. The proof shows that the plaintiff’s claim is under a Mexican grant, with indefinite boundary, to ascertain and define which the action of the general government was necessary. The claim has been confirmed, and no appeal pending.

<p>Statute op Limitations.</p> <p>Where the last day allowed by the statute for bringing the action falls upon Sunday, the action must be commenced upon the preceding day, and not on the day after.</p>

This was an action against defendant as endorser on a promissory note for §600, dated May 1st, 1856. The facts are that one Bonestell, being indebted to John Flint, proposed to give his promissory note, endorsed by Williston. The note was accordingly given, and endorsed by Williston, but by inadvertance, as alleged, was made payable to the order of Flint instead of Williston, and was endorsed by Flint first and Williston afterwards.

The facts in this case were as follows : On the 24th day of October, 1854, defendant made Ms four several promissory notes, payable to the “ order of E. Judson,” each for the sum of three hundred dollars, maturing at six, twelve, eighteen, and twenty-four months after date, respectively, and delivered the same to one Farmer, who, as the plaintiff’s agent, negotiated the loan.

<p>The facts are fully stated in the opinion. On motion for a new trial.</p>

The facts in this case are substantially as follows: The firm of Joseph S. Kohn & Brother were merchants doing business in the city of San Francisco, and were indebted to this plaintiff and Schloss & Heil= iaroner of Héw York city.

<p>Attachment—Non-Resident.</p> <p>The mere presence of a party in the State of California does not constitute a residence. He must have established his abode here, and purpose to change his last place of residence.</p> <p>In-dcfault of these facts he will be considered a non-resident, and his properly will be liable to attachment.</p>

This action was instituted in Oc.toher, 1856,'to recover possession of the ship Madonna,” and damages for her detention, or the value o£ the vessel, .being.$6,000. The vessel was seized by the defeated 3S sheriff of San Francisco County, on an execution inter alias, and was claimed by. this plaintiff.

The facts of the case as proven on the trial are briefly as follows That on the night of the killing, the deceased and prisoner met in a dance house, on Pacific street, and after having •some dispute about a place on the floor for dancing, they went out to fight. The prisoner gave the invitation to fight, and the deceased assented. The prisoner then took off his coat, went out of the liouse, followed by deceased, and a fight ensued between them in the street.

<p>Imprisonment for Debt&emdash;Discharge.</p> <p>A person imprisoned for concealing his property, with the Intent to defraud his creditors, must be released If h® satisfy the court he.uo longer has any property under his control.</p>

This is an action of ejectment, brought by Francisco Sanchez, against Arthur B. Stout, and others, to recover possession of an hundred vara lot, situated in the city of San Francisco. The plaintiff submitted the case upon the pleadings, It having been averred in the complaint, and not denied in the answer, that a grant of che land in controversy, had been made to the plaintiff.

<p>Ability to support-—'Divorce.</p> <p>What constitutes such an ability, within the meaning of the Dtaiete allowing divorces, on the part of the husband to support the wife, Aat iho omission on Mo part to do it will authorizes divorce.</p>

<p>The facts are fully get forth in the opinion..</p>

<p>Pbobate Coubts.</p> <p>The provisions of the statute, authorizing probate judges to appoint guardians, are not in conflict with the section of the constitution vesting district courts with all the powers known to courts of equity.</p>

<p>Breach oe Contract—Damages.</p> <p>Where a contractor is prevented by his employer from doing a certain act which he had ■ contracted to perform, in an action by the former to recover the contract price, he is entitled fo the whole contract price, if proof cannot be adduced to show what the cost or profit would actually have been.</p>

The necessary facts are stated in the opinion. On motion to open the biddings upon the sale of certain real estate, and for a re-sale.

<p>Mandamus.</p> <p>A state court will not grant a mandanraa to a state officer, to settle claims against the state.</p>

<p>The defendant, in ejectment, cannot oet np an outstanding title against a plaintiff, who proves a prior possession.</p> <p>Hora,—We regret that we are enable to famish the asmen of the eosnsel who atgoeft this case.</p>

<p>Promissgsy Zotb.</p> <p>la an action on ® promissory note, against the makers thereof, where the note was given to a parson to procera the signature of a third party, and was then to 6e delivered as the note of an association, the plaintiff cannot recover, unless no can show either that he came into possession of it for a valuable consideration, or that the makers espressly recognised it, and against such the verdict may stand.</p>

<p>On motion for a asw Mat The necessary facts air© set forth in the opinion.</p>

<p>The facts upon wM^h. tMs motion- is .founded, are sufficiently stated In the opinion.</p>

<p>Possession—Ejectment.</p> <p>Actual pottetslon of a portion of real estate, with color of title, will sustain ejectment for the'whole tract described in the colorable title.</p> <p>A grant of .the Governor of Califomiá ie such a colorable title.</p>

<p>Mandamus.</p> <p>CdttrtswHI not. bjr mandamus, interfere with the acts of an executive officer, unless the act commanded by law is so simple and so clearly defined, as to take away all discretion, and make obedience amere ministerial act.</p> <p>Executive officers, being liable on their official bonds, to those who may be damaged by their misconduct, they should be allowed, in cases admitting-of doubt as to the construction of this law governing their acts, to put their own construction upon it, aud abMe the consequences.</p>

<p>The facts are stated in the opinion.</p>

This is an action of replevin, brought to recover possession of a kiln of bricks, which was referred, by consent of counsel, to a referee, who found, as matter of law, that defendant was entitled to a judgment in his favor. Plaintiff’s counsel now moves to set aside the report of the .referee, for error, upon the facts, as found by him. The important facts are sufficiently set forth in the opinion.

<p>Certificate op Acknowledgment.</p> <p>Where the certificate of acknowledgment, by the husband and wife, attached to a mortgage, misnames the husband, but describes the wife by her true name, and states that she is known to the officer giving the certificate, to be the person who executed the mortgage, the defect of describing her as the wife of the misnamed husband, is not fatal to the validity of the certificate, as far as concerns the wife, and if the error, ss far as affects the husband, be .obviated by a new certificate, made qn proof, by ¿ 'subscribing witness, the proof of acknowledgment is sufficient.</p>

The facts of this case are substantially as follows: Deitz, a merchant in the camphene and turpentine business, finding himself in falling circumstances, executed a mortgage of all his personal property to Stanford Bros,, and transferred to them the possession.

The principal facts of this case are briefly as follows: At a meeting of the members of Calvary Church, holden May 1, 1856, one of the trustees represented… Held: at which McKee became a purchaser, and paid a premium over and above the amount fixed by the trustees, and had taken possession of the pews. This action is brought on the said note to recover the amount thereof. The case was tried before a jury, and a verdict given for plaintiffs. This is a motion for a new trial.

The complaint, in tMs action, sets forth, that defendant is a corporation, duly formed in accordance with law, and named the California Steam Navigation Company; that on or about the 9th of July, 1856, the defendant was the owner of a boat, called the Swan,” propelled by steam, and that they then caused the same to run upon the Sacramento river, in tMs state; that plaintiff was then the owner of certain real estate in the county of Tehama, known as the Bosque,” or “ Lassen ”…

<p>The facts are set forth in the opinion. The case was tried by the cotirt without a jury.</p>

This suit was instituted for the purpose of recovering a tract of land claimed under a Mexican grant. The plaintiff introduced, in evidence, a grant made by Governor Alvarado, in 1842, for the “ Rancho de la Alameda.” This' grant describes the land as being bounded towards the south, by the creek “ Alameda,” towards the north, by the creek “ Alto,” towards the east, by the crest of the mountains, and towards the west, by the bay, and being for four leagues.

<p>The facts are set forth in the opinion.</p>

This action was commenced on the 18th of June, 1857, to recover the value of certain pork sold to defendants, pursuant to a contract dated February 25th, 1857.

This rfon m brought io recover damages for an alleged malicious prosecution and Ms® Imprisonment, for which, is claimed theyem ©f 020,000. The ©orapfemt contains two ©cuntí, charging two dig tine! nets ©f teeypaay tor which ten thowrnd dd/Aro h claimed to such cases. The action springs from the Mecy of Gw-wsl! & 'Do.

<p>The facta are fully set forth in the opinion.</p>

<p>Action for a decree of divorce on the ground of infidelity. The facts are referred to in the opinion.</p>

On the 20th of October, 1857, D. J. Tallant and others, commenced this action to obtain a mandamus to the treasurer tif the city and county of San Francisco, commanding him to make a certain disposition of moneys under his charge, and filed therein an affidavit to the following effect: That the city of San Francisco, being greatly indebted, the state legislature on the 1st of May, 1857, passed an act to provide for the funding and payment thereof.* In pursuance of said act,…

<p>On demurrer to the complaint.</p>

<p>The facts arfe.sufficiently set forth in the opinion.</p>

<p>Assumpsit.</p> <p>The fact that A. did not deny the existence of a certain indebtedness, charged against him by H, at a time when they were engaged about a different matter, is not sufficient evidence in an action in assumpsit, brought by $»., to sustain an averment that A. was indebted to him in an amount different from that which A. did not deny, and with interest.</p> <p>Whether or not it would sustain an action at all, qucsre ?</p>

<p>The facts are set forth in the opinion.</p>

The case is submitted upon a stipulated statement of facts,.which are substantially as follows *. G. W. Kinzer on the 6th of December, 1857, being then married to his co-defendant, bought in his own name, the property now owned and held by plaintiff.

<p>Liability—Bailee—Agent—Debtor.</p> <p>The bailee of money deposited for safe keeping by one in his own name, who had received it 'from a third party for the purpose of making a bet, according to the instructions and for the benefit of such third party, but who was not directed by the third party so to deposit the specific sum, with such bailee, is not liable for the same to such third party, in an action brought by the latter to recover the amount of the deposit.</p> <p>Whether or not the bailee will be so liable, depends upon the relation of the depositor to the third party as agent, as bailee or as debtor, which depends upon whether or not the depositor and third party treated the money as specific property or as currency.</p> <p>If the third party, when he parts with the money, contracts for the return or re-delivery thereof to another, the depositor is his agent, or bailee, and he retains his property in the coin in the hands of the second bailee; but if he so contract for the equivalent of the money, in any currency, he makes the depositor his debtor and parts with his property.</p>

The complaint in this action alleges, substantially, that plaintiff, Russell, brought an action against the defendant, in the United States District Court, to recover damages sustained by the bark “ Madonna,” belonging to plaintiff, by a collision with the Elvira,” the property of the defendant; that the Elvira ” was seized and released; that in said action plaintiff recovered, on the 7th February, 1855, $1640 damages, and $286 65 costs, against defendant, and the two…

Action against, the joint makers of a lost note. The facts are fully referred to in the opinion. On motion for anew trial.

<p>Injunction—Courts of Equity—Employment of Counsel abroad by a Municipality.</p> <p>Courts of equity will restrain certain acts of a municipal government by injunction.</p> <p>An individual tax payer can complain separately of an injury common to him and all the other tax payers living under one municipal government, and by which he sustains no special injury.</p> <p>The legislature cannot confer upon a municipal government other legislative powers than those which are essential to the due attainment of the local ends for which it is instituted.</p> <p>The funds collected by municipal taxation canlorily be applied to municipal purposes. The representatives of municipal corporations, as trustees of the corporation property, whether acquired by taxation or otherwise, come peculiarly within the province of a court of equity.</p>

TMs case was tried by the court, sitting as a jury. The facts proven on the trial were, that W. C. Amos was married to plaintiff in September, 1853, previous to which time the former had transferred to defendant, Ms interest in the pilot boats Jenny ” and Relief.” After the marriage, in November, of the same year, Griffin reconveyed this property to Amos and wife, who held it until September 17th, 1855,. when the former again transferred it, by bills of sale, to one Reddish,…

<p>Ejectment—Possession—Notice.</p> <p>A creditor taking real estate in satisfaction of a preexisting debt, holds it free of all equities of which he had not notice.</p> <p>Possession is equivalent to notice of an equity in the occupant, arising from an acquiescence by the grantor of the purchaser in the sale by another to the occupant, though not of an equity arising from an unrecorded deed to him from the purchaser’s grantor.</p>

<p>Change of Venue.</p> <p>A change of venue will not be granted on the ground of convenience of witnesses of one party, when it will work equal inconvenience to the witnesses of the other party.</p>

<p>Motion to set aside a judgment on remittitur entered by the clerk. The material facts are set forth in the opinion.</p>

On report of G. A. Grant, Fsq., in the matter of the petition and claim of Cohen, Roman f Jones, assignees appointed in insolvency, of the assets of Adams g Co. for services and disbursements.

<p>ASSIGNMENT'— ATTACHMENT — PARTNERSHIP — JURISDICTION—RECEIVER—Court oe Equity—Stipulation—Distribution of Assets.</p> <p>In this state in an action in equity, the district courts have jurisdibtion to dissolve partnerships, and may declare them void ab initio, if there has been fraud, imposition or misrepresentation in the original agreement.</p> <p>Where a partner has a right to dissolve the partnership, it is a matter of course to appoint a manager or receiver of the property.</p> <p>The order-appointing a receiver followed up by giving the requisite security, is treated as an equitable sequestration of the property which vests in him as the officer of tha court without an assignment from the owners.</p> <p>The court will ultimately make such disposition of the property as will preserve the legal and equitable right of every claimant, it being the rule in equity that when the court gains jurisdiction for one purpose, it retains it generally, for relief.</p> <p>The receiver is for the benefit of all parties wiio may establish rights in the action. The property is in custodia legis for whoever can make out a title to it. It is the eom* itself which has its custody and possession; tire receiver, at common law, independent of any statute, is the creature of the court, and cannot be disturbed by a party or all the parties, without leave of the court. . The court will protect the property in his possession from acts of violence or suits at law.</p> <p>An equitable sequestration of property in an equity suit, is not an assignment within the meaning of our insolvent laws.</p> <p>Assets belonging to an equity suit, in court, and reduced to tho possession of the receiver, are not the subject of attachment in an action at law.</p> <p>After a reference and notice for all creditors to prove claims, &c., the court will not allow the parties to stipulate away the rights of those who have intervened before the referee.</p> <p>If no preferences or priorities of payment or liens are established, the assets will be die. tributed pro rata among all the creditors.</p>

Action for a divorce brought by a wife on the ground of extreme cruelty on the part of- the husband. The evidence established that he had repeatedly, in the presence of others, charged her with a want of Chastity, and had, on at least two occasions, inflicted bodily injury, though of rather a slight character, upon her. That they had been -married about nine years, .and had two children.

<p>The facts are fully given in the opinion.</p>