Volume 24 — California Reports

<p>Challenge to Jurors.—A defendant, on trial in a criminal action, may interpose a peremptory challenge to a juror, at any time after the appearance of the juror in the box and before he is sworn to try the case, until the whole number of peremptory challenges is exhausted.</p> <p>Id. Rule of Court. — The Court has no power to adopt a rule compelling a defendant in a criminal action to interpose his peremptory challenges to jurors at any particular time, for such rule would he clearly in conflict with the three hundred and forty-first section of the Criminal Practice Act.</p> <p>Id. After Juror is sworn.—After juror is sworn in a criminal case, it is the duty of the Court, upon good cause shown, to allow the defendant to use his peremptory challenges, until they are exhausted, at any time before the jury is completed.</p>

<p>Appeal from the Court of Sessions, Placer County.</p> <p>The defendant was convicted of the crime of larceny, and appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Adjournment of Court.—If the Judge or Judges of a Court do not appear by noon of the first day of a term, and the Sheriff or Clerk, at noon, does not adjourn the Court until the next day, the term does not thereby expire j hut the Judge or Judges can appear and open the Court at any time during the day, and the Sheriff or Clerk can legally at any time during the day, after noon, adjourn the Court until the next day.</p> <p>Conscientious Scruples of Juror ground of Challenge.—Where a juror, in a capital case, after being sworn to answer questions concerning his competency, says that he entertains such conscientious scruples as would preclude his finding the defendant guilty of an offence punishable with death, and the District Attorney challenges him on the ground of implied bias, the challenge should he allowed.</p> <p>Dying Declarations as Evidence.—Before dying declarations are admitted in evidence, it should he conclusively shown that the declarant was at the point of death; that he was conscious of approaching dissolution, and had lost all hope of a recovery, and made the declaration under the full belief that he was about to die. The existence of such belief need not be proved, however, by the express statements of the declarant, hut it may be shown from the circumstances that such belief actually existed.</p> <p>Id.—The declarations of deceased persons in cases of homicide stand on the same footing as witnesses sworn in the case as to their admissibility, and are governed by the same rules id conducting the examination, except that in examining the declarant leading questions may be put to him, and he may even be urged with earnest and pressing solicitation—although by such a course the credibility of the declaration is impaired.</p> <p>Murder and Manslaughter.—In case of mutual combat where a homicide is committed, in order to reduce the offence from murder to manslaughter, it must appear that the contest was waged on equal terms, and no undue advantage was sought or taken by the defendant; for if such was the case, malice may be inferred, and the killing amount to murder.</p> <p>Id.-—When two persons have a sudden quarrel, and after a sufficient time has elapsed for the blood to cool and passion to subside, go out to fight, and one of them kills the other, the killing will be murder and not manslaughter.</p> <p>Instructions to a Jury.—No instruction should be given to a jury which is not predicated upon some theory, logically deducible from at least some portion of the testimony.</p> <p>What constitutes Murder in First and Second Degrees.—In order to constitute murder in the first degree there must be something more than malicious or " intentional killing. There must be killing by means of poison, lying in wait, or torture, or some other kind of killing different from that of poison, lying in wait, or torture, which is wilful, deliberate, and premeditated, or a killing which is committed in the perpetration or the attempt to perpetrate any arson, rape, robbery, or burglary. Every other kind of murder, which is murder at common law, is murder in the second degree.</p>

<p>Bias of Judge—Change of Venue.—Bias or prejudice on the part of the Judge, constitutes no legal incapacity to sit on the trial of a cause, nor is it a sufficient ground to authorize a change of the place of trial.</p> <p>Error of Judge not Evidence of Bias.—The fact alone, that the Judge, on a previous trial of the same cause, made an erroneous ruling, is no evidence of the existence of bias or prejudice in his mind.</p> <p>Change of Venue for Prejudice of Judge.—An affidavit made on application to change the place of trial, which states, "that the Judge, as the affiant is informed and verily believes, has frequently stated that he believed the affiant guilty of the crime charged in the indictment, and has frequently expressed himself against and adversely to the affiant in connection with said charge,” does not merit consideration, as it contains a mere charge upon information and belief, and does not show how the information was obtained, or upon what the belief was based.</p> <p>Affidavit for Continuance.—An affidavit for a continuance, which merely shows that the desired witness resides in another county from that of the place of trial, and that a subpoena has been placed in the hands of the Sheriff of the county where the witness resides, and has been returned not served on the witness, does not show sufficient diligence to entitle the defendant to a continuance.</p> <p>Affidavit on Motion for "New Trial.—An affidavit made on motion for a new trial, in a criminal case, on the ground that the jury received evidence out of Court, other than that given by the witnesses who testified on the trial, which states that the affiant is informed and believes that slips of a newspaper and a law book containing the evidence given on a former trial of the same case, were left in the room where the jury deliberated on their verdict ,* and that the affiant is informed and believes that while so deliberating, the jury read from said newspaper slips what purported to be the evidence taken on said former trial, and from . said law book the evidence of a former trial as published in the same, is not sufficient to warrant the granting of a new trial.</p> <p>Performance of Duty by Jurors.—The presumption is that jurors perform their duty in accordance with the oath which they have taken, and to overthrow this presumption, there must be some direct positive testimony, tending to show misconduct on the part of the jury.</p>

<p>Entering nolle prosequi to use Dependant as a Witness.—When two or more persons are jointly indicted, and jointly to be tried, and the District Attorney desires to use one of them as a witness for the people, and makes an application to the Court for his discharge for that purpose, the Court may, before this defendant has gone into his defence, discharge him from the indictment. But unless all these things concur, to wit: a joint indictment, a joint trial, an application on the part of the District Attorney that the defendant be discharged, to be used as a witness for the people, before he has gone into his defence, the Court has no power to direct a defendant to be discharged from the indictment.</p> <p>Discharge from Indictment an Acquittal.—Should all the circumstances above stated concur and the Court discharge the prisoner, the discharge would be an acquittal in legal effect, and bar another prosecution.</p> <p>Dependant in Criminal Case sworn as Witness.—Where one of two or more defendants, jointly indicted and jointly on trial, at the request of the District Attorney, but without any compulsion, takes the stand as a witness for the people, and voluntarily takes the oath, and his counsel objects to his being instructed by the Court that he need not say anything to criminate himself, and then, without any objection being made, or exception taken, voluntarily gives testimony, criminating both himself and his co-defendants; this furnishes no ground for discharging the defendant who testifies from the indictment, or for arresting the judgment, and if erroneous, as no exception was taken, the Supreme Court cannot review the error.</p>

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>On the 10th day of October, 1863, the following certificates were filed in the Supreme Court:</p> <p>“In the District Court of the Fourth Judicial District, in and for the City and County of San Francisco, and State of California.</p> <p>“Francis Rowland v. Gustavus Kreyenhagen et. al.</p> <p>“I, William Loewy, Clerk of said Court, do hereby certify, that the judgment in this action was rendered on the 17th day of September, 1862, in favor of the plaintiffs, for the possession of real estate described in the complaint, with §2,182 10 damages and costs; that a motion for a new trial was made on the 21st of November, 1862, and on the 27th of April, 1863, the same was denied by the Court; that on the 3d of June, 1863, an appeal was perfected herein by the defendants; that no statement on appeal has been filed; that no transcript of the record has been made out; that the attorney for the appellants requested said transcript on the 9th of June, 1863; that the fees therefor have not been paid or tendered, and the same has not been made.</p> <p>■ “In witness whereof, I have hereunto set my hand and the seal of the said Court, this 9th day of October, 1863.</p> <p>“¥m. Lobwy, Clerk,</p> <p>“Per James E. Aschcom, D. C.”</p> <p>“ In the District Court of the Fourth Judicial District, in and for the City and County of San Francisco, and State of California.</p> <p>“ Gustavus Kreyenhagen v. Francis Rowland et. al.</p> <p>“ I, William Loewy, Clerk of said Court, do hereby certify, that the judgment in this action was rendered on the 15th day of September, 1862, against said Kreyenhagen and in favor of said Rowland, dismissing the complaint, and for the costs; that a motion for a new trial was made herein on the 21st of November, 1862, and on the 27th of April, 1863, the same was denied by the Court; that an appeal herein was perfected by the plaintiff on the 3d of June, 1863; that no statement has been filed on appeal; that no transcript of the record has been made out; that the attorney for the appellant requested said transcript on the 9th of June, 1863; that the fees therefor have not been paid or tendered, and the same has not been made.</p> <p>“In witness whereof, I have hereunto set my hand and the seal of the said Court, this 9th day of October, 1863.</p> <p>“ Wm. Loewy, Clerk,</p> <p>“Per James E..Aschoom, D. C.”</p> <p>Upon these certificates the appeals were dismissed. The appellants made no motion to reinstate the cases on the calendar during the October term, nor on the first Tuesday in November, as they were allowed to do by the order made at the close of the October term.</p> <p>The remittiturs were regularly issued in accordance with the 22d rule of the Court.</p> <p>The following is the order made by Mr. Justice Crocker and Mr- Justice Norton, in San Francisco:</p> <p>“In the Supreme Court of the State of California.</p> <p>“Francis Rowland v. Gustaves Kreyenhagen.</p> <p>“ Gustavus Kreyenhagen v. Francis Rowlakd.</p> <p>“ On reading and filing the affidavits of Herman Michels, George E. Whitney, Benj. S. Brooks, Wm. Loewy, Wm. R. Satterlee, and L. J. Lee, and on motion of B. S. Brooks, Esq., of counsel for the appellants, it is ordered that the Clerk of the Fourth District Court return to the Clerk of this Court the remittiturs or certified copies of the orders heretofore made, dismissing the appeals in these two cases; and it is further ordered, that the attorneys of the respondents show cause before the Supreme Court of the State of California, at the Court-room thereof, in Sacramento, on the 29th day of December, 1863, at 11 o’clock A. M., or as soon thereafter as counsel can be heard, why the said orders should not be vacated, and the said causes reinstated, and placed upon the calendar of said Court, on the ground that the said orders were obtained upon false suggestion and mistake, and were improvidently granted, and on the ground of the merits set forth in said affidavits; or why such other or further order should not be made as to this Court shall seem meet; and in the meanwhile let all proceedings be stayed.</p> <p>“ Crocker, J.,</p> <p>“UORTOKT, J.”</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Suit fob Taxes—Jurisdiction of.—An action brought under the Revenue Act of 1861, to recover judgment for unpaid taxes, is not a case in equity, but an action at law; and where the amount is less than three hundred dollars the District Court has no jurisdiction.</p> <p>Tax Suit—In Equity.—If, however, the action is brought under the provisions of the Act of May 12th, 1862, it is a case in equity, and the District Court has jurisdiction, although the amount claimed is less than three hundred dollars.</p> <p>Suits fob Taxes—Acts of 1861 and 1862.—The Acts of 1861 and 1862 prescribe the same form of complaint, but the Act of 1861 contemplates a mere money judgment, while the Act of 1862 authorizes a judgment foreclosing alien for taxes, with an order of sale, etc., so that the character of the action, whether it is a case in equity or at law, will be determined by the prayer of the complaint. If the prayer of the complaint is for a money judgment, the District Court will not have jurisdiction where the amount claimed is less than three hundred dollars; but if the prayer is for the foreclosure of a lien, order of sale, etc., the District Court has jurisdiction, regardless of the amount claimed.</p> <p>Taxes—Jurisdiction of Justices of the Peace.—If, in an action to recover a - money judgment for unpaid taxes, commenced in a Justice’s Court, an answer is filed which puts in issue the legality of a tax, the Justice of the Peace is ousted of his jurisdiction.</p>

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

<p>Order Changing Venue op Action. — Although the affidavit upon which the application to change the venue of an action is made may not show any legal cause for such change, still, if the Court grants the application it has acted judidaily upon a matter within its cognizance, and where it was clothed with a discretion, and by the order the place of trial becomes changed.</p> <p>Same—How Corrected, ip Erroneous. — Mandamus will not lie to compel a Court to proceed with the trial of an action after an order has been made changing the place of trial. The remedy, if an injury is sustained, is by an appeal from the final judgment.</p> <p>When Writ op Mandate will be Issued. — A writ of mandate will be granted to compel a subordinate tribunal to perform a duty enjoined by law, and which it refuses to perform; but when the act to be done is judicial or discretionary, tho writ will not direct what decision shall be made, nor will it be granted after the inferior tribunal has acted for the purpose of reviewing the legality of its decision.</p>

<p>Wiiat Surprise is ground of New Trial. — Where a party to an action, previous to the trial of the same, is told by a witness that he will testify in a certain manner in relation to a fact material to the issue, and the party to whom the declaration is made, relying on the same, neglects to procure other testimony, and secures the attendance of the witness, and when called to the stand the witness, either by collusion with the party against whom he is called, or by reason of any fact or occurrence for which the party calling him is not responsible, testifies contrary to what he had previously stated he should do ; this is a surprise in the sense in which that word is used in the law of new trials, and a new trial will be granted, provided the party applying for the same shows that he will be able on the new trial to supply the testimony required. In such case it is not necessary for the party surprised to move for a continuance at the time.</p>

On the 12th day of December, 1860, one H. C. Peters died, leaving an estate, mostly in Santa Barbara County, of which, at the time of his death, he was a resident, and also leaving a will, in which the plaintiff and the defendant were named as joint executors. On the 6th day of February, 1861, the will was admitted to probate in the Probate Court of Santa Barbara County, and the executors qualified soon after, and entered upon the discharge of the duties of their trust.

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

<p>Wife—Separate Property of.—All property which can he shown by satisfactory testimony to belong to the separate estate of the wife, whether real, personal, or mixed, and all the rents, issues, profits, and increase thereof, are, under section fourteen of Article XI, of the Constitution, sacred to the use and enjoyment of the wife, and cannot be held to answer for the debts of the husband.</p> <p>Husband—Right to Wife’s Property.—Ho legal or beneficial interest in the use or enjoyment of the wife’s separate property passes, by the fact of marriage, to the husband, and the wife’s right of property in the same is as complete after marriage as while a feme sole.</p> <p>Same.—The husband cannot by any independent act of his acquire an interest in the separate estate of the wife, nor by his supervision or labor can he acquire any interest in the increase of the same.</p> <p>Husband’s Labor .on Wife’s Property.—In the absence of an express agreement to that effect, there is no implied obligation on the part of the wife to compensate the husband for his supervision of and labor bestowed upon her separate property.</p>

The complaint averred that on and after the first day of January, 1860, the plaintiffs were lawfully seized and possessed and liad the right to the possession of a certain tract of land, consisting of about one thousand acres, situate and lying in said County of Contra Costa, and being particularly described as follows, to wit: All that certain piece of land, situate, lying, and being in the County of Contra Costa, and being part of the rancho known as the “ Sobrante,” on…

<p>Alcalde’s Books—When Received as Evidence.—An entry of a grant of land in the Pueblo de San José, made in the Book of Alcalde’s Grants, is entitled to be received in evidence upon proof that the persons by whom it is signed were the Alcalde and Clerk of said pueblo at the time it bears date, and that their signatures are genuine, and that the book was one of the books of the Alcalde’s office in which Alcalde grants were entered, and that the book belonged to the Recorder’s office of Santa Clara County.</p> <p>Alcalde’s Grants.—The statement of an Alcalde’s official character, in the commencement of a grant signed by him, is sufficient to show that he acted in his official capacity, without a descriptio officii appended to his signature.</p> <p>Same—Delivery of.—Where the original grant of an Alcalde is contained in the book of grants kept by him, no proof of a delivery of the grant is required. The production of the book has the same force arid effect upon the question of delivery as the production of an original deed or grant would have by one claiming under it.</p> <p>Quitclaim Deed.—A quitclaim deed will enable the grantee to maintain ejectment for the land it conveys if his grantor could have done so.</p> <p>Jurisdiction of Probate Courts.—Probate Courts have no jurisdiction to administer upon the estates of deceased persons who died prior to the adoption of the Constitution.</p> <p>Records of Probate Courts. — Where a Probate Court administers upon the estate of such deceased person, its proceedings are not entitled to be received in evidence.</p> <p>Equitable Defense to be Pleaded.—If a defendant in an action of ejectment desires to avail himself of an equitable defence as a bar, he must set it up in his answer with the same particularity which is observed in a bill in equity.</p> <p>Court must Pass on Equitable Defense.—The Court, and not the jury, must pass upon the equitable title set up in the answer, and it must be sufficiently pleaded to warrant the Court in granting a decree which will estop the further prosecution of the action. The Statute of Limitations does not begin to run against the title to land derived from the Government of Mexico until a confirmation by a patent from the Government of the United States.</p>

<p>Appeal from the Board of Supervisors of Stanislaus Comity.</p> <p>Defendant recovered judgment before the Board of Supervisors, and Plaintiff appealed.</p>

<p>Attorney in Fact.—When ono is appointed, by written instrument, the attorney in fact of another, his power to bind the principal must be ascertained alone from the language of the instrument by which ho is clothed with authority to act for and in the name of the principal.</p> <p>Same—His Power.—The agent cannot, in the exercise of the power delegated, bind the principal by any act beyond the power, or beside it, though it is competent for him to perform such subordinate acts as are usually incident to or necessary to effectuate the object expressed.</p> <p>One Dealing with Attorney in Pact.—The party dealing with an attorney in fact is bound to know at his peril what the power of the agent is, and to understand its legal effect.</p> <p>Construction of Power of Attorney.—V., the owner of an unconfirmed Mexican grant, executed to B. a power of attorney, which, after reciting the appointment, read as follows : “ I give him full, complete, and perfect power, as my said attorney in fact, to do any and everything to secure my title to said rancho, and to prosecute the pretension of the same in all the Courts of the United States ; and by this I ratify, confirm, and approve all the doings of my said attorney in fact concerning said rancho.” Held, that the power did not confer on the agent any authority to sell the land, or any part of it, or enter into any contract which would bind the principal to convey the same or any part thereof.</p> <p>When Equitable Title must be Pleaded, and how.—If the defendant, in an action of ejectment, relics on an equitable title to the demanded premises as a defence, it must be pleaded, and the answer setting it up must, in substance at least, possess all the elements and essential qualities of a bill in equity, and the equity presented must be of such a character that it may be ripened by the decree of the Court into a legal title to the premises, or such as will estop the plaintiff from the prosecution of the action.</p> <p>Parol Agreement to sell Land.—A party who claims a right to a conveyance of land under a parol contract on the ground of part performance, must make out by clear proof the agreement as alleged; and the acts of performance proved must be unequivocal evidence of such agreement, and the agreement must be certain in its terms, and just and fair in all its parts.</p> <p>Tenancy at Will—How Created and Terminated.—A tenancy at will cannot exist without express grant or contract, and when it does exist, the tenant is entitled to a reasonable notice of his landlord's intention to terminate the estate before an action can be maintained against him for the possession.</p>

The complaint averred, that on the 25th of January, 1862, Clary, the plaintiff, was the owner of and in the possession of certain personal property, (describing the same,) and that one Verdón brought an action against plaintiff to recover possession of the same, and that defendants Rolland and Redwith executed the undertaking, and that the Sheriff took the property from plaintiff, etc.; that a trial was had, and judgment was rendered in favor of Clary for the restitution of…

<p>Mortgage on Growing Crops.—A mortgage upon growing crops, executed, acknowledged, and recorded, like mortgages on real estate, is valid, as a.gainst third parties, without delivery of possession of the property mortgaged.</p> <p>Same—Lien oe.—The lien of such mortgage ceases, as against subsequent-purchasers, after the crop is havcsted, unless, when harvested, it is delivered to the mortgagee.</p>

<p>Appeal from the District Court, Fifteenth Judicial District, Tehama 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>

The Plaintiff, on the 29th day of April, 1861, was appointed administrator of the estates of A.. Y. Brown and Cecilia Brown. The complaint averred, that as administrator of said estates, plaintiff had in his possession ninety-nine thousand six hundred and eighty-one pounds of barley, and that while it was in his possession as administrator, defendants, in February and March, 1862, wrongfully took possession of it and converted it to their own use.

<p>Verbal Contract—Specific Performance.—In an action to compel the specific performance of a verbal contract to convey land, a decree enforcing specific performance will not be reversed because the Court fails to find that the party seeking performance was ready and desirous to perform on his part, provided the findings show such facts, as, taken in connection with an offer to pay the price of the land into Court, evince a readiness and willingness to perform.</p> <p>Findings of Fact.—In such action, when the defense is a repudiation and abandonment of the contract by the party seeking performance, and the testimony is conflicting, the findings of the Court on the question are conclusive.</p> <p>Bill of Sale.—An equitable right to a conveyance of real estate existing under a parol contract and part performance, passes to the purchaser by a hill of sale not under seal.</p> <p>Bill of Sale of Land.—-A written, hut unsealed, transfer of a legal estate in land is good as a contract to convey, under the Statute of Frauds.</p> <p>Objection to Testimony.—Where the objection to the introduction of testimony is, in general terms, that it is irrelevant, without stating the particular reason why it is irrelevant, and the objection could have been cured by the party offering the testimony if the reason for it had been given, the Supreme Court will not notice the objection.</p> <p>Action by Asignees of Equitable Title.—If A. enters into a contract with B. for the conveyance of a tract of land, whereby B. acquires a right to a conveyance of the entire tract, and B. afterwards assigns to two or more persons, giving to each a separate conveyance of his equitable title to distinct and separate parcels of the land, the asignees of B. may maintain a joint action against A. for a specific performance of the contract.</p> <p>Specific Performance.—A contract for the conveyance of land, by the terms of which the purchaser may pay the purchase money either in labor or money, at his option, may be enforced in equity if the purchaser elects to pay in money, and makes a tender of the amount due.</p>

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

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

<p>Record of Supreme Court—How Corrected.—An error in the record of the proceedings of the Supreme Court cannot be attacked collaterally, hut should he brought seasonably to the notice of the Court by a direct motion to correct it.</p> <p>Rehearing in Supreme Court.—A cause cannot be reheard in the Supreme Court on application of counsel, except upon petition filed, and the party applying for the rehearing should include in his petition all the grounds on which the rehearing is claimed, and those not included are deemed waived.</p>

<p>Appeal from the District Court, Seventh Judicial District, Solano County.</p> <p>The judgment in the Court below was rendered against Josiah Wing, Josiah Wing, Jr., W. P. McCord, John Clark, D. W. McCollum, and S. H. Fowler. Fowler alone appealed. The other facts are stated in the opinion of the Court.</p>

<p>Infancy—Who Can Take Advantage of.—No one can take advantage of the fact of infancy in avoidance of contracts except the infant himself, or his heirs or personal representatives.</p> <p>Contracts of Infant—How Avoided.—An infant may make or indorse a promissory note, and as to him, the note or indorsement-will not be void, but merely voidable, at his election.</p> <p>Infant May Contract by Agent.—An infant may execute a promissory note by an agent, and an infant promissee may also authorize another to transfer a note by indorsement for him, and the transfer is valid until avoided.</p> <p>Indorsement of Note by Infant.—An indorsee of a promissory note, deriving title from an infant indorser, acquires a good and valid title to the note against every other party thereto except the infant. The infant may, at any time before ratifying the transfer, intercept payment to the indorsee, or by giving notice to the maker of his avoidance, furnish him a valid defense against the indorsee.</p> <p>Avoidance of Indorsement by Infant.—Until the infant gives notice of his avoidance of his indorsement of a promissory note, the title of the indorsee is valid, and the maker cannot plead the infancy of the indorser, in an action brought on it, as a defense.</p> <p>Ratification of Indorsement of Infant.—An infant promissee sold a promissory note, received the purchase money, and indorsed the note to the purchaser, and for eleven months after she arrived at her majority made no offer to return the purchase money, nor did she do or say^anythiqg indicating an intention on her part to disaffirm her indorsement ] held, that fication of the assignment. M==U<ecí3 amounted to a rati-</p> <p>Deed of Infant.—The deed of an infant is not void, but voidable.</p> <p>When Infant may affirm Deed.—An infant grantor can neither affirm nor disaffirm a conveyance of land made during nonage, until he attains the age of legal majority.</p> <p>Deed of Infant—How Disaffirmed.—If an infant grantor, after attaining his majority, executes a conveyance of lands embraced in a deed given by him when a minor, the second conveyance will work a disaffirmance of the first, unless before the execution of the second conveyance the first has been ratified.</p> <p>Deed of Infant once Ratified cannot be Disaffirmed.—If an infant grantor, after arriving at full age, ratifies a conveyance made by him during infancy, lie will have no power to revoke the ratification and disaffirm such conveyance thereafter.</p> <p>Deed of Infant—How ratified.—The voidable deed of an infant may be ratified after he arrives at mature age, by an express verbal ratification in words, or by acts which reasonably imply an affirmance, or by an omission to disaffirm the deed within a reasonable time. What is a reasonable time will depend on the peculiar circumstances of each case.</p>

The defendant in this action, by his title deraigned from Pena, claimed to be a tenant in common with plaintiffs in the demanded premises. The other facts are stated in the opinion of the Court.

<p>Exception to Binding op Eacts.—A judgment rendered in an action tried by the Court without a jury will not be reversed for a defective finding of facts, unless exceptions are taken in the Court below to the defective finding, particularly specifying the defect, and the bill of exceptions is settled by the Judge, as in other cases.</p>

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

José de la Guerra y Noriega, the father of the defendants, the De la Guerras, died in February, 1858, and by his last will and testament devised the mortgaged premises to said defendants, and made the defendants Pablo and Francisco, his sole executors. The will was admitted to probate, and the executors entered on the discharge of then trust. The devisees, on the 29th day of May, 1861, executed the note and mortgage upon which this action was brought.

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

<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>Possessory Action—Pleadings in.—A complaint in a possessory action to recover land, which avers an ownership and seizure in fee in the plaintiff of the demanded premises, and an ouster by the defendant on a day named, before the commencement of the action, is sufficient, without the further averment that the plaintiff is the owner in fee at the commencement of the action.</p>

<p>Records of Courts—Who Control.—The Supreme Court has no control over the records of the Courts of an inferior jurisdiction from which an appeal lies, and cannot make an order supplying their records when lost.</p> <p>Appeal—Effect of.—The taking of an appeal does not suspend or impair the power of the Court helow over its own records, or its capacity to supply their place when lost.</p> <p>Same—Lost Record, how Supplied.—Where an appeal has been taken to the Supreme Court, and the transcript cannot be made out by reason of the loss of a portion of the records of the case from the files of the Court, it is the duty of the appellant to move the Court below, at the earliest time possible, to supply the lost papers by copies, or by some other means under its control.</p>

The decree of final confirmation of the Rancho San Ramon, made in the District Court of the United States, June 4th, 1862, contains the following description : The land, of which confirmation is hereby made, is the equal undivided one half part of all that certain tract of land situated in the County of Contra Costa, and in the Northern District of California, and known by the name of San Ramon, and extending from [here follows the boundaries]; provided, that there be…

When the pleadings in the case at bar were completed, the statute regulating proceedings and pleadings required a replication to affirmative matter amounting to a defense to the action of the plaintiff. The other facts are stated in the opinion of the Court.

<p>Legislative Grant—Construction op.—An Act of the Legislature granting to the parties therein named the right “ to build a wharf as long as twelve hundred feet near the island in the tule in Suisun Valley, County of Solano, on the land of the State,” is not void for uncertainty, but is good as a grant from the State of such rights and privileges as can be held to have passed by a fair and reasonable construction of its terms.</p> <p>Same—Applied to a Wharf.—Under the terms of such a grant, the grantees therein named have the right to select any point on the slough which was near the island in the tule, in Suisun Valley, for the erection of their wharf, and to build it of any length they may elect, not exceeding twelve hundred feet.</p> <p>Same.—No obligation is imposed on the grantees, but it is left to their choice and election whether they accept the grant or build a wharf, and of what length the wharf shall be, so that it does not exceed twelve hundred feet.</p> <p>Same.—Under such a grant the grantees must, within a reasonable time, select the site of their wharf and prosecute its erection with ordinary diligence, and the extent of the grant will be determined by the length of wharf built, or amount of appropriation made Within a reasonable time.</p> <p>Same.—"Where the Act making such grant was passed in 1852, and in the same year the grantees selected the site for their wharf, and built it two hundred feet in length, and from that time up to 1858 made no further erection or appropriation; Held, that the grantees thereby determined their acceptance of the grant, and the extent of their acceptance, and the grant became inoperative beyond the two hundred feet appropriated.</p>

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

<p>Receipt for Money.—A mere naked receipt in writing, acknowledging the delivery of money, is not a contract, and does not import a promise, obligation, or liability, and an action upon it is therefore barred by the Statute of Limitations in two years.</p> <p>Same—When a Contract.—A receipt or acknowledgment in writing for money, which also contains a clause stating that the money received is to be applied to the account of the person from whom received, partakes of the double nature of a receipt and contract, and shows upon its face a liability to account, and an action upon it is not barred by the Statute of Limitations until four years have expired.</p>

The following is a copy of the note sued on: “ Sierra Valley, June 3d, 1862. “ For value received, I promise to pay Corel Howk or order, the sum of ($487) four hundred and eighty-seven dollars, with two per cent interest per month till paid. “ D. Fenstermaeer. “(Indorsed:) Corel Howk.” The other facts are stated in the opinion of the Court.

Writ op Error to the District Court, Eleventh Judicial District, Placer County.

<p>Hew Trial.—Where a cause is tried by the Court, without a jury, and an appeal is taken from an order denying a new trial, and the error assigned is that the finding and judgment are contrary to the evidence, the Supreme Court will not disturb the judgment if the testimony is conflicting.</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, Third Judicial District, Alameda County.</p> <p>Defendant recovered judgment in the Court below, and plaintiff appealed. The other facts are stated in the opinion of the Court.</p>

<p>Costs When New Trial Awarded.—When a judgment is reversed hy the Supreme Court, and the case remanded for further proceedings, and costs are awarded in general terms, the costs awarded include only the costs made on the appeal to the Supreme Court. The costs of the former trial abide the event of the suit.</p> <p>When Bill op Costs should be ¡Filed in Court Below.—A memorandum of the costs of filing notice and undertaking on appeal, and preparing the transcript for the Supreme Court, should be filed in the office of the Clerk of the Court below at the time of filing the remittitur there, or within the time thereafter prescribed by the statute in other cases.</p> <p>Execution for Costs of Prevailing Party.—The Clerk of the Court below can issue an execution, if required by the prevailing party, for the costs included in the memorandum, and the costs of the Clerk of the Supreme Court as certified by him on the remittitur.</p> <p>When the Judge may Order Stay op Execution.—When a judgment is reversu^j by the Supreme Court, and the case remanded for further proceedings, and tm Clerk of the Court below issues an execution for all the costs, as well those of appeal as those accruing before notice of appeal was filed, the Judge of the Court below has power to make an order staying the execution in the hands of the Sheriff until an application can be made to the Court to re-tax and adjust the costs.</p>

The plaintiff recovered judgment in the District Court, and tlie Judge made an order granting a new trial, from which order plaintiff appealed. The other facts are stated in the opinion of the Court.

<p>Nuisance—When may be Abated.—While a ditch by which the waters of a stream have been appropriated is out of repair, and not in condition to carry any water, an action will not lie to abate, as a nuisance, a reservoir constructed across the bed of the stream, above the head of the ditch, by which the water of the stream is collected and detained, and caused to flow unequally.</p> <p>Same.—The reservoir does not become a nuisance until the ditch has been repaired, and placed in a condition to carry the water.</p> <p>Witness — Objection to. — An objection to the competency of a witness, on the ground of interest, should be made at the time his interest is first shown, or it will bo deemed waived.</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>Appeal—Assignment op Errors.—A statement on appeal, or on motion for a new trial, should set forth distinctly the grounds upon which the party appealing intends to rely for a reversal of the judgment. The Supreme Court will not look into or regard any alledged error which is not clearly assigned in the transcript. Water Ditches—Gardens—Prior Rights.—If a tract of land in the mineral region, bordering on a natural stream, is inclosed and appropriated for garden or orchard purposes, and the waters of the stream are afterwards appropriated for mining purposes at a point above the inclosed land, the water thus appropriated must bo so used as not to materially injure the fruit trees or garden.</p> <p>Same.—One who appropriates for mining purposes the waters of a ravine or stream, upon the public lands in the mineral region, must take and use the same in such manner as not to injure or destroy orchards or gardens bordering on the stream, which have been inclosed'and planted before the water was appropriated. Orchards—Mineral Region.—One who incloses a tract of public land in the mineral region, and plants the same with fruit trees, acquires a vested right which will be protected as against one subsequently entering upon the same for mining purposes.</p>

<p>Possession of one Tenant in Common.—Where one tenant in common is in the exclusive possession of land, the presumption of law is that he holds for himself and his co-tenant, and, to rehut such presumption, there must he proof of acts or declarations on his part indicating his intention to exclude his co-tenant.</p> <p>What amounts to Ouster of Co-Tenant.—To enable the tenant out of possession to maintain ejectment against the co-tenant in the exclusive possession of the land, it is not necessary to prove an actual ouster j but proof that the tenant in possession appropriates the entire use or profits of the land, under a claim of exclusive right, or with a manifest intent to possess the whole exclusively, is sufficient.</p> <p>Same.—Any act of the co-tenant in the exclusive possession which manifests an intention on his part to hold exclusively for himself, is equivalent, in law, to an actual ouster.</p> <p>What does amount to Ouster of Co-Tenant.—Proof that the co-tenant is in the exclusive possession, and that he does not claim, by deed or lease from his co-tenant out of possession, is not sufficient to show an ouster or adverse possession.</p> <p>Findings of Fact—When presumed Correct.—When the record shows that all the evidence introduced on the trial is not embodied in the statement, the presumption is that the findings and judgment of the Court below are warranted by the evidence, although the statement contains no evidence upon which to base such findings and judgment.</p> <p>Same.—Every intendment is in favor of the verdict or decision of the Court below, and it will be presumed that the omitted evidence warranted the judgment.</p> <p>Proof Necessary to Recover in Ejectment.—In order to entitle a plaintiff in ejectment to recover, he must show a right of possession in himself and a possession in the defendant of the demanded premises at the time the action is brought.</p>

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

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

<p>Mortgage—Married Woman.—Where a mortgage is executed by a married woman upon real estate for the purchase money of the same, and such mortgage is void and cannot be enforced by reason of defective execution, the assignee of the mortgage by virtue of the assignment does not acquire any such interest in the mortgaged property as to entitle him to a decree rescinding the contract and setting aside the deed of conveyance, and restoring the parties to their original condition.</p> <p>Mortgage—Assignee of.—The assignee of such mortgage does not succeed to all the rights held by the mortgagee by virtue of his having been the owner of the premises, and of his having conveyed them without obtaining tho stipulated consideration, but he only acquires such rights as the mortgage carries with it. Quere ? Would the mortgagee, himself, be entitled to such relief ?</p>

<p>Appeal from the District Court, Sixth Judicial District, Sacramento County.</p> <p>The complaint averred that defendants were indebted to plaintiff in the sum of seven thousand six hundred and twelve dollars and sixty-five cents, for work, labor, care, and services done, performed, and rendered by plaintiff, in and about the business of defendants, from the 1st day of October, 1859, until the commencement of the suit, at the special instance and request of defendants.</p> <p>The answer denied the allegations of the complaint.</p> <p>The suit was commenced April 30th, 1861.</p> <p>The principal items of labor and services which plaintiff proved on the trial, were for laying the railroad track of the California Central Railroad.</p> <p>On the trial, plaintiff offered Montague as a witness to prove that he was employed by plaintiff as an assistant engineer, from January 1st, 1860, to May 16th, 1860, at one hundred dollars per month, and his expenses.</p> <p>The referee allowed this demand, not as so much money paid to Montague, but as so much labor rendered by plaintiff, through his agent, Montague.</p> <p>Plaintiff recovered judgment in the Court below, and defendants appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Limitation of Lien of Mortgage.—The right to enforce the lien of a mortgage given to secure a debt is barred by the Statute of Limitations at the end of four years from the time the right of action accrues on the debt.</p> <p>Possession of Mortgagee does not Extend Lien.—The entry of the mortgagee into the possession of the mortgaged premises cannot, as between him and the mortgagor, extend the time allowed by the statute for the enforcement of the mortgage.</p> <p>Limitation of Action to Redeem Mortgage.—The right of the mortgagor to maintain an action to redeem the property from the lien of the mortgage is barred by the Statute of Limitations at the end of four years from the time the right of action accrues on the debt.</p> <p>Statute of Limitations—Mortgagor—Mortgagee.—The right of the mortgagee to maintain an action on the debt, and enforce the lien of a mortgage given to secure it, and the right of the mortgagor to maintain an action for the redemption of the property from the lien of the mortgage, are reciprocal, and when one is barred by the Statute of Limitations, the other is also.</p> <p>Action to Redeem—Revival of when Barred.—When the right to maintain an action for the redemption of the mortgaged property from the lien of the mortgage is barred by the Statute of Limitations, it cannot be revived by an offer of the mortgagor to pay the debt.</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, Sixth Judicial District, Sacramento County.</p> <p>This action was tried on the 6th day of March, 1863. Notice had not been given.by defendants of an intention to examine Ackley, the witness hereinafter referred to, as a witness on their behalf.</p> <p>S. Stackhouse was indebted to Robert Beck, one of the defendants, and Beck commenced an action against him in the District Court of Sacramento County, on the 14th day of October, 1862, on the demand, and procured the issuance of an attachment, and placed the same in the hands of defendant, Bugbey, who, as Sheriff, levied upon a quantity of personal property, as belonging to Stackhouse, the defendant in the writ.</p> <p>Peterie, the plaintiff, claimed the property levied on, and brought this action to recover possession of the same. Peterie claimed to have purchased the property from Stackhouse before the levy of the Sheriff.</p> <p>The defense was, that the purchase of Peterie was fraudulent as against the creditors of Stackhouse.</p> <p>On the trial, defendants offered as a witness on their behalf W. Ackley. Witness stated in his voir clire that he was a partner of Beck when the debt against Stackhouse accrued, and that Stackhouse gave Beck and Ackley his note therefor, and that he, Ackley, before the commencement of the attachment suit, sold his interest in the note to Beck, and indorsed the same. Witness also stated that Beck recovered judgment in the attachment suit, and the Sheriff sold the property levied on, and Beck became the purchaser. Beck sold a portion of this property to witness before the commencement of the possessory action by Peterie.</p> <p>The plaintiff objected to Ackley testifying, because he had bought of Beck a portion of the property sued for, and it was the interest of the witness that the property should be applied on Beck’s debt, as, if Peterie recovered judgment for a.return of the property, the writ would run against the property in Ackley’s possession; and because Ackley was the assignor to Beck of the note on which the suit was brought against Stack-house.</p> <p>The Court sustained the objection, on the ground that Ackley was the assignor of the note, and defendant excepted.</p> <p>Plaintiff recovered judgment, and defendants appealed from the judgment, and from an order denying a new trial.</p>

The referee reported a judgment in favor of plaintiff. The Court ordered a judgment in accordance with the report, and ' defendant appealed. The other facts are stated in the opinion of the Court.

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

Pena and Baca were the co-grantees of the Mexican Government of a tract of land confirmed and patented to them by the United States, which grant included the demanded premises. Baca’s deed to McDaniel, referred to in the opinion of the Court, was for a portion of the grant, and was dated August ■ 21st, 1850.

On the 4th day of August, 1863, plaintiff commenced an action in the District Court of Marin County against defendants to recover judgment for work and labor alleged to have been done for defendants, and for brick sold them. On the same day, plaintiff procured an attachment to be issued in the action, which was placed in the Sheriff’s hands, who, on the same day, levied on personal property of defendants. The summons was served on the same day.

<p>Appeal from the County Court, Tuolumne County.</p> <p>The facts are stated in the opinion of the Coxu-t.</p>

Howland and Casgrave were candidates for the office of County Recorder of Napa County at the general election in the fall of 1863. Howland was declared elected, and received his certificate and qualified. Casgrave contested the election. The Court below rendered judgment in favor of Howland. Casgrave moved for a new trial and appealed. • The other facts are stated in the opinion of the Court.

<p>Appeal from the District Court, Fifteenth Judicial District, Tehama Comity.</p> <p>The record of the Circuit Comí of the United States, spoken of in the opinion of the Court, contained a certified copy of a summons in an action brought by the United States against Miller to recover possession of the jack, proof of service on Miller, his voluntary surrender of the property, and a dismissal of the action by the Attorney for the United States.</p> <p>The plaintiff recovered judgment in the Court below, and the defendant appealed.</p> <p>The following is a copy of the hill of sale of the jack :</p> <p>“ This is to certify that I have sold to William Miller my brown Maltese Jack, for $1,000.</p> <p>“ N. Van Tassel.”</p> <p>The other facts are stated in the opinion of the Court.</p>

A. P. Smith was the owner of a tract of land containing about fifty acres, near the City of Sacramento. A large portion of the land was planted to fruit trees, and devoted to raising fruit for sale. A portion of it was also used as a nursery for rearing fruit trees, which were dug up at the proper season of the year and sold.

The Truekee Turnpike Company was a corporation organized for the construction of a turnpike road. The company constructed a turnpike road, leading from the southern line of Sierra County, running thence in a northeasterly direction through said county, by way of Plum Valley, Fred’s Ranch, Cornish Ranch, and Jackson’s Ranch, to the northeastern boundary line of the county. The road was built upon public lands.

<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>

George W. Stewart and Chauncey Stewart, on the 21st day of August, 1862, recovered a judgment against D. C. Miller and the plaintiff, Henry Miller, in the District Court of Sacramento County, and George Stewart, on the same day, recovered a judgment in the same Court against the same parties.

<p>Mortgagee—Subsequent Lienholders.—The mortgagee of real estate cannot, by virtue of the lien of his mortgage alone, cut off the judgment creditors of the mortgagor who have, by virtue of their judgments, acquired a lien on the mortgaged property subsequent to the mortgage, from all recourse upon the mortgaged property.</p> <p>Foreclosure of Mortgage—Parties to.—A judgment creditor whose judgment lien is subject to the lien of a prior mortgage is not concluded nor are his rights affected by a decree of foreclosure of the mortgage unless he was a party thereto.</p> <p>Sale of Mortgaged Property by Judgment Creditor—Effect of.—After the execution of a mortgage upon real estate, a judgment was rendered against the mortgagor, which became a lien upon the mortgaged property; the mortgagee then foreclosed the mortgage, making the mortgagor alone a party defendant, had the mortgaged property sold under the decree, became the purchaser, and obtained a Sheriff's deed; afterwards, the judgment creditor procured an execution upon his judgment, and had the property advertised for sale; the holder of the title under the Sheriff's deed filed a bill in equity to enjoin the sale; held, that he was not entitled to an injunction, and that the judgment creditor had a right to sell any interest in the land held by the judgment debtor at the rendition of the judgment or levy of the execution. Held, further, that the judgment creditor’s equitable right of redemption not having been cut off by the foreclosure, he might, during the two years that his judgment was a lien upon the premises, sell under an execution, and purchase the legal title of the mortgagor, not only that he might assert his right of redemption at any time within the period allowed by the Statute of Limitations, but, also, that he might realize any other benefit or advantage that might accrue to him from the sale.</p>

The complaint averred that from January, 1860, hitherto, the defendants had been engaged in carrying on the business of iron founders and machinists, and that about December 12th, 1860, defendants caused a certain large iron shaft of great weight to be placed upon trestles and supports in a careless, insecure, and dangerous position in the immediate proximity of plaintiff, who was then employed about other business of defendants at their special instance and request; that…

April 22d, 1863, the Legislature of this State passed an Act to authorize the Board of Supervisors of the City and County of San Francisco to take and subscribe one million of dollars to the capital stock of the Western Pacific Railroad Company, and the Central Pacific Railroad Company of California.

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

<p>Appeal from the District Court, Eleventh Judicial District, Placer County.</p> <p>Suit was commenced September 28th, 1863. The complaint averred that the plaintiff was a native of China, and had been for more than three months engaged in mining on a tract of land in Placer County, described, according to the official survey of the United States, as the northwest quarter of Section Humber Four, Township Humber Twelve Horth, Range Humber Seven East, Mount Diablo base and meredian, in the district of lands subject to sale in the Marysville Land District; that defendant was the collector of foreign miner’s licenses; that in accordance with the Act of April 23d, 1858, entitled “An Act to provide for the location and sale of the unsold portion of the five hundred thousand acres of land donated to the State for school purposes, and the seventy-two sections donated to this State for the use of a Seminary of Learning,” that the State of California, by its duly authorized agents, about the 28th day of January, 1859, selected said land as a portion of the seventy-two sections donated to this State for the use of a Seminary of Learning, and that said location was, before the patent was issued, approved by the Government of the United States; that after-wards the State sold said land to Stephen D. Burdge, and gave him a certificate of purchase; that Burdge paid the State for the land, and duly advertised that he would apply for a patent; and that afterwards, T. L. & L. R. Chamberlain became the assignees of said Burdge’s interest in the land, and the State of California, on the 2d day of June, 1863, issued to them a patent for the same; that plaintiff is and for more than two months has been in the possession of a portion of said land, as the lessee of said Chamberlain, and has been engaged in mining on the same, and working several men, and taking out from fifteen to twenty-five dollars per day in gold dust, and can continue to do so until his lease expires, which will be December 21st, 1863 ; that the defendant, on the 23d day of September, 1863, demanded of plaintiff the sum of four dollars for a mining license or tax for September, 1863 ; that plaintiff refused to pay, and defendant seized and levied upon the leased premises, and has advertised the same for sale for non payment of the mining license, and fixed the day of sale for September 30th, 1363, at two o’clock, p. m. ; that the sale will create a cloud upon plaintiff’s title, etc., etc.</p> <p>The complaint prayed for an injunction restraining the sale, etc.</p> <p>The defendant demurred to the complaint; the demurrer was overruled, and judgment rendered for plaintiff as prayed for.</p> <p>Defendant appealed.</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>Power of Ayuntamiento.—An Ayuntamiento was a municipal body, and could take and exercise only such powers as were conferred upon it by the will of the sovereign, as expressed in the laws creating it.</p> <p>Complaint—Averment of Conclusion of Law.—An averment in a complaint that an Ayuntamiento had full power and lawful authority to do a particular act, is an averment of a conclusion of law, and does not tender an issue of fact.</p> <p>Demurrer—What it Admits.—A demurrer to a complaint containing such allegation does not admit its truth.</p> <p>Same.—A demurrer admits the truth of such facts only as are issuable and well pleaded.</p> <p>Pueblo Lands—Mortgage of.—An Ayuntamiento had no power to mortgage the lands of the pueblo, and a mortgage on such lands given by it was a nullity, and vested in the mortgagee no interest in the lands.</p> <p>Void Mortgage—Decree Foreclosing.—A decree foreclosing a mortgage made by the Ayuntamiento of San José on the pueblo lands, in an action in which the City of San Jose, the successor of the Ayuntamiento, was a party defendant, did not affect the city, nor estop it from setting up its title to the lands.</p> <p>Sheriff’s Sale under Void Decree.—A judicial sale under such decree, and the execution of a Sheriff’s deed to the purchaser, did not vest in him any title to the lands, but all the proceedings, including the decree sale and Sheriff’s deed, were utterly void.</p> <p>Sheriff’s Deed—What it Conveys.—A decree foreclosing a mortgage, and directing a sale of the mortgaged premises, and the execution of a Sheriff’s deed under the decree, transfers to the purchaser whatever interest the mortgage created and vested in the mortgagee, and nothing more.</p> <p>Parties Dealing with Municipal Corporation.—Parties dealing with a municipal corporation are chargeable with full knowledge of its powers, and act at their peril.</p> <p>Same—Confirming Void Sale.—An agreement made between the municipal authorities of San José on the one part, and the purchasers of the pueblo land at a judicial sale made under a decree foreclosing a mortgage executed by the municipality on those lands on the other part, confirming unto said purchasers all the rights and interests in such lands which they acquired by their purchase at the Sheriff's sale) and releasing unto them all the right and title which the city then had, or might afterwards have therein, was void, and conferred upon said purchasers no new right.</p> <p>Confirmation—Effect of.—A confirmation may make good a voidable or defeasible estate, but cannot operate upon or aid an estate which is void in law.</p> <p>Release—Effect of.—Where there is no estate in a releasee to support a release, or upon which it can operate, a release is void.</p> <p>Same—When Void.—A release, unless the releasee is in possession, is void.</p> <p>Setting aside Sale.—A naked purchaser at a judicial sale made under a decree foreclosing a mortgage, is not entitled to have the satisfaction of the judgment under which the sale was made set aside and to be subrogated to the rights of the plaintiff in the judgment, because the sale was void, and he acquired no title to the property purchased.</p> <p>Same.—A purchaser at a judicial sale made under such decree cannot maintain an action to recover back the purchase money. His mistake was one of law as to the validity of the sale, and from such mistake no relief can be granted.</p>

<p>Lands Granted to the State—When may be Selected.—The State of California has no right to select or locate the five hundred thousand acres of land granted to her for purposes of internal improvement by the eighth section of the Act of Congress of September 4th, 1841, until after the lands selected have been surveyed and sectionized by the proper officers of the Federal Government.</p> <p>Same—When State acquires Title.—No title to any specific portion of said grant can vest in the State unless the land has been surveyed, and the selection is made of lands to which there is no subsisting valid claim by pre-emption or otherwise, and the selection is made in parcels conformably to sectional divisions and subdivisions of not less than three hundred and twenty acres, and the selection has been approved by the Federal Government.</p> <p>Pre-Emptioners—Rights of.—The State can make no valid selection under said Act of land in the possession of a bona fide pre-emptioner under the laws of the United States, nor can it convey any valid title therein to another.</p> <p>State Patent—Pre-Emptioner may Attack.—If the State selects as a part of said grant land in the possession of a bona fide pre-emptioner at the time of the selection, the pre-emptioner is in such privity with the common source of title that he can attack a patent granted by the State for the same in an action of ejectment brought by the patentee or his assignee.</p>

<p>Filing Undertaking on Appeal.—If an undertaking on appeal is filed before the notice of appeal is filed and served, the appeal will be dismissed on motion.</p>

The complaint, besides averring plaintiff’s claim of title under a school warrant, also alleged that defendant Jackson claimed under a patent from the State, and the defendant Devlin has purchased under him with full notice and knowledge of relator’s rights.

<p>Appeal from the District Court, Eleventh Judicial District, Placer County.</p> <p>The complaint averred that plaintiff was the owner of a mining claim which he worked by hydraulic process, situated a short distance below a ditch called the Miner’s Ditch; that plaintiff, for the conveyance of tailings and water from his claim, had constructed a flume about seven hundred feet long leading therefrom; that in January,'1862, defendants Weed and McCIanahan, as agents of defendants Campbell and Powell, who were the owners of the Miners’ Ditch, cut the embankment of the ditch, and thereby caused seven hundred inches of water to flow down upon plaintiff’s flume, by means whereof it was injured.</p> <p>Plaintiff recovered judgment in the Court below, and defendants appealed.</p> <p>The other 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 property claimed by plaintiff as a homestead was advertised by the Sheriff to be sold on the 15th day of July, 1863. This- suit was brought on the 13th day of July, 1863.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Eleventh Judicial District, Placer County.</p> <p>S. D. Carkhuff resided about four miles from the City of Sacramento. He was a single man, and his house was some eighty rods from the nearest neighbor. The defendant, who was his nephew, lived with him, and there were no other inmates of the house. On the twenty-ninth of December, 1862, defendant went to Sacramento in the early part of the day. About two o’clock p. nr., deceased, while visiting at the house of Burns, his nearest neighbor, stated that defendant would be home that night. The next morning, about seven o’clock, defendant went to Burns’ house and informed him that his uncle was murdered. Burns went with defendant to the house, and found the body of S. D. Carkhuff on the floor of the bedroom. His skull was broken and his throat cut. The body was cold, and it appeared from the testimony of physicians that the murder must have been committed from seven to ten hours previous. Samuel Carkhuff was indicted for the murder, and in order to prove that he was at the house about the time the murder must have been committed, Burns was allowed to testify to the declarations of deceased made while at Burns’ house.</p>

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