Volume 20 — California Reports

Three separate suits in equity were commenced below, each for the purpose of obtaining relief against the same trust estate, a sale of the trust property, and a settlement of the claims of the different beneficiaries. In the Court below the actions were consolidated and referred to a referee.

The main facts out of which this case has arisen are stated in the report of the case of Burgoyne v. The Supervisors of San Francisco (5 Cal. 9).

The facts are stated in the opinion. The first instruction asked by defendant, and refused by the Court, is as follows: “ That plaintiff must have had the actual possession in himself, and not holding as agent for his principal; for if he was in possession as agent, the possession was that of the principal, and the agent could not bring this action in his own name.”

This case was before the Supreme Court on a previous appeal at the July term, 1860, reported in 16 Cal. 107. The purport of the evidence on the first trial is there stated in the opinion of the Court, and at the new trial it was of the same character, and showed clearly that the negro locksmith, who opened the door, did so under the direction of defendants Burr and Whitney.

At the general election held on the fourth day of September, 1861, four candidates for the office of District Attorney of the county of Sonoma were voted for in that county, the relator and defendant being the two who received the most votes. At Salt Point precinct the relator received seventy-nine votes, and the defendant twenty votes.

<p>Exemplary or vindictive damages cannot be recovered for a trespass not malicious in its character.</p> <p>Where C., acting under the advice of attorneys, had obtained a judgment against H., which was void by reason of a want of jurisdiction of the person of H., and in ignorance of the invalidity of the judgment, caused execution to be issued and levied upon the interest of H. in a partnership of which he was a member, and there were no extraordinary circumstances indicating malice attending the seizure or the subsequent proceedings under it: Held, in an action against C. by the partner of H., for the injury sustained by the levy, that exemplary damages could not be recovered.</p> <p>Where, upon a certain point in a case, there is no evidence, or only such slight evidence as is plainly insufficient to establish it, it is proper for the Court to instruct the jury to that effect, and withdraw the point from their consideration.</p> <p>Thus, where in an action of trespass—plaintiff having attempted to prove malice and a willful effort to injure on the part of defendants, with a view of claiming vindictive damages—the Court, on its own opinion of the insufficiency of the evidence, instructed the jury that malice was not proved, and that they could not therefore find exemplary damages: Held, that the instruction was proper —the character of the proofs warranting it.</p> <p>Damages for a trespass, where there is no malice, must be limited to the direct and natural consequences of the act, and must also be such as are susceptible of computation.</p> <p>Doss sustained by a mercantile firm—from the seizure of their property—in the diminution of their business, and its consequent profits, subsequent to the release of the property from the seizure, is not an element of damage susceptible of computation with any reasonable degree of accuracy, and evidence concerning it is properly excluded from the jury.</p>

<p>The death of an appellant after argument of his case upon appeal does not constitute any ground for delaying a decision or departing from the ordinary course of procedure, except as to the entry of the judgment which may be rendered. The entry should be of a day anterior to the appellant’s death.</p> <p>The rule is different if the death occur previous to the argument; in that event, further proceedings can only be had upon leave given after suggestion of the death is made.</p> <p>Where, after the death of the appellant, the appellate Court not being aware of the death, render a judgment of affirmance, upon subsequent suggestion of the fact the judgment will be vacated, and a judgment of affirmance rendered as of a day previous to the death nunc pro tunc.</p>

<p>Ap-ptüat, from the Twelfth Judicial District.</p> <p>The facts are sufficiently stated in the opinion of the Court.</p>

<p>Where the parties to a controversy make an agreed case, under the three hundred and seventy-seventh section of the Practice Act, which is submitted for decision to the District Court, the consideration of the Court is restricted to the facts admitted in the case.</p> <p>Where the plaintiff claimed that defendant was indebted to him, and, under the section above referred to, a case was made and submitted, stating the facts agreed upon between the parties, upon which the District Court decided that plaintiff’s demand was not established without proof of other and additional facts : Held, that it was error for the Court, instead of rendering judgment for the defendant, to make an order based upon the supposition that plaintiff might establish such other facts.</p> <p>Mandamus is not the proper remedy for the enforcement of a claim against a county, which has been presented to the Board of Supervisors of the county and by them rejected. In such cases, the statute authorizing the party to sue the county has given him a plain, speedy and adequate remedy at law. The writ of mandamus belongs only to such as have legal rights to enforce, and find themselves without an appropriate legal remedy.</p> <p>To authorize a mandamus, it must appear not only that the performance of the act, to enforce which the writ is asked, is a duty resulting from the office, trust or station of the Board or party to whom the writ is to be directed, but that the performance has been requested and refused.</p>

A motion having been made by the District Attorney for leave to file the transcript in this case without payment of Clerk’s fees, the, following opinion was delivered by Horton, J.—the other Justices .concurring. .A motion is made in this case by the District Attorney of Sacra•mento county for leave to file the transcript of the record with the Clerk of the Court without payment of the Clerk’s fees in advance.

<p>The statutory provisions for acquiring jurisdiction of the person of a defendant, by-publication of the summons in the stead of a personal service, must be strictly pursued.</p> <p>An order to publish a summons made in advance of the issuance of the summons is a nullity.</p> <p>Where, after complaint filed and before any summons was issued, an order was obtained from the Judge that “ summons do issue ” and that it be published, and without any further order summons was subsequently issued and published: Hdd, that the attempt thus to acquire jurisdiction of the defendant was ineffectual, and that a judgment rendered against him by default, without any other service of process, was void.</p> <p>The Judge has no power to order a summons to issue, but only to order a summons already issued to be served in a special manner.</p>

This action was commenced in a Justice’s Court, and appealed to the County Court, and there tried de novo. Verdict and judgment being for plaintiff, defendant moved for a new trial, which was refused, and from this order the appeal is taken. The facts are sufficiently.stated in the opinion.

Plaintiff, on the twenty-second day of April, 1858, was the holder of a note against defendant Bowers for $4,000, secured by a mortgage on a mining claim owned by same defendant. Bowers on that day contracted to sell the claim to defendant Benedict, and the two .executed the agreement set forth in the findings of fact.

<p>Appeal from the Sixteenth Judicial District.</p> <p>The facis of the case are sufficiently stated in the opinion of the Court.</p>

<p>A" judgment by default for an amount exceeding that asked for in the prayer of the complaint is erroneous.</p> <p>Where the complaint prayed judgment for a certain amount, then alleged to bo due, ■ as principal and interest of the note sued on, and that the judgment bear interest at a certain rate, and judgment by default was subsequently rendered for the amount, with interest from the date of filing the complaint: Held., that the judgment was erroneous, in awarding interest from the date of filing the complaint instead of the date of its entry.</p>

.Action brought on a promissory note to recover $3,100. Defendant answered, admitting an indebtedness of f 1,100, denying the balance, and making no counter claim. The case was by consent referred to a referee to take the testimony and report a finding of facts and a judgment.

<p>The offices of County Clerk and County Becorder are distinct offices, though they may be held by the same person; and it makes no difference in the character of the office whether the law declares in terms that the Clerk shall also be Becorder, or declares that the Clerk shall be ex officio Becorder.</p> <p>In 1858, a law was passed separating the office of County Becorder of Shasta county from that of County Clerk, and making the Becorder ex officio Clerk of the Probate Court. In 1860, by the general Bevenue Act, the County Clerk was made ex officio Becorder. By the Bevenue Act of 1861, County Becorders were again required to be elected separately. Bach of the Bevenue Acts contained a clause repealing all laws and parts of laws in conflict with its provisions, but neither contained any provisions inconsistent with that of the law of 1858, which made the Becorder ex officio Clerk of the Probate Court: Held, that a Becorder elected in 1861 was Clerk of the Probate Court—the office of Probate Clerk having remained attached to that of Becorder during the whole period.</p> <p>An act containing a clause repealing all acts and parts of acts inconsistent with its provisions, but not repealing by name a previous act on the same subject matter, leaves in force all such portions of the previous act as arc not in conflict with its provisions.</p>

<p>Appeal from the Fourth Judicial District.</p> <p>The facts of the case are sufficiently stated in the opinion of the Court.</p>

This is an action brought to set aside a judgment obtained by default against the plaintiff herein and others, in favor of the defendant Kreutz. The action in which the judgment was subsequently obtained was before this Court at the April Term, 1860, and the report of it (15 Cal. 345) shows the nature of the action, and the facts upon which Kreutz, the plaintiff therein, based his claim.

Plaintiff brought suit on certain promissory notes; defendant answered alleging entire failure of consideration. Plaintiff demurred to this answer on the ground that it constituted no defense to the action.

Defendant demurred to the indictment. Demurrer sustained, and judgment thereon entered in favor of defendant, from which this appeal is taken by the people.

This is an appeal from an order of the Probate Court of Sonoma county refusing to confirm a sale of a parcel of real estate made by the administrator. On the seventh of October, 1861, the Court made an order directing the administrator to sell at public auction seven different parcels of land, a separate and particular description of each parcel being contained in the order.

Taylor & Wadsworth being in failing circumstances, executed to the defendants, to whom they were indebted in about the sum of $4,000, an assignment of certain accounts. The assignment attached to a schedule of the accounts is in these words : “ Know all men by these presents, that we, Thos.

This action was commenced on the thirtieth day of July, A. D. 1860. All other material facts are stated in the opinion of the Court.

On the-day of May, 1861, plaintiff commenced suit in the District Court of the Sixth Judicial District against defendants, Gr. Backus, D. O. Mills, L. B. Harris, J. H. Grass,and.R. C. Clark, for the sum of SI,500 and interest. On the third, day of July, 1861, service was had on L. B„. Harris, one of the above defend-ante, and on the ninth of the same month service was had on D. 0. Mills, another of said defendants.

<p>Appeal from the County Court of Nevada.</p> <p>Motion for rehearing. The facts are stated in the opinion.</p>

Action in the nature of a quo warranto to remove defendant from the office of District Judge of the Eighth Judicial District. The facts are stated in the opinion. Defendant had judgment in the Court below, and plaintiff appeals.

Indictment for murder. The defendant, who is the appellant, was tried by a jury, and found guilty of murder' in the second degree. The grand jury who found the indictment was composed of sixteen persons—three of them were challenged by defendant and excused from the examination of his case ; the remaining thirteen found the indictment.

* The following is a copy of the deed from Heyerman and wife to Stevens, and of the certificates of acknowledgments and proof annexed, which are referred to in the opinion of the Court.

Indictment for murder. Defendant was arraigned on the fourteenth day of December, 1861, and plead guilty; thereupon the Court fixed the twenty-first day of December to have witnesses examined in reference to the degree of guilt and to pronounce judgment. On the twenty-first of December, the defendant was brought into Court, and two witnesses were examined touching the circumstances of the killing.

An action of ejectment was commenced in the Fourth District Court against the relator and ten others, the complaint charging a joint ouster by all the defendants.

The judgment of this Court, which was sought by this proceeding to be carried before the Supreme Court of the United States for review, will be found with the decision in the report of the case, (15 Cal. 530).

<p>An order vacating a dismissal of appeal, obtained upon a stipulation signed by counsel for respondent in ignorance of the dismissal, will be set aside on his motion.</p>

<p>Appeal from the County Court of the Oily and County of San Francisco.</p>

<p>Appeal from the County Court of the City and County of San Francisco.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the Sixth Judicial District,</p> <p>The complaint alleges that plaintiff was, on a day named, the owner and possessor of certain cattle of the value of nine hundred dollars; that defendant wrongfully took them from his possession, and still detains them; and prays for restoration of the possession, or if a return cannot be had, for the value.</p> <p>The answer denies the ownership and possession of plaintiff, and the wrongful taking by defendant; and alleges that the cattle are and were at the time of the alleged taking the separate property of plaintiff’s wife; that a portion of them were the separate property of the wife before marriage, and the remaining portion were acquired by her while doing business as a sole trader under the statute; and that defendant took and held the property as agent of the wife, and with her consent.</p> <p>On the trial, testimony was introduced tending to establish the allegations of the pleadings; and the Court gave to the jury the following charge:</p> <p>“ The question is: Is this the property of the separate estate of Mrs. Mahone, or is the property or any part of it the joint estate of the two ? If it is her separate property, she has a right to control it, and it was rightfully in Grimshaw’s hands, and he has a right to hold it.” To which plaintiff excepted.</p> <p>The jury returned a verdict for defendant; plaintiff moved for a new trial, and the motion was granted. From the order granting the new trial the appeal is taken.</p>

The indictment is as follows: “ Ah Ki (Chinaman) is accused by the grand jray of Nevada county, by this indictment, of the crime of grand larceny, committed as follows: The said Ah Ki, on, to wit, the twelfth day of September, A. D. 1861, at the township of State range, in the county of Tuba, in the State of California, and within five hundred yards of the line of the county of Nevada, feloniously did steal, take and carry away, one silver watch of the value of thirty…

<p>Wheke an appeal is taken from the judgment and from an order refusing a new trial, and the statement on appeal from the judgment is not prepared within the statutory time, and the statement on appeal from the order refusing a new trial is not agreed to by the parties or their counsel, or settled by the Judge who tried the cause, nothing but the judgment roll will be considered by the appellate Court.</p>

Action for conversion of personal property. When the case was called for trial, plaintiff applied for a continuance, upon affidavit of the absence of a witness, whose testimony was alleged to be material, and who was stated to be at the time in the town of Sydney, in Hew South Wales.

The contract, for the breach of which this action is brought, was a verbal one, and is stated in the complaint as follows: That “un the-day of-, A. D. 1858, being a short time previous to the letting of the mail contract for carrying the United States mail from the city of-, California, to the city of Salt Lake, Utah Territory, by the Post Office Department at Washington City—the said plaintiff and defendant being both mail contractors; and the said defendant being desirous…

The facts are sufficiently stated in the opinion of the Court. The following are the second and fifth sections of the amendatory Homestead Act of 1860, referred to in the opinion: “ Sec. 2.

<p>Appeal from the Third Judicial District.</p> <p>The facts are stated in the opinion.</p>

Ejectment to recover nine hundred and twenty-six feet of an underground channel claimed by plaintiffs. The possession of the ground by defendants is admitted by the pleadings. In June, 1852, a mining association, called the “ Experimental Company,” or “Allen Oliver & Co.,” commenced a tunnel for the purpose of piercing an old subterranean channel in Table Mountain, (then first discovered) containing gold.

<p>Appeal from the Twelfth Judicial District.</p> <p>This was an action brought in the District Court of the Twelfth District, to recover a balance due on a domestic judgment recovered in the Fourth District Court of this State, on the fourth day of April, A. D. 1858. No promise to pay within five years, nor any other circumstance to take the case out of the Statute of Limitations, is set up in the complaint. The defendant demurred, on the ground that the complaint did not state facts sufficient to constitute a cause of action. The Court gave judgment for the plaintiff on the demurrer, which judgment, having become final, is now appealed from. The following is the opinion given by the Judge of the Twelfth District Court, upon the decision of a similar case, and which formed the basis of his decision in this case:—</p> <p>“ 1. Defendant demurs to the complaint, and relies on the Statute of Limitations, presenting the single point whether domestic judgments are included within the seventeenth or nineteenth section of that Statute. This statute was passed on April 22d, 1850. Sec. 17 reads: 1 Within five years, an action upon a judgment or decree of any Court of the United States, or of any State or territory within the United States.’ While this language would include California as a ‘ State within the United States,’ it is not the ordinary language in which that idea would be conveyed.</p> <p>“ The section then proceeds: ‘ Within four years, an action upon any contract, obligation or liability, founded upon an instrument of writing, except those mentioned in the preceding section.’ This ‘ preceding section ’ is section sixteen, but the evident meaning is the preceding clause of section seventeen, and I so read it. Sec. 19 reads: ‘ An action for relief not before provided for, must be commenced within four years after the cause of action shall have accrued.’</p> <p>“ On the same day the Civil Practice Act was passed. Sec. 173 provided ‘ that the party in whose favor judgment shall be given, may at any time within five years after the entry of the judgment, proceed to enforce the same as provided by that act,’—referring to the issuing of execution.</p> <p>“ 2. Sec. 174 authorized ‘the issuing of an execution after the lapse of five years (without limit) by leave of the Court, on motion, on the oath of the party, or other proof, that the judgment or some part of it remained due.’</p> <p>“These two sections are substantially the same as the corresponding sections of the Practice Act of 1851, except that the Act of 1850 required notice to the opposite party, which was omitted in the latter act.</p> <p>“ In the five hundred and thirty-second section of the Act of 1851, the attention of the Legislature is directly called to the question of limitations as applied to particular causes of action.</p> <p>“ 3. If the view contended for by defendant be correct, that the five years’ clause of section seventeen includes domestic judgments, then this anomaly would be presented, that the Legislature on the same day determined that the same judgment should be void and insufficient as a contract or cause of action, and at the same time sufficient to support an execution to be issued upon it on the mere oath of the party that something was due. You shall not, in the solemn form of an action, determine whether the judgment is paid, because our Statute of Limitations pronounces the judgment null and void, and no cause of action; but you may by summary oath of the party decide that very question, because if anything is due, the Practice Act makes the judgment good for an indefinite period beyond five years.</p> <p>“ 4. A judgment is a contract as well as a record. (10 Cal. 305.) While therefore it is a record to support an execution, it must also be a contract to sustain an action, unless most unequivocally declared otherwise by statute.</p> <p>“ Statutes relating to the same subject matter must be so construed that all parts of them may, if possible, stand consistently together.</p> <p>“ Eor these reasons, I do not think the Legislature, on the twenty-second of April, 1850, intended to include domestic judgments within the five years’ clause of section seventeen.</p> <p>“ But it is urged that such judgments are within the four years’ clause of that section, (and they would certainly appear to come within its language) or if not, then within section nineteen.</p> <p>“ 5. But here we are met by a still greater inconsistency than under the five years’ clause. That the Legislature meant to say: “ You shall not bring the action after four years, because the judgment is void from lapse of time; but you may issue your execution for a whole year longer, because the judgment is in full force for a year longer.’</p> <p>“ I conclude, therefore, that neither of those sections was intended by the Legislature, at the time of the passage of this act, to include domestic judgments.</p> <p>“ How then is this view affected by the repeal of sec. 214 of the Practice Act of 1851 ?</p> <p>“ 6. The true question is, what did the Legislature mean by the Limitation Act, on the twenty-second of April, 1850 ? We arrive at them meaning, in part at least, by their cotemporaneous legislation. But a part of that cotemporaneous legislation is since changed. Be it so ; it was in force long enough to shed its light on the point at issue. Had they meant to have affected or changed them construction of another statute than that directly in part repealed, they would probably have so declared.</p> <p>“ Perhaps the only effect of that repeal is to compel a party to bring his action after five years, instead of resorting to the former summary method.</p> <p>“ The ease of Bryan v. Stidger, (17 Cal. 270) decided in January term last, and holding that notice of motion was not required in order to obtain leave to issue execution, probably led in the following April to the repeal of sec. 214.</p> <p>“ 7. It is contended that the Supreme Court, in Quivey v. Hall, Adm’r, (19 Cal. 97) have directly decided this point; and if that be so, of course it is no longer open to question here; but I do not so understand it.</p> <p>“ After using language certainly holding that the lapse of five years is a bar to an action on such judgment, they proceed—but we think this doctrine has no application here—‘it was not the point on which their decision rested;’ it had ‘ no application ’ to it.</p> <p>“ I therefore read that case as if it said: ‘ Assuming that five years is the statutory bar to suits on such judgments, this case must turn, not on that statute, but on the Probate Act;’ and I do not consider it a direct authoritative decision on this point.”</p>

Ejectment for a tract of land in Santa Clara County. The premises are part of a tract known as the “ Robles,” or “Rincon de San Francisquinta” tract, granted by the Mexican Government to José Pena prior to 1847, which grant has been subsequently confirmed by the Government of the United States. In December, 1847, Pena conveyed the premises, by deed, to J. T. and S. Robles, and from them, through mesne conveyances, plaintiff derives his title.

<p>The time fixed by the first section of the Limitation Act of 1855, within which an action may be commenced for the recovery of land under a title derived from the Mexican or Spanish Governments, does not begin to run until the issuance of the patent by the United States Government.</p> <p>The terms “ final confirmation by the Government of the United States,” as used in said act, mean the definitive confirmation of the title to certain specifically described premises, and include not only the recognition of the validity of the title by the Judicial Department, but also by the Executive Department, which formerly exercised supervision and control over the location of confirmed Mex-can grants.</p> <p>Until the Act of Congress vesting the supervision and control of surveys of confirmed Mexican grants in the United States District Court, there was no absolute finality to the survey until it had received the approval of the Commissioner of the Land Office, as well as that of the Surveyor General for California; and the only authoritative evidence of such approval was the patent.</p>

This is an appeal from an order of the District Court, granting an injunction at the suit of the State against John A. McGlynn and A. J. Butler, executors of the last will and testament of D. C. Broderick, deceased.

Action to recover the amount due upon a promissory note, dated November 12th, 1857, made by defendants, payable one day after date to Asa Howard or order, for three hundred and thirty-six dollars, with interest at the rate of three per cent, per month.

This action was commenced in a Justice’s Court on the seventh day of December, 1860.

This is an action of ejectment to recover the possession of a lot situated within the limits of the city of San Francisco. Both parties claim title from the same source—from one George Harlan, who died in the county of Santa Clara in July, 1850. The plaintiff claims by a conveyance from Aspinwall, who is alleged to have been at the time the administrator of the estate, executed upon a sale made by order of the Probate Court in November, 1855.

The petition of the relator shows that on the twenty-fourth day of July, 1862, defendant was Tax Collector of the city and county of San Francisco, and that the relator then owing city and county taxes assessed to him upon his property to the amount of two hundred and seventy dollars and forty-five cents, on that day tendered to defendant as Collector the said amount in United States notes issued under the Act of Congress of February 25th, 1862; that the said Collector…

This is an action of ejectment, brought by the appellants against the respondents, for land in Sonoma county. Both parties claim title—the plaintiffs as devisees under the will of Henry D. Fitch—the defendants as purchasers under a guardian’s sale, made by order of the Probate Court of Sonoma county.

This was an action of ejectment to recover the possession of two one hundred-vara lots, situated within the city and county of San Francisco.

The relator, J. A. Fletcher, presented to the Supreme Court an affidavit in substance as follows: That in October, 1857, he was admitted as an attorney and counselor in the Supreme Court; that on the first day of October, 1860, in the District Court of the Ninth District, he moved for default, judgment, and assessment of damages in a suit therein pending, in which he was attorney of record for the plaintiff; that the presiding Judge of said Court overruled the motion and…

<p>Appeal from the Sixth Judicial District.</p> <p>The facts are stated in the opinion. The defendant made default. Upon the proof, the Court below found the fact of abandonment by the husband for the period of nine years, but held that this did not establish a willful desertion on his part without some proof of the circumstances and causes of the separation, and accordingly rendered judgment for defendant, from which plaintiff appeals.</p>

■The defendant was indicted under the name of James B. Boggs for the crime of murder. The verdict of the jury who tried the case was as follows: “ We, the jury, do find the defendant J. M. Boggs guilty of manslaughter. D. D. Hemmenway, Foreman.” Defendant moved for a new trial on the ground of the error in the name of the defendant in the verdict, and also on the ground of misconduct in the jury, and the officer having the jury in charge after the case was submitted.

4 Indictment for robbery. After the jury were empanneled, on motion of the District Attorney, the defendant’s witnesses were sworn and put under the rule excluding them from the Court room, and from the hearing of the other witnesses.

This action is brought by plaintiffs to recover damages in the sum of $1,200 against defendants, for an alleged diversion by them of the waters of a certain stream in Calaveras county, called Cayote creek; and also to procure a perpetual injunction against any further diversion of the waters of said stream by defendants hereafter.

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

This action was commenced in the District Court of the Twelfth District, on the fifth day of January, 1858.

This is an action brought to recover the possession of a tract of land situated within the limits of the City and County of San Francisco, and specifically described by metes and bounds ~n the complaint.

This is an action brought by the respondent, Easterly, to recover jointly of the defendants, Bassignano and Larco, the sum of $2,248.64 for goods, wares and merchandise sold and delivered, and for money advanced by the said plaintiff to said defendants.

<p>The effect of the proviso in the twelfth section of the Act of I860, concerning Roads and Highways in the counties of Humboldt, Napa and Siskiyou, is to limit the power of contracting, in reference to roads and highways, to the mode there pointed out; and this limitation applies as well to the Board of Supervisors as to the overseer; and a contract made in any other manner is not binding upon the county.</p> <p>The plaintiff proved that he did work and furnished materials for repairing a public bridge in Napa county, at the request of the Board of Supervisors of the county, and that the Board promised to pay him for the same; but he neither proved nor attempted to prove a compliance with the Statute of 1860 in awarding the contract: Held, that he was properly nonsuited at the trial.</p> <p>Where the complaint averred a contract between plaintiff and the Board of Supervisors on behalf of the county, and the answer admitted a contract between the plaintiff and another on one side, and the county on the other, and averred that this was the only contract made by the county in relation to the matter, and denied that any other was made by the Board of Supervisors : Held, that this denial was sufficient to put the plaintiff on proof of the contract.</p>

Action in the nature of a quo warranto to try the right of the defendant, Thomas U. Cazneau, to the office of Superintendent of Immigration for the Port of San Francisco.

. This action is brought by James McCabe against Cyril Y. Grey and his wife, and a subsequent mortgagee, to foreclose a mortgage executed by Grey and wife to one Corwin, the assignor of plaintiff, upon a lot in San Francisco, as security for the payment of $1,150 and interest due from Grey to said Corwin ; and the complaint asks for a sale of the mortgaged property, and a judgment against defendant Grey for any deficiency after application of the proceeds of the sale to…

<p>Where, in an action of ejectment, the complaint did not directly aver a seizin or ownership of the premises by plaintiff, but alleged that the plaintiff by location, survey and certain other acts, acquired possession; and the answer denied these acts, except the survey, and denied that plaintiff acquired possession by location “ or in any other manner.” Held that the allegation of prior possession was sufficiently denied by the answer.</p>

<p>On a trial under an indictment for murder, the defendant is presumed to be sane until the contrary is made to appear; and his insanity, if relied upon as a defense, must be established affirmatively by a preponderance of proof.</p> <p>An instruction asked by defendant on a trial for murder to the effect that if the evidence created a reasonable doubt in the minds of the jury as to the sanity of the defendant at the time he committed the act, he should be acquitted— was properly refused.</p>

<p>Appeal from the Fourth Judicial District.</p> <p>The only question raised in this case was the sufficiency of the evidence to sustain the report of the referee, and the character of the testimony is sufficiently stated in the opinion.</p>

<p>Appeal from the Fourth Judicial District.</p> <p>The facts are sufficiently stated in the opinion, and in the previous reports of the same case in 7 Cal. 575, and 14 Id. 247.</p>

<p>When in a criminal proceeding a Justice of the Peace exacts, and the defendants give, a security in the form of a bond on appeal which the statute does not require, no liability results from its execution.</p> <p>A Justice of the Peace, on conviction of certain parties of the offense of fraudulent and malicious mischief, rendered a judgment imposing a fine, and in default of payment, imprisonment in the county jail. Por the purpose of perfecting an appeal, defendants gave a bond reciting a money judgment (of the same amount as the fine) and binding the sureties for its payment, and setting forth substantially the conditions required in an undertaking on appeal to the County Court in civil cases: Held, in an action against the sureties on the bond, after affirmance of the Justice’s judgment, that the instrument was not authorized by the statute, and that no action could be maintained upon it.</p>

This is an action to recover the value of eighteen shares of stock issued by the defendant, a corporation organized under the Act of 1853, to W. P. C. Stebbins, the assignor of plaintiff. The complaint alleges an assignment to plaintiff, and a refusal by defendant to transfer the stock to plaintiff on its books, and recognize him as the owner of the shares.

The suit was brought originally before a magistrate, to recover five dollars, paid by the plaintiff, Lin Sing, a Chinese, to the defendant, Washburn.

The complaint sets forth that in October, 1858, the plaintiff John Peters and one McCall were the owners of certain valuable mining claims situated on the east branch of Oregon Creek, in Yuba County, known as Petérs & Co.’s claims, and were engaged in working the same, and had at much expense constructed a tail-race, and also a ditch, for the purpose of bringing upon their claims the waters of said stream, to the use of which they had the prior right; that the defendants,…

The first section of the “ Act to authorize the Board of Supervisors of the City and County of San Francisco to regulate and license Intelligence Offices in said City and County,” approved May 17th, 1861, is as follows. “ Sec. 1.

<p>Appeal from the Tenth Judicial District.</p> <p>Application for mandamus to compel the County Treasurer of Yuba county to pay certain warrants drawn upon him, by the County Auditor.</p> <p>The facts are stated in the opinion. See also Randall v. Yuba County, (14 Cal. 219) in which one employed by the Tax Collector recovered against the county for printing the same tax list referred to in the opinion in this case. The writ was refused by the District Court, and the petitioner appeals.</p>

<p>Appeal from the Fifth Judicial District.</p> <p>This is an action brought by the District Attorney of San Joaquin county, under the Act of May 17th, 1861, (Laws of 1861, 471) concerning the collection of delinquent taxes, to recover of the defendant, Andreas Pico, the sum of S2,671.66, alleged to be the amount of delinquent taxes assessed against certain real property belonging to the defendant, in the years 1859 and 1860.</p> <p>The property, against which it is charged that the taxes were assessed, is described in the complaint as follows.</p> <p>“ The unsold portion of eleven square leagues of land known as Los Mokelamos, containing 31,260 acres, bounded north by public lands, east by public lands, south by lands of 0. M. Weber, and west by tule lands.”</p> <p>The defendant demurred to the complaint, and the demurrer was overruled. No answer being filed by defendant, the plaintiff had final judgment for the amount sued for, from which judgment the defendant appeals.</p>

<p>In an action against a Sheriff for taking goods from the possession of the plaintiff, where the defendant justifies under a writ of attachment against a third person, and alleges a fraudulent sale from such third person to the plaintiff, proof of the</p> <p>, debt on which the writ of attachment was based is necessary for no other purpose than as the foundation for proof that the sale was void as to creditors. Where in such action the fraudulent character of the sale was put in issue by the pleadings, and full proofs regarding that question were introduced on the trial without any objection from plaintiff that the debts on which the writ of attachment rested had not been proved, and no instruction was asked concerning the point, nor the attention of the Court below in any manner called to it: Held, that plaintiff could not avail himself of the absence of proof of the attachment debt by objection raised for the first time in the Appellate Court.</p> <p>Where the defense to an action rests upon the fact of fraud in a sale of property to the plaintiff, the declarations of a person not a party to the action are admissible in favor of defendant, if such person was a party to the purchase alleged to be fraudulent, and his connection with the purchase may be established by the admissions, or conduct equivalent to admissions, of the plaintiff.</p> <p>The rules of law in regard to the right of a failing debtor to give a preference to some of his creditors, have no application to a sale for cash to a person not a creditor, although the proceeds may have been applied to pay creditors.</p>

This case was before the Supreme Court on a former appeal, in the report of which (15 Cal. 96) the nature of the action is shown and a copy of the instrument sued on set forth, and hi the opinion on that appeal a construction was given to this instrument.

<p>Appeal from the Sixth Judicial District.</p> <p>Action to recover the possession of two horses, a hack and harness. The complaint states that the plaintiff is the owner, and entitled to the possession, and that defendant wrongfully retains the property. The answer denies the ownership of plaintiff, and avers that plaintiff sold the property to one F. S. Malone, and afterwards mortgaged it to defendant to secure two hundred dollars and interest, defendant being at the time ignorant of the sale to Malone ; that afterwards discovering the sale, defendant was compelled, in order to save himself, to purchase the property of Malone, which he did at the price of two hundred and thirty dollars—-Malone delivering to him the possession. The property having been delivered to the plaintiff on affidavit and order at the commencement of the action, the answer prays for its return to defendant. The replication avers that the bill of sale from plaintiff to Malone, though absolute upon its face, was intended as a mortgage to secure money due from plaintiff to him; that defendant knew this at the time of taking his mortgage, and was present when plaintiff paid Malone two hundred doHars in order to release his claim and enable plaintiff to mortgage to defendant; that the bill of sale from Malone to defendant was a fraud, and that defendant fraudulently procured the possession of the property through Malone and by his connivance; that at the same time that the written mortgage was executed by plaintiff to defendant, there was a verbal understanding that plaintiff should retain possession of the property for three months, which had not yet expired; that plaintiff had tendered to defendant the two hundred dollars and interest, for which the property was mortgaged to him, which defendant refused to receive, and that he is still ready and now offers to make said payment.</p> <p>The jury, together with a general verdict for defendant, found, specially: that the bih of sale from plaintiff to Malone was a mortgage, and that Malone delivered the possession to plaintiff to enable him to make the mortgage to defendant; that the value of the properly was five hundred dollars; that plaintiff had tendered to defendant the full amount due him, for which the mortgage was executed.</p> <p>The Court rendered a general judgment for defendant, but denied his motion for judgment that the property be returned to him.</p> <p>Defendant moved for a new trial, which was overruled, and from this order and the judgment, the defendant appeals.</p>

On the twenty-ninth day of May, 1856, N. A. Townsend and defendant entered into a contract, whereby Townsend agreed to sell to defendant the undivided one-half of a certain water ditch in Shasta County, for which defendant agreed to pay $5,000 in installments, defendant to have immediate possession, and upon the payment of the purchase money, Townsend to execute to him a conveyance.

This is an action of ejectment to recover the possession of a lot situated within the city of San Francisco. Both parties claim title from the same source—from one George Harlan, who died in the county of Santa Clara, in July, 1850. The plaintiff claims under a conveyance from the heirs of Harlan, executed in April, 1854.

This action was commenced in the Twelfth District Court, on the fifteenth day of April, 1856.

<p>T. and J. contracted with L. for the purchase of certain real property, paid the purchase money, took from L. an obligation for a deed within five days, and entered into possession. Forty days afterwards, L. tendered a deed, which was objected to by the vendees on account of its form, and subsequently at the request of the vendees another deed was tendered, which was also objected to on the ground that it was not executed by the proper parties; but no objection to either deed was made on account of the time at which it was tendered— Held, that the stipulation as to the time of the execution of the conveyance was waived.</p> <p>A contract by a married man for the sale and conveyance of land is not, if the premises are the homestead of himself and wife, fulfilled by the tender of a conveyance executed by himself alone.</p>

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

In the year 1850, the City of San Francisco, being greatly in debt, passed several ordinances for the creation of a “ Sinking Fund Stock,” for the payment, among other purposes, of the then existing city indebtedness; and, to carry out those objects, caused a conveyance of all the real estate of the city to be made to certain “ Commissioners of the Sinking Fund,” who were created by said ordinances.

This action was brought for the foreclosure of a mortgage upon the -undivided one-eighteenth interest in the Estadillo Rancho, Alameda county, the separate property of one of the defendants, Maria Concepcion Ward, wife of John B. Ward, another defendant. The mortgage was executed February 24th, 1854, by Mrs. Ward and her husband to William bT.

<p>Where a statute contains a clause repealing all laws and parts of laws in conflict with its provisions, a previous act upon the same subject matter, the material provisions of which are repugnant to and irreconcilable with those of the new act, is repealed by it, unless the the terms of the subsequent act show an intention to keep the previous one in force.</p> <p>The Revenue Act of 1860 repealed the Act of April, 1858, concerning the Collection of Poll Taxes, etc., in the County of Sierra; and under the provisions of the Revenue Act of 1861, the Sheriff of that county is the collector of poll and license taxes, as well as the tax on property.</p>

<p>Where an appeal is taken to the Supreme Court from a decision of a Justice’s Court, upon a case submitted on an agreed statement without action, under the three hundred and seventy-seventh section of the Practice Act, the transcript • on appeal must contain a copy of the affidavit required by the same section, showing the reality of the controversy and good faith of the proceeding.</p> <p>Where, instead of this affidavit, the record only showed an allegation in the agreed statement on appeal that the cause was heard in the Court below on an agreed statement of facts, “ and the affidavit of the defendant that the controversy was real,” the appeal was dismissed.</p>

The paper, of which a copy is set forth in the opinion, was filed in the District Court of the Sixth District, on the twenty-seventh day of July, 1850.