Volume 23 — California Reports

<p>Where the location of a mining claim is made both by posting notices and by designating fixed objects such as trees, shafts, and ditches on or near its exterior boundaries, in an action between two companies involving the title to a portion of the ground witnesses are not confined in their testimony to a statement of the contents of the notices but may also state whether the location made included the ground in dispute.</p> <p>The same rules of law relating to estoppel in pais apply to mining ground as any other real estate claimed under a similar kind of title.</p>

<p>Appeal from the Third Judicial District, Santa Clara County.</p> <p>The facts are fully stated in the opinion of the Court.</p>

<p>Upon filing a certified copy of a judgment with a County Recorder it becomes a lien upon the debtor’s real property in that county for two years from the date of the filing, notwithstanding a lien by virtue of the same judgment has previously existed and expired by lapse of time in another county.</p> <p>The amendment of 1862 to See. 193 of the Practice Act, allowing the aifidavits of jurors to be received to impeach their own verdict, relates merely to the remedy and governs in all applications for new trial made after its passage, although the verdict and judgment sought to be set aside were rendered previously.</p> <p>A verdict to which the assent of any of the jurors was obtained by a resort to chance will be set aside.</p>

<p>Appeal from the Tenth Judicial District, Yuba County.</p> <p>Chapman, the plaintiff, on the twenty-fourth day of January, 1857, obtained a judgment and decree in the District Court of Yuba County against Clark and wife, for the foreclosure of a mortgage upon certain real estate in Marysville, and directing the sale of the mortgaged property to satisfy the judgment. The property was sold by the Sheriff on the twenty-third of February, 1857, and Chapman became the purchaser, and on the first of August, 1857, received the Sheriff’s deed.</p> <p>On the fourth of September, 1857, plaintiff obtained an order from the Judge at chambers for a writ of assistance, which was issued by the Clerk on the fifth, and placed in the hands of the Sheriff, defendant Thornburg.</p>

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

<p>Appeal from the. Sixteenth Judicial District, Amador County.</p> <p>The complaint avers that about the second day of April, 1861, plaintiff, Erancis McCue, purchased of one Elesham a lot of land, for which he paid said Elesham three hundred and fifty dollars, and that after the purchase Michael McCue, since deceased, requested of plaintiff that his name might be inserted in the deed as the grantee, and stated that he would, at some future time, purchase the property of plaintiff and pay him therefor said sum of three hundred and fifty dollars, and that plaintiff then directed the deed from Elesham to be made to said Michael, and that there was an express understanding at the time that plaintiff should be the owner of the property until it was paid for. Complaint further avers, that about the first of August, 1861, plaintiff demanded of said Michael the money or a deed of the property, and that he failed to pay the money and refused to execute a deed, and that Michael has since died, and defendant Gallagher is the administrator of his estate, and the other defendant was the wife of Michael at the time of his death, and claims the property as his heir.</p> <p>Defendant demurred to the complaint, and the Court sustained the demurrer, and plaintiff appeals.</p>

<p>Undeb the Revenue Law of 1860 lands owned by several persons as tenants in common may be assessed to them jointly.</p> <p>Where lands are thus assessed to several persons jointly by the Revenue Law of 1860, the owner of an undivided portion may pay his proportion of the tax and thus release his portion of the land from the lien of the tax; but unless he makes this payment before a sale is made of the land under a judgment recovered for the tax this right is gone, and a redemption can only be effected by a payment of the entire judgment and all charges.</p> <p>After a sale of lands under a judgment recovered for taxes a 'redemption cannot be made by paying a portion of the bid equal to the interest of the redemption in the parcel sold.</p> <p>If the land is sold in separate parcels by the officer a redemption of distinct parcels can only be made by paying the whole sum bid on any distinct piece sold separately.</p>

The complaint avers that the defendants were indebted to one James E. Wolfe, and that Wolfe, on the 9th of April 1858, drew the following order on defendants in favor of Eiske & Diehl: “ Messrs. J. M. B. Weatherwax & Co.—Gents: “ Please pay to Messrs.

<p>Under the Constitution before the amendments -which went into effect January 1st, 1864, an appeal could be taken to the Supreme Court from a judgment of the County Court, when the judgment appealed from, including principal and interest exceeded two hundred dollars.</p> <p>In an action in a Justice’s Court upon a money demand, the defendant cannot set up in his answer,-as a counter claim or set-off, a demand, amounting, exclusive of interest, to more than two hundred dollars.</p> <p>A Justice of the Peace has no jurisdiction to pass upon a counter claim or set-off unless it be for such a sum as the defendant might have maintained an action on against the plaintiff, in a Justice’s Court.</p>

<p>Appeal from the Seventh Judicial District, Mendocino County.</p> <p>The facts are stated in the opinion of the Court.</p>

Comstock died, leaving lands in San Joaquin County, and Hestres was appointed his administrator. A crop of grain was growing on the lands, but it was in the possession of other parties, the administrator not having reduced it to possession.

<p>Appeal from the Fourth Judicial District, Contra Costa County.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>In order to set aside a judgment or conveyance on the ground of fraud, it is not sufficient to aver in general terms that such judgment or conveyance was fraudulent, but the facts and circumstances constituting the alleged fraud must be set forth.</p> <p>Where a creditor files a bill to cancel and set aside a judgment, rendered against his debtor, on the ground that it is fraudulent, and to reach the property of the debtor and have it applied in satisfaction of his demand, the complaint must aver, either that the plaintiff has acquired a lien on the property he seeks to reach, or that he has recovered a judgment upon which an execution has been issued and returned no property found.</p>

The complaint alleges that about the twenty-sixth day of August, 1858, defendant with force and arms entered upon plaintiff’s premises and forcibly took from plaintiff’s possession, and drove and carried away, and converted to his own use, a yoke of oxen and two cows, the property of plaintiff. The action was commenced February 19th, 1859.

The complaint was filed August 10th, 1863, and avers that on the ninth day of February, 1863, the plaintiffs were the owners of, in the actual possession, and entitled to the possession of a gold and silver quartz lode, known as the Aurora Mine Ledge, commencing at a point distant fourteen feet in a direction north fifty-six degrees west from the cut in the ledge at the mouth of the shaft known as the old Aurora Shaft, and from said point of commencement extending in a…

At the time of the issuance of the attachment by the Justice, the constable in whose hands it was placed levied on several head of cattle and horses as the property of D. C. Seaver. Judgment was rendered by the Justice, November 17th, 1860. November 10th, 1860, Robert Seaver commenced an action against the constable, Fitzgerald, to recover possession of the property attached. The defendant answered, justifying under the attachment.

The defendant was indicted for perjury, and tried and convicted in the County of Contra Costa. The defendant’s attorney (John F. Swift), on the trial in the Court of Sessions, .resided in the City and County of San Francisco. After the jury had rendered their verdict, the Court of Sessions, on motion of defendant’s attorney, arrested the judgment. From the order arresting the judgment the People appealed.

On the twenty-ninth day of January, 1857, Clement Boyreau recovered judgment in the Circuit Court of the United States for California, in an action of ejectment against Robert Campbell, Thos. W. Mulford, the present plaintiff, and thirty-six others, occupants of a portion of the San Leandro Rancho, for the recovery of the possession of a portion of said rancho, and costs of suit.

<p>Admission made by one partner, after the dissolution of the partnership, concerning' the partnership business, are not competent evidence to charge the other partner.</p>

The statement on motion for a new trial in this cause was agreed to by the attorneys of the parties in the following stipulation: “ Mat 28,1862. “ It is hereby stipulated and agreed by and between the parties heréto and their respective attorneys, that the above statement shall be the statement on motion for a new trial herein, and on appeal. “ Wm. J. Browhsoh, Defts’ Att’y. “ Wise & Gough and Fox, Plff’s Atty’s.”

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

<p>The fact that husband and wife do not intend to reside permanently in this State does not prohibit them from enjoying the benefit of the homestead law; but they are entitled to the right of homestead so long as they claim and use the property as such, and actually reside within the State.</p> <p>The amendment to Sec. 422 of the Civil Practice Act, allowing parties to be examined as witnesses in their own behalf, did not, prior to the amendment to Sec. 395 in 1863, permit husband or wife to be witnesses for or against each other.</p>

This was an action brought to recover back the sum of eleven thousand and thirty dollars and two cents, and interest from the date of payment, which sum was paid by the plaintiff to the defendant, the tax collector of the City and County of San Francisco, under protest. The remainder of the facts are stated in the opinion of the Court.

<p>The amendment to the Homestead Act of 1860, which provides, that “Ho mortgage or alienation of any kind, made for the purpose of securing a loan or indebtedness upon the ¡homestead property, shall be valid for any purpose whatever,” must be strictly construed, and can be applied only to those cases which come clearly within its letter and spirit.</p> <p>A mortgage on the homestead, executed and delivered after the Act of 1860 went into effect, although invalid at the time of its execution, becomes valid and effectual immediately upon the execution and recording of a declaration of abandonment.</p>

<p>Appeal from the Third Judicial District, Alameda County.</p> <p>The facts are stated in the opinion of the Court.</p>

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

<p>Appeal from the First Judicial District, San Bernardino County.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the First Judicial District, San Bernardino County.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>The order of a County Court dismissing an appeal from a Justice’s Court in an action of forcible entry and detainer is a final judgment, from which an appeal may be taken to the Supreme Court.</p> <p>An undertaking on appeal to the Supreme Court, conditioned “that appellant will pay all costs and damages which may be awarded against him on the appeal, and also all the rents and profits of the premises in controversy during the pendency of the appeal, not exceeding six hundred dollars,” is sufficient to sustain an appeal.</p> <p>An undertaking on appeal filed under the three hundred and forty-eighth section of the Practice Act is not iúvalidated because the sum mentioned exceeds three hundred dollars.</p> <p>A notice of appeal from a judgment rendered in a Justice’s Court to the County Court, in an action of forcible entry and detainer, is not invalidated' because it contains a clause that the " appeal is taken on questions of law alone.”</p>

<p>Uitder the Kevenue Law of 1860, choses in action and property of an intangible character, such as debts and the like, are properly assessable in the county where the owner resides at the time of the assessment.</p>

<p>Appeal from the Seventh Judicial District, Mendocino County.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Where the debt, to secure which a mortgage is given, is barred by the Statute of Limitations, the mortgage is also barred; and if an action is brought to foreclose it, one who has purchased or acquired a lien on the property subsequent to the mortgage, has a right to intervene in the action and plead the Statute of Limitations.</p>

Plaintiffs filed their petition, on the 18th day of January, 1862, in the County Court of El Dorado County, to foreclose a mechanic’s lien for work and labor performed in the construction of a building. The County Court dismissed the proceeding for want of jurisdiction and plaintiffs appealed.

The defendant was indicted for stealing sixty-four pieces of gold coin of the lawful currency of the United States, of the value of twenty dollars each, being of the denomination of double-eagles. He was found guilty, sentenced, and from the judgment of the Court appeals.

<p>Appeal from the Third Judicial District, Santa Clara County.</p> <p>The facts are stated in the opinion of the Court.</p>

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

<p>Appeal from the Sixteenth Judicial District, Amador County.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Seventh Judicial District, Solano County.</p> <p>On the twenty-fourth day of December, 1861, judgment was rendered in the County Court of Solano County in favor of Ellis against Hull & Hull for three hundred and fifty-one dollars and fifty-three cents damages, and for one hundred and four dollars and fifty cents costs. On the twenty-third day of January, 1862, the defendants appealed to the Supreme Court, and the defendants W. Long and S. W. Long, as sureties, signed the undertaking on appeal. On the twelfth day of April, 1862, the Supreme Court dismissed the appeal, because the transcript had not been filed. This action was brought on the undertaking on appeal. The Court gave judgment for plaintiff, and defendants appealed.</p>

<p>The Statute of 1861, requiring real estate, in actions to recover taxes, to be described in the complaint with the same particularity as in actions of ejectment, only applies to actions in which the real estate is made a party defendant.</p> <p>In an assessment for taxes, a description of a tract of land by name is sufficient.</p> <p>"When the complaint avers that the property was duly assessed by an Assessor of a district or county [naming it], it is not necessary to further aver that the property was situated within the jurisdiction of the Assessor.</p>

<p>The plaintiff in an action may have the place of trial changed upon a proper showing made under the twenty-first section of the Practice Act, and it is error in the Court to refuse it.</p> <p>In pleading, it is the ultimate and not the probative facts, which should be averred; and it is error in the Court to exclude evidence offered to establish the probative facts, although they are not averred in the complaint.</p>

On the twenty-first day of August, 1863, John Franklin filed his petition, in which he set forth that on the twenty-fifth day of November, 1861, he became an enlisted soldier in Company H of the second regiment of cavalry, California Volunteers, and on the twenty-fifth day of July, 1863, was honorably discharged from service, and that on the eighteenth day of August, 1863, he requested the Board of State Examiners to audit and allow his claim for five dollars per month…

<p>Appeal from the Sixteenth Judicial District, Calaveras County.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>In an action against a common carrier, to recover damages for the loss of a draft, the measure of damages, prima fade, is the amount due on the same; but the defendant is at liberty to reduce the damages by proof of payment, the insolvency of the maker, or any fact tending to invalidate the security.</p> <p>In such action, a complaint which does not state the date of the draft, the amount for which it was drawn, the time when it was payable, or to whom payable, is insufficient.</p>

<p>Appeal from the Fifteenth Judicial District, Butte County.</p> <p>Ths facts are stated in the opinion of the Court.</p>

<p>Common carriers, who are engaged in. the transmission and delivery of letters inclosed in envelopes, are not liable for any article of special value inclosed within the envelope, or for any loss beyond that of an ordinary letter, unless informed at the time they received the letter for transmission of the value of the same.</p>

<p>Appeal from the Seventh Judicial District, Marin County.</p> <p>The facts are stated in the opinion of the Court.</p>

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

<p>Whbbe the plaintiff is appellant, and the judgment is for the defendant, the jurisdiction of the Supreme Court on appeal is determined by the amount claimed in the complaint.</p> <p>If the appeal is by the plaintiff from a judgment in his favor, then the amount in . dispute is the difference between the amount of the judgment dnd the sum claimed by the complaint.</p> <p>The jurisdiction of the Supreme Court on appeal is determined by the amount in dispute; and, before the amendments to the Constitution which went into effect in 1863, that amount was any sum‘exceeding two hundred dollars, exclusive of costs.</p> <p>If the appeal is taken by the defendant from a judgment in his favor, where he set up a counter claim, the amount in dispute is the difference between the amount of the judgment, exclusive of costs, and the sum claimed in his counter claim.</p> <p>The interest due forms a part of the amount in dispute; and where the principal sum, for which judgment is recovered, is less than two hundred dollars, if the interest added swells the judgment to more than two hundred dollars, the Supreme Court has jurisdiction.</p> <p>Where the several owners of a mine unite and cooperate in working the same, they form a mining partnership, which is governed by many of the rules relating to ordinary partnerships, but which has some rules peculiar to itself.</p> <p>One of these rules, peculiar to a mining partnership, is, that each owner has a right at any time to sell and convey his interest, and such sale does not dissolve the partnership.</p> <p>Another of these rules is, that the law does not, in case of a mining partnership, imply any authority, either to a member of such partnership, or to its managing agent, to bind the company or its individual members by a promissory note, or a contract of indebtedness, executed in the name of the company; but it is incumbent on the party claiming to hold the company for such indebtedness to show that the person, executing or contracting the same in the name of the company, had power and authority to do so.</p>

Moore, the mortgagor, purchased the steam engine spoken of in the opinion, of Lambard, its manufacturer, in Sacramento City. The other facts are stated in the opinion of the Court.

<p>Where the evidence is conflicting, a new trial will not be granted; and where, in such case, a motion is made for a new trial, on the ground that the verdict is not sustained by the evidence and overruled by the Court below, the presumption is that the verdict fairly accords with the convictions of the Judge who tried the cause, as well as the jury.</p> <p>In an action for damages, for taking gold from a mining claim, the plaintiffs labor under great difficulty in proving the exact amount of damages they have sustained, and the defendants have the means in their power of showing the correct amount of gold taken out; and if they neglect to do so, they cannot complain that the jury by their verdict have fixed a large estimate upon the damages.</p> <p>It is not necessary to prove the transfer of title of a mining claim by a written conveyance, but a parol transfer with delivery of possession is sufficient.</p> <p>Since the amendment of the Practice Act, in 1861, the Clerk may insert the amount of the costs, within two days after they shall have been taxed or ascertained, in a blank left in the judgment for that purpose.</p>

<p>If a promissory note is surrendered up by mistake, under the supposition that it is fully paid, yet if not fully paid, the defendant is still liable for the balance due.</p> <p>An action on a promissory note is barred by statute of limitations, if not commenced within four years from the time the cause of action accrues.</p>

<p>If the owners of a ditch or flume for the conveyance of water erect a dam above mining claims, and the claims are afterwards damaged by reason of the breaking of the dam, its owners are not liable for the damages, if it was constructed with that reasonable care which prudent men would use, and no negligence is shown in its care and management.</p>

<p>Appeal from the District Court, Ninth Judicial District, Siskiyou County.</p> <p>The facts are stated in the opinion of the Court.</p>

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

<p>Appeal from the District Court, Fifteenth Judicial District, Butte County.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>A conveyance of property made and received with intent to defraud creditors is void, though there may have been a full and valuable consideration paid therefor. The fraud taints and vitiates it, and it will not be allowed to stand even as security for advances actually made.</p> <p>Where the fraudulent vendee has held the property, or converted the same to his own use, the Court will compel him to account for the value thereof, and direct the proceeds to be paid over to the creditors of the vendor.</p>

<p>Where the grantor named in the body of a deed signs a different name from that recited in the body of the deed, it is not entitled to be admitted in evidence, until it. has been shown by parol proof that the person who executed the deed was the same one whose name is recited in the body.</p> <p>Where real estate is conveyed to a married woman by a deed which recites a consideration of money paid, as well as love and affection, the land conveyed becomes the common property of the husband and wife, and the deed of the husband alone is sufficient to convey it.</p> <p>A defendant in an action of ejectment may show in defense a title to the demanded property acquired by him after the commencement of the action.</p>

<p>When the motion for a new trial is based upon newly-discovered evidence, or that the verdict is against evidence, an enlarged discretion is vested in the Court below; and the Supreme Court will rarely interfere with the action of the Court below, in granting a new trial.</p> <p>When a new trial is granted by the Court below, entirely upon alleged errors of law, the Supreme Court will review the action of the Court below, as in other cases.</p>

<p>If the statement and notice of motion for new trial are defective, in not setting forth, specifically, the grounds of the motion, an objection should be made on this ground, in the Court below, to enable the Supreme Court to review the action of the Court below.</p>

<p>In an action of ejectment to recover possession of a mining claim, where the complaint alleges in general terms that the plaintiffs are the owners of the mining ground in controversy, they are entitled to show in evidence the rules and customs of the mining district in support of this alleged ownership without averring such rules and customs in the complaint.</p> <p>The possession of one tenant in common is presumed to be the possession of all, and in order to rebut this presumption and make the possession adverse, it must be shown that the possession was with the intent to hold adversely, and such intent must be indicated by acts calculated to exclude the co-tenant.</p> <p>If written laws exist in a mining district, and the proof renders it doubtful whether they are in force, both the mining laws and parol proof of the mining customs may be offered in evidence.</p> <p>Where a forfeiture is claimed under a mining regulation or custom, this regulation or custom will be most strictly construed against the claim of forfeiture.</p> <p>A judgment recovered in ejectment against a portion of several co-tenants will not be reversed because all the co-tenants are not made parties defendant.</p>

<p>An appeal from an order refusing to change the venue of an action, operates as a stay of all further proceedings in the case in the Court below, until such appeal is determined.</p> <p>An undertaking in the sum of three hundred dollars, as required by the three hundred and forty-eighth section of the Practice Act, is sufficient to perfect such appeal and stay proceedings.</p> <p>If one of the terms of a written agreement is left out by mistake when the same is drafted, parol evidence of that fact may be received, and the agreement reformed and made to correspond with the intentions of the parties.</p>

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

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

<p>Appeal from the Fifteenth Judicial District, Butte County.</p> <p>The plaintiff, at the time of the levy of the executions, was and had been for five years a regularly licensed ferryman, having a ferry across Feather River, near the town of Oroville, on the main traveled route from Oroville to Red Bluff.</p>

<p>The rule that a party must particularly specify his objections to evidence when offered, applies only to those objections which relate to the question whether the evidence is admissible or not, and does not relate to the question as to the weight to be given to the evidence after it is admitted, or to matters tending to overthrow, contradict, or invalidate it.</p> <p>When the complaint in ejectment is general in its terms, and makes no mention of deeds, and the answer is equally general in its denials, and on the trial plaintiff relies on tax deeds to recover, the defendant has a right to introduce any evidence allowed by the statute, to show the invalidity of the tax deeds, or the title acquired under them.</p> <p>If the plaintiff relies on tax deeds to recover, the defendant has a right to show that the land assessed to him included a tract in which he had no right, title, interest, or claim.</p> <p>When the assessment is not of an undivided interest in, but of an entire tract or parcel of land, the Tax Collector has no power or authority to sell an undivided interest therein for the non-payment of taxes.</p> <p>The owner of the property assessed, and in default of his doing so, the Tax Collector has a right to designate at or before the time of sale any portion less than the whole tract which will be sold; but when this designation is made, the parcel sold must be particularly located by metes and bounds in the general tract, so that the purchaser may know its exact boundaries and what part of the tract remains unsold.</p> <p>If the description of the tract sold at the time of the sale is general, as “ fourteen feet” in a certain lot, the sale is void for uncertainty, and the defect cannot be cured by inserting a proper description in the certificate of purchase or collector’s deed.</p>

<p>Hr an action on an undertaking on appeal, it is a sufficient averment of the delivery of the undertaking, if the complaint show that it was filed in the Clerk's office.</p>

<p>The liability of a railroad company, as common carriers, differs from their liability as warehousemen.</p> <p>As common carriers, they are bound to safely transport and deliver goods to the point of their destination, unless the same are lost by the act of God or the public enemy; and the burden of proving that they are thus lost, rests upon the company.</p> <p>When the goods arrive at the point of destination, and are placed in the warehouse of the company, its liability as warehousemen commences, and from that time it is bound only to use ordinary care and diligence in safely keeping and delivering the goods ; and the burden of proof in case of loss is on the bailor.</p> <p>In an action against a railroad company for loss of goods as common carriers, where the proofs render it uncertain whether the goods are lost while being transported, or after being deposited in the warehouse, and there is no proof of want of ordinary care, the judgment will be reversed.</p>

<p>When an agreement in writing is entered into under the three hundred and eightieth section of the Practice Act, to submit questions of difference relative to the partition of lands to the award of arbitrators, and the arbitrators meet and make their award, a Court of Equity will decrece a specific performance of the award.</p> <p>The fact that such agreement contains a clause by which each party binds himself to the other in a sum certain, as a penalty, in case he refuse to abide by and perform the award, does not deprive a Court of Equity of its power to decree ■ a specific performance, even though the party refusing to perform should offer to pay the penalty agreed upon.</p>

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

<p>Where the bailee of property obtains possession of it from the owner, with the intent of stealing it, and carries’out that intent, he is guilty of larceny, and should be indicted for that crime.</p> <p>If, however, the intent to steal did not exist at the time' of taking possession of the property by the bailee, but was conceived afterwards, the indictment should be laid under the seventy-first section of the Act concerning Crimes and Punishments.</p>

<p>A judgment by default should not be set aside by the ClWt,%nless the djEndant shows by competent proof, that the judgment was en!fee(l4j0|íSí|5lmistake, inadvertence, surprise, or excusable neglect on his part; and the payment of costs should be imposed as a condition of setting aside the judgment.</p>

<p>Appeal from the District Court, Fourth Judicial District, Contra Costa County.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>The Supreme Court .has jurisdiction to review the action of the District Court on appeal from an order recalling an execution for costs or refusing to issue one, when the amount of costs exceeds two hundred dollars.</p> <p>If items are included in the bill of costs which are not properly taxable, it affords no just ground for refusing to issue an execution or recalling one; but the remedy is by motion to retax.</p>

<p>Appeal from the District Court, Seventh Judicial District, Con- . tra Costa County.</p> <p>The facts are stated in the opinion of the Court.</p>

The mortgage which Gassner, the appellant, sought to foreclose in this action, was given for the purchase money of the billiard tables. The tables remained in Patterson’s possession until purchased by Timson, when they were delivered to Timson, who was in possession when the suit was brought. The other facts appear in the opinion.

<p>Appeal from the District Court, Tenth Judicial District, Sutter County.</p> <p>The facts appear in the opinion of the Court.</p>

<p>Appeal from the District Court, Seventh Judicial District, Sonoma County.</p> <p>The facts appear in the opinion of the Court.</p>

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

<p>A mortgage, executed after the passage of the amendatory Homestead Act of 1860, by both husband and wife, upon the homestead, is valid, although given for borrowed money, provided a declaration of homestead had been made and recorded at the time of its execution.</p> <p>The second section of the amendatory Homestead Act of 1860, applies only to such homesteads as are held under the declaration provided for in that act, and has no application to homesteads held under the Act of 1851.</p>

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>At the sale of the city slip property in 1853, the plaintiff became the purchaser of two lots for the sum of $22,000, and paid $5,000 of the purchase money down, and in 1854 paid the further sum of $2,490 on the purchase money. This action was brought to recover back the sums thus paid, and legal interest thereon, by reason of the failure of title, owing to the invalidity of the ordinance under which the sale was made.</p> <p>Plaintiff had judgment in the Court below, and defendant appealed.</p>

<p>No appeal lies from an order denying a motion for leave to intervene.</p>

<p>A BEizra in debt to B, executes to him his promissory note for the amount due. A afterwards gives to B, C’s note for the same amount, and B surrenders up A’s note, which is destroyed. C’s note is not paid at maturity, and B sues A upon the original note, which had been given up : held, that the action could be maintained, as there was no express agreement between A and B that C’s note was to pay the debt, or that the note of A was to be extinguished by C’s note: keld, further, that the reception of C’s note, in the absence of any express agreement to the contrary, only operated as an extension of the time of payment of A’s note until the maturity of C’s.</p>

<p>The petition asking the Court to condemn land for railroad purposes under the Railroad Law of this State, in order to give the Court jurisdiction, should aver that petitioners have endeavored to contract for the land, sought to be acquired for the use of the railroad, and that they cannot contract for the purchase thereof.</p> <p>The Court has full power to grant leave to amend such petition, whenever it shall be of opinion that justice may require it.</p> <p>The question whether that clause of the Constitution prohibiting private property from being taken for public use without a just compensation, authorizes the Legislature to confer upon railroad companies the power of taking land from the owners upon the payment of a just compensation, has been fully put at rest, and the right and power firmly established by numerous decisions.</p> <p>The question of the public character of railroads, and their necessity for public use, is one that partakes more of a political than a judicial character, and rests much, if not entirely, in the sound discretion of the Legislature; and when the political department of the Government has recognized the public character and necessity for public use of any particular proposed railroad, Courts will rarely, if ever, in a proceeding to condemn lands, investigate and determine this preliminary question.</p> <p>Under the general Railroad Law, all railroads are compelled to act as common carriers for the conveyance of all passengers and property that may come to their road for that purpose.</p> <p>The Courts are not authorized to condemn lands for railroad purposes, unless it is shown by evidence that the petitioners have endeavored to contract for the purchase of the same, but have been unable to do so.</p> <p>The general Railroad Law has not given to any company organized under it, the right to condemn or use any lands owned or previously located and appropriated for railroad purposes by another railroad company, except where it may be necessary for one railroad to cross another. Land once located by a company, who are proceeding in good faith and with reasonable diligence in the construction of their road, cannot be taken from it and appropriated by another company.</p>

The facts are stated in the opinion of the Court. The plaintiff recovered judgment in the Court below against the defendant, Williamson, and he appealed.

<p>Where a demurrer is interposed to an answer, and the cause is tried by the Court without first disposing of the demurrer, and no objection is made at the time of trial, it is not such an irregularity as entitles the plaintiff to a new trial.</p> <p>If A brings an action against B to recover possession of land, and files a lis pen-dens, and during the pendency of the action, and after the lis pendens is filed, C purchases the land of B, and judgment is afterwards rendered against B, C is bound and estopped by the judgment.</p> <p>The mere possession and use of premises, as a homestead, does not of itself create any interest in the property, when the parties claiming the homestead have no title or estate therein.</p>

<p>Where the pleadings are verified, and the answer in response to a material allegation of the complaint denies the same upon information and belief, the denial is insufficient.</p> <p>If the answer merely denies the conclusions of law resulting from the facts averred in the complaint, it is insufficient to raise an issue, and the facts are deemed admited.</p>

<p>The general rule is, that it is for the Court to determine all questions relating to the admissibility of evidence ; but when the question of its admissibility depends upon the decision of other questions of fact, such as the execution of a contract or agreement, and the testimony is conflicting as to whether the instrument was in fact executed or delivered, it is proper to submit this question to the jury, under proper instructions from the Court.</p> <p>Where the party offering the instrument, makes out a prima facie case of its execution, the other party should not be allowed to introduce counter proof before the instrument is read to the jury.</p> <p>Parol evidence is admissible when it relates to the execution or authenticity of a written instrument, or to its delivery, or whether the delivery was absolute or conditional.</p> <p>Where a written agreement is' signed and executed by the parties, and at the same time an addition is made in writing upon the same paper, beneath the signature, which additional writing is not signed by either of the parties independent of the signatures of the parties which precede it, parol evidence may be introduced to show whether the parties intended this addition to form a part of the contract.</p> <p>Defendants entered into a contract with the Table Mountain Ditch Co. to perform certain labor on the ditch of the company. The contract contained many stipulations; one of which was, that if the work was not completed by a certain time, defendants should forfeit the contract, and also all moneys due on the same: held, that if this clause in the contract was inserted under a mistake as to the amount and difficulty of the labor to be performed, it was void; and that it did not deprive defendants of the benefit of the other clauses in the agreement.</p> <p>If the pleadings are under oath, and the replications in response to a material averment of the answer undertake to deny, by saying “ It is not true,” etc., the replication is evasive and does not specifically deny the averment.</p>

<p>Instruments conveying mining claims need not be under seal.</p> <p>Plaintiff located a quartz lode and commenced work, digging up the rock towards the lode, at a distance of fifty or one hundred feet from it: held, that his declarations made at the time, as to his object in commencing work at that point, were admissible in evidence.</p>

The facts will be found fully reported in 10 Cal. 120. The plaintiffs recovered judgment in the Court below, and defendant appealed.

<p>Thb Statute of Limitations requires an action on a judgment to be brought within five years ; but when a judgment is rendered payable in installments, the time begins to run from the period fixed for the payment of each installment as it becomes due.</p>

<p>Appeal from the District Court, Seventeenth Judicial District, Sierra County.</p> <p>The facts are stated in the opinion of the Court.</p>

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

<p>The allowance of a claim against an estate by an executor or administrator, and the Probate Judge, has the force and effect of a judgment, to be paid in due course of administration; but it is doubtful whether this judgment would bind another creditor of the estate who is not a party to it.</p> <p>When the account of a claimant is contested, and he applies for leave to amend, by filing a more full and particular account, the amendment should be allowed.</p>

<p>Appeal from the District Court, Fifteenth Judicial District, Tehama County.</p> <p>The plaintiff recovered judgment in the Court below, and the defendant appealed.</p>

<p>Appeal from the District Court, Third Judicial District, Santa Clara County.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>The Common Council of the City of Stockton, under the charter of 1862, have power to make ordinances to prevent cattle and hogs from running at large over the streets and public places within the corporate limits of the City.</p>

<p>Appeal from the District Court, Thirteenth Judicial District, Stanislaus County.</p> <p>Albert Packard was seized in fee of the demanded premises on the twelfth day of March, 1856, and continued so seized till he conveyed it to plaintiff, Hamm, on the third day of January, 1857. It was under this deed from Packard that Hamm claimed title in the present action. The suit brought by Arnold against Hamm, Gallup, and Gwin was commenced December 30th, 1858, and judgment was rendered in it February 17th, 1860. The present action was commenced October 7th, 1861. The other facts appear in the opinion of the Court.</p>

<p>One who, with armed men, enters upon land inclosed with a fence and in the possession of another, and commences the erection of a house, and refuses to deliver up peaceable possession on demand, but makes a show of force to retain it, is guilty of forcible entry and detainer.</p> <p>In an action of forcible entry and detainer, all matters of legal excuse, justification, or avoidance, can be given in evidence by the defendant under a general denial of the allegations of the complaint.</p> <p>The granting or refusing of a change of venue by reason of the bias and preju dice of the citizens of the county, is discretionary with the Court, subject to revision only in cases of abuse.</p> <p>Where the complaint in an action of forcible entry and detainer, prays for treble damages, the Court has the power to treble the damages;' although the complaint does not specially refer to the statute authorizing it.</p> <p>In impanneling a jury each party has a right to put questions to a juror to show ■ not only that there exist proper grounds for a challenge for cause, but to elicit facts to enable him to decide whether he will make a peremptory challenge.</p>

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

<p>On the trial of an action of forcible entry and detainer, the plaintiff offered in evidence a judgment against defendant awarding possession of the land; and the writ of restitution issuing on the same; and the Sheriff’s return thereon: held, to be competent evidence, for the purpose only of showing the extent of plaintiff’s possession, and that defendant was estopped from contesting the same.</p> <p>The Supreme Court, in reversing a judgment, passed upon a point of law, as resulting from the facts then before it: held, that the rule that the law, thus laid down, becomes the law of the case in all its stages, only applies so long as the evidence develops the same state of facts; and that, if on the new trial, the evidence shows a different state of facts from that shown on the first trial, the law of the case will be that resulting from this new state of facts.</p> <p>When irrelevant testimony is offered by one party, in the course of a trial, and objected to by the other, and is admitted by the Court, under the objection; and afterwards, before the close of the trial, the party introducing the evidence asks leave to withdraw it, and the other party objects, and the Court, under the objection, refuses leave : held, that this last objection was a waiver of the first, and cured the error.</p> <p>If the party guilty of a forcible entry, has any title or right of possession, Ms title or right of possession cannot be tried in an action of forcible entry and detainer. He must first deliver up the possession, forcibly acquired; and then, he may litigate his title or right to possession in a proper action.</p>

<p>A cause of action arising out of contract, or based upon a single or continuous tortious act, cannot be divided up into several demands, and made the subject of separate actions.</p> <p>If an action be brought to recover possession of a lot of personal property, wrongfully taken and detained, and if the wrongful taking was one continuous and tortious act, a verdict and judgment, in that action, will be a bar to a subsequent suit for the remainder of the property.</p> <p>The Supreme Court will not presume error, or that facts exist which would show error. If the Court below commits error in its finding or judgment, that error, or the facts necessary to establish it, must be shown afiirmatively by the appellant.</p>

<p>The declaration of a married woman as sole trader, which states that the business she intends to carry on will be the business of buying and selling goods, wares, and merchandise, describes the business to he carried on with sufficient particularity.</p> <p>The affidavit of publication of the declaration of a sole trader, which states that the publication was made “ once a week for three weeks, viz.: from April 26th, to May 20th, 1861,” is sufficient to show that the publication was made for three successive weeks.</p> <p>A and B, married women, as sole traders, each had suits pending against O, a Sheriff, for seizing on execution their personal property. A’s suit was tried first, and it was stipulated that B’s suit should abide the event of A’s. On the trial of A’s suit, she offered as a witness, the husband of B : held, that the legal interest of the witness was averse to the party calling him, and that he was a competent witness.</p>

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

At the Marshal’s sale referred to in the opinion, the land was sold in Ihree parcels; the lot, thirty feet front, on which the residence was, in one parcel; the strip, four feet nine inches wide, in a second parcel; and the lot, thirty-four feet front, in a third parcel.

The plaintiff recovered judgment in the Court below, and the defendants appealed. The other facts are stated in the opinion of the Court.

<p>Appeal from the District Court, Fifteenth Judicial District, Butte County.</p> <p>The land in dispute in this action, was the north half of the south-east quarter section eight, containing eighty acres. Plaintiff, in his declaration of location, claimed the whole of the south-east quarter. Defendant had resided on the north-east quarter of the same section for several years prior to the making and recording of plaintiff’s declaration; and an inclosed field of defendant’s extended on, to, and included, about fifteen acres of the said north half. Plaintiff recovered judgment in the Court below, and the defendant appealed. The other facts are stated in the opinion of the Court.</p>

<p>Whebe an action has been commenced to quiet title to a tract of land and to remove a cloud therefrom caused by certain deeds on record, and a lis pendens has been filed, one who purchases from the defendant during the pendency of the action, and after the lis pendens is filed, is bonnd by the judgment rendered therein.</p> <p>Gregory v. Haynes (13 Cal. 592 and Id. 21, 443) affirmed.</p>

The widow in this case did not claim the homestead as against the incumbrances on the land, but only as against the claim of the general creditors of the estate. The widow was married to the intestate on the twenty-third day of April, 1861; and the child was born February 6th, 1862. The other facts appear in the opinion of the Court.

The land within the inclosure mentioned in the opinion was public land, and had been inclosed at the common expense of the parties claiming it for their mutual protection. The other facts appear in the opinion of the Court.

The respondents, Sarah E. D. James and George H. C. James, were children of the intestate, by a former marriage, and were his only children. The homestead had been acquired after the marriage of the intestate with appellant, Mary M. James. The other facts appear in the opinion of the Court.

On the twenty-third day of August, 1861, a decree was rendered in the Fourth District Court, on the petition of Alta Gracia Carlos, divorcing her from her husband, Fernando Carlos. The decree further adjudged two-thirds of the community property to the plaintiff, and one-third to the defendant, and provided for other proceedings touching its distribution, among which was the appointment of Spencer, the plaintiff in this action, receiver.

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

<p>Tub jurisdiction of the Probate Courts over the estates of deceased persons, does not divest the District Courts of their general jurisdiction as Courts of Chancery, over actions for a settlement of the affairs of a partnership.</p> <p>In the' absence of any special agreement between partners upon the subject, the rule of law is, that partners are to share equally both profits and losses; and the mere fact that partners have put unequal amounts of capital into the common stock, or that one has put in all the capital, and the others only their skill and industry, will make no difference jn the rule.</p> <p>As a general rule, it is the duty of each partner, during the partnership, to devote himself to the interests of the concern without compensation, unless there is an express agreement that he receive compensation. But when the partnership is dissolved by death, and the survivor expends his time and labor in the care and management of the partnership property, by which its value is enhanced, he should receive compensation for the same, to be deducted out of the profits realized from the enhanced value of the property. A surviving partner, however, is not entitled to pay for services rendered, for merely winding up the affairs of the concern.</p> <p>When a bill is filed to settle the affairs of a partnership, the partnership transactions of each and all the partners should be taken into account; and the deci-ee should include all these, so as to leave nothing open for future litigation.</p>

<p>Appeal from, the District Court, Eifth Judicial District, San Joaquin County.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>The vendor of personal property is not a competent witness for his creditors, to impeach a sale made by him, or to prove the sale fraudulent, in a contest respecting it between his creditors and his vendee.</p> <p>The case of Howe v, Scannell (8 Cal. 325) commented on and overruled.</p>

<p>Appeal from the District Court, Seventh Judicial District, Mendocino County.</p> <p>The facts are stated in the opinion of the Court.</p>

This action was commenced on the thirtieth day of November, 1860. The reservoir of the plaintiff was constructed across the bed of the ravine, and defendants were digging and sluicing immediately above the reservón.’, and had excavated a ditch, by which they had diverted the water from the reservoir. The other facts are stated in the opinion of the Court.

<p>McNeil v. Borland (23 Cal. 144) affirmed.</p> <p>To enforce a lien under the Act of May 17th, 1861, for securing the liens of mechanics and others, no complaint need be filed, or summons issued; but in lieu thereof a petition is filed, and the Clerk issues a notice, which is published.</p> <p>When a proceeding is commenced to enforce a lien under the Act of 1862, per. sons having a lien by mortgage upon the property upon which the lien is sought to be enforced, have no right to intervene.</p>

<p>Where a statement is filed, and served by the moving party, on motion for a new trial, and amendments thereto are made by the opposing party, and the only settlement of, or certificate to, the same was an indorsement by the Judge at the bottom of the statement, that the amendments to the statement were allowed: held, that the statement would not be considered on appeal.</p>

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>The defendant recovered judgment in the Court below, and plaintiff appealed. .</p>

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

One Smith recovered a judgment against Kretzer and F. Crosby, partners in trade, for seven hundred and forty-one dollars and sixteen cents, and costs; and on the ninth day of January, 1861, assigned the judgment to plaintiff, Ward, and on the same day an execution was issued on the judgment, by virtue of which the Sheriff levied on and sold the hogs' in controversy. Kretzer & ‘ Crosby were the owners of the hogs, when levied on.

The plaintiff, in this case, was a judgment creditor of the corporation. The corporation had not been dissolved before the commencement of this action, by any proceeding under the statute; but its property had all been sold under execution about two years before the commencement of this action, and from that time it had ceased to hold meetings, elect officers, or perform any act in its corporate capacity.

<p>Appeal from the Probate Court, Santa Clara County.</p> <p>The facts are stated in the opinion of the Court.</p>

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

<p>When the jury are directed by the Court to find a general verdict, and also to make a special finding of facts upon questions submitted to them—and ageneral verdict is returned in favor of one party, while the findings upon the special issues are in favor of the other party—the Court should render judgment in accordance with the special findings, if they embrace all the issues raised in the pleadings. If, however, there is any one issue in the pleadings, not covered by the special findings, the judgment should be rendered on the general verdict.</p>

<p>The owners of a ditch, by which the -waters of a stream have been first appropriated, are entitled to recover damages for injury or loss sustained, caused by dams or other obstructions having been erected on the stream, above the head of the ditch, by which the regularity of the flow of its waters is so disturbed as to cause actual injury or loss to the proprietors of the ditch.</p> <p>On the trial of an action to recover such damages, proof that in consequence of the irregularity of the flow of water, the owners of the ditch have lost their customers, is competent evidence.</p>

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

<p>B. & L. were partners. B. & L. as a partnership was also a member of two other firms—B., B. & S. and B., L., S. & D. The firms all failed, and their property was attached by creditors. The creditors of B., L. & S. and B., L., S. & D. obtained the first attachments, and placed them in the hands of the Sheriff, before the creditors of B. & L. placed their’s in his hands. The Sheriff levied all the wits on the property in the order in which they were placed in his hands. The Sheriff had in his hands a sum of money received from the sale of the property of B. & L. to apply on the executions issued on judgments rendered in the actions :</p> <p>Held, that the creditors of B. & L. were entitled to the money; and that, where a partnership is composed of two or more firms, the creditors of one of the firms are entitled to a preference in the payment of their debts, over the creditors of the whole partnership, out of money the proceeds of the property of that firm.</p>

The complaint averred that plaintiff and defendant were, and for a long time had been, tenants in common, owners and holders of certain mining claims, and a water ditch (describing the same), and that the plaintiff was the owner and holder of the undivided two-thirds part, and the defendant of the undivided one-third part of said property.

After the sale of the goods by Blackman & Co., at San Francisco, to McDaniel, Blackman & Co. shipped the same to McDaniel, the vendee, at Trinity Center. The bills of lading were made out in the name of the vendee. The goods, in ordinary course of transportation, arrived at the head of steamboat navigation, at Red Bluff, where they were placed in the hands of Pierce, Church & Co., warehousemen, who had orders from the vendee to forward them to him.

<p>A brought an action against B to recover for the value of services alleged to have been rendered by A, for B, in keeping a hotel. The defense was, that A and B were partners. On the trial, B, after introducing some evidence, which tended to show a partnership, offered in evidence the books of the hotel, as farther evidence of the partnership: held, not to be error, and that if the books afforded any evidence of a partnership, the entries were admissible.</p> <p>The books of a partnership are evidence in actions between the partners, and when kept subject to the inspection of each, must be admitted as correct until the contrary is shown.</p>

<p>A & B were partners, and as such, owned two tracts of land. A for several years had resided upon one of the tracts with his family, using it as a homestead. The firm becoming embarrassed, they made a division of their lands, and B executed to A a deed of his interest in the homestead tract; and A executed to B a deed of his interest in the other tract. These deeds were executed for the purpose of enabling A to file a declaration of homestead on the tract deeded to him, and thereby preventing the creditors from selling it in payment of their debts. A soon after, executed and recorded a declaration of homestead on the land:</p> <p>Held, that the conveyances were fraudulent and void as to creditors; and that, notwithstanding the homestead claim, the land was still liable for the debts of the firm.</p> <p>Where a partnership, in embarrassed circumstances, converts its means, upon the strength of which it has obtained credit, into real estate, to be claimed as a homestead by one of the firm, for the purpose of placing those means beyond the reach of the creditors, the land is liable to the executions of the creditors, notwithstanding the declaration of homestead.</p>

<p>Appeal from the District Court, Seventh Judicial District, Contra Costa County.</p> <p>The facts are stated in the opimon of the Court.</p>

<p>Appeal from the District Court, Third Judicial District, Santa Clara County.</p> <p>The facts are stated in the opinion of the Court.</p>

Plaintiff recovered judgment in the County Court, and defendant appealed. The other facts are stated in the opinion of the Court.

The complaint in this case averred, “ that heretofore and prior to the wrongful entry and ouster hereinafter set forth, to wit: on the twenty-eighth day of February, 1852, plaintiff was lawfully seized and in the possession of the following described property, to wit:—[here follows the description]—and being seized and possessed thereof, the above named defendants afterwards, to wit: on or about the first day of March, 1858, unlawfully and wrongfully entered into and upon…

<p>A brought an action against B, and averred in his complaint that C was indebted to A; that B promised A to pay C’s debt if A would release C, and that in consideration of the promise A did release 0: held, that the release of 0, being the alleged consideration of the promise of B, was an essential fact to be proved, and that unless proved A could not recover.</p>

The cattle levied on by the Sheriff, and for which this suit was brought, were that portion of the herd sold by Wells to Walden, roaming at large over the plains, and of which Walden had not, previous to the levy, taken actual possession. The verdict was rendered and the judgment entered up June 14th, 1861. On the same day plaintiff filed and served notice of motion for a new trial, and within five days thereafter filed and served his statement on motion for new trial.

The complaint in this case averred the partnership of plaintiffs, and its style, and that at divers and sundry times between the twenty-eighth of March, 1858, and the thirteenth of March, 1861, plaintiff sold and delivered to the defendant America S. Newton (acting by the name of America S. Tate), at her request, divers goods, wares, and merchandise, .food and raiment for the support of herself and family, and for the benefit and advantage of her separ rate estate, as…

The facts of this case which are not stated in the opinion of the Court, will be found in the former report of the same case (17 Cal. 589). The defendant recovered judgment and the plaintiff appealed.

<p>Appeal from the District Court, Sixteenth Judicial District, Calaveras County.</p> <p>One Callahan with nineteen others, in August, 1861, located a copper-hearing ledge in Calaveras County, three thousand feet in length. The interest of Callahan in the claim was one-twentieth, and he paid assessments on his interest in August and September, 1860. One Blatchey was also a member of the company. In November, 1860, five of the original locators were incorporated, for the purpose of working the ledge, under the name of the “ Keystone Company.” Certificates of stock were issued by the corporation to the different claimants. Blatchey claimed the interest of Callahan by an alleged parol sale, made in October, 1860, and the corporation recognized and treated Blatchey as the owner. The corporation had been working the claim from the time of its formation up to the commencement of this suit. In June, 1861, Callahan, who had not attempted to exercise any control over the claim after October, 1860, executed to plaintiff, Patterson, a deed duly acknowledged, of an undivided one-twentieth of the claim. Patterson demanded of the corporation possession of the interest, was refused, and July 20th, 1861, commenced this action to recover possession. Plaintiff recovered judgment in the District Court, and defendants appealed.</p>

<p>Does an indictment for the crime of embezzlement, which contains two counts, and charges the defendant in the first count with having embezzled the sum of three hundred and sixty dollars and fifty cents on the nineteenth day of November, 1861, and in the second count with having embezzled the sum of six hundred and thirty-two dollars and twenty-five cents on the first day of January, 1862, charge two distinct offenses 1 Quere ?</p> <p>Is the two hundred and forty-first section of the Criminal Practice Act, defining the crime of embezzlement, to be extended to cases where the clerk or servant receives money or property from third persons, for his master or employer, or is it confined to cases where the clerk or servant receives the money or property directly from the hands of his master or employer ? Quere ?</p>

. The plaintiff recovered judgment in the District Court, and the defendants appealed. The other facts are stated in the opinion of the Court.

This was an application to be discharged from arrest on habeas corpus.

Burton, the defendant, moved to change the place of trial on the ground that De La Guerra, the plaintiff, and Joaquin Carillo, the District Judge, were first cousins, and therefore within the third degree of consanguinity. The motion was denied and defendant appealed.

<p>One who claims public lands in this State for raising fruit trees or crops, cannot enjoin miners from digging up the same for mining purposes, unless he can show that his fruit trees were planted or crops sown before the land was located for mining.</p> <p>When the plaintiff closes his evidence, if the Court is of opinion that it would not sustain a verdict in favor of plaintiff upon the testimony, a nonsuit should be granted.</p>

In 1858, John Skinker was the owner of the entire lot of land, and the same was assessed to him. On the twenty-third day of May, 1859, Skinker deeded an undivided half of the lot to Bradford, the intervenor. On the twelfth day of December, 1860, the People recovered judgment against Skinker for the taxes of 1858.

April 14th, 1857, Alfred K. Fisher brought an action in the District Court for Humboldt County against James T. Ryan, James R. Duff, and ten others named. The action was brought to foreclose a mortgage made by the defendants in said suit to A. S. Tobias, to secure their bond to him—which said bond and mortgage had come to said Fisher by assignment. The bond and mortgage were executed November 3d, 1854. Decree for plaintiff in the suit, September 15th, 1857.

<p>The facts are stated in the opinion of the Court.</p>

<p>Wheke one charged with crime has been arrested and held to answer for the offense before the impanneling of the grand jury by which an indictment is found against him, he cannot move to set aside the indictment on the ground that the grand jurors who found the same had formed and expressed an opinion that he was guilty of the offense charged, prior to their being impanneled.</p> <p>Quere ? Does that provision of the Criminal Practice Act which provides, that the trial jury shall “ at each adjournment of the Court ” be admonished by the Court, that it is their duty not to converse among themselves, or with any one else, on any subject connected with the trial, or to form or express any opinion .thereon until the case is finally submitted to them, apply to a temporary recess ?</p> <p>If, during the trial of a criminal action, the Court, before an adjournment, neglect to charge the jury, as required by Sec. 394 of the Criminal Practice Act, the judgment for that reason will not be reversed, unless it is shown, that the defendant sustained some injury thereby, by the jurors conversing among themselves or with others on subjects connected with the trial, or by forming or expressing an opinion thereon, during the adjournment.</p>

On the first day of October, 1860, J. H. Robinson sold to E. M. C. Vail a hotel at Shasta, and executed and delivered to her a deed therefor. She was at the time the wife of the defendant in this action, Gr. S. C. Vail. For a part of the purchase money, she executed to him the mortgage to foreclose which this action is brought. The Court below rendered the usual decree for a sale of the mortgaged premises. The defendants Gr. C. S. Vail and Crosby appealed.

The principal facts of this case will he found reported in the case of Ricketson v. Richardson (19 Cal. 330). After the reversal of the judgment the case was retried in the Court below, and on the fifth day of March, 1862, a decree was rendered in favor of plaintiff.