Volume 10 — California Reports

. Appeal from the District Court of the Fourth Judicial District, County of San Francisco. .

This was an action to recover the possession of fifty-eight barrels of butter, and damages for the detention of the same. In August, 1856, plaintiff bought of Lowe, Ebbetts & Co., of San Francisco, fifty-eight barrels of butter, worth the sum of seventeen hundred dollars.

<p>Appeal from the District Court of the Eleventh Judicial District, County of El Dorado.</p> <p>This was an action to restrain the defendants from selling, under an execution, certain real property belonging to the plaintiff. The plaintiff in her complaint alleges that in February, 1855, she made her declaration in writing, before a notary public of El Dorado county, “ whereby she declared that she intended to carry on business in her own name and on her own account; and that such business was the business of livery-stable keeping, and trading in horses, and all things appertaining to such business; and that it was her intention to carry on the same in her own name and on her own account, and that she would be individually responsible for all debts contracted by her on account of such business; and that the capital invested in said business did not exceed five thousand dollars.”</p> <p>This declaration was regularly certified to, officially, by said notary, and was then duly recorded in the office of the county recorder of said county, and was also advertised and published in The Mountain Democrat, a public newspaper of general circulation in said county, for more than three successive weeks, beginning on the 10th day of February, 1855. For the purpose of enabling her to carry on said business, and as a part of the capital invested, she purchased and had conveyed to her the real property so levied upon, and paid therefor §1400, (the property is described in the complaint;) that she began said business at the date of her declaration and is still carrying on the business, and is the owner in fee and in the possession and use of said property; that defendant Jones, on the 25th day of November, 1857, recovered a judgment in the District Court of El Dorado county, for the sum of $427 95, and costs of suit, against her husband, William Alverson; that the debt upon which said judgment was rendered was not contracted, in whole or in part, by her; that Jones had execution issued on said judgment and placed in the hands of defendant Bogardus, as the sheriff of said county, and he levied upon her said real estate (stable and lot,) and had advertised the same for sale to satisfy said execution. The complaint prays for an injunction to restrain the sale, and for a release from said levy.</p> <p>To this complaint the defendants demurred, on the ground that the complaint .did not state facts sufficient to constitute a cause of action. The Court sustained the demurrer, and gave judgment for the defendants. From which judgment the plaintiff appealed to this Court.</p>

This was an action in ejectment, for an unimproved fifty-vara lot, numbered 195, situated on the south side of Pacific street, between Sansome and Montgomery, in San Francisco, upon a title derived directly from Maximo Z. Fernandez, the grantee under the municipal government of Yerba Buena. The defendants answer separately, and each sets up title to an undivided half of the lot; also claiming under Fernandez, by purchase from Jesus Hoe.

<p>A complaint against a sheriff and his sureties for selling, under execution, the homestead of plaintiffs, which sets out that the sheriff was in possession of a certain execution against plaintiff J. Kendall, and, under color of said execution, wrongfully and illegally entered upon and sold certain property, the homestead of plaintiffs, and averring damages in the sum of two thousand dollars, the value of the property is insufficient, as the same does not state facts sufficient to constitute a cause of action.</p> <p>No damage has or can result from such a sale. If the property sold was a homestead, the sheriff's deed conveyed nothing. The purchaser at such sale could acquire no right to the property, nor could the plaintiff suffer any injury.</p>

<p>C. L. Cresman brought suit against Seymour & Jones before a justice of the peace, upon a promissory note. The summons was regularly served •, the defendant made default, and the plaintiff obtained judgment. Prom this judgment the defendant, George F. Jones, appealed to the County Court, and filed and served his notice of appeal, which is as follows:</p> <p>“Charles L. Cresman v. Lewis S. Seymour and George F. Jones— In Justice Bush’s Court, Placerville Township, County of El Dorado.—The plaintiff in the above-entitled cause is notified that the defendant, George F. Jones, appeals from the judgment rendered in said cause, to the County Court of Ei Dorado county, and that said appeal is from the whole judgment, and on questions of both law and fact.</p> <p>“Respectfully,</p> <p>“ July 21, 1857. George F. Jones.”</p> <p>The County Court dismissed the appeal, and the defendant, Jones, applied to this Court fora mandamus to compel the County Court to proceed and try the case. An alternative writ was issued and returned served.</p>

<p>Appeal from the Court of Sessions of the County of Sacramento.</p> <p>The defendant, James Mullins, was indicted by the grand jury, empanneled in and for the county of Sacramento, for the crime of an assault with a deadly weapon, with the intent to inflict upon the person of one John McCoy a bodily injury. The indictment was found on the sixth day of May, 1858, and the defendant was arraigned and plead not guilty, on the tenth day of May following. On the eighteenth day of May, 1858, the plea was, by leave of the Court, withdrawn, and a motion made by the defendant to set aside the indictment on the ground, “ that the same was not found by a legal grand jury of the city and county of Sacramento, or a legal grand jury of the county of Sacramento. And that it appears by said indictment, that the same was found by a grand jury of the county of Sacramento; whereas there was no such organization, or body politic, or corporation as the county of Sacramento when said indictment was found.” The Court overruled this motion, and the defendant again plead. “ not guilty.” A jury was called and sworn, and the defendant tried and convicted. The defendant being called for sentence on the twenty-first day of May, 1858, his counsel moved the Court to arrest the judgment on the same grounds of the former motion to set aside the indictment. Which motion was also denied by the Court, and sentence was passed on the prisoner. From which judgment of conviction the defendant appealed to this Court.</p>

<p>Under section forty-six of the Code there are only two classes of defence allowed. The first consists of a simple denial; and the second, of the allegation of new affirmative matter. And as the Code has abolished all distinctions in the forms of action, and requires only a simple statement of the facts constituting the cause of action or defence, these two classes of defence must be the same in all cases.</p> <p>The intention of the Code is to adopt the true and just rule that the defendant must either deny the facts as alleged, or confess and avoid them.</p> <p>Where new matter exists it must be stated in the answer.</p> <p>New matter is that which, under the rules of evidence, the defendant must affirmatively establish. If the onus of proof is thrown upon the defendant, the matter to be proved by him is new matter.</p> <p>A defence that concedes that plaintiff once had a good cause of action, but insists that it no longer exists, involves new matter.</p> <p>The Code makes no distinction between different classes of new matter. All new matter of defence must be stated in the answer.</p> <p>Two of the leading ends contemplated by the Code are, simplicity and economy. As contributing to the attainment of these ends, it was the intention of the Code to require the pleadings to be so framed as not only to apprise the parties of the facts to be proved by them respectively, but to narrow the proofs on the trial.</p> <p>A sham answer, is one good in form but false in fact, and not plead in good faith. It sets up new matter which is false.</p> <p>In an action of ejectment to recover the possession of land, where the defendant simply denied the allegation of the complaint: Held, that he could not introduce in evidence a copy of the record of a former recovery.</p> <p>In such action, where the plaintiff claimed by virtue of his prior possession, the defendant will not be allowed to show that a third party had an older and better claim to the land than that of plaintiffs.</p> <p>It is not error, in such an action, to allow the plaintiff to prove that while he and another party (whose interest he has since purchased) were in possession, each claimed the premises. Such proof was a part or the res gestæ, and admissible to show that the party in possession assumed to hold in his own right, and not in subordination to another.</p>

<p>To constitute an appeal there are three things necessary: first, filing the notice; second, service of the same; and third, filing the undertaking. All of these steps must be taken within the times limited by statute. If not so taken, there is no appeal perfected, and this Court has no jurisdiction of the case.</p> <p>The service should be made after, or at the time of the filing of the notice; and before, or at the time of the filing the undertaking.</p> <p>The period of five days fixed by law for filing the undertaking, can not be abridged by the error or negligence of the appellant; nor can that appellant, by serving a copy of the notice of appeal before the original is filed, keep the respondent watching the clerk's office to see when it is done.</p> <p>These provisions of the Code are intended for the repose of parties, and must be strictly complied with.</p>

<p>Evidence of the dying declarations of a deceased person, are admissible on a trial for murder.</p> <p>The most substantial ground upon which the admission of such testimony can be placed, is that of necessity.</p> <p>The verbal declarations of the deceased are admissible in evidence where the written declarations, signed by deceased, have been first introduced or their absence accounted for. Having done this, it is proper to admit proof of the fact that the deceased had, at different times, made the same statement.</p> <p>The admissibility of such evidence is not a question for the jury.</p> <p>Where a defendant’s objection to the admission of testimony on the trial is general, he can not be permitted to make it special, for the first time, in this Court.</p> <p>Where the Court below excluded from the jury evidence of threats, on the part of the deceased, against the life of defendant, and the record does not show the character of such threats, this Court will presume that such proof was properly excluded.</p> <p>Such threats may have been made, and might have been conditional and justifiable.</p>

This is an appeal from the judgment of the District Court, declaring that the defendant has no right to the office of Comptroller of the State, and that the relator is entitled to take upon himself the execution of the said office. The facts of the case, as disclosed by the record, are briefly these.

<p>All intendments must be in favor of sustaining the judgment of Courts of original jurisdiction; and, to disturb such judgment, it is not sufficient that error may have intervened, but it must be affirmatively shown by the record.</p> <p>The naked directions of a Court to the jury, unaccompanied with a statement of facts, will not satisfy this Court of substantial error, although some of the directions may not be in consonance with the rules of law.</p>

The defendant was indicted for the crime of murder in the first degree. The indictment is as follows: The People of the State of California v. Martin Rodriguez and John Ballinger—In the Court of Sessions of the County of Placer, February Term, 1858.—Martin Rodriguez and John Ballinger are accused by the grand jury of the county of Placer, by this indictment, of the crime of murder.

<p>Where there is nothing in the constitution of a joint-stock-company which regulates the remedies of the shareholders, as between themselves, the general law of partnership must govern them.</p> <p>Where two shareholders in such company sold to the company goods to a large amount, and afterwards, during the existence of the company, sold their stock to A, and assigned their account for such goods to B, who sued such company on said account by/ attachment: Meld, that such action could not be maintained, there having been no final settlement of the partnership accounts, no balance struck, and no express premise on the part of the individual members to pay their ascertained portion.</p> <p>The assignees of such account were placed in no better situation by the assignment, to sue, than the assignors before the assignment.</p>

<p>Appeal from the District Court of the Fourth Judicial District, County of San Francisco.</p> <p>The action in which the order appealed from was made, was one brought originally in the late Superior Court of the City of San Francisco, to recover possession of certain real estate situated in that city. A verdict for the plaintiff was rendered in said action in the Superior Court on the third day of April, 1857, and judgment therefor entered in the same Court on the eleventh day of April, 1857. The respondents, Biedman, Hawes, and Hosmer, gave notice of their intention to move for a new trial, and within such time thereafter as was allowed by the Court, or by the stipulations of parties, prepared, filed, and served their proposed statement for a new trial, in accordance with the thirtieth rule of practice of the Fourth District Court, the rules of the Fourth District Court having been previously adopted, and being then in force as the rules of practice of the Superior Court. The plaintiff prepared his amendments to the statement, and within the time allowed by the Superior Court, or by the stipulations of said parties, to wit, on the twenty-fourth day of April, 1857, in accordance with said rule of Court, filed and served his amendments, with the statement, upon the respondents' attorney, Horace Hawes, for which the said Hawes gave his written receipt of that date. The respondents having given no notice within two days thereafter of settlement of the statement before the Judge-, an order of the Superior Court was obtained by the plaintiff on the twenty-eighth day of April, 1857, requiring the respondents to file their statement and amendments on the same day, with the clerk of said Court, and directing the motion for a new trial to be heard on the following day, to wit, the twenty-ninth day of April, 1857, at nine o’clock, a. m., a copy of which order was, on the same day, between the hours of ten, a. m., and one, p. m., duly served upon the said Horace Hawes, the attorney for the respondents, personally, at his office in the city of San Francisco. On the following day, to wit, the twenty-ninth day of April, 1857, on the application of the respondents’ counsel, the hearing of the motion was adjourned to the thirtieth, which was the last day of the existence of the Superior Court, and' the respondents were by the Judge of said Court, in open Court notified, on the twenty-ninth day of April, that the motion would be disposed of on the thirtieth.</p> <p>On the thirtieth day of April, 1857, the motion for a new trial was by the Superior Court considered and overruled, and on the same day the April term of said Court terminated, and on the following day, the first of May, 1857, said Court ceased to exist, and all its papers and records were transferred to the Fourth District Court.</p> <p>On the twenty-third day of May, 1857, the defendants, Hawes, Biedman, and Hosmer, obtained an order from the Fourth District Court upon the plaintiff, to show cause why the order of the Superior Court denying the defendants’ motion for a new trial should not be set aside. Affidavits were filed by the parties respectively, in support of and against the application, and other evidence adduced, and the plaintiff objected, that the Fourth District Court had no power to set aside the order referred to of said Superior Court, but the Fourth District Court, upon consideration of the application, on the eighteenth day of July, 1857, granted the same, and made an order setting aside and vacating the said order of the Superior Court, refusing a new trial. To this order of the Fourth District Court plaintiff excepted, and appealed from said order to this Court.</p>

<p>There is no precise age within which, children are excluded from giving testimony. Their competency is to be determined, not by their age, but by the degree of their understanding and knowledge.</p> <p>It is essential that they should possess sufficient intelligence to receive just impressions of the facts respecting which they are examined, sufficient capacity to relate them correctly, and sufficient instruction to appreciate the nature and obligation of an oath.</p> <p>It is for the Court to decide the question of their competency, when they are offered as witnesses.</p> <p>If over fourteen years of age, the presumption is that they possess the requisite knowledge and understanding 3 but, if under that age, the presumption is otherwise, and it must be removed upon their examination by the Court, or under its direction and in its presence, before they can be sworn.</p>

The defendant was indicted with Whithurst and Roberts for the crime of murder in the first degree.

This was an action in equity, brought by plaintiff against the defendant, to remove an alleged cloud upon plaintiff’s title to a lot of land in the city of Sacramento. The defendant, in his answer, alleges that a deed from the sheriff of Sacramento county to Allen Cadwalader, and from Cadwalader to plaintiff, to said lot, is a cloud upon defendant’s title thereto, and prays that the same may be delivered up, and canceled.

The defendant was indicted for the crime of manslaughter, in killing John M. Vance. Honshell and Lee were copartners in farming. They owned and were in possession of a tract of land in San Joaquin county, which they lived upon and cultivated. Adjoining this tract was another tract,' or quarter-section, of land, fenced on three sides, which they claimed to own by purchase and deed of conveyance from Crostly to them.

<p>Where A gave his promissory note to B, in part payment for a certain tract of land, payable to B thirty days after the confirmation of the Sutter land-title, provided the land for which the note was given should be included in the limits of the grant. Held, that the confirmation of Sutter’s title was a condition precedent to the payment of the note 3 and to entitle A to a judgment on such note, he must prove such confirmation.</p> <p>The judgment of the Board of Land Commissioners, the tribunal of original jurisdiction, is sufficient evidence of such confirmation, unless the judgment be reversed, or its operation suspended by an appeal, which is still pending.</p>

<p>The lines of a quarter-section of government land, which are distinctly marked by natural boundaries, and by stakes placed at convenient distances, so that the lines can be readily traced, are sufficient to authorize the occupant to maintain an action for a trespass thereon, under the provisions of the act of April 11, 1850.</p> <p>It does not matter that such lines were marked out before the passage of the act, any more than it does that the possession was anterior to its passage.</p> <p>Nor does it make any difference when the act has been repealed, if the plaintiff's right accrued and the trespass of the defendant occurred prior to such repeal. The right of action being complete, the repeal of the act would not divest such right.</p> <p>Where plaintiff, and McDowell, her former husband, lived upon a lot in the town of Washington, and cultivated a small garden in 1849, and McDowell in that year died, leaving his widow in possession of said lot, and she, shortly after his death, laid out and marked off 160 acres of land, including the lot on which she resided, and laid out said tracts into town lots, and in 1850, the defendant entered upon one of the lots and built a house thereon, and, subsequently, in the same year, she consented to the appointment of defendant as administrator of her husband's estate, including the 160-acre tract: Held, that such consent did not operate as an estoppel against plaintiff's claim to such lot as was occupied by defendant before be was appointed administrator.</p> <p>Such possession of the defendant was wrongful in the beginning, and its character was not changed by the act of plaintiff in consenting to the appointment of defendant as administrator.</p>

<p>Errors assigned upon instructions given by the Court below, will not be considered by this Court, unless there is an authenticated statement of the evidence to show the pertinency or relevancy of such instructions.</p>

<p>Tho failure of a justice of the peace to state in his docket that the summons was returned “served,” will not vitiate the judgment on appeal.</p> <p>The fact of service may be shown by the return of the officer on the summons.</p>

<p>Appeal from the District Court of the Sixth Judicial District, County of Sacramento.</p> <p>This is a proceeding in equity to remove a cloud from plaintiff’s title to cetain lots in Sacramento city.</p> <p>Plaintiff deraigns title from John A. Sutter, Jr., through a conveyance executed on the 20th of June, 1850, in favor of the plaintiff, S. C. Bruce, Julius Wetzlar, and James S. Graham, which is as follows :</p> <p>John A. Sutter, Jr., to Samuel Brannan, Samuel O. Bruce, Julius Wetzlar, and James S. Graham.—This indenture, made the twentieth day of June, in the year one thousand eight hundred and fifty, between John A. Sutter, Jr., of the city of Sacramento and State of California, of the first part, and Samuel Brannan, of the city of San Francisco, one-fourth interest—Samuel C. Bruce, of the city of Sacramento, one fourth interest—Julius Wetzlar, of the city of Sacramento, one-fourth interest—James S. Graham, of the city of San Francisco, one-fourth interest—parties of the second part, witnesseth that the said party of the first part, for and in consideration of the sum of one hundred and twenty-five thousand dollars, ($125,000,) in hand paid by the said parties of the second part, (the receipt whereof is hereby acknowledged,) has granted, bargained, and sold, and by these presents does grant, bargain, and sell, unto the said parties of the second part, and their heirs and assigns forever, all the estate, right, title, interest, claim, or demand whatsoever, of him, the said party of the first .part, either in law or equity, of, in, and to, the following described property, situate, lying, and being in the city of Sacramento and State of California, consisting of two thousand two hundred (2200) town-lots, be the same more or less; said lots being bounded according to the original plat or plan of said city and including a lot in said city bounded and described as follows, to wit: Lot number two, (2,) in the square between J and K and Third and Fourth streets, commencing at a point on the northeasterly corner of said lot, running thence southerly on a line parallel with Third street one hundred and sixty feet to an alley, thence westerly along said alley twenty-five feet and eight inches, thence northerly on a line parallel with said Third street one hundred and sixty feet to said J street, thence east-. erly along said J street twenty-five feet and eight inches, to the place of beginning.</p> <p>Also, five (5) shares, except the lots sold up to date, in the town of Eliza, said town being situate on the east bank of Feather River, in the county of Yuba, and State of California.</p> <p>Also, one (1) share in Plumas City, said city being situate in the county of Yuba, and State of California—said share being the eightieth part of said city, and consisting of thirty-six town-lots, numbered as follows: Lot number eight, (8,) in block number six (6;) lot number two, (2,) in block number three hundred and fourteen (314;) lot number three, (3,) in block number three hundred and three (303;) lot number eleven, (11,) in block number eight (8;) lot number two, (2,) in block number twenty-nine (29;) lot number three, (3,) in block number twenty-one (21;) lot number two, (2,) in block number one (1;) lot number five, (5,) in block number forty-six (46;) lots number one, (1,) two, (2,) three, (2,) and four, (4,) in block number forty-nine (49;) lots number five, (5,) six, (6,) seven, (7,) and eight, (8,) in block number one hundred and thirty-four (134;) lots number one, (1,) two, (2,) three, (3,) four, (4,) five, (5,) six, (6,) seven, (7,) and eight, (8,) in block two hundred and twenty-one (221;) lots number one, (1,) two, (2,) and three, (3,) in block two hundred and three (203;) and lot number five, (5,) in block one hundred and twenty-nine (129.)</p> <p>Also, a portion of the fifty-vara lot number sixty-two, (62,) on the official map of the city of San Francisco, and having a front of thirty six feet on Pacific street, by one hundred feet deep, running back towards Broadway street; said piece of land being on the southwest corner of said lot sixty two, (62,) and situate one hundred and one-half feet from Dupont street.</p> <p>Also, twelve lots in the town of Nicolaus, being each one hundred feet in length and eighty feet in width, and numbered as follows: Lot number six, (6,) in block number eight (8;) lot number ten, (10,) in block number sixteen (16;) lots number three, (3,) and four, (4,) in block number eighteen (18;) lot number six, (6,) in block number forty-four (44;) lot number two, (2,) in block number forty-five (45;) lot number five, (5,) in block number forty-six (46;) lot number one, (1,) in block number forty-three (43;) and lots number one, (1,) five, (5,) six, (6,) and ten, (10,) in block number fifty-two (52.)</p> <p>And, also, that certain tract of land situate on the Sacramento River, commencing at a point on the east bank of said river, adjoining the land owned by George McKinstry, running thence up the said river-bank along the low-water-line, one-half mile ; thence in a direct line back from said river one mile; thence in a line parallel to the aforesaid river-line southerly one-half mile, and thence to the place of beginning. Being that certain tract of land situate, lying, and being, between the southerly boundary of Sacramento city, and the town called Sutter, or Sutterville. Together with all and singular the tenements, hereditaments, privileges, and appurtenances thereunto belonging, or in anywise appertaining; to have and to hold the above-granted premises unto the said parties of the second part, and to their heirs and assigns, to their use, benefit, and behoof, forever.</p> <p>And the said party of the first part, for himself, his heirs, executors, and administrators, doth hereby covenant to and with the said parties of the second part, their heirs and assigns, that the title to the property of the party of the first part, above conveyed, or attempted to be conveyed, by the said party of the first part, to the said parties of the second part, their heirs and assigns, he will forever warrant and defend against the claim or claims of all persons whatsoever. And the said party of the first part doth further covenant to and with the said parties of the second part, their heirs and assigns, that he, the said party of the first part, shall and will make, constitute and appoint, and by these presents doth make, constitute and appoint, the said parties of the second part his true and lawful attorneys, for him and in his name, place, and stead, to enter into and take possession of all such lands, tenements, hereditaments, and real estate whatsoever and wheresoever, in the State of California, to or in which the said party of the first part is, or may be in any way, entitled or interested; and to grant, bargain, sell and convey the same, or any parcel thereof, for such sum or price, and on such terms, as to them shall seem meet, and for him, the said party of the first part, and in his name, to make, execute, acknowledge, and deliver, good and sufficient deeds and conveyances for the same. And, until the sale or sales thereof, to let and demise the said real estate, and to ask, demand, restrain for, collect, recover, and receive all sums of money which now are or may become due and owing to the said party of the first part, his heirs, executors, administrators, and assigns, by means of such bargain and sale, or lease and demise, giving and granting unto the said parties of the second part, their heirs and assigns, full power and authority to do and perform all and every act and thing whatsoever, requisite and necessary to be done in and about the premises, as, to all intents and purposes, the party of the first part might or could do, if personally present. And the said party of the first part, for himself, his heirs, executors, administrators, and assigns, doth further covenant to and with the said parties of the second part, their heirs and assigns, that he, the said party of the first part, his heirs, executors, administrators or assigns, shall not use, will, sell, or in any way dispose, or authorize any other person or persons to sell, or in any other way dispose of any lands, tenements, hereditaments, and real estate whatsoever, to which he, the said party of the first part is, or may be in any way entitled or interested, or to receive from any person or persons, any sum or sums of money which are due and owing to the said party of the first part for the sale of any real estate, or in any way impair or revoke the power hereby given to the said parties of the second part, their heirs and assigns, by the said party of the first part, unless the said parties of the second part, their heirs or assigns, neglect or refuse to pay to the said party of the first part, his heirs, executors, administrators, or assigns, the just and full sum of twenty-five thousand dollars, ($25,000,) on or before the first day of July, in the year one thousand eight hundred and fifty ; and the further sum of twenty-five thousand dollars, ($25,000,) on or before the twenty-ninth day of September, in the year one thousand eight hundred and fifty; and the further sum of seventy-five thousand dollars, ($75,000,) on or before the first day of July, in the year one thousand eight hundred and fifty-one; making, in all, the just and full sum of one hundred and twenty-five thousand dollars ($125,000.)</p> <p>And the said party of the first part, his heirs, executors, administrators, and assigns, doth further covenant, to and with the said parties of the second part, their heirs and assigns, that in case the said parties of the second part, their heirs and assigns, pay to the said party of the first part, his heirs, executors, administrators, or assigns, the just and full sum of twenty-five thousand dollars, (§25,000,) on or before the first day of July, in the year one thousand eight hundred and fifty; and the further sum of twenty-five thousand dollars, ($25,000,) on or before the twenty-ninth day of September, in the year one thousand eight hundred and fifty; and the further sum of seventy-five thousand dollars, (§75,000,) on or before the first day of July, in the year one thousand eight hundred and fifty-one; making, in all, the just and full sum of one hundred and twenty-five (§125,000;) then this instrument is to take effect as a full and complete conveyance, in fee, of all and singular the lands, tenements, hereditaments, appurtenances, and real estate in the State of California, belonging to or in which the said party of the first part, his heirs, executors, administrators, or assigns, is, or are, in any way entitled or interested. And the said party of the first part, for himself, his heirs, executors, administrators, and assigns, doth further covenant to and with the said parties of the second part, their heirs and assigns, that in case the said party of the first part, his heirs, executors, administrators, or assigns, in any way neglect or refuse to fulfill the above covenants, made by the said party of the first paid, for himself, his heirs, executors, administrators, or assigns, then this instrument is to take effect immediately thereupon, as a full and complete conveyance, in fee, of all and singular the lands, tenements, hereditaments, appurtenances, and real estate, whatsoever and wheresoever, in the State of California, belonging to or in which the said party of the first part, his heirs, executors, administrators, or assigns, is, or are, in any way entitled or interested.</p> <p>In witness whereof, the said party of the first part hath hereunto set bis hand and seal the day and year first above written.</p> <p>John A. Sutter, Jr.</p> <p>Sealed and delivered in presence of R. H. Stanley and S. B. Marchall.</p> <p>State of California, City and County of Sacramento: ss.—On this twentieth day of June, in the year one thousand eight hundred and fifty, personally appeared before me, a notary public, in and for the said county, John A. Sutter, Jr., known to me to be the person described in and who executed the foregoing instrument, who acknowledged to me that he executed the same freely, and voluntarily, and for the purpose therein mentioned.</p> <p>S. B. Marchall, Notary Public.</p> <p>Filed for record June 20, 1850, at 8 o’clock, p. m., and duly recorded in book D of Deeds, pages 191, 192,193,194, and 195.</p> <p>Lewis T. Birdsall,</p> <p>Recorder of Sacramento County, Cal.</p> <p>By F. J. Aby, Deputy.</p> <p>This deed was recorded on the day of its execution, and the grantees went into possession of the land, portions of which they sold and conveyed in the name of and as the attorneys of the grantor.</p> <p>Twenty-five thousand dollars of the money mentioned in the deed was paid at or soon after the execution; and on the 18th day of March, 1851, Sutter, the grantor, signed receipts acknowledging the full paymen t of the remaining sums, which receipts were acknowledged before a notary, and on the 19th of March, recorded in Sacramento county, and on the 27th of June, 1851, the interest of Bruce, Graham, and Wetzlar in the lots described in the complaint, was conveyed to plaintiff.</p> <p>In July, 1855, Sutter, then a resident of Acapulco, in the Republic of Mexico, conveyed the property to defendant Mesick, who has placed his conveyance on record, and claims to be the owner of the lands in question.</p> <p>Plaintiff avers that the sums of money mentioned in the deed of June, 1850, have been fully paid, and that defendant Mesick, with notice of the fact, fraudulently procured the execution of the deed in July, 1855, which deed is a cloud upon plaintiff's title, and prevents the free enjoyment and disposition of his property. He therefore prays that it may be canceled, or that Mesick may be compelled to execute a conveyance in favor of plaintiff.</p> <p>The Court below entered a decree, declaring the deed from Sutter to Mesick fraudulent and void as to plaintiff, and perpetually enjoining defendants from asserting title, under such deed, to the property in controversy, and the defendant appealed.</p>

<p>Appeal from the District Court of the Twelfth Judicial District, County of San Francisco.</p> <p>This was an action of ejectment brought by the plaintiff against the defendant, to recover the possession of a tract of land.</p> <p>The facts necessary to explain the decision, are substantially these:</p> <p>George Harlan resided and died in Santa Clara county, in July, 1850, seized of the premises in controversy; and administration was duly granted to Henry C. Smith by the Probate Court of that county, in August, 1850.</p> <p>On the 29th of November, 1853, Smith was cited to appear and show cause why an attachment should not issue against him, for failing to file his account for final settlement.</p> <p>On the 31st of December, 1853, Smith filed a paper, which is in these words: “ Henry Smith, administrator of the estate of George Harlan, deceased, hereby resigns his appointment as such administrator, and asks that this, his resignation, be received, and he be discharged therefrom.”</p> <p>On the same day, the Court made an order reciting that Smith had filed his resignation; that, therefore, he turn over to the public administrator all the effects of said estate for purposes of general.administration; that he settle with the public administrator by the first day of the next term; and, that when such settlement should be fully made, Smith and his sureties be released from any further liability.</p> <p>From the 24th of January, 1854, up to the 23d of May, 1854, various orders were made by the Court, in reference to the report and final account of Smith, showing a large balance in his hands unaccounted for.</p> <p>On the 18th of May, 1855, Benjamin Aspinwall filed a petition praying the appointment of himself as administrator, stating that he was a creditor, and that Smith and his sureties were insolvent.</p> <p>The Court appointed Aspinwall administrator de bonis non of the estate on June 15th, 1855.</p> <p>Such proceedings were afterwards had, that the premises m controversy were sold by order of the Court, and the plaintiff became the purchaser.</p> <p>The defendant claims, and has possession of the property, under conveyances from the heirs of Harlan.</p> <p>This suit was brought to recover possession of the property. The defendant had judgment in the Court below, and the plaintiff appealed.</p> <p>This case was first decided at the July Term, 1857, and at the January Term, 1858, the second opinion vas delivered on re-argument. After the second opinion was rendered, a petition for a re-argument was again filed, and at the present term the petition was disposed of by the Court without any change in its former opinions.</p>

<p>Where L., a commission merchant, sued out an attachment against H., and had certain" goods seized as the property of H., but which were claimed by C., and L. gave the sheriff an indemnity-bond, which he accepted, and held the goods under the attachment, and subsequently sold the same to satisfy the attachment; 0. brought suit against the sheriff for the value of the goods, the sheriff having released L. from all actions arising out of the seizure and sale of the goods, and having also released him after the commencement of the suit: Held, that L. was a competent witness in the suit of 0. against the sheriff.</p> <p>Where a partnership exists between two persons in the purchase of goods, and they subsequently bring suit to recover their value from a trespasser who has seized them : Held, that one partner is competent to execute a release in the name of himself and co-partner.</p> <p>This Court will not disturb the instructions of the District Court to the jury, on the ground that there was no evidence upon which to base them, when there was some evidence, although it may have been slight.</p>

This action was commenced on the fourth of April, 1855, by the appellant, against the respondents, on three promissory notes made and… Held: that if the plaintiff insisted upon introducing the evidence of the said Richard H. Sinton to lay the foundation for the introduction, before the jury, of secondary evidence of the contents of the notes sued on, it would require the plaintiff to produce the said Richard H. Sinton, to testify orally to the Court touching the facts and…

The complaint is in the ordinary form of complaints in the action of ejectment. The following is the answer of the defendant, J. P. Edinger.

<p>Where a defect of parties is apparent upon the face of the complaint, the objection must be taken by demurrer, or the same will be waived.</p> <p>The fact that both husband and wife were anxious to sell their homestead, and the husband made repeated efforts for that purpose, but failed because a satisfactory price could not be obtained, does not show an intention to abandon the homestead as such.</p> <p>Where property has been dedicated as a homestead, the husband and wife become joint owners thereof, with the right of survivorship, and their declarations of intention to sell and remove from the premises will not constitute an abandonment.</p> <p>¡Nor will the declarations of the husband bind the wife. The act of the wife in going with her husband to reside u$on another place, will in no way affect her right.</p> <p>The only way in which the right of the wife to the homestead can be extinguished, is by a joint deed executed by both husband and wife, and properly acknowledged.</p> <p>The right of homestead having once attached, and not having been alienated, a deed from the sheriff, under an execution against the husband, would be a cloud upon the title, and prevent the free alienation of the property by the husband and wife.</p>

<p>Appeal from the District Court of tho Tenth Judicial District, County of Yuba.</p> <p>This was an action to recover damages alleged to have been sustained by reason of tho wrongful seizure and sale of property by the defendant Freer, as sheriff, under an attachment, and subsequently an execution, in favor of the defendant Van Ñorden, and against George W. Buckley.</p> <p>At tlie time the attachment was levied, the property was in the possession of the plaintiff, who executed a receipt to the sheriff for the delivery of the property, as follows :</p> <p>“ Whereas, Peter Freer, sheriff of Butte county, State of California, has attached, seized, and taken into Ms possession, at^the suit of Robert Van Norden v. G. W. Buckley et al., in the District Court of the Ninth Judicial District, and county and State aforesaid, the following described property, the same being taken as the property of the said G. W. Buckley, at the time of the said seizure and attachment, and at the time of the delivery of said property by the said sheriff to the undersigned, viz.: one dark bay horse, branded on the near shoulder with the letter ‘R;’ also, one bay horse, branded ‘T B B/ on the near thigh; also, one bay horse, with the letters ‘WE,’ branded on the near shoulder, turned upside down; also, one sorrel marc, branded with ‘ C R/ on the near shoulder; also, two sots of harness (draught;) also, one heavy draught wagon, with iron axle-tree. The said property is received by the undersigned from said sheriff, at the risk of the undersigned, and to be delivered on demand, or per order, to the said sheriff, in as good condition and care as at present; and in default thereof, to be responsible for the same. And further, I do hereby acknowledge that said property is in fine condition and trim.</p> <p>“ Given tinder my hand and seal, this twentieth day of May, a. d. 1854.</p> <p>“ Signed, Benj. B. Eleven.”</p> <p>Judgment was afterwards had by Van Norden against Buckley, execution issued, the property delivered by Blcven to the sheriff, and by the latter sold under the execution. Eleven then brought his action against the sheriff and Van Norden, claiming the property as his own, under a purchase from Buckley before the levy of the attachment. The case was tried before the Court, sitting as a jury. The defendants had judgment. Plaintiff moved for a now trial, which was denied by the Court, and plaintiff appealed.</p>

<p>Appeal from the District Court of the Eleventh Judicial District, County of El Dorado.</p> <p>This was an action of replevin, to recover certain personal property. The testimony was taken in the case by a referee, and reported to the Court; but when the case was called on the calendar for trial, the defendant failed to appear, and the Court tried the case without the intervention of a jury. The value of the property was assessed at $800. The plaintiff had judgment, and the defendant appealed.</p>

In the month of November, 1853, the defendant Townsend, and one Keller commenced the construction of a dam and ditch, for the purpose of diverting the waters of Clear Creek, to be nsed for mining purposes. After making some little progress in the work, they, on the 16th of December, 1853, sold one undivided-third interest to plaintiff, by a sealed instrument, which was never acknowledged or recorded.

This was an action for damages by the Mokelumne Hill Canal and Mining Company against George E. Woodbury, for diverting, polluting, and muddying the waters of the South Fork of the Mokelumne River, above the dam and flume of plaintiffs. Plaintiffs are an incorporated company, and claim the waters that flow down said river, by appropriation, and the construction of a dam and ditch in November, 1852, and prior to that of defendant.

<p>Appeal from the District Court of the Fifth Judicial District, County of Calaveras.</p>

<p>Appeal from the District Court of the Fifth Judicial District, County of Calaveras.</p> <p>The facts appear in the opinion of the Court.</p>

<p>Appeal from the District Court of the Tenth Judicial District, County of Yuba.</p> <p>The facts necessary to understand the points decided, appear in the opinion of the Court.</p>

<p>A complaint which alleges that the plaintiffs were, on a certain day, the owners and proprietors of a certain valuable water-ditch for the purpose of conveying water, and at which time and place the defendants were also the owners of a certain other water-ditch for the purpose aforesaid, and that afterwards, on the same day ánd year, at etc., aforesaid, the said defendants’ ditch was so badly and negligently constructed and managed, and the water therein so negligently and carelessly attended to, that said ditch broke and gave way, and the water therein flowed over and upon the ditch of plaintiffs, greatly damaging and injuring the same, and carrying down therein and thereon great quantities of rock, stone, earth, and rubbish, and breaking said plaintiffs’ ditch, and depriving them of the use and profit of the water flowing therein, to said plaintiffs’ damage of $3000, and thereof they bring suit, is sufficient.</p> <p>A person who has been a stockholder in an incorporated company, but ceased to be such holder before suit was brought, is a competent witness in an action in the name of such company.</p>

<p>Appeal from the District Court of the Eleventh Judicial District, County of Placer.</p> <p>[Note.—The record in this case is voluminous, and to give the facts, it would be necessary to state the most of the evi' dence, which would occupy a great space in this volume, without any benefit to the profession.—Reporter.]</p>

On the twentieth day of December, a. d. 1856, the plaintiff executed and delivered to the defendant, Lowe, the following conveyance: “ Know all men by these presents, that I, J. H. Hiekox, of Downieville, Sierra county, State of California, of the first part, for and in consideration of the sum of four thousand five hundred dollars, ($4500,) lawful money of the United States, to me in hand paid by the party of the second part hereinafter named, the receipt whereof is hereby…

Application to the Court below for a writ of mandamus. It appears that Fremont commenced an action against a corporation called the Merced Mining Company, and Smyth Clark and John Yandewater, for a forcibly entry upon “the upper drift of a shaft of a certain mine, called the Josephine Vein/' in Mariposa county. The jury rendered a verdict of guilty as to Clark and Vandewater, and not guilt}as to the corporation.

<p>"Where counsel, in a cause pending in the Supreme Court, stipulate to submit the case to the Court on two grounds only, it is a clear waiver of all other assignments of error, and they will not he allowed to go behind such stipulation, and insist upon points other than those mentioned in the stipulation.</p> <p>The case of Gaboon et al. v. Levy et al. (4 Cal. R., 243, and 6 Cal.. R., 295,) reviewed and construed.</p>

This action was brought to recover damages alleged to have been sustained by reason of the diversion of the waters of Marius Ravine, in Todd’s Valley, in the county of Placer.

This was an action for a divorce, on the ground of adultery on the part of the defendant, and for a division of the common property. The Court decreed the divorce, and referred the question of the amount and division of the property to A. C. Whitcomb, referee.

<p>Appeal from the District Court of the Twelfth Judicial District, County of San Francisco.</p> <p>A statement of the facts, sufficient to understand the points decided, appears in the opinion of the Court.</p>

This was an action to recover possession of a tract of land, and for damages. The complaint, which was verified, alleges that on the eighth day of January, 1856, Gerratus Revere took up and located, under the provisions of the Swamp and Overflowed Land Act, two quarter sections of land. The complaint alleges in detail the performance, on the part of Revere, of the requirements of the act.

This was an action to recover damages for the diversion of water from, and injury to, the flume and ditch of plaintiffs, and for an injunction. The complaint in this case occupies a space of fourteen closely-written pages of the record, and abounds in verbosity and repetition.

This was an action on the official bond of Joseph W. Finlay, as notary public, for damages resulting from a neglect to state in his certificate of acknowledgment to a mortgage, that the mortgagor was personally known to him, etc., or was proven to be the same person by a competent witness. The case was tried before a jury, who, under the directions of the Court, returned a special verdict.

This was a suit for divorce from the bonds of matrimony, brought by the wife against her husband. The complaint alleges that the plaintiff was married to the defendant on the twenty-fourth of May, 1854, at San Francisco, and as grounds of divorce, charges : 1. That after the marriage of the parties, the defendant became, and has been for the space of two years last past, and still is, habitually intemperate, idle, and profligate; 2.

Action of replevin. In October, 1855, the defendant, Pfeiffer, executed to the plaintiffs a mortgage upon certain premises, situated in the city of San Francisco, to secure a loan made on that day of ten thousand dollars.

On the 11th of ¡November, A. d. 1854, the defendants Thomas Brady, and Josephine A. Brady, his wife, made and delivered to the plaintiff the following promissory note: “Twelve months after date, without grace, for value received, we jointly and severally promise to pay to ¡Nicholas Luning, or order, nine thousand dollars, with interest at two and one-half per cent, per month, payable monthly, in advance, till paid; and if default be made in payment of interest on any of the…

This was an action of ejectment to recover certain mining-claims. The defendants pleaded title. To show the interest of two of the plaintiffs, Smith and Conner, in the property in controversy, certain bills of sale to them were introduced, and to their introduction the defendants objected, without stating the grounds of their objection; and the objection was overruled, and the defendants excepted..

<p>Appeal from the District Court of the Twelfth Judicial District County of San Francisco.</p> <p>This was a suit brought to reach the assets of the defendant, Samuel Deitz, alleged to be in the hands of the defendants, Josialx Stanford, A. P. Stanford, and Charles Stanford, who composed the firm of Stanford Brothers. The proofs showed, and the Court found, the following facts, viz. : That on the sixth day of June, 1857, the plaintiff recovered a judgment in the District Court against the defendant Deitz, for $8602 50, which judgment remains in force and unpaid; and that on the same day an execution was issued on said judgment, directed to the sheriff of San Francisco county, which execution, on the eleventh day of June, 1857, was returned by said sheriff nulla bona ; that whilst said execution was in the hands of the sheriff, he summoned the defendants Stanford Brothers, as garnishees, by virtue thereof, and attached in their hands all property, debts, and credits, belonging to said Deitz ; that on the seventeenth day of April, 1857, the defendant Deitz was justly indebted to the defendants Stanford Brothers, in the sum of $18,996 71, for money before then loaned, and goods, wares, and merchandise sold and delivered, by said Stanford Brothers to said Deitz; and that the said Stanford Brothers were also then bound as accommodation endorsers for said Deitz on sundry promissory notes of the said Deitz, then outstanding in the hands of sundry holders thereof, and which amounted in the aggregate to $27,238 23 ; that on the said seventeenth day of Ajjril, the said Stanford Brothers demanded of said Deitz security for his said indebtedness to them, and an indemnity against loss on account of their said endorsements, and threatened to sue out an attachment against said Deitz unless such security was given, whereupon said Deitz requested them to defer such proceedings until after the arrival of the Sacramento boat that night, hoping to receive remittances, by said boat, which would enable him to continue his business; that said Stanford Brothers accordingly waited until after the arrival of said boat, and the said Deitz having received no remittances, agreed to execute to them a mortgage upon all his stock in trade, of every kind, both in San Francisco and at Sacramento, to secure the said indebtedness, and to indemnify them against loss on account of their said endorsements, which mortgage was to include all debts of every kind due and owing to said Deitz; that on the following morning, to wit, on the eighteenth day of April, 1857, about seven or eight o’clock, a. m., the said mortgage was made, executed, and delivered, for the security of the debts and liabilities aforesaid; and that said mortgage was made bona fide and with an honest intent to secure the said debts and liabilities aforesaid, and was without any fraud or covin ; and that immediately upon the execution and delivery of said mortgage, the possession of all the property, effects, and choses in action, specified and embraced in said mortgage, were delivered by said Deitz to said Stanford Brothers, who have ever since continued in the actual possession thereof; that at the time of the execution and delivery of said mortgage, the said Deitz was insolvent, and had no property, estate, or effects of any kind, except such as were embraced in the said mortgage; and that said mortgage was duly filed for record in the recorder’s office for the city and county of San Francisco, on the said eighteenth day of April, at a quarter of ten o’clock, A. M.; that said mortgage cofitains a provision to the effect that said Stanford Brothers were thereby authorized to collect, demand, sue for, recover, and receive, all the debts, dues, and demands of whatsoever nature, due and owing to said Deitz, and to apply the proceeds thereof towards the satisfaction of said mortgage, debts, and demands; and were also thereby authorized to sell and convert into cash the property and effects embraced in said mortgage, for the best prices to be obtained therefor, with reasonable diligence; the proceeds whereof should be applied, as far as necessary for that purpose, towards the satisfaction and extinguishment of the debts, demands, and liabilities of the said Deitz to the said Stanford Brothers, as specified in said mortgage, including the notes on which they were endorsers as aforesaid; that the said Stanford Brothers, since the execution and delivery of said mortgage, have paid, satisfied, and taken up all the promissory notes of the said Deitz, on which they were accomodation endorsers as aforesaid, except one of said notes, which is yet outstanding, and on which there remains unpaid a balance of about $1200; that immodiafbly after taking possession of said mortgaged property, Stanford Brothers proceeded to make sales thereof at private sale for the current market prices, keeping an accurate account of the proceeds of such sales, and crediting the same on said mortgage, debts, and liabilities; and that after deducting all such proceeds of sale, and all collections made from the choses in action embraced in said mortgage, there remains due and unpaid from said Dietz to said Stanford Brothers, a sum exceeding $5000, of the said mortgage debt; that there were annexed to and forming a part of said mortgage, schedules exhibiting accurately and truly the property, effects, and choses in action embraced in said mortgage, and the notes on which said Stanford Brothers were accommodation endorsers as aforesaid, with the respective amounts and times of maturity of the said several notes, and that the amount due and owing from said Deitz to said Stanford Brothers, was truly and Correctly stated and set forth in said mortgage.</p> <p>Upon the above facts, the Court found, as a conclusion of law, that the said mortgage was fair and bona fide, and without fraud or covin in law or in fact, and that the same was valid in law, and operative to secure Stanford Brothers for the debts and liabilities specified, and ordered judgment for the defendants, which was duly entered. From the judgment, the plaintiff appealed.</p>

The complaint in this case alleges that the defendant Alexander is the county treasurer of Los Angeles county; that the defendant Coleman was deputy assessor of said county, and on the twenty-ninth of October, 1856, presented to the board of supervisors of said county, for allowance, an account for one hundred and sixty-five days’ service as assessor, at the rate of ten dollars per day, amounting to the sum of $1650; that the account was audited by the board, and allowed,…

This was an action on a joint and several promissory note, executed by George Rowe and the respondent, Lloyd Magruder, and delivered to the appellant. Suit was brought against both Rowe and Magruder. The defendants filed separate answers.

The respondent filed this bill, averring his possession of and title to certain real estate in the city of Stockton, which he purchased at sheriff’s sale, under an execution against Adams & Co., and also claimed it under a tax sale.

<p>The wife is a proper party defendant in a suit to foreclose a mortgage executed upon premises claimed as a homestead. If not made such a party, she may intervene, or, by permission of the Court, be allowed to file a separate answer, the plaintiff having the liberty to amend his complaint if any matters are set up in the answer which he might wish to anticipate by further allegations.</p> <p>The residence of the husband, with his family, upon the premises, impresses upon them the character of homestead.</p> <p>The Homestead Act operates upon property acquired previous to its passage, as well as upon that subsequently acquired.</p> <p>The voluntary removal of the husband, with his family, is not, of itself, evidence of abandonment of the place as a homestead; much less so a removal under apprehensions for the safety of his family.</p> <p>Where a mortgage upon a homestead is executed by the husband, without the wife joining in the execution, it has no validity as a lien upon the premises to the exemption of $5000.</p> <p>Where commissioners were appointed by the Court to select and set apart as the homestead a portion of the tract of land mortgaged, such portion to be of the value of $5000, in form as compact as possible, including the place where the dwelling-house is situated, and to report their action to the Court—and the commissioners, acting under oath, made the selection, and their report was approved: Held, that the proceeding was proper.</p>

<p>By an assignment of errors, as the term is used in this Court, is meant a specification of the errors upon which the appellant will rely, with such fullness as to give aid to the Court in the examination of the transcript.</p>

<p>Appeal from the District Court of the Third Judicial District, County of Alameda.</p> <p>The facts of the case appear in the opinion of the Court.</p>

<p>Where there are amendments to a proposed statement on appeal, the draft prepared and the amendments allowed should be incorporated into one document j and, in their separate form, do not constitute such a statement as will be noticed on appeal.</p>

<p>Where the evidence is conflicting, the granting or refusing ef a new trial rests in the discretion of the Court below, and this Court will not interfere, whether the new trial , be granted or refused.</p>

<p>To justify an interference with the verdict of the jury in a criminal action, there must be an absence of evidence against the prisoner, or a decided preponderance of evidence in his favor.</p>

The premises were leased by the plaintiffs to the defendant John H. Liddell, at $40 per month—$20 payable to plaintiff Treat, and $20 payable to Edward Carpenter, since deceased. The action was originally commenced in a Justice’s Court, where defendants had judgment.

<p>Appeal from the District Court of the First Judicial District, County of San Bernardino.</p> <p>This is an action to recover the possession of certain goods, wares, and merchandise, alleged in the complaint to be the property of the plaintiff, and to have been wrongfully seized and taken from his possession by the defendant, and wrongfully and unlawfully detained from the plaintiff. To the complaint, the defendant filed a general denial.</p> <p>On the trial, the defendant introduced evidence to prove that the goods, wares, and merchandise, were the property of one Lewis Glazer, a brother of the plaintiff, and that they had been transferred by said Lewis Glazer to the plaintiff, with the intent to defraud the creditors of said Lewis Glazer, and that the plaintiff took the goods with full knowledge of such intent, and that the defendant seized said goods as sheriff of San Bernardino county, upon an attachment issued against the property of said Lewis Glazer. To the introduction of this evidence the plaintiff objected, on the ground that the facts had not been pleaded, and could not be proved under the general denial. The Court overruled the objection, and the plaintiff excepted. The evidence was then introduced, and the defendant had judgment, from which plaintiff appealed.</p>

This was an action brought on a judgment recovered in the State of Ohio in 1853. The defendant in the Court below plead the Statute of Limitations. The Court sustained the plea, and gave judgment for the defendant, from which plaintiffs appealed to this Court.

<p>In an indictment for murder, it is not necessary that the indictment should specifically aver that the killing “was willful, deliberate, and premeditated.” It is sufficient, to charge the crime in the words of the statute.</p> <p>The rule is well settled, that the reputation of the deceased can not be given in evidence, unless, at the least, the circumstances of the case raise a doubt in regard to the question whether the prisoner acted in self-defence. It is no excuse for a murder that the person murdered was a bad man; but it has been held that the reputation of the deceased may sometimes be given in proof to show that the defendant was justified in believing himself in danger, when the circumstances of the contest are equivocal. But the record must show this state of case.</p>

<p>Appeal from the District Court of the Thirteenth Judicial District, County of Mariposa.</p> <p>The facts sufficiently appear in the opinion of the Court.</p>

<p>On the trial of a. cause, where defendant calls the plaintiff aa a witness, after his examination in chief he has a right to testify on his own behalf, generally, as to the matters in issue.</p>

The indictment in this case is as follows: “The People of the State of California v. William Judd, Eli Judd, and-Walker.—State of California: In the Court of Sessions of the County of Pel Norte—Special Term, A. P. 1858.— The grand jury of the county of Del Eorte, by this indictment, accuse William Judd, Eli Judd, and-Walker, the defendants, of the crime of murder, committed as follows: “The said William Judd, Eli Judd, and-Walker, on the second day of September, a. d. 1857,…

<p>The twenty-fifth section of Article IV of the Constitution, which requires that every law enacted by the Legislature shall embrace but one object, and that shall be expressed in the title, is merely directory; it does not defeat laws passed in violation of it.</p> <p>A statute may be repealed by implication; and where a subsequent act is repugnant to a prior one, the last operates, without any repealing clause, as a repeal of the first; and where two acts, passed at different times, are not in terms repugnant, yet if it is clearly evident that the last was intended as a revision or substitute of the first, it will repeal the first to the extent in which its provisions are revised or substituted.</p>

Thomas Elrod and Isaac Green filed their bill in the Tenth Judicial District against Charles Covillaud, J. II. Ramirez, William H. Sampson, G. ÍT. Swezy, E. L. Aud, guardian of C. B. Sampson, a lunatic; S. C. Tompkins, executor of the estate of R. B. Buchanan; Minnie 0. Buchanan, and George C. Briggs.

<p>Appeal from the District Court of the First Judicial District, County of Los Angeles.</p> <p>Application to the Court below for a writ of mandamus.</p> <p>The plaintiffs recovered, in the Court below, a judgment against the defendant, for the sum of $5,243 22 and costs of suit, and afterwards applied to the clerk of the Court in which the judgment was rendered, to issue execution thereon. The clerk declined to issue the execution, on the ground that an appeal had been taken therefrom to the Supreme Court. Plaintiff then applied to the District Court for a writ of mandamus, to compel the clerk to issue execution on said judgment. The Court ordered the writ to issue, from which order the defendant appealed to this Court.</p>

<p>Appeal from the District Court of the Fifteenth Judicial District, County of Butte.</p> <p>The defendant, John Coleman, was indicted, tried, and convicted of the crime of manslaughter. The body of the indictment is as follows:"</p> <p>“John Coleman is accused by the grand jury of the county of Butte, by this indictment, of the crime of manslaughter, committed as follows:</p> <p>“ The said John Coleman, on or about the second day of June, in the year of our Lord one thousand eight hundred and fifty-seven, at a place known and recognized as the town of Oroville, in the county of Butte aforesaid, and before the finding of this indictment, did unlawfully, willfully, and feloniously, s,trike, kick, stamp, beat, and bruise, one James Chase, to wit, in, upon, and about the breast, body, head, neck, and arms, of the said James Chase, and by said striking, kicking, stamping, beating, and bruising, of the said James Chase, the said John Coleman did, then and there, unlawfully, willfully, and feloniously, kill the said James Chase, against the form of the statutes, and against the peace of the people of this State, the government and dignity of the same.”</p> <p>Defendant’s counsel moved for a new trial, and in arrest of judgment, both of which motions were overruled, and defendant excepted. It does not appear that either of the motions were based upon the ground of defect in the body of the indictment. Defendant appealed.</p> <p>¡No briefs in the record.</p>

<p>Motion to set aside proceedings subsequent to judgment recovered in the Court below.</p> <p>In September, 1855, the plaintiff recovered judgment in the District Court of the Eighth Judicial District, County of Siskiyou, against the defendants, for §964, and in October following, issued execution thereon, under which a sale was made of a building in Yreka, to Tomlinson and Wood, for $2300. In January, 1857, this Court, on appeal, reversed the judgment, and upon the filing of the remittitur in the Court below, judgment was there rendered in favor of the defendants, who now move to set aside all the proeeedings in the case subsequent to the plaintiff’s judgment.</p>

<p>Appeal from the Court of Sessions of the County of Napa.</p>

<p>Appeal from the District Court of the First Judicial District, County of Los Angeles.</p> <p>The complaint in this case is for goods sold and delivered. It contains several counts, all of which are alike in form. The following is one of the counts: The plaintiffs “ complain of Lewis G-lazer, resident of the said county of Los Angeles, defendant, and for cause say, that heretofore, to wit, at the county of San Francisco, State aforesaid, on the 30th day of May, 1857, the defendant became and was indebted to the plaintiffs in the sum of seventeen hundred and twenty-three 29-100 dollars, ($1723 29,) for goods, wares, and merchandise, before that time sold and delivered by plaintiffs to defendant, and for money before that time paid, laid out, and expended by plaintiffs, to and for the use and benefit of defendant, all at defendant’s special instance and request, which amount the defendant, in consideration of said indebtedness, thereafter, to wit, at the place and on the day aforesaid, undertook and promised to pay to plaintiffs, when he should he thereunto afterwards requestedand following the several counts, is this allegation of breach, “ yet the defendant, although often requested, hath hitherto utterly neglected and refused to pay said amounts, or either of them, or any part of either of them, to plaintiffs.” The other facts of the case sufficiently appear in the opinion of the Court.</p>

<p>Appeal from the District Court of the Thirteenth Judicial District, County of Mariposa.</p> <p>The facts of the case sufficiently appear in the opinion of the Court.</p>

<p>Appeal from the District Court of the Seventh Judicial District, County of Solano.</p> <p>The facts sufficiently appear in the opinion of the Court.</p>

This action is upon a contract for beef furnished the defendant. The complaint alleges that the beef was furnished to the defendant, but does not allege that it was furnished “ at his request.” The plaintiff recovered judgment in the Justice’s Court, and the defendant appealed to the County Court, where he moved to dismiss the case, on the ground that the complaint does not set forth any cause of action. The plaintiff thereupon moved for leave to amend his complaint.

<p>Where, in an action against an incorporated company, the return of the sheriff showed that he had served the summons in the action “ upon James Street, one of the proprietors of the companyMeld, that it was not sufficient evidence of service to give the Court jurisdiction, it not appearing that Street was president, or head of the corporation, or secretary, cashier, or managing agent thereof.</p>

<p>Appeal from the District Court of the Seventh Judicial District, County of Marin.'</p> <p>The facts of the case sufficiently appear in the opinion of the Court.</p>

<p>The sixth ground of demíirrer, as specified in section forty of the Practice Act, “that the complaint does not state facts sufficient to constitute" a cause of action,” is confined to those cases in which no cause of action at all, as against the defendants, arises from the complaint.</p> <p>An injunction-bond, though given to all the obligees by name, and using no words directly expressing a several obligation, yet necessarily creates a several liability—the design of it being to secure each and all of the obligees from damage or injury. Whatever the rule maybe under the old system, under our system the right of action is in the' party sustaining the injury; for on a recovery, the other party, if entitled to receive the money at all, and if judgment were had in the name of both, would hold it by right of, and as trustee for, the other; and our Practice Act, for convenience, has given the right to sue, to the party beneficially entitled to the fruits of the action. A demurrer to a complaint, on the ground “’that the complaint does not state facts sufficient to constitute a cause of action,” and which then specifies that the complaint shows no joint cause of action in the plaintiff, and that it prays for a judgment in favor of three plaintiffs for an injury done to one, is a good demurrer for misjoinder of parties.</p> <p>Where the defendants demurred to a complaint for a misjoinder of parties plaintiff, and the Court overruled the demurrer, and the plaintiffs then moved to amend the complaint by striking out the names of the plaintiffs thus alleged to be improperly joined, and the defendants resisted successfully such motion: Held, that such action on the part of defendants was a waiver of the objection of misjoinder raised by their demurrer.</p> <p>2io particular form is necessary for a writ of injunction ; the substantial thing is an authentic notification to the defendants, of the mandate of the Judge, which they must then, at their peril, obey.</p>

<p>Appeal from the District Court of the Twelfth Judicial District, County of San Francisco.</p> <p>This is'an action of ejectment to recover certain premises situated in the city of San Francisco. The facts of the case, as disclosed by the record, are these: In 1849, the plaintiff, Samuel F. Dupont, was the owner in fee of the premises, and being about to leave California, gave a power of attorney, on the 22d day of May of that year, to R. M. Price, empowering him “ to sell and convey” the property. On the 22d day of December, 1849, Price executed a deed of the property to his clerk, A. M. Tan Nostrand, which is in the usual form of conveyances, purporting to he in consideration of the sum of $8000, paid at or before its sealing and delivery, and soon after removed from the State. There was in fact no sale made to Tan Nostrand, nor was any consideration paid, or agreed to be paid, by him. Subsequently, on the 30th day of August, 1850, Tan Nostrand endorsed on the hack of the deed, from Price to him, the following instrument:</p> <p>“ Know all men by these presents, that I, the within-named Avert M. Tan Nostrand, of the city of San Francisco, State of California, in consideration of $8000, paid to me by Rodman M. Price, of the city of Mew York, have assigned to the said Rod-man M. Price, and his assigns, all my interest in the within instrument, and every clause, article, or thing, therein contained; and I do hereby constitute the said Rodman M. Price my attorney, in my name, but to his use, to take all legal- measures which may be proper for the complete recovery and enjoyment of the assigned premises, with the power of substitution.</p> <p>“ Witness my hand and seal this 30th day of August, 1850.</p> <p>“A. M. Van Sostrand.”</p> <p>This instrument was executed during the absence of Price from the State, and without the knowledge of any person acting for him, and without any consideration, and was never delivered.</p> <p>In December, 1852, Price, who was at the time residing out of the State, executed a power of attorney to one Edmund Scott, authorizing him to sell any real estate belonging to him (Price) in the State of California. Under this power, Scott conveyed by deed of bargain and sale, without covenants, a large amount of property to Payne & Dewey, of San Francisco, belonging to Price, including in the deed the premises in controversy; Payne & Dewey subsequently conveyed to the defendants, with special covenants of warranty against the claims of the plaintiff, and all persons claiming under him.</p> <p>Price never gave any information to the plaintiff of his transfer of the property to Van Uostrand, but sent to the plaintiff $4000 on account of his property, but not as the proceeds of the sales of his lots, or of any of them. Whether it was for rents or otherwise does not appear. Price states in his testimony that he transferred the property to Van ISTostrand, in order that he (Van Uostrand) might “ authoritatively control it, and keep the squatters off,” giving him the privilege of retaining it for $8000; that the property really belonged to the plaintiff then, and still does, so far as he (Price) knows; and that by his power of attorney to Scott he did not intend to authorize a sale of this property.</p> <p>Van FTostrand says in his testimony that he did not make any payment to Price on account of the conveyance to him, for the reason that Price, as Dupont’s attorney, conveyed the property in question to him, in trust for Mrs. Price, as he understood, but certainly for some member of his (Price’s) family.</p> <p>The defendant had judgment, and the plaintiff moved for a new trial, which was overruled. From the judgment, and the order refusing a new trial, the plaintiff appealed.</p>

<p>Appeal from the District Court of the Fifth Judicial District, County of Calaveras.</p> <p>The facts of the case appear in the opinion of the Court.</p>

<p>On an appeal from an order made on affidavits filed, no statement is necessary. The affidavits must be annexed to the order, in place of a statement, and the certificate of the clerk should specify the affidavits used, and to,enable him to do so he should, at the time, mark them as filed on the motion.</p>

This was an action for slanderous words spoken by the defendant, of and concerning the plaintiff, and in his presence. On the trial, James Brownley, a witness for the defendant, after stating tbat plaintiff and defendant were quarreling in front of a saloon, in the town of Santa Clara, and detailing the slanderous words used by defendant, testified as follows : “ The plaintiff called Gardner a Christ-killer.

<p>To a complaint sworn to, on a promissory note payable in a sum certain, “ in monthly pro rata instalments, out of the first net proceeds from sale of water,” and an allegation that defendants turned oif the water from the ditch, the proceeds of the sales of which water were to be applied to the payment of the note, and thereby diminished the quantity, etc.—the defendant answered by admitting the making of the note, but denied, " to the best of his knowledge, information, and belief, all and singular the other allegations in said complaintHeld, that such answer did not amount to a specific denial of the allegations of the complaint.</p> <p>The statute makes such an instrument prima facie evidence of indebtedness, though no consideration be expressed therein.</p>

This action was commenced on the first day of April, 1857, in the Fourth District Court, on three several promissory notes, made by defendants, in the city of New York, and dated, respectively, January 27, 1853, and May 20, 1853. The notes are payable in six, ten, and eight months, after their respective dates.

<p>Appeal from the District Court of the Fifth Judicial District, County of Amador.</p> <p>George W. Green brought suit to recover of the Jackson Water Company, a corporation doing business in the county of Amador, the sum of 11952 91-100, for labor, as civil engineer, performed in the construction of a certain water-race, ditch, or canal, in the county of Amador, and to enforce a laborer’s lien against the ditch for that amount. The labor was performed between the 11th day of July, 1855, and the 10th day of March, 1856. The lien was filed in the county recorder’s office of Amador county, on the 6th day of March, 1856. On the 30th day of October, 1856, plaintiff filed his complaint in the clerk's office of the District Court of that county, against the corporation, to enforce the lien, but no summons was issued thereon. On the 26th day of January, 1857, plaintiff filed an amended complaint, and summons was duly issued thereon and returned “served.” The defendants making no appearance in said cause, a default was taken before the clerk. At the next term of the Court, (February Term, 1857,) J. B. Bayerque, by leave of the Court, intervened in the action—averring, in his petition of intervention, that he is the owner and in possession of the property upon which the plaintiff claims a lien, and that plaintiff has no legal lien on the same. He further avers that plaintiff did not commence this suit, to enforce the lien, within six months after the filing his lien in the office of the county recorder.</p> <p>After the close of the testimony of plaintiff, the intervenor’s counsel moved for a nonsuit, on the ground that this suit was not commenced within six months after the filing of the lien, which motion was overruled, and intervenor excepted. Judgment was given for the plaintiff, establishing the lien against the property. Intervenor moved for a new trial, which was denied, and he appealed to this Court.</p>

<p>Appeal from the District Court of the Fifth Judicial District, County of Calaveras.</p> <p>The facts appear in the opinion of the Court. Defendants had judgment in the Court below, and plaintiff appealed.</p>

<p>In an action of ejectment to recover possoasion of a large tract of land, where the defendant failed to appear, and the case was submitted to the Court, who found that plaintiff had title to the whole tract, and that the defendant was in possession of » part, sixty or seventy aeres of the tract, without right: Held, that it was proper for the Court to enter judgment for the plaintiff for the possession of the whole tract.</p>

This was an action brought by appellants against defendants, for the recovery of specific personal property, which had been taken by Broder, as sheriff, in execution, at the suit of the defendants Mahoneys, against Freedman and Frank; Waldman, a third party, claimed the property, and brought this action, by way of replevin, to recover the same from the sheriff, Broder, who, in his answer, justified the taking under the execution.

Appeal fro el the District Court of the Third judicial District, County of Santa Clara. This was a bill in equity, filéd by the plaintiff, for the purpose of obtaining a decree of the Court for the sale of certain premises, inortgaged to the plaintiff by one Thomas D. Vermuíe, who has since died.

<p>Where B. had a running account with L. from 1838 'to 1849, at which time L. died intestate, and no administration was had on his estate until 1857; and B., within one year after the granting of letters of administration, commenced his suit on said account against the estate: Held, that the suit was commenced in time.</p> <p>The fact that a long period intervened between the death and the administration taken on the estate, can make no difference.</p>

This action was instituted by ET. S. McDowell, J. W. Collier, and C. J. Collier, against E. 0. Jacobs, Aug. Walbaum, Samuel Masking, L. E. Weeks, George A. Emery, M. J. Sly, Wm. Bachelder, J. J. Emery, Elias Dearborn, and Daniel Carsner, on two several promissory notes, secured by mortgage; the notes and mortgage are set out in full in the complaint. The first note is as follows: “ $2500.—For value received of ET.

<p>Appeal from the District Court of the Third Judicial District, County of Santa Cruz.</p> <p>This suit was brought against the sureties to an undertaking to obtain an injunction. The defendants demurred to' the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The Court below sustained the demurrer, and the plaintiff appealed. The ground upon which the demurrer was sustained appears in the opinion of the Court.</p>

<p>Appeal from the District Court of the Fifth Judicial District, County of Amador.</p> <p>This was an action to recover damages for the diversion of water by the defendants from the plaintiffs’ ditch, and for an injunction to restrain defendants from a continuation thereof. Plaintiffs were incorporated under the name of the “ Sutter Creek Water Company,” and claimed the waters of the north branch of Sutter Creek, in the county of Amador.</p> <p>The defendants owned a mining-claim, and claimed that the water used by them for the working of their claim, leaked through the dam, or reservoir, of the Volcano Water Company, and was used and appropriated by them in pursuance of an agreement with the “ Volcano Water Company.”</p> <p>The case was tried before a jury. On the trial, the plaintiffs introduced and read in evidence the judgment in the case of the Sutter Creek Water Company v. The Volcano Water Company, wherein the right to the use of the water had been adjudged between the plaintiffs and the Volcano Water Company, under whom the defendants claimed. Plaintiffs then offered to prove by parol that the water in controversy in that suit was, and is, the same water now in dispute between the parties to this_ suit, which evidence the defendants objected to, and the Court sustained the objection and refused to allow the evidence to to go the jury. Plaintiffs excepted. The jury returned a verdict for the defendants, plaintiffs moved for a new trial, which was denied, and they appealed to this Court.</p>

<p>Appeal from the District Court of the Fifth Judicial District, County of Tuolumne.</p> <p>This was an action to recover of the defendants one thousand dollars damages for the taking and converting to his use forty-two barrels of vinegar, alleged to be the property of the plaintiff. The cause was tried before a jury, who returned a verdict for the plaintiff, and assessed the damages at $510. Judgment was entered thereon. Defendant moved for a new trial, which was denied, and he appealed to this Court. The facts upon which the decision of this Court turned, appear in the opinion of the Court.</p>

<p>Where two mules are claimed as exempt from forced sale on execution, it must be shown that the party claiming the mules habitually earned his living by the use of the animals in question, or that he is one of the persons mentioned in the statute.</p>

<p>F. sold and delivered to V. P. certain goods, the possession of which V, P. retained for two or three days, when he leased the premises in which the goods were, and delivered the goods to F., his vendor, and one M., who after carrying on the business in connection with F. for a few days, retired, leaving F. in the exclusive possession of the property, which possession continued until the goods were seized by L., as constable, under an execution against F.: Reld, that the sale of the goods to V. P. was void as to creditors, and the goods were subject to the execution against F.</p>

<p>Appeal from the District Court of the Fifth Judicial District, County of Tuolumne.</p> <p>This was an action brought by plaintiffs to recover damages for the diversion, by defendants, of the waters of the South Fork of the Stanislaus River, to which plaintiffs claimed to be entitled by priority of possession. Also, for a perpetual injunction restraining defendants from further interference with said water.</p> <p>Plaintiffs obtained a judgment for damages, and also for one hundred and forty “tom streams” of water; from which they appeal, on the ground that the amount of water awarded, through the admission of improper evidence and erroneous rulings of the Court, was not more than half the amount to which they were entitled.</p> <p>On the trial, Dr. Pownall, one of the plaintiffs, was called as a witness by defendants. On the close of his examination-in-chief, plaintiffs proceeded to examine him in regard to “various matters pertinent to the issue.” Defendants’ counsel objected, and the Court sustained the objection. Plaintiffs' counsel excepted. The case turned in this Court on this point, which was the fourth error assigned by appellants’ counsel.</p>

This was an action to recover of the defendants, a corporation tinder the name of “ The Bear River and Auburn Water and Mining Company,” a judgment for $2000 and interest, and for a foreclosure of a mortgage.

This was an action to recover possession of certain premises situated in Mevada county, formerly the property of the Ural Mining Company. The plaintiffs claimed title under a sheriff's ■deed, executed to them upon a sale made in September, 1855, on an execution issued upon a judgment against the said company. The defendant Marsh rested his defence upon a tax-deed executed to him upon a sale made in March, 1855, for the unpaid •taxes of 1854, for State and county purposes.

<p>The private property of an inhabitant of a county is not liable to seizure and sale on execution for the satisfaction of a judgment recovered against the county.</p> <p>No execution.can issue upon a judgment rendered against a county. When a judgment is rendered against a county, it is the duty of the supervisors to apply such funds in the treasury of the county as are not otherwise appropriated, to its payment; or if there are no funds, and they possess the requisite power, to levy a tax for that purpose, and if they fail or refuse to apply the funds, or to execute the power, resort may be had to a mandamus. But if they have no funds, and the power to levy the tax has not been delegated to them, the Legislature must be invoked for additional authority.</p>

In this case, the defendant demurred to the complaint, and the Court entered final judgment, sustaining the demurrer, and dismissing the complaint. From this judgment, the plaintiff appealed to this Court.

This is an action upon a promissory note. The complaint is in the usual form, alleging-the execution of the note, its maturity, and non-payment, and demanding judgment for its amount. On the commencement of the action, the defendant was arrested upon charges made in an affidavit of the plaintiff, that he (the defendant) was about to depart from the State with intent to defraud his creditors, and had disposed of his property, with the like intent.

This was an action, brought by E. Hoffman, C. Catch, K. Kuas, H. Helderf, F. Brown, and C. Verbo of, copartners in the business of mining, against the defendants, who were an incorporated company, to recover damages for the breaking of defendants’ dam and flooding the plaintiffs’ mining-claim.

<p>Appeal from the District Court of the Eighth Judicial District, County of Siskiyou.</p> <p>The facts appear in the opinion of the Court.</p>

This was an action on a promissory note against the defendant Robert J. Murray, as maker, and Charles Govillaud, as endorser, brought under section fifteen of the Practice Act. The defendant Murray suffered default, but the defendant Govillaud filed an answer, and defended the action. On the trial, the plaintiff gave in evidence the following promissory note, the genuineness of the signatures of the maker and endorser being admitted: “ 82500 00.

<p>F. and H. made and delivered to S. a joint and several promissory note for $4500; afterwards, and before the maturity of this note, S. gave his note for $1000, with large interest, to C., and endorsed and delivered, as collateral security, the note of F. and H., for $4500. C. subsequently assigned S.'s note of $1000 to F., and delivered the note of F. and H. as collateral security, or as he held it. After this, S. sold and assigned the note of F. and H., ($4500,) then in the possession of F., to D., the plaintiff; D. subsequently demanded of F. the $4500 note, offering to credit the same with the amount of the $1000 note and interest; F. declined to deliver the note, and D brought suit to recover the amount of F. and H., less the $1000 note and interest: JBeld, that the suit was properly brought, and that D. is entitled to recover on the note against F. and H.,less the amount of the $1000 note and interest.</p>

This was an action of replevin, to recover a kiln of bricks. The bricks were seized by the defendant, as constable, under an attachment, and subsequently sold under an execution issued out of a Justice’s Court, upon a judgment in favor of William Waite, and against Lander Loring.

<p>Appeal from the District Court of the Seventh Judicial District, County of Contra Costa.</p>

<p>Appeal from the District Court of the Hinth Judicial District, County of Siskiyou.</p>

The facts appear in the opinion of the Court. The Court below decreed a foreclosure of the mortgaged premises, and defendants appealed.

This suit was brought against the defendants, a mining corporation, to enforce a mortgage and recover judgment on a promissory note. The complaint alleges that defendants, a corporation, became indebted to A. B. Laforge in the sum of $10,000, and, being so indebted, then and there, in consideration thereof, by and through Bobert McCall, the then president, and one Wm.

This was an action of forcible entry and detainer, originally commenced in a Justice’s Court, and appealed to the County Court. The cause was tried in the County Court, without a jury. A jury having been waived by the parties, plaintiff had judgment for restitution of the premises, etc. Defendant moved for a new trial, which was denied, and he appealed to this Court.

<p>The return of a sheriff on a summons, that he had served it on one Pendleton, one of the partners and associates of the company, is prima facie evidence that Pendleton was such partner and associate.*</p>

This was an action of ejectment, brought to recover possession of a quartz-lead. The complaint was sworn to, and establishes the fact that plaintiffs had previously tried the question, by actions of trespass, in a Justice’s Court, and obtained a verdict. A verdict was also rendered for plaintiffs, in the ejectment suit, in the District Court. Defendants appealed. The facts necessary to understand the points decided, appear in the opinion of the Court.

<p>A. leased furniture to B.; during the lease, F. bought the furniture of A., B. remaining in possession and acknowledging F/s title. I., sheriff, having an execution in favor of R., and against A., levied on the furniture as the property, of A. F. thereupon filed his bill to enjoin the sale: Held, that the remedy by injunction is proper, as it is the only speedy, adequate, and unembarrassed remedy the lessor has to vindicate his rights.</p>

<p>Appeal from the District Court of the Ninth Judicial District, County of Shasta.</p> <p>A statement of the facts appears in the opinion of.the Court.</p>

<p>Appeal from the District Court of the Seventh Judicial District, County of Solano.</p> <p>This was an action of ejectment, to recover possession of a tract of land in Solano county. Plaintiff claimed title by purchase and deed of conveyance from Marshall M. Basye, and also by the location of school-land warrants thereon, under the act of the Legislature of California.</p> <p>Defendant Janes answered separately, denying generally the allegations of the complaint, and alleging a defect of parties defendant.</p> <p>Defendants Willis Long and W. B. Long answered, setting up title in themselves and James H. Long, Garret Long, and Henry C. Long, and also alleging a defect of parties defendant. Defendants claimed title to the premises by deed of conveyance from John Patten, Sen., John Patten, Jr., and Albert G. Lyon.</p> <p>The cause was tried by a jury. On the trial, Thos. M. Swan, a witness for the plaintiff, testified that he was acquainted with the land in dispute; that he, (witness,) Whitman, and Peabody, were appointed referees to divide a tract of land in that valley. Witness surveyed the land in dispute. Defendants’ counsel here asked witness if he was county surveyor. Witness replied that he was not. Defendants’ counsel then moved the Court to exclude the testimony of this witness, which motion was sustained by the Court. Plaintiff excepted. Plaintiff’s counsel then exhibited a plat of the land, made out by the witness, and asked him if it was a correct plat of the land. Witness answered that it was. Plaintiff then offered in evidence the plat, which was objected to by defendants, and the Court sustained the objection, and refused to let the plat go to the jury as evidence. Plaintiff excepted.</p> <p>In the further progress of the trial, Henry Ellis, a witness for the plaintiffs, after stating that he knew the tract of land, its lines, etc., plaintiff’s counsel asked him, after reading to the witness the description of the land from the complaint, the following question : “ Will you state what amount of land, if any, held by Janes, is the same described in the complaint?” Defendants objected to this question; the Court sustained the objection, and witness was not allowed to answer. Plaintiff excepted.</p> <p>In the further progress of the trial, Albert Lyon, a witness for the defendants, was asked by the defendants’ counsel the following question: “ Had you ever heard, previous to the sale to Longs, from any one, that Basye had been up to see Patten about getting permission to stay in the house ?” (House on the disputed tract of land.) This question was objected to by the defendants’ counsel, on two grounds:</p> <p>• 1. It is hearsay testimony.</p> <p>2. It is irrelevant.</p> <p>The Court overruled the objection, and witness answered:</p> <p>“ I can not say. I have heard that Basye was living under old man Patten’s permission; heard it from some of old man Patten’s folks; can’t say from whom.”</p> <p>Plaintiff’s counsel moved to strike out this answer, and exclude the same from the jury; the Court overruled the motion, and allowed the testimony to go to the jury. Plaintiff excepted.</p> <p>Defendants had verdict and judgment. Plaintiff moved for a new trial, which was denied, and he appealed to this Court.</p>

<p>Appeal from, the District Court of the Fifth Judicial District, County of Amador.</p> <p>Application to the Court below for a mandamus. The facts appear in the opinion of the Court.</p>

This is an action upon the following bond: “ Know all men by these presents, that I, George H. Beach, am held and firmly bound unto John T. McCarty, his heirs, executors, administrators, and assigns, in the penal sum of three thousand dollars, lawful money of the United States, for the payment of which, well and truly to he made unto the said John T. McCarty, his heirs, executors, administrators, and assigns, I bind myself, my heirs, executors, administrators, and assigns,…

<p>Appeal from the District Court of the Ninth Judicial District, County of Siskiyou.</p> <p>The facts sufficiently appear in the opinion of the Court.</p>

This was an action of ejectment, to recover certain lands situated in the county of Sacramento. The facts of the ease are briefly those : In December, 1844, the then G-overnor of California made a grant to Eliab Crimes of a large tract of land, situated in the county of Sacramento, including the premises in dispute.

<p>Appeal from the District Court of the Fourth Judicial District, County of San Francisco.</p> <p>The judgment in this case was rendered on the thirtieth of May, 1857, and the motion for a new trial was denied on the twenty-fourth of the following October. On the twenty-fourth of this last month, October, the defendant appealed from both the judgment and order, and on the same day filed his undertaking. To the sufficiency of the sureties on this undertaking, the plaintiff excepted. The defendant then gave notice of his justification before the clerk of the Court below on the second of ¡November, 1857, between the hours of ten, a. m., and five, p. si., of that day. Soon after ten of that day, the sureties appeared before the clerk, and offered to justify, but the clerk declined, the opposite party being absent, to take their justification previous to the last hour designated in the notice. The sureties then departed, and the undertaking- was not approved.</p> <p>Subsequently, on the twenty-sixth of December, 1857, the defendant filed a second notice of appeal from the same judgment and order, and gave a new undertaking, upon which the sureties justified.</p> <p>Preliminary to the argument of the appeal from the judgment, the respondent moved to dismiss the first appeal for the failure of the sureties to justify on their undertaking; and the second appeal, so far as it was from the order denying a new trial, on the ground that it was taken after the expiration of sixty days from the entry of the order.</p>

<p>The filing of a notice of appeal must precede the filing of the undertaking on appeal. Until an appeal is taken, there is nothing to give effect to the undertaking.</p>

The executor of the estate of James A. Taylor, deceased, was himself a creditor, but did not present his claim to the Probate Judge for allowance until after the expiration of the ten months from the time he published-a notice for the presentation of claims against the estate, and for that reason the Probate Judge disallowed it. From the order disallowing the claim, the appeal is taken by the executor.

<p>The jurisdiction of the Fourth District Court, in the county of San Francisco, continues the same as it was previous to the creation of the Twelfth Judicial District. The jurisdiction of the Fourth District Court and of the Twelfth District Court, within the limits of tho city of San Francisco, is equally extensive, and proceedings may be commenced in either Court, at the option of the suitor.</p> <p>Where an insolvent, in his petition to the District Judge of the Fourth Judicial District, stated that he was “ a resident of the city of San Francisco Meld, that the averment was sufficient that his residence was within the Fourth Judicial District.</p> <p>A defective statement in the schedule of an insolvent, of certain promissory notes which constitute a portion of his debts and liabilities, does not invalidate the entire proceedings. If the statute as to the particularity with which debts and liabilities are required to be set forth by the insolvent, is not substantially complied with, a creditor can not be prejudiced by the decree of discharge in any suit which he may institute to enforce his claim.</p>

This was a proceeding, by motion, against the defendants, under the provisions of the ninth section of the “ Act concerning Sheriff, passed April 29, 1851. The plaintiff had judgment in the Court below, and both parties appealed to this Court. The facts appear in the opinion of the Court.

<p>Where * clerk of the District Court improperly refuses to issue execution on a judgment rendered in the Court of which he is clerk, on the ground that the judgment has been attached at the suit of another party, a bill in equity can not be sustained to release the attachment and compel the clerk to issue the execution, as the injured party has his remedy at law by an action on the official bond of the clerk.</p>

<p>Motion to set aside the judgment of reversal, and to reinstate the cause on the calendar.</p>

The complaint alleges that on the thirteenth day of February, 1857, the defendants executed to George E. Drew a mortgage on their homestead, to secure the payment of a promissory note of $1000, payable in six months after date, with interest at the rate of two and one-half per cent, a month; that on the seventeenth of October, 1857, and for eighteen months previous, the defendant J. M. Buffington was doing business as a grocer, and on and before this last day he was…

<p>Appeal from the Probate Court of the County of Placer.</p> <p>A statement of the facts appears in the opinion of the Court.</p>

<p>Appeal from the District Court of the Eleventh Judicial District, County of El Dorado.</p> <p>The facts appear in the opinion of the Court. Defendants had judgment in the Court below, and the People appealed.</p>

<p>No appeal lies from an interlocutory order, except in the cases provided by statute. Such order can only be reviewed on appeal from the final judgment.</p>

<p>Appeal from the District Court of the Twelfth Judicial District, County of San Francisco.</p> <p>This was an action to recover of defendants a sum of money for harbor-dues in the city and county of San Francisco, imposed upon its vessels plying between San Francisco and Sacramento, and San Francisco and Stockton. Defendants demurred to the complaint, and the demurrer was overruled, and judgment entered for plaintiffs. Defendants appealed.</p> <p>The acts relied on by respondent impose these dues on all vessels plying coastwise and entering the harbor of San Francisco; and the only question raised on the record is, whether the defendants' vessels are embraced by this definition.</p>

<p>Appeal from the District Court of the Seventh Judicial District, County of Contra Costa.</p>

This was an action to recover damages for the wrongful diversion of water from the plaintiff’s ditch, and for an injunction restraining the defendant from continuation thereof. The complaint is in three counts.

This was an action on a promissory note and mortgage. The complaint prayed for judgment against all of the defendants, eight in number, and for a foreclosure of the mortgaged premises. The summons was served on all of the defendants except James Brady, who was not served—nor did he appear in the action. The Court below entered a personal judgment against all of the defendants, and ordered the sale of the mortgaged premises.

<p>Plaintiffs purchased of defendant F. the bark “ Chase/' paid a portion of the purchase-money, and entered into possession; at the time of sale, the vessel was sailing under a coasting-license issued to F., but was registered in the name of a third person. F. agreed to deliver to plaintiffs, within twenty days, a good and sufficient title and register of the bark, and as security for the performance of this agreement, executed a bond in the penal sum of $2000. F. failed to deliver the title and register at the time agreed on, or at any time, by reason of which failure the plaintiff was restricted in the lawful and usual use and employment of the vessel: Held, that the sum specified in the bond should be considered as liquidated damages.</p>

<p>Appeal from the District Court of the Fourteenth Judicial District, County of Sierra.</p>

This was an action to recover the value of four mules, harness, and wagon, of the value of $1150. McKean and Strohn were the owners of a certain team of mules, harness, and wagon, which they used in hauling quartz-rock to their quartz-mill, in Grizzly Flat, El Dorado county. This team was driven by one. Laycock, a hired hand in their employ.

<p>In order to entitle a surviving husband or wife to the whole common property, it must be affirmatively shown that there are no descendants of the deceased.</p>

This was an action of trover. It appears that plaintiff, some time before the institution of this suit, commenced an action in replevin for the same property, and recovered a judgment for its restitution, with damages for its illegal detention. The damages were paid, but the order for the restitution of the property was never complied with; and, failing to recover the possession of his property, plaintiff commenced this suit for its value.

This was an action to recover the sum of $2256, for work and labor, and materials furnished, and to foreclose a mechanic’s lien on certain premises. The defendants plead a former suit pending between the same parties, and for the same subject-matter, but failed to show that a summons had been issued and returned in the former suit. The Court below gave judgment for the plaintiff, and decreed the foreclosure of the mechanic’s lien. Defendants appealed.

<p>A check given for a gaining debt is void in the hands of all persons except a bona fide holder, without notice.</p> <p>A party taking a check after its presentation for payment to the bankers upon whom it is drawn, and its dishonor, takes it subject to all the defences to which it was subject in the hands of the original holder.</p> <p>Where the illegal consideration of a check is admitted, it is incumbent on the holder, even if he took it before dishonor, to show that he took it without notice, and for value.</p> <p>With a check, the presumption is that it is given upon a valid consideration, but this presumption being rebutted, the necessity is thrown upon the holder of proving that he received it in good faith, without notice of the illegality of the consideration.</p> <p>Surprise at the ruling of the Court, on the trial, as to the admission of testimony, is not ground for a new trial.</p>

Motion to dismiss the Appeal, as being taken from an interlocutory order. The facts sufficiently appear in the opinion of the Court.

<p>Appeal from the District Court of the Seventh Judicial District, County of Contra Costa.</p>

In April, 1851, the defendant sold, and by deed conveyed, certain real property to the plaintiff. In the month of May following, the deed was accidentally destroyed by fire in San B'rancisco, and this suit was instituted to compel the .defendant to execute to the plaintiff a new deed of the premises.

<p>Appeal from the District Court of the Sixth Judicial District, County of Sacramento.</p> <p>This was an action of ejectment, to recover the possession of certain premises, situated in the city of Sacramento. Both parties claim title through Henry A. Caulfield—the defendant by a conveyance executed on the twenty-third day of December, 1856, and the plaintiff by a conveyance executed on the second day of April, 1857. Both the deeds include the premises in controversy ; both were filed in the office of the recorder for record; that to the defendant on the eighth day of January, 1857, and that to the plaintiff on the fifteenth of April following; and both Avere transcribed in the proper books of the office.</p> <p>The proof of the execution of the deed to the defendant, is in the following form:</p> <p>“ State of California, County of Sacramento.—On this twenty-third day of December, 1856, before me, a justice of the peace, in and for said county, personally appeared Eli Mayo, known to me to be the person whose name appears as a subscribing witness to the foregoing instrument, who, being by me first duly sworn, declared that Henry A. Caulfield, known to affiant personally as the person described in and who executed the foregoing conveyance, executed the same in the presence of affiant, and declared that he executed the same freely and voluntarily for the uses and purposes therein mentioned, whereupon affiant became a subscribing witness.</p> <p>“ In witness whereof I have hereunto set my hand.</p> <p>“ Eli Mayo.</p> <p>“ Subscribed and sworn to before me this twenty-third day of December, a. d. 1856.</p> <p>“James Alexander, Justice of the Peace.”</p> <p>It was objected, on the trial, that this was insufficient proof of the execution of the deed to entitle it to record. The Court below sustained the objection, and as there was no proof of actual notice to the plaintiff of the defendant’s claim, he had judgment, from which the defendant appealed.</p>

of the Fourteenth Judicial District, County of Nevada. This is an action brought by the plaintiff, claiming to be the widow of W. J. Cady, deceased, for her distributive share of his estate, under the Statute of Distributions.

This was an action to recover the possession of an undivided interest in several mining-claims. The contract or instrument of writing under which the plaintiff claims, together with the facts sufficient to explain the same, are set forth in the opinion of the Court. Plaintiff had judgment, and the defendant appealed.

<p>Appeal from the District Court of the Fourteenth Judicial District, County of Sierra.</p> <p>This was an action to recover damages, caused by the overflow of defendants’ flume upon the mining-claim of plaintiffs.</p> <p>Plaintiffs owned and were working a mining-claim; defendants constructed a flume for the conveyance of water across the claim of plaintiffs. On the night of the 24th of March, 1857, a heavy snow-storm occurred and filled up the defendants’ flume, thus causing it to overflow upon the claim of plaintiffs. A large quantity of water was precipitated on plaintiffs’ claim, washing away pay-dirt, sluice-boxes, etc.</p> <p>The cause was tried by the intervention of a jury. The principal question at issue was as to negligence on the part of defendants in the construction of the flume. The Court instructed the jury on this point as follows :</p> <p>“ That in the absence of any priority between the parties, the owner of a ditch is bound to use that degree of care and caution, in the constructing and maintaining his ditch, that a prudent man would use if all the risk were his own in case of the ditch breaking; and that if he does use such degree of caution, and if, by an unforeseen accident, which a prudent and careful man could not reasonably foresee, his ditch breaks; he is not liable.</p> <p>“ That this doctrine is so far modified in this State by the priority of parties, that if the ditch-owner is prior, in point of time, he is only liable for gross carelessness; while, on the other hand,' if the ditch-owner is subsequent, in point of time, he is bound to use that caution which a very prudent man would use were the risk all his own. And that, in the present case, if the jury believe, from the testimony, that the plaintiffs’ mining-claims were located before the construction of defendants’ ditch, and that the flume overflowed and injured plaintiffs’ works, then it is for the jury to determine, from the testimony, whether or not the defendants have used the care and caution which very prudent men would have used, had both the ditch and claims been owned by them; and if"they have, the jury should find for defendants. But if they have not used such care and caution, then the jury should find for plaintiffs, and assess such damages as are found to have been sustained.”</p> <p>To which instruction, the defendants excepted. The jury returned a verdict for the plaintiffs, and assessed the damages at §1000. Defendants moved for a new trial, which was denied, and they appealed to this Court.</p>

The facts of this case are reported in 8 Cal., 522. By the decision of the Supreme Court, rendered at the October Term, 1857, this case was remanded to the Court below, for the purpose of having an account taken. In the decision made upon a petition for re-hearing, at the January Term, 1858, the Court said that, “ in taking the account, all the evidence contained in the transcript, so far as it goes, will be legitimate.

Bill to redeem. The facts of the case are as follows: On the 21st of February, 1856, one George H. Stephens was indebted to the plaintiff, George O. Whitney, and his partner George Whitney, in the sum of §1668, for which Stephens gave to them his three promissory notes, each for §556, payable in two, four, and six months; and, to secure the payment of said notes, at the same time executed to them a mortgage upon certain premises owned by him, situated in Placer county, which…

A sufficient statement of the facts to understand the points decided, appears in the opinion of the Court. The case was first decided at the July Term, but a re-argument was subsequently had at the October Term.

This was a certiorari issued out of the Fourth District Court to review the proceedings of appellant, as assessor for the city and county of San Francisco, in making up the assessment-roll for the current year.

This was a bill in equity, filed to cancel a promissory note of $2000, which note the complainant alleges he had paid, or discharged by another note of $1200, given and received'as a satisfaction of the first. The first note was past due at the time of instituting this suit.

Plaintiff had judgment in the Court below for the sum of $24,775 11, from which the ■ defendants appealed to this Court. The facts of the case appear in the opinion of the Court.

This was an application to the Court below, for a mandamus against the defendant, as treasurer of the city and county of San Francisco, to compel him as such treasurer to pay to the commissioners of the funded debt of the city of San Francisco, the sum of $197,000, for interest and sinking fund for the year 1857-8, in pursuance of the provisions of the Act of May 1, 1851, “Authorizing the Funding of the Floating Debt of the City of San Francisco, and to provide for the…

<p>The commissioners of the funded debt of the city of San Francisco are not private agents; they are public officers, clothed with important trusts, for the due administration of which they have executed bonds, with security.</p> <p>The rule which governs in this case, and alone entitles the parties to intervene to restrain the proceedings, or control the action of the trustees, is, that the fund is in danger of being wasted or impaired; or, that a liability will be incurred, or an injury done by threatened or probable malfeasance, for which the agents’ bond or personal responsibility would afford no probable or adequate redress. Until this is shown, no injunction can issue to prevent them as such commissioners from receiving the trust-fund. ;</p>

Those were actions of ejectment, to recover the possession of two lots, situated in the city of Sacramento. By the agreement of parties, they were tried together in the Court below.