Volume 17 — California Reports

The facts are that the Twelfth Judicial District was created by Act of May 15th, 1854, under which the Governor was to appoint and commission some competent person as Judge of the District, to hold office “ till the next general election, when a Judge shall be elected by the qualified electors of the District.” May 24th, 1854, the Governor appointed and commissioned as Judge of the District, Edward Norton, who, on the twenty-sixth of that month, took the oath of office,…

Bill against the Supervisors of Butte county, the California Northern Railroad Company, a corporation under the laws of this State, and the Treasurer of the county, to restrain the Supervisors from issuing county bonds to the railroad company, in accordance with the statutes named in the opinion of the Court.

Suit for damages for entering upon and working certain quartz mining claims, and for injunction restraining, etc. In 1850 and 1851, Stevenson, Whitcomb, Peake, and others located a number of quartz… Held: and worked the same until December, 1858, when Hepburn transferred his leasehold estate to his co-lessee and one Walsh, who are plaintiffs here.

Ejectment for a lot in San Francisco, both parties claiming title under the same grantor and by the same conveyance. The facts are that on the fourteenth of May, 1853, Gray and Barber conveyed the premises in controversy to George Athaie, by deed in the form stated in the opinion of this Court—the consideration specified being $7,000.

The complaint is a simple count for lumber sold and delivered by plaintiffs to Lombardo, Kershaw, Ralto, and others, whose names are unknown—without any allegation of partnership between defendants. Lombardo filed a general denial; Kershaw made default; Ralto answered, that at the time the lumber was furnished he had no business connection with the other defendants, and was not, therefore, a proper party defendant; and the other defendants were not served.

<p>Appeal from the Eleventh District.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>An attorney at law appointed by the Court of Sessions to defend a pauper prisoner arraigned before it upon an indictment for felony, cannot charge the county for his professional services—the appointment being made upon the expression of a desire of the prisoner to have counsel.</p> <p>The Court of Sessions cannot create any charge against a county, except in certain special cases.</p> <p>It is part of the general duty of counsel to render their professional services to persons accused of crime, who are destitute of means, upon the appointment of the Court, when not inconsistent with their obligations to others; and for compensation, they must trust to the future ability of the parties.</p>

The Court below admitted the testimony of the mulatto person, the owner of the watch alleged to have been stolen. Defendant appeals.

<p>Where in suit in a Justice’s Court for damages to real property, the answer put in issue the ownership of the property, and the defendant moved to transfer the case to the District Court for trial, which motion was refused; and after trial before the Justice, judgment was rendered for plaintiff, and the defendant appealed to the County Court, where the judgment was set aside, and an order made transferring the case to the District Court, where, after trial, plaintiff again had judgment: Held, that the County Court had authority, under sections five hundred and eighty-one and three hundred and sixty-seven of the Practice Act, to transfer the case to the District Court; that the effect of the appeal to the County Court was to vest it with authority to make all orders necessary for the determination of the case; and as the case was to be tried de novo,, and the County Court was incompetent, under the statute, to try it, the transfer to the District Court was necessary.</p> <p>The fact that the sum sued for in such case was only two hundred dollars, does not deprive the District Court of jurisdiction. The fact that the title to real property was involved, and not the sum sued for, established the jurisdiction. The issue upon this question of title had first to be found in favor of plaintiff before he could recover any damages. This issue involved not only the right of plaintiff to recover, but the entire value of the property; and there being nothing in the record to show this value to be insufficient to support the jurisdiction, the presumptions are in favor of the validity of the proceedings.</p>

The main facts are stated by the Court. The suit was against Mrs. Blanchar and her husband I. D. Blanchar, as individuals, against her as trustee of her minor children, Harriet M. and g. Risley, and against said children as minor heirs of J. Risley, deceased. Defendants demurred to the complaint on the grounds that there was a misjoinder of parties defendant, and that the complaint does not state facts sufficient to constitute a cause of action.

Most of the material facts are stated in the opinion of the Court. The precise facts in regard to the last point considered by the court are, that the Court directed a panel of thirty jurors to be summoned for the term at which the prisoner was tried. Before this case was called for trial, some of the jurors had been excused.

Forcible entry and detainer in a Justice’s Court. The complaint, which was verified, alleges that heretofore plaintiff leased defendant twenty-five acres of land, on which defendant now resides, and that the lease terminated by limitation on the first day of October, 1859; that on the thirteenth of the same month, plaintiff, in writing, demanded of defendant possession of said land, which was refused.

<p>Appeal from the Thirteenth District.</p> <p>Action to restrain defendant from enforcing a judgment in his favor against plaintiff, on the ground that the judgment had been discharged by a decree in insolvency.</p> <p>The only point made in the Court below was, whether the debt from Green to Thomas was sufficiently described in Green’s schedule. The description was: “ No. 8. John W. Thomas, of Mariposa ; a judgment in District Court; amount now due about nine hundred dollars.”</p> <p>The Court below held, that although the proceedings in insolvency were otherwise regular, the description was insufficient; that the judgment was not discharged; and accordingly dissolved the preliminary injunction issued to restrain the execution.</p> <p>Plaintiff appeals.</p>

The complaint avers, in substance, that plaintiff had a mortgage, executed by one Clark and his wife, upon a lot in Marysville, together with the improvements thereon, known as a “ bath house; ” that subsequently he foreclosed the mortgage in due form; that an order of sale was issued, and under it the premises were sold by defendant, as Sheriff, to plaintiff, he being the highest bidder; that defendant gave to plaintiff the usual certificate of sale, and in due time…

Suit upon several promissory notes. Answer, a set-off. The case was sent to a Referee; who reported a finding and judgment in favor of plaintiff. Judgment being entered in accordance with the report, defendant excepted to the report, and moved to set it aside, and for a new trial, on the ground, among others, that the evidence was insufficient to justify it. Motion denied. Defendant appeals.

Suit against defendant Lattimore, as Treasurer of Butte county, and the sureties on his official bond, to recover damages for breach of the conditions of the bond. Lattimore was elected Treasurer in September, 1857, and gave bond, and entered upon the duties of his office on the first Monday of October following—his term of office, according to the law then in force, being two years from that date, and until his successor was elected and qualified.

<p>In an action for injuries to a garden, occasioned by the breaking of a reservoir, the Court instructed the jury, that to entitle plaintiff to recover, it must appear that the breaking of the reservoir resulted from the gross negligence of defendants ; and then proceeded to explain that defendants must have taken the same care of their reservoir, and of the water in it, as they would have done, being prudent men, had the garden of plaintiff been their property; and that otherwise, they had been guilty of gross negligence, and were liable in damages: Held, that although the instruction without the explanation was wrong, still, with the explanation it was right, and could not have misled the jury.</p>

The complaint avers that in 1858, plaintiff and defendants Kempt and Manseau entered into an agreement, which is under seal and set out in hcec verba.

<p>Ye Cow is indicted for larceny; Ah Cow is arraigned, and pleads not guilty; By Chow demands a separate trial, and is tried; the verdict and judgment are against Ah Cow; By Chow moves for a new trial and appeals : Held, that By Chow who appeals is sufficiently identified with the proceedings, by being named as the party who was tried, to maintain the appeal.</p> <p>Held, farther, that the judgment must be reversed; that if the defendant should again be indicted for the same offense, it might be difficult for him to establish a previous conviction—the record wanting certainty.</p>

The record consists, substantially, of the complaint, ansAver and findings of the Court—there being no evidence in it.

<p>In suit for mining claims, the Court charged the jury, in effect, that possession taken of a mining claim, without reference to mining rules, was sufficient, as against one entering by no better title, to maintain the action; and further, that this possession need not be evidenced by actual inclosure, but “if the ground was included within distinct, visible, and notorious boundaries, and if plaintiffs were working a portion of the ground within those boundaries,” this was enough, against one entering without title: Held, that the instruction was right; that though the regular and usual way of obtaining possession of mining claims be according to the mining regulations of the vicinage, still, a possession not so taken is good against one taking possession in the same way; and that the actual prior possession of the first occupant would be better than the subsequent possession of the last.</p> <p>No acts are required as evidence of the possession of a mining claim, other than those usually exercised by the owners of such claims. A miner is not expected to reside on his claim, nor build on it, nor cultivate it, nor inclose it. He maybe in possession by himself, or by his agents or servants.</p> <p>Going on the lead to work it, or even work done in proximity and in' direct relation to the claim, for the purpose of extracting or preparing to extract minerals from it—as, for example, starting a tunnel a considerable distance off, to run into the claim—would be a possession of the claim within the meaning of the rule.</p> <p>As to the extent of a miner’s possession, where he enters under a written claim or color of title, his possession, except as against the true owner or prior occupant, is good to the extent of the whole limits described in the paper, though the possession be only of a part of the claim.</p> <p>Where a claim is distinctly defined by physical marks, possession taken for mining purposes embraces the whole claim thus characterized, though the actual occupancy or work done be only on or of a part, and though the party does not enter in accordance with mining rules, or under a paper title. The rule which applies to agricultural lands, and holds to a more strict interpretation of a possessio pedis, does not apply to such a case.</p> <p>The nature of the possession requisite, when applied to different kinds of property, as agricultural lands, town lots covered with water, large districts where there is no timber, etc., suggested.</p> <p>Fences are not requisite around mining claims. The physical marks upon and around the claim are sufficient to notify every one of the possession and claim of the possessor; and by common understanding, the going upon a claim to work it is an appropriation of the entire claim; especially, if that claim can be appropriated to that extent by location by one man.</p> <p>Query: Whether, if several distinct claims have been consolidated into one, and the i rules of the locality allow but one claim to be taken by one man, and after this consolidation, a person should go upon the consolidated claim to work, without authority from the owner, his possession might not be referred to the particular claim upon which he entered, and not to the whole tract; and whether the question might not be one of intent; and whether the presumption would not be, that he meant to appropriate only the quantity allowed by the rules of the vicinage 1 ,</p> <p>In the absence of any mining rale declaring that a failure to record a claim avoids the entry or claim, a party may take actual possession of mineral land, though in talcing possession he do not observe the requirements as to registry, and the like acts prescribed by the local laws. But if he take more land than these rules allow, this would not give him title to the excess against any one subsequently entering, who complies with the laws, and takes up such excess in accordance with them.</p> <p>Miners have the power to prescribe the rules governing the acquisition and divestiture of titles to this class of claims, and their extent, subject only to the general laws of the State.</p> <p>Where plaintiff claims, under purchase and location, a small tract of mineral land, with demarked limits, of which he is in possession, and there is no proof on the trial that the extent of his claim is opposed to the local rules, the presumption is, that his possession is rightful, and not wrongful.</p> <p>In such case, the plaintiff need not show, in the first instance, that he was in pos-< session in accordance with the local laws; but may (as a vendee under a deed mav as to other land) make a prima facie case, upon possession ; and this is enough until the defendant shows that the possession is wrongful because in violation of rules which justify him in going upon the premises and working them.</p> <p>In this case, held, that defendant could not offer in evidence an extract or single clause of a book containing the mining rules, but must offer the whole book— the book being in Court, and in possession of defendant, and it being necessary to a fair understanding of any one part, that the whole should he inspected.</p> <p>Plaintiffs here—three in number—claiming by purchase and location, defendant offered to show that one of the plaintiffs had admitted, years ago, that he had more than five claims: Held, that the evidence was properly ruled out—its relevancy not being shown.</p> <p>Where the judgment seems right, on the merits, this Court will not sustain mere technical exceptions taken in the course of the trial, unless compelled by law so to do.</p>

<p>Wuere husband and wife are sued for rent claimed on a lease made by plaintiff to the wife—plaintiff and the wife being tenants in common of the property: Held, that the wife can be liable only as sole trader under the statute; and that the complaint must aver facts requisite to establish her liability in that charac. ter; and that the allegation that she “ was doing business as a femme sole with the consent of her husband ” is insufficient.</p>

<p>Where the respondent gave notice, April 20th, excepting to the sufficiency of the sureties on an undertaking on appeal, and appellant then gave notice that the sureties would justify on the twenty-fifth of the same month, and orders were afterwards made extending the time of justification to May 1st: Held, that the failure of the sureties to justify within five days after notice of exception to their sufficiency rendered the appeal a nullity; that the statute upon this subject is peremptory; and that the Court had no power to extend the time.</p>

Suit for taking and detaining a lot of merchandise. The verification to the complaint is in the usual form; is headed “ Tuolumne county, ss.; ” and taken before the attorney of the plaintiff, who signs his name thus : “ H. P. Barber, Notary Public ”—no seal being attached. The answer was filed Aug. 12th, 1859 ; and the amended answer filed Nov. 8th following, by leave of Court and by consent of plaintiff’s counsel.

<p>Appeal from the Sixth District.</p> <p>After plaintiff had complied with the agreement stated in the opinion of the Court, defendant Meeks executed to him a note for six hundred and twenty-five dollars and seventy-eight cents, as the amount due for the small frame house and the other improvements— the sum agreed on for the house being two hundred and seventy-five dollars. To secure this note, plaintiff, on the fifteenth day of October, 1858, filed his notice of lien, as follows :—</p> <p>“ To all whom it may concern, and particularly W. Meeks, will take notice that I, John M. Selden, of the city and county of Sacramento, State of California, do claim a lien on that part of lot, etc., * * * * Said lien is to secure the performance of a contract for the payment of six hundred and twenty-five dollars and seventy-eight cents, as specified by note, as follows:</p> <p>“$625.78.</p> <p>“ Twelve months after date, I promise to pay John M. Selden or order, the sum of six hundred and twenty-five dollars and seventy-eight cents, with interest at one and one-half per cent, per month, payable monthly, for value received.</p> <p>“W. MEEICS.”</p> <p>“ Sacramento, September 10th, 1858.”</p> <p>“ The above note was given as a settlement, according to a verbal contract for labor done and materials furnished in erecting a building, repairing and otherwise improving the aforementioned premises, and it was to be paid in twelve months, with one and one-half per cent, per month, as specified by note and settlement.</p> <p>“JOHN M. SELDEN.</p> <p>“ Sacramento, September 10th, 1858.”</p> <p>Duly verified.</p> <p>On the twenty-seventh day of September, 1858, Meeks conveyed this lot to Stewart, who, on that day, borrowed $1,000 of the intervenor, giving him a mortgage to secure the same. Plaintiff’s work was completed before this sale to Stewart.</p> <p>The case was tried by the Court, and a decree rendered for a sale of the premises, out of which the lien of plaintiff was to be first satisfied, and then the mortgage of intervenor, who appeals from so much of the decree as gives plaintiff a lien.</p>

<p>The “ Spring Valley Water Works ” petitioned the County Judge of San Mateo county, under the Act of 1858 (Statutes 1858, 218) to appoint commissioners' to appraise the value of certain lands " required for the purposes of the company,” and the Judge, upon an inspection of the articles of incorporation, held that the company was not a corporation, because the articles did not show “ where the principal place of business of the company is to be located ”—the articles stating simply that San Francisco was the place of business—and dismissed the application and all proceedings based thereon. The company apply to the Supreme Court for a certiorari: Held, that the writ does not lie; that the dismissal of the petition for the cause assigned is not an excess of jurisdiction under the Act of 1858, and that mandamus from the District Court is the proper remedy.</p> <p>Held, farther, that the failure to describe the place of business of the corporation, “ as the principal place of business,” is a mere technical error, which does not invalidate the charter.</p>

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

<p>On trial for murder, a juror, when called for examination, stated that he heard as rumor what purported to be the facts of the case, but did not hear it from a witness, nor from one professing to have knowledge of the facts; and from what he heard, had “formed an opinion as to the guilt or innocence of the accusedthat he had no reason to doubt what he had heard, and believed it at the time, and if the facts turned out the same as he had heard them, his “ opinion was formedHeld, that, upon objection for implied bias, the juror was not disqualified.</p> <p>People v. Reynolds (16 Cal.) cited.</p> <p>On trial for murder—the crime, if any, being committed while defendant was attempting to collect a road tax from a Chinaman—defendant introduced a witness who testified that he had been engaged in collecting taxes in the county, whereupon defendant offered to prove by him that “ it is a notorious fact that Chinese are in the habit of resisting forcibly the collection of taxes, and that all Collectors feel compelled to go armed for the purpose of resisting the assaults of the Chinese; and that it is a common practice for the Chinese to assault Collectors without provocation, and that Collectors have generally to procure others, as a matter of safety, to travel with them while in the discharge of their duties.” Objected to as irrelevant and ruled out: Held, that the evidence was not properly presented, and that there was no error in rejecting it in the form in which it was offered.</p> <p>Held, further, that all the facts explaining the conduct of a party charged with crime should, as a general rule, be admitted in evidence.</p> <p>In cases of homicide, malice, proved by pre-concert, going armed, etc., usually enters into the inquiry. To rebut this or any inference arising from the acts done, defendant may show why he was armed, upon what errand he went, and the like facts.</p> <p>On trial for murder, the Court instructed the jury, that “ The fact that the deceased was a Chinaman gave the defendant no more right to take his life than if he had been a white person; nor did the fact, if you so find, that the defendant was seeking to enforce the collection of taxes against another Chinaman, or even against his victim, give defendant any right to take his life. Our laws do not sanction the sacrifice of human life in order to enforce the collection of taxes or licenses:” Held, that the Court had no right to use the word “victim ” as above, because it seems to assume that the deceased was wrongfully killed, which was the point in issue, and was calculated to prejudice the accused.</p> <p>Courts, in their charges, should not directly or indirectly assume the guilt of the accused, nor use equivocal phrases which may leave such an impression.</p> <p>Where on trial for murder defendant asked the Court to charge the jury: “ If defendant inflicted the mortal wound in self-defense, and his danger was so urgent and pressing that in order to save his own life it was necessary that he should have inflicted such wound, then the jury must acquit,” and the Court refused without assigning any reason: Held, that the Court had no right so to refuse; that if the refusal were based upon the ground that the same instruction had been already given, though in different language, then the Court should have distinctly informed the jury that this was the reason for refusing the instruction.</p> <p>When an instruction asked presents the law accurately, the Court ought always to give it in the very words asked—especially in criminal cases.</p> <p>People v. Harley, (8 Cal. 390) and People v. Ramirez (13 Id. 172) approved.</p>

The facts appear in the opinion of the Court. The suit was against Fordyce and the Volcano Water and Mining Company. The Court below held that Fordyce had no lien on the property, and that his decree for a lien was a fraud upon plaintiff and constituted a cloud upon his title ; and therefore annulled and set aside said decree so as to remove the cloud. Defendant Fordyce appeals.

The action is debt on a judgment alleged to have been rendered by the Superior Court of the city of San Francisco, on the sixth day of May, 1856, for $4,632.24, in favor of the appellants, and against the appellees, in a suit entitled “ Olías.

The mortgage in question was executed March 17th, 1858, prior to which time the first wife died. Defendants intermarried March 1st, 1858, and afterwards, the tenant having surrendered the possession of the premises, commenced to reside thereon, with the children mentioned in the opinion of this Court. Plaintiff declined talcing a money judgment against defendant Aitken; and the Court below held the mortgage to be void, and gave judgment for defendants for costs.

<p>Appeal from the Sixteenth District.</p> <p>The facts appear in the opinions of the Court. Defendant appeals.</p>

Suit upon twenty-three bonds of the city of Sonora in the following form: No. 1. No. 1. CITY OF SONORA BOND. $100. $100. Issued in accordance with an ordinance approved Jan. 28th, A. D. 1853.

Complaint avers, that plaintiff and a number of other persons formed a joint stock company, known as the “ Miner’s Ditch Company,” to construct a ditch for water in certain mining localities; that the stock of the company was to be represented by shares valued at one hundred dollars each, of which plaintiff owns seventy, making him the principal stockholder; that the ditch is finished, and has been delivering water to miners for a long time; that defendants, by purchase from…

In April, 1849, Cesario Lataillade died, intestate, at Santa Barbara, California, leaving a widow and infant children. José de la Guerra, his father-in-law, took possession of his papers and assets, and undertook to settle his affairs. At different periods between July, 1849, and November, 1850, said José de la Guerra received money and gold dust belonging to the estate of Lataillade, in all $5,649.50.

<p>Soule v. Dawes, (14 Cal. 247) that in a chancery case, where the proofs are all in, and the case fully before the lower and the appellate Court, the judgment of the latter, where it passes on the merits, is conclusive, affirmed.</p>

The lease from Keyes to Shillaber was for ten years, from Nov. 27th, 1849, and the clause which governs the rights of the parties is in these words: “ In case the United States shall claim and appropriate any portion or portions of the premises before the expiration of the term of this lease, then in such case the said lessee shall be allowed not less than ninety days to remove the buildings thereupon.

<p>Where the language of the deed is, “ all that portion of the Union Banch lying south of two oak trees, marked ‘E. X. C.,’ the same being the northern boundary,” the true construction is that the deed passes only that portion of the ranch lying south of a line running through the trees named, and not that portion south of a line running through the trees and extending throughout the ranch.</p>

' Suit by plaintiff to recover money charged tó have been collected by defendants as rents and profits of one undivided tenth interest in a water ditch claimed by plaintiff.

<p>Appeal from the Fourth District.</p> <p>The substance of the complaint is, that on the thirty-first of July, 1858, Lloyd Tevis recovered, in the Fourth District Court, of San Francisco, a judgment for $10,022.80, with interest at three and one-half per cent, per month, from the sixteenth of July, 1858, with costs, etc., against the plaintiff Coffee and the defendant Greene; that the judgment was paid off and satisfied by Greene, but that the defendants contrived to give it the appearance of being unpaid, and caused a colorable, fictitious and fraudulent assignment to be made from Tevis to defendant Yassault; that Yassault has caused an execution to be issued on the judgment, and placed in the hands of the Sheriff of Alameda county, and that the Sheriff has levied the same on the property of Coffee, and is about to sell it.</p> <p>The prayer is for an injunction, and that Tevis and Yassault be compelled to acknowledge satisfaction of the judgment, and for general relief. An injunction was issued in accordance with the prayer of the complaint.</p> <p>Greene answered, substantially denying all the allegations of the complaint, except the recovery of the judgment, and setting up, that the “ said judgment was rendered on a note given ff) said Tevis, for money borrowed by said plaintiff Coffee of said Tevis, which money was,- as this defendant is informed and believes, applied by said Coffee to his own separate and private uses, and that said Coffee ought in equity to pay and satisfy said judgment, without claim upon or contribution from this defendant.”</p> <p>Yassault’s answer denies that the judgment had been satisfied and paid off; further denies all fraud, and contains an averment, ' “ that he is informed and believes that the debt upon which said judgment was rendered was the proper and individual debt of the said Coffee, and was for funds by him borrowed for and applied to his own uses, and that the judgment should be rightfully paid off by said Coffee.”</p> <p>The case was first tried before the Court, and subsequently issues were sent to a jury as follows:</p> <p>“ Did Yassault use defendant Greene’s funds and property in the payments he made to Tevis, on his claim and judgment against Greene and Coffee ? ”</p> <p>To this the jury answered: “ Yes.”</p> <p>“ Did Yassault act as Greene’s agent, or in his own behalf, in making payments on, and procuring an asignment of, the judgment of Tevis v. Coffee and Greene ? ”</p> <p>To this the jury responded : “ He acted as Greene’s agent.”</p> <p>The defendants moved for a new trial of the issues, which was denied.</p> <p>A decree was entered, substantially in accordance with the prayer of the complaint, the bill being dismissed as to Tevis.</p> <p>A new trial was moved for on the whole case, and denied.</p> <p>The defendants Greene and Yassault appealed.</p> <p>The point upon which this Court turned the case renders any further statement of facts unnecessary.</p>

<p>Appeal from the Tenth District.</p> <p>Plaintiff brought suit against Troughton and wife to. foreclose a mortgage given by them on a house known as the “ Wyandotte Exchange,” together with the lot'on which it is located.</p> <p>Rollins & Co. filed their bill of intervention, setting up an indebtedness due them from Troughton for furnishing materials and erecting a brick building, known as “ Troughton’s Exchange,” upon the premises covered by plaintiff’s mortgage, claiming a mechanic’s lien dating back to February, 1856, and that it was superior to the mortgage, which is averred to be fraudulent and insufficient in form to pass the property, because the homestead of Troughton and wife. In their bill of intervention, Rollins & Co. suggested that one Wilson claimed to have a mortgage upon the same property, and asked that he be made a party. Wilson was accordingly made party, and together with defendants, demurred to the bill of intervention, on the ground that it does not state facts sufficient to constitute a cause of action. Demurrer overruled. Wilson then answered the intervention, setting up a mortgage upon “ the premisos known as Troughton’s Hotel, in the town of Wyandotte, together with the buildings on said lot, or which might thereafter be erected thereon, by the said J ames and Francis Troughton, together with the stable and lot on which it is situated, known as Troughton’s stable, in said town, said hotel lot having been formerly known as Benner’s Exchange, together with the buildings on said lot on which they were situated,” claiming his mortgage to have been executed prior to the date of intervenor’s lien, and praying for a foreclosure in the usual way, and for general relief.</p> <p>On the day of trial, Wilson moved to dismiss the bill of intervention, on the ground that the Court had no jurisdiction of the subject matter of the suit in the shape it came before the Court, for this, that the law providing for interventions gives no remedy outside of the parties to the original suit. Overruled. Case tried by the Court, and findings filed, in effect, establishing plaintiff’s mortgage as the first lien upon the property described in the complaint, to wit: the Wyandotte Exchange, with the lot on which it is situated; intervenors claim as the second lien upon the same property; and Wilson’s mortgage as the third lien upon this property, and also as a lien upon other property described in his mortgage, and known as Troughton’s stables, with the lot on which they were situated—this latter property being on the opposite side of the street from the Exchange. All parties moved for decree in accordance with the findings. A decree was entered giving personal judgments in favor of plaintiff, Rollins & Co. and Wilson against Troughton for the amount of their several claims, foreclosing the equity of all parties, and directing a sale: first, of the premises described in plaintiff’s mortgage, the proceeds to be applied to the claims in the order named above ; and a sale, second, of the property known as Troughton’s stables, with the lot on which they are situated, the proceeds to be paid to Wilson, and the surplus, if any, to be brought into Court for further order. From this decree Wilson alone appeals.</p>

<p>Defendants claiming title under a Mexican grant and a patent issued upon its confirmation by the United States, bring ejectment against plaintiffs for certain premises in their occupation; plaintiffs, claiming as United States pre-emptioners, then file their bill in the same Court, to enjoin defendants from introducing in evidence or using the survey, plat or patent, on the trial of the ejectment, until the determination of an action averred to be pending in the United States Circuit Court, by the United States against defendants and others claiming with them, to annul the survey, plat and patent, on the ground of fraud in the survey, and in procuring the patent—the bill also averring such fraud: Held, that injunction does not lie; that the patent, until set aside, is conclusive evidence of the validity of the grant, of its recognition and confirmation, and also of the regularity of the survey, and of its conformity with the decree of confirmation; and that defendants claiming to be pre-emptioners upon land of the United States, have no standing in Court to resist the patent. •</p> <p>The patent took effect as the deed of the United States at the date of the presentation of the claim under the grant to the Board of Land Commissioners, in August, 1852. It is the record of the Government, that on that day the land it embraces was within the boundaries designated by the grant, and subject to appropriation to satisfy the claim of the heirs of the grantee, and until vacated it imports as against the Government, and all parties claiming under the Government by title subsequent, absolute verity. It can only be impeached by the Government by direct proceedings for its annulment or limitation, and such proceedings, unless accompanied by injunction from the Court in which they are taken, cannot, before decree, impair the rights of the patentees, or those claiming under them; and the institution of the suit of the United States constituted, of itself, no ground for granting the injunction.</p> <p>Defendants in this case, in answer to a rule to show cause why an injunction should not issue, filed their answer denying fully the allegations of the complaint, and verified in substance thus: “Wm. H. P., one of the defendants, being sworn, says his codefendant F. left this State for the State of Hew York before the complaint herein was filed, and is not in this State; that the foregoing answer is true, of this defendant's own knowledge, except as to the matters therein stated to be upon the information and belief of defendants, and as to those matters he, this defendant, believes the same to be true: ” Held, that the verification of the answer, though not complying in form with the exact language of the statute, is sufficient to entitle the answer to be used as an affidavit.</p> <p>Held, further, that the exhibits attached to the answer—consisting of copies of the pleadings and proceedings in the action in the United States Circuit Court— needed no further verification than what arises from the statement in the answer that-they are such copies; that no distinct verification of them was requisite; and that were it otherwise, then the certificate of the United States Circuit Court Clerk was sufficient.</p> <p>The “party aggrieved,” entitled to appeal within the meaning of the three hundred and thirty-fifth section of the Practice Act, is the party against whom an appealable order or judgment has been entered. And when an order is made directing an injunction upon condition that an undertaking be executed and filed, the party against whom the order is made may appeal at once, without waiting until the injunction has issued.</p>

Defendant Skidmore was held to answer by a Justice, on a charge of fatally poisoning a child. He, with three sureties, entered into a recognizance or instrument in writing in the sum of $5,000, for his appearance before Court to answer the charge. Subsequently, an indictment was found, and Skidmore failing to appear, his recognizance was forfeited, and this suit was brought against him and his sureties and Taylor. Further facts are stated in the opinion of the Court.

The facts are stated in the opinion of this Court. Leavenworth, Shelly, Baker and Norris were made defendants. The three former appeal.

Plaintiffs having obtained judgment against defendants, in 1852, applied ex parte, in 1860, to the Court for an execution, which was granted. Defendant appeals from the order granting plaintiffs leave to issue execution.

Ejectment. The complaint, verified, avers that in May, 1860, one Grassini was, and for about three years prior thereto had been the owner and in possession of a certain inclosed piece or parcel of land containing about four hundred feet square; that on that day Grassini sold to plaintiffs and others,, whose interest plaintiffs subsequently purchased—the deraignment of title being set out; and that plaintiffs have ever since been and now are the lawful owners and entitled to…

<p>To maintain an action on a bond made by defendant to plaintiffs, conditioned that if the obligor “shall, on or before the fifteenth day of April, 1859, make, execute and deliver to said W. and B. B. Kinkead, a quit claim, good and sufficient deed ” to certain premises, “ provided, that on or before the fifteenth day of April, 1859, W. and E. B. Kinkead do well and faithfully pay to B. Shreve, or order, certain promissory notes,” etc., demand by the obligees upon the obligor to make the deed according to the bond, is essential.</p>

Indictment for rape. The offense is charged thus: “ John Mills is accused by, etc.-of the crime of rape committed as follows, to wit: The said John Mills, on the twentieth day of August, A. D. 1850, at the county of-, the said John Mills then being of the age of fourteen years and upwards, to wit: of the age of twenty-one years, did unlawfully and feloniously have carnal knowledge of a female child named M. A. W., she, the said M. A. W., then being under ten years of age, to…

Plaintiff sued on a note for three hundred and fifty dollars with interest. Defendant answered that at the time of the commencement of the suit plaintiff was, and still is indebted to defendant in the sum of five hundred dollars, for work and labor, etc., and for money paid out and expended, and set this up as a counter claim, asking judgment for the difference.

/ Indictment for murder. The record contains none of the evidence ; but from the charge of the Judge it is inferred that the killing.was in an affray, and that the defense relied on was self-defense. The only point made in this Court is upon the following portion of the charge to the jury: “ The reasonable doubt which is meant in the law relates to the fact'óf killing.

Ejectment for a portion of fifty-vara lot, No. 48, in San Francisco, fronting on Pacific street, and commencing one hundred and sixty-seven and one-half feet from the west line of Kearny street, as now located—and according to the present map of the city of San Francisco—and running westerly twenty-six and one-half feet. Plaintiff claims by deed from the heirs of V. Bennett, the original • grantee of the lot from the Alcalde of San Francisco, in February, 1847.

The facts sufficiently appear in the opinion of the Court. The questions passed on arose mainly by the rejection of evidence offered by defendant McDonald. Plaintiff had judgment below against all the defendants, of whom there were three, for the full amount of the note. Defendant McDonald appeals.

The contract sued on, which was for the erection by plaintiffs for defendants of a warehouse of specified dimensions and material, contains the following words : “ Now, Messrs.

Suit against Greene and Potter for certain personal property, to wit: a billiard table, and the fixtures, liquors, etc., of a saloon. The complaint averred, among other things, that February 13th, 1860, “ plaintiff was the owner and in possession of” the property, etc., and that defendants, by force, took the same.

Indictment for assault with intent to commit murder. The prosecution introduced evidence tending to show that while Carlton, the party injured, was standing near the porch of a hotel, defendant left a fence some twenty feet in front of the hotel and advanced towards it, cutting Carlton across the hip with a bowie knife as he, defendant, went in at the door.

Ejectment for a tract of land in Marin. The complaint con. tains the usual averments, dating plaintiff’s title Nov. 22d, 1858, and also further avers that on the seventeenth of December, 1856, one McDowell was, and for a long time prior had been in the actual possession and occupancy of the premises; that he then leased them to defendant McCune for one year, for two hundred and fifty dollars, which was paid in advance, defendant entering under the lease; and that at the…

<p>Where the law creating the county of Fresno provided that the County Judge to be elected “ shall receive for his services such sum annually as shall be determined by the Board of Supervisors, not to exceed $3,000, to be paid,” etc.: Held, that the Legislature did not by this clause fix the salary of the Judge ; and that mandamus for $500—the difference between the $3,000 and $2,500, fixed by the Board some six weeks after relator’s election, as the annual compensation of the Judge—does not lie.</p>

The complaint verified, avers, in substance: 1st, that plaintiff was in peaceable and actual possession of a certain tract of land, “ which land, so far as was necessary, was inclosed by a good substantial fence, and part of it under cultivation; 2nd, that defendants were the owners of large numbers of cattle, which were permitted to run at large, not being confined by any fence or inclosure of said defendants, and being so at large and ungovernable the said cattle of…

Indictment for murder. On the trial, the prosecution introduced two witnesses, Murray and Mrs. Favor. It was shown that defendant and Poole, the deceased,'had been living and working together on a ranch belonging to one Favor; that a week before the killing defendant had been discharged, though sleeping at night in a cabin on the ranch; that on the fourteenth of August, Mrs. Favor, the only witness to the killing, was standing in her door, and saw Poole go out.

Suit to recover the value of two houses averred in the complaint to have been erected by plaintiff on land of defendants, under a lease from them to him, and with an agreement on their part to pay for the buildings.

<p>Ok trial for murder, it was shown that deceased had threatened, two or three days before and on the evening before the killing, to take the life of defendant, and that these threats were communicated to him previous to the killing; and that, about 7 o’clock in the morning, deceased was crossing a street from a barber shop, with a bundle of clothes in his hands, and apparently without any weapon, when defendant came rapidly up the street, and said to deceased: “Defend yourself,” etc., at the same time shooting him with a pistol, when</p> <p>deceased fell and in a few moments died : Held, that under the circumstances— it not appearing that the threats of deceased were followed by any overt acts— the mere apprehension of danger was insufficient to justify the killing.</p> <p>On trial for murder, evidence of the character of the deceased is admissible only where the immediate circumstances of the killing render it doubtful whether the act was justifiable or not.</p> <p>On trial for murder, a witness stated that deceased bad threatened to kill defendant on sight, and that she, witness, had told defendant of these threats before the killing, and defendant’s counsel having asked witness if she knew the reason why deceased intended to kill defendant, and the witness having answered “ Yes,” then asked witness “ What that reason was ?” Defendant’s counsel then asked witness if she knew whether or not deceased about the time of these threats shot at any other person for the same reason; and further, what deceased was doing at the time of these threats : Held, that this evidence was irrelevant and properly ruled out.</p>

<p>Appeal from the Sixteenth District.</p> <p>Indictment for murder. Defendants were convicted, and moved for a new trial on the grounds—1st, that one of the jurors who tried the case was an alien, and that this fact was unknown to defendant and their counsel. 2d, that the Court compelled defendants to exercise a peremptory challenge prior to the People to individual jurors before they were sworn to try the cause, and after the jury had been passed to the People and by the People to the defendants.</p> <p>The motion was based upon affidavit by the juror that he was an</p> <p>alien, was not aware that this disqualified him, and that he did not communicate the fact to defendant until after the verdict; and also upon affidavit by defendants’ attorney that he did not know that the juror was an alien until after verdict. Overruled.</p> <p>As to the instructions to the jury the record is silent as to whether they were in writing or not.</p> <p>The facts as to the declarations of Chung Lit are immaterial, because the declarations were clearly inadmissible. Defendants appeal.</p>

<p>Ow the trial upon an indictment for murder, it is not error to instruct the jury that if they believe from the evidence the defendant killed the deceased without malice, either express or implied, and without any mixture of deliberation, this was manslaughter, and they should return a verdict to that effect. This instruction does not conflict with our statute, which says : “ Manslaughter is, the unlawful killing,” etc., because every killing is presumed to be unlawful; and this presumption obtains in manslaughter as well as murder.</p> <p>On trial for murder, the Court instructed the jury: “ If you believe from the evidence that defendant killed the deceased, then to render said killing justifiable, it must appear that the defendant was wholly without any fault imputable to him by law in bringing about the commencing the difficulty in which the mortal wound was given,” and that “ if you believe from the evidence the defendant commenced the affray with the deceased in which the mortal wound was given, then his fear of danger, if really entertained, would not justify him, defendant, in taking the life of the deceased : ” Held, that both instructions were right.</p>

The complaint avers substantially that on the twelfth of February, 1857, plaintiff, being the owner of a promissory note of defendant Polack for $2,000, dated Feb. 8th, 1856, and payable twelve months after date, commenced suit thereon in the Fourth District Court, and on the fifth day of March following obtained judgment for the amount, with interest; that on the eighteenth of September, 1857, an alias execution was issued on said judgment and returned nulla bona—the sum of…

On the seventh day of March, 1860, defendant was indicted for an assault with a deadly weapon, etc., with intent to inflict upon the person of another a bodily injury—the name of the party injured being charged in the indictment to be Sin Groon.

<p>Appeal from the Fourteenth District.</p> <p>On the 6th of June, 1859, the plaintiffs filed their complaint, alleging their ownership and possession of certain mining claims; that they had on said claims, for the purpose of working them, certain flumes and other property, and were continuously working the same ; that while so owning and working their claims, defendants unlawfully entered on them and constructed upon them a flume' of great length, cut trees upon them so as to obstruct the flow of tailings, and by means of the flume defendants constructed, negligently and carelessly desposited large masses of tailings on plaintiffs’ claims, burying up their flume, and other property, and the claims to great depth, with gravel, sand and rubbish, preventing plaintiffs from mining and decreasing the value of the claim, to the specified and great damage of plaintiffs ; that defendants threatened to continue their unlawful acts, and that if they did continue them the claims would become wholly valueless and the damage become irreparable. Prayer for a preliminary and perpetual injunction. No preliminary injunction was issued.</p> <p>The answer denies: 1st, the unlawful entry and unlawful construction of the flume; 2d, the unlawful, careless and negligent deposit of tailings, etc., covering up the property of plaintiffs or preventing their working; 3d, denies the damage alleged by plaintiffs; 4th, sets up that defendants own the claims next above plaintiffs’ in the canon, and had a prior possession in their own claims to plaintiffs’ possession of theirs, and long prior to plaintiffs’ possession they had possession by means of a flume and other works necessary and proper therefor, received, conducted and deposited the tailings, flowing from said ravine from mining claims in the hill above, in the said ravine below their claims; that the plaintiffs and those from whom they claim had notice thereof; 5th, that dams erected by plaintiffs had caused the damages, if there were any.</p> <p>Upon these issues the parties went to trial, and on the first trial defendants prevailed, through the instructions of the Court that the defendants, if prior in location, had a right to run flumes down on those below to their damage. The Supreme Court, on appeal, reversed the judgment, and on a second trial the plaintiffs had a decree for one hundred dollars damages, with a perpetual injuction.</p> <p>The decree runs that plaintiffs “ have and recover of, etc., the sum of one hundred dollars and costs, taxed at $—.” Then follows a further direction that defendants be perpetually enjoined, etc.</p> <p>After judgment and the entry of the order for a perpetual injunction, the plaintiffs moved for their costs of suit. The motion was overruled, except as to the costs of the perpetual injunction, the costs of trial being refused. Plaintiffs appeal from the order, made after final decree, refusing costs.</p>

<p>A sale by the executors of the personal poperty of an estate is invalid, if the notice of the sale be by publication in a newspaper, unless there be an order of Court directing such publication. The statute (Wood’s Dig. 406, 153) requires notice to be given by posting in three public places, or by publication if the Judge so order. In the absence of such order, the notice must be given by posting.</p> <p>A sale by executors of the personal estate of their testator, upon insufficient notice thereof, is voidable, at least, if not void.</p>

<p>Payments made on an open account for goods sold and delivered due for more than a year, do not make the account a mutual account within the eighteenth section of the Limitation Act of 1850, and the account is barred.</p> <p>The fact that the memorandum book of plaintiff in which the account was kept and the passbook of defendant were compared by them, and the result ascertained and the account orally acknowledged by defendant to be correct, amounts to no more than a parol admission of its correctness, which would not take the case out of the statute. And had these books been produced on the trial, the mere entries therein of the items of the account with this oral acknowledgment of its correctness, would not place the account on any different footing, so far as the Statute of Limitations is concerned, than if no such acknowledgment had been made.</p> <p>The fact that defendants once gave plaintiff a lump of gold amalgam to be sent to the mint for coinage, the proceeds to be applied to plaintiff’s account, docs not make the account mutual, nor affect the case in respect to the Statute of Limitations.</p>

<p>The Possessory Act of 1852 is intended for the benefit of actual settlers. And where plaintiff resided upon a tract of land adjoining the land in dispute, and then located his claim under said act upon this disputed tract, by complying with its provisions so far as to mark out its boundaries, file his affidavit, inclose and plant fruit trees on about one acre of it, and occasionally work other portions thereof, but still residing on the other tract, and never actually living oil this : Held, that he cannot recover in ejectment against a party subsequently surveying, taking possession of, and inclosing the land preparatory to claiming it under the Act of 1852 ; that whatever may have been plaintiif’s rights during the period allowed for putting improvements on the premises, they were lost at the expiration of that period by his nonresidence.</p> <p>Held, further, that if plaintiff had perfected his claim by actual residence on the land, he might have absented himself for sixty days without forfeiting his rights; but that the fifth section of the Act of 1852 does not apply where the party has never resided upon the land.</p>

Indictment for larceny, the title being as follows : “ State of California : In the Court of Sessions of the city and county of San Francisco. August term, A. D. one thousand eight hundred and fifty-nine. “ The People of the State of California vs. .

<p>Appeal from the Fourth District.</p> <p>Indictment for murder. The indictment is headed “ State of California: in the Court of Sessions of the city and county of San Francisco, December term, a. d. one thousand eight hundred and fifty-nine; The People of the State of California v. Philip R. Robinson; ” and runs “ Philip R. Robinson is accused by the grand jury of the city and county of San Francisco, State of California,” etc., charging the offense to have been committed “ at the s.aid city and county and State aforesaid.” The certificate of the Clerk transferring the indictment to the Fourth District Court is in the usual form, that the indictment was found in the Court of Sessions of the city and county of San Francisco, State of California, and is hereby certified and transmitted to the Fourth District Court of said city, county and State, for trial.</p> <p>The facts as to the separation of the jury during the trial are, so far as shown by the record, that “ the jury were dismissed and allowed to separate under the statutory caution of the Court.” The jury were dismissed several times, on adjournment of the Court, during the trial, and the above entry made by the Clerk each time. After the evidence was closed, the Court adjourned till the next day, ihe jury being allowed to separate as above stated, without being under the control of an officer. So of a separation during the argument of the case.</p> <p>As to the instructions, the record shows that “ the argument being closed, the Court read to the jury its written charge, and defendant’s counsel read to the jury the instructions by them asked and allowed by the Court, and thereupon the jury retired in charge of a sworn bailiff of the Court, to deliberate upon their verdict and that after the jury had returned for further instructions, “ the Court read to the jury so much of its written charge and such further written instructions as were requestedbut neither the charge nor the instructions appear in the record.</p> <p>As to how the jury came into Court when they asked for instructions, and also when they had agreed on their verdict, the record says : “And now, at nine o’clock and twenty minutes, p. M., the jury in this cause came into Court, and being called, answered to their names,” etc.; and “ Now', at ten o’clock and fifteen minutes p. M. of this day, the jury herein again came into Court, and being called, answered to their names; and the defendant and his counsel, and the District Attorney being present in open Court as before, the jury herein rendered their verdict as follows: ‘We, the jury, find the prisoner guilty of murder in the second degree,’ and so said they all and were thereupon discharged. And on motion of the District Attorney, the Court fixed Saturday, the third day of March, 1860, as the time for passing sentence upon the defendant, until which time the defendant was remanded to the custody of the Sheriff.” The record does not show any entry of an adjournment of the Court at this time.</p> <p>The entry at the time of sentence is:</p> <p>“ District Court of the Fourth Judicial District of the State of California in and for the city and county of San Francisco :</p> <p>“ February term, A. D. 1860.</p> <p>“ Court met pursuant to adjournment.</p> <p>“ Present John S. Hager, Judge.</p> <p>“The People op the State of California vs.</p> <p>Philip R. Robinson.</p> <p>Convicted of murder in the second degree, in killing Peter Burns, deceased.</p> <p>“ This being the day heretofore fixed by the Court for passing sentence,” etc. The sentence then follows, beginning with a recital that the defendant was informed by the Court of his indictment, etc., his arraignment, his plea of “ Not guilty,” his trial and the verdict, his being asked if he had any cause to show why judgment should not be pronounced against him and his answer that he had no cause, etc., and concludes thus: “ Thereupon, the Court proceeded to and did pronounce its judgment and sentence as follows, to wit: Whereas, Philip R. Robinson, the defendant herein, has been duly convicted in this Court of the crime of murder in the, second degree, it is therefore ordered, adjudged and decreed, that the sentence of the Court is that said defendant, Philip R. Robinson, be imprisoned in the State Prison of the State of California for the term of his natural life.” Then follows the certificate of the Clerk that “ the1 foregoing is a true and correct copy of an order, and the judgment entered on the minutes of said Fourth District Court in the above entitled* action,” the certificate bearing date March 5th, 1850.</p> <p>The record shows no date of the session of the Court w'hen sentence was pronounced.</p> <p>Defendant appeals.</p> <p>The precise facts as to certain technical points made by counsel for appellant have been given at some length for the reason that he seems to have noticed about all the irregularities which would be likely to arise in the course of a criminal trial, and the opinion of this Court being adverse to his positions, will serve as a precedent for a large number of cases.</p>

<p>Appeal from the Ninth District.</p> <p>Plaintiffs filed their complaint, alleging that in November, 1859, they found, located and took up four mining claims, in Shasta county; that they complied with the mining rules and regulations existing in the district, and took possession of and commenced labor upon the said claims ; that defendants subsequently entered upon and took possession of a portion of the claims, and committed various trespasses by digging and sinking shafts, mining tunnels, removing quartz rock, washing surface dirt, etc.; and that defendants were insolvent, and asked for an injunction restraining defendants, etc. The Judge granted the injunction.</p> <p>Defendants in their answer denied specifically every allegation in plaintiffs’ complaint, and set up that the mining claims upon which the alleged trespasses were committed belonged to them. The case was tried before a jury; verdict for defendants, and judgment rendered in their favor for costs. Subsequently defendants moved to amend the judgment by adding thereto the words “ and that the injunction in this case heretofore granted be, and the same is hereby dissolved.” This motion was denied ; but the injunction was so modified as to permit defendants to work the surface diggings as set out in their answer.</p> <p>From the refusal of the Judge to amend the judgment as asked for, and from the order modifying and perpetuating the injunction, defendants appeal.</p>

<p>Action for damages for trespass alleged to have been committed by defendants upon certain quartz mining claims; and also for a perpetual injunction against future trespasses, which was granted. Defendants deny all the allegations of the complaint, and set up ownership of certain mining ground. Verdict generally “for defendants,” and judgment in their favor for costs. Defendants ' move to amend the judgment by dissolving the injunction. Motion denied, but the judgment modified so as to permit defendants to work the ground set up in their answer. After the term had expired, defendants appeal from this order refusing to dissolve the injunction, and subsequently, upon defendants giving bond, the Judge, in chambers, made an ex parte order directing plaint-</p> <p>iffs to yield possession of the ground described in the answer to defendants, which order plaintiffs refused to obey; and then followed an order to show cause why they should not be punished for contempt: Held, that the Court had no power to make the ex parte order for the restitution of possession or the induction of defendants into possession of the premises—as this was in effect to decide the whole controversy in limine, and to execute the judgment by an ex parte order; that the possession by plaintiffs of the premises was property, and could not be disposed of except in due course of law; and that all the subsequent orders—for contempt, etc.—being dependent on this, fall with it.</p>

<p>Appeal from the Sixteenth District.</p> <p>Indictment for murder. On the trial the prosecution introduced Lew Fung, who was the only witness to the supposed killing, and he testified, in substance, that he and Tong Hoy, the deceased, were traveling along a road when they met a large party of their countrymen—entire strangers—six of whom, without a word of difficulty, seized witness and Tong Hoy, took them aside into the chapparal, tied witness to a bush, and then one of the Chinese struck Tong Hoy on the head with the sword, another pierced him in the back, when he fell, and witness escaped and has never since seen Tong Hoy. The defense was an. alibi, and several witnesses swore to facts which tended strongly to prove it. Other facts are stated in 16 Cal. 137, where the same case is reported.</p> <p>Defendants appeal.</p>

<p>Appeal from the Eleventh District.</p> <p>February 8th, 1859, plaintiff was about to commence suit against defendants to eject them from certain lands lying in Yolo county, known as the Rancho de Capay. To avoid suit, defendants agreed to purchase the lands of which they were in actual possession, about four hundred acres, and also eleven hundred- acres additional, of which defendants have never had possession other than constructive possession by virtue of the deed. On that day plaintiff made them a deed, of grant, bargain and sale for the fifteen hundred acres, containing a warranty in the following words, to wit: “ And the said party of the first part, for himself and his heirs, the said premises in the .quiet and peaceable possession of the said parties of the second part, their heirs and assigns, against the said party of the first part and his heirs, and against all and every person whomsoever, lawfully claiming, or to claim the same, shall and will warrant, and by these presents forever defend.” At the same time he took from defendants three promissory notes for the purchase money, secured by a mortgage on the land sold. Defendants having failed to pay the notes and interest, this suit was brought to foreclose the mortgage. Defendants admit the foregoing facts, but set up as matter of defense, that they were induced to purchase in consequence of the plaintiff representing that the Rancho de Capay, of which he was the owner, had been surveyed by the United States Surveyor General, and that the survey had been approved by the proper officers of the Federal Government; that a patent had been issued; and that nothing remained to perfect his title but the President’s signature to his patent. These statements they allege were false, and amounted to a fraud upon them. They allege that the survey was rejected by the United States Land Office, to the knowledge of plaintiff, and therefore pray that the contract of sale be rescinded, and their notes and mortgage be delivered up to be canceled.</p> <p>Defendants proved that the plaintiff made the statement concerning Mis title as alleged. It was admitted by the defendants that since the purchase by them, they had united with other parties in employing Mr. Blanding, the former District Attorney of the United States, to contest the survey, and have the lands purchased by them excluded.</p> <p>The Court below decreed that plaintiff surrender to defendants the notes and mortgage sued on; that defendants deliver to the Clerk of the Court the deed from plaintiff, to be canceled; and that they give up possession of all the land not in their possession at the date of the deed ; and that defendants have judgment for Posts.</p> <p>Plaintiff appeals. .</p>

Suit for damages for trespasses upon mining claims—the point involved on the trial being the boundary line between the claims of the parties. Verdict and judgment for plaintiffs. Defendants moved for a new trial upon two affidavits by a witness, Archibald.

Indictment for murder. The killing occurred at a dance house, where an officer had gone to arrest some supposed horse thieves, taking with him Dr. Roberts, the deceased, to identify them. Having arrived at the house, Roberts pointed out defendant and advised the officer to arrest him as a vagrant. After some talk, the defendant having a drawn pistol pointing downwards, began backing out of the house, and when in the street raised it and shot Roberts, who was near the door.

Ejectment for fifteen acres of land. The complaint filed July, 1859, sets out the title of the plaintiffs. The answer amounts to a general denial with adverse possession for nine years.

<p>Appeal from the Ninth District.</p> <p>Ejectment for a lot of ground and house in the town of Shasta. Plaintiff deraigns title through the Sheriff of Shasta county, from a sale made by him on a judgment in favor of plaintiff against B. B. Young—now deceased—the husband of defendant.</p> <p>The defendant answered by a general denial; and also claimed the premises as a homestead.</p> <p>Upon the trial of the case, the plaintiff offered in evidence the judgment roll in the case of L. Williams v. B. B. Young, showing a judgment against the late husband of defendant and in favor of plaintiff on a note dated July — 1857, for nine hundred dollars, and also a deed from H. C. Stockton, Sheriff of Shasta county, to plaintiff of the premises in question. There was evidence tending to show that this judgment was in part for the purchase money of the property—Williams having, at the time of Young’s purchase, a mortgage on the premises, executed by one Harrill, and the sale to Young being negotiated by Williams and Harrill.</p> <p>The Court finds that new arrangements were made between these parties and the notes given to plaintiff, on which judgment was obtained; and that three hundred and ninety dollars of the amount was a balance due on the original purchase money; and that the notes taken from Young originally were for the benefit of plaintiff.</p> <p>Young and wife occupied the premises as a homestead from 1855 until his death, which occurred after the Sheriff’s sale and before the deed; and she has continued to occupy them ever since.</p> <p>Further facts appear in the opinion of the Court. The Court below held, that- plaintiff’s judgment, execution, sale, and deed gave him a prima facie title to the premises, and showed defendant to be a naked trespasser; and that although this title could be defeated by proof that B. B. Young owned the property and occupied it with his wife "as a homestead, yet in fact the proof shows that the purchase money was never paid, and is due plaintiff, and that this fact defeats defendant’s title, makes her still a trespasser, and enables plaintiff to maintain his action.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

Suit commenced by Whiting, Goodman & Co., Aug. 26th, 1859, on the following written guaranty : “ San Francisco, Dec. 19th, 1859. “ For a valuable consideration, I hereby guaranty the payment for any goods which Whiting, Goodman & Co. shall deliver to George S. Porter, or his order, on and after this date. , (Signed.) “ G. W. Clark.” The complaint avers, that plaintiffs gave defendant notice that they accepted the guaranty; and afterwards, relying on it, between its date and…

At the. general election for county officers in Placer county, in, the fall of 1860, relator Dunham received twenty-six votes—all that were cast—as County Auditor; and one Selkirk received one thousand seven hundred and sixty-four votes as County Recorder. There was no proclamation for an election of Auditor.

The facts are stated in the opinion of the Court. The defense, so far as can be gathered from the record, seems to have been that the failure to deliver the cattle was partly the fault of plaintiff and partly owing to the difficulty of collecting them from the plains. On the day on which they were to be delivered, according to the contract, plaintiff went to defendants’ ranch and demanded the cattle.

The complaint contained two counts : one for three hundred and seventy-five dollars for work, labor, and services done and performed, between certain dates, in putting up gas fixtures in the American theater; the other for goods, wares, merchandise, and gas fixtures sold and delivered between the same dates.

Bill in equity to enjoin proceedings under an execution issued upon a judgment rendered by a Justice of the Peace in favor of defendant Hoole and against plaintiff. The facts are as follows: December 5th, 1859, defendant Hoole began suit against plaintiff before said Justice for two hundred dollars, for work and labor done and materials furnished, by filing a complaint not verified.

<p>Where a husband abandons his wife, leaving her to her labor for a support, and she obtains such articles as furniture by her own contracts and earnings, he must be held to assent to her disposition of the property, if her necessities or convenience require it. He permits her to act as a femme sole in acquiring such property.</p>

Indictment for assault with intent to commit murder. Plea: Not guilty. It was proved that on a certain morning one Gardiner was standing in a book store in Sacramento, conversing with a friend, when the defendant rushed up without being seen by Gardiner, and shot him in the back with a pistol and then ran off.

Ejectment for a house and lot. The complaint is in the usual form, averring ownership and possession of the premises in plaintiffs, and that they were the homestead.

Plaintiffs brought suit by attachment against D. M. Eder and P. M. Eder, alleged in the complaint to compose the firm of D. M. Eder & Co. Under the writ, the Sheriff seized the stock of goods in the store of the firm as their property. The two Eders and defendants Loryea & Jacobs then executed the bond set out in the opinion of this Court, and thereupon the property was released and restored to the firm.

Trespass against a Sheriff for $5000 damages, for proceeding to sell plaintiff’s property under execution after service of an injunction restraining such sale. On the fifth of August, 1854, Daniel New obtained a judgment in the late Superior Court of the city of San Francisco against the appellant, Buffandeau—which judgment, by operation of law, was transferred to the Fourth District Court.

Bill for an injunction against a sale of land. The complaint avers in substance, that the city of San Francisco, as incorporated under the charter of 1850, then became and was the owner and possessor for the use and benefit of the citizens, and for municipal purposes, and other uses and purposes declared and intended by the laws of this State thereunto appertaining, of large tracts and parcels of land within the limits of the present city and county of San Francisco, and…

Suit by plaintiffs, Caldwell & Skidmore, against McDermit and D. M. and Wm. Davidson and Chas. D. Moore, to enforce a mechanic’s lien for $3,467.70 for work and labor and materials furnished for a mill of defendants, between June, 1854, and March, 1856; and also to settle a long mutual account alleged to exist between the parties, outside of the foregoing, for work and labor and materials, amounting to $2,095.60.

Suit against Hirshfelder, Levy & Block, A. Williams, John Erwin and the Sheriff, to set aside a certain judgment as fraudulent and void, and to enjoin the sale of property levied on under execution on said judgment.

<p>Appeal from the Twelfth District.</p> <p>Application for mandamus to compel the defendant as Sheriff of San Mateo county, to execute a deed to relator of certain lands in that county heretofore sold by said Sheriff under execution and bid in by plaintiff. The Court below awarded the writ. Defendant appeals. The facts are stated in the opinion of this Court.</p>

<p>Appeal from the Twelfth District.</p> <p>The judgment under execution upon which the property in question was sold, was rendered in favor of B. T. Sanford v. The City of San Francisco, March 31st, 1856. Execution was issued on this judgment on the first day of February, 1858, and the property sold thereunder by the Sheriff on the twenty-fifth of the same month, and a certificate of sale given relator and others— there being several purchasers. Burr, as President of the Board of Supervisors, Aug. 25th, 1858, paid seven hundred and ninety-five dollars to the Sheriff, claiming to redeem in behalf of the city and county of San Francisco from the sale'made to plaintiff and others. And on the same day, he served a written notice upon the Sheriff, to the effect, that the city and county, as judgment debtor and successor in interest “ has this day redeemed all of those lots,” etc., describing them, and stating the sum paid as redemption money for each purchaser. This notice was signed: “ The city and county of San Francisco, by E. W. Burr, President Board of Supervisors.”</p> <p>The Resolution, No. 167, under which Burr acted was passed Aug. 16th, 1858, and is as follows :</p> <p>“ Resolved, that the action of the President of this Board in the redemption of property heretofore sold under judgments against the city of San Francisco be, and the same is hereby confirmed, and he is hereby authorized on behalf of the city and county of San Francisco, to redeem any and all property of said city and</p> <p>county heretofore sold under judgments against the city of San Francisco.”</p> <p>Further facts appear in the opinion of the Court. Defendant appeals.</p>

This is an action brought by Alexander Jones and Mary H., his wife, against the steamship Cortes, to recover damages for the wrong committed by the agents and owners of the defendant, who for a valuable consideration paid them by Mrs. Jones, (before her marriage to Alexander Jones) contracted to transport her from San Francisco to San Juan del Sur, and received her on board as a passenger, but instead of landing her at the port of San Juan, landed her at Panama.

Suit against the sureties upon the official bond of one Brown as Assessor of Butte county. Brown was elected Assessor at the general election on the first day of September, 1858, received in the same month from the Board of Supervisors a certificate of election for one year from the first Monday in October, and on the second of October filed his bond, which was joint and not several, duly approved by the County Judge.

<p>Appeal from the Third District.</p> <p>Suit on the official bond of the Treasurer of Alameda county. Defendants demurred to the complaint, on the grounds: that it does not state facts sufficient to constitute a cause of action, in this: 1st, it does not show that the Board of Supervisors accepted the bond ; 2d, it does not show that said Board ever by any official act fixed the amount of the penalty of the bond ; 3d, it does not show that sureties enough executed the bond to make in the aggregate two sureties for the whole penal sum in which such Board had ordered a bond to be given; 4th, it does not show that Columbet, one of the sureties, ever was bound in any sum whatever.</p> <p>Demurrer overruled, and defendants not answering, final judgment for plaintiff against defendant, Breyfogle, for $40,000, and against each of the sureties for the sum affixed to their names in the bond, the whole judgment to be satisfied when defendants should pay $8,107.37, the amount of the Treasurer’s defalcation, with legal interest from the date thereof with costs. The facts appear in the opinion .of the Court.</p> <p>Defendants appeal.</p>

Suit to recover for work and labor in constructing a dam and ditch, and to enforce a mechanics’ lien against defendants, a corporation. The complaint alleges that plaintiff, on the twenty-fifth of June, 1857, at the special instance and request of defendants, commenced work on their dam; that he worked one-hundred and sixty-five and a half days, and that defendants agreed to pay him therefor five dollars per day.

Suit for divorce and division of common property. The cause, being at issue, defendant moved the Court for a change of venue, plaintiff opposing the motion, which was granted. Subsequently, plaintiff moved for alimony and allowance for counsel fees. Motion denied, and plaintiff moved for an injunction restraining the alienation of the common property pendente lite.

<p>Where defendant made and delivered to K. & Co. her note, to be used by them only as collateral security to raise money or get credit, and they so used it, and afterwards took it up from the pledgees : Held, that K. & Co. could not then sue on the note, as it had answered its purpose; and that plaintiff having taken the note after maturity, and upon no new consideration, took it subject to the same defense.</p>

<p>Appeal from the Seventh District.</p> <p>Action to foreclose a mortgage. The facts appear in the opinion of the Court. Respondent moved to dismiss the appeal for want of jurisdiction.</p>

Suit upon a note. The answer plead defendant’s discharge in insolvency, setting forth the usual proceedings in such cases, copying the decree of discharge, etc. Plaintiff demurred to the answer on the grounds, among others, that it did not allege that the note sued on was particularly described in defendant’s petition and schedule in insolvency, and also that the debt is set forth in defendant’s schedule as payable to plaintiff, then a resident of Maine, and that it did not…

<p>Upon dissolution of the community by the death of the wife, the husband has the exclusive right, in his capacity of survivor, to administer the common property, and to take possession and dispose of it for the purpose of settling the community. The wife’s interest is not subject to administration under the laws for the settlement of the estates of deceased persons.</p> <p>The interest of the wife in the common property, while the community exists, is a mere expectancy, and after her death her interest constitutes neither a legal nor an equitable estate; and there is nothing for a Probate Court to act upon.</p> <p>If, under the statute, the title of the husband upon the death of the wife is divested as to any portion of the common property, such title passes directly to the descendants of the wife, and they take it subject to be absorbed in payment of community debts.</p> <p>For all purposes connected with the administration of the common property, the debts of the community are to be regarded not as the mere private, individual debts of the husband, but as debts of both husband and wife.</p> <p>Query: How far the common property can be subjected, after the death of the wife, to the payment of the separate debts of the husband.</p> <p>Panaud v. Jones (1 Cal. 488) commented on and approved as to its construction of the words “ debts of the deceased,” in the eleventh section of the Act of 1850, defining the rights of husband and wife.</p> <p>Ho special remedy is provided by our statute for the enforcement of the claims of creditors of the community dissolved by the death of the wife, or the protection of persons interested in its property; but the general powers of Courts are adequate to give relief.</p>

<p>Appeal from the Twelfth District.</p> <p>The facts are sufficiently stated in the opinion of the Court. Defendants appeal.</p>

Application to the Supreme Court for a mandamus to the Twelfth District Court. On the seventh of January, 1861, an indictment for murder was found by the grand jury in the Court of Sessions of the city and county of San Francisco against Horace Smith, and duly transferred to the Twelfth District Court, in said city, for trial. January 22d, 1861, Smith was arraigned, and time was given for answer.

The facts are sufficiently stated in the opinion of the Court, with the exception of the manner in which the point decided was raised in the Court below. On the trial, plaintiff offered to introduce in evidence the judgment roll in the case of Kelly v. Eves et als.— being the action on the note referred to. in the opinion—as a foundation for the Sheriff’s deed, and' then the deed.

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

To the facts stated in the opinion of the Court add, that on the trial, plaintiff offered as a witness B. B. Redding, one of the firm of B. B. Redding & Co., the assignors of the account sued on, to prove the loss of the book of original entries, from which part of the account was taken. Defendants objected that he was incompetent, because such assignor. Overruled, defendants excepting. Plaintiff had verdict and judgment for a portion of his demand, stated by the Court.

The facts appear in the opinion of the Court. The complaint was filed Oct. 6th, 1859. The Court below gave plaintiff a decree of foreclosure and for sale of the premises, and application of the * proceeds to his debt, but refused any personal judgment against defendant, and made no provision for judgment for any deficiency after sale of the premises.

<p>Appeal from the Sixth District.</p> <p>The facts are stated in the opinion of the Court.</p> <p>Plaintiff appeals.</p>

This case was before this Court at the last January term, and is reported ante, 467, where the allegations of the complaint are substantially set forth. The cause having been retried, the allegations of the complaint were in the main found true; but it is deemed better to repeat them here in the shape of facts found by the Court.

<p>Appeal from the Sixth District.</p> <p>The amended complaint avers that on the thirteenth day of September, 1852, plaintiff was the owner of a certain tract of land; that he purchased it from A. Craw, and being indebted to defendants three hundred and fifty dollars, he had Craw convey the property to them, to secure this debt, and it was agreed that when plaintiff paid the debt to defendants, they should convey it to him; that on the — day of May, 1853, he paid the money to defendants and demanded a deed; that defendant, Lewis Clark has been absent from the State since July 20th, 1856; that defendant, Howell Clark has been absent from the State since said time—two years and a half—and the complaint prays that they be decreed to convey the premises to plaintiff. This action was commenced in June, 1859.</p> <p>To this complaint defendants demurred, on the ground that the same did.not state facts sufficient to constitute a cause of action, and that the cause of action is barred by the Statute of Limitations, and the Court sustained the demurrer; and as plaintiff did not desire to amend, final judgment was rendered for defendant, from which plaintiff appeals.</p>

<p>A clause in a mortgage authorizing the mortgagee to sell the premises on default of payment, and out of the proceeds to satisfy the mortgage, and render the surplus to the mortgagor, his heirs or assigns, includes the power to execute a conveyance to the purchaser.</p> <p>At common law, a mortgage was regarded as a conveyance of a conditional estate, which became absolute upon breach of its conditions. It gave to the mortgagee—except as otherwise provided by stipulations inserted in the instrument— a right to immediate possession. Upon it he could enter peaceably or support ejectment.</p> <p>The two hundred and sixtieth section of our Practice Act changes this character of the instrument, and takes from the mortgagee all right to the possession, either before or after condition broken, and makes the mortgage a mere lien; but this section does not prevent the owner from making an independent contract for the possession, or from authorizing a sale of the premises, the mortgagee consenting thereto, to pay the debt.</p> <p>The words “ whatever its terms ” in this section were intended to control the terms of grant, bargain and sale, generally employed in mortgages, and do not relate to stipulations for possession or sale.</p> <p>A mortgagor in this State may invest the mortgagee with a power to sell the premises upon default in the payment of the debt secured; and when the sale is conducted in accordance with the conditions of the power, and is fairly made, a good title will pass to the purchaser upon its consummation by a conveyance.</p>

The facts appear in the opinion of the Court. Suit was commenced June 20th, 1860, and was for services rendered from August 20th, 1856 to August 15th, 1859. Plaintiff was a stockholder in the corporation during the time the services were rendered. Verdict and judgment for plaintiff. Defendant appeals.

Plaintiff sues to recover four hundred and forty-five dollars rent of certain property described in the complaint, claiming as the purchaser of the premises at Sheriff’s sale under a decree in the case of Kline v. Chase, a former suit between the same parties. The defendant here was the judgment debtor there.

<p>In suit for divorce on the ground of adultery, the marriage will not be inferred from matrimonial cohabitation, with the reputation of being married persons, if the result of such inference be to prove defendant guilty of bigamy. In such cases actual marriage must be proven.</p> <p>The one hundred and twenty-first section of the Act concerning Crimes and Punishments, as to proof of marriage in prosecutions for bigamy, does not so change the common law rule as to make mere cohabitationpro of of marriage. This section simply obviates the necessity of proving the marriage by documentary or record evidence.</p>

<p>Appeal from the Eleventh District.</p> <p>There were four defendants and summons was served on all except Hernberg. On the day of trial he filed, in proper person, a writing stating that “ he waived service of summons and complaint in the above action and makes his voluntary appearance therein.”</p> <p>No default or judgment had been entered against him, and plaintiffs called him as a witness, the other defendants objecting on the</p> <p>ground that he was a party to the action and interested in the result of the suit. Objection overruled, and defendants excepted. Verdict of fraud against all the defendants. Judgment for the damages, and that defendants be imprisoned until it be paid. Two of defendants, Cohn and Abrams, appeal.</p>

Suit by the husband against the wife for divorce, on the grounds of extreme cruelty and adultery.

<p>Appeal from the Eleventh District.</p> <p>Suit to abate a nuisance and for damages. The complaint avers, in substance, that plaintiff is owner and in possession of a tract of about one hundred acres of land, enclosed by a ditch fence ; that the land has been used for agricultural purposes for several years last past; that defendants have wrongfully entered upon said land and constructed a ditch across it, which with its embankments, or the earth excavated, covered a space two hundred rods long and twelve feet wide, rendering so much of his land useless ; that the ditch so meanders as to render it difficult and almost impossible to plow the land along the ditch; that as the ditch extends entirely across the ranch, many bridges are made necessary, etc., and that plaintiff has been damaged in the sum of two hundred and fifty dollars.</p> <p>Prayer for a “ decree against said defendant, adjudging said ditch to be a nuisance, and directing the same to be filled up and abated, and that plaintiff have judgment for two hundred and fifty dollars damages,” and for all other and further relief.</p> <p>The answer denied all these allegations, except as to the actual digging of the ditch, and averred plaintiff’s consent to the digging of the ditch, defendants to pay for growing crops and repairing fences; that it was an advantage to plaintiff, and that defendant— a mining corporation—had a right to dig it for mining purposes.</p> <p>On the trial plaintiff offered a witness (Berry) as to damages, and asked him what it would cost to fill up the ditch as it was before.</p> <p>Defendant objected to the question as irrelevant, and not a proper basis for damages. Objection overruled, defendant excepting. On cross-examination, defendant offered to show that the ditch was a benefit to the ranch. Objected to by plaintiff and ruled out.</p> <p>The statement in the record as to a license to defendant to dig the ditch is as follows:</p> <p>“ Defendant attempted to show a parol license from the plaintiff to permit defendant to construct a ditch through his enclosure by proving admissions made by him in casual conversations, but no express contract was shown, nor was there any proof to show the terms of defendant’s pretended license.</p> <p>“ The substance of the testimony as to plaintiff’s admissions in regard to the license was as follows, to wit: That some member or agent of the corporation had on some occasion spoken to the plaintiff about running a ditch through his enclosure, and aked him if he had any objection. In reply, plaintiff asked him where the ditch would pass through his enclosure, and thereupon a particular point was pointed out to him at which the ditch would enter plaintiff’s enclosure, and the plaintiff said he might not object to the ditch provided he was paid for the damages or right of way, but mentioned no sum which he would take, nor was he offered any sum; nor was there any agreement or understanding whatever as to what sum the plaintiff would accept or the defendant give.”</p> <p>Verdict for plaintiff for two hundred and twenty-five dollars damages. Decree for that sum, and also that the ditch “ be, and the same is hereby declared to be a nuisance and ordered filled up.” Defendant appeals.</p>

<p>Appeal from the Third District.</p> <p>The facts appear in the opinion of the Court. The agreement referred to in the bond is not set out. Plaintiff appeals.</p>

The note sued on is as follows : “For value received, we, or either of us promise to pay to William Ross, or order, two thousand dollars, to bear interest at the rate of one per cent, per month from and after the decision of the Supreme Court of the United States in the case of the heirs of Marcus West against the United States. October 14th, 1858.” The note was signed—by their mark—by five persons by name of West, and four more by their guardian.

The facts as found by the Court below are as follows : On the twelfth of April, 1859, an order of sale or execution was issued in this case to S. P. Fair, then Sheriff of Siskiyou; but it does not appear that the same was levied by Fair, although the water ditch of defendant was advertised for sale under the writ for some time in a newspaper ; and this seems to be the only fact tending to show that the writ ever reached the hands of Fair, who at the time was not in the…

Ejectment for a tract of land in Oakland, Alameda county. Both parties claim under Luis Peralta, grantee from the Mexican Government of the Rancho San Antonio, which embraces the land in dispute.