Volume 28 — California Reports

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

The Court below found the following facts : “1. That on the first day of November, 1859, William Ford was doing business as a merchant at Quincy, and bad been so doing business for more than a, year before that time. That the stock in such business consisted of goods, wares, and merchandise usually kept in a store in the country. That he had several clerks in his employ in his business. “ 2.

Application to the Supreme Court for writ of mandate to compel the defendant, County Auditor of Tuolumne County, to audit and allow the salary of the relator as District Attorney of said county.

This case was before the Supreme Court at the July term, 1861, when the judgment was reversed and the case remanded for a new trial, and again at the July term, 1862, when the judgment was reversed, and the Court below directed to enter judgment for the plaintiff upon the special findings for the premises in controversy pursuant to the prayer of the complaint.

<p>Separate Estate op Wife.—Property purchased during coverture with funds which constitute a part of the separate estate of the wife, will also be her separate estate.</p> <p>Cloud upox the Title of a Married AVoiian’s Property.—A mortgage executed by the grantee of the husband upon property purchased with funds belonging to the separate estate of the wife, and deeded to the wife during coverture, is a cloud upon the wife's title which a Court of equity will remove.</p> <p>Property Purchased during Coverture.—The presumption is that property conveyed to the wife for a money consideration is common property; hut this presumption may be rebutted by showing that it was purchased with money belonging to her separate estate.</p> <p>Purchase prom Husband of Property Deeded to Wife.—Parties purchasing of the husband real estate deeded to the wife for a money consideration during coverture, do so at their peril. The record of the deed to the wife is notice to all the world that the land may be the separate property of the wife, and is sufficient to put purchasers upon inquiry.</p> <p>Mortgage on Separate Estate of Wife.—If land is purchased with funds belonging to the separate estate of the wife, and the deed, expressing a money consideration^ is executed to the wife duriug coverture, and recorded, and the husband afterwards sells the land, the "wife nob joining in the deed, and his grantee executes a morfcgage on the same to one who has no notice other than the record of the deed to the wife that it was purchased with the separate funds of the wife, the mortgage will be set aside by a Court of equity, although the deed on its face did not state that the consideration paid was the separate estate of the wife. The fact that the title stands in the name of the wife is sufficient to put parties dealing with land upon inquiry,</p>

This proceeding was commenced in the Supreme Court. The writ of mandate was applied for on affidavit and notice. Held: this deponent was appointed Librarian by the said Board of Trustees for the term of four years, and this deponent exeouted his bond, and took the oath of office as required by law, and on the 17th day of March, A. D. 1861, he entered upon the duties of the office of Librarian, and has continued to discharge the duties of said office…

The transcript in this case contained a copy of the pleadings, findings of fact of the Court below, and its conclusions of law, the notice of motion for new trial, statement, order denying a new trial, and notice of appeal. Defendants recovered judgment in the Court below, and plaintiffs appealed.

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

.Appeal from, the District Court, City and County of San Francisco. Plaintiffs recovered judgment in the Court below, and defendant appealed. The other facts are stated in the opinion of the Court. ,

An action for the recovery of a tract of land in Contra Costa County, and for damages for its detention, in which the relator was plaintiff and Thurston et at. were defendants, was tried in the District Court of the Fifteenth Judicial District, Contra Costa County, at the July term, 1864. A jury was waived, and the cause was submitted and taken under advisement by 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>

This action was brought to recover possession of the tract of land, lying partly in Fresno and partly in Monterey county, and in which are located the New Idria quicksilver mines.

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>About the first of November, 1862, the defendants, Braly and Weeks, commenced an action in the District Court, Fourth Judicial District, against plaintiff Calderwood, John K. Moore, and Patrick O’Brien, to recover possession of a tract of land in San Francisco.' All the defendants were summoned. Plaintiff Calderwood, within the.time required to answer, filed a petition in the case, setting forth that he was a Iona fide resident of California, but was an alien; that plaintiffs were citizens of the United States and residents of this State; that defendant Moore was not in possession of the land, and had sold his interest therein to petitioner; that defendant O’Brien was on the premises merely as Calderwood’s servant, and asked that the cause be transferred for trial to the Circuit Court of the United States for the Northern District of California. Petitioner also tendered the undertaking required by law. The Court refused to transfer the cause, and in due time the default of the defendants was entered and judgment rendered against them. Upon this judgment execution was issued, and Braly and Weeks were placed in possession of the property. No appeal was taken from the judgment or order, but the present action was commenced by Calderwood to set aside the judgment and to be restored to the possession of the property. The complaint set up the above facts. The defendants demurred to the complaint, the demurrer was sustained, and final judgment rendered for defendants. Plaintiff appealed.</p>

<p>Appeal from the District Court, Seventh Judicial District, Sonoma County.</p> <p>The cause was tried by the Court without á jury, June 23d, 1864, and on the same day the Court filed its findings and decision. June 29th, 1864, plaintiff’s attorney served on defendants’ attorney notice of motion for a new trial and a statement. Afterwards, plaintiff’s attorney gave defendants’ attorney notice that on the 13th day of August,-1865, at one o’clock p. m., he would apply to the Judge at his chambers, in Petaluma, to settle the statement on motion for new trial, and would also bring on for hearing the motion fór a new trial. On said 13th day of August the parties appeared by their attorneys before the Judge, and the statement was duly set-tied. Immediately thereafter the motion for new trial came on to be heard, and plaintiff’s counsel refused to argue the motion. The Judge then denied a new trial.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>The plaintiff, who was Sheriff of Santa Barbara County, by virtue of an attachment issued in the suit of Abadie, & Brothers v. Zuinga, levied" upon a quantity of corn and beans as the property of Zuinga. After the levy, one Curiae claimed the property, and a Sheriff’s jury was called, who found that the property belonged to the claimant. The plaintiffs, Abadie & Brothers, with the defendants here as sureties, then gave the Sheriff an indemnifying bond. ' Afterwards Curiae brought an action against the Sheriff for the levy, and recovered judgment. The Sheriff gave no written notice to the sureties of the pendeucy of the action, but after the judgment had been recovered by Curiae moved for judgment against the sureties on the indemnity. bond, under the six hundred and forty-fifth section of the Civil Practice Act, The motion, by consent, was referred to a referee to investigate the facts and report a j udgment. The referee reported a judgment in favor of plaintiff. Defendants moved the Court to set aside the judgment reported by the referee and substitute a judgment for the defendants for costs. The Court granted the motion, and plaintiff appealed.</p>

<p>Pleading Special Damages.—When damages are special and do not necessarily accrue from the act complained of, the facts out of which they arise must be specially averred in the complaint or they cannot be recovered.</p> <p>Special Damages for Detention of a Mare.—If the plaintiff, in an action to recover possession of a mare and damagas for her detention, claims damages because the animal has lost flesh in- consequence of having been kept upon short pasturage, and because she was detained during the breeding season, these facts must be specially averred as a ground of damages.</p> <p>Review of Order denying Costs.—An error of the Court in refusing to allow a party costs cannot be reviewed on an appeal from an order denying a new trial.</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>Appeal from the District Court, Tenth Judicial District, Tuba County.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Want of Jurisdiction Renders a Judgment Void.—A judgment of a County Court discharging an insolvent from his debts, when the Court has no jurisdictian, is void in the extreme sense, and leaves the creditors at liberty to enforce the collection of their debts at discretion.</p> <p>Jurisdiction of Supreme Court in Insolvent Cases.—The constitutional amendments have not withdrawn from the Supreme Court the jurisdiction to review on appeal judgments in insolvent proceedings.</p> <p>Review of Judgments in Insolvent Cases.—Proceedings in insolvent cases must be brought before the Supreme Court by appeal and not by certiorari.</p> <p>When Certiorari will lie.—Certiorari does not lie where there is an appeal.</p>

On the 15th day of February, 1864, plaintiff, as landlord, commenced an action before a Justice of the Peac.e against defendant, his tenant, for holding over contrary to the terms of his lease. The action was commenced under the provisions of the Act of April 27th, 1863, entitled “An Act concerning unlawful holding over qf lands, tenements, and other possessions.” The defendant objected to the jurisdiction of the Court.

<p>Verdict of Sheriff's Jury on Claim of Property.—Where property is levied on by a Constable or Sheriff, by virtue of an attachment or execution, as the property of the defendant in the suit, and is claimed by a third party, and a jury is called to try the right of property under the claim, and the verdict of the jury is against the claimant, this verdict is no protection to the 9fficer in a suit brought against him by the claimant,.nor is it admissible in evidence as a defense.</p>

The relator and defendant were both voted for for the office of County Judge of Mendocino County, at the judicial election held in the fall of 1863. The defendant was declared elected by the Board of Canvassers, and was thereafter duly commissioned by the Governor.

On the 25th day of September, 1848, William C. Parker presented a petition to T. M. Leavenworth, Alcalde of San Francisco, for a grant of the block of land then covered by water, bounded by Washington street on the north, west by a street now known as Front street, south by Clay street, and east by a street now known as Davis street, and numbered on a map of San Francisco as block No. 456, which block included the demanded premises. .

<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, Third Judicial District, County of Santa Clara.</p> <p>The following is the deed under which respondent claimed title:</p> <p>This indenture, made the second day of November, in the year of our Lord one thousand eight hundred and forty-nine, between Henry P. Chase, attorney for Henry L. Sheldon, of the Sandwich Islands, in the Pacific Ocean, of the first part, and Richard M. Harmer, of the Pueblo de San José, of the second part, witnesseth: That the said party of the first part, in consideration of the sum of three hundred dollars, in hand duly paid, hath sold and by these presents doth grant and convey unto the said party of the second part, his heirs and assigns forever, all that certain piece or parcel of land lying and being in the Pueblo de San José, and known to be lot number eight, (8,) in block number three, (3,) and range four, (4,) north of the base line, containing fifty varas square, according to the survey of said city, said lot being the corner of Fourth and St. John’s streets, together with all and singular the rights, privileges and appurtenances thereunto belonging, or in anywise appertaining; to have and to hold the same ■ unto the said party of the second part, his heirs and assigns, forever.</p> <p>In witness whereof, I have hereunto set my hand and seal the day and year first above written.</p> <p>[seal.] Heney P. Chase,</p> <p>Attorney for Henry L. Sheldon.</p> <p>The other facts are stated in the opinion of the Court.</p>

On the 9th day of February, 1S63, James B. Haggin et al. recovered judgment in the District Court of the Fourth Judicial District, City and County of San Francisco, against William S. Clark et al., for the possession of a lot of land in said city. Nathan Rogers was not one of the defendants by name ip the judgment.

On the 6th day of July, 1857, Charles B. Polhemus, the relator, and George W. P. Bissell commenced an action iu the District Court of the Twelfth Judicial District, City and County of San Francisco, against William M. Carpenter, James P. Treadwell, and others, on a promissory note .given by Carpenter, and to foreclose a mortgage given to secure the note.

<p>Rules op Practice Act in Forcible Entry and Detainer.—The provisions of the Civil Practice Act, with regard to the denials of the allegations of the complaint by the answer, apply to actions of forcible entry and detainer instituted under the Act of 1863, and to said actions upon all other points not otherwise provided for in said Act. ^</p> <p>Answer in Forcible Entry and Detainer.—If the answer in forcible entry and detainer under the Act of 1863 does not deny the material allegations of the complaint, and no material new matter is set up, no issue is raised, and plaintiff is entitled to judgment on the pleadings.</p> <p>Form op Denial in Answer.—If an allegation of a complaint consists of several clauses or propositions connected^ by the copulative conjunction “and,” a denial of the entire allegation is evasive and insufficient. Each proposition should be separately denied.</p> <p>Gold Coin Judgment por Costs.—It is error for the Court to adjudge the costs in an action of forcible entry and detainer to be paid in gold coin.</p> <p>Description op Land in Complaint.—The description of the premises in a complaint in forcible entry and detainer was as follows: “ That tract or parcel of land situated in the County of Santa Barbara, and known as the Rancho Sespe, granted by the Mexican nation to Don Carlos Antonio Carillo, by grant dated November 29th, 1833, and bounded and described as follows: bounded by the Missions San Fernando and San Buenaventura, situated in the then jurisdiction of Santa Barbara, containing six square jeagues * * * a little more or less.” Held, that upon the face of the pleadings the description was sufficient.</p> <p>Averment in Complaint op Location of Land.—If the complaint in forcible entry and detainer avers that the lands are in the county where the suit is brought, a failure to mention the State will not be a fatal defect.</p> <p>Averment op Possession in Complaint.—If the complaint in forcible entry and detainer sufficiently shows an actual peaceable possession in plaintiff, it will be sufficient without the use of the word “ actualbut it is better to use the statutory term.</p> <p>Judgment op Appellate Court when no Issue is Raised.—If the answer does not deny the allegations of the complaint, and plaintiff moves for judgment on the pleadings, and the motion is denied, and on the trial defendant recovers judgment, on appeal the judgment will be reversed and a new trial awarded, with leave to defendant to amend.</p> <p>Exceptions to be Attached to Judgment Roll.—Bills of exceptions made during the progress of a trial should, under sections one hundred eighty-eight, one hundred eighty-nine, and two hundred nine of the Practice Act, be written down, settled, and signed by the Judge, filed in the case, and afterwards annexed to the judgment roll.</p> <p>Averment op Title in Forcible Entry and Detainer.—If the complaint in forcible entry and detainer avers title in plaintiff, the averment may be treated as surplusage.</p>

<p>Estoppel by Deed.—A deed of land executed by a defendant in an action of ejectment, to which the plaintiff in the action is an entire stranger, cannot operate in that action as an estoppel by deed upon the defendant who executed it.</p> <p>Estoppel in Pais.—If it does not appear that the description of the land was inserted 1 in a deed with a view to influence the plaintiff in the conduct of his own affairs, or that he was influenced by it in fact, the elements of an estoppel in pais are lacking also.</p> <p>Discrepancy in the Descriptions in a Deed.—In case of a discrepancy between the monuments mentioned in a deed, and the courses and distances therein set forth, the monuments govern.</p> <p>Recitals in a Deed as Evidence.—If a deed executed by one of the parties to an action, and to which the other party is an entire stranger, is used as evidence in that action, its recitals can only be used as simple admissions made by the party by whom it was executed.</p> <p>When the Verdict is against Evidence.—In a trial in an action of ejectment upon a question of boundary, the testimony of five unimpeached witnesses stood opposed to the description contained in a deed to which one of the parties was a stranger, the Court found the fact as recited in the deed. Held, that the finding was so far opposed to the evidence as to justify awarding a new trial.</p> <p>Defense in Ejectment by Grantee against the Grantor.—If one who is not the owner of a lot of land executes a deed of it to another, and the grantor is after-wards placed in possession of the lot by the real owner, he may avail himself of this fact as a defense in ejectment brought against him by the grantee.</p> <p>Grantor may disseize Grantee.—If the grantor in a deed takes adverse possession of the land granted subsequent to his deed, and holds continuous adverse possession for five years, he may set up the Statute of Limitations as a defense in an action of ejectment brought against him by his grantee.</p>

<p>Appeal from the District Court, Seventh Judicial District, Marin County.</p> <p>The complaint averred that Timothy Murphy died in 1853, in Marin County, leaving a will, by which he appointed James Black and James Miller his executors, and that the will was probated; that in 1S54 they qualified; that letters were issued to them, and they entered on the discharge of the duties of the trust, and continued to act until 1S56, when they resigned, and their resignation was accepted by the Probate Court; that plaintiff was a nephew of deceased, and in 1858 was appointed by the Probate Court of Marin County administrator of the estate, and qualified, and letters were issued to him, and that he was still administrator.</p> <p>The action was brought on a bond made by defendant Todd to the former executors, for money held by them belonging to the estate and loaned to Todd, and to foreclose a mortgage given to secure the bond.</p> <p>Defendants first demurred, and after the demurrer had been overruled, answered. The answer denied that the former executors duly resigned or were discharged from their trust as executors, and also denied that letters were duly issued to plaintiff, or that he qualified, or that Black and Miller delivered the bond sued on to plaintiff, of that he was entitled to'collect or receive the money due on the bond. The answer set up as new matter, that it appeared from tlje report of ‘the executors that the bond was of the value of eight thousand dollars, and that when plaintiff was appointed no showing was made of the value of the bond, and that the administrator was required to give a bond in the sum of four thousand dollars only.</p> <p>Plaintiff had judgment in the Court below, and defendants appealed.</p>

<p>Evidence in Forcible Entry and Detainer.—In an action of forcible entry and detainer, the defendant, for the purpose of showing the character and extent of his possession, may introduce in evidence the deed of his grantor, and that his grantor, before plaintiff's entry, took up the land under the Possessory AcUof 1852, and occupied and improved it, even though he failed to comply fully with the Act.</p> <p>Possession op Land.—One who receives a deed of land from another- who is residing on a portion of it, and claiming to the boundaries described in the deed, and who then enters on the possession of his grantor, is, in contemplation of law, in possession of the whole tract described in the deed.</p> <p>Possession Necessary to maintain Forcible Entry and Detainer.—One who in the morning enters upon a portion of a tract of land in the possession of another, and incloses it with a fenne and puts a house on it before sundown, does not acquire such a peaceable possession as to enable him to maintain forcible entry and detainer against the possessor, who at sundown of the same day destroys the house and fence and drives him away.</p> <p>Same.—The plaintiff in forcible entry and detainer must show an actual, peacable, and exclusive possession in himself; a scrambling or interrupted possession is not sufficient.</p> <p>Eight to Protect one’s Possession.—One who is in the possession of a tract of land has the right to resist and expel an intruder if the resistance and expulsion take place before the possession of the intruder has become actual and peaceable.</p> <p>Immaterial Errors.—A judgment will not be reversed for errors which do not injure the complaining party.</p>

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

* The following is a copy of the indictment in this case: “ The above named defendant, Ah Woo, alias Ma Yien Fang, is accused by the Grand Jury of said County of El Dorado by this indictment, of the crime of forgery, committed as follows : The said defendant, Ah Woo, alias Ma Yien Fang, on the — day of February, A. D. 1864, and before the finding of this indictment, at the County of El Dorado and State of California, did feloniously, wilfully, and unlawfully, falsely utter…

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

The defendant was indicted under the Act of the 27th of February, 1864, (Statutes of 1863-4, p. 104,) against breaking and entering, or wilfully and maliciously entering without breaking, in the daytime, any dwelling house, etc., with intent to steal or to commit any felony whatever therein. The indictment contains two counts.

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

<p>What determines the relation op Landlord and Tenant.—If the tenant, after the expiration of his lease, leaves the premises and removes his property therefrom, and notifies the landlord that he delivers him possession, and the landlord takes possession, the relation of landlord and tenant ceases; and if the tenant afterwards enters, the landlord cannot remove him under the thirteenth section of the Forcible Entry and Detainer Act.</p> <p>Relation op Landlord and Tenant.—If - the tenant on the expiration of his lease delivers possession of the premises to the landlord, an intention on his part to afterwards re-enter, and a re-entry without the consent of the landlord, do not restore the relation of landlord and tenant.</p>

<p>Appeal from the District Court, First Judicial District, Los Angeles County.</p> <p>The complaint contained the usual allegations on a promissory note, of which the following is a copy:</p> <p>“San Francisco, April 4, 1861.</p> <p>“$15,000.</p> <p>“Value received, I promise to pay to the order of J. H. Poett, twelve months after date, fifteen thousand dollars, with interest at the rate of one and one-fourth (1|) per cent per month until paid.</p> <p>“Abel Stearns.”</p> <p>“ I agree to pay the above written sum of fifteen thousand dollars in gold coin of the United States.</p> <p>“Abel Stearns.”</p> <p>It then averred that on the 2d day of July, 1861, the defendant Stearns, to secure the payment of the note, executéd to plaintiff a mortgage on certain property (describing it) in Los Angeles. A copy of the mortgage was attached to the complaint. The allegations concerning the mortgage were in the usual form. The complaint also alleged that the parties other than Stearns made defendants then had or claimed to have some interest in or claim upon the mortgaged premises, or some part thereof, as mortgagees, attaching creditors, or otherwise, which interest and claims were, all subsequent and subject to the lien of plaintiff’s mortgage.</p> <p>The prayer was in the usual form in such cases, and for judgment in gold coin, and for such other and further relief as plaintiff might require and to the Court might seem proper.</p> <p>The defendants, Stearns, Heilman, and Domec, demurred to the complaint, because it did not state facts sufficient to constitute a cause of action, and because there was a defect of parties defendant. The Court sustained the demurrer on the ground that the supplement to the note promising to pay in gold coin could not be enforced because it bore no date, and upon failure of the plaintiff to amend, gave judgment for defendants. Plaintiff appealed from the judgment.</p>

<p>Bills for Expenses of Volunteer Companies.—It is the duty of the Boards of Supervisors of the respective counties in this State to audit and allow the bills of organized volunteer companies for rent of armory, etc., and to direct a warrant to be issued therefor, payable out of the county funds in the hands of the County Treasurer,* and if they refuse to issue such warrant in a proper case, a writ of mandate will be issued commanding them to do so.</p> <p>Expenses for Volunteer Companies paid by Counties.—The sums paid by counties for expenses of volunteer companies are to be allowed and credited to such counties by the State Treasurer, in his annual settlements with the County Treasurers.</p>

<p>Appeal frpm the Probate Court, Sonoma County.</p> <p>The facts are stated in the opinion of the Court.</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 motion for a change of venue was based on affidavits. The Court overruled the motion and then overruled the second demurrer. No answer was filed. Plaintiffs recovered judgment, and defendant appealed from the judgment. The other facts are stated in the opinion of the Court.

The petitioner, Edward Ring, was indicted in San Mateo County. The case was transferred to the District Court for trial. On the 23d of March, 1865, the defendant was found guilty by a jury of the crime of manslaughter. The next day he was sentenced by the Court to imprisonment in the State Prison for the term of three years. The Clerk entered in the minutes of the Court the judgment of the Court in. the following form : “The People v. Edivard Ping, March term, 1865.

' This was an action brought,to recover judgment for the sum of six hundred and thirty-eight dollars and ninety-seven cents, being the amount of a special tax levied for school purposes on the property of the appellant, in District Number Four, in San Mateo County, in the summer of 1864. The defendant demurred to the complaint, the demurrer was overruled, and judgment was rendered in favor of plaintiff. The defendant appealed from the judgment.

The Court, charged the jury, at defendants’ request, that the fact that the draft was lost did not destroy the drawer’s liability for the money. The Court, also, at its own instance, charged the jury that if they found that the draft was delivered to defendants to carry and deliver, and defendants knew of its value at the time, and they failed to deliver it, they should find for plaintiff. To this the defendants excepted.

<p>Statement on Appeal to be Served.—If the statement on appeal from a judgment is not served on the respondent’s attorney until more than twenty days after the rendition of judgment, and no extension of time is obtained, a statement is waived, and the appellate Court cannot review any alleged errors, except such as appear in the judgment roll.</p> <p>Statement on Appeal to be Authenticated.—If no amendments to a statement on appeal are served on the appellant, it may be settled by the Judge without notice to the respondent, but it should be authenticated either by the certificate of the Judge or by the stipulation of the parties.</p>

. Appeal from the District Court, Fourteenth Judicial District, Placer County. Plaintiff recovered judgment in the Court below and defendants appealed. The other facts are stated in the opinion of the Court.

<p>Appeal from the County Court of San Joaquin County.</p> <p>The- defendant appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

Defendant appealed from the judgment and from the order denying a new trial. The other facts are stated in the opinion of the Court.

<p>Attachment—When not Void.—An attachment, regular upon its face, is not void because the complaint does not set up a cause of action which would warrant the issuance of an attachment.</p> <p>Where a Defense must be Specially Pleaded.—In an action against a Sheriff for a violation of his duty in the service of an attachment, if he relies on matters occurring after its issuance and operating as a dissolution of the same, such matters must be specially pleaded.</p> <p>Judgment must follow Issues Joined.—If a defense should be specially pleaded, tbe omission to plead it is not cured by the introduction without objection of evidence in support of it, and the finding of the facts in relation to it by the Court.</p> <p>Sheriff’s Duty as to Attachments.—A Sheriff who receives an attachment, regular upon its face, cannot pay over the money obtained by him from the sale of property levied on by virtue of the writ to a junior attaching creditor, because the complaint in the action on which the first attachment was issued did not set forth a cause of action upon which an attachment could issue.</p> <p>How Sheriff should apply Money on Attachments.—When a Sheriff receives money on execution sale of property levied on by virtue of attachments, it is his duty to apply the money in the order of the attachments. The Sheriff has no right to go hack of the process and raise the question as to the validity of the attachments.</p> <p>First and Second Attaching Creditors.—Query. Where two attachments have been levied on the same property, can the junior attaching creditor successfully attack the validity of the first on the ground, that the complaint did not contain a cause of action upon a contract express or implied for the direct payment of money ?</p> <p>Judgment payable in Gold Coin.—A party cannot recover against another a judgment payable in gold or silver coin, on the ground that the other received it for him, in trust, in that form, unless the kind of money received is specially averred in the complaint.</p>

This action was brought upon a written contract, of which the following is a copy : “ Oeoville, August 4, 1863. “ $2,843. ■ “Six months after date, without grace, for value received, I promise to pay to the order of George C. Perkins the sum of $2,843 in gold coin of the standard value of 1860 of the United States of America, with interest at one and one half per cent per month till paid.

<p>Review or Interlocutory Orders.—Interlocutory orders made in the progress of a trial will not be reviewed in the appellate Court unless they are embodied in a statement or bill of exceptions.</p> <p>Order striking out Answer after Trial.—If an answer is filed, raising an issue or issues, and a trial is had, and witnesses are sworn and examined, and the Court takes the ease into consideration, it cannot then strike out the answer of the defendant and enter his default, and render judgment for plaintiff for the amount claimed in the complaint.</p> <p>An Answer stricken out.—An answer, notwithstanding an order to strike it out, is still entitled to its place in the judgment roll.</p>

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

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

<p>Jurisdiction op District Courts in Tax Cases.—The District Courts have no jurisdiction of an action to recover judgment for a tax where the amount sued for , is less than three hundred dollars, and the complaint contains no prayer for the foreclosure of the tax lien.</p>

The People appealed from an order of the County Court granting a new trial. The other facts are stated in the opinion of the Court.

<p>Appeal from the District Court, Fifteenth Judicial District, Contra Costa County.</p> <p>Plaintiff appealed from an order granting a new trial.</p> <p>The affidavit made by appellant in 1860, under the Possessory Act, described the boundaries of a tract of land commencing at a given point, and running thence west forty chains, thence north forty chains, thence east forty chains, and thence south forty chains to the place of beginning. Appellant was residing on the land, and continued to reside there, and made valuable improvements on the same.</p> <p>The affidavit made in 1863 changed the boundaries of the land so as to include the twenty-seven acres in controversy. Appellant never lived on this twenty-seven acres.</p> <p>Appellant claimed that there were certain stakes and monuments marking the boundary of the land he intended to claim by the affidavit of 1860, but that by mistake the lines therein described did not follow the monuments, and that the affidavit of 1863 corrected the mistake.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Vacation op Judgment after Adjournment op Term.—Where a plaintiff fails to appear when a cause is regularly called for trial, and at defendant's request the trial proceeds, and judgment is rendered for defendant, the Court has no power to .relieve the plaintiff from the judgment under the sixty-eighth section of the Practice Act, on the ground of mistake, inadvertence, surprise, or excusable neglect, on a motion made after the adjournment of the term at which the judgment was rendered.</p> <p>Same—If relief can be obtained in such cases, it must be by a motion for a new trial, on the ground of accident or surprise, which ordinary prudence could not have guarded against.</p> <p>Clerk may enter Judgment in Vacation.—If the judgment has been pronounced by the Court, drawn up in writing in the form intended to be entered, signed by the Judge, and filed with the Clerk before the adjournment of the term, it has become the judgment of the Court of the term at which it was rendered, and the Clerk may perform the ministerial act of entering it in the Judgment Book in vacation without further direction.</p>

<p>Appeal from the District Court, Seventh Judicial District, Solano County.</p> <p>The plaintiff commenced his action on the 18th day of June, 1864, alleging that for eight years then immediately preceding he had been in the possession of a parcel of land consisting of twenty-five acres, through which runs the Sulphur Spring Creek in Solano County, which he had used during that time as a garden for raising vegetables for market. That in May, 1856, he constructed a dam upon his land across the creek, and since then had appropriated without hindrance to his own exclusive use for irrigating his garden, all the waters "of the stream ; and he claimed that by reason of his long continued exclusive use of the water he had acquired a right by prescription to the use thereof to the extent and for the purpose of its original appropriation, and then had the right to the flow of the entire water of the creek without obstruction, into the reservoir created by his dam, for the benefit of his land, as a right and privilege appurtenant thereto. He then claims that in 1863 the defendant erected a dam across the stream above the plaintiff’s dam by which "a part of the water was prevented from running down the course of the creek to the plaintiff’s land. That in April, 1864, the defendant constructed other dams across the same stream, and that, by reason of the obstruction and diversion of tile water by these dams the. plaintiff was deprived of his accustomed use of it, to the great injury of his business and to his great damage, and he then alleges the insolvency of the defendant, and also that if the wrongs of which he complains are continued his business and trade will be wholly ruined.</p> <p>The object of the action was, first, to recover damages for the injury already sustained ; second, to abate the defendant’s dams; and third, to obtain an injunction restraining the defendant from obstructing, diminishing, or diverting the waters of the creek from flowing to the plaintiff’s dam.</p> <p>The defendant answered the complaint. The issue joined Was referred to a Court Commissioner, with directions “ to report the facts and law.” Testimony was taken in the case, and the referee found and reported the facts and his conclusions of law in favor of the defendant. This report, as to the facts, was set aside by the Court on the plaintiff’s motion, and a finding of facts, prepared in part by the plaintiff’s counsel, and in part by the defendant’s counsel, was substituted, which, with the conclusions of law drawn by the referee, was adopted by the Court, and judgment was thereupon entered in the defendant’s favor. The plaintiff moved for a new trial. The motion was denied. From this decision and the judgment the plaintiff appealed.</p>

The respondent, Emery, entered into a contract with the Superintendent of Streets in San Francisco on the 25th day of September, 1862, tq grade and macadamize Fremont street from Howard to Mission. The contract was completed January 17th, 1863; The appellant was the owner of a lot fronting on Fremont street, between Mission and Howard. This action was brought to recover the amount assessed on appellant’s lot for the work.

<p>What Constitutes Larceny.—The felonious and fraudulent taking of property with intent to deprive the owner thereof is larceny, even if the defendant did not intend to convert the same to his own use.</p> <p>Instructions must Apply to the Testimony.—It is not error for the Court to refuse to give instructions asked for in a criminal case, which are not’ required by or founded on any part of the testimony in the case.</p>

On the 8th day of March, 1865, four of the Trustees of the State Library held a meeting and ballotted for a Librarian, but failed to elect, their votes being equally divided between two candidates. The Board adjourned without any change in the vote, and made no further effort to elect.

The Act of April 5th, 1861, to fund the indebtedness of Los Angeles County, then outstanding in the form of county warrants, provided that the county should not pay any interest on any warrants issued after July 1st, 1861. In 1864 the county had outstanding a large amount of warrants unpaid, which had been issued under the Act of 1861, and did not draw interest.

<p>Appeal from the District Court, Seventh Judicial District, Sonoma County.</p> <p>The defendant was indicted for the crime of murder, and convicted of murder in the second degree, and appealed.</p> <p>The other facts are stated in the ojnnion of the Court.</p>

<p>This was an original proceeding commenced in the Supreme Court.</p> <p>The other facts are stated in the opinion of the Court.</p>

Plaintiffs recovered judgment in the Court below, and' defendant appealed. The other facts not stated in the opinion of the Court will be found ip 23 Cal. 442, in the opinion delivered by Mr. Justice Crocker.

<p>Principal and Accessory after the Fact.—One indicted for the crime of robbery as principal, cannot be convicted of the offense charged in the indictment if the evidence shows that he was only an accessory after the fact.</p> <p>SAarE.—Upon a trial for robbery, if the evidence is circumstantial and involves the inquiry whether the defendant was guilty, if guilty at all, as principal or as an' accessory after the fact, the Court should instruct the jury, if requested, that the defendant cannot be convicted if he was only an accessory after the fact.</p>

<p>Pre-emption Right to Puplic Land—Proof of.—In an action to recover possession of public land, where the plaintiff- claims to recover by reason of prior possession, and the defendant claims as a pre-emptor under the laws of the United States, he is entitled to prove the necessary facts to establish his preemption right.</p> <p>Same.—Where a defendant has not been called upon to state whether he expected to prove all the facts essential to his defense, his testimony should not be rejected, because his offer does not embrace every fact necessary to establish it.</p> <p>Immaterial Error.—A judgment will not be reversed for an error that could not affect the rights of the parties.</p>

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

The defendant was indicted in Sacramento County for an assault with a deadly weapon, with intent to commit bodily injury upon the person of Anton Taylor, committed on the 30th day of April, 1864, and was convicted, and on the 25th day of November, 1864, sentenced by the County Court. August 15th, 1865, the prisoner applied to the Supreme Court to be discharged on habeas corpus. The other facts are stated in the opinion of the Court.

<p>"When Judgment becomes Final.—When an order for judgment has been made and regularly entered by the Clerk in the minutes of the Court, and the judgment ^ilS ke6CL <*rawn UP ^ f°rm> signed by the Judge, and filed with the Clerk, final judgment has been rendered within the meaning of the terms “rendition of the judgment,” as used in section three hundred thirty-six of the Practice Act, and the time for taking an appeal commences to run.</p> <p>Entry of Judgment by Clerk.—The entry of such judgment in the Judgment Book is a mere ministerial duty to be performed by the Clerk.</p> <p>Time within which Appeal must be Taken.—An appeal from a judgment must be taken within one year from the time of its rendition. The failure of the Clerk to enter the judgment in the Judgment Book at the time it is rendered, cannot extend the time within which to appeal.</p> <p>Same.—The question whether an appeal from a judgment should not be taken within one year from the time when the order for judgment is made and entered in the minutes of the Court, discussed.</p> <p>Appeals from Orders.—The questions discussed in the opinion as to the time within which appeals must be taken from various orders.</p> <p>When Execution may be Issued.—The question discussed in the opinion as to the time when an execution can be issued on a judgment.</p>

<p>Circumstantial Evidence in Criminal Case.—An instruction to a jury in a criminal case that they have a right to take into consideration all the surrounding circumstances in making up their verdict, is to he understood as limited to the circumstances in evidence. x</p> <p>Possession op Stolen Property.—In a trial for larceny, where the testimony for the people consists of many suspicious circumstances, one of which is the possession of the property stolen hy the defendant soon after the larceny was committed, if the defendant fails to account for this possession it is a circumstance to be taken into consideration with other circumstances tending to show his guilt.</p> <p>Instructions to. Jury.—If instructions- given in a criminal case embody the law of the case, it is not error to refuse other instructions which also embody the law.</p> <p>Rebutting Testimony for the Prosecution.—The defendant in a criminal action is as much bound to produce testimony to rebut testimony for the prosecution which merely tends to prove his guilt as any other testimony introduced by the prosecution.</p>

The relator commenced the action on the 6th day of April, 1861, and upon judgment having been rendered against him in the Court below, appealed. The other facts are stated in the opinion of the Court.

! The defendant was indicted for the crime of murder, on the 11th day of February, 1865. On the 15th day of March, 1865, the case was set for trial in' the District Court for the 4th day of April, 1865. On the last named day the defendant applied for a continuance, on the ground of the absence of Margaret Dodge, one of his witnesses.

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

<p>Evidence to show Insanity upon Plea of Not Guilty.—Upon a trial for murcler, where the defendant pleads not guilty, he is entitled to have testimony introduced on his behalf to show his insanity at the time the alleged offense was committed.</p> <p>Error in Law in Criminal Case.—If in a criminal case the defendant is tried on a good indictment, and convicted and^entenced, and an error of law occurs in the progress of the trial to defendant's prejudice, and he appeals, the judgment must he reversed, although the defendant does not ask for a new trial.</p> <p>Power of Court to grant a New Trial in a Criminal Case.—If the defendant in a criminal case is convicted and appeals, and the judgment is reversed, the appellate Court may order a new trial, even though the defendant does not move for a new trial, and denies the power of the Court to grant a new trial.</p> <p>A Reversed Judgment in a Criminal Case no Bar to a New Trial.—If the defendant in a criminal case is convicted and appeals, and asks for a reversal of the judgment, but does not move for a new trial, a reversal of the judgment and an order for a new trial take from him the right of setting up the former trial and . conviction in bar of another trial.</p>

The defendant was indicted for killing one James Drew. This was the second trial of the defendant on the indictment. The defendant appealed from the j udgment and order denying a new trial. The other facts are stated in the opinion of the Court.

<p>To compel A Reconveyance of Property obtained by Fraud.—If a corporation is induced by the fraudulent representations of a part of its stockholders to make a conveyance of its property, and the grantee, in pursuance of a previous arrangement, conveys the property to the stockholders who committed the fraud, the innocent stockholders cannot maintain an action in equity to compel a conveyance to them of such portion of the property as they owned of the stock of the corporation.</p> <p>Query ?—Could the innocent stockholders maintain an action against those committing the fraud for damages?</p> <p>Query?—Would equity compel a reconveyance of the property to the corporation in an action in the name of -the corporation, or if the corporation refused to act in an action commenced in the name of the innocent stockholders in which the corporation was made a party defendant?</p> <p>How equity will relieve against Fraud.—If the title to property has been acquired through fraud, equity will grant relief by undoing what has, been done, and placing the title where it was before. x</p>

<p>Ouster of Tenant in Common by Co-tenant.—A finding, in a special verdict, in an action of ejectment brought by a tenant in common against a co-tenant who is in the occupancy of the land held in common, that the plaintiff demanded of his co-tenant to be let into the immediate possession of the same, and that the co-tenant refused, is not a finding of an ouster, either in terms or by legal conclusions.</p> <p>The fact of Ouster of a Co-tenant must be found.—The law will not presume from acts of ownership by one tenant in common, nor from his refusal to allow a co-tenant to enter, nor from both combined, that there was an intent to oust, hut the intent to oust must be established as a fact by the finding of the jury.</p> <p>Ouster of Co-tenant may be Inferred from Demand and Refusal.—If a tenant in common demand of his co-tenant, who is in the occupancy of the common property, to be let into possession, and the co-tenant refuses aud does not give any explanation of his refusal, the Court would be justified in directing or advising the jury to infer an ouster.</p> <p>Purchase of ax Interest in Land by one who has taken Possession wrongfully.—If one who takes possession of land unlawfully afterwards becomes a tenant in common in the ownership of the same, the moment he becomes such tenant in common his possession loses its hostile character, and the presumption is that it remains amicable until the contrary is made to appear.</p> <p>Damages in Ejectment.—In ejectment by a tenant in common against a co-tenant who took possession wrongfully, but afterwards became a co-tenant, plaintiff cannot in that action recover damages for the period while the defendant was unlawfully in possession.</p> <p>Damages is Ejectment against Co-tenant.—A tenant in common, in ejectment against his co-tenant, cannot in that action recover damages or mesne profits for the period during which the possession of the co-tenant was not adverse.</p> <p>Damages after Ouster of Co-tenant.—A tenant in common who is ousted by a co-tenant, may recover damages in ejectment from the time of the ouster, according to his right.</p>

<p>Failure to File Briefs or Points.—When the time for filing briefs has expired, and no briefs or points have been filed, and the case is taken up for decision in its proper order, the judgment "will be affirmed.</p>

<p>Appeal from the County Court, Butte County.</p> <p>The defendant appealed. .</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Eleventh Judicial District, El Dorado County.</p> <p>The defendant was a corporation organized for mining purposes in El Dorado County, having its place of business at the Penobscot House, in said county.</p> <p>The plaintiffs, who were stockholders in the corporation, commenced the action to enjoin the corporation from removing its place of business to San Francisco.</p> <p>A preliminary injunction was granted. The defendants gave notice that they would move the Court Commissiouer of El Dorado County for a dissolution of the injunction. The injunction was dissolved. The plaintiffs appealed from the order dissolving the injunction.</p>

<p>Certificate of Purchase of Seminary Land.—An unintentional mistake or misrepresentation in an affidavit made by ail applicant to purchase land of this State as a portion of the seventy-two sections granted by Congress to thiS State for a seminary of learning, does not render the certificate of purchase void, so that it may be attacked collaterally by one who brings an action against the purchaser to recover possession of the same, and docs not connect himself with the title of the Government-.</p> <p>When State Certificate of Purchase Void.—The question discussed in the opinion whether a certificate of purchase of land, being a contract between the Government and the purchaser, will be declared void for fraud, unless under similar circumstances a contract between two private persons would be held void.</p> <p>Can State Land Certificate be attacked Collaterally.—Question discussed in opinion whether a State certificate of purchase of land, if not absolutely void, may be attacked collaterally.</p> <p>State Certificate of Purchase of Land.—A certificate of purchase of land from the State is prima facie evidence of legal title in the purchaser.</p>

This was an original proceeding commenced in the Supreme Court. On the 26th of March, 1864, Joel Harlan and Elisha Harlan, two sous of George Harlan, the deceased, filed a petition in the Probate Court of Santa Clara County, praying that letters of administration be issued to Lucien B. Huff upon the estate of the deceased.

Appeal' from the County Court, City and County of San Francisco.

The personal judgment in case of Hunt v. Culver was as follows: “ Wherefore, by reason of the law. and the finding aforesaid, it is ordered, adjudged, and decreed, that B. T. Hunt, plaintiff, have and recover of and from E. P. Culver, defendant, eight hundred and nine dollars and twenty-three cents debt, with interest thereon at the rate of two and a half per cent per month from the date hereof until paid; together with sixteen dollars and thirty-five cents costs of suit.”…

<p>Forcible Entry and Detainer.- Where one Person has a house upon portionof a tract of land of one hundred acres which he is ~ enters upon another part of the tract and erects a house, without doing anything further, this act does not constitute a forcible entry upon and detainer of the whole tract. Forcible Entry and Detainer.—Where one person</p> <p>Damages in Forcible Entry and Detainer.—In forcible entry and detainer, if the proofs show that plaintiff was ousted from a portion only of the tract of land described in complaint, he is not entitled to recover damages for the detention of the whole.</p> <p>Title Deeds as Evidence in Forcible Entry and Unlawful Detainer.—In an action under the Forcible Entry and Detainer Act, if the plaintiff relies on an unlawful entry and a subsequent forcible detainer, a deed of conveyance of the property to the defendant or his lessor is admissible in evidence in his behalf to show the good faith of his entry; but if the plaintiff relies on a forcible entry and detainer, such deed is not admissible.</p> <p>Violence, or Fear of Violence, to be shown in Forcible Entry and Detainer.—If the plaintiff seeks to recover on the ground of a forcible entry and detainer, and the proofs show that there was no actual force, and that he neither apprehended nor had any ground to apprehend any positive act of violence from the defendant, he cannot recover.</p> <p>Order granting a 3STew Trial.—An order vacating a verdict or finding and granting a new trial, necessarily vacates the judgment in the case resting on such verdict or finding.</p>

The Court on the trial found the following facts : “ That on the 1st day of May, A. D. 1862, plaintiff was in the actual possession as owner in fee simple of the premises described in the complaint, and that plaintiff was lawfully entitled to the possession thereof at the time of the commencement of this action ; and that on said day defendant unlawfully entered and excluded plaintiff therefrom, and still withholds the possession thereof from the plaintiffand the statement…

<p>Who may Sue for Damages on an Injunction Bond.—M., a Sheriff, had in. his hands money belonging to L., which he had collected on an execution in favor of L. and D., and against S. W. and C. commenced an action against M., L., and. others, to enjoin M. from paying the money to L., and procured a preliminary injunction, which was served on M. alone, but L. appeared in the action and defended. The injunction bond ran to all the defendants. - Held, that L. could maintain an action for damages on the injunction bond.</p> <p>Several Action on Injunction Bond.—Each of the parties to whom an injunction bond is made payable may sue on the same for his several damages, even if' the bond is made payable to the obligees jointly.</p> <p>Damages for Detaining Money when Enjoined.—Where an officer is enjoined from paying over money in his hands, legal interest only can be recovered as damages for its detention in an action on the injunction bond.</p> <p>Admission of Erroneous Evidence.—If erroneous evidence is admitted, and the record does not negative the presumption that injury was sustained thereby, the judgment will be reversed.</p>

The plaintiffs were physicians and surgeons at San José, and on the 3d day of January, 1862, entered into a contract with the Board of Supervisors of Santa Clara County and ex officio Directors of the Santa Clara County Infirmary, to prescribe for and attend all the inmates of said Infirmary who might be subjects of fhedical and surgical treatment for one year thereafter. In February, 1862, the small pox appeared in San José.

<p>Appeal from the District Court, Sixth Judicial District, Sacramento County.</p> <p>The complaint averred that John Burton and Ed. McCarty, who were engaged in the mercantile business in Sacramento, on the 2d day of October, 186], confessed two judgments, one in favor of C. H. Burton, a brother of John Burton, for twenty-four thousand dollars, and the other in favor of E. P. Spillman, for about tén thousand dollars, and that executions were issued on the judgment and immediately levied on the goods of Burton & McCarty, and that later in the same day, Burton & McCarty confessed a judgment in favor of plaintiff for the sum of one thousand eight hundred dollars, and that an execution was issued and levied on the same goods, and that Jefferson Wilcoxson and Jackson Wilcoxson, later in the same day, levied on the same goods, and also obtained- judgment against Burton & McCarty, and that the judgments in favor of C. H. Burton and E. P. Spillman were fraudulent. That the goods levied on had been sold by the Sheriff for six thousand dollars, by consent of parties litigant in the case of Wilcoxson v. Burton, 27 Cal. 228, and the money deposited in Court and paid over to the County Treasurer, and that the Wilcoxsons had obtained the money. That plaintiff had a lien on the money, prior to the Wilcoxsons. Plaintiff prayed that the Wilcoxsons might be adjudged to hold the money in trust for him, or sufficient thereof to satisfy his judgment, and for judgment against them for that amount.</p> <p>The averments as to the confession and entry of plaintiff’s j udgment, were in the following language :</p> <p>“ Plaintiff" further shows that the said defendants, Burton & McCarty, on the 2d day of October aforesaid, in the District Court of the Sixth Judicial District, Sacramento County, upon request of plaintiff, confessed judgment in favor of plaintiff for the amount then due on said due bill, to wit: one thousand eight hundred dollars; and that judgment was thereupon regularly entered in said Court on said day for- said amount, in favor of plaintiffs, and against said Burtoú & McCarty.”</p> <p>Defendants Wilcoxson demurred to the complaint. Judgment was rendered in favor of the defendants, and plaintiff appealed.</p>

The defendant set up in his answer that prior to the commencement of the action the plaintiff had filed his petition in insolvency and asked to be discharged from his debts. During the pendency of this suit plaintiff had obtained his discharge in insolvency, and the Sheriff had been appointed assignee. On the trial defendant offered in evidence the judgment roll in the insolvent case, but on objection of plaintiff’s counsel, it was rejected.

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

<p>Action on Lost Note.—In an action upon a lost note the better practice is to tender indemnity before suit and allege the same in the complaint; but such a course is not absolutely necessary. A failure to do so is not fatal to the cause of action; it only affects the question of costs. In other respects, a tender at the trial is sufficient.</p> <p>Costs in an Action on Lost Note.—Where there has been no tender of indemnity before suit, the plaintiff is not entiled to costs unless the defendant has waived a tender, in which case the costs are in the discretion of the Court.</p> <p>Note Destroyed by Fire.—On the question of indemnity no distinction can be0made between a note which has been destroyed, and one which has been merely lost.</p> <p>Insufficient Denials.—Where the pleadings are verified and the complaint contains an allegation that the note in suit was assigned by the payee to the plaintiff for a valuable consideration by an instrument in writing, the fact of the assignment is not put in issue by a denial that the assignment was in writing and for a valuable consideration.</p>

Charles Doane was Sheriff of the City and County of San Francisco, and as such, an execution on a judgment in favor of N. C. Lane and against Harvey Dickinson was placed in his hands. By virtue of the execution, Doane seized personal property claimed by plaintiffs, and they brought an action against him for the wrongful taking and conversion of the same.

The plaintiff appealed from the judgment and from an order denying a new trial. The other facts are stated in the opinion of the Court.

<p>Motion for ¡New Trial in Criminal Case for Error in ¡Refusing a Continuance.—Where the defendant in a criminal case moves for a new trial on the ground that the Court erred in not granting him a continuance by reason of the absence of his witnesses, he should procure the affidavits of the witnesses to show that they could testify to the facts desired to he proved by them.</p> <p>¡Denial of Continuance in a Criminal Case.—If, on application' for a continuance made on affidavit, on the ground of the absence of witnesses in a criminal case, there is a counter affidavit tending to show that the application is not made in good faith, the appellate Court will not disturb the judgment because the continuance was denied.</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>Six Months' Residence required for a Divorce.—The Court has no jurisdiction to grant a divorce unless the applicant aver and prove that he or she has been a bona fide resident of this State six months before making the application.</p> <p>In a Divorce Suit, Residence must be Proved.—An averment in a complaint for a divorce, that the applicant has been six months a resident of this State, and a failure to deny the averment in the answer, docs not do away with the necessity of proving the residence.</p>

<p>Oral Testimony to snow that Land is not Swamp and Overflowed.—In an action to recover possession of land, where one of the parties claims the same by-virtue of some right or title derived from the United States, and the other claims the same as a purchaser from the State'as swamp and overflowed land; the party-claiming under the United States has a right to introduce oral testimony to show that the land is not swamp and overflowed.</p>

<p>Commissioners of Funded Debt of San Francisco.—The Commissioners of the Funded Debt of Sun Francisco are not officers "within the meaning of Article XI, Section seven, of the Constitution, and the term during which the Commissioners are authorized to act is not limited to four years.</p>

<p>What is Adverse' Possession of Public Lands.—To constitute adverse possession of public land, it is sufficient if the party in possession and claiming that his possession is adverse as against a prior possessor, claims the right to the possession as against all the world except the United States. It is not necessary that he possess under color of title.</p> <p>Proof of Attempt to pre-empt to show Adverse Possession.—Where one enters upon public lands in the prior possession of another, and the prior possessor brings an action against him to replevy hay cut by him on the land, he has a right to prove that he has filed his declaratory statement of intention to preempt, and possesses the necessary qualifications of a pre-emptor, to show his adverse possession.</p> <p>Replevin by a Prior Possessor for Hay cut on Public Land. — Replevin for hay cut on public lands cannot be maintained by a prior possessor against one who was in adverse possession, claiming a pre-emption right when he cut the hay.</p> <p>Personal Action for Crops cut on the Suscol Ranch.—A purchaser from Vallejo of a portion of the Suscol Ranch, who entered into possession, cannot maintain a personal action for crops cut on the land by one who under a claim of a pre-emptioii right entered on his possession in 1862.</p> <p>Personal Action to try Right to Possession of Public Land.—A personal action cannot be made the means of litigating and determining the right to the possession of real property as between conflicting claimants to the possession where the title is in the United States.</p>

<p>Assessment of Personal Property.—-Personal property may be assessed for taxes in bulk, without any statement of the character of the property.</p> <p>Assessment op Individual Property to a Emit.—An assessment for taxes of the personal property of a former member of a firm made to the firm after its dissolution, is void. Such assessment cannot be legalized by legislative enactment.</p>

<p>Purchaser of Land without Notice of Prior Unrecorded Mortgage.—A judgment creditor who buys at Sheriff’s sale the land of the judgment debtor, and receives a Sheriff’s deed without knowledge of a prior unrecorded mortgage given by the judgment debtor on the land, must show that his Sheriff’s deed was first recorded, before he can claim to ho a purchaser in good faith and for a valuable consideration.</p>

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

<p>Pleadings in Action on Insurance Policy.—If a policy of insurance contains a clause that if the assured keep gunpowder, the same shall be void, and the complaint avers that the plaintiff faithfully complied with the terms of the policy, and the answer does not deny the same, nor set up as hew matter the keeping of gunpowder as a defense, the fact that gunpowder was kept cannot he insisted on as a defense.</p> <p>Judgment for Interest when Complaint does not Ask for it.—If an answer is filed, judgment may he rendered for the principal and interest added thereto, although the complaint only pray for judgment for the principal.</p>

<p>Appeal from the District Court, Second Judicial District, Butte County.</p> <p>The plaintiff appealed from the judgment.</p> <p>The other facts are stated in the opinion of the Court.</p>

This was an original proceeding commenced in the Supreme Court, to obtain a writ of mandate requiring the County Judge of Solano County to proceed and try a cause which had been appealed from a Justice’s Court. The other facts are stated in the opinion of the Court.

. Buffandeau, on the 28th of March, 1859, sued the Sheriff for selling the cattle under the execution, and recovered judgment against him for about four thousand five hundred dollars, damages and costs. The bond of indemnity was then assigned to the appellant, and this action was instituted by him against the respondents. The plaintiff appealed. The other facts are stated in the opinion of the Court.

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

<p>Appeal from Order made after Final Judgment. — On an appeal from an order made after final judgment, the transcript should contain a-copy of the order appealed from, and copies of all the papers used on the hearing when the order was made by the Court below.</p> <p>An Appearance in an Action.—A notice given by an attorney on behalf of defendant to plaintiff's attorney that defendant will move before a Court Commissioner that an attachment issued in the case be dissolved, does not constitute an ' appearance in the action.</p> <p>Judgment by Default.—A notice that defendant will move "before a Court Commissioner to dissolve an attachment issued in a cause is not such an appearance in an action as will authorize the Clerk to enter a judgment by default.</p> <p>Judgment by Default—When Void.—A judgment entered by the Clerk by default, where there has been no service of summons or appearance, is utterly void.</p>

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

The complaint described the tract of land, and alleged that plaintiff was the owner of it; that a petition was ¡iresented to the Board of Supervisors of Colusa County, praying for the location and establishment of a public road from the Town of Colusa to the northern boundary line of Colusa County; that ^ the Board appointed viewers to survey and lay out the road ; that on the day that these proceedings were had, the plaintiff presented his petition protesting against and…

There were several defendants in the action, and upon overruling the demurrer, the Court entered a default against McLaughlin. The attorney did not ask for leave to answer for McLaughlin. McLaughlin alone appealed. The other facts are stated in the opinion of the Court.

The following was the original complaint in this action: “The plaintiff, a body corporate under the laws of the State of California,… Held: enjoyed, and possessed by the plaintiff, as a location for a dam to turn the waters of the said South Yuba River into its flume, canal or ditch, and that upon said location and premises said plaintiff had expended large sums of money; that the defendants in the above entitled cause afterwards, to wit: on or about the sixteenth day of…