Volume 2 — California Reports

<p>This was an appeal from the District Court of the Fourth Judicial District.</p> <p>The respondents filed their complaint in the District Court, averring themselves owners of the American Barque Carib, — Moore, master; that on the 22d of November, 1850, said barque was properly moored in the harbour of San Francisco, in the berth assigned by the harbour master, and in accordance with the harbour regulations; and was in good condition, and well provided, &e.;—that, on said 22d day of November, the British Ship Edward, whereof the appellant Sharpe, was owner, and the appellant Boyd, was master—anchored within a cable’s length of the Carib, contrary to law and the said regulations; and on the turn of the tide, the Edward came in contact with the Carib, doing damage, &c.; that the Carib then hailed the Edward, requesting the latter to shift her moorings, and keep clear of the Carib; which the Edward might have done, but refused or neglected; that on the 27th of November, both vessels retaining the same moorings, the Edward again swung in contact with the Carib, doing damage, &c.,—(describing the injuries;)—that the collision was caused by the fault of the master and crew of the Edward, in neglecting to shift her moorings, and keep clear of the Carib, as they might and ought to have done; and that the respondents had sustained damages to the amount of $5000, which sum was then justly due, without any legal set-offs; that the appellants were non-residents, and, as the respondents were informed and believed, intended removing the Edward out of the State; and praying judgment for the damages, and costs; and for a writ of attachment against the Edward, and all other property, &e., of the appellants; and for general relief. Moore made affidavit to the truth of the complaint; and that the appellants were indebted to the respondents in the sum of $4,499 50, over and above all legal set-offs, and that the demand arose upon a contract express and implied. The respondents having filed an undertaking as required by statute, a writ of attachment was issued, and levied on the Edward, her apparel, &c. The respondents subsequently amended their complaint, averring a survey of the damages by the Port Wardens, who estimated them at §4,499 50, and a promise and refusal by the appellants to pay the damages so assessed.</p> <p>A motion to set aside the attachment was overruled. The appellants answered, first, denying the complaint generally. Second, that at the time of the collision, the Edward was properly moored in the berth to which she had been taken by the proper pilot; and that the collision was not caused by the fault of the Edward, but by the fault of the Carib, which was deserted by the master and seamen, and left in charge of the cook. Third, that after the collision, Moore, as master of the Carib, and Boyd, as master of the Edward, mutually executed arbitration bonds, submitting the matters in the complaint to the award of certain persons named, who, on the 6th of December, 1850, made and delivered their final award in writing, under their hands and seals, (but the award is not set out,) and averring a readiness, &c., to perform on the part of the appellants, and a refusal, &c., on the part of Moore.</p> <p>The cause was tried by the Court, the parties waiving a jury.</p> <p>The following testimony was adduced for plaintiffs.</p> <p>J. M. Sutton. Was Inspector of the Customs, and on board the1 Edward at the time of the collision. She was moored so near the Carib, that the vessels would come in contact when the tide shifted. The Carib was first moored in her position. The first collision occurred on Sunday, Nov. 24th; we pushed the vessel off ourselves, and no damage was done. The second collision took place on that, or the next night, about dark. The captain of the Edward, two mates, myself, the steward, and two or three sick men, were on board. The vessels swung together, the Carib’s bow riding on the Edward’s waist. The Carib was light, and the Edward heavy,—laden with coal. The captain was in the cabin with me when the accident occurred. He called the mates, and tried to clear the ship by every means. In conversing with me about the collision, the mate said he had told the captain to bring some men off to moor the ship, that she was in a bad position, and in danger of running foul of the Carib. The captain was not then present; but I have heard the mate tell him on frequent occasions, that they ought to have had more men on board. The captain said the fault was the pilot’s; and he and the mate said the pilots ought to pay the damages. Neither of them blamed the Carib, except once the captain said the Carib ought to have had more men on board. We cut away about thirty fathoms of the Edward’s cable, which we lost; and then drifted down the harbour. The Edward was moored nearer the shore than the Carib. The captain had taken most of the crew of the Edward, (who were all sick,) to the hospital, before the collision.</p> <p>Vernon Lindenberger. Was Inspector of Customs in Nov. 1850, and knew where the Carib was moored. The captain of the Carib had the port regulations; and took great pains in mooring her. She was from five to seven years old, and in good order, and well provided with anchors, &c.</p> <p>Samuel Gardner, a shipwright. Made a survey of the Carib in Nov. 1850, with Captain Hunter and Mr. Moore, the port-warden. Estimated the damages caused to the Carib by the collision, at $4,499 50, and the port-wardens reported accordingly.</p> <p>E. J. Moore. Was port-warden, and surveyed and reported the damage to the Carib, as stated by the last witness. The estimate is a liberal one. Knew Moore, the master of the Carib. Also knew the plaintiff, Griswold, but neither of the other plaintiffs. I took it for granted Griswold was the owner. He admitted a claim I had on the vessel; and Captain Moore said Gris-wold was one of the principal owners.</p> <p>William Ireland. Know the barque Carib, and the plaintiff Griswold. Don’t know any direct act of ownership by him over the barque. The plaintiff Cave is an owner; and employed me tb make repairs. Know of Griswold buying a bowsprit for the Carib, which was not used. Cave paid me for the repairs I made—about $800—and told me he and Griswold were interested in the vessel.</p> <p>The plaintiffs then offered a certified copy of the register of the Carib, to prove their ownership; to which the defendants objected, on the ground that the register itself would be no evidence of ownership; and the Court sustained the objection.</p> <p>The appellants then moved for a nonsuit, which was overruled.</p> <p>The appellants then called the witness Ireland, and examined him as to the value of the repairs of the Carib.</p> <p>Captain Eraser, sworn for the defendants. In the revenue service. One of the arbitrators to estimate the damage done the Carib. Bonds were given to abide the award. We awarded $1700; and I think the allowance a fair one. The only objection made to the award by Captain Moore, was, that it was not to be paid in cash, but to be expended in repairs. Some one on board told us that the Carib had no chain to pay out, at the time of the collision. If the jib-boom and flying jib-boom had been rigged in, they would not have been hurt by the collision.</p> <p>George W. Sands, a shipwright. Estimated the damage for the arbitrators at $1700, which is a large estimate. I expected to get the job. The repairs could have been made for $1200.</p> <p>McDonald, a pilot. Rogers was the pilot who brought in the Edward. The duty of a pilot in charge of a ship, is to command her, and anchor her, by a single anchor, where he pleases. She remains there till the harbour master changes her position. I saw where the Edward was anchored by the pilot. The rule in all cases, when a vessel is moored, is to put down two anchors, cockbill the yards, and rig in the booms. It is usual for the master, within 24 hours after arrival, to consult the harbour master, and take his orders as to position.. It is not improper for a vessel to have an anchor hanging a cockbill, though in case of collision, it might do damage. (The port regulations were then produced, and corresponded with the testimony of the witness.)</p> <p>Wm. Jones. One of the crew on board the Edward at the time of the collision. Was on deck, and saw the whole occurrence. The pilot anchored us so near the Carib that the vessels could not swing clear. We swung with the tide, and came foul of the Carib. Her jib-boom was out, and came in contact with our mizzen-mast. Had her jib-boom been in, she would ..have struck us more aft, and passed without fouling before the mizzenmast. The vessels were in contact five or six hours before we could get dear, and most of the damage was caused by their grinding one against the other. We shouted to the Carib to give chain and drop astern; but they had no hands and no chain. Had there been a crew on board the Carib, the damage would not have been so great.</p> <p>J. Naglee. One of the arbitrators, who awarded $1700 for the damages. The Carib had not sufficient chain. She should have had at least 90 fathoms. It appears she had only 65, which was all out; so that she could not pay out to avoid collision. The witness being asked, whether the captain of the Edward, on examination before the arbitrators, admitted that his ship was placed too near the Carib. The defendants objected that it was not admissible to show what the parties said before the arbitrators, and the court sustained the objection.</p> <p>Boyd, the captain of the Edward, was then called by the plaintiffs, and testified that his co-defendant was owner of the Edward. Being then examined for the defence, he testified that there was no carelessness on board the Edward; that finding.the collision pending, and no crew on board the Carib, he and some of his men went on board to veer out her chain, but could find none. Had there been hands on board the Carib, and 15 or 20 fathoms of chain to veer out, no damage would have been done. I arrived in port on Saturday; went to the harbour master on Monday, when he assigned me a berth at Rincon Point; and I engaged men to assist in moving. The collision took place that evening. We set several sails to avoid the collision by trying to stem the tide. The Carib’s yards were square, and her jib and flying jib boom rigged out.</p> <p>The Court found for the plaintiffs, and assessed the damages at $1500; and judgment was rendered accordingly.</p>

On the 5th of August, 1850, McCann filed his complaint against Beach, stating that about the 1st of April, 1850, the parties made a written contract, under seal, by which it was mutually agreed that the plaintiff should go to the town of Plumas, in the county of Yuba, and there hold himself in readiness to be elected “ chief magistrate of said town, provided the shareholders” thereof should think proper to make him such chief magistrate; in which event the plaintiff was to…

The plaintiff below filed his complaint against the appellant and John A. Sutter, upon an alleged promise to pay him $16 per copy for copying the list of shares in the town of Plermas, and averring that the plaintiff made sixty-three copies; for which the defendants had failed and refused to pay, &c. A partial payment was admitted, and a balance claimed of $880. The defendant Beach answered, denying the complaint generally.

Champlain and H. Brooks, as makers of a promissory note for $350, dated February 4, 1851, payable ninety days after date to one Williams, or order; and by him indorsed to the plaintiff, and admitting a payment of $79.

Lennard sued Yischer ■ for work and labour, stating a written agreement made May 10th, 1850, by which the defendant promised to pay the plaintiff $90 per month as long as the plaintiff remained in his employment; and averring that the plaintiff worked for the defendant under the agreement, until discharged by him on the 10th of January, 1851.

Fowler filed his complaint on the 13th of February, 1851, stating, that on the 23d of January, 1850, at San Francisco, Smith executed seventeen promissory notes, each for $1000, payable to the plaintiff, one every month, with interest at two per cent, per month; and that on the same day, Smith and wife executed to the plaintiff a mortgage upon a lot in San Francisco, to secure the payment of said notes.

Wilson sued Middleton for an assault and battery, laying the damages at $20,000. The defendant answered, 1st. Denying the complaint. 2d. That the plaintiff had provoked the defendant by filing in the Probate Court a false and malicious affidavit, reflecting upon the defendant as administrator of Penalta.

On the 23d of March, 1849, Leavenworth executed to one Hoppener, a bond and mortgage for the payment of $7000, with interest; and on the 23d of August following, Hoppener assigned the bond and mortgage to Montgomery; who, in October following, executed a power of attorney to one Grimes, authorizing him to sue and collect the mortgage money, and after paying himself $2000, for which he held Montgomery’s note, to hold the balance of the proceeds, subject to Montgomery’s order.

Hotaling, Barnstead, and Thomas filed their complaint against Cronise and Hart, December 12th, 1850, averring that during the summer of 1850, the plaintiffs, at the request of Cronise, furnished piles and other materials, and did work, to the amount of $2785, for the erection of a wharf on property then owned by Cronise, on Battery street, between Jackson and Pacific streets, and joining property owned by one Dupease, in San Francisco; that Hart afterwards purchased the…

Haight sued Woodruff’s executors upon two promissory notes, both dated Deer. 2nd, 1850, one for $600, and the other for $1675, executed by Woodruff, payable five days after date to the order of one Lippincott, and by him indorsed to the plaintiff Deer. 3d, 1850; averring that Woodruff died between the 2nd and 10th of Deer. 1850, leaving a will by which he appointed the defendants his executors, who took out letters testamentary, &c., and notified the creditors to present…

■ On the 22d of December, 1851, Rowe filed his petition, stating that he was owner of warrant No. 177, drawn by the auditor of Sacramento County on the county treasurer, for $1192.70, for work on prison ship, in favour of one Gale, or order, and by him indorsed; dated August 1st, 1850, and noted by the treasurer on the same day, “ not paid, for want of fundsthat the warrant was duly registered, &c.; that on the day of filing the petition, the plaintiff presented the warrant…

The respondent filed her complaint against the appellants, stating, that in December, 1850, the defendants sold her a quantity of merchandise, and the frame, lumber, and materials for a house, for $850, and agreed to deliver the same to the plaintiff when requested; that the plaintiff paid the defendants the $850 at the time of the sale; and that the defendants neglected and refused to deliver the frame, lumber, and materials, but on the contrary, in January, 1851, sold and…

At the March Term, 1851, of the District Court, Muldrow filed in said Court, sealed articles of submission, dated February 14th, 1851, executed by himself and Norris, reciting that various differences had long existed between the parties, and submitting all matters of difference, suits, &e., arising or accrued before the 1st day of December, 1850, to White, Homer and McDaniel, and agreeing that the award of them, or any two of them, should be final and conclusive; and…

McDougal filed his petition, stating himself to be the holder and owner of a State warrant, dated January 30th, 1852, drawn by the Comptroller on the State Treasury, for the payment of §1220 to the plaintiff, out of the general fund, not otherwise appropriated by law; and averring that on the said 30th of January, the plaintiff presented the warrant to Roman, then and still State Treasurer, who had in his hands sufficient moneys of the general fund otherwise unappropriated…

Gahan sued Neville for $635, for work and labour in building a house for the defendant; and claiming a lien on the house, under a notice filed in the recorder’s office, pursuant to the Mechanic’s Lien Act. The defendant answered, denying the complaint; and setting up an indebtedness from the plaintiff to the defendant.

On the 18th of September, 1849, Dunbar executed a bond to Gulzman, reciting that he had sold to Gulzman a lot on Washington street, twenty-three feet by forty feet, for $10,500, whereof $3,500 were paid at the time, and $3,500 to be paid January 1st, 1850, and $3,500 March 1st, 1850; and conditioned to convey the premises with warranty, on full payment of the- purchase money.

Russell filed his complaint against the appellants, stating that the parties entered into a mining partnership, in August, 1850, and laid a claim, &c.; the gold to be taken from which was to be equally divided between the parties; and that the plaintiff was to be at liberty to go to a certain Ranch, and whatever interest he might acquire in it, or whatever compensation he might receive while there, was to be divided between the parties, as an equivalent for the gold taken…

- Appeal from the District Court of the Fifth Judicial District, for the County of San Joaquin.

Bottomly filed his complaint against the appellants and one Murdock, stating that Murdock was indebted to the plaintiff $660, with interest, from May 2d, 1851, for materials and lumber furnished Murdock in March, 1851; that said lumber was used by Murdock in the erection of a building called Grace Church, situated, &c.; that the money remained unpaid, &c.; that Murdock was the contractor, employed by the other defendants to erect the building; that on the 2d of May, 1851,…

Smith & Wilson sued Pollock for $1750, upon a quantum meruit, for services rendered the defendant by the plaintiffs, as attorneys, &c. The affidavit of Wilson was filed, stating that the defendant was indebted to the plaintiffs in the sum claimed, over and above all legal set-offs or counter claims, upon an implied contract for the direct payment of money, made since the 1st of May, 1851, within this State, and that payment had not been secured by any mortgage on real or…

The respondent filed his complaint against the appellants, stating that the plaintiff, being in possession of a water lot in San Francisco, lying between Pacific and Jackson streets, and bounded on the east by Front street, and occupying a part of it with his ship, called the Balance, which was well secured, &c.: while the keeper of the vessel was absent, the defendants wrongfully broke said vessel from her moorings, and towed her, with a steamer, into the bay, and cast her…

Thompson filed his complaint against Monrow, stating that on the 11th of December, 1846, James M. Moore recovered judgment against the defendant, in the Court of Common Pleas of the County of New York, State of New York, for $1687.05, as appeared by the record thereof, proferí of an exemplified copy whereof was made; that on the 6th of October, 1850, Moore sold and assigned said judgment to the plaintiff; and that the judgment was still in full force, and unsatisfied; and…

Buzzell filed his complaint against Bennett, stating that on the 28th of March, 1849, the defendant, and one Dennis Bennett, since deceased, being indebted to the plaintiff $410, for money loaned, executed their promissory note for the payment of $410, ten days after date, with interest at the rate of four dollars per'day, till paid, in gold dust, at $18 per ounce; which note was lost, and had never been transferred; and remained unpaid, &c.; and praying judgment for…

The respondents filed their complaint against the appellant, stating that the plaintiffs were “lawfully entitled to the possession of” certain described real estate, and that the defendant “is in possession of the same, and unlawfully holds possession thereof from the plaintiffsand praying judgment that the defendant be adjudged to surrender possession of said real estate, and pay damages for withholding thereof, as well as the rents and profits, to the amount of $1000.

A notice by the respondent, dated September 5th, 1851, that the cause would be brought to hearing in this Court “at the next term, to be holden at, &c., on the first Monday of October next, at ten o’clock, A. M., or as soon thereafter as the same can be reached on the calendar,” was served on the attorneys for the appellants in the Court below, on the 10th of October, 1851.

This was an action to test the validity of certain assignments, for the benefit of creditors; by deed, bearing date Sept. 3d, 1850, between B. Simmons and W. H. Stowell, partners, of the first, part, and the respondents, (defendants in the action,) of the second part.

The appellant filed his complaint against the respondents, stating that a written contract was made between the parties on the 8th of February, 1850, at San Francisco, by which the plaintiff was to ship, and the defendants to receive on board the schooner Isabel, a cargo of lumber, &c., then on board another vessel, as soon as the same could conveniently be done, an invoice of which, at the prices noted at the foot of the agreement, and signed by the parties, was to be…

The respondent filed his complaint against the appellant and Charles Brown, stating, 1st, that on the 25th of February, 1851, C. Brown executed his note for $200, payable thirty days after date, to Graves, or order, and that it was verbally agreed, that if said note was not paid at maturity, it should bear interest at 10 per cent, per month, till paid; that Graves indorsed the note to the plaintiff; that on the day it become due, the note was presented to C. Brown, and…

Tyson sued Wells & Skinner,' declaring, first, generally, for goods sold and delivered.

Webb petitioned the Court of Sessions of Yuba County for a ferry license across Feather River, near Yuba City, stating that he was “the owner, or” had a possessory right to the land on both sides; and that he had given the notices required.

The relator filed his petition and affidavit in the District Court, praying an alternative mandate to the respondents, (the former being county judge, and the latter county clerk of the county of San Francisco,) requiring them to grant to the relator the certificate of his election as one of the associate justices of the Court of Sessions, pursuant to the 64th section of the act concerning courts of justice.

In August, 1851, Salmon filed his complaint against the respondents, charging that on the 4th of July, 1849, the defendants, by their power of attorney of that date, recorded in San Francisco, authorized one Henry Fisher to dispose of certain lands in San Francisco, to which the defendants claimed title as heirs tif James Scott, late of San Francisco; that the defendants, by their said agent, contracted with the plaintiff for the sale of said lands, at the price of $34,000,…

Habeas Corpus.—Crandall’s petition, sworn to, stated that he was confined in the jail of San Francisco, by virtue of a commitment made by a commissioner to take acknowledgments of bail and affidavits in civil causes in Courts of the United States, appointed under a law of the United States, upon the pretext that the petitioner was a deserted seaman from the ship Hornet, then in the port of San Francisco; that said commissioner had no authority to make such commitment; and…

In October, 1850, Kilburn filed his complaint against Ritchie, stating that the plaintiff was owner and in possession of a certain tract of land in Nassa county, (describing it,) on the 1st of October, 1849; that on the 1st of May, 1850, the defendant, with force and arms, entered and took possession of a portion of said lands, (describing it,) and ejected the plaintiff therefrom; and other wrongs, &c.; and praying judgment for the possession of said premises, and §3000…

<p>Appeal from the District Court of the Fourth Judicial District.</p>

<p>Where the appellant had failed to file a transcript of the record showing that the appeal had been perfect. The Court ordered it dismissed, with 10 per cent, damages and costs.</p>

O’Conner, in his complaint, filed in October, 1850, stated, that on the 22nd of February, 1850, he entered into articles of co-partnership with the appellants, in the business of gardening, &c.; that the partnership was to continue till the 1st of February, 1851; that the plaintiff was to furnish a certain field, fence it, the use of a team, &e.; that the defendants were to furnish the seeds, &c., and the necessary labour, &c., and take the entire management of the crops;…

. Gordon sued Ross for $500, for professional services as an attorney. A hill of particulars was filed, stating the cases, &c., in which the plaintiff had acted. The answer denied the complaint.

The respondent sued the appellants as the makers of a promissory note, payable to the plaintiff, or order. The process was returned served on all the defendants. No answer being filed within the time prescribed by law, their default was entered on the 9th of December, 1850; and final judgment entered on the 16th of the same month. The defendants appealed on the 4th of March, 1851.

Belt sued Mehen, to correct an alleged fraud and mistake in the settlement of a partnership between the parties, which had been dissolved by mutual agreement of the parties, sealed and acknowledged, some three months before the suit was commenced. The answer denied the complaint: and by consent of parties, the cause was tried by the Court, without a jury. The Court found for the defendant, and dismissed the complaint. The defendant appealed.

This suit was brought by Folsom, as indorsee of two promissory notes, each for $975, dated August 1st, 1850, made by Bartlett, payable, at sixty and ninety days, to the order of one Buckelew, and by him indorsed to the plaintiff, subject to a credit of $550, paid to Buckelew on the 19th of October, 1850. Defendant pleaded, first, a general denial.

Fowler filed his petition in the District Court of Sacramento, on the 11th of February, 1852, stating that he was a member of the Assembly, and as such, entitled to compensation at the rate of $16 per day; that the State was indebted to him in the sum of $592, for thirty-seven days’ services, from the 5th of January to the 10th of February, 1852, inclusive; an account of which, approved by the chairman of the committee on accounts, and signed by the speaker of the Assembly,…

On the 26th of July, 1850, Conrad filed his complaint against Lindley & Booth, stating, that in October, 1849, by a parol contract between the parties, the plaintiff purchased of the defendants a certain lot in Sacramento, for the sum of $400, payable on the execution and delivery of a conveyance; and the defendants agreed to convey the lot to the plaintiff, with warranty, so soon as they should perfect their own title by procuring a conveyance to themselves from one Sutter;…

The appellants filed their complaint against the respondents, stating that on the 8th of May, 1851, the defendants, with force and arms, entered certain premises in San Francisco, then lawfully occupied by the plaintiffs, and forcibly and unlawfully evicted the plaintiffs therefrom, and removed building materials, lumber, &c., which the plaintiffs had thereon; and caused a building which the plaintiffs had commenced erecting to be torn down, &c.; and that the defendants…

The respondent filed his complaint against the appellants on the 7th of June, 1851, stating that on the 10th of March, 1850, at Mobile, in the State of Alabama, the parties to this suit, and Henry… Held: and the judgment signed by “ E. Heydenfeldt, Judge Seventh Judicial District.” A motion by the defendants for a new trial, on the ground that the verdict was contrary to evidence, and to the instructions of the Court, was overruled.

The respondent sued the appellants as indorsees of two promissory notes, one made by the appellants, payable to Berthelot & Comire, and the other made by Berthelot & Comire, payable to the appellants, and both indorsed to the plaintiff. A summons was issued on the 1st of July, 1851, in the form prescribed by the act of 1850. On the 5th of July, the plaintiff sued out a writ of attachment, upon filing an affidavit and undertaking.

The respondent sued the appellants for §37,306.50, alleging that the defendants were indebted to the plaintiff’s intestate in that sum, for work and labour, money lent, money paid, and goods sold and delivered, &c.; and praying judgment accordingly. The summons was returned served on both defendants, July 10th and 11th, 1851.

This cause was submitted to the Court upon the following agreed case: “ It is agreed by S. C. Hastings, Attorney-General, on the part of the People, and by Alexander Wells, respondent, in proper person, that the case herein shall be presented to this Court as though judgment had been entered pro forma for the respondent, in the District Court of the Fourth Judicial District of the State of California, upon a writ of quo warranto, issued out of said District Court, and in the…

, The respondent filed his complaint, stating that on the 8th of February, 1850, the defendants Covillaud, Ramirez, Sicard, and the deceased, John Sampson, (who, it appeared, were then partners, under the firm of C. Covillaud & Co.,) executed to the plaintiff a joint and several bond, by which they bound themselves to execute to the plaintiff a conveyance of certain lots in Marysville, and among others, lot No. 2, &c., upon payment by the plaintiff of his note for $4,887.50,…

The respondents, as partners, constituting the firm of Tabor & Co., sued the appellant for §1020, the price of gold dust sold to defendant by one Hooper, as the agent of the plaintiffs; and for $50 for board and lodging. The defendant answered, 1st, denying the complaint. 2nd. Averring that Hooper was a partner in the firm of Tabor & Co. 3d. Set-off. There was a verdict for the plaintiff for $1020; and judgment accordingly. The defendant appealed.

This suit was brought upon a bond executed by the appellants, conditioned that Woodlief should faithfully perform the duties of the office of Collector of Licenses to Foreign Miners, for Calaveras County; and the complaint assigned as a breach that Woodlief had failed to pay over or account acccording to law for such licenses, to the amount of $9346.93, as shown by the certificate of the Comptroller, which was made an exhibit; and praying judgment therefor, with 25 per cent,…

The complaint in this case, filed by the District Attorney, stated that on the 10th of October, 1851, the defendant was indebted to the plaintiffs in the following manner, to wit; that the defendant, for a long time since the “ Act to license gaming,” of March 14th, 1851, and the act amending the third section thereof, of the same date, had been and was the proprietor of a certain gaming-house, in Yuba County; that by said acts, the defendant was required to pay to the…

The defendants filed an affidavit in this Court, stating that in February, 1851, the plaintiffs instituted a suit in the District Court to enjoin a judgment which the defendants had recovered against the plaintiffs; that an injunction was granted and served; that on the 11th of March, 1851, the injunction was dissolved, and a reference ordered to F. J. Lippitt to assess the damages sustained by the defendants by reason of the injunction; that on the 17th of March, the…

On the 11th of March, 1851, Bidleman sued Kewen upon a promissory note for $1000, dated October 15th, 1850, made by the defendant, payable thirty days after date, to one Whitehill or order, and by Whitehill indorsed to the plaintiff. The defendant acknowledged service the same day, by a written acknowledgment on the complaint.

The respondent filed his complaint against the appellants and D. K. Newell, for that the plaintiff was not, at the time of the defendants bringing suit against him as thereinafter mentioned, nor had he ever been in any manner indebted to the defendants, yet the defendants, well knowing the premises, but intending to injure the plaintiff, &c., at, &c., on the 22d day of August, 1851, filed their complaint against the plaintiff in a certain justice’s Court in said county,…

• At the April Term, 1852, of the Court of Sessions of Yuba County, the grand jury found an indictment against Tanner, for grand larceny, committed on the 3d day of the same April, by stealing 1500 pounds of flour, six sacks of potatoes, five kegs of syrup, two and one half barrels of meal, one keg of powder, and one half barrel of mackerel, the property of Lowe & Brothers, of the value of $400.

On motion of the respondents, defendants in the Court below, the Judge of the District Court made an order in vacation, appointing a sole referee to audit and report the accounts between the parties, &c.; and to take such testimony as would enable the Court to determine the matters in controversy. Two days after-wards, the plaintiffs filed an affidavit that the order of reference was made ex parte, and without their consent, &c.; and filed a notice of appeal from the order.

Hanson filed his petition and affidavit in this Court, stating that in May, 1851, and for some time before, he had a license from the Court of Sessions of Tuba County to run a ferry across Feather river, opposite Tuba City, which license he still held; that at the May term, 1851, of said Court, William S. Webb made application for a license to run another ferry within one mile of the petitioner’s ferry; that the Court, after hearing evidence, granted Webb a license as asked…

The bill in complaint sets forth that the plaintiff on the 12th of July, 1850, had instituted a suit in this Court against Domingo Guzman,-Rosenwig, Lewis Lusk and Harvey Sparks, to recover the amount of a promissory note made by said Guzman to the plaintiff, for the sum of $6160.74, dated April 1st, 1850, and due ninety days after date, with interest at the rate of two per cent, per1 month, and to enforce the recovery of said note, by a sale of a certain lot, &e., then in…

The complaint stated that the plaintiffs are tax-payers, &c., of the city of San Francisco; and that at a meeting of the common council of said city on the 4th June, 1852, an ordinance was passed, No. 234, authorizing the purchase in connection with the county of San Francisco, of the Jenny Lind Theatre and Parker House property, for city and county purposes—the ordinance specifying the púrpose- to be to-convert the same into a .City Hall; and the surveyor of the city, with…

This was an appeal from the District Court of the Third Judicial District.

This was an appeal from the Tenth Judicial District, County of Tuba, Feb. 17th, 1852. After the trial of the issue in this case, the Court below granted a new trial on the application of defendant’s counsel, on the ground that the verdict was against evidence. Plaintiff’s co'unsel excepted to the decision, on the ground that no statement of the evidence was made and filed, as required by the statute upon which the motion was made; from which decision plaintiff appealed.

There were a number of intervening claims in this case, as exhibited by the record, which were referred to J. S. Hager, referee; whose report as regards the only point made in this Court, is as follows:— “The referee reports against the several claims of Thomas Stothard, William R. Greorge, Charles Frends, John Thomas, Greo.

This was an appeal from the Seventh Judicial District. The contract upon which the action was founded is set forth in the opinion of the Court; and the only question presented by it, was whether the contract was an entirety or not.

This was an appeal from the Fourth Judicial District. The instrument on which the complaint in this case was founded, recites as follows: “ I hereby certify that if George B. Elkins pays to me cash, $2000, on the 20th May, and $5,500 on the 1st day of June, and executes two notes, bearing date the 1st day of June, and to fall due on the 15th and 31st of the same month, both being in amount $7,500, which amount to be equally divided in’ the notes, and is the remaining half of…

This case originated in a writ of mandamus issued from the District Court, upon which a judgment fro forma was taken for the defendants, by agreement of counsel, with the view to have the question decided on appeal to this Court.

The proceedings in this case grew out of a motion to set aside a sheriff’s sale. Several affidavits and depositions were taken and submitted to the Court in the course of the hearing, and also the record of the proceedings, judgment and sale, which were the basis of the motion. The record shows that the case was elaborately prepared, and argued, in the Court below; and, by consent of parties, judgment was entered pro forma, without prejudice, overruling the motion.

In this case Headley and Cozzens brought suit to recover for goods sold and delivered to the appellant, and for money loaned him. The appellant denies the sale and delivery, as charged; and as to the money avers that it was in payment of an account due him. The parties waived a trial by jury, and the Court found for the plaintiff, $575.25; upon which judgment was entered the 16th day of June, 1851.

This, was an appeal from the Seventh Judicial District. The complaint of the plaintiff set forth, that on the 10th day of May, a. D. 1851, he was the owner in fee simple, by deed from the defendant to the plaintiff, bearing date the 21st day of August, A. D. 1850, of part of a certain tract of land therein mentioned, and the said defendant, wickedly intending to injure the plaintiff, did afterwards, and while the plaintiff was the owner of part of the said tract of land, on…

This action was brought in the Superior Court of San Francisco, to recover of Truebody, the defendant, the sum of $800, upon a written contract, which the complaint alleges was destroyed. The case as set forth in the complaint, is in substance as follows : In November, 1550, the common council of the City of San Francisco passed an ordinance to lay out and open Merchant street, in said city.

This was an action for trespass founded upon a lease from defendant to plaintiff for certain premises in San Francisco, for one year from the 1st April, 1851, at the rent of one hundred dollars per month, payable in advance, which plaintiff avers he paid, &c., and continued in possession up till about the 25th day of June, 1851, for all of which month he had paid the rent in advance, &c., when the defendant with force, &c., entered and took possession of the said demised…

This was an appeal from the Fifth Judicial District, San Joaquin County. The complaint stated, that the defendant was indebted to the plaintiff $4,117, for the recovery of which the suit was brought. The amount was made up of several items, of which an account was stated and annexed to the complaint.

This was a proceeding in forcible entry and detainer in which the complaint charges the defendant with entering with force and arms upon his mining claim, and unlawfully holding the same, &c. The proceeding was commenced in the Court of G. Appley, Esq., a Justice of the Peace, and ultimately tried before James Cushing, Esq. The statement of the case upon the record shows that on the trial of the cause, defendant’s counsel moved to dismiss the suit for want of jurisdiction,…

This was an appeal from the Fourth Judicial District. The complaint sets forth, that the plaintiffs are the lessees of the wharves known as California and Market Street wharves, in the city of San Francisco, and have exclusive right to collect wharfage, &c., upon all goods, &c., landed thereon, &c.; and had erected a wharf thereon, &c.; and that there are as appurtenant to the wharves, two slips, one on each side thereof, of dimensions described, &c. And charges that the…

This was an appeal from the Superior Court of the City of San Francisco.

This was an appeal from the Sixth Judicial District. The complaint sets forth that the plaintiffs on the 21st February, 1850, leased to the defendants for the term of one year the lower floor of the Sutter Hotel, in Sacramento city, at the yearly rent of $36,000, payable monthly, in sums of $3000 each, which defendants covenanted to pay, &c., in which they failed, and are indebted to the plaintiffs $6,531.83, which they refuse to pay, &c.; and plaintiffs ask judgment for the…

This was a bill praying relief against a judgment obtained by the plaintiff against the defendant in the District Court, and for discovery.

This was an action for money had and received, and grew out of the purchase by plaintiff from defendant, of the lease of a lot in San Francisco.

After the jury were sworn, &c. in this cause in the District Court, the plaintiffs offered to read as evidence upon the trial the notice and the accompanying depositions of Elisha Anthony, Edward P. Penfield, Charles Yan Pelt and Silas H. Bennett, and the certificates thereto appended; to the reading of which defendants objected on the ground that the notice was insufficient; that the depositions of Anthony Penfield and Yan Pelt were taken on a day different from that in the…

This was an action brought against the defendant, administrator of the estate of William Taylor, deceased, to recover @6,500 claimed by plaintiff for cattle sold to Taylor during his lifetime, in 1849.

The complaint sets forth, that Field, the plaintiff, on the 26th day of September, 1850, mortgaged to Mark Brumagim and Lewis Cunningham, certain property in Marysville, called in the paper’s, “the Levee property,” to secure the payment of $2000, for which he gave his note, payable in thirty days.

The only question raised in the trial of this cause in the Court below, was as to the right of defendant to amend his answer, by adding a plea of the statute of limitations. The action was commenced on the 3rd of March, 1852, and the claim was for a bill of goods, sold to the defendant in the month of March, 1851; which claim it was alleged had been assigned to plaintiff. Defendant pleaded the general issue and set-off.

This was an action brought against the defendants as common carriers. The complaint states, that the plaintiffs had delivered to the defendants on the 25th February, 1852, a package, containing gold watches, and gold and silverware, &c., of the value of $3000, to be conveyed from San Francisco to P. Lee, Panama; and paid them $50 for the freight and insurance thereof.

The complaint in this case was filed to set aside an award, to obtain a perpetual injunction, and to open the accounts between the parties. The District Court allowed the perpetual injunction, but denied the prayer of the plaintiff in all other respects; refusing to set aside the award, and to open the accounts. Defendant appealed.

This action was for the recovery of personal property. The question was submitted to a jury, who found specially that the parties were partners in the property claimed by the plaintiff. The Court ordered judgment to be entered in favour of the defendant with costs; and plaintiff appealed. Walker, for appellant, relied on sect. 144, 5 and 6, of the Practice Act of 1851, and upon sects. 1 and 17 of the same Act.

., This action was brought to recover of defendant $588, money collected by defendant, &c., to the plaintiff’s use.

<p>Appeal from the Sixth Judicial District.</p>

This case was brought before Judge Wells, of the Supreme Court, by the petition and affidavit of the prisoners, Robert and Carter Perkins and Sandy Jones, July 1st, 1852, which sets forth, that about the 1st of June, 1852, they were seized without process of law, and taken before B. D. Fry, a justice of the peace of Sacramento, upon a pretended claim of one C. S. Perkins, of the State of Mississippi, for a certificate to remove them from the State of California to…

The suit was brought upon a contract set forth in the complaint, which .recites that an execution had been placed in the hands of the sheriff of Sacramento county, against William Twist and William Stout, in favour of A. D. Happe, with instruction to levy, &c., on goods that defendant alleges did not belong to said William Stout, and that the judgment on which the execution was issued, was rendered without'authority of law; and for the purpose of procuring a stay of the said…

The complaint sets forth a contract made the 13th February, 1851, between the Commissioners of the Sinking Fund of the city of San Francisco, and Roberts and West, by which the said commissioners granted to the said Roberts and West the right to carry out the wharf on Pacific street, to a point designated, and make other improvements in connection therewith, described in the said instrument; and granted to the said Roberts and West the exclusive right to use a certain space…

The complaint sets forth that the plaintiffs were partners in trade under the firm of Hawley, Sterling & Co. That defendant on the 27th July, 1850, made his promissory note for S|1000, payable three months after date, to the order of Stewart and Cooke; and at the same time made another note for $1000, payable six months after date, to the same parties—who endorsed them on the same day to Heyden and Mudge, who endorsed them over on the same day to the plaintiffs—both…

This case came before the District Court, by appeal from the County Court of Yuba County. When the cause came on to be heard before the District Court, the defendant moved to dismiss the appeal, for the reason, that there was no statement filed, as required by law. There were other reasons assigned, but the one above mentioned, was the only one considered by the Supreme Court.

<p>Appeal from the Sixth Judicial District for Sacramento County.</p>

The complaint states that the Legislature at its last session passed an act to provide for the erection of a powder magazine in the city of San Francisco; and plaintiff avers that he is the B. F. Harley in the said act named; and that he had erected at his own expense a powder magazine at San Francisco at a point sanctioned by the mayor of said city, which was ready for use on the 2d July, 1852; and that he gave notice of such erection as provided by the act; and that he, on…

This case was first heard and decided at January term, 1852, and reported in this.volume p. 88. An application was made for a re-hearing, and so ordered by the Court at the April term succeeding. (See p. 161.) And the cause came again before the Court at this term upon the above order.

<p>The prisoner, San Martin, was convicted of murder in the District Court of the Seventh Judicial District at August Term, 1852, and sentence of death was passed upon him, from which he appealed.</p>

The complaint sets forth that William Waldo made his promissory note on the 19th June, 1852, in which he promised to pay sixty days after date, to the order of Burton Lace and Harden Bigalow $1500, for value received, bearing interest at the rate of three per cent, per month.

The complaint shows that a mortgage was made the 19th July, 1850, of the property described therein, to Lucius Skinner, by W. W. Caldwell, one of the defendants; and that it was assigned by Thomas G. Wells, attorney in fact for Skinner, on the 16th August, 1851, to the respondent, who claimed payment, &c., of the sum due thereon, $5000, with interest from 19th October, 1850.

The complaint states, that about the 30th of October, 1850, one Samuel G. Chaffe being in negotiation with the plaintiff, with the view to the consummation thereof and for value received, gave an order on the defendants for $1000 in favour of plaintiff, or order, which was duly presented to and accepted by defendants. That the original order was destroyed in the fire of 3d May last, but the following is a literal transcript. $1000. San Francisco, Oct. 30, 1851. Messrs.

In March, 1851, the respondents filed their complaint against the appellant, stating that they were entitled to the possession of the undivided half of two certain lots in the city of San Francisco—describing them; and that the defendant was in possession of, and unlawfully held the same from the plaintiffs; and praying judgment against the defendant for the possession and $5000 damages.

The complaint sets forth, that in September, 1845, defendant proposed to marry the plaintiff, representing himself as a single man; and that, placing confidence in this statement, she consented to become his wife, according to the laws of the land, which were then the laws of Mexico; that defendant drew up what he represented to be a marriage contract, and she, ignorant of the laws, and relying upon defendant’s statements, &c., signed the writing, 'in substance as follows: “…

This was a rule to show cause why the entry of satisfaction upon a judgment should not be set aside.

The complaint sets forth a lease, dated the 14th day of May, 1851, by which the plaintiff leased to defendant “all his right, title and interest, in and to all the stands outside of the Mansion House, and situated at the corner of I. and Front streets, in the City of Sacramento, as well as the store in said Mansion House, now occupied by C. A. Spalding (the defendant,) for the term of six months, from the 10th of May, 1851, for and in consideration of $3600, payable in five…

The plaintiffs, commissioners of the Funded Debt of the city of San Francisco, appointed under the act of the Legislature of 1st May, 1851, complain of defendants, because defendants of the one part, and John W. Geary and others, then being commissioners of the Sinking Fund of the city of San Francisco, created by an ordinance of the mayor and common council of the other part, entered into an agreement, dated the 13th February, 1851, whereby the said Commissioners of the…

The complaint filed May 9th, 1851, sets forth that the plaintiff is the owner, and has the legal title in fee simple of part of lot No. 4, between square L. and M., and Front and Second streets, in Sacramento City,—(describing it)—known as the Pacific Theatre; which defendant has entered into unlawfully, and withholds possession, &c.; and prays judgment, that he may be decreed to quit and surrender the possession, &c., to plaintiff, and to pay damages for the withholding…

The complaint sets forth that, in December, 1851, the plaintiff caused to be levied by the sheriff of said County, an execution issued upon a judgment before obtained by him in said Court, in which one Juan, and M. Luco were defendants, upon one hundred head of cattle as the property of said Lucos; and that on the 31st December, 1851, the defendants in this action claimed the property; and on application to the Court by them, the Court appointed one Cunningham an Elizor to…

The statement of facts in this case sets forth the Act of 15th April, 1850, incorporating the City of San Francisco, art. 1, and 2d section of which gives the city the right to “ grant, purchase, hold, and receive property, real and personal, within said city, and to lease, sell, and dispose of the same for the benefit of the city.” Section 1st of art, 2d, allows the Mayor and Common Council “ to borrow money and pledge the faith of the City, therefor, provided the aggregate…

The plaintiff brought this action for the recovery of rent due upon a lease, dated Sept. 12, 1852, from plaintiff to defendants, of certain property in Yuba county therein described, reserving rent as therein set forth, which defendants covenanted to pay, &c., and who entered into, and took possession of the premises, &c., and refused payment of the said rent.

The complaint sets forth, that Thrift with others, on the 11th of June, 1851, sued out a writ of injunction against plaintiffs, and that said Thrift and Fairchild, defendants, executed a bond in the sum of $500, whereby they bound themselves to pay to said plaintiffs, known in said bond as Morgan, John Roe, and Richard Roe, their proper names being unknown, as they allege, to said defendants, such damages as said plaintiffs should sustain, by reason of said injunction, &c.;…

On the 27th November, 1850, the District Attorney filed his presentment in accordance with the Statute, &c., against defendant acting as a Justice of the Peace in the town of Stockton, Joaquin County, and late one of the Judges of the Court of Sessions in and for said county, charging defendant with wilful and corrupt misconduct in his official capacity, both as a Justice of the Peace and as a Judge of said court.

<p>An auctioneer who, in the regular course of his business, receives and sells stolen goods, and pays over the proceeds of sale to the felon, without notice that the goods were stolen, is not liable to the true owner as for a conversion.</p> <p>The decision in the case of Hoffman v. Caroi/, 22 Wend., is denied to be law.</p> <p>The conversion is the gist of the action of trover, and without conversion, neither possession of the property, negligence or misfortune will enable the action to be maintained.</p> <p>To render the defendant liable to the action, he must have converted the property to his own use.; and if not, then any other act to amount to a conversion, must be done with a wrongful intent, either expressed or implied.</p>

The complaint sets forth, that the defendant, about the 15th of May, 1851, with force and arms, seized, took, and drove away, a number of cattle of the plaintiff, of the value of §4700, and converted and disposed of the same to his own use, to her damage, &c. Defendant answered, and denied that he so seized and drove away the cattle of the plaintiff ;■ and denies that he converted any cattle of the plaintiff to his own use.

<p>The Common Council of the city of Sacramento, by resolution made an appropriation to the Mayor of the city of $10,000, reciting meritorious services, (but such as were within the line of his official duty,) as the consideration, which was exclusive of his salary, which had been regularly paid. The Mayor died the same day the Resolution was passed, and did not formally accept the appropriation. Held, that the appropriation could not be recovered by action at law.</p>

Plaintiffs brought suit 24th December, 1851, against defendants for the possession of a tract of land, and for damages. Kramer filed his answer January 2d, 1852, denying the charges in the complaint. On the 18th May, 1852, the cause was called for trial, the defendants not appearing, a jury was empanelled; the plaintiffs introduced their evidence; the case was submitted, and a verdict of restitution and 500 dollars damages was rendered, and judgment entered upon the verdict.

<p>Appeal from the Fourth Judicial District.</p> <p>The plaintiffs agreed with defendants to build a house for them for the sum of $10,000, to be paid in instalments as the building advanced; that plaintiffs performed on their part up to the 3rd May, 1851, when $1200 became due on the second instalment from defendants to plaintiffs; and plaintiffs claimed the said sum and the further sum of $120 for bricks delivered.</p> <p>Defendants answered, and denied every allegation of the complaint ; and averred that they were all untrue; and further say, that plaintiffs are indebted to them $599.06, for money paid on their account and at their request to J. Turnbull.</p> <p>The case was tried by the Court without a jury, who found for the plaintiffs $641, with interest at the rate of 10 per cent.</p> <p>The contract set forth in the complaint was under the seals of the respective parties, and was dated the — day of March, 1851. The building had made considerable advance up to the 3rd May. 1851, when it was destroyed by fire; and was not rebuilt.</p> <p>Plaintiffs proved, that the work regularly advanced up to the day of the fire; and that the bricks stated in the complaint, had been delivered, and were upon the lot.</p> <p>The point in the case however was, whether the contract was rescinded or not; and to establish this, the defendants proved, that a day or two after the fire the plaintiffs called on the defendants, and said that they could not go on with the building; that they were dead broke. Defendants asked if they (the plaintiffs) could not go on with the building if defendants would aid them in the prosecution of the contract. They replied they could not; and proposed to remit to said defendants the $1200, due on the 3rd instalment, and renounce all claim to the same, provided defendants would consent to an abandonment of the contract, and would not require them to proceed under it to the completion of tie building; to which the defendants assented; this agreement hiwever was not to include the debt due to Turnbull, which the plaintiffs were to pay; that the plaintiffs did not proceed with the building; and in July, the premises and all materials were sold by the defendants ; and the plaintiffs not having paid the debt to Turnbull, the defendants had afterwards paid it.</p> <p>Uptn the above evidence, the Court held, that the sealed contract sit forth in the complaint was not discharged by the said parol agreement; and that plaintiffs were entitled to recover; and judgment was rendered for $641, and costs.</p> <p>Defendants appealed.</p>

<p>If money be paid in mistake of law, and not of fact, the Court cannotrelieve.</p>

<p>Where one has an .outstanding deed, which improperly clouds the title of the true owner, on the application of the latter, chancery will order such deed to be cancelled and annulled.</p> <p>So chancery, on like application, will interfere and prevent a sale, and the consequent execution of an improper deed.</p>

The complaint states, that the plaintiffs are residents of New York, and the owners of the steam-heat New World, built, &c., in New York, whence she sailed for San Francisco and arrived in June, 1850, and has ever since been employed as a passenger and freight boat, in running between Sacramento City and San Francisco ; that the plaintiffs have been taxed in New York for their property in the said boat; and that defendant, Sheriff of San Francisco, threatens, and is about to…

<p>Appeal from the Third Judicial District for the County of Contra Costa.</p> <p>This appeal is from an order of the District Court granting a peremptory writ of mandamus, commanding the appellant, who is a Justice of the Peace of said county, to enter a judgment in the case of Vincente Peralta v. E. Adams, the respondent, in favour of respondent for $349, costs of suit, and to issue execution therefor.</p> <p>The proceeding before the Justice was in forcible entry and detainer; and on the 20th November last, the case was dismissed on plaintiff’s motion without prejudice: on the same day plaan™ nled his affidavit and claim of costs to the above amount, and demanded judgment and execution thereon; which respondent swears the Justice refused. This affidavit was filed Jan. 3d, 1852. On the same day, the County Court dismissed the application and refused the writ. Respondent appealed to the District Court 28th February, 1852 ; who, on the 3rd March, granted the peremptory mandamus; and on the 8th March, this appeal was taken.</p>

<p>Under the 229th section of the Practice Act, a subsequent judgment creditor having a lien, has a right to redeem real estate, sold by foreclosure of a previous mortgage, in the hands of the purchaser.</p> <p>This statute is remedial, and should be beneficially construed.</p>

<p>Moneys after they become due, bear interest at the rate agreed upon in the written contract, although nothing be expressly said about interest after maturity. Where no rate is agreed upon, the Statute rate—10 per cent.—takes effect.</p>

<p>The answer of defendant was filed May 10th, 1852, and the application for a continuance, to take testimony in Hew York, was filed June 14th, 1852, during which interval, no attempt was made to sue out a commission for the purpose. Held, that this is not sufficient diligence to entitle the party to his application.</p>

<p>Appeal from the Eighth Judicial District for the County of Sutter.</p> <p>An agreement made between the plaintiffs and defendant, accompanies the record in this case, by which Norman agrees to build a frame of certain dimensions, in the manner described, with certain appendages, for a ball and nine-pin alley; Rolfe and Pierson to furnish the lumber, &c., and to pay Norman $2250, “ as follows: sums of money, provisions from time to time, to pay hands with; and when completed, to give said Norman his equal share in the alley, if he wants it; and pay the balance from the first proceeds of the house, or within ninety days; said Norman is to complete the said frame and alley in twenty days, unless bad weather should prevent;” dated 25th of February, 1850, and signed and sealed by the parties. After signing the agreement, it was agreed that Norman should build the frame of certain increased dimensions specified, for the additional sum of $200, “making in all, the full sum of $2450.” This paper is marked, “filed October 11th, 1852. J. B. Reardon, clerk.”</p> <p>The next paper in order on the record, is an agreement between the same parties, “ that the matter between them, in regard to a certain nine-pin alley, shall be settled by arbitration.” And each party, for himself, agrees “to submit to the award of such arbitrators as may be selected to settle and dispose of the business, and their award shall stand as the final settlement of the case, and that either party may have the award carried into the District Court, and judgment may be rendered on the same by said Court, without further trial or hearing.” Marked filed, Nov. 11th, 1850.</p> <p>The next paper in order, is as follows:</p> <p>“Isaac Norman,</p> <p> v. </p> <p>Rolfe, Pearson & Co.</p> <p>“We, the undersigned arbiters, to whom a certain matter in controversy between the aforesaid parties, was referred, as set forth in the written agreement between the parties, whether or not said Norman is a part-owner and proprietor of a certain ball-alley, as per agreement in writing, having heard the testimony and admissions of both parties, make the following award, viz.: That said Norman is not any part-owner or proprietor of said alley; and that said Rolfe, Pierson and others, pay said Norman for said building, agreeable to contract in writing.” 5th of October, 1850.</p> <p>(Signed) Gr. M. Houton, Jambs Queen, Wm. F. Nelson.</p> <p>Filed, Oct. 11th, 1850.</p> <p>On this award judgment was rendered October 11th, 1850, against defendants, and in favour of plaintiff, for $2550,05, damages and costs, by him laid out and expended in this behalf.</p> <p>(Signed) W. R. Turner, Dis. Judge.</p> <p>The defendant moved the Court to set aside the above judgment, and that the same be expunged from the record. 1st. Because the judgment was entered upon an award made by persons who were not parties to any action or suit in this Court. 2nd. Because there was no suit commenced in this Court, and no complaint or answer served or filed in the same, and this Court have therefore no jurisdiction. 3rd. Defendants were never in Court by themselves or counsel, and had no notice of the intended application for judgment upon the award. The report does not warrant the entry of such judgmént.</p> <p>The motion to set aside, was overruled by the Court.</p>

The appellant Folsom brought this suit for the recovery of $1200 alleged to be due from defendants for rent. The lease given in evidence was, for two years, of the described premises, and signed by the respondents, and by one Brace as the agent of the appellant, who had no written authority to execute the lease. The case was tried by a jury, who found for the appellant; and respondent appealed.

This action was brought for the recovery of a promissory note for §2000, drawn by E. M. Smith, one of the defendants, and made payable ninety days after date to the plaintiffs; which note was indorsed by the other defendant Parke; the complaint avers that Parke indorsed the same before it was delivered to the plaintiff ; and that when it became due, it was duly presented to the maker and payment demanded, which was refused; of which demand and refusal due notice was given to…

<p>Appeal from the Fourth Judicial District, San Francisco County.</p> <p>The plaintiff brought the action upon which this application for the arrest of one of the defendants was made, for the recovery of $3525 damages, alleged to have been sustained by plaintiff upon a contract made with defendaiits, set out in the complaint. The bill was filed 1st January, 1852, and alleges that defendants, Whitehead, Morehead and Waddington were partners in trade.</p> <p>The affidavit bears the same date as the complaint; in which the plaintiff makes oath, that the facts stated in the complaint are true; that he has sustained the damage alleged of $3525, arising from defendants’ breach of contract with, and implied warranty to him, as set forth in his complaint; that said contract was made, and cause of action arose after the passage of the act, entitled “ An act to regulate proceedings in civil cases in the courts of justice of the State of Californiathat his cause of action as set forth is just against defendants ; that the said Morehead and Whitehead are non-residents of this State ; that the defendant, Waddington, has disposed of most, if not all, the property of the partnership, realized in the shape of money, and is about to start from the State, with the intent to defraud his creditors, particularly plaintiff; and therefore plaintiff prays an order of arrest against him.</p> <p>Upon this affidavit the arrest of Waddington was ordered by the Court, and that he be held to bail in the sum of $3525; which was done accordingly.</p> <p>February 13th, 1852. The Court, after hearing defendant and his evidence, ordered the order of arrest to be vacated ; to which order plaintiff excepted, alleging as the ground, that the Court had deemed the affidavit upon which the arrest was ordered defective, in not setting forth the ground of plaintiff’s belief that the defendant was about to start from the State with intent to defraud his creditors.</p> <p>February 14th. The plaintiff made a second affidavit, and set out in detail the facts upon which he grounded his application for arrest; upon the hearing of which the Court again ordered the arrest of the defendant, who was arrested and held to bail accordingly as before; and afterwards, on the 21st February, the second order of arrest was dismissed, and the bond of defendant ordered to be cancelled. From this order of the Court the plaintiff appealed.</p>

<p>[The following opinion did not reach the publisher till too late for its insertion at the proper place. The case will be found reported, page 198, of this volume, in which the judges then composing the Court, disagreed. The opinion of Judge Heydeneeldt, now reported, concurring with that of Chief Justice Murray, establishes the law as delivered by the latter, on the original hearing.]</p>