Volume 30 — California Reports

<p>Appeal prom Order Denying a New Trial.—An appeal from an order denying a new trial must be taken within sixty days after the order is made and entered in the minutes of the Court.</p> <p>Review op Findings op a Referee.—The Supreme Court will not review the findings of a referee to ascertain whether they are contrary to the evidence except on appeal from an order denying a new trial.</p> <p>Appeal in an Action of Partition.—On the 22d of April, 1863, no appeal could be taken from an interlocutory judgment in an action for partition, determining the interests of the several parties in the property, and directing a partition to be made. Nor was an appeal from such a judgment, rendered before the passage of the Act, given by the Act of March 23d, 1864.</p> <p>Final Judgment in Partition from which an Appeal lies.—The judgment, in an action for partition, entered upon the confirmation of the report of the commissioners appointed to make the partition, is the final judgment from which an appeal lies.</p> <p>Appeal from Interlocutory Judgment in Partition.—If the interlocutory judgment in partition adjudges that one of the parties has no interest in the property, it is not a final judgment as to him, from which he can appeal.</p> <p>When a Deed to a Married Woman is a Deed of Gift.—A deed of conveyance from a mother to her children, some of whom were married women, contained the following recitals: “ These are, therefore, to acknowledge that my beforementioned children have each an interest of one undivided ninth part of each of said ranches, both of which are embraced in the last mentioned grant, and are entitled, under each of said grants, to the enjoyment of the same in common with me. And this indenture further witnesseth, that, in order to secure fully to my said children the aforesaid interest in the above mentioned grants, I, the said Martina Castro, for and in consideration of the natural love and affection which I have and bear to my said children, and for the further sum of five dollars, to me in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, and conveyed,” etc. $ jWeld, that the deed upon its face imports a gift, within the meaning of the provisions of the Constitution and Statutes of California relating to the separate property of married women, and not a conveyance upon a money consideration; and that the legal operation of the instrument is to convey a separate estate to the grantees.</p> <p>Introduction of a Deed in Evidence.—The objection to the reception of a deed in evidence, that the grantor had conveyed to another person his interest in the property granted, before the execution of the deed in question, is not tenable— such objection goes to its effect after it has been received in evidence, and not to its reception.</p> <p>Per Sawyer, J.:</p> <p>Parol Evidence to show that the Consideration named in a Deed did not pass.—Parol evidence may be introduced to show that a deed from a mother to her married daughter, which expresses upon its face a consideration of love and affection, as well as a valuable consideration in money, was given without any money consideration having passed, for the purpose of proving the deed to have been one of gift, and that the land conveyed became the separate property of the daughter, and not the common property of the daughter and her husband.</p>

<p>Alcalde’s Grant to Two Persons.—After a grant of a lot bad been made by an Alcalde of Yerba Buena to two persons jointly, and possession had been delivered, a certificate made by the Alcalde, written on the same piece of paper as the grant, stating that one of the grantees has renounced his property in the lot, and that it shall be the property of the other, does not divest the grantee so alleged to have renonnced of his title, unless it appears that he authorized the Alcalde to make the certificate.</p> <p>Delivery of Alcalde’s Grant to pass Title.—If the delivery of a deed of concession made by an Alcalde was essential to pass the title, the presumption is that the delivery was made at the time the deed was executed. Whether such delivery was essential, not decided.</p> <p>Divestiture of Title once Granted by an Alcalde.—Where an Alcalde made a deed granting a lot to two persons jointly, and afterwards certified on the same piece of paper that one of them had renounced his right, and the lot had become the property of the other, such certificate is insufficient to establish the fact of renunciation, but the presumption is that the title remained in the person alleged to have renounced.</p> <p>Statute of Limitations must be duly Pleaded. — A party relying upon an adverse possession of five years of land owned by himself and the adverse party as tenants in common, must allege by pleading facts from which it will affirmaatively appear that his possession was of an adverse and hostile character, otherwise his possession of the land, though exclusive, will be deemed to be according to his right and in support of the title in common.</p>

<p>Amendment to Complaint.—If the defendant demurs to the complaint, it is error for the Court to refuse the plaintiff leave to amend his complaint before the decision on the demurrer.</p> <p>Amendment of Complaint after Demurrer.—If a demurrer to the complaint is sustained, the plaintiff is entitled to leave to amend the complaint, unless the complaint is so defective that it cannot be made good hy any amendment.</p>

<p>Assignment of Things having no Present Existence.—Courts of equity support and give effect to assignments of things which have no present actual existence, but rest in mere possibility; not as a present positive transfer operative in presenta, but as a present contract, to take ‘effect and attach as soon as the thing comes in esse. 1</p> <p>Lien on Personal Property not in Existence.—Whenever a person by a contract intends to create a lien upon personal property to be acquired by him, the lien attaches in equity upon the particular property as soon as he acquires a title thereto.</p> <p>Assignment of a Policy of Insurance as Collateral Security.—An assignment of a policy of insurance upon a stock of goods effected in the name of the assignor, made as collateral security for a debt due from the assignor to the assignee, with an agreement that in case of loss by fire the assignee shall collect the money and apply it on the debt, attaches in equity as a lien upon the amount due on the policy to the extent of the debt, as soon as the loss occurs, as against the assignor and all persons asserting a claim thereto under him.</p> <p>Idem.—Such assignment is not void under the Statute of Frauds, although not in writing, provided the policy is delivered to the assignee at the time the parol contract is made.</p> <p>Idem.—It is not necessary to the validity of such contract that the assignees have any interest in the property insured, nor that the insurer consent to the assignment.</p> <p>Idem.—In such case, the assignor, or one succeeding to his interest after the lien of the assignee attaches, has a right to the balance of the fund remaining after the payment of the debt due to the assignee.</p> <p>Interest on Judgment.—A judgment can properly bear interest only from the time it is pronounced. Interest due on the demand on which the action is brought should be included in the judgment when entered.</p>

<p>Judgment on Demurrer.—Whore the complaint contains two counts, and there is a demurrer to one count only, and the demurrer is sustained, the plaintiff is entitled to judgment on the other count if no answer has been filed.</p> <p>Parties Dependant. — In an action for damages for a breach of contract, where no other person has acquired an interest in the matter in dispute, only parties to the contract sued on should be made parties to the action.</p> <p>Complaint on Breach op Contract.—In an action to recover damages for breach of a contract, it is sufficient, so far as a demurrer is concerned, to aver in the complaint, the contract, the breach complained of, and general damages.</p> <p>When a Contract not a Partnership.—An agreement on the one side to perform certain services, and on the other to convey an interest in the property in relation to which the services were performed, in consideration of such services, does not constitute a partnership.</p>

<p>Appeal from the County Court of Alpine County.</p> <p>The defendant, W. A. Johnson, was arrested and tried before a Justice of the Peace for having unlawfully demanded and received from one S. Gr. Lewis, the sum of fifty cents as toll for the privilege of passing through a gate wrongfully erected on a road leading from Mount Bullion to the Town of Monitor, without having a license therefor, and without any right or authority.</p> <p>The defendant was convicted and fined one hundred dollars, and appealed from the judgment to the County Court, where the judgment of the Justice was affirmed.</p> <p>The defendant then appealed from the judgment of the County Court to the Supreme Court.</p>

<p>Record on Appeal from the Probate Court.—On an appeal from a decree of a Probate Court made upon a final accounting and settlement of an administrator’s accounts, the petition and account filed with the view to a final settlement, are a part of the record to be used on appeal, without being made so by a bill of exceptions or statement.</p> <p>Interest on Judgment against Executors.—Without an express contract in writing made by the testator, providing for a higher rate of interest than ten per cent per annum, the executors have no authority to consent to the entry of a judgment bearing a greater rate of interest than ten per cent per annum, and if they do so they should be charged with the excess of interest in their final account.</p> <p>Commissions of Executors.—When no compensation has been provided by the will, executors are entitled to commissions on all the estate which comes into their, hands, and for which they are held responsible.</p> <p>Homestead of Widow.—The Probate Court has no authority to set apart money to a widow in lieu of a homestead.</p>

<p>Appeal from the District Court, First Judicial District, Los Angeles County.</p> <p>The defendants, Sanchez and Parrott, appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Fifteenth Judicial District, Contra Costa County.</p> <p>Plaintiff moved to strike defendants’ statement on motion for a new trial from the files, for the reason that defendants had suffered more than ten days to elapse after receiving written notice of the decision, before they gave notice of their intention to move for a new trial. The Court denied the motion, and from the order denying the motion the plaintiff appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

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

Ejectment against defendant, Anna McLellan, who was the tenant of Anna E. Irwin, .the intervenor. The agreement that Weston should hold the certificate of sale as security was not in writing. Defendant and intervenor had judgment in the Court below, and plaintiff appealed. The other facts are stated in the opinion of the Court.

The plaintiff, who was a feme sole, in 1854 acquired the fee to Lot Number Five in the square between I and J and Eleventh and Twelfth streets, in the City of Sacramento. In 1855 she married F. A. Dentzel, and in 1857 she executed to John H. Gass a power of attorney authorizing him to sell the same.

<p>Circumstantial Evidence in a Criminal Case. — The true rule, where circumstantial evidence alone is relied on to sustain a criminal charge, is npt, conceding all to be proved that the evidence tends to prove, some other hypothesis than that of the defendant's guilt may be true, but that'the proof ought not only to be consistent with the prisoner's guilt, but inconsistent with every other rational conclusion.</p> <p>Instructions in a Criminal Case.—It is not error in a criminal case to refuse to give instructions to the jury, the substance of which have already been given, although it is better for the Court to give than to refuse them.</p> <p>Reasonable Doubt in a Criminal Case.—The charge of Mr. Chief Justice Shaw on the question of reasonable doubt, in the Commonwealth v. Webster, 5 Cush. 320, commented on and approved.</p> <p>The Maxim falsus in uno, falsus in omnibus.—The rule that a witness who testifies falsely in one thing is to be disbelieved in all things, applies only to cases where a witness wilfully testifies falsely, and does not apply to cases where the witness is innocently mistaken.</p> <p>Confession of a Crime.—A confession, in criminal law, is the voluntary declaration made by a person who has committed a crime, to another, of the agency or participation he had in the same. The word “ confession" is not the mere equivalent of the word “statement" or “ declaration."</p> <p>Instructions should not Assume a Eact which does not Exist.—It is error for the Court, in a criminal case, to assume in its instructions to the jury that the defendant has confessed the crime, when he has not.</p> <p>Jury to Determine what the Evidence Proves.—It is for the jury, in a criminal case, to determine whether evidence introduced upon a given point amounts to proof of the fact sought to be proved.</p> <p>Discretion of Jury in looking at the Evidence. — It is error for the Court to instruct the jury, in a criminal case, that they may in their discretion believe a part and disbelieve a part of the evidence. The discretion of the jury is not an unlicensed discretion, but is to be conscientiously exercised upon a consideration of all the facts.</p> <p>Evidence of Declarations of Defendant.—Where the prosecution prove declarations and conversations of the defendant, in a criminal case, he has a right, on cross examination, to question the witness as to all he said at the time, and has also a right to call on his defense witnesses to prove all that was said occurred at the time.</p>

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

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

The plaintiff was Recorder and ex officio Auditor of Placer County from the first Monday in December, 1862, until the first Monday in March, 1864, and during that time the Tax Collectors of the county paid over to him- fifty cents on each business license sold by them, amounting in all to eight hundred and nine dollars.

<p>Appeal from the County Court, City and County of San Francisco.</p> <p>This action was brought to recover of the defendants the amount of an assessment levied on a lot belonging to the defendants in San Francisco by the Superintendent of Public Streets and Highways, to pay ¿he plaintiff for his services in grading the street in front of the lot.</p> <p>Plaintiff recovered judgment in the Court below, and the defendants appealed.</p>

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

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

At the general election held on the 6th day of September, 1865, the defendant was elected Treasurer of the County of Amador for the term of two years, to commence on the first Monday of March, 1866. He afterwards took and subscribed the oath of office, and gave the bond required by law.

<p>Demand on Sheriff for Property Wrongfully Taken.—If a Sheriff, by virtue of an execution, seizes the property of a person other than the judgment debtor, whether by mistake or design, it is not necessary for the owner of the property thus seized to make a demand on the Sheriff before commencing suit.</p>

. Ejectment to recover a tract of land in Alameda County. The summons was served by the Sheriff in Alameda County, September 27th, 1862, and filed with the Clerk the same day. Alexander Campbell appeared as attorney of record for the defendant, and on the 19th day of November, 1862, an order was made in open Court permitting the plaintiff to file an amended complaint. February 12th, 1863, plaintiff filed an amended complaint containing three counts.

<p>Judgment against a Company by its Company Name.—If a complaint, in an action against a company by its company name, states substantially the conditions mentioned in the six hundred and fifty-sixth section of the Practice Act, and the Sheriff returns that he has served the summons on one of the members of the company, and judgment by default is entered up against the company by its name, to bb enforced against the joint property of the members, the judgment is not void, but may be enforced by execution against the company property.</p> <p>Same.'—Such judgment is not a judgment against the person served with process, hut against the company.</p> <p>Judgment where Dependant is Sued by Wrong Name.—If a-defendant is served with process, a judgment by default against him is not void, though he is sued by a wrong name.</p> <p>Complaint against a Company by its Name.—Query ? If, in a complaint against a company by its company name, under the six hundred and fifty-sixth section of the Practice Act, there is an entire absence of any statement showing the existence of the conditions named in the section, and judgment is rendered against the company by default, is the judgment void, or are these conditions matters to be pleaded in abatement, and if not thus pleaded waived?</p> <p>Misnomer.—If a defendant is actually served with process, though sued by a wrong name, a judgment by default against him is not void.</p>

Judicial District, City and County of San Francisco. The defendant was indicted for the crime of murder, committed by killing one Charles T. Hill on the 19th of February, 1865. He was convicted of murder in the first degree, and sentenced to be executed, and appealed from the judgment. The other facts are stated in the opinion of the Court.

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

The indictment was as follows : “ The said Charles English is accused by the grand jury of the County of Solano, by this indictment, of the crime of an assault with an intent to commit murder, committed as follows: The said Charles English, on the 6th day of September, 1865, at the County of Solano, with a certain pistol loaded with powder and ball, which he, the said Charles English, in his left hand then and there had and held in and upon one Warren Perry Derbin,…

<p>Jurisdiction of Court oyer Matter submitted to Arbitrators.—An agreement in writing between two parties to submit matters in difference between them to an arbitrator, with power to award and adjudge all matters in difference between them, and to make an award in writing, and that his award when made may be entered as a judgment of any Court of record having jurisdiction, does not give any Court jurisdiction of the parties litigant, or of the subject matter of the controversy, unless the agreement further stipulate that the submission may be entered as an order of Court, and the submission and stipulation are filed with the Clerk, and the Clerk enter in his register of actions a note of the submission, with the names of the parties, the name of the arbitrator, etc., as required by the three hundred and eighty-second section of the Practice Act.</p> <p>Arbitrator must Make ms Award within the Time Limited.—If the agreement to submit matters in difference to an arbitrator provides that the submission may be made an order of Court, and the Clerk makes the proper entries in his register of actions, the arbitrator must make his award within the time limited in the agreement, or both the .arbitrator and Court lose jurisdiction of the case, unless the parties stipulate in writing to extend the time.</p> <p>Statement on Appeal.—A statement on appeal must be prepared and filed within twenty days after a judgment is entered.</p>

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

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>The action was commenced in December, 3864, and an answer was filed denying the allegations of the complaint. Previous.to the term of the ■ Court for July, 1865, when the Clerk made up the calendar for that term, he failed to place the cause thereon for trial. It was the custom of the Clerk to print the list of causes for trial, and hang up copies of the same for inspection of attorneys and parties. On the 6th of July the Clerk placed the cause on the calendar for trial. On the 4th of August it was called for trial, and no one appearing for defendant plaintiff recovered judgment for two* thousand dollars.</p> <p>Defendant moved for a new trial, on the ground of surprise, and filed affidavits in support of the motion. Counter affidavits were filed on behalf of plaintiff. The Court denied a new trial, and'defendant appealed from the order.</p> <p>The other facts are stated in the opinion' of the Court.</p>

<p>, Appeal from the District Court, Ninth Judicial District, Trinity County.</p> <p>The complaint averred that between the first day of April, 1863, and the first day of August, 1863, the defendant had received eight hundred and twenty-nine dollars to and for the use of plaintiff, and belonging to plaintiff, and to be paid by the defendant to the plaintiff when the defendant should be thereto requested, and that, though requested, defendant refused to pay the same or any part thereof.</p> <p>Plaintiff recovered-judgment, and defendant appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

This was an action to recover possession of a lot on Battery street, San Francisco, commenced on the 27th day of August, 1864. The judgment in Rogers v. Saggin, referred to in the opinion, was not pleaded, but was offered in evidence. * The defendant recovered judgment in the Court below, and plaintiff appealed from an order denying a new trial. The finding of facts consisted of twenty-five separate findings.

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

<p>Taxation of Money in a County Treasurer’s Hands.—Money belonging to litigants, but placed, in the hands of a County Treasurer by order of the Court, subject to the order of the Court, is liable to taxation, and may be assessed to the Treasurer by name, and when the assessment is levied it becomes a lien on the money in the Treasurer’s hands.</p>

Petition to the Supreme Court for a writ of prohibition. The petitioner was plaintiff in the case of Cariaga v. Dryden, . reported in 29 Cal. 307. He alleged in his petition that the County Judge threatened to set aside the judgment rendered, by the County Court of Los Angeles County, in the case of Cariaga v. Sanches et al., in' obedience to the writ of mandate issued by the District Court of Los Angeles County.

<p>Construction of Contract to take charge of Sheep.—Under a contract in writing between D. and B., made in the spring, by which B. is to take charge of D.'s sheep, and provide pasture for them, and keep the herders in provisions until green grass comes the following spring, and shear them in the fall and have the wool, and D. to furnish the herders, B. has the charge of the sheep, and the herders are his agents and under his command, and if they fail to perform their duty, and D. fails to furnish others, B. may do so at D.'s expense, and it is B.'s duty at the end of the term to deliver the sheep to D. upon demand, less the number lost by death or otherwise without B.'s fault.</p> <p>Counterclaim in Action for Breach of Contract. — If the plaintiff's cause of action is for damages for the breach, on. the part of defendant, of a written con- - tract between the parties, the defendant may interpose in his answer a counterclaim for damages for a breach of the contract by plaintiff.</p> <p>Evidence of an Attempt to Settle the Matter .in Dispute.—In an action for damages for the breach of a contract, where the defendant sets up a counterclaim for a breach of the same contract, evidence of an effort to arbitrate and settle the matter is foreign to the issues joined, and not admissible.</p>

In 1862 the Legislature passed an Act compelling every male inhabitant of the State over twenty-one years of age to pay a military poll tax of two dollars. In 1866 an Act was passed entitled “ An Act concerning the military of the State of California,” which in its last section repealed the Act of 1862.

The referee merely found the undivided interest which each one of the parties owned in the land, without finding the particular facts upon which he based his conclusion. The final decree was entered September 14th, 1864, and on the 26th of September, 1864, the appellants filed a statement on appeal.

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

Pending the action, Francis Salmon, the original plaintiff, died, and his surviving wife, the executrix of his last will, was substituted as plaintiff. The plaintiff appealed. The other facts are stated in the opinion of the Court.

<p>When Judgment in Ejectment not an Estoppel.—A judgment in favor of the plaintiff in an action of ejectment does not estop the defendant from maintaining an action for the specific performance of a contract made by the plaintiff before the commencement of the action of ejectment, to convey the same land to the defendant—provided the equitable defense was not set up in the answer, and passed on by the Court.</p> <p>Res Adjudicata.—If an equitable defense, set up in an answer, is withdrawn before the trial, the judgment in the action is not res adjudicata as to the equitable defense thus‘Bet up.</p>

The first instruction asked for by the defendant’s attorney was as follows: “ A person may defend himself by taking life, whether his danger is real or not, if the danger is apparently so imminent and pressing that a prudent man might suppose himself in such peril as to deem the taking of the life of his assailant necessary to self preservation.” After giving the same, the Court added as follows : “ As, for instance, where A. threatened to take B.’s life at sight, which…

<p>Indictment for having Counterfeit Coin in Possession, etc.—If the defendant is indicted for having counterfeit coin in his possession with intent to pass the same to defraud P. and others, evidence tending to prove that he had in his possession counterfeit coin for sale, and evidence that he sold such coin to F., is sufficient to warrant a convictio'n.</p> <p>Conviction on Testimony of a Feigned Accomplice.—The rule that a defendant cannot be convicted of a criminal offense on the testimony of an accomplice, unless the same is corroborated, does not apply to a feigned accomplice.</p>

On the 18th of March, 1865, Armstrong. & Wimmer purchased from plaintiff Stringer a quantity of upholstery and furniture, and to secure a part of the purchase money executed a' chattel mortgage on the -same. Armstrong & Wimmer were keeping a house called the “Willows,” at San Francisco.

The application for the writ in this case was' made to the Supreme Court.

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

Plaintiffs recovered judgment in the Court below, and defendants appealed both from the judgment an.d from an order denying a new trial. The other facts are stated in the opinion of the Court.

In the month of August, 1860, Wm. L. Callahan, with nineteen others, located a copper vein or lode in Calaveras County, and named it the Keystone Claim. Callahan, at the time of the location, owned one undivided one twentieth of the mine.

, District, City and County of San Francisco. Ejectment to recover a lot of land in the City of San Francisco, lying in the angle formed by Centre and Valencia streets. Marcus Lowell, and Ellen, his wife, on the 4th day of December, 1855, executed to plaintiff a mortgage on the demanded premises. A judgment was rendered on the 15th day of September, 1856, foreclosing the mortgage and directing a sale of the mortgaged premises.

<p>Pledge of Personal Property by One not Owning it. — One assuming to own personal property, and pledging it, is estopped from afterwards asserting that he did not own it when he pledged it; and a subsequent acquisition of title by the pledgor, as between the parties to the contract, inures to the benefit of the pledgee, without any new delivery or ratification of the pledge.</p> <p>Right of Pledgee to Recover Possession of the Pledge. — One who receives personal property in pledge from another who does not own it, but who subsequently, and while the pledge continues, acquires the title to it, may recover possession of the same from one who becomes possessed of it without right. Warranty of Title by Pledgor.—The pledgor of personal property warrants the' title of the property pledged.</p> <p>Delivery of Possession of Property Pledged. — A delivery of. possession of property pledged must be made to the pledgee in order to consummate the pledgee’s right.</p>

On the 19th day of July, 1848, T. M. Leavenworth, Alcalde of San Francisco, granted to M. L. Callendar a one hundred vara lot, and on the 4th day of September' thereafter granted to William S. Clark another lot, fifty by one hundred varas, both of which constitute a block of land covered by water, and situate outside of the water front of San Francisco established by an Act entitled “An Act to provide for the disposition of certain property of the State of California,”…

Appéal from the County Court, Tuolumne County. At the general election held in Tuolumne County in September, 1865, Thomas Norwood, the plaintiff, and D. M. Kenfield, the defendant, were voted for for the office of County Treasurer. Kenfield was declared by the Board of Canvassers elected, and received the certificate, and Norwood contested the election. The statement filed by the contestant did not contain any prayer for relief.

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

The defendants entered into the following contract with the plaintiffs: “ This indenture, made the eighteenth day of June, in the year of our Lord eighteen hundred and sixty-three, between Edward T. Steen, of the City of San Francisco, State of California, party of the first part, and J. F. Miller, W. C. Coley and George H. Harrison, of the City of San Francisco, State of California, party hereunto of the second part; Witnesseth: That the said party of the first part does…

<p>Power of Attorney—Right to make Partition Under. — A power of attorney which authorizes the attorney to sell the lands of the constituent, and to do whatever is necessary to carry the power into execution, does not authorize the attorney to make partition of lands in which the constituent has an interest as tenant in common.</p> <p>Affirmance of Unauthorized Act of Attorney in Fact. — If an attorney in fact, whose power does not authorize him to make partition of the lands of his principal, makes such partition, the principal may afterwards give effect and confirmation to the partition by the execution of deeds of conveyance, which necessarily recognize the partition as of legal validity.</p> <p>Ratification by Acts constituting Estoppel in pais. — The principle that an unauthorized act of an attorney in fact, acting under a power required to be under seal, must be confirmed by an instrument under seal, does not prevent the principal from ratifying by an act which operates as an estoppel in pais.</p> <p>Evidence of Title to LanD/BY Possession.—Placing a fence, consisting of small posts with two rails nailed on, around a piece of land, without actually occupying the land or any part of it, and suffering the fence to go to decay in a year or two, so that it will not keep out cattle, is not sufficient to constitute prima facie evidence of title to land by actual possession at common law, or under the provisions of the Statute of Limitations, or the Van Ness Ordinance, as against one who enters into the actual occupation and possession of a portion of the land after the fence has broken down.</p> <p>What is Adverse Possession of Land.—The pretended possession of land by an inclosure which is not substantial, without actual occupancy of any portion of it, does not constitute an adverso possession in the common law sense of the term.</p> <p>Proof of Title by Prior Possession. — If one, who has not been in the actual possession of land claims title on the ground of prior possession, he must not only show the conveyances of his grantors, but must show that they were in the actual occupation and possession of the land.</p> <p>Title to Land under the Van'Ness Ordinance.— One claiming title to land in San Francisco under the Van Ness Ordinance, must show that either ho or his grantors wore in the actual possession of the land on the 1st of January, 1855, and thence next ensuing to the 20th of June, 1855.</p>

On the 17th of January, 1863, the defendant Clarke recovered judgment against the plaintiff for the possession of one undivided half of the land in controversy, and for the sum of thirteen hundred and seventy-five dollars damages, rents, and profits thereof.

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

In August, 1855, the County of Sonoma was divided into three Supervisor Districts in accordance with the Act of 1855. By this division the Townships of Sonoma, Vallejo, and Petaluma, constituted one Supervisor District, and no change has since been made in the districts. T. F. Baylis was elected Supervisor in said district in 1862, and his term of office expired in 1865.

On the 19th of March, 1847, Salvador Vallejo conveyed to Silburn W. Boggs a tract of land one mile square, bounded and described as follows: “Beginning at a point near the base of the mountains on the west side of Napa Valley, one half a mile in a southerly direction from where a small branch or brook enters the valley from the mountains, usually known as the Old Rhodare; thence running from the said point of beginning along a line parallel with the base of the mountain in a…

The Court below gave judgment that a peremptory writ of mandate issue, and defendant appealed. The other facts are stated in the opinion of the Court.

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

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

The Court overruled the demurrer, and plaintiff recovered judgment. The defendants appealed from the judgment. The other facts are stated in the opinion of the Court.

In 1853, William A. Barton and William Swain each entered into a contract with the authorities of the City and County of San Francisco to grade certain streets. Before they had completed the work, each assigned to Felix Argenti his contract and the amount due thereon. Argenti completed the contracts, and his demands under the same were audited by the city authorities and warrants were drawn on the Treasurer for the amount audited, payable to him or bearer.

The plaintiff’s patent was issued December 31st, 1857. The action was tried in November, 1864. The defendant appealed. The other facts are stated in the opinion of the Court.

- The plaintiffs averred in their complaint that they were, on the 8th day of January, 1866, the owners of and in possession of seven twelfths, undivided; of a tract of mining claims at Forrest Hill, Placer County, known as the Uncle Sam Claims, and that defendants then ousted them therefrom.

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

<p>-A- Mining Partnership. — An agreement between one or more persons, who claim an undeveloped mine, and another person, that if the latter will devote his labor and skill in exploring and developing the mine, the former will furnish him with tools and provisions, and give hinl a share in the mine if it proves valuable, and a joint working of the mine and sharing in the profits by the parties after development, constitutes one of those qualified partnerships, common in California, known as mining partnerships.</p> <p>Contract concerning Mining Partnership.—Where a person claiming an undeveloped mine, agrees with another that if he will devote his labor and skill in its development, the former will furnish him with tools and provisions, and give him an equal interest in the mine in case it shall prove valuable, the latter is entitled to an equal interest in the mine when it becomes valuable, if he devotes his labor and skill until that time.</p> <p>' When Mining Partner holds in Trust for his Copartners.— If two' or more persons as mining partners claim and develop a mine situated upon land owned by a third person, and the partners authorize one of their number to purchase the land of the owner for the benefit of all, and he buys the same in his own name, he holds the legal title of his partners’ proportion in the mine in trust for them.</p> <p>Sale by Trustee to Innocent Purchaser.—If one of several partners in a mine ' holds the legal title in the same in his own right to the extent of his interest, and in trust for his copartners to the extent of their interests, a sale made by him, without the consent of his associates, of an undivided interest not exceeding in amount the interest held in his own right, to one who had no notice of the trust, will convey only the title of the grantor, and not the interests of the cestuis que trust.</p> <p>Parties to Action between Mining Partners.—Where two of three partners in a mine make a contract with a person not interested in the same, by which he becomes entitled to a share of their interest, and a like share of the profits of their interest, the two are the only necessary parties defendant in an action brought by the person they contract with to determine his right to a share in the mine, and a corresponding share of the profits on their interest.</p> <p>Parties to Action to dissolve Mining Partnership.—In an action to take an account of a mining partnership and dissolye the same, and sever the interests of the several partners, all those owning interests in the partnership are necessary parties.</p> <p>Order to Bring in Other Parties.—If, in a case in equity to dissolve a mining .</p> <p>partnership, it appears on the trial that a complete determination of the controversy cannot be had without the presence of other parties, the Court may on its own motion, under section seventeen of the Practice Act, order them to be brought in before a final disposition of the case.</p> <p>Waiver of Part of Relief asked for in Equity. — If, in an action brought against two of several mining partners to establish the plaintiff’s right to an interest in the mine, under a contract with the defendants, and for a conveyance and an account and a dissolution, of the partnership, the plaintiff is content with a judgment establishing his right and directing a conveyance, and waives an account and dissolution, the Court may grant that relief and give judgment, without making the other partners parties defendant.</p> <p>Judgment in Equity establishing Partner's Right.—Where a party institutes an action against a portion of his associates in a mining partnership to establish a disputed right to an interest in a mine, and a conveyance of the interest claimed is a part of the relief sought, a Court of equity may give judgment establishing the right and directing a conveyance to be made, without dissolving the partnership.</p>

<p>Appeal from the District Court, Fifteenth Judicial District City and County of San Francisco.</p> <p>This was an action to recover possession of a tract of land in San Francisco, bounded on the north by Tracey street, on the east by Mission street, on the south by Centre street, and on the West by Guerrero street. The plaintiff averred in his complaint that on the 18th day of February, 1859, he was seized in fee of the demanded premises, and that the defendants ousted him on the same day, and prayed for judgment for possession. The defendants answered severally, denying the allegations of the complaint, and setting up title in themselves.</p> <p>The plaintiff, on the trial, to sustain his allegation of ownership, offered in evidence the petition of Roberto T. Ridley to Juan B. Alvarado, Governor of Alta California, for a grant, the decree of reference, the informe of the Justice, and the concession by the Governor, which papers were admitted to be correct, and of which the following were admitted to be correct translations:</p> <p> Most Excellent Governor of the Californias: </p> <p>Roberto T. Ridley, a Mexican by naturalization, a resident in San Francisco, presents himself before your Excellency and says:</p> <p>That intending to establish himself in the ex-Mission of Dolores, he solicits of your Excellency that there be conceded to him in said ex-Mission a ruined house by the name of Juan Prado (already deceased,) in order that he may repair it, with fifty varas to the east of said house, and four hundred varas between the house and the artilleryman Gomez and the Estero, in order to form his sowing ground, etc.</p> <p>I hope then to receive this benefit from your Excellency in consideration of having been a long time in the country, and of having served in such capacity as the Departmental Government has placed me in.</p> <p>From your Excellency, then, I, the undersigned, pray to receive this grace and favor. Not written on sealed paper, as I have none. Swearing that this is not done in malice, and that which is necessary, etc.</p> <p>San Francisco, February 8th, 1841.</p> <p>(Signed:) Roberto T. Ridley.</p> <p>Monterey, February 12th, 1841.</p> <p>Let the Juez de Paz of San Francisco report if the interested party possesses the necessary requisites to be attended to, and whether the land petitioned for pertains to any indi-, vidual.</p> <p>(Signed:) Alvarado.</p> <p>Juzgado de Paz of San Francisco, >'</p> <p>. . February 16th, 1841. )</p> <p>In view of the foregoing superior decree in relation to the demand for information, I will say that the petitioner possesses the necessary requisites, and that that which he solicits is ungranted and does not pertain to any particular person; and if your Excellency should desire to do him that favor, you may do so according to your judgment.</p> <p>(Signed:) F. Guerrero.</p> <p>Monterey, March 20th, 1841.</p> <p>In conformity with the request of the interested party, and in consideration of his merits and the services which he has rendered to the Departmental Government, there is conceded to him the house petitioned for in the new Pueblo of Dolores, making use at the same time of the four hundred varas of land for cultivation.</p> <p>With this decree the interested party will present himself to the Judge' of San Francisco, who will bear in mind this adjudication in the reports that may be asked of him in relation to the concessions in said pueblo.</p> <p>Thus I, Juan B. Alvarado, Constitutional Governor of the Department of the Californias, command and sign.</p> <p>Juan B. Alvarado.</p> <p>The defendant objected to their admissibility in evidence, on the ground that the said claim had not been presented to the Board of Land Commissioners, and because the alleged grant did not convey any estate, but was a mere permission for a temporary occupation.</p> <p>The Court sustained the objection. The plaintiff was non-suited, and appealed from an order denying a new trial.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>Plaintiff recovered judgment in the Court below, and defendants appealed from the judgment and from an order denying a new trial.</p> <p>The other facts are stated in the opinion of the Court.</p>

The defendants in their answer set up as an equitable defense the state of facts found by the Court. The defendants moved the Court to try and determine the equitable defense before the trial of the action at law. The plaintiff objected, but the Court granted the motion, and on the trial the defendants offered in evidence a deed of the demanded premises, executed on the 24th day of June, 1852, by John Gilroy and Clara Maria Ortega, his wife, to Allen and Smith.

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

In 1857, the County of San Joaquin was divided by the County Board of Supervisors into three Supervisor Districts, under the Act of March 31st, 1857. (Wood’s Dig., p. 697.) These Districts were named respectively One, Two, and Three. In 1862, John Tuohy was elected Supervisor for District Number Two, which then contained the three Townships of Tulare, Dent, and Castoria. His term of office expired in the fall of 1865.

<p>Appeal from Order sustaining a Demurrer. — No appeal lies from an order sustaining or overruling a demurrer until a final judgment is rendered in the cause.</p> <p>Filing and Serving Notice of Appeal. — The filing of a notice of appeal must precede or be contemporaneous with the time of serving the same.</p> <p>Effect of Stipulation concerning Appeal.—A stipulation that no execution shall issue until the determination of the appeal, is not a waiver of an objection that the notice of appeal was not filed in season.</p>

The action was brought on a promissory note, dated August 21st, 1858, and given for three hundred and forty dollars, with interest at one per cent per month, and if not paid in one month from date to draw interest at two per cent per month.

This action was brought to recover the sum of three thousand five hundred and seventy-seven dollars and forty-three cents, for an assessment for street improvements on the street on which the lots fronted. The plaintiff recovered judgment in the Court below, and defendant appealed. The other facts are stated in the opinion of the Court.

<p>Deed Referring to Another Instrument for Description.—Although the parties to a deed may describe the property therein conveyed by a reference therein to another deed or map which contains a description, yet the deed and the instrument referred to, when taken together, must be as certain in respect to the description as a description contained in the deed itself.</p> <p>Reception in Evidence of a Map referred to in a Deed.—Where a deed does not contain a description of the premises conveyed, but refers to a map duly recorded in the Recorder’s office for such description, a map not recorded but pasted between the leaves of the Recorder’s book, is not admissible in evidence with the deed, to identify the land. \</p> <p>Recording a Map.—A map recorded in the Recorder’s office in pencil, is not recorded within the spirit and meaning of the recording Act.</p> <p>Description of Land in a Deed.—A deed which describes the land conveyed as “ Lot Number One in the subdivision of the tract of land lying on the new county road and known as Foley’s tract, the map of which is duly recorded in the Recorder’s office,” does not contain a description sufficient to attach itself to any particular tract of land without the aid of further evidence.</p> <p>Map referred to in a Deed as Evidence.—If a deed refer to an instrument or map for a description by metes and bounds of the land conveyed, no instrument or map is receivable in evidence with the deed to identify the land, unless it is the one referred to.</p> <p>Proof of Relationship of Landlord and Tenant.—The production of a lease in evidence will not of itself prove the relation of landlord and tenant to have existed between the lessor and lessee, but the entry of the lessee under the lease, or a holding by him referable to the lease, must also be proven.</p> <p>Charge to the Jury on Facts.—The facts are to be found by the jury from the evidence, and it is error for the Cohrt in its charge to assume as proven a'fact which is in issue.</p>

The plaintiff commenced an action before a Justice of the Peace to recover judgment on an account for two hundred and ninety-eight dollars. The defendant answered, setting up a counterclaim in the sum of five hundred and seventy dollars. Upon the trial the plaintiff obtained judgment for one hundred and seventy-five dollars, from which judgment the defendant appealed to the County Court.

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>The following is the contract upon which the action was brought:</p> <p>“ This indenture, made the 31st day of August, in the year of our Lord one thousand eight hundred and sixty-three, between Richard L. Ogden and Paul J. Gifford, of the City and County of San Francisco, parties of the first part, and C. Augustus Luckhart, of the City and County of Los Angeles, party of the second part;</p> <p>“Whereas, by an instrument in writing bearing date on the 13th day of April, 1863, between J. D. Cusenberry and others, discoverers and sole owners of certain mining ground or property in La Paz Mining District, in the Territory of New Mexico, of the first part, and the said C. Augustus Luckhart of the second part, the said parties of the second part thereto conveyed in fee and absolutely to the said Luckhart, an undivided half of said property, and the said Luckhart, in consideration thereof, agreed in substance to incorporate the parties interested in said property and open the said mines, as will more fully and at large appear by reference to said instrument;</p> <p>“And whereas, the said Luckhart hath agreed to sell and convey, and by a deed of even date herewith, hath in fact conveyed to the said parties of the first part hereto, the said mining property or mineral ground;</p> <p>“ Now this indenture witnesseth, that the said parties of the first part, for-and in consideration of the said conveyance so made to them as aforesaid, do undertake, promise, and agree to and with the said party of the second part, in manner and form following:</p> <p>“ 1. They, the said parties of the first part, will, on the part and behalf of said Luckhart, and in his place and stead, perform and fulfil the contract aforesaid between the said Luckhart and Cusenberry, and others, of the 13th April, 1863.</p> <p>“ 2. At any time at or before the expiration of six months from the date hereof, the said parties of the first part having performed the foregoing covenant to that time, they may abandon their purchase, and upon reconveying to the said party of the second part the property by him conveyed to them, unimpaired and unencumbered, with warranty against their own acts, then they shall be thereby discharged from this contract.</p> <p>“ 3. At or before the expiration of said six months from the date hereof, the parties of the first part not having abandoned the purchase and reconveyed said property as above provided, shall pay to the party of the second part the sum of three thousand dollars in gold coin of the United States.</p> <p>“ P. J. Gifford. [Seal.]</p> <p>“R. L. Ogden. [Seal.]”</p> <p>The other facts are stated in the opinion of the Court.</p>

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

This was an action of ejectment, and the demanded premises were described in 'the complaint as follows: “ Being a part of the Rancho of Corte Madera, and being situated to the south of the Arroyo of the Alembique, and from thence to the Arroyo of the Cañada of Dennis Martin, and its breadth is from the Arroyo of the Sausal to the high trees of the sierra which looks to the eastand being otherwise described as “ bounded on the north by the Arroyo Alembique; on the south by…

This action was brought to recover damages for a breach of the following contract: Pescadero, Santa Cruz County, Cal., January 22d, 1864. ) For value received, I promise to deliver T. W. Moore, or order, at Pigeon Point Warehouse, in said county, one thousand (1,000) sacks of good, clean, sound, merchantable potatoes, in good gunny sacks of the usual size, sewed up and ready for shipment.

After the answer had been filed, a jury trial was had, and plaintiff obtained a verdict for damages. Defendant then moved the Court, before judgment had been entered, to dismiss the action for want of jurisdiction. The Court granted the motion, and plaintiff appealed. ¡ The other facts are stated in the opinion of the Court.

<p>Combination to buy Property at Sheriff's Sale.—An agreement in writing among several parties, by which one is to purchase land about to be offered at Sheriff's sale, for the benefit of all the parties to the contract, each furnishing his proportion of the money to the buyer, is not, prima facie, fraudulent, nor opposed to public policy.</p> <p>When a Combination to buy Property at Sheriff’s Sale Fraudulent.— A contract in writing between several persons, for one to buy land about to be offered at Sheriff's sale, for the benefit of all the parties, is void as against public policy and fraudulent, if made to prevent fair competition in bidding, or for any other fraudulent purpose. But if made for mutual convenience of the parties, to enable each to become the owner of a part of the property, or for any other reasonable or honest purpose, the contract will be valid and binding.</p> <p>When an Implied Trust Arises.—If several parties contract, in writing, that one shall purchase land about to be offered at Sheriff's sale, for the benefit of all, each to furnish his proportion of the money, and the buyer to convey to each, if no redemption is made, his proportion of the land, and one of the contracting parties after the purchase is effected, on his own account purchases another judgment which makes him a redemptioner, and redeems and obtains a Sheriff's deed, an implied trust arises, and he becomes a trustee in invitum, holding the legal title in trust for all the parties to the contract.</p> <p>When One of Several Parties becomes a Trustee for All.—If several parties are interested in the purchase of land made by one by mutual agreement, neither can exclude the other from what was intended for the common benefit; and any private benefit touching the common right which is secured by either party will turn him into a trustee for the benefit of all.</p> <p>Parties to an Action to enforce a Trust. — In an action by one of several cestuis que trust, to declare and enforce an implied trust in relation to land, all the persons who are entitled to or claim to bo entitled to a portion of the trust estate, ,are proper parties defendant.’</p> <p>Findings of Fact.—If the findings of fact are defective, the presumption is that proof was made at the trial in relation to the defective matter, and the judgment will not be reversed unless the findings are excepted to.</p> <p>New Trial.—A new trial will not be granted except on a statement or affidavits.</p> <p>When Judgment will not be Reviewed on Appeal. — A judgment cannot be reviewed on the ground of a defective complaint, or that the judgment is not warranted by the findings, on an appeal from an order denying a new trial.</p> <p>Judgment of One Defendant against Another.—Case where one defendant recovered judgment against another defendant, but its legality not decided.</p>

The Register presented to the Governor the following certificate, and at the same time handed him a patent for his signature.

The following-is a copy of the assessment roll for the year 1861-62, so far as it refers to the lot in dispute. Of like ‘-'character were the assessments for the other years for which tax deeds had been given : BLOCK NO. 128. FISCAL YEAR 1861-62. DESCRIPTION OP PROPERTY. REFERENCE BOOK. LOT NO. NAMES OF OWNERS OR CLAIMANTS.

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

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

The following was the averment in the complaint concerning the making of the recognizance: “ That in consideration of the admission of the said W. J. Tates to bail, and pursuant to an order of said Court of Sessions, the said defendants, at the time and place aforesaid, made, executed, and delivered a ‘ recognizance,’ a true copy of which is hereto annexed, and marked Exhibit ‘A,’ and asked to be taken and made a part of this complaint, and upon the delivery of said…

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

<p>Burden of Proof in Action to determine Adverse Claim. — In an action brought by one in possession of land, to try and determine an adverse claim set up.by one out of possession, when the complaint avers that the defendant sets up an adverse claim without stating what it is, and the answer admits plaintiff’s possession, and sets up the particulars of the defendant's alleged title, the burden of proof is cast upon the defendant.</p> <p>New Trial when there is Conflict in Testimony.—A new trial will not be granted where there is a conflict in the testimony, and where there is a conflict in the testimony of the party applying for a new trial, it is the more fatal.</p>

<p>Bonds issued by Sacramento County to the Central Pacific Railroad Company.—The “ interest tax” collected under the Act of April 25th, 1363, to authorize the City and County of Sacramento to subscribe to the capital stock of the Central Pacific Railroad Company, must be paid out solely for interest on the bonds issued under said Act, and for the redemption of the same.</p> <p>Duty of Treasurer of Sacramento County.—It is the duty of the Treasurer of Sacramento County to advertise for proposals for the redemption of bonds issued to the Central Pacific Railroad Company, whenever there are two thousand dollars or upward remaining of the “interest tax” after payment of the interest then due.</p>

<p>Appeal from the District Court, Tenth Judicial District, Yuba County.</p> <p>The plaintiffs appealed from the judgment.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Abandonment of Prior Possession.—When the plaintiff in ejectment relies on prior possession, and defendant pleads abandonment, and there is some evidence tending to show abandonment, the Court should not instruct the jury that if they find plaintiff’s possession to have been prior they must render a verdict for him. Question of Abandonment in Ejectment.—When, in ejectment on prior possession, abandonment is pleaded and evidence on it introduced, the Court should not exclude its consideration from the jury.</p> <p>Effect of Record of Deed on Question of Possession.—The principle that one who enters upon land under a deed with specific boundaries, possesses to the extent of the boundary given, extends to unrecorded deeds, with respect to those, at least, who have actual knowledge of the terms of the deed and the grantee’s claim under it.</p> <p>Certified Copy of Instrument in Evidence. — A certified copy of the affidavit and claim under the Possessory Act of this State, is admissible in evidence, if the party offering it has never had the original, and has inade search for it and is unabl'e to find it. '</p> <p>Interlineation in Deed.—An alteration in a deed by an erasure of a figure and the interlineation of another is not sufficient to prevent it from being received in evidence where testimony is introduced tending to show that the alteration was made before the deed was signed.</p> <p>Record should show Object for which Testimony is Offered. — When testimony is excluded by the Court, and the party offering it does not state the purpose for which it is offered, and the record does not disclose its relevance, the appellate Court will not say that it was improperly excluded.</p> <p>Judgment in Forcible Entry as Evidence.—A judgment in forcible entry and detainer, rendered in favor of the plaintiff, has no tendency to prove abandonment of the premises sued for, by the defendant, or that the plaintiff had taken possession of the same under color of title.</p>

San Mateo County. The tax deed offered in evidence was signed “ Silas Hovious, Sheriff and Tax Collector of the County of San Mateo, by John Ames, Under-Sheriff.” The plaintiff appealed. The other facts are stated in the opinion of the Court.

<p>When Absolute Assignment constitutes a Mortgage.—The assignment of a lease for years, absolute on its face, hut made in consideration of a loan of money, with a defeasance back to re-assign upon the payment of the loan and interest, constitutes a mortgage of the leasehold.</p> <p>Mortgage of Leasehold Interest.—A mortgage given by a lessee upon the leasehold interest, does not give the mortgagee any right to the rents coming from the tenants of the mortgagor.</p> <p>Assignment of a Mortgage.—Independent of the debt it is given to secure, a mortgage has no assignable quality; and one who receives an assignment of a mortgage without an assignment of the debt for which it was given, takes nothing by the assignment.</p>