Volume 15 — California Reports

The bond in this case runs, “ That we, of the County of Nevada, State of California, as sureties for Aaron Davis and Thomas W. Martin, * * are held and firmly bound unto Joshua Browner, T. G. Smith, A. Sargeant and A. McMullen, in the sum,” etc., the condition being that said Davis and Martin shall pay the obligees damages, etc. The bond is signed by Hollingsworth & Lampe only.

Bill filed against Crane, as Administrator of Franklin C. Gray, deceased, Matilda C. Gray, his widow, F. C. Gray, the son, and Eaton, to enjoin Crane from proceedings at law against plaintiff, to recover certain real estate in San Francisco, to confirm a deed by Eaton, as attorney of Gray, to plaintiff, and to compel a deed from defendants to plaintiff.

Complaint avers, in substance, that at the time of the sale of the stock in question, it was understood between the parties, that the money then in the treasury of the company, subject to dividend, should belong to plaintiff; and that defendant had fraudulently imposed on plaintiff, an illiterate man, in the wording of the assignment.

After the amended complaint was filed, and the time for answering it had expired, the Clerk entered a default. Subsequently, the cause came on for trial before the Court, when defendant’s attorney demanded a jury. The Court denied a jury trial, and proceeded with the case. Plaintiff read the default, the amended complaint, and gave evidence as to title and possession. Judgment for plaintiff for possession of the land. Defendant appeals.

The plaintiff relied on a patent for the land embraced within the “ Pulgas” grant, the complaint proceeding against the defendants jointly. Two only of the defendants, Rankin and Higgins, answered.

<p>On appeal from a Justice’s Court, in forcible entry and detainer, the execution of an appeal bond within ten days is not a condition to the jurisdiction of the County Court.</p> <p>If the bond be void or defective through accident or mistake, a new bond may be filed, on such terms as the Court deems just, the right of the other party being regarded.</p>

The complaint begins: “ The above named plaintiffs, residents of and tax-payers in Stanislaus county, complain,” etc. It then avers that the Supervisors bought of defendant, Myers, who was Sheriff of the county, a certain house to he used, as a court house; that, in pursuance of their order, warrants were drawn in favor of Myers on the County Treasurer for the purchase money; that for various reasons, among others the indebtedness of the county up to the limit allowed by…

<p>Refusal to grant new trial not reviewed in the Supreme Court, unless such refusal was an abuse of the discretion of the Court below.</p> <p>In an action for diverting water from plaintiff’s ditch, plaintiff and defendants both having ditches supplied from the same stream, the plaintiff’s rights being prior and paramount, defendants asked the Court to instruct the jury, that if defendants had brought water from foreign sources, and emptied it into the stream with the intention of taking it out again, they had the right to divert the quantity thus emptied in, “ less such amount as might be lost by evaporation, and other like causes.” The instruction was given, with the explanation, that they could not so reclaim the water as to diminish the quantity to which plaintiff was entitled as prior locator. Held, that the explanation was proper, the concluding words of the instruction being too general and indefinite.</p> <p>The jury having found plaintiff entitled to the use of so much of the water flowing in the stream as would run in a ditch of a certain capacity, a judgment was entered, following the verdict. Held, that the judgment is not erroneous, as not distinguishing between the water ordinarily flowing in the stream and the water from foreign sources emptied in by defendants. The law regulates the rights of the parties in this respect, and the judgment must be construed with reference to such law.</p>

<p>Appeal from the Thirteenth District.</p> <p>For facts, see opinion. Plaintiff appeals.</p>

<p>On an indictment for murder, the verdict must state whether it be murder in the first or second degree.</p> <p>If, on the return of the verdict, it does not specify the degree, the Court should order the jury to retire, and return a specific finding of the degree.</p>

<p>Appeal from the Fifth District.</p> <p>Suit against eight defendants, one of whom was Laforge, known as The Table Mountain Water Company, for possession of a ditch.</p> <p>The verdict was—“ We the jury find for plaintiff and against A. B. Laforge.” Upon this verdict the judgment was, that plaintiff recover the possession of the ditch, without stating of whom the possession was to be recovered. The judgment then goes on, “ that said defendant * * surrender possession of,” etc., and that plaintiff “ recover of A. B. Laforge, one of said defendants, the sum of one hundred and seventeen dollars, his costs and disbursements.”</p> <p>Defendants appeal.</p>

<p>A party cannot appeal from an order overruling a motion for new trial, when he fails to prosecute his motion before the District Court, especially when the case involved complicated facts, and was not tried by the Judge, but by a Referee, by whom the alleged errors were committed.</p> <p>The failure to prosecute in such case, is an abandonment of the motion.</p>

<p>A receipt acknowledging payment of a debt, whether in money or some other medium, may be explained or contradicted by parol.</p> <p>In suit on an account, against B. & S. as a firm, a receipt to B. alone, signed by plaintiffs, “ in full for acct's and demands due us at this date,” was offered in evidence by B., S. having made default, together with parol proof that the receipt was intended to embrace the account sued on. Held, that the parol proof was admissible; that the term “ all accounts,” may be shown to cover firm as well as personal indebtedness.</p>

<p>A party claiming land under the Possessory Act of 1852, must show compliance with the provisions of the Act. He must be a citizen of the United States; must file the affidavit required by section 2; and make his improvements within the ninety days, &c. Merely residing on a part of the land, tracing lines, putting up stakes for boundaries, &e., is not sufficient. Mere entry on public land, without enclosing it, does not give a right of action on the possession alone.</p>

<p>The mere fact that a man is a soldier in the United States army, does not disqualify him from voting in this State. But he cannot vote unless he has been a citizen of the State and of the county in which he votes, for the constitutional period.</p> <p>And a mere residence or sojourn in the county as a soldier, does not make him a citizen, or prove him to be such. The rule, as fixed by the Constitution, is that the fact of such sojourn or residence as a soldier, neither creates nor destroys citizenship—leaving the political status of the soldier where it was before. A copy of a copy of a muster roll of United States soldiers is not admissible in evidence to prove a man to be a soldier.</p> <p>Where the right of a United States soldier to vote is contested, the burden of proof is upon the contestant.</p>

Truett & Co. brought suit against Goldstein & Co. Defendant, Mulford, under a writ of attachment issued in that suit, levied on and sold certain goods in the possession of plaintiff. The facts appear ¡j in the opinion of the Court.

<p>A mortgage on its face given to secure a promissory note, is prima facie, given in good faith, and to secure a “just indebtedness,” within the first section of the Chattel Mortgage Act of 1857.</p> <p>Under that Act, a “ residence ” stated to be “ in Sierra county, California,” is sufficiently stated. And an “occupation,” stated as that of “late merchant, of Pine Grove,” etc., is sufficient.</p> <p>The object of this provision in the statute, is identification. It is not an indispensable requisite to the validity of the mortgage, which would be valid if it stated the parties to have no occupation or profession.</p> <p>So where the mortgage is conditioned to pay a note “ according to the tenor and conditions thereof,” and the note is recited as a “ certain promissory note for the payment of the sum of $3,500 on the sixth day of June, A. D. 1858, at said Pine Grove, with interest at the rate of two per cent, per month, from date till paid,” the statute is complied with as to “ setting out the sum to be secured, the rate of interest to be paid, and when payable.”</p> <p>An affidavit need not bo signed by the party making it. Courts take judicial notice of the official character of Justices of the Peace, in their own States. And an affidavit, in which the official character of the Justice, before whom it is taken, does not appear, is good.</p> <p>Under the Chattel Mortgage Act of 1857, a mortgage of shares of stock in an incorporated company is valid without a transfer on the books of the company, as is required by the Corporation Act of 1853 relative to pledges of stock by delivery of the certificates. ■ The Act of 1853 has no effect on the Act of 1857.</p>

<p>Appeal from the Sixth District.</p> <p>The Attorney General in behalf of S. H. Brooks, elected Controller of State at the same time M. S. Latham was chosen Governor, and J. G. Downey, Lieutenant Governor, brought this action in the nature of quo warranto against J. R. Melony, in possession of the office by virtue of an election by the people, at the general election in September, 1858, and a commission issued to him, authorizing him to hold the office for two years by virtue thereof. The District Court rendered judgment in favor of Melony, from which this appeal was taken.</p>

The plaintiffs undertook to erect certain dams, flumes, etc., on the Feather river, for a company mining on said river, known as the “ Nebraska claim.” They entered on their work, and while they were engaged therein, the defendants were engaged erecting similar works for the Union Cape Mining Company lower down on the same stream. The works erected below backed the water upon the works erected by plaintiffs, and hindered and delayed them in the completion of their job.

<p>PirAiSTim? sues the Sheriff for seizing certain chattels claimed by plaintiff. Defendant justifies under a writ of attachment in the suit of F. v. C., and alsb under an execution issued upon a judgment bad in that suit, setting up that plaintiff claimed the chattels by purchase from C., and that such purchase was fraudulent as to F., a creditor of C. After the evidence on both sides was closed, the Court, on motion of plaintiff, struck out the attachment proceedings, judgment and execution and all evidence justifying thereunder, on the ground that defendant had not proved all of the debt upon which the attachment issued. Held, that this was error; that, had no debt been proved, the judgment and execution being introduced, with an offer to show a levy and sale thereunder, were enough, if not to justify the first seizure under the attachment, at least to diminish the damages, by showing that the property was appropriated by law to the proper purpose, to wit: paying C.’s debt, if it really were his property, or subject, as his, to the process because of the fraud.</p> <p>But even if any proof aliunde of C.’s indebtedness were required, when the attachment papers, affidavit, undertaking, etc., were regular on their face, the judgment was prima facie sufficient to admit the attachment papers in proof.</p> <p>If, in justification by the Sheriff under such attachment, judgment and execution, it be necessary to aver in the answer that the writs of attachment and execution were returned executed by the Sheriff, still the omission of this averment, though it might have been ground of demurrer, was no ground for rejecting all evidence under such justification.</p> <p>Plaintiff here cannot dispute the regularity of the proceedings in such attachment, unless they were void on their face. Defendant could show his attachment proceedings, the judgment, execution and levy, and then that the sale by C. to plaintiff was fraudulent. No proof of the indebtedness of C. to P. was necessary, after showing the affidavit, undertaking and attachment; and no irregularities—in justifying sureties and the like—could be availed of by plaintiff.</p>

<p>Where the convention of Justices of the Peace, for electing two Associate Justices of the Court of Sessions, was presided over by the then acting County Judge, his official acts at such convention were legal and valid—although it was after-wards determined that another person had been legally elected to that office; and a Court of Sessions, composed of said other person, as County Judge, and of the two associates, elected by such convention, was legally organized.</p> <p>On an indictment for murder it appeared, that the prisoner on the day of the killing called at a mill, several hundred yards from where deceased was killed, and borrowed a chisel—having been previously in the habit of borrowing tools at the mill. His shirt was bloody, and two spots of skin were knocked off his nose. Defendant’s counsel asked the witness, “ Did he (prisoner) state how he came by those hurts 1 If so, state all the conversation then and there between you two, in respect to those hurts, and his errand there.” Objected to and ruled out. Held, that there was no error in the ruling, the declarations not appearing to have any connection with the offense charged ; that declarations of a prisoner, to be admissible as part of the res gestee, must be contemporaneous with the main fact under consideration, and so connected with it as to illustrate its character.</p> <p>Held, further, that even if in this case, such declarations were improperly excluded, the prisoner was not prejudiced, because he was convicted of manslaughter only, showing that the jury negatived the idea of malice and premeditation.</p> <p>It is not error in the Court, in a criminal case, to charge the jury to give such weight to the defendant’s confession as they deem it entitled to, “judging from the circumstances under which it was given, and the motives which would naturally actuate the party in giving it; ” and that they might, in their discretion, believe a -part, and disbelieve another part of such confession.</p> <p>A verdict, in a criminal case, cannot be impeached by an affidavit of one of the jurors, tending to show that it was not a fair expression of the opinion of the jury-</p>

<p>Appeal from the Twelfth District.</p> <p>Case stated in the opinion of the Court. Defendants had judgment below, plaintiffs appeal.</p>

<p>Miners have a right to enter upon public mineral land, in the occupancy of others for agricultural purposes, and to use the land and water for the extraction of gold—the use being reasonable, necessary to the business of mining, and with just regard to the rights of the agriculturist. And this, whether the land is inclosed, or taken up under the Possessory Act.</p> <p>The right so to enter and mine, carries with it the right to whatever is indispensable for the exercise of this mining privilege—as the use of the land, and such elements of the freehold or inheritance as water.</p>

The suit is to obtain a perpetual injunction restraining defendants from obstructing a certain road leading to the quicksilver mines of plaintiffs.

<p>The Court below may refuse a new trial, even though both parties consent to it. Where a case has been once fully tried, parties have not an arbitrary discretion to renew the litigation.</p> <p>Such refusal is no ground of error, particularly in an equity case, where there may have been no necessity for new trial, as upon application to the Court, upon the pleadings and facts before it, the proper decree might have been rendered, notwithstanding the verdict; or, if refused, the error corrected by appeal.</p>

<p>Appeal from the County Court of Monterey.</p>

Complaint averred that plaintiff was “ the owner and entitled to the possession of” the premises, “containing some one hundred and sixty acres, or thereabouts; ” and that defendant “ wrongfully and unlawfully entered upon, took possession of, and ousted ” plaintiff, and still “ wrongfully and unlawfully withholds the possession,” etc. Defendant appeals.

<p>Appeal from the Eleventh District.</p> <p>Action of damages for breach of the contract set forth in the opinion of the Court. The complaint avers in substance, that from the date of the contract, February 14th, 1856, to June 14th, 1857, the monthly deficiencies in the sales of water were from seven hundred dollars to nine hundred dollars; that defendants failed almost entirely to supply water to the ditches named in the contract; and hence, plaintiff sues for the gross amount of the monthly deficiencies up to the time necessary to equal the sum due him—about $11,600, with ten per cent, per annum interest on each month’s deficiency as it occurred.</p> <p>The answer denies the contract, and pretty much all the averments in the complaint, the general demurrer first put in by defendants having been overruled.</p> <p>The Court below instructed the jury in effect that, by the contract, plaintiff was to be paid the $12,000 out of the net proceeds of the ditches mentioned therein; and that if they believed plaintiff had, at the commencement of this suit, received those proceeds, they must find for defendants; and further, that although by the contract, defendants agreed to supply water sufficient to make the net proceeds amount to $1,000 per month, yet if they failed to furnish such supply, they were only liable to pay interest at ten per cent, per annum on the deficiencies, until such deficiencies were paid from the net proceeds of the sales of water; and that defendants were not liable to pay either deficiencies or interest thereon in any way, except out of the net proceeds of such sales; and further, that any general verdict must be for defendants, because the complaint does not aver that plaintiff has not received the full amount of the net proceeds of the sales of water from the ditches.</p> <p>Verdict for defendants. Plaintiff appeals.</p>

<p>The averments of possession and ouster in this case, were held to he insufficiently denied. See statement of facts.</p> <p>In ejectment for mineral land, plaintiff averred possession of a large tract of land, including the mining ground in controversy, and that he occupied the land for agricultural and mining purposes, without stating that any use was made of the particular portion held by defendants. This averment of possession, and also the averment of ouster, were insufficiently denied in the answer; but the answer averred affirmatively, that, at the time defendants entered upon the ground in dispute, it was a part of the public domain of the United States, contained large and valuable deposits of gold, that they entered upon and took possession of it for mining purposes, and that they have since held and used it for such purposes only. The Court below gave judgment for plaintiff on the pleadings. Held, that these affirmative averments of defendants being proved, plaintiff could not recover without showing such an actual and meritorious possession and occupancy, as rendered the interference of the defendants unjust and inequitable ; that he could not recover on the pleadings, because the character of his possession did not appear, the complaint not averring that this particular portion of the land was ever used by plaintiff for any purpose whatever.</p> <p>The allegation of possession is too broad to defeat the rights of a person who has, in good faith, located upon public mineral land for the purpose of mining. When a party enters upon mineral land for the purpose of mining, he cannot be presumed to be a trespasser; for if the land be not private property, he has the right to enter upon it for that purpose; and, until it is shown that the title has passed from the government, the statutory presumption, (Wood’s Dig. 527) that it is public land, applies.</p> <p>Mere entry and possession give no right to the exclusive enjoyment of any given quantity of the public mineral lands of the State.</p> <p>As a general rule, the public mineral lands of the State are open to the occupancy . of every person who, in good faith, chooses to enter upon them for the purpose of mining.</p> <p>But this rule has its limitations, to be fixed by the facts of each particular case. Certain possessory rights, and rights of property in the mining region, though not founded on a valid legal title, will be protected against the miner—as valuable permanent improvements, such as houses, orchards, vineyards, growing crops, etc.</p>

The suit was for possession of land. The bill charged that plaintiff had for a number of years past been in peaceable possession of a piece of land called “ Hicks’ Pocket”; that the land was and for a long time past had been inclosed; that he had good title to the land, and that defendants, in the latter part of August, 1859, entered forcibly upon it and by means of threats, numbers and intimidation, retained the possession ; that he had brought an action of forcible entry,…

<p>In a proceeding by an elector to contest the right to an office of a party returned as elected thereto at a general election, the defendant first moved to dismiss the proceedings; his motion being overruled, he declined to answer the statement filed by the contestant, and the Court, without proof by either party, annulled the election. Held, that this was error, and that the proceeding should have been dismissed.</p> <p>The public is interested in a contest of this character; it is not a matter solely between the parties to the record, and the popular will is not to be set aside upon the mere failure of a party to respond to charges alleged against his right by an individual elector. It is not sufficient that ample causes of contest be set forth in the statement filed by a contestant; their truth must be established by clear proof, before an election can be annulled.</p> <p>Under the twenty-first section of article four of the Constitution of this State, a person holding the Federal office described in that section, is incapable of being elected to a State office; he cannot receive votes cast so as to give him a right to take the State office upon or after resigning the Federal office. The word “ eligible ” in this section means capable of being chosen, the subject of selection or choice.</p> <p>The term “ compensation,” in section 21, art. 4 of the Constitution of this State, means the income of the office, not the profit over and above the necessary expenses of the office.</p> <p>In suit under our statute by an elector, to contest an election, he becomes a party, and is responsible for costs if he fail. The Court has no discretion to dismiss or entertain the case, as it deems the public interest requires. Uor has the State’s Attorney such discretion. The case is prosecuted like any other action instituted by a private citizen, subject only to the provisions of the statute.</p>

<p>Appeal from the Tenth District.</p> <p>Suit for nine hundred and nineteen dollars and eighty-seven cents, balance due for hay “sold and delivered by plaintiff to defendant.”' The answer was, 1st, a general denial, and 2d, averments that defendant contracted with plaintiff “ for the purchase of a certain quantity of hay, to be delivered upon demand,” and that defendant afterwards “ advanced to plaintiff two hundred dollars as prepayment in part for said hay to be thereafter delivered,” etc.; that demand had been made for such delivery, and refused.</p> <p>The hay was burned up a few days after the payment of the two hundred dollars, as stated in the syllabus, which see.</p> <p>The jury found for plaintiff one thousand and eighty dollars, and costs; judgment accordingly. Defendant appeals.</p>

Bill to enjoin a Sheriff’s sale of real estate, on the ground that it would cloud the title of plaintiff. The case was sent to a Referee, who reported a judgment for plaintiff. The report Was confirmed by the Court, and final judgment entered, perpetually enjoining defendants from selling or in any way interfering with the property. Defendants appeal. The facts sufficiently appear in the opinion of the Court.

<p>Appeal from the Tenth District.</p> <p>For the two instructions of the Court, see syllabus.</p> <p>The jury found for plaintiffs. Judgment was entered, perpetually restraining defendants from going upon, or interfering with the ground in dispute.</p> <p>Defendants appeal.</p>

To the facts stated in the opinion, add that the tailings were deposited by an extension of defendants’ flume upon plaintiffs’ ground—that is to say: defendants, after crossing their own lower line with their sluice, proceeded, from time to time, as the tailings accumulated at the end of each piece of flume, to add other pieces, so that, at the commencement of this suit, they had encroached with their sluice over eight hundred feet upon plaintiffs’ claims.

The allegations of the complaint are, that “ on, etc., plaintiffs were, and have been, and still are, the legal owners of, and lawfully entitled to, the possession of said premises, and were in the quiet, peaceable, and actual possession thereof,” etc., and that “ defendants did enter in and upon said premises, and forcibly eject, expel and drive plaintiffs therefrom, and took the possession of said premises, and have retained the possession up to the present time, and…

To the facts stated in the opinion, add, that the answer in the original action (13 Cal. 220) was general denial, want of jurisdiction, and Statute of Limitations. • The Judge below first granted a rule to show cause why an injunction should not issue as prayed for. On the return day of the rule, defendants demurred to the complaint, on the ground, among others, that it did not state facts sufficient to constitute a cause of action.

<p>Ik forcible entry and detainer tried in the County Court, on appeal from a Justice’s Court, plaintiff, having obtained a verdict for one hundred and fifty dollars damages, moved that they be trebled. Motion denied, and judgment entered for one hundred and fifty dollars, with restitution of the premises. Plaintiff applies to the Supreme Court for mandamus to compel the Court below to render judgment for treble damages. Held, that the application must be denied, as plaintiff has an adequate remedy by appeal; pending which, plaintiff can enforce so much of the judgment as awards restitution. The judgment can be corrected in this Court, if proper, by trebling the damages.</p>

The superfluous matter set up in the complaint relates to the sale on execution. The Court below gave final judgment for defendants on the demurrer. Plaintiffs appeal.

<p>Appeal from the Fifteenth District.</p> <p>The suit was for the value of the gold alleged to have been taken by defendants, from the claim of plaintiffs, and converted to their own use. The complaint averred continuous trespasses by defendants upon plaintiffs’ claims—the trespasses consisting in removing sluice-boxes, filling up ditches, and taking out the gold on the claims. Damages were asked in the sum of $60,500, and, also, an injunction, which was granted, and subsequently, before the hearing, dissolved.</p> <p>The recorded notice of the quartz claim of respondents is as follows: “ Notice is hereby given, that we, the undersigned, under the name and title of the ’49 and ’56 Quartz Mining Company, have this four teenth day of November, A. D. 1856, claimed, and by virtue of these presents do claim, ten (10) claims of one hundred and fifty (150) feet each, on the quartz lead, known as the Rich Gulch Quartz Lead, situated near Yankee Hill, in Oregon township, and county of Butte— said claims commencing at Turner, White & Co.’s claims, (known as the Virgin Quartz Mining Company) running thence in a southerly direction fifteen hundred (1500) feet, comprising all the spurs and branches of said lead.”</p> <p>There was much conflicting evidence as to whether, by the custom of miners in different districts, the loose, detached quartz rock belonged to the locator of the lead.</p> <p>The case was tried before the Court by consent of parties, and judgment rendered dismissing the action. The facts sufficiently appear in the opinion. Plaintiffs appeal.</p>

<p>A statement on motion for new trial signed by the Judge, and appearing, from the minutes of the Court, to have been used on the hearing of the motion, is sufficiently authenticated. The statute points out no mode of authentication, and any satisfactory evidence in the record, in some legitimate and proper form, that, the statement has been examined and approved by the Judge, is sufficient.</p> <p>Running water, so long as it continues to flow in its natural course, cannot be made the subject of private ownership. A right may be acquired to its use, which will be regarded and protected as property, but this right carries with it no specific property in the water itself.</p> <p>The owner of a ditch has the exclusive and absolute power of control, and right of enjoyment, of the water diverted by and flowing in his ditch, but whether such water be his private property, it is not necessary to decide.</p> <p>A person entitled to divert a given quantity of the water of a stream, may take the same at any point on the stream, and may change the point of diversion at pleasure, if the rights of others be not injuriously affected by the change.</p> <p>This right so to change the point of diversion does not depend upon how the right to the use of the water was acquired, whether by express grant or by prescription ; or whether it rests in the parol license, or the presumed consent of the proprietor. The difference as to the source of the right relates to the mode of determining its existence and extent, and not to the manner of its exercise and enjoyment.</p> <p>In this case, the rights of both parties, as fixed by the priority and extent of their respective appropriations, though not founded on the legal title, are as perfect and absolute as if acquired by prescription, or express grant from the riparian owner.</p> <p>Where there are several separate defenses, each of which is sufficient to defeat the action, and these defenses are submitted to the jury, with evidence in support of each, and the verdict is general for the defendants, it cannot be set aside, if it bo right as to any one issue, though wrong as to all the others.</p> <p>A verdict found on any fact or title distinctly put in issue, is conclusive in another action between the same parties or their privies in respect of the same fact or title.</p> <p>But the fact or title must be material and relevant; must be distinctly in issue; must be tried by the jury, and constitute the basis of their verdict; and, unless specially found, must have been necessarily passed upon by the jury.</p> <p>Where a verdict is general, its effect will be limited to such issues as necessarily controlled the action of the jury.</p>

The complaint averred that in June, 1856, plaintiff purchased the premises, situated near and east of Nevada, by deed, from Dixon and Friedenthall; that he thereby immediately entered upon and took possession, and held the premises; that being so in possession, and entitled to the possession of the premises, the defendant, “ afterward, to wit: on or about the twelfth day of December, 1857, wrongfully and unlawfully, and without right, entered upon, took possession, ousted…

<p>Appeal from the Fourteenth District.</p> <p>In November, 1854, plaintiffs entered into a written contract with defendant Hess, the essential terms of which are, that plaintiffs “ do hereby agree to sell and convey unto the said - Hess a certain bridge located, situated and lying on the south fork of the Yuba river, etc., known as Sparks’ bridge, at, etc., across the south fork of said river, together with the toll-house, stables and out-houses of every description ; and also, the right and privilege of the said-Sparks in and to the dug road there made on each side of said bridge, together with all the privileges and appurtenances appertaining, and in any wise belonging to said bridge.” The consideration to be paid by Hess was $8,000, payable, $3,000 in ten days from date; $1,000 December 1st, 1854; $2,400, or thereabouts, by taking up a mortgage note held by a third party against plaintiffs; the balance in six months from date of contract, with interest at three per cent, per month. The plaintiffs were “ to retain possession of said bridge until the payment of said first $3,000, to be paid in ten days from date, and on the payment of the same by the said Thomas P. Hess, the said M. & H. B. Sparks (plaintiffs) agree to deliver possession of said bridge to said Hess, with all the privileges thereunto belonging; and on the payment of said several sums of money when the same become due, the said M. & H. B. Sparks (plaintiffs) agree to convey by deed to the said Hess the title to said bridge, with general covenants of title, and that the same is free and clear from all incumbrances.” Signed by plaintiffs and defendant Hess.</p> <p>Hess paid the sums mentioned in the contract, took up the note and mortgage amounting to $2,900, and received possession of the premises, leaving still due plaintiffs $1,100. Plaintiffs tendered to Hess a deed and demanded payment. Defendant Wood took possession of the property soon after the contract, received the tolls, and improved the road, remaining in possession until the bridge was carried away by water in the latter part of 1855. Hess was probably acting for Wood. In January, 1856, Wood and others became incorporated under the name of the Virginia Turnpike Co. This company then constructed a new bridge on the site of the old one, except that one end was moved about the width thereof up stream—portions of the old abutment being used. They also constructed a wagon road leading from the bridge up the hills, in doing which they used portions of the road constructed by plaintiffs, but the greater proportion of this road was on different ground near the old road of plaintiffs. Wood had notice of plaintiffs’ demand for the $1,100 purchase money, as did said company, of which he is and ever has been an officer. There was no testimony as to whether this company purchased from Wood.</p> <p>Plaintiffs filed their complaint against Hess & Wood, setting up the contract, averring full performance on their part, with a tender of a deed, etc.; that, by the contract, they retained the title and a vendor’s lien as security; and that Wood was in possession, claiming some interest under Hess, and had, in fact, paid some of the money on the contract. Prayer for judgment against Hess for $2,600, the amount of principal and interest due under the contract; that the vendor’s lien against the premises be enforced; that they be sold and the proceeds applied to the satisfaction of the judgment, execution to be allowed for any balance, and that Hess & Wood be barred and foreclosed, etc.</p> <p>Subsequently, the Virginia Turnpike Co. was made party defendant by order of Court. This company demurred to the complaint on the grounds, that the property described therein was not the subject of the vendor’s lien claimed; that the contract does not create any such lien; and that no cause of action is shown against the company. The demurrer was overruled, and the company answered, setting up that the bridge was situated on public land, and that plaintiffs never claimed, or sold, or contracted to sell to Hess, any right, title, interest or possession in or to the land on which the bridge was situated, or any land in the vicinity; that the dug road named in the contract was, at the date thereof, a public county road, on public land, and not subject to private sale; that the bridge and stable named in the contract were swept away by water; and tljat this company constructed a new bridge and a road pear the site of the former; was the owner and in possession thereof in its own right, and not by purchase from, or in privity with, either of the co-defendants, and denies that the company ever had any control, possession, or ownership of the dug road, toll-house, stables or out-houses named in the contract, or that plaintiffs have any lien on the bridge or road owned and constructed by this defendant.</p> <p>Wood also demurred on various grounds, the substance of which is, that complaint does not state facts sufficient to constitute a cause of action; that, under the contract, plaintiffs never sold to Hess the property named, but retained the title in themselves, and can recover possession by an action at law; that the property alleged to have been sold was not in existence at the commencement of this suit; that it does not appear that Wood had notice of the so-called vendor’s lien, nor what estate in the premises plaintiffs owned or sold to Hess, nor that they ever owned or sold the land on which the bridge or other structures were erected, or through which the “ dug roads” were made; that the dug road could not be sold as private property, and that nothing was sold to Hess, except the structures alone; and for any injuries suffered, plaintiffs had a clear legal remedy. Demurrer overruled; Wood answered, setting up the same defense as the company for the most part; admitting that he claimed an interest in the old bridge, but denied any interest in or possession of the dug road, or other structures.</p> <p>The decree below gave plaintiffs personal judgment against Hess as claimed; directed that the property be sold, and the proceeds applied to said judgment, any balance to be deposited in Court; that “ the vendor’s lien of plaintiffs on the premises described in the complaint be and the same is hereby foreclosed; ” that all of the defendants and persons claiming through them be barred and foreclosed of all right, title, interest, or equity of redemption, except the redemption by statute in and to the premises, which are described to be the bridge, the outhouses connected with the same, the land on which they stand, the dug road running from the bridge up the hills on each side of the river, together with the privileges and appurtenances thereunto belonging. Defendants appeal.</p>

<p>Appeal from the Eleventh District.</p> <p>There was no statement on appeal, but a statement used on motion for new trial. The appeal was from the judgment alone.</p>

<p>Appeal from the Eleventh District.</p> <p>Suit on a note to plaintiff’s intestate, and for sale of premises mortgaged to secure the same. The answer plead payment, and averred that the defendants had, during the life of the deceased, at divers times, paid him money which he promised to apply on the note, and prayed that the sums paid be allowed as an offset. Plaintiff had judgment. Defendants appeal.</p>

<p>Appeal from the Ninth District.</p> <p>The Court below gave judgment for defendants, dismissing the case on general demurrer to the complaint. Plaintiffs appeal.</p>

The complaint alleges that the plaintiffs are husband and wife, and were so previous to the year 1854; that while thus husband and wife, Edward Harper, the husband, acquired the premises in controversy by purchase; that while he was thus the owner, the plaintiffs occupied the premises as their homestead for many months during the years 1853 and 1854; that the premises were the only homestead ever occupied or claimed by them in this State; that the said Edward Harper, on the…

In 1856, suit was brought in the Second District Court, by Jones, against Alpheus B. Thompson, for a partition of certain horses, cattle and sheep, on the island of Santa Rosa, belonging to the parties as partners.

The circumstances as to the recovery of the books of Adams & Co., for which the receiver paid the $1,127, are not set out in the record. The case comes up on exceptions to a referee’s report rejecting various items of disbursement by the receiver.

The complaint was in the usual form, claiming possession because of title in plaintiff. The answer denies all the allegations of the complaint; sets up the agreement between Zottman & Kelly, as stated in the opinion of the Court, offers to comply with the agreement; avers that Zottman has put it out of his power to comply with its terms; and that defendants are not bound to accept a deed from plaintiff instead of Zottman.

<p>Appeal from the Twelfth District.</p> <p>Plaintiffs, with various other merchants of San Francisco and Sacramento, in May and June, 1858, sold on credit and delivered to Bailey Gatzert, a merchant in Nevada, goods amounting to $6,924 82. In March previous he had bought of most of these parties other goods on credit, and paid for them. On the twenty-ninth of June, 1858, many of the goods first named, as also other goods, were in his store at Nevada, and on that day were seized by defendant as Sheriff, on an attachment issued in the suit of St. Losky, Levy & Co. v. Gatzert. July 15th, 1858, St. Losky, Levy & Co. had judgment, and execution being issued, was levied on the goods. July 19 th, plaintiffs commenced this action, and the goods having been taken from the Sheriff by the Coroner, and afterwards redelivered, on the proper undertaking, were sold by the Sheriff, and the proceeds applied on the execution in favor of St. Losky, Levy & Co.</p> <p>On the trial, to prove title to the goods described in the complaint, which had been sold to Gatzert by persons other than plaintiffs, they offered in evidence certain bills of sale, executed respectively by the vendors to them, plaintiffs. The consideration stated in the several bills of sale was different, but they were all of the same date and in the following form:</p> <p>“ In consideration of the sum of four hundred and eighty-eight dollars and fifty cents, received to our full satisfaction of J. H. Coghill & Co., San Francisco, we hereby sell, transfer, assign and set over to said Coghill & Co., San Francisco, all the goods and merchandise and property we own, have, or have an interest in, in a store in Nevada, county of Nevada, formerly occupied by Bailey Gatzert, and now in the possession, of the Sheriff of the county of Nevada, said goods forwarded by us to Bailey Gatzert, Nevada.</p> <p>“ San Francisco, July 17th, 1858.</p> <p>(Signed) Smith, McDaniel & Co.”</p> <p>At the time of the execution of these bills of sale the goods were in the store of Gatzert at Nevada, in the custody of defendant as Sheriff, under the execution of St. Losky, Levy & Co.</p> <p>Plaintiffs then offered as a witness D. McDaniel, a member of the firm of Smith, McDaniel & Co. above named, who, on his voir dire, said: “ If the plaintiffs should recover in this suit, I don’t know but what we might expect some portion of it, though it is optional with Coghill & Co.; we have made over all our interest in the goods to Cog-hill & Co. They have not paid us anything. It was a transfer of the goods for nothing, to enable them to sue for them. I never calculated on anything. Coghill & Co. did not agree to pay anything. I executed paper ‘ A ’ to-night, before testifying; there was no other agreement at the time.”</p> <p>Paper “A” was a release from Smith, McDaniel & Co., to Coghill & Co., of all right, title and interest in the suit, and the subject-matter thereof. Coghill & Co. released Smith, McDaniel & Co. from all liability for costs or expenses, past or future.</p> <p>The witness also said he had never paid anything for expenses of suit. There was also a release from the attorneys of plaintiffs to Smith, McDaniel & Co., of all liability for fees, &c.</p> <p>Defendant now objected to McDaniel as a witness, on the ground— first, of interest; in the event of the action ; second, that he was assignee of a thing in action not arising out of contract.</p> <p>Objection overruled; defendant excepting. Witness then testified to various facts pertinent to the issue: such as the sale and delivery of the goods to Gatzert, and his declarations, &c., inducing the sale.</p> <p>Plaintiffs introduced several other witnesses, standing in the same position substantially with McDaniel, and they testified to similar facts. Same objections, ruling, and exceptions.</p> <p>The various vendors had taken notes of Gatzert for the goods sold. These notes were due at the commencement of this suit; were negotiable, with two exceptions, and were delivered to Coghill & Co., with the bills of sale. No offer to return the notes to Gatzert was made until the 18th or 19th August, 1858 ; no notice was ever given him of any rescission of the contracts of sale to him, nor was any demand made on him for the goods. Plaintiffs had judgment for $6,924, 82-100. The value of the property as alleged in the complaint was $6,000.</p> <p>Por further facts, see opinion.</p>

<p>Application for mandamus to the Probate Judge of city and county of San Francisco.</p> <p>Charles G. Scott died out of this State, leaving' property in Santa Clara county, where letters of administration were granted to IL, a creditor. Subsequently, the widow of S. arrives in California and applies to the Probate Court of Santa Clara to revoke the letters of IL, on the ground that they should have been granted by the Probate Court of San Francisco. The attorneys of the widow and of K. then filed a stipulation, agreeing that the cause be transferred to the Probate Court of San Francisco; K. also filing a petition, as Administrator, that the1 cause be so transferred, on the ground that the widow and a majority of the witnesses resided there, that a portion of the estate of the deceased was there, and that the interests of several persons interested in the estate would be advanced by the transfer. The Santa Clara Court ordered the cause to be trasferred. The papers having been filed in the Probate Court of San Francisco, K. applied to that Court for leave to sell the real estate of his intestate. The Court declined taking jurisdiction of the cause, and made an order retransferring it to the Probate Court of Santa Clara. K. then applied to this latter Court for a like order of sale, but the Court decided it had lost jurisdiction of the cause by the transfer to San Francisco, and declined any order,</p> <p>The Administrator applies to the Supreme Court for a mandamus compelling the Prohate Judge of San Francisco to take jurisdiction of the cause.</p>

<p>Appeal from the Sixth District.</p> <p>The essential facts appear in the opinion.</p>

<p>Appeal from the Twelfth District.</p> <p>The locus in quo was owned by defendant at the time of the alleged trespass, his title coming from Edwards & Hackett by conveyance, in August, 1859.</p> <p>In November, 1853, Edwards & Hackett, being the owners, leased the premises to Miller for two years, the lease containing covenants, among others, that the lessee should not assign or underlet without the written consent of the lessors; and that if any of the covenants in the lease were violated, the lease should be null and void, at the option of the lessors.</p> <p>Miller, without the consent of the lessors, assigned a portion of the premises to the plaintiff, who, at the time of the alleged trespass, was in possession under such assignment, and had growing crops, and grape vines in a nursery. At the time of this assignment, plaintiff knew of the terms and covenants of the original lease to Miller.</p> <p>In June, 1854, the lease from Edwards & Hackett to Miller was canceled, the latter selling out to the former.</p> <p>Plaintiff forcibly ejected defendant from the premises, and refused to permit him to gather the crops and grape vines he had planted.</p> <p>The Court charged the jury that, if the plaintiff was in the peaceable possession of the premises, and the defendant forcibly ejected him and took possession, the plaintiff was entitled to recover; also, that there was no such forfeiture of the lease, or leasehold estate, as would authorize Edwards & Hackett, or those holding under them, to enter forcibly on the possession of the plaintiff; also, that, if the jury found for the plaintiff under the foregoing charges, he was entitled to recover the value of the growing crops and grape vines.</p> <p>Exception taken.</p> <p>Verdict for plaintiff, one hundred and fifty dollars ; judgment accordingly. Defendant appeals.</p>

<p>A will made in Texas, operating upon property there situated, must be interpreted by the law of that State. To that law, reference must be had to determine the capacity of the testator, the extent of his power of disposition, and the conditions upon which the power of alienation vested in the guardian of his children, appointed by the will, is to be exercised.</p> <p>In the absence of proof to the contrary, the common law is presumed to exist in those States of the Union which were originally colonies of England, or were carved out of such colonies.</p> <p>The same presumption prevails as to the existence of the common law in those States which have been established in territory acquired since the revolution, where such territory was not, at the time of its acquisition, occupied by an organized and civilized community; but where the population, upon the establishment of government, was formed by emigration from the original States.</p> <p>Mo such presumption can prevail as to the States of Florida, Louisiana and Texas. In those States, at the time of their accession to the country, organized governments existed, the laws of which remained in force until they were abrogated by proper authority, and new laws were promulgated.</p> <p>In the absence of proof as to the laws of Texas, the Courts of this State, in interpreting a will made in that State, will presume its laws to be in accordance with the laws of California.</p> <p>D, a resident of Texas, and possessed of property situated in that State, makes a will, giving all his estate, real and personal, to his wife and children, in equal interest, one with the other, and investing his wife with the sole and entire control of the whole estate daring her life, for the benefit of herself and children, free from the control and guidance of the Courts of law in that or any other State, where she may happen to reside at the time of bis death, with full and complete power in her own name, and as guardian of his children, to sell and convey, or exchange, any portion or all of his estate, and to give title to the same, and to purchase with the proceeds such other property as she might deem best for her own interest, and that of his children, “ without the intervention or interposition of any Court whatever,” and appointing her Executrix of his will and guardian of his children ; Held, that, under the will, the wife has power to sell the entire property of the estate; and that, describing herself in a bill of sale, as “ Executrix;” etc., does not limit the estate sold to her interest as such Executrix; the designation being intended merely to identify herself as the individual mentioned in the will. The designation does not operate as a limitation upon her power.</p> <p>The statute of this State, relative to guardians, and the disposition of the estate left to wards, only applies when there is no direction by will as to such disposition.</p> <p>Where a will appoints a guardian, there is no necessity for the issuance of any letters of guardianship to authorize the guardian to act. The guardian's authority comes directly from the will.</p> <p>In this State there is no limitation upon the power of disposition by will.</p> <p>An entire contract is indivisible—the whole must stand or fall together. But a contract, made at the same time, for different articles, at different'prices, is not an entire contract, unless the taking of the whole is essential from the character of the property, or is made so by the agreement of the parties, or unless it is of such a nature that a failure to obtain a part of the articles, would materially affect the objects of the contract, and thus have influenced the sale, had such a failure been anticipated.</p> <p>A sale of nine slaves for a gross sum is an entire contract. There being no means afforded for determining the price of each one, the agreement is implied that the whole are to be taken, or none.</p> <p>Where, in a bill of sale of all the cattle of a certain estate, estimated at seven thousand head, a total price being fixed, it was stipulated that the vendee, on arriving in Texas where the cattle were, might choose to take all the cattle of the estate without counting them, in which event he was to notify the agents of the vendors of his choice, and pay an additional $4,000; but if a count was had, and the cattle exceeded or fell short of the estimated number, the excess or deficiency should be paid for at the rate of eight dollars per head ; and no count was ever made, and no notification ever given by the vendee, that he took the cattle without a count; Held, that the vendor, on the facts, cannot recover the $4,000; that the only obligation of the vendee, in the first instance, is to receive the cattle and pay for any excess over the estimated number, if counted; that his liability for the $4,000 depended entirely on his choice to take the cattle without a count, and that this choice was a mere privilege, to be exercised or not, at his option.</p> <p>The vendor, after waiting a reasonable time for the vendee to make his choice, he neglecting or refusing to make it, could fix his liability, by making the count himself.</p> <p>The doctrine of election has no application here. That doctrine applies only to cases where the party, upon whom rests the performance, stands in the same position to both alternatives presented, and is bound to indicate his choice between them. Here, the vendee was bound to choose only in the event he desired to take the cattle without a count. If he did not so desire, he was not required to give notice to that effect. His obligation to pay for any excess was absolute, without any expression of choice; but his obligation to pay the $4,000 was conditional, dependent solely upon the indication of his desire to dispense with the count.</p> <p>Where the doctrine of election is applicable, the right of election, upon failure of the party upon whom the performance rests, to indicate his choice, passes to the other side, as in this way only can the obligation become absolute and determinate.</p>

<p>Section two hundred and fifty-four of the Practice Act, enlarges the class of cases in which equitable relief could formerly be sought in quieting title. It authorizes the interposition of equity in cases where previously bills of peace would, not lie.</p> <p>Under this section, a party in possession of real property may bring a bill in equity to quiet title against a party out of possession, who claims an estate or interest adverse to him, without waiting until he has been disturbed in his possession by legal proceedings against him, in which his title has been successfully maintained.</p> <p>In such suit, the Court sitting in equity may direct, when proper, an issue to be framed upon the pleadings and submitted to a jury, if questions of a purely legal character in relation to the title arise.</p> <p>Upon the verdict, if a new trial be not granted, the Court can act, by dismissing the bill, or by adjudging the adverse estate or interest claimed to be invalid, and awrarding a perpetual injunction against its assertion to the property in question.</p> <p>Where in such suit an injunction was granted on the complaint, restraining defendants from surveying or selling the premises pending suit, it was dissolved, on filing an answer setting up paramount title in defendants; Held, that the injunction was properly dissolved, because the validity of defendants’ title should be judicially determined before its assertion be enjoined.</p> <p>Suit under section two hundred and fifty-four of the Practice Act, only lies with reference to property of which the plaintiff is in possession; and where suit is brought, under that section, to quiet title to a ranch, and plaintiff is in possession of a portion only, the suit must be considered as brought to determine the title to that portion, and no injunction lies to restrain parties who are entire strangers to the title from selling that portion, as their conveyances" would not cloud plaintiff's title. And if the grantees under such conveyances should invade the possession of plaintiff, or unlawfully detain the same, the remedy at law is ample.</p> <p>As to that portion of the ranch occupied by settlers, such suit has nothing to do. If they are trespassers, ejectment lies, with an injunction to restrain waste pending suit.</p> <p>In this State all property of the deceased, real and personal, remains in the possession of the administrator until administration of the estate is had, or a decree of distribution is made by the Probate Court. The administrator, until then, is the proper party plaintiff in a suit to quiet title to the estate.</p>

The Court below found—1st. That on the second day of January, 1858, plaintiff, a resident of Yuba county, was a farmer, house-holder, and head of a family, having a wife and three children dwelling with him in said county. 2d. That at the time aforesaid, plaintiff was owner and in possession of two horses and one wagon, with the harness therefor, and no other horse, wagon, or harness; that said horses, wagon, and harness were necessary to plaintiff’s farming business, and to…

To the facts stated in the opinion of the Court, it may he well to add, that defendant showed that one Sisson placed a notice at the outlet of the main lake, about July, 1853, claiming the water of the lakes. These notices were signed “ Sisson & Co.” and were placed at different points. Sisson never took any steps toward the construction of a ditch, or the appropriation of the water: made no survey and placed no stakes.

<p>The deposition of a surveyor, who ran the boundary lines of a grant, taken in one action, is admissible in another action between different parties, as hearsay evidence, upon the location of such lines, after his death.</p> <p>Hence the deposition of Vioget, as to the position of the southern boundary of the Sutter grant, offered in connection with the map drawn by him, is admissible, as hearsay evidence—though taken in another action between different parties.</p> <p>The declarations, on a question of boundary, of a deceased person, who was in a situation to be acquainted with the'matter, and who was at the time free from any interest therein, are admissible, whether the boundary be one of a general or public interest, or be one between the estates of private proprietors. And their admissibility cannot-be-affectqd, by the fact, that they are reduced to writing, and were made under oath in a judicial proceeding.</p> <p>Such evidence is admissible as hearsay evidence from the necessity of the case, which, in this instance, presents itself with peculiar force. The survey by Vioget was made in 1841, when the valley of the Sacramento was occupied almost exclusively by roving tribes of Indians, and no interest was felt in preserving, on the surface of the ground, the evidence of its lines. At that time there were no white men, nor were there for years afterwards, to question Sutter’s claim, or to dispute as to its boundaries. Whatever landmarks were originally made must have soon disappeared. Two cities, Sacramento and Marysville, one of them the second in population in the State, are built upon the land supposed to be within the grant to Sutter; and residents of these cities, and occupiers of land lying between them—numbered by thousands— have taken conveyances from Sutter, and expended their money in improvements, relying upon the survey and map of Vioget as evidence that then-property is within the grant.</p> <p>Besides, the land is divided into a large number of farms; and the doctrine is, that where the tract originally surveyed was large, and was subsequently subdivided into numerous farms, the boundary of the original tract serving as a boundary of the several farms, such evidence is admitted on principles similar to those which relate to the boundaries of a manor or parish.</p> <p>In England, such evidence is confined to showing boundaries of parishes, manors and the like, which are of public interest, and is not allowed to establish the boundary of a private estate, unless the latter be identical with that of a public or quasi public nature.</p> <p>In ejectment for land within Sutter’s Fort, in the city of Sacramento, if the petition of Sutter, soliciting eleven leagues in the establishment, “ named New Helvetia,” and the grant in which is conceded the land referred to in the petition “ named New Helvetia,” be in evidence, together with the declarations of Vioget in connection with the accompanying map, fixing the southern boundary of the grant some miles below the American river, and, also, together with the proof that the territory lying between the American river and Sutterville, the western line of Leidesdorff’s grant, and the Sacramento river, embracing “ Sutter’s Fort,” and the inclosures and settlements around it, was known and recognized by every one throughout the country as New Helvetia; that Sutter had entire and undisputed possession of the same; that no one questioned his right till 1850 ; and that the premises in dispute were within his inclosures at the Fort; the evidence would be prima facie, if not conclusive proof, that the premises were covered by the grant.</p> <p>Where a party in ejectment relies upon documentary evidence of title and prior possession, if he fail in the former, he may still rely upon the latter. The failure to prove the paper title, does not impair the just force and effect of the possession.</p> <p>The eleventh section of the act of 1856, for the protection of actual settlers, and to quiet land titles, only applies to actions brought to recover the possession of lands after the issuance of a patent.</p>

The original action was by defendants, Scott & Vantine, against Gibbons & Glynn. The return of the Sheriff shows personal service on Gibbons, plaintiff here; and an attorney having been appointed to represent Glynn, who had become a non-resident of the State, in due time final judgment by default was entered up against defendants.

For facts see opinion. The suit is against Sherman, Jeffries, and the various tenants in possession of the premises. Sherman and Jeffries alone answered.

<p>Under the Consolidation Act of 1858, the Treasurer of the city and county of Sacramento is entitled to receive for his official services only $3,000 per annum. He is not entitled to the per centage allowed by the State to County Treasurers for money paid by them into the State Treasury. This per centage belongs to the city and county of Sacramento.</p> <p>Statutes should be construed according to what appears to be the intention of the Legislature, and even though two statutes relating to the same subject be not in terms repugnant or inconsistent, if the later statute was clearly intended to prescribe the only rule which should govern, it will be construed as repealing the original Act.</p>

Ejectment for one-eighth interest or share in mining claims known as the “ Democratic Company ” claims, the averment in the complaint being that plaintiff “ was lawfully seized and possessed,” and that defendants, “ with force and arms, wrongfully and unlawfully broke and entered,” * * * “ and unlawfully ejected said plaintiff and took possession * * * and still continue forcibly, unlawfully and wrongfully to withhold the possession, * * * and wrongfully, and without color…

The case being sent to a Referee, he reported a judgment in favor of defendant. Plaintiff prepared and filed a statement on motion to set aside the report, and for new trial. When the motion came up, no one appearing for plaintiff, the motion was denied, and judgment subsequently entered up in accordance with the report. Plaintiff appeals from the judgment, and from the order denying new trial.

The land in suit is a small portion of a large tract, embracing 1,300 acres. The owners of this tract, at a certain time, by sundry mesne conveyances from Sutter, were six persons, of whom plaintiff and one Hedges were two—the former deriving his title from one Mott, and holding it as security for indorsements. These parties held as tenants in common. On partition, each party received from the others a quitclaim deed for his share.

While the jury were being empanneled, the attorney of defendant, Emily, suggested that she had married Johnson since issue joined.

<p>Appeal from the Eleventh District.</p> <p>February 23d, 1857, defendant executed his promissory note to plaintiff, and deposited with him, as security for the notes, seven shares stock in the Bear River and Auburn Mining Co. February 24th, 1857, defendant executed another note to plaintiff, and pledged as security twenty additional shares of stock in said company. Plaintiff sues for the amount of the notes and prays for sale of the stock, and application of the proceeds to the judgment.</p> <p>After a jury trial and verdict for plaintiff, the case was sent to a Referee to report facts on certain issues. Report filed February 22d, 1859. July 80th, 1859, defendant moves to set aside report as against evidence. August 1st, 1859, defendant files exceptions to- the report. ' July 29th, 1859, judgment was rendered in accordance with the facts found by the Referee, in favor of plaintiff, for the amount of the notes, and directing a sale of the whole twenty-seven shares of stock, and that “the proceeds of sale be applied to the payment of the above judgment.”</p> <p>July 28th, 1859, defendant served on plaintiff notice of motion for new trial, on the ground that the report was against law and evidence. August 2d, 1859, defendant filed statement on motion for new trial. October 19th, 1859, the motion for new trial was argued, and overruled on the twenty-second of that month. November 10th, 1859, defendant’s statement on appeal filed and served on plaintiff.</p> <p>Defendant appeals.</p>

The complaint avers that “ defendants forcibly and unlawfully and with strong hand entered,” etc.; and that “ defendants, since said unlawful entry, and since the first day of June, 1857, have continued forcibly and unlawfully, and with strong hand to hold and keep possession so unlawfully obtained as aforesaid,” etc. The answer denies the allegations of the complaint and avers the premises to be public land, and not in the possession of any one when defendants entered.

<p>Appeal from the Seventeenth District.</p> <p>Action of damages for overflowing plaintiffs’ mining claims. Defendant, a water company, owned a flume running across plaintiffs’ claims. The water in the flume occasionally ran over the sides and on to plaintiffs’ claims. On a certain night there was a severe snow storm, and in the morning the water of the flume was found pouring over its sides, for a distance of about ten feet, down on to a pile of pay dirt belonging to plaintiffs—the dirt being in a cut about twenty-five feet wide and ten feet deep, across which the flume ran. Sluices led from the cut into a ravine. The damage claimed was mainly for this pay dirt, washed away through the sluices and otherwise.</p> <p>Plaintiff Wolf, on being informed by a neighbor in the morning, that the water was overflowing, etc., went to St. Louis, a mile distant, and notified defendant. By pulling off a board from the flume a few feet above the cut the overflow could have been stopped, but plaintiff declined to do so, alleging as his reason, that he had not the right.</p> <p>On the trial, defendant offered as a witness one Wheeler, who testified on his voir dire, that he had no interest in the company ; that the stock standing in his name was transferred to him for the sole purpose of making him eligible as secretary of the conipany, he receiving as such secretary a salary of one hundred dollars per month.</p>

<p>Appeal from the Eleventh District. Plaintiff appeals.</p>

Proceedings supplementary to execution: Plaintiff, a judgment creditor of L. W. Ransom, obtained an order citing Horace Beach, secretary of the Citizens’ Steam Navigation Company, to appear, and answer as to the indebtedness of the company to defendant. Beach testified that there was due two hundred and fifty dollars as dividends on fifteen shares of the stock of said company; that the shares stood in the name of E. S. Ransom, wife of defendant.

<p>Dismissal of an appeal in the Supreme Court for want of prosecution, in accordance with the rules of the Court, operates as an affirmance of the judgment below, within the statute relative to undertakings on appeal, unless the order of dismissal be vacated during the term.</p> <p>The cases in which dismissal of an appeal will not operate as a bar to a second appeal, and hence not as an affirmance of the judgment below, are those where the dismissal has been made upon some technical defect in the notice of appeal, or the undertaking, or the like. The bar operates where the dismissal is for want of prosecution, and the order is not vacated during the term, or the dismissal is on the merits.</p>

The prisoner was in custody, on an offense charged, before the commencement of the term of the Court of Sessions at which the indictment was found. He was committed to jail, June 26th, 1859, .and the term began August 8th, 1859. Defendant challenged the panel of the Grand Jury, because not summoned and drawn as. provided in secs. 4, 5 and 6 of the act concerning jurors (Wood’s Dig. 511).

The defendant was in custody, on an offense charged, about two months before the commencement of the term of Court at which he was indicted. The Grand Jury was summoned as in the preceding case—People v. Cuintano. The prisoner had no counsel in the Court of Sessions. He was brought into Court, and an opportunity given of challenging the jury.

<p>Appeal from the Court of Sessions of the city and county of San Francisco.</p>

Ejectment. Complaint in the usual form. The answer denied the allegations of the complaint, and averred, among other things, that defendant held under a deed made by the Sheriff on foreclosure of a mortgage executed by one Wooster to defendant, while he, Wooster, was in possession of the premises.

For facts see opinion. The demurrer specified many causes, and, among them, causes involving the positions discussed by the Court. Plaintiff appeals.

Complaint avers, in substance, as follows: In April, 1855, plaintiff loaned to certain members of the Yreka Water Co. $1,000, for the use and benefit of the company, taking the note of such members therefor, payable in six months. May 24th, 1855, the company, as party of the first part, and one Brooks, as party of the third part, executed a mortgage on the ditch and flumes of the company, to defendants, to secure $64,000, payable in nine months.

John Harris, the plaintiff, on the twenty-ninth October, 1859, filed his complaint against defendants for a partition of certain ditch property, alleging that he was the owner of certain undivided interests therein.

Appellant was indicted and convicted of murder in the first degree, for killing A. S. Carver.

The facts of the case are not stated, because, the opinion being put on a point of practice, the merits were not discussed, though in fact decided.

Motion to dismiss the appeal. Appellant served on respondent a notice of appeal, dated January 1th, 1859, and respondent accepted service of notice same day. This notice was filed with the Clerk of the Court, January 11th, 1859. The Clerk certifies, January 12th, that an undertaking on appeal was filed according to law. The brief of the appellant states it was filed January 12th, 1859.

<p>Appeal from the Seventh District.</p> <p>The answer was a general denial, and an averrment that the land was public land, on which defendants had settled under the preemption laws of the United States. The facts of the case sufficiently appear in the opinion of the Court. Verdict for plaintiff for the whole premises, judgment accordingly, and defendants appeal.</p>

<p>A copy of a notice posted on a mining claim to show its extent, is not admissible in evidence, if the notice itself be attainable. Such evidence is secondary, and is admissible only upon the terms which control its introduction in other cases.</p>

The respondent moved to dismiss the appeal for the reasons stated by the Court. The motion was based on an affidavit setting forth that the examination of the sureties, on notice of justification, showed them to be worth less than the amount required. The examination was also contained in the record.

Suit for specific performance of a contract for the sale of real and personal property, to wit: a mill and mill-site, and a steam tug. Plaintiff had judgment. Defendants appeal.

<p>The undertaking on appeal to the Supreme Court must, in all cases, be filed within five days after filing notice of appeal, and the Court has no power to extend the time.</p> <p>Construing secs. 348 and 337 of the Practice Act together, they provide that an appeal is not effectual for any purpose, unless an undertaking be filed, or a deposit made with the Clerk within five days after filing the notice, and failure to so file the undertaking or make the deposit will be fatal to the appeal, and it must be dismissed.</p>

Motion to dismiss appeal on the ground that the undertaking on appeal was not filed within five days after notice of appeal filed. The judgment appealed from was rendered October 28th, 1858, and the undertaking filed February 1st, 1860, the transcript being filed in the Supreme Court February 2d, 1860—the delay in filing the transcript being accounted for.

<p>A statement on motion for a new trial, regularly settled and signed by the Judge, and containing all the grounds of the motion, but without any specification thereof, may be. amended by the Judge, so as to insert a specification of the grounds of the motion, after the time for filing a statement has passed.</p> <p>Such an amendment, adding no facts or exceptions, cannot affect the merits, and its allowance is in furtherance of justice, and matter of discretion, not of power.</p> <p>There were pending before the Board of U. S. Land Commissioners three cases— No. 558, Nos. 45 and 812. The claimants in No. 558 entered into a written agreement with V., the claimant, and B., his attorney of record in cases Nos. 45 and 812, by which the former agreed to pay to V. a certain portion of the proceeds of the sales of that portion of the claim No. 558, known as the Miranda claim, the parties agreeing to appoint an agent to go on and make sales. Contemporaneous with this agreement was another between the same parties, by" which V. and B. agreed to withdraw and discontinue claims Nos. 45 and 812 before said Board, and also to cause to be withdrawn the depositions of Theodore Miranda and Francisca Miranda, taken before a Commissioner in said case, No. 558, and on file therein; and to use their “ best endeavors to procure the confirmation of said claim No. 558.” B. was the attorney for the Miranda claim, which was for the same land as claim No. 558. To defeat claim No. 558 he acted for the U. S. Law Agent, in taking said depositions, which were important to the Government in defeating claim 558, and he attempted to carry out his agreement to withdraw said depositions—though he was not directly retained by the Government. V. and B. sue for the specific execution of the agreement. Held, that such agreement is against public policy, and cannot be enforced; that B. could not, without a violation of his duty to the Government as an attorney, carry out such agreement.</p> <p>An attorney after once acting as such in the prosecution of a suit, and having opportunities for knowing the facts of his client’s case, cannot go1 over and render assistance to the adverse side, and then enforce, in a Court of Equity, a contract based on such assistance.</p> <p>An attorney, when acting for his client, is bound to the most scrupulous good faith. Even where the attorney purchases the subject of the suit, the client may set the purchase aside at will, unless the attorney show by clear and conclusive proof, that no advantage was taken, that everything was explained to the client, and that the price was fair and reasonable.</p> <p>Held, further, that the depositions having become regularly a part of the re&rds of the Land Commission, and the Government being thus entitled to use them, like other public archives, the agreement to withdraw them, and thus to interpose obstacles to the exercise of this right of the Government, is contrary to public policy and void, and this, whether the depositions were true or false, or whether the Government would be benefited or not by their possession.</p> <p>There is no difference, in principle, between a contract to keep a witness out of the way, and an agreement to suppress and get from the archives or offices of the Government a deposition—a knowledge of which may be important to the Government.</p> <p>If any part of the consideration of an agreement be void, as against public policy, the whole contract fails.</p> <p>Courts should, of their own motion, dismiss a case based upon a consideration which contravenes public policy, whether the parties to the suit take the objection or not.</p>

<p>An indictment charging defendant with " stealing, taking and leading or driving away,” the property stolen, etc., is not defective under our statute as charging the offense in the disjunctive. The gravamen of the offense is taking and removing the stolen property, and it is immaterial whether the asportation be by means of leading the animals stolen or driving them. The offense is complete by the union of either of these acts and the seizure or appropriation.</p> <p>Either leading or driving away horses charged to have been stolen, etc., is a carrying away within the law.</p> <p>An indictment for larceny describing the property as “ a black or brown mare or filly, branded with a small mule shoe on the left shoulder,” is sufficiently particular in description. To state the color is not necessary, and putting it in the alternative is not a fatal objection, especially when other terms of description are given, which identify the property. Our statute does not require more exactness than obtained at common law.</p> <p>Confessions of a defendant indicted for larceny, made to the prosecutor and owner of the property stolen, upon inducements held out by him, that if defendant would disclose his confederates, he would use his influence to get defendant acquitted, are not admissible in evidence against him.</p> <p>Query. Whether there is any foundation for the distinction between confessions induced by persons who have no authority or control over the prisoner, and those induced by persons having such authority, as Constables, prosecutors and the like.</p>

Defendants, Palmer, Cook, Jones and Wright, composing the firm of Palmer, Cook & Co., and Parker, and Frank Baker, having in their favor, respectively, judgments against Alfred A. Green, brother of plaintiff, caused executions to be issued, and placed in the hands of defendant Uhrig, deputy Sheriff, and defendant Barry, Constable.

<p>Defendant has a right to have the action tried in the county of hjs residence, except in certain cases specified in the statute.—Field, C. J.</p> <p>On motion by defendant to change the place of trial, on the ground that he is sued in the county in which he does not reside, if plaintiff resist the motion because of the convenience of witnesses, the evidence as to the convenience should be as full and particular as that which is required upon an application, for this cause, to transfer the trial to another county. The affidavit must state the names of the witnesses.</p> <p>As matter of practice, where defendant moves to transfer the cause to the county of his residence, plaintiff may resist, by a counter motion to retain the cause on account of the convenience of witnesses, notwithstanding the residence of defendant, and then defendant can reply to the allegations as to the convenience of witnesses; ,or plaintiff, instead of a counter motion, may simply resist the motion of defendant, but reasonable time should be allowed defendant, if desired, to meet the matter set up in opposition to the original motion.</p> <p>The Act of 1858 authorizes suit to be brought in any county designated in the complaint, when the residence of defendant is unknown. But, to resist the application of defendant to change the place of trial, on the ground that he resides in a different county, plaintiff must show that he used all due diligence to ascertain the residence.</p> <p>The practice upon this subject being unsettled, the parties, on the return of the cause, should have an opportunity of fully presenting the merits of the motion.</p>

<p>The doctrine of res judicata applies only to matters put in issue upon the record, and directly determined by the Court or jury. It is not sufficient that the point in dispute was raised by the pleadings in a former action; it must have been passed upon and determined, to make the judgment in such action a bar.</p> <p>In an action for the price of goods sold and delivered, there being a warranty as to the quality of the goods, the breach of the warranty may be relied on in defense, by way of recoupment, to mitigate the amount recovered; but it is not available as a complete defense to the action.</p> <p>In such an action, complaint contained two counts; one upon a special contract for the sale and delivery of the goods; the other upon a claim for goods sold and delivered. Answer denied the contract, and the other allegations of the complaint ; but set up a contract between the parties somewhat different, containing a guaranty as to quality, and alleging that the quality of the goods was not in accordance with the contract, and the breach was relied on as a complete defense. Evidence was introduced upon all the issues made by the pleadings. The Court instructed the jury that, “if the plaintiffs, on the day the contract matured, presented their account and offered to deliver the goods, they fulfilled the contract on their part; and if the defendants did not, within a reasonable time, and within the custom of the trade, make their objection to the article sold, and offer to rescind the contract, they are bound by it, and plaintiffs should recover.” Plaintiffs had verdict and judgment for the price. Held, that in a subsequent action by the defendants against plaintiffs, on the breach of the warranty, for the difference in value between the goods delivered and those contracted for, the former suit is no bar; that the matter in dispute, to wit, this breach of warranty, was not adjudged; that the instruction of the Court took that question from the jury, and directed them to decide the rights of the parties upon other considerations.</p>

<p>Appeal from the Court of Sessions, city and county of San Francisco.</p> <p>Indictment for grand larceny, charged in the indictment to have been committed within said city and county. During the examination of witnesses before the grand jury, when the charge embraced in this indictment was under consideration, P. W. Shepheard, Assistant Prosecuting District Attorney, duly appointed by the Supervisors of said city and county, under the Act of April 23d, 1858, was present. When the defendant was called on to plead, he moved, under the third subdivision of sec. 278 of the Act of 1851, 242, to set aside the indictment, on the ground that said Shepheard was so present before the grand jury, and that he was not within the exceptions of secs. 216, 235 of the same act. Motion overruled, and the plea of not guilty; verdict, “ guilty, as charged in the indictment.”</p> <p>Defendant appeals.</p>

The pleadings consisted of the complaint, demurrer and answer. On the argument in this Court, most of the grounds of demurrer were waived, except that the complaint does not state facts sufficient to constitute a cause of action. The Court 'below gave final judgment for defendants on the demurrer, having previously denied the preliminary injunction asked. Plaintiff appeals from the judgment, and from the order refusing the injunction.

For the facts, see the opinion on the present appeal, and also the opinion rendered at the January Term, 1860.

The complaint averred, in substance, that plaintiff, at the “office of said defendants, at the said city of Sacramento, on the second day of July, 1858, by his agent, in his behalf duly authorized, solicited the said defendants to receive at said city of Sacramento, and transmit to Jackson, the following dispatch; ” and that they refused to receive and transmit the same, the usual fees being tendered. The answer denies these allegations.

Indictment for murder. Upon being arraigned, defendant moved to set aside the indictment on the ground that the grand jury was not drawn by, and the drawing thereof was not had in the presence of, the officers designated by law. Overruled; exceptions. Defendant was convicted of manslaughter, and appeals.

Bill in equity to foreclose four mortgages executed by defendants, Higuera and wife, or for certain other relief.

The substance of the complaint is, that in March, 1850, the Alcalde of San Francisco, John W. Geary, made a grant of the lots in controversy ; that in December, 1850, this Court, in the case of Woodworth v. Milton, (1 Cal.) decided such grants to be void on their face—no evidence of title; that under the Act of March, 1853, Congress authorized town sites on public lands of the United States to be entered in the Land Office for the use and benefit of the occupants thereof,…

Suit on two notes and mortgages made at different times, to different persons, and assigned to plaintiffs. The property mortgaged was a 'water ditch. Defendants, who were the mortgagors, appeal.

Complaint, not verified, averred substantially as set forth in first syllabus. Answer, not verified, denied all the allegations of the complaint, and set up discharge in insolvency in bar. On the trial, plaintiff proved up the note mentioned in the complaint, introduced it in evidence, and rested.

Action of replevin brought by Isaac Stevens against Edward Irwin, Sheriff of Sierra county, to recover possession of a number of horses and mules, hay, barley, saddles, etc., which the Sheriff had levied upon by virtue of an attachment in favor of Treadwell Co. v. B. C. Stevens, brother of the plaintiff.

Bill against Yoll and George Reed & Co., to set aside a judgment and sale by Reed & Co. of certain property, on the ground of fraud. July 27, 1856, plaintiffs obtained judgment against defendant, Yoll, on his note and mortgage to them, dated November 3,1855, the mortgage being upon the premises in controversy, and recorded same day. The property was sold on such judgment, August 30,1856, and a Sheriff’s deed made to plaintiffs as purchasers, March 9, 1857.

<p>An order of a Probate Court setting aside a judgment of that Court refusing to admit a will to probate, is not an appealable order, because not within sec, 297 of the Act to Regulate the Settlement of the Estates of Deceased Persons. (Wood’s Dig. 421, art. 2354.)</p> <p>Sec. 300 of that act (Wood’s Dig. 422) only applies to the mode and manner appealing.</p>

<p>Appeal from, the Court of Sessions, Tuolumne county.</p> <p>The point taken by defendant was on demurrer to the indictment, and by motion in arrest of judgment.</p> <p>When the case was called for trial, defendant moved for a continuance, on account of the absence of witnesses, “ by whom he alleged he could prove that he was the owner and in possession of some three hundred dollars in gold coin on the day before the alleged larceny. Whereupon the prosecuting attorney admitted the testimony, and went to trial.”</p> <p>The Court, among other things, instructed the jury, that the facts upon which the continuance was asked being admitted, must be taken and considered by the jury as true; that it was not sufficient for the prosecution to admit that the absent witnesses would testify to the facts set forth, but that when admitted, they must be taken not only as testified to, but as existing in fact, and that the prosecution cannot impeach the facts thus admitted.</p> <p>Defendant was convicted, and appeals.</p>

Ejectment for a lot in San Francisco. The case was tried before the Court below, by consent, and the facts, as agreed upon, presented substantially, the question whether Smith v. Morse (2 Cal. 524) should stand as law. Defendant had judgment. Plaintiff appeals.

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

Ejectment for a number of fifty-vara lots in the city of San Francisco. Plaintiff claims under a Sheriff’s sale upon an execution issued Nov. 1851, upon a judgment rendered in September of that year, in favor of Jesse D. Carr, against the city of San Francisco, and a Sheriff’s deed based on such sale. The deed was executed in June, 1852, to one Thorne, from whom, by mesne conveyances, the title passed to plaintiff. Plaintiff had judgment below, defendants appeal.

<p>Appeal from the Twelfth District.</p> <p>The facts of the case sufficiently appear in the opinion of the Court. Defendant had judgment below; plaintiff appeals.</p>

<p>Appeal from the Third District.</p> <p>Foreclosure on bond and mortgage. The averments in the complaint as to the bond are: “ That on the twenty-sixth day of December, 1853, the above named defendants, José de Jesus Vallejo and Soledad de Vallejo, his wife, etc., made and executed under their hands and seals, and delivered to the said plaintiffs, a bond, bearing date on that day, in the sum of $30,000, with a condition thereunder written in substance, that if the obligors in the said bond, their heirs, etc., should well and truly pay, or cause to be paid, to the obligees, etc., the just and full sum of $30,000, then the said bond to be null and void, else to remain in full force.”</p> <p>The denial of this averment is: defendants “ deny (except as hereinafter admitted) that these defendants made and executed under their hands and seals, and delivered to the said plaintiffs a bond, bearing date on that day (viz: the twenty-sixth day of December, 1853) in the sum of $30,000, with a condition thereunder written, in substance, that if the obligors in the said bond, their heirs, etc., should well and truly pay, or cause to be paid, to the obligees therein named, their executors, etc., the just and full sum of $30,000, then the said bond to be void, else to remain in full force.”</p> <p>The averment as to the mortgage is : “ And the said José, etc., to secure the payment of the principal sum mentioned in the conditions of the said bond, with interest thereon at the rate of one per cent, per month, did at the same time execute, under their hands, etc., a mortgage bearing even date with the said bond, and conditioned for the payment of the said sum of $30,000 twelve months after date,-with the privilege of six months more, at the option of the said José, etc., with interest at the rate of one per cent, per month, payable semi-annually, on the second day of January and the first day of July in each and every year.”</p> <p>The denial of this averment is: “ And these defendants deny that they, to secure the payment of the principal sum mentioned in the condition of said bond (to wit: the bond mentioned and referred to in plaintiff’s complaint, or the bond hereinbefore averred to have been signed and sealed by these defendants) with interest thereon at the rate of one per cent, per month, did, at the same time, execute under their hands and seals, and deliver to the said plaintiffs a mortgage bearing even date with said bond, conditioned,” etc.</p> <p>The answer also contains a denial that defendants “ ever executed and delivered to plaintiffs, or either of them, any mortgage to secure the payment of the bond mentioned and referred to in plaintiffs’ complaint.”</p> <p>Defendants also set up that the bond and mortgage were without consideration, and procured by fraud, threats, etc.</p> <p>On the trial, plaintiffs offered in ■ evidence a bond dated December 26, 1853, signed by Vallejo and wife, in the penal sum of $30,000, conditioned for the payment of $30,000 on demand, nothing being said in the bond about interest, or about payment in twelve months, with the privilege of six months more, at the option of the obligors, etc. Defendants objected that the execution of the bond was not proven by the subscribing witness or otherwise. Objection overruled on the ground that the execution of the bond was proven by signing and sealing, and its delivery by its production in Court by plaintiffs—defendants excepting.</p> <p>Defendants then objected that the bond offered in evidence was not the bond described in the complaint, because it was payable on demand, without interest, while the latter was payable in twelve or eighteen months at the option of the obligors, with interest at one per cent, per month. Overruled, defendants excepting.</p> <p>Defendants then objected that the bond offered is not the bond described in the mortgage, as appears from the complaint. Upon this objection the Court refused to pass at that stage of the trial, defendants excepting.</p> <p>The bond having been read, plaintiffs offered in evidence a mortgage reciting a bond in a penal sum of $60,000, conditioned for the payment of $30,000 in twelve or eighteen months, with interest at one per cent, etc., as is averred in the complaint; the mortgage being conditioned for the payment of the bond therein recited.</p> <p>Defendants objected that the plaintiffs had not produced and offered in evidence the bond described in said mortgage, whereupon counsel for plaintiffs stated they had offered the only bond they proposed to offer. Defendants further objected to the introduction of the mortgage, that it was neither averred in the complaint nor proven that the mortgage was given to secure the payment of the bond read; that it was neither averred nor proven that the bond and mortgage were given to secure the same debt; that it was neither averred nor proven that at the date and delivery of the mortgage, there was any debt owing from defendants to plaintiffs which the mortgage was given to secure; that it appeared from an inspection of the bond and mortgage, that the latter was not given to secure the payment of the former, but another and different bond. The objections being overruled, and the mortgage read, plaintiffs rested.</p> <p>After evidence by defendants as to fraud, etc., the Court below gave plaintiffs judgment for $30,000, with a decree of foreclosure and sale. Defendants appeal.</p>