Volume 19 — California Reports

Ejectment for lot number three hundred and one in San Francisco. The material facts are stated in the opinion of the Court; but it deemed proper to add a few particulars.

Ejectment by Frisbie and Patterson against Ely and fifty-seven other defendants, for a tract of land in Sonoma county, containing over 15,000 acres, with a prayer for an injunction to restrain waste.

<p>Appeal from the Eleventh District.</p> <p>Indictment for murder of a Frenchman. On the trial a witness for the prosecution testified, among other things, that “ he slept in the same room with defendant; that defendant did not rest well of nights; that this was before his arrest, and that he talked some while asleep.” The District Attorney then asked the witness what defendant said in his sleep. Defendant’s counsel objected on the ground that defendant is not responsible for what he then said. Overruled, defendant excepting, and the witness answered, stating what the defendant said.</p> <p>Defendant was convicted of murder, and appeals.</p>

Suit to enjoin a Sheriff’s sale of real estate, as creating a cloud upon the title. Scott, Vantine & Co. and Dimock were, on the twenty-sixth of August, 1859, creditors of H. C. Brown. On that day, Scott, Vantine & Co. commenced suit, by attachment, against Brown, and the proceedings stated in the opinion of the Court were had in execution of the writ.

Proceedings to condemn land. For the previous history of the case, see Gilmer v. Lime Point (18 Cal. 229). As stated in that case, the United States District Attorney joined issue as to the constitutionality of the Act of 1859, 26, mentioned in the plea of Throckmorton, and averred the use named in the application herein to be a “ public use,” within the Constitution of California.

‘ Replevin for four mules and their harness, with damages for their detention—the complaint alleging, among other things, that defendant had conspired with one Davis, and Requa, the teamster of plaintiff, and thus wrongfully got possession. The answer denies the allegations of the complaint, and sets up title to the property by purchase from Davis.

Action for the delivery of personal property. Complaint in the •usual form, with the proper statutory averments, alleging that plaintiff, on or about Nov. 4th, 1858, was owner and entitled to the possession of one hundred bales of gunny bags of the value of $4,000; that the same came into possession of defendant on that day, and that he wrongfully detains them after demand made, etc., to plaintiff’s damage of $4,000.

Clemens sued Comstock in a Justice’s Court for the balance of an account. Summons issued and the following return made thereon by the party deputized to serve it: “I hereby certify that I left a copy of the within in hands of Mrs. E. H. Comstock.” Upon the return day, defendant not appearing, judgment was rendered for plaintiff and execution issued, under which the Constable was proceeding to sell certain personal property previously attached in the suit.

Action commenced November 16th, 1859, in a Justice’s Court, upon two promissory notes for one hundred dollars each, dated May 14th, 1859, and drawing interest from date at the rate of three per cent, per month—plaintiff claiming as due three hundred and eighty dollars. The case was tried and plaintiff had judgment.

Suit on several promissory notes. Judgment for plaintiff. October 4th, 1861, defendants filed a notice of appeal and served copy oh plaintiff same day; and on the sixteenth of the same month defendants filed their undertaking on appeal. In the Supreme Court, respondent moved to dismiss the appeal, on the ground that the undertaking was not filed within five days after the notice of appeal was filed.

<p>Appeal from the Fourth District.</p> <p>Suit for two hundred and twenty-four dollars, for services as Gauger under the Act of May 3d, 1852—the complaint being a single count in assumpsit. Answer, a general denial.</p> <p>The facts as agreed upon are, that plaintiff was the State Gauger under the act named; that during the year 1859 defendant received from France seven hundred and fifty casks of claret wine, containing in the aggregate 45,000 gallons; that upon the arrival of said casks of wine in San Francisco, plaintiff, as Gauger, gauged and inspected them, and marked thereon the quantity and quality of the same, charging defendant for such service one-half of one per cent per gallon ; that when plaintiff so marked said casks they had just been landed from the ship, were still in their original form and packages, and had not become incorporated and mixed with the rest of the property of the State ; that it is the custom of merchants to sell the wine in said casks by the cask without reference to the number of gallons contained in the casks, and without inspection thereof; that plaintiff’s services at said rate amounts to two hundred and twenty-five dollars; and that he inspected said wines by virtue of his office, and not by request of defendant.</p> <p>Upon these facts, the Court below held that plaintiff was not entitled to recover, and entered judgment for defendant. Plaintiff appeals.</p>

<p>Appeal from the Fifth District.</p> <p>The facts appear in the opinion. The note in question was alleged to be a joint and several note of Cook & Kinney to the order of plaintiff. Plaintiff had judgment below. Defendant appeals.</p>

Ejectment for an undivided seventh of eighty acres of land in Alameda county, being part of the rancho of San Lorenzo. Plaintiff claims as one of the heirs of Francisco Soto, who held a Mexican grant of said rancho, which he occupied with his family until his death in 1845.

Suit on a judgment obtained against one Cook in his lifetime.

Suit for money, the complaint containing two counts, as stated in the opinion of the Court, and the answer denying the allegations. Judgment for plaintiff on the findings. Defendants appeal.

<p>The mere fact that a party is a Chinaman, residing in a mining district of this State, does not subject Mm to the foreign miners’ license tax.</p> <p>If the Revenue Act of 1861 (Stat. 1861, 447, secs. 90, 93) is to be construed as imposing this tax under such circumstances merely, the act is unconstitutional.</p>

Replevin against the Sheriff of Marin county for an ox team and wagon seized under an execution upon a judgment in the suit of Bonesteel v. Wormuth, in the Fourth District Court. The Sheriff justified under the writ, claiming that the property at the time of his levy belonged to defendant in the writ.

Ejectment for a lot in San Francisco. The complaint, among other things, avers that “ heretofore, to wit: on the first day of January, A. D. 1855, Joseph Hetherington was seized and possessed of a certain lot or parcel of ground in the city and county of San Francisco,” etc.; that on said day, said Hetherington was the owner of said lot, and was at that time, or shortly previous thereto, in the actual possession of the same; that after said day and before the twenty-ninth…

<p>Appeal from the First District.</p> <p>Suit against a Sheriff to recover certain personal property and damages for its detention, attached by him in an action against the husband of plaintiff—the complaint alleging the property to be the separate estate of the plaintiff. The answer denied the allegations of the complaint, and averred the property to belong to the husband, etc. Upon the second trial, the verdict and judgment were for plaintiff. Further facts appear in the opinion of the Court.</p> <p>Defendant appeals.</p>

<p>Appeal from the Seventeenth District.</p> <p>Bill by one member of “ The American Quartz Mining Company ” against his comembers and others, for dissolution and account, and for other purposes. The business of the company was to extract gold from quartz rock. The case was tried by the Court, and the following facts found, to wit: The property of the company consists of a quartz mill, lead and ditch in Sierra county—the business of the company being transacted and its books kept by a President, Secretary and Treasurer. In September, 1859, a quantity of quartz rock belonging to the company was crushed in the company’s mill, and yielded $7,073.98, .no part of which was credited on the books of the company, but the whole was received and appropriated by defendant Barnes, none of it going to the other members, or for their debts, except as hereinafter mentioned. October 7th, 1859, one Andrews obtained judgment against the company for $2,558 and twenty-four dollars and sixty-eight cents costs, and under execution thereon the Sheriff sold the property of the company, on the twenty-ninth of the same month, to one Crafts for $2,756.02, and executed to him a certificate of sale, which he at once assigned to defendant Barnes, who furnished the money bid according to previous arrangement between them. November 8th, 1859, one Cunningham obtained judgment against the company for $2,310.97 and forty-nine dollars costs, and under it the Sheriff, December 3d, 1859, sold the same property to Crafts, and executed to him a certificate of sale, which he, on the same day, assigned to Barnes. Crafts bought the demand of Cunningham before judgment for $2,254 furnished by Barnes, who supposed the demand to be in judgment. The Sheriff also sold the property for the State and county tax of 1859 to one Ellis, who received a certificate of sale, and subsequently sold and assigned the same to Barnes for one hundred and nineteen dollars. The company is in debt, but to whom or in what amount does not appear. All parties interested desire the judicial dissolution of the company.</p> <p>On the foregoing facts, the Court below concluded in law, “ that defendant Barnes, having funds of the partnership in his hands, made the purchase of the certificates of sale of the company’s property, and the interest therein conveyed, as trustee for the partnership, and therefore must be restrained from transferring or disposing of the same; that defendant White, the Sheriff, should be restrained from mating deeds for the property described in said certificates, and that said certificates must be canceled; that an accounting must be had between the partners, and between the partnership and third persons, which will be taken by the receiver and reported to this Court; that in the accounting between the partners, defendant Barnes should be charged with the sum of $7,073.98 received by him as proceeds of the said quartz rock, and credited with the sums paid for said Sheriff’s certificates of sale ; that said partnership must be dissolved; that the partnership property must be sold by the Sheriff in the same manner, and upon the same notice, as is required upon sales of real property under execution at law, and the proceeds paid into Court to be applied: 1st, to the payment of the costs herein, including the amount allowed and to be allowed to the receiver; 2d, to the payment of the liabilities of the partnership to third persons; 3d, to the payment of the debts due from the partnership to its individual members; 4th, the remainder to be divided among the partners in proportion to the shares or interests by them respectively held in the partnership.”</p> <p>Judgment accordingly. Defendants appeal.</p>

Ejectment for a lot in San Francisco. Defendant Calderwood, upon entering his appearance, moved to transfer the cause to the United States Circuit Court for trial. Upon hearing, the motion was denied, and from the order of denial Calderwood appeals.

<p>Appeal from the Fifteenth District.</p> <p>Suit against a cosurety for contribution.</p> <p>On the twenty-fifth of April, 1859, John Faulkner executed his note for SI,000 to Erskin, Lathrop, Burroughs and Lott, who indorsed the same as sureties or accommodation indorsers. From them it passed through several hands by intermediate indorsements, to one Howard. The note was not paid at maturity and Howard sued the maker, and Erskin, Lathrop, Burroughs and Lott, and obtained judgment for SI,212,97 including costs. Execution issued, and the defendant Lott paid three hundred dollars. The balance of the judgment, nine hundred and forty-five dollars and nine cents, including costs and accruing costs, was paid by the plaintiff, and the judgment satisfied. Plaintiff sues Lott for three hundred and twenty-two dollars and thirty cents, averring that Erskin and Faulkner are insolvent.</p> <p>The complaint gave a full statement of all the facts of the transaction. Defendant demurred on the ground that the complaint shows that defendant has paid his pro rata of the judgment obtained by Howard, and that it does not show that defendant is liable for more. Overruled. Answer filed denying the insolvency of Lathrop and Erskin, and insisting upon their being made parties before final decree. The Court determined the case without making them parties, finding the facts as above stated, and that Lathrop, Erskin and Faulkner are insolvent. Judgment for plaintiff for three hundred and twenty-two dollars and fifty cents, being the amount paid by plaintiff over and above the one-half of the Howard judgment. Defendant appeals.</p>

<p>Motion in the Supreme Court to amend its judgment. The case was decided at the January term, 1861, and is reported in 17 Cal. 417. The remittitur having been issued and the cause called for trial in the Court below, it was discovered that the judgment of the Supreme Court, as entered, affirmed the judgment below, instead of the order granting the new trial; whereupon the Court below stopped proceedings. Respondent subsequently—at the July term, 1861—moved the Supreme Court to amend its judgment by making it read,“ the order of the District Court, granting a new trial, is affirmed,” instead of“ the judgment is affirmed.”</p>

Suit for five hundred dollars as the purchase money of land. The case is stated in the opinion of the Court. Plaintiff appeals.

<p>Ex parte Andrews, (18 Cal.) holding the Act of 1861, commonly called the “ Sunday Law,” to be constitutional, affirmed.</p> <p>Where a party was charged with keeping open a bar for the sale of liquors on Sunday, in violation of the Act of 1861, and was convicted and committed to custody, and applied to the Supreme Court for a writ of habeas corpus, claiming his discharge on the ground that he kept the bar as part of the business of a hotel, and therefore had not violated the law : Held, that petitioner cannot avail himself of this defense, on this application, but must adopt some other mode—the complaint against him not showing that the bar was kept as part of the hotel business.</p> <p>On habeas corpus it is not competent to retry issues of fact, or to review the proceedings of a legal trial. .</p>

Defendant was indicted in the Court of Sessions of El Dorado for arson, charged to consist in the burning of a barn in that county. The barn was in what is known as Lake Valley. On the trial, a diagram of the locality of the barn was introduced; and one Taylor, a witness for the prosecution, stated that he had resided in Lake Valley since 1859.

<p>Where a Justice of the Peace issues a warrant to arrest and bring before him for examination a party charged with crime, the officer making the arrest may take the party before another Justice of the Peace of the same county, who may make the examination and commit, in case of the absence or inability to act of the Justice issuing the warrant.</p> <p>To enable the officer to take the party arrested before another magistrate for examination in case of such absence or inability to act, it is not essential that the warrant of arrest should contain a direction to that effect.</p> <p>A commitment for larceny must state of what property the larceny alleged was committed, to whom it belonged, its value, and the time when and the place where the offense was committed.</p> <p>A commitment for rape must state the person upon whom the alleged rape was committed, the use of violence, which is an essential ingredient in the offense, and the time and place where the offense was committed.</p> <p>Where an examination has been had by a magistrate and a commitment has been issued by him which is defective in form or substance, a second commitment, omitting or correcting the defects of the first, may be issued, provided there is any order, or judgment, or entry of the magistrate made at the conclusion of the examination to which he can refer for guidance, but he cannot resort merely to his own recollection for the facts of the case.</p> <p>The statute contemplates that the order of discharge or commitment made by the magistrate upon the completion of the examination of a party charged with crime shall be reduced to writing; and if the magistrate has indorsed his order on the depositions and statement, (Or. Pr. Act, secs. 163,164) or entered it in his docket, (where there have been neither depositions nor statement) commitments may be issued until the object of the order has been accomplished.</p> <p>Where a commitment, issued by a Justice of the Peace of the city and county of Sacramento, is directed to the Sheriff of said city and county, the Warden of the county jail thereof has authority to receive and retain in his custody the party charged.</p> <p>Where, on habeas corpus, the offense charged is so defectively set forth in the warrant of commitment that the party cannot be held thereunder, but it appears from the papers that he ought not to be discharged, the Judge hearing the application ought to hold the party for examination, and cause the complainant and witnesses to attend before him for that purpose.</p>

Suit to recover $3,850. The complaint contains nine ordinary assumpsit counts, for work, labor and services, and money paid, laid out and expended by A. Keefer for defendant—the amount being assigned by Keefer to plaintiff.

<p>It is error to instruct a jury, in a civil case of imputed fraud, that if they have a doubt of the guilt of the party charged, they must find in Ms favor. Issues of fact in civil cases are determined by a preponderance of testimony, and this rule applies as well to cases of fraud as to any other.</p> <p>The rule applicable to criminal cases where the jury have doubt of the guilt of the accused, is inadmissible in civil cases.</p>

<p>Real estate of a judgment debtor, situated in the county where the judgment before a Justice of the Peace was rendered, may be sold on execution upon the judgment, whether a transcript of the judgment be filed in the office of the Recorder of such county or not.</p> <p>No filing of such transcript with the Recorder is necessary, except as to property situated in a different county. With reference to property in the same county, the provisions for the enforcement of an execution upon a judgment in a Justice’s Court are the same as those relating to District Courts.</p>

<p>A partial failure of consideration cannot be pleaded in bar of an action upon a note given for the purchase money of land.</p> <p>If there be fraud in the sale of the land, or a warranty of title, or if the consideration be divisible or capable of apportionment, a partial failure of consideration may sometimes be given in evidence in reduction of damages; but even then the matters relied on by defendant must constitute such an affirmative right of action as would maintain a separate suit.</p>

<p>Appeal from the County Court of Butte.</p> <p>Contest between S. Y. Hale and J. L. Henshaw, as to their respective rights to a license to establish a ferry across the Feather river about a mile below Oroville.</p> <p>On the third of November, 1856, Hale petitioned the Board of Supervisors of Butte county for a license to establish a ferry at that point, alleging that the land on both sides of the river was public land. The application was opposed by parties having ferries in the same vicinity. Henshaw was a witness for Hale. On the fifth of November, the Board granted Hale a license to run a ferry at said point for six months. The Board does not find that any notice was given of the application ; or that there was a highway across the river at said point; or that it was public land; or that the public convenience required the establishment of a ferry; or that Hale was a suitable person.</p> <p>On the fifth of May, 1857, Hale petitioned the Board to renew his license. Henshaw, Moore and Ord opposed such renewal, and petitioned the Board to grant" a license to them at the same place ; they stated in their petition, among other things, that they were the owners of the land on the west bank of the river, and that the ferry license to Hale was illegally granted. In April, 1857, the Fernandez grant was located by the United States Surveyor on the west bank of Feather river for several miles above and below that point—prior to such location it was generally considered to be public land. Moore and Henshaw testified that this survey and locar tion first made them aware that they and Ord owned the ferry landing on the west bank of the river. The land on the west side covered by said grant was at that time in possession of Hale and others; suits were then instituted against them, and they were ejected in the fall of 1859, and the actual possession of the land where the ferry was located came to the grant holders. May 10th, 1857, Henshaw, Moore and Ord’s petition and remonstrance were decided by the Board. In their order of this date, they say “ that they leave to other tribunals to decide whether the alleged informalities in obtaining and granting the previous license (Nov. 5th, 1856) are insufficient to give this the character of a new application, and that it has not before it sufficient evidence to show ownership of the land as against the actual possession of petitioner,” and ordered a renewal of a license to Hale for one year.</p> <p>On the seventh of May, 1858, on petition of Hale, his license was renewed for one year. May, 1859, Hale petitioned for a renewal of the license, and it was renewed for one year from May 5th, 1859. August, 1859, by decree, in bill for partition between Henshaw, Moore and Ord, the ferry landing on the west side of the river was awarded to Henshaw.</p> <p>April 9th, 1860, Hale petitioned for a renewal of his license. Henshaw filed a remonstrance to such renewal, and also filed a petition for a license to establish a ferry at said point. The grounds of Henshaw’s opposition were mainly the invalidity of the first license, and each renewal thereof; that the Board did not find any of the facts necessary to give jurisdiction in such a case ; that the three months’ notice required by section eighth of the Act concerning ferries and toll bridges was never given, and that there was no highway or public road across the river at said point or on the western side thereof; that the land on the east side of said river is public land ; that Henshaw now and at all times was ready, able and willing to establish a ferry at said point; and that neither he, nor those from whom he claims, ever granted any right of highway or ferry at said point to any person or persons, and that the land on the west side of the river was owned by him by grant from Mexico in 1846, and by patent from the United States in 1857. Piale filed a remonstrance to Henshaw’s petition. Both petitions and remonstances were heard together as one and as a part of the same proceedings. Piale, for the purposes of the proceeding, admitted Henshaw’s ownership of the land on the west bank of the river where the ferry was, and for some miles up and down the river, under the Mexican grant and patent named.</p> <p>Hale set up a claim to the land on the east and south side of the river, under the possessory law of this State. Whether he had complied with the law so as to perfect his right, Henshaw disputed.</p> <p>At the time Hale located this tract, a public road ran to and along the bank where the eastern terminus of the ferry was. The road on the east side of the river is a public highway to and including the ferry landing on that side, and public convenience required the establishment of a ferry at that point. Whether the road on the west side was ever a highway was disputed—Henshaw claiming that no legal steps had ever been taken to make it such.</p> <p>Henshaw applied by petition, setting out the facts, to the County Judge of Butte, charging that the Board of Supervisors had exceeded its jurisdiction in granting Hale a ferry license and rejecting his petition, and asked for a writ of review ; and that the proceedings of the Board be certified to the County Court; and that Hale and the Board be cited to appear and show cause, if any, why the order granting the license to Hale should not be set aside, and the license be granted to Henshaw. Writ granted. The Board and Hale, after filing a motion to dismiss the writ, which was overruled, "answered, denying the jurisdiction of the County Court, on the ground that the acts of the Board in granting ferry licenses are legislative and not judicial, and hence not subject to review.</p> <p>The cause was submitted to the County Court on the pleadings had in that Court, and the proceedings and settled statement of the evidence as certified to the Court by the Board. The County Judge found that at the time the Board pretended to grant a license to Hale in 1856, it was upon the belief that the land on both sides was public land ; that Henshaw thought it was ; that Henshaw had no idea that the land on the west side of the river at that point would be covered by the Fernandez grant; that the grant was not located by definitive metes and bounds, nor was it until April, 1857 ; that as soon as Henshaw, Ord and Moore knew that their grant covered the land at that point, they opposed, in May, 1857, the renewal of the license to Hale, and petitioned to have the license granted to them ; that Henshaw at all times since he knew that he owned the land on that side was ready and willing to establish a ferry there ; that the road on the west side is not a public road ; that the right of way has never been granted, or acquired by dedication or otherwise ; that at the time Hale pretended to locate the tract of land, the road on the east side of said river leading to the ferry landing was a highway, and was not liable to be located under the Possessory Act; that Hale never complied with the act, and that the three months’ notice required by the eighth section of the Ferry Act was never given in 1856, or at any time ; that there was a public necessity for the establishment of a ferry ; that the granting of the license originally and subsequent renewal thereof were illegal, as against Henshaw, and that Henshaw did not omit or neglect to apply for the establishment of a ferry at said point within a reasonable time ; that when Henshaw, Moore and Ord, in May, 1857, applied for a license, no partition of the Fernandez grant had then been made, but that steps were soon after taken to that effect, which resulted in such a decision as to give to Henshaw the land and landing at the ferry in question, on the west side of the river; that as soon as practicable after this partition, Henshaw applied for a ferry license at that point, based on the rights and preferences given him by sections five and eight of the Ferry and Bridge Act.</p> <p>Judgment was rendered reversing the order granting the license to Hale, and ordering it to be canceled, and the Board to dismiss his petition. And it was further “ ordered, adjudged and decreed from the facts admitted by the petition of said Henshaw, and the remonstrance of said Hale, and as appears by the record certified up, that said James L. Henshaw was and is entitled, upon the showing made, to a license to keep and run a ferry across Feather river at the point prayed for in his said petition; and that said Board, under the facts in the case, exceeded its jurisdiction, in refusing to grant a license to said James L. Henshaw at the point prayed for in said petition.</p> <p>“ It is therefore ordered, adjudged and decreed, that the order of the said Board of Supervisors, in and for Butte county, in said State, made on the eighth day of June, 1860, at its regular May term for said year, refusing to grant a license to the said Henshaw, at the point as prayed for in his said petition to said Board, filed in said month, be and the same is hereby reversed, canceled and annulled ; and the said Board should have granted, and should now grant, a license to the said James L. Henshaw to keep a ferry across Feather river, at the point and as stated in said Henshaw’s petition, filed in his said application before said Board ; and to this intent, this cause is remanded to said Board, with instructions to dismiss the application of said S. T. Hale, and to grant a license to said J. L. Henshaw to establish and keep a public ferry across Feather river at the point petitioned for by him, on such terms and conditions as the law in such cases has made and provided, and to be governed by the principles and rules of law and facts, as announced by the Court in its decision herein filed.”</p> <p>From this judgment Hale and the Board of Supervisors appeal.</p>

Suit upon two promissory notes made by Beard to the order of Mesick, and by him indorsed in blank. On the trial, plaintiffs, after introducing the notes, offered as a witness J. L. English, who stated on his voir dire that he acted for Mesick in making the waivers found on the notes; whereupon defendant objected to the witness, on the ground that he was interested to sustain his own acts, and to bind defendant. Overruled, defendant excepting.

Suit on a judgment claimed by defendant to have been discharged by a decree in insolvency.

The nature of the suit, and the provisions of the Act of 1854, .in question, are stated bj the Court. The further facts are: 1. That on the first of May, 1854, Charles H. Swift held legal and proper indebtedness against the county, amounting to $1,000 ; that said indebtedness was surrendered up by said Swift, and canceled by the Fund Commissioners, as required bylaw, and the bond set out in plaintiff’s complaint duly issued in lieu thereof. 2.

<p>Appeal from the Twelfth District.</p> <p>The facts sufficiently appear in the opinion of the Court. Plaintiff had judgment below; defendants appeal.</p>

In addition to the facts stated in the opinion, these are added: 1st, the bill in the present suit avers, among other things, that the decree in the partition suit brought by Lawrence was based entirely upon the admissions and confessions of the infants, made by their guardians ad litem in their answer therein, and that there was no evidence adduced; and as this case comes up on demurrer to the complaint, the averment must be taken as true.

The material facts are stated in the opinion of the Court. A few are added as throwing some additional light upon the case. Chater arrived in San Francisco, May, 1856; commenced erecting the sugar refinery in July following; and commenced putting in the machinery about August or September, 1856.

This is an ordinary action of ejectment for the recovery of the possession of the Rancho lying in Santa Clara county, granted under the name of Pastoria de las Borregas. The plaintifFs allege that they are seized in fee of the premises, and are entitled to the possession of the same.

<p>On trial for murder, it was shown, that defendant’s wife had an interview with him on the afternoon of the day after the killing, at the house of L., just before the wife came to the house of H., and about an hour before defendant was arrested; that defendant, at that interview, gave his wife two twenty dollar gold pieces, and that they were alone for half an hour. H. was called as a witness for the prosecution, and said defendant’s wife came directly from L.’s house to the house of witness; “ she showed me a hundred dollars.” The witness was then about to state what the wife said when she exhibited the hundred dollars. Defendant objected. Overruled, and witness said: “ The defendant’s wife told me that the defendant gave her the money at L.’s house, and asked me to take care of it for her,” which witness declined. The witness then stated that the wife huried the money for three or four days, and then dug it up, when she and the wife examined the five twenty dollar gold pieces and found blood on two of them; Held, that though it was perhaps competent to prove by the witness, H., that the wife was in possession of the money, its appearance, and what she did with it, yet that the declarations of the wife that her husband had given her the money were inadmissible.</p> <p>Such declarations, if made by a third person, would be mere hearsay, and there is no difference in principle between the wife’s declaration and that of any one else.</p> <p>The rule, as sometimes held, that the declarations of a party at the time of doing an act which is legal evidence are admissible as parts of the res gestee, cannot be so applied as to admit, as against third persons, declarations of a past fact having the effect of criminating such third persons.</p>

Bill to set aside certain judgments by confession in favor of Davis, Galland and Goldman and against Harris & Morris, on the ground of fraud as against plaintiffs and other creditors.

<p>Appeal from the Twelfth District.</p> <p>Suit for wages. On the thirteenth of September, 1859, defendant and one Collins entered into a written contract, by which defendant agreed to employ Collins as steward on the steamer “ Dashaway,” in which defendant was interested, and which was about to be put on the route between San Francisco and Sacramento, from October 1st, 1859, to October 1st, 1860, at the wages of one hundred dollars per month, payable monthly. Collins was ready to enter upon his duties according to the contract on the first of October, but the “ Dashaway ” was then and for some time after undergoing repairs, and in consequence, Collins did not commence work until November 14th”, 1859—but between those dates and until April 1st, 1860, the parties understood the contract to be in force, and after April plaintiff does not seek to recover. Collins worked as steward on the boat, under the contract, until January 16th, 1860, when the boat was laid up by defendant in pursuance of a contract made by him with other parties, and lay idle until April 1st, 1860, and thereafter. During this interval, defendant neither notified Collins that he, defendant, should employ him no longer, nor in any manner discharged him from the contract, but on the contrary, spoke of 'and recognized Collins as his employé under the contract, and Collins was at all times ready to perform his duties thereunder. Defendant never paid Collins anything on the contract; and on the fourth of April, 1860, he assigned it to plaintiff, of which defendant had notice on the fifteenth of'May, 1860.</p> <p>The answer, among other defenses, plead as an offset a note of Collins for one hundred dollars, of which defendant became owner on the seventeenth of April, 1860, and claimed that Collins only worked on the boat from November 14th, 1859, until January 16th following. Judgment below for plaintiff for six hundred dollars—the wages from October to April—with interest from commencement of suit, less the amount of the note plead in offset.</p> <p>Defendant appeals.</p>

<p>Under the seventy-fourth and seventy-fifth sections of the Revenue Act of 1861, (Stat. 442, 443) Wells, Fargo & Co., as common carriers of gold dust, are compelled to pay the license tax fixed by those sections on each of their branch establishments in the different counties of the State, as well as upon the principal house in San Francisco.</p>

Ejectment for a tract of land forming a portion of the Rancho Refugio in Santa Cruz county. The complaint averred title in plaintiff and ouster by defendants in January, 1860.

<p>Wiiebb a complaint in ejectment described the land thus: “All that certain tract or parcel of land situated in Napa county, consisting of a preemption claim of one hundred and sixty acres of land, commonly known as the Soda Springs, and embracing said Springs and the improvements thereto belonging, and being about five miles from Napa city, in a northerly direction:” Held, that the description is sufficient to support a judgment for plaintiff.</p> <p>Section fifty-eight of the Practice Act, that “in an action for the recovery of real property, such property shall be described, with its metes and bounds, in the complaint,” is directory only, for a failure to comply with which the complaint is liable to a special demurrer; but if the complaint describes the premises sufficiently otherwise to identify them according to the general rules on this subject, the plaintiff may, after verdict, take judgment, and the Court cannot set it aside on motion of defendant, on account of this defect of pleading.</p> <p>In this case, the Court below having set aside the verdict and judgment because the premises were not described “ by metes and bounds,” the Supreme Court reversed the order and directed judgment to be entered on the verdict for plaintiff.</p>

Bill to cancel two deeds—the one made by plaintiff on the twenty-eighth of July, 1858, to defendant Stapleford, the other made by Stapleford on the eighth of September, 1858, to defendant Willis—on the ground of fraud and duress. Prior to the twenty-eighth day of July, 1858, the plaintiff was the owner of certain real estate in the counties of San Bernardino and Tulare.

This is an action of ejectment to recover the possession of a fifty vara lot, No. 1353, situated in the city of San Francisco, on Turk street, between Hyde and Larkin streets. The complaint alleges possession of the lot by plaintiffs on the first day of August, 1860, and ouster by defendant, on the same day without any averment of title. The answer denies specifically the allegations of the complaint.

Action to recover the value of certain horses, harness and a stage coach alleged to have been illegally taken from plaintiff by defendants. The defense was a seizure on the twentieth of December, 1860, and subsequent sale of the property by defendant Marshall, as Sheriff, on attachment and execution in the suits of defendant Ebner and one Milburn against George Engles & Co., a firm composed of George Engles and Wm. Hamilton.

Bill against Richardson, Throckmorton, Moss, Hood, Davidson, Young, executor of Walkinshaw deceased, and Torres, executor, etc., to foreclose certain mortgages. All the defendants, except Moss and Throckmorton, claim an interest under subsequent mortgages. Moss claims under a prior mortgage to James Black, and Throckmorton claims as purchaser under an order of sale by deed from the Sheriff, under a foreclosure of a prior mortgage to'Myers and Bennett.

Suit brought Oct. 18th, 1859, to enjoin defendants from removing a brick building erected on a lot within the Government Reserve in San Francisco.

Suit brought June, 1860, to recover of defendant, as late County Treasurer of Butte, and his sureties, $1,910.05 for commissions alleged to have been illegally retained by him during his term of office from October, 1855, to October, 1857. The complaint avers, that of this sum seven hundred and fifty-nine dollars and seventy-nine cents belong to the State, and the balance to Butte county.

Forcible entry and detainer for three hundred acres of land. The answer justifies the entry under an execution or writ of possession issued out of the Circuit Court of the United States for the District of California, in an action wherein one Clement Boyreau was plaintiff, and Robert Campbell, James Kennedy—plaintiff here—and others, were defendants.

<p>Where a will is contested, and the Probate Court frames issues and sends them to the District Court, where the issues are tried by a jury, and the verdict is certified back to the Probate Court: Held, that the Probate Court has the power, under the thirty-fifth section of the Estate Act, to tax the costs accruing in the District Court to the unsuccessful party; but that the bill of such costs must be filed in the Probate Court within the statutory time after the verdict was certified to that Court, and that the failure so to file the bill of costs operated as a waiver thereof, and that Court had no power to render judgment therefor.</p> <p>The Practice Act applies to such cases.</p>

<p>Appeal from the Tenth District.</p> <p>Suit to enjoin the collection of a tax. The case was made upon an agreed statement of facts, which were: 1st, that the charter of the city of Marysville contained the clause quoted in the opinion of this Court, and to be found in the Act of March 3d, 1857 (Stat. 1857, 40, Art. Ill, sec. 7, subd. 21) ; that an ordinance was passed March, 1857, granting the right to construct a bridge, in pursuance of the statute, to Eaton & Smith—the franchise to last twenty-five years, they to pay the city five per cent, of the gross tolls, and at the end of the term the bridge and franchise to revert to the city; 3d, that Eaton & Smith constructed the bridge, and complied with the ordinance ; 4th, that plaintiff has succeeded to all the rights of the grantees in the bridge, etc., and has regularly paid to the city the five per cent, of the tolls; 5th, that the city authorities of Marysville have assessed plaintiff in the sum of one hundred and forty-three dollars and thirty cents, for city taxes for the year 1859, upon said bridge, and are about enforcing the collection of the same.</p> <p>Upon these facts, the question was submitted, whether plaintiff had a taxable interest in the bridge. If he had not, then a decree was to be entered perpetually enjoining defendants from collecting the tax and from hereafter assessing such tax. But if the Court considered the bridge subject i;o taxation by the city, then judgment was to be entered for defendants, and against plaintiff for one hundred and forty-three dollars and thirty cents—the amount of the tax.</p> <p>The Court below held that riaintiff had no such property in the premises as was taxable by the city, and rendered judgment perpetually enjoining the collection of the tax, and also prohibiting any future assessment. Defendants appeal.</p>

Suit for the price of two calves sold by plaintiff to defendant. The answer set up as a defense : 1st, that there was no delivery of the calves; 2d, that there' had been no payment of any part of the purchase money; 3d, that the sale was not evidenced by any writing ; 4th, that after the sale and before delivery, the calves had died in plaintiff’s possession. Plaintiff advertised a public sale of cattle on his farm on the first of September, 1859.

<p>Appeal from the Seventh District.</p> <p>Ejectment for one hundred and thirty-five acres of land in Contra Costa county.</p> <p>The land in controversy is part of a larger tract granted in the year 1834 to Juan Sanchez de Pacheco, called the Rancho San Miguel. The grantee, Juana Sanchez de Pacheco, died in the county of Santa Clara, in the year 1853. Frank Lightston and Joaquin Y. Castro were named as executors in her will. The will was proved and admitted to probate on the twenty-sixth day of September, 1853, and Lightston and, Castro were appointed executors and qualified as such. On the twenty-fourth day of November, 1856, Lightston, one of the executors, petitioned the Probate Court for an order to sell the land to pay debts and costs. The petition avers that there is due from the estate $1,000 to Robert Allen, and $8,713 to petitioner for money advanced for expenses and commissions as executor; that there are no funds belonging to the estate in the hands of the executor, and no personal property remaining unsold; that the whole of the real estate of the deceased consists of a tract of land in Contra Costa county known as the Rancho San Miguel, containing about 11,000 acres, the value of which petitioner cannot state, and which is demised to her heirs jointly—the names of the devisees being then given, with an averment that their ages are unknown to petitioner. Prayer for a sale of a described portion of the Rancho to pay the debts named above.</p> <p>This petition was filed Nov. 24th, 1856, and on the same day, whether at precisely the same time does not appear, an account of the personal estate was also filed; but the account was on a separate piece of paper and not annexed to the petition, nor referred to in it.</p> <p>The hearing of the petition was set for January 12th, 1857, and notice served on the heirs and devisees. On that day the executor filed an amended petition, stating the condition of the real property of the estate, its value, and also the ages of the devisees, and the hearing was continued until the twenty-fourth of that month; and so on several times until March, when an order of sale was made.-</p> <p>On the trial, after proving by stipulation title to the land in the estate named, with other formal matters, and possession in defendant, claiming title to one-ninth of the Rancho by deed dated Oct. 1st, 1858, from one of the heirs of Juana Sanchez, plaintiff offered in evidence a copy of the foregoing petition and account, of the order of the Probate Court setting a time for hearing the petition, proof of service on the heirs, a copy of the order of the Court directing a sale as prayed for, copy of a decree confirming the sale which was made and the deed from the executor Lightston to plaintiff, as also a deed of confirmation from the other executor, Castro. Defendant objected to the petition on the ground, among others, that it did not comply with the statute, and therefore gave the Probate Court no jurisdiction to order a sale. Plaintiff then rested and defendant moved for a nonsuit, which was granted.</p> <p>Plaintiff appeals.</p>

Complaint filed by the Attorney General to compel defendant to remove certain buildings owned by him, and claimed by plaintiff to be situated on and across East street, in the city of San Francisco, and to leave said street open as a public street.

Application to the Supreme Court for mandamus to compel the Judge of the Sixth District to reinstate plaintiff as attorney of record in the case of the People, etc., v. Claude, pending therein. Plaintiff was elected and qualified as District Attorney for the city and county of Sacramento in the fall of 1859.

<p>An indictment for altering the brand of a horse with intent to steal it, and charging the property as that of an estafe, is bad. The indictment should charge the animal to belong to a particular individual, or that the owner of the animal is unknown.</p>

<p>Appeal from the Third District.</p> <p>Indictment for murder. The facts as to the first assignment of error considered in the opinion are, as testified to by the Under Sheriff who had charge of the jury, that after the jury had retired, he conducted three of their number, at their request, to a privy just around the corner of the Court House; that no other person was there at the time, and that the jurors, from the time they left the room till their return, had “ no communication by writing or otherwise among themselves or with any other personthat the other jurors were left in the jury-room, the door of which he, the Under Sheriff, locked, and the key of which he kept during the absence of the three—the room being left in the charge of a Deputy Sheriff who had also been sworn to take charge of the jury; and that the absence of the jury was for about two minutes.</p> <p>The facts as to the second and third assignments are, that upon application of counsel for the prosecution, and at the request of the jury, the counsel for defendant not objecting, the jury were permitted by the Court “ to repair in a body under the charge of the Sheriff to the front of the Court-room, for the purpose of examining; a 'buggy ’ in the possession of Michael O’Grady, a witness upon, the stand—the 'buggy ’ to be pointed out to the jury by the witness— alleged to be the same used by Bonney (defendant) and Hirsch (deceased) on the thirteenth day of January 1861— the date of the alleged killingand that upon application of counsel for the prisoner—counsel for the people not objecting— the jury were permitted to go in a body under charge of the Sher— iff, to the place where the crime was alleged to have been committed—some six miles from the Court House—and to examine it and the localities in the neighborhood thereof, to be pointed out by two persons named Walker and Grant.</p> <p>The prisoner does not seem to have been present on either occasion. The bill of exceptions does not state whether he was present or absent; but an affidavit of one of the defendant’s counsel, on motion for new trial, avers that defendant was not present. The mode of conducting the jury to the scene of the alleged' murder, as appears from an affidavit by the Sheriff on said motion, was this: the Sheriff procured a wagon and three buggies and put six jurors in the former and two in each of the latter, and then proceeded with the jury to the spot; the time consumed being about three hours, and the jury not speaking to any outside person.</p> <p>The facts as to the fourth assignment are, that after the written charge of the Court, the jury retired and subsequently came into Court, and upon being asked if they had agreed on a verdict, the foreman replied “ Yes,” and handed a paper to the Court. The paper read: “ We, the jury, find the prisoner guilty as charged in the bill of indictment,” whereupon the Court verbally stated to the jury as follows : “ Your verdict is not in proper form. You must retire and designate by your verdict in which degree you find the prisoner guilty.” Whereupon the jury again retired, but while they were in the act of retiring, defendant’s counsel stated that they objected to the jury retiring, because their verdict as handed to the Court was not read, nor were the contents thereof made known to the counsel or the prisoner—both being present. Objection overruled, defendant excepting. The jury then returned with a verdict: “We find the defendant guilty of murder in the first degree, as charged in the indictment.” Defendant’s counsel objected to its being recorded, on the ground that it was a nullity,for the reason that the first verdict had not been declared or exhibited to the prisoner or his counsel. Overruled and exceptions.</p> <p>The second contains no statement of the facts, nor of the evidence. The facts, therefore, as to the sixth assignment considered in the opinion must be gathered from the written instructions of the Court, and although the charge is lengthy, it is inserted in full for the reason that the case depended on circumstantial evidence, in reviewing which the Judge uses expressions which the counsel for the prisoner claims to be utterly illegal, and to come within the rules laid down in the cases of The People v. Williams, (17 Cal. 142) and The People v. Ybarra (Id. 166). The Court charged the jury as follows:</p> <p>“ For ten days you have listened to the testimony of the numerous witnesses examined, and the arguments of counsel engaged in this extraordinary case.</p> <p>“ Edward W. Bonney, the prisoner, is charged with the murder of Auguste Gr. Hirsch, on Sunday, the thirteenth of January last, in this county. His guilt or innocence of that crime is the great question which you have been sworn to try according to the evidence.</p> <p>“ Murder is the unlawful killing of a human being with malice aforethought, express or implied.</p> <p>“ Malice aforethought express means, in law, simply a premeditated and settled intention to take the life of a human being.</p> <p>“ Malice aforethought implied is such as is presumed by law from the act of killing, and the weapon or means with which the killing was committed.</p> <p>“ If the prisoner killed the deceased, the law presumes from that fact alone that he did it maliciously or intentionally, unless the circumstances of the killing show some justification or excuse. If no justification or excuse appear from the circumstances, then the prisoner must prove the existence of such circumstances as will mitigate or justify, or excuse the killing.</p> <p>“ Malice is presumed by law from the unnecessary use of a deadly weapon, and from circumstances of the barbarity and cruelty attending the killing.</p> <p>“ The law presumes that what a man does he intended to do, as well as all the immediate and necessary consequences of his act.</p> <p>“ Murder is of two degrees. Murder of the first degree includes all murders perpetrated by means of poison, or lying in wait, or torture, or by any other kind of willful, deliberate and premeditated killing. Murder of the second degree is the unlawful killing of a human being with an intention to do bodily harm, or in a sudden rencounter, or impulse of passion, disconnected with any previous willful and deliberate intention to kill.</p> <p>“■ But every act which apparently must do harm, and which is done barbarously and with a deadly weapon, and without provocar tion, and of which death is the consequence, is murder in the first degree.</p> <p>“ Now it is contended by the prosecution, that a body was found on Monday morning, the fourteénth of January last, near San Antonio, in this county, and that this body was the body of Auguste G. Hirsch; that he was murdered the evening previous on the spot where his body was found, and that the prisoner is the party who murdered him. You perceive, therefore, that you are required to inquire into and decide the following questions.</p> <p>“ Was there a body found near San Antonio, in this county, on the morning of the fourteenth of January last ? Was it the body of Auguste G. Hirsch, deceased? Was his death the result of accident or suicide, or the felonious act of another ? If his death was occasioned by the felonious violence of another, is the prisoner at the bar the guilty party ?</p> <p>“ No witness saw the deceased die; no one witnessed the felonious violence which may have caused his death. No one swears directly that he saw the prisoner inflict the fatal blow which resulted in his death.</p> <p>“ The guilt of the prisoner, therefore, rests upon what is known as circumstantial evidence. Evidence of this kind may be defined to be all the facts and circumstances which surround the killing of a human being, and point out with reasonable certainty the person who is guilty. When these facts and circumstances point all one way, and to one person, and to the exclusion of every other hypothesis, such evidence, in the very nature of things, is as conclusive of the question of guilt as the testimony of witnesses who swear directly to it; and, indeed, in criminal cases, it is frequently the only kind of evidence by which crime is detected and criminals convicted— for those who perpetrate crime, murder especially, shun the presence of men and plan to do it in secret, so as to avoid observation and escape detection.</p> <p>“ There is nothing mysterious in the application of the rules of circumstantial evidence. From all the facts and circumstances attending the killing of the deceased which are known and proved by the testimony of the witnesses, you are to find the fact that the deceased was murdered, and that the prisoner is the party who committed the murder.</p> <p>“ The conclusion that the prisoner is the person who committed the murder, from all the facts and circumstances surrounding the killing, is the result of a process of reasoning which men exercise in almost every department of society and in the practical affairs of life and experience.</p> <p>“ In almost all cases of direct testimony jurors are called upon to act upon its principles ; for when witnesses swear that they saw a person shoot another with a deadly weapon, and that the person shot fell and died, they do not, nor can they swear that they saw the powder and ball which was forced through the iron tube into the body of the victim. But jurors, from the fact that he was shot with a deadly weapon and died from the effects of that shot, infer that there was powder and ball in the weapon ; hence, had there not been, it would have been contrary to human experience that the man could have been shot and killed ; and such is the process by which you are in this case to decide the guilt of the prisoner.</p> <p>“ The effect of circumstantial and direct evidence is the same ; i. e., each results in establishing that which is the great unknown fact in controversy. In the one case, this fact is proved by the direct testimony of credible witnesses. In the other, it is the natural and irresistible conclusion from the known facts and circumstances which are proved in the case.</p> <p>“ Row', in this case a great number of witnesses have been examined, and testify to their knowledge of the relations existing between the prisoner and the deceased, of all that they observed happening between them in this county on the fatal day when it is alleged the deceased was murdered, the place where and the circumstances under which the body was found, and the statements or declarations of the prisoner, after the finding of the body, in relation to his connection with the deceased on the day when he parted with him in Oakland or San Antonio. You are the final judges of the credibility-of these witnesses, and the weight to which the testimony of each is entitled. In considering these matters, you are to decide them, as all other questions in the case, not according to your own private suspicions or notions, but as jurors, within the range of the evidence of the case, according to your best knowledge and observation in the light of experience and the laws of human knowledge.</p> <p>“ If a witness has sworn falsely to a fact about which he cannot be presumed liable to be mistaken, you should reject his testimony; but a witness is liable to a mistake and the imperfections of human nature as other men, and may make an untrue statement in giving his testimony; but because he does so, it does not follow that you should reject the whole of his testimony; discrepancies arise in all human testimony, for all men have not the same powers of attention, observation, recollection and expression.</p> <p>“ It is for you to look at the motives, character and demeanor of each witness, and decide for yourselves what part of it is the result of a mistake, and how much of it is consistent with the known and indisputable facts in the case. The testimony of each witness, which is corroborated by these facts and circumstances, is entitled to its due weight; but if it is not so corroborated, and is inconsistent with them, and self-contradictory and improbable, you can disregard it; and so it is in relation to the voluntary statements made by the prisoner about the deceased and his connection with him, and in accounting for the circumstances pointing to himself in connection with him.</p> <p>“A man’s declarations are always admitted in evidence against himself; for the reason, that the law presumes a man will not say anything untrue against himself or his own interests.</p> <p>“ In considering them you are to take them all together, as well those for him as against him; but every part of his statement or declarations is not always entitled to equal weight. You may, unquestionably, on this, as on all other testimony, believe one part and disregard that which you consider unworthy of belief.</p> <p>“ If his declarations are self-contradictory and inconsistent with the facts and circumstances as they exist, are improbable and unnatural, you can take this fact into consideration in making up your verdict.</p> <p>“ Guided by these rules, it is your duty, within the range of all the evidence in the case, to determine what facts are established by the evidence, and whether they prove to your satisfaction, beyond a reasonable doubt, that the prisoner is guilty of the crime with which he is charged; for, as I have before said, if you find as a fact that the deceased was murdered, the guilt of the prisoner is the great fact for your consideration, from all the facts and circumstances proved in connection with his murder.</p> <p>“ That question is not to be decided by you by any one or any number of the facts and circumstances proved, separated from the remainder; but after determining what have been proved, you should collect them all together, and in this collected state, all should be consistent and complete in themselves, and prove to a reasonable certainty that the prisoner, and no other person, perpetrated the crime.</p> <p>“ All the facts and circumstances in a case of this kind, collected and connected together, are compared in law to a chain, formed by its links connecting one with the other. You cannot separate any one of them from the other for the purpose of examining and weighing its force apart from the rest, but you must pass upon them all collectively; and if you find one end of that chain connected with the murder of the deceased, and the other with the prisoner at the bar—in other words, if you believe from the evidence that the deceased was murdered, and that the prisoner murdered him, the case is fully made out, and it is your duty to convict. But if any one of them is inconsistent with the hypothesis of his guilt, the chain of circumstantial evidence is said to be broken, and the charge fails. You are then to determine :</p> <p>“ 1st. What facts and circumstances are clearly, distinctly and indisputably proved by the evidence in the case ?</p> <p>“ 2d. Do these facts and circumstances prove that the deceased was murdered ?</p> <p>“ 3d. Do they prove to a moral certainty that the prisoner is the person who murdered him, or are they consistent with any other rational supposition ?</p> <p>“ The hypothesis of the prisoner is, that two Frenchmen, who, it is alleged by him, were in company with the deceased when he last saw them, near San Antonio, on the Sunday of the murder, may have murdered the deceased.</p> <p>“ Does that hypothesis account for the facts and circumstances proved by the evidence in this case, judged by the light of reason and the laws of nature—if so, to what extent ?</p> <p>“ If it accounts for them with greater reason than the hypothesis of his guilt, or with reason equal to that of his guilt, of course you ought to acquit; or if the hypothesis of his innocence is provable against only a greater probability on the side of his guilt, you should acquit.</p> <p>“ But if this hypothesis does not account for the facts and circumstances, and is inconsistent with them, or the great mass of them, or with those of a leading character, and you believe from the evidence that the facts and circumstances surrounding the murder of deceased exclude that hypothesis, and every other than the guilt of the prisoner, you have no other alternative than to convict.</p> <p>“ In connection with the hypothesis put forward by the prisoner, and the question of his own guilt, it will be your duty to inquire from all the evidence in the case:</p> <p>“ 1st. Whether the prisoner and the deceased came from San Francisco on Sunday morning, the thirteenth of January last, across the bay in the ferry-boat to Oakland, in this county ? Did the prisoner on that morning hire a horse and buggy from the livery stable of O’Grady, in Oakland—if so, for how long ? Did the prisoner and the deceased drive with that horse and buggy from the stable out on the San Pablo road and back again to the plaza in Oakland ? Did the deceased stop with that horse and buggy at the plaza while the prisoner went to make some purchases of cakes or wine, or both ? Did two Frenchmen approach the deceased in the buggy during the absence of the prisoner, and did the prisoner upon his return to the buggy at the plaza find two Frenchmen there in conversation with the deceased—if so, in what language did they converse, and could the prisoner understand the language ?</p> <p>“ 2d. Who there and then got into that buggy, and remained in it, or with it, during the whole of that Sunday, until it was returned in the evening to the stable of O’Grady? Was it the prisoner and the deceased and the two Frenchmen who got into the buggy there, and was one of the Frenchmen tied in and to the buggy with the neck ties of prisoner and the Frenchman ? Did they all four in it drive from the plaza in Oakland, or out on the San Pablo road any distance, and turn and drive back to Oakland, across the Oakland bridge, and on to the brow of the hill descending to San Antonio ? If so, did the deceased and the two Frenchmen get out of the buggy at that place; and did they part from the prisoner at that place; and did the prisoner take the horse and buggy and drive towards Oakland ? If so, at which time ? Was that time of day the last time the prisoner and deceased were together on that Sunday ? Did the prisoner, after parting from the deceased and two Frenchmen, drive towards Oakland bridge, miss the key of deceased’s store, return and drive to San Antonio in search of deceased, and fail to find him, and drive back towards Oakland and get lost, and fail to get back to the livery stable, until the hour in the evening at which he returned to it alone ?</p> <p>“ 3d. Or did the prisoner and the deceased alone get into the buggy at the plaza in Oakland, after the prisoner had made his purchases, and drive out with the horse and buggy for the second time that day ? Were they seen, during that second drive, on the San Pablo road ? If so, did they drive together with that horse and buggy back again on the San Pablo road to Oakland, and over the Oakland bridge towards San Antonio ? Were they seen driving over the Oakland bridge towards San Antonio, and instead of going to San Antonio, did he return towards the Oakland bridge, and instead of going over the bridge, did the prisoner with the deceased turn and drive towards the residence of Mr. Grant ? Did the prisoner stop with that horse and buggy at the corner of Mr. Grant’s fence ? and was the deceased in it at the time ? If so, at what time of the day, and how long did they remain there with the horse and buggy, and what was the condition of the deceased? Was he helpless, or stupefied from any cause, by the agency of the prisoner, and what was the conduct of the prisoner in that buggy on that occasion ? Did .the prisoner, while there, or at any other time, take his own neck tie and the neck tie of the deceased, and with them bind the deceased in the buggy for any purpose ? Did the prisoner, upon the approach of a woman towards the horse and buggy, drive away from that place with the deceased bound, and in a stupefied condition, around some vacant lots of the town of Clinton, and into the main road towards San Antonio ? Was the prisoner seen driving towards and through the town of San Antonio with the deceased in that condition ? Was he seen afterwards with the same horse and buggy, and the deceased in a stupefied condition in it, driving out on the old San José road, past the house of Mitchell and in towards Eden Valley ?</p> <p>“ Did he return, and drive back along the same road to the place where the body of the deceased was found on the next morning ? Were the horse and buggy, the prisoner and the deceased at that spot on that fatal evening ? Did the prisoner there and then take the deceased from the buggy, place him upon the ground where his body was found, and feloniously inflict upon him the wounds which caused his death ? If so, was the prisoner seen passing along the road through San Antonio immediately afterwards alone with the same horse and buggy, and on towards and through Oakland to the stable of O’Grady, and at what hour did he arrive ?</p> <p>“ If, after making these inquiries, by the light of all the evidence in the case, and satisfying yourselves of all the facts and circumstances proved by it, you believe that the hypothesis of the two Frenchmen is false, and fabricated to conceal the guilt of the prisoner, and if you believe that all the facts and circumstances are consistent with the supposition that the prisoner is guilty, and that the prisoner can offer no resistance to that, except that no man would be guilty of so atrocious a crime as that with which he is charged, that cannot much influence your minds, for we all know that crimes are committed, and therefore the existence of the crime is no inconsistency with the other circumstances, if those circumstances lead to that result.</p> <p>“ The point for you to consider is, whether, attending to all the evidence, you can reconcile the circumstances adduced in the evidence with any other supposition than that he has been guilty of the offense.</p> <p>“ If you cannot, it is your bounden duty to find him guilty. If you can, you will give him the benefit of such doubt. All that can be required is, not absolute proof, but such proof as convinces you that the crime has been made out.</p> <p>“ The law presumes every man innocent until there is proof of his guilt, and if from the evidence there arise a reasonable doubt of it, he is entitled to the benefit of it; but this doubt is not such an one as arises from inattention to facts, from undue sympathy, or sensibility from trivial or fanciful suppositions, or remote conjectures as to facts being so and so. Ho juror has a right to look beyond his own duty at the consequences of his verdict. To do so, is a virtual violation of his oath, and an offense against society, tending to the disparagement of Justice and the encouragement of crime.</p> <p>“ If you find the prisoner guilty, you will designate by your verdict in which one of the degrees.</p> <p>“ If you find him not guilty, you will simply say so.”</p> <p>Verdict of guilty. Defendant appeals.</p>

<p>Where, to an action of ejectment, several defenses are set up, some legal and. some equitable, it is error for the Court to frame special issues involving these various defenses—legal and equitable—and submit them all together to the jm-T-</p> <p>A jury need not be called to pass upon an equitable defense to an action of ejectment. The parties are entitled to a jury upon the legal issues; but as to the equitable defenses the Court sits as a Chancellor, and may or may not, according to its discretion, order issues to a jury.</p> <p>Arguello v. Edinger, (10 Cal. 159) that where a defense arising from a verbal contract for the sale of the land, accompanied with acts of part performance, is set up to an action of ejectment, the Court must first pass upon this defense, and if, on hearing the evidence, the Court determines the defense to be good, it should enjoin the further prosecution of the action with its decree for a specific performance; and on the other hand, if the Court refuse the relief claimed by defendant, it should call a jury to determine the issue upon the general denial, affirmed.</p> <p>Where plaintiff in ejectment relies on a Mexican grant, confirmation and patent, and there is no dispute as to the land being within the limits of the patent, a title arising subsequently to the grant upon which the patent issued constitutes no defense, and the j ury have only to pass upon the question of damages so far as the legal issues in the case are concerned.</p> <p>The following verbal agreement for the sale and purchase of land was made between W., claiming the land under a Mexican grant, and M., who was in possession. W. was to choose one referee and M. another, the two to choose a third, they to appraise the value of the land, which M. was to pay W. upon the confirmation of the grant by the U. S. Land Commissioners. The grant was confirmed in 1855, and no offer was made by M. until 1861—when W. brought ejectment for the land—to comply with the terms of the agreement: Held, that under the agreement it was the duty of M., within a reasonable time after the confirmation of the grant by the U. S. Land Commissioners, to notify W. that he was ready to execute the agreement and to appoint the referees; and that his failure to do this for five or six years was fatal to his claim for specific performance.</p> <p>Held, further, that it was not the duty of W. to notify M. of the confirmation ; that the Board of U. S. Land Commissioners being a public tribunal, whose proceedings were open and notorious, and affecting whole communities, and M. being personally interested in the decision upon this grant, the fact of confirmation was not peculiarly within the knowledge of W., and that hence the case is not within the rule requiring notice from the party having peculiar information.</p> <p>Held, further, that the fact that payment for the land was to be made according to the value at the time of the appraisement, and that therefore the delay in executing the agreement was not injurious to W., is insufficient to take the case out of the rule refusing specific performance where there has been unreasonable delay.</p> <p>The party insisting on specific performance must show himself “ eager, prompt, ready and desirous to perform the contract on his part.” He must show that he has “used due diligence; or if not, that his negligence arose from some just cause, or has been acquiesced in. It is not necessary for the party resisting performance to show any particular injury or inconvenience; it is sufficient if he has not acquiesced in the negligenee of the other party.”</p> <p>$for does possession by the party seeking performance make the rule different.</p> <p>Oreen v. Covillaud (10 Cal. 327) as to the rule in decreeing specific performance, affirmed.</p> <p>Doubtful in this case whether the contract was not that the money was to be paid only when it was ascertained that this particular land was embraced within the grant confirmed by the proper authorities, and that this could not be known until an approved survey of the premises.</p> <p>Where a verbal contract for the sale and purchase of land rests not upon proof of any payment of purchase money, but upon proof of the contract and possession by the party purchasing and improvements made by him, it must clearly appear that the improvements were made with reference to, or were induced by the contract.</p> <p>The true rule is laid down in Arguello v. Edinger, (10 Cal. 160) that nothing can be regarded as a part performance to take the case out of the operation of the statute which does not place the party in a situation which is a fraud upon him unless the contract be executed.</p> <p>The question whether the agreement in this case, for the selection of referees to fix the value of the property, be an agreement capable of specific performance, not decided.</p> <p>The question whether, if the agreement in this case were proved as alleged, and the possession of the defendant M. were permitted by the plaintiff W. to await the contingency contemplated, to wit: the confirmation, the plaintiff could maintain ejectment without notice to defendant, not decided.</p>

<p>Appeal from the Fifteenth District.</p> <p>The case demands no further statement of facts than appears from the opinion and the syllabus. Defendant appeals.</p>

Bill to set aside a decree for fraud. Mariano Castro was the owner and in possession of the “ Solis Rancho,” situate in Santa Clara county. A negotiation for the sale and purchase of the land was had in November, 1845, between Mariano Castro and the defendant, Julius Martin. The price was fixed, but the trade was disturbed by a protest of Galen Castro, the brother of Mariano, who came in and claimed to be the owner of the land.

The complaint alleges in substance, that the defendant, on the fifteenth of January, 1857, executed his promissory note in the words and figures following, to wit: “$618.50. For value received, I promise to pay to Samuel Ferrio, or bearer, the sum of six hundred and eighteen dollars and fifty cents, three months from date, with interest at two per cent, per month until paid. Sacramento city, January 15th, 1857.

Suit upon four warrants drawn by the Auditor of San Francisco county upon the Treasurer thereof.

Replevin for a horse levied on by the defendant as Tax Collector of Mariposa county to enforce the collection of the foreign miners license of four dollars per month under the Revenue Act of 1860 ; plaintiff, who is a Chinaman, but a bona fide resident of the State, having'refused to pay such license. Judgment for plaintiff. Defendant appeals.

Suit for specific performance of a verbal contract for the sale of land, made between one Cooper, of whose estate plaintiff is administrator, and defendant.

Suit to recover moneys alleged to be due the State for the percentage on sales of personal property by auctioneers, under the Revenue Act of 1857. The complaint avers an indebtedness on the part of defendant for duties accruing on sales made by him between October 1st, 1859, and the institution of suit, May 4th, 1861.

Ejectment for a lot in Redwood city, San Mateo county, forming part of the Pulgas Rancho—the complaint being filed July 11th, 1860, and plaintiff claiming under a patent of that rancho from the United States, dated October 2d, 1857. Defendants pleaded the general issue and the Statutes of Limitations of 1850,1855 and 1856—relying upon the eleventh section of the latter act.

This is an application for bail by the defendants, an indictment for the murder of one William Carroll having been found against them by the grand jury of Tuolumne county. The facts of the case are stated in the opinion of the Court.

This is an action to determine between the conflicting claims of the parties to certain lots situated in the town of Eureka, in the county of Humboldt, under the Acts of Congress and of the Legislature of the State, which are mentioned in the opinion of the Court.

<p>A suit is commenced within the Limitation Act of 1850 hy simply filing the complaint. To prevent the bar of the statute, no other proceeding is necessary.</p> <p>For all other purposes, except to prevent the bar of the statute, an action can be commenced only by filing the complaint and issuing a summons, .unless a defendant voluntarily appear and plead without summons, when he can compel plaintiff to proceed with the case.</p>

<p>Appeal from the Court of Sessions of Santa Clara.</p> <p>For facts, see opinion. Defendant appeals.</p>

December 5th, 1860, the San Francisco Water Works Company filed a petition with the Judge of the county of San Francisco, addressed to said Judge, alleging in substance that petitioners are a corporation duly organized under the laws of this State, and particularly under and in conformity to “ An Act to Provide for the Formation of Corporations for Certain Purposes,” passed April 14th, 1853, and amended by an Act of April 30th, 1855, and under an act passed April 22d, 1858,…

<p>Appeal from the County Court of Placer.</p> <p>For facts see opinion. Plaintiff appeals.</p>

<p>Under our statute, an indictment for’larceny, stating the property to belong to “Hanach, Eisner & Co.,” is sufficient, without giving the names of the members of that firm.</p>

<p>A bailee who converts the property of which he is bailee to his own use, with intent to steal the same, may be indicted under the seventy-first section of the Act of 1850, concerning Crimes and Punishments. • (Wood’s Dig. art. 1931.)</p> <p>An indictment under this section must state, with directness and certainty, the facts and circumstances necessary to constitute a complete offense, and among them, the circumstances constituting the bailment.</p> <p>Such indictment may state the fact of conversion, with intent to steal, in the language of the statute, without specifying any particulars as to the mode of conversion.</p> <p>People v. Cohen, (8 Cal. 42) so far as it holds that the term “ bailee,” in the seventy-first. section of the Act of 1850, concerning Crimes and Punishments, is used in the limited sense of a bailee “ to keep, to transfer or to deliver,” overruled.</p> <p>People v. Green (15 Cal. 512) overrules People v. Cohen, (8 Cal. 42) so far as the latter holds that an indictment under this statute, stating that the property was of the value of so many dollars, without saying “ of the coin of the United States,” is sufficient.</p>

Suit to recover damages for diverting water and for filling up plaintiff’s mill pond with saw dust, and for an injunction against future acts, etc. The facts as to the proceedings on the motion for new trial are : that plaintiff having recovered judgment April 22d, 1861, defendants on the next day served on plaintiff a notice that defendants would “ move for a new trial on statement to be filed according to law.” April 29th, 1861, a statement was filed, and on the thirtieth…

<p>Appeal from the Court of Sessions of Butte.</p> <p>For facts see opinion.</p>

<p>Appeal from the Twelfth District.</p> <p>The facts of the case appear in the opinion of the Court below, denying the application to set aside the judgment, which is as follows:</p> <p>“ When the cause was on the day calendar for trial, both parties, by their attorneys, -were in attendance at Court, waiting the termination of a case then on trial. Defendant’s attorney spoke to the counsel in the cause on trial, and was informed that the cause would occupy till the usual recess. He also spoke to the plaintiff’s attorney, and told him that he wished to leave the Court for a short time ; and was informed by the plaintiff’s attorney that the plaintiff was ready for trial, and if the defendant’s attorney left, it would be at his own risk. The defendant’s attorney then left the Court to attend to some private business of his own, first directing his son to remain in Court, and to come for him (defendant’s attorney) immediately on the close of the evidence in the case on trial. The son, at the conclusion of the evidence in the case on trial, endeavored to find the attorney, but failed to do so in time, not having gone to the place where his father instructed him he would be found. The action was tried in the absence of defendant’s attorney, and a verdict rendered for plaintiff.</p> <p>“ Defendant now appears on affidavits, which, with the counter affidavits of plaintiff, show the above facts, and a- general affidavit of merits to set aside the verdict and judgment rendered herein, and for leave to come in on a new trial.</p> <p>“ I do not think the whole affidavits show such surprise, inadvertence or excusable neglect as would justify setting aside the verdict.</p> <p>“ The Court waited some time for defendant’s attorney, and sent an officer to his office for him, but he could not be found.</p> <p>“ The case of Fowler v. Collyer (2 E. D. Smith Rep.) bears strongly on this.</p> <p>“ The motion is dismissed.”</p>

Suit upon a promissory note, made by defendants, by the assignee thereof—the defense being that the plaintiff took the note after maturity, and that defendants have offsets against it.

The findings of the Court below, with the conclusions reached, are as follows: “ In the spring of 1853, Morrow & Co. erected a dam upon ‘ Saw Mill Ravine,’ and dug a ditch, by which they appropriated and used thirty inches of the water of the ravine. This right of thirty inches has been transferred to Gregory & Co., and the point of tapping the stream has been changed one mile further up, and near the source. It is now known as the Gregory Ditch.

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

Action to recover damages for injuries to plaintiffs’ mining claims, and for a perpetual injunction. The facts are, that plaintiffs were the owners of valuable mining claims, situate in the bed of a stream called “ Shady Creek,” and had expended large amounts of money in running a cut through solid rock, and in building flumes and dams, and digging ditches for working the claims.

<p>To constitute “ habitual intemperance ” within our divorce statute, it is not necessary that the habit of drinking intoxicating liquors to excess be of such a character as to render the party at all times incapable of attending to business; but if there be a habit of drinking to excess to such a degree as to disqualify the party from attending to his business during the principal portion of the time usually devoted to business, it is habitual intemperance—although at intervals he may be in a condition to attend to his business.</p> <p>Where the wife sues for divorce on the ground of extreme cruelty, and the acts proven were frequently beating, kicking, choking, calling her by the vilest names, and the Court, after stating that differences between husband and wife incident to human nature, occasioning temporary estrangements and strifes, and sometimes accompanied by violence, are not a sufficient ground for divorce, gave the following charge: “ The acts must be persistent, and the cruelty must be so extreme in its nature that in itself it furnishes an apprehension that the continuance of the cohabitation would be attended with bodily harm to the wifeHeld, that the charge was too strong; that such acts of cruelty need not be persistent, nor become a fixed habit, before relief and safety can be had by divorce.</p>

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

Ejectment against Graham and Heppe for a lot in Sacramento. Both defendants filed demurrers, the latter on the twenty-fourth, and the former on the twenty-sixth of April, 1860. May 7th, Graham in person, in open Court, withdrew his demurrer, and stated that he had no defense, whereupon judgment was entered against him.

In May, 1859, the space formed by the junction of Battery and Market streets, San Francisco, having been previously graded, planked, etc., needed repairs, and the preliminary steps required by the Consolidation Act having been taken, the Supervisors published the usual notice for proposals, and in August, 1859, a contract was made between the Superintendent of Public Streets and plaintiff, as the lowest bidder for the work; the Superintendent of Streets approved the same,…

<p>Appeal from the Fourteenth District.</p> <p>The facts as to the question asked as to the extent of plaintiffs’ location and defendants’ objection thereto, mentioned in the last paragraph of the opinion, are as follows: The witness (Andrews) who had testified as to the defaced appearance of the notice the last time he saw it, being on the stand, was asked by plaintiffs’ counsel: “ What was the extent of the location of plaintiffs’ grantors ? ” Witness replied: “ That it extended five hundred and fifty feet up said cañón from said tree ; there was a notice on the yew-tree which claimed five hundred and fifty feet up the cañón; this notice he saw and read in 1855, at which time he was an owner and worked in the claims; that he saw the notice the last time in 1857, when it was partly torn down, and did not think it could be read; did not know what became of it, or the tree on which it was posted.” Defendants’ counsel then asked witness: “ From what source he derived his knowledge as to the extent of said location ? ” He replied : “ From his recollection of the contents of said notice, and from the fact that he had owned and worked there himself.”</p> <p>Defendants’ counsel then objected “ to the introduction of said testimony as to the extent of said location, on the ground that the loss of said notice had not been shown.”</p> <p>Objection overruled, defendants excepting.</p>

<p>Under the ninety-fifth section of the Act of 1853, concerning Courts of Justice and Judicial Officers—which provides that “If no Judge attend on the day appointed for holding the Court, before noon, the Sheriff or Clerk shall adjourn the Court until the next day at ten o’clock, and if no Judge attend on that day before noon, the Sheriff or Clerk shall adjourn the Court until the following day, and so on from day to day for one week. If no Judge attend for one week, the Sheriff or Clerk shall adjourn the Court for the term ”—the Sheriff, in the absence of a Judge, adjourned the Seventh District Court for Napa on Monday, February 3d—the commencement of the term—until the next day, and so on from day to day until Saturday, February 8th, when the Judge being still absent, the Sheriff adjourned the Court for the term : Held, that this last adjournment was a nullity; that .the intention of the statute was to prevent the term, being lost in case of the absence of the Judge during the first week; and that the Sheriff has no power to adjourn until the expiration of the week.</p> <p>Held, further, that, in this case, a judgment entered by the Court on the tenth of February is valid, notwithstanding the adjournment for the term by the Sheriff on the eighth of the month.</p>

Suit against the sureties upon an appeal bond given in the case of Wim. R. Duff v. A. K. Fisher et al. On the twenty-third day of February, 1856, A. K. Fisher held a mortgage on certain real and personal property situate in Humboldt county, and suit was then pending against the mortgagors for a foreclosure. On that day, Fisher, the mortgagee, and plaintiff entered into an agreement, under seal, with respondent Wm.

Ejectment for a lot in San Francisco, commencing at a point on the north side of Pacific street one hundred and sixty-seven and one-half feet… Held: and a resurvey of the town determined upon—people injured by any consequent removal of fences to be indemnified by the city; that Bennett as well as Smith, his neighbor, was present, and both protested against the resurvey; that the resurvey was made by O’Farrell, and lot No. 48, as fenced and located, found to be twenty-six to…

Suit on a bail bond in the following words : “ State of California, ) County of Amador. \ “ In the matter of The People of the State of California v. Gteorge Podge. “ Whereas, the above named defendant was held by Justice M. J. Little, Township No. 1, county and State aforesaid, on an examination held before him on the first day of March, A. D. 1861, to answer to the charge of grand larceny, alleged to have been committed by said defendant at said county on or about the…

Ejectment for the undivided half of a tract of land containing about four acres, and alleged in the complaint to be situate in the county of San Francisco, on the Protrero Nuevo, and known as the Hall or Hatch claim, and more recently as the Fairbanks claim.

<p>Petitioner in insolvency must deliver to the Court “ the boolcs he may have keptnot merely such books as he may own on the day of filing his petition; or his petition, in the absence of a sufficient excuse, may be dismissed. And the fact that he had sold his books a short time before filing his petition will not excuse him from such delivery. The books are essential to a complete surrender and transfer of his effects to the assignee.</p> <p>Where opposition was made to the discharge of petitioner on the ground of fraud, and the petitioner was examined before a referee, and on the coming in of his report and the cause coming on for final hearing, the opposing creditors moved to dismiss the petition because petitioner had not delivered up his books, he having sold them within a month prior to his application, and the motion was granted: Held, that, inasmuch as the omission to deliver the books had not been specified or objected to as a ground of opposition, and as no call or order had been made upon petitioner to deliver his books, his petition ought not to have been dismissed until an order had first been made that he deliver them within such time as the Court deemed reasonable.</p>

Action to recover of Wakelee §1,360.34, money had and received by him to plaintiff’s use. The complaint avers, that on the sixth of November, 1855, the defendant received from the U. S. Branch Mint, at San Francisco, the sum of §1,360.34, the property of plaintiff, and received as such by defendant to plaintiff’s use, and to be paid on request; that afterwards, on the fifteenth of March, 1860, plaintiff demanded the money of defendant, who refused to pay.

The suit in which the judgment sought to be set aside was rendered, was brought by plaintiffs, as executors of one McKenzie, deceased, against Thompson as surviving partner of the firm of McKenzie, Thompson & Co., for an account of the affairs of the firm, which Thompson was alleged to have wound up, and for a judgment for a balance claimed. Thompson being a nonresident of the State, summons was served by publication.