Volume 3 — California Reports

<p>Quare. If the courts of this state can entertain jurisdiction of titles to land granted by a Mexican governor, antecedent to the acquisition of the country by the United States, without previous confirmation or legislative recognition1?</p> <p>Prior to the 24th May, 1821, the laws or decrees of the kings of Spain, and the regulations or usages of their governors (who were mere deputies), sanctioned by royal approval or acquiescence, afforded the proper tests by which to determine the validity of grants.</p> <p>Since the revolution (24th February, 1821), no valid alienation could be made, except by an act of Mexican sovereignty.</p> <p>By the law of the Mexican Congress of 18th August, 1824, limited and defined by that of November 21st, 1821, the governors of territories were authorized to grant, with certain specific exceptions, vacant lands, &c. By these laws and the legislation of the departmental legislature, consistent therewith, must be determined the validity of any grant of land in California.</p> <p>To these regulations this court alone loolr, and by them every grant must be determined. If not fully complied with, the title did not pass, but remained in the government of Mexico.</p> <p>A mere grant, without further compliance with the requisitions, is at best, but an inchoate title, and the land passed to the United States, who hold it subject to the trust imposed by the treaty of cession and the equities of the grantees.</p> <p>The execution of this trust is apolitical power to which the judiciary is not competent. ></p> <p>Where the title of the plaintiff is inchoate and incomplete, he cannot sustain an ejectment, and the court properly excluded such title as testimony.</p>

This was an ejectment brought by the plaintiffs for the recovery of a tract of land in Santa Clara County. Held: and continues to hold, unlawful possession of the same.

In the above cause, decided at the October Term, 1852, a petition was filed, and motion made for a rehearing, which having been considered by the court at this term, the following opinion was delivered by Wells, Justice, with which Murray, Chief Justice, concurred, and ordered a rehearing accordingly.

<p>Under the act regulating appeals, passed 20tli April, 1851, an appeal lies from every order and decision of an inferior court, which affects a substantial right.</p> <p>An appeal to a demurrer for want of proper parties, is therefore good where it is determined by the court that a substantial right is affected by the omission to join such party.</p>

The plaintiff in this suit claimed damages from the defendant for the detention of .certain personal property, specified in the complaint as of the value of $2000, which plaintiff averred belonged to him, and not to defendant, and the possession of which he had demanded of defendant, who had refused to deliver it; and prays for judgment, that the property be restored to plaintiff’s possession, and for damages for the detention, &c., and for further relief, &e. The defendant…

This was an action brought before a Justice of the Peace, under the statute of forcible entry and detainer.

<p>Appeal from the Eighth Judicial District, Yuba County.</p> <p>The appellants in the court below, under the ,13th section of the Practice Act, claimed a pro rata distribution of the proceeds of a building, sold by the sheriff to satisfy a judgment decreeing a mechanic’s lien, upon a claim of Garwood & Leeds. The appellants claimed, also, under a judgment against the building, for materials furnished, and their judgment was of the same date with that of the respondents. The court below rejected the claim of the appellants ; who took this appeal.</p>

This action was founded on an injunction bond for $3000, executed to plaintiff by defendants, as explained below.

This was an action brought in the Superior Court of the City of San Francisco, by the plaintiffs, against the defendant, for the recovery of damages for the blowing up with gunpowder, and destroying their house and store, with the goods therein, on the 24th December, 1849. Damages laid at $65,000/.

<p>Whore the proof does not sustain the allegations of the bill, and where by the proof, the complainant would be entitled to relief, in a court of equity, if bis pleadings bad been properly framed; an amendment should be allowed or directed, to conform the pleadings to the facts which ought to be in issue, in order to enable the court to decree fully on the merits; and whenever this is not done it is error.</p>

<p>Appeal from the Fourth Judicial District.</p> <p>The plaintiff’s complaint sets forth, that on the 4th of August, 1851, defendant leased from plaintiff certain premises (described in the lease, which is set out under the hands and seals of plaintiff and defendant), for the term of one month, with the privilege of occupying the same for the further term of three months thereafter, at the rate of $450, payable monthly, in advance, which privilege she availed herself of, and continued in the occupation thereof, and claims $450 from the 4th of September, 1851, to the 4th of October, 1851.</p> <p>Other matters were claimed by the plaintiff, which are not material to the case, as considered by this court.</p> <p>The defendant answered, that before, and at the time of the commencement of this suit, the said plaintiff was, and still is married to one Snyder, then, and yet, her husband, who is still living in the said city and county, and cohabiting with said plaintiff, and denies that she (defendant) elected to continue in the occupation of the premises under the privilege, &c., and that plaintiff entered upon, and ejected her about the 4th of September, and denies indebtedness, &c.</p> <p>March 4th, a nonsuit was ordered by the court, and judgment for defendant for costs, from which plaintiff appealed.</p> <p>The cause was tried by the court, without a jury. ' The plaintiff on the trial admitted the truth of the plea of coverture, gave in evidence the said lease, and then a marriage contract between her and Henry M. Snyder, her present husband, which is set out, made the 26 th of February, 1851, and states that the said Teresa is seised and possessed of certain real and personal estate in her own right (described in a schedule annexed), that a marriage is about to be solemnized between the said Henry and the said Teresa, and that in consideration thereof it is mutually agreed between the parties, that all property, of every description, which shall be acquired by either of the said parties after the said marriage, whether by gift, bequest, devise, descent, purchase, or otherwise, shall be and remain the separate property of the party so acquiring the same. That the party of the first part shall have no management or control of the separate property of the said Teresa, but the exclusive management and control thereof, whether now held or hereafter acquired by her, with absolute power of disposing of the same as she should see fit, should be and remain in her during the said marriage, and also the rents, profits, interest on moneys, &c., arising from the separate property of either party, shall not be deemed common property, but that all such rents, &c., arising from the separate property of the said Teresa, or acquired by her, shall be and remain under her entire management and control, power, and disposal, during the said marriage, &c.</p> <p>Plaintiff then offered a lease from Palmer, Cooke & Co., to her, for the premises in question, the execution of which was admitted by defendant, but objected to the paper as irrelevant, which the court sustained andi plaintiff excepted.</p> <p>The lease is dated 1st of July, 1851, between Palmer, Cooke & Co., and Mrs. Teresa Snyder, and signed and sealed by them.</p> <p>The courtbelow held, that as there was no evidence that the subject-matter of the action was the separate property of the plaintiff, the fact of the defendant having covenanted with the plaintiff does not raise a presumption that the contract was in reference to her separate property, and inclined to the opinion that she should have shown a right to sue, in her complaint, by an averment that she was a married woman, and that the action related to her separate property. That, at all events, she is bound to prove affirmatively, that the suit relates to her separate property, and there being no such proof, judgment of nonsuit was ordered as above stated.</p>

This was a suit brought for the recovery of $1000, which the plaintiff claimed of defendant for thirty mining claims, and a cabin, sold and deliveerd, as the complaint alleges, by the plaintiff to the defendants. The defendants deny any purchase of claims or cabin from plaintiff, and deny all indebtedness to him.

The complaint sets forth that the plaintiffs are owners of a certain mining claim on the South Fork of American River; and, about the 1st April, 1850, had erected a dam and dug a race sufficient to carry off the water, and leave the bed of the river dry enough to work for gold and for mining purposes; and set forth title, claiming under Winters, Marshall, and others, the admitted owners, who also granted the right to plaintiffs to tear down an old mill-dam, so as to head off…

The facts of this case are stated in the opinion of the court. The plaintiff claimed of defendant the value of certain property, which had been seized by the sheriff, on execution issued by Dunlap against Solms and Hutchinson, and which he claimed as his own property. In the course of the proceedings, the deposition of Gr.

<p>It is error to admit evidence to prove partnership by general reputation.</p> <p>It is error to admit letters in evidence without proving that they were written by the party intended to be charged by their contents.</p>

<p>Where the assignee of a mortgage upon premises, the buildings upon which were destroyed by fire, agreed to waive his lien in favor of one who had agreed to advance money to rebuild, but no agreement was made at the time as to interest: Held, that the guarantee of the assignee, extended no further than the contract when made, and as this was silent as to interest, that a higher rate of interest than the law allowed, where tlie rate was not agreed upon by the parties, could not be allowed.</p>

<p>The Court of Sessions granted a license to defendant to run a ferry. This grant was resisted by plaintiff, who took an appeal to the District Court, who affirmed the grant; which judgment remained unreversed. This action was brought to recover damages from defendant for running the ferry; the plaintiff alleging that the license was illegally granted. Held, that the judgment of the District Court was a bar to this action, and that that judgment could not be impeached collaterally.</p>

The defendant was indicted for murder, at the February Term of Calaveras County, for killing an Indian, found guilty, and sentenced to be hung.

<p>To render a person competent to act as a juror, lie must be an elector of the county-in which he is returned, and have resided in the county thirty days.</p>

The complaint alleges that plaintiff had retained and employed the defendant as an attorney and counsellor of the Supreme Court, to prosecute and conduct a certain appeal in said court (describing the case), for certain reasonable fees and rewards therefor, to be paid by the said plaintiff to the said defendant, and avers that the said defendant then and there accepted and entered upon such retainer and employment.

<p>Appeal from the Superior Court of San Francisco.</p> <p>This was an action brought by the plaintiff to recover of defendants two promissory notes, set forth in the complaint. One of defendants, Brown, made default, and judgment was entered against him accordingly; the other, Groves, went on to trial; but as the cause went off on grounds distinct from the facts of the case, a further report of them is deemed unnecessary.</p>

■ Appeal from the Sixth Judicial District, for Sacramento County. This action was brought upon a replevin bond, taken by the sheriff of the county, and by him duly assigned to the plaintiff.

This was an appeal, taken September 6, 1852, from a judgment of the District Court refusing to grant a new trial, upon the motion and affidavit of the defendant. The insufficiency of the affidavit upon -which the motion was based, was the only question considered in this court. And its defects are particularly pointed out in the opinion of the court.

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>The cause upon which the question of costs (which was the only question presented to the Supreme Court), arose, was tried on the 5th May, 1852, and a verdict rendered for the plaintiff, for $4000, upon wliich judgment was entered on the same day for the amount of the verdict, and costs and disbursements incurred by the plaintiff in his action, amounting to $409 80.</p> <p>On the 6th May, a bill of costs was filed, corresponding in amount to the above sum of $409 80, to which was appended the following affidavit :—</p> <p>“ State of California, County of San Francisco.</p> <p>“ Gr. W. Beck, being duly sworn, deposeth and saith, that the above bill of costs is true and correct to his best knowledge and belief; and further deponent saith not.</p> <p>“Gr. W. Beck.”</p> <p>“ Sworn and subscribed before me, the 6th May, 1852.</p> <p>“É. W. Taylor, Notary Public.”</p> <p>On the 22d May, a motion was made by defendant to retax the bill of costs, of which notice had been given to plaintiff’s counsel on the 17th, which was argued by counsel, and on the 26th May the court ordered, that the counsel of plaintiff have leave to amend his bill of costs and affidavit, and on the same day the attorney for plaintiff filed an amended bill of costs, and delivered the same to the clerk, with the affidavit of (x. W. Beck, taken on the same day.</p> <p>The bill as amended reduced the amount $20, leaving the amount claimed $386 80, which was taxed accordingly, by order of the court.</p> <p>The affidavit annexed to the above bill was as follows:—</p> <p>“ State of California, County of San Francisco.</p> <p>“ Gh W. Beck, one of the attorneys of the plaintiff above named, being duly sworn, deposeth and saith, that the items of the foregoing bill of costs are correct, to his best knowledge and belief, and that the disbursements have necessarily been incurred in the action. And further saith not.</p> <p>“6. W. Beck.”</p> <p>“Sworn to and subscribed before me on the 26th May, 1852.”</p> <p>“H. Marshall, Clerk.”</p> <p>On the 31st May, the defendant appealed from the order of court of the 26th May, granting leave to plaintiff’s counsel to amend the bill of costs, &c. Affidavit filed on the 6th May.</p> <p>This case had been originally heard at January Term, but a rehearing having been granted, it came again before the court at this term.</p>

The complainant alleges that he did work and labor for defendants, as partners, under the firm of Lupton and Lobater, from 10th March, 1850, until 1st February, 1851, at $100 per month, amounting to $ , which is due from said Lupton and Lobater.

The plaintiff claimed to be Street Commissioner of the said city, duly elected and qualified, and duly performing the duties of said office; that as such, he is entitled to a salary of $4,000 per annum, fixed by law, payable monthly by defendant; that he performed the duties of the said office for the month of March last, and became entitled to the sum of $333 33 for said services, yet defendant, though requested, &c., had refused payment, &c. The complaint also sets forth a…

This was an application, in the form of a bill in equity, for relief against a judgment, obtained by the appellants against the respondents, under the following circumstances:— On the 9th December, 1852, the respondents petitioned the .District Court, praying the court to vacate, annul, and set aside a judgment obtained by the appellants against them at October Term, 1852, on a recognizance given by respondents to appellants, and that they might be allowed to answer and have…

The complaint stated that the plaintiff had leased, on the 10th December, 1850, to one of the defendants, Wilson, a portion of his, plaintiff’s, farm for two years, and sets forth the covenants of the lease, one of which was, that Wilson was to work the ground as a garden, sell the produce, and pay one-fourth of the proceeds to the plaintiff when taken to market, and when sold on the ground, one-third of the money received therefor ; to keep a book showing all sales, &c.,…

This action was brought for the recovery of $714, the price of 408 gallons of turpentine, which the complaint charges that the defendant bought of the plaintiffs, on the 4th August, 1852, which was at the time of the contract on board the ship Hamburg, and that the plaintiffs gave an order to the defendant for the same at the time of the purchase aforesaid, and which, the plaintiffs allege, was within a reasonable time, to wit, the 13th day of August, discharged from the…

This action was brought by the plaintiff, who was the endorsee of a promissory note at Sacramento City, November 8th, 1850, made by Barton Lee, who thereby “ promised to pay, on the 1st day of July next, to the order of P. B. Cornwall, defendant, $500, with interest at the rate of one per cent, per month,” and which was endorsed to the plaintiff by the said P. B. Cornwall. The defence was want of notice of non-payment by the drawer.

This action was brought upon an agreement between the plaintiff and defendant, which set forth, that about the 15th day of June, 1852, the plaintiff and defendant entered into a contract, whereby the defendant agreed with the plaintiff to sell, and pick from the vines, and deliver to plaintiff, at the vineyard of defendant, so many of the grapes then growing in said vineyard, as plaintiff should wish to take the present year, the plaintiff to have the first grapes that were…

This action was brought, October 7th, 1851, against Thomas C. Wells, H. Willes, and Lucien Skinner, of Boston, as partners and bankers in San Francisco, doing business under the firm of Wells & Co., of whom the plaintiff complained that the defendants were indebted to him for money deposited in trust, payable on demand, to wit, $2278, payment of which defendants had refused, &c., after demand made, &c.; and prays for judgment, &c., and that publication issue against the…

The complaint set forth, that plaintiff, being the owner of city scrip of the City of San Francisco, to the nominal amount of' $45,215 60, bearing interest at the rate of 3 per cent, per month, and requisitions of the Comptroller upon the City Treasurer for moneys due to plaintiff for planking streets, to the nominal amount of $94,748 62, and bonds of the city to the nominal amount of $90,000, bearing 10 per cent, interest per annum, deposited the same with the said…

The relator claimed to be duly elected to the office of Clerk of the Superior Court of San Francisco, and in his petition set forth, on oath, the grounds of his claim at length, and the proceedings taken by him, to qualify and obtain possession of the records, papers, &c., connected therewith, of the defendant, then sitting and acting as Cleric of the said court, who protested against the claim of the relator, on account of the insufficiency of the evidence of his claim, as…

This action was brought to recover the possession of the real estate in the complaint described, in the possession of the defendant. Both parties claimed title under Gideon B. Stephens. The plaintiffs claimed by sheriff’s deed, dated the 14th December, 1850, of the property in dispute.

This was an appeal from the District Court, who refused a continuance upon the application of one of the attorneys of plaintiff, whose affidavit set forth, that he was engaged as assistant counsel with Colonel J. K. Irving for plaintiff, and that

• This suit was brought for the specific recovery of certain mules, horses, and packing apparatus, and came up on demurrer to the complaint, for causes stated in the arguments of counsel.

This was an action brought against the defendants, physicians and surgeons, to recover damages for mal-practice, by reason of which the plaintiff alleged the amputation of his arm became necessary. The only point considered by this court, is fully set forth in the opinion of the court.

• The respondent in this case sued the appellant in the District Court, upon a promissory note alleged to have been signed by him and one M’Kinley, payable to Davis, and endorsed to plaintiff. Campbell denied the execution of the note on oath. On the trial, the plaintiff offered a note in evidence purporting to be signed by M’Kinley and C. Campbell & Co.; defendant objected, on the ground that it was not the note described in the complaint.

Jason Brannan was summoned to answer the complaint of William M. Crane, to enforce a mechanic’s lien upon the Arcade House, for carpenter’s work done to the amount of $124 75, and costs, filed in this court, within ten days after the service of this writ, concluding, “ and if you fail, &c., judgment of default will be taken against you for the sum in the said complaint named. Witness the hand, A. Campbell, Judge of the County Court, this 13th December, 1851.

/ This action was brought to recover the sum of $1400, alleged • to he due from defendant to plaintiff, for the use and occupation of a… Held: that to constitute a bar, such recovery must consist “ of the same matter, and be between the same parties,” and “can be final only for its own proper purposes and object with reference to the subject-matter of the suit.” That the object of plaintiff in the statutory suit, was to recover possession and damages for the unlawful…

This action was brought by the plaintiff, resident in Boston, Massachusetts, to recover of the defendants, residents of San Francisco, $21,626 08, the value of goods, wares, and merchandise sold by the plaintiff to the defendants.

The material facts of this case appear to be, that the plaintiff and defendant, in September, 1852, took a joint lease of a lot in San Francisco, stipulating to erect certain buildings thereon, and mutually to provide funds for the purpose, and mutually to pay as the buildings advanced. The ground rent reserved was $400 per month.

This cause had been, after several arguments, reversed in this court, with costs; a rehearing was also granted, and the previous judgment confirmed on the 31st January, 1853, with costs, and the cause remanded for a new trial.

The complaint stated that on the 28th May, 1853, one Chin Lan, and Ah Lee, filed a complaint against the plaintiff, and sued out a writ of injunction against the plaintiff, to which plaintiff yielded due obedience until dissolved; that to obtain the said injunction the defendants executed their bond, in the sum of $8100, to pay the plaintiff such damages as he should sustain by reason thereof, &c.; that the injunction deprived plaintiff of the use of $10,000, until the same…

The complainants, styling themselves members of the National Mining Company, state that, on the 27th of July, 1852, and for two years previous, they were owners of a certain mining claim, situated in the bed of Yuba River, beginning at the mouth of Deer Creek and extending two hundred yards down said river,, including the bed of the same, and that said claim was held by the said plaintiffs “ according to the rules and customs of miners in the immediate vicinity of said river…

This action was brought for the recovery of $3000, founded upon-an agreement, under the seals of the parties, by which the plaintiff bound himself to execute to defendant “ a warrantee deed,” for a lot of ground in Sacramento, described in the said instrument, in consideration of $6,500, of which $3000 was to be paid in hand, and the balance as set forth in the agreement.

The facts in this case, as they appear upon the record, show, that in September, 1850, respondent made and delivered to the appellants, three promissory notes, two o.f them dated September 11th, 1850, for $5000 each, and the other dated September 12th, 1850, for $5913 40, and all bearing interest at the rate of six per cent, per month. Sundry sums were paid on the notes, at different times, after their maturity; the last payment, November 15th, 1851.

<p>Appeal from the Tenth Judicial District.</p> <p>The whole ease is stated in the opinion of the court.</p>

The complaint in this case stated that the plaintiffs were the owners of two ferries, regularly licensed, one by Sutter County Court of Sessions, and the other by Yuba County Court of Sessions, plying across Feather River, and that defendant ran a ferry from January to July, within a mile of plaintiffs’ ferries, and that without license had from any court, &c., to the damage of plaintiffs, $5000. The defendant demurred to the complaint.

This was an application, on the part of the plaintiff, to restrain defendant from.the erection of an alleged nuisance. The facts were, that the plaintiff occupied the upper part of a building as an auction store; the defendant occupied the cellar below, and both held as tenants under the City Market Company.

The plaintiff complained that the defendants were engaged in running cars by machinery along Battery Street in the city of San Francisco, and across Bush Street in the same city, upon a railroad, and for their own purposes, and that plaintiff was passing along said Bush Street and across Battery Street with a horse and wagon and divers goods, &c., when the defendants, with their said cars carelessly and negligently came into collision with the said plaintiff and his wagon,…

The complaint set forth, that on the 28th December, 1851, plaintiffs had bought a quantity of malt from the firm of Whit-comb & Peck, then and there acting .as agents of defendant, and paid the said agents therefor, as will appear by their bill of sale, in the following words and figures, to wit Messrs. Cochran, Bought of Whitcomb & Peck. 30,000 Malt, a 8 cts., . . . $2400 00 Brokerage, ..... 60 00 $2460 00 By Cash, ...... 200 00 $2260 00 1851, December 28th.

<p>The statute of 1850, providing for the lien of mechanics and others, limits the structures on which parties can obtain such lien, to buildings and wharves. Under this act, no such lien could be had on bridges.</p>

Writ of Error to the County Court of Yuba County. The facts of the case and the arguments of the counsel are stated in the )pinion of the court.

This action was brought to recover damages for interfering with the water right of the plaintiffs. The plaintiffs had prior-occupancy of the waters of Shady Creek, by means of a d'am and a ditch constructed by them, and used the same for mining purposes. The defendants, by like means, obtained the use, for like purposes, of other neighboring streams, and after using the w'ater thereof, it flowed by natural channels into Shady Creek above plaintiffs’ dam.

On the 18th September, 1850, D. Ogden Mills was garnisheed, in the case of Frederick Ogden v. Matthew ICeith, as a debtor of said Keith, by the plaintiff. He appeared at the proper term, and was informed by the attorney of the plaintiff, Ogden, that they did not wish to examine him then. He was subsequently informed by Ogden, that he did not intend to examine him, and who absolved him from all liabilities connected with the notice served upon him as garnishee.

This was an ejectment for the 50 vara lot, Eo. 453, in San Francisco, and for $5000 damages for mesne profits. The deceased claimed to be seised of said lot, Eovember 13th, 1843, and died so seised in January, 1844; the plaintiff is his administrator, and there is no other property of said deceased except his claim to this lot.

This action was founded upon a contract, made the 27th March, 1852, between the plaintiff and defendants, in which the plaintiff contracted to sell and deliver a steam-engine to defendants, and to make another to match, with force-pump, &c. (describing the machinery); all to be done and put into full operation in the quickest time possible, by the plaintiff; the defendants to pay therefor |3200, in the manner and at the times set forth.

This suit was brought to recover the amount of a promissory note made by defendants to plaintiff—dated March 15, 1852, for $3034—payable fifteen days from date. The execution of the note was admitted.

This action was brought for the recovery of a promissory note, dated the 28th October, 1852, for f>1864, payable March, 1853, from defendant to plaintiff; and the complaint sets forth a mortgage of the same date, for securing the payment of the said note, on the day specified, which mortgage is a lien upon the land described, “a pre-emption claim of 160 acres of land, subject to the survey of the government,” and which was on the day of the execution of the said mortgage,…

This was an action to recover possession of a tract of land. In producing his title, the plaintiff gave in evidence, a deed executed by the deputy sheriff in his own name, arising out of the foreclosure of a mortgage, under which plaintiff claimed. The deed was excepted to, but admitted by the court, who rendered judgment for the plaintiff. Defendant appealed.

The plaintiff’s complaint set forth, that defendants were partners in trade, and that on the 21st of November, 1851, the plaintiff, together with Chapman, purchased of defendants, all of their remaining stock of Chili flour, amounting to 6151 bags, of 200 pounds each, at the price, round, of payable, $8000 in advance, to be deducted from the last payment, and the balance to the amount of such order, as the same should be given for delivery; that said lot of 6151 bags of…

This action was founded upon the bond of defendants, which stated that an indictment was found, on the 31st December, 1852, in the Court of Sessions of Sacramento County, charging Fanny Smith, alias Seymour, with an assault with intent to commit murder; and she having been admitted to bail in $3000, the defendants undertook that the above Fanny should appear and answer the said indictment, in whatever court it may be prosecuted ; and if she fail, that obligors would pay, &c.…

This was a proceeding in forcible detainer, commenced before a Justice of the Peace, in the township and county of Contra Costa.

The complaint in this case set forth that Charles Brown and Robert T. Ridley, on the 17th March, 1851, became endorsers of a promissory note for $1275, made by E. D. Smith in favor of W. G. Taylor, payable thirty days after date, upon which, on the 23d April, 1851, suit was brought by Taylor against the said drawer and endorsers, and judgment obtained against the said Brown and Ridley, July 2d, 1851, for $1472 37 and costs.

On the 28th of August, 1850, an order was made by the Probate Court, Monterey County, directing the public administrator of Monterey County, P. Ord, to take possession and charge of the estate of W. R. Garner, deceased, of said county; the estate was duly appraised and possession taken of it by the said administrator.

This complaint was filed the 27th April, 1852, and the action was brought to recover a debt secured by mortgage, the defendants, White and Abel, claiming an interest in the mortgaged premises. It does not appear that Brannan, the mortgagee, answered or made any defence.

The complaint in this case was founded upon an agreement between the plaintiffs and defendants, which is set forth in the complaint, and which states that the plaintiffs and defendants had formed a company, called “ The Empire Water and Mining Company,” to be held in shares, the plaintiffs to hold five shares, and the defendants nine shares, divided between them, the whole number making fourteen shares, the property of the company.

This case was founded on a motion for a mandamus to compel the execution of a sheriff’s deed.

The complaint stated, that the defendants, on the 3d May, 1850, by the names of T. D. Kohler & Co., for value received, made and delivered their promissory note to James Hagan, wherein they promised to pay to the said Hagan, $3030 for cash lent; that said Hagan on the 11th December, 1851, for value received, endorsed and delivered the said promissory note to the plaintiff; that the whole of said note, principal and interest, is due and unpaid.

<p>Although it is generally true that estoppels bind only parties and privies, yet even parol admissions may be conclusive, where they have had the effect of inducing another to alter his condition.</p> <p>P., in possession of a vessel, appoints a master. The plaintiff (who sets up a claim to the vessel) entered into a charter-party with P., and by it acknowledges him to be owner, and H., the master appointed by P., to be master of the vessel. After the charter-party, the declared owner of the vessel became the debtor of the master, who attached the vessel for his debt. The plaintiff brought this action against the sheriff, to recover the vessel held under the attachment. Held, that where one permits another to deal with his property as if it belonged to the latter, and by his declarations permits others to be misled, such declarations must be consideradas addressed to every one in particular who may give credit upon the strength of them, and the party making them must be concluded.</p> <p>In such cases the party is estopped, on grounds of good faith and public policy, from repudiating his own representations.</p> <p>A technical estoppel only is required to be specially pleaded, which is only by deed to the party pleading, or to one under whom he claims, or by matter of record.</p>

This action was brought against defendants, on an injunction bond'. Plaintiff averred that he was lawfully seised of a certain tract of land, describing it, and engaged in cultivating it, &c. That on the 6th January, 1851, the defendants procured the injunction to he issued, restraining him from fencing, improving, &c., the said premises; and that to procure the same, the said defendants made their bond to plaintiff in the penalty of §5000.

This was a suit for a divorce. The complaint set forth the marriage of plaintiff to defendant, on the 22d May, 1838, and produced the certificate, &c. That the relation of husband and wife has existed between them ever since, with all the duties of which she has complied, &c. That defendant has not so fulfilled his duties, &c., hut has failed so to do; that the plaintiff and defendant lived peaceably together, in their said relation, in various places, and last in the city…

The complaint sets forth that the plaintiff was the duly elected and qualified assessor of Sacramento County; that by the provisions of the Act of 27th March, 1850, “concerning the office of county assessor,” he was entitled to such compensation per day, not exceeding $16, as the Court of Sessions of said county might see fit to allow him, for every day the said court should be satisfied that he was employed in the discharge of the duties required of him by law.

<p>Where a bill disclosed that the same subject-matter had been litigated between the same parties in a prior suit, and that in the said suit, the plaintiff in this suit, had set up the same equity which he claims by this bill, the bill was ordered to be dismissed.</p> <p>The allegations of ignorance in malting the necessary averments, or of insufficient conduct, in the prosecution of a former suit, does not constitute ground for relief in chancery.</p>

<p>Appeal from the Superior Court of San Francisco.</p> <p>This was an action brought to recover $17,000 and interest. The complaint contained a count for money lent and advanced by said plaintiff and one William Thompson and Gustave Martell to said defendant, another for money lost by said defendant, and won by said plaintiff, Thompson, and Martell, at a game called faro, and which defendant, then and there promised to pay, and which said sums of money so owing have by the said Thompson and Martell, been transferred to the plaintiff.</p> <p>The defendant demurred to the complaint. The second count was the only one considered in the court below; and as to this, the cause of demurrer assigned was “that the debt set forth in said count was upon a consideration void in law, and does not constitute a legal cause of actioff against the defendant to he enforced in this court, and that this court has no jurisdiction of the subject of the action as set forth in said count.” And defendant further says “ that the said debt as therein set forth could not be assigned by the parties therein named to the plaintiff, whereby he could maintain an action in his own name for the recovery thereof.”</p> <p>The court sustained the demurrer, and gave judgment for defendant for costs, &e. Plaintiff appealed.</p>

The declaration in this case was as follows:— “ City and County of San Francisco, ss. “ The above named plaintiff, complaining against the above named defendants, avers, that in or about the month of February, 1852, the defendants were doing business under the style and firm of Slade, Lambert & Co., in this city, and as such firm, they did in said month, draw their draft in writing on the firm of A. A. Lawrence & Co., of Boston, in the State of Massachusetts, one day after…

This was an application for an injunction. The complaint set forth that the plaintiff was the assignee of a lease, executed between the defendant and a previous lessor, for sixty acres of land, for the term of three years, which, by several assignments, becam'e vested in him, with the right to receive the rents reserved, he., which rents were payable in1 kind ; that defendant had raised a large crop of potatoes, on the demised premises, 210 bushels to the acre, which he is…

<p>Where a lien attaches upon a leasehold interest, it so attaches, subject to all the conditions of the lease.</p> <p>But if one of the conditions be forfeiture for non-payment of rent, the mere failure to pay the rent will not make a forfeiture; there must be a formal demand made on the day it becomes due, to effect this.</p> <p>A waiver of the demand will never be implied, for the purpose of making a forfeiture ; for from its very nature, a forfeiture cannot take place by consent, and is not favored by the rules of lav/.</p> <p>The surrender of a leasehold estate operates a merger in the fee, but this cannot be suffered to defeat the right of a third party, whose rights intervened before the merger took effect.</p> <p>The party holding a lien on a leasehold estate, has a right to enforce it, notwithstanding a subsequent failure of the lessee to pay rent, and a surrender of the lease to the lessor.</p>

<p>Appeal from the Sixth Judicial District.</p> <p>The record in this case shows, that on the 6th July, 1850, judgment was rendered hy confession in favor of plaintiffs, against defendant for $9500. On this judgment execution issued, which was returned with satisfaction thereof endorsed and signed by plaintiffs, as received of Chevor, one of defendants (except the costs not paid). This endorsement of satisfaction was upon the return of the execution, entered upon the margin of the judgment. The endorsement is dated October 1st, 1851, and the return was made to the clerk’s office, October 12th, Í 850. On the 14th day of February, 1853, on motion of the attorney of the plaintiffs, it was ordered by the court that the marginal entry of satisfaction be stricken out, and that the judgment remain in full force, and valid as between the defendants. This motion and order were made ex parte, and without notice to defendants.</p> <p>On the 26th May, 1853, L. W. Hastings, one of the defendants, moved the court to set aside the order of 14th February, 1853, striking out the marginal entry of satisfaction, which the court overruled; and it was from the judgment or order of the court overruling this motion, that this appeal is taken by L. W. Hastings, to^this court.</p>

This was an action for money had and received by defendants, as co-partners in trade for the use of the plaintiff, being the proceeds of goods sold by defendants on consignment, from plaintiff. The suit was commenced May 31st, 1852; one of the defendants, Totten, made default, the other, Kellogg, answered. The case was referred to 0. T. Emmett as a sole referee, to try all issues and report a judgment in the case.

<p>Appeal from the District Court of the Seventh Judicial District. This case was brought before this court at October Term, 1852, and will be found reported, 2 Cal. Rep. 575, when the judgment of the District Court was reversed, and the case remanded. It was again placed for trial at the November Term, 1852, of the District Court, and was tried by a jury, who, on the 30th November, found a verdict for the defendant, and judgment was rendered against plaintiff for costs. Plaintiff asked for a new trial, which was refused by the court below. Plaintiff appealed, and again brought the case into this court.</p> <p>The pleadings will be found, 2 Cal. Rep. 578. The action was for the recovery of the value of certain cattle, the property of the plaintiff, alleged to have been seized and driven off by the defendant.</p> <p>The defendant answered, and denied the allegations of the complaint, and further answered that the cattle were the property of one Lindsey Carson; that defendant was sheriff, and had placed in his hands an execution against Carson, in virtue whereof, he had levied on the cattle and sold the same, &c., and was authorized so to do by the agent of the plaintiff.</p> <p>A jury being sworn, Henry Fitch was sworn on the part of the plaintiff, and testified, I am son of plaintiff; mother, resided on gotoyome Banch, with the family, in May, 1851. Father, Henry D. Fitch, died, January, 1849. I was on the ranch when defendant came there with Pierpont and five or six others. Defendant asked me if the cattle I was driving to corral, were for him. I said not. He said he was after cattle. I told him there were no cattle there for him. I heard, next day, the cattle were gone. Witness then went in pursuit of them, and saw defendant, who told him he had taken the cattle. Witness pursued them further, and found them in possession of Long, branded with the letters H. F., his- father’s brand. Long claimed them, and forbid witness from driving them away, and threatened force. He also gave evidence of the value, &e., of the cattle, described the brand as their brand, and otherwise identified the cattle as those he was in search of, and proceeded to say:—</p> <p>Mother moved on the ranch in the spring of 1851, in April. Moses Carson had not been on the ranch for some months. We lived in the old ranch house; not the same Moses Carson had lived in. I was there some time before moving, to take care of the stock, as Carson was not there. Brother William was there; mother sent him. We were the only ones who took care of the ranch for about a year before the family moved. The cattle were branded by myself and William, with the help we hired. Mother directed me to hire. I hired as her agent; she furnished the means. We corralled the cattle during the time we were with them, in 1850 and ’51.</p> <p>Question by plaintiff. During the year 1850, was the ranch improved ? Defendant objected. Question sustained, and plaintiff excepted.</p> <p>I think no one took charge of the cattle while we were on the ranch, except ourselves, and those under our control; and we kept control till mother took possession, in the spring of 1851. They tried to get possession by force, but we stopped that.</p> <p>Question by plaintiff. Was any portion of the ranch cultivated in 1851, before the taking of the cattle ?</p> <p>A portion was cultivated by us, under mother’s direction. We raised crops, ploughed with the same oxen taken by defendant. Some of the old cows and steers that were taken, were the same that father had turned over to Moses Carson; the oxen were also the same. (The witness testified to a great many other facts, showing ownership of the cattle, unnecessary to report, and also to the possession of the ranch by his mother and the family from 1851, under whose direction he acted throughout.)</p> <p>On cross-examination, defendant asked the witness,' How did you, your mother, and Henry, transact the business of the ranch, before and since the taking of the cattle, as executors of your father’s will ?</p> <p>Answer. I don’t know that any one acted as executor before the taking. Since the taking, we have acted under mother’s directions, as executors, on the ranch. The cattle taken belonged to the estate of my father. We made a final settlement with Lindsey Carson in the fall or summer of 1851. I was not present when the settlement was made. In the absence of my mother, I did the business of the ranch, whilst I was there. I was absent in the winter of 1850 and ’51. The cattle sold to Combs, was by mother’s order. Lindsey Carson lived on a piece of ground three miles from our house.</p> <p>Plaintiff here introduced a contract between Henry D. Fitch and Moses Carson (Exhibit A), which stipulates as follows:—</p> <p> [Translation from the Spanish.) </p> <p>1st. This contract is to be in force for the term of five years.</p> <p>2d. I, Joseph M. Carson, of my part, do make myself accountable, and oblige myself to take under my charge, the rancho of Mr. Henry D. Fitch, known by the name of Sotoyome, in Sonoma, to be taken care of to the best of my intelligence and knowledge, for its better protection and forwardness.</p> <p>3d. Agrees to pay all wages of servants, and for utensils for the work, which shall be my property.</p> <p>4th. The provisions shall be taken from the produce of the rancho.</p> <p>5th. I, Henry Fitch, on my part, hold myself responsible to deliver said rancho of Sotoyome, in the month of October, to Mr. Joseph M. Carson, with all the cattle, horses, sheep, &c., that may be found on the rancho in the aforementioned month, and this contract shall be considered good, and carried into effect from the same date.</p> <p>6th. In recompense for the services of the said J. M. Carson, and to cover expenses that he incurs, I oblige and compromise myself to give him one-fourth part of all the increase of the cattle and breeding mares, and two-thirds of all the grain raised, of whatever class it may be.</p> <p>7th. Of the sheep, I, Henry D. Fitch, agree to give him, J. M. Carson, one-third part of the increase.</p> <p>8th. There shall be built, a manufactory of serapes, woollen cloths, and blankets, the expenses of which will be paid by J. M. Carson, and one-third of all the products shall be given to Henry D. Fitch, free of charge.</p> <p>9th. The before mentioned J. M. Carson shall have his branding iron apart, as we have agreed upon.</p> <p>10th. At the end of five years, I, Henry D. Fitch, on my part, do agree, in sign of my esteem, to deed him a piece of land of said rancho of Sotoyome, of two hundred acres, English measure, over and above what I have promised to give him for his personal benefit and good, and also of his family and heirs in a direct line, without being able to sell it or transfer it.</p> <p>12th. In case that H. D. Fitch wishes at any time to place another individual on the rancho, to cultivate the land, or manufacture of any kind, he shall be able to do so independently of the other stipulations, with the only exception of raising other stock, &c.; and Mr. Joseph M. Carson agrees to this condition.</p> <p>And to the well fulfilling of this contract, both parties promise and bind themselves, with their personal goods that they have or may have, renouncing all law in them forever, considering the present as valid as if it were judicial, with all the requisites that the law demands, signing two copies of the same tenor, and before two witnesses, and on common paper for want of stamped. San Gabriel, June 30th, 1840. Defective sheep not counted.</p> <p>Witnesses, H. D. Fitch,</p> <p>P. Hugo Reid, M. B. Carson.*</p> <p>Zelepa Reid.</p> <p>N.B-. We have mutually agreed to remit the ninth article. There shall be only one branding iron on the rancho ; that shall , belong to H. D. Fitch till the goods are parted, at the end of the five years; and in testimony, we sign it on the same day.</p> <p>H. D. Fitch,</p> <p>M. B. Carson.</p> <p>The foregoing instrument was originally written in Spanish. The translation, as above, is found upon the record.</p> <p>Henry Fitch, a son of plaintiff, testified that he had seen the ■cattle sold in Sonoma. They were not in view of those attending the sale, but were thirty miles off. They were taken from the ranch after the sale. M. Pierpont purchased 200 head. The sale was for so many cattle running on the ranch, and not of .any particular lot.</p> <p>The plaintiff offered to prove that the whole cattle were sold, and -not an undivided interest. Defendant objected, and the ■offer was sustained, and exception taken by defendant.</p> <p>I went on the ranch with mother, who had the charge of the whole affairs of ranch and cattle. Vacquerios were employed from time to time, by mother, and paid by her. She employed, and payed the charges down. All help was employed and paid by mother. The corral built by those employed by her. There was no cattle on the ranch with the brand of Lindsey Carson. Those taken, had it not. Mother owned the horses that the vacquerios rode. She bought 40 or 50 in the fall of 1850. I know no person on the ranch, taking care of it, who was not in mother’s employ. Moses B. Carson sent to mother to come and take possession of the ranch, in the fall of 1850; she went accordingly. I saw M. B. Carson exercise no act of ownership after she went there. I saw the rodio when 295 head, sold to Chiles, were taken. Moses and Lindsey were present. Moses went to the States in 1850. Lindsey came to me for a rodio, and I objected at first, but afterwards ordered the major domo to make one. I acted for my mother.</p> <p>Question by plaintiff. “ Had the branding been so neglected, that Mrs. Fitch had to brand some of the old cattle in the spring of 1850 ?” Objected to, and sustained. Exception by plaintiff.</p> <p>Lindsey Carson came to me for permission to milk some cows, in 1851. I heard him forbid the delivery of the cattle after the sale on execution. He claimed that the sale was illegal. At the time of settlement, L. C. said he would make us responsible for the cattle. We gave him 600 head on settlement. He was not charged with the cattle taken by the defendant.</p> <p>Question by plaintiff. “Who paid taxes on the ranch and stock in 1850 and 1851 ?” Objection by defendant. Sustained, and exception by plaintiff.</p> <p>There was an understanding by Pierpoint and me to buy 200 head of the cattle sold by Brockmon, and we did so. Afterwards I bought Pierpoint’s share, and they never were taken from the ranch. Mother was not on the ranch in December, 1850. While I was on the ranch with William, in mother’s absence, I was most in charge. In her absence I disposed of a small lot of stock. She was absent at the time of the sale. I could not say she left me as her agent. I did not so say at the time of sale or on the previous trial.</p> <p>Question by defendant. Did you, at the sale, say you would deliver the cattle sold to the buyer ? Objected to by plaintiff. Overruled. Plaintiff excepts. Answer.—I did say so, but that would not make it so.</p> <p>There never was any regular delivery of things from Carson. I suppose the cattle were the property of H. D. Fitch, deceased. There had never been any division of the estate at the time of taking.</p> <p>Question. Have you, in connection with your mother and Frederick, acted as executor "before the sale ? Objected to by plaintiff. Overruled. Plaintiff excepts. Answer.—I have with my mother, but do not know as to Frederick.</p> <p>I sold about 180 head when mother was gone, and received the pay. Mother received a part when she came back. I attended all rodios, and took general charge. Moses Carson was not at the ranch when the cattle were delivered to Chiles. I signed, with mother, on the settlement. I was not present at all the conversation on settlement. I was of age in June, 1851. Not of age at the time of sale. There was some action taken on father’s will in 1849. I never gave any bonds. I acted under my mother in my acts on the farm. Mother received the money for the cattle sold. I paid to her when I received money. She made the sales when at home. I was present when Bvockmon came for cattle, and mother forbid his taking them, and said she did not know whether Carson had 1 or 1000 head, and that Carson had said he would hold her responsible.</p> <p>Plaintiff offered to prove that Pierpoint went with defendant at the time the cattle were taken; and after the conversation between plaintiff and defendant, Pierpoint told defendant he had no right to take the cattle, and defendant said he should take them.</p> <p>Objected by defendant. Objection sustained. Exception by plaintiff. I never signed myself as executor before sale. I was merely the agent of my mother. That is what I meant when I said I was executor.</p> <p>The plaintiff also proved by Bijou, the major domo, that he had been hired by her, and went on the ranch in August, 1850, and had lived there till the present time. That Mrs. Fitch had paid him, and he was employed generally in tillage and in looking after the cattle. Six vacquerios were on the ranch when he went there, one of whom had been in the employ of Moses Carson ; all were employed by Mrs. F. after witness went there. The horses were branded with the iron of Henry D. Fitch. Moses Carson told me he had sent word to Mrs. Fitch that he wanted to deliver up the possession of the ranch. After I arrived I never saw Moses Carson take any charge of the ranch or cattle, or give any orders. A rodio was made when the 295 cattle were delivered to Chiles. I made it by Henry’s order. Lindsey Carson asked me to make a rodio, and afterwards Moses came, but I would not do it. They wanted it in order to get the cattle. I told them I would not without an order from Mrs. Fitch. Moses then brought a written order from Henry; and Henry came and ordered it. Lindsey Carson never took any charge of the cattle. I know the cattle Brockmon took away. They had been corralled about two weeks before, and ran distant from the house from 100 varas to two and a half miles, and were part of a herd of about 600. I saw them all; they were taken at Yacos. I went there with Fred. I counted them three times, oxen, cows, and other cattle, separately, 171 head in all; all branded with the ranch brand.</p> <p>Witness did not see the cattle taken, and gave testimony as to their value.</p> <p>The foregoing is the substance of the testimony for the plaintiff.</p> <p>The defendant produced Lindsey Carson, who was sworn on his part, and testified as follows: —</p> <p>I purchased of my brother, by a written article, 2d September, 1850; was living on the ranch at the time, and a year after I purchased. I took charge of the ranch and stock immediately after I purchased; there were supposed to be 6000 head of cattle or over. I sold between the 2d September and 15th May, some cattle to Chiles, say 295 in January, 1851. The 3d August, 1851, I quit, surrendered up, and made a final settlement; surrendered to Mrs. Fitch and Henry; they gave me their obligation for 500 head of beef cattle and 100 head of stock cattle. They admitted them to be a balance in full due me, on account of Moses B. Carson’s contract. Plaintiff and Henry sold some cattle. I forbid them selling or killing any, only for the use of the ranch, till I was settled with. On the 12th October, 1850, she was going to the lower country, and Henry would transact her business during her absence. Henry appeared to be head man, and not William, while the plaintiff was gone. I lived on the ranch in the summer of 1850 to 3d September; to this time my brother Moses had charge of tlie ranch. He marked and;, branded a portion of the cattle in the spring. He had vacquerios. on the ranch during that time and paid them. I sold cattle in the fall and winter of 1850 to the neighbors by the single head; these were counted in the settlement. I accounted for 400 head, including those my brother had sold—(witness stated the value of cattle at the time.) My brother told me he worked eight or nine yokes of cattle. I built the adobe house. I lived on the 200 acres after I purchased the interest of my brother. In 1850 had a conversation with plaintiff about delivering the ranch; she told me to count the cattle and turn them over. I asked her to furnish the horses. She offered those on the ranch, twenty-five or thirty. We had at least fifty conversations about the matter till we settled. I refused to turn over the cattle till she settled.</p> <p>On cross-examination witness said, he went first on the ranch in May, 1849, and lived with his brother; built a mill; went back to the ranch in July, 1850; lived in a camp ; went on by consent of his brother, and before he had any claim to the property; was living on the 200 acres when the cattle were taken. Moses said he was to have 200 acres when he settled, and if I would go and settle them he would give them to me. I don’t think Mrs. Fitch moved in August, 1850, not till 1851; don’t think she lived there between July and September, 1850. Moses had vacquerios after Mrs. Fitch came there in July. I have seen his Indians rodio the cattle but not corral them after Mrs. F. came. He did not mark any after she came. I saw him superintending the parting of cattle for Combs. The Indians were under his charge in doing it. Mrs. Fitch was at the house; the boys may have been present. The major domo is the overseer of the ranch, and acts under the direction of the proprietor. The cattle were bought of Mrs. F. Coomb wanted cattle of Moses on the contract. Moses refused, because plaintiff had ordered him not to deliver the cattle. The only acts of possession I know of my brother Moses exercising, were, that he would come to my house and bring cattle there, and have them killed for the use of the house; he had cattle killed ' for the Indians at work between July and September, 1850. I don’t know if Mrs. F. knew of the killing. Cattle used off the ranch by Moses were accounted for in the settlement. I never marked, branded, corralled, or rodiod any of the cattle. I sold 295 head without her knowledge; she told me the cattle I was selling and using to keep an account of. The cattle I sold (295 head), were not rodiod by men in my employ. I went to see Henry about a rodio in July, 1851. I thought he was fool enough to do it, and pay for the brands. I don’t know but I did tell some of the family not to deliver the cattle to the defendant.</p> <p>A letter from plaintiff to Lindsey Carson was given in evidence, dated April 22, 1851, Asking to “let me know when you shall be ready to deliver to me, in the name of your brother, my ranch and all appurtenances belonging to it.</p> <p>(Signed) “ Josefa Fitch.”</p> <p>And the answer of Carson, dated April 25, 1851. Extract: “The only answer I can make, is that you have some eight months ago taken possession of the same. The last conversation I had with you, you was to have been here in this month, and deliver to me my part of the stock, and all that I want is a compliance with the same, and now, that the time is about out, you will try and make some exertions to comply. I told your son, Henry, since you have been in Sonoma, that I wished the business settled at the time appointed.</p> <p>(Signed) “Lindsey Carson.”</p> <p>The witness, on cross-examination, further stated: I was not present when the cattle were sold on execution.</p> <p>Question by plaintiff. Did Mrs. Fitch put any horses on the ranch for the use of the vacquerios in the fall and winter of 1850 and 51 ? Objected to by defendant. Sustained, and excepted to by plaintiff.</p> <p>In my account with Mrs. F. on settlement, the cattle taken by Brockmon were not mentioned. There was nothing said about these cattle in our settlement.</p> <p>Question by plaintiff. Did you state to Henry and Frederick Fitch, that if their mother allowed the cattle to go, you would not allow them in the settlement 1 Objected to by defendant. Objection sustained, and excepted to by plaintiff.</p> <p>We did not count the stock on 23d August, on final settlement. We made a jumping settlement. I took their obligation for 600 cattle as my share.</p> <p>It was also agreed by counsel to admit that Pierpoint, if present, would swear, that plaintiff admitted and said that the cattle in the said complaint mentioned, were not, at the time of the alleged taking, in her possession, but that they were in the possession of one Carson, and' had been for a long period of time.</p> <p>The defendant offered the contract between Lindsey and Moses Carson, which plaintiff objected to. Objection overruled, and exception by plaintiff.</p> <p>By this contract, Moses B. Carson bargained and sold unto Lindsey Carson “4500 head of cattle, embracing my entire interest in the undivided cattle, more or less, of the Fitch estate, also, 50 head of horses, mares, and colts, more or less, 200 head of sheep, more or less; in fact, the intention is to sell and convey all my right, title, and interest in the undivided stock of the Fitch estate, for and in consideration of the sum of $20,525. I acknowledge the receipt of $1000, and the balance in the following bequests, to wit, $2000 on 1st September, 1851, and so on” (notes for the balance unpaid). Signed, M. B. Carson, dated 2d September, 1850, and acknowledged the same day before Martin Cooke, Notary Public, and recorded September 3d.</p> <p>■Question by defendant. When did Moses Carson assign the contract to you ? Objection by plaintiff overruled. Exception by defendant.</p> <p>Ans. On the 2d September, 1850.</p> <p>Question by defendant. What estate is this referred to in the ■contract ? Objection by plaintiff overruled, and plaintiff excepted.</p> <p>Ans. The estate of H. D. Fitch, deceased.</p> <p>Question. Where was the stock running at the time you bought of Moses Carson? Objection by plaintiff overruled, and plaintiff excepted.</p> <p>Ans. It was running on Sotoyome Ranch.</p> <p>Witness proceeds. I don’t know that Moses Carson had any other property in the estate taken than what he acquired under the contract of him and Henry D. Fitch. There were no cattle on the ranch that had my private brand on.</p> <p>The plaintiff also proved by Mr. Billings that he was at the ranch the 11th, 12th, or 13th of May. Mrs. F. wanted advice about the Carson difficulty. Mrs. Fitch made a rodio by her major domo. Did not see the rodio, but heard a noise as of a rodio, saw the rodio ground, and the marks of cattle, &c. 8 or 10 vacquerios were in with the cattle, who were all that day branding and cutting them; they were in the employ of Mrs. Fitch. Carson was there one-half or three-quarters of an hour; he talked about settling, but had nothing to do with the cattle. All the Fitch boys were there, and the whole family. Ho one apparently had charge of the business, except Mrs. Fitch. I left on the 12th May. As I came back, I met defendant and Pier-point going after cattle; there had been a sale previous to this. I think the cattle were taken on the 14th or 15th. I heard the next day they had been taken. I saw them go through the city of Sonoma.</p> <p>Plaintiff produced in evidence the following receipt:—</p> <p>“ Received, May 13,1851, from the possession of Mrs. Henry Fitch, upon her ranch at Russian River, two hundred head of stock cattle, which I have levied upon and seized as the property of Lindsey Carson (as the bailee or lessee of Moses B. Carson), upon an execution of John A. Griffith v. Lindsey Carson.</p> <p>(Signed) “Israel Brockmon,</p> <p>“Sheriff of Sonoma County.”</p> <p>The plaintiff asked the court to instruct the jury as follows:—</p> <p>1st. That if the jury find that the defendant took the property from the possession of the plaintiff, he is liable to the plaintiff in this action, unless the jury find that defendant was owner of the property, or took by virtue of a legal process against the true owner, or had plaintiff’s permission or license to take the same.</p> <p>2d. That evidence of the plaintiff having corralled, branded, rodiod, worked, and milked the cattle by herself or her agents, is evidence of possession in her, and that it is not necessary for the plaintiff to prove that she was personally and constantly in view of the property, to establish a possession in herself.</p> <p>3d. That the evidence of Lindsey Carson, if believed, proves the possession of the property to have been in the plaintiff at the time of the trespass.</p> <p>4th. That evidence that Henry Fitch was agent of the plaintiff, in taking charge of the ranch and transacting business generally, would not be sufficient to prove an agency authorizing him to consent to the levy and sale, or taking by the defendant of the cattle, so as to bind the plaintiff, and prevent her recovering in this action.</p> <p>5th. That if the jury find that the cattle were not present and within view of those attending the sale, then the sale was void, unless the jury find that the cattle had the mark or brand of the execution debtor, Lindsey Carson.</p> <p>6th. That unless the defendant sold the particular cattle taken by him, he was not justified in taking them from the possession of the plaintiff.</p> <p>7th. That if the jury find that Lindsey Carson owned but an undivided interest in the cattle, the sale !'of the whole was such an abuse of his authority as would make him liable in trespass to the plaintiff; provided the cattle were taken from -the possession of the plaintiff.</p> <p>8th. That the contract between Henry D. Fitch and Moses B. Carson did not give Moses B. Carson any legal title to any of the cattle till after the contract was performed by M. B. Carson, and the cattle delivered.</p> <p>9th. That neither M. B. Carson nor his assignee under the contract with Henry D. Fitch had right to the possession of the cattle or ranch, after the 12th day of October, 1850 (as against the owners).</p> <p>10th. That M. B. Carson, under the contract with H. D. Fitch, had no right to assign his interest in the contract or cattle i to Lindsey Carson, and put Lindsey Carson in possession.</p> <p>11th. That Lindsey Carson, after the 2d day of October, 1850, had no legal right, under the contract between H. D. Fitch and M. B. Carson, and the assignment or contract between M. B. Carson to himself, to either the possession of the ranch or cattle.</p> <p>12th. That Lindsey Carson, by virtue of the contract between H. D. Fitch and M. B. Carson, and the contract between Moses B. Carson and himself, had no interest in the property that could be seized and sold on execution.</p> <p>13th. That the evidence of Lindsey Carson does not prove a possession in him.</p> <p>14th. That there is no evidence showing a possession of the property in Lindsey Carson.</p> <p>The District Judge instructed the jury that the 1st, 2d, 4th, 5th, 6th, 7th, and 9th of the foregoing instructions were correct and given. That the remaining ones, the 3d, 8th, 10th, 11th, 12th, 13th, and 14th, are refused, and not given.</p> <p>For* refusing the last-designated instructions, the plaintiff excepted. Verdict for defendant. Plaintiff appealed.</p> <p>[The Reporter begs to -remark, by way of apology for the length of the foregoing detail of the evidence in this case, that in the generality of the concluding part of the opinion of this court, the whole evidence appears to be embraced, and he did not venture materially to abridge it.]</p>

<p>Appeal from the District Court of the Ninth Judicial District, Colusi County.</p> <p>This was an application against the sheriff, to pay over money which came into his hands on execution. The proceeding was under “ an act concerning sheriffs,” passed April 29th, 1851.</p> <p>The following were the facts presented to the court as agreed upon.</p> <p>That at the November Term, 1852, said Clymer obtained judgment against L. H. Sanderson for $3647, upon which an execution issued and was delivered to H. P. Bernes, then acting as under-sheriff of said Willis, on the 6th November, 1852, returnable in 30 days; the return of which shows, that $3540 had been made thereon by the sheriff; and Willis, by his said under-sheriff, makes a special return, showing that the sum of $2614 40 was paid over to said Clymer, and that on the 20th November, 1852, there were three writs of attachment issued by Newell Hall, J. P., in favor of different plaintiffs, and against Luther H. Sanderson and Samuel S. Clymer, defendants, by virtue of which, he leviedyipon the gross sum of $615 14, of the money he collected, and in his possession, as the money of said Clymer, and admitting the sum of $310 46 to be due, and claiming to retain the said sum of $615 14 in his hands, subject to the attachments aforesaid, which he refuses to pay over to said Conger and Aukeny, as assignees of said Clymer; to whom Clymer assigned said judgment on the 17th January, 1853, and who made a legal demand on the sheriff for the sum of $925 60, which they claimed to be due, of which claim notice was duly served on said sheriff, and of this application.</p> <p>Upon these facts plaintiffs demand judgment against defendant, for the above sum of $925 60, less the said sum of $310 40.</p> <p>The court refused the prayer and application of the plaintiffs, and ordered, that defendant recover his costs; to which plaintiffs except, and appeal, and as the ground of error, allege that the money attached in the hands of the sheriff was in the custody of the law, and not liable to be attached as the money of said Clymer, and for other causes.</p>

<p>Appeal from the District Court of the Sixth Judicial District.</p> <p>This action was brought to recover the license-money alleged to be due under the acts to license gaming, of March 15th, 1851, and April 29th, 1851. See statutes 1851, pp. 165-167.</p> <p>The complaint avers that the defendant kept a gaming-house in Sacramento City, with more than three gaming-tables, in which banking games, and games having a percentage, were played during a period of three months, and had thereby become liable to pay the plaintiffs the sum of $500, under the statute, which he had refused to pay.</p> <p>The defendant demurred, on the ground that the complaint did not state facts sufficient to constitute a cause of action.</p> <p>The demand was sustained, and plaintiff appealed.</p>

<p>Appeal from the District Court of the Fourth Judicial District.</p> <p>This action was brought by plaintiff against defendants, to recover the value of three horses, which, with three carriages and three sets of harness, were let to the defendant, Henderson, to perform a journey from San Francisco to Angelos, on the 27th November, 1851. And the complaint alleges that by means of the unreasonable, violent, and careless driving of the defendants, one of said horses died during the journey, and that the other two were greatly injured.</p> <p>Defendant, Pidwell, demurred, and for cause, stated that, as appears by the complaint, this defendant did not hire and receive the said horses, &c., neither was there any contract, express or implied, for the hiring of them, between the said plaintiff and defendant, but that the same were hired, &c., by Henderson alone.</p> <p>Defendant, Henderson, answered separately, and denied that he made any contract for the hire of said horses, &c., with the defendant, Pidwell; admits that he made a contract with the plaintiff for the hire, and that he received the horses, &c., but denies carelessness, &c., in the use or driving; and admits that one horse died, as alleged, but denies all knowledge of injury to either of them while in his possession.</p> <p>Defendant, Pidwell, also answered, and denied any knowledge of the contract alleged in the complaint, but admits that he received a carriage and two horses from the defendant, Henderson, at the time alleged, and drove them, but denies that he drove them in the careless, &c., manner alleged, and admits that one horse died while in his possession.</p> <p>The case was referred, and the referee examined several witnesses as to the injury complained of, hard driving, the value of the horses alleged to have been lost and injured, &c.</p> <p>The defendants, Henderson and Pidwell, were, in the course of the hearing, offered by the defendants as witnesses, each for the other; the referee rejected both witnesses, to which the counsel for the defendants excepted.</p> <p>The referee found that the defendants had driven the horses, as alleged in the complaint, and the injuries alleged, and found damages for the plaintiff $524 60, for which judgment was entered, and defendants appealed.</p> <p>The question in the Supreme Court was, as to the admission of the defendants to testify for each other.</p>

<p>Where the complaint alleged that in September, 1849, plaintiff settled on a tract of land, “ the same being public land of the United States,” that subsequently H., a foreigner, built a house and occupied a portion of the tract, and now that H.’s executor is offering the same for sale, and plaintiff prays an injunction, and damages for the occupation: Held, that the complaint sets forth no principle on which to base a claim.</p> <p>The prospective pre-emption Act of Congress of 1841, is expressly confined to the surveyed lands, and was not extended to California at the time of the acts complained of, and the statute of this State, which protects the possession of settlers on public lands, to the extent of 160 acres, was not passed until April, 1852, long after the commencement of this suit. Under neither of these acts can the plaintiff claim any rights, and by his own showing he is a mere trespasser.</p> <p>An action - brought under the Act of 1850, must show that the possession of the plaintiff has been invaded.</p> <p>The right to recover for use and occupation is founded alone on contract.</p> <p>A trespass dies with the trespasser.</p>

<p>Appeal from the Fourth Judicial District.</p> <p>The complaint in this case stated, that on the 22d March, 1852, the defendants sold to the plaintiffs an invoice of goods, and gave to said plaintiffs a note of sale thereof, as follows:—</p> <p>“ San Francisco, March 22, 1852.</p> <p>“ Sold this day to Tobin & Duncan, cases of silk goods, ‘per Mazeppa,’ being the entire invoice of silks, shawls, and satins, marked ; said invoice is sold T. & D. at 100 per cent, on Chinese cost, being $20,000, more or less.</p> <p>(Signed) “G-. B. Post & Co.”</p> <p>And in accordance with said note of sale, defendants delivered a part of said goods to plaintiffs, who so received them. But thereafter, on the 24th March, the defendants wholly declined and refused to deliver the remainder of said goods, though often requested by plaintiffs, who was ready and offered to pay for the same, and had performed all conditions on their part, &c., to their damage, $10,000.</p> <p>The defendants answered, and deny that they sold, or that plaintiffs purchased, the goods, as set forth, &c., and deny that the defendants delivered any part of said goods, in part performance of the writing set forth in the complaint; deny that they ever refused to deliver the said goods, according to the terms of said writing; deny that plaintiffs were ready or offered to pay according to the terms of the said writing, or that they were willing to accept the said goods, according to the terms thereof, or that plaintiffs had performed, &c.; and set up as a counter claim, arising out of said transaction, that on the 24th March, and since, the defendants were ready and willing, and offered to deliver the goods to the said plaintiffs, the goods in the said writing mentioned, upon the terms therein set forth, but the plaintiffs refused, and had ever since refused, to accept them, and to pay for them, according to the terms of said writing: by means whereof the defendants have sustained damage to the amount of $10,000; and that plaintiffs are further indebted to defendants for goods sold and delivered to them of the value of $3000, and prays judgment, &c.</p> <p>The principal difficulty in the case, arose out of what constituted the “ Chinese cost,” stipulated to be paid for the goods by the agreement or note of sale. Upon the entry of the goods at the custom-house, an invoice had been filed which amounted to less, by 60 or 70 per cent., than the price demanded by the defendants. The plaintiffs claimed the goods at the former rates. Defendants claimed a higher rate, &c., and examined witnesses to show the actual cost of the goods in China.</p> <p>The question, however, was not considered in this court. But in the course of the trial below, the plaintiffs called a witness, who testified, that he had been engaged in the Chinese trade; was one of the merchants who appraised these goods; “ to the best of my recollection they were the only invoice of Chinese silk goods in the market. I met Tobin (one of the plaintiffs), and told him of these goods, and that they were suitable for his trade, and advised plaintiffs to buy them. I made a transaction between plaintiffs and Goodall at 125 percent, advance on Chinese cost. I have been in China three times, four months at a time. I told Tobin these goods were low. I was in the habit of posting him up as to the arrival and value of Chinese goods. They are buying invoices of the importer, and retailing them at auction. Tobin & Duncan could only have supplied themselves at that time with goods like these, by purchasing them at second hand, in broken lots.”</p> <p>The defendants’ counsel objected to evidence of the price at which goods are bought and sold in such quantities. The objection was overruled, and exception taken.</p> <p>The witness proceeds. “ The difference of buying by invoice and in broken parcels, is about 50 per cent. These goods could be sold at that advance in small lots. Goodall’s lot amounted to $12,000 or $13,000 on Chinese cost.”</p> <p>Another witness being questioned as to the rate of profits of plaintiffs (was objected to, and objection overruled), said: “The plaintiffs sell at an average advance of 50 per cent.” The case was given to the jury, and verdict for plaintiff $6469 50, and judgment accordingly.</p> <p>The court refused a new trial, and defendants appealed.</p>

<p>An appeal will not lie from an order of court refusing to set aside an interlocutory judgment. It should be taken upon the order itself.</p>

<p>On a rule to show cause why the arrest of a party ordered by the court on the allegation of fraud should not be vacated, the question of fact involved in it must be decided like any other fact, by the weight of evidence.</p> <p>To entitle a party to the remedy of arrest, it is not necessary that he should show positively the commission of a fraud. It is sufficient if the circumstances detailed would induce a reasonable belief that a fraud was intended.</p> <p>As a matter of practice, it is safest to award an arrest, even in cases of doubt, for the defendant is protected by his bond from abuse by the process; without which process the plaintiff may be remediless.</p>

<p>Appeal from the District Court of the Seventh Judicial District.</p>

<p>The captain of a vessel drew on his owner for $600, to defray the expenses of the first mate, who was injured on the voyage, and who it became necessary to leave on shore for his recovery. In an action by the captain against the owner for wages, the owner claimed to set off $450 of the amount of the draft against the claim, on the ground that he was liable for it, but did not produce the draft, or show payment of it: Held, that the court below properly rejected the set-off.</p> <p>No right of action can accrue upon a draft until payment. And where there is no right of action, there is no right of set-off.</p>

<p>Appeal from the Fourth Judicial District.</p> <p>The complaint in this case, set forth that the defendant and one Henry Williamson were engaged as partners in general business, for three years, prior to the 10th January, 1853, when they dissolved by mutual consent, and it was agreed that defendant should settle and arrange the business of said co-partnership, collect the debts, pay liabilities, &c., and account to the said Henry Williamson for all assets of every description which might come into his hands, and should arrange said business before April, 1853, and pay over to said Williamson, $15,000 in money, as part of said assets of said firm, to which said Williamson would be entitled; that all the assets of the said firm remained in the hands of said defendant, and under his control, which exceeded $60,000 in value, and which the bill proceeds to enumerate so far as the complainant had knowledge. That said Williamson, with the consent of defendant, conveyed, on the 14th March, 1853, all his interest and estate in the partnership property and assets, to Napoleon Stone, who, on the 8th May, 1853, sold and conveyed the same to the plaintiff.</p> <p>And charges that defendant is wasting the property, applying the same to his own use, has not applied the assets in discharge of the debts of the firm, &c., and has refused to account to complainant. That defendant has no property except the partnership property, &c., and prays that defendant may be compelled to answer, &c., and fully account for all the assets, &c., and show his disposition of them, what debts are due, what paid, &c., and that a receiver be appointed to take possession of said property, books, papers, &c., of the firm, with power to collect the debts, &c.; and charges that plaintiff believes that defendant will sell said property, assign the notes, &c., for the purpose of defrauding him, unless restrained, and prays for an injunction to restrain him from so doing; and to restrain creditors from paying their debts to the defendant; and that an account may be taken of all matters relating to said copartnership, the debts collected, and the property sold, and the plaintiff paid as he may be entitled to the same, and for further relief.</p> <p>May 19, 1853, the court, on the above application, ordered an injunction to issue against defendant, in conformity to the prayer, until further order in the premises.</p> <p>The answer of the defendant admits the partnership and its dissolution, but denies that he was bound to arrange the business before the 1st April, 1853, or on any other day; denies any promise to pay the said Henry Williamson $15,000, as his part of the assets, or any other definite sum; but admits that he is bound to settle up the business and pay his equal part to said Williamson. The answer then proceeds to state the condition of the assets, the amount received by him, the amount collected, the amount paid, the amount on hand, and the amount yet due, specifying particularly in each case, as charged in the complaint, and denies any misapplication of the funds, and asserts, that the charge that he has no property except that of the partnership, is false; admits the sale to Stone, but denies that he agreed to pay $15,000 on the 1st April; that he never refused to account, because an account was never demanded of him, and admits that Stone has stated that he had sold his interest in the property, to defendant, but does not know the fact. Denies wasting the estate, and states that he was the acting member of the firm, and knows all about the business, and if the settlement were put into the hands of any one else, the concern would suffer immense loss, and prays that the injunction be dissolved, and that he be permitted to continue to conduct the affairs, &c., and that plaintiff’s complaint be dismissed.</p> <p>There were several affidavits introduced by the respective parties, and submitted to the court in relation to the property of Monroe, his statements, made at different times, at variance with his answer, which being considered, the court denied the motion for an injunction. But further ordered, that J. Parker, Esq., be appointed receiver in the case, and hold the property, money, &c., till the further order of the court, and to give bond in $20,000 for faithful performance. Defendant appealed.</p>

In this case, the plaintiff applied to the District Court for a certiorari, setting forth in his affidavit, that he is the owner of a bridge across the Cosumnes River, on the road leading from the City of Sacramento to Drytown and Jackson, which said bridge is of the capacity, &c., required by law; that the said bridge is licensed, and that he is charging toll for crossing the same; and further saith, that Harvey Alvard and J. H. Pascal have presented an application to the…

<p>Appeal from the Sixth Judicial District.</p> <p>This was a proceeding in forcible entry and detainer, commenced before a Justice of the Peace, in Sacramento County, from whose judgment defendants appealed to the County Court, and on the May, one of defendants, Adam Hudson, was discharged by the court. October 2d, the plaintiff moved to set aside the order discharging said defendant, and that he be reinstated on the record. On the 9th October, the court ordered that defendant be reinstated on the record, and the judgment dismissing him was set aside. To this judgment the defendant excepted, and took an appeal to the District Court of the Sixth Judicial District, by whom the cause was dismissed for want of jurisdiction, &c. Defendant appealed to this court.</p>

<p>Appeal from the Superior Court of San Francisco.</p> <p>The plaintiff complained that he is the owner in fee simple, and entitled to the possession of the building formerly known as the Pacific Hotel, and now called the Columbia Hotel, in the City of San Francisco ; and the lot on which it stands (describing it), and that defendants are in possession of said property, and unlawfully withhold possession from him. And further shows, that on the 17th November, 1851, he recovered judgment in the District Court of the Fourth District, against one George W. Bradley, then the owner of the property, and issued an execution thereon to the sheriff of said county, who levied upon the said Columbia Hotel, and the said lot on which the same stands, and afterwards sold and conveyed the same to the plaintiff, who by reason thereof became and is now the owner thereof, and entitled to the possession, &c. And further saith, that defendants are indebted to him $2000, for withholding the possession of the last-mentioned property from plaintiff, from the 5th January, 1852; and a further sum of $2000, for the rents, issues, and profits, of the said hotel and property, from the said 5th January, 1852, till the present time; and prays that defendants be adjudged to surrender the possession, and to pay the damages for withholding, &c., and for the rents, &c.</p> <p>The defendants answer, and deny plaintiff’s ownership, his right to possession, the unlawful withholding of possession, and all indebtedness; and show and aver that they are in lawful possession of said premises, and entitled thereto. That on the 8th March, 1850, Christopher Russ, the owner, leased the said premises for the term of three years to the Tallman Mining and Trading Association, at a ground rent of $500 per annum ; that said association, on the 22d November, 1850, assigned said term to George W. Bradley, who made said improvements, first known as the Richelieu Hotel; that on the 26th December, 1850, said Bradley conveyed his term in the premises and the buildings thereon, by deed of defeasance or mortgage, to Jonathan Morse; that on the 30th April, 1851, Bradley leased the premises to Christiana Keys, now Dopkins, wife of Daniel Dopkins, defendant, for one year, to commence on the 1st May, 1851. That on the 1st July, 1851, the said Christiana, then Christiana Keys, contracted with said Morse, for the purchase of his interest, and mortgage on the premises, she paying therefor $2500, and said Morse on the 16th July, 1852, conveyed to said Christiana, then married to Hopkins, all his right, title, and interest, in the premises, including the buildings thereon and his mortgage, to the amount of $2500, and the interest accrued and accruing thereon.</p> <p>And further show, that said Christiana possessed said premises lawfully, as tenant aforesaid, until she became owner by the contract and conveyance with said Morse, and from that time has possessed the same as mortgagee in possession; and that defendant has been since his marriage, and now is, in possession, in right of his wife. That plaintiff has no other or better right than that obtained through Bradley, which is at most but an equity of redemption; and pray that plaintiff’s bill be dismissed, &c.</p> <p>The statement of the case as exhibited on the record shows, that the plaintiff gave in evidence the judgment and sale, as laid in his complaint, that Christopher Buss was owner of the premises, who on the 8th March, 1850, leased to the Tallman Mining Company, for three years, who assigned the lease to Bradley, who took possession of the premises, and was the owner of the buildings thereon, at the time of the assignment to him. That after the sale in January, plaintiff demanded possession of defendants, or payment of rent: they refused to do either; and he demanded possession again after he received his deed in July, 1852; when defendants again refused, and claimed to be the owners of the property. The plaintiff then showed them his deed from the sheriff; and that at the time of the sheriff’s levy and sale, Bradley was in the hotel engaged in conducting the same, and that the rent was worth $300 a month.</p> <p>The sheriff’s book showed, that the sale was made subject to redemption, and that after the time for redemption had expired a deed was executed to plaintiff, under the sheriff’s sale. Plaintiff gave in evidence the sheriff’s deed to him, dated 15th July, 1852.</p> <p>Befendants here moved for a nonsuit, alleging irregularities in the deed; which the court overruled.</p> <p>The defendants gave in evidence a mortgage, Bradley to Morse, 26th Becember, 1850; contract between Morse and Christiana Keys, July 1st, 1851; assignment 16th June, 1851, from Morse to Christiana Keys, wife of Dopkins; conveyance from Morse to Christiana Keys, November 21st, 1851; lease from Bradley to Christiana Keys, 30th April, 1851.</p> <p>Morse, for defendants, proved, that Bradley negotiated the contract between him and Mrs. Dopkins of July 1st, T851; that both parties lived on the premises; that Bradley generally made the payments under the - agreement; that Bradley also negotiated the agreement of 20th November, 1851 (for property sold by Mrs. Keys to Bradley), the proceeds of which $1200, had been paid to witness ; that witness had been paid the $2500, mentioned in the agreement of July 1st, 1851; the endorsement is signed by Bradley; that the hotel was worth in rents the past year from 250 to 300 dollars per month. That witness held the mortgage and notes from Bradley to him, until June, 1852, and then assigned, and gave one of them up to Mrs. Keys, and still holds the mortgage and the other note, which remain due and unpaid. The endorsements on the contract of July, 1851, are signed by Bradley.</p> <p>Bradley swore that he leased to Mrs. Keys, 30th April, 1851, and gave the lease in evidence; she kept the house on her own account. The rent went on only till the 1st July, 1851; from the time of the sale (1st July), witness only assisted. Witness went to Morse, and told him he would not reduce his debt unless he agreed to an arrangement, and Mrs. Keys said, she would buy if witness was willing ; the agreement was then made between Morse and Mrs. Keys, of the 1st July, 1851; witness sold the furniture in the house to her, after she bought Morse out. She paid him $100 rent and board; she was to have the house on these conditions before she purchased. After July, witness was there nearly all the time, and was paid for his services.</p> <p>The jury, by agreement of counsel, and upon a statement of questions, brought in a special verdict, and found as follows :—</p> <p>1st. That the monthly rent or value of the hotel, from 1st April, 1851, to the present time was $300 per month.</p> <p>'2d. That the monthly rent of the cottages for the same time, including ground rent, was $150 per month.</p> <p>3d. That the sale and transfer to Mrs. Keys was done by her in good faith, and with no intent to hinder, delay, or defraud the creditors of Bradley.</p> <p>Upon the verdict so rendered, and the undisputed facts, the court found that the plaintiff was entitled to recover the possession of the premises in the complaint mentioned, and assessed damages for the detention, at the sum of $2000, and ordered judgment accordingly. Defendants appealed.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>The plaintiff complained that in July, 1852, the defendants .undertook to procure from the city of New York, and to furnish to the plaintiff at the city of San Francisco, 2000 pounds of hops of the best quality, the plaintiff to pay the fair market value thereof in the city of New York, where the same should be purchased, with insurance, freight, &c., to San Francisco, at 5 per cent, on the aggregate amount; that on the 25th Novemher, the defendants presented to plaintiff a bill for 2221 pounds of hops, purchased, as he said, in pursuance of said understanding, at 50 cents per pound, and shipped, &c., which, with freight &c., amounted to $1294 50, which plaintiff paid to defendants. That in December following the ship arrived with the hops; plaintiff paid the freight thereon, $247 62, and the hops were delivered to him ; that as soon after their delivery as practicable, they were examined, and found to be unsound and unmerchantable, and inferior and bad in quality, and nearly worthless. That plaintiff notified the defendants of this, and requested them to take back the hops, and reimburse the plaintiff the sum paid by him, which they refused to do. That the said hops were thereupon, after due notice, sold at public auction, for eight and five-eighths cents per pound, the whole yielding net $165 72, which plaintiff avers was the full value, &c.</p> <p>The defendants answered and denied the allegations of the complaint, and all indebtedness to plaintiff, and admit that they did order from New York certain hops to be sent to San Francisco, but aver that they so ordered the same at the request of the plaintiff, and as his agents through the mercantile firm of A. & A. Wetmore, commission merchants in New York, that the hops so ordered are the hops mentioned in the complaint, and were, when purchased in New York, “ first sort” hops, and were so certified by the legal inspector of hops in said city; that plaintiff paid defendants 5 per cent, commission for the purchase, and also paid a commission to A. Wetmore & Co., for purchasing and shipping the same, and aver that the hops arrived at San Francisco in good order’, and were received by plaintiff, he having paid the bill, as stated in the complaint, before the vessel arrived with the bills of lading and inspector’s certificate that the hops were “ first sort,” and deny that plaintiff sold the hops on account of defendants, or sold them at the best price they would bring. .And specially deny that the hops were unsound or unmerchantable, as alleged by plaintiff, but aver they were “ first sort,” &c., when purchased at New York, and when shipped, and so continued till received by plaintiff.</p> <p>The cause was submitted to a jury, and several witnesses were-examined for the respective parties, whose testimony was conflicting as to the quality of the hops, and' whether the inferior quality proved by some of the witnesses existed at the time of the purchase and shipment from New York, or was occasioned by the voyage.</p> <p>After the evidence had been closed, the plaintiff stated to the court that if the hops were of good quality when shipped from New York, he made no claim.</p> <p>The court then instructed the jury to find a special verdict in answer to the following propositions.</p> <p>1. Were the hops in question, when they were purchased and shipped in New York, “ first sort” hops ?</p> <p>2. What was the market value of these hops, when they were received by the plaintiff in San Francisco.</p> <p>The jury found.:—■</p> <p>1. That the hops in question, when purchased and shipped at New York, were “ first sort” hops.</p> <p>2. That the market value of the hops, when received by plaintiff in San Francisco, was $1 18 per pound.</p> <p>Plaintiff moved for a new trial, which was denied, and judgment for defendants was ordered, in accordance with the special verdict. Plaintiff appealed.</p>

The petition of the plaintiff set forth, that the defendant entered into his obligation, in writing, on the 25th day of October, 1850, to convey to plaintiff two thousand varas square, of land (describing it), on the ranch of said defendant, and to run parallel with a hill, &c., embracing a new corral, &c., the said plaintiff to pay the said defendant $2000 as set forth; and in case plaintiff paid the above sum, defendant was to call a surveyor and run the lines, and make…

<p>Appeal from the Tenth Judicial District, Eldorado County.</p> <p>The complaint set forth that on the day of July, 1853, plaintiff was in possession of a mining claim, located according to law, &c. (describing it), and also the owner of mining tools, upon said claim of the value of $1100. And that on said day, the defendant came upon the claim, and pretending to act as a deputy tax collector of foreign miners’ tax, sold said mining claim and tools, to one John Doe (whose real name is unknown), and put him in possession of the same, and did oust plaintiff of the possession of said claim and tools, to his damage $2000, and prays judgment, &c.</p> <p>Defendant answered, that he was in reality, a deputy collector of foreign miners’ tax; denies the value alleged of the tools, and the damage, and further says, that defendant had in his employment one John Doe, a foreigner (name unknown), who failed to show that he was a citizen of the United States ; and refused, and the plaintiff also refused, to pay his tax as a foreigner, according to the statute, &c. And that defendant levied upon, advertised, and sold said property, to satisfy the amount due, to wit, $4 and costs, from said foreigner, as his foreign miners’ tax, pursuant to the statute, &c., in the discharge of his duty as deputy collector, &c., and prays to he discharged, and judgment for costs, &c.</p> <p>The statement of the evidence by the court, shows, that on the 13th April, 1853, plaintiff and Hastinger, and two others, all Germans, were the joint owners of the mining claim and tools, mentioned in the complaint, and equally entitled to the proceeds arising therefrom. That Hastinger was sick, and absent at the time, and had one Wittenger, an unnaturalized German, at work on the claim in his place; that the gold as it was taken out of the claim, went into the hands of the plaintiff; and that he and the other owners divided at stated periods. That the claim at this time, was paying about $8 per day to the hands, and that it contained ground enough to furnish labor for four hands, twelve months; that the mining tools were worth $80. That defendant was acting deputy sheriff, with authority, &c.</p> <p>One of the joint owners testified, that he and plaintiff and Wittinger, were at work on the claim; that on the morning of the 13th July, defendant came upon the claim, and said he would sell two shares in it for the license tax, due by witness and Hastinger ; that he did not sell at that time, but went away and was gone about four hours, and returned and sold the claim and tools, to one Bufort for ten dollars, and put him in possession; that it was sold for the license tax of Wittenger; that on the same day? ■defendant gave Wittenger a paper, which witness supposed was ¡a license to him as a foreign miner.</p> <p>Bufort and another witness testified, that the defendant publicly proclaimed his intention of selling the claim, more than an hour before the sale took place; that Meyer, the plaintiff, was .present, and made no objection.</p> <p>Judgment for defendant, and for costs $235.</p> <p>Plaintiff appealed.</p>

The plaintiffs brought this action against the defendant to recover $900, for services alleged to have been rendered to the defendant as attorneys at law. The defendant denied the services, or if services were rendered, averred that they were not worth so large a sum.

<p>Appeal from the Sixth Judicial District.</p> <p>This action was for the recovery of a quantity of lumber consigned by plaintiffs to defendants, who prayed for an account and payment of the amount due. The defendants admitted that they had received lumber on consignment from plaintiffs, and exhibited an account of sales, &c.; showing the plaintiffs to be overpaid, and claiming the balance, &e.</p> <p>The case was referred by consent to Charles J. Hughes, to take the testimony and report the facts, who took several depositions, and heard the facts submitted in the case, and reported the same to the court. When, on motion, the report of Hughes was referred to E. Casserly, Esq., to report a judgment thereon, who reported, that upon the facts as found by the referee, Hughes, in his report, annexed and referred to, the conclusions of law are, that at the time of commencing this action, the said defendants were indebted to the plaintiffs in the sum of $1691, with interest and costs, for which sum judgment was rendered for plaintiffs Defendants excepted to the report, and the court ordered that it be set aside without costs to either party, and that the cause be again referred to E. Casserly, Esq., to hear and determine the same upon the proofs as taken by C. J. Hughes, Esq., and to report the same to this court. The referee afterwards filed his report, by which he found, that on the 5th February, 1852, there was due by the defendants to the plaintiffs the sum of $1684 96, which with interest is $1898 96, for which sum, with costs, there should be judgment for plaintiffs; and judgment was rendered accordingly.</p> <p>The report was excepted to by defendants, on the ground that it did not find the facts established by the evidence and proofs referred to the referee to report a judgment upon, and that it is against the evidence and law of the case.</p> <p>The court refused a new trial, and defendants appealed.</p>

<p>The granting a change of venue is discretionary with the court below, subject to review only in cases of gross abuse.</p> <p>The peculiar condition of things in California is unfavorable to change of the place of trial, or delays in the administration of justice.</p> <p>These applications often result in a loss of all the rights involved.</p> <p>It will operate against the application, where the affidavit of the party shows, that all the witnesses of his adversary reside in the place from whence he applies to remove the trial.</p> <p>The affidavit should state the facts in such a manner as to enable the court to draw its own inference, whether or not an impartial trial could be had in the particular case. If it fail in this, it will not warrant the court in changing the venue.</p>

The. complaint alleges that the plaintiff, on the 12th September, 1852, was owner of one-half of the Schooner Groliah, of the value of $6000, which was moored at the port of San Francisco ; that on the 15th December, 1852, defendant took the said schooner and converted her to his own use, and being unlawfully possessed of her as aforesaid, sent her to Angel Island, where she was damaged and spoiled, and plaintiff lost his half of her, to his damage $3000, the half value of…

This was an action founded on a judgment in the Court of First Instance.

<p>Appeal from the. Superior Court of the City of San Francisco.</p>

<p>To admit proof of the handwriting of a witness to an instrument, it must be shown that the witness is beyond the jurisdiction of the court, or, that he could not be found after diligent search for him had been made; that his absence may be inferred.</p> <p>The act of 1851, sect. 21, gives to papers properly recorded, the like effect as the originals, but it does not dispense with proof of execution.</p> <p>The certificate of a tax collector, offered to prove payment of taxes, so as to show that there was no abandonment of the possession of the premises, is not evidence, where the tax collector himself can be called as a witness.</p> <p>In his absence, his receipt for taxes, with proof of its execution, would be admissible.</p>

The complaint in this case set forth an agreement between the plaintiffs and defendants, reciting a suit in the Superior Court of San Francisco, in which J. B. L. Montifiori and G. T. Burgoyne were plaintiffs, and Lewis Reford was defendant, in which the plaintiffs had caused all the right, title, and interest of defendants in and to the ship Thracian and her cargo, to be attached, and claim that defendants have an interest in the whole of the same, which the undermentioned…

<p>Appeal from the Superior Court of San Francisco.</p> <p>The complaint stated that the defendants in this ease, Bidleleman, M’Leman, M’Coy, and Laffan were partners, doing business under the name of “ The Pacific Brewery and Distillery Company that the plaintiff lent the defendants, at their request, divers sums of money, amounting in the whole to $735 94, of which there were repaid $100, and the balance, $635, remained due and unpaid, with interest, &c.</p> <p>The writ was served upon Bidleman alone, who answered, and denied the partnership, and denied the alleged loan and all indebtedness.</p> <p>On the trial before a jury, James M’Leman was sworn for plaintiff, and testified that he knew the plaintiff, not personally, but by correspondence; that he knew defendants; that they were associated in business, under the firm of “ The Pacific Brewery and Distillerythat he knew of money borrowed by the defendants of the plaintiff, in the fall of 1850, the amount $735 ; that defendants are entitled to a credit of $100 paid.</p> <p>On cross-examination the witness said: “I am one of the defendants in this suit, one of the partners. I borrowed this money, with the consent and direction of Mr. Bidleman. I borrowed it of the plaintiff’s agent. I was the agent of the plaintiff from whom this money was borrowed. I borrowed it from myself as such agent. I had funds in my hands, as the proceeds of goods consigned to me by the plaintiff, to be sold, and sold by me for his account. The defendants’ firm was in want of money to use and pay off wages. I applied to Bidleman, to whom all the goods manufactured for the company were sent for sale, and who was bound to furnish all funds for disbursements for these purposes. He requested me to wait till after steamer day. I told him I had some funds on hand, the proceeds of the plaintiff’s goods consigned to me, and that if I could rely on their being refunded, I would use them for the purpose. He told me to do so, and he would refund or return them. I did use them so, accordingly; the thing thus run along some time, and the money has never been returned. I was not indebted to the firm.”</p> <p>The witness further said that the plaintiff was in the habit of consigning goods to him, and he of remitting the proceeds to plaintiff from sales of his goods as instructed by him, and this was the extent of his agency for plaintiff.</p> <p>“ I directed this suit to be brought as plaintiff’s agent. If the money is recovered, it will be paid over to me as plaintiff’s agent.</p> <p>“ I kept a bank account at this time in my own name, and deposited in that account all funds, as I received them, that came into my hands as an individual, as distinguished from the said firm.” The witness kept the firm accounts and books.</p> <p>The plaintiff here rested his case, and the defendants asked for a nonsuit, which the court refused, and instructed the jury to find for the plaintiff for the amount proved, who found for plaintiff 1731 72 and interest; and a new trial being refused, defendants appealed.</p>

<p>Appeal from the Fourth Judicial District.</p> <p>This action was brought for the recovery of a promissory note of $2000, given by defendant to plaintiff; and was commenced on the 10th of July, 1852, in the District Court for the County of San Francisco. The defendant answered on the 26th July, 1852, denying the debt, and setting up a counter claim, and concludes thus, “ wherefore defendant demands trial, in time and place as the law directs.” On the 12th August, 1852, the ■defendant filed his affidavit, setting forth, that he is now and has ■been, for more than two years resident in the City of Monterey; and that Tooms, the plaintiff, is not a resident of the City of San Francisco, and that neither party resided in the County of San Francisco at the commencement of this action.</p> <p>On the 8th January both parties appeared. The said affidavit as to residence was read, and the motion to change the place of trial to the county where some of the parties reside, was argued by counsel on both sides. The court denied the motion, “ the answer to the complaint having set out no special objection, because the venue was not laid in the proper county.”</p> <p>On the same day, the defendant appealed.</p>

<p>In a complaint for trespass, the plaintiff claimed $500, the alleged value of the property destroyed, and $500 damages; defendant demurred on the ground that two causes of action were improperly joined; and the court below sustained the demurrer. Held, that this was error.</p>

The complaint in this case set forth, that the said defendants (the said Manife as principal, and Runnels as surety), on the 6th July, 1851, entered into an agreement with the plaintiff, by the description of L. R. Buckley & Co., whereby a copartnership was formed for cutting hay; by the terms of which agreement, plaintiff agreed to lend the said Manife such an amount of money not exceeding $1000, as might be necessary on his part of the business, which the said Manife bound…

<p>Appeal from the Superior Court of San Francisco.</p> <p>The complaint in this case set forth, that on the 12th December, 1850, plaintiff executed a bond in favor of Lewis Legris and R. Laranchy, for $3000, conditioned, that if said Legris and 'Laranchy should pay to plaintiff the sum of $3000, evidenced by certain promissory notes drawn by said Legris and Laranchy to the order of plaintiff (describing the notes), plaintiff would execute and deliver to the said L. and L., at their request and expense, a good and sufficient warranty title to a piece of ground, part of lot 233 on the map of the city, &c., describing it, and thereupon said obligation should become void, otherwise in force. And if any of the notes described should not be paid on the day of their maturity, then the obligor, without further proceedings, should take back the property free of all charges. That, on the 1st March, 1851, said Laranchy assigned the said bond to Jules Raisin, and the said Raisin and said Legris are now in possession of said property. That three notes, of $300 each, due the 15th June, July, and August, have not been paid, though demanded, &c. Wherefore plaintiff prays for judgment against defendants, ordering that said property be restituted to him, free of costs, &c.</p> <p>The defendant, Jules Raisin, answers and admits the allegations of the complaint, and the non-payment of the notes as charged. And avers that he is not bound to pay them, for that since the payment of the $1400 (the money admitted to be paid by the complaint) he discovered that plaintiff had no title to the premises, pretended by the said bond to be sold, and cannot comply with his said covenant to execute a good warranty title for the same, which is a fraud on defendants, who therefore pray that the contract be rescinded, and for judgment for $1400, already paid by defendants, with interest, &c., and for general relief.</p> <p>Sept. 15, 1851. The counsel in the case filed an agreement, in which it is admitted that at the date of the bond the plaintiff was in peaceable possession of the lot, that ever since the date of the bond the defendants have been in peaceable possession, have never been disturbed in any manner whatsoever, and that the bakery (on the lot) is at this time in full operation.</p> <p>It was also agreed that plaintiff in this case claims under a grant executed by an American Alcalde, in 1847, when the United States was at war with Mexico.</p> <p>The cause was heard by the court below, September, 1851, who decreed that the contract be rescinded, and that judgment for $628 19 and costs be entered for defendants. Upon the payment of which, by the plaintiff, the defendants are hereby ordered to deliver up to the plaintiff the lot of ground and improvements described in the complaint, and that plaintiff have his writ of possession, &c.</p> <p>The plaintiff appealed.</p>

' This action was brought for the recovery of three yoke of oxen, or their value, which the plaintiff laid at $800. The facts as found by the court, to whom the case was submitted without a jury, are substantially as follows :— . On the 24th March last, the plaintiff sold to one Fuller a lot of oxen for $1000, $200 of which were paid down, and Fuller with one Craig as surety, gave their note for the remaining $800.

The- suit was brought by plaintiff, resident of Bordeaux, in France, who complained, that about the 7th September, 1850, he shipped in the ship Salome, bound from the port of Bordeaux to San Francisco, a quantity of merchandise (describing it), and assigned the same to Messrs.

<p>No appellate power belongs to the District Court.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>This action was brought to recover the two equal third parts of 54,581 feet of lumber, which the plaintiff alleged the defendant unlawfully refused to deliver to him, and was about to convert to his own use.</p> <p>The contract upon which the action was founded is dated 21st November, 1851, and recites as follows:—</p> <p>“ Shipped in good order, &c., by Alonzo Leland and Seth Mayo, on board the bark Louisiana, whereof Z. N. Stansbury is master for this voyage, now lying in Columbia River, and bound for San Francisco, 138,455 feet of lumber, marked, &c., to be delivered at the said port unto S. R. & J. N. Pine, they paying freight at $17 per thousand, with 5 per cent, primage and average, as ascertained.” And the following is endorsed thereon.</p> <p>“ The instrument of the charter-party is the contract between the owner of the bark and said party, and governs them in relation to the sum to be paid to the said owner.</p> <p>Signed, “ Z. N. Stansbury.”</p> <p>The plaintiff owned the undivided two-thirds of the lumber, and Leland the other third. Leland chartered the vessel. On the arrival of the vessel at San Francisco, a large portion of the lumber was delivered, and part of the freight was paid. There still remained on board the vessel 54,581 feet of the lumber, and there was due of the freight about $1460. Pine k King, agents of plaintiff and Leland, then offered to pay defendant $1500 for freight and charges upon the delivery of the lumber, which he refused, insisting that he had a lien on the lumber for the money due from Leland on the charter-party. After which plaintiff tendered a little more than two-thirds of the freight-money on the whole quantity of lumber shipped, which defendant refused, and plaintiff then brought this suit for two-thirds of the remaining lumber, and brought his tender into court.</p> <p>The court below held that the lien upon the cargo was not discharged by the charter-party, but was good upon the cargo of Leland to the extent of the freight, as stipulated by the bill of lading.</p> <p>2d. That one of the joint owners of a cargo jointly shipped without specification of the shares held by each, could not by tendering his share of the freight, recover the whole of his share of the cargo, “ that every part and parcel of the articles described in a bill of lading is liable for the freight-money due on the whole.” “Every foot and inch of this lumber was subject to the lien for the balance of the freight due for the whole.”</p> <p>The court ordered judgment for defendant, and plaintiff appealed.</p>

This was an action for services, alleged by plaintiff to have been rendered by him to defendants, in corralling and separating cattle, for the keep of the cattle, for the use of horses, and the loss of horses incurred in the service so alleged to have been rendered.

<p>Where an order of court directed the sheriff to seize certain specific property, and this property proved not to belong to the defendant in the suit, the sheriff was held liable to the owner.</p> <p>The owner of property has his remedy and the right of recovery, against any one, whether sheriff or not, unless it be held by legal process against himself.</p>

The plaintiff, as assignee of Ryan and Duff, complains of defendant, Sheriff of San Francisco, that the plaintiff, on the 30th day of May, 1853, was possessed, as assignee and trustee, by deed from Ryan, Duff & Co., in trust to pay all the debts of the said firm, of one million feet of lumber, of the value of §50,000, and plaintiff being so seised, the said lumber came into the possession of the defendant unlawfully, under an attachment issued against said Ryan, Duff & Co.…

The declaration alleged, that on the 16th May, 1851, defendant, Myers, was indebted to plaintiffs, in the sum of $778, for goods, wares, and merchandise, sold and delivered, &e., and that said defendant there, &c., made and delivered his promissory note, payable to and endorsed by defendant Haas, in payment of said indebtedness, to said plaintiffs ; for the said sum of $778, payable six months after date.

This action was brought by the plaintiff, by their attorney-general, upon the complaint of Stephen R. Harris, against the defendant, and avers that defendant is now, and has been since the 3d September, 1851, unlawfully holding and exercising the office of mayor of the City of San Francisco.

This case was submitted to the Supreme Court upon a statements of facts agreed upon, which, so far as they are material, are as follows :—■ William T. Barbour and Gordon N. Mott, both held commissions from the Governor of the State of California, for the office of District Judge of the Tenth Judicial District.