Volume 11 — California Reports

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

The facts sufficiently appear in the opinion of the Court. Defendants had judgment in the Court below, and plaintiffs appealed.

<p>The act to regulate interest on money is in derogation of the common law, and must be strictly construed.</p> <p>Apply this rule of construction to the language of the second section of the act, and it will confine its provisions to contracts, fixing the rate of interest.</p> <p>According to the common acceptation, the expression, “ rate of interest,” has reference to the percentage or amount of interest, and not to the manner of computing. The provision of the statute which authorizes judgments to bear the same interest as the contracts on which they are recovered, was intended to be confined to contracts fixing the rate of interest.</p> <p>In a foreclosure suit, where judgment is taken by default, the decree can give no relief beyond that which is demanded in the bill.</p> <p>Where proceedings in a foreclosure suit were delayed by agreement, in consideration of the execution of a second mortgage on other property in which third parties joined as additional security, and subsequently plaintiff filed a supplemental bill, setting up the second mortgage, and asking a sale of the premises described in both mortgages, judgment was taken by default for the debt, and the court decreed a foreclosure of the several mortgages and a sale of the property conveyed, and directed that the property described in tbe mortgage executed by Reynolds should be first offered for sale ; but that no bid should be received for a less sum than the full amount of judgment and costs. If this sum was not bid, then the whole property included in the two mortgages—from Reynolds and from Kirk and Reynolds —was to be sold together : Held, that the decree is erroneous.</p> <p>The well established rules of equity proceedings require, in such cases, not only that the property should be sold in parcels, but that the property included in the first mortgage should be exhausted, before recourse is had to the second.</p> <p>A party entitled to redeem has a right to have ascertained the price at which his interest was sold, in order that he may redeem.</p>

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

<p>Appeal from the District Court' of the Fifth Judicial District, County of San Joaquin.</p> <p>A statement of facts, sufficient to elucidate the points decided, 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>A statement of the facts sufficiently appears in the opinion of the Court.</p>

<p>Appeal from the District Court of the Fourteenth Judicial District, County of Nevada.</p> <p>In this case the notice of appeal was served on the Respondent’s attorneys on the 15th day of May, 1858, and on the 23d day of May, 1858, the following stipulation was filed in the clerk’s office of the Court below:</p> <p>“ GrlotzbacJc v. Foster—It is hereby stipulated and agreed between the parties hereto, that defendant is entitled to a credit of one hundred and fifty dollars on the execution in this case, being the amount claimed in defendant’s answer. Hereby waiving all errors in record and referee returns of amount due, also decree and execution made May 23d, 1858. McConnell & Stewart,</p> <p> Attorneys for Defendant. </p> <p>Buckner & Hill,</p> <p> Attorneys for Plaintiff </p>

This was an action brought in a Justice’s Court on the following promissory note: “ $95. Colusa, Feb. 1st, 1856. “ For value received, I promise to pay Harvey Phelps, or bearer, the sum of ninety-five dollars, one day after date, with interest at three per cent, per month. “Henry Rollberg.” The defendant filed his answer in the Justice’s Court; a jury trial was had, and verdict and judgment for plaintiff, from which the defendant appealed to the County Court.

<p>In a mechanic’s lien, it is not necessary to give the items of the work and materials, in the statement of the lien filed, where the contract for the construction of the building is in a sum in gross.</p>

<p>Appeal from the District Court of the Twelfth Judicial District, County of San Francisco. .</p> <p>This was an application, on the part of the plaintiffs, to the Court below, for a mandamus to compel the defendants, as a Board of Supervisors of the City and County of San Francisco, to audit an account of the plaintiffs for gas furnished the city for lighting the streets and City Hall, in pursuance of a contract made with the city and James Donar hue & Co., and assigned by Donahue & Co. to the relators. The application was made upon affidavit and notice to the defendants. Three separate grounds of defense were set up by the defendants in their answer, as reasons why the writ should not issue, but as they were not passed upon by the Court, they are not given. The following is the order of the Court below, granting the writ:</p> <p>“ On filing affidavits in this cause, and after hearing F. M. Haight on the part of the relator, and F. P. Tracy on the part of the defendants, and due notice-having been given of the application according to law : It is ordered',-adjudged and decreed that a writ of mandate be ordered to the Board of Supervisors of the City and County of San Francisco, commanding them to audit the accounts of the relator, set forth in the affidavit of J. Gr. Eastland, which have accrued since the first day of July, 1856, in accordance with the original contract made with James Donahue & Co., and in pursuance of the provisions of an Act of the Legislature, entitled “ An Act for the Relief of the San Francisco Gas Company,” approved March 5th, 1858.”</p> <p>From which order the defendants appealed to this Court.</p>

The question in this case turned on the sufficiency of the complaint, which is in substance as follows: The defendant had commenced an action against the plaintiff, to recover some $3000, alleged to have been loaned to her by the plaintiff. The plaintiff had a valid and meritorious defense against this claim, but for the sake of peace, and to avoid litigation, he paid her five hundred dollars in full satisfaction of her pretended cause of action.

<p>Appeal from the District Court of the Twelfth Judicial District, County of San Francisco.</p> <p>This was an application to the Court below for a mandamus. The facts are as follows:</p> <p>A. C. Monson was elected Judge of the Sixth Judicial District at the September general election, 1852; he resigned in 1857, when Charles T. Botts was appointed and commissioned by the Governor. No proclamation was made by the Governor for an election for Judge at the general election of 1858, for the unexpired term of Monson; that is for the intervening period between September, 1858, and January, 1859. At the general election of September, 1858, John H. McKune received, for the short term, two thousand and fifty-six votes, being a majority of those cast for Judge for that term, but not a majority of votes cast at the election; and he is also returned as having received a majority of all the votes cast for the long term. He obtained the certificate of the proper county officer of his election for the short term, and applied to the Governor for a commission, which was refused. This proceeding is taken to enforce that demand.</p> <p>The Court below refused to issue the writ and the relator appealed to this Court.</p>

This was an action of ejectment to recover a lot of land. The defendants claimed title through one J. F. Limantour, who claimed to be the grantee -under the Mexican government. On the trial, one William H. Graham was called as a juror, and was challenged for cause, by the defendants. On examination, touching his competency as a juror, Graham testified that he was acquainted with the claim of title by Limantour.

<p>Appeal from the District Court of the Twelfth Judicial District, County of San Francisco.</p> <p>Plaintiffs, as executors of O. B. White, deceased, commenced an action of ejectment against defendants for seven-sixteenths of a certain fifty vara lot in San Francisco. Defendants answered, denying generally the ■ allegations of the complaint, and setting up title in J. T. Limantour.</p> <p>A nonsuit was entered, on the ground that the plaintiffs had not established their character as executors, and afterwards, on the application of the plaintiffs, the judgment of nonsuit was vacated and a new trial granted. From this order defendants appealed.</p>

The plaintiff was entitled to a sum of money from the estate of her brother, Charles Mills, who died in Louisiana, leaving a will; and she, in order to get the money due, in connection with her husband, then living, made a power of attorney to the defendant in 1852, authorizing him to collect it from the representative of Mills’ estate in New Orleans. The defendant collected the money.

<p>Appeal from the District Court of the Tenth Judicial District, County of Yuba.</p>

This was an application to the Court below for a peremptory writ of mandamus, to compel the defendant, as Governor of this State, to issue to the relator, Samuel H. Brodie, a commission as Judge of the District Court of the Twelfth Judicial District. The facts upon which the application was based are as follows: The Twelfth District was created, by act of the Legislature, on the fifteenth day of May, 1854.

<p>Appeal from the District Court of the Sixth Judicial District, County of Sacramento.</p> <p>This was an action of ejectment to recover a lot of land in the City of Sacramento.</p> <p>The facts and the points raised are the same as those in the case of Ferris v. Coover (10 Cal. Rep., p. 589). Plaintiff had judgment and defendant appealed.</p>

Plaintiffs aver that on the twenty-third of February, 1855, they instituted in the United States District Court for the Northern District of California, an action against the bark Elvira, belonging to defend-: ants, to recover damages sustained by a collision of said bark and a certain other vessel called the Madonna, the property of plaintiffs.

This was an action under the 249th section of the Practice Act.

These two actions were instituted by the plaintiff to recover of the County of Shasta compensation for taking care of the Court House, and keeping and guarding the Jail of the county, while plaintiff was acting as Sheriff of said county. Plaintiff had judgment in the Court below, and the defendant appealed to this Court.

This was an action to abate a nuisance. The complaint alleges, that plaintiffs are owners of a certain mining claim situated in the bed of the North Fork of the Cosumnes River, about sixty rods above a certain dam across said stream, belonging to defendant; and that they are also the owners of a certain other mining claim situated on the left bank of said stream, and adjacent to the first mentioned claim.

<p>Appeal from the District Court of the Twelfth Judicial District, County of San Francisco.</p> <p>This was an action in the name of the plaintiff, as Public Administrator of the County of San Francisco, to recover from the defendant certain rents due by virtue of a lease from Samuel Flower, former Public Administrator of said county, and as such in charge of the estate of Auguste Deck, deceased.</p> <p>In December, 1855, the Probate Court of the City and County of San Francisco, by a simple order, and without the presentation of a petition, directed letters of administration to issue to Samuel Flower, the then Public Administrator of that county, upon the estate of A. Deck, deceased. Flower’s term of office expired in November, 1856, and he was succeeded by the plaintiff. Flower delivered to the plaintiff, as his successor, all the papers and property of said estate, but no order of the Probate Court of that county was made directing letters to issue to said plaintiff, nor did any ever issue.</p> <p>The question presented by the record is, whether a Public Administrator, having administration upon an estate, continues such administration after the expiration of his term of office, or whether the administration follows the office into the hands of the succeeding incumbent, who may sue without obtaining a grant of administration on the particular estate.</p> <p>Plaintiff had judgment in the Court below, and the defendant appealed.</p>

<p>Appeal from the District Court of the Eleventh Judicial District,County of El Dorado.</p> <p>The facts 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>Appeal from the District Court of the Tenth Judicial District, County of Yuba.</p> <p>This was an action of ejectment to recover a tract of land in Yuba County. Plaintiff claimed by title deraigned from the grant of one Sutter, and his possession under it. Trial by jury on complaint and answer, putting in issue title and possession. There was a dispute as to whether the locus in quo was within the boundaries of the Sutter grant, and of the land conveyed to plaintiff, which was part of the Sutter grant. In order to make out his case, the plaintiff offered- in evidence the map of J. W. Higgins, of a survey of a tract of land called the Linda tract, it being a private survey made under the orders of the claimants of the Linda tract for the purpose of showing that the land in dispute was embraced in said survey of said Higgins : and also offered a map made by one Von Schmidt, claiming to be a deputy surveyor of the United States, for the purpose of showing what was claimed to be the eastern line of the grant, before referred to, from the Mexican Government to John A. Sutter; and to the introduction of each of said maps counsel for defendants made the following exceptions : 1. That the map of Higgins was a private survey. 2. That there was no proof that it was made by consent of the defendants, or any of their grantors, or upon notice to them, or any of the grantors, or by order of the Court.</p> <p>The Von Schmidt map was objected to as inadmissible : 1. Because no law of the United States, or order of- a Court of competent jurisdiction within the United States, or any order of instruction of any Department at Washington, connected with the business of the United States for this State, or any other order, instruction or authority whatever, of either the Federal Government or the State Government, or any other instruction or authority was shown, authorizing the said survey or map to be made, or to be used in evidence in any Court of Justice of the State of California. 2. That no notice upon the defendants or grantors was shown before the making of the said survey as to the same, and no consent of the defendants was shown, or their grantors, to the making of said survey.</p> <p>The Court ruled that the Higgins survey and map might go in evidence as a diagram, and the said Von Schmidt’s map and survey be admitted as evidence.</p> <p>After the close of the testimony, the Court, at the request of the plaintiff, gave the jury the following instructions :</p> <p>1st. That if the jury believe the land claimed by the plaintiff is embraced in the boundaries named in the deed from John A. Sutter to Rose, Reynolds and Kinloek, and that they took possession of a part of the tract purchased by them from Sutter, claiming the whole, and that no one at the time of the entry held adversely, then their entry and possession are deemed in law co-extensive with the whole tract purchased by them.</p> <p>2d. That the decree of confirmation of the grant to John A. Sutter by the United States Land Commission and the United States District Court, cannot be impeached in this suit.</p> <p>3d. That the possession of the three, Rose, Reynolds and Kinloek, the grantors whom the plaintiff claims, inures to the benefit of the present plaintiff.</p> <p>4th. That Joseph L. Davis did not, by his purchase from Richard Rose, acquire any greater right than Rose himself possessed; and that Rose, having entered upon the premises upon a contract for a lease from Rowe, was subject to the same estoppel as the tenant, and could (not) have disputed Rowe’s title.</p> <p>5th. That the same estoppel which prevents a tenant from disputing his landlord’s title, extends to all persons who enter upon premises upon a contract for a lease, and to all persons who by purchase, fraud or otherwise, obtain possession from such tenant.</p> <p>The Court gave several instructions at the request of the defendants’ counsel, but refused to give the fourth asked by the defendants’ counsel, which is in these words :</p> <p>4th. “ A demarcation, or private survey, made by direction of a party interested under the grant, is inadmissible evidence, because it would enable the grantee to fix a vagrant grant by his own act.”</p> <p>Plaintiff had verdict and judgment, and the defendants appealed to this Court.</p>

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

<p>Appeal from the District Court of the Fifth Judicial District, County of Amador.</p> <p>This was an action for the diversion of the waters of the South fork of Jackson creek in the County of Amador. Plaintiffs claimed under the first appropriator of the waters of said stream. Defendant in his answer set up a right to a portion of the water, by virtue of a contract with the owners of the Amador County canal, which drained the North fork of the Mokelumne river. From this canal, the water claimed by defendant was emptied into a natural ravine, and from thence flowed into the South fork of Jackson creek, above the dam of plaintiffs, and after descending the stream for a mile, was again taken up at a point above plaintiffs’ dam and diverted through defendant’s ditch to his mining ground. Plaintiffs demurred to this portion of the defendant’s answer as new matter. The demurrer was sustained by the Court below, and the defendant appealed. The material facts sufficiently appear in the opinion of the Court.</p>

Ejectment to recover a mining claim. The case was tried before a jury, who, under the instruction of the Court, returned a verdict for the plaintiff. It seems that one Matte-son, in 1853, was possessed of a certain piece of mining ground, and in consideration of a note made by one Head and one Flippen, with one Grier as surety, in July of the same year, executed and delivered a bill of sale of the ground to Head and Flippen, jointly.

<p>Appeal from the District Court of the Eleventh Judicial District, County of El Dorado.</p> <p>This was an action brought to recover damage done to a ditch by reason of defendants mining in the canon above, and running down sediment and earth into the ditch.</p> <p>Defendants alleged that they were miners, and claimed priority of . location and working their claim.</p> <p>When the case was called for trial, defendants moved for a continuance of the case on the ground of absent witnesses. This motion was based on the affidavit of one of the defendants, showing diligence in attempting to obtain the testimony of such absent witnesses, and the nature of the proof. The Court denied the motion for a continuance, and the cause was tried by a jury, who rendered a verdict for the plaintiff, and judgment was entered therein. Defendants moved for a new trial on the papers in the case, which was denied, and they appealed.</p>

<p>Appeal from, the District Court of the Twelfth Judicial District, County of San Francisco.</p> <p>This bill was filed by complainant for a division of common property, upon the allegation of a dissolution, by a decree of the Twelfth District Court, of the matrimonial union once existing between these parties. The decree was procured at the instance of the defendant. The bill states “ that at the time of the rendition of said decree, the said Job F. Dye was in possession and held a large amount of property ; all of which said property was acquired after the marriage and during the coverture with your complainant, to wit: a rancho, situated in the county of Tehama and State aforesaid, containing eleven leagues of land; one hundred acres of land situated in the county of Sacramento ; a house and lot, situated in the town of Monterey; two hundred head of horses; two thousand head of horned cattle; two thous- and head of sheep; ten thousand dollars in cash, and other personal property; which said property is common property, as made by the statute of this State.” The marriage is alleged to have taken place on the-day of--, 1838; where, is not stated, nor the then residence of the parties. To this complaint the defendant demurred, upon several grounds. The demurrer was sustained and the plaintiff appealed.</p>

This is a proceeding to review hy certiorari the action of the Board of Supervisors of El Dorado County, in allowing the Auditor of that county seventy-five cents for each warrant issued by him from the first of October, 1855, to the nineteenth of January, 1857.

<p>Motion for a citation to the respondent, on a writ of error from the United States Circuit Court for California to this Court.</p> <p>A final judgment was rendered by the Court in the above case on the eighteenth ultimo, affirming the judgment of the Court below. For the facts, see 10 Cal. R. 589.</p> <p>Afterwards the appellant obtained from the Clerk of the United States Circuit Court for California a writ of error, commanding the record to be sent before the Supreme Court of the United States, in order that the judgment of this Court may be there reviewed, and applied to one of the Associate Justices of this Court to fix the necessary bond, grant a stay of proceedings, and award a citation to the respondent to appear before the Supreme Court of the United States, and maintain the validity of his judgment. The Justice applied to ordered that the application should be argued before the Court, upon notice to respondent to show cause why it should not be granted.</p> <p>The questions raised upon the argument of this motion are: First, the constitutionality of the twenty-fifth section of the Judiciary Act of 1789, which provides for an appeal from the highest State tribunals to the Supreme Court of the United States ; second, whether, admitting the validity of the Act, the case under consideration is within its provisions; and third, whether the authority to determine this latter question can be properly exercised by this Court.</p>

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

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

<p>Where an ambiguity in an instrument of writing consists in the use of a word which has a settled meaning, but at the same time consistently admits of two interpretations, according to the subject matter in the contemplation of the contracting parties, it is not such a patent ambiguity as falls within the rule forbidding its explanation by parol testimony. It belongs to that intermediate class of cases which partake of the nature both of patent and latent ambiguities.</p> <p>In an action concerning a disputed boundary between two mining claims, depending on an agreement between the parties, in which the word “ north ” was used, and parol evidence was admitted to prove that it was the custom of the locality to run boundary lines by the magnetic meridian, and that that was the understanding of the parties : Held, that such evidence was admissible, not to contradict or vary the term, but to ascertain the sense in which it was used.</p> <p>On a motion for a new trial on the ground of newly discovered evidence, the affidavit of one of the defendants as to what an absent witness will testify, is insufficient. It should be accompanied by the affidavit of the witness himself; if that cannot be obtained in time, additional time should be applied for.</p>

<p>In an action for a division of the common property after a divorce, where it appeared that the property in question had been in the possession of the husband, before marriage, without title, and that he purchased the property and obtained deeds therefor after marriage, the purchase money being paid with the common funds : Held, that it was common property: Held, further, that the defendant having purchased, with the common funds, from another, under deed of warranty, he is estopped to deny, as far as plaintiff is concerned, that he acquired a good title by the purchase.</p>

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

Price and Williams were physicians and partners, and as such, joint contractors for the keeping and conducting of the Sacramento County Hospital. Williams died in 1855, leaving a will, by which one Stanley was appointed his executor. Stanley qualified and acted as such. W. G-. Williams was made the sole legatee of the testator.

<p>A stipulation inserted in the transcript, and not embodied in a statement or bill of exceptions, forms no part of the record which this Court can notice.</p> <p>Nor do affidavits used on motion to open the judgment, form any part of the record, where there is no certificate of the Judge or Clerk, or an admission of counsel that they were used for that purpose.</p>

<p>A surety has a right to stand on the precise terms of his contract. He can be held to no other or different contract.</p> <p>In the case of sureties on the official bond of a County Treasurer, they all contract together, and with reference to the common responsibility. In case of a breach or loss, each surety has his recourse for contribution on his fellows. The discharge of one of the obligors affects the contract as to all, and amounts to a release of all as to all future acts of such official.</p> <p>Statutes in derogation of common law principles are construed with strictness, and sureties are favored in the law.</p>

Petition to this Court for a writ of Saleas Corpus. Petitioner alleges that he is held in custody by the Sheriff of El Dorado County, under a warrant of commitment issued by a Justice of the Peace of the county, upon a conviction for a misdemeanor, for keeping the store and place of business of petitioner open for business purposes, and exposing his goods, wares and merchandise for sale, on the Christian Sabbath, or Sunday, contrary to the provisions of an Act, entitled “ An…

<p>Appeal from the District Court of the Fifteenth Judicial District, County of Butte.</p> <p>A statement of facts appears in the opinions of the Court.</p>

This was a proceeding to enjoin the sale of certain real property under execution.

This was an action of assumpsit to recover the sum of $31,062.

This was a motion made to the Court below, for an order to compel the defendant, as Clerk of the District Court, to pay over certain moneys in his hands to the plaintiff. The motion was based on the following facts : Goodwin & Co. commenced suit in the District Court of Los Angeles County, by attachment, against Lewis Glazer, to recover a sum of money.

This was an action against the sureties on a replevin bond. The facts as detailed in the opinion of the Court are as follows: Treadwell commenced suit against David Jones, by attachment, which was levied upon certain personal property by the plaintiff, Hunt, as Sheriff of Sacramento county.

<p>Appeal from the Comity Court of El Dorado County.</p> <p>The facts sufficiently appear'in the opinion of the Court.</p>

This was a cross action to a bill to foreclose a mortgage. The facts are as follows: The defendants, Zachariah and wife, executed and delivered to the plaintiffs two separate promissory notes, and two mortgages of different dates to secure the payment of the notes. The first mortgage was to secure the payment of $1,000, and the second of $2,000.

The facts upon which this case is made may be briefly stated thus: The defendant, in 1853, leased a lot in San Francisco to one Allen for a term of seven years; the contract provided that Allen should pay a ground rent of three hundred and fifty dollars per month; also, that lessee should erect certain buildings; these, at the end of the term, were to be appraised, and their value to be paid by the lessor.

This was an action to recover damage for the wrongful taking of certain goods, the property of plaintiff. The-cause was tried in the Court below without a jury, and from the finding of the Judge, the following facts appear: Abel & Monty were commission merchants, doing business in Oroville, Butte county, and were also doing a general mercantile business, buying and selling on their own account.

This was a suit to foreclose a mortgage executed by the defendant, Tutt, upon certain premises situated in Colusa County, to secure the payment of his promissory note to the plaintiff. The note hears date on the fourth of February, 1856, and is for the sum of $6,900, payable to the plaintiff or order, one year from the seventh of March, 1856, at the banking house of D. 0.

<p>Appeal from the County Court of San Francisco County.</p> <p>This action was originally commenced in a, Justice’s Court on a promissory note for two hundred dollars. Summons was duly issued and returned served personally on all the defendants, who failed to appear, and judgment was taken against them by default. Defendants appealed from the Avhole judgment of the Justice, on questions of both law and fact. No statement of the grounds upon which the appellants intended to rely in the County Court was filed with the Justice.</p> <p>On the calling of the case in .the County Court, the respondent moved to dismiss the appeal, on the ground that an appeal could not be taken from a Justice’s judgment rendered by default, on questions of both law and fact; which motion was denied by the Court, and respondent excepted.</p> <p>The County Court allowed the defendant, Newburger, to answer, and ordered a trial anew. The cause was tried without a jury, and judgment rendered for the defendant; from which the plaintiff appealed to this Court.</p>

At the general election held in Tuba County in September, 1855, A. F. Williams was duly elected County Treasurer of that county for the term of two years from the time of his election, and until his successor was chosen and qualified. On the twenty-eighth day of April, 1857, a special Act was passed, extending the term of this officer to the first Monday in January, 1858.

■ This was an action to recover damages, for the wrongful- diversion of water from plaintiffs’ ditch,- and for - an injunction restraining defendants, etc. Plaintiffs had judgment and the defendants appealed. The record is voluminous, exhibiting the history of the case, but there is no statement of the case as required by our statute.

<p>Motion on the part of plaintiff, Eaton, to correct the remittitur.</p>

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

The facts are, that some time in August, 1857, plaintiff gave one O’Brien a check upon a banker, payable to the order of O’Brien, for five hundred dollars. This was done to enable O’Brien to bet that sum with one Harris on the election for Sheriff of Sacramento County. O’Brien undertook to make the bet for plaintiff—the plaintiff charging O’Brien to make the bet in his (O’B.’s) own name, and not disclose the plaintiff’s connection with it.

This was an application for a writ of mandamus against the Treasurer of the County of Contra Costa.

<p>Mo errors can be assigned, which this Court will notice, on an instrument not embodied in the statement on appeal, or a bill of exceptions.</p> <p>The omission of the words “ be sold ” in a judgment of foreclosure, after the description of the premises, is a mere clerical error, which will not affect the judgment.</p>

<p>Appeal from the District Court of the Thirteenth Judicial District, County of Mariposa.</p> <p>This was a bill filed by the plaintiff to restrain the collection of taxes by the Sheriff for the year 1856, upon the ground that taxes for the years 1851-2-3 and 4 had been illegally exacted of plaintiff and paid by him into the County Treasury; and that the county was insolvent. The bill prays that this amount (some $13,800) may be adjudged a debt against the county, and so much as necessary set off against the taxes assessed against the plaintiff for the year 1856, and a decree for the balance rendered in his favor. The defendants answered, denying generally that any illegal tax had been exacted of the plaintiff; and also, that the county was insolvent. There was no proof taken, the Court passing upon the motion for the injunction on bill and answer. The Court below granted the injunction and defendants appealed to this Court.</p>

This was an action of ejectment, for a lot in Placerville. From the findings of the Court it appears, that in 1852, plaintiff purchased the premises in question from one Jane A. Shearer, who was in possession; that his deed was recorded, and that he remained in possession under it for some months, when he made a verbal sale of the lot to one Alex.

This was an action of ejectment to recover possession of one undivided fourth interest in four mining claims, and also one undivided forty-eighth part of a flume for conducting water to said claims.

This was a bill in equity to quiet title to a lot of land in the city of San Francisco. The facts are as follows : In 1854 the plaintiffs were possessed of a lot of land in the city of San Francisco, which they occupied as a homestead. In December of that year they executed a mortgage of the premises to Mills and Yantine, to secure a debt of the husband.

This was a bill for an injunction to prevent the defendant from selling certain property of plaintiff’s for the delinquent tax of 1855. The statement of facts in this case was agreed to, and as disclosed by that agreement, is as follows: In 1855 the plaintiff was the owner of a large tract of land known as “ Las Mariposas.'” In that year, the property was assessed for State and County taxes, and the amount of tax due thereon was $8,000.

<p>Where there is no statement embodied in the record, this Court will look only to the judgment roll.</p>

<p>Appeal from the District Court of the Sixth Judicial District, County of Sacramento.</p>

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

<p>Appeal from the District Court of the Twelfth Judicial District, County of San Francisco.</p>

This case was before this Court upon a former occasion. (8 Cal. R. 503.) Upon another trial in the District Court, some additional facts were proven. The material facts, as they now appear, were substantially these: In December, 1858, Hussey, Bond & Hale sold to Barker & Paddock 6,649 barrels of flour, then on store with Tilden & Little. The sale was negotiated through J. R. West, a broker.

<p>Where the parties in the Court below stipulated that a motion for a new trial should be denied, they cannot question, in this Court, the correctness of an order denying such motion.</p>

<p>Appeal from the District Court of the Twelfth Judicial District, County of San Francisco.</p>

<p>Appeal from the District Court of the Twelfth Judicial District, County of San Francisco.</p>

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