Volume 16 — California Reports

<p>State of California v. McCauley, (15 Cal. 429) deciding the Act of March 26th, 1856, appointing a Board of State Prison Commissioners, to be constitutional, and the contract entered into by said Board, in behalf of the State, with Estill, and the assignment thereof to McCauley, to be valid and binding upon the State, affirmed.</p> <p>A contract entered into by the agents of the State, upon a subject within the constitutional control of the Legislature, may be affirmed by the State by legislation, indirectly referring to the contract, or proceeding upon its assumed validity. Direct legislative action, in terms designating and affirming the contract, is not necessary.</p> <p>In the Act of April 7th, 1856, appropriating moneys to defray the expenses of the prison up to March 28th, passed after a copy of the contract with Estill had been transmitted to the Senate, the Legislature recognized the existence, and in effect, the validity of the contract, in the provision that no person should receive any pay for supplies furnished under any contract with the directors of the prison, until he surrendered such contract and released the State from all liability for such supplies “ furnished after the leasing of said prison by the Board of Commissioners, under an act passed at this session of the Legislature.”</p> <p>To an appropriation within the meaning of the Constitution, nothing more is requisite than a designation of the amount, and the fund out of which it shall be paid. It is not essential to its validity, that funds to meet the same should be at the time in the treasury.</p> <p>The provision in the Constitution, that “no money shall be drawn from the treasury, but in consequence of appropriations made by law,” means only that no money shall be drawn, except in pursuance of law.</p> <p>The Act of April 13th, 1859, amendatory of the act concerning the office of Controller, and providing that no warrants shall be drawn, except there be “ an unexhausted, specific appropriation ” to meet the same, means only that the Controller shall not draw a warrant for a specific object, when he has already drawn for the full amount of the appropriation made for that object; and this act does not qualify the right of Estill, or those representing him, to warrants for the monthly installments, as they respectively become due, under the contract between him and the State, relative to the State prison and its convicts.</p> <p>The ninth section of the Act of April 16th, 1856, requiring that demands against the State, except for the salaries of officers, must receive the approval of the Board of Examiners before warrants can be issued for them by the Controller, and the Act of April 21st, 1858, creating a Board of Examiners, embrace within their terms the claim of relators ; but as to such claim, these acts are unconstitutional and void, because impairing the obligation of the contract. The law under which the contract was made, and to which it in terms refers, gives an absolute right to the warrants for the monthly installments as they become due, and directs the Treasurer to pay them ; and this absolute right to the warrants cannot be changed, by any subsequent legislative enactment, into a right dependent for its enjoyment upon the will and discretion of any Board established by the State.</p> <p>These acts, as to the Board of Examiners, do not affect the remedy simply; but if they did relate to the remedy only, they so change the remedy as to impair the right; and legislation, producing this result, is as much within the inhibition of the Constitution, as if it directly assailed the right. Robinson v. Magee (9 Cal. 81) cited.</p> <p>The contract between Estill and the State was not affected by the Act of April 19th, 1859, repealing the Act of March 26th, 1856, under which the contract was made. The contract remained after the extinction by repeal of its parent act, possessed of the same binding force as before. The rights of the parties and their respective obligations became fixed by the contract, beyond the reach of legislative power; they were vested interests.</p> <p>The Legislature possesses the entire control and management of the financial affairs of the State. It can levy such taxes as it may deem expedient, subject only to the constitutional requirements of equality and uniformity, and devote the proceeds of the taxation to such specific objects as it may think proper. But, after having made an appropriation, in view of a contemplated contract to be based thereon, and such contract is made, and funds to meet the appropriation are received into the treasury, it cannot deprive the party with whom the contract is entered into of such funds by repealing the appropriation. In other words, the control of the Legislature over particular funds, when received, may be subject to the obligations of a contract made with reference to them. By such contract, the Legislature does not derogate from its own power, or that of any subsequent Legislature. It only acts finally upon a particular subject, which is thus placed beyond the reach of future action. It is true, the Legislature may not direct any taxation, may repeal all laws relating to the collection of the revenue, and thus prevent the receipt of any funds upon which the appropriation can operate; but this possibility does not affect the right of the parties when such funds are actually received. McDonald v. Griswold, (4 Cal. 352) McDonald v. Maddux, (11 Id. 187) People v. Bond, (10 Id. 566) commented on and approved.</p> <p>The contract between Estill and the State, from its terms, is incapable of apportionment, and the measure of damages for a breach of it, is the sum fixed by the contract itself; and the assignees of Estill—relators here—are entitled to the full sum of ten thousand dollars per month, including the period during which the lessee and his assignee were forcibly and unlawfully kept from the possession of the prison, under the Act of Eebruary 26th, 1858.</p> <p>The contract between the State and Estill remaining obligatory, not qualified by any legislation, it was the duty of the Controller, upon demand of relators—• assignees of Estill—to have issued warrants upon the Treasurer, for the sums claimed under the contract; and the performance of this can be enforced by mandamus.</p> <p>The fourth article of our Constitution, distributing the powers of government into three departments—legislative, executive, and judicial—does not place either department above the law, nor make either independent of the other. These departments arc not absolutely independent of each other, except in cases where discretion is vested in terms, or is necessarily implied from the nature of the duties to be performed; but there is no discretion where rights have vested under the Constitution, or by existing laws.</p> <p>The Legislature can pass such laws as it may judge expedient, subject only to the prohibitions of the Constitution. If it overstep those limits, and attempt to impair the obligation of contracts, or to pass ex post facto laws, or grant special acts of incorporation for other than municipal purposes, the judiciary will set aside its legislation, and protect the rights it has assailed.</p> <p>The Controller and Treasurer of State are no more officers of the executive department, than the Sheriffs and Tax Collectors of each county.</p> <p>Marbury v. Madison, (1 Cr. 137) Kendall v. The United States, (12 Pet. 524) Decatur v. Paulding, (14 Id. 497) United Statesv. Guthrie, (17 How. 284) commented on. Mandamus will issue to the Governor in certain cases.</p> <p>Distinction, from political considerations, between the Governor and the inferior officers of the executive department, as to the issuance of this writ, stated.</p> <p>Fowler v. Pierce, (2 Cal. 165) People ex rel. McDougall v. Bell, (4 Id. 177) People v. Whitman, (6 Id. 559) as to mandamus, cited.</p> <p>The State can resume possession of the State prison and control of the convicts in one way only—by compensation, as is required in all cases where private property is taken for public use. The leasehold interest of Estill and bis assignees is as much property, for which compensation is to be made before it can be subjected to the uses of the State, as are lands held in fee.</p> <p>Any wrongs to the State, from mismanagement of the prison, or from disregard of the stipulations of the contract, must be redressed by proceeding upon the bond executed as security for the performance of the contract.</p> <p>The contract only gives the right to have the warrants paid out of the moneys in the treasury not otherwise appropriated. When the warrants are presented to the Treasurer, it will be his duty to apply to them the unappropriated moneys in the treasury, and to continue to apply such moneys, as they are from time to time received, until the warrants are fully paid.</p> <p>The State has no right to repudiate her debts. She cannot be sued, and hence, demands against her must await the action of the Legislature in the appropriation of moneys for their payment. In that sense, the Legislature possesses the power to postpone her general creditors indefinitely; in that sense only can the State repudiate; but the right and the power are not synonymous terms. Where political power is vested in a public officer, he is responsible only in his political character to the country. Where discretion is vested in him, he but conforms to the law in exercising that discretion. But where a question of political power is not involved, where no discretion exists, but a specific, legal duty is imposed, ministerial in its character, such as the issuance of a patent, the delivery of a commission, the payment of a specific sum, or the drawing of a particular warrant, and in the performance of that duty individuals have a direct pecuniary interest, the officer, like any other citizen, is subject to the process of the regularly constituted tribunals of the country.</p> <p>The Controller of the State is an officer of the executive department, but does not hold his appointment of the Governor, is not responsible to him, and acts entirely independent of him. His duties are enumerated and defined by the law, and they are generally of a purely ministerial character. He has no discretion as to the issuance of warrants for appropriations for the public service.</p> <p>If the Controller be in doubt as to whether the law requires the issuance of warrants in a given case, he may ask the judgment of the Courts as to the law; but the law being determined, it is his duty to yield obedience to it.</p> <p>The Controller and Treasurer of State have no greater immunities from legal process, than the Auditors and .Treasurers of counties. The duties of each set are similar in their general nature.</p> <p>Application to issue the mandamus directly from the Supreme Court, on reversal of the judgment below, instead of transmitting its judgment to the District Court, to be there enforced through nvocegSj denied,—the Court being divided on the question.</p>

<p>Appeal from the Sixth District.</p> <p>The suit was against the Sheriff, White, and his seven sureties, as to two of whom the record does not show any service, and they made no appearance. Some of them demurred, on the ground that the complaint did. not state facts sufficient to constitute a cause of action. Demurrer overruled, answer filed, and the case submitted on the facts stated in the opinion. Judgment was rendered against all of the defendants, who appeal.</p>

<p>Appeal from the Third District.</p> <p>Mary Love, defendant, being unmarried, under the name of Mary Bennett, on the first of January, 1854, made and delivered to Messrs. Wallace & Ryland, of San José, a memorandum in writing in the following words:</p> <p>“ [$500.00.]</p> <p>“I promise to pay to Messrs. Wallace & Ryland, or order, the sum of five hundred dollars as soon as a judgment, either in favor of the plaintiff or defendant, shall be rendered in the case of Bennett v. Bird, now pending in the county of Santa Cruz.</p> <p>“Mart Bennett.</p> <p>“Witness: Winston Bennett.”</p> <p>In May, 1854, she married Harry Love. On the fifteenth of August, 1854, Wallace & Ryland filed a complaint, based upon the foregoing memorandum, against Mary Love, styling her, in the complaint, Mary Bennett. The action was a simple action in debt; her husband was not a party to the suit. Judgment by default was taken against her for the amount sued for. The case was appealed to the Supreme Court, where the judgment was affirmed.</p> <p>Harry Love, the husband, Bostic, plaintiff in this suit, and one Peleg Rust, executed the appeal bond.</p> <p>Wallace & Ryland then instituted suit on the appeal bond, against the parties thereto, and recovered judgment. Bostic and Harry Love then delivered to Wallace & Ryland their promissory note for the amount of the judgment, which was accepted as a satisfaction thereof. Subsequently, Bostic made to them his sole note for the amount of the note of Harry Love and himself, which they accepted. At the time this suit was brought by plaintiff he had paid no money on account of the appeal bond, but this note was still held by Wallace & Ryland, and was secured to W. & R. by the assignment to them by Bostic of “ certain land bonds.”</p> <p>Upon this state of facts, Bostic filed his bill, in which he sought to subject the separate estate of Mrs. Love to the payment of the debt which he had assumed to Wallace & .Ryland. No property is set out or described as her separate property, the only allegation being the general allegation that “ Mary Love possessed a large amount of property, both personal and real, and which she holds as her separate estate.” There is no allegation in the complaint, that her separate estate is liable for the debt, or that this debt is a charge upon it.</p> <p>The answer of Mary Love is under oath, and denies “ that she was on the first day of January, A. D. 1854, or at any other time indebted to the said William T. Wallace and Caius T. Ryland in the sum of five hundred dollars, or in any other sum.” She further denies, “ that she at any time directed or requested any appeal to be taken from the said alleged judgment, or that she ever requested the plaintiff, Bostic, to execute for or on her behalf any appeal bond in the form set out and described in the plaintiff’s complaint, or in any other form.”</p> <p>To controvert the denial under oath, that appellant was indebted to Wallace & Ryland, plaintiff offered in evidence the judgment roll in W. & R. v. Bennett. Plaintiff had judgment. Mrs. Love appeals.</p>

Forcible entry and detainer, tried before the Court without a jury.

The plaintiffs sue to recover $2,500 with interest, alleging that in the year 1854, they remitted that sum to be invested for their account at interest on real estate security in this city, and the defendants advised them they had so loaned it, and remitted the interest from time to time, until the early part of 1857, after which they ceased to remit; and that about the month of March, 1858, they discovered for the first time that the defendants had never loaned out the…

The facts as to the shipment of the trees are these. In the latter part of December, 1857, or first part of January, 1858, Webster, who lives at or near Stockton, called at the nursery of plaintiff in Napa county, and examined his stock of trees, stating that he would probably order some. In a few days he did send an order from Stockton to plaintiff for trees.

<p>Ejectment for land as a homestead. The husband alone had executed a deed to defendant. There was evidence tending to show that the premises were never occupied by plaintiffs with the intention of making them the homestead; and also evidence tending to prove an abandonment of their occupancy, and a residence on other property as that of the family. The Court below submitted a series of questions to the jury, for a special verdict, the first of which was: “ Did the plaintiffs ever dedicate and set apart the real estate described in the complaint, as a homestead, by living upon it with the intention so to dedicate it 1 ” and told the jury if they answered this question in the negative, the answer would constitute their entire verdict, but if they found in the affirmative, they should then proceed to answer the other questions : Held, that such direction was proper, as a negative answer to this question was conclusive against a recovery, and that such directions are convenient in practice, and no abuse of discretion.</p> <p>Bower Courts have an enlarged discretion in the conduct of the business before them, and with this discretion the appellate Court will not interfere, unless it affirmatively appear that injustice has been done.</p>

<p>Appeal from the Fourteenth District.</p> <p>Trespass against defendant as Sheriff for seizing and selling goods of plaintiff, under an execution in favor of Bullard against one Teal. Plaintiff avers that he bought the goods of Teal, June 28th, 1859 ; Bullard attached them as the property of Teal, July 15th, 1859. Defendant avers the sale to plaintiff to be fraudulent and void as to Teal’s creditors, and that the goods were the property of Teal, and not of plaintiff.</p> <p>Defendant offered to prove that a partnership had existed between plaintiff and Teal. Plaintiff objected to such proof, .on the ground— 1st. That Bullard was estopped from setting up a partnership, he being a creditor of Teal alone, and having recovered judgment against him alone. 2nd. That defendant, in his answer, having alleged the goods to be the property of Teal, could not disprove his pleading. 3rd. That such proof was not pertinent to the issue. Objections overruled, and evidence admitted.</p> <p>Verdict and judgment for defendant. Plaintiff appeals.</p>

Suit for damages for timber cut and carried away from premises alleged to belong to plaintiff, and for an injunction against future trespasses.

Plaintiffs claim to be the owners of a certain piece of mining ground described in their complaint, and allege that the same was taken up in 1856 by certain parties in the complaint named. The complaint then states particularly the several transfers which had been made of the claims from the first- locators, and shows that plaintiffs have obtained the title of the first locators of the claim.

<p>The relation of landlord and tenant existed between plaintiff and defendant on a parol demise from month to month, rent being payable in advance, on the first day of each month. November 1st, 1858, defendant being in possession, denied plaintiff’s title, and refused to pay rent. December 23d, 1858, plaintiff sued defendant in a Justice’s Court for rent due November 1st and December 1st, 1858, and had judgment, which was paid. January 8th, 1859, plaintiff served on defendant notice to quit, on the ground of forfeiture for non-payment of rent; defendant refused to quit or surrender the premises. Plaintiff brings ejectment. Defendant answers; denying, among other things, plaintiff’s title and his own relation of tenant: Held, that plaintiff is entitled to recover; that the denial of title and the relation of tenant made defendant a trespasser, not entitled to notice to quit; that no special demand for payment of rent was necessary to work a forfeiture; that defendant could not deny title, and yet claim the benefit of holding in subordination to it.</p>

<p>Appeal from the Twelfth District.</p> <p>The facts appear in the opinion of the Court. The note was dated April 7th, 1855. The complaint averred, among other things, that from the date of the note to February 14th, 1857, defendant was absent from this State. Defendant had judgment. Plaintiff appeals.</p>

<p>On trial under an indictment for receiving stolen goods, the Court instructed the jury “That a guilty knowledge, on the part of the defendant, is essential to the constitution of the offense. This may be shown either directly, by the evidence of the principal offender, or circumstantially, by proving that the defendant bought them very much under their value, or denied their being in his. possession, or the like:” Beld, that the charge is erroneous in this, that it asserts as a conclusion of law, that if the defendant purchased the goods at a price much below their value, or if he denied that he had them, or if the thief swore defendant received them, then, in either case, the guilty knowledge was proved; that this is not law; that either one of these^facts is a circumstance of guilt, but does not alone constitute conclusive proof of guilt.</p> <p>In criminal cases, the Court should, as a general rule, instruct the jury hypothetically, and not assign a conclusive effect to circumstances, or assume that such circumstances were proven. In the absence of opposing proof they are sometimes conclusive, but not generally; and it should always be left to the jury to determine whether those circumstances are established.</p> <p>In criminal cases, if the instructions to the jury are erroneous under any and every state of facts, the Supreme Court will review them, even though there bo no statement of facts—because it necessarily appears that the Court erred to the prejudice of defendant.</p> <p>But where the instructions may he. correct under any state of facts, then the Supreme Court presumes in favor of the judgment below, and will not reverse it when there is no statement of facts or bill of exceptions—because the appellant must show affirmative error.</p>

The facts appear in the opinion of the Court. On the trial, the Court charged the jury in effect, that if defendant, Garratt, took a lease from Sherman, and Sherman got his title from Geo. C. Potter, Garratt was estopped from denying Potter’s title. Verdict and judgment for plaintiff. A new trial was granted. Plaintiff appeals.

<p>Where a jury is waived, and the cause tried by the Court, the Court should find the facts, and not merely state the proofs.</p>

Addeal from the Tenth District. Defendant Wemple filed a mechanic’s lien on a portion of the property in dispute against defendant Pender, December 26th, 1856, and on the second day of November, 1857, began suit against Pender alone to enforce the lien. After due proceedings, Wemple’s lien was established by the Court, and notice published under the statute for other lien claimants to come in and prove their claims.

<p>Appeal from the County Court of San Francisco.</p>

Defendant was indicted for stealing a steer. On the trial, the prosecution introduced as a witness, one McBillingsly, who testified, in substance, that he drove the steer from Dry Creek, Butte county to Thompson’s Flat; that defendant was with him, and that he drove the steer for defendant, and told defendant it was not his steer. The steer was driven to a butcher’s corral.

Information by the Attorney General in the nature of quo warranto to determine the title to the offices of the Gold Hill and Bear River Water Company, a corporation formed under the general corporation Act of April, 1853. At an election of officers of the company, two tickets were voted for, one headed by plaintiff, Allen, for President, the other by Hill, defendant.

There is no need of any statement of facts. The suit was brought to test the constitutionality of the ordinance of the city and county of Sacramento taxing defendant’s business as a merchant. Defendant paid the State, city and county taxes on his merchandise, and also the State and county license under the revenue law for the time during which the license tax under tlie ordinance is claimed.

<p>Appeal from the Seventh District.</p> <p>Ejectment. Plaintiffs had judgment. Defendant appeals.</p>

<p>Appeal from the Twelfth District.</p> <p>The facts sufficiently appear in the opinion. Plaintiff had judgment. Defendant appeals.</p>

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

<p>Appeal from the Fourth District.</p> <p>No statement of facts is required. Defendant appeals.</p>

Indictment for murder. On the trial, Lew Fung was introduced as a witness for the prosecution, and testified substantially as stated in syllabus. The place of the attack, as related by him, was three or four miles from Campo Seco. After escaping, the witness ran about one-half of a mile, when he met two Americans, to whom he told what happened, and one of them went on with witness to Jackson.

The facts sufficiently appear in the opinion. Plaintiff had judgment for the amount of the note, with the interest therein expressed. One of the defendants appeals.

Suit originally against one Young, to enforce a mechanic’s lien. Plaintiffs performed work and furnished materials for Young, and in due time, to wit: August 9th, 1858, filed their notice of lien. The account is in general terms, stating the amount, and that it was for work and materials, but without giving the items.

The case stands on demurrer to the complaint, which avers, in substance, that on the twenty-fifth day of February, 1855, the plaintiff had $4,136.10 deposited in the .banking house of Page, Bacon & Co. Page, Bacon & Co., being unable to presently meet their liabilities, and desiring an extension, and in consideration of the consent of the plaintiff and the other depositors and creditors mentioned in the writing obligatory thereinafter set forth to give said extension, and…

Plaintiff, a stockholder in the Gold Hill and Bear River Water Company, a corporation under the laws of this State, filed his hill against the corporation, and Hill, Smith, Devane, and Lassiter, also stockholders, averring that defendant Hill is president, treasurer and superintendent of the company; that defendant Smith is secretary, and that these four, with another, owned a majority of the stock of the company, and procured themselves to be elected trustees of the…

The complaint was substantially against all the defendants as makers of the note—the specific allegation, as to Hayward, being, that for the consideration expressed in the note, he guaranteed its payment, “ and thereby became liable with said other defendants to pay said note. The demurrer was, that the complaint did not state facts sufficient to constitute a cause of action. Demurrer overruled; answer filed; judgment for plaintiff. Defendant, Hayward, appeals.

The defense relied on was, the right of miners to enter upon the inclosure of plaintiffs, under the Act of 1855, stated in the opinion. The answer set up that the land was rich in minerals, that defendants had proceeded according to mining regulations, and especially according to the Act of 1855, to acquire their rights. Plaintiff demurred to the answer, as insufficient in law.

Plaintiff filed his bill against A. S. Beatty and others, to foreclose a mortgage given by Beatty on a house and lot to secure the payment of a note. The mortgage was not signed by the wife of Beatty, nor was she party to the suit. The complaint said nothing about the mortgage being for purchase money, and the judgment was by default.

The certificate, dated November 9th, 1857, was the usual one, payable to the order of Vallejo, defendant, on its return duly indorsed. Vallejo indorsed and sold it to Logan on the fourth day of January, 1858, and on the fifth it was duly protested, and notice given to the indorsee. Subsequently, Logan sold the certificate to plaintiff for $1,000. The Court below gave judgment against each of the defendants for the full amount, $1,800. Vallejo appeals.

Suit for money had and received. Defendant demurred. The demurrer was overruled, and forty days from June 29th, 1859, were given for answer. August 10th, 1859, plaintiff applied, in writing, to the Clerk, for default and judgment, and previously, on the same day, defendant filed an answer.

The paper given by Thomas Kirtlan to Doble was a simple request to the Court to appoint the latter administrator, the reason assigned being, that the former resided at so great a distance from the last residence of the deceased as to make it inconvenient for him to administer upon the estate.

Suit by plaintiff against William Martin, to set aside a warrantee deed executed by defendant to plaintiff, and to recover the consideration given therefor, to wit: five hundred dollars cash, and a promissory note of plaintiff for five hundred dollars more, on the ground of failure of title—the defendant having previously conveyed the land, as was claimed, to other persons.

<p>Taxes not justly due, and paid under protest, may be recovered back by suit against the Tax Collector.</p> <p>A mortgage is not personal property within the Bevenue Act of 1856, nor liable, as such, to taxation.</p> <p>An assessment thus : “Mortgages (Marysville) $100,000,” is insufficient under the act. The assessment does not show for what the mortgages were given, nor on what property, nor whether the debts were solvent, nor the value of the property mortgaged; and the sole fact that a mortgage is held for a given amount, does not make the mortgage subject to taxation as for so much money.</p> <p>Land mortgaged may be taxed without reference to the mortgage, and if the mortgage be to secure a debt, the debt may be taxed; if to secure a loan of money, the money may be taxed; but the act does not intend to tax the mortgage, as such, and also to tax the money loaned and secured by the mortgage, or the solvent debt it represents.</p> <p>An assessment thus : “ Personal property—mortgages (Marysville) $100,000,” is not good as an assessment of personal property, independent of the term “ mortgages,” on the ground that the act requires no description of personal property to be given, but its value only. The whole statement must be taken together, and that shows “ mortgages ” to be taxed, and they are not subject to taxation as such.</p> <p>Prima facie, a mortgage is no more taxable than a deed or any other muniment of title or mere security, and the money which it secures cannot be taxed without a more particular description than the general designation, “personal property.”</p> <p>Under this act, a lumping assessment of “personal property ” is bad. Every item of taxable property need not be listed, but the different classes named in the act should be stated—as goods, money loaned, gold dust, solvent debts.</p>

<p>Where plaintiff deposits money with defendant, to be loaned out from time to time, the interest to be collected, and principal and interest held by him for plaintiff until called for, there is a continuous trust, and the Statute of Limitations does not begin to run in favor of defendant until after demand made by plaintiff. *</p> <p>In such case, if defendant used the money himself, he would be like a guardian using his ward’s money, and be regarded as a borrower upon the same terms upon which he could have loaned to others.</p> <p>As to whether proof of the conventional rate of interest in San Francisco during the time defendant held plaintiff’s money was admissible, stated.</p> <p>An objection that one of two counts in a complaint is an equitable cause of action, and should not be tried by a jury, must be taken at the time, and cannot be urged on appeal, if not so taken.</p> <p>Where a witness is sought to be impeached by proof of contradictory statements alleged to have been made by him, the precise matter of these contradictions, and the time and place of the contradictory statements must be brought to the knowledge of the witness on cross-examination.</p> <p>And this rule as to evidence of contradictory statements, applies equally to evidence of declarations or acts of hostility or ill feeling on the part of the witness. There is no distinction between admitting declarations of hostility of the witness, by way of impairing the force of his testimony, and admitting contradictory statements, so far as this rule is concerned.</p> <p>Where the objection to such impeaching evidence was general, and the Court excluded the testimony without assigning any reason, the Supreme Court will presume in favor of the correctness of the action of the Court below; and the appellant must show error to his prejudice, by putting his exceptions in the proper shape.</p> <p>It cannot be assigned for error in the Supreme Court, that the Court below refused a nonsuit because of no demand made before suit, unless that ground of non-suit was taken below.</p> <p>Verdict on contradictory proof not interfered with by the Supreme Court.</p> <p>Motions for new trial on the ground of newly discovered evidence, regarded with distrust and disfavor, and the strictest showing of diligence and all other facts necessary, is required. This is especially true when the new testimony is to impeach a witness on the trial, or is merely cumulative. The party must show by his own affidavit that he did not know of this evidence, and could not by due diligence have obtained it; the affidavit of a witness is not sufficient. (In this case, the party himself was present.)</p>

<p>A judgment recovered against the husband does not become a lien on the homestead, and a sale of the homestead upon an execution issued on such judgment is void.</p> <p>The lien of a judgment is purely the creature of statute, and in this State the statute only provides that a judgment shall become a lien from the time it is docketed upon the property of the judgment debtor “not exempt frpm execution,” which means upon property not subject to forced sale. The hómestead is not subject to such sale, either on execution or any other final process of the Court.</p> <p>In this case, the premises, consisting of a principal building, with a barn, storehouse and out-houses appurtenant thereto, were held to be a homestead, although the principal building was used as a hotel, as well as a dwelling for the family—it appearing that the land, one hundred and sixty acres, was taken up, and said building originally intended as a residence for the family, and that the nature and extent of the hotel-keeping did not interfere with the general character of the premises as such dwelling, and that the entire premises were not worth over $2,000.</p> <p>Query, whether premises devoted chiefly to business purposes, though occupied in part by the family, can be claimed as a homestead 7</p>

Replevin for a lot of barley and hay, raised and cut by defendant on land bought by him of one Treadway. Plaintiff claimed under a mortgage, executed to him by J. O. Sherwood and wife, of “ a farm known as Gold Spring Ranch, lying and being in Sacramento county, State of California, recorded by the said J. 0.

Contest for the office of Sheriff. The case was before the Supreme Court in January last, and is reported in 15 Cal. On the return of the remittitur, the County Judge made an order, April 24th, 1860, for a special term of his Court, on the first day of May, for the hearing of the case.

<p>Appeal from the Court of Sessions of San Francisco.</p> <p>Defendant appeals.</p>

Suit upon a promissory note executed hy defendant to the order of plaintiff.

Suit to foreclose a note and mortgage given by Elizabeth Nelson, defendant, as guardian of her infant son, Eugene N. Dii Uprey. The facts are, that in April, 1854, Elizabeth Nelson purchased a certain lot of one Douglass, receiving a deed therefor, and giving a mortgage back to secure the payment of eight hundred dollars, part of the purchase money, payable in six months, with interest at three per cent, per month.

The complaint, in substance, avers that defendant obtained judgment against plaintiff by default, without personal or other service of the summons and complaint; that no seal of Court is affixed to the summons, and that the Sheriff’s return on the summons is: “ I have executed the writ, by leaving with the within named defendant, Henry C. Logan, a copy of summons, with a certified copy of complaint.” Upon these averments, the complaint assumes the judgment to be void, and…

Bill for an injunction. The complaint avers, in substance: 1. That, in 1856, Augustus W. Timms erected, at the port of San Pedro, a warehouse and wharf, leading therefrom out into the Pacific ocean—both of which were so erected on the beach of the ocean below high water mark.

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

The Court below, in the first instance, ordered the writ to issue, and in the meantime restrained defendants from further proceedings. Defendants moved to dismiss the petition, and demurred on the ground that the proceedings sought to be reviewed were not judicial in their character, and hence that certiorari would not lie. After the return to the writ, the Court dismissed the petition. Relators appeal.

<p>Appeal from the Fourth District.</p> <p>The facts are stated in the opinion of the Court. Plaintiff had judgment below. Defendants appeal.</p>

Ejectment for a lot in San Francisco. Plaintiffs had verdict and judgment, with $2,250 damages.

Writ of Error to the Sixth District Judge. Proceedings to condemn, for the use of the State, certain lots of ground, under the Act of March 29th, 1860, to provide for the construction of the State Capitol in the city of Sacramento.

<p>Appeal from the Twelfth District.</p> <p>Action upon sundry warrants of the city of San Francisco.</p> <p>The form of the warrants is as follows:</p> <p>« $100. No. 658.</p> <p>“ City Controller’s Office,</p> <p>“ San Francisco, April 25th, 1854.</p> <p>“ City Treasurer, pay to Babcock & Swartz, or bearer, the sum of one hundred dollars, for grading, etc., Sacramento from Dupont to Stockton, out of street assessment fund.</p> <p>“ (Signed) S. R. Harris,</p> <p>“ Controller.</p> <p>Indorsed on the face, “ C. K. Garrison, Mayor.”</p> <p>Defendant had judgment below. Plaintiff appeals.</p>

The facts are substantially stated in the opinion of the Court.

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

This was an action of ejectment, to recover possession of a lot in the town of Red Bluff, in Tehama county, based upon a title vested in the plaintiff by virtue of the following patent: United States of America, State of California. “ To all whom these presents shall come, Greeting: “Whereas, under the provision^ of an Act of Congress of the United States, entitled “ An Act to Appropriate the Proceeds of the Sales of the Public Lands, and to Grant Preemption Rights,”…

<p>In this case, which was ejectment for a lot purchased by plaintiffs of B., it was held, that defendant had so recognized the title of B. as to be estopped from now disputing it.</p>

The material facts as found by the referee, are in substance, that Christian Russ, now deceased, arrived in California in 1847, and here resided until his death, in 1857; that plaintiff and all the defendants are his only surviving children, except defendants Johanna Christiana Russ, who is his widow, and C. F. Mebius, husband of one defendant—Mebius and Adolphus G-.

<p>Motion for new trial is addressed to the sound discretion of the Court, and the Supreme Court can interfere only in case of plain abuse of such discretion.</p>

The complaint avers, in substance, the passage of the Act of April 21st, 1860, under which relator claims to hold the office of Pilot for the port of San Francisco—the repeal of the Act of May 11th, 1854, and the amendatory Act of April 16th, 1858, under which defendants claim—the appointment by the Governor of a Board of Pilot Commissioners—the organization of said Board—the examination and appointment of relator as Pilot—the holding, usurpation and enjoyment of the office…

<p>The proviso in the fifty-second, section of the Act to Begulate the Settlement of the Estates of Deceased Persons, as amended by the Act of April 23d, 1855, extends to all the classes of persons designated in the section, and is not limited to persons embraced within the tenth class; and a surviving partner, though a brother, where the partnership existed at the time of the death of the intestate, cannot be administrator of the estate.</p>

<p>On appeal from a Justice’s to a County Court—the record not showing that notice of appeal had been served on the adverse party—appellant may prove by his affidavit that snch notice was in fact served.</p>

The indictment was against both Stone and Lipstein, and contained two counts; the one, a general count for stealing; the other, setting forth the facts that Lipstein, being the servant of Barrett, the prosecutor, took the property away, aided and supported by Stone, with the felonious intent of stealing and defrauding, etc. The language of the indictment, as to the character of Lipstein’s trust, is: “ And the said Lipstein, being a person hired by one Barrett, as a servant,…

The plaintiff recovered judgment against the defendant in the Court of a Justice of the Peace, on the fourth day of November, 1854, and on the fourth day of November, 1850, brought suit upon that judgment against the defendant, before another Justice of the Peace, Shearer, and obtained a judgment thereon, from which the defendant appealed to the County Court, when the cause was tried de novo, and judgment rendered against defendant for the sum of two hundred and eighty-five…

<p>Appeal from the Fifteenth District.</p> <p>The note was as follows:</p> <p>“ $350. Marysville, December 9th, 1858.</p> <p>Three months after dqie, for value received, I promise to pay to the order of S. M. Bliss the sum of three hundred and fifty dollars, with interest at the rate of three per cent, per month, till paid, from date.</p> <p>(Signed) O. H. Pierson.”</p> <p>Bliss, immediately upon the execution of the note, endorsed it in blank and delivered it to Pierson, who negotiated it—Bliss being an accommodation indorser.</p> <p>The notice of the Notary, left with the wife of Bliss at his residence, was as follows;</p> <p>“ To S. M. Bliss—Sir: You will please take notice, that a note drawn by O. H. Pierson, dated December 9th, 1858, for the sum of three hundred and fifty dollars, payable three months after date, endorsed by you, was this day protested by me for non-payment, and the holder looks to you for payment thereof, as indorser.</p> <p>“ Marysville, March 12th, 1859.”</p> <p>Due demand was made on the maker—all parties resided at Marysville at the execution and maturity of the note. All other material facts are stated in the -opinion of the Court. Plaintiff appeals.</p>

Suit against the drawer of a bill of exchange. Defendant appeals from the order denying the motion to set aside the judgment.

<p>Where a Court dissolves the bonds of matrimony, it has no power to impose any restraint upon a second marriage, in the absence of express statute conferring it.</p>

The averment in the complaint, as to the execution of the note is, The averment as to the loss of the note is: “That some time during the month of August or September, 1856, at or near Union City, in the State of California, he either lost the said promissory note, or the same was stolen from him; that he kept the said note in a small pocket-book, usually called a ‘port monnaie,’ which he carried with him. in his pocket; that said pocket-book, together with said note, was…

<p>In suit to recover money due on a promissory note, and to establish a lien for the amount upon certain real estate purchased with money advanced by plaintiff to defendant, and for which advance the note was given, the Clerk entered judgment by default for the amount of the note. Plaintiff, having exhausted his remedies on this judgment, by execution and proceedings supplementary thereto, obtained from the Court a decree for the equitable relief sought in the complaint, to wit: for a lien upon, and a sale of the real estate. Held, that this decree was coram nort judice, and void—assuming the judgment by the defendant to be valid. Such judgment, if valid, terminated the controversy, and whatever related to the merits of the case was merged in the judgment.</p> <p>Doubtful, whether the Clerk could enter judgment, in action of this nature, without application to the Court. This point reserved.</p>

Suit for possession of certain mining claims; plaintiffs claiming under parties who located the claims in 1854. Defendants claim under a location made by them in 1858; they contending that plaintiffs had forfeited their rights, by non-compliance with the mining rules of the district, adopted in December, 1856, to take effect February 1st, 1857— the previous rules of 1855 being abolished. These rules were read in evidence by defendants ; plaintiffs objecting.

Suit on a bond given by defendants for the appearance, etc., in the Court of Sessions, of one Diehl, indicted for exposing poison to cattle. At the term of Court following the execution of the bond, the District Attorney presented affidavits that Diehl was absent from the State, and moved that he be called for arraignment on the indictment, and, in default of appearance, that his bond be forfeited.

The facts are stated in the opinion of the Court. The answer was a general denial. Plaintiff had judgment; defendant appeals.

Ejectment for a lot of ground with the improvements thereon. Plaintiff, on the fifteenth of October, 1858, sued defendant and others, composing the firm of Searls & Co., in the Justice’s Court of Weaver-ville township, Trinity county.

<p>On motion for new trial, on the sole ground that the verdict is not sustained by the evidence, the Court below, in passing on the motion, cannot disregard any portion of the evidence before the jury. The question as to the competency of the evidence cannot be raised on such motion.</p> <p>A verdict obtained upon incompetent evidence may be set aside; but this cannot be done if the evidence were admitted without objection, nor can it be done upon the ground that effect was given to the evidence by the jury, even if objected to.</p> <p>In such cases, that which vitiates the verdict, is the error of the Court in admitting the evidence, and if the party seeking to set aside the verdict be not in a position to take advantage of this error, he cannot object that the evidence was improperly admitted.</p>

The case was tried by the Court, and the findings were substantially as follows: This is an action of ejectment, to recover the Wisconsin Quartz Mill and Quartz Ledge, situated in Grass Valley township, Nevada county.

Suit against several parties, among whom were Broder, Sheriff, Freaner and Hibberd, to quiet title to a tract of land in Alameda county, containing about four hundred and forty-six acres, originally owned by W. W. Chipman and Gideon Aughenbaugh, and to restrain these defendants from obtaining a deed from Broder on sales made by him as Sheriff. The question involved is one of priority between purchasers at Sheriff’s sales.

<p>The grant from Alvarado to Sutter, of June, 1841, passed to Sutter a title to the land it embraces, subject to be defeated by the subsequent action of the Supreme Government and Departmental Assembly, and carried with it a right to the possession, use, and enjoyment of the land, which right can be asserted in our Courts.</p> <p>Such grant passed a present and immediate interest to the grantee in the quantity of land specifically designated—eleven leagues—to be surveyed and laid off within the exterior limits of the general tract designated in the grant, by the officers of the Government.</p> <p>The land upon which the city of Sacramento is situated, is within the exterior limits of the grant to Sutter, of June 18th, 1841.</p> <p>Morton v. Folger, (15 Cal. 275) holding that 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, after his death, as hearsay evidence of the location of such lines, affirmed.</p> <p>Circumstances under which the deposition of Vioget, now deceased, as to the boundary lines of the Sutter grant is admissible, stated.</p> <p>Morton v. Folger, (15 Cal. 275) holding 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, to be admissible, whether the boundary were one of general or public interest, or were one between the estates of private proprietors, affirmed.</p> <p>Ferris v. Coover, (10 Cal. 589) holding that the map or plat referred to in the grant to Sutter must be regarded, for the purpose of identifying the land, as part of the grant itself; that the description given in the grant was to be taken in connection with the lines marked on the map, and if any portion was to be rejected, reference would be had to the circumstances under which the grant was made, and the intention of the parties, and to ascertain these, parol evidence was admissible, and that such portion would be rejected, and such construction adopted, as would give effect to that intention, affirmed.</p> <p>In ejectment for land in Sacramento county, claimed under Sutter’s grant, the grant by Micheltorena to Leidesdorff, in October, 1841, is competent evidence to show that the tract of country now embraced by that county is included within the boundaries of the grant to Sutter.</p> <p>For land within the boundaries of the general tract granted to Sutter, in the county of Sacramento, ejectment will lie directly upon the grant, although no official survey and measurement has yet been made by the officers of Government, and although it may appear, when such survey and measurement are made, that there exists, within the exterior limits of the general tract, a quantity exceeding the eleven leagues.</p> <p>Until such official measurement, no individual can complain, nor be permitted to determine, in advance, that any particular locality will fall within any surplus over and above the specified quantity, and thereby justify its forcible seizure and detention by himself.</p> <p>The evidence in this case, showing that the land within Sacramento county was in possession of Sutter, by permission of the former Government, for years previous to the cession to the United States ; that it was subjected by him to such uses as he desired; that he had absolute control over it, without disturbance by any one, exercising the rights of a proprietor, to the knowledge of the Government, and with its recognition of their existence; that he asserted ownership of the land, under the grant from Alvarado, and that for years after the conquest and treaty, his claim and possession were unquestioned; his title, whether it be regarded as a legal or equitable one, is sufficient, under these circumstances, to enable him, and those holding under him, to recover or maintain possession, in the Courts of the State, at least until the United States intervene, and determine, through the appropriate departments, that his claim, under his grant, shall be satisfied by land elsewhere selected.</p> <p>The words in the petition of Sutter—“ not including, in said eleven leagues, the land which is periodically inundated with water in winter,” and the words in the grant, “ without including the lands inundated by the impulse and currents of the rivers,” mean the land which is regularly inundated during the winter, and refer only to what are known as tide lands. Mo other lands will meet the terms of the petition.</p>

Indictment for burglary, in entering in the night time a certain warehouse, and stealing various goods and chattels. The indictment was in the usual form. The jury being instructed, as is stated in the opinion of the Court, found defendant guilty as charged. He appeals.

<p>Appeal front the Fifteenth District.</p> <p>Defendant appeals.</p>

<p>Appeal from the Probate Court.</p>

Indictment for perjury. Defendant demurred on the grounds, among others, that the indictment does not substantially conform to sections two hundred and thirty-seven and two hundred and thirty-eight of the Criminal Practice Act in certain particulars, naming them; and that the facts stated do not constitute a public offense. Demurrer sustained, no exception being taken by the District Attorney. Further facts appear in the opinion.

Application to the Supreme Court for a mandamus to the Judge of the Twelfth District. The application is based upon an affidavit by relator, setting forth, in substance, that he is plaintiff in the suit of George Downer v. Henry Thompson, pending in the Twelfth District Court; that the suit was instituted for him by Messrs.

Quo warranto to try the right to the office of District Attorney for the city and county of San Francisco. The facts appear in the opinion of the Court. The Court below gave judgment in favor of the claimant, Porter, ousting defendant from the office. Defendant appeals.

Suit to establish the right of plaintiff to compensation for certain improvements placed by him on a lot in San Francisco, leased by his lessors from the vendor of defendants; to have the value of the improvements appraised in such manner as the Court should direct, and the premises sold to pay the same, and for an injunction, restraining defendants from disturbing the plaintiff’s possession until payment for the improvements.

Action against the city and county of San Francisco and the Commissioners of the Funded Debt, under the Act of May, 1851, to quiet title. Plaintiff claims under a grant to one Bernal, as stated in the opinion. The city and county set up title as the successors to the old pueblo, and the Fund Commissioners claim under the act creating them.

Action for the sale, as on partition, of a certain lot in Oroville, with a building thereon—known as the “ Metropolitan Theater property ”— held by the parties as tenants in common, and for an accounting from defendant, Ewer, who is in possession. Plaintiffs claim, as owners of half the property, by virtue of a Sheriff’s deed to them, as stated in the opinion.

Suit to quiet title. The facts are substantially stated in the opinion. It may be added, however, that the Probate Court, in confirming the contract between Mrs. White and Stuart, directed her to make him a deed of the land.

<p>Appeal from the Sixth District.</p> <p>The facts appear in the opinion of the Court. Defendants had judgment; plaintiffs appeal.</p>

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

Ejectment to recover a tract of land in Tuba county, forming, as plaintiffs claim, part of Johnson’s ranch. Plaintiffs are husband and wife, and claim under a patent from the United States to one William Johnson. Verdict for plaintiffs; judgment accordingly, and defendant appeals. The facts are fully stated in the opinion of the Court.

<p>Appeal from the Seventh District.</p> <p>The facts are stated in the opinion of the Court. Plaintiff had judgment. Defendants appeal.</p>

The complaint alleges that in August, 1850, one Morris was in possession of the land sued for; and then goes on to set forth numerous transfers from Morris, until the title is vested in plaintiffs, and annexes to the complaint copies of the conveyances, which are nine in number.

<p>A complaint in replevin, alleging that the testator was seized and possessed of certain premises at the time of his death, on the nineteenth of July, 1855, and that the plaintiffs were appointed the executors of his last will and testament, without averring, in direct terms, either previously or subsequently, the fact of the testator’s death, or that he left a last will and testament, is defective as a pleading.</p> <p>A complaint in replevin, alleging that F. was seized and possessed of certain premises at the time of his death; that the plaintiffs were appointed the executors of his last will and testament, and ever since their appointment have been in the possession of the premises; that certain persons, whose names are not designated, entered upon the same without authority, and cut down timber growing thereon to the amount of about three hundred cords ; that the defendant after-wards also entered upon the premises, without authority, and removed the wood thus cut, and still detains it from the plaintiffs; that they have demanded the possession of the same from him, and that he refuses to deliver it to them, to their damage of $1,100—the alleged value of the wood—sufficiently shows plaintiffs’ ownership of the wood.</p> <p>The averments in such complaint of “unlawful and wrongful,” as applied to the entry upon the premises and the cutting down of the timber, and to defendant’s removal and detention of the same, may be stricken out as surplusage.</p> <p>Against the catting of timber, the owner of real property is entitled to the preventive remedy of injunction. Whilst the timber is growing, it is part of the realty, and its destruction constitutes that kind of waste, the commission of which a Court of Equity will, upon petition, restrain. When once cut, the character of the property is changed; it has ceased to be a part of the realty and has become personalty, but its title is not changed. It belongs to the owner of the land as much afterwards as previously, and he may pursue it in whosoever hands it goes, and is entitled to all the remedies for its recovery which the law affords for the recovery of any other personal property wrongfully taken or detained from its owner. And if he cannot find the property to enforce its specific return, he may waive the wrong committed in its removal and use, and sue for the value as upon an implied contract of sale.</p> <p>In suits for damages for timber cut and removed, as in this case, the true rule, so far as the title to the land is concerned, is this : The plaintiff out of possession cannot sue for the property severed from the freehold, when the defendant is in possession of the premises from which the property was severed—holding them adversely, in good faith, under claim and color of title—in other words: The personal action cannot be made the means of litigating and determining the title to the real property as between conflicting claimants.</p> <p>But this rule does not exclude the proof of title on the part of the plaintiff in other cases, for it is upon such proof that the right of recovery rests. It is because the plaintiff owns the premises, or has the right to their possession, that he is entitled to the chattel which is severed, and that must be in the first instance established. A mere intruder or trespasser is in no position to raise the question of title with the owner so as to defeat the action.</p> <p>Pennsylvania cases, recognizing this distinction, cited.</p> <p>The complaint here, averring that plaintiffs were duly appointed executors of the last will and testament of the deceased, and have ever since been such executors, and as such have been ever since in the possession of the premises, is not demurrable on the specific ground that it does not show that plaintiffs are the executors of F., or have any authority to maintain the action—though it is subject to other objections. The complaint should state the death of F.; his leaving a last will and testament; the appointment therein of the plaintiffs as executors; the probate of the will; the issuance of letters testamentary thereon to the plaintiffs; and their qualification and entry upon the discharge of their duties as executors.</p> <p>The executors had the right to institute the action under the general authority conferred upon them by the statute. No special authorization from the Probate Court is requisite in such cases.</p>

<p>Query: Whether a leasehold estate for a term of years is real' property in such sense that a judgment docketed becomes a lien thereon.</p> <p>A mortgagor cannot make a lease which will bind his mortgagee, where the lessee, at the time, has actual or constructive notice of the mortgage.</p> <p>The interest of the lessee, in such case, depends for its duration—except as limited by the terms of the lease—upon the enforcement of the mortgage. So long as the mortgage remains unenforced, the lease is valid against the mortgagor, and, in this State, against the mortgagee; but with its enforcement, the leasehold interest is determined, even though the lessee be not made party to the foreclosure suit.</p> <p>There is no privity of contract or estate between the purchaser upon the decree of sale on foreclosure and the tenant of the mortgagor. The purchaser may treat the tenant as an occupant without right, and maintain ejectment'for the premises—except where the purchaser is precluded, by his acts or declarations, from thus taking him.</p> <p>The purchaser cannot, for the want of privity, count upon the lease, and sue for the rent or the value of the use and occupation. The relation between the purchaser and tenant is that of owner and trespasser, until some agreement, expressed or implied, is made between them with reference to the occupation. The tenant is not bound to attorn to the purchaser, nor is the latter bound to accept the attornment, if offered, unless the acts or declarations of the purchaser, anterior to the purchase, qualify the subsequent relation of the parties, or the rights springing from it.</p> <p>There are cases where the purchaser on a sale under a decree of foreclosure, would be estopped from treating the tenant of the mortgagor as a trespasser—as, for instance, when the lease was taken upon the encouragement of the mortgagee, and the purchaser was cognizant of the fact at the time of his purchase.</p> <p>Only those who are beneficially interested in the claim secured, or in the estate mortgaged, are necessary parties to the foreclosure of a mortgage.</p> <p>A tenant of the mortgagor is not interested either in the claim secured nor in the estate mortgaged—that is, in the title pledged as security. He has not succeeded to such estate, or to any portion of it. He does not stand in the position of a purchaser. The estate remains in his lessor; he has only a contingent ' right to enjoy the premises. The right of the lessor to the possession ends with, the deed by which the sale of the premises is consummated; and the tenant’s right to possession depends upon that of the lessor, and goes with it; and the tenant having notice, actual or constructive, of the mortgage, need not bé made party to the foreclosure.</p> <p>Possibly, a Court of Equity would, under some circumstances, allow a tenant for years to redeem the premises sold on foreclosure, if he applied within a reasonable period after becoming acquainted with the proceedings.</p> <p>But the tenant has no such absolute right, from the mere fact of his tenancy, as to require him to be a party to the foreclosure, in order to vest the legal title in the purchaser under the decree.</p>

On the trial, which was before the Court, by consent of parties, plaintiff introduced in evidence section eight of an ordinance of the city of San Francisco, passed November 4th, 1852, and also Ordinance No. 493, both of which appear in the opinion of the Court.