Volume 18 — California Reports

This is an action of ejectment to recover a tract of land situated in San Mateo county. On the trial it was admitted that the patent of the United States embraced that part of the demanded premises which was in the possession of the defendants, as stated by them in their amended answer. All other material facts of the case are stated in the opinion of the Court. The defendants had judgment and plaintiffs appeal.

The books of Adams & Co. were, by an order of the Fourth District Court of this State, delivered to Naglee, receiver in the suit of Adams v. Woods et al. there pending, for the settlement of the partnership of that firm.

<p>Where B. sells and delivers to C. certain personal property, with an agreement then made that C. is to resell and redeliver upon B/s executing and delivering to C. certain notes, and B. subsequently tenders these notes and demands the property, and C. refuses to take the notes or surrender the property, and the whole transaction on the part of C. was a fraud, his intention being to get hold of and keep the property: Held, that the tender of the notes did not vest the ownership thereof in C., and that he cannot sue on them; that the fraud takes the case out of the rule that a tender of specific personal property vests the title thereto in the tenderee.</p> <p>The answer in this case sufficiently presents the question of fraud. See facts.</p>

The indictment, found Jan. 11th, 1861, runs thus: “ José Marie Montejo is accused by the grand jury,” etc., “ of the crime of felony, committed as follows : The said José Marie Montejo on or about the twenty-second day of October, 1856, in the county of Siskiyou aforesaid, one mouse-colored mule of the value,” etc., the property of A, “ before then feloniously and willfully stolen, taken and led aivay, feloniously, willfully and for his own gain, did buy and receive,” etc.,…

<p>Appeal from the Fourth District.</p> <p>Action for goods sold and delivered against Meyer Davidson and Lewis Davidson, composing the firm of Davidson & Bro. One only of the defendants answered, and set up his discharge in insolvency by a decree of the Sixteenth District Court. On the trial, to support his plea, he offered in evidence certified copies of his petition, schedule, affidavit, and of all the other papers necessary in proceedings in insolvency, including a decree of final discharge. These papers were separately certified by the Clerk of the Sixteenth District Court. Plaintiffs objected to their introduction on the ground that “ they were detached and isolated papers, and not all certified together, and therefore were no record or copy of a judgment roll.” Objection sustained and papers ruled out, defendant excepting. Defendant then, on the ground of surprise, asked for three or four days time to procure from the Sixteenth District Court a copy of the insolvent proceedings certified in accordance with the ruling of the Court. Objected to by plaintiffs, and time refused, defendant excepting. Judgment for plaintiffs; defendant appeals.</p>

Bill to enjoin a judgment at law obtained by defendant against a portion of the plaintiffs.

<p>English v. Johnson, (17 Cal.) that the quantity of ground a miner can claim by location or prior appropriation for mining purposes may be limited by the mining rules of the district, affirmed.</p> <p>The mining rules of the district cannot limit the quantity of ground or the number of claims a party may acquire by purchase.</p>

<p>Appeal from the Twelfth District.</p> <p>The -facts appear in the opinion of the Court. Defendant had judgment, and plaintiff appeals.</p>

Application to the Supreme Court for a writ of habeas corpus. R. G-. Perkins, the relator, brought suit in the Third District against Elizabeth Perkins, bis wife, for a divorce, on the ground of willful desertion.

Appeal.from the Fourth District. Bill against defendants as executors of the last will and testament of Jose de la Guerra, deceased, to recover the share of the female plaintiff in the estate of her mother.

Suit for a mining claim. After the Court below had instructed the jury they retired, and being unable to agree, returned for further instructions, which having been given, the jury again retired, and being still unable to agree, came into Court, when the Court, of its own motion, instructed them to find for defendant, plaintiff excepting, and demanding permission to become nonsuited, and that the same be entered before the jury again retired.

Ejectment for land in Butte county. Plaintiff claims ownership of one undivided sixth of a tract of land known as the Fernandez grant, containing about four leagues; and avers that defendant has ousted him of one hundred and sixty acres thereof, and claims damages in the sum of $5000—putting the monthly rent at one hundred dollars.

<p>Defendant purchased land of B., and, as part of the consideration, agreed to pay certain debts of B. , Neither plaintiff nor the person to whom the debts were owing were parties to this agreement, nor did they assent to it, or 'attempt to connect themselves with the transaction prior to this suit. Plaintiff is holder of these debts, and seeks to recover them of defendant: Held, that plaintiff cannot maintain the action—there being no privity between the parties, no novation of the indebtedness, and no assent to the transaction, which might make the agreement an equitable assignment.</p>

Action for malicious prosecution. The complaint avers that defendants Domec, Leude and Carmel “ contriving and maliciously intending to injure the said plaintiff in his good name and reputation, and to cause him to be imprisoned,” etc., and “ wholly to ruin him,” “ falsely and maliciously and without any reasonable or probable cause indicted, and caused and procured to be indicted, one Charles Leboubon and this plaintiff,” for an assault with intent to murder said Domec; and…

<p>Appeal from the Third District.</p> <p>The facts are sufficiently stated in the opinions of the Court.</p>

<p>The half-pilotage allowed by the twenty-third section of the Act of 1856, “ To establish Pilots and Pilot Regulations for the Port and Harbor of Benicia and Mare^Island,” is not a toll within the fourth section of article six of the Constitution of this State.</p>

Felicidad Carillo de Castro, the wife of Victor Castro, died on the thirteenth of July, 1856, intestate and the owner of a tract of land. Held: that upon the death of Felicidad Carillo de Castro her separate estate descended in equal parts to her husband and the two children Victor and Jovita; and that Victor having died under age and unmarried, all the estate which came to him by inheritance from his mother descends to his sister Jovita to the exclusion of his father ; and…

Richardson, one of the plaintiffs, began suit in October, 1855, in the Superior Court of San Francisco, against John Bigler, Charles Hempstead and Samuel Bell, ex offieio the Board of Land Commissioners for the State of California, Jacob S. Cohen, Clerk and Agent of said Board, A. J. Butler, A. A. Selover and Richard •Sinton, alleging, in substance, that on the twenty-sixth of October, 1854, said Board, through Selover & Sinton, as auctioneers, sold to the plaintiff the…

Ejectment for mining claims, set out in the complaint as “ a certain tract or parcel of mining ground located on the middle fork of the American river, at the mouth of Mad Canon, township number six, Placer county, State aforesaid; described as follows, to wit: Lying on New York Bar, at the mouth of said Mad Canon aforesaid, fronting said American river, and bounded on the south by said river at low water mark, said claim being in front one hundred and twenty-feet, more or…

Plaintiff sues to recover an interest in a mining claim, alleging ownership since 1855, and an expenditure of $1,200 in working and carrying on the same; that defendants are in the exclusive possession, etc., and prays that the right to said interest be determined and he have restitution. The answer denies that plaintiff was the owner of the interest set forth at the time of the commencement of the suit, or that he was or is entitled to the possession.

Suit for value of the use and occupation of a certain lot of land in Downieville, with the buildings thereon, known as the “Washington Saloon.” The Court below found that on the seventh day of May, 1859, the premises were sold at Sheriff’s sale, under an order of sale issued upon a decree of foreclosure in the case of Knight v. Reticleer et al., the plaintiff herein becoming the purchaser, and receiving the Sheriff’s certificate ; that from that day to November 7th, 185'9,…

Suit for a balance claimed to be due on a written contract between plaintiff and defendants, by which the former was to erect for the latter a brick building of specified dimensions. The contract was dated October 20th, 1859, and the work was to be finished in seven weeks, for the price of $2,600.

<p>A deed of land from A. to F., reciting the consideration at one hundred dollars, and a contract from F. not under seal, not acknowledged nor recorded, agreeing to reconvey the land to A. upon payment within a given time of $8,600, with interest at a specified rate, deducting the rents and profits of the land during the period limited for payment, were delivered between the parties at the same time. This contract contained a provision that it should be treated only as a contract to convey, and not as an acknowledgment that the deed'was intended as a mortgage. The real consideration of this deed was a pre-existihg indebtedness of $8,600 due from A. to F.: Held, that this deed is not in effect a .mortgage; that the question is one of intention to be gathered from the whole transaction; that, although the consideration of the deed was an antecedent debt, yet the legal inference is that the debt was discharged upon the execution of the deed, and the provision, in the contract to reconvey, as to not treating the deed as a mortgage, confirms this inference; and it was competent for the parties to insert such a provision.</p> <p>This contract in itself is in legal effect an agreement to sell, and the provision as to not treating the deed as -a mortgage must be regarded as one of the conditions upon which the contract -was executed, and does not take away or interfere with its efficacy as a contract, but simply repels any presumption from outside facts giving it an operation different from the intention of the parties.</p>

There is no need of any further statement of facts than appears in the opinion of the Court. The Court below overruled a general demurrer’to the complaint, and entered final judgment for plaintiffs. Defendants appeal.

<p>Under our statute, (Act May 1st, 1853) the repeal of a criminal law does not operate to bar the indictment and punishment of an offense committed under the law, unless the intention so to bar be expressly declared in the repealing act.</p> <p>The oath to be made, under the Revenue Act of 1857, to the “list” or “statement ” of taxable property, need not be in writing, if or need the taxpayer furnish in writing such “ list ” or “ statement.” It is sufficient if he give the Assessor the necessary information to make out the “list.”</p> <p>On trial for perjury in making oath to a false list of property, under the Revenue Act of 1857, the Assessor’s memorandum book, in which he -had noted in pencil the property given in by defendant, was offered in evidence by the prosecution to prove the facts recited therein—the Assessor first identifying the book as being the list made by him: Held, that the book—though, perhaps, admissible to show that there was a list taken by the Assessor—was not competent to prove the property therein to be that given in by defendant; or that it was all the property given in by him; or that he swore to it as a correct list of his property—the hook not being offered to refresh the memory of the Assessor, and he stating that by this memorandum only was he enabled to testify as to the property defendant swore to.</p>

<p>Appeal from the Eleventh District.</p> <p>■ In November, 1857, defendant purchased of the Empire Mining Company their mining claims for $8,000 in cash and an agreement on the part of defendant to. pay certain demands against these claims, among which was a debt due plaintiff. Defendant executed and delivered to plaintiff and one Linn a writing as follows, to wit : “ Forest Hill, November 80th, 1857.</p> <p>“ I promise to pay to Robert Linn and Ambrose Wiggins their lawful demands against the Empire Claims as soon as it comes out of the claims of the Empire Co.’s Claims.</p> <p>(Signed) “ James McDonald.”</p> <p>Defendant went into possession of the claims and took out more than gold enough to pay plaintiff and all other claims against the company. Plaintiff’s demand against the company was independent of the demand of Linn. Plaintiff sues on this writing and the agreement to pay him. Judgment for plaintiff; defendant appeals.</p>

Plaintiff .began suit in a Justice’s Court at Forest Hill, Township No. 5, Placer county, by filing as his complaint the following note, to wit: “ 1150.00. Forest Hill, Jan. 10th, 1857. For value received; I promise to pay to James McDonald the sum of one hundred and fifty dollars sixty days after the date of this note, at three per cent, per month or until paid.

Trespass for damages caused by defendants driving their cattle upon land claimed by plaintiffs.

Action to foreclose a mortgage on a quartz mill and lode against the mortgagors and Duck & Sanders, who are subsequent purchasers of the property under execution sale. The complaint describes the mill and lode more minutely than it is described in the mortgage, locating them at Bath, formerly called Sarahsville, Placer county, and avers that this is the same property described in the mortgage.

Horn, plaintiff, brought suit to foreclose a mortgage executed by defendants on their water ditch, and in due time obtained a decree for the sale of the ditch, and the application of the proceeds to his claim and to a mortgage of one Barney, a defendant. At the Sheriff’s sale under this decree, Horn and Barney became the purchasers, and, after the time for redemption had expired, received the-Sheriff’s deed.

• Appeal from the Eleventh District. Suit against Elstner, late Tax Collector of El Dorado county, Bell, the Treasurer, and 0. Merrill, to cancel a certain warrant drawn by the Auditor of the county upon the then Treasurer, and now held by Merrill.

<p>Uudeb the Revenue Act of 1857, several city lots cannot be assessed in gross for taxes, and then sold together for the aggregate amount of the tax. A tax deed based on such sale is void. The intention of the act is that each lot shall be separately assessed and valued, so as to bear its own portion of the. public burdens.</p>

Plaintiff and defendants were both creditors of H. and E. Emanuel, and both issued attachments against his property. Plaintiff’s attachment was levied prior to defendants’, but on the same day. Plaintiff’s affidavit conformed strictly to the statute. Defendants’ affidavits omitted the last clause required by the statute, to wit: “ 3.

<p>Appeal from the Seventh District.</p> <p>Suit to foreclose a mortgage executed June 6th, 1856, by Henrique Welsh and Merced Martinez de Welsh, his wife, Angel Soto and Francisca Martinez de Soto, his wife, in favor of Miguel Yilar, on the undivided tenth of the “ Moraga rancho,” in Contra Costa county. The female defendants, Merced and Francisca, inherited this tenth interest on the first of January, 1856, from their mother, Guadalupe Moraga, to whom it came from their grandfather, Joaquin Moraga, who, in connection with Juan Bernal, was the grantee of the Mexican Government. At the time the interest in the ranch descended to Mercedes and Francisca, it was incumbered by a mortgage given "by the grandfather, Joaquin, and others, to Hugh O’Donnell, on the twenty-fifth of May, 1855. The proportion of this incumbrance which would-fall to Mercedes and Francisca was six hundred dollars, and they procured of Yilar an advance of this money, and to secure it, jointly with their husbands executed to him the mortgage upon which suit is brought—being at the time under eighteen years of age. There seems to have been no note given. Plaintiff is assignee of the mortgage.</p> <p>On the twehty-second of May, 1856, Angel Soto and his wife, Francisca—she being under eighteen years—executed to one Gañido a mortgage upon an interest in said ranch, amounting to two hundred acres, to secure their note to him for two hundred dollars, with interest. May 6th, 1856, defendants Henrique Welsh and Mercedes, his wife, she being under eighteen years of age, executed and delivered to Brown and Hendricks their mortgage upon an undivided one hundred and fifty acres of said ranch. At the date of both these mortgages the land was the separate property of the wives; and one Reed, made defendant, is the holder thereof. The wive§t when they became of age, disaffirmed and refused to be bound by the mortgages—at least, such is the language of the decree, though there is no other proof of the fact in the record. The answers set up the plea of infancy.</p> <p>The Court below held that the wives were not bound by any of the notes or mortgages, and accordingly entered a decree giving-personal judgment in favor, of plaintiffs, and against defendants Henrique Welsh and Angel Soto, for six hundred dollars, with interest, as due on the first mortgage; also a personal judgment in favor of Reed, and against the same defendants, for the amounts respectively due on the other two notes and mortgages. The decree also released and discharged the wives from all of the notes and mortgages, and declared them void, and ordered plaintiff and Reed to. deliver up their mortgages for cancellation. Plaintiff and defendant Reed appeal from so much of the decree a&■ rejects the mortgages.</p>

Suit for w.ork performed and materials furnished by plaintiff, for defendant under written contracts for the erection of a block of buildings in San Francisco. The complaint, filed Aug. 24th, 1858, claims a certain sum as stipulated in the contracts, and a further sum for extra work.

<p>Ejectment on an Alcalde grant of a town lot in San Jose, made January, 1847. Plaintiff proved by one Weeks that he was Alcalde for San Jose during October, 1847, and as such, recorded the original petition and grant in Book 3 of Deeds, in the Recorder’s office of Santa Clara county; that the grant was signed by the genuine signature of Bin-ton, Alcalde at its date; and that the record shown is a true copy of the petition and grant. Plaintiff then proved that neither the petition nor grant is now in the Recorder’s office. He then offered his own affidavit to account for the nonproduction of the original petition and grant, in effect, that lie had never seen said petition or grant; that he had made “ a full, thorough, diligent and careful search for the same among his papers and effects, and in every locality and place where the same might reasonably be expected to be found, and that he has inquired of every person who might reasonably be expected to have said original petition and grant, or either of them, and of every person who might reasonably be expected to know where the same might be found,” without success; and that he believes they are lost or destroyed. The affidavit of the widow of the grantee—upon whose estate there was no administration—was also read, stating that she has searched among- her papers without effect: Held, that this proof sufficiently accounted for the nonproduction of the original grant to admit in evidence the record thereof as found in Book 3 aforesaid; that it was not necessary to the validity of, the grant, that proof should be made of the petition—the grant, if properly issued, being- the effective paper.</p> <p>It is sufficient in such case, prima facie, to show that the grantee, or his representative or assignee did not have the grant, and that it was not in the place where it was last seen.</p>

The complaint avers, in substance, that defendant is a corporation under the laws of California ; that on the fifteenth of March, 1857, plaintiff, then at and a resident of London, in England, was engaged by certain persons, professing to have authority, to come to California and take charge of a portion of the works of defendant ; that plaintiff accordingly came to California, and here learned that these persons had no such authority ; and that subsequently, on the second…

Plaintiff, as District Attorney of Calaveras county, February 13th, 1856, obtained in the District Court a writ of mandamus against James C. Shipman, Auditor of Amador county, commanding him to issue his warrant, upon the Treasurer of Amador county in favor of the Treasurer of Calaveras county, for the sum of $26,517.32, afid deliver the same to the Treasurer of Calaveras county.

<p>Appeal from the Court of Sessions of the City and County of San Francisco.</p> <p>Indictment for grand larceny—the time laid being December, 1859.</p> <p>On the twenty-eighth of January, 1860, defendant moved for a change of venue upon the following affidavit, to wit:</p> <p>“ Lewis Mahoney, now of said city and county of San Erancisco, being duly sworn, doth depose and say: That he is now in the county jail of said county, entirely unable to procure bail, upon a charge of grand larceny, upon which charge he has been indicted in said county, has been arraigned and plead not guilty to said indictment before said Court. And this deponent further says, that on or about the first of June, A. D. 1856, while this defendant was pursuing his lawful business, as a citizen of the county of Alameda, in said State, this defendant was unlawfully, and without color and authority of law, seized and arrested by an unlawful body of the citizens of said county, and by them, upon a false accusation of having committed certain crimes and misdemeanors, restrained of his liberty, and for the space of ten days imprisoned, and finally forcibly transported to the city and county of San Francisco, and placed on board a steamship about to depart from this State. That this defendant having lawfully escaped from said steamship, and from the hands of said unlawful body of the citizens of said county of Alameda, remained in the said city and county of San Francisco, conducting and deporting himself as a good and law-abiding citizen. And this defendant further says, that while remaining in said place as last aforesaid, to wit: on or about the eleventh day of J une, A. D. 1856, this defendant was unlawfully and wrongfully arrested, seized and taken into custody and imprisoned by a body of armed citizens of the said city and county, who were members of a certain very large and formidable body of armed men of the said city and county, unlawfully organized and banded together, commonly known and styled the Committee of Vigilance of San Francisco. And this deponent says, that he was kept so imprisoned by said Committee until on or about the fifth of July, 1856, on which day one Thos. J. L. Smiley, a member of the Executive Committee of said Committee of Vigilance, came to the cell in which this deponent was then and there imprisoned as aforesaid, and informed this deponent, in substance, that he held in his hands a sentence passed upon him by said Committee, which he read to him, setting forth, among other things, that he was that day to be forcibly taken from said cell and placed on board a steamship and transported from this State, and ordered never to return, under a threatened penalty therein stated of death; and this defendant further says, that he was handcuffed by the said Committee, in pursuance of said sentence, and sent on said steamship out of this State to Panama. And this deponent says, that said Committee of Vigilance was composed of a very large number of citizens of said city and county of San Francisco, of all classes and grades of its citizens, and numbering upon its organized muster roll, as this defendant is informed, and verily believes to be true, about six thous- and of the people of the said county, and nearly all of whon^were and now are residents of said county, and are competent jurymen, and liable to serve as such. And this defendant further says, that he is informed, and verily believes it to be true, and therefore charges the fact so to be, that the presiding Judge of this Court was a prominent and active member of said Committee; and this defendant further says, that for a long time the power and authority and influence of the said Committee in said county was supreme, paramount and controlling, and their said authority and acts were approved by the great majority of the inhabitants of said county, who were not enrolled members of said Committee, and by whom the said Committee were encouraged and sustained by moral and moneyed influence and sympathy. This defendant further says, that by reason of his said arrest, imprisonment and banishment, as aforesaid, he became, and was, and is now generally known, and unjustly and wrongfully considered a person of very bad repute, and guilty of high crimes and. misdemeanors, and this defendant hence became, and was, and is now, the object against whom a great bias and prejudice has arisen in the opinions and minds of a great majority of the people of the said city and county: and that, in consequence of the said foregoing facts and circumstances, this deponent states, alleges and avers that he cannot have a fair and impartial trial before the said Court and any jury to be lawfully selected and impanneled within the said county upon the said indictment now pending against him. And this defendant further says, that a fair and impartial trial of this defendant cannot be had in the city and county of San Francisco, where the said indictment is pending against him, and this defendant respectfully asks of this honorable Court that an order may herein be made for the removal of this said action to the Court of Sessions of the county of San Mateo, or to some other county which is free from the objections hereinbefore set forth.</p> <p>His</p> <p>“Lewis X Mahoney. mark.</p> <p>“ Sworn,” etc.</p> <p>Ho counter affidavits were offered. The Court overruled the motion until an effort was made to impannel a jury, with leave to defendant to renew it, if it should then appear that an impartial jury could not be obtained, and fixed the trial for January 31st. On that day, the impanneling of a jury was proceeded with, and seven jurors were accepted and sworn—six others having been challenged by defendants for actual bias, and the challenge found “ true.” During the examination of the jurors, defendant renewed his motion for change of venue, and also again when the panel was exhausted. Overruled, and exceptions taken. The trial was then adjourned to next day, when twelve additional jurors being summoned, defendant again made his motion for a change of venue, on the grounds named in the affidavit above, and that an impartial jury could not be obtained. Overruled and exceptions. During the impanneling of the jury on the second day, one Dundass, on challenge for implied bias, said:</p> <p>“ I have resided in San Francisco since 1851; recollect reading in the newspapers about the defendant, and his being sent away by the Vigilance Committee; recollect hearing about defendant as a bad man, in connection with the Vigilance Committee of 1856; I have impressions upon my mind, derived from the newspapers and from hearing about defendant; it might require evidence to remove these impressions; these impressions are that defendant is a bad man; unless there was some evidence to remove them, I suppose these impressions would remain; I don’t think these impressions would make any difference; I have now an impression that he must have been a bad man, or he would not have been sent off; I- should think him more likely to be guilty of a crime than a man against whom I Had not heard these things; I am not conscious of any prejudice against the defendant, or any bias which would prevent me from giving him a fair trial; I should endeavor to be governed by the evidence.”</p> <p>The Court found the challenge not true, and the juror was ordered to be sworn, defendant excepting, and subsequently challenging the juror peremptorily—a challenge for actual bias having been tried and found not true. The whole number of jurors examined was thirty-one.</p> <p>The Court charged the jury as follows:</p> <p>“The defendant, on trial is charged in the indictment with the crime of grand larceny, said to have been committed in this city and county in December last, the character of which charge is stated in the indictment which has been read in your hearing by the clerk.</p> <p>“ Our statute declares that ' every person who shall feloniously steal, take and carry away, lead or drive away the personal goods or property of another of the value of fifty dollars or more, shall be deemed guilty of grand larceny.’</p> <p>“ The stealing, taking and carrying away, leading or driving away, to constitute a larceny, must have been with a felonious intent, and such intent is presumed to éxist when the act is without color of right or excuse.</p> <p>“ The possession of stolen goods soon after they are stolen unexplained, raises a presumption that the possessor is the thief, and is a fact from which a jury may find him guilty if charged with the larceny.</p> <p>“ The possession may be explained, but the explanation should be truthful, and when any is offered, the jury will determine as to the credit which it should receive.</p> <p>You will determine whether the testimony shows to the exclusion of reasonable doubt that the property named in the indictment was stolen in this city and county at or about the time charged in the indictment, and was the property of Michael Hayes, and if' so, whether it was stolen by defendant.</p> <p>If you find these facts so shown, and further find that the property was of the value of fifty dollars or more, you should find the defendant guilty; but if all these facts are not so shown, you should acquit him.”</p> <p>Verdict of guilty; judgment accordingly; defendant appeals.</p>

<p>Williams and Blake indicted for murder of Blanchard, and Williams on trial. Testimony for prosecution mostly circumstantial, aside from testimony of Blake, who said, among other things: “I went out with Williams the night of the death of Blanchard, and I know about the killing of Blanchard. I was with Williams the night when the murder was committed; it was a pick handle the murder was committed with. We started from Williams’ house. We went across Williams’ pasture, near the blacksmith shop, down across the field to Mahon’s fence, and waited there awhile till he, Blanchard, came up, when Williams jumped out from the fence and struck him three or four times. Williams then stepped back from the body. We stopped in the ditch for a half or three-quarters of an hour. The first fence we stopped by was a board fence. These are the boots; have worn them since June. Williams liad on a pair of boots with brands in them; these look like the boots; the boots Williams had on he put in the well the next day, as he told me Williams asked me three or four times to go with him and I refused him, and finally consented. He said he wanted to go and thrash Blanchard. I believe the cause was about property. _ At the time of starting I did not know he intended to kill Blanchard. The pick handle had been in the cellar since I lived at Williams’. ” After this testimony, witness was asked by defense on cross-examination—“ Did you see old man Blanchard at Buckner’s in presence of Putney and Marion Samples a few days before he was killed ?” Answer: “ Yes.” He was then asked: “ Did you not then and there state that you intended to kill Blanchard 1 ” Objected to as improper on cross-examination and as irrelevant, and ruled out: Held, that the question was proper; that the testimony was admissible as tending to show a contradiction in the witness’ statement in this; that he represented he had gone at the instance and by the mere persuasion of Williams, and this proof of hostility and threats to kill the deceased tended to show a motive personal to himself, and a purpose of his own volition to perpetrate the murder.</p> <p>Held, further, that the proof of threats by Blake to kill, followed by an actual homicide, was some evidence that Blake himself did the deed, and therefore contradictory of 1ns statement that Williams did it; or at least that the witness assisted actively in it, in which event the jury would probably regard his testimony more unfavorably than if he were merely passive, and were present ' by the persuasion of Williams, not expecting a homicide, but only an assault, and not meaning to aid in a murder.</p> <p>On the cross-examination of a witness situated as this one was, the utmost latitude justified by law in any case should be permitted.</p> <p>There being no direct proof that the killing was committed within Sacramento county where defendant was indicted, but simply the testimony of the Coroner of said county, who held the inquest, that the body was found, in “ San Joaquin township, about fourteen miles from the city of Sacramento; ” defendant raised the point that the venue was not proved, and that the Court will indulge in no presumptions upon this subject. The Supreme Court intimate an opinion against defendant’s, position, but decline passing on the point.</p> <p>In eriihinal cases Courts have no power to affirm a judgment merely becanse the Judges think that upon the merits the judgment is right. If there be error in the proceedings, it is presumed to be injurious to the prisoner, and generally he is entitled to a reversal—having a constitutional right to stand upon strict law.</p> <p>Suggested, that whenever the evidence offered by the defense in a criminal case is not plainly inadmissible, it is better to admit it rather than run the risk of a reversal of the judgment for error in excluding it, w. en probably it would not, if admitted, affect the case in the minds of the jui y</p>

Plaintiff is the holder of five warrants, each dated Aug. 12th, 1853, drawn by the Auditor of Sacramento county on the Treasurer thereof, “ payable from funds set apart for payment of county officers,” numbered respectively 121,123,124,125,126, each for five hundred dollars, except the last, which is for three hundred and thirty-eight dollars, and registered and indorsed on the day of date as “ not paid for want of funds.” It was admitted that no offer had ever been made to…

Ejectment for a lot in the city of Sacramento tried by the Court without a jury. The facts are stated in the opinion of the Court. Plaintiff appeals.

Action to recover personal property. Verdict and judgment for plaintiff. Defendant prepared a statement on motion for new trial, and plaintiff moved to dismiss said statement on the ground that it was “insufficient, and not a lawful statement.” Motion denied ; and defendant permitted to add the grounds of his motion for new trial.

<p>Richardson v. White, infra, that the only way to charge a purchaser of property, pending a suit, with constructive notice of the suit, is by filing a notice of lis pendens according to the statute, affirmed.</p>

<p>The granting and continuing of injunctions in cases of alleged trespasses on land claimed by plaintiff, where the injury is likely to be irreparable, are to some extent matters of discretion, and this discretion should always be exercised in favor of the party most liable to be injured.</p> <p>In this case, it was held that the temporary injunction granted on filing the complaint should not have been dissolved.before the hearing; that on the facts stated in the complaint an action for damages would be fruitless; that although the complaint does not aver absolute insolvency of defendants, still enough is averred to satisfy the Court that a judgment for damages would be worthless, and hence the injunction ought to have been continued.</p> <p>An allegation in the complaint that plaintiff was in possession of the land as owner when defendant entered, is a sufficient statement of title in suit for injunction to restrain trespass'.</p>

After the remittitur from the Supreme Court in the case of Horn v. The Volcano Water Company, reported in. 18 Cal. 62, the District Court made a decree foreclosing the mortgage of Horn; directing the sale of the company’s water ditch, etc., and application of the proceeds, first, to the payment, pro rgia, of said mortgage, and of a mortgage executed to Thompson and assigned to one Barney ; and second, to the payment of the interveners in that suit.

<p>A nonresident alien can acquire title to real property in this State, by purchase, or other.act of the party, though not by descent or other operation of law; and may hold such property until office found—that is, until an official determination of the matter by the Government upon inquisition had for that purpose.</p> <p>Until office found, such nonresident alien can maintain ejectment. Until then no individual can question his rights or title, on the ground of alienage or non-residence, either collaterally in ejectment, or directly in'any other way.</p> <p>By the common law, aliens could not acquire real property by descent or other operation of law; and our Constitution, Art. I, Sec. 17, only removes this disability from those who are bona fide residents within the State.</p> <p>Siemssen v. Bofer, (6 Cal. 250) commented on and explained,</p> <p>Where H. and others enter into possession of land under an agreement with M. that he will pay for their improvements provided it be afterwards established that the premises belonged to him, and subsequently, M. having received a patent, upon confirmation of his grant, brings ejectment: Held, that defendants cannot set up as a defense this agreement to pay for their improvements—their remedy being a direct action on the agreement.'</p>

Ejectment against thirty-three defendants for four fifty vara lots in the city of San Francisco, to wit: lots 1471, 1472, 1478, 1479. The complaint is in the usual form, describing the land as in a single tract two hundred and seventy-five feet square, charging that “ the defendants on, etc., wrongfully entered upon said premises and ousted plaintiff therefrom, and are now wrongfully in possession of said premises,” etc., praying for $5,000 damages.

The complaint avers that on the first of December, 1854, defendants, Atkinson, Rarilett and C. Homer, entered into a copartnership for carrying on the business of architects, contractors and builders in San Francisco, setting out in full the articles of copartnership, among which was one that “ the said copartnership arrangement is to be strictly private and known only to the parties hereto,' and the public are to be in no manner apprised of the same.” The other articles…

Seventh District. The following were the proceedings in this case: The Application of Jeremy F. Gilmer, Captain of Engineers in-the Army of the United States of America, and Special Agent of the said United States, for the Condemnation of Lime Point, for Fortification Purposes.

<p>The liability of owners of property in San Francisco for assessments made by the city authorities for repairing streets, depends on the statute, and only inures after the steps required by the statute have been taken.</p> <p>Under the Consolidation Act of 1856 for San Francisco, and the Act of 1859 amendatory thereof, the Board of Supervisors have no power to order a contract for planking, paving, piling or repaving a street which has been once paved, piled, etc., except in the instance given in section fifty-three as amended by section ten of the Act of 1859.</p> <p>In other cases not within this exception, where the planking or paving of a street or sidewalk needs local repairs, the Supervisors cannot authorize a contract to be made by the Superintendent of Streets for such repairs; but the proceeding must be by notice to the owner, etc., of the property, according to section fifty-six as amended by section twelve of the Act of 1859.</p>

The facts are sufficiently stated in the opinion of the Court. Defendant filed a general demurrer, which the Court below sustained and gave final judgment in his favor. Plaintiffs appeal.

Up to a certain point, the facts may be* found in Reynolds v. Harris, 14 Cal. 667, and Raun v. Reynolds, 15 Cal. 459.

The following are copies of the will of Theodore Payne, the letter accompanying the will addressed to his wife, and the codicil to the will#»which are mentioned in the opinion of the Court: [copy of the will.] “ In the name of God, amen.

Bill to enjoin defendant, as Tax Collector, from selling plaintiff’s property for taxes.

<p>Defendant executed a note to the order of his brother E. M. A., to be used by him for defendant’s benefit in the purchase of goods, and E., the payee, deposited the note -with plaintiffs as collateral security for his own debt, and afterwards paid this debt, or rather novated it, and substituted other security, but failed to take possession of the note: Held, that plaintiffs have no right to the note or its proceeds, because it was by this process redeemed from, the pledge to plaintiffs, and E. had then a right to its possession, and would hold it as agent for defendant; and that this would be true whether the guaranty— “Waiving demand and notice, I hereby guarantee the payment of the within note, value received. Boston, Jan. 29th, 1857. Enoch M. Avery,” endorsed on the note, vested the legal title in plaintiffs or not, or whether the note were overdue or not at the date of such endorsement.</p> <p>Enoch M. Avery is a competent witness for defendant, as the effect of his testimony is to make himself liable on his guaranty, thus rendering his interest adverse to defendant.</p>

Complaint, in the ordinary form for professional services as attorney at law. The complaint was not verified, and the answer was a general denial. On 4he trial, plaintiff read the pleadings and rested. The Court instructed the jury to find for defendant. Verdict and judgment accordingly. Plaintiff appeals.

Action for damages for the seizure and conversion of oil, tallow, camphene fixtures, and various implements connected with an establishment for the manufacture of camphene in the city of San Francisco.

Suit on the official bond of defendant, Jones, as County Treasurer of San Joaquin, for $2,966.78 retained by him as salary during his term of office, out of the county funds. At the general election of Sept. 2d, 1857, Jones was elected County Treasurer for the term of two years, commencing on the first Monday of October, 1857.

The complaint, verified, avers, in substance, that Feb. 17th, 1859, defendants, as the firm of Wortell & McDonald, being indebted to Sloss & Co. eight hundred and twenty-eight dollars and sixteen cents, upon a balance of account for goods, wares and merchandise sold and delivered by said firm of Sloss & Co. to said defendants, and which sum they promised to pay, etc., Sloss & Co. assigned said account and indebtedness to plaintiff; that in consideration of said indebtedness,…

<p>Appeal from the Fourth District.</p> <p>Action of deceit. The gist of the complaint is: that, in J une, 1852, plaintiffs, who are and then were husband and wife, were residing upon a lot in San Francisco as tenants of defendant; that they had but recently arrived in California, had never owned any real estate and were entirely 'ignorant of titles and of the manner of their acquisition; that defendant urged plaintiffs to purchase the lot, stating that the title was perfect and the lot free of incumbrances, and that, accordingly, relying on the representations of defendant, who was a physician in high repute for skill and integrity, they purchased said lot, paying defendant $3,000, a full price therefor, and receiving a deed from the wife of defendant, he assuring them that the lot was her separate property, and that such deed passed a perfect title to the lot; that all these representations, etc., were false, fraudulent, and done with intent to deceive and injure plaintiffs; that defendant well knew said lot was common property, and that no title could pass except by conveyance from him; that plaintiffs, after the purchase, expended about $5,000 in improvements, converting the small house on the lot into a hotel capable of accommodating thirty boarders ;' that in the fall of 1855 they were conducting said hotel successfully, and were also in a most prosperous way carrying on the business of grading streets and grading and filling up lots, employing in said business daily about thirty horses and carts, eighteen of which belonged to plaintiffs; that, to extend their business, they wished to borrow $5,000 on said house and lot, and that parties were ready to loan the money if the title proved good, but that on examination plaintiffs for the first time learned that the deed of defendant’s wife was worthless—the money could not be obtained, and their business of hotel keeping and grading streets, etc., was destroyed, and their entire property lost; that after they discovered the worthlessness of their deed, they demanded of defendant that he execute a deed himself, stating to him the certain ruin to them if they could not borrow money on the lot; that he promised from time to time to make the deed, putting plaintiffs off now for one flimsy reason and then another; that finally he persuaded them to bring suit against him and wife to compel a deed, promising to make no defense, assigning as his motive some “ mysterious marital relations,” etc.; and that they brought such suit, which he obstinately contested, denying that the $3,000 was paid by plaintiff’s wife, and that defendant and his wife had ever made plaintiffs any valid deed for the lot, and at last defeating the suit; that subsequently plaintiffs filed a bill in equity against defendant and wife to compel a deed, that this suit was also severely contested, but resulted in a decree ordering defendant to execute a deed to plaintiffs; that in consequence of these suits plaintiffs were put to great expense, and that, pending the first one, the lot was sold at Sheriff’s sale, and purchased by one Ashbury, by an agreement with whom, plaintiffs have now the right to redeem the premises; and that defendant and wife, further to oppress plaintifis and cloud their title, have brought ejectment for the lot against Ashbury, and others holding under him, which suit is now pending. The complaint contains the usual averments as to the fraud and deceit practiced by defendant in relation to all the matters connected with the sale of the lot and the suits, and asks damages in $10,000.</p> <p>Defendant demurred for misjoinder of plaintiffs, and also moved to strike out a considerable portion of the complaint, not material to be noticed. Demurrer sustained, and, plaintiffs not amending within the time allowed, final judgment for defendant. Plaintiffs appeal. "</p>

<p>Appeal from the Court of Sessions of Solano.</p> <p>Indictment for larceny, charging that the defendant didunlawfully and feloniously steal, taire and lead away, one light bay gelding horse,” etc. On the trial, the prosecution proved, among other things that defendant came to the livery stable of one Owen, at Suisun City, and hired a horse and saddle to go to Vacaville, promising to be back by nine o’clock in the evening of the sainó day, and that he never did return. The Court charged the jury if they believed from the evidence that defendant took and carried away and converted the horse and saddle to his own use, with intent to steal the same, they should find him guilty as charged; and refused to charge, as requested by defendant, that “ to find defendant guilty, the jury must be convinced that the defendant did steal the horse and saddle named in the indictment, and there must have beén a felonious taking and carrying "away thereof.” The District Attorney read tó the jury and relied upon, the seventy-first section of the act concerning Crimes and Punishments, (Wood’s Dig. 339) relative to a bailee of goods.</p> <p>Verdict, guilty. Judgment accordingly. Defendant appéals.</p>

Suit upon the undertaking set out in the opinion of the Court, given under secs. 136 and 137 of the Practice Act.

<p>Appeal from the Fourteenth District.</p> <p>Bill in equity to restrain Irwin, Sheriff, from selling real property on execution in favor of defendant Nesbit and against H. H. Purdy and Green, on the grounds that plaintiff is the owner of the property levied on, and that a sale of it on execution would cloud the title. Plaintiff derives his title by deed from Green and Purdy, the defendants in execution. On filing the complaint, a temporary •injunction was ordered, staying the Sheriff’s sale pending the suit.</p> <p>The Court found that this deed was a mortgage given to secure a debt of six hundred dollars due from Green and Purdy to plaintiff, and that the right of redemption existed in Green and Purdy at the time of the levy sought to be restrained, and made a decree as follows, to wit: “ It is ordered and adjudged that the prayer of said complaint bfe granted so far as to restrain and enjoin the sale of said water property under said execution of said defendant Nesbit, except as subject to the prior and equitable lien of Solomon Purdy thereupon for the sum of six hundred dollars principal, together with interest at the rate of ten per cent, per annum from the first day of April, 1857; and the costs of this suit will be awarded against the defendant.” Defendants appeal.</p>

<p>In this State a railroad company is responsible for damages done cattle by running over them on the track, if the accident could have been avoided by ordinary care and prudence on the part of the company; and this, though the owner of the cattle permits them to run at large near the line of the railroad.</p> <p>But if in such case the agents of the company could not, by ordinary care and prudence, prevent the accident, then the company is not responsible.</p> <p>There is no statute in this State requiring railroad corporations to fence in their track.</p> <p>The rule, held in some authorities, that where the act of injury has been caused by the negligence of the party injured, he has no redress, commented on and qualified.</p> <p>Held, that the negligence which disables a plaintiff from recovering must be a negligence which directly or by natural consequence conduces to the injury. Whether due diligence and care, or negligence exist in a particular case, is a fact for the jury.</p>

Ejectment for a tract of land in San Mateo county. The complaint avers, among other things, that plaintiff is “ owner in fee simple and lawfully entitled to the possession of the real estate,” &c.—describing it—and that said land “ is part of a large tract of land known as the ‘ Cañada de Raimundo,’ ” which was the name given in the Mexican grant to Coppinger of the land therein granted to him. There is no averment of claim under any particular deed or grant.

<p>The eleventh section of the Act of March 20th, 1860, to fund the debt of Sonoma county reads as follows : “ If in the exchange of warrants for bonds, in accordance with this act, it shall happen that any person shall have a fractional sum less than the amount of bonds authorized to bb issued by this act, the County Treasurer shall issue to the holder thereof a certificate for such fractional sum; and upon presentation of the same to the County Auditor he shall draw a warrant on the County Treasurer for the amount so certified.” The act makes no provision for payment of warrants drawn under this section : Held, that such warrants are to be paid in accordance with the provisions of the General Act of 1850, concerning the office of County Treasurer.</p>

<p>Appeal from the ¡Ninth District.</p> <p>The facts appear in the opinion, and in 13 Cal. 54.</p>

On the twenty-second of November, 1859, Bosworth & Co., of San Francisco, brought suit in that city against L. Ludekins, L. Yesaria and Samuel Youngs, as partners, under the style of Yesaria & Co., to recover five hundred and ninety-eight dollars, for goods sold and delivered, and caused an attachment to be issued to the Sheriff of Amador county.

The claim—interest not being asked—was presented to the administrator of Birch on the third of November, 1858, and rejected, and this suit brought the thirty-first of December following. The complaint averred the animals to have been sold to Birch, some in June, 1857, and others in October of that year. The Court below . instructed the jury that they might give legal interest from the dates of the sales. Verdict and judgment accordingly for plaintiff.

Intervention.of a judgment creditor to set aside an attachment against the common debtor on the ground that suit was prematurely brought, and that hence the attachment is void as to the intervenors. One Eppinger, on the fifth day of July, 1860, executed and delivered to the Respondent Davis, his promissory note for five hundred and fifty-nine dollars and sixty cents, payable one day after date without grace.

<p>Possession of stolen property is not alone sufficient to convict of larceny. Though such possession is a circumstance to be considered in determining the guilt of the possessor, still, in order to convict him, the prosecutor must add other circumstances indicative of guilt; and such other circumstances must be such as are naturally calculated to awaken suspicion against the party charged, and to corroborate the inference of guilty possession.</p>

<p>A petition for mandamus, to compel the President of the Board of Supervisors of the City and County of Sacramento to draw his warrant on the Treasurer for audited claims against the city school fund, must, under the sixty-seventh section of the Consolidation Act of 1858, (Stat. 287) aver that there is money in the treasury applicable to such claims. The President has no power to draw the warrant unless the money is in the treasury.</p>

Suit upon a promissory note for $10,400, executed by defendants to the order of plaintiff; the complaint, not verified, but setting out the note. The motion to strike out having been sustained, judgment was rendered for ¡plaintiff. Other facts are stated by the Court. Defendants appeal.

Under an execution issued on a judgment in favor of one Williams, and against Beckman & Schwegerle, defendant Manlove, as Sheriff, levied on and sold two horses and a wagon belonging to Beckman, who claimed the property to be necessary for his use as a farmer, and, therefore, exempt from execution.

The plaintiff demurred to the answer on the ground that it did not constitute a defense. Demurrer sustained, and, defendants declining to amend, final judgment entered for plaintiff. Defendants appeal.

<p>Appeal from the Fifth District.</p> <p>For facts see opinion. Plaintiff had judgment for the amount of the note. Defendants appeal.</p>

Foreclosure suit on a note and mortgage given by defendant to Foote & Aldrich for professional services as attorneys in the Deck Estate, and by them assigned to plaintiff. The note was as follows: “ 14,000. San Francisco, December 26th, 1856. “ For value received, I promise to pay to H. S. Foote and L. Aldrich, or their order, four thousand dollars, to be paid only in the event of the recovery by me of the estate of August Deck, deceased, of which I am now claimant.

In 1857, Warner & Shoufeld brought suit in a Justice’s Court against Randall & Inos—the claim filed as the basis of the suit being in this form: “ Randall & Inos To Warren & Shoufeld, Dr. To balance on account..............-..........§89.32.” The summons was served on Randall only. On the day of trial, plaintiffs being present and defendants not appearing, the Justice makes, this entry: “ Plaintiffs demand judgment against defendants for debt and costs.

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

Suit for delinquent taxes in Contra Costa, under the Act of April 8th, 1861.

Suit to recover back money paid by plaintiffs as agents of ocean steamers plying between San Francisco and Panama and other foreign ports.

There is no need of any statement of facts, further than that the averments of the complaint are similar to those in the preceding… Held: for the purposes of this act, to be a.-passenger broker, and shall be previously licensed 'as such, -in 'the manner and mode as hereinafter provided.” By subsequent sections the license is,, fixed at one per cent, on the gross monthly sales' from a broker’s business, and a penalty is affixed for neglecting to take out the license.

<p>The failure of either party to appear on the trial of a civil case operates as a consent on his part that the issue be tried by the Court without a jury. But such failure to appear does not authorize the trial to be had by a jury of less than twelve persons.</p> <p>A less number than twelve persons does not constitute a legal jury, without the consent of the adverse party; and such consent must be express, and entered at the time in the minutes of the Court, and cannot be inferred.from the mere • absence of the party.</p> <p>Plaintiff sued for four hundred and sixty dollars for goods sold -and, delivered. Defendants plead an offset, and had verdict and judgment for two hundred dollars, with forty-four dollars costs. Plaintiff appeals : Held, that the Supreme Court has jurisdiction; that the “amount in dispute,” within section four, article six of the Constitution, is not determined, where plaintiff is appellant, by the amount of the offset pleaded by defendants or found by a jury.; that in such case the amount claimed by the complaint, the action being for a ' debt or damages only, is to be considered in determining whether this Court : has appellate jurisdiction in the case. ’</p>

<p>The warden of the county jail, appointed by ordinance, in pursuance of the fifty-third section of the Consolidation Act of the city and county of Sacramento, (Stat. 1858, 284) is not bound to pay into the treasury of said city and county moneys received by him from the authorities of Yolo county for keeping prisoners from that county. Such money is received by the warden in his own right. In taking charge of prisoners from Yolo, he acts as an officer of that county, and he alone is responsible to it.</p>

, This action was brought to recover, the amount of certain reward^ offered by the defendant, for the arrest and delivery to the. authorT ities of Amador county of certain persons charged with the prime of murder. The persons alleged to . have earned and become, entitled to the rewards were the plaintiff Isaac Treadway, and Jesse Ó. Goodwin. Goodwin assigned his interest in the contract to the plaintiff Rochester.

Action against a Sheriff for $2,072 damages for that much money alleged to have been wrongfully seized by him on an illegal assessment for taxes. The complaint was verified; and the defendant not having answered, plaintiff, when the cause was called'for trial, moved that the default of defendant be entered, and' that plaintiff have judgment according to the prayer of the complaint. Motion ■ denied, plaintiff excepting, and then introducing certain evidence.

' Ejectment for part of the Rancho Posolmi in Santa Clara. Plaintiff relied on a grant by Micheltorena, Mexican Governor, to Yñigo in 1844, with final confirmation by metes and bounds to plaintiff’s testator, Robert Walkinshaw. On the trial, plaintiff offered in evidence a copy of the grant and expediente from the United States Surveyor General’s office, defendant excepting, on various grounds not essential to be noticed.

<p>Air answer filed without leave of Court after the time for answering has expired, but before default has been entered, is not a nullity; but at most an irregularity.</p> <p>The Court in its discretion may strike out an answer so filed, or retain it, or permit another to be filed; but plaintiff cannot, as of right, have such answer struck out. Eor these purposes, defendant is not in default until his default has been actually entered in accordance with the statute.</p>

The instrument signed by Hartnell, ratifying what Smith had done and guaranteeing the payment of the $5,000 to Pico, is as follows: “ I, the undersigned, Miguel Smith, say, that having purchased from Don Abel Stearns the amount of two hundred cows, at the price of twenty-five dollars each, the value of which amount to $5,000, with the condition of my having the privilege of making payment in the term of two years reserved (?) from this date,- with interest at two per cent,…

<p>Where, after conviction of defendant for murder, his counsel refused to prepare a statement or bill of exceptions, without payment of a fee, and defendant, after the statutory time for preparing such statement, presented a statement to the District Judge to be settled and signed, alleging, as his excuse for not preparing it within the time fixed by the statute, his inability to pay the counsel fee demanded, and the Judge refused to settle and sign the statement because the statutory time had elapsed: Held, that the District Judge ought always to relieve parties situated as the defendant is from any omission of counsel in the preparation of papers for the Appellate Court, where no fault is imputable to them, and application for relief is made immediately after discovery of the neglect or omission; but that in all such cases it must appear that there are reasonable grounds for the appeal taken, and that it is not intended merely for delay.</p> <p>Held further, in this case—application for mandamus to compel the District Judge to settle and sign the statement—that as the papers presented on the application do not contain a copy of the statement proposed, without an inspection of which this Court cannot determine whether any errors in the action of the Court below are alleged, which are entitled to consideration, and as the papers do no.t show that application was made to the Judge below for time to prepare the statement immediately after the refusal of counsel to act, mandamus must be denied.</p>

<p>Where the admissions in an answer negative its general denials, the latter may he disregarded and judgment asked upon the former, where the complaint is verified, and the answer consists of such admissions-and denials.</p> <p>A patent from the United States upon the confirmation of a Mexican grant carries with it the ownership of the minerals in the land patented; and in ejectment for such land defendant cannot set up, as against the United States, or as against parties claiming from the United States—the paramount proprietor— a title resting upon mining rules and regulations.</p> <p>The Act of March, 1856, “For the Protection of actual Settlers and to Quiet Land Titles in this State,” was passed for the benefit of those who are desirous of building up homes in the country, and for that purpose are seeking, in good faith, lands for settlement and occupation; and hence, the eleventh section of the act does not apply to miners engaged simply in extracting gold from a quartz vein. They are not “ settled upon ” their vein in the sense of the statute, and the two years limitation of that section cannot avail them.</p> <p>Where, to ejectment on a- patent to plaintiffs for land from the United States, defendants plead possession in themselves and the parties through whom they claim for five years before the commencement of the action, on the fourth of March, 1860, but admitted the issuance of the patent on the nineteenth of February, 1856: Held, that the plea is of no avail, because the admission shows plaintiffs were seized of the premises within the five years.</p>

Action by plaintiffs against the defendant, as Sheriff of Sacramento county, to recover six hundred and fifty dollars, collected by him on plaintiffs’ execution. In March, 1856, Muldrow and Fore recovered judgment in the Sixth District against Samuel Norris, for about six hundred dollars. On the sixth of September, 1858, for a valuable consideration, Muldrow sold and assigned this judgment to the plaintiffs Moore & Welty.

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

<p>Appeal from the Fifth District.</p> <p>Injunction to restrain defendants from entering within plaintiff’s enclosure and digging up and washing away fruit trees, etc., and for damages.</p> <p>Plaintiffs, some eight years since, took up a tract of about two hundred and twelve acres of land under the Possessory Act of this State, enclosed it and planted it with fruit trees. The complaint avers, in substance, that plaintiffs and those under whom they claim now are and from the year 1852 have been the owners and in possession of a certain tract of land about two hundred and forty feet long by one hundred and sixty feet wide ; that in 1857 they planted on said tract one hundred and sixteen apple and peach trees of two years’ growth, which are now fruit-bearing trees; that plaintiffs took up, enclosed and hold said land under the Possessory Act of this State for agricultural purposes; that there is on the land a frame house, the residence of one of tho plaintiffs, fifteen ornamental trees and a large quantity of shrubbery, which are permanent and valuable improvements; that defendants on the twenty-first of December, 1860, and at other times entered upon said premises and dug a ditch thereon for mining purposes, thus washing away and destroying the trees, and that they threaten to continue so to do; that these acts if continued will cause irreparable injury, etc.; that defendants are insolvent; that plaintiffs have already sued defendants for similar trespasses and obtained judgment. Prayer for perpetual injunction, and for damages.</p> <p>The answer denies insolvency, and then substantially sets up that plaintiffs bold as agriculturists only under the Possessory Act, and that defendants, being miners, have a right to enter for mining purposes -that they have paid the judgment against them for the value of trees heretofore destroyed, and have offered and are ready to pay the value of all trees destroyed, which they put at three dollars •per tree.</p> <p>The case was tried before a jury. The evidence is not in the •record, but the agreed statement of facts is as follows, to wit :</p> <p>Plaintiffs some eight years since took up a possessory claim under the laws of this State, containing two hundred and twelve acres on the mineral lands, fenced and enclosed the same for the purposes of a fruit orchard, and planted the same with fruit trees.</p> <p>Defendants, being miners, about four years since took up a mining claim inside this enclosure, consisting of a piece of ground about two hundred feet long by one hundred and thirty feet wide, containing about one hundred and thirteen of these fruit trees, most of them bearing fruit, which was sold by plaintiffs. Defendants having destroyed some of these trees in their mining operations, plaintiffs began suit against them, obtained a temporary injunction, and subsequently a judgment for the sum of forty-two dollars, as the value of the trees destroyed. The Court refused to make the injunction perpetual. In pursuing their mining operations defendants again dug up and destroyed several other trees growing on the same piece of ground, having previously tendered to plaintiffs the value of the trees they were about to destroy, which tender plaintiffs declined to accept, and the money was deposited in Court. Plaintiffs again brought suit and obtained another temporary injunction. The verdict on trial was—“ We, the jury, award the plaintiffs forty-two dollars damages.” Judgment accordingly. Plaintiffs then moved the Court on the pleadings, the foregoing facts and judgment, to make the injunction perpetual against digging up the trees. Motion denied, and an order made refusing to continue the injunction. From which refusal and order plaintiffs appeal.</p>

Action by the wife against her husband for divorce on the ground of extreme cruelty, and for custody of their minor children. Demurrer, on the ground that two causes of action are improperly united. Overruled. Answer denying all the allegations of the complaint. Cause tried by the Court without a jury by consent; several witnesses examined and case argued and submitted.

Action for damages for destroying portions of plaintiff’s dam and for perpetual injunction against future trespasses. Plaintiff located a flour mill on Wood’s creek in 1854, and had a dam across the creek, above the mill, so as to turn the waters of the creek into a ditch or race dug by him and those under whom he claimed, and leading to and running the mill.

The contract to which the paper set out in the opinion of the Court refers, was an executory contract, entered into between Spring, of the first part, and Beard and Winton, of the second part, dated Sept. 3d, 1857, by which the former agrees to sell to the latter certain land for $25;000, payable $4,000 cash, and $10,500 on the fifth of October, 1858, with interest; on the payment of which latter sum Spring was to execute and deliver a deed of the land, taking a mortgage for…

The suit was brought to-reeover possession of a lot of land in the city of San Francisco, against Grustavus Kreyenhagen, who claimed as owner, Rich, his lessee, and Luhden & Broderick, the subtenants of Rich, and in actual possession. The summons was served on the occupants, Luhden & Broderick, only.

Ejectment. The complaint, filed in June, 1861, alleges that plaintiff is sole, heir of one Updegraff, who died in 1858 seized of certain mining claims; that there are no outstanding debts against •the estate, and therefore that there is no necessity for-any administrator ; and that defendant has wrongfully entered, etc. Defendant filed a general demurrer. Overruled, and final judgment for plaintiff. Defendant appeals.

The suit was commenced April 2d, 1860, upon a note of the defendant to order of plaintiffs for §10,000, with interest at two per cent, per month, dated May 31st, 1858, payable two years from date. Further facts appear in the opinion of the Court. Defendants appeal.

Suit by plaintiff for nine hundred and eighty-five dollars, for services as ditch agent for defendants. The complaint, verified, contains one count for services rendered during ten months from October, 1859, at one hundred and twenty-five dollars per month; and another count upon an account stated for services as such agent.

This was an action brought by thé City and County of San Francisco to foreclose a mortgage given to secure a promissory note in the words and figures following: “ $20,000.

Defendants demurred to the complaint, on the ground, among others, that it did not state facts sufficient to constitute a cause of action. Overruled, and answer filed. When the cause was called for trial, plaintiff objected verbally that the verification to the answer was insufficient, and so the Court decided; and the plaintiff submitted the case, and moved for judgment on the pleadings.

‘Appeal from the Thirteenth District. The indorsement on the note secured by the first mortgage was as follows: “ For value received, I hereby renew, revive and agree to pay the within note and debt. “ May 11th, 1861. [Signed] Merritt Goodman, B. F. Morris.” The defendants made no defense. The other material facts appear in the opinion of the Court. Plaintiff appeals.

Ejectment for a lot in the county of San Francisco. Ihe complaint is in the ordinary .form. The defendants plead the general issue and set up title in Kilian. In 1853, defendant Kilian claimed to be the owner in fee simple and had the possession of the lot in controversy, and then sold it by deed of conveyance to John A. May.

It was shown on the trial that at the time of the sale and delivery of the ale by Broadhurst & Co., and for some time anterior thereto Broadhurst & Co., or rather Broadhurst, doing business under that style, was a jobber in Front street, in San Francisco, having a stock of goods in his store among which were casks of ale; and that the defendant had been in the habit of buying from him from time to time, and paying him therefor; that on the second of May, 1859, Broadhurst…

Forcible entry and detainer for one hundred and sixty acres of land, averred in the complaint in the Justice’s Court to have been taken up and improved under the Possessory Act of 1852. The suit was against M. Hand, S. Hand, Guard and E. Reeves. M. Hand and Reeves in their answers disclaim title or possession of a portion of the land in controversy, but claim the balance, and deny any illegal entry. The other defendants disclaim all interest or possession.

The case does not justify further statement of facts than appears in the syllabus. The demurrer below was that the complaint did not state facts sufficient. Overruled, and judgment for plaintiffs; defendants appeal.

<p>Letters of administration upon an estate, granted by the Probate Court of one' county, cannot be collaterally attacked by showing that the last place of residence of the deceased was not in that county, and therefore, that the Court had no jurisdiction.</p> <p>Under our statute, (Acts 1858, 95) the same presumptions as to jurisdiction'attach to the proceedings of Probate Courts, within the jurisdiction conferred on them hy law, as in the case of District Courts.</p> <p>Authorities on this subject cited and commented on.</p> <p>Beckett t. Sebver, (7 Cal. 215) upon this question, commented on.</p>

<p>Appeal from the Twelfth District.</p> <p>Ejectment for a lot in San Francisco on which the United States Marine Hospital stands. The complaint is in the usual form, averring title in fee simple on and since August 21st, 1860, and stating defendants’ entry on that day.</p> <p>The answer denies the allegations of the complaint, and sets up title in the United States prior' to and ever since the twenty-first of August, 1860, and avers defendants are merely agents and employes of the Government. Replication denying the matter set up in the answer.</p> <p>Plaintiffs claim, so far as possession goes, under one White, who in October, 1849, settled upon a tract of land east of Beale street, in San Francisco and embracing the premises in dispute, built a house and lived there with his family until about the fall of 1851. Plaintiffs claimed on the trial, and introduced witnesses who testified, that White, in 1849, erected a fence running north along the easterly line of Beale street across Rincon Point, from shore to shore, and claimed all the land east of this fence; that his house was within these boundaries (and of this there was no dispute); that the various other persons living on the premises were tenants of White’s, etc. It was proven that White did, up to the fall of 1850, lease different portions of the tract to various persons. On the other hand, defendants introduced witnesses to show that there was no fence extending clear across, or even nearly across, the tract; that within the boundaries claimed by plaintiffs as possessed, by White, various persons were living in 1849 and 1850 who held adversely to him; that in 1850, United States officers, acting in behalf of the Government, tore down many of the houses and tents on the premises—White’s among them—and claimed the land to belong to the Government Reserves.</p> <p>White, in May, 1850, had a tract, embracing the premises and containing about twenty-five acres, surveyed, and then filed in the County Recorder’s office his claim to said tract under the preemption laws of the United States.</p> <p>On- the 10th of October, 1851, White conveyed the premises described in the preemption claim before named, by deed, to Hubbard, one of the plaintiffs, and Templeton; and they, on the 7th of January following, sold to Wilson, also plaintiff, a quarter interest.' Templeton, January ’7th, 1852, deeded his interest to Hubbard, and left. After White’s sale to Hubbard and Templeton, he gave up to them whatever possession he had.</p> <p>July 27th, 1860, Hubbard deeded to Wakeman one-third of the tract conveyed by White to Hubbard and Templeton, and Wake-man, on the twenty-third of August, 1860, conveyed the same by deed to Woodyard, who on the same day conveyed by deed of gift to Mary E. Wakeman, one of the plaintiffs.</p> <p>In December, 1852, the United States took possession of the lot on which the Marine Hospital now stands, and began the erection of the building, and have ever since held possession. ‘ At the time of so taking possession there were several persons, with their houses, on part of the lot, some of whom, of their own accord, yielded their possession, while the houses of others were removed by the contractor for the erection of the building; of the houses removed, some were on the spot where the building stands, and others adjoining. Some of the land so adjoining was leased of the contractor, as he could not otherwise get possession. The evidencé does not'show whether there was any privity between plaintiffs and the persons so removed.</p> <p>The proceedings of the city of San Francisco for the confirma-' tion of her claim to the pueblo lands were put in evidence.</p> <p>Defendants, among other matter, offered in evidence an Ordinance of the Common Council of said city, passed December 10th, 1852, directing the Mayor to convey to the United States all the right and interest of the city to six fifty-vara lots, which includes the premises in dispute. Plaintiffs objected on the ground of irrelevancy, and that the Common Council had no power to sell the lands of the city, except at public auction, and that at the time of the passage of the ordinance the title of the property, was vested in the Commissioners of the Sinking Fund. Overruled; plaintiffs excepting.</p> <p>Defendants then' offered in evidence a deed, dated December 11th, 1852, by the Mayor, in pursuance of the ordinance. Objected to, on the ground that the charter of the city gave no power to sell her lands, except at public auction. Overruled; plaintiffs excepting.</p> <p>Further statement of the evidence is unnecessary.</p> <p>The Court charged the jury, among other things, as follows :</p> <p>“ Plaintiffs claim by title, evidenced by the fact of prior possession in White, which they allege they have proved. The plaintiffs also gave in evidence „a paper signed by White, und'm whom they claim, recorded thirtieth May, 1850, in which White asserts that the lands were unoccupied, and were public lands within the corporate limits of the city of San Francisco, and that he claims them under and by virtue of the laws of the United States, and of this State. Prior possession and occupation of land is sufficient prima facie proof of title, when such possession has never been abandoned, to enable a plaintiff in ejectment to recover against a mere trespasser who had entered upon such possession without title. But that possession may be destroyed as evidence of title, by acts of the party or by his statements, showing that he claims that the land actually belongs to another and is not his own, if they are so plain and decisive as to rebut the presumption of title arising from the fact of prior possession.</p> <p>“ I instruct you, then, as matter of law for your guidance, that this declaration of White’s negatives, rebuts and destroys any presumption of title in him, which might and otherwise would have arisen from any actual prior possession and occupancy by White, and on this ground instruct you that the plaintiff has not only failed to prove title, assuming for the purposes of this part of the case that he had possession in fact, but has proved that he had not such title by possession as will enable him to recover in this action, and that you find for the defendants. At the same time, as this case is one of great importance,! and it may be well to obtain the decision'of the Supreme Court on as many of the points involved in it as possible, I have framed particular questions of fact on which you will pass, and give in a written finding.”</p> <p>The Court- then read the first question - to the jury, as follows:</p> <p>“ 1st. Was Thomas White, or were J. C. Hubbard and Horace Templeton, or either of these two last, and if but one, then which of them, in the actual possession of the lands in controversy in this suit prior to the possession taken by the United States at the time of making preparations to build the Marine Hospital ?</p> <p>“The actual possession’ named in. this question is an actual bona fide occupation and possession. The land must be subject to the will and control of the party and to his use—not necessary to be all used, but it must be subject to be used as required. It is not requisite that the whole land should be fenced around. A fence erected with or without bars, across a peninsula, forming one line, if you find it to have been built, with the water around the other parts of the land, forming a natural boundary, would be a sufficient designation and marking of the boundaries to evidence the extent of possession, provided the party had or took possession of the lands within these boundaries. The character of the acts or. improvements required to constitute such a reduction to the use and control of the party depends on the locality. It is not necessary that it should be all cultivated. If living on it, with this fence and the natural boundaries, in possession of part, and the rest not in prior occupation of others, this is good possession of the whole. Renting the land is evidence of the direct reduction to the use of the party, and the possession of a tenant under a written or verbal lease is the actual possession of the landlord of the land so rented.</p> <p>“ It is requisite that such possession should have been exclusive at some time—that is, that the land should not have been the subject of a scrambling contest between White and others acting adversely to him, and also claiming the land and exercising acts of ownership over it, or over such parts as each could from time to time reduce into his actual possession. In such case, only such parts of the land as. were actually reduced into first possession, out of the common mass of land, by fence, cultivation or building on, or other actual possession, occupation and subjection, or their uses would be deemed as in the possession of the party.</p> <p>“ I have said that the possession must be exclusive. It would be good possession, and exclusive, if the party was residing on and in exclusive possession by fence and the natural water boundary for any time, however short, claiming the whole, and' that possession would not be destroyed by other parties without title afterwards intruding upon and refusing to recognize his right or possession; such parties would be trespassers.</p> <p>“ If at the time White erected the fence across the peninsula— if you find that he did at any time so erect it—there were other parties living on the land or any part of it, and in the actual occupation of any part or parts of it, those persons would be, as to such part or parts so occupied by them, the prior possessors, and White could not, by building a- fence outside of them, deprive them of their rights and possession. At the same time, he (White) would then, if you find the fence as I have said, acquire possession of all not thus in the actual possession of others.”</p> <p>The Court then read to the jury the second question, as follows: “ Secondly—If you find White so to have been in possession, then did he ever at any time between so first being in possession and the tenth day of October, 1851, abandon the same ? If you find that Hubbard and Templeton ever were so in possession, did they between the tenth day of October, 1851, and the seventh day of January, 1852, abandon said land, or did Hubbard and M. D. Wilson between the seventh of January, 1852, and the twenty-seventh of July, 1860, abandon said land 'i If you find that any of them did so abandon, state the party or parties and the time when. Or did the plaintiffs, between the twenty-seventh of July, 1860, and the twenty-fifth of August, 1860, abandon the land.</p> <p>“ A party leaving the possession of land, with the intent not to return to or further claim it as his property, abandons the land.</p> <p>“ In deciding this question, you will consider the whole evidence in the case, and the acts and conduct of the parties bearing upon it. “ This abandonment may be proved by any single act which satisfies you of the fact of leaving with the intent not to return to the possession or further use of it, or by a series of acts extending over days, months or years. The intent may not be formed at the moment of leaving the land; it may be formed after he left. If the party goes or is out of possession, and at the time of going out, or while out, forms the intent not to return or resume possession, it is an abandonment. A mere going out for some temporary object, without the intent not to return, is not an abandonment.</p> <p>“ After thus once abandoning, he cannot change his mind and say he will come in again on some change of circumstances; his prior possession is then gone. It is claimed here that the plaintiffs and those through whom they claimed- refrained from asserting their rights in consequence of an early decision of the Supreme Court, in what is called the Peter Smith case, and that this would not pre-. Tent them from asserting their rights on a more recent and more correct statement of the law involved in these cases. I instruct you that if a party under a mistake of law abandons the land to' which he has no title but possession, the intention and the act combining for one moment, he will be held to have abandoned, even although he did so in ignorance of the law.</p> <p>■ “If you are satisfied on the evidence that the fact and the intent clearly combined for any time, however short, you will find this question in the affirmative, and designate the parties and the time. If you are satisfied they did not, you will find in the negative.”</p> <p>Defendants’ Instbuctions.</p> <p>The Court, upon the request of the counsel for the defendants, then instructed the jury as follows:</p> <p>“ 1st. That by intendment of law, the clause respecting the Marine Hospital contained in the Act of Congress of September 30th, 1850, reserves from the operation- of the Act of March 3d, 1851, such lots as were designated by the Secretary of the Treasury under the aforesaid Act of 1850, the two statutes being construed together as being in pari materia.</p> <p>. “2d. That the. United States having been in actual possession on.and before the first of January, 1855, the Van Hess Ordinance- and its ratification by legislative act vested in the United States all right the city may have had.</p> <p>“ 3d. That the State Legislature having given their consent to the purchase of lands by the United States for public purposes, the city having made the conveyance of December 11th, 1852, and the United States being ever afterwards, and on the first of January, 1855, in notorious ocóupancy and possession, the city ordinance pf June 20th, 1855, and the act of the Legislature of March 11th, 1858, must be held in law to have contemplated and intended the confirmation of the United States title to these lands.”</p> <p>To which instructions plaintiffs excepted.</p> <p>Plaintiffs’ Instructions.</p> <p>Plaintiffs requested the Court to instruct the jury as follows:</p> <p>“ 1st. If the jury believe that Thomas White, the original vendor of the plaintiffs, in the latter half of the year 1849, entered upon the land bounded by Beale street and the water, claiming to hold or own the same by his possessory right;</p> <p>“ That a few months thereafter he caused to be erected and completed a fence running along the westerly line of his claim, which, together with the water, distinctly marked the boundaries thereof;</p> <p>“ That he caused to be made in the month of May, 1850, a survey and map of said claim, and on the thirtieth day of May, 1850, filed a written assertion of his claim with the Recorder of San Francisco;</p> <p>“ That prior to the month of May, 1850, he had erected a dwelling-house within the boundaries of his claim, in which he resided with his wife, and continued to reside until he sold the land to Hubbard and Templeton, in the fall of 1851; and" also a storehouse, or outhouses, which he erected for the transaction of his business ;</p> <p>“ That during his whole residence thereupon he claimed the entire tract as his own, and exercised acts of ownership over various portions thereof, such as selling, leasing, subdividing, etc.;</p> <p>“ That upon the sale to Hubbard and Templeton he put them in possession of his dwelling and store-house, and transferred to them the leases made to him by his tenants ;</p> <p>“ That Hubbard and Templeton, on and after the sale from White, resided upon the land and occupied the houses formerly occupied by White and family, claiming the whole tract under the deed from White, and exercising acts of ownership over portions thereof until the sale from Templeton to Hubbard, and afterwards Hubbard occupied in the same manner, and claimed to the same extent, up to and after the adverse entry of the tenth of December, 1852, and that the other plaintiffs, by regular mesne conveyances from Hubbard, have an undivided interest in said premises, then the plaintiffs are entitled to recover.</p> <p>“ 2d. Any entry upon said tract subsequently to the occupation and inclosure by White, by persons not owning or having permission from the owner in fee, does not impair or invalidate White’s possession as against the defendants in this cause.</p> <p>“ 3d. Occupation of a part of a tract of land, the extent of the tract being defined by distinct monuments of boundaries, whether the same be natural or artificial boundaries, carries the possession to the whole tract.</p> <p>“ 4th. You are instructed that the deed from the city by the Mayor, which has been offered in evidence, did not convey, to the United States any present title to the lands in question, and vested no right to the possession thereof in the United States.</p> <p>“ 5th. You are instructed that the United States have no title or right to the possession of the lands in controversy in virtue of any supposed reservation thereof.</p> <p>“ 6th. You are entirely to lay out of view the fact that a building, used as a United States Marine Hospital, now stands upon the premises of which a recovery is sought, and you are to regard and view the title of the plaintiffs in the same manner as if no erection had been constructed upon said premises. In other words, the fact that the lots are improved is not to influence your deliberations or decision ‘to any extent whatever.</p> <p>“ 7th. Your deliberations are not to be influenced against the plaintiffs to any extent whatever by the fact that the defendants set up title in the United States, unless such a title be satisfactorily proven; nor are the United States, upon a question of title, in any more favorable position than a private individual.”</p> <p>The Court declined to give said instructions, plaintiffs excepting.</p> <p>The jury found a general verdict for defendants; and to the first special question submitted to them, answered: “ None of them were.” Judgment for defendants; plaintiffs appeal.</p>

<p>Appeal from the Seventh District.</p> <p>Action under the three hundred and seventeenth section of the Practice Act for malperformance of a passenger contract.</p> <p>When the suit was first brought, husband and wife were joined as plaintiffs. Defendant demurred for misjoinder of parties plaintiff. Overruled, and the cause proceeded to trial, in the course of which the plaintiffs moved to amend by striking out the name of the wife. Granted, A verdict was rendered for plaintiff, and was subsequently set aside and a new trial ordered. The cause again came on for trial, the husband alone being plaintiff. After the jury were empanneled, plaintiff moved to amend his complaint by making'the wife coplaintiff, which motion.was granted, defendant excepting.</p> <p>The jury returned a special verdict as stated in the opinion of the Court, finding as true the material allegations of the complaint; and also returned a general verdict for plaintiffs, assessing their damages at $5,000. The special verdict fixed the actual expenses incurred by the deviation and detention at Aspinwall at eighty-five dollars, and the amount paid for passage ticket at San Francisco at one hundred and seventy-five dollars.</p> <p>Plaintiffs asked the Court, in effect, to instruct the jury that if they believed there was fraud in the inception of the contract made by the agents of defendant with plaintiffs, or fraud in the breach thereof, they could give exemplary damages; that, in any event, if the jury believe from the evidence that there was a breach of contract or a malperformance thereof, as between plaintiffs and the agents or owners of defendant, the jury will find a verdict for return of the passage money, which may have been proved to have been paid, and in addition thereto such extra amount of money as has been proved to have been paid out by plaintiff, Catherine Sheldon, during her detention on the Isthmus of Panama; that this is an action in the nature of trespass on the case, etc., and that if the jury believe from the evidence that Mrs. Sheldon was carried to Panama and there exposed, etc., under the circumstances stated in the complaint, they can find exemplary damages; that if they believe from the evidence that the husband, now plaintiff, heard of the-deviation of the voyage, and the detention of his wife at Panama, and her suffering and exposure there, and that he suffered great mental anxiety therefrom, he is entitled to recover damages therefor.</p> <p>These instructions were refused, plaintiffs excepting.</p> <p>The Court charged the jury as follows, plaintiffs excepting:</p> <p>“ That it does not follow that because an action could be sustained against agent, owner or officer, that they can also recover against the boat. This is a particular form of action—an action on a contract. You will find a verdict in favor of defendant, but it is desirable, because there are other cases, that the facts should be found. You will pass on the several issues submitted to you in writing.”</p> <p>The jury returned a verdict for the defendant, and also returned a special verdict as stated in the opinion.</p> <p>Plaintiffs’ counsel moved for judgment on the special verdict. The motion was denied by the Court, and the denial excepted to by plaintiffs. Defendant moved to set aside the special findings. Motion denied by the Court, defendant excepting. Defendant then moved for judgment on the general verdict, and on such motion' judgment was ordered in favor of defendant for his costs.</p> <p>Further facts appear in the opinion of the Court. Plaintiffs appeal.</p>

<p>Appeal from the Fourth District.</p> <p>This was an action of ejectment to recover the possession of two one hundred vara lots, situated within the city and county of San Francisco. The plaintiff based his claim to a recovery of the premises upon a grant made to himself and Salvador Yallejo on the twenty-first day of May, 1839, by Juan B. Alvarado, then Mexican Governor of the Department of California, and upon a patent of the United States issued to them on the third day of March, 1858, upon the confirmation of the grant, pursuant to the Act of Congress of March 3d, 1851, and the approved survey of the premises by the Surveyor General of California following such confirmation.</p> <p>The following is a translation of the petition to the Governor, and of the grant made by him in compliance with it:</p> <p>[Petition.]</p> <p>To his Excellency the Governor of Upper California—Juan B. Alvarado:</p> <p>The undersigned, Jacob P. Leese and Salvador Vallejo, respectfully represent to your Excellency that, [considering that] the diminished resources of the country will deprive your Excel-, lency of the power of .repaying the expenses which by your order we have incurred in lighters, transport of troops, mails, and other services even of a personal nature, which we have done in this place, in Santa Clara, San José, Sonoma, and San Rafael for the public tranquility, we have thought fit to make a contract with the Commander of Ross, Don Pedro Kostromitinofi", to erect some houses, store houses, and a wharf, for the purposes of his business at this place, and requiring two town lots for the said buildings, we petition your Excellency to grant us two lots of one hundred varas each at the point (or place) known as the landing place of Yerba Buena—these lots commencing from the same point (or place) of the landing place at the shore of the sea, [and running] to the little beach northerly, which is a frontage of two hundred varas, and in depth, in a westerly direction towards the hill, one hundred varas.* We also ask for twenty-five varas in the sea at the same point (or place) of the landing place for the construction of the wharf referred to.</p> <p>Eor the reasons set forth, we pray that your Excellency will grant us the favor we ask ; for which we will be duly grateful; requesting also that you will excuse our using common paper for' our want of stamped. (Signed.) Jacob P. Leese.</p> <p>Salvador Vallejo.</p> <p>San Francisco, May 12th, 1839.</p> <p>[Grant.]</p> <p>Monterey, 21st May, 1839.</p> <p>[l. s.] “ There are granted to the parties interested, Don • Jacob P. Leese and Don Salvador Vallejo, the two lots of one hundred varas each in the place and on the terms set forth by them, to make their warehouses, under the conditions which will be explained.*</p> <p>The Commander of the presidio of Ross to have no right whatever in this concession—the land ceded being considered as property of Mexicans, which the interested parties are.</p> <p>First. At no time nor for any reason whatever shall the Commander of Ross believe himself to be the owner of the warehouses, because all the buildings that may be erected should be regarded as property of Mexican citizens.</p> <p>Second. This license does not destroy, nor has it any manner of effect contrary to the laws nor the decrees of the National Government respecting the traffic or privileges which the Russians may or may not enjoy in the future on their entry to the port of San Francisco with a view to trade, since (or seeing that) their particular contract does not confer any right or any kind of right, either on the individuals interested or on the traffic mentioned.</p> <p>Third. The wharf which it is proposed to build cannot be exclusively for the benefit of private individuals, but it will be considered as property of the Government, for the use of commerce in general. The Government itself will impose the wharfage dues which may be thought fit.</p> <p>Fourth. If the beneficiaries should contravene these stipulations they will forfeit their rights alike in the buildings and in the lots—they reverting to the Government for such uses as it may see fit.</p> <p>_ I, Juan B. Alvarado, Governor of the Department of the Californias, order that this be delivered to the parties interested, that it may serve them as a title, note being taken in the corresponding book.</p> <p>(Signed.) Juan B. Alvarado.</p> <p>Manuel Jimeno, Secretary.</p> <p>Note has been taken in the Secretary’s office, under my charge, in the proper book at page 7. (Signed.) Jimeno.</p> <p>Monterey, 21st May, 1839.</p> <p>The patent of the United States is in the usual form of patents issued upon the confirmation of Mexican grants. It refers to the grant; its confirmation by the Land Commission; the appeal to the District Court of the United States, and the action of that Court upon the case ; and sets forth the survey of the lots as made under the directions of the Surveyor General, and approved by him; and concludes with the usual granting clause on the part of the United States.</p> <p>The following are the eighth, fourteenth and fifteenth sections of the Act of Congress of March 3d, 1851, entitled “An Act to Ascertain and Settle the Private Land Claims in the State of California,” which are referred to in the opinion of the Court:</p> <p>“ Sec. 8. And he it further enacted, That each and every per- , son claiming lands in California by virtue of any right or title derived from the Spanish or Mexican Government, shall present the same to the said Commissioners when sitting as a Board, together with such documentary evidence and testimony of witnesses as the said claimant relies upon in support of such claims ; and it shall be the duty of the Commissioners, when the case is ready for hearing, to proceed promptly to examine the same upon such evidence, and upon the evidence produced in behalf of the United States, and to decide upon the validity of the said claim, and within thirty days after such decision is rendered, to certify the same, with the reasons on which it is founded, to the District Attorney of the United States in and for the district in which such decision shall be . rendered.</p> <p>“ Sec. 14. And he it further enacted, That the provisions of this act shall not extend to any town lot, farm lot or pasture lot held under a grant from any corporation or town to which lands may have been granted for the establishment of a town by the Spanish or Mexican Government, or the lawful authorities thereof, nor to any city, or town, or village lot, which city, town or village existed on the seventh day of July, 1846; but the claim for the same shall be presented by the corporate authorities of the said town, or where the land on which the said city, town or village was originally granted to an individual, the claim shall be presented by or in the name of such individual, and the fact of the existence of the said • city, town or village on the said seventh of July, 1846, being duly proved, shall be prima fade evidence of a grant to such corporation, or to the individual under whom the said lot holders claim; and where any city, town or village shall be in existence at the time of passing this act, the claim for the land embraced within the limits of the same may be made by the corporate authority of the said city, town or village.</p> <p>“ Sec. 15. And be it further enacted, That the final decrees rendered by the said Commissioners, or by the District or Supreme Court? of the United States, or any patent to be issued under this act, shall be conclusive between the United States and the said claimants only, and shall not affect the interests of third persons.”</p> <p>The defendants produced and gave in evidence sundry grants of the same premises in lots of fifty varas each, issued to them or their grantors in 1847, by persons acting as alcaldes or chief magistrates of the pueblo of San Francisco, and also proved that the premises were within the limits of the pueblo. They contended on the trial, in substance, that as the lots covered by the grant to the plaintiff and Vallejo were within the limits of the pueblo, the Board of Land Commissioners had no jurisdiction under the fourteenth section of the Act of Nov. 3d, 1851, to pass upon the claim of the grantees; and that the subsequent action of the United States District Court, and of the Surveyor General in making the survey, and of the authorities at Washington in issuing the patent, were without authority and void; or if the Board had such jurisdiction, that the defendants claiming under the Alcalde grants were “ third persons,” within the meaning of the fifteenth section of that act, against whom the decree of confirmation and patent were not conclusive, and that they could in consequence question the location of the premises as given in the patent, as much so as if no proceedings ,had been taken before the Land Commission.</p> <p>Evidence as to the starting point of the premises—the Desembarcadero or landing place of Yerba Buena—was admitted by the District Court, notwithstanding the patent, and was conflicting in its character. The Court charged the jury with reference to the patent as follows:</p> <p>“ A patent from the Government of the United States to Leese and Vallejo,* and also a deed of conveyance from Vallejo to plaintiff, have been given in evidence.</p> <p>“ This patent is conclusive between the United States and Leese and Vallejo as to the land mentioned and described therein, and the deed from Vallejo to Leese is sufficient to convey the title of Vallejo to the land therein mentioned to Leese; but it is declared by the Act of Congress referred to [the Act of March 3d, 1851] that the patent is conclusive between the United States and the claimants only, and does not affect the interests of third persons.</p> <p>“ Therefore, although so far as respects the Government of the United States, and all persons claiming under that Goverhment, the plaintiff by virtue of the patent may be entitled to hold or recover the lands mentioned therein, it does not follow that he is entitled to recover in this action, although the lands mentioned in the complaint are the same as those described in the patent.</p> <p>“ The fourteenth section of the Act of Congress referred to, declares that the provisions of the act shall not extend ‘ to any city, town or village lot, which city, town or village existed on the seventh day of July, 1846, but the claim for the same shall be presented iy the corporate authorities of the said town, or where the ‘land on which the said city, town or village was originally granted to an individual, the claim shall be presented by or in the name of such individual; and the fact of the existence of the said city, town or village on the said seventh of July, 1846, being duly proved, shall be prima fade evidence of a grant to such corporation or to the individual under whom the lot holders claim; and where any city, town or village shall be in existence at the time of the passing this act, the claim for the land embraced within the limits of the same may be made by the corporate authority of the said city, town or village.’</p> <p>“ From this, it follows that if the lands described in the patent were city, town or village lots of a city, town or village which was in existence on the seventh of July, 1846, then neither the Board of Commissioners nor the District Court of the United States had any jurisdiction of the claim, and the patent issued for such claim is of no validity so far as it affects the interests of these defendants, unless it is land originally granted to Leese and Vallejo before the city, town or village existed, or for the purpose of a city, town or village; it also follows from the provisions of the fourteenth section, that if at and prior to the time of the alleged grant of Governor Alvarado to Leese and Vallejo a town existed at the place where the lands mentioned in the grant are located, and that they were then town lands, and _ it was a grant of town lots, then said Leese and Vallejo are not original grantees within the meaning of this act, and the patent cannot affect the interests of these defendants.</p> <p>“ The Supreme Court of this State has decided that during the year 1839, and from then until the military occupation of California by the army of the United States, San Francisco was a Mexican pueblo, and invested with title to lands within her boundaries. It follows, then, at the time, to wit: May 21st, 1889, when the grant from Alvarado was made, San Francisco was a Mexican pueblo, invested with title to lands; and if you should find that the lands mentioned in the grant were, at the time they were granted, within the pueblo limits, then they are town lots within the meaning of the Act of Congress, and in that case you must exclude from your consideration the patent from the United St^ces, and cannot base your verdict upon the description of the land or anything contained in' it so as to affect the interests of the defendants, if they have any in the same lands.”</p> <p>To this charge the plaintiff’s counsel at the time excepted. The jury found for the defendants on the ground, as stated in their verdict, that they could not locate the grant as claimed by the plaintiff. A motion for a new trial, based, among other grounds, upon alleged error in the charge of the Court, was made, and overruled. From the order overruling the motion the appeal is taken. All other material facts are stated in the opinion of the Court.</p>

This case was before the Court in January, 1859, and is reported in 12 Cal. 143, where the facts essential to an understanding of the questions decided now may be found.

<p>Appeal from the Fifth District.</p> <p>Ejectment for an undivided eleventh part or interest in a quartz lead, known as-the “ Grizzly” claim.</p> <p>Sometime previous to the discovery and taking up of the lead by McBrayer, he, with Gore, the respondent, and nine others—who were working a claim called the “ Blue Lead,” previously discovered by them, and being about one hundred and fifty feet from the “ Grizzly ” claim—had entered into a verbal agreement that they should prospect for quartz together, and “ if anything was discovered, all the company was to have an equal interest in it.”</p> <p>The appellant, McBrayer, who had quit work on the “ Blue Lead,” alone discovered the claim in question about the fifteenth of October, 1858, and h#d a notice placed on it containing the names of himself and the respondent, together with nine others, none of the nine being members of the original company.</p> <p>On the following day, one Wyatt, at the request of McBrayer, tore up the first notice, and placed another on the claim, omitting Gore’s name from the notice.</p> <p>McBrayer discovered the claim alone, and neither the respondent nor any of the original company, except McBrayer, were ever in possession of any portion of it.</p> <p>McBrayer retained possession of the claim, refused to recognize the respondent as having an interest, and disposed.of various interests in the claim to different parties.</p> <p>On the trial, plaintiff offered in evidence the mining laws of the vicinage, and proved that they were passed at a large meeting of miners, held at Sonora on the twenty-first of August, 1858—though the notice calling the meeting stated the day to be August 25th, 1858. Defendants objected to the introduction of said laws in evidence on the ground that they were passed two days before the time fixed in the notice. Overruled, defendants excepting.</p> <p>Defendants requested the following instructions, the first of which was refused absolutely, and the others refused as stated below :</p> <p>1. That in order to constitute a copartnership in the taking up and locating of quartz claims, it is necessary there should be a contract in writing.</p> <p>2. That if a partnership existed, as contended for by plaintiff, the defendant, McBrayer, had the right to withdraw at any time, and that if the jury believe from the evidence that he did so withdraw before the discovery by him of the Grizzly claim, then Gore, ■the plaintiff, had no interest in said claim by virtue of such copartnership.</p> <p>The Court refused except with this modification: “ That the fact of their being copartners in prospecting, did not make them copartners in the Grizzly élaim after they had discovered it; that they then ceased to be partners, and became tenants in common.</p> <p>3. That a copartner can withdraw' from a general copartnership at any time he pleases without assigning any reason therefor, and from the time of such withdrawal he ceases, as between himself and his copartners, to be such partner.</p> <p>The Court again refused, except with this modification: “ That parties holding a quartz claim are not considered as partners in law.”</p> <p>Verdict for plaintiff. Defendants appeal.</p>

This is an action to recover the sum of $19,552.74, with interest, for moneys paid by the plaintiffs to the defendant upon bids made by them for lots situated in San Francisco, which were put up for sale by the Mayor and Land Committee of the city under a pretended ordinance of the Common Council.

District. Suit for damages for trespasses upon mining claims, and for injunction. Plaintiffs, the Columbus Company, owned certain mining claims, known as the Columbus claims. Defendants, the Dayton Company, owned claims adjoining on the west.

Ejectment for the Island of Yerba Buena in the Bay of San Francisco. Plaintiff claimed title: 1st, by prior possession in one Spear, and King, her predecessors; 2d, by virtue of a tax deed; 3d, by prescription under the laws of Mexico. The facts as to prior possession and prescription are sufficiently stated by the Court. On the point of actual possession by Spear, from 1837 down to 1849, the jury found against plaintiff.

. Appeal from the Seventh District. Suit by a Sheriff on a verbal agreement to indemnify him for seizing certain property.

Suit on an injunction bond. Defendants, Polack and others, claim to be owners of a Mexican grant of the Island of Yerba Buena in the Bay of San Francisco, which grant was confirmed to them by the United States Board of Land Commissioners. An appeal being taken to the United States District Court, the claim was rejected, and is now pending there on motion for rehearing. The island was chiefly valuable for its quarries and timber (the latter has been wholly destroyed).

The facts appear in the opinion, except that plaintiff paid two hundred and fifty dollars—the amount of his tax under the Act of 1861—under protest, and now sues to recover it back. Judgment for defendants. Plaintiff appeals.

Suit for services rendered during two years, at two hundred dollars per month. The defendant and others, being the owners of the Roblar rancho with plaintiff, employed the plaintiff to take charge of the same and sell the land in small tracts to settlers and others, he to receive a commission upon all sales of five per cent.

<p>Appeal from the Court of Sessions of Sacramento.</p> <p>Indictment for assault with intent to commit murder upon one Martenot, by shooting at him with a pistol.</p> <p>After the argument of the case had closed, and the Court had charged the jury, defendant asked the following instructions, to wit: ,</p> <p>1. “ If the jury believe from the evidence that the defendant had a reasonable ground to believe, from the nature of the attack, that Martenot, the party injured, had a design to take his life, or commit a felony upon his person, he was justifiable in shooting, although it afterwards appeared that no féloriy was intended.</p> <p>' 2. “ If the jury believe from the evidence that the defendant fired his pistol under the impression that great bodily injury was about to be immediately inflicted upon him, the shooting was no crime, but self defense.”</p> <p>These instructions were refused, “ for the reason that the rule of the Court required written instructions to be handed to the Court before the argument of the case commenced.”</p> <p>Defendant was convicted of an assault with a deadly weapon with intent to inflict bodily injury. He appeals.</p>

<p>Appeal from the Sixth District.</p> <p>The facts are sufficiently stated in the opinion. Defendant appeals.</p>

Plaintiffs obtained two judgments against one Downey upon complaints filed on the thirteenth of September, 1858, in actions to enforce liens for lumber furnished for and used in the construction of two buildings—a stable and another building. The summons in each action was dated September 13th, 1858, and placed in the Sheriff’s»hands on the fifteenth of that month—meanwhile remaining in the Clerk’s office.

Bill for partition of land and an injunction against cutting timber. .

A suit to enjoin the Mayor and Common Council of the city of Placerville and the Treasurer from paying over money collected by a tax to survey a railroad route from that city to Folsom.

Suit to enforce a sale by a Sheriff and to set aside a decree on the following facts: August 21st, 1857, E. C. Kelley, Curtis and Garland, composing the firm of Kelley & Co., mortgaged the premises to defendant, Reas, to secure two notes maturing—the one on the fifteenth of November following, the other on the first of August, 1858.

John B. Lewis died intestate in 1859, leaving him surviving no descendants, nor father nor mother, but several brothers and sisters and the children of a deceased sister, and also his wife, who was appointed administratrix of his estate. At the expiration of the usual ten months’ notice to creditors, the administratrix filed a petition for final distribution of the estate, and claiming as surviving wife the entire estate as community property.

1 Suit to recover $1,500 with interest, as balance due on a purchase of real estate. Held: first, that the legal title to the interest of Jonghaus in the premises, on the ninth of January, 1856, being now in May, and he not being a party to the foreclosure suit, the decree therein was void as to him, and that May’s interest is a cloud upon defendant’s title; second, that time was of the essence of the agreement of May…

Suit brought in Nevada county by plaintiff against the defendant, as Sheriff of that county, to recover damages for breaking into a house at Orleans Flat, Nevada county, and also the value of certain personal property which he levied on under an execution in the suit of Saunders v. Denton et als.

Suit to recover $1,500 for damages arising from a collision between a steam vessel owned by plaintiff, called the “ Gipsy,” and the sloop “ Cynthia.” Defendant denied that plaintiff was the owner of the “ Gipsy,” that he “ was damaged by reason of such collision in the sum of $1,500,” or that the damage was occasioned by any fault or negligence of defendant, and set up affirmatively a custom of the Sacramento river as between steam vessels and sailing vessels.

<p>Under the Act of 1860, (Stat. 1860, 133) relative to the issuance of the Bonds of Butte county to the California Northern Railroad Company in certain contingencies, the basis upon which the Supervisors are to proceed in estimating the work done by the Company, so as to entitle it to bonds, is the actual expenditure by the Company, and not the value of the work. This actual expenditure, connected with proof of the other facts required by the statute, prima facie constitutes the Company’s claim on the county for the bonds.</p> <p>The county might refuse to issue the bonds if the expenditures were not really made, or if fraud had been committed in the contracts for such expenditures. The Board of Supervisors act ministerially in the issuance of bonds under this act, and mandamus lies if they improperly refuse.</p> <p>Under the second section of the act no proceedings can be taken by the Company against the Board for refusal to issue the bonds until ten days from the time of this decision upon the “ estimate of expenditures ” presented by the Company. During that period any tax-payer has a right to institute proceedings in the District Court to review the action of the Board.</p> <p>. The proceeding of the tax-payer in the District Court contemplated by this statute is a proceeding by certior.ari in the form and according to the course of that writ, and the issuance of the writ is necessary to stay the proceedings beyond the ten days, though probably no formal order of injunction is necessary.</p>

<p>Appeal from the Second District.</p> <p>This is substantially a continuation of the controversy in the case of Sparks v. De la G-uerra, reported in 14 Cal. 108, and the facts may be there found in the opinion of the Court. This suit was brought, in the language of counsel for plaintiff, “ in obedience to an intimation thrown out at the end of the opinion in that case.” The plaintiff, a judgment creditor of Joaquin De la Guerra, files this bill to restrain the defendants, executors of the last will of José De la Guerra, deceased, from paying to said Joaquin a bequest alleged by plaintiff to have been made by the testator in favor of said Joaquin, asking that they be directed to sell the cattle referred to, and out of the proceeds to pay plaintiff’s claim against Joaquin. The bill offers to give bond of indemnity against the claims of other creditors of the estate of the testator.</p> <p>The complaint in this case, besides making the averments made in the former case, annexes a copy and translation of the will of José, a copy of the proceedings before the referee appointed to take the answers of the executors touching their instructions, etc., and other matters not necessary to be stated. ■</p> <p>The will gives to Joaquin De la Guerra, one of the sons of the deceased, a piece of land in Spain, on condition that he shall, within fifteen years, settle there. This bequest, the complaint avers to be of trifling value.</p> <p>The clauses of the will containing the disputed bequest to Joaquin are as follows :</p> <p>“ Paragraph 3d. Before any distribution be made, there shall be parted out from the neat stock which at my decease may be found, fourteen hundred (1,400) head of large cattle, which shall be sold by my executors, and their product shall be invested by them according to the instructions which I have given to them, of the fulfillment whereof they, shall have to give account to God alone.” “ Paragraph 5th. I declare that, besides what has been already expressed, I made a secret bequest to my said son Joaquin, which my executors shall give him to understand, according to my instructions, when they may deem it convenient.”</p> <p>Defendants demurred to the complaint, on the ground that the Court had no jurisdiction, and that the complaint did not state facts sufficient to constitute a cause of action.</p> <p>Demurrer sustained on the second ground assigned," the Court holding that the will did not impose upon the executors any legal obligation to give Joaquin anything, and that, as he has no claim upon them, neither have his creditors. Plaintiff appeals.</p>

<p>Application for Habeas Corpus.</p> <p>Andrews, the petitioner, was tried and convicted in the Police Court of the City and County of San Francisco, for violating the Act of May 20th, 1861, entitled “ An Act for the Observance of the Sabbath,” by keeping open a store for the transaction of business on the first day of the week, commonly called Sunday, and sentenced to pay a fine of twenty dollars or be imprisoned in the county jail for ten days. He failed to pay the fine, was'imprisoned, and now applies to the Supreme Court for a writ of habeas corpus, alleging that the act for which he is imprisoned was no offense because the statute is unconstitutional. The writ was issued, and on the return thereof the prisoner was remanded into custody.</p>

The Administratrix of the estate of Murray, deceased, applied to the Court for an order to sell real estate to pay debts and expenses of administration. There was no personal property of any value, and the real estate consisted of a tract of land containing about two hundred and 'thirty acres, upon which there was a mortgage, executed to one Salmon, for the purchase money of the land, amounting to $1,600.

The facts appear in 14 Cal. 531. On the return of the cause the association rescinded their former resolutions requiring the oath mentioned, sent plaintiffs notices thereof, and invited them to return and take their seats in the association in the full enjoyment of their rights and privileges; and these facts were set up in the answer filed to the complaint.

Suit against a Sheriff for damages for an illegal seizure and sale of plaintiff’s property.

'Ejectment to recover land and damages for its detention. The complaint avers ownership of the premises in one • Barber on the tenth of March, 1860, a conveyance by him to plaintiff on that day, as well as entry and ouster by defendants. The land is described as a portion of a ranch conveyed by John Bidwell to one Barber. Damages are claimed at one hundred dollars per month, from March 10th, 1860.

Relator was elected County Judge of El Dorado in the fall of 1852, received his commission and entered upon the duties of his office on the twenty-third of November of that year. This election was supposed to be to fill a vacancy; and, accordingly, relator was again elected in the fall of 1858, and again in the fall of 1857, and still holds the office.

<p>Appeal from the Twelfth District.</p> <p>The case does not warrant any further statement of facts than appears in the opinion.</p>

The facts appear in the opinion. ■ Defendant appeals—the Court below having refused to set aside the verdict and grant a new trial, on the ground of newly discovered evidence.

<p>Ejectment for a quarter section of land. Defendant disclaimed as to all except the north half of the section, eighty acres, within which he had thirty acres enclosed and called the “ Old Eield.” Defendant offered his brother A. B. Whitesides as a witness to prove defendant’s prior possession of that part of the north half of the section outside of the “ Old Eield.” Witness on his voir dire said he lived with defendant, was interested in the crops which were in the “ Old Eield ” only, and had no interest whatever in the balance of the land: Reid, that the witness was competent; that his being interested in farming within the “ Old Eield,” did not make him interested in the result of the litigation as to the land outside of that field.</p>

Bill in equity to set aside an order of the Board of Supervisors San Joaquin, and for injunction, etc. In April, 1860, the Legislature passed “An Act to provide for laying out and constructing certain Public Roads in the County of San Joaquin, and to compensate the owners of land taken for that purpose.” The act authorized the Board of Supervisors to levy a special tax, the fund raised to be exclusively appropriated to the construction and repairing of seven public highways…

Action of slander ; the words alleged in the complaint to have been spoken of plaintiff by defendant being as follow: “ Scott [meaning plaintiff] has stolen hogs, and now has them in his possession ; ” “ Scott is a thief, he has stolen hogs, and he has taken up strays and illegally disposed of them; ” “ He stole hogs; ” “ Scott is a murderer, and I can prove it; ” “ Scott perjured himself in relation to the line between his land and mine ; “ Scott swore to a lie concerning…