Volume 1 — California Unreported Cases

<p>'APPEAL from County Court, Yuba County.</p>

<p>Evidence. — The Jury is the Best Judge of the Weight of evidence, and more capable of arriving at conclusions than the court where the controversy refers to matters of common transaction.</p>

<p>New Trial. — The Exercise of Discretion by the Trial Court in granting a new trial will not be too closely scrutinized, particularly when the granting has been conditional upon payment of costs by the party favored.</p>

<p>APPEAL from San Francisco County.</p>

<p>Agency — Ratification by Principal. — If Lumber is Accepted by a Carpenter for, and put by Mm into, the construction of a boat, and the facts are at the time within the knowledge of the boat’s owner, the latter, although he has given the carpenter no authority to buy for him, is to be regarded as having ratified the acts of the carpenter as those of his agent, and he is responsible for the price of the lumber.</p>

<p>Appeal. — A Verdict Found by a Jury on Conflicting Evidence will not be disturbed on appeal.</p> <p>Appeal. — An Appeal from Instructions, Given or Refused, not appearing to have been excepted to, will not be entertained.</p> <p>Appeal. — Assignments of Error not Apparent in the Record will not be considered.</p>

<p>Jury. — By Expressly Waiving a Juryman’s Incompetency, as being nonresident of the county, a person under trial for crime would be conferring jurisdiction by consent, which cannot be done.</p>

<p>Trial — Special Verdict. — Where a Complaint Sets TTp a Contract whereby the plaintiff was to release a debt due irom defendant and give him an acceptance for more money, in consideration for which defendant was to deliver certain merchandise to him, and alleges then that afterward the parties changed the contract to the extent that the payment of sixteen hundred dollars by defendant to plaintiff was substituted for the delivery of the merchandise, and the jury at the trial brought in a special verdict to the effect that the contract as set up in the complaint was the contract of the parties, the verdict is not bad as leaving questions of fact for the court to find.</p> <p>Appeal. — A Judgment will not be Reversed as being against the weight of the evidence when there is sufficient in the record to justify it.</p>

<p>APPEAL from Superior Court of San Francisco County.</p>

<p>Reformation of Instruments. — The Assignment of a Lease does not carry with it the lessee’s right to have a court of equity reform the lease for cause shown.</p>

<p>Witnesses. — The Question of the Incompetency of a witness to testify because of interest must be raised at the trial.</p>

<p>Bill of Exceptions. — Although All the Testimony Need not be Embodied in the statement of the ease or in a bill of exceptions, there should be enough of it there to disclose to the court the points in controversy.</p>

<p>Judgment. — After a New Trial, had Agreeably to Stipulation between the parties, a judgment that the first judgment “shall stand,” the court thus adopting the findings upon which that judgment was rendered, is good.</p>

<p>APPEAL from Fifth Judicial District, Tuolumne County.</p>

<p>Reference. — A Referee must, in His Report, state tlie facts found and the conclusions of law.</p>

<p>Venue. — An Appeal from a Refusal of a Change of venue will not be considered, when the affidavits on which the application was based are not embraced in the statement or bill of exceptions.</p>

<p>Dismissal of Action — Presumption.—In the Absence of Any Showing to the contrary, the reason had by the tria] court for dismissing an action must be presumed good and legal.</p>

<p>APPEAL from Third Judicial District, Alameda County.</p>

<p>APPEAL from Fifth Judicial District, Tuolumne County.</p>

<p>APPEAL from Twelfth Judicial District, San Francisco County.</p>

<p>APPEAL from Superior Court, San Francisco County.</p>

Sessions, Sacramento County. The defendants were charged with grand larceny and the imputed theft was of four hundred and fifty ounces of gold-dust. At the trial a witness, on being asked by the prosecution if he could point out the man whom he “saw have the dust,” said that he “must give a qualified answer.” The court instructed him to answer directly, adding that after so doing he might give any explanation of his answer that the facts warranted.

Rogers and others, doing business in San Francisco as ‘ ‘ The Hide Company,” sued for a balance of account, to wit, $983.62, for money advanced to the defendant from time to time at .his special request between October 6, 1853, and March 20, 1855. The answer denied generally and also set up a counter-indebtedness, a balance of $603.50, for hides sold to the plaintiffs at times varying between October 6, 1853, and May 1, 1855.

<p>APPEAL from Sixth Judicial District, Sacramento County.</p>

<p>New Trial — Motion by Both Parties. — The granting of a new trial on motion of both parties is not an abuse of discretion so as to justify reversal.</p> <p>Appeal — Points Outside of Record. — Points not raised by the record or necessary to be considered in disposing of an appeal are to be disregarded.</p>

<p>Appeal — Evidence not in Record. — A Judgment by the Court upon evidence submitted by the plaintiff in default of the defendant’s appearance, such evidence not being made a part of the record, is conclusive on appeal.</p> <p>New Trial — Conflicting Evidence. — Affidavits of Counsel filed with a motion for a new trial and the counter-affidavits filed by the opposing counsel may go to make up conflicting testimony within the rule against disturbing the trial court’s order disposing of such a motion, when based upon conflicting testimony.</p>

<p>APPEAL from Third Judicial District, Alameda County.</p>

<p>APPEAL from Fifteenth Judicial District, Trinity County.</p>

<p>Bills and Notes. — One Who Takes by Indorsement a Fraudulent Note, with knowledge of the fraud, cannot enforce it against the alleged maker.</p>

<p>Appeal — -Frivolous Appeal — Penalty.-—An appeal by a defendant from a money judgment, where the answer controverted no fact set up in the complaint, and no evidence of payment was offered at the trial, is a frivolous appeal, warranting affirmance of the judgment and the adding of twenty per cent damages.</p>

<p>APPEAL from Fourteenth Judicial District, Nevada County.</p>

<p>APPEAL from Probate Court, Butte County.</p>

<p>Reformation of Instruments — Jurisdiction of Equity. — To reform or alter the terms of a written contract for mistake, etc., is within the jurisdiction of courts of equity.</p> <p>Reformation of Instruments. — The Mistake as to Which the Terms of a written contract may he reformed on application to a court of equity must he proved to such court hy competent evidence.</p>

<p>APPEAL from Second Judicial District, Santa Barbara County.</p>

<p>Appeal — Denial of Motion — Matter Beyond Jurisdiction. — An order denying a motion, made too late for the court to have jurisdiction of it, cannot be inquired into upon appeal from an order involving the same subject matter.</p>

<p>APPEAL from Santa Cruz County.</p>

<p>APPEAL from Fifteenth Judicial District, Trinity County.</p>

<p>Execution — Liability of Sheriff. — In an Action to Recover Damages from a sheriff for levying upon the plaintiff’s alleged property in execution of a judgment against a third person, the jury may find upon the validity of a sale of the property to the plaintiff by the judgment debtor on the day of the levy.</p>

<p>APPEAL from Santa Cruz County.</p>

<p>APPEAL from Sixth Judicial District, Sacramento County.</p>

<p>APPEAL from Superior Court, San Francisco County.</p>

<p>APPEAL from Fourth Judicial District, San Francisco County.</p>

APPEAL ■ from Fourth Judicial District, Sau Francisco County. The suit was to foreclose a mortgage made by Orrin F. Bailey and Annie F. Bailey, his wife. The note and mortgage were for the purchase money of the premises and the latter were common property of the husband and wife. Against the latter there was no deficiency judgment asked or recovered.

<p>Trial — Refusal of Particular Instruction. — Judgment will not be reversed for error in refusing a particular instruction, when the charge given embraced such instruction in substance.</p>

<p>APPEAL from Mariposa County.</p>

The plaintiff applied for an injunction to restrain the defendants from proceeding upon an execution issued by a justice of the peace on a judgment for less than two hundred dollars. White had been unsuccessful defendant in an action before the justice brought by James McKeever and T. H. Nickerson. Harris was assignee of the judgment and Stocker the sheriff of Marin county into whose hands the writ had been placed.

<p>Nonsuit — Failure of Defendant to Answer. — A nonsuit in a canse in which the defendant had filed no answer may properly be set aside, and there should be a new trial awarded the plaintiff.</p>

This was an action of trespass brought for an entry, as alleged, unlawful and with force of arms, upon the plaintiff’s property and for the tearing away of its toll-gate.

This was a suit in equity to set aside as fraudulent a sale made on October 10, 1855, by tbe board of state land commissioners, to enjoin tbe delivery of a deed following this sale, and to compel a conveyance of the land involved to the plaintiff.

<p>APPEAL from Fifth Judicial District, Tuolumne County.</p>

<p>•APPEAL from Superior Court, San Francisco County.</p>

<p>APPEAL from Fourteenth Judicial District, Sierra County.</p>

<p>APPEAL from Eighth Judicial District, Siskiyou County.</p>

<p>APPEAL from Thirteenth Judicial District, Mariposa County.</p>

<p>APPEAL from Tenth Judicial District, Yuba County.</p>

<p>Bills and Notes. — Possession of a Note is Sufficient to Enable tbe holder to sue to enforce payment.</p> <p>Mortgage. — The Security Follows the Note Secured; hence the holder of a mortgage note has the rights of a mortgagee, although there may have been no actual assignment of the mortgage.</p> <p>Pleading. — The Purpose of a Complaint is that the defendant shall be advised of the facts relied upon by the plaintiff! to support his action.</p> <p>Mortgage Foreclosure — Description of Premises. — In a suit to foreclose a mortgage the description of the premises may be either contained in a schedule attached to, or incorporated in, the body of the complaint.</p> <p>Mortgage. Foreclosure — Judgment.—Where a Mortgage Provides that the percentage be allowed on the sum due and the judgment in foreclosure so allows it, rather than on the value of the property, there is no error.</p> <p>Appeals — Frivolous Appeal — Damages. — An appeal without merit calls for the imposition of damages.</p>

<p>Judgment — Setting Aside — Jurisdiction of Trial Court. — After the expiration of the term during which a judgment is made the trial court is without jurisdiction to set it aside, except in a case where the defendant was not served with process.</p>

<p>APPEAL from Sixth Judicial District, Sacramento County.</p>

<p>APPEAL from Placer County.</p>

<p>Appeal — Defective Record not Cured by Certificate of Judge. — • The evidence stated in the record must be agreed on by the parties and signed by the trial judge, and a record defective in this regard is not made good by being certified by the judge to be correct.</p> <p>New Trial. — The Admission of Improper Evidence is, on appeal, no ground for a new trial unless shown to have been objected to.</p>

<p>Assault and Battery — Excessive Damages. — A judgment for five thousand dollars for an assault and battery is held excessive and reversed.</p>

<p>Homestead. — Occupancy—Family Eesidence. — To constitute a homestead there must be actual occupancy, with intent to devote the property to the purpose of a family residence.</p>

This was an action by the assignee of a mortgage to foreclose the latter. The assignment was of a time preceding the maturity of the note secured.

<p>Continuance — Diligence. — An Application for a Continuance should be denied on a showing that the applicant has been lacking in diligence.</p>

<p>Appeal — Order Denying Continuance — Absence of Affidavits.— An appeal from an order denying a continuance will not be considered when the affidavits upon which the application was made are not embodied in the statement or bill of exceptions.</p>

This was an action to foreclose a mortgage. The facts were these: On April 7, 1851, A. M. Cooper conveyed by deed to Michael McCarty. On December 16, 1853, McCarty, being then a married man and the premises being occupied as the family homestead, executed a mortgage to William C. Gray in which mortgage the wife did not join. On October 23, 1854, McCarty and wife joined in a note and mortgage to the plaintiff. .

<p>Execution. — Things in Action are Property so as to be subject to levy in execution.</p>

<p>Sessions, San Francisco County.</p>

<p>APPEAL from Fourteenth Judicial District, Nevada County.</p>

<p>APPEAL from Tenth Judicial District, Yuba County.</p>

<p>APPEAL from Fifth Judicial District, Tuolumne County.</p>

<p>APPEAL from Sixth Judicial District, Sacramento County.</p>

<p>APPEAL from First Judicial District, Los Angeles County.</p>

<p>Appeal. — Liability on an Appeal Bond Does not Attach upon reversal of the judgment appealed from with directions to enter a different judgment.</p>

<p>Mandamus — Direction to Audit Claims. — A court’s mandate to the board of supervisors of a county directing it to proceed to audit certain claims is not to be taken as directing an audit that must be favorable to the petitioner.</p>

<p>'APPEAL from Sacramento County.</p>

<p>Judicial Officer — Liability for Acts. — An act of any sort by a judicial officer, provided it is judicial in cbaracter, is not a thing the officer can be made to answer for in an action by the person conceiving himself aggrieved.</p>

<p>Criminal Law — Right of Defendant to Written Instructions.— The defendant in criminal eases enjoys a right by statute to have the court’s instructions in writing, to insure their preservation in authentic and accurate form.</p> <p>Criminal Law — Waiver of Rights — Presumption.—There is, in criminal cases, no presumption to the effect that the defendant has waived a right; the reeord must show the waiver.</p>

<p>APPEAL from Fourth Judicial District, San Francisco County.</p>

<p>APPEAL from Fifteenth Judicial District, Colusa County.</p>

<p>Partnership. — The Eight of a Surviving Partner to Settle the Affairs of the firm results wholly from the joint interest whereby he might claim to hold the assets as if he were the owner; no such right inheres in one who has sold his entire interest to his copartner, even though he may not yet have received the purchase money.</p> <p>Administrator — Claims of — Presentation.—The statutory requirement that in the settlement of estates the claim of an administrator, not growing out of his official position, must be presented to the probate judge for allowance, was intended merely as a protection and authentic voucher for the administrator on his settlement.</p> <p>Administrator — Claims of — Failure to Present. — -An administrator is not precluded from his credit, in respect of any claim he may have unofficially against the estate, by his failure to have the claim allowed in the first instance by the judge of probate; but may show the existence and justice of the claim when settling his accounts, being prepared with his proofs in case he is challenged by the distributees.</p>

<p>Appeal. — No Exception can be Regarded on Appeal Unless its relevance and materiality is disclosed by the record.</p>

<p>From Colusa County.</p>

<p>APPEAL from Fifth Judicial District, Amador County.</p>

<p>Appeal — Reversal—Remand for Further Proceedings. — A reversal of a judgment and remanding for further proceedings does not import that the trial court shall, from the facts originally found, enter judgment in favor of the party not favored before.</p>

<p>APPEAL from Fourth Judicial District, San Francisco County.</p>

<p>Appeal — Report of Referee — When not Disturbed. — A judgment upon a report of a referee, where no motion has been made to set it aside or for a new trial, will not be reviewed on appeal.</p>

<p>Animals — Liability for Pasturage. — Where One Contracts to have cattle pastured, the fact that he does not own all of them does not affect his liability to pay for the pasturage.</p> <p>Appeal.- — It is not Necessary to Give Damages because an appeal was taken without reason, when the appellant has only stayed his own judgment drawing ten per cent interest.</p>

<p>Forcible Entry and Detainer — Findings—Appeal.—Where, in a case of forcible entry and unlawful detainer,, the court below has made findings which the evidence is sufficient to support, the findings will not be disturbed.</p>

<p>Reference. — When, Under an Appropriate Stipulation, an order of reference is made with authority to the referee to try the issues and report a judgment, and the referee thereupon overrules a demurrer to the complaint and promptly reports a judgment for the plaintiff which the elerlr of court enters on the same day, and subsequently execution is issued, it is proper for the court, upon motion and affidavits and the papers in the case, to set aside the judgment and execution and to grant to the defendant, he having moved with due diligence under the stipulation, leave to file his answer to the complaint.</p>

<p>APPEAL from Eleventh Judicial District, Placer County.</p>

<p>New Trial. — A Failure to Prosecute a Motion for a New Trial is to be regarded as an abandonment of it, and an order, made upon application of the opposing party in such a case, refusing the new trial, is to be upheld.</p>

This was a suit to enforce the delivery of a deed by Pollard and others composing the Shady Creek Water Company, and for an accounting as to the proceeds of a certain interest in the Irish or Double Tunnel Company. The facts were these: On the 17th of June, 1856, Pollard, the agent of the water company, entered' into an agreement with the plaintiff and one Thomas Fant.

This was an action of ejectment, to recover possession of one hundred and sixty acres of land in Siskiyou county.

<p>APPEAL from Fifteenth Judicial District, Plumas County.</p>

<p>Appeal — Reappearance of Case — Reaffirmance.—A Judgment in Accordance with the principles of a past decision on appeal of the same case is to be affirmed.</p>

<p>APPEAL from Twelfth Judicial District, San Francisco County.</p>

<p>Reference — Appeal.—Where a Referee, who has had the witnesses before him and heard them testify, files his report, and the district court refuses to set this aside, such refusal is to be upheld.</p>

<p>Taxation. — Where a Default Judgment is given for, among other things, taxes levied without authority, the supreme court will remand the case.</p>

<p>Special Verdict. — In Regard to the Sufficiency of a Special Verdict, -when the question submitted is whether one in employing another acted for himself or as an agent, the rule is that enough must he found, when the verdict is relied on as the basis of a judgment, to show in and of itself a legal conclusion of liability.</p>

<p>New Trial. — An Order Granting a New Trial will be Sustained on Appeal in all cases where an abuse of discretion by the trial court is not shown.</p>

<p>Appeal. — Undue Delay in Filing Assignments of Error After Sending up the record calls for a dismissal of the appeal for lack of prosecution.</p>

<p>APPEAL from Fifteenth Judicial District, Sau Francisco County.</p>

<p>Trial — Verdict Against Evidence. — A Verdict for Defendant, who has-offered no evidence, in an action in which the plaintiff has proved plainly a prima facie ease, cannot be sustained.</p>

<p>Homestead — Effect of Filing After Attachment. — If a declaration of homestead has been duly filed- within the time required by-statute, although after a levy in attachment, on premises occupied as their homestead by the owner and his wife from the time of their acquisition, such premises do not pass under a sheriff's deed sought to be made by virtue o-f the judgment and levy in the attachment proceedings.</p> <p>Appeal — When, Unnecessary to Eemand Case for Hew Trial.— Where on appeal the facts appear in an agreed statement, and show a party to be entitled to a judgment, it is unnecessary to send the ease back to the court below for a new trial.</p>

<p>Mortgage — Foreclosure—Parties.—The Owner of the Legal Title is a necessary party to a suit for the foreclosure of a mortgage.</p> <p>Mortgage. — The Mortgage is Simply a Lien, a Mere Incident to the debt it is intended to secure; and the interest of the mortgagor, under former systems an equitable interest denominated an equity of redemption, is under our system regarded as the legal title in every sense and for every purpose.</p> <p>Mortgage. — The Object of a Foreclosure Suit, so far as concerns the land, is to subject that to sale for the satisfaction of the debt and to bar the parties, brought before the court, from all right to redeem it, except as allowed by statute, from the sale under the decree.</p> <p>Mortgage. — Strict Foreclosure is not Known to Our Law, but under our system the court decrees that the mortgagor’s interest in the land, held by him when executing the mortgage or acquired by him subsequently, be sold in satisfaction of the debt.</p> <p>Mortgage Foreclosure. — The Only Object or Effect of the Statute relative to foreclosures of mortgage is to afford a protection to a subsequent purchaser for a valuable consideration and without notice.</p> <p>Lis Pendens. — The Statute has not Declared the Effect of a notice of lis pendens, but merely says that “from the time of filing only shall the pendency of the aetion be constructive notice to a purchaser or encumbrancer of the property affected thereby.”</p> <p>Lis Pendens — Not Retroactive. — The notice of lis pendens is not made to reach back, by relation, from the time of its being filed, so that a person who acquired an interest in the property subjected to litigation before tie suit was begun shall be affected by such filing with notice of tie suit.</p> <p>Mortgage Foreclosure — Unknown Owner. — If a plaintiff in foreclosure is mistaken as to or ignorant of the actual ownership of the property when bringing his suit, his course is, upon learning who is the true owner, to bring the latter before the court during the proceedings, or else after the proceedings have his interest subjected to the decree.</p> <p>Deed — Unrecorded Conveyance by Mortgagor. — There is no rule, either by statute or in equity, whereby an unrecorded deed, made by a mortgagor after executing the mortgage and before suit to foreclose it is begun, shall be treated as made pendente lite.</p> <p>Execution — Sheriff’s Certificate. — No Title Passes by the Sheriff’s Certificate; it requires the deed to vest title in a purchaser at a sheriff’s sale. The purpose of having the certificate filed is, that the judgment debtor and the redemptioners shall have information necessary for them to have in coming in to redeem.</p> <p>Mortgage. — The Grantee of an Unrecorded Deed to the Mortgaged Property, made after the execution of the mortgage, is not, after the mortgage has been foreclosed, estopped to claim such property as against the purchaser at the foreclosure sale by his having been aware of the proceedings while they were going on, and even though he acted as attorney for the defendants in those proceedings, the mortgagee and such purchaser not knowing of his interest.</p>

<p>Application for mandamus.</p>

<p>Partnership — Right of Surviving Partner to Extend Time.— It is competent for a surviving partner, closing up the affairs of the firm, to extend an outstanding contract made with the partnership, where such extension seems to him for the interest of the business so being closed up.</p>

<p>Evidence. — To Disprove Title in the Defendant’s Grantor, a deed executed long after his entry, and the record of a suit begun long after also, to which suit such grantor or the defendant was not a party or privy to a party, are not admissible.</p>

<p>Supreme Court — Jurisdiction not Retrospective. — The jurisdiction of the supreme court, for the purposes of a particular appeal, remains as of the time when the appeal was taken.</p> <p>Supreme Court. — The Jurisdiction Given the Supreme Court, where the validity of a tax is impeached, does not go to the reviewing of a case where the question is, not the validity of the tax, but whether the court appealed from had the power to impose a penalty for not paying it.</p>

<p>APPEAL from Fourteenth Judicial District, Placer County.</p>

<p>APPEAL from Seventh Judicial District, Solano County.</p>

<p>APPEAL from Third Judicial District Court, Santa Clara County.</p>

<p>APPEAL from Fourth Judicial District, San Francisco County.</p>

<p>APPEAL from Fifth Judicial District, San Joaquin County.</p>

<p>APPEAL from County Court of Napa County.</p>

Judicial District, Sierra County. The suit was in ejectment against McNulty and twelve other persons. The plaintiff alleged in his complaint lawful possession and ownership in 'him of, and title to the possession of, property described as “one full undivided thirty-second part of the following piece or parcel of land and mining ground, ’ ’ etc., and set forth the other usual allegations, all of which were denied in the answer.

<p>APPEAL from Fourth Judicial District, San Francisco County.</p>

<p>APPEAL from Ninth Judicial District, Shasta County.</p>

<p>New Trial — Death of Judge — Appeal.—Where the Record is not definite in respect to the facts, and the disposition of the motion for a new trial has been made by a judge other than the trial judge, then dead, the court on appeal is not justified in overruling the discretion of the court below.</p>

<p>Venue — Change for Convenience of Witnesses. — Where the court is satisfied from the affidavits that the convenience of witnesses requires the action to be tried in the county in which it was brought a change of venue should be denied.</p>

A widow and her son, of the name of Bernal, became, by the death of the husband and f-ather, owners of two certain ranchos in the county of San Francisco. They sold portions from time to time and, on September 20, 1856, conveyed to one Higuera “all the land unsold” except one hundred acres, indefinitely mentioned and to which reference will be made below.

<p>APPEAL from Twelfth Judicial District, San Francisco County.</p>

<p>New Trial — Questions not Excepted to. — Questions arising upon rulings of the court during the trial and not excepted to at the time cannot be raised as grounds for a motion for a new trial.</p>

This was an action of claim and delivery. The defendant was a constable, and had levied upon forty-five tons of hay, on, the farm of one Daniel Griffin, in execution of two judgments against Griffin. The hay, although on Griffin’s farm, was the property of McDermott under a verbal agreement, as to which McDermott testified: “Griffin and I bad an agreement to cut his field of grass and put it into shocks for a share, one-half; I to furnish machine and men.

<p>Tender — United States Legal Tender Act. — A tender of money under the United States Legal Tender Aet of February 25, 1862, is good in this state.</p>

In a loan transaction Petree gave one William Yule his note for three hundred dollars, dated November 26, 1859, and payable to Yule’s order six months after date, with interest at three per cent per month and to be compounded. The note was secured by mortgage on real estate.

<p>APPEAL from Butte County,</p> <p>Claim and delivery.</p>

<p>Appeal — Maimer of Preparing — Indifference to Statute. — In order to have the court consider an appeal the appellant must bring it agreeably to the one hundred and ninety-fifth section of the Practice Act; gross irregularities in the manner of bringing the case up cannot be overlooked.</p>

<p>APPEAL from Twelfth Judicial District, San Francisco County.</p>

<p>APPEAL from Twelfth Judicial District, San Francisco County.</p>

<p>APPEAL from Fourteenth Judicial District, Placer County.</p>

<p>Ejectment — Claim Through One Who has Abandoned Premises. In ejectment the defense must show something more than a deed —of premises not really including those in suit — from one who had abandoned possession two years before the plaintiff’s entry.</p>

<p>APPEAL from Thirteenth Judicial District, Mariposa County.</p>

<p>APPEAL from Fifteenth Judicial District, Butte County.</p>

<p>Appeal. — Where Manifestly the Judgment is Correct, even conceding error where alleged as made in course of the trial, it should not he disturbed.</p>

<p>Judgment — Relief in Excess of Demand in Complaint. — A judgment may not be given for relief beyond that demanded in the complaint or for a sum in excess of the sum demanded.</p> <p>Judgment — Relief in Excess of Demand — Modification on Appeal. — On its being shown that a judgment by default has been taken for a sum greater than that asked for in the complaint and against more and other persons than named in the summons and complaint, and that the demand in the summons was beyond that in the complaint, the court on appeal may order the plaintiffs to file their written consent to a modification of the judgment within a time named, in default of which consent the judgment must be reversed.</p> <p>Costs. — In Disposing of 'an Appeal from a Default Judgment, given against other than parties named in the complaint, for a sum beyond that demanded in the complaint, and in a case where the sums mentioned in the summons and in the complaint differed in amount, the defendants are to be awarded costs.</p>

<p>APPEAL from Fifth Judicial District, San Joaquin County.</p>

<p>APPEAL from Fifth Judicial District, San Joaquin County.</p> <p>Action to recover possession of real property.</p>

<p>APPEAL from Twelfth Judicial District, San Francisco County.</p>

<p>APPEAL from Twelfth Judicial District, San Francisco County.</p>

<p>Pleading — Demurrer—Complaint Good in Part. — The sustaining of a demurrer to a complaint containing three counts is error if one of the counts is good as set out.</p>

<p>Payment — Legal Tender Act. — A Judgment on a Contract entered into before the passing of the national legal tender acts is payable in such treasury notes as are specified in such acts, unless the contract expressly provided for payment in gold.</p>

<p>Taxation. — In ’an Action to Collect Delinquent Taxes, an averment in the complaint, that “the tax collector had failed to collect the delinquent tax aforesaid by reason of his inability to find, seize or sell property of the delinquents,” is a material averment, so that an answer denying it is neither irrelevant nor frivolous.</p> <p>Taxation. — In an Action to Collect Delinquent Taxes an answer denying an averment in the complaint that “the tax collector had failed to collect the delinquent tax aforesaid hy reason of his inability to find, seize or sell property of the delinquents,” is not contrary to the act of 1861, page 471, which provides that the defendant in such cases shall not be allowed to show any informality in the levy or assessment as a defense.</p> <p>Taxation. — In an Action to Collect Delinquent Taxes an answer denying an averment in the complaint that “the tax collector had failed to collect the delinquent tax aforesaid by reason of his inability to find, seize or sell property of the delinquents,” indicates a defense on the ground, not that the defendants were not liable to pay the taxes sued for, brrt that the suit had been brought prematurely.</p>

<p>APPEAL from Seventh Judicial District, Sonoma County.</p>

<p>APPEAL from Twelfth Judicial District, San Francisco County.</p>

<p>APPEAL from Tenth Judicial District, Yuba County.</p>

<p>APPEAL from Eighth Judicial District, Humboldt County.</p>

<p>Injunction — Dissolution.—The Filing of a Bond After the Expiration of the time named in an order dissolving an injunction, unless a bond be- filed within such time, cannot keep the injunction alive.</p>

This was an action of ejectment. The plaintiffs alleged entry upon and location of, for mining purposes, “all that certain mining claim, or quartz ledge or lode, lying and being in Prairie District, Yuba County, California, described as follows,” etc. At the trial questions were submitted by the court to the jury, answers to which were returned, categorically by way of a special verdict, to the effect that between the 25th of December, 1863, and the 27th of February, 1864,…

Davis, 23 Cal. 381), alleged to have been obtained by fraud, and to restrain the issue of execution on these judgments.

<p>APPEAL from First Judicial District, Santa Barbara County.</p>

<p>APPEAL from Fourth Judicial District, San Francisco County.</p>

<p>APPEAL from Fourth Judicial District, San Francisco County.</p>

<p>New Trial — Time for Motion. — Under the Statute the Ten Days within which a party may move for a new trial are to be computed from the day of his being given notice of the filing of the findings.</p>

<p>County — Purchase of Land — Mandamus to Assess Tax to Pay.— When a statute provides, as a condition precedent to a valid purchase by county supervisors, a valuation of the property in manner specifically prescribed in the act, an alleged vendor to the county, who petitions for a mandamus to have a tax levied to pay him his price, must allege that the condition had been complied with before the sale.</p> <p>Pleading — Defective Petition. — When from the facts stated in a petition it does not appear that the petitioner is entitled to what he asks, the petition is to be considered as substantially defective.</p>

<p>APPEAL from Seventh Judicial District, Solano County.</p>

<p>An Indictment Against One for Destroying a Dam Sufficiently Locates the dam as within the county where the indictment is found when it charges that the act charged was committed within that county.</p> <p>An Indictment States the Offense Sufficiently When It Follows the language of the statute describing the act which it makes a criminal one.</p>

<p>Trial. — The Refusal of Particular Instructions asked is not reversible error, even though properly they might have been granted, in a case where the court has put the substance of these instructions into the charge it actually gave.</p> <p>Trial — Instructions.—Inaccuracy or Want of Precision in instruetions to a jury is not reversible error unless thereby the party complaining was actually prejudiced.</p> <p>Criminal Law — Principal and Accessories — Instructions.—One who could not have been proceeded against as other than a principal cannot be prejudiced by a refusal to grant instructions relating to accessories.</p> <p>Criminal Law — Refusal of Instructions — Eifect on Jury. — The mere fact of refusing particular instructions aslted by the defendant cannot prejudice the jury against him when the jury has not heaTd them read and refused as read.</p>

<p>Larceny — Legal Tender Act. — In Fixing Fifty Dollars as the value test of property stolen, in order to make the charge grand larceny, the legislature is not presumed to have contemplated national legislation thereafter making a new sort of money legal tender.</p>

<p>Taxation — Public Lands — Presumption.—For purposes of taxation there is no presumption of law that land occupied by private persons, assessed in due form by the proper officers as private property and sold for taxes, is a part of the public domain and not subject to taxation.</p> <p>Taxation — Public Land.' — It is Insufficient Merely to claim land as United States government land, and hence exempt from taxation; the person concerned must show the faet.</p> <p>Tax Sale. — A Tax Deed is Made by Statute Prima Facie Evidence of title in the grantee.</p>

<p>APPEAL from Eleventh Judicial District, El Dorado County.</p>

<p>Appeal. — By Failing to File the Notice of Appeal before the lapse of the statutory time for filing it, a party who would appeal from a judgment loses the right.</p> <p>Appeal — Order Denying New Trial — Specification of Grounds.— On appeal from an order denying a motion for a new trial, the statement in the record must contain a specification of the grounds the motion was based on; a setting forth of the points in a general way in the motion itself will not suffice.</p>

<p>APPEAL from Third Judicial District, Santa Clara County.</p>

<p>Bills and Notes — Bona Fide Holder — Counterclaim.—In an action on a note, indorsed in blank and transferred for value before maturity to the plaintiff, the maker cannot set up by way of counterclaim a claim against an intermediate holder of the note assigned to the defendant after the note came into the plaintiff’s hands.</p>

<p>Evidence.- — A Resolution of a Board of Directors, or of stockholders, to reimburse a named person for the amount expended by him in developing a mine may be an admission of indebtedness, but it is not sufficient to support a count in a complaint “for money loaned” the company.</p> <p>Evidence. — A Resolution of a Board of Directors, or of stockholders, appropriating a sum “not exceeding thirty thousand dollars” “from the first proceeds of the Fellows Mine” to reimburse, etc., is not evidence to be relied on by the person to be reimbursed in a suit by him, or his representatives, against the company to prove any particular sum to be due or the time when any money became due.</p>

The allegations of the complaint went to the- following effect.

<p>Appeal — Points not Urged by Appellant. — On appeal from the disposition of a motion for a new trial, when the sole ground for the motion, as specified in the statement, is the insufficiency of the evidence to justify, the findings, the court is precluded from considering other points urged by the appellant.</p>

<p>APPEAL from Placer County.</p>

<p>APPEAL from Third Judicial District, Alameda County.</p>

<p>Tax Sale. — A Tax Deed Describing the Property conveyed as “an undivided interest in the,” etc., is not had for misdescription if otherwise it identifies the property, mentioning the record owner, whose interest was an undivided one, and the assessment to him.</p>

<p>APPI AL from Twelfth Judicial District, San Mateo County.</p>

<p>Judgment — Res Judicata. — Where There are Two Judgments in Different Suits, commenced at different times, between the same parties, involving the same subject matter, and determining the same points in different ways, the party prevailing in the first suit will be estopped by the judgment in the last; this judgment can operate as an estoppel, however, only upon those matters which were necessarily determined.</p> <p>■ Ejectment. — A Plaintiff in Ejectment must Recover, if at All, only on the strength of his own title; and if he fails to show a right of possession in himself, it matters not whether the defendant has title or not.</p> <p>Vendor and Vendee — Transfer by Obligee in Bond to Convey.— Where it appears, in a transaction relating to land, that the title was intended to remain in the obligor and that the instrument is merely a bond to convey when payments are made according to the conditions, the obligee can meantime transfer to a third person nothing but a right to be given a deed upon payment in full.</p> <p>Deed to Clear Title — Validity.—When One Yields a Large Consideration in Rents, damages and costs for the purpose of clearing up his title, the deed, in the transaction, from the recipient of the consideration is not to be regarded as ineffective for the purpose merely because the subject matter is described as “a claim against the lot.”</p>

<p>Appeal — Failure to Prosecute — Damages or Penalty. — After an appeal had been perfected and then allowed to rest for two terms unprosecuted, the judgment appealed from may, on motion by the respondent, be affirmed with damages as for an appeal frivolous and intended for delay only.</p>

The suit was ejectment. The complaint was filed June 1, 1864, and in it the plaintiff alleged that on June 5, 1861, he had possessed and had been entitled to the possession of a described lot of ground in San Francisco; he alleged ouster and ejectment by the defendants on June 6, 1861, while he had so possessed, and unlawful detention of the premises from him, to his damage in the sum of five thousand dollars; also that the annual rents and profits of the premises were three…

<p>Appeal — Sufficiency of Evidence to Sustain Findings. — The supreme court will not hold there was insufficient evidence at the trial to justify the findings, even though the findings seem to be contrary to the weight, of the evidence.</p>

<p>Ejectment — Purchaser Pending Action — Relief from Judgment. Where suit has been brought for the recovery of real estate, a purchaser from the defendant before any trial has been had cannot let the suit go undefended and after judgment for the plaintiff seek in equity to have the judgment annulled on the ground of surprise.</p> <p>Ejectment — Sale Pending Action — Defense by Purchaser.— Where suit has been brought for the recovery of real estate, a purchaser from the defendant before any trial is had has no right to look to the vendor to continue the defense of the suit, since by the purchase such defense has become his own concern.</p> <p>Ejectment — Sale Bending Action — Counsel for Defendant.— Where suit has been brought for the recovery of real estate, and a person purchases from the defendant before any trial is had, counsel employed by such defendant to defend the suit have a right to assume that they have been discharged by the sale.</p> <p>Ejectment — Sale Pending Action — Belief from Judgment.— Where suit has been brought for the recovery of real estate and a person purchases from the defendant before trial is had, if, innocently relying on his vendor to continue defending the suit, such purchaser allows the plaintiff to take judgment, his remedy, provided he has any at all, is by motion for a new trial made within statutory time after the judgment.</p>

<p>Insolvency — Jurisdiction of County Courts. — The Effect of the Constitutional amendments is that the jurisdiction of the county courts in insolvency proceedings — contrary to what it was prior to 1863 — rests upon the same basis as the general jurisdiction of tho district courts and of the supreme court, both appellate and original, such proceedings being no longer “special cases” as then known.</p> <p>Insolvency — Proceedings not Summary. — In insolvency the proceedings setting the jurisdiction of the county courts in motion are not intended to be summary or hurried, since the point of importance is, as in other cases, not so much the avoidanee of delay as the promotion of substantial justice.</p> <p>Appeal — Settlement of Case. — The Power to Grant New Trials is conferred upon all the courts referred to in the Practice Act, and when an appeal lies to the supreme court from an order disposing of a motion for a new trial, it becomes the duty of the trial judge to settle a correct statement properly presented.</p>

The suit was for the foreclosure of a mortgage given to secure the payment of a note expressed as follows: “Redwood City, Nov. 15, 1863. ‘! Twelve months after date, without grace, I promise to pay to Charles Hanson or order the sum of eighteen hundred dollars, payable in United States gold coin, or its equivalent in United States currency, for value received, with interest thereon at the rate of two per cent per month from date until paid.

<p>APPEAL from Fourth. Judicial District, San Francisco County.</p>

<p>Grand Juror — Residence.—Where, on a Showing That a Grand Juror had a Dwelling in San Francisco and lived in it during the winter, also a country seat in an outside county, where he lived during the summer and where he voted, the trial court’s ruling that he was competent to he a grand juror in San Francisco will not he disturbed.</p>

<p>Payment — Legal Tender Act.- — A fine is not a “debt” under tlie act of Congress making treasury notes a legal tender in payment of debts.</p>

<p>Pleading — Variance.—Calling Sums of Money “Money Advanced and expended,” etc., in a counterclaim and calling them a “book account” in the answer, does not render the latter ambiguous, and evidence of a “book account” produced at the trial in proof is no variance.</p>

<p>Evidence — Parol to Explain Written Contract. — The defendant may not introduce at the trial oral testimony to vary or contradict the terms of a written contract sued upon, when his answer contains no averment of mistake, etc., in that connection; but if, by leave of the court, he so amends the answer as to make it show the contract as he claims its terms really were, alleging that a material term had been omitted in the writing, and also to make it ask for a reformation in that respect and that the contract as reformed as asked be enforced in his favor, then such testimony is admissible.</p> <p>Compromise of Debt. — A Contract Whereby a Single Creditor Agrees with his debtor to compromise the debt cannot be enforced, but where various creditors have so contracted with a common debtor the case is different.</p> <p>Judgment — Naming a Sum.- — A Sum is not the Less Included in a judgment if, instead of being named there in figures, it is referred to in apt words to indicate money then on deposit in court.</p>

<p>Ejectment. — In Ejectment It is not a Good Plea “that the title of said plaintiff, if any he has, to said premises did not accrue-within five years prior to the commencement of this suit, and that he has not been in possession thereof within five years prior to this suit.”</p>

<p>Injunction — Filing After Act Done. — An injunction filed after the actual doing of the act enjoined fails for want of subject matter.</p> <p>Contempt — Disobeying Injunction. — A Tax Collector enjoined against making a tax sale cannot be in contempt for disobeying the injunction when the sale was made before its issue.</p>

<p>Accord and Satisfaction.. — Payment of a Part of a Sum due is not satisfaction of the whole, even though the payment is made and received in pursuance of an agreement that it should be so regarded, since such an agreement would be without consideration.</p> <p>Contract — Validity of Agreement to Take Part Payment. — An agreement by a creditor with a debtor to accept payment of part of a debt in satisfaction of the whole is not the less invalid, as being without consideration, if the part, instead of being named in terms o-f money, is named as “property worth” that much money.</p>

<p>Criminal Law — Oral Instruction. — Without the Consent of the defendant, it is error for the court to give an oral instruction to the jury in a criminal case.</p>

<p>APPEAL from San.ta Clara County.</p>

Parvin, for value received, had, on the 11th of February, 1860, executed and delivered his note to Ross for two thousand five hundred dollars, and with it a mortgage as collateral security.

<p>APPEAL from Fifth Judicial District, San Joaquin County.</p>

<p>New Trial. — The Statement Accompanying a Motion for a new trial must specify the grounds on which the motion rests.</p>

<p>Timber — Eight of Purchaser to Enjoin Waste. — A purchaser of standing timber, who, as to the land itself, acquires no greater right than that of entry and way for the purpose of cutting and removing the timber, has an adequate remedy at law for the destruction or conversion of the timber, and is not entitled to an injunction if the wrongdoers are responsible for their aets.</p>

<p>Timber — Conflicting Bights of Purchasers. — If a land owner, after making a sufficient conveyance of a millsite and mill rights, with the right to enough timber on the land to supply the mill, gives a license to another person, who has knowledge of the conveyance, to cut timber on the same land and carry it away, when there is on tho land only timber sufficient to supply one mill, the mill owner may sue both the land owner and the licensee for such damage as he can show as the result of performance under the license.</p>

<p>Process — Constructive Service — Compliance With Statute.— When a mode of service of process, other than personal service, is adopted, a strict compliance with the conditions imposed by the stat-, ute must be shown, or the service will be bad.</p> <p>Process. — A Proof of Service by Mail That Fails to state that the party for whom the service was to be made resides in the place of the mailing, and that the party upon whom the service was to be made resides in the place of the address, is defective under the statute.</p>

<p>Appeal. — A Judgment on a Verdict not Unwarranted by tbe evidence is not to be disturbed.</p>

<p>Street Law. — A Resolution of Intention to Grade a Street Passed by the board of supervisors of San Francisco, prior to the a-ct of April 25, 1862 (Stats. 391), must be presented to the president of the board in order to justify a subsequent lien for street assessments against an adjacent property holder.</p>

<p>Ejectment. — A Verdict in Ejectment Awarding the Plaintiff Possession is not to be disturbed when based on substantially sufficient evidence.</p>

<p>Appeal — Conflicting Evidence. — A Judgment upon Findings of a jury upon conflicting evidence should not 'be disturbed.</p> <p>Broker. — In an Action by a Broker Against a Customer who, after an alleged purchase of stock for him by such broker at his request, has repudiated the transaction, evidence that the plaintiff did not, when buying the stock, name the defendant to the vendor as the real purchaser, is immaterial.</p> <p>Broker. — Buying Stock in His Own Name Without the Consent, knowledge or ratification of the particular customer for whom he buys is not a conversion of the stock by the broker, and it is not a waiver of the contract had with the customer to buy for him.</p> <p>Broker. — In the Trial of an Action by a Broker for the price of stock purchased for the defendant at his request, the defendant cannot, under an answer that denies he ever made such a request, introduce evidence to show that the plaintiff waived the request to buy for him and had bought for himself, or had converted the stock.</p> <p>Broker — Conversion.—The Sale by a Broker, Under the Buies or custom of the board of brokers, of stock in his hands for which the customer has not paid, the customer being given timely notice in contemplation of such sale, does not amount to a conversion.</p>

<p>APPEALS from Seventh Judicial District, Solano County.</p>

<p>Van Ness Ordinance. — The Design of the Van Ness Ordinance was to graft a city title upon a possession, not merely vague, indeterminate and floating, but actual, bona fide and exclusive, evidenced by acts clearly showing a segregation of the land and a subjection of it to the will and dominion of the claimant.</p> <p>Ejectment — Evidence.—-A Verdict, the Effect of Which is to Deprive a party of his actual possession, ought to be found only from evidence affirmative and squarely to the point.</p>

<p>County — Changing Boundaries — Title of Statute. — An act, in effect, to set off part of one county and annex it to another, is sufficiently expressed by a title so worded as to begin with “An act to amend an act,” and to continue by a reference expressly to the original act organizing the county thus to be enlarged.</p> <p>County — Changing Boundaries.- — Taxes on Land Within a Part of a county taken off for annexation to an adjacent county, levied and becoming a judgment against the owner of the land and a lien upon the latter before the passage of the act effecting the change in county lines, belong to the county from whieh the part was taken.</p>

<p>Criminal Law — Reasonable Doubt. — To be Satisfied Beyond all reasonable doubt, as under proper instructions of the court a jury must be in order to convict a defendant of crime, is not the same as to be entirely satisfied.</p>

<p>New Trial. — In the Absence of an Affirmative Showing of Error, it must be presumed that in disposing of a motion for a new trial the trial court, which had all the evidence before it and best could judge of its effect, ruled correctly.</p>

<p>Quieting Title. — A Judgment in a Suit to Quiet Title has equal efficacy with one in ejectment to establish the rights of the parties.</p> <p>Quieting Title. — A Judgment in a Suit to Quiet Title in favor of the unsuccessful defendant in a preceding action of ejectment between the same parties is suspended in its operation by an appeal.</p> <p>A Mandamus to Direct an Officer to Execute a Writ of Possession against an occupant, unsuccessful as defendant in ejectment, will not be granted if, since the judgment in ejectment, the occupant has been given judgment in a suit to quiet title, although it is claimed in the petition that an appeal from the latter judgment has been taken and its operation thereby suspended. The burden is on the relator to prove the appeal as a fact.</p>

This suit was brought to have the defendants enjoined perpetually from collecting tolls, wharfage, anchorage, dockage or other duty out of or connected with the Commercial street wharf and waterfront in the city of San Francisco, and to have it decreed that the plaintiffs have the right thereto and the possession, also to have a receiver appointed; also for an accounting and for damages.

<p>APPEAL from Third Judicial District, Santa Clara County.</p>

The case arose out of this instrument which was signed by both parties:'“This is to certify that I have this day sold and conveyed to B. W. Owens three-sixths or one-half of a certain quartz lode, known -as the Isbell claim, and located near the town of Vallecito, in Calaveras county, for the sum of three thousand dollars, the payments to be made as follows, viz.: two hundred and fifty dollars when the claim is pumped out, and the prospect showed to be satisfactory as…

<p>APPEAL from Sixth Judicial District, Sacramento County.</p>

<p>Appeal — Modification of Judgment. — On appeal from a judgment correct in respect to the findings in all except the amount due, which amount also is in excess of the demand in the complaint, the judgment is to be modified so as to accord with the demand as proved, and allowed to stand as modified.</p>

<p>APPEAL from Third Judicial District, Santa Clara County.</p>

<p>APPEAL from Second Judicial District, Tehama County.</p>

<p>New Trial. — A Motion to Strike the Statement, on motion for a new trial, from the transcript as not having been filed within the statutory time after notice to the appellant of the decision of the judge, should be sustained.</p>

<p>APPEAL from Seventh Judicial District, Solano County.</p>

<p>Appeal. — When There is Little Conflict in Evidence, the supreme court is disposed to reverse the trial court if the findings seem to he upon insufficient evidence.</p>

<p>Corporation. — A Corporation may Ratify a Contract Made by Persons who, without authority, have assumed to represent it, and its power is, in that particular, coextensive with that of a natural person, unless by the charter the power is taken away or restricted to some particular formulary or mode.</p> <p>Corporation. — A Ratification Need not in All Cases he Expressed; it may he implied, and the implication, which usually is based on conduct, may consist of acts or of omissions to act, or of both.</p> <p>Corporation — Ratification of Contract — Creditors.—After an unauthorized act of a corporation, in contracting to. convey, has been ratified by the stockholders, a creditor, who has become such after the ratification, may not claim that the contract was fraudulent and void as to creditors, and hence not enforceable, unless he proves that the ratification was had with a fraudulent intent; he cannot put upon the defendant the burden of proving the honesty of the ratification.</p> <p>Corporation — Ratification of Contract — Evidence.—A plaintiff, whose contention rests on an act of a corporation alleged by him to be unauthorized, may rebut evidence put in to sustain the defense of ratification by proof that the ratification was with fraudulent intent, and may do so without first replying specially to the defense in the pleadings.</p>

<p>Election Contest — Answer.—The Act Relating to Elections (Hitt. Dig., art. 5, p. 2471) does not require the defendant, in order to meet the complaint of one contesting his election, to put in an answer, all the allegations of the complaint being understood by law to be denied.</p>

<p>APPEAL from County Court, Santa Barbara County.</p>

<p>Attachment —■ Wrongful Seizure. — In an Action Against a Sheriff for the recovery of goods of the plaintiff, seized by him as being the goods of another person in an attachment proceeding against that person, the plaintiff has made out a prima facie ease when he has proved possession at the time of the seizure.</p> <p>Attachment — Wrongful Seizure. — In an Action Against a Sheriff for the recovery of goods of the plaintiff seized by him as the goods of another, the plaintiff, having rested after proving possession at the time of the seizure, may introduce evidence of the bona fides of such possession in rebuttal if the defendant meantime has put in testimony tending fo show fraud. Such evidence would not be cumulative.</p>

<p>APPEAL from Fourth Judicial District, San Francisco County.</p>

<p>Justice of Peace. — After Payment of the Sum of Two Dollars to a justice of the peace, required to be paid by a party on beginning an action in his court, an additional sum of three dollars is to be paid him only in the event of there being an aetual trial of the case.</p>

<p>Criminal Law. — On a Trial for an Attempt to Poison, an instruction that such an attempt, in order to merit conviction, must be by some act independent of mingling tlie poison with medicine is properly refused, when it has been proved that the poison was not only so mingled but was maliciously exposed under such circumstances that the party it evidently was intended for would be likely to take it.</p>

<p>APPEAL from Twelfth Judicial District, San Francisco County.</p>

<p>Judges — Payment of Salaries. — The Words “as in Other Cases,” occurring in the act of February 27, 1865 (Stats. 1865, p. 123), directing the county treasurers of Alpine county to pay the warrants issued to the county judges for their salaries and bj' the judges presented to such treasurers for payment, justify the payment of such warrants with other warrants according to the order in whieh all are registered.</p> <p>Judges — Payment of Salaries. — The Fifteenth Section of the Constitution requiring the salaries of county judges to be paid “at stated times” does not execute itself, but is directory to the legislature merely; and the legislature in carrying out such direction passed the act of February 27, 1865, making the salary of the county judge of Alpine county payable monthly by warrant from the auditor, which warrant the treasurer is to honor on presentment the same “as in other cases.”</p>

<p>County Treasurers are not Required to Pay Auditors’ Drafts unless the consideration upon which they were issued is stated and vouched for by the auditor on the face of the paper.</p>

<p>APPEAL from Fifth Judicial District, Tuolumne County.</p>

<p>APPEAL from Twelfth Judicial District, San Francisco County.</p>

<p>Ejectment. — It is not Error to Nonsuit a Plaintiff in ejectment upon the opening statement of his counsel, where, according to such statement, the plaintiff has neither title nor prior possession.</p>

<p>APPEAL from Fourth Judicial District, San Francisco County.</p>

The action was upon a street assessment. No question was raised as to the legality, or the regularity, of the board of supervisors in regard to the work performed by the contractor. The evidence related exclusively to the establishment of certain official grades and to the grading of the street before the doing of the work for which the assessment was ordered.

<p>APPEAL from Twelfth Judicial District, San Francisco County.</p>

<p>Execution — Description of Property. — A Levy in Execution and the subsequent proceedings, inclusive of the sheriff’s deed, are not invalid because no lot of land existed having technically the designation contained in such execution, etc., if the designation was preceded by the words “known as,” and it can be shown that at the time of such proceedings the premises so designated were so known and are susceptible of identification.</p> <p>Execution. — A Description Introduced, by the Phrase “Known as” is not vitiated by the subsequent phrase “marked on the official map,” when the latter is a description false in fact.</p> <p>Execution — Property Acquired Subsequently to Piling of Transcript. — The statute (Laws 1850, p. 444, see. 184) referring to the lien of a judgment is not to be construed so as to limit property leviable to that owned by the judgment debtor at the time of the filing of the transcript, thus excluding subsequently acquired property.</p> <p>Execution — Venditioni Exponas. — It is impolitic to disturb sales made by sheriffs under warrant of the ancient writ of venditioni exponas during the early days of the state.</p> <p>Special Administrator. — The Bringing of an Action Against Adverse Occupants of the land of a deceased person by a special administrator, to conserve the rights of the estate, is within not only the right but the duty of such administrator, and it is proper for the probate court to give him express authority to bring the action.</p> <p>Special Administrator. — The Eights Conserved by a Special Administrator in bringing an action against adverse occupants of the land of the deceased inures to successors to the right, title and interest of the deceased in the land.</p> <p>Municipal Corporation — Grant of Land to. — The Second Section of the Act of March 26, 1851, granted and confirmed to the city of San Francisco the use and occupation of all the land described in the first section, and said grant is not affeeted by the exception made by the first section, which, exception rests virtually on. the impossible proposition that one person can be both grantor and grantee of the same deed.</p> <p>Deed. — The Eeservation of Land for a Particular Use imposes upon the owner no obligation to put it to that use, but he may devote it to any lawful use that may suit him, or may at his pleasure dispose of it.</p>

<p>APPEAL from Twelfth Judicial District, San Francisco County.</p>

<p>Ejectment — Eight to Maintain. — A Person Who, Though Asserting some sort of claim to land, has never occupied it or used it for any purpose, has no such possession as to warrant one assuming to hold through him to maintain ejectment.</p> <p>Ejectment — Fence as Evidence of Possession. — The mere fact that a person at some past time indefinite erected a “fence” around a piece of land, regardless of whether the structure was a substantial barrier or only a fence by assertion, is in itself no evidence of possession, so that one claiming title through such person can maintain ejectment.</p>

<p>APPEAL from Third Judicial District, Santa Clara County.</p>

<p>Judgment — Questions Determined. — A Decision of One Question of law presented by stipulation does not imply a waiver of all other questions in the ease, nor does the decision of that question imply that other questions that might have been determined upon the record as presented were in faet decided.</p> <p>Pleading — Insufficiency of Complaint — Waiver.—The point that the complaint does not state facts sufficient to constitute a cause of action is not waived by a failure to demur, but it may be made at any time.</p> <p>Intervention — Occasions for. — Under Section 659 of the Practice Act a person is permitted to intervene: 1st. When he has an interest in the sueeess of the plaintiff; 2d. When he has an interest in the success of the defendant; and 3d. When he has an interest against both.</p> <p>Intervention. — When One Tenant in Common Sues to Recover the Possession of the premises, and the damages sustained by the ouster, and the rents and profits to which he is entitled, the ease is not one where his cotenant can intervene, for the cotenant is not interested.</p> <p>Intervention — Ejectment.- — Where the Ownership, as Claimed by the Plaintiff, is of Three Undivided Fourths, and this is the subject matter of his ejectment suit, one who would intervene does not show a right to do so by alleging that he is “the owner in fee simple and entitled to the possession of the undivided one-fourth part” of the premises, “being the one undivided one-fourth part of the said premises mentioned in the plaintiff’s complaint; that is, the undivided one-third of the undivided three-fourths thereof, as mentioned therein.”</p> <p>Ejectment — Rents and Dainages. — The Gravamen of the Action of Ejectment is the wrongful withholding of the possession of the premises from the plaintiff from the time of the alleged entry up to the commencement of the action; and the plaintiff, upon showing title, is entitled to recover the possession together with damages for the wrongful withholding of the possession, and the value of the rents and profits while the possession was so withheld.</p> <p>Intervention — Ejectment.—If One Seeking to Intervene in an Ejectment suit does not allege, in his petition, that he had title before the commencement of the action the omission is fatal; and he does not cure it by alleging that he “is the owner and entitled to the possession,” etc.</p> <p>Intervention — Ejectment. — It is Doubtful if One Tenant in Common can, under the provisions of the statute, intervene in an action of ejectment brought by his eotenant; since tenants in common are such as hold by several and distinct titles, even though also by unity of possession, while a plaintiff in ejectment can recover only on the strength of his own title.</p>

<p>Upon an Account Stated a Written Promise by the Debtor to Pay at request in gold coin can be enforced, even though before gold could not have been demanded, the amount due being a sufficient consideration.</p> <p>Corporation — Service of Process. — The Statute Which Provides that process against a corporation may be served upon “an agent,” in this state, of such corporation, is satisfied by a return making it appear that the service was made upon “the managing agent of the defendant.”</p>

This action was to recover damages for divers alleged breaches of a written contract, dated March 31,1864, signed by the parties and for the recovery of wages for services under a verbal contract made August 26, 1865, Under the written contract Desormaux was to “take charge of, direct and superintend, for and during the period of twelve months, a certain copper smelting establishment to be erected by” Meader “under the direction of” Desormaux.

<p>Judgment — Collateral Attack. — A Judgment is Good Until Reversed, and therefore is not to be questioned for the first time in an action on an alleged wrongful sale in execution of it.</p> <p>Execution — Wrongful Sale — Remedy.—If by the Misconduct of the officer property levied upon was sold at a sacrifice, the owner’s remedy is against the officer for damages, not against the purchaser to recover the property.</p>

<p>Appeal — Effect of Absence of Statement. — One appealing from a judgment may bring his appeal on the judgment-roll with or without a statement as he may desire, but if without then nothing outside of the judgment-roll will be considered.</p> <p>Appeal — Judgment-roll,—Exceptions Taken at the Trial and settled when taken, as- prescribed by sections 188-190' of the Practice Act, are annexed to and become part of the judgment-roll, and on appeal on the judgment-roll will be considered.</p> <p>Appeal — Absence of Statement.- — No Exception, Save Those Annexed to the judgment-roll, will be considered on appeal, unless there is a statement in the preparation of which both parties were heard.</p> <p>Appeal — Necessity of Statement. — The Only Mode by Which an Order of court, not made upon affidavits alone, can be brought up on appeal, so as to merit consideration, is- by a statement made subsequently to the trial, both parties participating in and settling it.</p> <p>Appeal — Statement, What Does not Dispense With. — Without regard to whether a stipulation to the effect that the foregoing so many pages constitute, etc., enumerating essential papers, preeludes a respondent from denying the correctness of a bill of exceptions, ete., so referred to, such a stipulation does not dispense with the statement on appeal required by statute.</p>

This was an action on a promissory note and to enforce an alleged guaranty. One Vallejo had given to the plaintiff his note for three thousand dollars, with interest at ten per cent per annum, dated October 1, 1859, and payable in two years; the note was not paid at maturity.

Judicial District, Sierra County. This was an action of ejectment, the property involved being an undivided interest in certain mining claims.

<p>Appeal — Specification of Error. — On an Appeal from a Judgment Only, a specification that “the evidence did not justify or warrant the judgment” is insufficient.</p> <p>Appeal — Review of Evidence and Findings. — The appellate court cannot review the evidence or findings of fact on an appeal from the judgment.</p> <p>Appeal — Insufficiency of Statement. — No Question as to the Effect of a document introduced in evidence is presented by a statement that fails to show that at the trial such introduction was objected to, or what was the trial court’s ruling, if any, in that connection.</p> <p>Appeal. — A Statement That Contains the Evidence but No Ruling excepted to on any part of it is insufficient on appeal from the judgment only.</p>

This was an action of ejectment. The plaintiff filed a demurrer to the answer expressed as follows: “Now comes plaintiff above named, by her attorney Jo Hamilton, and demurs to defendant’s answer filed in said court, and as grounds of demurrer she avers that said answer, even if taken as true, does not state facts constituting a defense.

<p>Homicide — Evidence of Relations Between Defendant and Deceased. — On a trial for murder it is not error to admit testimony bearing upon the relations between the defendant and the deceased, even though at the time of the offer all the testimony connecting the defendant with the homicide may not yet have been put in.</p> <p>Instructions. — A Criticism upon a Passage of the court’s charge, selected from the whole, has no force when the entire instruction, taken together, is plainly not subject to the criticism.</p> <p>Instructions — Review on Appeal. — An Objection to Any Point in the judge’s charge to the jury must have been excepted to at the trial in order to be given consideration on appeal.</p>

<p>APPEAL from Twelfth Judicial District, San Francisco County.</p>

<p>Parties — Ordering in New. — Where Complete Equity cannot be done to all parties before the court without the presence of other parties, the court will order these others to be brought in or dismiss the suit, the plaintiff not consenting to their being brought in, even though the point of defect of parties may not have been raised by the defendant by demurrer or answer.</p> <p>Reformation of Deed — Readiness of Plaintiff to Do Equity. — If by mistake, as averred in the complaint, a deed through which the defendant claims included land not intended, and excluded land intended, to be conveyed, and so likewise the deed through which the plaintiff claims, wherefore the latter asks for a rectification of his deed by the defendant, while so asking the plaintiff must aver that he is ready and willing on his part to rectify the defendant’s deed.</p> <p>Reformation of Deed. — The Grantee of Land is Entitled to a Deed Precise and accurate in its terms, and, although the uncertainty be sueh as a court of law is able to overcome by resort to the technical rules of construction, equity will not deny relief in a case before it.</p> <p>Reformation of Deed — Extent of Relief — Awarding Possession. Under the rule that a court of equity will not deal with a case pieeemeal, when the case is one principally for the rectification of a deed, the court may decree as thus prayed, and at the same time decree, if it is asked, possession; and this is so particularly where, as in California, the jurisdictions of law and equity are blended.</p>

<p>Partnership — Eights of Partners in Property. — While a partnership still is in existence and its affairs unsettled, the undivided assets of the firm cannot be said in law to be the individual private property of any one of the partners.</p> <p>Pleading. — A Party must Eecover, if at All, According to the Allegations of his pleadings, whatever the evidence introduced may be.</p>

<p>APPEAL from Comity Court, Tuolumne County.</p>

<p>Appeal — Weighing of Evidence. — In the Absence of Distinct Findings of fact and conclusions of law, the evidence will be looked into no further on appeal than to see that there was some evidence tending to support the judgment of the court below.</p> <p>Statute of Limitations — When Begins to Eun. — Where a sum of money is to be paid by the debtor “when my circumstances hereafter may permit me,” the statute of limitations runs from the time the debtor has money to pay with, rather than from the time he can pay without inconvenience to his business.</p> <p>Estate of Decedent. — In an Action by a Creditor of a Deceased person to establish a claim against the estate, rejected in the probate proceedings, an announcement by the court that the plaintiff’s testimony, although admitted without objection, was not to be given the same weight as if the suit had been during the debtor’s lifetime, is no ground for reversal, even if erroneous, in ease the judgment is a proper one on the principal question.</p>

<p>APPEAL from Sixth Judicial District, Sacramento County.</p>

<p>District Attorney — Assistance by Other Attorneys. — The statute prescribing the duties of the district attorney does not, either 'expressly or by implication, prohibit the court from allowing other attorneys to assist that officer in prosecuting persons charged with crime.</p>

<p>Militia. — The Allowance of Money, Under Laws of 1863, page 445, to duly uniformed military companies, payable to their several commanding officers, was intended to defray necessary company expenses and not for the benefit of the members as individuals.</p> <p>Militia. — The Law of 1863 Allowing Three Hundred Dollars to each uniformed company, payable to its captain or commanding officer, cannot be availed of, after its repeal, by a captain of a company long disbanded.</p>

<p>APPEAL from Seventh Judicial District, Napa County.</p> <p>Action of ejectment.</p>

<p>Appeal. — Where There has Been Conflicting Evidence at the trial the findings of the trial court are not to fee interfered with on appeal.</p>

<p>Appeal — Verdict not to foe Disturbed. — Where the ease on trial is one in which the jury might have found either for the plaintiff or for the defendant, without becoming obnoxious to the charge of passion, prejudice, misconception or caprice, the verdict is not to be disturbed on appeal.</p>

<p>APPEAL from Fourth Judicial District, San Francisco County.</p>

<p>APPEAL from Tenth Judicial District, Sutter County.</p>

<p>APPEAL from County Court, Solano County.</p>

<p>Mechanics’ Lien — Attachment Lien by Intervener. — In a proceeding to establish mechanics’ and other liens, an attachment lien claim set up by an intervener’s petition cannot be considered on appeal, if the evidence, as found in the record, fails to show any writ of attachment ever to have been issued or served in such a manner as to create a lien on the fund.</p> <p>Mechanics’ Lien — Attachment Lien. — In a Proceeding to Establish mechanics’ and other liens, an attachment lien claim on the fund, set up for the first time at the trial before the referee and not mentioned in any petition by claimant in the cause, is properly rejected.</p>

<p>APPEAL from Fifth Judicial District, Tuolumne County.</p>

<p>Appeal. — Where There has Been Conflicting Evidence at the trial, the findings of the trial court are not to be interfered with on appeal.</p> <p>Railroad — Embankment—Injury to Adjoining Proprietors. — The right of a railroad company to erect an embankment along its line is coupled by law with the condition that it shall take reasonable precautions against doing an unnecessary damage to adjoining property holders.</p>

<p>APPEAL from Seventh Judicial District, Solano County.'</p>

<p>'APPEAL from Fourteenth Judicial District, Placer County.</p>

<p>APPEAL from Fifteenth Judicial District, San Francisco County.</p>

<p>APPEAL from Probate Court, San Francisco County.</p>

<p>APPEAL from Twelfth Judicial District, San Francisco County.</p>

<p>Fund Commissioners — Salaries.—The Provision in Statutes of 1861, section 1, page 554, making the salaries of fund commissioners “full compensation for all official services required of them hy law,” refers to services of such persons as officers of the city government, and not as fund commissioners.</p>

<p>Mandamus from San Francisco County.</p> <p>See preceding case.</p>

<p>APPEAL from Third Judicial District, Santa Clara County.</p>

<p>Hew Trial — Time for Piling Statement. — On a motion for a new trial the court or commissioner is authorized by statute to extend the time for filing the statement twenty days in addition to the five days allowed the applicant as a right.</p>

<p>Bankruptcy — State Insolvent Law. — Proceedings in insolvency-under the state law for the relief of insolvent debtors and protection of creditors are not affected by the act of Congress of March 2, 1867, known as the Bankrupt Act.</p>

<p>APPEAL from Third Judicial District, Santa Clara County.</p>

The action was ejectment against William Stanner, Bridget Stanner, Patrick Brannan, Ramon Valencia and James Mc-Cabe. Each of these filed a separate answer except the first, who’ defaulted. The principal defendant was Valencia, and the Stanners held under him as tenants.

<p>APPEAL from Fourth Judicial District, San Francisco County.</p>

<p>Logs and Logging — Possession of Land. — In Order to Recover the Value of sawlogs, alleged to have been wrongfully cut and removed hy the defendant from the land of the plaintiff, the plaintiff must show aetual possession in himself of the land from which the logs were cut.</p>

<p>Railroad — Liability for Grading. — The Fact That One Who Grades a Street under a contract with a city, and a railroad under a contract with the company, keeps the same men and the same teams working on both jobs, does not render the railroad company liable for damages sustained by a property holder by reason of the street work, even though the railroad and the street are side by side.</p>

<p>APPEAL from the Fourth Judicial District, San Francisco County.</p>

This was an action by a contractor to enforce an assessment for street work, the defendants being, as alleged, the owners of lots 3 and 4 of one particular tract in the complaint named as affected by the improvement.

<p>APPEAL from County Court, Santa Cruz County.</p>

<p>APPEAL from Fourth. Judicial District, San Francisco County.</p>

<p>APPEAL from Ninth Judicial District, Shasta County.</p>

<p>Judgment — When Allowed on Pleadings. — A motion by the plaintiff for judgment on the pleadings can he allowed only where the answer wholly fails to deny any material allegation of the complaint.</p> <p>Continuance. — The Granting of a Motion for a Continuance is very much within the discretion of the trial court.</p>

<p>APPEAL from Fifth Judicial District, Tuolumne County.</p>

<p>Cotenancy in Personalty — Sale hy Co-owner. — One tenant in common of personal property has no authority to sell the interest of his co-owner.</p>

<p>APPEAL from Sixteenth Judicial District, Alpine County.</p>

<p>Pleading — Cross-complaint—Estoppel.—A Person Who Answers a Complaint, in an action against him, and then files a eross-eomplaint, cannot, after a judgment has been given in both suits, raise the point that he should not have been made a party to the action in the first place.</p> <p>Appeal. — A Judgment That cannot Injure the Appellant in any respect is not to be reviewed on appeal.</p>

<p>APPEAL from Third Judicial District, Santa Clara County.</p>

This was an action of ejectment. Foley settled upon the Foley tract in 1849 and in June, 1853, sold to Welch. Clyne had been a tenant of Foley’s, both living on the premises, and after the sale remained as the tenant of Welch. Subsequently Clyne asserted ownership, wherefore proceedings were. started to dispossess him.

<p>APPEAL from Third Judicial District, Santa Clara County.</p> <p>Action of ejectment.</p>

<p>APPEAL from Third Judicial District, Santa Clara County.</p>

<p>APPEAL from Sixth Judicial District, Sacramento County.</p>

<p>APPEAL from Sixth Judicial District, Sacramento County.</p>

<p>Partition — Costs—Lien on Shares. — Section 308 of the Practice Act, providing that in partition snits the costs shall be paid by the respective parties proportionately and may be included and specified in the judgment, and proceeding then to provide for their becoming a lien on the shares in certain eases, contemplates that their so becoming a lien depends upon Bow the owner of the share may elect, and the solution of the question depends upon whether they are included and specified in the judgment of partition.</p> <p>Costs — Collateral Attack on Judgment for. — A judgment for costs, without regard to whether it is or is not regular, cannot he attacked in a collateral proceeding.</p>

<p>Appeal — Failure to Follow Statute in Taking. — An appeal presented on documents of an irregular sort not in accord with the statutory requirements for bringing cases up on appeal will not be considered.</p>

<p>APPEAL from Eighth Judicial District, Humboldt County.</p>

J. S. Sheldon was indebted to the plaintiff and others and, becoming embarrassed financially, executed a deed of trust to one G. W. Mowe for the benefit of his creditors.

<p>APPEAL from Seventeenth Judicial District, Los Angeles County.</p>

<p>Judgment Lien — Omission of Christian Name in Docket. — The sole purpose of the judgment docket is to furnish a record which may be conveniently referred to by persons interested in lands on which a lien may be thought to have attached, and the omission of a Christian name in naming there the judgment debtor is not such a departure from the statutory requirements. in that connection as to vitiate the lien.</p> <p>Judicial Sale — Advertisement—Return.—The Title of a Purchaser of real estate at a sheriff’s sale does not depend on and is not affected by the advertisement or the return of the officer to the writ, but rather on the judgment, execution, sale and deed.</p> <p>Deed. — The Delivery of a Deed to a Stranger for the Use of the grantee is a valid delivery, and takes effect from the time of the act by relation, provided tbe deed is afterward accepted by tbe grantee and tbe grantor intended it to take effect as a conveyance.</p> <p>Deed. — A Title by Relation cannot Override an Intervening Conveyance or encumbrance acquired in good faitb.</p> <p>Limitation of Actions — Title Derived from Spanish Government. Tbe term “final confirmation by the government of tbe United States,” as used in the proviso of tbe aet of 1855 amending tbe statute of limitations, includes tbe issuance of tbe patent, and when title is derived from tbe Mexican or Spanish government, tbe statute, in actions for tbe recovery of real estate, does not begin to run until tbe patent issues.</p> <p>Foreclosure Sale — Lien for Deficiency. — The Docketing of a Judgment of foreclosure does not create a lien for tbe deficiency on tbe property of the judgment debtor, but to establish such a lien the deficiency, when ascertained, must be docketed as a personal judgment. From tbe time of so docketing only does such lien commence.</p> <p>Ejectment — Restitution.—A Writ of Execution Issued on a Judgment in ejectment for a restitution of tbe land and for rents and profits need not (tbe writ of restitution having been already executed) recite tbe judgment further than to identify it.</p> <p>Appeal. — Exceptions Taken on the Ground That the Findings are not Supported by or are contrary to tbe evidence are not valid; if findings are open to such objection, tbe party should move for a new trial.</p>

<p>Appeal. — When the Appellate Court is Equally Divided in Opinion the judgment appealed from will be affirmed.</p>

<p>Mandamus — Title and Designation of Parties. — Neither under the Practice Act nor by any rule or usage of the profession need a mandamus proceeding be given a title or the parties be particularly designated.</p> <p>Municipality — Subscription to Railroad Stock. — In the Act Authorizing the city of Placerville to subscribe for the capital stock of the Placerville and Sacramento Valley Railroad Company, the condition limiting the city’s liability for the company’s debts to the amount of the subscription so authorized did not contemplate its being itself annexed to the subscription on the company’s books, but that the limitation was to attach ipso facto by the act of subscribing.</p> <p>Municipality — Subscription to Railroad Stock — Estoppel.—After subscribing to stock of a railroad company, under a law regulating the preliminaries while conferring the power, a city is estopped to evade responsibility for its act by asserting that a step in such preliminaries by it,was taken invalidly.</p> <p>Pleading. — Averments of Matters of Law in a Complaint Call for no denial, and if denied present no issue.</p> <p>Municipality — Estoppel to Deny Bonds. — After issuing bonds before satisfying conditions made precedent, under the law conferring the power to issue them, a municipality is estopped to say that it issued the bonds in violation of law.</p> <p>Municipality — Nonpayment of Bonds. — A Denial That a Municipality failed or refused to pay interest on its bonds, coupled with an averment that there was no means for payment in the treasury, is an admission of nonpayment.</p> <p>Tax. — In a Mandamus Proceeding to Compel a Municipality to Levy a tax to pay interest on bonds previously issued by it, a denial in the answer that any demand in the premises was ever made upon the municipality presents a material issue.</p> <p>Tax — Maximum Rate. — A Provision, in an Act to Reincorporate a Municipality, making two per cent the maximum tax rate unless otherwise determined by a vote of the people or by special act of legislature, has reference to taxes to be levied for defraying usual municipal expenses, and not to such as may be necessary to pay obligations already incurred by the municipality.</p> <p>Municipality. — After Subscribing to Capital Stock of a Railroad Company under a special act empowering it to do so, a municipality stands in the same relation to the company as any other stockholder except as expressly provided in the act.</p> <p>Municipality — Contract Void on Contingency. — In an act empowering a municipality to make a particular contract, a provision allowing its common council an option to declare the contract void on a certain contingency does'not make the happening of the contingency ipso facto a-nullification of the contract.</p> <p>Tax. — A Valid Demand upon a Municipality for the Levying of a Tax to pay interest on bonds, payable under a special act, must be made upon the mayor and common council as a body assembled; a demand each at his separate place of private business will not suffice.</p>

<p>APPEAL from Seventh Judicial District, Los Angeles County.</p>

<p>Execution. — In Order to Establish a Title Through Judicial Proceedings and subsequent execution of the judgment, one must be held to show a judgment not subject to be impeached for lack of jurisdiction, a proper writ of fieri facias issued on the judgment, and a sufficient conveyance on a sale made under the writ by the officer designated by law to make it.</p> <p>Execution — Expiration of Sheriff’s Term of Office. — On a writ of fieri facias coming into the hands of the sheriff of the then district of San Francisco, in 1850, another sheriff, newly elected and qualified as sheriff of the county of San Francisco, could not make a valid sale so as to vest the purchaser, or the grantee in the subsequent deed referring to such sale, with title to the property sold.</p> <p>Sheriff — Expiration of Term — Service of Process. — A sheriff who has commenced the execution of process in his hands is bound to complete it, though he may, in the meantime, have been succeeded in his office by another incumbent.</p> <p>Sheriff — Abolition of Office — Service of Process. — The statute which abolished the office of sheriff of the district of San Francisco provided that quoad process then in hand the office should still exist, and that its incumbent should have power to, and remain charged with the duty to, complete the enforcement of such process.</p>

<p>Appeal. — In Reversing a Judgment in a Cause Submitted to the trial court on an agreed statement of facts, when the facts as stated are indefinite, and the record fails to show that the court relied on them alone, the appellate court cannot indicate the character of the judgment, to be entered, but can only remand the cause for further proceedings.</p> <p>Appeal. — The Record Should Show the Action of the Court Below in admitting or rejecting matter of proof and the exceptions, if any, in each instance, so that an aggrieved party may, through the instrumentality of his exceptions, have the points of grievance considered on appeal.</p> <p>Trial — Objections to Testimony — Exceptions.—The fact that a cause is tried by the court without a jury is no reason why 'objections to testimony should not be promptly determined and exceptions formally taken.</p>

<p>APPEAL from Third Judicial District, Alameda County.</p>

<p>Appeal — Evidence not in Statement. — On appeal no evidence can be considered not inserted in the statement, the presumption being that all the evidence on the specified points is in the transcript.</p> <p>Appeal. — A Judgment Based on Findings Wrongly Arrived at will not be affirmed on the ground that on all the evidence offered and received the plaintiff ought to have recovered, since the defendant might show in a new trial that, notwithstanding such evidence, the plaintiff was not, for some reason, entitled to recover.</p>

<p>Administrator’s Sale — Who cannot Appeal. — An appeal from an order of the probate court confirming a sale of real estate will not be considered on its appearing that the appellant is interested in the matter only as a creditor of the husband of the deceased, whose estate is in process of settlement, and the property sold was separate property.</p>

<p>Actions — Joinder of Causes Legal and Equitable. — The Practice Act authorizes the joining of several causes of action, subject to certain restrictions, but contains no requirement that the causes of action thus united shall be either all of a legal or all of an equitable nature. ^</p> <p>Actions — Legal and Equitable Relief. — -Although both legal and equitable forms of relief may be obtained in the same forum, the same substantial differences between them exist now as of old, and to obtain the relief formerly administered by courts of equity one must establish the same facts as when relief was obtainable only in those courts.</p> <p>Equity. — One of the Main Distinctions Between Law and Equity is that at law a party usually receives compensation in damages, while equity gives a more specific remedy according to the circumstances of the ease, and generally only in those cases in which compensation in damages would not be a complete and adequate remedy.</p> <p>Equity. — In Order to Invoke Equity, Under the Practice Act, the same circumstances must be made to appear as under the old system showing the inadequacy of the remedy at law, or some other ground óf equitable interference. ■</p> <p>Ejectment — Bill of Discovery. — In Ejectment the Plaintiff cannot, under California practice, require a bill of discovery in aid of his action, since under that practice he may probe the defendant’s conscience by requiring an answer under oath or may call the defendant to the stand as a witness.</p> <p>Equity has No Jurisdiction of an Action for Damages Merely, Unless under peculiar circumstances, where the party injured cannot maintain his action at law.</p> <p>Action — Joinder With Ejectment. — Two Causes of Action are Inconsistent, as set up in an action of ejectment, if the defendant is asked to be found virtually a trespasser under the one, while under the other he is alleged to have entered as the plaintiff’s guardian to manage the estate for the plaintiff; such causes cannot properly be joined.</p> <p>Actions — Joinder.—The Object of the Sixty-fourth Section of the Practice Act was to authorize parties to unite causes of action which already existed, and not to give additional causes of action. It was not contemplated therein that the right to an account should follow the recovery in ejectment.</p> <p>Deeds — Parol to Explain. — When, of Many Tenants in Common, among whom are a father and daughter, the former makes,-for a nominal consideration, a deed to another absolute on its face and presenting no patent ambiguity, and on the same day this person makes, for the same consideration, a like deed to the daughter, parol evidence is not admissible years afterward to prove this second deed to have been intended as a mere confirmation to the daughter of the interest already held by her when such deed was made.</p>

<p>Mining Claims — -Subsequent Rules of District. — The owners of a mining claim, having consistently with mining usages at the time of locating, posted at each end of the claim notices: “We, the undersigned, do claim 1950 feet in this lead or lode, it being the Reed lead, with all dips, spurs, angles and cross-leads” — -cannot be affected by any by-laws or mining rules of the district, subsequently made, so as to have their claim, thus published, rendered a less one.</p> <p>Mining Claims. — The Words “Lead” and “Vein” are to be taken as the equivalents of “lode” and “ledge.”</p>

<p>APPEAL from Third Judicial District, Santa Cruz County.</p>

<p>New Trial — Insufficiency of Evidence. — A Party Moving for a New Trial on the ground that the evidence was insufficient to support the findings must specify in his statement the respects in whieh the evidence failed of sufficiency.</p> <p>Appeal. — Where There has Been a Substantial Conflict of Evidence the findings of the trial court will not be disturbed unless the evidence was insufficient to base them on.</p>

<p>Appeal — Presumptions.—So Far as the Evidence Below was Conflicting, the presumptions are in favor of the findings of the trial court and the judgment thereupon.</p> <p>Building Contract. — In Payment to a Contractor for Erecting a building, deduction oannot be made for money given, without his prior authority or subsequent ratification, to satisfy a demand by a subcontractor.</p> <p>Building Contractor. — A Payment made to a Subcontractor and Charged to the account of the contractor without authority by him first given is validated by a ratification by the contractor afterward.</p> <p>Building Contract. — If a Person has Furnished Materials as a subcontractor, and other materials at the sole instance of the owner, any ratification by the contractor of a payment by such owner to such subcontractor, deducted from the contractor’s account, is presumed to have applied no further than to the amount of what was due under the subcontract.</p>

<p>APPEAL from Sixth Judicial District, Sacramento County.</p>

<p>APPEAL from Third Judicial District, Alameda County.</p>

<p>Street Assessment — Unknown Owners — Demand.—Under the street law for San Francisco (Statutes of 1863, section 11, pages 529 and 530), when the lots upon which it is sought to establish a lien were assessed to unknown owners, the only demand necessary to be made, under the warrant of assessment, is a public demand on the premises assessed.</p> <p>Street Assessment. — The Dollar Mark Placed Before the Amount in the footing «of the assessment-roll sufficiently indicates the character of the figures of the several sums in the column above, if those sums appear with no such mark preceding them.</p> <p>Street Assessment. — In an Action to Enforce a Street Assessment evidence in support of an averment of the answer that the owners of the major part of the frontage duly undertook to do the work at the contract price but were prevented by the superintendent, is material and should be admitted.</p>

<p>Certiorari — Scope of Writ. — When by the Constitutional Amendment of 1863 the power to issue a certiorari was secured to the supreme court, the writ was not purely the common-law writ of that name, but the statutory writ here when the amendment passed or as it might be thereafter through statutory regulation.</p> <p>Certiorari — Scope of Writ. — By Its Enactments in Respect of the writ of certiorari, the legislature intended to permit this summary remedy for a usurpation of jurisdiction only in eases where there is no appeal allowed by law, whereby the error of the inferior court, officer or tribunal may be corrected, and where there is no other plain, speedy and adequate remedy.</p> <p>Extension of Streets. — Any Person Aggrieved by the Report of the Commissioners appointed by the county court under the act of 1864, authorizing the board of supervisors to extend streets, might appeal to the supreme court; and the court thus appealed to might then review the report, or the proceedings of the commissioners or of the court, or any or all of them, upon matters of law, or confirm, correct, modify or set aside the report.</p> <p>Widening Streets in San Francisco. — In the Act (Stats. 1867-68, 555) repealing the act of 1864, the proviso that nothing therein should affect “any proceedings taken,, or to be taken, to widen Kearny and Third streets or to the extension of Montgomery street,” etc., included the whole proceeding relating to the extension of Montgomery and Connecticut streets, which was but one proceeding; and it is not to be presumed that the legislature intended to preserve a part o.f the proceeding and to defeat the remainder.</p>

<p>Land Patent — Mandamus to Governor to Issue. — A petition for a peremptory mandate requiring the governor to issue a patent for lands, confirmed to the state by the United States, must allege as fact that the governor has found all the statutory prerequisites for his authority to issue the patent.</p> <p>Land Patent. — Before the Governor may Issue a Patent for lands of the state, received from and confirmed by the United States, he must proceed to determine 'whether the land designated in the certificate of purchase from the register of the state land office, or a part of that land, belongs to the state and has been so confirmed to it, and whether the whole purchase money with interest thereon, as mentioned in the certificate, has been paid.</p>

<p>Intervention — Ejectment.—One Should not Intervene, in a Suit for land, whose claim rests upon a transaction in no wise connected with issues in the suit and cannot possibly be concluded by any judgment therein.</p> <p>A Stipulation Agreeing to Proposed Evidence and Expressly “Permitting” either party to “add to it” such documentary evidence “as he may see proper” must be construed to mean, as to this added evidence, documents pertinent to the case and existing when the stipulation was made.</p> <p>Stipulation to Dispense With Further Pleading. — If, After an Intervener files his petition, all the parties plaintiff and defendant stipulate with him to the dispensing with further pleadings, as if those already in met formally all questions on all sides, it cannot be objected to a judgment in his favor that it was not supported by his petition.</p> <p>Stipulation — Rival Claims Pounded on Execution Sales. — When a controversy was as to which is superior, between rival claims founded on sales in execution of different judgments against the one debtor, and by stipulation this naked controversy has been submitted to the court for its decision, after judgment the unsuccessful party cannot be heard to question the debtor’s title to the property sold.</p>

<p>Taxation — Default Judgment. — In an Action for the Recovery of taxes, where the summons does not contain the notice that “the plaintiff will apply to the court for the relief demanded” in the complaint, a judgment by default must be reversed.</p>

<p>Brokers — Right to Commission. — On .Appeal from a Judgment in favor of a broker for eommissions for selling the defendant’s real estate, the question of an alleged revocation before the sale of the plaintiff’s authority to sell will be left as found by the trial court, if the evidence was conflicting.</p> <p>Trial. — An Instruction on a Point not Raised by the Pleadings and as to which no evidence has been put in should be refused, even though good law in the abstract.</p>

<p>APPEAL from Fourth Judicial District, San Francisco County.</p>

Stayton conveyed to Tyler, January 7, 1863, in trust as set forth — so the deed recited' — in a declaration of trust of the same date from Tyler to Stayton.

<p>New Trial — Reversal of Order for. — When it does not appear that there was a motion made for the new trial ordered by the trial court, nor an agreed or settled statement on such motion nor any affidavits, the order is to be reversed.</p>

<p>Taxation. — Imported Goods Exposed for Sale in the Store of a merchant constitute a portion of the wealth of the state, for purposes of taxation, as much as do domestic goods similarly situated; and it is immaterial whether the importer is also the merchant who sells or whether the goods are in the original packages and at the time owned abroad.</p>

<p>APPEAL from Fifteenth Judicial District, San Francisco County.</p>

<p>APPEAL from Sixth Judicial District, Sacramento County.</p>

<p>APPEAL from Fifteenth. Judicial District, Contra Costa County.</p>

<p>APPEAL from Tenth Judicial District, Colusa County.</p>

<p>Public Land — Necessity of Survey. — A Purchaser Under a Certificate of purchase acquires no rights by the certificate when the lands described in the latter have not, at the date of its issue, been as yet surveyed.</p> <p>Public Land. — If One Locating upon Unsurveyed Lands and not Entering upon them fails, within three months after the filing of the township map with the register, to present his claim to the lands, he loses all rights, as against a person who has in the meantime entered upon the lands and duly filed1 his declaratory statement as a pre-emption claimant.</p>

<p>Mechanics’ Liens — Intervention.—Lienholders, Properly Made Defendants by the complaint in a suit to enforce a mechanic’s lien, should not come in as interveners. But their petitions in intervention should be, on motion, allowed to stand as their answers, if containing all the allegations necessary to enable them to have their claims enforced as liens and to participate in the proceeds of the sale of the premises.</p> <p>Mechanics’ Liens — Ninety Days’ Limitation. — In a suit to enforce a mechanic’s lien, it is not the service of process upon the defendant that marks the beginning of the proceedings, but the filing of the complaint; and this filing, if within the ninety days, saves the limitation for each defendant lienholder named in it, since the court has jurisdiction of him by virtue of the filing of the complaint.</p> <p>Mechanics’ Liens — Limitation of Actions. — The objection that the causes of action of respective lienholders, made defendants by the complaint, for the enforcement of their liens, have been barred by the statute, can be taken only by answer or demurrer.</p>

<p>Hew Trial — Filing Affidavit Within Time. — Under the Practice Act a party who intends to move for a new trial must file with the clerk of the trial court a statement or affidavit within the required time, the statement being “a proposed case.”</p> <p>Hew Trial — necessity of Filing Proposed Case. — The court has no power to settle a proposed case not previously filed with the clerk, except by stipulation by the parties.</p> <p>Appeal — Service of Statement. — Under the Practice Act, when a statement on appeal is proposed, a copy must be served upon the respondent, who may thereafter prepare his amendments and serve them upon the appellant.</p>

<p>Appeal. — On an Appeal from the Judgment Alone, supported by a statement on appeal, the question as to whether the proper judgment was rendered cannot be looked into, unless there are written findings or an agreed statement of facts forming a part of the judgment-roll.</p>

<p>Public Lands — Filing Plat. — In Actions Involving Eights of Holders xinder the United States land laws, the transmission of the plat to the register by the surveyor general on a day named and its reception by the register on the succeeding day, together with the publication by the register and receiver in a public journal of a notice to settlers, requiring them to file their declaratory statements, are facts sufficient for a jury finding fixing the time when the plat was officially filed.</p> <p>Public Lands — Pre-emption—Warrant for School Land — Patent. If it is proved that a plaintiff had all the qualifications of a preemption claimant, had filed his declaratory statement within three months after the official filing of the plat, had taken the other necessary steps to pre-empt the premises, and had procured the issue of a patent to himself, it is immaterial whether warrants for school lands in the defendant’s name were properly located or not, or whether the patent was duly issued.</p> <p>Ejectment — Prima Facie Cáse. — In an Action of Ejectment a plaintiff who has in his complaint made all the necessary averments may, at the trial, rest after putting in his proof of title, if the defendant has in his answer first denied everything contained in the complaint and then admitted possession, but not as a distinct defense.</p> <p>Judgment — Absence of Service or Appearance. — Judgment may not be had against a defendant not served with process and who has not appeared in the action.</p>

<p>APPEAL from Twelfth Judicial District, San Francisco County.</p>

<p>Mining Ground — Eight of Occupant as Against Intruder. — One in actual possession of mining ground, although without title, may proceed against a mere intruder having no superior right of entry.</p> <p>Ejectment. — In 'an Action for the Possession of Land, failure by the plaintiff to prove actual possession by him of all the land described in the complaint does not call for a nonsuit if he has proved possession of a part.</p>

<p>APPEAL from Eleventh Judicial District, Amador County.</p>

<p>A Judgment on the Pleadings, on a Motion Therefor, can he Rendered only on averments of the pleadings, admitted or not denied, justifying a judgment on one side or the other as the ease may he.</p> <p>Pleading — Averments not Expressly Denied are Admitted. — An averment of a complaint which the answer, not denying expressly, by its language leaves it merely to be inferred to be denied is, under the rules of pleading, admitted.</p> <p>Contract — Time to Accept of Essence. — When, under the terms of a contract, so many days are given by one party to the other in which to make up his mind whether he will accept, time is always of the essence.</p> <p>Contract — Manner of Acceptance. — Except When so Expressed in the contract, acceptance of its terms, where time has been allowed to deeide in, need not be by word of mouth, but the accepting party may apprise the other of his decision by a note left at his plaee of business within the time.</p>

<p>APPEAL from Seventeenth Judicial District, Los Angeles County.</p>

<p>APPEAL from Fifteenth Judicial District, San Francisco Comity.</p>

<p>Malicious Mischief — Injuring County Jail. — Conviction for malicious misehief, in breaking the doors and otherwise injuring the jail of Tulare county, sustained.</p>

<p>APPEAL from Probate Court, San Francisco County.</p>

<p>Appeal — Sufficiency of Evidence. — A Finding of the Trial Court will not be disturbed if supported by evidence deemed sufficient, even if the reviewing court regard the supporting evidence as not very satisfactory.</p>

<p>APPEAL from Twelfth Judicial District, San Francisco County.</p>

<p>APPEAL from Third Judicial District, Santa Clara County.</p>

<p>APPEAL from Sixth. Judicial District, Sacramento County.</p>

<p>APPEAL from Third Judicial District, Santa Clara County.</p>

<p>Trial — Beading Law Eeports to Jury. — There is No Error in calling the attention of counsel in the jury’s presence to the impropriety of reading law reports to the jury.</p> <p>Self-defense. — An Instruction may be Wrong in Omitting to Inform the jury under what circumstances an apparent necessity for self-defense would have justified the defendant in the killing, but if this omission is so fully eured, in the instructions given at the defendant’s instance, that the jury cannot possibly have been misled to the defendant’s prejudice, the error is not a reversible one.</p>

<p>APPEAL from Third Judicial District, Santa Clara County.</p>

<p>APPEAL from Third Judicial District, Santa Clara County.</p>

<p>Attorney — Duty in Earning Contingent Fee. — An attorney to whom a cause is intrusted must, in order to become entitled to benefits promised him by his client in the event of success in his efforts, watch the progress of the action and keep himself in a position to perform any service which the exigency of the cause may demand.</p> <p>Specific Performance — Discretion.—A Decree for Specific Performance is always more or less within the discretion of the court. It may either be refused, it being deemed inequitable or against good conscience to enforce the contract, or it may be granted on such terms and subject to such conditions as may be just.</p> <p>Specific Performance — Amendment of Answer. — In a suit for the specific performance of a contract between an attorney and his client. whereby the former was to have land conveyed him by the latter in return for future services successfully performed, the defendant should be allowed to amend his answer so as to have it show omissions by the attorney putting the defendant to expense, the reimbursing him for which ought to be attached as a condition to any decree the plaintiff might be given.</p> <p>Attorney — Suit for Services Under Contract Contra Bonos Mores. — In an action on an express contract for an attorney’s compensation, the client is estopped to defend on the ground that the ser- ■ vices contemplated by the contract were contra bonos mores.</p>

<p>APPEAL from County Court, Plumas County.</p>

<p>Appeal — Striking Case from Files. — Where the record bears no evidence that the nominal appellant actually took an appeal, and there is no brief filed by him nor any suggestion of a diminution of the record, the ease is to be stricken from the files.</p>

<p>Administrator’s Sale. — The Statutory Bar Against an Action by an Heir, or other person claiming under a testator or intestate, to recover real estate sold by an executor or administrator more than three years before, applies to sales void for want of jurisdiction, as distinguished from sales voidable merely for some defect of procedure.</p> <p>Administrator’s Sale — Bar of Action by Heir. — The Statutory Exception of “Minors or others under legal disability to sue” from the operation of the bar against an action by an heir, or other person claiming under a testator or intestate, to recover real estate sold by an executor or administrator more than three years before, has reference to a disability personal to the party, and not to the mere condition of his title.</p>

<p>Convict Labor — Contract for. — A Board, of Directors of the state prison cannot make a contract for convict labor which shall extend beyond the limits of their term of office.</p>

<p>APPEAL from Third Judicial District, Alameda County.</p>

<p>APPEAL from Seventh Judicial District, Napa County.</p>

<p>APPEAL from County Court, El Dorado County.</p>

<p>APPEAL from Fourteenth Judicial District, Placer County.</p>

<p>APPEAL from Seventeenth Judicial District, San Bernardino County.</p>

<p>Probate Court — Time of Creation, of Jurisdiction, — The probate courts have no jurisdiction of the estates of persons who died previously to the time of the enactment of the probate laws of the state.</p> <p>Probate Sale — Estate of Person Deceased in 1850. — A sale, under an order of a probate court, on the 4th of October, 1851, of lands of a person dying on the 14th of February, 1850, could be of no valid effect.</p> <p>Infant — Sale of Estate by Mother. — A Special Act of the Legislature intending to empower the mother, and as such the natural guardian, of an infant to sell the interest of such infant in his deceased father’s estate, would not bestow the power intended.</p>

<p>Trusts — Execution of Deed by One of Two Trustees. — Where a trust deed provides among other things that one of the two joint trustees shall be competent to hold and act in case the other resigns the trust, the execution by one of them of a resignation and its delivery by him to his eotrustee, who is also his copartner in business and general attorney in fact, and who deposits the instrument immediately in the office safe among the firm papers, in which depository it is discovered after his death, are facts not sufficient to validate a deed of the trust property executed by only the trustee to whom the delivery was made, but in the body of which both persons are named as trustees.</p> <p>Trusts1 — Execution of Deed by One Trustee on Resignation of Other. — The condition expressed in a deed of trust to two persons jointly that if one resigns the other shall hold and aet alone unless, by some appropriate instrument in writing, the cestui que trust appoints another eotrustee, is not satisfied if, after a resignation by one of the trustees, the other alone executes a deed of the trust property, such deed not showing on its face, or it not being shown otherwise, that the cestui que trust was aware of the resignation before the execution of the deed.</p> <p>Trusts — Resignation of Cotrustee. — -A Writing by a Cestui Que Trust, uncalled for in law or by the terms of the trust deed, giving permission to a trustee to resign, is, in case the trustee thereupon executes a resignation and delivers it to his eotrustee who immediately deposits it in their office safe (the two being partners in business), no evidence that the cestui que trust was informed of the resignation so that she could appoint a successor, if under the deed of trust she was empowered so to appoint in ease of a resignation.</p> <p>Trusts — Resignation by Cotrustee. — Where a Deed of Trust Does not Provide that a joint trust is to be made an individual one simply by the delivery of his written resignation by one trustee to his cotrustee, it requires other formalities to bring such a purpose into effect.</p> <p>Trusts — Resignation of Trustee. — To be Valid, the Delivery of a Written instrument intended to effect his resignation by a trustee must, as in the ease of the delivery of other written instruments, be such as to put the instrument beyond the power of the person executing it.</p> <p>Acknowledgment. — A Deed by a Married Woman of Her Separate Property must, in order to pass title, be acknowledged by her, and her acknowledgment certified, in the manner required by the Statute.</p>

<p>• APPEAL from Sixth Judicial District, Sacramento County.</p>

<p>San Francisco — Compromise of Claims to Eeal Estate. — The purpose of the legislative “Act to authorize the commissioners of the funded debt of the city of San Francisco to compromise claims to real estate and to convey such real estate pursuant thereto” was to make good certain doubtful titles, and it was to have effect only in favor of persons who, by themselves, their tenants, or their grantors, had held actual, possession of the parcels of land claimed by them from a time prior to the first day of January, 1855.</p> <p>San Francisco — Compromise of Claims to Eeal Estate. — A person invoicing the benefit of the legislative “Act to authorize the commissioners of the funded debt of the city of San Francisco to compromise claims to real estate and to convey such real estate pursuant thereto” was required to state the fact of his possession in his petition and establish it by testimony before the commissioners, and it was recited in the deed, after which the deed became prima facie evidence of the truth of the recitals in it.</p> <p>San Francisco — Compromise of Claims to Eeal Estate. — The prima facie character, as evidence, of a deed from the commissioners under the legislative “Act to authorize the commissioners of the funded debt of the city of San Francisco to compromise claims to real estate and to convey such real estate pursuant thereto,” may be met and overcome by testimony.</p>

<p>APPEAL from Third Judicial District, Alameda County.</p>

This was a reference to the district court by the surveyor general for an adjudication between two rival applications for the purchase of the one tract of swamp land. The complaint contained all the essential averments.

<p>APPEAL from County Court, Alameda County.</p>

<p>APPEAL from Seventh Judicial District, Solano County.</p>

<p>Ejectment — Admission in Answer. — In Ejectment an answer that denies entry by tlie defendant upon the land described in the complaint “except two hundred and fifty feet lying,” etc., by this exception admits an entry which the plaintiff is at liberty to treat a3 an ouster.</p> <p>Ejectment — Injunction Against Trespassers. — It is not usual, if indeed proper, for a judgment in ejectment to be accompanied with a perpetual injunction against trespassers.</p>

<p>State Lands — Improvements.—An Application for the Purchase of lands from the state, under the aet of 1868, was required to state that there were at the time no improvements on the land applied for other than such as were owned hy the applicant.</p> <p>State Lands — Application for Purchase — Verification.—The facts required to be stated, on application for a certificate of purchase of state lands under the aet of 1868, the law intended should be stated under oath.</p> <p>State Lands — Curative Act. — Where an Application for the Purchase of land from the state, under the act of 1868, was defective in failing to state that no improvements other than those of the applicant were on the land and also in failing to have all its statements made under oath, it became valid nevertheless by the curative aet of 1870 in all cases where there were not two or more claimants to the land and where there was no conflict between claimants.</p> <p>State Lands. — The Act of 1870, Curing Defects in Applications for the purchase of state lands under the law of 1868, did not malee the application any better or give it any higher grade or character than it would have possessed had it conformed to the law at the time it was filed.</p> <p>State Lands — Contest After Purchase. — The Act of 1868, regulating the proceedings necessary in the purchase of state lands, does not place a purchaser beyond reach of a contest after being given his certificate of purchase.</p> <p>State Lands — Purchase.—There is a Clerical Error in the Act of 1868 where it is said, “Whenever any resident of the state desires to purchase any of the other lands mentioned in section 52 of this act,” the mention being intended to be in section 51.</p> <p>State Lands — Who may Contest Purchase. — The statute of 1868, regulating the proceedings necessary in acquiring lands from the state, does not contemplate that a contest may be brought before the surveyor general or register by any person who may choose to interfere, but provides for a contest between conflicting claimants of the land or of the right to purchase and to acquire the title,</p> <p>State Lands — Contest of Claims. — When One Comes Before the Surveyor General, having himself a defective application for the purchase of lands under the law of 186-8, for the purpose of contesting the claim of another to the same lands, such application should not be recognized as raising a contest.</p>

<p>APPEAL from Fifth Judicial District, San Joaquin County.</p>

<p>APPEAL from Fourth Judicial District, San Francisco County.</p>

<p>Appeal — Conflicting Evidence. — On Appeal from an Order Granting a New Trial, based partly on the ground that the verdict was against the evidence, the action of the trial eourt will not be interfered with even although there was a substantial conflict of evidence at the trial.</p>

<p>APPEAL from First Judicial District, Santa Barbara County.</p>

<p>New Trial — New Evidence Merely Cumulative. — A motion for a new trial, based on alleged newly discovered evidence is properly denied when from the accompanying affidavits it appears that the evidence newly discovered is only cumulative.</p>

<p>Crops — Conflicting Liens. — The Lien of a Mortgagee of a crop, taken with notice that a creditor of the owners has already been given possession of it to gather and apply upon his debt, is inferior to his lien.</p> <p>Replevin. — In Replevin the Subject Matter of the Action is Confined to specific property mentioned in the complaint, and the defendant may not introduce in his answer another subject matter referring to other property, even if thereby it appears .that he has a right to recover such other property in a separate action.</p>

<p>Ejectment. — A Confirmation of Title by Decree of the United States court could have no effect to change the boundaries of a tract of land to the detriment of one, not a party to the proceeding, owning land adjacent to that as to which the decree was made.</p> <p>Deed. — A Description in Part “Bounded on the East by the Lands or ranchos of,” etc., written in a deed, means the lands or ranchos mentioned as they were understood by the parties to the deed at the time the latter was made.</p>

<p>Appeal. — A Party not Served With a Notice of Appeal is not before the appellate court so that the appellant’s rights as against him may be considered.</p> <p>Appeal. — On an Appeal on the Judgment-roll Alone, there being no statement or bill of exceptions annexed, where an appeal from an order denying a new trial has been abandoned, the judgment is to be affirmed if the evidence justifies the findings.</p>

<p>Appeal — Conflicting Evidence. — A Judgment Based on Findings on tlie point of prior possession made on evidence substantially conflicting will be allowed to stand.</p>

<p>APPEAL from Twelfth Judicial District, San Francisco County.</p>

<p>Appeal — Statement.—Upon an Appeal from an Order Which is not Based solely on affidavits, review will not be had unless a statement on appeal is annexed to the order.</p>

<p>Pleading. — The Statute of Limitations; in Order to foe Availed of as a defense, must have foeen pleaded.</p>

<p>Certiorari — Scope of Writ. — In California the Only Office of the writ of certiorari is to ascertain and determine whether the inferior tribunal to which it is directed has exceeded its jurisdiction in the proceeding sought to be reviewed.</p> <p>Swamp Land — Reclamation—Power of Supervisors. — In the organization of swamp land reclamation districts the powers of boards of supervisors are determined in each case by the board’s own record of the case, which record cannot be enlarged or aided by proof aliunde.</p> <p>Swamp Land — Reclamation—Requisites of Petition. — The foundation of the jurisdiction of boards of supervisors in the matter of the organization of swamp land reclamation districts is a sufficient petition, the requisites of which are prescribed by statute.</p> <p>State Land — Sold and Unsold Lands. — The Records of the State Land Office furnish the data for ascertaining with accuracy what lands have been sold and what unsold within any particular district, and in seeking to establish a new district this statutory requirement ought to be so complied with as to need no aid of presumption to supply deficiencies in the averments of the petition.</p> <p>Swamp Land — Reclamation—Mexican Grants. — It is questionable whether, under existing statutes, lands held under Mexican grants can be included in swamp land reclamation districts, particularly if the land sought to be so included be not itself swamp land.</p>

<p>Default Judgment — When Should be Set Aside. — Where a defendant has failed to answer through an excusable misunderstanding between his attorney and himself, rather than through either intention or indifference, and he really thought he had a good defense and intended to have it made, a default judgment against him should be set aside.</p>

<p>Street Improvements — Authority of Committee of Council. — The charter of Stockton, by authorizing the common council of the city to cause streets to be graded and to let contracts in that connection, conferred no such authority upon a committee of that body.</p> <p>Street Improvements — Committee Exceeding Authority — Curative Act. — Such an irregularity as the assuming by a committee of the common council of Stoekton of the functions of the whole body under the charter, in causing streets to be graded and letting contracts for the grading, is not cured by the act of 1870 reincorporating the city.</p>

<p>Waters — Arbitration—Jurisdiction of Court. — Under a law whereby, in case of a disagreement between persons as to the compensation to be given one for the conduct of water over his land to the land of the other, the question is to be submitted to arbitrators, who are to file their report thereupon in the county court for its action, the court has no jurisdiction in a case where no such disagreement is shown.</p>

<p>APPEAL from Fourth Judicial District, San Francisco County.</p>

<p>APPEAL from Sixth Judicial District, Sacramento County.</p>

<p>APPEAL from Fifteenth Judicial District, San Francisco County.</p>

<p>Eminent Domain —Time of Which. Value of Land Ascertained. — . A person whose land is appropriated to a public use by the exercise of the right of eminent domain is entitled to be paid the value of the land as at the time when so taken, and not the value as at the time it was applied for.</p> <p>Eminent Domain — Compliance With Statute. — When a railroad company invokes the exercise of the right of eminent domain for the purpose of devesting titles, it must pursue the statute substantially, not in some only, but in all, its provisions.</p>

<p>Nuisance — Suit to Abate — Costs.—In a Suit in Equity for the abatement of a nuisance, the allowance of costs is within the discretion of the court.</p> <p>Appeal — Exception for First Time on Appeal. — When it does not appear from the statement on motion for a new trial that the instruction complained of, as a ground for the motion, was excepted to at the trial, the exception cannot be taken for the first time on appeal from the order denying the motion.</p> <p>Appeal. — Where There was a Substantial Conflict of Evidence at the trial, the verdict thereupon is not to be disturbed on appeal as not being justified by the evidence.</p>

<p>Appeal — Conflicting Evidence. — An Order for Judgment, made without findings, where there had been a manifest conflict of evidence at the trial, is not to be disturbed.</p> <p>Attorneys. — In an Action by an Attorney for Compensation for services rendered in conducting a ease, before the end of the trial of which his client had discharged him, an order for judgment for less than the fee as agreed upon in advance of such trial would not indicate, in the absence of written findings, that the court had found a failure on the plaintiff’s part to perform the agreement.</p> <p>Appeal — Damages in Absence of Merit. — While affirming a judgment, where satisfied that the appeal is destitute of merit, the court exacts damages of the-appellant.</p>

<p>Association Formed to Defend Lawsuit — Assessments.—Under a contract by wbicb an association is formed to defend a suit for land, held in separate parcels by the associates, and directors are chosen to employ counsel, procure proofs, etc., with power in these directors to levy assessments on the associates according to their holdings, the assessments to be a lien on the land, which contract by its terms is to terminate when the suit does, no assessment can be made if after conclusion of the suit and payment of the costs the directors still have money of the associates in their hands.</p>

<p>Wife’s Separate Property. — In an Action for tire Possession of Land, brought by a woman both in her own right and as executrix of her husband, judgment is not to be given vesting the title in her alone as her separate estate if not in accord with the documentary proof at the trial.</p> <p>Community Property — Debts of Decedent. — Property Acquired by Either Spouse during the marriage, under a deed of bargain and sale reciting a valuable consideration, is prima facie community property, and is assets in the hands of the executor or administrator of the husband for the payment of debts.</p>

<p>APPEAL from Third Judicial District, San Francisco County.</p>

The appeal was from an order setting aside a nonsuit and granting a new trial.

<p>APPEAL from Fourth Judicial District, San Francisco.</p>

<p>APPEAL from Eleventh Judicial District, El Dorado County.</p>

<p>APPEAL from Twelfth Judicial District, San Francisco County.</p>

<p>Ejectment — Answer not Demurrable. — An answer in ejectment setting up a perfect legal title in fee in a person from whom the defendant claims, the death and intestaey of this person, a forged will by the person from whom th'e plaintiff claims, his fraudulent acquisition thereby, and notice of the fraud had by the plaintiff and his grantors, cannot successfully be demurred to, since the demurrer admits these allegations to be true.</p> <p>Cotenancy — Limitations of Actions. — Under the Buie That if One of several tenants in common labors under a disability which preserves his rights under the statute of limitations, this will not inure to the benefit of his cotenants against whom the statute has fully run, if the tenant under disability brings his action against the disseizor for the possession, he can recover only his undivided interest.</p> <p>Limitation of Actions — Time to Baise Objection. — Where there is no express showing that the filing of an amended answer after the complete running of the statute of limitations was done without leave of court asked and obtained, but so far as the record discloses without objection by plaintiffs, objection cannot be made for the first time on appeal.</p>

<p>APPEAL from Fourth Judicial District, San Francisco County.</p>

This was an action of ejectment. The answer denied all the allegations of the complaint. The ease made out by the proof of plaintiff was that the latter claimed through a sheriff’s deed in execution after judgment in an attachment case; but the judgment debtor, Dickenson, had assigned whatever interest was his in the property to the defendant Rainsfield, that interest being a mere right under a contract to purchase, no money having passed from him and no deed to him.

<p>APPEAL from Fifteenth Judicial District, San Francisco County.</p>

<p>APPEAL from Probate' Court, San Francisco County.</p>

<p>APPEAL from Twelfth Judicial District, San Francisco County.</p>

This was an action of replevin to recover a lot of cattle claimed by the plaintiff to be his. They had been taken by a sheriff in execution of a judgment against brothers of the name of Schultz and when seized were, with many other cattle variously owned, on an island occupied by one of the brothers and were branded with the Schultz private mark.

The plaintiff was a public administrator to whom had issued letters on the estate of one John King, deceased. The debts were largely in excess of the assets, and the administrator wished to subject to them an insurance policy King had had on his life, made, originally payable to himself, which policy the assured had, a day or so before his death, assigned to his brother, the defendant here.

<p>APPEAL from Twelfth Judicial District, San Francisco County.</p>

<p>APPEAL from Seventeenth Judicial District, Los Angeles County.</p>

<p>APPEAL from Second Judicial District, Tehama County.</p>

<p>Street Improvements — Publication of Notice. — The statute controlling the award of contracts for the improvement of streets does not provide -who shall cause the notice of the award to be published.</p> <p>Street Improvements — Publication of Notice. — The statute controlling the award of contracts for the improvement of streets requires that “notice of such award shall be published for three days,” etc. Publication for two days only does not satisfy the statute.</p>

<p>Appeal — Review of Finding of Jury. — When on a particular point in a case the question of fact has been submitted to a jury, and the latter’s finding thereupon is deemed, on appeal, as sufficiently supported by the evidence, such finding will not be disturbed.</p> <p>Appeal — Review of Finding on Conflicting Testimony. — A finding by the trial court upon evidence substantially conflicting will not be disturbed on appeal.</p> <p>Quieting Title — Appeal.—Findings of the Trial Court, discrediting pretenses advanced to defend the occuioaney of land, are not to ]oe disturbed when justified by the evidence,</p>

<p>APPEAL from Third Judicial District, San Francisco County.</p>

<p>APPEAL from Twentieth Judicial District, Santa Clara County.</p>

<p>Ejectment — Sufficiency of Complaint. — In Ejectment It is not Sufficient for the complaint to aver possession by the plaintiff on a certain day, naming the day, and allege ouster as of that 'day, without further averment of title, seisin or right to the possession; the complaint must show that the plaintiff was entitled to the possession when bringing the suit.</p> <p>Public Land. — Person in Possession may Convey His Interest. — ■ A person in possession of public land may freely make a conveyance of his possession or right, so far as it goes, and the conveyance is as valid as would be one in fee Simple; it is sufficient to transfer to his grantee the right of possession as against anyone not connecting himself with the title of the United States.</p>

<p>APPEAL from Fourth Judicial District, San. Francisco County.</p>

<p>APPEAL from Fourth Judicial District, San Francisco County.</p>

<p>Adverse Possession. — An Owner of Land, After Conveying an Undivided Fraction, may hold the latter by adverse possession against the grantee, as being included in the term “the whole world.”</p> <p>Cotenancy — Adverse Possession. — Until the Contrary Appears, the Possession of one tenant in common is deemed the possession of the other also; it is amicable to him until shown to be hostile, which showing must be, by acts and declarations of the person in possession, brought home to the other.</p> <p>Cotenancy — Adverse Possession — Pleading and Evidence.— When the statute of limitations is relied on by a tenant in possession as against his cotenant, it must, at the trial, be proved by the party so relying that his possession was hostile and not amicable, but in pleading it is sufficient to aver an open, notorious and exclusive possession as against the whole world.</p> <p>Statutes. — When Two Legislative’Acts are Plainly Repugnant, not susceptible of being reconciled, the one of the more recent enactment prevails.</p> <p>Executors and Administrators — Presenting Judgment Claim.— The Probate Act, requiring a judgment creditor of the decedent to present his judgment to the administrator as a claim, defeats the provision of the Civil Practice Act, whereby on leave first had from the probate court, if a debtor has died after the recovery of judgment on the debt, execution may issue against the estate.</p>

<p>Bills and Notes. — An Indorser Waives Demand and Notice if, immediately before the maturity of the note, he tells the payee to give himself no uneasiness in regard to payment, since he is collecting money for the maker and will see that the note is paid when due.</p>

<p>Adverse Possession — Mexican Claim. — A person in continuous adverse possession of premises for more than five years may not be made to relinquish them to one asserting rights through an old Mexican claim who has no patent and no final confirmation of title.</p> <p>Adverse Possession — Mexican Claim. — When a plaintiff relies for recovery upon a final confirmation of title, the statute of limitations begins to run only at the issuance of the patent, and so bare possession for any time antecedent would not benefit his adversary; but, without actual issue of patent, a Mexican claim whieh such issue might make into a practical right, cannot be recognized as a claim entitled to protection by the United States.</p>

<p>Sale — Mutual Mistake — Estoppel.—Under the law of sales the effect of a mutual mistake as to either terms or subject matter is that neither party is bound; if, though the contract by its terms admits of two constructions and one party proceeds with it, not correcting the other, whom he knows labors innocently under the wrong impression of it, he is bound by the contract as the other party conceived it to be.</p> <p>Statute of Frauds. — A Memorandum of a Contract Made by the Secretary of a board of directors is a sufficient memorandum in writing to satisfy the statute of frauds.</p>

<p>APPEAL from Fifth Judicial District, San Joaquin County.</p>

<p>APPEAL from Eleventh, Judicial District, El Dorado County.</p>

<p>APPEAL from Seventh Judicial District, Marin County.</p>

<p>APPEAL from Fifteenth Judicial District, Contra Costa County.</p>

The plaintiffs had owed money to the defendants, to recover which the defendants had sued them and attached some of their property, to wit, six thousand sheep. On the g'round that this property was self-consuming the attaching creditors had procured an order of court to sell it; the sale had been made accordingly and one of these creditors, 0. W. Childs, had become the nominal purchaser.

<p>APPEAL from Fifth Judicial District, Stanislaus County.</p>

<p>Assault and Battery — Instructions.—If a Defendant Admits That He Struck the plaintiff with a fence pole, when he is charged with having struck him with a heavy club, the court is not unduly asserting judicial knowledge in instructing the jury that “the defendant admits that he struck the plaintiff substantially as charged.”</p>

<p>APPEAL from Third Judicial District, Alameda County.</p>

<p>APPEAL from Third Judicial District, Alameda County.</p>

<p>Mortgage Foreclosure — Fixtures.—A Sheriff’s Deed on Foreclosure Relates Back to the delivery of the mortgage and things fixed to the mortgaged premises by the mortgagor during the interval pass with that deed.</p> <p>Appeal — Questions Raised for First Time. — An objection that the notice of motion for a new trial and the supporting statement came too late to be available cannot be raised for the first time on appeal.</p>

<p>Payment — Kind of Money. — An Allegation in a Complaint for the payment of money that the understanding between the parties was that payment was to be made in a particular sort of money, presents an issuable and material fact which, if denied by the answer, must be proven.</p> <p>Trial. — A General Verdict That the Plaintiff Recover a Certain Sum of money may be construed- as a finding in favor of the plaintiff upon all the issuable facts stated in the complaint.</p> <p>Judgment — Amending to Make Payable in Gold. — When an issuable fact, in am action for the payment of money, is the payment in gold coin, and, the jury having rendered a general verdict for the plaintiff for a certain sum, judgment is entered accordingly, the trial court may amend the judgment by making it payable in gold.</p>

<p>Public Land — Sixteenth. Section Granted to State. — Unless affected by some valid pre-emption right, the title to land included within a sixteenth section vested in the state, upon approval of the survey of the township, under the act of Congress granting sixteenth and thirty-sixth sections.</p>

This was a suit to have declared a mortgage an instrument in form more a bill of sale, and for a foreclosure. On August 7, 1869, the defendant James Arnott was indebted to the plaintiff in the sum of seven hundred and ninety-two dollars and to the defendant Griffin in the sum of eleven hundred and sixty dollars.

<p>Appeal — Conflict of Evidence. — On Appeal from an Order-Denying a motion for a new trial, where the ground for the motion was that the evidence did not support the findings, the findings are not to be disturbed, if there was a substantial conflict of evidence.</p>

<p>APPEAL from Second Judicial District, Santa Clara County.</p>

<p>Appeal — Contradictory Evidence in Record. — The practice of the supreme court is to refrain from disturbing a finding of fact, made by the trial court and supported by evidence in the record, merely because the evidence on the point is contradicted by other evidence also appearing in the record.</p> <p>Evidence. — Questions as to the Mere Credibility of Opposing Witnesses and as to the weight to be given this or that one of con-dieting statements are for the trial court.</p>

<p>Ejectment — Right of Plaintiff to Possession. — In ejectment the plaintiff, in order to recover, must show he was entitled to the possession at the time his action was brought.</p> <p>Executor — Effect of Confirmation or Patent of Land to. — -By a confirmation duly had or a patent duly issued to a person as executor or administrator, the legal title vests in him rather than in the equitable owners by reason of inheritance or devise from the decedent.</p>