Volume 26 — California Reports

<p>Construction of Written Contract.—0. and D. entered into a written contract, by which 0. was to erect a building for D., and D. was to pay him certain amounts in instalments as the building progressed, and at its completion, for the balance due, 0. was “to take the second party’s (D.’s) note, (secured by real estate,) to bear interest at the rate of two per cent per month, and payable twelve months after date, or before, if the party of the second part wishes to do so.” Held, that the words, “ if the party of the second part wishes to do so,” relate to the time when the note should be payable, and do not mean that he had the option of giving the note or not.</p> <p>Special Contract to give Note and Mortgage—Demand not Necessary.— When by the terms of a written contract for the erection of a building, the party for whom it is to be erected, at the time of its completion, is to take the note of the party for whom it is to be erected, (secured by mortgage,) payable twelve months after date, for the balance due, it is incumbent on the party by whom the note and mortgage are to be given, to make a tender of the same, and not on the other party to demand them, and if the same are not tendered, the other party may bring his action without waiting the twelve months, the time the note was to run.</p> <p>Complaint for Labor done under Special Contract.—Under the rules of pleading established by the code, the party to a written contract for the erection of a building who has performed his part of it by the erection of the same, cannot bring an action agaipst the other party who has failed to fulfil, for work and labor done and performed, but the complaint must aver the execution of the contract, its terms, the performance of the same on the part of the plaintiff, and the nonperformance by the other party, and the damages thereby sustained. If, by the terms of the contract, the party who has failed to fulfil was to execute his note for the money due, payable at a future day, his failure to do so should be averred, for the ground of action against him is his failure to execute the note.</p> <p>S-lirs.—In such caso, if there has been any variation from the terms of the written contract, in the progress of the work, by consent of the parties, that fact should also be averred, and the performance of the contract as varied.</p>

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

The defendants plead the tender made before suit was commenced, and brought the United States treasury notes thus tendered into Court. Judgment was rendered in favor of plaintiffs for the money thus tendered in Court, and in favor of defendants for their costs. Plaintiffs appealed. The other facts are stated in the opinion of the Court.

Weeks, Johnston, and Morrison stated in their written exceptions to the account of the administrator that they were creditors of the deceased. The contestants appealed from the order of the Probate Court allowing the items objected to. The other facts are stated in the opinion of the Court.

The following is the complaint in this action: “B. L. Bradley and M. S. Gardner v. Osmyn Harlmess and James Armstrong. “ The above named plaintiffs, by their attorneys, complain of the above named defendants, and for cause of action aver, that on the 12th day of April, A. D. 1858, they, together with one Robert M. Trim, since deceased, under the name and style of the Dutch Flat Water Company, became the copartners of the defendant Harlmess, in a certain water ditch situate…

<p>Instructions to Jury in Criminal Cases.—The giving of an oral instruction to the jury in a criminal case is error, unless the defendant consents. The consent of the defendant cannot be presumed from his presence and failure to make objection when the oral instruction is given.</p>

<p>Alteration appearing on the face of a Deed.—Where a deed is produced in evidence by a party claiming under it, and it appears upon its face to have been altered in a particular material to Ms interest, and to the prejudice of the other party, it is incumbent on him to establish by satisfactory evidence that the alteration was made by the grantor, or by his authority, or the deed will be deemed, for the purposes of the action, to read as it did before the alteration was made.</p> <p>Recital in Deed as Evidence.—The recital in a deed of a valuable consideration paid by the grantee for the property thereby conveyed, is not evidence of the payment of a valuable consideration, as against strangers, or against one claiming under the grantor by a conveyance prior to the deed in which the recitals.are made, or against one claiming adversely to the grantor, but such recital is evidenee of the payment of a valuable consideration only against those claiming under the grantor by conveyance subsequent to the same.</p> <p>Knowledge of Prior Unrecorded Deed.—One who buys real estate from another, with the actual knowledge at the time of his purchase that Ms grantor had before that time made some kind of a conveyance of the same property to another person whose deed has not been recorded, is not a purchaser in good faith, although he did not know the kind of conveyance which had been made. This rule is the same in an action at law as in a suit in equity.</p>

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

<p>Names op Witnesses on Indictment.—If the names of the witnesses who are examined before the Grand Jury are not inserted at the foot of the indictment or indorsed thereon before it is presented to the Court, the defendant must take advantage of the omission by a motion -to set aside the indictment when he is arraigned, or he is precluded from afterwards taking the objection.</p> <p>Witnesses in Criminal Cases.—In a criminal case, the facts that a witness was examined before the Grand Jury, and that his name is not inserted at the foot of nor indorsed on the indictment, do not preclude him from being examined as a witness by the prosecution on the trial.</p>

Judgment was rendered for the defendant in the Court below, and plaintiff appealed. The other facts are stated in the opinion of the Court.

<p>Administrator cannot Maintain Ejectment unless he Represents the Legal Title.—The Mexican Nation mad© a grant of land to P. which, after the cession of California to the United States, was confirmed by decree of the Board of Land Commissioners, from which an appeal was taken to the United States District Court. Pending the appeal, P. died, leaving a will. An order was made in the United States Court, on petition of the heirs of P. and the executors of the estate, substituting the heirs in the proceedings in place of P., and the Court then confirmed the land to the heirs, and it was surveyed, and the survey approved. Subsequently, E. was appointed administrator with the will annexed; Held, that the legal title was in the heirs, and that the administrator could not maintain an action to recover possession of the same.</p> <p>Plaintiff in Ejectment must have or Represent the Legal Title.—A person having an equitable title to land cannot maintain an action to recover possession of the same, but such action must be brought in the name of the person in whom the legal title is vested.</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 District Court, Eleventh Judicial District, Placer County.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Proof of Incompetency of Witness by Party Objecting.—A party who objects to a witness called by the opposite party, on the ground of incompetency, may adopt either of two modes to show that incompetency." He may examine the witness upon his voir dire as to the alleged incompetency, or he may object to the witness on the ground of the alleged incompetency, and prove it by other witnesses.</p> <p>Examination of Witness on his Voir Dire.—A party who questions a witness on his voir dire as to his competency is concluded by his testimony, and cannot then introduce other witnesses to show the alleged incompetency, unless the answers of the witness on his voir dire leave the question in doubt.</p> <p>How Incompetency of Witness Proved.—If a party objects to a witness as incompetent, and then resorts to the testimony of other witnesses to prove the alleged incompetency, but fails because his testimony is rejected as inadmissible, he may still resort to an examination of the witness upon his voir dire.</p> <p>Same.—If a party has two grounds of objection to the competency of a witness, he may examine him on his voir dire as to one ground, and call other witnesses to prove the other ground of alleged incompetency.</p> <p>Proof that Witness is Wife of Opposite Party.—Where a witness is called and objected to by the opposite party on the ground that she is the wife of the party objecting, and he then proves by other witnesses that the two had cohabited together for a long time as husband and wife, had passed in society as such, and had represented each other as husband and wife, and the party calling the witness introduces no testimony to the contrary, the witness should be rejected by the Court.</p> <p>Proof of Marriage.—Proof that a man and woman had cohabited together for a long time as husband and wife, had mingled in society as such, and represented each other as such, is admissible for the purpose of proving a marriage, and in the absence of evidence to the contrary, conclusive as such, in all cases, except in actions of crim. con., divorce, indictments for bigamy, and like cases, where the marriage is the foundation of the claim to he enforced.</p> <p>How Error of Court in admitting Evidence Cured.—If a witness is objected to on the ground that she is the wife of the party against whom she is called, and the party objecting proves by other witnesses facts sufficient to show that they are husband and wife, without proving an actual marriage, and the Court then erroneously allows the witness to testify, and on cross examination the party objecting draws out the fact that the witness is not the lawful wife of the party objecting, the party calling out this statement on cross examination is concluded by it, and the previous error of the Court is cured.</p> <p>How Error in ¡Ruling of the Court Cured.—The general rule is, that if error intervenes the judgment must be reversed; but, if during the subsequent proceedings of the trial the foundation of the error is overthrown, and facts are shown which support the ruling of the Court, the error is cured.</p> <p>A Party indorses the Credibility of his Witness.—A party calling out a fact from a witness indorses his credibility, and is concluded by his statement.</p>

<p>Reopening Judgments.—The question of diligence in making an application to reopen a judgment under the Act of April 27th, 1862, is one for the Court below to pass upon, in the exercise of a sound discretion, and the Supreme Court will not reverse the action of the Court below except in case of an abuse of discretion.</p> <p>Judgment pending an Appeal.—An appeal suspends the operation of a judgment, and while pending, the party in whose favor it is rendered has no vested right in the judgment, but his right is limited to Ms cause of action.</p> <p>Construction op Statutes. — If a statute is susceptible of two constructions, one of which is consistent, and the other inconsistent with the restrictions of the Constitution, it is the duty of the Court to give it that construction which will make it harmonize with the Constitution, and comport with the legitimate powers of the Legislature.</p> <p>Legislative Assumption op Judicial Power.—An Act of the Legislature granting a new trial, or reopening a judgment in an action litigated between individuals, would be an assumption of judicial powers by the legislative department, and unconstitutional.</p> <p>Judgments in Favor op The People.—An Act of the Legislature granting a new trial, or reopening a judgment in favor of the People in a civil action in which the People aro a party, is a mere consent on the part of the People, one of the parties to the judgment, that a new trial be granted, or the judgment be reopened, and is not unconstitutional.</p>

<p>Lien oe Mortgage—Statute of Limitations.—Where three persons execute their joint mortgage on land to secure their joint and several promissory note to the mortgagee, and one of them leaves the State, and the note afterwards becomes barred by the Statute of Limitations as to the two who remain in the State, the lien of the mortgage is also barred as to the interest of the two in the land, and it can only be enforced against the interest of the one as to whom the note is not barred.</p>

<p>When Assignor of an Account mat be a Witness. — A person who assigns a demand of his own to another for the purpose of enabling that other person to bring a joint action upon a demand of his own, and upon the one assigned, the assignor paying his proportion of the costs and sharing in the proceeds of the recovery, is a party in interest within the meaning of the four hundred ancl twenty-second section of the Practice Act as amended in 1861, and if an attachment is issued in said action, and the Sheriff seizes goods by virtue of the same, and a suit is brought against him for damages for the seizure, and the plaintiff offers himself as a witness on his 6wn behalf, upon notice given, the person who made the assignment may offer himself as a witness on behalf of the Sheriff, upon the same points, without giving notice.</p>

This was a suit to foreclose a mortgage upon certain real estate situated in the County of Marin, and known as the “ Rancho Saucelito,” executed by William A. Richardson to Jeremiah Clarke, and of which the plaintiff was the assignee.

<p>Execution on Justice's Judgment.—The filing and docketing of a transcript of a judgment rendered by a Justice of the Peace in the office of the Clerk of the county, does not empower the Clerk of the Court in which it is filed and docketed to issue an execution on the same after five years have elapsed from the date of its rendition.</p>

At the general election held in September, 1S63, in Tuolumne County, Bourland and Hildreth were voted for for Sheriff, Gardiner and Davis for Clerk, Dorsey and Platt for District Attorney, Smith and Cummings for Recorder, and Norwood and Kenfield for Treasurer, Weinbeer and York for Assessor in District Number One, Birney and Hurd for Assessor in District Number Two, and McCabe and Keyes for Assessor in District Number Four.

Judgment was .rendered in favor of the defendants by the Court below, and plaintiff appealed. The other facts are stated in the opinion of the Court.

In the course of the trial, plaintiffs offered in evidence the following bill of sale : “ This is to certify, that we have this day sold to Wm.

This action was commenced February 18th, 1856, and judgment was rendered December 20th, 1862. It has been twice before appealed to the Supreme Court, and will be found reported in 7 Cal. 415, and 10 Cal. 456. Defendant, Jeans, in his separate answer, not only denied the allegations of the complaint, but set up that the defendants had not at any time possessed the land described in the complaint, or any part thereof, as joint or common occupants.

This action was commenced September 1st, 1863. The complaint averred the wrongful taking, on the 22d day of August, 1863. The joint answer of defendants avers that the execution by virtue of which they levied on the goods was issued out of the District Court of the Eleventh Judicial District, El Dorado County, on a judgment rendered on the 13th day of February, 1862.

The defendant Aliment, on the 21st day of May, 1863, recovered judgment in the District Court of Yuba County, against H. Harris & Co., for the sum of eleven hundred and forty dollars and ten cents, and on the 4th day of June, 1863, procured an execution to be issued on the same, which was placed in the hands of defendant Barrett, who was Sheriff of Yuba County.

The notes in suit were executed by George P. Morrill to C. Morrill, and by C. Morrill assigned to Oscar F. Morrill, the plaintiff. C. Morrill afterwards made the sale to George P. Morrill. The other facts are stated in the opinion of the Court.

<p>Demurrer to Complaint.—If a complaint contain several counts, and the defendant demur to the whole complaint, the demurrer should be overruled if there is one good count in the complaint, although the other counts may be bad.</p> <p>Complaint on Written Contract. — If a complaint be based upon a written contract, a correct copy of which is attached to and made a part of the complaint, and if the averments of the complaint put a false construction in law upon the terms of the contract, the complaint will not for that reason be bad, but the erroneous allegations will be regarded as surplusage.</p> <p>Same.—A written contract may be declared on according to its legal effect, or it may be set forth in hsec verba. If declared on according to its legal effect, the defendant may, by the rule of the common law in a proper case, crave oyer of the instrument, and if it appear that its provisions have been misstated, he may set out the contract in Jiozc verba, and demur on the ground of the variance.</p> <p>¡Evidence of Counter Claim.—When the action is based upon a contract to pay a stipulated sum, and the answer sets up a counter claim for damages for matters arising out of the same contract, the defendant cannot, on the trial, introduce evidence of any damages except those specially set up in the answer.</p> <p>Evidence of Counter Claim when not set up in Answer.—If the complaint is based on a written contract, by the terms of which plaintiff is to do certain things, and the complaint avers a faithful performance on his part, and the answer denies the performance, the defendant cannot, under this allegation and denial, introduce evidence of a counter claim.</p> <p>Evidence of Loss of Profits as Counter Claim. — If a merchant employs one by written contract, at a stated salary, to act as his chief clerk and managing agent for a stated term, and an action is brought by the clerk on the contract for wages, and the answer sets up a counter claim for damages arising out of neglect of the clerk to attend to the business, the defendant has a right on the trial to introduce evidence of a loss of his profits and diminution of business caused by the clerk's neglect; and to do this, he may ask a witness what amount of additional business would have been done if the clerk had attended to his business.</p> <p>Suit for Counter Claim.—Where one is employed by another under a contract, at a stated salary, payable monthly or at a stated time, to act as his clerk or transact business for him, and the employé neglects the business, the employer is not precluded from maintaining an action for damages for this neglect, by payment in full of the employe's wages, or by allowing the employe to sue and recover judgment, by refraining from interposing any counter claim for a breach of the employe's contract.</p> <p>Waiver of Counter Claim.—An omission to assert a cross claim when a demand is presented for payment, does not involve a waiver of the counter claim, nor is a failure to discharge an unfaithful servant before his term.of service has expired a release of damages arising from his neglect.</p> <p>Counter Glade for Unliquidated Damages.—Where the claim of plaintiff and counter claim of defendant both arise out of the same contract, defendant may introduce evidence of unliquidated damages embraced in his counter claim, unless the plaintiff come to the contract by assignment.</p> <p>Evidence of Counter Claim.—Where the plaintiff's action arises out of contract, defendant may introduce evidence of any counter claim arising out of contract existing at the commencement of the action, even though the contracts are not the same.</p>

This action was commenced May 18th, 1863. The complaint charges the ouster to have taken place February 28th, 1863. The property sued for was a mineral lode, alleged to contain gold, silver, and copper', eighteen hundred feet in length. The mining laws of the district required a claim to be worked one day in thirty, from May 1st to November 1st of each year.

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

<p>Action for Settlement of an Estate, there being no Administration.—Where a party died intestate, while the Mexican law was in force, leaving surviving him a widow and children, and grandchildren, sons or daughters of a deceased child, and also personal property, and there was no administration on the estate, and the widow and children and grandchildren managed and disposed of the personal property in common for a long time, in an action brought by one or more for a settlement and division of the property, they should he treated as tenants in common of the property, and all, including the representatives of the widow after her death, are necessary parties.</p> <p>Executor cle son tort. — An heir, who in a subordinate capacity, managed the property of an intestate without administration, under the direction .and control of another, while the Mexican law was in force, is not liable in a character analagous to that of an executor de son tort at common law.</p>

This action was commenced in July, 1862. The complaint averred that on the 19th day of March, 1861, the relators Pierce, Massini, Trussell, and Mangard, in accordance with the general mining laws and customs of this State, took up as mining claims a certain parcel of land on the sea shore, between the lines of ordinary high and low water, a portion of which, a strip one thousand five hundred feet long, is embraced within the land described in the patent issued to defendant,…

<p>Mortgages—Statute of Limitations.—If one who has a mortgage upon a tract of land leaves the same with another who has a subsequent mortgage upon the same land, and makes him his attorney in fact, with knowledge of such subsequent mortgage, with power to demand, collect, and receive the monthly interest, hut without any power or any instructions to enforce the collection of the mortgage, and without the attorney in fact undertaking the trust of enforcing the collection of the mortgage, and while in the hands of the attorney in fact the mortgage becomes barred by the Statute of Limitations, the attorney in fact has not been guilty of such fraud as will preclude him, when made a party to a suit afterwards brought to foreclose the mortgage, from taking advantage of the Statute of Limitations to prevent the same from having priority over his subsequent mortgage. Had the attorney in -fact undertaken the trust and assumed the duty of enforcing the mortgage by legal proceedings, and failed to do so until it was barred by the Statute of Limitations, he would have been precluded from availing himself of the statute as a defense in a suit afterwards brought to foreclose it, and the same would still be entitled to priority over his own mortgage.</p> <p>Lord v. Morris, 18 Cal. 484, and McCarthy v. White, 21 Cal. 501, affirmed as to the right of a subsequent mortgagee or purchaser to plead the Statute of Limitations to defeat the enforcement of the lien of a prior mortgage.</p>

<p>Effect of Exception in a Statute.—The exception by name of certain counties of the State from the operation of certain provisions of the General Road Law of 1861, limits the exception, by implication, to the counties specified.</p> <p>County Warrant Issued without Authority.—If a contract entered into on behalf of a county is unauthorized by law and void, a warrant drawn by the Auditor on the Treasurer, in pursuance of an order of the Board of Supervisors, for work performed under the contract, is also unauthorized and void, and the Treasurer cannot be compelled to pay the same.</p> <p>San Mateo County.—The provisions of the Act of 1861, entitled “An Act to provide for the establishment, maintenance, and protection of public and private roads,” apply to the County of San Mateo.</p> <p>San Mateo County Road Eund—Acts of 1857 and 1861.—The prohibitory provisions of the ninth and tenth sections of the Act of April 18th, 1857, entitled “An Act to reorganize and establish the County of San Mateo,” are inconsistent with and repugnant to the fifteenth section of the Act of 1861, entitled “ An Act to provide for the establishment, maintenance, and protection of public and private roads,” and are repealed by it as to the subject matter of the Act of 1861.</p> <p>Jurisdiction of District Courts.—The fourth section of the Sixth Article of the Constitution of this State, as amended in 1863, confers upon the District Courts original jurisdiction to issue writs of mandamus, certiorari, prohibition, and habeas corpus.</p>

<p>Becords which impart Constructive Notice.—The record of a deed acknowledged by an officer not authorized by the laws of this State to take and certify acknowledgments of conveyances, copied into the proper book of record of the office of the County Becorder, prior to the passage of the Act of April 30th, 1860, entitled “An Act supplementary to an Act entitled an Act concerning conveyances,” imparts' constructive notice of its contents, so far as they are copied, to purchasers and incumbrancers subsequent to the passage of said Act.</p> <p>Same.—The Act of April 30th, 1860, entitled “An Act supplementary to an Act entitled an Act concerning conveyances,” applies to all instruments in writing then copied into the proper books of record of the proper county, and is not limited to such as by reason of non-compliance with some provision of the Begisi try Act failed to impart notice.</p> <p>Bemedial Acts.—An Act of a remedial character should receive, having due regard to the language in which it is expressed, a liberal construction, which will bring within its scope every case which comes clearly within its spirit and policy.</p>

<p>Conveyances not Acknowledged.—Conveyances of real estate, (except such as are required to be executed by married women,) as between the parties to them, are valid and pass the title without being acknowledged or recorded.</p> <p>Same.—Such conveyances, if acknowledged as required by law, are admissible in evidence without further proof; hut if not so acknowledged, must he proved according to the ordinary rules of law applicable to the subject.</p> <p>Conveyances by Married Women. — Conveyances required to be executed by married women are not valid, nor do they pass any title, nor can they be used in evidence, unless acknowledged in the manner prescribed by law.</p> <p>Subscribing Witnesses to a Conveyance.—Where a conveyance, not acknowledged, is offered in evidence, and it is proved that it was executed by the grantor and witnessed by subscribing witnesses out of the State, and there is no evidence to show that the subscribing witnesses were ever in the State, a sufficient presumption is raised that the subscribing witnesses are not within the jurisdiction of the Court to let in secondary evidence of its execution by the grantor.</p> <p>Handwriting of Subscribing Witness.—When the subscribing witness to a written instrument is beyond the jurisdiction of the Court, such instrument is admissible in evidence upon proof of the signature of the grantor or obligor, without proving the handwriting of the subscribing witness, unless the instrument is one which the law requires to be attested by witnesses, in which case proof of the handwriting of both parties and subscribing witnesses might be necessary.</p> <p>Copies of Instruments Recorded as Evidence.—Copies of instruments of those-classes entitled to record, duly certified by the Recorder, which were copied into the proper books of record of the proper county, prior to April 30th, 1860, aro admissible in evidence under the statute, after proof that the originals are not under-the control of the party offering such certified copies, or are lost, and that the originals were genuine instruments, and were in truth executed by the grantor or grantors therein named, notwithstanding such instruments were irregularly recorded by reason of some defect, omission, or informality existing in the acknowledgment or certificate of acknowledgment of the same.</p> <p>Record of Instruments as Notice.—Instruments, in the acknowledgment or certificate of acknowledgment to which there was a defect or omission, and which were copied into the proper book of record in the proper county prior'to the 30th day of April, I860, impart to purchasers and incumbrancers becoming such after said date, notice of their contents, the same as though the acknowledgment and certificate had been in due form of law.</p> <p>Error not Presumed.—The presumptions of law are all in favor of the correctness of the judgment of the Court below. Error will not be presumed, but must be shown affirmatively.</p> <p>Denial of Allegation in Sworn Pleadings.—An allegation in a sworn answer that “on the 24th day of March, 1862, the said Drench and ¡Robinson, by deed duly executed, acknowledged, and recorded, conveyed said premises to this defendant for the sum of seven thousand seven hundred and fifty dollars,” is not denied by a statementin the replication that “ the plaintiffs further deny that said Drench and Robinson, or either of them, conveyed said premises to the defendant for the sum of seven thousand seven hundred and fifty dollars, or for any other sum.” Such denial is a mere denial that Drench and Robinson conveyed the premises, without denying the facts which constitute the conveyance; besides, it does not deny the conveyance—the material fact—but only a conveyance for a consideration. Under such denial the party making the averment is not required to offer his deed in evidence on the trial. The allegation of the answer is deemed admitted under the provisions of the statute.</p> <p>Possession under Unrecorded Deed ¡Notice of Title.—One who purchases and obtains a conveyance of land, at the time in the open and notorious possession of another who has a prior deed not acknowledged or recorded, executed by the same grantor, is not a hona fid# purchaser. The possession of the one having the older unrecorded deed is notice of his title.</p> <p>Junior Purchaser must buy in Good Daith and without ¡Notice.—In a suit to try the title to land between two who are purchasers from the same grantor, where the oldest deed is neither acknowledged or recorded, the one claiming under the prior unacknowledged and unrecorded deed will prevail, unless the fact appears that the second purchaser bought without notice for a valuable consideration. It is not sufficient for the second purchaser that there is no finding of fact or evidence on the subject, but the fact must be made to appear affirmatively.</p> <p>Possession of TENANT."The possession of a tenant is notice of the title of his landlord.</p> <p>Deed to Married Woman.—A deed of land to a married woman which shows upon its face the payment of a money consideration is primet facie evidence that the land conveyed thereby is the common property of the husband and wife, and subject to the absolute control and disposition of the husband.</p> <p>Evidence of Title in a Person not a Party to the Action.—In an action in which plaintiff claims title to land under a deed executed by a married woman to him, if the deed to such married woman, the grantor, shows upon its face the payment of a money consideration for the land, the defendant may introduce in evidence a prior deed made by the husband of said married woman, the grantor, to a person not a party to the action, to show that nothing passed by the deed from the wife to plaintiff.</p> <p>Query ?—Does the record of a deed, executed by the grantor by his attorney in fact, which is duly acknowledged and recorded, impart notice without a record of the power of attorney?</p>

Henry S. Magraw, the respondent, one of the creditors of the estate of D. 0. Broderick, deceased, presented his claim to the executor and the Probate Judge, and it was allowed August 2Sth, 1861. His claim was based upon the following promissory note, viz: “ $10,500.

The execution upon which the property of Sidonie Leonard was sold was in the usual form prescribed by statute in cases of personal judgment for costs. The other facts are stated in the opinion of the Court.

<p>Appointment of Receiver after Judgment.—After verdict and judgment for plaintiff, in an action to recover possession of real estate, and while a motion for a new trial is pending, a receiver of the rents and proceeds of the property in dispute may be appointed, if the facts of the case are such as warrant it.</p> <p>When Receiver may be Appointed.—In an action to recover the possession of land, after verdict and judgment for the plaintiff, if the defendant in possession is receiving monthly large sums of money from the sale of the waters of mineral springs on the land, and is insolvent, a receiver may be appointed, pending the farther litigation on motion for new trial and appeal.</p> <p>Appointment of Receiver.—If notice is given of an application for an injunction, and the petition prays for an injunction, the Judge, on the hearing, may appoint a receiver, if the facts make out a proper case for a receiver, and no objection is made on the ground of want of notice of the application.</p> <p>Review of Order appointing a Receiver. — On an appeal from an order made after final judgment directing a receiver to pay over to the prevailing party moneys in his hands, the Supreme Court cannot review the order appointing the receiver.</p> <p>Application fob Receiver to pay over Money.—On an application to the Court, after final judgment, for an order for a receiver to pay over to the prevailing party money in his hands as receiver, it will not be presumed that the receiver has transcended his duties and took possession of property to which he was not entitled, nor is the opposite party entitled to have issues framed and submitted to a referee or jury to ascertain the ownership of the money in the receiver's hands.</p>

The Court below granted the new trial on the ground that it had erred in excluding the copies offered by the plaintiff from the books of record kept by the Alcalde. The other facts are stated in the opinion of the Court.

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

Plaintiffs brought their action to recover damages for the alleged wrongful taking and conversion of sixteen hundred sheep, and asked for judgment for five thousand dollars.

<p>Mining Usages and Customs.—"Where any local mining customs exist, controversies affecting a mining right must be solved and determined by the customs and usages of the bar or diggings embracing the claim to which such right is asserted or denied, whether such customs and usages are written or unwritten.</p> <p>Notice locating Claim under Mining Customs cannot be Changed.—If a mining custom allows a person to locate a lode or vein for himself and others, by placing thereon a notice, with his own name and the names of those whom he may choose to associate with him, appended thereto, designating the extent of his claim; and one person thus locates a lode for himself and several others, some of whom have no knowledge of the location, the persons who have no knowledge of the location by the same become tenants in common with the locator a.nd the others, and cannot bo divested of their interest by the locators afterwards tearing down the notice and posting up another omitting their names, unless this is done with their knowledge and consent.</p>

<p>Discharge op Sureties ox Undertaking.—If the defendant obtains an order for the release of property attached in the action by delivering to the Court or Judge an undertaking, executed by sureties, conditioned to pay the plaintiff any judgment he may recover in the action, and the property is thereupon released: whenever the liability of the sureties is fixed by the rendition of a judgment in favor of the plaintiffs, the sureties have a right to tender the plaintiff the full amount of the judgment, and if he refuses to receive the same, the sureties are discharged from their obligation on the undertaking.</p>

The money was loaned to the defendant on the 14th of April, 1862. On the first day of October, 1862, the plaintiff gave written notice to the defendant that on the 7th day of October, 1862, he would sell the pledged property at auction, and also gave notice of the hour and place. Plaintiff also published in a daily paper in San Francisco, on the 4th, 5th, 6th, and 7th days of October, notice of the sale. Defendant recovered judgment in the Court below.

<p>Proceedings supplementary to Execution.—Sections one hundred and forty-one, one hundred and forty-two, and one hundred and forty-three of the Practice Act, relating to proceedings supplementary to execution, do not authorize the Court to make an order for the application of property of the judgment debtor in the hands of a third party to the satisfaction of a judgment, upon the mere affidavit of the plaintiff, without first examining the party alleged to have the property in his possession as to the truth of the allegation. The order to apply the property to the satisfaction of the judgment must be based upon the answer of the person alleged to have it in his possession, and such "other testimony as may be adduced at the hearing in connection with his answer. The affidavit of the plaintiff merely serves as the basis of a proceeding to acquire jurisdiction of a party who was before a stranger to the action.</p> <p>Money deposited with Sheriff to release Attached Property.—Where the defendant in an action, whose property had been attached by the Sheriff, deposited with the Sheriff a sum of money in gold coin, in lieu of an undertaking, to procure a release of the property, and the property was thereupon released, and after-wards, by agreement between the parties to the action, the money was taken from the Sheriff and loaned out pending the litigation, and a note drawing interest taken therefor payable to plaintiff’s attorney—held, that after plaintiff recovered judgment, the persons who borrowed the money did not hold it in the character of bailees of the Sheriff, but that they were mere debtors, and the money in their hands a mere debt, to be treated as such on proceedings supplementary to execution.</p> <p>Judgments payable in Coin.—The two hundredth section of the Practice Act, as amended in 1S63, making provision for the entry of judgments in certain cases, payable in a specific kind of money, confers a special authority on Courts not known to the common law, or Courts of equity, and must be strictly construed.</p> <p>Same—Proceedings supplementary to Execution.—If, pending a litigation to recover a money judgment, gold coin of the defendant which is in the custody of the Sheriff, is, by consent of parties loaned out, and a note of the borrower is taken therefor, payable in gold coin, the Court cannot, after plaintiff recovers judgment, and while the note is outstanding in the hands of third parties, and not under the control of the Court, make an order, in proceedings supplementary to execution, that the borrower pay over the money in gold coin. The mode of enforcing a contract payable in coin is, under the statute, by an action or proceeding upon the contract itself.</p> <p>Jurisdiction op Court in Proceedings supplementary to Execution.—In proceedings supplementary to execution the Court has no jurisdiction to make orders relating to persons who are not parties to the proceeding, nor has it power to make an order, that one who has, by consent of plaintiff and defendant, borrowed money, deposited with the Sheriff by defendant to release an attachment, and given his note to a third party therefor, payable when plaintiff recovers judgment, shall pay the money to the plain'tiff, when the person who hoi ds the note is not a party to the proceeding, and the note is still in his hands and not under the control of the Court.</p> <p>Receiver in Proceedings supplementary to Execution.—In proceedings supplementary to execution, the Court has power, when it has all the parties before it, ,to appoint a receiver, and order a note in the hands of a third person, a party to tiie proceeding, and payable to the judgment debtor, or to such third person as trustee of the judgment debtor, to he delivered up to the receiver, to he collected by suit or otherwise under its direction, and the proceeds applied to the payment of the debt.</p> <p>Money taken by Consent op Parties prom the Custody op the Law.—Money deposited with the Sheriff by a defendant to procure the release of an attachment is in the custody of the law, hut where the parties by a mutual agreement take it out of the hands of the Sheriff, without any order or permission of Court, and lean it out to third parties, these parties are not the bailees of the Sheriff, and the money ceases to he in the custody of the law, and can only be reached on proceedings supplementary to execution, in the same manner as other debts are reached.</p>

This action was brought to compel an accounting and a reconveyance of the property.

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

There were several instruments set out in the complaint, executed to different persons, as the cause of action against the defendants. Plaintiff sued as the assignee of these instruments.

The following are the records of the Police Judge’s Court: “ Tuesday, June 21, 1864. “ Police Judge’s Court. “Present, presiding, his Honor P. W. Shepheard. “The defendant arrested charged with misdemeanor by violation of the Sunday Law, and on motion of defense, the Court orders that the case be continued until Wednesday, June 22, 1864. “ Wednesday, June 22, 1864. “ Case being called, defendant demurred to the complaint, on the ground that it does not state facts sufficient…

The petition for the writ of mandate was verified by the District Attorney of Contra Costa County. The other facts are stated in the opinion of the Court.

<p>Appeal from an Order of a Justice of the Peace.—An appeal does not lie to tho County Court from an order made by a Justice of tho Peace, directing property alleged to have been stolen, and discovered and brought before the Justice by a peace officer, by virtue of a search warrant issued by the Justice, to be delivered to the owner.</p> <p>Mandamus by a County Court.—If notice of appeal is given from an order of a Justice of the Peace directing stolen property to be delivered to the alleged owner, tho County Court has no jurisdiction to compel, by writ of mandate, the Justice of the Peace to send up the appeal papers.</p> <p>Same.—In such cases the County Court can only inquire by the intervention of a Grand Jury whether a public offense has been committed in tho county.</p>

<p>Purchaser of Land at Sheriff’s Sale.—The purchaser of land at Sheriff’s sale does not "by his purchase acquire the title to the land. The title passes by the execution and delivery of the Sheriff’s deed. The purchaser prior to tho execution of the Sheriff’s deed holds merely a lien upon the land.</p> <p>Redemption from Sheriff’s Sale is Payment of a Debt.—The obligation of a judgment creditor or redemptioner to pay a certain amount of money in order to exercise the statutory right of redemption from a sale of land made by a Sheriff, is a debt within the meaning of the Act of Congress making treasury notes lawful money and a legal tender in payment of debts.</p> <p>Redemption in Treasury Rotes.— Land sold at Sheriff’s sale under a judgment payable generally in money, without specifying a particular kind of money, may be redeemed with treasury notes made a legal tender by Act of Congress.</p> <p>Treasury Rotes a Legal Tender.—Treasury notes issued under tho Act. of Congress of February 25th, 1862, are lawful money, and a legal tender in payment of all debts, public and private, except certain public debts mentioned in the Act.</p> <p>What Money Sheriff may receive in Redemption. — The Sheriff is the special agent of the purchaser of land authorized to receive the redemption money for him, and as such, may receive in redemption what is regarded as current money ^at tho time and place, though not strictly a legal tender, unless the judgment under which the sale was made was rendered payable in a particular kind of money.</p>

<p>Evidence of Former Quarrel on Trial for Murder.—If two persons have a quarrel and a fight, and after an interval of six hours one of them seeks the other, forces a contest, and takes his life, and is afterwards indicted for murder, he cannot, in defense, introduce evidence of the first quarrel as part of the res gesiie.</p> <p>Former Quarrel as Provocation for Killing.—If two persons quarrel, and after a sufficient time has elapsed for reason to resume its sway, one of them kills the other, and is indicted for murder, proof on the trial of the first quarrel as a provocation for the killing makes the killing attributable to deliberate revenge, and punishable as murder.</p>

<p>Judgment for Taxes. — Although tho statute does not require the assessed value of property to be alleged in the complaint in an action to recover taxes, yet, if it is alleged, and the record shows that a judgment was rendered for a greater sum than the total amount of county and State taxes authorized to be levied by law, the judgment will be reversed.</p>