Volume 13 — California Reports

Ejectment to recover a lot situated in the city of Sacramento.. The plaintiff claimed under a deed from Wm. M. Carpenter, executed on the 16th of December, 1857. On the 15th of June, 1853, said Carpenter executed a deed of the lot in controversy to John Brannan, as Trustee, for the benefit of his wife, Mary Ann Carpenter. This deed recites that on the 9th of July, 1852, a marriage was solemnized between said Wm.

<p>The Board of Supervisors of a county is a special tribunal with mixed powers—administrative, legislative, and judicial—and jurisdiction over roads, ferries, and bridges, is given to it by statute. Its judgments or orders, cannot be attacked collaterally, any more than the judgments of Courts of Record.</p> <p>The statute, (Wood’s Dig. 460,) gives such Board discretionary power over the location of new bridges and ferries within a mile of those previously established. And if, in the opinion of the Board, public convenience requires, such new bridges and ferries may be so located.</p> <p>It is doubtful whether an appeal lies from the exercise of this discretion. But if it does, it must be made direct to some superior tribunal.</p>

Ejectment for premises situated in Butte County. In June, 1857, one Schiller and his wife executed a mortgage upon the premises in controversy to the plaintiff. This mortgage is in the usual form. The plaintiff foreclosed the mortgage, and on the sale had under the decree, became the purchaser and obtained the Sheriff’s deed. Under this deed he claimed.

<p>Appeal from the Eleventh District.</p> <p>Bill in equity to compel defendant to deliver to plaintiff a certain contract or agreement between defendant and the Bear River and Auburn Water and Mining Company, set forth in the opinion of the Court. Complaint alleged plaintiff to be the owner of said agreement by virtue of the Sheriff’s sale and return, also named in the opinion; that he had demanded of defendant the delivery to him, plaintiff, of the same, which demand was refused.</p> <p>Plaintiff further averred, that defendant had, previous to said sale, brought suit on said agreement in said Court against said company, which suit was then pending; that defendant was insolvent, and if he were permitted to collect the money due on said agreement, plaintiff would be irreparably injured.</p> <p>The prayer was for the delivery of the agreement, substitution of plaintiff in the place of defendant in said suit, and an injunction against any further proceedings by defendant therein.</p> <p>The answer denied most of the allegations of the complaint, and averred that the Bear Biver and Auburn Water and Mining Company had broken said agreement, to the damage of defendant, in the sum of thirteen thousand dollars, and that suit therefor was pending; that plaintiff is, and had been, for three years past, Secretary of the company and a large stockholder therein. The answer further charges, in substance, fraud and conspiracy on the part of plaintiff and the company, in breaking said agreement and in the issuance of the execution and the sale referred to, the object being to cheat defendant out of his rights by litigation and a secret sale of his property, of "which sale neither he nor his Attorneys knew anything until after it was over. The case was tried by the Court, and defendant had judgment. Plaintiff appeals.</p>

This was an action of ejectment. The defendant recovered judgment in the District Court. On appeal, the judgment was reversed by the Supreme Court from the bench—no opinion in writing being delivered. The reasons for the decision were stated orally. The counsel for the plaintiff afterwards presented a petition asking the Court to file a written opinion.

Action in a Justice’s Court on a note and account amounting to ninety-eight dollars and ninety-one cents. ■ Judgment for defen dan t for costs, seventy-six dollars and fifty-five cents. Plaintiff appealed to the County Court, where the judgment below was reversed and a new trial ordered in that Court.

<p>Where a promissory note was made payable to S. and previously to its delivery to the payee, was indorsed for the accommodation of the maker, by H. and brother and defendant, upon an agreement of the indorsers with each other that each would become surety if the other would; Seld, that the indorsers were guarantors and were jointly and not severally liable, in a suit by the payee, or a third person taking the note after maturity.</p> <p>To create a several liability, express words are necessary.</p> <p>The decision of this Court in Riggs v. Waldo, 3 Cal. 485, only goes to the extent of holding that a notice of protest is as essential to charge a guarantor as an indorser.</p> <p>Quere: Whether the intimation of the Court in that case as to there being no distinction between the undertaking of an indorser and that of a guarantor, is correct. The contract of indorsement is, primarily, that of transfer; the contract of guaranty is that of security.</p> <p>A judgment against one or more joint guarantors of a note bars the action against the others. When the contract is joint, and not'joint and several, the entire cause of action is merged in the judgment.</p>

The facts appear in the opinion. The Court below decreed: 1st. That defendants were first entitled to the water flowing in Mill Creek for the use of their saw-mill. 2d. That plaintiffs were entitled to the use of a sufficient quantity of the water of the stream to fill and supply their Ditch Bo. 2, at such times as the defendants were not using the same to propel their mill. ' 3d. That plaintiffs were entitled to the water to fill their Ditch Bo. 2, in preference to the…

<p>Ip in any case one partner can assign to another partner his interest in a firm claim and then become a witness for him, he cannot when the claim is for goods sold and delivered, because this is an unliquidated demand within the Practice Act.</p> <p>The granting of a nonsuit on the facts is a question of law, and, if the proper exceptions be taken, may be reviewed on appeal without motion for new trial.</p> <p>Nonsuit not proper where there is any evidence tending to prove the indebtedness.</p> <p>In a hill of sale of goods sold and delivered a recital that the consideration was paid, is only prima facie evidence of that fact, which may he rebutted or explained by parol.</p>

<p>Where no grounds or reasons are stated on motions for nonsuit and new trial, and no exceptions taken to instructions of the Court, errors cannot be assigned.</p>

To the facts stated in the opinion it may be added, that the Court below refused the following instructions asked by defendant : 1. That if the jury believe, from the evidence, that the notes on which this suit is brought were given by defendants, bona fide, as “ Trustees of the First African Methodist Episcopal Church,” for work, labor, and material furnished by, and services due, Stokes by the Church, then the plaintiff is not entitled to recover in this action. 2.

<p>Appeal from the Fifth District.</p> <p>For case see opinion.</p>

<p>Appeal from Tenth District.</p> <p>Ejectment. The only fact upon which the decision turns appears in the opinion of the Court.</p>

In 1853, J. C. Spencer became, and has since been, the owner of a lot in Shasta, upon which the building referred to in this case was erected, excepting, however, a small fraction not material to be noticed. In 1854, John Ball leased the lot of Spencer, and, in 1855, erected a building thereon, Spencer agreeing to sell Ball one-half of the lot at a price agreed on, and to pay one-half the cost of the building. Ball completed the building without assistance from Spencer.

<p>The authority of the Board of Commissioners, under the Act of May 1st, 1855, relative to a sale of the State’s interest in the water line front of the city of San Francisco, as defined by the Act of March 26th, 1851, is limited to the property within the boundaries defined by the Act; and a sale by them of lots not within those boundaries, is a nullity, and cannot constitute cloud of title. Hence an injunction against such sale will not lie.</p>

To the facts in the opinion add, that, by contract under seal, dated September, 1854, Dennis leased to plaintiff a tract of land for one year, under the stipulation in the lease, that plaintiff was to put in the crop of grain, and, after the expenses of sowing, harvesting, and threshing were paid, to give Dennis one-half, as rent.

Appear from the Fifth District. Plaintiff brought suit against the Yol cano Water Company on a note and mortgage executed by the Trustees of the company. The other defendants were the holders of a note and mortgage executed by said company, of even date with the plaintiffs, and with the agreement that the two mortgages should be paid pro rata. The company filed a general denial in answer. Some of the other defendants answered, but it is not material to notice the answers.

<p>Appeal from the Fourth District.</p> <p>Suit on notes of Defendant.</p>

<p>It is no ground of demurrer to a complaint, that the Christian name of one of the plaintiffs does not appear.</p>

<p>Land on which a vendor’s lien exists for the purchase money, may become a homestead, but the homestead right is subordinate to the lien. And after this right has attached, the husband cannot, without the assent of the wife, charge the land by an agreement to pay interest in addition to the purchase money.</p>

<p>In a suit to set aside a judgment confessed by a party to defraud his creditors, it is not necessary that plaintiff should be either a judgment or execution creditor. A lien acquired by attachment suffices.</p> <p>Hoyneman v, Dannenberg, (6 Cal. 376,) affirmed.</p> <p>A slight mistake in the computation of interest,, the date being given, is no evidence of fraud.</p> <p>Where judgment is confessed on a note, a portion of the consideration being advanced from time to time after the date of the note, which drew interest on the whole amount from date, a portion of the interest is fraudulent, and the entire note is void against creditors.</p> <p>McJKenty v. Gladwin, Hugg & Co. (10 Cal. 237,) affirmed.</p>

Suit on a note and mortgage executed jointly by defendants, Christie and Mitchell. The note was to the order of plaintiff, and dated April 3, 1855. On the 8th day of May, 1854, defendants had executed a note and mortgage on the same property to one Gallagher to secure the payment of $700. A judgment on this note and mortgage to Gallagher was had in the District Court of the Eleventh Judicial District, on the 19th of November, 1855.

To the case stated by the Court, add, that the defendants set up in their answer that the property was their homestead at the time of the execution of the instrument sued on, and that it was obtained from them under threats of a criminal prosecution. Defendants appeal.

<p>Appeal from the Twelfth District.</p> <p>The facts appear in the opinion of the Court.</p>

<p>Appeal from the Twelfth District.</p> <p>Action for divorce a vinculo matrimonii, on the ground of fraud. The facts appear in the opinion of the Court.</p>

The complaint avers title and possession in plaintiff, the title being derived from John A. Sutter, who claims under a Mexican grant; that the defendants wrongfully claim an estate and interest in the above described real property, adverse to this plaintiff and his title thereto, and found the same, as the plaintiff is informed and believes to be true, upon a certain pretended conveyance which they allege was executed by the said John A. Sutter, on the twenty-seventh day of…

<p>Appeal from the Sixth District.</p> <p>The case is stated in the opinion of the Court. Defendant had judgment. Plaintiff appeals.</p>

<p>Appeal from the Sixth District.</p> <p>For facts see opinion.</p>

This was a proceeding to contest the election of defendant as Judge of the District Court, for the Eighth District. It was brought before the County Judge of Klamath County, one of the counties of that district. The nature of the proceeding is stated by the Court. Defendant demurred to the complaint, for want of jurisdiction in the County Court.

<p>Appeal from the Tenth District.</p> <p>The case is stated by the Court.</p>

<p>The question as to the necessity of recording mining claims reserved.</p>

Appeal fvom the Fourth District. The Attorney-General filed in the Fourth District an information, setting forth that David Morgan and Isaac Leviclc had died seized of certain real estate, situated in the city of San Francisco, without heirs capable of inheriting, and claimed that the estate had escheated to the State.

Ejectment for a tract of land, being a part of the Jimeno Grant, in Colusa County. Plaintiff, in deraigning title from Jimeno, offered and read in evidence a copy of the grant, with translation attached. Next, he offered a book from the Recorder’s office of Colusa County, and asked to read therefrom, what purported to be a copy, in the Spanish language, of a deed from Jimeno to Larkin and Missroon, executed in 1847.

The bill was based upon an attachment levied by plaintiffs, as creditors of defendants, Chittle & Wardner, on the stock in the California Coal Company, transferred by them to defendant, Hammond. Plaintiff had judgment, and defendant, Hammond, who alone answered, appeals.

<p>Appeal from the Fifth District.</p>

Complaint averred as in syllabus. Defendant demurred: 1. That the complaint did not state facts sufficient to constitute a cause of action. 2. That several causes of action were improperly united, without being separately stated. Demurrer overruled, with leave to answer on payment of costs. Defendant excepted, failed to pay the costs, and final judgment was entered for plaintiffs. Defendant appeals.

Indictment for larceny. The instructions which it is stated, in the opinion of the Court, should have been given are so obviously correct, that it is useless to print them.

Petition for a writ of certiorari to the County Court of Yolo County. In 1851, plaintiff brought forcible entry and detainer in a Justice’s Court against defendant. Judgment was rendered for plaintiff for restitution of the premises, which judgment, on appeal, first to the County Court, thence on appeal, to the District Court, was affirmed in ¡November, 1851.

<p>Appeal from the Tenth District.</p> <p>The case was tried upon an agreed statement, on demurrer and answer, submitting the two questions discussed in the opinion of the Court, the Court below dismissed the bill. Plaintiff appeals.</p>

<p>In a bill for an injunction, the mere allegation of great and irreparable injury to a vested right is insufficient; the facts stated must satisfy the Court that the apprehension of such injury is well founded.</p>

On the 31st day of July, 1854, Edmund Laffan filed a bill in equity against Isaac E. Holmes and plaintiff, claiming that Holmes had been left by him as his agent in charge of certain real estate in the city of San Francisco; that he had, in violation of his trust, caused said property to bo sold on execution against him, Laffan, and had become the purchaser thereof, and afterwards had conveyed the same to the present plaintiff, James G-.

The Court below charged the jury, among other things, in substance, “that plaintiff had not proved any legal damages as resulting from defendant’s neglect; ” and also, “ that the power of Attorney did confer authority upon Haven and Briceland to borrow the money to complete the work, and that they, as his agents, had authority to make the alterations made in the plans after Hastings left the State in August, 1853, and more particularly in connection with the circumstances as…

<p>Appeal from the Fourteenth District.</p> <p>The mortgage to Redding was executed under the Chattel Mortgage Act, and was direct to him without expressing on its face any trust in favor of Fall et als. Plaintiff appeals.</p>

<p>New trial not granted on affidavit of the Attorney of record, that he as well as his client and witnesses were absent on the trial of the case, because of a verbal agreement by opposing counsel to give notice of day of trial, when such affidavit is met by counter affidavits by the opposing counsel, and when an Attorney did appear and contest the case on the trial.</p> <p>In an action of damages for diverting- the water of a river from plaintiffs’ mill, an averment in the complaint of possession of the land and mill, is sufficient against a trespasser, without averring riparian ownership or prior appropriation of the water.</p> <p>Where no words appear in the body of an instrument expressive of the intent to make it a sealed instrument, it will not he such, even though the characters [l. s.] are added to the signature.</p> <p>A general objection will not exclude a paper offered in evidence, unless on its face inadmissible or void.</p> <p>Though an instrument be inadmissible as evidence of title, because on its face it is doubtful whether it be the deed of the agent executing it or of the principal, still it may be admissible to show the date of plaintiffs’ possession; and if the agent was in the actual occupancy of the land, the paper would be good to show a surrender by him to plaintiff.</p> <p>Arguendo: Right to water acquired by appropriation may be transferred like other property.</p> <p>Arguendo: If by the erection, of a mill and the possessory right of land on a stream, the water he acquired, a transfer of the possession of the property to a vendee, as owner, passes the water right.</p> <p>Arguendo: An appropriation of water for mill purposes, stands on the same footing as an appropriation for the use of miners.</p> <p>Where a power of Attorney, not under seal, authorizes the agent to sell a saw-mill, dwelling, etc. by the execution of all needful instruments, sealed or otherwise, and the agent sells the right of the principal, by a paper not under seal, representing himself as the Attorney of the principal, and the vendee takes possession, and retains it for several years, he has an equitable estate in the premises, with the right to its full enjoyment, and this right, united to possession, enables him to maintain an action for interruption to Ms possession or injury to the property.</p> <p>The rule requiring an instrument to be executed or signed in the name of the principal, does not apply to instruments not under seal.</p> <p>If the name of the principal and the intention to bind him, appear in an instrument not under seal, the agent having authority, the principal alone will be bound, though the instrument be signed in the agent’s name only.</p> <p>A power of Attorney to sell “my saw-mill, dwelling, etc. said mill and other i/nprmements being situated,” etc. embraces the water privilege of the mill. Arijv/.ni : Where a party takes up a miE scat on public agricultural land, erects a saw-mill, dwelling, etc. and appropriates the water of the stream for the use ot the mill, he may use the water for a grist-mill erected at the same place years afterwards.</p> <p>It would require clear proof that the purposes of the water for the saw-mill had been fully answered, to hold that the title to the water was abandoned.</p> <p>This question cannot be raised for the first time on appeal.</p> <p>V. erects a mill and acquires a water right in 1850. In 1851 defendants appropriate for ditch purposes, water from the same stream, forty miles above the mill. In 1851 plaintiffs, M. & B. succeed to the possession, of V. Selcl: that plaintiffs may, possibly, recover damages for the diversion of the water, on their possession, without connecting themselves with the title of V. back to 1850; that defendants’ appropriation m 1851 could only be of the water not appropriated by V. there being no abandonment by him, and that M. & B. can jointly maintain an action for damages accruing after they came into possession.</p> <p>At all events, the objection that M. & B. have no common interest in the mill, etc. but claim title from V. under different rights, should have been taken by motion for nonsuit or upon instructions, the want of common interest appearing from plaintiffs’ evidence.</p> <p>The question of the Statute of Limitations cannot bo. raided on appeal, unless presented in some form on the trial below, even though it be pleaded.</p>

<p>Appeal from the Twelfth District.</p> <p>Ejectment for a lot in San Francisco. Defendants aver title in themselves. (See same case in 7 Cal. 479 ; 10 Id. 12.)</p> <p>The instrument of title relied on by defendants is in the following words :</p> <p>TRANSLATION.</p> <p>“ By this present I give ample and sufficient power to Don José de Jesus Roe to use or dispose of my lot, which I hold (or have) granted, as may best seem to him; and, in testimony, I give the present power in the place of Yerba Buena, the 6th day of October, 1846.</p> <p>Maximo Y. Fernandez.”</p> <p>On the trial defendants offered this instrument in evidence, in connection with testimony, that in 1846 sales of land in California wore, by custom, sometimes verbal, sometimes by simple writing signed by the vendor, and sometimes, where the value of the property was groat, by a writing before the Judge and witnesses. They also offered to show, in this connection, that the Spanish words in the instrument imported a transfer or conveyance to Roe in full property; a consideration paid by Roe to Fernandez, and an actual transfer and possession of the lot accompanying the execution and delivery of the instrument. •</p> <p>Plaintiff objected to all this evidence on the ground that it was incompetent to prove a sale or contract for the sale of lands. The Court sustained the objection and excluded the evidence, defendants excepting. Defendants then offered to prove a verbal sale of the lot from Fernandez to Roe, consummated by transfer of possession and payment of a consideration, offering the writing as a memorandum of said sale. On plaintiffs’ objection the evidence was ruled out, defendants excepting.</p> <p>Defendants offered, with all this evidence, to connect themselves with Roe by conveyances, and also to show in themselves or grantors a notorious and continued possession, with claim, of title since October, 1846. The Court ruled out the evidence, defendants excepting.</p> <p>Defendants also offered said instrument as evidence of a license to occupy the land, under which Eoe and those holding under him were entitled to a notice to quit before action brought. Same objection. Same ruling.</p> <p>The jury found for plaintiffs, and defendants appeal from the order overruling the motion for new trial, and from the judgment entered for plaintiff on the verdict.</p>

The main facts are stated in the opinion of the Court, but it is deemed best to insert those findings of the Court below, not stated: 1.

<p>Appeal from the Sixth District.</p> <p>From April, 1853, to April, 1856, the defendant acted as Recorder of the City of Sacramento, and during the interval there were had before him one thousand nine hundred and thirty-seven convictions for criminal offenses, prosecuted for and in the name of The People of the State of California. Upon the judgments, executions issued against the defendants for costs, and, upon such executions, there were returns of nulla bona. The defendant claimed throe dollars fee on each of said convictions against the County of Sacramento, and presented his claim, for allowance to the Board of Supervisors, and they rejected it.</p> <p>Judgment for defendant—plaintiff appeals.</p>

<p>Appeal from the Fourth District.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>The bill was filed by Bartol, Biddle & Eaton, against Baker, Lockwood, Baldwin & Jenkins. Subsequently, by consent, others were made parties as having some interest in- the decree sought to be set aside. Bill prayed an injunction against enforcing the judgment in Baker v. Riddle, and new trial in Baker v. Bartol. Baker demurred, for want of facts to constitute a cause of action, and that the Court had no jurisdiction of the subject of the action. Subsequently he answered, denying the allegations of fraud, etc.</p> <p>The case was sent to a referee by stipulation, who repiorted a judgment to the effect that plaintiffs were not entitled to any relief and that the injunction Originally granted, restraining defendant, Baker, from enforcing the judgment obtained by him against Biddle and Eaton, be dissolved.</p>

<p>Appeal from the Fourth District.</p> <p>The case is sufficiently stated in the opinion of the Court.</p> <p>The Court below first granted a preliminary injunction restraining the Sheriff from putting defendants in possession of the premises in dispute under the order or judgment of June 29th, 1857; and further ordering, that, if the Sheriff had already executed the writ of possession, the defendants should surrender the premises to plaintiffs.</p> <p>The bill was filed on the 8th day of August; defendants entered on that day, and the injunction being served, the premises were surrendered to plaintiffs.</p> <p>At the hearing the injunction was made perpetual, and the order of June 29th, 1857, vacated. The injunction issued against plaintiffs was dissolved. Defendant appeals.</p>

<p>Appeal from the Fourth District.</p> <p>For case, see opinion.</p> <p>The Court below first having overruled the demurrer, sent the case to a Referee “to take an account of the value of the interests in certain mining claims which were sold bjr the plaintiff to the defendant, as mentioned in plaintiff’s complaint, at the time of such sale; also, the excess of such value over and above the price paid by the defendant for the same mining interests; also, to take and state an account of the dividends declared from such mining interests, which plaintiff was entitled to receive and collect, and which were due and unpaid to the plaintiff at the time of such sale.”</p> <p>Upon the coming in of the report, finding one thousand five hundred and twelve dollars and fifty-eight cents due plaintiff, and upon the hearing of the cause, the Court decreed that the sale mentioned in the complaint was fraudulent, and that in consequence thereof, plaintiff was entitled to recover damages as per report of Referee,- with two hundred and thirty dollars and fifty-six cents costs.</p> <p>After motions to set aside report of Referee, and for new trial, were overruled, defendant appealed.</p>

<p>Ah assessment of land as “ Manee of land on Rancho Arroyo de San Antonio, ten thousand and ninety acres, at four dollars per acre, forty thousand three hundred and sixty dollars,” is sufficient; it appearing on the roll that the part of the ranch not assessed was comprehended within the plat of a town, certain lots in which were assessed on the same list to the same owner.</p> <p>The Board of Equalization has no power to raise the valuation of land as fixed by the Assessor, without notice to the owner. The general notice, of the sitting of the Board, by publication, does not amount to the notice required.</p> <p>If the Board raised the tax without proper notice to the owner, their action is void, and the assessment remains in full force.</p>

<p>Appeal from the Twelfth District.</p> <p>For case, see opinion.</p> <p>Defendants were insolvent. The case was tried by the Court; the defendants, Gladwin,rHugg & Co. not answering, the contest was between plaintiff and intervenors. Judgment was entered for plaintiff against defendants, and that the intervenors take nothing by their intervention. Intervenors appeal.</p>

<p>Appeal from the Fourteenth District.</p> <p>Suit against a Sheriff and his sureties for damages in not levying an attachment with due diligence.</p> <p>On the 4th of April, 1857, plaintiffs sued out a writ of attachment, in the Twelfth District Court, against Abbott & Edwards residents of Nevada City. On the next day, Sunday, between the hours of nine and ten, p. m. the writ was placed in the hands of defendant, Butterfield, the Sheriff, with instructions to levy, as soon as possible, on certain property of said Abbott & Ed-, wards, which was named. About fifteen minutes after the hour of twelve, a. m. of Monday, the 6th day of April, 1857, Clark & Co. brought suit, by attachment, against said Abbott & Edwards ' in the Fourteenth District Court, in and for Nevada County, and put the writ in the hands of one Bidwell, a Deputy of Butter-field. This writ was levied on all the property of Abbott & Edwards in Nevada City and County, about one o’clock, A. h. of said 6th day of April.</p> <p>The attachment of plaintiffs was levied at eight o’clock in the morning of the same day.</p> <p>Subsequently, plaintiffs and Clark & Co. obtained judgments in their respective suits) the property attached was sold in due course of law, and the proceeds being more than the judgment of plaintiffs, but less than that of Clark & Co. were paid over to the latter upon their execution.</p> <p>In September, 1857, plaintiffs issued execution, which was returned nulla bona by Boring, the then Sheriff. They also issued another execution, and placed it in the hands of Butterfield, ex-Sheriff, with directions to levy upon any property in his hands belonging to Abbott & Edwards, or to be found in said county, etc. Butterfield returned that he had no property in his possession or under his control belonging to them.</p> <p>At the date of the levy of said attachments and said executions, Abbott & Edwards had no property other than that seized.</p> <p>In July, 1857, they applied for a discharge in insolvency.</p> <p>The answer denied negligence.</p> <p>The case being submitted to the Court upon an agreed statement of facts, plaintiffs had judgment for the amount of their judgment against Abbott & Edwards. Defendants appeal.</p>

<p>The case is stated in the opinion of the Court.</p>

<p>Appeae from the Sixth District.</p>

<p>Appeal from the Twelfth District.</p> <p>For case see opinion.</p>

<p>A specific allegation of a contract, in a verified complaint, is not sufficiently controverted by an answer stating that defendant has no knowledge or information respecting the same, and therefore denies the same; and no evidence of the contract would be necessary.</p> <p>A contract, under Section 817, Practice Act, for the transportation of passengers from San Francisco to New York is an entirety, whether the entire voyage is to be performed in one vessel or not.</p> <p>And a breach of such contract at any point, as leaving the passenger on the Isthmus, renders the vessel liable.</p> <p>State Courts have jurisdiction in such cases, as per Warner v. Unde Sam, (0 Cal. G97.)</p>

The Appellants, plaintiffs below, brought an action of ejectment against Respondent, as defendant, for a parcel of land tying in the county of Solano. The title relied on by the plaintiffs, and with which they connected themselves, may be found in the case of The United States v. Bitchie, 17 How. S. C. 534—537, fully set forth.

The Court below held that a telegraph company was not a common carrier; was not in any sense an insurer; that a message had not any market value; and that the measure of damages was limited to the cost of the dispatch, which being two dollars and fifty cents, judgment therefore was rendered. Plaintiff moved for a now trial, which being denied, this appeal was taken in liis behalf.

<p>Appeal from the Twelfth District.</p> <p>Action on an account stated. Complaint and answer verified. The answer admits the purchase of the goods, as stated in the complaint, and avers that defendant agreed to pay fair market price. Denies that there ever was an account stated in which the balance alleged, or any balance, was found due plaintiff; denies that he ever promised to pay, or that, on a just accounting, defendant is indebted to plaintiff in the sum claimed.</p> <p>On the trial, plaintiff introduced a witness who testified in substance, that, as agent of plaintiff, he presented the account sued on to defendant, who examined it for some time, and said it was correct; but that there were arrangements for settling it in Mew York, and that if witness did not soon get advices that it was so settled, he defendant, would settle it with witness. Witness identified the account, and it was given in evidence.</p> <p>Plaintiff closed. Defendant offered in evidence the original accounts furnished by plaintiff, of which the account in evidence is a summary, showing what the articles were, and the prices charged, and then offered to prove that the articles were charged at more than fair market value. The evidence was ruled out, on objection, defendant excepting. Case closed.</p> <p>The Court instructed the jury, that if they believed the testimony of the witness, Belknap, in relation to the stating of the account, they must find for the plaintiff the amount claimed.</p> <p>Yerdict for plaintiff; judgment accordingly. Defendant appeals.</p>

The answer simply denies that the defendant wrongfully detains the property, etc. and avers that it was the property of Lavalle, against whom the Sheriff had a writ of attachment., issued in the suit of Mills & Vantine v. Lavalle, and that the property was seized and hold by the defendant, Scannell, as Sheriff, in that suit.

The Court gave two instructions: The first as stated in the opinion, and the second as follows : That, if Hodges bid in the property for himself, he would be liable, as just stated j but, if he bid for himself and Herrick, then he would be liable to ITerrick to account to him for Herrick’s proportion of any amount realized, after deducting Herrick’s proportion of necessary expenses; and that Hodges, as Herrick’s agent, had no right to dispose of the property so bid in…

Sandrie & Lange, Grocers in San Francisco, failed December 1,1857, having been in business about two years. On that day Alfred de Montader brought suit against them in the Twelfth District Court, on their note to him for fifteen thousand and eighty dollars, and attached their stock in trade. On several subsequent days various other creditors also levied attachments on the same stock.

Ejectment for a lot, being part of what was formerly known as the City Slip, bounded by Clay, Davis, and Sacramento streets and the waters of the bay, in the city of San Francisco. It is deemed unnecessary to state the facts. The whole controversy was as .to the construction of the Act of March, 1851, known as the Water Lot Act, relative to San Francisco, and the Act of May, 1851, referred to in the opinion.

<p>By the Mexican law, one-half interest in the community property vested in the wife upon the death of the husband, and was not subject to his testamentary disposition.</p> <p>The same rule prevails under our statute.</p> <p>The ease of the matter of the Estate of Buchanan, (8 Gal. 507,) affirmed.</p> <p>Under the Spanish and Mexican law, property acquired by husband and wife during the marriage, and whilst living together, whether by onerous or lucrative title, and that acquired by either of them by onerous title, belonged to the community ; whilst property acquired by either of them, by lucrative title solely, constituted the separate property of the party making the acquisition. The fruits, and profits, and increase, of the separate property, also, belonged to the community. By onerous title was meant that which was created by a valuable consideration, as the payment of money, the rendition of services, and the like, or by the performance of conditions, or payment of charges, to which the property was subject. Lucrative title was created by donation, devise, or descent.</p> <p>Where a Mexican grant contained the following clauses designated in the instrument as conditions, namely: “ 1st. Neither the grantee nor his heirs can divide, nor alienate the premises granted to them, nor place upon said premises any mortgage or other charge, even though such mortgage or charge bo for pious purposes, nor shall they convey the said premises in mortmain. 2d. He may inclose the premises without prejudice to the roads and tlic easements; he shall enjoy the premises freely and exclusively, devoting- them to such cultivation and use as ho may see proper. 8d. When the property shall be confirmed to him, he shall ask the proper Judge that he give him juridical possession in virtue of this title, for which purpose the boundaries shall be marked, and some landmarks shall he placed about said premises. 4th. The land which is embraced in this grant, is only that which is named in the petition of the grantee, and which is delineated in the sketch attached hereto, and the Judge who shall give him. possession thereof, shall make to this government a report of the quantity of land comprised in the grant.” Held, that these clauses were not properly conditions, and that there was nothing in any ef the provisions which was onerous or burdensome to the grantee, or which could be regarded as a valuable, consideration, moving the government to make the grant.</p> <p>Donations may be absolute, or accompanied with conditions, the performance of which may be essential to the enjoyment of the property donated. It would, seem that under the Spanish and Mexican law, a more comprehensive meaning was attached to the term donation than that usually given to it in our jurisprudence.</p> <p>Onerous conditions were not necessarily attached to grants issued under the colonization laws of Mexico.</p> <p>The land granted with the conditions above specified, constituted the separate property of the grantee, and passed to his devisees. The conditions did not change the transaction from that of donation to one of contract or purchase. The recital in the grant that the grantee solicited the land for his personal benefit and that of his family, does not control the operative words of the grant.</p>

The plaintiffs claim title under a Mexican grant, and a patent of the United States, issued upon its confirmation.

<p>ls no motion be made in the Court below to correct a clerical error disclosed by the pleadings, the error will be corrected in the Supreme Court at Appellant's cost.</p> <p>Mere indefiniteness of description in a mortgage is no objection to its enforcement as it is written, whatever the effect of the'sale under such a description. The mortgagor cannot complain.</p> <p>There is little, if any, practical difference between the Court ruling out testimony upon the strength of a fact proven to the Court, and permitting the case to go to the jury', and then denying effect to such testimony, upon proof of the same fact.</p> <p>A married woman cannot make an assignment of a mortgage without the concurrence of the husband. [The property was common.—Rep.]</p> <p>By the common law, a note payable to the wife is prima fade the property of the husband, and can be indorsed by him, but not by her alone.</p> <p>A party dealing with a feme is bound to inqu-re into her rights and powers. The fact that papers are drawn directly to the wife does not estop either husband or wife from refusing effect to her sole act.</p> <p>The case might be different if the husband represented the wife to be a feme sole, and with authority to deal as such with the common property, or assented to a transfer by her; but the fact that a note or mortgage is executed to her is not conclusive proof of any such representation.</p> <p>Where the complaint avers that the note and mortgage sued on were made to “E,” a married woman, and by her assigned to plaintiff, lie cannot recover, because the right to assign was in the husband; and this, too, where the proof was that both husband and wife assigned the note and mortgage. In chancery cases the party must recover according to tine pleadings, and not the proof, where there is a variance.</p>

Ejectment for a. lot in San Francisco. Complaint, among other things, avers that defendants entered under one Ford, and not otherwise; and, that plaintiff holds a title deraigned from Ford under mortgage sale. Defendant, Wilson, claims no interest in the lot except such as results from the possession by his wife; denies the title and possession of Ford, and sets np title in 1ns wife.

Action by plaintiffs against the defendants upon an undertaking executed by them, on an appeal to the Supreme Court, in the suit of M. Dore & Co. v. J. R. Hardenbergh. For the undertaking, see opinion of Court. The appeal in that case was duly prosecuted, and the judgment affirmed, with ten per cent, damages. Demurrers were interposed, and being overruled, answers were filed.

<p>Appeal from the Twelfth District.</p> <p>The case is stated by the Court.</p>

Bill to foreclose a mortgage, and give plaintiff priority over certain other mortgages and rights, claimed by virtue of a Sheriff’s deed, made in pursuance of sale thereunder, on the ground of fraud. .Defendants, Enos and Williams, had judgment, and plaintiff appeals.

<p>The words “ tenant in possession ” in Section 236 of the Practice Act, embrace the judgment debtor, as well as his lessee.</p> <p>The purchaser at Sheriff’s sale of a “water ditch,” is entitled to the rents and profits thereof from the date of the sale till the expiration of the time for redemption, as well from the judgment debtor in possession as from his tenant.</p> <p>Where statutes use words and phrases of a well-known and definite meaning in the law, they are to be expounded in the same sense in the statute.</p> <p>Where a judgment debtor remains in possession of a “ water ditch ” after Sheriff’s sale, and collects the rents and profits during the six months following, he is a Trustee of the fund for the purchaser at the sale, and, if the fund be in danger of loss, a hill in equity to account, will lie.</p>

For case, see opinion. The Court below sustained a demurrer for want of facts sufficient to constitute a cause of action. Plaintiff appeals.

For facts see opinion. The Court below decreed that defendants, Schwartz & Rosier, and Stanford, pay to Wood, according to the prayer of the bill, their proportionate share of the balance due on Wood’s judgment.

Bill in equity for an injunction. John Revalk being the owner of certain property situate in San Francisco, on the twenty-eighth day of June, 1854, executed a note and mortgage for two thousand dollars, to Lorenzo Lock and Louis Fontaeelli. On the nineteenth day of July, 1854, Revalk executed another noto and mortgage on same property for fifteen hundred dollars to Respondent, Charles Kraemer; both of which mortgages were recorded on the day of their respective dates.

The case is sufficiently stated in the opinion. The Court below granted a perpetual injunction against the payment of the fee. Defendants appeal.

The defendant demurred to the complaint, as set forth in the opinion, that it did nob-contain facts sufficient to constitute a cause of action. The demurrer was sustained, and plaintiff appeals.

Bill to foreclose a mortgage executed by defendant to Sullivan & Allen, and by them assigned to plaintiff.

<p>Appeal from the Third District.</p>

Demurrer to complaint. The bond is as follows, to wit: “ In the Superior Court, City and County of San Francisco : Chas. W. Crosby and Albert Dibblee v. A. T. Ladd and Frank D. Richardson.

For case see opinion. The complaint, in addition to the statement in the opinion, charges conspiracy on the part of defendants to defraud plaintiff out of his property; that Miller is irresponsible.

<p>Appeal from the Seventh District.</p> <p>The case is stated in the opinion of the Court.</p>

The note sued on was made by Taylor, one of the defendants, to the order of plaintiff. The guaranty, as stated in the opinion, was made by defendants, Clark & Beckh, on the face of the note, at the time of its execution by Taylor. Plaintiff appeals.

<p>Appeal from the Fifteenth District.</p> <p>For facts see opinion.</p>

The case is stated by the Court. The Court below, having ruled out all evidence of damage after August 29th, nonsuited plaintiff. The rulings will be understood by reference to the brief of Appellant. Plaintiff appeals.

August, 1856, Ami M. White obtained a restraining order from the Sixth District Court, in a suit by her against plaintiff, Joseph Prader and Prescott Robinson.

<p>Appeae from the Fourth District.</p> <p>The facts appear in the opinion.</p>

The complaint avers in substance that, in settlement of a transaction between the parties, plaintiff gave defendant a note. That, afterwards, discovering the amount was too much, in consequence of deceit practised by defendant, plaintiff induced defendant to make a new computation of interest, etc. and to agree to surrender the note upon payment by plaintiff of twenty-six hundred and fifty dollars, about one-half the note.

<p>Pleadings in Justices’ Courts are not held to much strictness. Where plaintiff avers he is administrator in fact of the intestate, and this is not denied in the answer, no further proof of plaintiff’s right to sue is requisite.</p> <p>Paying part of a ¡note when all is due is no consideration for an agreement to extend the time of payment.</p> <p>If, after verdict, no motion he made for new trial, the Supreme Court will not review the testimony.</p>

In addition to the instructions set forth in the opinion, the . others referred to are as follows : Second Instruction.—“ That if the jury believe that a want of proper skill or care of the driver, placed the passengers in a state of peril, and they had at that time a reasonable ground for supposing that the stage would upset, or that the driver was incapable of managing his horses, the plaintiff is entitled to recover, although the jury may believe, from the position in…

Forcible entry and detainer. The Justice rendered judgment for plaintiff. Defendant appealed to the County Court, filing with the Justice an instrument, in the following words, to wit: “Know all men by these presents, that we, John Zellers and José Silva, are held and firmly bound, unto John Canfield, in the penal sum of three hundred dollars, well and truly to be paid, firmly by these presents.

<p>Appeal from the Fourteenth District.</p> <p>The facts sufficiently appear in the opinion. Plaintiff had judgment of foreclosure, and defendant, Clark, appeals.</p>

Upon publication of notice under the Mechanics’ Lien Act, a reference was made to report as to the various liens. The referee found for defendants—the owners and the contractor. Judgment was entered accordingly, a motion to set aside the report having been overruled. Plaintiff appeals.

Mandamus. In the fall of 1858, at a general election, Turner was elected District Judge of the Eighth District for six years. He demanded his commission before January 1st, 1859. The commission was refused by the Governor, who issued a commission for the same office to one Haynes. The title of Haynes to the office was then tested by a quo warranto, in the suit of “ The People ex rel. Saunders v. Paynes, (ante,) and resulted in a decision by this Court adversely to Haynes.

<p>Appeal from the Ninth District.</p> <p>For case, see opinion.</p>

The facts are substantially stated by the Court. At the time of filing this suit, the Sheriff was about to sell the property in question, under the execution issued on the judgment of Woods against Bonny alone.

<p>In a suit on an injunction bond, defendant, to show that the injunction suit was still pending, offered in evidence, an oi'der from the Supreme Court, directing the Court below to fix the amount of a suspensive appeal bond, that Court having dissolved the injunction. Held, that the order was properly rejected, the defendant not offering to show that the bond and notice of appeal were given, and the transcript filed in the Appellate Court.</p> <p>Where a suit is pending in the Supreme Court on appeal, the judgment below is suspended for all purposes, and it is not evidence upon the questions at issue, even between the parties.</p>

Case made under the 337th Section of the Practice Act. Plaintiff presented his account to defendants, and they rejected it. The Court below entered judgment for plaintiff. Defendants appeal. Eor facts, see opinion.

<p>Appeal from the Fifth District.</p> <p>Bill in equity to restrain defendants from diverting the waters of Woods’ Creek from plaintiff’s ditch.</p>

<p>Appeal from the Sixth District.</p> <p>Ejectment. Plaintiff had judgment, defendant appeals.</p> <p>For case see opinion.</p>

Suit to recover a portion of a “ Tunnel Gold Mining Claim,” alleged to be wrongfully seized and worked by defendants, for damages and an injunction pending the suit.

<p>Appeal from the Fifth District.</p> <p>For case see opinion. The pleadings were verified. Plaintiffs had judgment, and defendant appeals.</p>

Facts stated by the Court. Scannell, as Sheriff, is made party in order to enjoin him from making a deed of the premises to Eiehn, who bought at the foreclosure sale, and to whom, it is averred, the Sheriff is about to make a deed. Plaintiffs appeal from a judgment for defendant.