Volume 22 — California Reports

The complaint avers, that in the City of San Francisco there is a street known as “ East Street,” which is one hundred and thirty-seven and a half feet wide, and extends from Jackson to Folsom Street; that by an Act of March 26th, 1851 (generally known as the Water Lot Bill), it was provided that all the lots within certain boundaries therein named were known and designated as beach and water lots, and the eastern line of East Street, from Jackson to Folsom streets, was…

This was an action of ejectment to recover part of a block lying between Front, Pacific, Broadway, and Davis streets in San Francisco. The plaintiff claimed title under the City of San Francisco, and the principal question involved was whether the premises were part of the “ Government Reservation ” mentioned in the Beach and Water Lot Act of 1851, and were as such exempted from the operation of that act. Defendants had judgment in the Court below and plaintiff appeals.

<p>F., while employed as boat captain by the defendant, a corporation, subscribed for its stock to the amount of 562,000, and shortly after advanced to the company eight hundred and twenty dollars upon a verbal condition that if he should be retained in his position as captain the money should be applied on his stock subscription; but otherwise should be considered a loan, and repaid. F. was soon after discharged from the employment, and then assigned his demand to plaintiff: held, that plaintiff was entitled to recover of defendant the amount advanced as money had and received.</p> <p>The authority of an agent of a private corporation to bind it by a contract for borrowing money may be shown without proof of a resolution of the Board of Trustees directly conferring the authority, or of any formal ratification by them of the contract. It may be inferred from proof of the character of the agency, of the acts of the agent, and the knowledge of the officers and directors of his habit1 to make similar contracts and their acquiescence in the same, and the fact of the money being applied to the use of the corporation.</p>

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

The transcript in this case contains the insolvent’s petition, in which reference is made to certain schedules attached. The latter, which appear to have been the foundation of the motion to dismiss, do not appear in the transcript, nor does the motion for dismissal, which is set forth with the decision thereon, contain any statement of the grounds on which it is made. The case was submitted on briefs without objection by either party that the record was incomplete.

<p>A party who appears at the taking of a deposition and examines the witness without objecting to his competency cannot afterwards interpose that objection.</p> <p>Where the parties stipulated that a deposition which had been taken in another action should be used on the trial “with the same force and effect, and subject to the same exceptions, as if taken in this caseheld, that the stipulation was a waiver of any objection to the competency of the witness.</p> <p>Where the interest of a witness is disclosed during the examination in chief, an objection to his competency must be taken before the cross-examination. The opposing party cannot take the chances of a cross-examination and then move to strike out.</p> <p>What latitude shall be allowed to a plaintiff in introducing evidence in rebuttal after defendant has rested, is entirely discretionary with the trial Court, and its action in this respect is not subject to review upon appeal.</p> <p>Where the charge of the Court, taken as a whole, fairly submitted the case to the jury, the judgment will not be disturbed because that some instructions were refused which could properly have been given, or that some of those given are subject to verbal criticism.</p>

<p>Where the Probate Court acquires jurisdiction to probate a will by the presentation to it of a proper petition for that purpose, and the publication of notice of time of proving the will, and afterwards in such proceeding admits the will to probate, its determination is final, except upon a direct proceeding by appeal or otherwise to reverse it, and cannot be questioned collaterally.</p> <p>A proceeding by petition to the Probate Court to obtain an order that a former probate of a will therein be adjudged void, on the ground of want of jurisdiction, and that the will be admitted anew to probate, is not a direct proceeding to set aside the former probate, but a collateral proceeding, in which such former probate can only be attacked for want of jurisdiction, and not for irregularity.</p> <p>The existence and contents of a record or other document to show the regularity of legal proceedings, may, if the original be lost or destroyed, be shown by secondary evidence, the same as of any other lost instrument.</p> <p>The existence of a petition, for the probate of a will which is not on file may, after the lapse of several years be inferred, from mention thereof in the minutes of the Probate Court and reference thereto in books kept by the Clerk and papers on file, and oral testimony tending to prove, but not positively asserting the fact.</p> <p>Where it was shown that a petition, since lost or destroyed, was filed in the proper Court, the object of which was to procure the probate of a will—that the testator was dead when the petition was presented, and resided at the time of his death in the county where the alleged probate was had—that the petition was drawn by lawyers whose business it was to prepare such papers—that the Court assumed jurisdiction—took proof of the execution of the will—issued letters testamentary, and ordered and approved a sale of real estate by the executor: held, that it should be presumed, after the lapse of eight years, that the petition contained a statement of the necessary jurisdictional facts.</p> <p>A failure to make the order admitting a will to probate on the day specified in the notice, or to fix, by adjournment of the proceeding, a subsequent day for the order, is a mere irregularity, and does not afiect the jurisdiction.</p> <p>It is not necessary to the validity of a probate that a formal judgment or decree, that the will is admitted to probate or is proved should be entered; a direct statement that the will is proved, although entered in the minutes as part of and preliminary to an'order directing letters to issue, is sufficient.</p> <p>Courts will uphold where it is possible a contemporaneous interpretation of a statute under which interpretation rights of property have for many years been acquired.</p> <p>The omission by the Probate Court of San Francisco in its proceedings in probating wills previous to 1855, to attach to the will and file with it for record the certificate mentioned in Sec. 24 of the act concerning estates of deceased persons, is not a fatal defect, invalidating the probates of that period.</p>

This was an agreed case for submission of a controversy without action, in which the plaintiff seeks to recover 15,000 as the purchase price of a lot of land. By the contract of sale the defendant was to take the land at that price, provided the title was good. The plaintiff’s title to the land was derived through the will of one Romain DeBoom, and the only question raised as to its validity was whether the will was properly and legally admitted to Probate.

<p>Lands, within this State, belonging to the United States, are, both by the provisions of the State revenue law, and by the terms of the Act of Congress admitting California into the Union, exempt from State taxation.</p> <p>In order to hold improvements upon public lands liable for a State tax the assessment must be upon the improvements eo nomine and not upon the land itself.</p>

This was an action of forcible entry and detainer, brought in a Justice’s Court in San Joaquin County. In that Court the defendant moved to dismiss, on the ground that plaintiff could not maintain a civil action, and supported the motion with proof that he (plaintiff) had been recently convicted of the crime of perjury, and was then under a sentence of imprisonment therefor for two years in the State Prison.

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

The complaint in this case sets forth in substance: That there had been a judgment rendered in the District Court of the Fourth Judicial District, in favor of the defendant, in an action of ejectment wherein one Adams was plaintiff, and one Lansing defendant. That the plaintiff, Adams, in that action, claimed the exclusive title of the land sought to be recovered therein, through and under the will of Luis Peralta.

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

This action was commenced October 24th, I860,- by John Heinlin, against Juan José Castro and Petro Benal de Castro, to recover the amount of a promissory note, made by defendants to plaintiff, for six hundred dollars, dated January 25th, 1855, and payable twelve months from date with interest; and also to foreclose a mortgage, made to secure the note and bearing the same date. The answer set up as a defense the Statute of Limitations.

<p>In order that a verbal contract for the purchase of goods or chattels at a price exceeding two hundred dollars may be saved from the operation cf the Statute of Frauds by a delivery, there must be a transfer of possession evidenced by acts, and not by words merely.</p> <p>Where, after an alleged verbal agreement for the sale of a pair of horses, they remained in the seller’s livery stable, where they had been previously kept: held, that proof of a direction by the pnrchaser to the seller to keep the horses in the stable for him, or of any other language of that import, was insufficient to show such a delivery as is required by the thirteenth section of the Statute of Frauds.</p>

<p>No weel considered decision of tins Court ought to be overruled unless it clearly violates some established rule of law, and great evils are likely to flow from, suffering it to stand as a rule of property. It is an additional reason for standing by a decision that it was based upon the construction of a statute and affects titles to real estate.</p> <p>Lathrop v. Mills (19 Cal. 513), deciding that the Statute of March 26th, 1856, limiting the time for commencing actions by a patentee was, in this respect unconstitutional, affirmed on the principle of stare decisis.</p> <p>In an action of ejectment one of several defendants, who in Ins answer disclaims all right, title, and interest in the premises, but also denies all the allegations of the complaint, and avers that “ he was and still is lawfully seized and in possession ” of the land claimed, is a proper party, and is not entitled to have the action dismissed as to himself.</p> <p>Where the plaintiff in ejectment derives title from a United States patent issued upon confirmation of a Spanish or Mexican grant, the defendant will not be permitted to introduce proof of the invalidity of the grant for the purpose of impeaching the patent.</p> <p>Pending proceedings to obtain confirmation of a Mexican grant the claimants conveyed the land to H. and took back a mortgage to secure the purchase money, and afterwards commenced an action to foreclose the mortgage, and before decree assigned the same to M. At the sale under the decree the claimants bid off the property and in due course obtained the Sheriff’s deed, and subsequently, upon confirmation of the claim, a patent. In an action of ejectment by a grantee of the patentees against P., the defendant objected that by the transaction above stated the patentees had parted with the title, and that plaintiff took nothing by his conveyance from them: held, that the title conveyed by the patentees to H. was revested in them by the Sheriff’s deed, and that any equitable rights of M. in the premises afforded defendant no 'ground for impeaching that deed in this action.</p>

<p>A notice, under See. 422 of the Practice Act, of the intention of a party to be examined as a witness in his own behalf, need not state each particular fact, or all the evidence in full, which the party intends to state in his testimony. It is sufficient if it states the several subjects, or each particular subject matter respecting which the party is to be examined.</p> <p>Thus in an action for the diversion of water, the notice for plaintifis to testify, stated the points upon which they would - be examined with about the same definiteness and particularity as is required in making issues in a pleading: held, that the notice was sufficient, and that the refusal to permit the plaintiffs to be examined was error, for which a new trial would be granted.</p>

The action was upon an instrument executed by the appellant, Joseph Genella, to the respondent Henry Cormerais, and was commenced August 6th, 1861. The appeal is upon the pleadings and the judgment.

This case was before the Supreme Court at the October Term, 1862, and a report of the proceedings on that appeal will be found in 21 Cal. 122, showing the nature of the action, the character of the pleadings, and the grounds upon which a new trial was ordered.

This was an action to recover a quartz mill, in Amador County, in which the defendant set up title under a tax deed.

<p>A judgment in a criminal action that the defendant be imprisoned for a specified term, “ to commence at the expiration of previous sentences,” is valid and warrants the detention of the defendant for the aggregated period of all the sentences.</p> <p>Judgments of inferior criminal Courts created by statute are not required to be of any different form from those of criminal Courts of general jurisdiction.</p>

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

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

The mortgage referred to in the opinion was in the points material to the decision in the foEowing form: “ This indenture, made and executed this twenty-first day of December, 1855, between Wm.

<p>M. & T. being indebted to V. in the sum of six hundred and seventy-one dollars, plaintiff, for the accommodation of the debtors, procured E. to assume the debt and execute to V. his (E.’s) note for the amount, and to secure E. plaintiff assigned to him a note and mortgage of M. for $2,000, with an agreement that the latter should be re-transferred to plaintiff upon the payment by him to E. of the amount of his (E.’s_) note to V. Subsequently, E. died, having in his hands at the time $1,400 belonging to M., and received by E. as rents and profits of a certain ditch of which he and M. were joint owners. Defendants were appointed administrators of E. and received the $1,400 as assets of deceased, and afterwards from the funds of the estate paid the six hundred and seventy-one dollar note to V. The action is brought to compel defendants to re-deliver to plaintiff the $2,000 note and mortgage, he claiming that the transaction above stated amounted to a payment by him of the debt for which they had been pledged as security: held, that the facts did not show a payment of E.’s note to V. by plaintiff; that they only established that there was a balance due to M. from the estate of E., and that plaintiff was not authorized in this action to avail himself of such counter claim of M. against the estate as a payment on behalf of M. & T.</p>

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

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

<p>The “amount in controversy,” which, in actions on contract, determines the jurisdiction of a Justice’s Court, is the principal sum sued for exclusive of costs.</p> <p>A Justice’s Court, or a County Court on appeal from a Justice’s Court, does not necessarily exceed its jurisdiction by rendering a judgment for more than two hundred dollars. The judgment may exceed the “ amount in controversy ” upon which alone the jurisdiction depends.</p> <p>The provisions of Sec. 422 of the Practice Act, authorizing parties to be examined as witnesses on their own behalf, are applicable to Justices' Courts.</p> <p>A notice for a party to testify, under Sec. 22 of the Practice Act, while it need not set forth all the evidence, or each particular fact, upon which the party intends to be examined, must specify each particular subject matter respecting which he intends to testify with a reasonable degree of certainty and particularity. It is insufficient to merely refer to the issues or the allegations of the pleadings.</p> <p>A notice for a party to testify, stated the points .as follows: “And the points upon which it is intended to examine said Charles Kent, defendant, on said trial will be on every issue made by complaint and answer now on file in said cause, and every allegation contained in plaintiffs’ said complaint denied by defendant’s answer, and particularly concerning the matters alleged hy plaintiffs on transfer of note to Charles Kent by Vandiven, also all the allegations made by plaintiffs concerning protest, demand, presentment, and notice, and averred waiver of demand, denied by defendant: held, that the notice was too uncertain and indefinite to authorize any examination of defendant on his own behalf.</p>

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

The petition alleges that the petitioner, John R. Corryell, is illegally detained in custody by the Sheriff of San Francisco County, and that the only authority for his detention is an order of commitment made by the Court of Sessions of that county, a copy of which is set forth in the petition.

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

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

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

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

<p>Whebe, pending- an action of ejectment against a tenant, the latter transferred the possession to his landlord who had actual notice of and defended the suit, but was not made a party, and plaintiff recovered judgment: held, that under the writ of restitution authorized by the judgment, the landlord might be dispossessed.</p> <p>In ejectment against the occupant of the premises, a judgment of recovery binds not only the defendant but all persons who receive possession of the premises from him with actual notice of the pending suit.</p> <p>Persons not parties to a suit in ejectment and in possession before and at the time it is brought, or those claiming under them, cannot he ousted by the writ of restitution issued upon a judgment therein in favor of the plaintiff.</p> <p>A person in possession of land where a writ of restitution is served, is presumed to hold under the defendant in the action, and to avoid being dispossessed by the writ, must show affirmatively that he holds by a right independent and paramount.</p> <p>If a judgment is recovered against a party by the fault of an attorney employed by him therein, the party has his remedy against the attorney, but the judgment cannot be disturbed on that account, unless fraud, or collusion, or insolvency of the attorney is shown.</p> <p>In the absence of any statutory regulation a purchase made of property actually in litigation, pendente lite, for a valuable consideration, and without any express or implied notice, in point of fact affects the purchaser in the same manner as if he had such notice, and he will accordingly be bound by the judgment.</p> <p>The effect of our statute (Practice Act, Sec. 27), providing for the filing of a lis pendens, is to abrogate the rule making the mere pendency of an action constructive notice. It does not change the rules of law relating to actual notice of a pending action, and the effect of such actual notice upon parties dealing with, or taking possession of property in litigation.</p> <p>Where after the commencement of an action of ejectment against a tenant he gave notice thereof to his landlord, and requested him to defend, and the latter employed an attorney to conduct the suit: held, that the actual notice given to the landlord was, as to Mm, equivalent to the filing of a lis pendens, and in an equal degree made the subsequent judgment obligatory upon him.</p>

The nature of the action and the character of the issues raised by the pleadings are fully stated in the opinion.

<p>Deeds are always to be construed most strongly against the grantor when there is any uncertainty or ambiguity in their terms.</p> <p>It is the duty of a Sheriff, under an execution, to levy upon and sell the property and all the right, title, and interest of the debtor therein; and where a deed made by him in pursuance of such sale expressly conveys all of the debtor’s right, title, and interest, the purchaser’s title to the same will not be prejudiced by the fact that in attempting to describe the nature of the interest the officer through ignorance or mistake failed to set it forth fully and correctly.</p> <p>In an action by a purchaser at execution sale to recover the premises from one who previous to the sale had conveyed them to the execution debtor by a warranty deed, the defendant is estopped from asserting any title and cannot avail himself, by way of defense, of any defect in the description of the property in the Sheriff’s deed to the plaintiff.</p> <p>A person who conveys property by warranty deed, and remains in possession, is not entitled to notice to quit or demand of possession from his grantee or those claiming under him before the commencement of an action to eject him.,</p> <p>A Sheriff’s deed to the purchaser at an execution sale described the property as follows: “ All the right, title, and interest of said Daniel S. Clark, against whom the said writs of execution were issued as aforesaid, of, in, and to the following described property, to wit: That certain tract and parcel of land and premises known as the ‘ Bull Head Rancho/ lying and being situate in Contra Costa County, of said State, and being a leasehold unexpired,’’ etc., proceeding to describe particularly a certain leasehold interest. At the time of the sale the execution debtor was, in fact, the owner in fee of the premises : held, that the fee passed to the purchaser—the recital concerning the leasehold interest not operating as a limitation of the preceding general terms of description.</p>

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

<p>A complaint which avers substantially that the defendant was at a certain time indebted to the plaintiff in a certain sum for professional services rendered at the special instance and request of the defendant, is sufficient without stating in terms the value of the services or that the defendant promised to pay.</p> <p>The promise to pay alleged in the common count in assumpsit, was a mere conclusion of law from the facts stated, and need not be averred under the new code, which requires only the facts to be stated.</p> <p>In an action by the assignee of an account, unliquidated demand, or thing in action, not arising out of express contract, the assignor cannot be made competent as a witness for the plaintiff by giving the notice of intention to testify, provided for in Sec. 422 of the Practice Act as recently amended. The clause in the latter section which speaks of an assignor of a thing in action or contract, includes only such persons as were permitted to testify under the provisions of Sec. 4, and not those prohibited by it. The amendments to Sec. 422 do not in any way extend the right of examining an assignor.</p> <p>A party to an action is not bound by, or held to admit as true, statements made by his witnesses during the trial of a cause, because he does not deny or contar diet them at the time.</p> <p>In order to affect a person by conversations or declarations made in his presence they must be made to him in such a manner as requires him to deny or, by his acquiescence, to admit them.</p> <p>In an action by S. against a stage company to recover damages for injuries sustained by the upsetting of a coach, the physician of S. was called by him as a witness to prove the value of his professional services as an element of damages. In a subsequent action brought by the physician against S., to recover for his services, the plaintiff offered proof of what he himself had testified as to their value upon the former trial, in connection with the fact that plaintiff was present and heard the evidence and made no objection to its correctness : held, that the evidence was inadmissible; that S. was not estopped from denying the truth of the evidence by having used it upon the former trial, for the reason that plaintiff had not been thereby influenced to do any act to his injury, and that S. was not bound by it, as an admission, for the reason that under the circumstances he was not called upon to admit or deny its truth.</p> <p>Admissions of fact by counsel in one action, whether made during the hearing of the evidence or upon the argument, are not admissible in evidence against the client in another action.</p> <p>The doctrine of acquiescence does not apply to proceedings on trials of controversies, because it is not the right or duty of a party to interrupt the order of proceedings in such cases by denials or contradictions, and his silence cannot, therefore, under such circumstances, be deemed an admission.</p>

<p>A complaint which states the facts of the case in ordinary and concise language is not demurrable, because such statement shows that the plaintiff is entitled to recover upon two different legal grounds.</p> <p>Where a certificate of deposit is indorsed by the payee, payable to the order of a •third person, the indorsement of the latter may be required by the makers before payment.</p> <p>Certificates of deposit stand, as respects the rights and liabilities of indorsers, upon the same footing as bills of exchange and promissory notes.</p> <p>A subsequent indorser of a certificate of deposit undertakes that he possesses a clear title to the certificate, deduced from and through all the antecedent indorsers, and by his indorsement agrees to clothe the holder under him with all the rights which legally attach to genuine indorsements against himself and all the antecedent indorsers.</p> <p>A judgment will not be reversed on account of the admissions of improper evidence which is mere surplusage and immaterial to the issues.</p> <p>When the makers of a certificate of deposit pay the amount to an indorsee who guarantees the genuineness of the payee’s indorsement, and subsequently the payee, upon proof that his indorsement was forged, recovers from the makers the amount of the certificate with costs, the makers in an action by them against the subsequent indorsee and guarantor may recover the costs paid by them in the former action.</p> <p>A verified complaint, which in stating a special demand essential to the cause of action, contains only the general averment that “ defendants though often requested have refused,” etc., is sufficient in this respect unless demurred to for want of certainty. If not demurred to, the defective averment is cured by verdict and judgment, and the objections cannot be raised for the first time in the Appellate Court.</p>

<p>Appeal from the Seventh Judicial District.</p> <p>The facts are stated in the opinion. The action was commenced December 21st, 1862.</p>

This was an action of ejectment, brought by Gr. W. Kidd against D. 0. Teeple and others, to recover a water ditch, known as “ Omega Water Ditch,” in Nevada County. The complaint alleged title and right of possession in plaintiff, at and prior to May 29th, 1861, and an entry and ouster by defendants on that day.

<p>As action cannot be maintained by the defendant in an execution to recover of the officer the penalty prescribed by Sec. 222 of the Practice Act for selling without proper notice, unless by a sale so made the complainant has been deprived of his property. If the attempted sale is a nullity and passes no title, no injury has been sustained, and no right of action for the forfeiture accrues.</p> <p>No right of property vests in the purchaser at an execution sale until he pays the purchase money, and until this is done, the sale is not so far perfected as to constitute the foundation of an action to enforce a forfeiture for selling Without the prescribed notice.</p> <p>In an action to enforce a penalty or forfeiture imposed by statute the claim is to be strictly construed.</p>

<p>Appeal from the Ninth Judicial District.</p> <p>This is an appeal from an order overruling a motion for a new trial. The transcript on appeal contains the judgment roll, and what purports to be the evidence given on the trial, and certain exceptions, but there is no statement, either on appeal or on motion, for new trial, either settled or agreed to. At the close of the transcript is a paper purporting to be a statement of points and assignment of errors, signed by appellant’s attorney, in which it is stated that a statement on motion for a new trial was preferred and served by him, and exceptions thereto filed by the respondent, and these papers submitted to the Judge for settlement, but that he had omitted to settle the same.</p>

<p>Appeal from the Fourth Judicial District.</p> <p>The plaintiffs were, in 1855, appointed executors of the estate of one Folsom, deceased, which estate, among a large amount of real and other personal property, included two hundred and fifty shares of stock in the Sacramento Valley Railroad Company. ¡November 12, 1855, the executors applied for a sale of some of the property, and in their petition stated that “ The personal property of the testator consisting in stocks, a particular enumeration, description, and valuation whereof will be found in Exhibit “¡B,” under the head of stocks, they do not deem it advisable to sell before they communicate with the legatees and learn their wishes on the subject, especially as much of the stock is very low and has scarcely any market value.” And in an exhibit annexed to this petition under the head of stocks, appears: “ Sacramento Valley Railroad, amount paid in $13,034 75.” On the nineteenth day of February, a.d. 1857, the following agreement was entered into between the plaintiffs, as executors, and the defendant, J. Mora Moss :</p> <p>“ Articles of Agreement made and entered into this nineteenth day of February, 1857, by and between J. Mora Moss, party of the first part, and H. W. Halleck, A. C. Peachy, and P. W. Van Winkle, executors of the estate of J. L. Folsom, deceased, parties of the second part, Witnesseth, that whereas, the said estate and the said parties of the second part, in their capacity of executors as aforesaid, hold two hundred and fifty shares of the capital stock of the “ Sacramento Valley Railroad Company,” on which the said company has called for an unpaid assessment, amounting in the aggregate to the sum of seven thousand four hundred and thirty-three dollars and eighty-eight cents ; and whereas, the said executors have declined to pay said assessment, except upon a guaranty to thé effect hereinafter stated. How, in consideration that the said executors have agreed to pay the said assessment, and for the further consideration of one dollar in hand paid to him by the said executors, the said Moss hereby covenants and agrees with the said Halleck, Peachy, and Van Winkle, executors as aforesaid, that if the said stock, in the course of the administration of said estate, shall be sold at auction, iipon reasonable notice, the proceeds of said sale shall amount to as much as the assessment to be paid by said executors as aforesaid, together with an advance thereon of one per cent.; and if the proceeds of said sale shall be less than the sum aforesaid, including the said advance, then the said Moss will make good the deficiency to the said estate, on demand after the said sale.</p> <p>“ In testimony whereof the said J. Mora Moss has hereunto set his hand and seal, the day and year first above written.</p> <p>“ Signed. J. MORA MOSS, [l.s.]</p> <p>“ Witness, E. A. Caselli.”</p> <p>Subsequently, one Donald Frazer, a creditor of the estate, filed a petition, praying that a portion of the real estate belonging thereto might be sold to satisfy his debt. The executors, March 7th, 1859, filed an answer to this petition, objecting to a sale of the real estate on the ground that there was still personal property unsold, and also in compliance with an order of the Court, a report, showing the then condition of the estate, and containing the following averment and petition:</p> <p>“ That on the twelfth day of November, 1855, they presented to this Court their petition, praying for an order authorizing them to sell certain portions of the said estate, setting forth its condition, the claims against it, etc., which said petition with exhibits annexed thereto, and made a part thereof, they pray may be held and considered as part of this report and petition. And the executors further represent, that the personal property of the estate comprised under the head of 1 stock,’ in said petition of twelfth November, a.d. 1855, ought to be sold, inasmuch as the same are liable to assessments, and most of them pay no dividends to the estate; and the executors pray the Court for an order authorizing them to make such sale.”</p> <p>Upon this petition, the stock mentioned in the agreement was sold. The notice of the hearing of the petition was as follows:</p> <p>“ Notice is hereby given, that H. W. Halleck, P. W. Van Winkle, and Archibald C. Peachy, having filed in this Court their report and account, as executors, with a petition for an order of sale of personal property of the estate of Joseph L. Folsom, deceased, the hearing of the same has been fixed by said Court, for Monday, the twenty-first day of March, 1859, at eleven o’clock in the forenoon of said day, of the March Term of 1859, at the court-room thereof, in the City Hall in the City and County of San Francisco; and all persons interested in said estate are notified then and there, to appear and show cause, if any they have, why said petition should not be granted.”</p> <p>And the order of sale by Probate Judge, as follows:</p> <p>“ Application having been made to the Court by the executors of the estate of J. L. Folsom, deceased, for an order of sale of certain personal property of the estate hereinafter mentioned by the petition, in writing, of said executors, filed herein on the seventh day of March, 1859, setting forth the facts showing such sale to be necessary; which application was, by the order of this Court, on that day made and filed, set for hearing upon the twenty-first day of March last, upon which day the said executors appeared by their counsel, Gregory Yale, Esq., and certain of the creditors of the estate appeared and were represented by their counsel, Eugene Casserly, Esq.; and due proof having been there made, to the satisfaction of the Court and filed herein, that notice of said application had been given according to law, the hearing of the said application was regularly continued from that time to this day by orders of this Court duly entered of record. And now on this twenty-fifth day of April, 1859, at eleven o’clock, a.m., to which time said application was duly adjourned by the last of continuances, aforesaid, the said parties appearing by their counsel, aforesaid, and no objections or exceptions having been filed, and no opposition having been made, and the Court, from an examination of the said matter, being satisfied that a sale of said property is necessary, and that the articles are perishable property and liable to assessment and taxation, it is hereby ordered, that the said executors be authorized to sell at public auction to the highest bidder, for cash, the personal property of the estate undisposed of, comprised under the heads of “ Library,” “Pictures,” “ Table and Bed Linen,” and “ Stocks,” as set forth in their petition filed in this Court November 12th, 1855.”</p> <p>Notice of the sale was given by posting in three public places, as required by the Probate Act, and also by publication in two newspapers.</p> <p>The stock brought $4,175, net $4,049 75, selling at sixteen and a half and seventeen and a half cents, and leaving a deficiency, on the contract, of $3,458 47, for which the present action is brought on the contract. The market value of the stock, at time of trial, was shown to be thirty cents, or $7,500.</p> <p>Bearing upon the question of notice to defendant, Moss, of the sale or notice to him of the deficiency and demand before suit brought, the only evidence is as follows:</p> <p>“ One Waller testified—“ Thinks defendant, Moss, was at salesroom of auctioneers before the sale. Afterwards carried a note to defendant from Billings; the defendant afterwards came into the office, and I saw him conversing with Halleck and Billings. Billings was the attorney of executors.”</p> <p>Cross-examined—“ Saw Moss at the salesroom on the morning of the day of the sale. I don’t know whether he was there at the time of the sale of this stock.”</p> <p>One Sinton testified: “ Moss was present in the morning before the sale. I don’t know whether he was present during the sale of this stock. Catalogues were distributed in salesroom; Moss asked me to purchase a certain book for him.” .</p> <p>Cross-examined—“ I think it more than probable, that Moss asked me to purchase the book, because he, Moss, was going away and could not be present at the sale.”</p> <p>Upon this evidence, the Court found, among other things, “ that Moss was present at the sale and had personal notice thereof.” The plaintiff had judgment for the deficiency, with interest from the day of sale, from which defendant appeals.</p>

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

<p>Beal estate conveyed to the wife during coverture by a conveyance in the usual form of a deed of bargain and sale, is, prima facie, the common property of herself and husband. If the wife claims property thus conveyed to be her separate property, the burden of proof is on her to show the fact.</p> <p>Community property is liable for the debts of the husband.</p> <p>A declaration of a married woman, under the Sole Trader Act, must state: 1st, that she intends to carry on some certain business—specifically describing it; 2d, that she intends to carry on such business in her own name; and 3d, on her own account. These three facts are essential, and a declaration which omits either is fatally defective, and will not entitle the declarant to the privileges of a sole trader.</p> <p>A declaration in the following form: “ State of California, County of Nevada— H. Adams, resident of Nevada City, and wife of P. Adams, hereby declares that she intends to carry on the business of Bestaurant and Hotel Keeping, accommodating hoarders and lodgers, in the City of Nevada, and from this date will be individually responsible, in her own name, for all debts contracted by her on account of her said business; that the amount of money invested in said business does not exceed or equal five thousand dollars. (Signed) H. Adams,” and sworn to and acknowledged, is insufficient, and will not sustain a claim of the declarant to hold, as a sole trader, property subsequently conveyed to her for the purposes of the business mentioned, as against an execution creditor of her husband.</p>

<p>The Act of April 25th, 1863, requiring attorneys at law and litigants to file affidavits of allegiance to the Government of the United States as therein prescribed, is constitutional.</p> <p>Sec. 3 of Article 11 of the Constitution, containing the form of oath to be administered to State officers, does not prohibit the Legislature from prescribing an oath to such officers in a different form of words from that therein used, if the meaning, object, and intent of the section be not violated.</p> <p>An attorney at law is not a person holding an “ office of public trust,” within the meaning of those terms as used in the prohibitory clause of Sec. 3, Art. 11, of the Constitution.</p> <p>The right to practice law is not a natural or constitutional right, but a statutory privilege, subject to the control of the Legislature. The exclusion of an attorney by a test oath is not in the nature of a punishment for a criminal , offense, but a denial of a privilege forfeited by failure to comply with a prerequisite condition.</p> <p>Courts without any special statutory provision may strike from the rolls an attorney guilty of disloyalty or treasonable acts, under them general power of supervision over the morality of their own officers. They may also require an attorney to whom such offense is imputed, to purge himself therefrom by his own oath. ''</p> <p>The right to practice law is not “ property,” nor in any sense a “ contract,” within the constitutional meaning of those terms.</p> <p>Courts cannot declare a law void, upon the ground that it is contrary to “ the spirit and policy of the Constitution,” unless it is at variance with some express or clearly implied provision of that instrument.</p> <p>The payment by a lawyer, of a United States license tax, imposed by the Revenue Law of 1862, does not entitle-him to practice his profession without taking the oath prescribed by the State law.</p> <p>There is nothing in the Constitution which prohibits the Legislature from closing the doors of the Courts against traitors and their aiders and abettors, or which requires that this shall not be done until after conviction of the crime in a regular criminal trial; or which prohibits the Legislature from requiring of those litigating in the Courts, that they shall purge themselves by their own oath of the imputed offense before they shall claim their aid.</p> <p>The citizen cannot demand protection from the Government without he renders to it the equivalent of obedience and support. When he refuses this obedience and support, and aids, assists, countenances, or encourages those who are struggling to overthrow the Government, he forfeits all right to the use of its Courts.</p> <p>The State may exclude from its Courts those who are guilty of disloyalty to the nation of which the State is a part, as well as those disloyal to the State Government directly.</p> <p>The Act of April 25th, 1863, requiring from litigants an oath of allegiance, operates not upon the right of action but upon the remedy alone, which is subject to legislative control, and the Act does not so burden the remedy as to render it useless or impracticable.</p>

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

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

<p>Os the twenty-second day of June, 1857, T. H. 0. Walton sold a half interest in a ditch to G. W. Walton, who in part payment agreed, from the proceeds of said interest, to pay $5,000 upon two promissory notes, executed by the grantor and one Hall to Parsons. February 12th, 1858, G. W. Walton sold and conveyed this interest in the ditch to G. V. Fairbanks for $10,500, of which $2,700 was paid at the time but not applied on the notes held by Parsons, and a mortgage given upon the half interest for the balance. Afterwards, G. Y. Fairbanks sold to Jonathan Fairbanks, and soon after G. W. Walton gave to Parsons a written acknowledgment, that he had bought the interest in the ditcli upon condition to pay $5,000 of its proceeds upon the Walton and Hall notes, and that all moneys due to him upon his note to Fairbanks, were due and payable to Parsons until the $5,000 should be paid. After receiving this acknowledgment Parsons transferred the Walton and Hall notes to Jonathan Fairbanks by indorsement, and took from the latter his note for $5,000, secured by a new mortgage on the ditch: held, that any interest which Parsons acquired by the acknowledgment in the Walton mortgage he parted with by the transfer of his notes to Fairbanks; that the last note and mortgage could not be considered a renewal of the $5,000 debt evidenced by the transferred notes; and, that the Walton mortgage was a lien upon the ditch for ÜI® balance of the debt secured thereby, over and above the amount of $5,000, superior to any lien retained by Parsons thereon for the payment of the balance due him.</p> <p>In the absence of fraud or mistake a party cannot escape the consequences of an arrangement voluntarily made by him, because of a misunderstanding of its legal effect.</p>

<p>Upon a challenge to a juror, in a capital case, for implied bias, he stated that he had formed an opinion as to the guilt or innocence of the defendant, but that it was not an unqualified opinion, and was rather in the nature of an impression than any fixed conclusion: held, that the challenge was properly overruled.</p> <p>The mere fact that the jury in a criminal ease separate without permission of the Court, does not require that a new trial should be granted. The presumption that the jury may have been subject to improper influences which attaches to the fact of such separation may he removed .by an affirmative showing that no injury to the defendant resulted therefrom.</p> <p>A new trial will not be granted because some of the jurymen, in a criminal case, may have conversed with third persons while deliberating upon their verdict, if it be shown that such conversations were innocent.</p> <p>Upon trial under an indictment for murder, it is no ground of objection to a witness being sworn and examined for the prosecution, that his name was not indorsed upon the indictment.</p> <p>The objection, that the names of the witnesses examined before the grand jury are not indorsed upon the indictment, can only be made available to the defendant by a motion to set the indictment aside.</p> <p>On application by a defendant to postpone a trial, on the ground of surprise, at the introduction of a witness whose name is not indorsed upon the indictment, must, when made, be supported by an affidavit or other evidence or suggestion showing the surprise, in the absence of which it should be denied.</p>

<p>Appeal from the Seventh Judicial District.</p> <p>The complaint is entitled “A. M. Gilman Co. v. James N. Cosgrove,” and contains no other description or designation of the parties plaintiff, but states a cause of action for goods sold and delivered in favor of the “ plaintiff above named.” The first answer of defendant consisted of a general denial with plea of accord and satisfaction and statute of limitations. An answer termed an “ amended and supplemental ” answer was afterwards filed containing no denial, but setting up the giving of promissory notes in full payment and satisfaction. The case was tried by a referee and on the trial, defendant objected to the introduction of any evidence by plaintiff, on the ground that there was no sufficient designation of the party plaintiff in the complaint—objection overruled and defendant excepted. The defendant also offered evidence to disprove the sale and delivery of the goods, which on objection of plaintiff was excluded, upon the ground that the second answer raised no issue upon that point, to which ruling defendant excepted. After this ruling was made, and several witnesses having been examined, the defendant moved for leave to file an amended answer upon an affidavit, that he had not, through the fault of plaintiff, been able to obtain access to the papers and accounts necessary to enable him to understand and state his defense. Plaintiff filed in opposition to the motion an affidavit, showing that the accounts and papers referred to were long before the trial submitted to defendant’s inspection. The motion was denied, and defendant excepted. The referee reported a judgment in favor of plaintiff for the amount claimed, and judgment accordingly was rendered by the Court, from which the defendant appeals.</p>

<p>Cruelty as the ground of a divorce, is such conduct in one of the married parties as renders further cohabitation dangerous to the physical safety of the other, or creates in the other such reasonable apprehensions of bodily harm as naturally interferes with the discharge of marital duty.</p> <p>Any conduct sufficiently aggravated to produce ill-health, or bodily pain, though operating primarily upon the mind only, is legal cruelty.</p> <p>Where it appeared that the defendant was in the habit of using towards the plaintiff, his wife, vile and abusive language, falsely charging her with adulterous intercourse—that she was a weak, nervous woman, modest in her deportment, and amiable in her disposition—and that the conduct of the defendant caused her much mental suffering, producing fits of illness, and threatening permanent injury to her health: held, that plaintiff was entitled to a divorce on the ground of extreme cruelty.</p>

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

Ejectment to recover a tract of land in Amador County called the “ Hew York Rancho.” The complaint alleges that in 1858 the premises were owned by one Hammond, and in the month of May, of that year, an assessment of forty-eight dollars and sixty-eight cents for State and county taxes was made thereon; that the property was assessed to Hammond, and was described upon the assessment roll as “ Four hundred acres of land, situated on the Volcano and Jackson Road, in Township Ho.…

<p>Appeal from the Sixth Judicial District.</p> <p>Application by D. 0. Mills for a writ of assistance to-obtain possession of an equal undivided one-third interest in and to lot number four, in the Mock or square between J and K streets, and Fourth and Fifth streets, of the City of Sacramento. The proceeding in the Court below was instituted under and by virtue of Sec. 5 of an Act of the Legislature, passed April 3d, 1860, entitled “ An Act to provide for the collection of Delinquent Taxes in the City and County of Sacramento.” In 1859, the lot in question belonged to Judson Haycock and George B. Haycock, as owners of one-third; to Carsilla Tukey, as owner of one-third; and to Francis Tukey, the defendant, as owner of one-third thereof. The taxes assessed upon it for the fiscal year ending March 1st, 1859, amounting, with costs and charges, to $2,844 35, not having been paid by these parties, judgment for that sum was recovered against them, by virtue of the statute above mentioned, on the twelfth day of November, 1860, in the District Court of the Sixth- Judicial District, in favor of The People of the State of California. Under this judgment, execution was issued against the said parties, directed to the Sheriff of the City and County of Sacramento, commanding him to make the said sum of money out of their personal, or, if that were insufficient, out of their real estate. He levied upon and sold the premises above described on the twenty-third day of September, 1861, to D. 0. Mills, for $2,832 90, and delivered to him a certificate of sale thereof. Afterwards, on the fourteenth day of April, 1862,'more than six months having elapsed^ since said sale, and the term of office of the Sheriff having expired\ and he having left the State, a deed was executed to Mills by BX B. Redding, who was the deputy of said Sheriff up to the expiration of his term of office. At and prior to the time when the judgment for taxes was recovered, D. 0. Mills held a mortgage fpr $6,000 on the above premises, one-third whereof, $2,000, was due from the defendant, Francis Tukey. After the recovery of said judgment, but before the sale thereunder, D. O. Mills became, by' purchase, lie owner of the one-third interest in said premises which belonged to Judson and George B. Haycock. When the property was bought by D. O. Mills at the Sheriff’s sale, he and the said Carsilla Tukey and the defendant, Francis Tukey, were, and have ever since remained, in possession, each of a third of the premises. The claim of D. 0. Mills to the one-third interest of Carsilla Tukey having been satisfactorily adjusted, and the defendant having refused to surrender possession of the third held by him, this proceeding was instituted for its recovery. Prior to the sale of the premises for taxes, to wit: on the eighteenth day of July, 1861— Francis Tukey, then being indebted to D. 0. Mills in the sum of $2,000 on the mortgage aforesaid, and in other sums of money, and desiring to procure a loan of $4,000 to cancel said indebtedness, and also enable him to pay his proportion of the said taxes, proposed to said D. O. Mills that the latter should temporarily take from him a mortgage for $4,000 upon his third interest in said premises, and assign said mortgage to the party from whom said Tukey should afterwards be able to procure said loan. To this proposition, as Tukey believed he could in this way obtain the loan, Mills assented, and the $4,000 mortgage was executed to him. Tukey failed to either obtain the $4,000 loan, or to pay the taxes, wherefore the property was sold, and the $4,000 mortgage still remains in Mills’ hands unassigned. Upon these facts appearing in the petition and answer, and from the evidence on the trial, the District Court ordered the writ of assistance to issue. Defendant moved for a new trial, which was denied, and from these orders he appeals.</p>

AprE 25th, 1863, the Legislature passed an act, entitled “An Act to authorize the City and County of Sacramento to subscribe to the Capital Stock of the Central Pacific Railroad Company of California, and providing for the payment of the same, and other matters relating thereto.” The first section provides for a special election, at which shaU be submitted to the voters of the county a proposition for the county to take three hundred shares of stock.

<p>No petition is required as the foundation of a proceeding to probate a will; a petition is only necessary under the statute where the executor named therein accepts the trust, and then not for jurisdictional purposes.</p> <p>The jurisdiction in a proceeding to probate a will depends upon certain facts which the Court, on reviewing the will, must inquire into and determine; and the mere possession of the will vests the Court with all the authority necessary for that purpose.</p>

The facts are stated in the opinion. The only portions of the Act of May 3d, 1852, material to the decision, are the first and second sections, as follows: “ Sec. 1.

The complaint in the case of Allen v. Liseom, which was tried anew in the County Court on appeal from a Justice’s Court, contained two counts, one on a promissory note for one hundred dollars and another upon an account for services rendered for eighty dollars.

<p>Air act for the incorporation of water companies, approved April 22d, 1858, provided that the mode of proceeding for the appropriation of lands should be the same as that prescribed in Secs. 27-29 of the Act of April 23d, 1853, for the incorporation of railroad companies. In 1861, an entirely new act for the incorporation of railroad companies was passed, not following the order or number of sections of the Act of 1853, which it entirely repealed, and containing new provisions as to their appropriation of lands. In a proceeding to condemn lands, instituted in 1862 by the plaintiff, a water company incorporated under the Act of 1858 : held, that the course of procedure prescribed by Secs. 27-29 of the Railroad Act of 1853 should be followed, and not those of the new Act of 1861—that those sections were substantially incorporated in the Water Company Act of 1858, and remained a part of the latter, notwithstanding the repeal of the original act.</p> <p>The existence of a corporation formed under the general State law is proved by its articles of incorporation executed and filed in accordance with the statute.</p> <p>In incorporating under the general law a strict compliance with all the requirements of the statutes is not essential, and the proceedings will not be held invalid for slight defects or omissions.</p> <p>The omission or irregular performance of acts relating to the organization of a corporation, can only be investigated in a direct proceeding instituted by the State for that purpose, and not in a collateral action. So, too, of those acts which are not made prerequisites to the exercise of corporate powers but which operate as a forfeiture.</p> <p>Where an act authorized the incorporation of a water company, and also provided that 3,000 feet of water pipe should be laid down within one year: held, that the laying of the pipe within the period mentioned was not a condition of the existence of the corporation, nor was proof of it necessary to enable the corporation to maintain an action or proceeding after the expiration of the year.</p> <p>The rule that in order to complete the creation of a corporation the charter must be accepted by those incorporating, has no application to corporations formed under general laws.</p> <p>Where a law is passed for the special benefit of a party, his acceptance of it will be presumed.</p> <p>Where a franchise was granted to an individual, and his associates, and assigns, and the same act contained a provision requiring the individuals to incorporate themselves within a given time: held, that there was no need of any assignment from the individuals to the corporation—that the franchise by operation of law vested in the corporation as soon as it was formed.</p> <p>In a proceeding to appropriate lands under the railroad law, the commissioners are not required to determine questions of title, nor to report the amount of compensation to which each of several claimants of the same tract is entitled. It is proper for them to report a gross sum as compensation for the tract, leaving the County Judge to distribute it among the several owners.</p> <p>The view of the premises required to be made by the commissioners in condemning lands under the Water Company Act of 1858, may be made by them at any time before submitting their estimate and report. It is proper that the view should be had before hearing the evidence.</p>

The Court below, to whom the case was submitted without a jury, found the facts as foEows: “ At the commencement of this action and for several years prior thereto, plaintiff was in possession of a tract of land or ranch on the public domain in Nevada County, containing about one hundred acres, which he used for agricultural purposes and held under the possessory act of this State, having aE the titles thereto that can be acquired by virtue of a compliance with the…

This was an action of ejectment and tried by a jury. Plaintiff, to show his title, offered in evidence a certain deed, which, on objection of defendant, was excluded and plaintiff excepted. Plaintiff then rested and moved the Court to allow a judgment of nonsuit to be entered, which was accordingly done. Afterwards plaintiff moved to set aside the judgment and for a new trial on the ground that the Court had erred in excluding his evidence.

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

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

<p>In an action in a Justice’s Court to recover personal property valued at less than two hundred dollars, the fact that plaintiff in his complaint prays a recovery, in addition to the property or its value, of damages in the sum of two hundred dollars, does not deprive the Court of jurisdiction. The prayer for damages may be stricken out or disregarded.</p> <p>To justify the issuing of a writ of certiorari from the District Court, to review proceedings in an action which has passed to judgment in a County Court, on the ground that the latter Court had no jurisdiction by reason of the excess of the amount in controversy, the affidavit by the applicant must state the amount of the judgment rendered. The question of jurisdiction depends upon the amount of the judgment, and not upon the amount prayed for in the complaint.</p>

<p>The right which a party acquires to public land by possession and occupancy may be lost by abandonment. An abandonment divests the title as fully as a conveyance.</p> <p>An abandonment of a possessory right to land may be inferred from disuse and cessation of occupancy.</p> <p>The rule that a party by failing, under certain circumstances, to assert his title to property is thereby estopped from saying that he had title, does not extend so far as to debar him from asserting an after-acquired title.</p> <p>Where the defendant in an action of ejectment relies upon an abandonment by-plaintiff of a title once held by him and a subsequent taking of possession by himself, the rules of law relating to adverse possession, have no relevancy, whatever may have been the relation of defendant to the title claimed to have been abandoned.</p> <p>The abandonment destroys the title and all its relations, and the subsequent possession of defendant is a new and independent right.</p>

<p>The provision of Sec. 187 of the Practice Act, as to the time within which a referee must file his report, is merely directory. A failure to file within the tima will not invalidate the report or the judgment rendered thereon.</p> <p>A finding of fact by a referee will not be set aside where the evidence is conflicting.</p>

<p>'Nothing- in our State Constitution prohibits the Legislature from declaring the Mayor of a city to be ex officio a Justice of the Peace, and under such a law the same person may constitutionally exercise the functions both of Mayor and Justice.</p> <p>The express permission, in Sed. 1, Art. 6 of the Constitution, to establish Muñid-, pal Courts is within the exception to Art. 3 respecting the division of powers in the Government. The term “ Municipal Courts ” has a legal meaning, and includes Mayors’ and Recorders’ Courts.</p> <p>The Constitution not having defined the jurisdiction of the Municipal Courts authorized to be established, it is left to be regulated by the Legislature under its general powers. These powers are not exceeded by conferring upon a Mayor the authority and jurisdiction of a Justice of the Peace.</p>

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

<p>Where the plaintiff in ejectment seeks to establish a prior possession under a land warrant location, the patent issued to him in pursuance of the location after the commencement of the action is admissible as evidence in his favor to show the date and location of the warrant, and that his right of possession thereunder has since ripened into a perfect title.</p> <p>A patent issued by the Government is admissible in evidence, without any proof of its execution. The official seal sufficiently authenticates it.</p>

The note sued on was signed with the names “ Thompson & White,” and underneath them joint names was written the name of L. Alford, with a cross between the initial L. and the surname, with'the word “mark” written beneath» the cross. There was no attesting witness to the alleged signature of Alford.

<p>P. executed to the City of San Francisco a quitclaim, deed of certain strips of land to be used as public highways, under the name of “ Belle Air Place ” and “Pfeiffer Street,” the same being part of a city lot occupied by himself wife as a homestead. Afterwards, the parcels thus sold never having been and opened or used as highways, P. and wife executed a mortgage upon their homestead, describing it as bounded in part by a line running a certain course and distance “to Belle Air Place,” and thence a certain course and distance “to Pfeiffer Street.” The mortgaged premises having been sold under a decree of foreclosure in an action to which the husband and wife were parties, and the plaintiff having acquired the title of the purchaser, the mortgagors commenced to erect a building upon the spaces designated as streets, claiming that the same remained a part of their homestead and had not been dedicated as highways. In an action by plaintiff to enjoin this work: held, that as to the mortgagees and those claiming under them, the mortgage was a dedication of the streets named as public highways, and vested in them a right of way; that the deed to the city might be referred to, to show the width of these streets; that the homestead claim was barred by the foreclosure and sale; and that the right of way passed to the purchasers as an appurtenance of the lot, and therefore free from the claim of homestead.</p> <p>Injunction is the proper remedy to stay a threatened injury to a right of way. Where land is described in a conveyance as running to a certain street, without other qualifications, the fee passes to the center of the street.</p> <p>Where lots are sold as fronting on or bounded by a certain space designated in the conveyance as a street, the use of such space as a street passes as appurtenant to the grant and vests in the grantee in common with the public the right of way over the same.</p>

One Strauss, engaged in the dry goods and clothing business, had his stock of goods attached at the suit of his creditor, and to obtain a release of the attachment sold the stock to the plaintiff, Weil, a cigar merchant, who paid or undertook to pay the attachment debt. Within a day or two after the sale, plaintiff received the goods from the Sheriff and removed them to his cigar store, where they were placed, some in boxes under the counter and some in a back room.

<p>A deed ex'ecuted by only a part of the persons named in thfe body as grantors is good as to the executing parties, and conveys their interest in the property.</p> <p>An acknowledgment of a conveyance taken and certified to by a Justice of the Peace within his county is valid, without regard to the locality of the land conveyed, and though it is situated* in another county.</p> <p>In the description of a deed one line was described to run “thence westerly, including the cañadas, to a stake, so that a line running from thence to the Dos Pedros will pass about two hundred yards from the present new corral of the said José Jesus Lopez held, that the line was to be located by the natural landmarks mentioned, although these determined its course to be northeasterly, instead of westerly.</p> <p>A description of a line in a leed by natural or artificial landmarks clearly identified, will govern and control one by course or distance where they do not agree.</p> <p>Parol evidence is admissible to explain the location of the objects mentioned in the description of a deed, and thus fix the boundary lines of the tract conveyed.</p> <p>A subsequent purchaser who seeks to avoid a prior deed of the same premises made by his grantor on the ground that he is a purchaser iu good faith and without notice, must show affirmatively that he paid a good and valuable consideration.</p> <p>An acknowledgment of the payment of the purchase money by the grantor in a subsequent deed is no evidence of the fact of payment as against one claiming under a prior deed.</p>

<p>Ah execution debtor who has more horses than the number exempt by law may elect which he claims as exempt, but such election must be made and the officer notified thereof either at the time of the levy or within a reasonable time thereafter or the right to elect will be deemed waived.</p> <p>Where two of several horses owned by an execution debtor were levied upon and no notice of claim of exemption was given to the officer until the day of sale, which was four months after the levy: held, that the right of election had been lost by the unreasonable delay in exercising it, and that the officer was justified in selling the property.</p> <p>In determining whether notice of claim of exemption of property levied upon was given by the debtor within a reasonable time, the fact that the plaintiff had at the time of the levy other property of a similar character out of which the debt might have been made is proper matter of proof.</p> <p>The exemption of property from sale on execution is a personal right which the debtor may waive or claim at his election.</p>

<p>The presumption that the person enjoying the benefit of services rendered is bound to pay therefor what they are reasonably worth, may be rebutted by proof of a special agreement to pay a fixed amount, or in a particular manner, or by proof that the services were intended to be gratuitous.</p> <p>In an action for personal services, defendants asked an instruction to the effect that if the plaintiff served the defendant upon an understanding that he was to have only his living—board, washing, lodging, etc.—as a compensation, and that he had received these, then defendant should recover, which instruction the Court refused : held, that the instruction was proper, and that for the error in refusing it the judgment for plaintiff must he reversed.</p>

<p>In a proceeding by motion under Sec. 224 of the Practice Act to compel payment by a delinquent purchaser at judicial sale, the statement of the Sheriff upon which the motion is based need not state in terms that “ loss was occasioned ” by a failure to pay the amount bid. An averment of the amount of the bid and a re-sale at a specified smaller amount is sufficient.</p>

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

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

The complaint shows, 1st. That the plaintiff is the owner in fee and in possession of the premises. 2d. That the defendant is Tax Collector of the City and County of San Francisco. 3d. That defendant, as Tax Collector, threatens to sell said premises for the taxes levied and assessed thereon to John Cowell (who was the owner of the premises) for the fiscal year ending on the thirtieth day of June, 1857, under the Act of March 22d, 1859. 4th.

<p>A complaint, in an action to recover a debt from a married woman, which charges that, she is a sole trader under the statute is sufficient, without any averment of facts showing that the debt was contracted in the particular business which she had declared her intention to carry on.</p> <p>The fact that a married woman is a sole trader and contracts a debt, raises the presumption that the debt is contracted on account of her business as a sole trader.</p>

The complaint avers that under the Act of April 26th, 1858, providing for the sale of the State school lands, the sixteenth and thirty-sixth sections of certain townships of the surveyed public lands of Placer County were, on the eleventh day of January, 1860, sold — the purchasers giving the bonds for payment as required by the act; that the defendant is the Treasurer of Placer County, and has in his hands five hundred and fifty-six dollars of interest money paid upon said…

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

<p>A eekbyman who takes charge of a team driven upon his boat and directs an attempt to cross the stream, is liable as a common carrier for any loss that ensues in consequence of his negligence in the outfit or management of his boat, notwithstanding that the team was driven upon it at a time of peculiar danger and contrary to his express order.</p> <p>In an action against a common carrier for negligence, evidence of a rule qualifying his duties under peculiar circumstances is inadmissible without first showing that the rule was known to the plaintiff either directly or constructively.</p>

At the time of the proceedings on motion for change of venue referred to in the opinion, no pleadings had been filed on the part of defendant.

The complaint, which is verified, alleges a sale and delivery of two hundred mats of rice to defendant at San Francisco, for which he promised to pay eight hundered and fifty dollars.

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

<p>The Street Superintendent of San Francisco, under the Consolidation Act, has power to enlarge the time for completion of a contract for street improvements made by him, and if any property owner feels aggrieved by such action he must appeal to the Board of Supervisors, or he will be deemed to have acquiesced therein.</p> <p>In a proceeding for the improvement of streets in San Francisco by contract, under the regulations of the Consolidation Act, the liability of the real owner is not released or affected by an erroneous assessment of the tax upon his property to another person.</p> <p>The complaint in an action by a contractor against a property owner, upon a contract for improving streets in San Francisco in pursuance of the provisions of the Consolidation Act, need not aver any special demand upon the defendant other, than a compliance with the forty-ninth section of the act.</p>

<p>Conlin v. Seamen (ante, 546), to the effect that the Superintendent of Streets of San Francisco has the power to extend the time for completion of contracts for the improvement of streets made by him, affirmed.</p> <p>The plaintiff in November, 1860, entered into a contract for the improvement of streets in San Francisco under the law of 1859, which provided that for payment an assessment should be levied upon the adjacent lots in proportion to their respective values. Before the completion of the work the Amendatory Act of 1861 was passed, providing for an assessment in payment of such contracts according to the street frontage of each lot: held, that the provisions of the law of 1859 respecting the mode of assessment was part of the contract, and that the assessment, though made after the amendatory act, must be in the mode prescribed by the old law.</p> <p>Under the Act of 1859 the Board of Supervisors of San Francisco have power to provide for the grading of all located streets, whether new or old, and as well of those lying east of Larkin Street as to the west of it.</p>

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

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

<p>Appeal from the Fifteenth Judicial District.</p> <p>This is an action brought by C. J. Jansen against James McCahill and Ellen McCahill his wife, to foreclose a mortgage alleged to have been executed by defendants to secure a note made by James McCahill to Jansen, Bond & Co., and by them indorsed to plaintiff. The wife alone defended, alleging that the premises were at the date of the mortgage the homestead of herself and husband, and denying that she ever executed the mortgage.</p> <p>Attached to the instrument was a certificate of acknowledgment by the wife, which was otherwise in proper form and stated, that “ after being made acquainted with the contents of said instrument” she acknowledged, etc., without stating by whom she was made acquainted. Defendant objected to the introduction of the mortgage, on the ground that the acknowledgment was insufficient. Plaintiff then called the Notary who had certified to the acknowledgment, as a witness to prove its execution. Defendant objected to his competency, on the ground that he was interested to establish the genuineness of the signature and relieve himself from the consequences of his insufficient certificate, which objection was overruled, and she excepted. The evidence in regard to the execution was then given as stated in the opinion, upon which the Court admitted the instrument in evidence, and defendant excepted. Plaintiff had judgment, and defendant appeals.</p>

<p>Undee our code of practice the same rules of pleading govern in all cases, both at law and in equity.</p> <p>A complaint, whatever may be the character of relief sought, must state only issuable facts and not mere matters of evidence. Where this rule has been violated, a motion by defendant to strike out the irrelevant matter should be sustained.</p> <p>Knowledge, by a sub-contractor upon a building, that there is an agreement in writing between the original contractor and the owner, is sufficient to put him upon inquiry as to the contents of the writing and charge him with notice thereof. ,</p> <p>When the owner makes a contract for erecting or doing work upon a building, no sub-contractor or person furnishing labor or materials for the original contract can acquire any rights against the owner, in contravention of the terms and conditions of the original contract.</p> <p>Where an original contractor sub-contracts work upon a building, there is no privity between the sub-contractors and the owner, and the latter cannot be made liable upon the sub-contract.</p> <p>A party may, by agreement, waive a right created by statute for his benefit.</p> <p>P. and others, contracted in writing with A., that the, latter should erect a building for them, and in the agreement covenanted that he would not incumber or suffer to be incumbered the said building, or lot on which it is erected, by any mechanics’ liens or debts of material, labor-men, contractors, sub-contractors, or otherwise.” A. sublet the brick work to 0., who had notice of the existence of the written agreement.</p> <p>Held, that 0. was precluded by the condition in the original contract from acquiring a mechanics’ lien upon the building for the work done by him.</p>

<p>In an action to recover the price of personal property where one of two defendants makes default and the other answers denying the purchase, the defaulting defendant is not a competent witness for the plaintiff to show that his co-defendant was his partner, and as such jointly with him purchased the property.</p>

The Court below found the facts as follows: La a conversation about the tenth day of August, a.d. 1861, between the plaintiffs and defendant, both being at the time owners in the mining claims and property of the Highland Masonic Mining Co. at Wet Ravine, in Sierra County, defendant stated to plaintiffs that he had made arrangements to buy an interest in the company from one John Thomas, but would not do so unless the plaintiffs would also purchase an interest, so that they…

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

The affidavits filed in support of the application for new trial, on the ground of newly-discovered evidence set forth, that the affiants were experts, and some of them bank-tellers ; that they had compared the genuine signatures of Carillo with the signature to the deed, and that the latter was a forgery. No evidence of experts had been introduced on the trial. The other facts appear in the opinion.

The following is the instrument executed March 20th, 1858, by Deputy to Wozencraft, defendant: “ Know all men by these presents, that I, William C. Deputy, of the County of San Bernardino and State of California, party of the first part, am held and firmly bound unto Oliver M. Wozencraft, of the county and State aforesaid, party of the second part, in the sum of one thousand and eight hundred and seventy-five dollars to be paid to said party of the second part, his heirs or…

The “ Union Water Company,” plaintiff, was a corporation formed under the general law for the purpose of conducting water through certain ditches to mining districts, and the Murphy’s Flat Fluming Company, defendant, was also a corporation formed in the same manner for the purpose of constructing a flume to be used in mining operations.

<p>Appeal from the Twelfth Judicial District.</p> <p>The complaint alleges acts of extreme cruelty upon the part of defendant, a resident of San Francisco, and avers that he is “seized and possessed of real estate in said city and county of the value of fifteen thousand dollars, and of personal property of the value of five thousand dollars.” The prayer is for a divorce from the bonds of matrimony, for alimony, and an allowance for expenses of litigation.</p> <p>The answer denies the allegations as to acts of cruelty, charges adultery upon the plaintiff, and further denies that defendant has property to the amount stated in the complaint or to any amount exceeding <¡>2,000. The case was tried before a jury who found a special verdict, upon the charge of cruelty in the complaint and that of adultery in the answer, in favor of plaintiff. The Court, upon this verdict and the evidence, decreed a divorce, and adjudged that the plaintiff should have half the common properly, without designating its value or description, and that the homestead upon which the plaintiff was then residing (describing it by metes and hounds) should he set apart to her.</p> <p>From this judgment the defendant appeals.</p>

<p>Where some of several defendants make default and others answer, the defaulting defendants may appeal from the final decree at any time within one year after its rendition.</p> <p>The statute which prescribes what shall be common property as between husband and wife, and how it shall he divided in case of a divorce, is a mere regulation of a right of property and does not provide a new right of action. A complaint for relief under this statute need not therefore comply with the rules governing the forms of pleadings in statutory actions.</p> <p>The failure of a complaint, in an action for a division of common property, to state with sufficient particularity the facts showing the character of the property is a defect of form which must be objected to by demurrer.</p> <p>A homestead may be established upon the common property of the husband and wife, and such homestead may, in case of a divorce, be partitioned or set apart to one of the parties as common property.</p>

<p>Certificates of purchase issued by the State Register for school land and certificates of location issued by the State Locating Agent are, under the Statute of April 13th, 1859, prima facie proof of legal title in the holder, and are admissible as evidence in his favor in an action of ejectment.</p>

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

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

<p>The statute limiting the time for issuing execution upon a judgment to five years after its entry, applies to judgments rendered in suits to foreclose a mortgage, equally as to mere personal judgments.</p> <p>Where in an action to foreclose a mortgage a decree was entered in the usual form for the sale of the mortgaged premises and execution against the debtor for any deficiency, and no process to enforce the decree was issued until more than five years after its entry, when the plaintiff in the judgment took out an execution: held, that an action might be maintained by the defendant in the judgment to enjoin all proceedings upon the execution.</p>

The complaint is verified, and alleges that on the twelfth day of March, 1862, the plaintiff, J. C. Towdy, was the owner and entitled to the possession of certain personal property, the items of which are set forth, and that defendant, on the day mentioned, unlawfully took the goods from the possession of the plaintiff, and still wrongfully detains them; that the value of the goods is three hundred and two dollars and forty-two cents, and prays judgment for a return of the…

<p>A person not previously a party to a bill of exchange who, for a consideration, accepts the same, incurs thereby the liabilities of an acceptor equally as if he were the drawee.</p> <p>Where one, not the drawee, accepted a draft for the sole purpose of protecting the interest of his foreign correspondent in a bill of lading accompanying the draft as collateral security, and took at the time an assignment of this bill of lading: held, that although the collateral security turned out to be of little value, its receipt was a legal consideration for the acceptance.</p> <p>It is a sufficient consideration for the acceptance of a draft by one not a party to the paper, that the payee thereby loses the acceptance of the drawee. Inducements, not amounting to fraud, held out by the payee of a draft to procure its acceptance, do not invalidate the contract of the acceptor.</p>

<p>The fact that the defendant in an action for the recovery of money has been garnisheed by a creditor of the plaintiff, constitutes no defense to the action, and cannot be set up in the answer as a plea in bar. The remedy of defendant in such case is by motion, based upon affidavit of the fact, for stay of proceedings until the action against the plaintiff or the attachment therein is disposed of.</p> <p>A judgment rendered in an action tried by the Court without a jury prior to the twentieth of May, 1861 (the date of the act requiring exceptions to defective findings or want of a finding), will be reversed for a failure by the Court to file its findings of fact.</p>

The record in this case consists of the following papers : Complaint; summons; answer of defendant Tucker; demurrer of defendant McCorkle; amended complaint, demurrer of Tucker to amended complaint, replication; demurrer of Tucker to replication; an order that “defendants’ demurrer filed herein” be sustained; order dismissing as to McCorkle; judgment for defendant Tucker; notice and undertaking on appeal and a certificate by the Clerk that the foregoing are true copies of…

<p>Several defenses, inconsistent with each other, may, under proper circumstances, be set up in a verified answer.</p> <p>In an action to recover a mining claim the complaint, duly verified, alleged title and possession in plaintiffs on a certain day. The answer, also verified, denied that plaintiffs ever had either title or possession, and afterwards averred that if plaintiffs ever had a title to the claim they had abandoned and forfeited it before defendants’ entry. At the trial, on motion of plaintiffs, the Court ordered defendants to elect on which of the above defenses they would rely, and defendants having, after excepting to the order, elected to rely upon their denial were precluded from introducing proof of the abandonment and forfeiture: held, that the action of the Court was error; that defendants had the right to set up both defenses in their answer and support both by proof.</p> <p>The inconsistent defenses which are allowed to be pleaded in a verified answer are not such as require in their statement a direct contradiction of any fact elsewhere directly averred. They are those in which the inconsistency arises rather by implication of law, being in the nature of pleas of confession and avoidance as contradistinguished from denials, where the party impliedly or hypothetically admits, for the purpose of that particular defense, a fact which he notwithstanding insists does not in truth exist.</p> <p>If a fact, which is directly averred in one part of a verified pleading, is in another part directly denied, whether it he in the statement of several causes of action in a complaint or of several defenses in an answer, the party verifying it is guilty of perjury, and on the trial that averment which bears most strongly against the pleader will he taken as true.</p> <p>In an action of ejectment one of the material allegations of the complaint is that plaintiff was the owner and entitled to the possession at the time of the alleged entry by defendant, and under a direct denial of this averment the defendant may show that, previous to his entry, a title which once existed in the plaintiff had been lost by abandonment or forfeiture.</p>