Volume 27 — California Reports

The complaint did not ask judgment for or allege the damages at a sufficient amount to include interest on the value of the bullion. The verdict of the jury included interest. The other facts are stated in the opinion, of the Court.

<p>Certified Copy of a Deed as Evidence.—A party claiming title under a deed duly acknowledged is entitled to have a certified copy of the record of the same received in evidence, upon making statute proof that he never had control of the original, and that it is not then in his power or control.</p> <p>Record of Deed not properly Acknowledged.—The record of a deed not properly acknowledged does not give constructive notice to subsequent purchasers in good faith.</p> <p>Decree in Action brought by one for Himself and on behalf of Others.—Where an action is brought by one of several persons, claiming title from a common source, on his own behalf and in behalf of all others interested in the same manner as himself, to set aside a deed executed to others by the same grantor under whom plaintiff claims, on the ground of fraud, the parties named in the complaint, for whose benefit the action is brought, are entitled to the benefit of the decree declaring the deed fraudulent.</p> <p>Purchasers after lia pendens filed.—If a Us pendens is filed at tho commencement of an action brought to set aside a deed on the ground of fraud, parties who buy of the defendant pending the litigation are bound by the decree.</p> <p>Assessment must fix Valuation on Property.—An assessment of town lots for taxation, which does not give their cash valuation either in gross or detail, is radically defective. Figures placed opposite town lots in an assessment roll, without any statement whether they stand for cents, dollars, or eagles, do not fix any valuation to the same.</p> <p>Tax Deed—When Void.—A tax deed executed in 1860, for land sold for taxes, is void if the assessment shows that there was not any cash valuation of the lot which the deed purports to convey.</p>

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

<p>Presentment of Indictment. — It will be presumed that an indictment was presented to the Court by the Foreman of the Grand Jury, and in their presence? although that fact is not indorsed on it, if the record of the Court shows nothing to the contrary.</p> <p>County Courts. — County Courts are Courts of general criminal jurisdiction, and as such all intendments are in favor of the regularity of their proceedings. Assistant Counsel for District Attorney.—Whether the District Attorney should be allowed associate counsel to aid him in the management of a case is a matter resting in the discretion of the Court, and where there is no abuse of that discretion the appellate Court will not interfere.</p> <p>Evidence that Witness employed Associate Counsel.—If the District Attorney is assisted by associate counsel in the prosecution of a criminal case, counsel for the defense have a right to ask the prosecuting witness if he has employed such associate counsel.</p>

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

<p>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>

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

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

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

The1 complaint set forth in words arid figures the following promissory note as the cause of action: “ Downieville, May 20th, 1863. “ One day after date, for value received in gold coin, of the Government of the United States, we, the Red Star Co., promise to pay to the order of P. A. Lamping & Co., at their banking house, in Downieville, five thousand dollars, with interest at the rate of three per cent per month, payable monthly in advance, and if the said principal sum…

<p>Abatement op Action.—The pendency of an action to quiet title to land, "will not abate a subsequent action between the same parties to recover possession of the same land, in which the same facts are litigated.</p> <p>Denial op Landlord's Title by Tenant.—If a tenant denies his landlord's title# the denial makes him a trespasser, and he is not entitled to notice to quit before the commencement of an action by the landlord to recover possession of the premises.</p>

<p>Jurisdiction op Supreme Court.—The Supreme Court has no jurisdiction in an action to recover a money judgment where the amount of the judgment, exclusive of costs, is less than two hundred dollars.</p>

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

The Court below found the following facts : 1. That in the year 1855, the plaintiff, for the joint and equal benefit of himself and one Joseph Scott, and one Theodore H. Scribner, negotiated for and purchased of Fulgencio Higuera and Celia Feliz de Higuera, his wife, the tract of land in said complaint referred to, situate in the county and State aforesaid, for the agreed sum and price of eight thousand dollars; the same being part of the Agua Caliente Rancho, then and there…

<p>Sarart op Coroner op San Francisco.—The Act'of 1864, entitled “An Act concerning the salary and fees of the Coroner of the City and County of San Francisco,” reduces the salary of the Coroner of said city and county from four thousand to two thousand dollars per annum. The fifth section provides that “ this Act shall not affect the salary of the present incumbent during the term for which he is elected.” Held, that the fifth section did not apply to a successor of the then incumbent, appointed after his death to fill his unoxpired term.</p>

Petition for writ of prohibition. This was an original proceeding commenced in the Supreme Court to obtain a writ of prohibition, to prevent the County Judge of Placer County from proceeding to try and punish for contempt the relators, who were charged for violating an injunction issued out of the District Court.

<p>United States Legal Tender Notes.—United States notes issued under and by authority of the Act of Congress of ¡February 25th, 1862, entitled "An Act to authorize the issue of United States notes,” etc., and the Act of March 3d, 1863, entitled "An Act to provide ways and means for the support of the Government,” are lawful money and a legal tender in payment of all private debts contracted before the passage of said Acts, unless by the terms of the contract creating the debt the debtor promised to pay in gold or silver coin.</p> <p>Laws making United States Notes Lawful Money. — The Acts of Congress making United States notes lawful money and a legal tender in payment of debts are not laws operating retrospectively, but in presentí and prospectively.</p> <p>How Promise to fay Money generally, Satisfied.—A promise to pay money generally, can be satisfied by a payment in any kind of currency that becomes lawful money and a legal tender during the interval through which the relation of debtor and creditor shall he extended.</p> <p>Discrimination between Kinds of Money. — Courts cannot discriminate between one kind of money and another in cases where neither the parties contracting nor the laws have made any such discrimination.</p>

Plaintiff appealed from the judgment of the Court below dismissing the action. The other facts are stated -in the .opinion of the Court,

<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>

The following are copies of the complaint, answers, judgment, and stipulation in this cause: The People of the State of California, on the relation of John G. McCullough, Attorney-General of said State, complain of the defendants, Romualdo Pacheco, Treasurer of said State, and the Central Pacific Railroad Company of California, a corporation duly incorporated'under the laws of and doing business within said State, and for cause of complaint aver and show and cause this Court…

The executions issued on the judgments confessed by Burton & McCarty in favor of C. H. Burton, and Spillman, were levied by Marshall, the Sheriff, on the goods of Burton & McCarty. The plaintiffs commenced suit against Burton & McCarty on their indebtedness, and procured attachments, which were afterwards levied on the same goods. The other facts are stated in the opinion of the Court.

<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>

John P. Welsh was the owner of a stallion, and on the 18th day of February, 1862, he contracted in writing with the plaintiff, to deliver him the horse for one year from that date.

<p>Contract for Sake of Land as Evidence.—In an action for tlie recovery of real estate, a contract in writing signed by both plaintiff and defendant, for the sale and conveyance of the land in dispute by plaintiff to defendant, is admissible in evidence on behalf of plaintiff, for the purpose of proving that defendant obtained possession of the premises from plaintiff, and went in under him.</p> <p>Notice to Quit.—A landlord cannot maintain an action to recover possession of land from a tenant at will without first giving him notice to quit.</p>

The defendant was a corporation. The following is a copy of the note sued on, and on which plaintiffs failed to recover: “Auburn, April 1st, 1863. “Eight months from date, for value received, The Auburn Turnpike Company promise to pay Hall and Allen, at their banking house in Auburn, in gold coin currency of the United States, three thousand two hundred and four dollars, with interest at two per cent per month from date until paid.

<p>Mortgage of Personal Pbopebty.—The mortgagee of personal property may, after the conditions of the mortgage are broken, upon giving reasonable notice to the mortgagor of the time and place of sale, sell the property mortgaged at public auction, and if the sale be bona fide, an absolute title to the property passes to the purchaser.</p> <p>Mortgagee of Personal Pbopebty has two Remedies.—The mortgagee of personal property has two remedies, either of which he may pursue at his election. He may resort to a Court of equity to foreclose the mortgagor’s right to redeem, or to compel a redemption, or he may obtain the same object by a fair public sale of property after due notice to the mortgagor.</p> <p>Notice of Sale of Personal Property Mortgaged.—What is a reasonable notice to the mortgagor of the time and place of sale at auction of personal property mortgaged, must be determined from all the circumstances of each particular case, and he who alleges that a notice is not sufficient must assign some reason for his allegation.</p> <p>Sale of Personal Property Pledged.—Personal property pledged to secure a debt may be sold by the pledgee, after the debt to secure which it was pledged has become due, if the sale be made at public auction and after reasonable notice of the time and place of sale be given to the pledgee.</p> <p>Rights of Mortgagor in Personal Property Mortgaged.—The mortgagor of personal property has an equity of redemption in the mortgaged property after the conditions of the mortgage are broken, which he may assert by paying the debt and redeeming the property at any time before this equity of redemption has been cut off by a foreclosure or by a sale at auction.</p> <p>Right of Mortgagor to Redeem Personal Property.—If the mortgagee of personal property refuses, after condition broken, to allow the mortgagor to redeem the property mortgaged, the mortgagor may assert this right by a bill in equity, if he brings his suit within a reasonable time.</p> <p>Right of one of two Mortgagees of Personal Property.—If a mortgage on personal property is made to two persons, to secure the separate debt of each, either mortgagee, after condition broken, may advertise and sell at public auction the undivided interest which he holds in the property as security for his debt, and the purchaser will become a tenant in common with the owner of the unsold portion.</p>

The Court below found the following facts, viz : That between the first dyy of January, 1853, and the death of the deceased, Herman Schroeder, there was deposited with and collected by said Herman Schroeder money to the amount of two thousand nine hundred dollars, to be held by him on deposit and in trust for the plaintiff, and was so held by him at the time of his death, with the exception of three hundred and forty-seven dollars paid by said Herman Schroeder, in his…

On the 9th day of April, 1863, plaintiffs commenced this action to recover possession of a tract of land in San José, designated as Lot Number Forty-nine of the lots commonly called the five hundred acre lots of the Pueblo of San José. The complaint averred possession and ownership in plaintiffs as tenants in common on the 27tli day-of May, 1862, and ouster by defendants on the same day.

<p>Former Jcdgmestt as a Bar.—If the defendants demur to the complaint for mis A joinder of parties defendant, as well as for other reasons, and at the same timo answer, and the parties stipulate to submit the issues of law and fact to the Court upon the pleadings, and a general judgment is rendered for the defendants, it is a bar to another suit for the same cause of action, although the real ground upon which the judgment was based was the misjoinder of parties defendant. Expression of Opinion on a Point not before the Court.—If a judgment is rendered generally for the defendants upon issues of both law and fact, and the Supreme Court upon appeal affirm the judgment, a statement in the opinion that the judgment was affirmed because there was a misjoinder of parties defendant, and that the effect of the judgment will not preclude the plaintiff from suing again, does not prevent the judgment from being a bar to a new suit brought for the same cause of action.</p> <p>Judgment rendered on Demurrer as a Bar. — If the defendants demur and answer at the same time, and issues of law and fact are submitted to the Court, and an order is made sustaining the demurrer by reason of a misjoinder of parties defendant, and judgment is rendered for the defendants upon the order, the judgment will not bar a new action. r</p>

<p>Service of Susimons by Publication.—Where service of summons is had hy publication, proof of the publication can only be made by the affidavit of the printer, his foreman, or principal clerk; and the affidavit should state that the person taking the same holds one of these positions. An affidavit commencing in this way: “A. B., principal clerk, etc., * * being sworn, deposes/' etc., is insufficient, and would not give the Court jurisdiction of the person of the defendant. What constitutes an Appearance in an Action.—A defendant cannot appear in an action so as to give the Court jurisdiction of his person, except hy answering, demurring, or giving plaintiff written notice that he appears ,• and the service of the notice of appearance must antedate or be contemporaneous with the service of all other notices and papers.</p> <p>Plaintiff presumed to know Defects in Proceedings, — If the plaintiff in an action of foreclosure purchases the property at Sheriff's sale, he is presumed to buy with full knowledge of all defects in the proceedings relating to service of summons.</p> <p>Writ of Assistance.—If the Court, in an action to foreclose a mortgage, does not acquire jurisdiction of the person owning the land at the time of the foreclosure, a writ of assistance against the owner or his grantees will be refused.</p>

<p>Proof of Execution of Instruments in Writing.—An instrument in writing, executed and attested by a subscribing witness in a foreign country, or at a place beyond the jurisdiction of the Court, can be proved by evidence of the handwriting of the party who executed it.</p> <p>"Service of Summons by Publication.—When an order is made for the service of summons by publication, and a summons is issued, and a supplemental complaint is afterwards filed and a summons issued thereon, the original action becomes merged in the action as supplemented, and the Court will not acquire jurisdiction, of the persons of absent defendants by publication of the original summons; but the summons issued on the supplemental complaint must he served by publication.</p> <p>How Summons should be Published.—If service on a defendant is attempted to be procured by publication, the summons must be published as it was when the order of publication was made.</p> <p>Judgment without Jurisdiction of Person.—If it appear by the record or otherwise that the Court never had jurisdiction over the person of the defendant, the judgment will be pronounced a nullity, whether it comes directly or collaterally in issue, and a sale of property under it will he void also.</p> <p>Jurisdiction of Person.—If jurisdiction of the person of defendant is to he acquired by publication of the summons in lieu of personal service, the mode proscribed must be strictly pursued, and in such case there will he no presumption in favor of jurisdiction.</p> <p>Action to set aside Conveyance of Land.—A lien on land acquired by an attachment, cannot be rendered effectual for the purpose of impeaching a conveyance of the land made by the defendant in the attachment, until judgment is obtained in the suit in which the attachment issued.</p> <p>Creditor without Judgment.—A creditor at large, without a judgment, is not in a position to maintain an action to set aside a conveyance of property made by Ms debtor.</p> <p>Assignee of Void Judgment,—If the assignee of a void judgment, together with the cause of action on which it was rendered, offers the same in evidence, this does not prove that the assignee is a creditor of the defendant in the judgment.</p> <p>Deed for Land sold for Taxes as Evidence. •—If the certificate of sale of property for taxes is made to “Michael Dundon,” and the deed under the certificate is made to “ Patrick Michael Dundon, Jr.,” and it appears in proof that there were two persons, Michael and Patrick Michael, and there is no evidence that Patrick Michael acquired the right of Michael by assignment, the deed is not admissible in evidence without proof that the two names are for the same person.</p> <p>Claimant of Land cannot acquire Tax Title.—One who is in possession of land, claiming it as his, when it is assessed for taxes, cannot, by failing to pay the tax and allowing the land to be sold for the same, and becoming the purchaser, and obtaining a Sheriff’s deed, acquire a title to it.</p> <p>Conduct of a Judge during a Trial.—If the character of a witness is called in question during a trial, and the Judge makes a remark from the bench indorsing his respectability, it is good cause for a reversal of judgment, if the testimony of the witness is material.</p> <p>Statements and Exceptions.—A statement on motion for new trial, or a bill of exceptions, should contain only so much of the evidence or a reference thereto as may he necessary to explain the grounds specifically set forth as causes for new trial. Judges or Courts, in settling statements, should^ see that the above rule is complied with.</p>

The defendants, Van Syckle and Flanders, were in possession of the land as tenants of defendant Ashe, who claimed to own it and defended on behalf of his tenants.

The affidavits in support of the motion to-be allowed to file a supplemental complaint, and make Mary Ann De Uprey a party defendant, stated that she claimed a homestead interest in the property. The supplemental complaint contained the same averment, and did not state that she owned any interest in the property. The other facts are stated in the opinion of the Court.

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

<p>Place of Trial of Accessory.—An accessory before or after the fact in the commission of a public offense must be indicted and tried in that county where the offense of the accessory was committed, notwithstanding the principal offense was committed in another county.</p> <p>Want of Jurisdiction appearing on Trial.—When it becomes manifest in the course of the trial of a person indicted as an accessory, that the offense of the accessory was committed in another county than that where the indictment was found, the Court should, on its own motion, discharge the jury and commit the accused to await a warrant from the proper county.</p> <p>Arrest of Judgment in case of Accessory.—If the evidence shows that the offense of the accessory was not committed in the county where the indictment was found, the Court should arrest the judgment without a motion to that effect being made.</p> <p>Distinction between Accessory and Principal. — A person who incites, counsels, hires, or commands another to commit a crime, but is not within such convenient distance as to be able to come to the immediate assistance of his associates, if required, or to watch to prevent surprise, is an accessory, and not a principal in the second degree.</p>

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

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

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

<p>Special Verdict op a Jury.—It is the province of the Court to determine as to what particular facts the jury shall find specially, and neither party has the right to dictate the terms of any particular question to be submitted to the jury.</p> <p>Acquisition op Eight to use Water by Prescription.—The use of water in any particular way for a period corresponding to the time limited hy statute within which an action must be commenced to determine the right to it, raises a presumption of title to the same in the person enjoying the same as against a right in any other person, which might have been but was not asserted; but in order that this presumption of title may he conclusive, the right to the use of the water must have been asserted under a claim of title with the knowledge and acquiescence of the person having a prior right, and must have been uninterrupted.</p> <p>Burden op Proving Eight to Water by Adverse Use.—The burden of proving an adverse uninterrupted use of water for five years, with the knowledge and acquiescence of the person having a prior right, is cast on the party claiming it; and if he leaves it doubtful whether the use was adverse, known to the'owner, and uninterrupted, it is not conclusive in his favor.</p> <p>¡Failure to plead ¡Five Years Adverse Use op Water.—The party claiming a right to the use of water hy five years adverse possession, must set up the same as a defense in his answer; and if he does not, he loses the right to introduce evidence in support of it, and to have the Court instruct the jury in relation to it.</p> <p>Decree ¡Enjoining Use op Water.—A decree enjoining the owners of a mining claim, situated on a creek below a dam at the head of a ditch, from diverting any water from or in any manner interfering with the waters of the creek that rise above the dam, does not prevent the owners of the mining claim from using the waters of the creek which may flow down the same after the ditch is supplied.</p>

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

<p>Date of Certificate to Deposition.—If, at the end of a deposition taken by a Commissioner out of the State, there is a jurat giving the date when the deposition was subscribed and sworn to, it is not necessary that the further certificate of a compliance with the four hundred and thirtieth section of the Practice Act should be dated.</p> <p>Deposition taken by Stipulation.—If the parties stipulate that a Commissioner may take a deposition upon written interrogatories, and the stipulation says nothing about the day the same may be taken by the Commissioner, it is not necessary that the Commissioner state in his certificate the day the same was taken.</p> <p>Interested Witness'—One whose interest is equally balanced between plaintiff and defendant is a competent witness.</p> <p>Purchase of Note Past Due.—One who purchases a promissory note past due, but which has been paid before the purchase, takes it subject to the defense of payment, even if he was ignorant at the time of his purchase that it had been paid.</p>

<p>Complaint in Forcible Entry and Detainer.—A complaint in an action under the Forcible Entry and Detainer Act, other than actions against tenants holding over as provided in said Act, does not state facts sufficient to constitute a cause of action, unless it allege a forcible entry or a forcible detainer.</p>

The complaint in this case sets forth substantially that the plaintiff, after a residence of some years in the City of San Francisco, was, on the 15th of April, 1856, possessed of real and personal property to the amount of about forty thousand dollars. That the defendant, Eliza J. D. Rowlandson, is the sister of the plaintiff, and the defendant, Thomas Rowlandson, her husband.

<p>Discharge of Jury in Criminal Case.—If, after the jury in a criminal case have retired to deliberate on their verdict, the Court directs the Sheriff to discharge • them if they do not agree on their verdict by a certain hour, and then adjourns,</p> <p>• and at the hour named the Sheriff discharges the jury, this will not operate as an acquittal of the defendant, but another trial may be had.</p> <p>Charge of Two Offenses in Indictsient.—If an indictment for forgery contains two counts, in each of which a copy of the instrument alleged to have been forged is set out, and the copies are alike, it. will not be presumed that each is a copy of only one and the same original instrument, without an allegation to that effect in the second count.</p> <p>When Several distinct Offenses may constitute a Single Crime.—A person. guilty of forging a check, and also of an attempt to pass it, or of passing it as true and genuine with intent to damage and defraud another person, may be indicted, tried, and convicted for all these connected and consecutive acts as constituting one transaction and one crime; or if guilty of but one of such acts, ho may be indicted, tried, and convicted for its commission as constituting a distinct crime.</p> <p>How Objection to Indictment to be taken.—If there is more than one offense charged in the indictment, the defeet should be taken advantage of by demurrer. Jf the objection be not taken by demurrer, it cannot be considered on motion in arrest of judgment.</p> <p>Election as to Count on which Accused shall be tried.'—If the indictment contains more than one count, each charging a distinct offense, the Court is not required to compel the prosecutor to elect upon which count of the indictment he will try the accused.</p> <p>Sentence where Indictment - charges Two Offenses.—If the indictment contains more than one count, each charging a distinct offense, and the verdict is general, finding the defendant guilty, the presumption will be that the Judge who tried the case pronounced judgment for the offeiise to which the evidence was directed and was properly applicable.</p>

<p>Act concerning Indians.—The Act of April 22d, 1850, for the protection and punishment of Indians, was intended to be applied to Indians in tribes, or when living in separate communities or companies, and not to a case where an Indian has been living among white men.</p> <p>Repeal op Act prescribing Whipping por Larceny.—The Act of April 22d, 1850, conferring on Justices of the Peace the power to punish Indians convicted of larceny by whipping, is repealed by the Act of 1856, which prescribes the punishment for both grand and petit larceny.</p> <p>Justice's Jurisdiction to try Indian for Grand Larceny.—The Act of April 20th, 3863, concerning Courts of justice in this State, takes away from Justices of the Peace the power to try and punish Indians for grand larceny conferred upon them by the Act of April 22d, 1850, for the protection and punishment of Indians.</p> <p>Burden op Proving how Stolen Property was Obtained.—The burden of proving that stolen property found in his possession came honestly into his hands is not cast upon a defendant in a criminal case, unless the prosecution has introduced evidence, either direct or presumptive, sufficient to prove that he came dishonestly by it.</p> <p>General or Special Verdict in Criminal Cases.—The Court cannot direct a jury, in a trial for larceny, to render a special verdict, but, upon the request of either party, it should instruct them that they have the discretion to render either a general or special verdict.</p>

This action was brought against the State Treasurer to recover possession of ten State bonds. • The other facts are stated in the opinion of the Court.

<p>Appeal from the County Court, City and County of San Francisco.</p> <p>Defendant Calderwood moved for a new trial and appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Statement on Application for Hew Trial.—If a new trial on the ground of errors occurring at the trial is ashed for, the statement should specify the particular errors relied on, and if it does not it should he disregarded by the Court.</p> <p>Act governing Statements for Hew Trial.—The Act of 1863, amending the one hundred and ninety-fifth section of the Practice Act, is the law governing the preparation of statements on motion for new trial made after its passage.</p>

Ramirez and Sepulveda, two of the defendants, answered, setting up title to several portions of the land claimed to be included in the mortgage, adversely to the mortgagor. The Court decreed the sale of any portion of the southern half of the Rancho San Rafael which might remain after the assignment of a homestead of the value of five' thousand dollars. ' The other facts are stated in the opinion of the Court.

Plaintiff offered no evidence upon the condition of the boilers. Plaintiff recovered judgment in the Court below for the value of the horse and interest on the amount, and defendant appealed. The other facts are stated in the opinion of the Court.

<p>Issues of Fact raised by Answer.—Where there are no findings of fact in an action tried by the Court, all the issues of fact raised by the answer are deemed to havo been found in favor of the party who recovers judgment.</p> <p>Removal of a House prom the Freehold. —The severance and removal of a house from the freehold changes the character of the house from real to personal property, whether the severance is by the act of God or of man.</p> <p>Mortgagee's Right to an Injunction.—The mortgagee of a lot on.whichahouse is standing, cannot enjoin the mortgagor or his assigns from removing the house from the lot, except upon proof that the lot without the house will be an inadequate security for the mortgage debt.</p> <p>Same.—The severance and removal of a house from land covered by a mortgage withdraws the house from the operation of the mortgage lien; and after the removal the mortgagor or his assignee has a right to sell the house, and the purchaser may convert it to his own use.</p>

<p>Construction op a Will.—If by the terms of a will the estate is devised to "A” to have and to hold during his lifetime, and then to go to his heirs; if the word “heirs ” is used in a general sense to indicate those to whom by law the property would pass by descent, and not in a special or restrictive sense to designate certain particular individuals, the whole estate vests in “A” in fee simple, notwithstanding the language of the will limits him to a life estate.</p> <p>Idem.—The following was the language of the bequest in tho will: “I bequeath to Dr. "Van Canaghen, one third of my property on California street, and one third to my son, and one third to my brother, each and all of them to have and to hold their lifetime, and then to go to their heirs and assigns. But never to sell.” Held, that by the terms of the will, the three devisees named took' a fee simple estate in the property devised.</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>

The following is the complaint to which defendant demurred : “ Solano County, plaintiff, by J. C. Hinckley, District Attorney, complains of John iVI.

The defendant was elected Treasurer of the County of Placer, at the general election in 1862, and afterwards qualified and entered upon the discharge of its duties. By the law, as it then stood, his term commenced on the first Monday in December, 1862, and extended to the first Monday in March, 1865.

<p>Form of Denial in Answer. — If an answer, in response to an allegation of the complaint, instead of denying it in express terms, contains the averment that the defendant did not commit the act charged, or that the fact alleged to exist does not exist, these averments of the answer traverse the matters alleged, and are good denials of the same.</p> <p>Proof of Mining for Gold.— Evidence that a party is at work on a claim, and is mining, and is at work with tools commonly used by miners, is sufficient to justify a jury in finding that he is mining for gold, without any proof that he has found any gold in the claim.</p> <p>Mining above the Head of a Ditch.—Where a ditch has been excavated from the bed of a stream, and its water has been diverted through the same for mining purposes, a miner has no right to work a claim located above its head after the ditch is dug, in such manner as to mingle mud and sediment with the water, and injure its value to the ditch owner for mining purposes, or to fill up the ditch and reservoirs with the same so as to lessen their capacity and increase the expense of cleaning them out.</p> <p>Same.—The fact that a miner, working a claim above the head of a ditch, conducts his mining operations in such a manner as to cause the least possible injury to the ditch and water flowing in the same, does not excuse his responsibility for injuries caused by working the same. It matters not how cautiously or carefully the miner works, for if the ditch owner is in fact injured, the miner is none the less liable. XJse of Water for Mining. — As between ditch owners and rhiners using the waters of a stream in the mineral region for mining purposes, the law does not tolerate any injury by one to the prior rights of the other.</p> <p>Common Law. — The reasons which constitute the groundwork of the rules of the common law touching water rights have not lost their governing force in the mineral regions of this State. The conditions to which we are called upon to apply those rules are changed rather th‘an the rules themselves.</p> <p>Prior and Subsequent Appropriators of Water.—In controversies in the mining regions between the prior and subsequent appropriators of water, the question to be determined is, has the use and enj oyment of the water, for the purposes for which the first appropriaior claims it3 been impaired by the acts of the subsequent claimant?</p>

<p>Entry on Inclosed Public Land to Pre-empt.—If the defendant in an action to recover the possession of land, justifies his entry upon the prior possession of the plaintiff on the ground that the land was public land, subject to the pre-emption laws of the United States, and that he entered in pursuance of said laws, with intent to pre-empt, occupy, and enter the land in accordance with the provisions of the same, it devolves on him to show that he is one of the persons entitled to the benefit of said laws.</p> <p>Bight to Pre-empt Suscol Banoho.—A declaratory statement under the preemption laws in relation to land within the boundaries of the Suscol Banoho, made by one who was not a bona fide purchaser from Vallejo, at any time between March 3d, 1863, and October loth, 1864, was of no effect. The Act of March 3d, 1863, withdrew said land from the operation of the pre-emption laws until October 15th, 1864..</p> <p>What Pre-emptioner must Prove.—One claiming to hold public lands as a preemptor, as against a prior possessor, must show that he is one of the class of persons entitled to pre-empt, and that he has performed the acts prescribed by the pre-emption laws, or the prior possession will prevail.</p>

<p>Entering House with Intent to Steal.—The mere fact that one person is with another who enters a dwelling house and steals therefrom, and sees him steal without interference on his part to prevent it, does not render him guilty of the crime of maliciously entering a dwelling house in the daytime with intent to steal property therein, nor will the proof of such facts cast on him the burden of proving himself innocent.</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, Third Judicial District, Santa Clara County.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Material Pact in Pleading.—A statement in a complaint that the contract sued on was made payable in a specific kind of money is an allegation of a material fact.</p> <p>Judgment a Contract.—A judgment is a contract in the highest sense of the term, and the word "contract” as used in the amendment to the Civil Practice Act providing for the rendition of judgment payable in the kind of money specified in the contract, includes judgments.</p> <p>Judg3ient on Gold Coin Judgment. — If the complaint in an action on a judgment avers that the judgment sued on was rendered payable in gold coin, and defendant makes default, the Clerk should enter judgment payable in the same kind of money.</p> <p>Consolidation op Suits. — The Supreme Court will not consolidate suits brought upon distinct causes of action.</p> <p>Judgments. — If the decision of the Court below was correct when it was made, the appellate Court will not reverse the judgment by reason of any matter of fact which was not shown or offered in the Court below.</p>

The indictment charged 11 that the said Alexander Brown, on or about the 13th day of May, 1864, and before the finding and presentation of this indictment, at the County of Placer, to wit: at a place, known as Chandler & Saunders’ Ranch, in the County of Placer, did feloniously, wilfully, and unlawfully, and with force and arms, steal, take, and carry, lead, and drive away from the ranch aforesaid, the personal goods and property of another, to wit: the property of W. H.…

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

The following is a copy of the indictment in this case : “ The People of the State of California against Thomas King. “ In the Court of Sessions of the County of Siskiyou and State of California, October Term, A. D. 1863. “ Thomas King is accused by the Grand Jury of the County of Siskiyou aforesaid by this indictment of the crime of murder of the first degree, committed as follows : The said Thomas King, on the second day of July, A. D. 1863, at the County of Siskiyou and…

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

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

The complaint averred that on the 11th day of May, 1863, the plaintiff was and for a long time had been in the peaceable possession of the land in dispute. Plaintiff testified that he went into possession on the 7th day of May, 1863, and was forcibly evicted by defendants on the eleventh of the same month. The instrument offered in evidence by plaintiff as a lease, was dated on the 7th day of May, 1863.

<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>

<p>Lien of Contractor on Building.—The statute gives one who has entered into a contract in writing to construct a building a lien on the same as security for the payment of the money becoming due to him according to the terms of the contract, but this lien cannot be enforced for an amount exceeding the sum to become due the contractor.</p> <p>Contractor has no Lien except for Money to become Due.—If a contractor engages to construct a building in consideration—in whole or in part—of a debt then due from him to the employer, or of a sum paid him by the employer upon the execution of the contract, that portion of the contract price represented by the debt or the advance payment cannot become a lien upon the building.</p> <p>Lien of ÍImployíes of Contractor.—The employés of the contractor have no lien on the building as principals, and cannot acquire a lien on the building independent of the one existing on the original contract, which they may enforce to the amount due them, so that the same does not exceed the sum for which the contractor has a lien.</p> <p>Lien of Employes of Sub-Contractor.—If the contractor has paid the sub-contractor according to the terms of his contract with him, and has not made premature payment, the employés of the sub-contractor are not entitled to demand anything from the contractor or employer.</p> <p>Same.—The employés of the sub-contractor cannot intercept any money due from the employer to the contractor, nor can they enforce the lien of the contractor for any of the same, beyond what is due from the contractor to the sub-contractor at the time.</p>

The cause was, by the agreement of the parties, referred to Alexander Campbell, as sole referee, to try the case and report a judgment. The referee reported a judgment in favor of the defendants. This report was, on motion of the plaintiff, set aside and a new trial granted, and the present appeal is from that order. The other facts are stated in the opinion of the Court.

<p>Appeal from the District Court, Tenth Judicial District, Sierra County.</p> <p>This was an action to recover possession of one undivided fourth part of a mining claim situated at Poverty Hill, Sierra County.</p> <p>The complaint averred that on the first day of September, 1861, the plaintiff was the owner of and in possession of the interest in the claim in dispute, and that on the same day defendant entered and ousted him from the possession thereof.</p> <p>Plaintiff, on the trial, proved that on and before the 16th day of February, 1856, one James Cunningham was the owner of and in possession of the interest in dispute, and that on the same day he sold and delivered possession thereof to one James H. Bartlett.</p> <p>Plaintiff then introduced in evidence the following bill of sale:</p> <p>“ Povebtt Hill, May 13th, 1856.</p> <p>11 Know all men by these presents, that I do, for and in consideration of the sum of two hundred and two dollars 65-100, with interest from date till paid by me, transfer all my right, title, and interest in the claims, known as Bartlett, Craig & Co.’s, on Poverty Hill, to Geo. Baskt & Co. Said interest consists of one fourth part of six claims.</p> <p>“James H. Baetlett.</p> <p>“James Cunningham,</p> <p>“ Geoege West.”</p> <p>Plaintiff then proved that the land described in plaintiff’s complaint was, at the time said conveyance was made, known and designated as Bartlett, Craig & Co.’s Claims, and that the interest described in said conveyance was the same interest in said land that this action is brought .to recover. That the firm of Geo. Baskt & Co. named in said conveyance, was composed of Geo. Baskt and the defendant, T. H. Hawkins.</p> <p>Plaintiff then gave in evidence a note from James H. Bartlett to Baskt & Co., of which the following is a copy :</p> <p>“ Povebtt Hill, Sierra County, Cal., May 13th, 1856.</p> <p>“ On demand, for value received, I promise to pay to Geo.. Baskt & Co. the sum of two hundred and two dollars 65-100, with interest at the rate of three (3) per cent a month till paid.</p> <p>“ $202 65-100. James H. Baetlett.'</p> <p>“ Witness : Geo. West.”</p> <p>Plaintiff then offered to prove by the testimony of the said James H. Bartlett that the conveyance was intended as a mortgage to secure the payment of the note, and not as an absolute conveyance.</p> <p>Plaintiff then introduced in evidence a deed from said Bartlett to him of the property in dispute, dated August 1st, 1861, and proved that a few days after the execution of the same he exhibited the same to defendant, and offered to pay him any demand he might, have against said Bartlett which was a lien on the premises.</p> <p>Defendant recovered judgment in the Court below, and plaintiff appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Second Judicial District, Tehama County.</p> <p>Plaintiff recovered judgment in the Court below, and defendant appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Tenth Judicial District, Yuba ^County.</p> <p>The complaint averred that on the 22d day of April, 1861, W. S. Webb recovered a judgment against the plaintiff in the District Court of Yuba County, for four thousand three hundred and forty dollars, to bear interest at three per cent per month, and that J. 0. Goodwin was the attorney of record for said Webb. That on the 18th day of October, 1861, W. S. Webb assigned the judgment to J. E. Webb. That on the 31st day of May, 1862, plaintiff paid said Goodwin one thousand dollars in full satisfaction of said judgment, and that said Goodwin, then and there acting on behalf of said Webbs, and at the request of said Webbs, and being authorized by them to do so, agreed to receive and did receive said money in full satisfaction and payment of the judgment, and with the knowledge and consent of said Webbs, acknowledged in writing upon the margin of the judgment roll, satisfaction of the judgment, in the words and figures as follows:</p> <p>“ For value received, the within and foregoing judgment is hereby satisfied in full. May 31, 1862.</p> <p>“ J. 0. Goodwin,</p> <p>“Attorney of record and in fact for W. S. and Josiah R Webb.”</p> <p>That on the 13th day of October, 1862, J. E. Webb assigned the judgment to defendant Hiett, and that he received the assignment with full knowledge of the facts, and that lie was threatening to compel payment of the judgment by execution and forced sale of plaintiff’s property.</p> <p>The complaint prayed that the judgment be decreed satisfied, and that the defendant be enjoined from proceeding to enforce the collection thereof by execution or otherwise.</p> <p>The answer denied that defendant, when he received the assignment, knew that the judgment was paid in whole or in part, or that he knew satisfaction of the same had been entered of record, and admitted the other allegations of the complaint.</p> <p>The case was submitted on the pleadings.</p> <p>The Court adjudged that the judgment be credited with one thousand dollars, but denied the injunction.</p> <p>Plaintiff appealed.</p>

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

The testimony for the prosecution showed that the defendant entered the house of the prosecutrix and called for liquor, and was refused. He insisted, and it was given to him, when he called on the prosecutrix to drink, and upon her declining to do so, throwed the tumbler on the floor, threatened to kill her, and seized a hatchet and started towards her having it raised in a threatening attitude.

<p>Competency of Witnesses.—A restriction upon the competency of a witness must he strictly construed in favor of life, liberty, and public justice.</p> <p>Chinese Witnesses.—A defendant in a criminal case who is a Chinaman is entitled to introduce Chinese witnesses in his behalf.</p> <p>Per SA2XDBES02Í, C. J.—The words “ in favor of or against any white person,” in the Act prohibiting persons of one half or more Indian blood, or Mongolian or Chinese, from giving evidence, refer to the defendant alone in a criminal action.</p>

The complaint averred that the plaintiff was the owner of land lying between the land of defendant and the Upper Sacramento Road, and had applied to the Board of Supervisors to lay out a private road from defendant’s land to said road, and that such proceedings were had in the Board that a private road was pretended to be laid out forty feet wide and forty rods, more or less, in length, and that plaintiff believed the acts of defendant were committed in order to open the…

<p>Removal of Lien of a Judgment from Land. — One who purchases land subject to the lien of a judgment obtained by fraud against his grantor is not entitled to have a Court of equity remove the judgment lien and enjoin a sale of the land under the judgment, unless he shows affirmatively that he will be injured by an enforcement of the lien by a sale of the land on execution.</p> <p>Lien of Judgment against Husband on the Homestead.—If, while a judgment is standing against the husband, the husband and wife make a sale of the homestead, and at the same time make a relinquishment of the homestead right in the manner required by law, so that the two constitute but one transaction, and the homestead does not exceed in value five thousand dollars, the lien of the judgment will not attach to the homestead, and a Court of equity will enjoin a sale of the samo upon an execution issued on the judgment.</p> <p>Same.—If husband and wife make a relinquishment of the homestead right, and afterwards sell the homestead property, and the relinquishment takes effect before the sale, the lien of the judgment will attach to the property.</p> <p>Making up Transcript on Appeal. — If an amended complaint and answer are filed, and no question arises on the original pleadings, it is not necessary to include them in the transcript on appeal. Other abbreviations of transcript are indicated in the opinion.</p>

The Board of Supervisors of the City and County of San Francisco consisted of twelve members. The Board held a meeting, and by a majority vote passed the following resolution : “ Resolved, That the City and County Attorney be, and he hereby is requested to represent the Board of Supervisors and the members thereof in the proceedings lately instituted against said Board and Wm.

This was an action on a promissory note alleged to have been executed by the defendants as copartners, under the name of H. Getleson & Pestner. Defendant Getleson made default; defendant Pestner answered, denying his liability on the note.