Volume 12 — California Reports

This was an action of debt on a decree for a sum of money obtained by the plaintiff against the defendant, in the District Court of Nevada county. The case was tried without a jury.

<p>A deed of release, conveyance and partition, providing for the appointment of commissioners to make partition of the land therein described, according to certain terms set forth in the deed; and also, by its terms, providing that the release shall take effect upon the making the partition and report, by the commissioners, of a map of the partition, which together with the deed, is to be handed over to one E who is to file the same for record in the proper office, is sufficient to estop a party thereto from controverting the deed.</p> <p>On the happening of the event the deed became effectual as a partition and release. When parties go into a partition of property upon certain terms and conditions, each to receive a several portion of a common estate, the instrument of partition, founded upon mutual releases, itself is such affirmation of interest and title on the part of each as to estop him to deny that he did have interest and ownership in the premises ; and the release and conveyance of his interest to his parceners is evidence of title in his grantees which he cannot dispute.</p> <p>Where such commissioners, in pursuance of a contract of a portion of the parties executing such deed, allotted to one G, who was not a party to the deed of partition and release, one hundred acres, and where the defendant claimed, through the parties executing such contract, and both contract and deed were upon record at the time of the defendant’s purchase : Held, that the defendant, in contemplation of law, had notice of such contract of his predecessors and vendors, and that he is bound by it.</p> <p>Where such commissioners in the partition and allotment failed to divide and allot some marsh land, a part of the tract, and where no proof was offered that this land was of any value, or that the division made was affected in any manner by the failure to .divide or allot it, or that the allotments made would in any degree have been affected by the allotments of this, or that any injury resulted to any one interested in consequence of this omission; and where important rights have vested under the partition, this Court would not be warranted in holding the action of the commissioners void, because of the failure to divide and allot the marsh land.</p>

This was an action for damages for the diversion of water from the ditch of plaintiff. The facts are stated in the opinion of the Court, with the exception of certain instructions which were given by the Court to the jury. The instructions given by the Court, at the request of the plaintiff, are as follows: “ 1.

The facts of this case, as detailed hy the opinion of the Court, are as follows : Bircham entered into a recognizance, with sureties, to appear and answer the charge of manslaughter. Afterwards an indictment was found against him for this offense. On the twenty-ninth of January, 1853, the defendant was called in the District Court, and not appearing, his undertaking was declared forfeited.

This is an appeal by defendant from a pro forma judgment rendered for the plaintiffs in an action instituted to try the legality of the tax levied on the money expended in the purchase of mining claims.

This was an action to recover the possession or the value of certain personal property, comprising the furniture, fixtures and stock of the “ Empire State Saloon.” The property was, on the nineteenth day of February, 1857, seized by the defendant as Sheriff of San Francisco county, under an attachment against one Wilson.

This was an action brought to recover of the City of Sacramento money paid by plaintiff, as an assessment upon his lots, for the grading and improving the streets adjacent thereto.

<p>Appeal from the Ninth District, County of Tehama.</p> <p>This was an action for damages for the non-delivery of a quantity of wheat purchased by plaintiff of defendants.</p> <p>The facts as stated by the Court are as follows : H. M. Stone, the agent of the plaintiff, contracted with the defendants for the purchase of a quantity of wheat, at the price of two cents and a half per pound, to be delivered upon demand and paid for on delivery. The contract was made by Stone, in his own name, without disclosing his principal. Within the time limited by the contract, plaintiff, through Stone, notified the defendants that he was ready to receive and pay for the wheat under the contract, and demanded a delivery, which the defendants refused. The contract price of the wheat was two and a half cents per pound, and the Court finds that at the time of demand and refusal to deliver, it was worth four cents per pound. Plaintiffs had judgment for the difference between the contract price and the actual value of the wheat, and from this judgment the defendant appeals.</p>

This action was brought in the Court below by the respondent to recover of the appellants the sum of five hundred dollars, an alleged balance of account for flour sold and delivered, and for packing done for appellants. The answer denies any indebtedness for flour, and admits the claim of respondent for five hundred dollars for packing goods, but pleads a promissory note in defense.

<p>Appeal from the Sixth District, County of Sacramento.</p> <p>This was an action of assumpsit to recover the value of certain cattle, the property of plaintiffs, unlawfully taken by the defendant.</p> <p>The complaint is in two counts, trover and assumpsit. The defendant demurred to the complaint on the ground that two causes of action were improperly united; to wit, trover and assumpsit. The record does not show how this demurrer was disposed of, but it is supposed to have been overruled, as the cause was tried by a jury who returned a verdict for the plaintiffs. Defendant moved for a new trial, which was denied, and he appealed to this Court.</p>

<p>Where the vendee’s agent, in the purchase of a tract of land, has actual notice of a mortgage on the premises at the time of purchase, the vendee will be presumed to have taken the property subject to the mortgage.</p>

This was an action of assumpsit to recover a sum of money. The facts as they appear in the opinion of the Court, are as follows : As' appears from the record in this case, Strobe ivas indebted to Wheatley, and Wheatley to Howel, and Howel to Wilcoxson & Co. To pay his debt, Wheatley gave Howel an order on Strobe for $236, payable to bearer. This order is not set forth in the record, but is admitted by counsel to be in the following form: “ Sac. City, July 18,1857.

<p>Appeal from the Eleventh District, County of El Dorado.</p>

This was an action to enjoin the sale of certain real estate in San Francisco. This sale was attempted to be made under two executions issuing from judgments rendered in the late Superior Court of the City of San Francisco, at the suit of the defendants, Giblin and Kelly.

<p>In a hill to enjoin the issuance of bonds of the City and County of San Francisco by the Fund Commissioners created by the Act of April 20, 1858/for the claims approved by the Board of Examiners, it is necessary that some of the persons to whom the bonds are to be issued, should be made parties to the action.</p>

<p>Appeal from the Sixth District, County of Sacramento.</p> <p>This was an action of ejectment to recover possession of a lot of land in the City of Sacramento.</p> <p>The plaintiff deraigns title through one John A. Sutter and G. W. Hammersly. On the trial she, to lay the foundation for the introduction of secondary evidence, introduced one Stevens, who testified as follows:</p> <p>“ The plaintiff in this action was a resident of San Francisco county. Witness was acting as her agent and attorney in fact, and was conducting this suit for her ; he had made search for the original deed from Sutter to Hammersly and Murray, to ascertain where the deed was, and had made other diligent inquiry about the same, but was unable to obtain the original, or ascertain where it was, or whether it was in existence.”</p> <p>There was no other evidence offered to establish the loss of the deed. The Court below ruled that this evidence was sufficient to account for the loss of the deed; and thereupon a certified copy was given in evidence : to which ruling of the Court the defendant excepted. Plaintiff had judgment. Defendant moved for a new trial, which was denied, and he appealed to this Court.</p>

This was an action by bill to restrain the Board of Supervisors from issuing bonds, in pursuance of an Act of the Legislature, to the San Francisco and Marysville Railroad Company. The action was against the Board of Supervisors of Yuba county— the Railroad Company not having been made parties. Upon a final hearing of the case, the Court ordered the injunction to issue; from which order the defendants appealed to this Court.

This was an action to recover damages for the wrongful issuance of an injunction or restraining order. The facts, as detailed by the opinion of the Court, are as follows : On the third of November, 1856, the plaintiffs brought suit against one Arronson, of Sacramento, to recover the sum of ten thousand and one hundred dollars, and issued an attachment and levied upon his property.

<p>Where a sale of a vessel is made, part cash, and the balance of the purchase money to be paid upon delivery by the vendor to the vendee of a good title and register of the vessel, to recover the balance the vendor must show an offer on his part to comply with the agreement.</p>

<p>Appeal from the Probate Court of the City and County of San Francisco.</p> <p>The following are the facts upon which this appeal is based, as they appear in the opinion of the Court :</p> <p>The administratrix, who is the widow of the deceased, presented her final account for settlement to the Probate Court. In this account she charged herself only with one moiety of the common property, omitting to account for the other part of the common property or the homestead, or its rents and profits.</p> <p>The Probate Court approved the account as rendered, except as to the omission to charge the administratrix with the whole of the common property, as well as the homestead, and ordered that a new account be filed charging the administratrix with the whole of the property of intestate, including the homestead. From this order an appeal is taken.</p> <p>The questions presented are : First. Whether the whole of the common property is assets of the deceased husband to be administered by his personal representative ; Second. Whether the homestead constitutes a portion of such assets.</p>

<p>Where two persons are employed by the claimants of a tract of land under a Mexican grant, as agents to procure the confirmation of the grant in the United States Courts, and services are thus rendered and expenses incurred by the agents : Held, that such service and expense are individual in their character, and not joint, and that separate actions may be maintained by such agents for their expenses thus incurred.</p>

The facts, as disclosed by the opinion of the Court, are as follows: This was an ejectment for a lot in the town of Coloma. The facts are, that L. W. Hastings and Peter Wimmer, 'on the sixth of July, 1850, confessed judgment in the District Court for Sacramento county for more than $9,000. The judgment was rendered in open Court.

This was an action for the recovery of a license tax claimed by the plaintiffs under the provisions of an ordinance of the city, which is as follows: “ Sec. 22.

This was an actión upon a promissory note made by the defendant and payable to the plaintiff or bearer. The note was dated on the twenty-first of September, 1857, and by its terms was to become due on the first day of January, 1858. The suit was commenced on the first of February following.

<p>An action brought by an agent, in his own name, for a trespass, in taking and converting coin from the possession of the agent, in which action the jury found that the coin belonged to the principal, and gave only nominal damages, is no bar to an action by the principal for such coin.</p>

<p>Where the principal of a line of stages, by letter to one acting as his agent in such business, wrote, “ You will do better by getting new drivers, and agents, and horses,” and such agent employed a sub-agent, and subsequently the principal was informed of such employment and made no objection; in an action for the wages of the sub-agent, Held: That the facts were sufficient to authorize the jury to find the fact of authority in the agent to employ the plaintiff.</p>

This action in the Court below was Ernest Cordier v. M. Schloss, Joseph Heilbroner, Joseph S. Kohn, Morris Kohn and David Scannell. At the date of the transactions in the case, the defendants, M. Schloss and Joseph Heilbroner (who are the only appellants), were merchants in New York, residing there and doing business under the name of Schloss & Heilbroner.

This was an action of ejectment. The cause was tried by a jury, and verdict and judgment for the plaintiff. Defendants moved the Court for a new trial, which was denied, and they appealed to this Court. A statement of facts sufficient to elucidate the points decided, appear in the opinion of the Court.

This was an action brought upon a promissory note in the words following: “ $700.

<p>In a contract for the sale of a certain number of shares of fruit growing on the trees of an orchard, owned in shares, where the vendor guaranteed to the vendee that the shares of fruit should be at his disposal on the trees, free from trouble and annoyance from other parties ; on breach of such contract, where no special damage is alleged, the measure of damage is the highest market price of the fruit on the trees at the orchard, if there is any market value for it there ; if not, then if the vendee is prepared to gather it and carry it to the market, the market value there, less the cost of gathering and carriage.</p> <p>If other persons were in possession of the orchard when vendee went there to gather the fruit, and if those persons forbade him or his agents and servants from going in and gathering the fruit purchased, and if the vendee could not have done so without risk of personal collision or violence, then the guarantee was broken, and though the vendee might have been permitted to gather a portion of the fruit bought, but not all, he had a right to come away and hold the defendant responsible on the guarantee, as he was not hound to take a portion of his contract.</p> <p>A jury cannot give compensation for loss of time, remuneration for wages paid, etc , unless there is an allegation in the complaint as to these matters.</p>

This was an action brought on a judgment obtained in New York. One William Young recovered judgment in 1851, in the Court of Common Pleas of New York, against defendant. Afterwards, in 1858, Young having died, his son of the same name took administration on his estate in the Surrogate’s Court of the City of New York. Young, the administrator, transferred and assigned to one Swartwout this judgment, who afterwards transferred it to the plaintiff, who instituted this suit.

The facts as disclosed by the opinion of the Court, are as follows : This bill was filed in the District Court of the Second District, on the fourth day of April, 1856. The bill charges a partnership between the plaintiff and defendant, and prays an account. Thompson was the only defendant to the bill, and filed his answer denying the allegations of the bill. Neither the bill nor answer is verified.

The facts, as disclosed by the opinion of the Court, are as follows : The appeal is taken by the administrator from a decree of the Probate Court, disallowing a claim of $2,000 and more. This claim originated under these circumstances : The intestate bought one-fifth of a tract of land called the Suscol Ranch. The ranch was incumbered in the hands of the vendees (from one of whom Knight purchased) for some $25,000 of purchase money due by mortgage.

This was an action of ejectment for a lot of ground in the City of Sacramento. The cause was tried in the Court below without a jury. The defendant had judgment, and the plaintiff appealed to this Court. The facts sufficiently appear in the opinion of the Court.

<p>Appeal from the Fourth District, County of San Francisco.</p> <p>This was a bill in equity to restrain the defendants from prosecuting certain suits, depending in the Courts of San Francisco, and from leasing and conveying certain real estate situated in said city.</p> <p>The bill charges that there has been a long course of vexatious litigation respecting certain real estate, and that the title has been determined in favor of the plaintiffs in said bill, and that several actions are still prosecuted and threatened to harass and annoy plaintiffs.</p> <p>Defendants had judgment in the Court below, and plaintiffs appealed to this Court.</p> <p>The other facts necessary to understand the points decided, appear in the opinion of the Court.</p>

This was an action brought by the plaintiff, Augusta J. Smith, against the defendant, Frederick C. Smith, for a divorce from the bands of matrimony between the said parties, and a division of the common property. The plaintiff asked for the dissolution of the marriage contract on the ground of the commission of adultery by the defendant, after his marriage with her. This charge was denied by the answer.

The facts, as disclosed by the opinion of the Court, are as follows : This was an action of trespass, in which the plaintiff complains that in April, 1857, he owned and possessed a third part of a tract of mining ground, and that defendants broke into and trespassed upon it, and dug up and converted the dirt and gold-bearing earth to the value of $2,000.

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

<p>In an action to recover the value of certain buildings standing on certain lots proof that one C, through whom plaintiff claimed, on the day of his entry, applied to one of the defendants for his consent to the erection of the buildings, is sufficient evidence to authorize the jury to infer knowledge on the part of C, of defendants’ title at the time of such entry.</p>

This was an action brought to recover back money deposited by the plaintiff with the defendant, as an indemnity for liability on a bail bond for the appearance of the plaintiff.

This was an action of assumpsit, originally commenced in a Justice’s Court. The facts are as follows: On the fourth of May, 1857, the defendant, Harris, being indebted to Tandler & Co., executed to them a certain instrument, which, after giving a schedule of goods, reads as follows : “ The above mentioned goods, amounting to 11,912.96, I have delivered into the possession of Messrs.

This was an action brought by the plaintiff against the defendants, Kinzer and wife, to extinguish a claim of title by the defendants to certain real estate in the City of San Francisco. Kinzer, the husband, in his answer disclaimed all pretensions to title in himself. Rebecca, the wife, sets up title by a mortgage upon the premises, and asked that the same may be foreclosed for the benefit of her separate estate.

<p>Appeal from the Tenth District, County of Yuba.</p> <p>The defendant was indicted and convicted of murder in the second degree. The case came to this Court, on appeal, from Nevada county, and at the April Term, 1858, (9 Cal. 298) the judgment of the Court below -was reversed, and a new trial ordered. Subsequently, a change of venue was had to Yuba county, where a trial was again had, and the defendant again convicted. The case now comes before this Court, on appeal from the judgment rendered in Yuba county. There are no points of law decided which would justify the publication of the facts. The questions determined are peculiarly applicable to this case; and if the facts were spread out at large, no benefit could result to the profession therefrom.</p>

This was an action brought in the Court below to set aside a judgment rendered therein in favor of John Jones., assignee of Marcus New-mark, and against Davis Levy, upon the ground of fraud, and for an injunction to restrain the collection of the same, etc. The bill of exceptions discloses the following facts : Davis Levy . executed and delivered a promissory note to Marcus Newmark.

The plaintiff filed his hill in the Twelfth District Court, to restrain the defendant, Tax Collector of the City and County of San Francisco, from selling certain property of plaintiff, described in his complaint. A temporary injunction was first ordered, and, on a final hearing, the same was made perpetual by a decree of said Court. From that judgment the defendant appeals to the Supreme Court. The facts necessary to explain the decision appear in the opinion of the Court.

<p>Moore y. Patch, Tax Collector, (ante 265) affirmed.</p> <p>A party seeking to enjoin the collection of tax assessed upon his property, upon the ground that the law provides for the meeting of the Board of Equalization for the correction of the tax list, and that the Board did not meet as required, must show in his bill that there was error to be corrected in his list.</p> <p>Nor can such party enjoin the collection of the tax upon the ground that notice was not given of the meeting of the Board, as required by law, unless he shows that there was error in the assessed value of his property to his prejudice.</p>

This was a biE in equity to set aside a judgment against appellant under the foEowing circumstances : The defendant, in November, 1853, loaned to J. M. Anderson, president of a joint stock association, the sum of $1,775, for which Anderson gave his notes signed by himself only as president of the company.

<p>Plaintiffs and one C., partners in the mercantile business, purchased of defendant goods on credit, which were shortly afterwards sold by plaintiff and his partner at a sacrifice, and the proceeds immediately invested in a homestead in the name of C., who was the brother-in-law of plaintiff. Defendant subsequently caused plaintiffs to be arrested upon the charge of cheating, from which arrest they were discharged. Afterwards, defendant caused plaintiff and 0. to be arrested on a charge of concealing property with intent to defraud and delay their creditors ; the charge was dismissed as to plaintiff, and C. was sent up to the Criminal Court to answer. Plaintiff thereupon brought his action against defendant for malicious prosecution; Held, That if plaintiff was entitled to any damage, lie could recover only the actual damage which he sustained by the arrest.</p> <p>Malice cannot be presumed in a prosecution where the defendant has incurred all the moral guilt of the charge, although he may have evaded the penalty of the law.</p>

<p>Where there is no properly authorized statement on appeal; Held, That the special verdict of the jury is conclusive of the facts found.</p>

<p>The Supreme Court will not entertain jurisdiction in cases where the record fails to show that judgment and costs amount to over two hundred dollars.</p>

<p>Appeal from the County Court of El Dorado County.</p> <p>This was an application by the plaintiff, Fisk, to the County Court of El Dorado county for a discharge from his debts, upon the ground of insolvency. Several of Fisk’s creditors filed their objections to his discharge, alleging that he had made a sham and false deed of his property, which was not included in his schedule. The question of fraud was tried by a jury. The Court gave certain instructions to the jury, which appear in the opinion of the Court. The jury found that the question of fraud was not sustained, and the plaintiff was discharged. The creditors appealed to this Court.</p>

<p>In an action of foreclosure of a mortgage brought by the administrator upon a note and mortgage given to the intestate in his lifetime, a witness, whose wife is a sister and heir of the deceased, is incompetent'upon the ground of interest.</p>

This was a bill filed in the Court below to enjoin the collection of a judgment obtained in a Justice’s Court. The judgment was obtained by Allen against Chase, upon an order of the Justice publishing the summons in the action. The order was obtained upon the affidavit of Allen ; the substance of which is set out in the opinion of the Court. Defendant Chase had judgment in the Court below, and Allen, one of the defendants to the bill, appealed to this Court.

<p>The old and unmeaning distinction between sealed and unsealed instruments is done away with by our statute, and the consideration of a sealed bond may be impeached by the obligor, in the same manner as a promissory note by the maker. The intention of the Legislature was to place bonds and notes on the same footing in respect to defense.</p> <p>To constitute a consideration to a bond or other instrument in writing, it is necessary that some advantage to the promisor, or injury to the promisee, should occur. A past and executed consideration is not sufficient. When the debt of A, already created, is promised to be paid by B, no new term being introduced in the contract, as delay, or the like, it is not binding upon B. It is a mere understanding to pay another’s debt, and is within the Statute of Brands, and without the statute, would be void, as being without consideration.</p>

<p>Appeal from the Fourteenth District, County of Sierra.</p> <p>A statement of facts appears in the opinion of the Court.</p>

<p>When an indictment for murder is used as a substitute for, and in place of, an indictment for manslaughter, it must, where time is material, contain the averment as to time, which would be essential in an indictment for manslaughter.</p> <p>It is generally true that every essential fact must be stated in the indictment, and this means every fact material to the offense of which the party may be convicted, and the allegation of a day within the period of limitation, is material, whenever the offense is subject to limitation.</p> <p>If the defendant is out of the State a portion of the time, it must be so averred in the indictment. Prima fade, the lapse of time is a good defense; and where the statutory exception is relied on, it must be set up.</p>

<p>Appeal from the Twelfth District, County of San Francisco.</p> <p>This was an action to recover the possession of a lot of land in the City of San Francisco.</p> <p>The allegations of the complaint are briefly stated in the opinion of the Court. The defendants demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the Court below, and judgment given for defendants. The plaintiff appealed to this Court.</p>

This was an action for special damage, against the defendant, as Sheriff of the County of Siskiyou, for a failure to deliver to the plaintiff a deed to certain real estate purchased by the plaintiff at an execution sale, made by the defendant as Sheriff of said county. The defects of the complaint are stated in the opinion of the Court. Defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action.

This was an action to restrain the defendant, as Tax Collector of the City and County of San Francisco, from the collection of a large amount of State and county tax, assessed upon the property of the plaintiff. The bill avers a number of irregularities in the assessment, and in general terms charges, that if the defendant is allowed to enforce the collection of the tax, “ great and irreparable injury will be done him,” (plaintiff).

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

<p>Appeal from the Eleventh District, County of El Dorado.</p> <p>This was a bill filed in the Court below, for the enforcement of a vendor’s lien to a quartz lode.</p> <p>The facts as disclosed by the opinion of the Court, are as follows :</p> <p>In this case the plaintiff seeks to enforce a vendor’s lien for the purchase money of a certain quartz vein sold by the plaintiff to the defendant, and charges that the other defendants are purchasers of the property from Waterman, with notice of this indebtedness. The bill shows that the plaintiff took a mortgage on this property for the payment of this purchase money, but avers that by reason of some defect in the deed or acknowledgement, it is not available as a security for the plaintiff’s debt. It is not very clear whether the plaintiff meant to rest his claim for relief on the mortgage or on the vendor’s lien, or on both. But, from the bill, demurrer and decree, we take it that he abandoned the notion of the validity of the mortgage, and relies on the vendor’s lien.</p> <p>The decree is for the enforcement of the paroi or tacit lien. Defendants appealed to this Court.</p>

<p>A subscribing witness to a written instrument, if within the jurisdiction of the Court, must be produced, or some sufficient reason given for his absence.</p> <p>Within the jurisdiction of the Court, is meant, within the State.</p> <p>A power of attorney, not affecting real estate, is not required to be recorded, and the fact of such instrument being acknowledged and recorded, does not authorize it to be read in evidence without proof of its execution.</p> <p>A witness who is called to impeach another, may answer that he would not believe such other witness on oath. This has been the uniform practice in this State, and no injury has resulted from such practice.</p>

This was an action brought to recover a sum of money due on a promissory note, and for a decree of sale of certain personal property pledged for the payment of the note. The action was against the maker and indorser; the note was indorsed after it fell due. The cause was tried in the Court below without a jury, and the Court found as a fact, that Herzog, the indorser, had no notice of the dishonor of the note.

This was an action to recover a sum of money. The facts, as alleged in the complaint, are as follow : Some time in the year 1856, J. A. Ripson sold to Matthias Woolsey an undivided one-sixth interest in a mining claim, and placed Woolsey in possession. The transfer was in writing ; Woolsey was to pay six hundred dollars, so soon as his share of the claim should yield that amount of money, after deducting one dollar per day for expenses.

<p>Where defendant conveyed by deed, to plaintiff, a tract of land, and there was subsequently a dispute between the parties respecting the boundary line of the land so conveyed, and the parties subsequently made an agreement fixing the line; Held, That in an action of trespass by the plaintiff against the defendant, for cutting timber upon the land previous to such agreement, the defendant was not estopped by the agreement in showing title in himself previous thereto. It was competent for the defendant to show that the deed did not embrace the locus in quo.</p> <p>The agreement would not retroact so as to show that to be a trespass which at the time was lawful.</p> <p>Held, in such case, it was error in the Court to instruct the jury, that the delivery of the deed and the cutting of firewood on the tract was sufficient evidence of possession. The cutting of timber, by itself, was neither possession or title as against the owner.</p>

<p>Defendants were indebted to plaintiff in the sum of $10,000; subsequently parties had a settlement, and defendants gave to plaintiff, in part payment of the debt, a note of third parties, for $2,500, which was received by plaintiff without objectian, and the same left with defendants for collection. The note was not paid at maturity, and plaintiff demanded the amount for which the note was taken in settlcment, of the defendants, who paid $1,250, and gave to plaintiff another note of same parties for the balance, payable in one year: Held, In an action by plaintiff against the defendants to recover the balance, that defendants are liable for the amount.</p> <p>Unless the note was received by express agreement as payment, it did not extinguish the debt. It only operated to extend the time of payment of the debt, to the time the note fell due, and hence the Statute of Limitations would commence running only from that time.</p> <p>The acceptance of a note of a third party, by the creditor, is considered as accompanied with the condition that the note shall be paid at its maturity.</p> <p>The obligation of the debtor to pay in such case, does not rest upon notice by the creditor of the non-payment of the note, but upon the fact that the note was not paid; and hence, delay on the part of the creditor in calling on the debtor, will not absolve him from his obligation to pay.</p> <p>A part payment of a demand, of one of two debtors, will not discharge such debtor making the payment, from the payment of the balance. His obligation is to pay the whole.</p>

<p>Appeal from the Court of Sessions, County of Contra Costa.</p> <p>The defendant was indicted for an assault with a deadly weapon, with intent to kill. He plead not guilty ; was tried by a jury who returned the following verdict: “We, the jury, find the defendant guilty as charged in the indictment.” Upon this verdict judgment was rendered, and the defendant was sentenced to five years’ confinement in the State prison. The defendant moved the Court to arrest the judgment upon the following grounds :</p> <p>1st. The facts stated in the indictment do not constitute a public offense.</p> <p>2d. The indictment does not substantially conform to the requirements of sections 237 and 238 of the Act regulating Criminal Practice.</p> <p>The motion was overruled, and the defendant appealed to this Court.</p>

<p>A mortgage of the homestead of the family, executed by the husband only, is void. To make such mortgage valid, the wife should join with the husband in the execution of it.</p> <p>Abandonment and adultery on the part of the wife will not divest the homestead of its character as such, nor will it defeat or impair her right to it as a homestead.</p> <p>The homestead right is as much for the benefit of the children as for the benefit of the wife.</p> <p>An order of the Probate Court setting apart property as a homestead, will not defeat a mortgage which has properly vested as a lien upon the property, where the mortgagor was not a party to such proceedings.</p> <p>It does not matter when or how the homestead was acquired, or whether it was common or separate property; it can only he conveyed in the manner prescribed by law.</p>

This was an action brought upon an award and agreement of the parties, submitting certain matters of difference between them to arbitration.

This was an indictment and conviction for the crime of murder. The grounds of the appeal sufficiently appear in the opinion of the Court.

This was a bill for the foreclosure of a mortgage. The action was brought upon notes and a mortgage executed by both of the defendants. The mortgage is in the usual form of a joint mortgage; and, to secure the payment of three several promissory notes given for the purchase money of a mining claim, grants, bargains and sells to the plaintiff the said premises.

<p>The failure of the officers conducting an election in a given district to be sworn as the Election Laws provide, will not invalidate the entire election, without reference to its influence on the general result.</p> <p>The rule is well settled, that the mere receiving and counting votes, improperly given, ■ will not invalidate an election.</p> <p>An act, however erroneous, which does no injury to a party, cannot be the subject of a legal complaint on his part.</p> <p>The fact that the ballot-box was temporarily out of the possession of the officers of the election, will not invalidate the election, especially where no fraud, collusion or suspicious circumstances are shown.</p> <p>The provisions of our statute clearly indicate that the Legislature did not mean that the returns of a candidate should be set aside, where an election was held at the proper time and place, and for the proper officers, unless it affirmatively appeared that there was such irregularity as effected the result of the election.</p> <p>Where such irregularities have occurred, it rests with the contestant to show them. The returns are prima facie evidence of the fact they import; and the returned candidate, after being commissioned, is prima facie entitled to the office.</p>

The facts as stated in the opinion of the Court, are as follow: This was an action of ejectment to recover a lot in Sacramento city. The title was in one William Glenn, against whom, on the eleventh of October, 1855, plaintiff recovered judgment in the District Court for Sixth District, and on the twenty-sixth day of July, 1856, the plaintiff became the purchaser, at Sheriff’s sale, made under the judgment.

This was an action to try the right to the office of District Judge of the Fourth Judicial District. Held: that “ Burbank is rightfully and legally in the possession of the office of Judge of the Fourth Judicial District or the State of California, and that he did not unlawfully usurp said office, as in the information alleged.” Relator appealed to this Court.

This was an action brought to try the right to the office of County Judge of San Mateo county. Held: did not go into effect until after the day of the election. On the eighteenth of April, 1857, an Act was passed “ To Reorganize and Establish the County of San Mateo.” This Act provided for the election of all the county officers on the second Monday in May, 1857.

<p>Where the evidence produced on trial in the Court below, is conflicting, and the question is one of fact, this Court will not disturb the verdict of the jury, on the ground that the case is an equity proceeding.</p> <p>A jury who have heard the evidence and observed the manner of the witnesses produced before them, have a better opportunity of forming a correct judgment, than an Appellate Court from merely reading the statement of the evidence.</p>

This was an action of ejectment to recover the possession of a certain ditch for the conveyance of water for mining purposes.

This was an action brought on the relation of the Attorney General, to try the right to the office of County Judge of Tuolumne county. The facts, as stated in the opinion of the Court, are as follow: On the twelfth day of August, 1858, the Board of Supervisors of Tuolumne county ordered an election for County Judge of that county, an office made vacant by the death of T. J. Jones, former incumbent, who died on the fourth day of the same month.

This was an action brought by the plaintiff for services rendered the defendant, in taking charge of certain property seized by the defendant, as Sheriff of Placer county, under a writ of attachment.

In this case the judgment was rendered May 18th, 1857. Notice of appeal was filed and served May 12,1858. On*the nineteenth of May, 1858, the parties stipulated that the statement used on motion for a new trial, should stand as the statement on appeal; respondent reserving his right to object to the appeal upon the ground that the same was not taken in time.

This was an action by one tenant in common against his co-tenant, who is in the sole possession of the premises, to recover a share of the profits of the estate. In the Court below, the defendant demurred to the complaint of the plaintiff upon the ground that “ it does not state facts sufficient to constitute a cause of action.” The demurrer was overruled. Defendant excepted, and subsequently answered.

<p>Ho appeal lies to the Supreme Court from an order of the Court below overruling a demurrer to an indictment.</p> <p>The statute authorizing an appeal from an order granting or refusing a new trial, or which affects a substantial right, does not apply to interlocutory orders made in the progress of the trial.</p>

<p>A statement which was filed in the Court below, on motion for a new trial, and is neither agreed to by counsel or settled by the Judge trying the case, has not sufficient authentication to constitute any portion of the record which this Court can notice.</p>

This was an action of ejectment for the recovery of mining claims. The complaint alleges that plaintiff was seized, possessed, etc., of the premises in controversy, and that on the first day of June, 1857, defendants entered, etc., and ejected him (plaintiff), and continue to withhold possession of said premises from plaintiff, and prays restitution. The answer admits the possession of defendants, but justifies under a claim of prior possession. The cause was tried by a jury.

The facts, as stated in the opinion of the Court, are as follow : The appellants filed this bill against the respondents in the District Court for the Twelfth District. They claim to be the heirs and distributees of one Auguste Deck, who died in this State, leaving a large real and personal estate. The defendant, Gerke, was the administrator of the estate, and took possession of the personal property and of the realty.

<p>Where three persons are sued on a promissory note given by one of the parties in the name of all as partners, and the evidence fails to show the partnership, or the authority of the party making the note, to bind all, and one of the parties is non-suited and judgment taken against the other two ; Held, That there is no error in such judgment.</p>

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

<p>Appeal from the Fifth District, County of San Joaquin.</p>

<p>AVhere the questions raised by the record, on appeal to this Court, have been repeatedly settled by this Court, or are decided by reference to plain elementary principles of law, the judgment of the Court below will be affirmed, with damages.</p>

This was an action brought by the plaintiffs to establish the right of the plaintiff, Bridget Farrell, as heir to a portion of the estate of Thomas Enright, deceased, and to recover the rents and profits thereof. The facts appear in the opinion of the Court.

<p>The ownership of goods is not changed when the claim to such ownership is based on a fraudulent contract.</p> <p>Where the defendant, intending.to deceive the plaintiff, got from him a bill of sale for goods under the representation that it was only to serve as a temporary security for the compliance by the plaintiff to furnish certain securities on previous indebtness, and at this time intended to refuse to receive such security, or give plaintiff the advantage of such new contract, the possession of such goods thus obtained was fraudulent, and the bill of sale is void.</p> <p>It is as much a trespass to take possession of goods under such circumstances, as it is to take possession of goods without color of contract. It is the using the form of a contract as a covering for the wrongful taking of another’s property, and it divests such possession of every attribute of a sale.</p> <p>In cases of fraud, subsequent acts are frequently resorted to for the purpose of showing antecedent fraud. Fraud being proven, in reference to the transaction under question, the criminal intent is necessarily a matter of inference for the jury. The dealing with property to-day by the vendor, as his property, is evidence to show the fraud committed in a sale a month ago. The subsequent acts are illustrative of the intent and character of the first.</p> <p>In such case, the plaintiff cannot recover the value of the goods and also the profits which might have been made on their sale; hence, the testimony of a witness who, after examining the sale hooks of the plaintiff, based his calculation of the loss sustained upon an estimate of the profits (according to the previous rates) which might have been made but for the trespass, is improper, and should not have been allowed.</p>

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

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

<p>Appeal from the County Court of the City and County of San Francisco.</p> <p>This was an action by the plaintiff, who was employed by the Superintendent of Public Streets of the City and County of San Francisco, to repair the street in front of the lot of defendant—he (the defendant) having neglected to do so, after notice from the Superintendent to that effect.</p> <p>The action was originally commenced in a Justice’s Court, and was appealed to the County Court, where the cause was tried without a jury, and a judgment rendered for plaintiff; from which the defendant appealed to this Court. The facts sufficiently appear in the opinion of the Court.</p>

<p>Appeal from the Fourth District, County of San Francisco.</p> <p>This was a bill to set aside a judgment upon the ground of fraud, and for an injunction restraining the collection of the judgment.</p> <p>The facts are thus stated by the Court:</p> <p>“ It appears that Dukes executed a note for $3,000, in favor of Jacobs, on the twentieth of October, 1857, payable on 6 demand, after date.’</p> <p>“ Suit was commenced on this note on the nineteenth of November, and judgment taken on the first of December.</p> <p>“ Plaintiffs, who are judgment creditors of Dukes, seek to set aside this judgment as fraudulent. No actual fraud is shown; the objections urged' by the appellant being that the judgment is fraudulent in law ; because—First. The suit by Jacobs was commenced before the note was due ; and, Second. Judgment was taken for more than was actually due on the note.”</p> <p>The Court below decreed that the judgment of Jacobs be set aside as to all over the sum of $3,000, and as to that amount the judgment stand; and the attachment issued and levied in the suit of Jacobs v. Dukes, have priority, as a lien upon the property seized, over that of the plaintiffs, as to the amount of $3,000 and costs of suit. Plaintiffs appealed to this Court.</p>

This was an action to recover a lot of wheat alleged to have been wrongfully taken by the defendant. The complaint prays judgment for the possession of the wheat, and also judgment for special damages occasioned by the wrongful taking and subsequent detention. The answer of the defendant justifies the taking by virtue of a judgment and execution in favor of Samuel Fisher and against E. 0. Kelty and Gr. 0. Reynolds.

This was an action of forcible entry and unlawful' det'áíííerí '-The action was originally commenced in a Justice’s Court','where ,fh^ cause was tried by a jury, and a verdict of “not guilty’’l-eturned:'''iipdri: which judgment was entered for the defendants. The'plifintiif appealed therefrom to the County Court of Marin, where the cause was tried anew.

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

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

<p>Appeal from the Fourteenth District, County of Nevada.</p> <p>This was an action against the defendant, Sheriff of Nevada county, for a failure to make a levy and sale of property—previously attached in the same suit—under an execution issued upon a judgment in favor of plaintiff and against Pultney & Armstrong.</p> <p>Plaintiff also claimed the penalty of two hundred dollars given by statute for failure of the Sheriff to return the execution within sixty-days, as therein commanded.</p> <p>The testimony, as well as the findings of the Court, disclose the following facts:</p> <p>The plaintiff, Sanford, brought suit against Pultney & Armstrong for four hundred and twenty-nine dollars; sued out an attachment, and placed the writ in the hands of the Sheriff, on the eighth day of February, 1858.</p> <p>On the same day the Sheriff levied said writ upon personal property of Pultney & Armstrong (then defendants) sufficient to satisfy Sanford’s claim.</p> <p>The Sheriff did not remove the attached property, which consisted of saddles, horses, buggies, etc., but left it all in the stable where it was attached, and in the possession of Armstrong, one of the (then) defendants, who continued in possession, and conducted the business (livery stable keeping) as he had done before.</p> <p>On the fifteenth of March, 1858, one J. B. Lobdell commenced suit with attachment against Pultney & Armstrong—placed the writ in the hands of the Sheriff, who levied it on the morning of the sixteenth, upon all of the personal property then in the possession of the defendant Armstrong.</p> <p>On the same day Sanford recovered judgment in his suit against Pultney & Armstrong, and in the evening of that day, and after the levy of Lobdell’s attachment, placed his execution in the hands of the Sheriff, who proceeded to levy it upon the property in the possession of Armstrong. ,</p> <p>Neither Pultney or Armstrong owned any other property whatever in the county.</p> <p>Lobdell afterwards recovered judgment against Pultney & Armstrong—took out execution—under which the Sheriff sold, and paid the proceeds to Lobdell, which were only sufficient to satisfy Lobdell’s judgment and costs.</p> <p>On the trial, the defendant offered to prove that plaintiff verbally directed the defendant to put Armstrong in possession of the property attached at the suit of Sanford as keeper.</p> <p>This evidence was objected to, upon the ground that the statute required such instructions to be in writing. The objection was sustained by the Court, and defendant excepted.</p> <p>Plaintiff had judgment for the full amount of his claim, and defendant appealed to this Court.</p>

This was an action brought to recover á judgment against the defendants in the sum of $48,154.14, for services rendered by plaintiff under a contract with the Jackson Water Company, for the construction of a ditch or canal, and also for the enforcement of a mechanics’ or laborers’ lien upon the work.

This was an action for damages resulting from the careless and negligent construction of a dam by the defendants, across a stream, and the consequent injury therefrom, to the plaintiffs’ mining claim. The plaintiffs had judgment in the Court below, and the defendants appealed. The facts are sufficiently stated in the opinion of the Court.

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

This was an action to recover the possession of a tract of land, and for an injunction to restrain the defendant from cutting and moving timber therefrom. The land in controversy is probably a part of the public domain. The claims of both parties are stated in the opinion of the Court. The cause was tried in the Court below by a jury, who returned a verdict for the defendant, and judgment was entered thereon ; plaintiff appealed to this Court.

<p>Appeal from the Thirteenth District, County of Stanislaus.</p> <p>The facts are stated in the opinion of the Court.</p>

This was an action of ejectment. The facts are stated in the opinion of the Court, but will, probably, be better understood by setting forth the amended answer of the defendants, which presents the question upon which the opinion of the Court is based.