Volume 14 — California Reports

In September, 1858, said Commissioners published a notice that they would redeem bonds to the amount of twenty thousand dollars, provided, that no bid would be accepted at a higher rate than par and interest. Accordingly, bids were offered to surrender twelve thousand dollars of bonds at par and interest. The next best offer was that of plaintiff, to surrender eight thousand dollars of bonds at five per cent, premium and interest.

<p>The Legislature, having vested certain duties in a public officer, for whose services compensation is allowed, may take those duties and the fees from the office before the expiration of the term, and confer them upon another officer.</p> <p>It seems the office of Sheriff and Tax Collector are constitutional offices.</p> <p>The Sheriff is not a judicial officer. And, though the offices of Sheriff and Tax Collector are distinct by the Constitution, yet they may be united in the same hands.</p> <p>Merritt v. Gorham, (6 Cal. 41,) and People v. Mimarás, (9 Id. 393,) affirmed.</p> <p>The Sheriff, being ex officio Tax Collector of foreign miners’ licenses, by an Act of the Legislature, may be deprived of the office of Tax Collector, before the expiration of his term.</p> <p>The Constitution affixes no period of tenure to the office of Tax Collector, nor does it provide any mode of appointment. So far as this office exists in the incumbent, it is an office created by legislative act. The Legislature may direct how it shall be filled, and how its duties shall be discharged.</p> <p>Smith v. Stillman, decided in 1853, (not reported,) to the effect, that after the Legislature has created an office contemplated, or provided for, by the Constitution, it cannot destroy the office of the incumbent during his term, overruled.</p> <p>People v. JluslceU, (5 Cal. 357,) affirmed.</p> <p>An Act of the Legislature, authorizing Boards of Supervisors to appoint a Collector of foreign miners’ licenses, is not unconstitutional. Assessors and Tax Collectors are constitutional officers, but it is not necessary, under the 13th Section of Article 11 of the Constitution, that every portion of the revenue pass through their hands. The Legislature may authorize the tax payer to pay his taxes directly into the treasury.</p> <p>The foreign miners’ license, though in some sense a tax, yet, probably, it is not so in the sense involved in the necessary duties of a Tax Collector—as a tax on land or personal property.</p>

The opinion of the Court shows the points of appeal. The pleadings were verified. The jury found damages for plaintiff, one thousand two hundred and ninety dollars. Judgment accordingly and defendants appeal.

The complaint, after stating that plaintiffs own a ditch constructed for the purpose of conveying water from Mormon Creek to Jackson Flat, etc. avers, that “ defendants have wrongfully built and constructed dams and flumes, and other obstructions, across said Mormon Creek and its tributaries, so as to turn the water of said creek and its tributaries off from, and out of, the natural channels thereof, to which said plaintiffs were of right entitled, thereby wrongfully…

<p>An indictment, under the Act of 1857, (p. 267,) for dealing the game of monte for money, need not state the particulars of the offense—as the persons present, the room, and the like. Under our law, an indictment is good, if it state the acts constituting the offense, in ordinary and concise language, and in such a way that a person of ordinary understanding can know what was intended.</p> <p>It must be direct and certain as to the party charge d, the offense charged, and the particular circumstances, when they are necessary to constitute a complete offense.</p> <p>The offense here, is dealing monte for money. This alone constitutes the crime.</p> <p>Where a statute introduces a new offense, without reference to anything else, an indictment, describing the offense in the words of the statute, is sufficient.</p>

<p>S. & B. in 1854, execute a mortgage on their property to H. Subsequently they execute another mortgage on the same property to plaintiff. Later—in 1855— S. conveys his interest to Y. the deed declaring the interest to he sold subject' to the two mortgages. Later, Y. sells to defendant, W. the deed containing the same recital as the last. In February, 1856, a decree of foreclosure of the first mortgage to H. sale of the property thereunder, defendant W. the purchaser, and in due time, a Sheriff’s deed to him, and possession. In June, 1856, foreclosure of the second mortgage to plaintiff, sale thereunder, plaintiff, the purchaser, and in March, 1857, Sheriff’s deed to him. Held, that plaintiff cannot maintain ejectment against defendant, W. on his Sheriff’s deed; that defendant, claiming title through foreclosure of the first mortgage, and being in possession, cannot be dispossessed by B.</p> <p>If plaintiff has any remedy against defendant, because of the recital in the deeds named, it is in equity.</p> <p>Assuming that, hy the recital, defendant became bound to pay plaintiff’s mortgage debt, still he had a right to pay it by a sale and purchase under the first mortgage.</p> <p>Query, whether a party buying an equity of redemption subject to a mortgage, assumes the payment of the mortgage debt. However this may be, clearly no one but the vendor or his mortgagee can enforce the obligation ?</p> <p>And if, with their consent, or a waiver by them of the right to enforce the assumpsit as a personal duty, with the intention of looking to the land alone as security, the mortgage debtds paid by sale of the premises to the vendee, such sale passes the legal title. And the second mortgagee must go into equity, making all persons connected with the two mortgages, parties, if he really have any rights.</p>

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

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

<p>Appeal from Twelfth District.</p>

<p>Is quo warranto to determine the right to an office, an allegation, that defendant is in possession of the office without lawful authority, is a sufficient allegation of intrusion and usurpation.</p> <p>If the complaint be defective in this particular, the defect must be reached by special demurrer.</p> <p>The place of Pilot in the port of San Francisco, is an office.</p> <p>The Board of Pilot Commissioners, under the Act of 1854, as amended by the Act of 1858, have only the powers conferred by the Act, and must appoint the Pilots from the classes of persons named therein. They cannot appoint a man as Pilot, who has not served two years on a pilot boat in the harbor, or commanded a vessel in and out of port for three years.</p> <p>Quo warranto lies to test the right of an appointee of this Board.</p> <p>No appointing power in this State can determine conclusively upon the capacity of the appointee to hold office. That question may be examined in the Courts.</p>

<p>A whit of attachment is effectual to change the title of personal property, only from the time of levy.</p> <p>A levy may be good as against the defendant in the writ, and not good as to third persons. The conduct of the defendant may make the levy good, by way of waiver, or estoppel, or agreement.</p> <p>As to third persons, there can be no levy when the officer does not know the subject of the levy—as where he stands at the door of a store, which is locked, and keeps others out. The levy dates from the time he gets into the store and takes possession.</p> <p>After a petition and schedule in insolvency are filed, the control and dominion of the insolvent’s property are transferred to the Court. And a creditor cannot, after such filing, certainly not after the order staying proceedings, seize the property. The order operates by its own force from its date, and no notice need be given of it to a Sheriff with a writ against the insolvent.</p> <p>Attachment issues against H. and the Sheriff proceeds with the writ to his store) which is locked and fastened, front and rear, by iron shutters. The Sheriff, with his Deputy, stands at the doors, guarding all entrance. H. now files his petition and schedule in insolvency, and the usual order of stay of proceedings is made. H. returns to the store and advises the Sheriff of these things. The Sheriff threatens to break open the store, when H. gives him the key, and he enters and levies. Held, that the Sheriff had no right to levy, and that the property vested in the assignee' of the insolvent, subsequently appointed, by relation, from the filing of the petition and schedule.</p>

There is no necessity for any statement of facts. The question turned upon the charge of the Court below as stated in the opinion. The jury found for defendant, judgment accordingly, and plaintiff appeals.

<p>Appeal from the Sixth District.</p> <p>Mandamus was denied, and plaintiffs appeal.</p> <p>See opinion for facts.</p>

The facts are sufficiently stated in the opinion. The Court below, on motion for nonsuit, and during the trial, made rulings upon the doctrine of fixtures, the opposite of the results reached by this Court, and it is not necessary to repeat them. The jury, under instructions, found for plaintiff. Defendants appeal.

<p>Appeal from the Twelfth District.</p> <p>Action of damages for conversion of wheat.</p> <p>In addition to the agreement set ont in the opinion of the Court the following are the facts:</p> <p>January 4th, 1858, plaintiff and one Ellis, through Little, as broker, purchased some wheat, of which two hundred and three sacks are in controversy. They stored the wheat in North Point Warehouse, of which defendants were owners. At the date of the agreement above. Little was insolvent, to the knowledge of plaintiff and Ellis. January 15th, 1858, they pledged the wheat to Spring on a loan of four thousand dollars, and defendants, aware that it was a pledge and not a sale, issued their warehouse receipt to Spring. Plaintiff and Ellis paid the storage after this receipt. The money from Spring was applied toward payment of the wheat, and two thousand dollars of the proceeds of sales were applied on the Spring loan. January 23d, 1858, Ellis sold his interest to plaintiff. January 28th, 1858, Little procured an order from Spring on defendants, “ to bearer or Hanna & Ellis,” for three hundred sacks of wheat, covering the two hundred and three sacks in controversy. Plaintiff had recognized a prior similar order. Defendants delivered to Little thirty-four sacks wheat on this order. February 19th, 1858, plaintiff paid Spring in full, who transferred his warehouse receipt to plaintiff, indorsed, “ Deliver the within to order of E. H. Hanna without recourse on me.” Prior to this, Little testified on proceedings supplementary to execution, that he had no interest in the purchase or sale of the wheat aside from the net profits. February 22d, 1858, plaintiff presented to defendants the delivery order of Spring, and demanded the two hundred and three .sacks, which demand was refused, on the ground that the order by Spring to Little was outstanding; whereupon plaintiff notified defendants not to deliver the wheat to Little or his order.</p> <p>April 6th, 1858, Little sold the wheat to Kendrick & Smith for a prior debt, and gave them an order on defendants for the same. Defendants delivered the wheat to K. & S. upon their giving an indemnity bond against plaintiff's claim. Kendrick & Smith knew of this claim when they purchased.</p> <p>The case was sent to a referee, who found for plaintiff, and fixed the damages at the value of the wheat on the 6th day of April, 1858. The Court entered judgment accordingly, and defendants appeal.’ • ••</p>

<p>Exteeme cruelty, in our Divorce Act, means the same thing as the scesüia or cruelty of the English Ecclesiastical Courts.</p> <p>It may he defined, generally, to be any conduct, in one of the married parties, which furnishes reasonable apprehension that the continuance of the cohabitation would be attended with bodily harm to the other.</p> <p>Courts grant divorces, in such cases, not to punish an offense already committed, but to relieve the complaining party of apprehended danger. And the divorce may follow, even in the absence of any actual violence.</p> <p>But if there has been actual violence, it must'be attended with danger to life, limb or health, or be such as to cause reasonable apprehension of future danger.</p>

Action for damages for injury to a lime-house and marble mill of plaintiff. The defendants were miners, having claims near the summit of a hill, sloping down to the Yuba River at an angle of thirty-five to forty degrees. These claims were worked by water, which, after use, was permitted to flow down the hill on to the premises of plaintiff, situated at the foot. The earth, gravel, and other refuse matter, thus thrown upon plaintiff’s premises, caused damage.

<p>Appeal from the Sixth District.</p> <p>Suit to recover certain goods wrongfully detained by defendant, as Sheriff. For facts see opinion. Plaintiff appeals.</p>

<p>Azr allegation, in a verified complaint, that “defendants wrongfully and unlawfully entered upon and dispossessed ” plaintiff, is not sufficiently denied by a denial that “ defendants wrongfully and unlawfully entered and dispossessed ” plaintiff, because such denial admits entry and ouster.</p> <p>Where, in such case, the defendants deny ownership in plaintiff, and set up ownership in themselves, it is not error to instruct the jury that the only question for them to determine is as to who has the better right to the premises. Such instruction does not imply that plaintiffs can recover, even if they do not establish, prima facie, a title.</p> <p>For error in refusing to give an instruction to the jury, the Supreme Court will not undertake to determine how far the party excepting was prejudiced, but will reverse the judgment.</p>

<p>Appeal from the Sixth District.</p> <p>Plaintiff had judgment below, defendants appeal.</p>

<p>Air indictment for larceny, describing the money as “ three thousand doEars, lawful money of the United States,” is insufficient. The particular denomination or species of coin must be set forth.</p>

<p>Mandamus does not lie to compel the Supervisors of a county to order a special election to fill vacancies in the offices of Assessor and Sheriff.</p> <p>It is difficult to see how Section 20 of the Act creating Boards of Supervisors, (Wood’s Dig. 694,) is unconstitutional. But the question is not here decided.</p>

<p>Appeae from the Probate Court, Los Angeles County.</p> <p>Juan, Rosa, and Pedro, Abila, Executors named in the will of Antonio Tgnacio Abila, deceased, filed a petition in the Probate Court of Los Angeles County, on the 15th October, 1858, praying that the will of Abila, deceased, be admitted to Probate, and that they be appointed Executors thereof.</p> <p>On the same day, the Probate Judge made an order, fixing the 1st of November, 1858, as the time of hearing. Also ordered, that citations issue, and be served upon Appellant, and others, heirs of the deceased, mentioned in the will, and residents of Los Angeles, directing them to appear on the 1st of November, 1858, and show cause why the will of Abila should not be admitted to probate. Also, that all persons interested in the estate of Abila be notified to appear on that day; and that the subscribing witness to the will be cited to appear.</p> <p>On the same day, a citation was issued, under the seal of the Court, and delivered to the Sheriff of Los Angeles, ordering Appellant and other heirs to appear on the 1st November, 1858.</p> <p>This citation was duly served upon Appellant on the 30th of October, 1858.</p> <p>On the 1st of November, 1858, Appellant appeared by her Attorneys, and moved the Court to dismiss the petition of the Executors, upon the following grounds:</p> <p>1. Because the citation was not served and returned a sufficient time before the hearing.</p> <p>2. Because the notice of hearing was not given by publication in some of the three weekly newspapers of Los Angeles County.</p> <p>The Court below overruled the motion to dismiss, and exceptions were taken.</p> <p>An answer was then put in contesting the will.</p> <p>Issues were framed, by agreement, and sent to the District Court for trial. At the March Term, 1859, of this Court, the issues were all found in favor of the Respondents, and so certified back to the Probate Court.</p> <p>The 23d of May, 1859, being set for the final hearing of the cause, the Appellant renewed his original motion to dismiss the petition, for insufficient service of the citation, which was again overruled, the whole cause submitted to the Court, and judgment rendered, affirming the will, and appointing the Respondents Executors thereof. Contestants appeal.</p>

The Board of Supervisors of Alameda County located and ■opened a road over plaintiff’s land. Plaintiff presented to the Board his claim for damages in the sum of seven hundred and ■sixty-five dollars. The Board allowed one hundred and fifty dollars. Plaintiff sues, and the Court below finds his damages to be one hundred and fifty dollars, and gives judgment accordingly. Plaintiff appeals.

<p>Bill filed by a judgment creditor of J. upon order of Court permitting it, against defendants as executors.' Bill avers that the will of deceased “ directed, by mitten or oral instructions,” the executors to sell certain cattle, and retain the proceeds for the use and benefit of J. after first discharging his then debts. That it also declared that he, the testator, had made a secret assignment for J. which the executors would carry into effect according to his instructions, when convenient. Bill charges that defendants have not sold the cattle, but have converted them to their own use. Held, that a demurrer was properly sustained; that a pleading must be taken most strongly against the pleader, and that there is no law giving effect to an oral instruction of a testator, as a will, or part of a will; and that the creditor of J. can have no more rights than J. himself.</p> <p>At most, J. is only a legatee, and the executors the Trustees of the legacy. And the bill, not stating that the estate is settled, nor that the property or the money is not necessary to pay off debts or expenses of administration, nor that J. would be entitled, before final settlement, to his legacy, without tendering a refunding bond, cannot be maintained.</p>

<p>In a suit on a note, the complaint containing the note, or a copy, a denial of indebtedness, is no denial at all.</p> <p>Suit on note for the purchase of land. Answer set up, that the note was given for the land, fencing, and building materials; that plaintiff falsely represented, that there was building material for building a barn—that this material was so insufficient in quantity that it cost defendant six hundred dollars to buy more, etc. There were some averments as to the rotten condition of fences, which plaintiff represented to be good. BMd, that defendant, having taken possession under the contract, and retaining it, cannot set up representations, fraudulent, or otherwise, as to fences, they being, in this case, part of the freehold. JETdd, further, that, a special demurrer being put in to the answer, it sets up no defense as to the building material, because neither quantity, nor value, is given. Plaintiff is responsible, not for what defendant paid for lumber, but for the value of lumber, contracted for, and not delivered, and this, at the time of contracting.</p> <p>The answer is also fatally defective in not charging the representations to have been fraudulently made, or that there was a warranty of some particular quantity of lumber.</p>

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

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

Complaint avers that defendant, on the 16¡ h of August, 1858, seized a quantity of wheat “in the straw,” amounting to thirty tuns of wheat, when prepared and ready for market, and took it from the possession of plaintiff, the owner.

<p>Appeal from the Seventh District.</p> <p>The plaintiff had judgment, but appeals.</p>

<p>Under the Mechanics’ Lien Act, it is not necessary that the account, to be filed in the Recorder’s office, should remain in the office after it is recorded.</p> <p>A suit to enforce a particular lien, under the Act, is a proceeding to enforce all the liens against the property. And an intervention in a suit already pending, if filed within the six months, is as much a compliance with the Act as an original suit.</p>

<p>Appeal from the Probate Court, Sonoma County.</p>

<p>Appeal from the Fourteenth District.</p> <p>Demurrer to the complaint being overruled, an answer was put in, jury waived, and the cause tried by the Court. After plaintiffs' closed, their case resting on a tax deed, defendant moved for a nonsuit, on the ground, among others, that the deed offered by plaintiffs,' and under which they claim title to the promises in controversy, was- insufficient to pass the title, and void.</p> <p>The question being reserved by the Court for final decision, the motion was overruled.</p> <p>Subsequently, the Court gave judgment for defendant, on the ground of insufficiency in the description of the property assessed, to pass title under the deed. Plaintiffs appeal.</p>

A demurrer was put in, that the complaint did not state a cause of action; and, that the cause of action did not accrue within two years. The Court below sustained the demurrer, and plaintiff appeals.

<p>-Appeal from the Tenth District.</p> <p>¡Plaintiff had judgment. Defendants appeal.</p>

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

<p>Pi/Amam? having bought certain horses of defendant, as also the “ good will ” of a mercantile house in the matter of drayage, cannot sue to recover back the purchase money paid, on the ground that such “good will ” is not vendible.</p> <p>The common counts cannot all be united in one count as one cause of action, without any specification of the sums due upon each several cause.</p>

<p>Appeau dismissed because the record contained no copy of the pleadings.</p> <p>Under the 2d Section of the Revenue Act of 1857, taxing all property within the State, except certain descriptions of property—among which are mining claims —a flume, constructed by a mining company along the bank of a river leading to the claims of the company in the bed of the river, is not exempt.</p> <p>The fact that such flume is an auxiliary to the working of the claim, does not exempt it. It is not so affixed to the claim as to be a part of it.</p> <p>The case of the People v. Moore, (12 Cal.) simply holds, that the value of a mining claim itself, cannot be taxed; but this does not exempt everything near the claim necessary to give it value.</p> <p>The object of the 8th Article of the Act of 1854, p. 102, if in force, is to procure a true statement of taxable property. But these provisions are directory. If the value of the property be rightly fixed by the Assessor, the assessment is valid, though that value was arrived at, in a way different from that pointed out by the statute.</p> <p>If an Assessor cannot find the persons to be taxed, he may, nevertheless, assess their property.</p> <p>The provision that the assessment must be made on or before the first Monday of May is directory. And, generally, when a time is fixed by statute within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered directory, unless the nature of the act to be performed, or the language of the Legislature shows, that designation of the time was intended as a limitation of the power of the officer.</p> <p>In this ease the assessment could be made after May, by virtue of the second proviso in the 11th Section of the Act.</p> <p>The flume, although not delivered to the company by plaintiff, the Contractor, until after the assessment, was the property of the company at the time of assessment; taxable to it, and not to the Contractor.</p> <p>The Contractor had his lien; but the flume being constructed for the company, on land selected by it, and paid for, as the work progressed, was the property of the company, although they had power under the contract to reject the work when completed.</p>

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

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

<p>Upon a trial on an indictment for an attempt to contract an incestuous marriage, something more must be shown than mere intention to contract such marriage. Preparation for the attempt indicates the intention, but between this and the attempt itself there is a wide difference.</p> <p>The attempt contemplated by the statute, must be manifested'by acts which would end in the consummation of the particular offense, hut for the intervention of circumstances independent of the will of the party.</p>

The note sued on was assigned by the indorser to plaintiff three days before the notice. The case was tried by the Court. Plaintiff had judgment, and Borland, the indorser, appeals.

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

<p>Appeal from the Fourth District.</p> <p>On the trial of the plea in abatement, after plaintiff had proved the facts set forth in the opinion, and rested, defendant moved to strike out all the evidence as insufficient to sustain the issue.</p> <p>The Court overruled the motion, defendant accepted.</p>

Action of damages against defendant for negligence, by which sparks of fire escaped from the chimney of the steamer while she was navigating Feather Biver, and burned up one mile of plaintiff’s fence along the bank of the river.

<p>Interest follows a contract, according to the law in existence at the time and place of the contract, or of the performance of it. A subsequent change in the legal rate of interest does not affect the contract.</p> <p>It is error to charge six per cent, interest on a contract made before the passage of our statute as to interest, up to the date of the statute, and ten per cent, afterward.</p> <p>Where the account presented to an administrator for allowance contains no item for interest, and the face of the paper does not show that interest results necessarily from the facts stated as constituting the claim, interest is not recoverable.</p>

<p>A discharge in insolvency of a debt is equally a discharge of a judgment on that debt and the costs, rendered between the time of filing the petition and schedule and the time of final discharge. The judgment is simply the original debt in a new form.</p> <p>Relief against such judgment may be by motion to discharge it, unless there be suspicion of fraud in the release of the insolvent.</p> <p>Even if fraud be alleged in answer to the motion, the Court can frame issues and try and determine the same with or without a jury. Ho formal action is necessary.</p> <p>Relief, in such case, may also be granted by a perpetual stay of execution, or by setting it aside, or by any other order requisite to protect the rights of the parties.</p> <p>The remedy at law being ample, equity will not aid.</p>

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

Respondent had judgment. Relator appeals. The Governor’s proclamation embraced State officers, but said nothing about a County Judge for Siskiyou County. It called the attention of County Judges to the 4th Section of an Act entitled “An Act to regulate Elections,” passed March 23, 1850, as stated in the opinion.

<p>B. & D. contracted to furnish G. & S. also defendants, twenty-five thousand gallons turpentine, to he distilled by the latter. The contract was to end April 1st, 1857. B. & D. were not bound to deliver all the turpentine at once, nor any given quantity per day. Damages for non-delivery of turpentine fixed at three thousand seven hundred and fifty dollars, or fifteen cents per gallon. For accident to distillery, reasonable time to be allowed G. & S. for repairs. Distillery burned last of January, 1857, requiring eighteen days to rebuild. In January and March, 1857, G. & S. respectively assigned their interest in the contract to plaintiff. Held, that the benefit of the suspension of the works by the fire, inured to B. & D. as well as to G. & 8.; that the time for performance of the contract was extended for the eighteen days; that, up to April 18th, 1857, G. & S. would be bound to receive turpentine; and, even if the assignment before this time did not put it out of their power to comply with their contract, at least, the assignee could not sue before the expiration of the extended time.</p>

<p>A statement on appeal, certified by the Judge to be correct, according to Ms recollection, is not sufficient.</p> <p>An action on the official bond of a Constable lies primarily upon breach of the condition of the bond, whether the injury for which suit is brought be a trespasser not, the result of the nonfeasance or misfeasance of the officer.</p> <p>Where a Sheriff or Constable seizes the property of one man under an execution against another, he is a trespasser, and liable on his official bond.</p> <p>In an action of damages against a Constable for illegal seizure of plaintiff’s property, the judgment was for six hundred and fifty dollars, the sum claimed in the complaint, the value of the property being fixed therein at four hundred and fifty dollar’s, and the damages at two hundred dollars. The Court found the damages at six hundred and fifty dollars. There was no statement on new trial or appeal. Held, that the finding of the Court is conclusive, and that the judgment must stand.</p> <p>Cope, J. held, that the cause should he remanded to ascertain the value of the property, and that this, with legal interest, should be the judgment.</p>

<p>If, after a demurrer to the complaint sustained, defendant does not offer to amend, final judgment against Mm will not be disturbed.</p> <p>Gallaher v. Delaney, (10 Cal. 410,) depended on particular circumstances, and the general language there used must be taken in connection with the facts, as is explained in Thornton v. Borland, (12 Cal.)</p> <p>Amendments should be liberally allorved by inferior Courts in advancement of justice, and to secure a fair and speedy trial on the merits; and an arbitrary refusal to allow them under proper circumstances would be ground of interference by the Supreme Court.</p>

<p>Where the surety undertakes that his principal shall pay any judgment to be rendered, etc. the judgment against the principal is conclusive against the surety.</p> <p>But, in the ease of official bonds, the sureties undertake in general terras, that the principal will perform his official duties; and a judgment against the officer, in a suit to which they were not parties, is not evidence against them.</p> <p>That the sureties had notice of the suit against the principal amounts to nothing, unless it was notice according to the statute, or unless they appear voluntarily as parties to the record.</p> <p>According to common law rules, a plaintiff cannot, hy mere notice, bring in parties not sued in an action for trespass, when there is no pretense that they were trespassers.</p> <p>A judgment is always admissible as proof of its rendition, when that fact is relevant, hut not as proof to charge a stranger, directly, by its operation.</p>

<p>Appeal from, the Ninth District.</p> <p>Defendants had judgment below, on the ground that the agreement between plaintiff and Maydwell, as to the former's interest in the land, was executory, and that the ranch, being recorded in the latter’s name, and he being in possession, had a right to sell to the other defendants in the absence of proof that they knew a sale and delivery of the ranch had been made by May-dwell to plaintiff.</p> <p>Plaintiff appeals.</p>

<p>Where the facts, averred by plaintiff as constituting Ms cause of action, show turpitude on Ms part, he states himself out of Court.</p> <p>Where the complaint shows no legal cause of action, a judgment by default can no more be taken, than it can be over a general demurrer.</p>

The Court below sustained the demurrer, and gave plaintiff time to amend his complaint. Plaintiff failing to amend, judgment was rendered dismissing the suit for failure to prosecute. Plaintiff appeals.

Suit to recover of defendant one thousand one hundred and sixty dollars, for publishing the delinquent tax list of the county for the year 1858. The complaint avers that plaintiff published bid list at request of defendant, etc. Answer denies that plaintiff performed any services of the kind by authority of the county, and sets up that the. Board of Supervisors had, before the printing was done by plaintiffs, contracted with another paper to do the work.

The County Judge granted an injunction, restraining the defendants, Butler and Long, to whom the judgment in the suit of A. J. and ~E. J. Butler v. Collins, (12 Cal.) had been assigned, from collecting or transferring the same. Long appeals from the order.

Application to the Supreme Court for a mandamus, commanding the Judge of the Sixth District to hear and determine a certain cause. Petitioners brought suit in said Court against one Christy, to restrain him from trespassing upon, and extracting gold from, plaintiff’s land. On the trial, issues were submitted to, and found by, the jury.

The facts appear in McMillan v. Bicharás, (9 Cal. 365.) The precise items of overpayment, as claimed by plaintiff here, are: 1. Ten per cent, per annum of kid, $16,000............................. $800 00 3. Five i)er cent, per month on principal................................ 3,330 00 3. Five per cent, on deficiency, $1,737 76................................ 518 33 Total............................................................ $3,538 33 4. Twenty per cent, from Sup.

The ease will be understood from the opinion. The Court below first granted an injunction restraining the company from paying dividends on the stock in controversy, to any one except plaintiff, and restraining defendants, Whiteman & Shellcross, from transferring the stock.

<p>Appeal from the Fourth. District Court.</p>

<p>In suit by an administrator against defendant, for conversion of the property of ithe estate, under the 116th Section of the statute to regulate the settlement of estates, the proof, as to the right, or title, or possession, of plaintiff, and the taking or interference by defendant, being conflicting, it is error to instruct the 'jury that a mere demand on the defendant, and refusal by him to surrender the property, charge him with a conversion.</p> <p>Where, in such suit by an administrator, the complaint averred the facts necessary under the statute to maintain the action, and the answer denied those facts, and áhe .record in this -Court does not contain the facts, but it is agreed by counsel that the proof was conflicting, and the Court below instructed the jury that if they believed from the evidence, that defendant did receive the property mentioned in the complaint, belonging to the estate of ti. deceased, and converted and appropriated to his own use, and refused to deliver the same when demanded, etc. they will find for plaintiif, and it is objected in the Supreme Court that this instruction was wrong, because it ignores all reference to the time of the alienation by defendant, whether before or after the issuing of letters of administration upon the estate of deceased; held, that there being no statement of facts, this Court cannot tell whether there was any discrepancy in the proofs, as to the time of alienation, assuming that there was such alienation; and that in favor of the judgment it must lie presumed, unless there be direct evidence to the contrary, that the Court did not err in giving the instruction in this form, for there may have been no controversy as to the time of alienation, if any was made, though there might have been conflict in the proof as to the fact of alienation, and this the Court left to the jury. . - „</p>

<p>Appeal from the Sixth District.</p> <p>Suit on note given as in case of same title, (ante.) Plea, of the statute of limitations, and that the note was not due, because of the failure of Sutter to perfect title, etc.</p> <p>Judgment below for plaintiff against defendant, Barber, and in favor of defendant, Smith. Plaintiff appeals.</p>

<p>Appeal from, the Eighth District.</p> <p>Plaintiff snod for three hundred and twenty-six dollars and thirty-three cents, for work and labor done during about six months. Defendants denied any indebtedness, set up a special contract by which plaintiff agreed to work for them a year at fifty-five dollars per month and board, payable, one-half at the end of six months, the other half at the end of the year, and averred that plaintiff, without cause, quit their employment a little before the end of six months.</p> <p>Defendants claimed damage in the sum of four hundred dollars.</p> <p>The proof sustained the contract set up by defendants, and also tended to show that they promised “ to settle ” with plaintiff on his demand for compensation after he quit work.</p> <p>The jury found for plaintiff. Defendants appeal.</p>

The demurrer by defendant was upon the ground, among others, that the complaint did not show facts sufficient to constitute a cause of action, in this: that the trust deed was really a mortgage, requiring judicial foreclosure and sale to pass title. The Court below gave final judgment for defendant on the demurrer. Plaintiff appeals.

<p>Appeal from the Fifth District.</p> <p>Plaintiff had judgment below. Defendant appeals.</p>

The facts can be gathered from the opinion in 10 Oal. 580 and the opinion on this appeal. The matters set up in the answer of defendants, as set forth in 10 Oal. 581, 582, were proven. On the last trial it appeared, that at the settlement between plaintiff and defendant, April 12th, 1856, there was due plaintiff eight thousand one hundred and twenty-five dollars and fifty-four cents.

' Suit in Justice's Court for two hundred dollars damages, for breach of warranty on sale of a horse. Answer was general denial, with plea of one hundred and twenty-five dollars offset, for which defendant asked judgment. The Justice gave plaintiff judgment for twenty-five dollars. Defendant appealed to the County Court, where a jury found for him eighty-six dollars. From a judgment for this'sum, plaintiff appeals to the Supreme Court.

Ejectment for premises situate in Mariposa County. Plaintiff was the lessee of John 0. Fremont, to whom a patent was issued by the United States, hearing date February 19th, 1856, embracing a tract, including the premises in controversy. The case was tried by the Court without a jury, by consent of parties. The Court found the facts to be as follows: 1.

Plaintiff avers himself to be the owner in fee and possessed of a tract of land containing about five hundred acres. That for several years he has had a fence around the same, and has used it for agricultural and grazing purposes.

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

<p>The fact that fire was communicated from the engine of defendant’s cars to plaintiff ’s grain, with proof that this result was not probable, from the ordinary working of the engine, is, prima fade, proof of negligence, sufficient to go to the jury.</p> <p>Their finding in such case will not be reviewed by the Appellate Court.</p>

The parties, partners in the Salamander Iron Works, of Los Angeles, having disagreed as to the settlement of their affairs, on the 30th day of May, 1859, entered into the following submission : “This submission, made and entered into this 30th day of May, 1859, by and between E. B. Carsley and D. B. Lindsay, witnessed : Whereas, the said parties, on, or about, the 9th of September, 1858, made, and entered into, a copartnership, at said city of Los Angeles, which has…

On the trial, after plaintiff had rested, defendants moved for a nonsuit on the ground, among others, that Dunlap had no authority to receive the deed and bill of sale, mentioned in the opinion. Motion overruled, defendants except.

<p>Appeal from the Fifth District.</p> <p>The complaint was verified, and consisted of three allegations. 1. That plaintiff, between July, 1850, and July, 1858, “ performed for defendants, and at their request, thirty-six months’ work, labor, and services.” 2. That defendants agreed to pay for said work, labor, and services, what the same were reasonably worth. 3. That defendants have paid on account of said work, labor, and services, three hundred dollars, and that the balance now due plaintiff is nine hundred and sixty dollars.</p> <p>Lorenzo Sunol alone being served with process, answered, denying specifically and fully, each and every allegation in the complaint, and averring that plaintiff never performed any work for the defendants, or either of them.</p> <p>Plaintiff had judgment; defendant appeals.</p>

<p>Appeal from the Twelfth District.</p> <p>Plaintiff had judgment for two thousand five hundred dollars, and interest. Defendants appeal.</p>

Suit by holder against the maker and indorsers of a note. Defense, among other things, was, that defendants indorsed, on condition that the maker would deposit with one of them sufficient property to indemnify them against any liability; that said deposit was not made, and that the payee of the note knew of this fact before he took the note, as did also one English, from whom it is averred, plaintiff took the note without giving anything for it, and not being the real party…

McCormick was agent of Wells, Fargo & Co. at Mud Springs. Being without means, as was generally known, he induced plaintiff to advance four thousand dollars with which to carry on the gold dust and banking business, in connection with his agency for Wells, Fargo & Co. Plaintiff advanced the money, with the understanding that the business was to be his, and McCormick was to receive a salary of seventy-five dollars per month, or a commission on the net profits.

The complaint was not verified, and consisted of an allegation that defendant was indebted to plaintiff in the sum of eight hundred and ninety dollars for twenty head of beef cattle “ sold and delivered to said Borland, at his special instance and request,” with the usual averment of a promise to pay said sum, and “as much as said property was reasonably worth,” alleging it to be worth eight hundred and ninety dollars.

<p>Appeal from the Eleventh District.</p> <p>Plaintiff had judgment, defendant, Hinds, appeals.</p>

Ejectment. Plaintiff claims title by virtue of a Sheriff’s deed to him, made in pursuance of a sale of the land on execution against defendant, Payne, a judgment debtor of plaintiff. Plaintiff bid in the premises, and, after the expiration of the time for redemption, received the deed. The damages were claimed from the time the Sheriff’s deed was executed.

<p>Suit upon the official bond of Dunlap, as Recorder of the city of Sacramento, to recover moneys alleged to have been received by him as such Recorder for fines and costs in the criminal cases which he tried. The suit is against Dunlap, as principal, and Gass and Tucker, as sureties. The complaint avers that Dunlap delivered the bond to the city authorities, as his official bond, though he did not sign it. The record does not show service upon any of the defendants. But Dunlap and Gass appeared and filed separate demurrers, on the ground, among others, that the complaint did not state facts sufficient to constitute a cause of action. The ease was submitted to the Court on the demurrers, which were overruled, and final judgment rendered against Dunlap and Gass, from which they appeal.</p>

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

On the trial defendant objected to the deed offered by relator from Ford and wife to him, dated February 23d, 1857) on the ground that the relator predicated his right to recover upon the assignment of the certificate of sale, and not upon the deed) that it was not plead, and was irrelevant to the issue.

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

It seems from the sentence of the Court, and the instructions, that the larceny was by killing and converting to defendant's own use a steer. Defendant appeals.

<p>Wheee a lease gives the lessee the privilege of purchasing the land at the expiration of the lease, on certain terms, the privilege is limited to the whole land, and the lessee, or a purchaser from him of a portion of the land, cannot claim the right to buy that portion.</p>

<p>Iir a suit by a physician against a county on a contract for his services for one year as Examining Physician of the hospital, the objection, that he is not a gradúate of a legally constituted medical institute, if good at all, cannot be taken by demurrer, unless the demurrer distinctly present the objection.</p> <p>If, after such a contract, which compels the physician to perform such services only as the Supervisors might require, they put it out of his power to render the services, he is still entitled to his salary.</p> <p>The Board could not abrogate the contract, by rescinding the order under which plaintiff was appointed, or abolishing the office.</p> <p>Clear distinction between an office constituted by legislative act, and a contract made with a party, to render for a stated period certain services, though these services are to be rendered in a capacity in the nature of a public office or employment.</p>

Judgment for plaintiff upon the report of a referee finding, that there was no application of payments by defendants. Defendants appeal.

To the faets stated in the opinion it is only necessary to add, that the plaintiffs were appointed receivers of Page, Bacon & Co. at the suit of judgment creditors of that firm.

<p>As indorser of a note payable on demand, no demand being made until thirteen months after the indorsement to plaintiff, is prima facie, not liable. The delay is unreasonable.</p> <p>In such case, facts to excuse the delay are an essential part of the complaint, and, if not-averred therein, it is insufficient.</p> <p>Every fact which, if controverted, plaintiff must prove to maintain his action, must, be stated in the complaint.</p>

<p>Divorce for extreme cruelty not generally granted, when such cruelty is caused by the misconduct of the wife, who applies.</p>

[The points and authorities on the mineral question are omitted for the reason that the briefs in Biddle Boggs v. Merced Mining Go. (ante,) were filed in the case, and the whole subject is there discussed by counsel at length.]

<p>lx ejectment, the value of improvements, even when defendant holds under color of title adversely to plaintiff, can only be allowed as a set-off to damages.</p> <p>A patent from the United States proves itself. Courts take judicial notice of the signature of the President and of the seal of the government.</p> <p>Where the complaint in ejectment avers that the land sued for is known by the name of “La Jota,” heretofore granted to plaintiff by the Mexican Government, and the patent issued thereon refers to the grant, the proceedings before the Land Commission and United States Court for confirmation, these recitals in the patent support the averment of title through the grant.</p> <p>The patent is in itself, as against the government, evidence of the existence and validity of the grant recited in it, as well as of the relinquishment of all claim of the United States to the land it embraces.</p> <p>The rule of the common law as to the necessity of proof in ejectment, of a legal estate and a right of entry in the plaintiff at the date of the demise laid in the declaration, has no application under our system.</p> <p>It is sufficient in our system if it appear that the plaintiff was entitled to possession of the premises at the commencement of the action, and the date of the alleged seizin or possession and ouster is only material when the question of mesne profits is involved.</p> <p>Such profits, when claimed in the ejectment suit, are limited to such as accrue subsequent to the ouster alleged—or in other words, the occupation of the defendant. When they are claimed in an independent suit, the record of recovery in the ejectment, is, as to the title, only evidence of the right of possession of the plaintiff at the commencement of the action in which the recovery was had.</p> <p>It is otherwise at the common law; there, the proof of title being held strictly to the date of the demise laid, the judgment was conclusive of such title.</p> <p>Under our system the judgment in ejectment is only conclusive of two points; the right of possession in the plaintiff, and the occupation of the defendant at the commencement of the suit.</p> <p>Other facts, necessary to recover mesne profits, must be shown by evidence aliunde.</p> <p>A defendant in ejectment claiming under the government of the United States as a mere pre-emptioner, cannot show that the land described in the grant from the Mexican Government and petition to the Land Commissioners, is different from that embraced in the patent.</p> <p>The action of the officers of government, in the location of lands claimed under confirmed Mexican grants, cannot be inquired into in an action of ejectment. The patent is conclusive upon these matters, and implies a compliance with every prerequisite of the law to its issuance.</p> <p>Unless a patent is issued without authority, or is prohibited by statute, or is void on its face, its operation against the government, and those claiming by title subsequent, cannot be questioned in any collateral suit.</p> <p>For errors, irregularities, or fraud, committed in any of the steps preliminary to its issuance, inquisition can only be had in a proceeding taken directly for that purpose.</p> <p>A patent takes effect by relation, from the first step in the pro ceedings for confirmation of the grant.</p>

<p>Appeal from the Eleventh District.</p> <p>Suit for possession of a mining claim, averring plaintiffs to be 'the owners, and that defendants have ousted them of a portion of the claim. Defendants deny plaintiffs' ownership, and aver, that none of them, except Blackwell, ever owned any interest in said claim, until a short time before this suit; and, that, although Blackwell did, with others, once own the whole claim, he had abandoned it for a long period; that defendants then took up, according to the mining regulations of the district, the portion of the claim in suit. They further aver, that the plaintiffs, other than Blackwell, never did buy the portion held by defendants; that, in fact, their vendors never intended to sell such portion.</p> <p>The Court below, a jury being waived, found the allegations of the complaint to be true, and the allegations of the answer to be untrue, with an exception not material.</p> <p>Judgment for the claim and one thousand dollars damages. Defendants appeal, motion for new trial having been overruled.</p>

<p>Appeal from the Twelfth District.</p> <p>Plaintiff had judgment below, and defendant appeals.</p>

The return to the writ set out in full the proceedings before the Board of Delegates on the contested election. The Court below dismissed the proceedings. Relator appeals.

Ejectment brought in the individual name of the wife, the husband being made a party defendant. One of the other defendants, who had received a conveyance from the husband, demurred to the complaint, on the ground, that the plaintiff could not sue in her individual name; but, that her husband should have been joined as co-plaintiff, and on the ground, that it did not state facts sufficient to constitute a cause of action.

The form of the denial, aside from that quoted by the Court, is: “ This defendant further says, that he makes a specific denial of each allegation in the said complaint contained, with the exception of such qualifications and exceptions as may occur in this answer.” The balance of the answer, in substance, admits possession, and avers that it was legally obtained.

<p>The statute directing the statement or bill of exceptions, in criminal cases, to be settled within ten days and signed by the Judge, is directory.</p> <p>But defendant must prepare and tender his statement or bill within the ten days, or such further time as may be granted by the District Judge, or a Judge of the Supreme Court, or give sufficient excuse for Ms failure so to do. Such excuse being shown, the bill should be signed, otherwise not.</p> <p>This Court will not inquire into the reasons which induced the District Judge to sign the bill after the statutory period, but will presume they were sufficient.</p> <p>Statement and bill of exceptions in the statute on this subject, mean the same thing. •</p> <p>When the Judge cannot be found, the proposed statement or bill in a criminal case may be delivered to the Clerk of the Court for him—the Clerk’s office being the proper place for the deposit of papers for the Judge in his absence from his chambers. The Clerk should minute on the document the date of its receipt and hand it to the Judge at the earliest convenient opportunity.</p> <p>In People v. Woppner, (ante,) it was admitted that the statement was correct, and might be considered part of the record, provided the Judge had the power to sign it after the ten days.</p> <p>In this case, mandamus issued to settle the bill first, and then to sign it.</p>

<p>A wife divorced from her husband for extreme cruelty on his part, is entitled to the custody of their female child of tender years, the wife being blameless. The father has a right to see the child at all convenient times.</p>

Bill by plaintiff as assignee of a mortgage given by Antonio Maria Castro, to John Provizza and John Davis, for the foreclosure and sale of the mortgaged premises. The bill was filed on the 8th of July, 1858, against Antonio Maria Castro, John Provizza, William A. Piper, Thomas D. Mathewson, John Galvin, and Joseph Emerie.

<p>Appeal from the Twelfth District.</p> <p>Defendants demurred to the complaint on the grounds, that the Court had no jurisdiction either as to the persons of the defend ants or the subject matter of the action; that there was a defect of parties plaintiff, and a misjoinder thereof; as also of parties defendant; and that the complaint does not state facts sufficient to constitute a cause of action. From, final judgment in favor of defendants on demurrer, plaintiffs appeal.</p>

<p>The Commissioners of the Funded Debt of the eitv of San Francisco have power, under the 12th Section of the Act of May 1st, 1851, authorizing- them to sell the realty conveyed to them by the Commissioners of the Sinking Fund, created by ordinance of said city, to receive the “ three per cent, scrip” of the city instead of cash on the sale, it being conceded that the assets of the city were sufficient to pay all debts.</p> <p>Query, whether the Statute of Limitations runs against a trust like this of the Commissioners of said funded debt, and whether they may not pay claims barred.</p>

<p>"Where the motion for new trial, though made, does not appear to have been acted on, the Appellate Court will not consider the sufficiency of the evidence to sustain the verdict.</p> <p>Query, whether a party can object, on second trial to the reading of a deposition which he suffered his adversary to read on the first trial, without objection.</p> <p>Where a rule of the District Court requires three days’ written notice of exceptions to depositions, if they arc returned and filed with the Cleric that length of time before trial, and such notice is not given on a first trial, the depositions may be admitted on a second trial, though it took place the day after the first trial. The party was in default in not giving the notice before the first trial.</p> <p>If part of the deposition be liable to the exception of hearsay, this goes only to the rejection of that part, and the objection should be taken at the hearing.</p> <p>Where such rule of a District Court requires the notice as above, unless the exceptions appear on the face of the depositions, the meaning is that the objection —not the objectionable matter—must appear on the face of the deposition.</p>

<p>In a complaint in ejectment, parties may seek, in addition to a recovery of the premises, an injunction restraining the commission of trespass in the nature of waste pending the action, but the grounds of equity interposition should be stated subsequently to, and distinct from, those upon which the judgment at law is sought.</p> <p>Where plaintiffs, having excepted to tlic ruling of the Court excluding certain evidence, take, in consequence of such ruling, a nonsuit, with leave to move to set it aside, they do not waive any of their rights as to the exception taken. Objections to the introduction of evidence confined, in the Appellate Court, lo the grounds taken below.</p> <p>A duly certified copy of a Mexican grant, from the IT. S. Surveyor-General’s office, is admissible in evidence, againsu the objection that the absence of the original is not accounted for. But it is admissible only when the original itself would be. The statute (Acts of 1357, p. 317,) simply removes the objection to the copy as secondary evidence.</p> <p>A certificate of the Surveyor-General, that the paper “ is a. true and accurate copy of ». document ” on file in his office, is sufficient, against the objection, that the copy is not duly authenticated, it being conceded that such document wa» the original grant.</p> <p>In ejectment on a Mexican grant, the decree of the Land Commission confirming it, rendered final by the withdrawal on the part of the United States of any appeal therefrom, and an order of the District Court permitting the claimant to proceed thereon as on final decree, are conclusive evidence of the validity of the grant, of its recognition by the United States, and also of the location of the specific quantity granted—the decree in the case confining the claim under the grant, to a. particular tract, describing it with specific boundaries.</p> <p>Such a decree and order, in connection with the grant, arc as conclusive as to the title of plaintiífs as a patent, provided the premises are within the designated boundaries.</p> <p>A patent could have no greater eifact upon the title; the patent would save the parties the necessity of proving anything beyond it, and limit the evidence in the ease to matters arising upon mesne conveyances under the original grantee, but so far as the title is concerned—the boundaries of the land being given—its segregation in other words from the public domain being made by the decree itself, nothing further could be required.</p> <p>The privilege of moving for a dissolution of an injunction upon the filing- of an answer, is limited to cases where the injunction is originally granted without notice.</p> <p>Where the injunction is granted on a rule to show cause, it cannot be dissolved until the final hearing, unless the right to apply for dissolution on filing the answer, be expressly reserved.</p> <p>Cutting, destroying, and removing, growing- timber, is sufficient ground for an injunction, without any allegation of insolvency.</p> <p>In suits for the possession of land by ditch companies, incorporated under the Act of April 14th, 1S53—by the fourth section of which they are authorized “ to purchase, hold, sell, and convey, such real and personal estate as the jrarposes of the corporation shall require ”—the defendant» cannot question the necessity of such land for the purposes of the corporation. That is matter between the government and the corporation.</p>

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

<p>A owes B a debt; to secure it A & 0 jointly mortgage to B a piece of land owned, by them in common. Subsequently, A mortgages his undivided interest in the land, to secure a debt, to D. B forecloses against A & G, and buys in the whole land, not malting D a party. The time for statutory redemption having expired, B gets a Sheriff’s deed. Held, that D, as subsequent mortgagee, may redeem A’s, but not C’s, interest in the land, and that the sale is final as to C’s interest, D not being a necessary party to the foreclosure.</p> <p>The redemption money for A’s interest would be the amount of B’s mortgage debt, with interest, etc. less one-half of the purchase money of the whole tract sold as the land of A & C, under the foreclosure sale.</p>

Defendant first moved to quash the indictment, and then demurred on grounds which appear in the opinion of the Court. Demurrer overruled. Defendant appeals.

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

This is an action of ejectment brought in the Twelfth District Court, for a fifty-vara lot in San Francisco. The judgment below was for the defendants, and the plaintiffs have appealed. The case was tried without a jury, and the Court found the following facts, viz: “1.

The mortgage from Baker to Clark, executed to secure the purchase money of the premises in question, in its terms, doth “ grant, bargain, sell, release, remise, and convey ” the premises to Clark his heirs and assigns forever, subject to the usual condition in mortgages. All other material facts are stated in the opinion of the Court. The case was twice argued.

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

<p>Application for a writ of mandamus to the Clerk of the District Court of Marin County, to compel the issuance of an order of sale.</p> <p>The facts appear in the opinion of the Court.</p>

To the facts stated by the Court, add that the travel over the road in question began in 1849, and continued up to about the fall of 1857, when plaintiffs closed up the road; that the patent for the land embraced in the Johnson grant, issued to him in March, 1857; that Woodruff, though owning an interest in the grant from 1849, did not have the fee until October, 1857, when a deed was made to him by Robinson, of a portion of the grant.

<p>Fighting a duel with fatal result is not murder within our statutes, but a special offense under the Act of 1855.</p> <p>Over such offense Courts of Sessions have jurisdiction.</p>

<p>The refusal of the wife to accompany her husband on a change of his residence, followed by actual cessation of matrimonial cohabitation, and unattended by any excusing or explanatory circumstances, is evidence of desertion, and authorizes a divorce.</p> <p>Desertion consists of an actual cessation of matrimonial cohabitation between the parties, coupled with the intent to desert, in the mind of the offending party.</p>

<p>Where the wife makes a contract with her husband by which she gives him money, her separate property, for steamboat stock owned by him; held, that, assuming the contract to be void, because made between husband and wife, the husband is in the position of having taken his wife’s money without her assent and converted it into stock, and that he thereby becomes her trustee; that she can follow the money into whatever property it goes; that, being in possession of the stock, she can hold it.until fully indemnified, and that his creditors cannot reach it.</p>

<p>Elaintiit in execution, after assigning Ms judgment, pretended falsely and fraudulently to be the owner of it, and so pretending made a contract to discharge the judgment by taking the note of third persons not negotiable, in the mercantile sense, in payment; the makers of the note agreed to this under the supposition induced by him that he was the owner. Held, that the makers of the note, on discovering that the plaintiff was not the owner of the judgment, properly refused to pay the note, even to assignees before maturity thereof.</p> <p>A Sheriff, under his general powers, cannot take anything but legal currency in satisfaction of an execution, and where he takes a note, indorses it on the execu- , tion and then returns it satisfied, the return is not conclusive, and, perhaps, not prima facie evidence of satisfaction, unless it shows some authority for receiving the note.</p> <p>On motion for new trial, it is irregular for the Court to reverse its first judgment, and render a contrary one, without hearing or notice.</p>

<p>Where a party to a judgment has obtained any advantage through the judgment, he must restore that advantage to the other party, if the judgment be afterward, reversed.</p> <p>If, on sale under judgment, the plaintiff buys in the property, he must restore it to the defendant, on reversal of the judgment.</p> <p>Otherwise, as to a stranger, a Iona fide purchaser without notice. He is not within the rule. But to constitute himself such purchaser, he must show that he has paid the purchase money, and also, that he is the purchaser of the legal title, not of a mere equity. And a purchaser at execution sale is not clothed with the legal title, until he receives a Sheriff’s deed.</p> <p>An assignee of a judgment, and of the Sheriff’s certificate of a sale thereunder, stands in the same position as his assignor, the plaintiff, after the judgment has been reversed, and the sale will be set aside, and the property restored to the defendant, where no loss or injury will be done the assignee.</p> <p>A party who appears and contests a motion in the Court below, cannot object, on appeal, that he had no notice of the motion.</p> <p>The 345th Section of the Practice Act authorizing the Supreme Court, on the reversal or modification of the judgment or order below, to make restitution of the property and rights lost by the erroneous judgment or order, does not exclude the lower Court from exercising the same power.</p> <p>And the party aggrieved may proceed in the lower Court, by motion, against which there seems to be no statute of limitations, there being, in this case, no unreasonable delay.</p> <p>An objection being taken in this case to a decree as void, because of an excess of jurisdiction in directing two pieces of property, mortgaged by separate instruments, to be sold together, when the complaint did not ask for that relief, it was held, that, the Court having jurisdiction of the question and of the parties, the decree was valid until reversed or set aside.</p>