Volume 2 — California District Court Reports

<p>ACCEPTANCE — COMPLAINT.</p> <p>Where a party accepts an order for goods, drawn by one who may not have had any goods in his hands at the time, ho cannot afterwards, in an action by the person in whose favor the order is made to recover the goods, he permitted to dispnto the drawer’s title to the same.</p> <p>Whether in an action on snch.an order, in which the same is set out in the complaint, the omission to write across its face the acceptance, and in lieu thereof alleging ■ that it was duly accepted &c., is such error as would excludo its introduction on the trial, quasre.</p>

Action brought by the assignee of an insolvent firm praying for an injunction against the sheriff of the city and county of San Francisco and certain attaching creditors of the insolvents restraining the former from paying over to the latter, and them from receiving certain moneys in the hands of the said sheriff arising from the sale of property of the defendants by him seized and sold under attachments and executions issued in certain actions brought against the said…

On motion to set aside the report of a referee and for a new trial. The facts are sufficiently set forth in the opinion.

The complaint in this action sets forth, that in another action between these parties, a certain stipulation was drawn up and signed, and which is as follows: “ In the District Court of the Twelfth Judicial District, of. the State of California, in and for the City and County of San Francisco— Christian Smartz, Plaintiff, vs. _ I ^ _ Andrew DeWitt and Henrietta Sophia Louisa DeWitt, his wife, Defendants. STIPULATION.

This action was brought upon an undertaking given to release an attachment and which defendants defend on the grounds, that the undertaking was not made in pursuance of the direction and requirement of the statute.

This was a motion relative to a bill of costs, filed in the above action, brought for slander, wherein the jury found a verdict for the plaintiff, and assessed the damages at ten cents. The bill was filed - after the two days allowed by law.

The facts in this case are substantially as follows: The plaintiff and Townsend, one of the defendants, were the prior owners of the property in dispute. McKinney and Elmore, the other defendants, bought of Townsend and took possession of the plaintiff’s claim.

<p>The opinion contains a full review of all the facts in the case.</p>

This action .was tried in the late superior court. It was for the recovery of the possession of certain goods and chattels, damages, &e. The jury found the value of the property to be $1,700, and the damages for its detention 11,800, and that plaintiff was entitled to recover 13,000.

Motion to discharge an attachment on the ground that it could not he issued in an action of ejectment. The complaint contained but one count, for the recovery of the possession of real property, rent in arrear due on a lease of the same and damages for the detention thereof.

Motion to dismiss the cause for want of jurisdiction in the district court to hear and determine the same. The facts are set forth in the opinion.

The defendant as county assessor of Trinity county, collected a sum of money for poll tax from the citizens, and when demanded to pay the same over to the treasurer of the county, according to law, claimed to offset against the amount collected, his pay for services as assessor, at ten dollars a day, which the supervisors had allowed, but was not yet paid.

<p>DIVORCE — ALIMONY.</p> <p>It is extreme cruel treatment to accuse a wife of prostitution or to question her chastity. Unless there is proof of the marriage before the court, a decree for alimony'cann'ot be made.</p>

The action is brought by the state against Lynn and his sureties, in which it is alleged that as treasurer of Trinity county he has received moneys belonging to the state, which he has failed to pay over. Profert is made of the bond, from which it appears that the name of one of the sureties has been erased, or that a line has been drawn across the name of one Batchelor, whose name appears as surety.

Action in the nature of trover, brought to recover a certain box and its contents, alleged to be six thousand, one hundred dollars in coin of the United… Held: under color of title, was sufficient to render a subsequent sale by the person having title, inoperative and void. It is clear that the possession of the slave was not with the trustee ; it is alijo clear, that no right of possession was claimed through him, but the slave was held adversely, and in spite of him.

<p>DIVORCE — ALIMONY.</p> <p>Where a wife leaves her husband and institutes proceedings for a divorce, he will be compelled to furnish her with alimony, provided the allegations of the bill and the admissions of the answer make out a prima facie case for plaintiff. Aliter, if not.</p> <p>This rule will not be relaxed, though the answer may contain facts which, if proven, would work a justification of the wrongs alleged in the complaint.</p>

<p>On demurrer. The material facts are reported in the opinion.</p>

This action was brought to recover the sum of $1500, for rent of premises leased to defendant by Samuel Flower, late public administrator, and administrator of the estate of Augustus Deck, deceased. The premises were the property of Deck, and in the discharge of his trust, said Flower leased them to Hoberlien.

The court has passed upon all the facts in the opinion. First. Defendant and wife were manumitted by operation of law by being brought into this state voluntarily by the defendant.

<p>JUDGMENT AND SENTENCE IN CRIMINAL PROSECUTIONS.</p> <p>The judgment pronounced in ft criminal prosecution must he definite and precise, — and a judgment that the prisoner “ Iki imprisoned two hundred and sixty days in the county prison or pay ft fine of five hundred dollars and twenty dollars tost,” is a nullity.</p> <p>A warrant issued in pursuance of such a judgment commanding an officer to “arrest the said defendant and imprison him two hundred and sixty days in the county prison unless said fino and costs be sooner paid,” is insufficient on Habeas corpus, inasmuch as it is not “authorized by any judgment of any court.”</p> <p>It is questionable whether any legal sentence can be pronounced upon a defendant who is absent, though counsel may at the time have waived the objection.</p> <p>After a prisoner has been discharged on habeas corpus by reason of an unauthorized commitment, it is a question whether lie can be brought beforo the tribunal which pronounced the judgment and again sentenced.</p>

The material facts are referred to in the opinion. First. The sale from Brooks and Moore to Bell, dissolved the partnership, but left the property as before, subject to the partnership debts.

This was an application for a mandamus to compel the board of supervisors to audit the demand of relator for fees on delinquent taxes collected by him.

<p>DIVORCE — COMMON PROPERTY.</p> <p>A. and B. were divorced by a decree of the Fourth District Court, but no division of the property then held in common was made. B., the defendant in the action for the divorce, then brought an action in the Twelfth District Court to obtain a decree ordering this division, but did not allege in the complaint that any portion of the property had been acquired subsequent to the passage of the act of 1850, which adopted the civil law of the community, as the law governing marital rights in this State.</p> <p>Held, on demurrer to the complaint, that the decree could only be entered in the court which granted the divorce, and that the complaint was insufficient, in failing to aver that the property had been acquired subsequent to the passage of the act of 1850.</p>

Tbe plaintiff brought suit for an alleged injury sustained by him to his teeth at the hands of the defendant, who is a dentist. It was brought subsequent to one commenced by defendant in this action against Smiley for an alleged libel.

<p>DEMURRER — REPLEVIN BOND — DEMAND—CONSTRUCTION.</p> <p>In an action on a replevin bond it is not necessary to aver a demand made upon the defendant before the suit was brought. Nickerson v. Chatterton, 7 Cal. April T. Hunt v. llobinson, 7 Cal. Oct. T.</p> <p>Although the averments of a complaint must be construed according to common understanding, yet this must be regarded as being the common understanding of a person acquainted with the subject, and applied to all the provisions of the law upon this subject.</p>

<p>BAILMENT.</p> <p>An action is properly brought in the name of the principal to recover back a deposit made by his agent.</p> <p>A party who deposits money with a stakeholder parts with no property therein so.long as it remains in the possession of the latter, and until he should have paid it over, the creditors of the depositor could acquire a lien upon it by attachment.</p>

<p>The material facts are set forth in tlio opinion.</p>

On demurrer to tbe complaint specifying as ground for demurrer, that the plaintiff has not legal capacity to sue. Argument was had on the question of law and was decided by this court, and the facts and opinion will be found in 1 Cal. District Court Ii., 818. A rehearing was granted.at the instance of plaintiff, and the question again submitted to the court. (The names of counsel have not been furnished.)

<p>INJUNCTION-AFFIDAVIT.</p> <p>To obtain an injunction the material allegations of the complaint should be positively sworn to, or if they are upon information and belief they should be supported by the affidavit of the parties from whom the information, was derived.</p>

The plaintiff, a resident of San Francisco city and county, brought this action of replevin against defendant, the sheriff of Sierra county. Defendant demurred to the complaint on the following grounds: 1st. That this court has no jurisdiction of the person of the defendant or the subject of the action. 2d. That the complaint does not state facts sufficient to constitute a cause of action.

This was a motion on the part of the defendant to open a default entered against him, and an affidavit of his attorney was read upon which the motion was based. It recited facts the information of which were derived from defendant, but failed to present the affidavit of defendant corroborating this information. There was nothing before the court to warrant a belief in the information.

This action was instituted on the 23d of August, 1855. The object of it is to recover the sum of $3,737 for services and money, paid and performed by Guy, the plaintiff, for account of defendant. These services and advances were made and done by the plaintiff in June, July and August, 1854, as agent and consignee of the ship Hibernia, of which defendant James was the owner.

The facts are sufficiently stated in the opinion of the court, to illustrate the principles of law passed upon. Cited: Haight v. Joyce, 2 Cal. 64/ Wood’s Cal.Dig. 472/ Chitty on Bills, 104 and 105, and cases there cited ; Thorne v. Yontz, 4 Cal. 321/ Palmer y. Goodwin, 5 Cal. 458/ Vallet y. Parker, 6 Wend. 615 ; Story on Promissory Notes, 645, § 491 / 3 Johns. Cas. 5, 9 / Chitty on Bills, (18 ed.~) eh. 11 p. 546.

In tliia case a bill was filed for a writ of restitution to put plaintiff in possession of land taken by defendant. The court issued an injunction restraining both plaintiff and defendant, requiring them to cease proceeding otherwise in the matter until this cause is determined.

<p>TELEGRAPH COMPANIES — CONTRACT—DAMAGES.</p> <p>On the 7th of Oct. A. received a telegraphic message from Bv his agent, informing him that C. had failed. At 7 o’clock P. M., same day, A. gave a telegraph com-pariy the following message : “ Due $1,800; attach if you can find property; will send note by to-morrow’s stage.” The message was not sent, of which A. was not informed until 9 o’clock A. M., on the 8th, when he caused it to be transmitted. B. received it at 12 M., commenced an action at 1 P. M., and gave the sheriff a writ of attachment at 6 P. M. Recovered judgment, issued execution, returned nulla bona. Upon writs of attachment issued by other creditors of C., about 3 P. M. on the 8th, $2,000 was realized. Other creditors of C., who issued writs of attachment on the 6th, recovered nothing. A. brought an action against the telegraph company for $1,800 damages.</p> <p>Held, that it was gross negligence not to have informed A. until 9 A. M., of the 8th, of the non-transmission of his message ; but that no certain damages had been proven. Had damages been proven defendants would have been liable.</p>

<p>PUBLIC OFFICERS — SALARY.</p> <p>In 1850 a law was passed creating the office of dockmasters, and providing for the payment of their salaries. In March, 1857, a law was passed abolishing the office, but continuing the then incumbents in office, until January, 1858. In April, 1857, the law providing for the payment of the dockmasters was repealed — no provision being made for the then incumbents. The latter continued to discharge the duties of the office until January 1st, 1858. The auditor refusing to audit their claim for salary, they brought suit for a peremptory mandamus, to compel him to’-do so. Held, that there was no law making it the duty of the auditor to audit their claims —mandamus refused.</p>

<p>The material facts are sufficiently reported in the opinion.</p>

<p>NEW TRIAL — SEALED INSTRUMENT — CONSIDERATION.</p> <p>The court will, as a general rule, grant a new trial, where, in the statement as agreed upon by counsel, upon which the motion therefor is based, it is misrepresented with respect to the instructions given the jury, — but if, in view of all the facts, the instructions, had they been given as thus incorrectly set out, could not have misled the jury, the motion will be denied.</p> <p>By statute, in this state the defendant in an action brought on a bond by the obligee may plead and prove in defense the total or partial failure of consideration, but whether he has the same right against the assignee of the obligee, qumre ?</p> <p>Where a defendant in such an action proposes to avail himself of this defense, as author-ised by the statute — it being in derogation of the common law — he must plead it specially in his answer.</p>

<p>REFEREE’S REPORT IN DIVORCE — PENDING.</p> <p>A referee appointed in an action for dirorce, after answer, where the order of reference specifies that he is to take testimony, try the issues and report a finding, must set forth a finding in his report, or it will be sent back for informality.</p>

<p>FORECLOSURE — MuiTIEARIOUSNESS.</p> <p>Two mortgages, executed by the same party, may be foreclosed by one bill, although they may not be executed upon the same premises.'</p>

On motion to set aside the report of a referee. The referee found in favor of plaintiff, and defendant moved to set the report aside, hut did not file any statement of the grounds relied upon in support of the motion.

<p>Gaenishee — Intervention.</p> <p>S. being indebted to W.‘, the latter drew an order upon him, payable “ to bearerW. was also indebted to H. W. commenced an action against S. for the recovery of his debt. S. set up that he had been garnisheed by the creditors of H., for whose benefit he avers the order was originally drawn. The creditors of H. also garnisheed-W., and filed a bill of intervention in “ W. v. S.,” claiming that they had a right to the specific proceeds of the judgment.</p> <p>Held, that the defense set up by S. was insufficient, and that intervenors could not maintain their claim.</p>

Upon demurrer to six out of eight counts in a complaint for slander; the second, third and fourth counts charged defendant with saying of plaintiff “ with intent to cause it to be believed * * * that plaintiff had been guilty of the crime of larceny, * * * <■ He is a thief. He sold tickets for me and converted the proceeds to his own use.’ ‘ He is a thief.

On motion to show cause why a surety on an undertaking upon which a writ of attachment had been issued, should not be held incompetent on the ground that he was not a householder.

This was an indictment found against the defendant f^r the murder of a young woman, whom it was proven he had proposed to marry. The facts of the case are immaterial, as only so much of the charge of the court to the jury is given as bears upon the plea interposed — namely, insanity.

This hill was filed to obtain an injunction restraining the, payment of the proceeds of the sale of certain property of an insolvent firm to certain of the creditors, and praying that it may he decreed that payment he made to plaintiff. The requisite facts are fully set forth in •the opinion. The names of counsel have not been furnished.

This action was brought to obtain an injunction restraining defendant Scannell from proceeding to sell certain property under execution, and to have the judgment upon which the execution issued, declared void. In the early part of 1851, plaintiff Rowland executed a mortgage to the defendant Lieby, which was by the latter in the latter part of the same year foreclosed.

On motion to discharge a writ of attachment. The requisite facts are sufficiently set forth in the opinion. An account stated imples a new promise to pay the balance found due. Truman v- Hurst, 1 T. JR., 42; 10 Barr., 425 ; Yates v. Gar-diner, 5 L. & Eq., 541; Knowles v. Michel, 18 Fast., 249; 3 Black's Comm., 158,161-2-8; Holmes v. D' Camp, 1 Johns., 34-6.

Action brought by the holder against the endorser of a promissory note. The necessary facts are - set forth in the opinion.

On motion to set aside the report of the referee. The requisite facts are sufficiently referred to in the opinion. The defendant, who moves for a new trial, must show some error on the part of the referee, or the new trial will not he granted, if in any view of the case which the referee could legally have taken, he was authorised in making the report he did make. Johnson v. 8epulbeda, 5 Cal., 149.

On demurrer to tbe complaint for slander. The requisite facts are sufficiently stated in the opinion.

Bill filed to have a certain judgment and decree heretofore entered in the superior court of the city of San Francisco declared void and set aside, or opened to allow plaintiff to come in and defend. Upon the trial and by the records, etc., in evidence, in appeared that in 1858 certain real estate was conveyed to the wife of one Boston, who, with her husband, jointly executed to her grantor a power of attorney to sell and convey the same.

On demurrer to a complaint in an action of replevin. The necessary facts are stated in the opinion. The names of counsel have not been furnished.

On demurrer to a bill in equity filed to restrain the defendant, a tax collector of Sacramento county, from proceeding to sell certain real estate, the property of plaintiff, on the ground that the sale will he irregular, unauthorized and void ; but that a deed executed under such sale will be a cloud upon plaintiff’s title to the premises in question. The necessary facts are reported in the opinion. The names of counsel have not been furnished.

This was an action to recover damages for the injury of water, caused by the mixing of dirt and soil in the water, by using it for mining purposes. The cause was tried by the court, who found the following as the facts of the case, from the pleadings and evidence.

<p>SERVICE OF PROCESS — JURISDICTION.</p> <p>Service of summons merely, without serving a certified copy of the complaint, is not sufficient of itself, under our statute, to give the court jurisdiction in the action, and of the defendant.</p>

<p>DIVORCE — DESERTION—FAILURE TO SUPPORT.</p> <p>A divorce will not be granted on the ground of desertion on the part of the husband, and that he has, for two years next preceding the institution of the action, failed to supply the wife with the necessaries of life, having the ability so to do, provided it appears that, in the first instance, she deserted him, and never thereafter returned or offered to return.</p>

<p>On motion for a new trial. The necessary facts are referred to in the opinion.</p>

Rill filed in equity to eompel defendant to execute and deliver to plaintiff a perfect conveyance of certain real estate, alleged to have been heretofore by him, by his attorney in fact, conveyed to plaintiff, but defectively, owing to the loss or destruction of the power of attorney, which had never been placed on record. The necessary facts are given in the opinion. The names of counsel have not been furnished.

This was an indictment found against Marion Whithurst, as principal, and William Roberts and Charles Bearss, as accessories, charging them with them urder of one A. A. Mason, at the town of Michigan Bluffs, Placer county. The case was transferred for trial to San Francisco city and county. The defendants pleaded not guilty, and demanded separate trials.

<p>OFFICIAL BOND — ERASURE—OFFICER—ELECTION.</p> <p>The sureties upon an official bond, giren by one on entering on his official duties, and conditioned that the particular individual, (naming him,) shall “ well and truly perform, &c.,” cannot, in an action brought against them as sureties, object that the election of their principal was unauthorised and void.</p> <p>The fact of his having assumed the duties of office, although by virtue of an election that may have been illegal, is sufficient to charge the sureties, with a liability for acts done by him as such officer.</p> <p>The fact that the name of one of the sureties to a* joint and several official bond, has been erased, does not render the bond void, and those sureties who signed above the name erased, are bound by the bond.</p> <p>Those who signed below are not bound, for it may hare been that the signature erased was the principal inducement for them to sign, and the fact that the bond is joint and several, and that the action could be prosecuted against any or all of the sureties, does not prevent their pleading that it is not their bond, for there has been an alteration of consideration.</p>

This was an action upon a bond given by Lywn, for the payment pf moneys which he might receive as treasurer, after he had entered upon the duties of his office.

In tbe matter, on habeas corpus, of John Edwards and Joseph Sparmer, claimed as fugitives from justice from the territory of Oregon, and held under a warrant issued by the governor of this state, upon a requisition of the governor of said territory.

This was an action instituted by plaintiff, as assignee in insolvency, against defendant, sheriff of the city and county of Sacramento, for the recovery of certain property seized by the latter under process of attachment, issued at the suit of certain creditors of the insolvent debtor.

This was a bill in equity filed by an association organized for mining purposes, to obtain a perpetual injunction restraining defendants from digging and removing certain gravel, earth, cobble stones, &c. — from destroying or injuring timber, and to recover damages for the injury already done. A temporary injunction was allowed. On motion to dissolve the same. The necessary facts are stated in the opinion.

This suit was instituted by tbe plaintiffs against the defendants, charging them with diverting a portion of a stream of water which issued from the spring of one Mussel, and ran along and by the land and tannery of the plaintiffs, to the town of Santa Cruz, whereby the supply of water at their said tannery was diminished, to their irreparable injury, and prayed for an injunction, &c. The answer denies the material allegations in the bill, and alleges : JFirst.

Ejectment brought by the heirs of a deceased insolvent, against the grantee of certain real estate, sold by the trustees appointed in the proceedings in insolvency. The necessary facts are fully referred to in the opinion.

Action brought to recover the use and possession of the waters of a certain stream which had been diverted by defendants. The necessary facts are fully reported in the opinion.

This was an action brought against defendants, attorneys at law, to recover the sum of $60,000 damages, alleged to have been sustained by reason of their culpable professional negligence and carelessness. An action was commenced in February, 1855, by Adams Go., against plaintiff, to recover the sum of $25,098 ¡¡¡¡, with interest, which, action, defendants were retained, as attorneys, to defend.

<p>DIVORCE — DESERTION-PROOF OE-COMPLAINT — VERIFICATION OF-RESIDENCE.</p> <p>In an action brought by a wife on the ground of wilful desertion for two years, declarations of the defendant, that he would never again live witii his wife, made within that period, will be disregarded.</p> <p>A divorce sought on the ground of desertion will be denied where no direct and positive preof of the fact of desertion is introduced — the allegation of the bill being sustained only by declarations of defendant, that he would never again live with plaintiff.</p> <p>Semble that a complaint filed to obtain a divorce, is insufficiently verified, whore the verification is not made by the plaintiff personally, but by one A., who does not describe himself as attorney or agent of the plaintiff, nor in any way claim to act by her authority or request.</p> <p>If a husband deserts his wife in another state, and she continues to reside in such state, and he comes to this state to reside, then whether his residence in this state would, after such desertion, be hers, quaere ?</p>

<p>DIVORCE — DESERTION-PROOF OF.</p> <p>In an action by a wife for a divorce on the ground of desertion, it was proven that defendant had neglected her, that she then went to live with her mother; that defendant left this state, and since then has lived and continues to live in another state, and that prior to his departure, he declared that ho would leave plaintiff and never return; it was not proven that after leaving him, plaintiff' ever offered to return to him, and it appeared was not willing so to do. ITeld, that the divorce must be denied.</p>

<p>SUMMONS-WRIT 03? ATTACHMENT.</p>