Volume 29 — California Reports

<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>Absolute Deed given as a Mortgage.—A clear case ought to be made to justify a jury Or a Court in finding upon parol testimony that a deed absolute on its face is a mortgage.</p> <p>Farol Testimony.—Parol testimony is admissible to show that a deed absolute on its face is a mortgage.</p>

Jack Hina died at the City of San Francisco, intestate, on the 3d day of October, 1850, leaving Mary Hina, his widow, him surviving, his sole heir. The said Mary Hina, and the defendant Henry 0. Blank-man, were appointed administrators of the estate of said Jack Hina, deceased, and duly qualified as such, and took upon themselves the duties of such administrators.

<p>Jurisdiction op Court op Equity where there is a Remedy at Law.—A Court of equity has jurisdiction at the suit of the judgment creditor who has purchased land at Sheriff’s sale, and received a Sheriff’s deed therefor, to annul and set aside, as a cloud upon title, a deed of the land given before the recovery of judgment by the judgment debtor, without consideration, and to defraud the creditor.</p> <p>Equity and Law Jurisdiction.—Before a case can ho considered as beyond the reach of a Court of equity, it must be made to appear that the legal remedy would be adequate and complete.</p> <p>Complaint in Action by Creditor against Debtor.—The complaint, in a suit in equity brought by the judgment creditor who has a Sheriff's deed of land, to set aside and cancel a deed of the same given by the judgment debtor before the recovery of judgment to defraud the creditor, need not aver that the plaintiff has exhausted his remedy at law hy issuing an execution and having it returned nulla bona.</p> <p>A Cloud on Title may be removed by One not in Possession.—A judgment creditor need not be in possession of land to enable him to maintain a suit in equity, after he has a Sheriff's deed, to cancel a deed of the same given by the debtor to defraud him before he recovered judgment.</p> <p>Complaint by Creditor to cancel Fraudulent Deed of Debtor.—A creditor who has purchased land of the debtor at Sheriff's sale, and obtained a Sheriff’s deed therefor, in a complaint to cancel a deed given by the debtor to defraud him before judgment was recovered, need not aver that the debtor was insolvent when he made the deed.</p> <p>Deed to defraud Creditors.—A deed of land may be made to hinder, delay, and defraud creditors by a rich man as well as one who is insolvent.</p> <p>Creditors Bill and Suit to cancel Fraudulent Deed.—There is a distinction between a creditor's bill and a suit in equity by one who has a Sheriff's deed of land, to cancel a fraudulent deed of the same made by a debtor before the Sheriff's sale or recovery of judgment.</p> <p>Limitation of Action to cancel Fraudulent Deed.—The judgment creditor who has received a Sheriff’s deed of the debtor’s land, may bring an action to cancel a fraudulent deed of the same made by the debtor before judgment, at any time within three years after the execution and delivery of the Sheriff's deed.</p> <p>Communication from Client to Attorney.—Whether a communication by a client to his attorney was made in confidence, is a question of fact to be disposed of by the Court.</p> <p>When Attorney may testify to Client's Communication.—If the attorney, while managing a suit for the client, receives a deed of the client's property without consideration, and then, at the client's request, deeds the property to another person without consideration, these facts are not privileged communications, and the attorney may be required to disclose them as a witness in a suit by a creditor to cancel the deeds.</p> <p>Client and Attorney—Confidential Communications.—If, pending the relation of client and attorney, the client communicates to the attorney a fact foreign to the object for which the attorney was retained, the communication is not confidential.</p> <p>Privileged Communications from Client to Attorney.—If an attorney is retained in an action, and the client after final judgment makes disclosures respecting the subject of the foregone employment, the communications are not privileged.</p> <p>Commissioner to execute Deed.—The appointment of a Commissioner by the Court, in a final decree to execute a deed, if the defendant fail to do so within a given time; Held, not to justify the reversal of the judgment.</p>

This was an action for the recovery of money alleged to be due for work and labor. The defendant demurred, the demurrer was overruled, and ten days were given to answer. The ten days having expired, and no answer having been filed, on application of plaintiff, the Clerk entered judgment by default against the defendant.

The Court rendered a personal judgment against the owner of the lot, but did not order a sale of the lot. The other facts are stated in the opinion of the Court and dissenting opinion of Mr. Justice Currey.

<p>Release of Liability of Sureties on Executor’s Bond.—If, in an action against the executors of an estate, brought by the legatees to recover a judgment for money found to be in the hands of the executors, and adjudged- to be paid to the legatees by the Probate Court, a judgment is entered by consent of the parties under a stipulation in writing, and made a part of the judgment, payable in instalments thereafter, the sureties, not consenting to the arrangement, are released from their liability on the executor’s bond.</p>

On the 27th day of September, 1862, William H. Orr, and C. M. Orr, his wife, executed to C. A. Brown a mortgage on a tract of land they resided on to secure the payment of the sum of one thousand eight hundred dollars. July 22d, 1863, Orr made and recorded a declaration of homestead on the land so mortgaged to Brown. On the 8th day of November, 1863, Orr died intestate, leaving him surviving his wife and two infant children.

The cause was tried in September, 1863, by the Court, without a jury. The decision was made and judgment filed January 13th, 1864. The other facts are stated in the opinion of the Court.

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

On the 27th day of.September, 1862, William H. Orr, and C. M. Orr, his wife, gave their joint and several promissory note to the plaintiff, and to secure the same, executed to plaintiff a mortgage on a tract of iand. William H. Orr afterwards died, leaving him surviving his said wife and two infant children, Ida Orr and Emma Orr. .

<p>Improvement of Streets in San Francisco.—The Act of 1862 making the owner of a lot fronting on a public street in San Francisco personally liable to a contractor for an assessment on the lot for improvements on the street in front of the lot, and giving the contractor also a lien on the lot for the same, is not unconstitutional.</p> <p>Cases Affirmed.—Emery v. San Francisco Gas Company, 28 Cal. 345; and Emery v. Bradford, ante, 75, affirmed.</p>

This was an action to recover the sum of six hundred dollars damages for the diversion by the defendant of the waters of the Middle Fork of the Mokelumne River, in Calaveras County, away from the ditch or canal known as the Sandy G-nlch, or Harris’ Ditch, and for an injunction to prevent further diversion during the pendency of the action, and for a perpetual injunction upon final hearing.

<p>Sixth Section of Consolidation Act of San Francisco.—The clause in the sixth section of the Act of 1862, amending the Consolidation Act relating to San Francisco, allowing the owners of the major part of the frontage of lots liable to be assessed for street improvements to take a contract at the price awarded without having put in a hid, means in those cases where a small street terminates in a principal street, the owners of the major part of the frontage on the principal street.</p> <p>Completion of Street Contract in San Francisco.—The owner of a lot sued for street improvements in San Francisco cannot show in defense that the contractor did not perform the work according to his contract, if the Superintendent of Streets has accepted the work as completed. His remedy is an appeal from the decision of the Superintendent to the Board of Supervisors.</p> <p>Resolution to do Work on a Street in San Francisco.—Under the provisions of section three of the Act of 1862, the Mayor of the City and County of San Francisco is not required to sign a resolution of the Board of Supervisors declaring their intention to improve a public street.</p> <p>Assessment for Street Improvements Assignable.—A demand by a contractor against the owner of a lot in San Francisco for an assessment on the lot for street improvements, is assignable.</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>

Plaintiff recovered judgment, and defendants, who were the sureties on the undertaking on appeal, appealed. The other facts are stated in the opinion of the Court.

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

Plaintiff recovered judgment for the sum of two thousand two hundred and fifty dollars, and defendant appealed. 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>Suit by Assignee op a Claim.—An absolute assignment of a demand enables the assignee to sue for and recover the whole debt, even though by the assignment be acquired only a portion of the demand.</p> <p>Intervention by Part Owner op Claim Sued on.—If the owner of a claim assigns it absolutely, retaining, however, an interest in it, be may intervene to protect his interest in an action brought by the assignee to collect the same, and if he does not intervene, he is bound by the judgment.</p> <p>Evidence op Admission op Sum due on a Contract.—If a contract in writing is made by a person to repay such sums as may afterwards be advanced to the agents of a toll road company, a statement in writing, signed by him afterwards, admitting that the toll road company is indebted in a certain sum for money advanced on the contract, is admissible in evidence in an action on the contract brought against him.</p> <p>Contract to pay Money—Statute op Frauds.—A contract in writing, agreeing to pay to the party of tho second part such sums as he may afterwards advance to a foreman of a toll road company, is not a promise to pay tho debt of another, and not within the Statute of Frauds.</p> <p>Mistake in written Admission—Parol Proof of.—A written admission that a certain sum is due on a contract, signed by the party making the admission, does not estop him from showing by parol testimony that there was a mistake in the admission.</p>

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>The complaint averred that the plaintiff was the owner of a lot situated on the water front of the City and County of San Francisco, and that the water on the easterly side of and adjoining the lot was a highway and navigable for boats and vessels, and that portion of the bay was the property of the State, and that boats and vessels had been in the habit of frequenting there for trade and commerce, and that plaintiff had erected valuable improvements on his lot, and derived great pecuniary advantage from.the said commerce, and that defendant had "driven piles and constructed tenements in the bay on the easterly side of plaintiff’s lot by which boats and vessels were prevented from approaching his lot. The prayer asked for damages, an injunction, and that the piles and tenements be abated as a nuisance. The defendant'demurred to the complaint, the demurrer was sustained, plaintiff declined to amend, and judgment was rendered for defendant. Plaintiff appealed from the judgment.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Fourth Judicial District, Contra Costa County.</p> <p>This was an action to recover possession of a tract of land containing eight hundred and fifty acres, parcel of the Rancho Laguna de los Palos .Colorados, granted by the Mexican Government to Juan Bernal and Joaquin Moraga, and for damages for its detention.</p> <p>Juan Bernal died in 1847. Plaintiff offered in evidence, as a conveyance of real estate, the will of Bernal, made in March, 1847, with the proof of its execution by one of the subscribing witnesses thereto before a Notary Public, and with a certificate of its record as a deed in the records of Contra Costa County. Defendant’s attorney objected to the same because its execution had not been proven, but the Court overruled the objection. Plaintiff then proved that by proper mesne conveyances he had acquired the interest of the devisees in the will. It was admitted that the devisees in the will were the heirs at law of Bernal. ■</p> <p>The defendant, in his answer, admitted that the plaintiff was a tenant in common with him in the premises. The plaintiff also to prove an ouster offered in evidence the separate answer of the defendant in an action to recover the same land, commenced by the plaintiff against the defendant and •others in the District Court of Contra Costa County, on the 20th day of November, 1862, in which answer the defendant had denied plaintiff’s title to the demanded premises, or to any portion thereof, and set up title in fee in himself.</p> <p>After the adjournment of the term at which the cause had been tried, and the findings of fact filed and judgment entered, the Judge corrected his findings of fact by reducing the amount of damages found.</p> <p>The other facts are stated in the opinion of the Court.</p>

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

The action was brought for holding over after the expiration of the lease. 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>This was an action to have the deed of the plaintiffs to the defendant, so far as the same included the land in the possession of Gish, declared fraudulent and void, and to compel the ' defendant to reconvey the same to plaintiffs. Plaintiffs recovered judgment, and on application of defendant a new trial was granted. Plaintiffs appealed from the order granting a new trial.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Power of Mayor and Common Council of San José to Sue.—The Mayor and Common Council of the City of San José can sue in the corporate name for the recovery of such real property as belongs to the city.</p> <p>Power of Mayor and Common Council of San José to Contract.—The Mayor and Common Council of the City of San’José have no power to enter into a contract by which the city becomes obligated to pay an attorney at a future time a sum of money, if he succeeds in placing the city in possession of certain real estate, unless there is money in the Treasury at the time to pay the same, after paying the expenses of the city government and all other demands legally due.</p> <p>Contract by San José Creating Debt to arise in Future.—The Mayor and Common Council of San José have no authority to bind the city by the creation of a debt to arise in future, unless there is money in the Treasury at the time to pay the same, after paying the expenses of the government and all other demands legally due.</p> <p>Contract op Municipal Corporation.—A municipal corporation is not bound by a contract made by its officers, unless the Act of incorporation delegated the power to make it.</p> <p>Contracting with Municipal Corporation.—Those who contract with a municipal corporation are bound to know the extent of the power of its officers.</p> <p>Evidence in Suit against San Jose.—In a suit against the Mayor and Common Couhcil of the City of San José on a contract creating a debt, the defendant may prove that at the time the contract was made there was no money in the City Treasury except what had been appropriated to pay current expenses of the city-government and its legal indebtedness.</p>

<p>Action to Restrain a Sale by an Administrator.—A sale by an administrator of land once the property of the intestate, but which he is alleged to have sold during his lifetime, will cast such a cloud on the title of the intestate's prior grantee as will enable him to maintain an action to restrain the sale.</p> <p>One not in Possession may enjoin Sale of Land.—The owner of land not in possession, may maintain an action to restrain a sale of the same by his own grantor, which would cast a cloud upon his title.</p> <p>Denials in an Answer.—An allegation in an answer by an administrator that the defendant “avers on information and belief that no such deed or deeds were ever executed," is a sufficient denial of an averment in the complaint that defendant’s intestate executed and delivered the particular deeds referred to.</p> <p>Evidence to prove Sale of Land by Intestate during his Lifetime.—Proof that the intestate stated in his lifetime that he did not own any interest in land, that he had sold out, and of his allowing others to deal with the land as their own, is not evidence sufficient to sustain an allegation in a complaint against the administrator that the intestate executed and delivered deeds of the land.</p>

The plaintiff recovered a money judgment in the Court below, and defendant filed a statement on motion for a new trial. Notice was given for a settlement of the statement on a day named, but before the time defendant paid the judgment, and plaintiff’s attorney entered a satisfaction. Neither party appeared at the time named for a settlement of the statement.

The following is the bond given to the Sheriff on which suit was brought: “Know all men by these presents, that we, Domingo Abadie & Brothers as principals, and Albert Packard and Lewis T. Burton as sureties, are held and firmly bound unto Thomas Dennis, Sheriff of the County of Santa Barbara, in the sum of twenty-five hundred dollars, lawful money of the United States, for the payment of which, well and truly to be paid to the said Sheriff or his assigns, for which payment,…

The plaintiffs’ grantors, in the beginning of 1850, erected a mill on the banks of Bear River, and appropriated water from the stream to propel its machinery. Afterwards defendants located a mining claim below the mill, and erected a dam to turn the water of the stream on to the bank to work the claim. Plaintiffs complained that the backwater from the dam impeded their waterwheel. The other facts are stated in the opinion of the Court.

This was a proceeding commenced in the Supreme Court to procure a writ of mandate. The other facts are stated in the opinion of the Court.

<p>Forcible Entry will not lie against a Sheriff for serving "Writ of Restitution.—An action under the Act concerning forcible entries and unlawful detainers will not lie against a party who has been put in possession by a Sheriff in good faith, by virtue of a writ of restitution, even if the person turned out, and who brings the action, was one whom the officer could not lawfully dispose sess by virtue of the writ.</p> <p>Sheriff not Guilty of Forcible Entry in serving Writ of Restitution.— A Sheriff is not guilty of a forcible entry, if, acting in good faith, by virtue of a writ of restitution, he removes from the premises a person against whom the writ does not run, and who is not in privity with any one against whom the writ does run. '</p> <p>Incompetent Testimony Admitted.—If incompetent testimony is admitted without objection, the Court will treat the testimony as competent on motion for non-suit and on motion for a new trial.</p>

The notice of appeal stated that an appeal was taken from the order of the Probate Court made September 3d, 1864, denying the petition of Penniman and others for the removal of Emeric, and refusing to appoint Penniman, and from all orders and decisions made by the Court in that behalf on that day. The other facts are stated in the opinion of the Court, and in 23 Cal. 476.

On the 26th day of April, 1852, Thomas Maguire, the respondent, filed a confession of judgment in the District Court of the Fourth Judicial District, in favor of Henry S. Solomon and Andrew Dott, appellants, for the sum of nineteen thousand four hundred and fifty-five dollars and twenty-two cents, and William Andrews, James Donahue, George Hubbard, and Thomas Dennis, for various sums each, amounting in the aggregate, with the amount in favor of Solomon & Dott, to some…

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

<p>Mortgage made before 1851.—A mortgage executed prior to the passage of the two hundred and sixtieth section of the Practice Act in 1851, was not a conveyance of a conditional estate to become absolute on a breach of condition, as at common law.</p> <p>Foreclosure of Mortgage before 1851.—If the owner mortgaged his property, and afterwards sold the same to a person other than the mortgagee, and the mortgage was foreclosed and property sold prior to 1851, the purchaser acquired no title if the mortgagor was the only party defendant. The grantee of the mortgagor was a necessary party defendant.</p> <p>Divesting Title by Foreclosure of Mortgage.—A Legislative Act, divesting the title of the purchaser of property previously mortgaged by his grantor, by a foreclosure suit in which the mortgagor was alone defendant, would be unconstitutional.</p> <p>Practice Act of 1850 concerning Foreclosure.—The three hundred and ninth section of the Practice Act of 1850, allowing a creditor to maintain his action to enforce a mortgage against the mortgagor alone, is to be construed as requiring the owner of the mortgaged property at the time of foreclosure to be made a defendant.</p>

On the motion for a new trial, the affidavits of several of the jurors were offered to show that there were two of the jurors who would not have consented to find the defendant guilty if they had not been informed by the Sheriff that the Judge had sent word to them that if they did not agree in five minutes they would have to remain in the jury room all night. When the jury retired to deliberate on their verdict, a Deputy Sheriff was sworn to take charge of them.

<p>This was an original proceeding commenced in the Supreme Court, to obtain a writ of mandate commanding the Clerk bf the District Court of the Twelfth Judicial District, City and County of San Francisco, to enter a judgment dismissing and discontinuing an action in which Charles B. Polhemus, the relator, was plaintiff, and James P. Treadwell and others, were defendants.</p> <p>The relator first applied for a mandamus to compel the Judge of the Twelfth District to enter a judgment of dismissal, and the case is reported in 28 Cal. 166.</p> <p>The relator afterwards requested the Clerk to enter a judgment of dismissal,.and filed with him a discontinuance of the action, the form of a judgment, and deposited with him the defendant’s costs up to that time. The Clerk refused to enter the judgment, because an answer had been filed setting up a counter claim.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Fifteenth 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>

<p>Appeal from the District Court, First Judicial District, Los Angeles County.</p> <p>The defendant appealed from the judgment, and from an order denying a new trial.</p> <p>The other facts are stated in the opinion of the Court.</p>

' Appeal from the District Court, Sixth Judicial District, Sacramento County. The amended complaint averred a contract made by defendants to pay in gold coin, dated the 30th day of March, 1864. The Court below gave a general judgment for plaintiffs, not payable in any specific kind of money. Plaintiffs appealed from the judgment, and from an order denying a new trial. The other facts are stated in the opinion of the Court.

<p>Costs where a New Trial is Awarded.—Where a judgment for plaintiff is reversed by the appellate Court, and a new trial is awarded, if plaintiff recovers judgment on the second trial, he is entitled to his costs in the Court helow incurred on the first trial.</p> <p>Costs in Action for Money.—In an action for the recovery of money or damages, the prevailing-party is entitled to his costs, and the Court has no discretion in awarding them.</p> <p>Points not Noticed.—Points not made in the Court below, nor embraced in the grounds upon which the appeal was taken, will not be considered by this Court.</p>

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>Davis commenced this action in a Justice’s Court, to enforce a lien for one hundred and twenty-four dollars and seventy cents. Brokaw & Metcalf intervened, claiming a lien, and Brown & Wells also intervened, claiming a lien. The case was then transferred to the District Court for trial. The three notices claiming a lien, given by Brokaw & Metcalf, were all for the same account, and the first was served April 7th, the second April 10th, and the third April 15th, 1863. The following was the second notice, which the Court holds sufficient :</p> <p>“ To Messrs. M. and F. Livingston :</p> <p>“ Gentlemen :—You are hereby notified as the employers of Joseph Gosling, contractor for the erection of the two certain houses on Powell street, between Union and Filbert streets, in the City of San Francisco, belonging to you, that we have furnished and supplied the following materials as hereinafter set forth, for the erection, construction, and finishing of the said buildings, to Mr. Joseph Gosling, the contractor aforesaid; that the prices set against the said materials are those, and the total amount of said account is the amount agreed to be paid to us therefor, by the said Gosling, and the said amount, to wit: the sum of one thousand four hundred and sixty-two and seventy-seven one hundredth dollars ($1,462 77) is still due and unpaid to us by said Gosling over and above" all payments and offsets for or against the said materials, etc., so furnished and delivered.</p> <p>“ San Francisco, April 10th, 1863. ’</p> <p>’ “BROKAW & METCALF.”</p> <p>The Court below enforced the liens claimed by the several parties; that claimed by Davis for the amount asked by him ; that claimed by Brokaw & Metcalf for one thousand five hundred and two dollars and fourteen cents, being the sum stated in their third notice; and that of Brown & Wells for five hundred and twenty dollars.</p> <p>The other 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 plaintiff averred that he was a resident of Philadelphia, and upwards of thirty years ago invented a pistol known as Derringer’s pistol, and adopted as a trade mark for the same the words, “Derringer, Philadel.,” which was and ever since had been his trade mark, and-which he had caused to be stamped on the breech of all pistols manufactured and sold by -him, and that the defendant since 1858 had been engaged in the manufacture of pistols at San Francisco similar to plaintiff’s, on the breech of which he had stamped plaintiff’s trade mark, etc. Defendant had judgment on the demurrer and plaintiff appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Plaintiffs, who claimed as assignees of the contract, brought an action against defendant, who, by mesne conveyances, had acquired Baker’s interest in the lot, to enforce the contract as a mortgage on the premises. Defendant 'demurred to the complaint; the demurrer was sustained, and plaintiffs declining to amend, judgment by default was rendered for, defendant, and plaintiffs appealed.</p> <p>The following was the contract on which suit was brought:</p> <p>“ This agreement, made and entered into this 23d day of August, A. D. 1853, by and between Jacob P. Leese, of the City and County of Monterey, in the State of California, and Gregory Yale, of the City of San Francisco, and State of California, of the parties of the first "part, and George W. Baker, of the City and County of San Francisco, State of California, the party of the second part, witnesseth:</p> <p>“ Whereas, the said Jacob P. Leese, one of the said parties of the first part, together with one Salvador Vallejo, did obtain a grant of two one hundred vara lots, situated in the City of San Francisco, in the month of May, 1839, from Alvarado, then Governor of California, by petition, according to the forms of Mexican law, in such cases made and provided, said grant being now before the Board of Land Commissioners established by the Government of the United States for their adjudication ; and, whereas, the said Leese has purchased by deed of conveyance all the right, title, and interest of the said Salvador Vallejo, in and to the said grant of land, said deed dated on or about the 3d day of August, A. D. 1850, and recorded in the office of the Recorder for the County of San Francisco, in Liber 15 of Deeds, p. 173; and, whereas, the said Leese has sold to the said Yale the one undivided interest of said two one hundred vara lots, as described in said grant, by deeds of conveyance, bearing date on the 22d day of August, 1853 ; and, whereas, the said parties of the first part are not now in the actual possession of said land described in said grant, but are now engaged in prosecuting their claim thereto for the said possession, and intend further to prosecute the same:</p> <p>“ No tv be it understood by these presents, That the said parties of the first part have by deed of conveyance bargained, sold, released, remised, and conveyed unto the said party of the second part, all their right, title, and interest to a portion of said grant of lahd, being a full fifty vara lot on the corner of Broadway and Battery streets, and known and marked on the official map of the City of San Francisco as lot No. 327, as will more fully appear by reference being had to said deed, bearing even date herewith, for and in consideration of the sum of fifty thousand dollars, to be paid as follows, viz: The sum of five thousand ($5,000) dollars to be paid upon the execution and delivery of these presents, and the remaining sum of forty-five thousand ($45,000) dollars to be paid upon the recovery of the possession of said land, or in proportion to any part thereof, the said party of the second part having the privilege of retaining one half of the said sum of forty-five thousand dollars at one per cent interest per month in advance for the period of twelve months after recovery of said possession, if he should elect to do so.</p> <p>“And the said party of the second part, for himself, his heirs, and assigns, covenants and agrees to pay to the said parties of the first part, or their assigns, the said sum of forty-five thousand dollars when they shall have legally recovered possession thereto, subject to the provisions aforesaid as to payment, provided said grant of land is so decided as to include the above described fifty vara lot number three hundred and twenty-seven, (327,) as described in said deed of conveyance.</p> <p>“ And it is further understood by the contracting parties, that this instrument of writing is not intended to act as a mortgage or lien upon the described premises, or any part thereof, before the recovery of the possession thereof, as herein provided ; that is to say, subject to the lien or mortgage for the payment of said sum of forty-five thousand dollars and interest thereon.</p> <p>“In witness whereof, the aforesaid contracting parties have hereunto set our hands and seals the day and year first before written.</p> <p>“ Jacob P. Leese. [seal.]</p> <p>“ Gregory Yale, [seal.]</p> <p>“ Geo. W. Baker.” [seal.]</p>

<p>Writ of Mandate.—A judgment rendered by a Court in a case where it had jurisdiction will not be disturbed by a writ of mandate, however erroneous.</p> <p>Writ of Mandate to County Judge.—If a County Judge renders an erroneous judgment in a matter where he possesses jurisdiction, a writ of mandate will not be awarded to compel him to render a different judgment.</p> <p>Jurisdiction of Justice's Court.—Three suits were commenced in a Justice’s Court for the recovery of the same property, the value of which was less than three hundred dollars, which were consolidated; held, that the Court had jurisdiction of the action as consolidated.</p>

The defendants, in their answer, denied plaintiff’s title, but set up no title in themselves, nor did they offer any evidence of title in themselves. Plaintiff recovered judgement, and defendants appealed. The other facts are stated in the opinion of the Court.

In the case of Otis v. Barrett, the Constable, in his return on the attachment, stated that he had attached the right, title, and interest of the defendant in the property, the same being then in his possession. 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>Appeal from the District Court, Fifth Judicial District, San Joaquin County.</p> <p>This action was commenced July 30th, 1863.</p> <p>The other facts are stated in the opinion of the Court.</p>

The property was assessed for the fiscal year ending June 30th, A. D. 1862, at four thousand dollars, “ to Murphy and Dooley, and to all owners and claimants, known or unknown, and to all owners and claimants of any interest, present or future, therein, or any lien upon the same.” The assessment described the lot assessed as “ commencing on the southwesterly corner of Herman and Mission streets ; thence westerly on Herman street three hundred and eighty feet; thence ■…

This was an action to recover possession of a tract of land in Contra Costa County, containing five hundred acres. On the 1st day of September, 1858, the plaintiff was the owner in fee and seized in law of an undivided one half of the tract. The action was commenced on the 22d day of December, 1862. The defendants were in possession of and occupying exclusively separate parcels of the tract.

<p>[Note.—The opinion in this case Was delivered at the April term, 1865. The parties concerned subsequently settled the matters in controversy between them, and hence the judgment in form directed to be drawn up and submitted to the Court was not prepared.] x/</p>

<p>Death of the Defendant during the Pendency of an Action.—In an action to recover judgment on a promissory note, the suggestion of the death of the defendant, and the substitution of his administrator, and the continuance of the suit against him, subjects the proceedings to such rules of the Probate Act as are applicable to proceedings for the collection of claims against an estate of a deceased person.</p> <p>Judgment against an Administrator.—Where the only cause of action is the indebtedness of the estate of the deceased to the plaintiff, a judgment in personam cannot be rendered against the administrator.</p> <p>Judgment against Administrator enforcing Attachment Lien.—If the defendant dies after the service of summons and the levy of an attachment on his property, and before judgment, and the administrator is substituted, and the action continued against him, the Court cannot render a judgment enforcing the lien of the attachment by a sale of the attached property, and an application of the proceeds to the satisfaction of the demand.</p> <p>Enforcement of Attachment Lien.—An attachment lien upon property can be enforced only by a sale of the attached property under execution.</p> <p>Death of Defendant destroys Attachment Lien.—If the defendant die after the levy of an attachment upon his property, and before judgment, his death destroys the lion of the attachment, and the attached property passes into the hands of the administrator, to be administered on in due course of administration.</p>

The Court below in giving judgment did not allow plaintiffs interest on the instalments of interest which were not paid when they fell due. The plaintiffs appealed from the judgment and from an order denying a new trial. The other facts are stated in the opinion of the Court.

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

<p>The case was argued before Mr. Chief Justice Currey, Mr. Justice Sawyer, and Mr. Justice Sanderson.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>On the trial, plaintiff called as a witness the attorney who made an examination of the title for him, and asked him if, from the abstract and examination he made, he found the title satisfactory ?</p> <p>The defendant objected to the question, and the Court overruled the objection.</p> <p>The other facts are stated in the opinion of the Court.</p>

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

<p>Proceedings in Insolvency.—Since the adoption of the amendments to the Constitution in 1863, proceedings in insolvency have ceased to be “ special cases ” in. the sense in .which that phrase was applied to them before that time.</p> <p>New Trials in Insolvent Cases.—County Courts may grant new trials in insolvent cases.</p> <p>Statement in Insolvent Cases.—It is the duty of the County Judge to settle a statement made on motion for a new trial in an insolvent case, and if he refuse, a writ'of mandate will issue commanding him to do so.</p> <p>Appeal in Insolvent Case.—An appeal lies from a judgment in an insolvent case to the Supreme Court. ‘</p>

Plaintiffs were ship chandlers and dealers in ship and steamboat stores, and at the request of the master and owners of the San Lorenzo furnished the schooner materials, which were used in her construction, on a credit of six months. Plaintiffs recovered judgment in the Court below, and defendant appealed. The other facts are stated in the opinion of the Court.

<p>The defendant was indicted in the County of Tuolumne for stealing a horse. The horse was stolen in Mariposa County, and taken into Tuolumne County, where the defendant was arrested. On the trial Mallet the prosecuting witness was asked, for the purpose of impeaching his testimony, if he did not testify differently before the committing magistrate from what he then did. The Court on the objection of the District Attorney refused to allow the question to be put.</p> <p>The defendant was convicted and sentenced, and appealed.</p>

The plaintiff appealed from an order of the Court below, setting aside a default. The other facts are stated in the opinion of the Court.

<p>Nuisances.—The County Courts have original jurisdiction of actions to prevent or abate a nuisance.</p> <p>Action to abate a Nuisance.—An action to abate a nuisance is “ a case in equity,” and from judgment rendered in it an appeal lies to the Supreme Court.</p> <p>Writ op Mandate.—A writ of mandate will not be issued by the Supreme Court to a County Judge commanding him to recall an order made after final judgment, from which order an appeal could have been taken.</p>

The bond sued on was joint and several. There were four of the defendants who were not served with summons. The defendants served moved the Court to direct plaintiff to pro- - cure service on those not served. This the Court refused to do. The District Attorney suggested the death of two of the defendants who had been served, and moved for judgment of discontinuance against them, which motion the Court granted.

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.

The defendant appealed from an order denying his motion to dissolve a preliminary injunction which had been granted at the commencement of the action. The other facts are stated in the opinion of the Court.

<p>Appeal from the District Court, Sixth Judicial District, Sacramento County.</p> <p>The defendant recovered judgment and the plaintiff appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

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

<p>When Certiorari lies.—The Supreme Court cannot, on certiorari, review mere errors of law of the County Court in cases where it has jurisdiction, even though there is no appeal.</p> <p>Jurisdiction of Supreme Court.—The appellate power of the Supreme Court does not extend to cases of misdemeanor.</p>

The plaintiff was the assignee of the grantee in the United States patent mentioned in the opinion of the Court. After the issuance of said patent the defendant purchased the land from the State and obtained a State patent for the same. This action was brought to annul and vacate the State patent. The Court below refused to admit the United States patent in evidence, and gave judgment for defendant, and plaintiff appealed.

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

The appellant was tried in the Fifteenth District Court, in and for the City and County of San Francisco, at the June term of said Court, 1865, for the crime of murder, was found guilty by the jury of murder in the first degree, and sentenced to be hung.

The Court gave judgment in favor of plaintiff for six sevenths, and in favor of defendants for one seventh of the quartz ledge, the property sued for. The other facts are stated in the opinion of the Court.

This action was brought to recover possession of a fifty vara lot on the northeast corner of Bush and Montgomery streets, in the City of San Francisco. The plaintiff claimed that the intestate, John Kittleman, owned the lot under an Alcalde’s grant issued to him by George Hyde, Alcalde of San Francisco in 1846.

A. J. King, on the 8th day of December, 1860, deposited with Tallant & Wilde, bankers, two thousand dollars, and received certificates of deposit therefor payable to his order on demand. The certificates were shortly after stolen from King, and Tallant & Wilde, December 27th, 1860, paid King, the money. At the same time, King, to indemnify them, delivered to them three thousand dollars in six per cent bonds of the City and County of San Francisco.

<p>Right to Possession op Personal Estate of Deceased.—Under the Statute of Descents and Distributions in this State, the title to the personal estate of the deceased vests in the heir, but the administrator is entitled to the possession of the same, and this right of possession extends by relation back to the time of the death of the deceased.</p> <p>Action for Wrongful Taking of Personal Estate of Deceased.—The administrator may maintain an action for the wrongful conversion of the personal estate of the deceased, intermediate the death and issuance of letters.</p> <p>Same.—Such action may bo maintained against one who has embezzled or alienated the personal estate of the deceased, without the aid of section one hundred and sixteen of the Probate Act; and said section does not give a new right of action, but merely increases the damages.</p> <p>Same, where Complaint alleges Embezzlement.—If the complaint in such action alleges that the defendant embezzled, alienated, and converted to his own use the personal estate of the deceased, and prays for double damages, the plaintiff is entitled to recover double damages, if the proofs sustain the allegation; but if the proofs of such conversion fail to show that it took place intermediate the death and the grant of letters, the plaintiff's recovery should be as in an ordinary action of trover.</p> <p>Section One Hundred and Sixteen of Probate Act.—Section one hundred and sixteen of the Probate Act does not afford the exclusive remedy for embezzling and alienating the personal estate of the deceased, intermediate the death and grant of letters.</p> <p>Same.—Section one hundred and sixteen of the Probate Act is not a penal, but a remedial statute.</p> <p>Eight of Widow to give away Personal Property of Deceased.—A gift by the widow of the deceased of personal property of deceased, intermediate the death and issuance of letters of administration, does not confer upon the donee either title to or right to the possession of such property as against the administrator.</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>Denials in an Answer.—If the complaint, in an action to recover the possession of personal property, avers that the “ plaintiff was the owner and in possession of the property,” this averment is not traversed by an answer which denies that the “ plaintiff was the owner and entitled to the possession of the property.”</p> <p>Same.—If the plaintiff, in his complaint in an action to recover the possession of personal property, avers that the u defendant wrongfully took the property from the plaintiff's possession, and from thence to the time the action was commenced, wrongfully detained the same property from him/' and the defendant, in his answer, denies “ that the defendant at any time wrongfully took and detained the property from the plaintiff,” the allegation in the complaint is to be deemed admitted.</p> <p>Answer setting up Seizure op Goods by Attachment.—An answer justifying the seizure of personal property by virtue of a writ of attachment issued against a person other than the plaintiff, does not state facts constituting a defense, if it fails to allege that the defendant in the attachment suit was the owner of the property.</p> <p>Insufficient Denial in Answer.—If the answer does not traverse the material allegations of the complaint, and the new matter contained in it does not state facts sufficient to constitute a defense, and the pleadings are not verified, a closing</p> <p>denial stating that “the defendants deny each and every allegation set forth in plaintiff’s complaint not consistent with the foregoing answer,” fails to raise any issue.</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>

City and County of San Francisco. The plaintiff averred in his complaint that in November, 18-57, the defendant leased to one Cicero, for two years, from January 1st, 1858, a lot in San Francisco, with the buildings thereon, known as the Montgomery Baths; that November 1st, 1558, plaintiff purchased the lease from Cicero, and that at the time of the .purchase defendant was in the Atlantic States, and he called on defendant’s agent and informed him he was going to purchase,…

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

<p>Plea in Criminal Case.—If the defendant in a criminal case refuses to plead after his demurrer to the indictment has been overruled, the Court may direct a plea of not guilty to be entered for him.</p> <p>Error.—The record must affirmatively show error; the appellate Court will not presume it.</p> <p>Affidavit for a Continuance.—An affidavit for a continuance in a criminal case should show, not only that efforts have been made to find the absent witness, but also, if service of a subpoena has been made on him, should show that it was such kind of service as he was bound to obey.</p> <p>New Trial on Ground of Denial of Continuance.—On an application for a new trial on the ground that the Court denied a continuance, in a criminal as'well as in a civil case, the defendant should procure the affidavits of the absent witnesses, showing that they can testify to the facts sought to be proved, or give good reason for not obtaining such affidavits.</p> <p>Witness in Criminal Case.—A witness, not examined before the grand jury, whose name is not indorsed on the indictment, may be examined by the People on the trial.</p> <p>Surprise a Ground for New Trial.—A new trial will not be granted in a criminal case on the ground of being taken by surprise by the testimony of a witness, unless the affidavits show that the testimony of the witness was not true.</p>

<p>Appeal from the District Court, Ninth Judicial District, Shasta County.</p> <p>Margaret Mullen, in 1858, was a sole trader, and purchased from plaintiff a tract of land to work as such sole trader. For a part of the purchase money, she and her husband, Lawrence Mullen, executed to plaintiff their joint promissory notes, and jointly executed a mortgage on the land to secure the notes. This action was brought against both husband and wife, to obtain a joint judgment on the notes, and to foreclose the mortgage. Lawrence Mullen suffered a default. His wife answered. The Court rendered a judgment foreclosing the mortgage, and directing an application of the proceeds of sale on the amount due and costs; and further directing, that if the same were insufficient, the defendants pay to the plaintiff the amount of the deficiency. Margaret Mullen appealed.</p>

<p>Liability on Promissory Note op a Corporation.—At common law the officers of a corporation are not liable personally on a promissory note of the corporation, made by them as such officers, in which the promise to pay is made by the corporation, and not by the officers personally.</p> <p>Liability of Agent on Contract.—If an agent, in executing a contract, use terms which charge himself, he may be sued upon the instrument itself as the contracting party ; but it is otherwise if the contract contains terms which bind the principal only.</p> <p>When Agent acts without Authority of Principal.—When the contract of the officers of a corporation binds the corporation by its terms, and not the officers personally, and the contract is made without authority, so that the corporation is not holden on it if any personal liability exists against the officers, it results from the wrong done by them in undertaking to act without authority.</p> <p>Directors of a Turnpike Company.—The Directors of a corporation formed for the construction of plank or turnpike roads are not liable personally, under the nineteenth section of the Act creating such corporations, on a contract made by them, which by its terms binds the corporation, unless the stockholders have adopted by-laws, and the same have been filed in the Recorder’s office, and the contract is made in violation of the by-laws.</p> <p>Power of Directors of Turnpike Company.—The Directors of a corporation formed for the construction of plank or turnpike roads are not vested with any power by the statute until the stockholders have adopted by-laws defining their powers, and the same have been filed in the Recorder’s office.</p>

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

The plaintiff was in possession of a tract of land which was inclosed by a fence, and had been cultivated since 1857. On Saturday, the second day of September, 1864, the defendant went inside the inclosure and erected a small board tenement, and moved into it. On Tuesday following, plaintiff went to defendant and demanded possession, and defendant replied that he was going to stay there until they put him off.

<p>Indictment for Assault with Deadly Weapon.—An indictment for “ an assault with a deadly weapon, wtih an intent to inflict upon the person of another a bodily injury,” should charge the offense in the language of the statute, and should also allege that the weapon was deadly, or such facts as necessarily show that it was deadly.</p>

Action to recover possession of a lot in the City of San José and within the boundaries of the former Pueblo de San José de Guadalupe.

<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 notes in suit were given in part payment for twenty-five shares of the stock of the Aniargoza Mining Company, situated in the southern part of California. The defendant had never visited the mine, and the purchase was made in San Francisco.

<p>Complaint on Promise to pay Debt of Another.—In an action "brought upon a promise of the defendant to answer for the debt or default of another, it is not necessary in the complaint to aver that the promise was in writing.</p> <p>Complaint on Promise to accept a Draft.—In an action brought upon a promise made by the defendant to accept a draft which another might draw on him, it is not necessary to aver in the complaint that the promise was in writing.</p> <p>Promise to pay Draft when Drawn.—A promise that a drawee will pay a draft which may be drawn on him, is a promise to accept the draft when drawn, and if the drawee refuse to pay the draft when drawn, he may be sued as acceptor.</p> <p>A Promise to pay a Draft must be in Writing.—A promise to pay a draft that may be drawn on the promisor by another person for a debt due by the drawer to the person to whom the promise was made, is void, unless in writing, and signed by the person making the promise.</p>

The plaintiff averred in his complaint that on the 20th of May, 1864, he sold defendant a tract of land for the sum of fourteen hundred dollars, and .that seven hundred dollars of the purchase money was due and unpaid. Plaintiff prayed for judgment for seven hundred dollars, and that the same be made a lien on the land.

<p>Appeal from the District Court, Fourteenth Judicial District, Placer County.</p> <p>On the 3d day of March, 1862, P. Everts sold to George L. Everts, the defendant, three tracts of mining claims, called the Last Chance claims, the Keystone claims, and the Bucannan claims. July 31st, 1862, the plaintiff recovered a judgment against P. Everts in the District Court, upon which he afterwards issued an execution and sold the claims, and became the purchaser at the Sheriff’s sale, and no redemption being, made, afterwards obtained a Sheriff’s deed. He then brought the present action to recover possession of the claims, and sought to prove on the trial that the sale from P. Everts to George L. Everts was fraudulent.</p> <p>For the purpose of showing that the sale was fraudulent, plaintiff relied in part on the alleged inadequacy of the price paid.</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>Copy of Pleadings in Transcript.—If the Court helow denies a new trial on the ground that the evidence is insufficient to sustain the cause of action alleged, and an appeal is taken from the order, the transcript must contain an authenticated copy of the pleadings, or an agreed statement of their contents.</p> <p>Statement of Issues made by the Pleadings.—A statement of the contents of the pleadings made by appellant’s counsel, and placed in the transcript, but not agreed to by the opposite attorney, or included in the settled statement, constitutes no part of the record.</p>

<p>Granting a New Trial.—An order granting a new trial will not he reversed because the reason assigned for granting it is a had one, provided there was a good reason for granting the same.</p> <p>¡Review of Order Granting New Trial.—The appellate Court, in reviewing an order granting a new trial, is not confined to the reasons assigned by the Court below in granting it.</p> <p>New Trial.—Where the findings of the Court are not warranted by the evidence, a new trial should be granted.</p>

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>Walter Skidmore was arrested on a criminal charge, in Marin County, on the 10th day of December, 1859, and an order was made by the examining magistrate holding him to bail in the sum of five thousand dollars. Walter A. Skidmore, the plaintiff, and Louis Denos, and Egbert Van Allen, signed the recognizance, and to secure Denos and Van Allen, the plaintiff deposited with Daniel T. Taylor, the defendant, a buckskin bag, sealed up, containing sixteen hundred and twelve dollars in gold coin, and a number of warrants drawn by the Auditor of Marin County on the Treasurer of that county.</p> <p>This action was commenced July 2d, 1861, for a return of the property, or if a return could not be had, for judgment for its value. On the 8th day of February, 1860, Denos and Van Allen signed a writing consenting that Taylor deliver the property up to W. A. Skidmore, the owner, and releasing all claim on it. W. A. Skidmore presented the writing to Taylor and demanded the property, but Taylor refused to deliver it up. Thomas H. Hanson was made a defendant in the action, but plaintiff dismissed the action as to him before the case was submitted. During the trial, plaintiff offered in evidence the depositions of both Taylor and Hanson, the defendants. The defendants’ attorney objected to the depositions. It was admitted that both of defendants resided in San Rafael, Marin County, within less than thirty miles of the City of San Francisco, the place of trial, and that defendant Taylor was then in Court. The Court overruled the objection and admitted the depositions in evidence.</p> <p>Plaintiff recovered judgment in the Court below, and defendant appealed.'</p>

The indictment charged the defendant with having, in the night time, feloniously and burglariously entered the house of T. Schroder, with intent to steal his goods, and with having then feloniously and burglariously stolen four hundred pounds of his beef. On the trial the defendant moved the Court to exclude all the witnesses from the Court room except the witness on the stand. The motion was granted, except as to F. F. Burke, the Chief of Police of Sacramento.

<p>Jurisdiction to punish por Contempt.—District Courts have jurisdiction to punish for contempt persons who re-enter upon a tract of land after having been dispossessed therefrom by a judgment and process of a Court of competent jurisdiction.</p> <p>Certiorari.—The Supreme Court, on certiorari, will only inquire whether the inferior Court exceeded its jurisdiction.</p> <p>Act op 1862 to punish Contempts.—The Act of 1862 for the punishment of con-tempts committed by re-entering on land after having been dispossessed by judgment and process of a Court, was designed not only to protect the Court from contempt of its authority, but to give a party injured an additional remedy in the action, for the restoration of what he was entitled to by the judgment.</p>

The defendant was indicted for murder, and was convicted of murder in the first degree and sentenced. The defendant appealed. The other facts are stated in the opinion of the Court.

The complaint averred that the defendant, since his forcible entry and detainer, had been occupying the premises and using the stock in trade and tools of the plaintiffs, and appropriating the same to his own use and benefit, and that, if defendant was not restrained by legal process, the property of plaintiffs, of the value of one thousand, dollars, would be rendered valueless, or appropriated by defendant to his own use, before the case could be heard.

<p>Appeal from the District Court, Thirteenth Judicial District, Mariposa County.</p> <p>Rooney was, on the 2d day of September, 1863, elected Treasurer of Mariposa County, and the other defendants, nine in number, signed his official bond as sureties, each obligating himself in a different sum. This action was brought on the bond against Rooney and his sureties, to recover the amount of his defalcation. The penal sum of the bond was twenty-five thousand dollars. The judgment of the Court below recited the amount of the defalcation to be one thousand two hundred and thirty-six dollars and thirty-six cents, and then recited the penal sum of the bond, and the amount for which each surety had bound himself, and then a separate judgment was rendered against each surety who had signed for a greater amount than the defalcation, for the full amount of the defalcation and costs, and against each surety who had signed for a less amount than the defalcation, for the amount for which he signed and costs.</p> <p>The defendants appealed.</p>

<p>Order Granting a New Trial.—If the Court below makes an order granting a new trial, and for any cause the order was' correct, the appellate Court will not set it aside because the reason assigned for it may have been wrong.</p> <p>Malicious Prosecution.—To maintain an action for malicious prosecution, the primary question to be considered is the want of probable cause for the prosecution complained of, and this must be established before plaintiff can recover.</p> <p>Same.—Prom the want of probable cause, malice may be inferred; but from the most express malice want of probable cause cannot be implied.</p> <p>Want of Probable Cause in Malicious Prosecution.—In an action for malicious prosecution, the want of probable case is a mixed question of law and fact.</p> <p>The Want of Probable Cause not to be submitted to a Jury.—In an action for malicious prosecution, it is erroneous for the Court to leave to the jury the decision of the question whether the facts they may find will amount to a want of probable cause.</p> <p>How Jury to be Instructed on Want of Probable Cause.—In an action for malicious prosecution, if the facts are doubtful, the Court should instruct the jury that if they find the facts in a certain way, there was no probable cause, and their verdict should he for plaintiff; hut if they find in another way, there was probable cause, and their verdict Should he for the defendant.</p> <p>When there is Probable Cause.—If, in an action for malicious prosecution, it appears that the defendant had a cause of action in the case alleged to have been maliciously brought, although for a much less amount than claimed, there was probable cause, and the Court should grant a nonsuit.</p> <p>Plaintiff must drove Want of Probable Cause.—In an action for malicious prosecution the burden is on the plaintiff to show affirmatively a want of probable cause.</p>

The defendant was indicted for burglary. He was convicted, and sentenced to be imprisoned for the term of seven years, and appealed from the judgment. The other facts are stated in the opinion of the Court.

The plaintiff sued, in the County Court, as administrator with the will annexed of the estate of Amelia Moss, deceased, and alleged in the complaint that his testatrix on the 2d day of January, 1865, leased to the defendant a house and lot in the City of Sacramento, and that defendant agreed to pay her therefor eighteen dollars per month, payable on the second day of each month, in advance, and that defendant had failed to pay the rent which fell due on the 2d days of July,…

The case of Leese v. William S. Clark, in which the writ of possession referred to in this case was issued, will be found reported in 18 Cal. 535 ; 20 Id. 387 ; and 28 Id. 26. After the decision reported in the 28 Cal., the remittitur was filed in ■ the Court below, and a writ of possession was placed in the hands of Henry L. Davis, the Sheriff of the City and County of San Francisco. The other facts are stated in the opinion of the Court.

J. H. Coghill The Court found as a fact that the plaintiffs had under attachment sufficient of Samuel Marks’ property to pay their debt, and gave plaintiff judgment against him for nine hundred and eleven dollars and 'sixty-four cents, but also found that at the time plaintiffs commenced their action part of their demand, to wit: four hundred and sixty-five dollars and eighty-five cents, was not due, because a credit of sixty days had been given for the goods, and the credit…

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