Volume 21 — California Reports

The action was brought January 20th, 1858, by L. E. P. Smith and others, to recover $7,271 35, the full amount of four promissory notes of P. H. Owens & P. A. Owens, defendants, including principal and interest to that date.

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

Ejectment by E. A. White, plaintiff, to recover from W. Moses, B. Wheaton, D. Winter, and J. B. Banks, defendants, nine undivided sixteenths of a lot in San Francisco. The complaint sets up title and seizin in the plaintiff on the first of January, 1854, and avers an ouster by the defendants at that time, with a subsequent retention of the possession by them, and claims damages for use and occupation in the sum of five hundred dollars.

The facts, except as they are stated in the opinion of the Court, are the same as in the preceding case of P. A. White et al. v. Moses et al.

<p>Ah agent signing Ms own name to a promissory note made on behalf of his principal is not personally liable as a maker if the instrument itself discloses the intention to bind 1ns principal and not himself.</p> <p>James Harter and S. ÍL Stranahan were sued as joint makers with the Ocean Mining Company of a note, set forth in the complaint, in the following form: “ Three months after date the Ocean Mining Company promise to pay to W. G-. Bright or order one thousand dollars, for value received, with interest at the rate of two per cent, per month. (Signed.) James Harter, Trustee, S. ÍT. Stranahan.” Judgment by default was rendered against the company and H. and S.: Held, that this judgment was erroneous; that the instrument itself showed the intention of H. and S. to bind the company and not themselves, and that they were not personally liable.</p> <p>Held, further, that the presumption as to the character in which H. and S. signed the note, created by the form of the instrument, was not destroyed by an allegation in the complaint that they executed as makers.</p> <p>Haskell v. Cornish (13 CaL 45) affirmed.</p>

<p>Accokd and satisfaction, as a defense to an action for the recovery of money, must be specially pleaded.</p> <p>A denial, whether general or special, only puts in issue the allegations of the complaint. The difference between a general and special denial in this respect is only in the extent to which the allegations are traversed.</p> <p>New matter must be specially pleaded; and whatever admits that a cause of action, as stated in the complaint, once existed, but at the same time avoids it—that is, shows that it has ceased to exist—is new matter.</p> <p>Piercy v. Sabin (10 Cal. 22) and Glazer v. Cliff, (Id. 303) as to the necessity of pleading new matter in defense, affirmed, and held to have overruled the doctrine of Gavin v. Annan (2 Cal. 494) and McLarren v. Spalding (Id. 510).</p> <p>The provision of the “ Act defining the Eights of Husband and Wife,” that a married woman cannot make any sale or other alienation of her separate property, except by an instrument in writing, has reference to property other than money. It does not contemplate that every time a married woman pays her money for articles purchased she must execute an instrument in writing in order to make a valid transfer of the money.</p> <p>The consideration clause of a deed is not conclusive. It estops the grantor from alleging that he executed the deed without consideration. It cannot be contradicted so as to defeat the operation of the conveyance according to the purposes therein designated, unless it be upon the ground of fraud; but with this exception it is open to explanation, and may be varied by parol proof.</p>

<p>Appeal from the Fourth Judicial District.</p> <p>On the eleventh day of FTovember, 1854, Daniel McMillan and Mary B., his wife, executed a mortgage to Creo. 0. Whitney upon a lot in San Francisco on which they were then residing. The mortgage was signed and acknowledged by both parties, but in the body of the instrument the wife alone was mentioned as the grantor. In April, 1855, an action to foreclose this mortgage was commenced by Whitney in the Fourth District Court. A complaint was filed, but no summons was ever issued. On the sixth day of April an answer was filed on behalf of McMillan and wife by one W. M. Stewart, an attorney at law, and professing to act as the attorney for defendants, which answer admitted all the facts stated in the complaint, and authorized a judgment as prayed for. A decree of foreclosure was entered, under which the property was sold, and plaintiff became the purchaser, and at the expiration of six months received the Sheriff’s deed. Subsequently McMillan and wife leased the premises to the defendant, who entered into possession. This action is ejectment by the plaintiff to recover the premises ; and in his complaint he sets forth the proceedings by which he acquired the title. Defendant in his answer sets up his lease, and denies plaintiff’s title, claiming that the mortgage was void, and that the Court had no jurisdiction of the persons of the defendants in the foreclosure action. A trial was had resulting in a verdict and judgment for plaintiff. Defendant moved for a new trial, which was denied, and from this order and the judgment he now appeals. All other material facts appear in the opinion.</p>

<p>In an action of forcible entry and detainer the value of the rents and profits of the premises is not required by the statute to be stated in the complaint, and without such statement may be awarded as damages.</p>

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

The agreement of partition upon the validity of which the decision is placed commences as follows: “ This agreement of partition and release, made this fourteenth day of July, A. D. 1856, between John H. Saunders, H. P. Hepburn, and Eugene Musson, of the city of San Francisco, in the State of California, of the first part; “ Martina Castro de Alvarado and Juan B. Alvarado, her husband, David Goodale and Henry Benson, of Contra Costa County, of the second part; “Antonio…

The complaint, which was verified, contains two counts—one for goods sold and delivered, and another upon a promissory note.

The complaint alleged that Ives Kuzart executed to plaintiff a note and to secure the same a mortgage upon certain lands ; that Kuzart had since died, and that the defendant, Rinquet, was his administrator; that the note and mortgage had been duly presented to the administrator and by him, and also by the Probate Judge, allowed as a claim against the estate, and prayed judgment for the'amount of the note, and that the mortgaged premises be sold and the proceeds applied to…

The complaint sets forth seven joint and several promissory notes, each signed by Wansey, Shanter, Weiss & Howell, payable (except the first) sixty days after date, to different payees, or order, dated on different days in 1859, and avers that each of the notes was, on the same day on which it was executed, assigned, for a valuable consideration, by the payee to Howell—one of the makers—and in 1861, for a valuable consideration, by Howell to the plaintiff, and judgment is…

<p>Appeal from the Twelfth Judicial District.</p> <p>The complaint sets forth a written contract between the plaintiff and the defendants, by which the former agrees to furnish to the latter a number of pieces of iron machinery specified therein in detail, consisting of a steam engine and boilers, and articles commonly used in connection with them, and also certain iron pans, tardes, pipes, etc., in consideration of which the defendants agree to pay the sum of $9,050—$2,000 in hand and the balance in ninety days. The agreement does not state or refer to the uses to which it was intended to put the machinery, or the place where it was to be used. The complaint also contains a quantum meruit count for other machinery, alleged to have been sold to defendants a short time subsequently, of the alleged value of $1,356, avers the delivery and acceptance of all the machinery, and prays a personal judgment for the balance unpaid on both contracts, amounting to $8,406. It further charges that all the machinery was furnished as materials to be used for the purpose of altering a building in the city of San Francisco, in which the defendants then had an interest, and of converting it into a sugar refinery, and that to this purpose it was applied; and that the plaintiff, by taking the necessary steps required by the statute, had secured a mechanic’s lien on said building for the price of the machinery, with a prayer that this lien be foreclosed and the property sold for the satisfaction of the judgment.</p> <p>The answer admits the execution of the written contract, denies that all the articles contracted for were delivered, and that those which were delivered were of good quality; and denies that the machinery was furnished for the altering of any budding, or was put to that use, or that plaintiff has any hen for its price.</p> <p>On these issues the case was referred to a referee to find the facts and report a judgment.</p> <p>The referee found the facts substantially as stated in the complaint, and as to the lien that all the machinery “ was furnished by plaintiff to the defendants as materials for said building, and to be used in and about the same for the purpose of altering the same and converting it into a sugar refinery, for which purpose said machinery was intended, designed, and used.” The report recommended a judgment awarding to the plaintiff relief as prayed for.</p> <p>On the coming in of this report the plaintiff moved for judgment, and at the same time the defendant moved to set aside the report and for a new trial, both of which motions were submitted together. The decision of the Court was that the report of the referee should be set aside, so far as it related to the Hen, and confirmed in other respects, and accordingly a judgment was entered against defendants personally for the amount found due, and denying the enforcement of the lien. Plaintiff appeals from so much of the judgment as denies his hen. The transcript on appeal contains the judgment roll, the report of the referee, the motion of plaintiff for judgment; and that of defendants, to set aside the report with the order of the Court thereon, and the notice of appeal, but nothing which purports to be a statement on motion for new trial, nor any portion of the evidence.</p>

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

<p>Where a conveyance of land is executed to one person and the purchase money is paid by another, the grantee holds the land in trust for the person who pays the consideration.</p> <p>Where a part of the purchase money of land is paid by a person other than the grantee, and no agreement is shown between the grantee and such person, a trust results in favor of the latter for an interest in the land proportioned to his share of the purchase money.</p> <p>Although a verbal agreement by A to purchase land for B may not be given in evidence to establish a resulting trust where the entire purchase money has been paid by A and the conveyance taken in his name, yet if any part of the purchase money is shown to have been paid by B, a verbal agreement may then be proved which shall have the effect to deprive A of all beneficial interest in the purchase, and to clothe the entire estate in his hands with a trust in favor of B.</p> <p>Whether, where an agent employed by his' principal to purchase lands pays the entire purchase money and takes a conveyance to himself, this is not such a breach of good faith as to warrant the reception of parol evidence to establish a trust in favor of the principal—Query ?</p> <p>The Statute of Frauds will never in equity be allowed to operate as a protection to fraud, and for the purpose of showing that a fraud has been committed, or is being attempted, parol evidence will be admitted, even against the words of the statute.</p> <p>H., being desirous of purchasing a certain farm, agreed verbally with J. that the purchase should be made by and in the name of J., and the conveyance taken to him; that H. should furnish a portion of the purchase money, and that the balance should be advanced by J. and within a certain time repaid to him with interest by H., upon which J. should convey the title to H. H. having furnished the portion of the purchase money as agreed, J. made the purchase, paid the whole price and took a deed in his own name. In an action by H. to compel J. to execute a conveyance to him: Held, that the verbal agreement might be proved for the purpose of showing a resulting trust in favor of H., and that the effect of the transaction was to make J. a mere trustee of H. as to the entire property, holding the legal title as security for the repayment of his advances.</p>

On the twenty-seventh day of October, 1858, the plaintiff, A. Montgomery, commenced an action to foreclose a mortgage executed to him by one Geo. Wilson in 1855, upon certain land in Colusa County, and to this action said Wilson and the respondent, James Middlemiss, and others, alleged to have, or claim, some interest in the premises, were made parties defendants, and duly served with process.

<p>A person who, pending an action for the foreclosure of a mortgage and with notice of its pendency, purchases from one of the defendants therein a portion of the mortgaged premises, occupies the same position as his grantor in reference to the issuance of a writ of assistance in favor of the purchaser under the decree.</p> <p>The doctrine of Montgomery v. Middlemiss, (ante p. 103) in reference to the issuance of writs of assistance, affirmed and followed.</p>

<p>A junior mortgagee, not made a party to a suit for foreclosure of a prior mortgage, has the statutory right of redemption within six months from a sale made under a decree in such suit, and retains also the general equitable right of redemption which exists independent of the statute. If made a party to the foreclosure suit, his equitable right of redemption is barred, but he is still a redemptioner under the statute.</p> <p>Although the decree ascertains the amount of Ms lien and directs its payment out of any surplus proceeds of the sale remaining after satisfaction of the prior lien, his statutory right to redeem is not thereby destroyed, but still exists as to any portion of Ms demand not satisfied by the application of the surplus proceeds of the sale.</p> <p>The phrase, “ on which the property was sold,” occurring in the two hundred and thirtieth section of the Practice Act, refers to the lien which the action was brought to enforce, and does not apply to the liens of subsequent incumbrancers who are made parties.</p> <p>In a suit to foreclose a mortgage, K., a junior mortgagee of the premises, was made a party, and in accordance with the prayer of his answer the decree declared the amount of his lien and ordered the application of any proceeds of the sale remaining after satisfaction of the prior mortgage to be applied to its payment. The premises were sold under the decree to F. for an amount more than sufficient to satisfy the first mortgage, and the surplus was paid to K., hut leaving the larger portion of his claim unsatisfied. This balance was assigned by K. to Gr. & B. who within the six months tendered the Sheriff the amount required by statute to redeem from the sale: Held, that G-. & B. were redemptioncrs under the statute, and that F. was not entitled to the Sheriff’s deed.</p>

The complaint avers that on the seventeenth day of April, 1860, plaintiff, while a resident of Yuba County, had his leg broken by an accidental fall, and that being an indigent person he applied as . such for admission to the County Hospital of said county, and was in due form admitted thereto as a patient; that during his stay in the hospital he was not furnished with sufficient food, and such as he did receive was unwholesome; that the bed furnished him was filthy and…

The Act of 1856, consolidating the City and County of San Francisco, in an article upon streets, provides the mode in which contracts for their grading shall be let by the Board of Supervisors, and for the assessment of the expense of the work upon the owners of the adjacent property.

<p>H. served upon his tenant B., who was occupying under him certain premises at a rent of two hundred and fifty dollars per month, a notice to quit. Before the time at which, by the effect of the notice, the tenancy would have terminated, B., through a third person, proposed to H. to continue his occupancy at a rent of three hundred dollars, with which proposal H. expressed himself satisfied, but did not in terms notify B. of his acceptance of it. B. continued to occupy the premises : Held, in an action by H. for rent at the rate of three hundred dollars per month, that it must be inferred that the subsequent occupation of ' B. was with the consent of H., on the basis of the proposal rather than as a trespasser, and that plaintiff was entitled to recover.</p>

The complaint avers that in February, 1861, the defendant, Philip McCahill, was indebted for goods sold and delivered to Taaffe, McCahill & Co., in the sum of $1,784 64, and to Canfield, Pierson & Co. in the sum of $967 89; and that this indebtedness was at that time, for a valuable consideration, sold and assigned by said creditors to the plaintiff, and has not been paid, and prays judgment for the amount and interest.

<p>Appeal from the Third Judicial District.</p> <p>On the twenty-fifth day of February, 1861, the appellants applied to the Third District Court for the county of Alameda for a writ of scire facias, to enforce a judgment for some $10,000, previously recovered by them in said Court against the respondents, and then unsatisfied. The writ was issued, directed to the Sheriff of the county, and commanding him to make known to the defendants in the judgment (respondents here) that they must appear before the said Court at a day named and show, if they or either of them knew anything, why the plaintiffs should not have execution upon the judgment.</p> <p>The writ having been returned served, the defendants on the day fixed to show cause appeared and moved to quash the writ, on the ground that it was not a form of remedy which was authorized by our law.</p> <p>The motion to quash was granted, and the plaintiffs having excepted to this order now appeal from it.</p>

On the twenty-eighth of July, 1856, the Scott River Company mortgaged certain ditch property of which it was owner to the plaintiffs. In December, 1856, one Lamphier recovered a judgment against the company for $1,319, and on the seventeenth of January, 1857, the property was sold under an execution upon this judgment, and Lamphier became the purchaser for five hundred dollars.

<p>Appeal from the Fourth Judicial District.</p> <p>The facts appear in the opinion.</p>

This action was brought to enforce a vendor’s lien for the purchase money of certain lands conveyed, on the seventh day of November, A. D. 1853, by Peña, the respondent, to Vance, the appellant. The purchase consideration was $10,000; $3,050 was paid in cash, and the personal bond of Vance, payable in one year, was given for the balance of $6,950. Nothing was paid upon the bond until November 6th, 1855.

On February 28th, 1860, J. P. Leese and wife, plaintiffs, sold and conveyed to defendants 8herwood and Richard Hellmann a tract of land in Monterey County, called the Sausal Rancho, for the sum of $32,000.

<p>An order directing the receiver in an action to “ distribute of the funds in his hands, under and in the order mentioned in the decree heretofore made in this cause, the sum of $5,000 to the parties entitled to the same,” is not an appeal-able order.</p> <p>Such an order is not a special proceeding, within the purview of the first subdivision of section three hundred and thirty-six of the Practice Act, nor can it, when detached from the proceedings in an action, be treated as a final judgment from which an appeal may be taken.</p> <p>If an order for the distribution of a sum of money by a receiver may in some cases be a final judgment, an appeal from it must present it as the final result of some proceeding, and the record must show what the proceeding is.</p>

<p>The Supreme Court cannot issue a writ of certiorari where its issuance would be the exercise of an original jurisdiction to superintend the proceedings of an inferior tribunal.</p> <p>The general power of supervision over inferior tribunals which pertains to the Court of King’s Bench in England pertains to the District Courts in this State.</p> <p>Nor can a writ of certiorari be issued by the Supreme Court where the act would be the exercise of appellate power, provided the review might have been had by an appeal, although the right of appeal is gone by the lapse of the time within which it was, by statute, required to be taken.</p> <p>Semble, that no proceeding can be brought up for review by writ of certiorari from the Supreme Court, unless it be one properly the subject of an appeal but for which no right of appeal has been provided by law.</p> <p>H. against whom a judgment had been rendered in the District Court, after the lapse of more than one year thereafter applied to the Supreme Court for a writ of certiorari to the District Court by which the judgment might be brought up for review, alleging that 'the Court below had exceeded its jurisdiction by rendering the 'judgment against him without having obtained jurisdiction of his person: Held, that the case was not one in which the Court had power to issue the writ.</p>

<p>Where a Sheriff deposits, in his own name, with his banker money received from a sale by him under judicial process, its identity is lost, and it cannot be followed as a specific fund by the parties entitled to the proceeds of the sale into the hands of a third person who has drawn it from the banker upon the Sheriff’s order.</p>

One R. M. Hill sold and by a deed, absolute in form, conveyed to the defendant a tract of land in Hapa County, and in part payment of the purchase money, defendant executed to Hill his negotiable promissory note. Hill indorsed the note to plaintiff, who brought this action to recover the amount due upon it, and also to establish a vendor’s lien upon the premises, and to subject them to sale for the satisfaction of the debt.

■ Appeal from the Tenth Judicial District. On the fourth day of September, 1850, S. J. Field conveyed by deed to Joel Burlingame a lot, with the improvements thereon, in the city of .Marysville. On the seventh day of August, 1855, Burlingame executed a mortgage upon the premises to J. E. E. Lewis, the plaintiff, to secure a note in form as follows: “ $6,000.

San Francisco DeSoto, to whom the San Lorenzo Rancho had been granted by the Mexican Government, died in 1845, and by his will devised the said rancho, and all his property, to his wife, Donna Barbara de Castro, in trust for herself and his children, and appointed her and one Peralta as executors. By the will the executors were empowered, upon certain contingencies, to sell the whole or a portion of the property.

This was an action of ejectment to recover certain real estate situated in Sonoma County. The plaintiffs claimed under a Mexican grant issued by Pio Pico, Governor of California, to Juan Padilla, on the twelfth of June, 1846, of a tract of land known as “ Bolsa de Tómales,” containing five square leagues. On the trial the plaintiffs attempted to trace title from the grantee, Padilla, by sundry mesne conveyances.

<p>Is answer to a verified complaint in assumpsit a denial of tlie indebtedness merely, without a denial of the facts which show the existence of the indebtedness, is but a denial of a conclusion of law and raises no issue.</p> <p>The admission by the Court, under the objection of defendants, of improper evidence offered by plaintiff to prove a fact alleged in his complaint and not denied in the answer is no cause for granting a new trial.</p>

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

The defendant, who was Sheriff of Tehama County, having process in his hands against the property of one Barrens, seized under this process certain cattle which were in the possession of the plaintiff, and for the recovery of this property, with damages, the action is brought.

The facts of this case are briefly as follows: In October, 1854, one Harrell sold and conveyed the premises described in the complaint to one B. B. Young, then the husband of the defendant, for the consideration of eight hundred dollars—two hundred dollars of which were paid in cash, and for the balance two promissory notes of the grantee were given, payable to the order of Harrell. These notes were immediately indorsed over to the plaintiff.

<p>Upon a covenant in a lease for quiet enjoyment the lessor is responsible only for his own acts and those of others claiming by title paramount to the lease and not for the acts of a mere trespasser, although the effect of these acts may be to deprive the lessee of the benefit of the lease.</p> <p>Thus, where a lessor was sued upon a covenant “ that the lessees paying the rent shall peaceably and quietly have, hold, and enjoy the premises for the term mentioned,” and the breach alleged was that the lessee had been prevented from entering by one R. who was in possession, claiming to hold under a prior lease: Held, that the complaint was demurrable in failing to aver any sufficient breach of the covenant.</p> <p>Held, further, that if the complaint had averred that R. was in possession, actually holding under a superior title, it would have been sufficient without alleging that a suit had been brought and the validity of the title judicially determined.</p>

<p>An undertaking on appeal conditioned for the payment of what the judgment creditor has no legal right to receive is not, as to such condition, binding upon the sureties.</p> <p>After a decree foreclosing a mortgage, the mortgagor in possession is not, until a sale is made under the decree, accountable either for rents or for use and occupation, and is subject to no liability, except that he may be restrained from the commission of waste.</p> <p>Where an appeal is taken from a decree foreclosing a mortgage by the mortgagor who is in possession of the premises, the statute does not require an undertaking on appeal, binding the appellant to account to the plaintiff for the rents, or the value of the use and occupation of the premises, pending the appeal".</p> <p>The provision in section three hundred and fifty-two of the Practice Act in regard to use and occupation refers to cases in which the creditor is entitled to the use, and more particularly to judgments and orders directing a delivery of possession. It was not intended by this section either to increase the liability of the debtor or to subject the sureties to a liability greater than that of the principal.</p> <p>Plaintiff obtained a judgment foreclosing a mortgage against B., the mortgagor, who was in possession, from which B. appealed, and to perfect the appeal and stay proceedings gave an undertaking, with defendants as sureties, conditioned, among other things, that if the judgment should be affirmed, B. would pay to plaintiff the value of the use and occupation of the premises pending the appeal. The judgment having been affirmed, and no sale of the property having been made, the present action was brought against the sureties to recover the value of the use and occupation between the date of the undertaking and the affirmance of the judgment: Held, that the undertaking, in reference to use and occupation, was not required by the statute, and that the sureties were, therefore, not liable.</p>

In 1850 the Legislature passed an act concerning public femes, by which the Courts of Sessions of the several counties were authorized, upon proper application, to establish ferries, and to license the applicants to receive tolls fixed in amount by the Court, upon complying with the provisions of the act.

<p>Appeal from the Fifteenth Judicial District.</p> <p>The facts are stated in the opinion of the Court. Defendant had judgment in the Court below and plaintiff appeals.</p>

The defendant was indicted in Sonoma County for an assault with intent to commit a rape upon a girl six years of age.

Appeal'from the Sixth Judicial District. This was an action of ejectment brought by 0. 0. Lewis against Peter Rigney and B. 0. Quigley for a lot situated in Folsom, Sacramento County. The complaint was filed December 24th, 1860, and charges that both defendants are wrongfully in possession, and prays judgment against both for possession and costs. On the sixth day of May, 1861, the summons was personally served on defendant Quigley, in Sacramento County.

On the eighteenth day of April, 1856, one Gould commenced an action, in the Superior Court of San Francisco, against the present plaintiffs to recover certain personal property, and in pursuance of the provisions of the statute for procuring an immediate delivery of the property made the proper affidavit and delivered to the officer an undertaking, executed by the present defendants, in the sum of five hundred dollars conditioned as required in the one hundred and second…

<p>la an action to recover money in which an attachment has been issued and levied upon property of the defendant, a subsequent attaching creditor may intervene at any time before the entry of judgment for the purpose of contesting the validity of the first attachment.</p> <p>Davis v. Eppinger (18 Cal. 378) affirmed On this point.</p> <p>Where a subsequent attaching creditor intervenes in an action for the purpose of setting aside an attachment issued therein, on the ground that there is no debt due from the defendant to the plaintiff, the allegations in the pleading on the part of the intervener traversing the complaint, have the same effect as denials in an answer and require affirmative proof by the plaintiff of his cause of action, in default of which the intervener will have judgment in his favor.</p> <p>A judgment will not be reversed because of an error which affects the rights of parties who have not appealed, and not those of the appellants.</p> <p>Action commenced by attachment to recover an alleged indebtedness, and defendants made default; before the entry of judgment, certain subsequent attaching creditors intervened and contested the validity of the plaintiff’s attachment, on the ground that no debt was really due from plaintiff to defendant. On the issue thus raised the Court found in favor of the intervenors, and thereupon entered an order setting aside the attachment of plaintiff: Held, that the order was erroneous in entirely setting aside the plaintiff’s attachment, and must be modified so as merely to postpone the plaintiff’s lien to that of the intervenors.</p> <p>Where the merits of the case were not investigated in the lower Court by reason of an uncertainty as to the proper mode of proceeding under the anomalous provisions of the Practice Act relating to interventions, the Supreme Court awarded a new trial, although the decision of the Court below upon the main question involved was approved, and the only error disclosed might have been cured by a direction to modify the judgment.</p>

This was an action of ejectment to recover a lot of land situated within the City and County of San Francisco. The complaint was filed April 10th, 1860. On the trial the plaintiff introduced and gave in evidence the following instruments. 1. A power of attorney from J. B. Bayerque to Francois L. A. Pioche, dated August 20th, 1859, authorizing and empowering the said attorney to sell and convey the premises in controversy. 2.

<p>Appeal from the Twelfth Judicial District.</p> <p>This was an action of ejectment to recover certain lots in San Francisco brought against the appellants, David and Dennis Ma-honey, and t,en others. The complaint was filed Oct. 31st, 1854, and summons was served on all the defendants early in November following. Only two of the defendants answered; the others, including appellants, making default, the entry of which was made, on motion of plaintiffs, November 27th, 1854.</p> <p>Two trials were subsequently had upon the issues raised in the answers of the defendants who had appeared, in each of which the jury disagreed, and the cause was on the calendar for trial again in September, 1861, at which time the appellants appeared and moved to open the default entered against them, and for leave to answer. The motion was supported by a statement of facts made by the counsel of the appellants, and admitted to have the force of an affidavit, and was resisted by a counter statement, admitted to have like effect, made by the counsel for plaintiff.</p> <p>The material facts in these statements sufficiently appear in the opinion of the Court. That on the part of defendants contained nothing showing that they had any defense to the action on the merits. The motion was denied and a judgment subsequently entered against the defendants, including the appellants, for the recovery of the premises without damages. From this judgment, and from the order denying the opening of the default, the appeal is taken.</p>

This action was commenced June 10th, 1861, in a Justice’s Court in San Francisco, under the thirteenth section of the Forcible Entry and Detainer Act.

On the seventeenth day of June, 1861, James Blair, Henry Blair, and B. F. Wallace executed the following articles of arbitration: “ State of California, i City and County of Sacramento, j “ District Court, Sixth Judicial District.

<p>The rule that the claimant in ejectment must recover upon the strength of his own title, is in this State so far modified that a plaintiff may recover upon proof of a possession prior to that of the defendant, notwithstanding it be shown that the real title is in a stranger, with whom neither party has any connection, and this, whether such real owner be an individual or a corporation, or the Government of the United States.</p> <p>The Van Hess Ordinance was framed upon the theory, that the better right to the bounty of the city vested with the first possessor, provided his possession was actual, and had not been voluntarily abandoned, and such prior actual possessor is entitled to the benefits of the ordinance, notwithstanding an interruption of his possession by the intrusion or trespass of others.</p> <p>A Justice of the Peace of San Francisco in 1849 had no authority as such to make grants of the pueblo lands of that city, and a grant made by him is inoperative for any purpose whatever.</p>

This was an action of ejectment for two lots in the city of Stockton. The plaintiffs’ title was derived as follows : 1st, a grant from the Mexican Government to 0. M. Weber, admitted by stipulation to be a valid title; 2d, a deed from Weber to A. M. Jackson, dated February 13th, 1850; 3d, a deed from Jackson to Blockley, dated December 30th, 1859; 4th, a deed from Blockley to Weeks, his coplaintiff of an undivided half, on the sixteenth day of January, 1860.

Both parties claim under the State of California, under locations made with warrants issued under the Act of 1852, commonly called School Land Warrants.

. The defendant was indicted for the crime of rape, and was convicted. “ A motion for new trial was made by him, in support of which he filed an affidavit setting forth, among other things, that the jury after they had retired under charge of an officer to deliberate upon their verdict separated without leave of the Court, or consent of the parties; also setting forth that they -were taken by the officer across the street to a hotel for the purpose of taking dinner; that…

<p>An action cannot be maintained under the two hundred and fifty-fourth section of the Practice Act, by a landlord against his tenant in possession for the purpose of determining the validity of an adverse title set up by the tenant.</p> <p>The section of the statute above referred to must bo construed as giving a remedy only against parties who are in a position to assert their rights, and not against those who are barred by a temporary estoppel as to the right asserted on the other side.'L</p> <p>If a tenant renounce the ’ tenancy in favor of an adverse title the landlord may elect to consider himself ousted and maintain ejectment, but he cannot claim possession through the tenant and at the same time bring an action against him to determine the title.</p>

<p>Appeal from the Court of Sessions of El Dorado County.</p> <p>The defendant, Vice, was indicted jointly with one Benthusen for robbery, and was tried separately and convicted.. The indictment charges that the defendants, at a certain time and place, “ did violently and feloniously take money of the following description and value, to wit: three twenty dollar gold pieces, one five dollar gold piece, one two and one-half dollar gold piece, and three half dollars of silver coin, all of said pieces being of the coin of the United States of America, and of the value altogether of sixty-nine dollars, from the person of another, to wit: from the person of Jesse A. Bandy, by force, threats, and intimidations, and against the will of the said Jesse A. Bandy, contrary to the form of the statute,” etc. The indictment was not demurred to, but after the trial and verdict of guilty a motion in arrest of judgment was made on the ground that the indictment did not charge that the property taken was not the property of the defendant, or was the property of any person other than the defendant. The motion was overruled and defendant sentenced to one year’s imprisonment.</p> <p>Defendant appeals.</p>

<p>Real estate conveyed to the wife during coverture by way of gift is her separate property, and she can maintain ejectment for its recovery after her husband’s death without reference to any administration upon his estate.</p> <p>One tenant in common is entitled to the possession of the entire tract held in common against all persons but his cotenants and parties claiming under them, and as a consequence can maintain against them an action for its recovery. Touchard v. Crow (20 Cal. 162) affirmed on this point.</p> <p>Real property conveyed to the wife during coverture by deed of bargain and sale for a valuable consideration, becomes thereby the community property of herself and husband, and upon his death she succeeds as his survivor to an undivided half interest therein as tenant in common with the heirs to whom the other half interest descends, and may as such, where no administrator of the husband’s estate has been appointed, maintain ejectment for the entire premises against a mere intruder.</p> <p>Meeks v. Hahn (20 Cal. 620) commented upon and distinguished from the case at bar.</p>

<p>Am allegation in a complaint, not material to the statement of the plaintiffs’ cause, of action, is not,Admitted by a failure on the part of the defendant to deny it in Ms answer,/</p> <p>The only allegations essential to a complaint are those required in stating the cause of action. Allegations inserted for the purpose of intercepting and cutting off an anticipated defense are superfluous and immaterial and do not reqmre an answer.</p> <p>The only object to be gained by a plaintiff in anticipating a defense and replying to it in advance is to put the adverse party upon Ms oath without making Mm a witness, and the effect of allowing this would he to establish a system of discovery in conflict with the spirit of the statute.</p> <p>The complaint stated a cause of action for goods sold, and, in addition, with a view to meet a probable defense of payment based upon the giving of certain notes by defendant and a receipt in full by plaintiff, stated the making of the notes and receipt and alleged facts attending the transaction which if true avoided its effect as payment by reason of fraud and misrepresentation on the part of defendant. The answer admitted the original demand and averred payment by the notes referred to in the complaint, but did not deny in proper form the allegations in the complaint respecting the fraud of defendant in the transaction. The case was submitted on the pleadings and plaintiff had judgment: Held, that the judgment was erroneous; that the allegations "of the complaint in reference to the transaction claimed to operate as payment were not material allegations requiring a denial, and were not therefore admitted by the failure of defendant to deny them.</p>

This is an action to recover the sum of $7,900 alleged to have been received from the plaintiff by the city of San Francisco upon an alleged sale of a parcel of certain property, known as the city slip property, situated within the limits of the said city—$1,975 on the twenty-seventh of December, 1853, $3,950 on the twenty-seventh of February, 1854, and $1,975 on the twenty-seventh of April, 1854.

The appellant, William Lawrence, was indicted, with one Crims, for the murder of Constantine Massey, by shooting him with a pistol, and was tried separately and convicted of murder in the first degree. The indictment was indorsed as follows: “ In Court of Sessions, Calaveras County, January Term, A. D. 1862. The People v. William Lawrence and John P. Orims. Indictment for murder. Filed January 10th, 1862. G. F. Wesson, Clerk of Court of Sessions, by A. W. Genung, Deputy.

This action was originally commenced in the District Court of Shasta County, and before trial was transferred to the District Court of Tehama County, and by consent was tried by the Court without the intervention of a jury.

<p>An indictment for robbery must state that the property was taken from the person of another. If it merely state that it was taken from “another person,” it is fatally defective.</p>

This action was commenced Oct. 23d, 1861, by R. S. Brown to recover a balance of three hundred and sixty-one dollars alleged to be due from defendant, T. F. Cronise, for wood sold and delivered to him by plaintiff. The answer, among other matters of defense, claims a credit of two hundred dollars, on account of a bill of exchange drawn-for that amount in favor of plaintiff by defendant on W. H. Cronise in San Francisco.

Ejectment for a lot in the city of Marysville. Both parties claimed title from John A. Clark, admitted to have been the owner in fee of the premises in 1850. Plaintiff claimed by a deed executed by Clark to him in 1861, conveying the lot for the nominal consideration of one dollar.

Ejectment for a lot in the city of Stockton. The answer denied the plaintiff’s title, and the issue thus raised was tried by the Court without a jury.

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

The indictment in this case accuses the defendant of the crime of “ murder in the first degree.” It does not in terms aver that the killing was “ with malice aforethought,” but charges that at a certain time and place the defendant did “ willfully, maliciously, feloniously, and premeditatedly kill and murder ” the deceased by shooting him with a pistol, giving with sufficient particularity the circumstances of the killing. To this indictment the defendant demurred.

On the seventh day of October, 1850, the defendant and one Manuel Vaca were the equal joint owners of a large tract of land in Solano County, known as the “ Vaca Grant,” claimed by them under a Mexican grant, containing ten square leagues.

Action to recover a balance alleged to be due on a sale of personal property. Defense that the transaction was not a sale but only a pledge of the property to secure an indebtedness due defendant from plaintiff. In empaneling the jury a peremptory challenge as to one of the jurors was interposed by plaintiff, and denied by the Court, to which plaintiff excepted, and a bill of exceptions embodying the facts in relation to the challenge was made out and signed by the Court.

<p>Appeal from the Twelfth Judicial District.</p> <p>The Legislature of 1861 proposed certain amendments to the Constitution, of which article six, providing for the reorganization of the judiciary department, will be found in foil at the close of this volume. These amendments were adopted by the Legislature of 1862, and at the general election of that year were submitted to a vote of the people of the State. On the fourth of November thereafter, the Governor issued a proclamation declaring the adoption of the amendments by a majority of the popular vote.</p> <p>The petitioner was, on the ninth of December, 1862, by a judgment of the Court of Sessions of the county of San Francisco, sentenced to sixty days imprisonment in the county jail. On the thirteenth of December a petition on his behalf was presented to the Supreme Court alleging that he was unlawfully restrained of his liberty by the Sheriff of that county, and that the illegality consisted in the invalidity of the judgment of the Court of Sessions, which Court, it was claimed, had no legal existence subsequent to the adoption of the constitutional amendments. A writ of habeas corpus was issued by the Chief Justice returnable before the Court, and the matter was subsequently heard before the full bench.</p>

The plaintiff commenced an action of ejectment against the defendants, deraigning title from J. G. Doll, to two “town lots” lying in the town of Red Bluff. The complaint contained three counts; the first alleging seizin in Doll on the twenty-ninth of October, 1862, and that afterwards, on same day, he conveyed to plaintiff, etc.; the second alleging a seizin in plaintiff on that day, etc.; and the third, an unlawful entry into the possession of plaintiff by defendant.

<p>In an action of ejectment where the plaintiff relied upon prior possession, his proof showed that several years before defendant’s entry he inclosed the premises with a fence, and afterwards, and until the adverse entry, cultivated the inclosure by raising and gathering crops thereon; but there was no direct proof of the character of the fence or its efficiency: Held, that the possession was sufficiently proved; that the use of the property for a series of years, for purposes requiring an inclosure, was enough to show that the inclosure was a suitable one for those purposes, and sufficiently substantial to protect the premises.</p>

Ejectment by Emile Hestres, administrator of Comstock against Thomas Brannan, Charles L. Clements, Andrew Harris, and-Hopkins, to recover a tract of land and mesne profits. The complaint was filed and a summons issued April 7th, 1862, and on the same day the Sheriff delivered to Clements & Harris each a copy of the summons, but without a copy of the complaint.

<p>A'County is not liable in damages at the suit of an individual for injuries sustained by him in consequence of the want of proper repairs to a bridge on a public highway of the county.</p> <p>The statute devolves upon Boards of Supervisors the management and control of bridges in their respective counties, and upon Boad Overseers of the county the duty of keeping bridges on public highways in repair; and if any remedy exist for injuries resulting from neglect to keep such bridges in repair, it must be sought against the Boad Overseers or Supervisors personally.</p>

<p>Where the allegations of an answer, although stated in an affirmative form, are in effect only a denial of the allegations of the complaint, they do not constitute new matter within the meaning of our Practice Act.</p> <p>If the answer either directly or by way of necessary implication admits the truth of all the essential allegations of the complaint which show a cause of action, but sets forth facts from which it results that, notwithstanding the truth of the allegations of the complaint, no cause of action existed in the plaintiff at the time the action was brought, those facts are new matter; but if the facts averred in the answer only show that some essential allegation of the complaint is untrue, then they are not new matter, but only a traverse.</p> <p>To a complaint in the usual form upon a promissory note, an answer was filed admitting the signing of the note but averring that it was made, not on account of any indebtedness existing between the parties but for the purpose of being used as collateral security for a debt due to a third person, from the maker and payee jointly; that the joint debt was subsequently paid, and that the note having thus become functus officio should have been canceled, but through fraud was taken and held by the payee, and transferred without consideration by him to the plaintiff: Held, that these allegations wore not new matter, which, under the system of replications then in force, was admitted by a failure to reply; that their only effect was to deny that any obligation of the character counted upon in the complaint was ever created by the signing of the instrument, and thus to traverse its essential allegations.</p>

<p>Where Courts of Law and Equity have concurrent jurisdiction, if a Court of Law has first acquired jurisdiction, and decided a case, a Court of Equity will not interfere to set aside the judgment, unless the party has been prevented, by some fraud or accident, from availing himself of the defense at law.</p> <p>The provision of the Practice Act making the judgment, in an action against a Sheriff, conclusive evidence against his indemnifier, where the latter has been notified of the action, is founded upon the principle that the action, under such circumstances, is in substance against the indemnifier—the real party in interest—and that he has in that action an opportunity to make any defense that may exist.</p> <p>Where, therefore, the indemnifier has been notified of the action against the Sheriff, he cannot maintain a bill in equity to set aside the judgment obtained therein, except under such conditions as would have enabled him to maintain it had he been the nominal as well as real party defendant to the first action.</p>

<p>Where the plaintiff in an action died before trial, and a subsequent order for judgment contained a recital as follows, “ This action having been continued in consequence of the death of the plaintiff, by his executor, Samuel Webb, and the jury having found a verdict for plaintiff/’ and then awarded judgment in favor of the plaintiff: Held, that the recital sufficiently showed a suggestion of the death of the original plaintiff and a continuance or revival of the cause in the name of the executor.</p> <p>The continuance of the name of a deceased plaintiff instead of that of his executor, in a judgment rendered after the substitution, is an error of form only, and does not make the judgment void.</p> <p>Where a motion to set aside a judgment is granted “on payment of all costs,” the judgment remains in force until the costs are paid.</p> <p>A failure by the opposing party to file his cost bill, or to give notice under a rule of Court allowing five days after notice for payment of the costs, would not operate to make the vacation of the judgment absolute.</p> <p>After a conditional order to set aside a judgment, the Court in deciding a motion to place the cause on the calendar for trial, “ orders that said motion be and the same is hereby denied, and thejudgment will remainHeld, that this was a distinct adjudication, that the previous order had not taken effect; and held further, that this order directing that the judgment remain, being the last in the case and not having been appealed from, it deprived of all force any previous order in reference to vacating the judgment.</p>

<p>The name established for a hotel is a trade mark, in which the proprietor has a valuable interest, which a Court of Equity will protect against infringement.</p> <p>A tenant, by giving a particular name to a building, as a sign of the hotel business, for which he uses it, does not thereby make the name a fixture of the building, and the property of the landlord upon the expiration of the lease.</p> <p>W. leased a lot of land, on which he erected a building, in San Francisco, and used it as a hotel, to which lie gave the name of “What Cheer House.” Before the lease expired, he purchased an adjoining lot, upon which he erected a larger building, and for a time occupied both buildings as the “ What Cheer House,” the principal sign being removed to the one last built. He soon after surrendered the leased lot, with the building which was on it, and continued the business, under the same name, entirely in the building which he had erected on the lot he had purchased. Two months afterwards, the defendants, having purchased the first mentioned lot and building, opened there a hotel, under the name of “ The Original What Cheer House ”—the word “ original ” being painted on the sign in small letters, and in a manner calculated to deceive the public into the supposition that it was the same name. In an action by W. against defendants, to restrain them from using the name of “What Cheer House” for their hotel: Held, that plaintiff was entitled to the relief sought, and that defendants should be enjoined from the use of the name.</p>

Ejectment to recover a lot in the town of Oroville, one hundred feet front by one hundred and thirty-two feet in depth. The complaint averred ownership and a right to the possession in January, 1859, and on ouster subsequently by the defendants. The answer denied plaintiff’s ownership, and averred that defendants and those through whom they claimed, had been the owners and in possession since April, 1856.

This was an action of ejectment to recover the possession of a tract of land situated in the county of Los Angeles known by the name of “ Santa Gertrudis.” The case was before this Court at the April term of 1857, and is reported in 7 Cal. 527. The judgment in the lower Court was for the defendant; this Court reversed the judgment and remanded the cause for a new trial.

On the first day of March, 1853, W. F. White executed to plaintiff a promissory note for $2,400, payable one year from date, and bearing interest… Held: proceeds: “ And whereas the parties to this agreement are desirous of dividing said land, and have agreed to the following division (which agreement shall be carried out by an exchange of deeds as soon as it can legally be done) viz: the party of the second part (Kelley) agrees to deed to the party of the first part,” etc.,…

<p>To maintain an action to quiet title, under the two hundred and fifty-fourth section of the Civil Practice Act, it is essential that the plaintiff have possession of the premises when the action is commenced.</p> <p>Until the validity of a grant from the Spanish or Mexican Government has been determined by the tribunals of the United States, under the Act of Congress of March 3d, 1851, it cannot be made the basis for impeaching a patent for the same premises.</p> <p>Thus, where the validity of the claim of the defendant, under a Mexican grant, had been recognized and confirmed, and a patent to him issued thereon by the United States: Held, that the plaintiff, relying solely upon an opposing unconfirmed grant from the Mexican Government, embracing the same premises, could not call in question the rights of the defendant, either in law or equity.</p> <p>Where claimants under Spanish or Mexican grants have never presented their claims for confirmation, under the Act of March 3d, 1851, such claims are to be treated as non-existent, and the land, so far as they are concerned, is to be considered as part of the public domain.</p> <p>Where the parties each claimed the same premises under independent Mexican grants, and the defendant, with knowledge of the plaintiff's claim, proceeded to obtain a confirmation of his claim and a patent therefor: Held, that no equities could arise in favor of the plaintiff, and against defendant, from the latter’s knowledge of the adverse claim, nor was he, by reason of this knowledge, affected with notice of any equitable rights of the plaintiff.</p>

On motion of respondent, based on a certificate of the Clerk of the District Court, the appeal was, on the fourth of March, 1863, dismissed.

<p>Jose and Sisto Berreycsa, in 1843, petitioned the Governor of California for a grant of eight leagues of land, known as “Las Putas,” and in their petition represented that they were married, and had children, and also a considerable number of cattle and horses, and needed land on which to place them. On this petition, after a favorable report from his Secretary, the Governor ordered that a title issue to the petitioners for so much of'the land as they could settle. . No title issued upon this order; but for some unexplained reason the petitioners considered the concession which it directed as embracing four leagues of the tract solicited, and on the following day they presented a second petition, in which they stated that their families were very large, and included their parents, children, and brothers, and besides that there were more than one hundred uncivilized Indians in their neighborhood whom it was necessary to maintain, and for these reasons prayed a grant to themselves of the other four leagues. The report of the Secretary on this petition speaks of it as presented for the benefit of the petitioners, and of their parents, children, and brothers. On this petition a grant was issued, conceding to José and Sisto the entire tract, and declaring it to be their property, and imposing upon them the usual conditions. This grant recited that the grantees had petitioned “for their personal benefit, and that of their families, and that of their parents and brothers.” It being contended by the appellants, from these facts, that the parents and brothers of the petitioners as well as petitioners were beneficially interested in the grant: Meld,</p> <p>First—That no valid argument in favor of the position of appellants could be drawn from the character of the first order of the Governor, because the grant which transferred the title was not issued upon it;</p> <p>Second—That the second petition, and the report of the Secretary upon it, taken together, showed that the parents, children, and brothers, were referred to only as inducements for enlarging the bounty of the Government to the petitioners, and not as distinct additional beneficiaries ;</p> <p>Third—-That the recital in the grant did not control the course of the title—that it only disclosed the inducements which operated upon the Governor to make the grant, and that the language of the operative clauses entirely excluded the idea that any other person than the two Berreyesas who petitioned were to become invested with the title ;</p> <p>Fourth—That José and Sisto Berreyesa, the grantees, were invested by the grant with the full legal and beneficial title to the land, exempt from any trust in favor of the other members of the family.</p> <p>The Mexican Regulations of 1828 required the applicant for lands, whether an empresario, head of family, or private person, to set forth in his petition to the Governor, “his name, country, profession, the number, description, religion, and other circumstances, of the families or persons with whom he wished to colonize,” and though these particulars constituted considerations with the authorities in whom the granting power was vested, they did not in any respect control the course of the title against the operative words of transfer in the grant.</p>

Indictment for murder. Before the trial the prisoner asked a continuance upon the ground of the absence of witnesses, by whom he could show that at the time of the commission of the homicide charged he was so intoxicated as not to know right from wrong. The District Attorney objected solely upon the ground that the evidence, if produced, would be incompetent, and the Court sustained the objection, to which the defendant excepted.

A report of the proceedings on the former appeal will he found in 20 Cal. 198. All other material facts are stated in the opinion.

In 1835, José Antonio Galindo petitioned the proper Mexican authority for a concession of a tract of land called the “ Laguna de la Merced,” situated within the limits of the present counties of San Francisco and San Mateo. In his petition he stated that the tract .solicited was a league in length and half a league in width, more or less, and referred to an accompanying map as showing the boundaries.

This is an action brought by the District Attorney of Yolo County on behalf of the People against H. H. Hartley, one of the sureties upon the official bond of W. H. Brooks, the former Treasurer of said county. The complaint sets forth the bond, and charges that Brooks, as Treasurer, was a defaulter in the sum of $7,000, for which defendant is liable as surety.

This is a suit to foreclose a mortgage. It was before this Court on a former appeal, at the July Term, 1861. The case is reported in 18 Cal. 465, to which reference is made for a statement of the issues raised by the pleadings.

These are separate appeals from judgments of the District Court, entered in favor of the defendants and respondents, upon their demurrers to the amended complaints of the plaintiff, in each of the two cases.

The defendant was, at the time of the commencement of the action, the tenant of Mrs. Wheelock. He notified her of the action, and she appeared by counsel in the lower Court, and conducted the defense, but without being substituted as defendant, or becoming a party to the record. The judgment being for plaintiff, an appeal was taken at the instance of Mrs. Wheelock, but in the name of Warschauer, the defendant.

On the thirteenth day of March, 1852, Vincente Peralta, being the owner of a tract of land, situate in Alameda County, called the “ Encinal of Temaschal,” embracing a part of the present city of Oakland, conveyed the same by deed to John C. Hays and others. This deed was not acknowledged or recorded. Plaintiff derives title to a portion of the tract by mesne conveyances from Hays and others.

The plaintiffs (seven in number) sued to recover a mining claim, averring in their complaint title and right to possession in themselves and an entry and ouster by defendants. The answer denied the plaintiffs’ title, admitted possession in defendants, and asserted their right to possession by virtue of an independent and better title.

The suit is brought upon a promissory note for $5,000, signed “ Jackson & MeComb,” payable to the plaintiff on demand, without grace. The note is dated February 12th, 1861, and the complaint was filed the next day, February 13th. . MeComb made default.

The facts are stated in the opinion. The case was before this Court at the April Term, 1857, on appeal from an order sustaining a demurrer to the complaint, a report of which will be found in 13 Cal. 540. A trial was subsequently had in the lower Court, resulting in a judgment for the plaintiff, from which the present appeal is taken by defendants.

This was an application for a writ of mandamus to compel the defendants to make provision, from the revenues of the City and County of San Francisco, for the payment of a certain judgment obtained against the City of San Francisco, and in case said revenues are insufficient for said purpose, to levy a tax for the payment thereof, as provided in section four of an act entitled “ An Act to Repeal the several Charters of the City of San Francisco, to establish the Boundaries of…