Volume 31 — California Reports

This was an action to recover possession of Lot Seven in Block B, in the Town of Eureka, Humboldt County.

In the year 1852 Humphrey Griffith was appointed guardian of the person and estate of Augusta Hunter Dean, by the Probate Court of Yolo County. On the twelfth day of June, 1863, plaintiffs were appointed such guardians by the same Court. The other facts are stated in the opinion of the Court.

This action was commenced in the Supreme Court. The Act of April 25th, 1863, created a municipal corporation called the City of Sacramento. The Act provided for the election of a Board of three Trustees, to have the management and control of the affairs of the corporation.

The premises in controversy are situated - at the southwest corner of Tracy and Valencia streets, San Francisco. In 1848 Jacob Harmon, Sen., took possession of, built a house on, and inclosed, cultivated, and resided on the same until the divorce suit was commenced, when his wife Elen ora left the premises.

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

The complaint contained the following allegations in addition to those copied into the opinion : That the plaintiff was, at the day named, to wit: on or about the 21st day of September, A. D. 1865, a resident of said County of Alameda, and doing business in said City of San Francisco, and theretofore in the habit and accustomed to make trips back and forth daily on said railroad and steamboat, and that on the day last named he entered the defendant’s cars at a regular…

At the general election held in the fall of 1861, Bird was elected Treasurer of the City and County of Sacramento, to hold office two years from the 8th day of October, 1861. On the 1st day of October, 1861, he filed in the office of the County Clerk of Sacramento his official bond, without a seal opposite his own name.

The mortgage contained a sufficient description of the note to show that it was payable in money generally, and not in gold coin. The Court below directed the mortgage to be enforced by a sale of the'mortgaged premises for money generally. The plaintiff appealed from that part of the judgment directing the premises to be sold for money generally, claiming that the judgment should have directed the mortgaged property to be sold for gold coin.

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

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

<p>Appeal from the District Court, Fifth Judicial' District, Tuolumne County.</p> <p>The defendants appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Dependant may both Demur and Answer.—The defendant may demur and answer at the same time to the entire complaint, and also to each cause of action stated therein.*</p> <p>Striking out Answer for failure to fay Demurrer Fee.—If the defendant files his answer at the same time he does his demurrer, the Court, after overruling the demurrer, has no right to strike out an answer whitdrraises a defense because the defendant fails to pay the plaintiff twenty dollars, -required by a rule of .Court to be paid, for the privilege of answering when a demurrer is overruled.</p> <p>Rule of Court.—A rule of Court which deprives a party of a statutory right is void.</p>

Suit on four promissory notes for one thousand two hundred and nineteen dollars and sixty-five cents each, given October 13th, 1860, and to foreclose a mortgage given,to secure the notes.

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

The petitioner applied to be discharged on habeas corpus. On the 21st day of September, 1866, he was held to answer for the crime of embezzlement, by the Police Judge of the City and County of San Francisco.

This was an action to abate a nuisance, commenced December 15th, 1864.

The premises sought to be recovered in this action lie, east of and immediately adjoining the lot of plaintiff, and in the Harbor of San Francisco.

<p>Forcible Entry and Detainer Oases pending December 31st, 1863.—The new County Courts, as organized under the amended Constitution, January 1st, 1864, had authority to proceed, try, and determine appeals in cases of forcible entry and detainer pending in the old County Courts on the last day of December, 1863.</p> <p>Construction op Statutes.—Two statutes upon the same subject matter, passed at different times, which are in pari materia, must be read and construed as one Act.</p> <p>Effect op Repeal op a Statute on Pending Action.—A repeal of a statute under which alone a right of action exists, operates as an extinguishment of actions pending when the repeal takes effect, unless there is a subsequent law which enables the Court to try and determine them.</p> <p>Complaint charging Forcible Entry and Detainer.—If the complaint charges a forcible entry with a multitude of people, and a forcible and unlawful detainer, the forcible entry is the gist of the action.</p> <p>Evidence op Forcible Entry.—The evidence must tend to prove an entry by defendants with strong hand, with unusual weapons, or with menace of life or limb, or they cannot be convicted of a forcible entry.</p> <p>Evidence op Forcible Detainer.—There must be evidence tending to prove an actual exhibition of force to retain possession, and of present ability and disposition to use it, to warrant a conviction of a forcible detainer.</p>

<p>Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.</p> <p>The parties had been partners in the business of hackmen in San Francisco, but plaintiff had not paid into the firm his part of the capital, and it was agreed that he should retire from the firm, and the amount he received for his interest in the firm be fixed by arbitrators. The arbitrators made their award June 6th, 1865, and the next day the plaintiff in person filed with the Clerk the following paper:</p> <p>“ The Clerk of said Fifteenth District Court is hereby directed to enter final judgment in the within entitled cause, according to the terns of the within award j and I, the said William H-. Hoogs, do hereby acknowledge satisfaction and payment in full from the said Morse and Flynn, of the moneys awarded to me by the within named arbitrators in this action; and I do hereby waive the right to move to vacate the said award, or to modify or correct the same, or to appeal from the same.</p> <p>“ In witness whereof, I have hereunto set my hand and seal, this seventh day of June, A. D. 1865.</p> <p>“ William H. Hoogs.” [l. s.]</p> <p>The plaintiff afterwards moved to vacate the award. The Court below granted the motion, and the defendants appealed.</p> <p>The other 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>Ejectment to recover possession of a lot in San Francisco. The plaintiffs appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

This action was brought to recover judgment for two thousand one hundred and forty dollars and sixty-eight cents, for a tax alleged to have been assessed in 1863, upon money at interest secured by mortgage. On the trial the plaintiff offered in evidence that part of the duplicate assessment roll for the City and County of San Francisco for the year 1863, which reads as follows: The duplicate assessment roll was certified to by the Auditor.

<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' answered without interposing a demurrer. When the case was called for trial, plaintiff moved for judgment on the pleadings. The Court sustained the motion. Defendant appealed. The other facts are stated in the opinion of the Court.

<p>Exceptions to Instructions to Jury.—Where there is in the transcript a stipulation by the parties that “the plaintiff duly excepted” to the “charges and each part thereof,” it will be construed as a stipulation that the exceptions were sufficiently specified to render them available.</p> <p>Surrender and Destruction of Deed.—If the title to land passes by the execution and delivery of a deed, it cannot be afterwards divested by the surrender and destruction of the deed.</p> <p>Estoppel by Judgment.—H., who had no title, commenced an action against C., then in possession, to recover a tract of land. The title was in Gr., who, during the pendency of the action, conveyed to B. Soon after, and before the trial, B. delivered up his deed to Gr., and the same was destroyed, and at the same time Gr. executed and delivered to the plaintiff H. a deed of the same land. H. then stipulated that 0. have judgment, which was rendered accordingly. After judgment, GVs deed to H. was surrendered up and destroyed, and Gr. again conveyed to B. C. knew nothing*of these transactions. B. then sued C. to recover possession of the land. Held, that B. was not estopped by the judgment of 0. against H. from setting up title as against C., and that the judgment is not evidence tending to show an estoppel. Held, further, that these facts did not constitute an estoppel in pais.</p> <p>Estoppel in pais.—To constitute an estoppel in pais there must be some act or admission or neglect to act on the part of the party estopped upon which the other party has acted or relied, and in consequence thereof and through the fault of the party estopped, has placed himself in some respect in a worse position than he otherwise would have been.</p>

The plaintiff brought three several actions to recover possession of cord wood cut and removed from his land by the defendants while they were in possession of the land. The parties stipulated that the three cases should be heard together, and that all the testimony introduced in each case should be considered as introduced in the other cases so far as it was applicable. The other facts are stated in the opinion of the Court.

<p>Notice to Agent is Notice to Principal.—Notice to an agent of facts arising from or connected with the subject matter of the agency is constructive notice to the principal, where the notice comes to the agent while he is acting for the principal and in the course of the very transaction.</p> <p>Notice to Attorney at Law is Notice to Client.—It is the duty of an attorney at law to communicate to his client whatever information he acquires in relation to the subject matter of the suit, and he will be presumed to have performed his duty in that respect, and notice to him is constructive notice to his client.</p> <p>When Notice to Attorney is Notice to Client.—Ü^ie plaintiff sued to recover a debt, and garnisheed a supposed creditor of the defendant. After the service of the garnishment, plaintiff’s attorney was informed that before its service, the defendant had transferred the debt garnisheed to a third party. Meld, that this notice to the attorney was constructive notice to the principal.</p> <p>Amendment of ¡Findings.—Query?—Can the Court, on the argument of a motion for new trial, amend its findings filed when judgment was rendered ?</p>

<p>Insolvent Proceedings.—In proceedings in insolvency the notice to creditors should be published for the first time at least thirty days before the day fixed for the creditors to appear and show cause why the prayer of the alleged insolvent should not be granted.</p> <p>Judgment in Insolvent Proceedings.—If the notice to creditors in insolvent proceedings is not published the first time at least thirty days before the day fixed for the creditors to appear and show cause, etc., a judgment of discharge rendered by default is void.</p> <p>Jurisdiction in Insolvency.—Proceedings in insolvency are special, and no intendments can be made in favor of the jurisdiction.</p>

<p>Record on Appeal to Supreme Court.—A judgment in another case, printed in the transcript on appeal from an order refusing to dissolve an injunction, which is not made a part of the complaint or answer by averment, and was not one of the papers upon which the injunction was granted, or upon which the motion to dissolve was heard, is not a part of the record.</p> <p>Injunction to restrain Sale on Execution.— If a judgment upon which an execution issues, and the execution itself, are void upon their face, an injunction will not he granted to restrain a sale of property levied on under the execution, or the issuing of any other execution on the judgment.</p> <p>Power of Court to stay Execution on Motion.—If a judgment upon which an execution issues and the execution itself are void upon their face, the Court has power on motion to afford relief, and can arrest the process.</p> <p>Power of Judge at Chambers over Executions.—A Judge at chambers has authority to order a suspension of proceedings under an execution until a motion before the Court to recall or quash it can be heard.</p> <p>Complaint to enjoin Execution.—A complaint to enjoin the sale of property under an execution, and the issuance of another execution on the judgment, is devoid of equity, which only avers that the judgment and execution are void on their face, and the insolvency of one of the defendants.</p>

Sprague and Norway were candidates for the office of County Surveyor of Santa Barbara County at the general election held on the 6th day of September, 1866. Norway was declared elected, and Sprague contested. Several persons voted for Sprague who had first arrived in this State more than six lunar but less than six calendar months before the election. The County Judge rejected these votes, and adjudged that Norway was elected.

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

On the 8th day of November, 1855, the plaintiff, together with Mathew Simmons, E. H. Morse, and Mary D. Culver, purchased of Thomas Brooks two blocks of land in the City of Sacramento, lying between E and F and Eighteenth and Twentieth streets, and Brooks executed to them a deed, which was recorded.

<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 complaint started out as follows: “ The People of the State of California, by J. Burckhalter, District Attorney for the said County of Mariposa, complain of the Mariposa Company, a corporation created under the laws of the State of New York, and of the following real estate, less the town lots sold in Bear Valley and Mariposa, embracing about forty-three thousand acres, with improvements, as given in by Fred. Law Olmstead, Manager for said company.

<p>Evidence and Proof.—Evidence includes the means by which any alleged matter of fact is established or disproved. Proof is the result or effect of the evidence.</p> <p>Making Proof.—As a general rule, where proof of a fact is required by a statute, and the nature or character of the evidence for the purpose is not specified, the only mode of making the proof is that prescribed by the common law rules of evidence.</p> <p>Proof of Publication of Notice to Creditors.—One of the exceptions to this rule is the proof of the publication of the notice to creditors in insolvent proceedings. The publication of such notice may be proved by affidavit.</p> <p>Losses by an alleged Insolvent.—Where the petition of an alleged insolvent states losses sustained by him in trade, and he fails, when made a witness on the stand, to explain how the alleged losses occurred, the inference is that the estimate of losses was not honestly made.</p> <p>Account Books of an alleged Insolvent.—It is the duty of an alleged insolvent, on or before the day appointed for the meeting of creditors, to deposit in the Clerk's office, for the inspection of his creditors, all the commercial or other books which he may have kept; and his failure to do so, or account for their loss, Aprima facie evidence of fraud to the injury of his creditors.</p> <p>Question of Law in an Insolvent Case.—Whether one claiming a discharge under the Insolvent Act, has strictly complied with its provisions, is a question of law for the Court, and not one of fact for the jury.</p>

<p>Appeal from Order.—No appeal lies directly from an order overruling exceptions to a referee's report.</p> <p>Appeal from Order denying New Trial.—An appeal from an order denying a new trial must be thken within sixty days after the order is made and entered in the minutes of the Court.</p> <p>Appeal in Partition.—The Act of 1864, allowing appeals to be taken from an interlocutory order in partition determining the rights of the several parties, and directing a partition, does not apply to such judgments rendered before its passage.</p> <p>Appeal from Final Judgment.—The one year within which an appeal must be taken from a final judgment commences to run from- the time the judgment is rendered by the Court, and not from the time it is entered in the Judgment Book by the Clerk.</p> <p>Case Affirmed.—Gray v. Palmer, 28 Cal. 417, affirmed.</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>

In 1857 a company located a right of way for the purpose of cutting a ditch around the side of Table Mountain, Butte County, in order to gather the water flowing down the ravines, to convey it to mining claims at Cherokee Flat, and at the same time the company claimed the right to appropriate the water in the ditch when constructed. In order to make the ditch it was necessary that two tunnels should be run through intervening hills.

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

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

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

This was an action to recover possession of a lot at the corner of Second and Mission streets, City of San Francisco. On the first day of March, 1849, T. M. Leavenworth was the owner of the lot, having acquired title under an Alcalde’s grant, and on that day mortgaged the same to Andrew Hoeppner to secure a debt of seven thousand dollars. On the seventh day of November, 1849, Leavenworth conveyed the lot to Wm.

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

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

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>Ejectment to recover a lot in San Francisco, and for two hundred dollars damages.</p> <p>The following was the affidavit of service of summons :</p> <p>“ George D. Symonds, being duly sworn, says, he is a free white male citizen of the United States;. over twenty-one years of age, and not interested in the event of this suit, and that on the 29th day of May, 1865, he served the within summons on said defendant, Margaret Campbell, by delivering to her, in hand in said city and county, a copy of this summons, attached to a certified copy of this complaint, duly certified by the County Clerk of said city and county to be a true copy.”</p> <p>The defendant'appealed from the judgment.</p> <p>The other facts are stated in the opinion of the Court.</p>

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

County Court, Butte County. The petition of the contestant Day was filed December 8th, 1865. The defendant appealed from the judgment df the County Court. The other facts are stated in the opinion of the Court. •

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

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

<p>Publication op Notice to grade Street.— A resolution of the Board of Supervisors of San Francisco declaratory of their intention to perform work on a street, need he published only ten days, Sundays included.</p> <p>Issuable and Probative Facts in Pleading.—Ultimate facts only, and not such as are probative, should be stated in pleadings.</p> <p>Surplus Words in Pleading.—The words “ duly/’ “ wrongfully,” and “ unlawfully,” when used in connection with issuable facts, while they do not vitiate a pleading, are surplusage, and had better be omitted.</p>

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

Defendant, Kneeland, was an Assessor in Placer County, and the other defendants were sureties on his official bond. This was an action on the bond. The People recovered judgment in the Court below against the four sureties who signed before the change was made in the penal sum. The defendants appealed. The other facts are stated in the opinion of the Court.

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

<p>What will Create Mortgage in Equity.—An agreement in writing to give a mortgage, or a mortgage defectively executed, or an imperfect attempt to create a mortgage or to appropriate specific property to the discharge of a particular debt, will create a mortgage in equity or a specific lien on the property so intended to be mortgaged.</p> <p>When Mortgages given on the Same Land stand on Equality.—D. and V. were tenants in common, each owning equal interests in real estate, and at the same time made contracts in writing with R., drawn upon the same piece of paper, by which they were to convey to R. their respective interests, and R. was to execute to each a mortgage on certain land he was about to acquire, as security for the purchase money due to each. R. gave the mortgages, but that to V. was first made and recorded. Held, that the money arising from the sale of the mortgaged premises should be applied equally to the payment of the sums due D. and V.</p> <p>Rights of Mortgagees as between Each Other.—When the owner of land contracts in writing with two persons at the same time to execute to each a mortgage on the same, and each has knowledge of the agreement with the other, and nothing is said about priority of mortgages, the mortgages afterwards executed stand upon an equality although one may have been first executed and recorded.</p>

<p>Appeal from the County Court of Siskiyou County.</p> <p>The petitioner appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

This action was brought in a Justice’s Court to remove Pyser for holding over after rent fell due, and was afterwards appealed to the County Court. E. Brooks had previously recovered a judgment against-Ross et al. for the possession of the premises. When the suit of Brooks v. Boss was commenced, Oalderwood and wife were in possession of the premises, but before it terminated plaintiff Elizabeth leased to Pyser, who went into possession as her tenant.

<p>Jurisdiction op District Courts.—The District Courts have jurisdiction of actions to recover one half the value of a partition fence, although the amount sought to be recovered is less than three hundred dollars. Such actions involve the title of the parties to their respective lands.</p> <p>Idem.—Section six of Article VI of the Constitution gives the District Courts jurisdiction of all actions in which the title or possession of real property is an issuable fact in the case, upon which the plaintiff relies for a recovery, or the defendant for a defense. *It is not necessary that the title or possession be put in issue, but one or the other must be an issuable fact necessary to be averred in the pleadings.</p> <p>Idem.—District Courts have jurisdiction of all actions to recover damages for trespass upon lands, regardless of the amount of damages claimed.</p>

Ejectment to recover possession of a lot at the corner of Mission and Ridley streets, City of San Francisco. In October, 1854, John Baxter was in possession of the demanded premises, and on the seventh day of that month quitclaimed the same to Thomas Harris. Harris, on the 30th of December following, executed to Marriott & Wheeler a mortgage on the same premises, which was afterwards assigned to B. S. Brooks.

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

José German Pina, on the fourteenth of October, 1843, received a grant of land from the Mexican Government, in what now constitutes the territory of Sonoma County. He died unmarried, leaving several brothers and sisters, Antonio Pina, the father of plaintiff, among the number. Afterwards and in 1853 Antonio Pina died, leaving the will mentioned in the opinion of the Court. Plaintiff brought this' action to recover possession of the land.

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>Plaintiffs moved for a new trial in the Court below, and defendants appealed from an order refusing to strike out the statement.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Constitutionality of Thirteenth Section of Railroad Act.—The thirteenth section of the Railroad Act, requiring Commissioners, in assessing the value of lands sought to be taken by the company, to make allowance for any benefit that will accrue to the person whose lands are taken, is not repugnant to the Constitution.</p> <p>Private Property may be Taken for Railroads.—Railroads for the carriage of passengers and transportation of merchandise are public highways, for the construction of which, though made by private corporations, the land belonging to private persons may be taken upon paying to the owner a just compensation.</p> <p>Legislative Power in Taking Land for Public Use.—It is in the power of the Legislature to declare that in ascertaining what is a just compensation to be paid to the owner of land taken for a railroad, the benefit which may result to the remaining land of the same parcel shall be set off in satisfaction or part satisfaction of the value of the particular land taken. *</p> <p>Compensation for Land Taken for Public Use.—The Constitution guarantees to the owner of land taken for public purposes only a just compensation, and to give a just compensation, not onty the benefit which may result to the remaining land of the parcel taken, but also the injury which this remaining parcel may sustain, should be taken into consideration.</p> <p>Just Compensation for Land Taken for Public Use.—When the land taken for a railroad is a part only of a tract, it is the duty of the Commissioners, in arriving at a just compensation to be paid to the owner, to ascertain what is the value of the whole tract without the railroad, and also wliat will be the value of the part not taken after the road is constructed, and the difference in values is the true compensation to be awarded.</p>

<p>Liability of Employer to Employe for Injuries caused by Accidents.—If an employé works with or near machinery which is unsafe and from which he is liable to sustain injury by reason of its being unsafe, with the knowledge or the means of knowledge of its condition, he takes the risk incident to the employment, and cannot maintain an action against his employer for injuries sustained by reason of the defective condition of the machinery.</p>

District, City and County of San Francisco. Defendant recovered judgment in the Court below, and plaintiff appealed. The other facts are stated in the opinion of the Court.

<p>Appeal from the District Court, Fifth Judicial District, Tuolumne County.</p> <p>This 'action was commenced in April, 1861. There have been two former appeals to this Court which are reported in the 20 Cal. 198, and 21 Cal. 548. The material facts, except such as refer to the points now passed on by the Court, will be found reported on the first appeal.</p> <p>The mining district where the claim in dispute is located is called the Table Mountain District. In 1855, at the time the plaintiff claimed to have entered upon and succeeded to the rights of the Experimental Company, there were no mining customs or regulations in force in the district in regard to the size of a claim located for tunnelling purposes. One of the principal questions raised and discussed on the trial in the Court below seems to have been the reasonableness of the size of plaintiff’s claim. Plaintiff introduced testimony tending to show that in 1853 the Experimental Company marked the boundaries of the claim as now claimed by plaintiff, by blazing trees along the boundary lines. It was proved that said company then commenced running a tunnel into the claim on the easterly side of the mountain, and worked on it continuously until the corporation was formed, in May, 1854, and that the corporation (the plaintiff) then commenced work in the same tunnel. The corporation did not mark any boundary lines, but claimed to the old boundary lines of the Experimental Company. > These boundaries extended through Table Mountain from base to base, with a front on each side of about four thousand feet. The mining regulations in the district were adopted at a meeting of the miners on the 9th day of January, 1855. Previous to this time the defendants had been working a claim adjoining the boundaries as claimed by the Experimental Company. On the day after the passage of the regulations the defendants located a tunnel claim, embracing a portion of the ground within the boundary lines as marked by the Experimental Company. The mining regulations adopted in 1855 allowed each man a claim for tunnelling purposes three hundred feet in width at the base of the mountain, extending entirely through the mountain in a direct line. Plaintiffs proved that the Experimental Company, in May, 1854, joined with them other parties, to the entire number of fourteen, who formed the corporation, and claimed that the size of the claim was not unreasonable for that number. Defendants, to' show that the claim was of unreasonable size at that time, called two witnesses to prove a general custom in the State as to size of claims before 1855. Henry Tomlin-son testified that as early as the latter part of 1853 he knew the general custom in Siskiyou County, and that claims were fifty feet front, running through the mountain. He also said that he was acquainted with some in Tulare County, and that they were one hundred and twenty-five or one hundred and fifty feet front. Jacob Wickenham testified that he mined at Yankee Jim’s, Placer County, in 1851, and that the custom at that place, before the miners made laws, was one hundred and seventy feet to the man, through the mountain, from base to base; and that he also mined at White Rock, El Dorado County, in 1851-2, and that the custom at that place was one hundred and fifty feet to the man. He also said he never knew of mining claims in Tuolumne County being regulated by these customs.</p> <p>The general tenor of the four first instructions of the Court was that if there was no local custom regulating the size of a claim, the reasonableness of its size must be'determined by general custom.</p> <p>The fifth instruction was in the following words: “ The statute law of the State provides that such customs, usages and regulations, when not in conflict with the Constitution and laws of this State, shall govern the decision of the action.”</p> <p>The Sixteenth Article of the written mining regulations provided that “ the foregoing rules and regulations shall not be so construed as to conflict in any way with any claim already located and worked upon.” The plaintiffs introduced evidence tending to prove that this Article had been surreptitiously altered after its passage.</p> <p>The defendants had run their tunnel into the westerly side of the mountain, and after it entered the mountain, had crossed the line claimed by plaintiffs. Defendants recovered judgment in the Court below. On motion of plaintiffs the Court granted a new trial, and defendants appealed from the order.</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>Lewis Brady owned a tract of land in Alameda County, and on the 27th day of November, 1861, a judgment was docketed against him in favor of respondent, Hathaway, for ten thousand and eighty-seven dollars and fifty-two cents and costs. Brady moved for a new trial, which was denied November 17th¡ 1862. He then appealed to the Supreme Court, and on the 3d day of December, 1862, filed an appeal bond staying an execution. The Supreme Court affirmed the judgment, and a remittitur was filed in the Court below on the 4th day of November, 1863. July 12th, 1864, Brady sold the land to appellant. On the 29th day of September, 1865, respondent had an execution issued, and the Sheriff advertised, and on the 27th day of November, 1865, sold all the interest which Brady had in the land when the judgment was docketed. Over eleven months had expired from the time the judgment was docketed until the execution was stayed on appeal, and more than one year and ten months elapsed from the time the remittitur was filed in the Court below, before the execution was issued. Hathaway was the purchaser at the Sheriff’s sale. Appellant claimed that the lien of the judgment had expired, while respondent claimed that the two years lien of the judgment did not commence to run when it was docketed, but when the remittitur was filed in the Court below. There ha'd been an injunction restraining the sale under the execution, which had delayed the sale several weeks, but it was dissolved November 25th, 1865. The next day after the Sheriff’s sale, appellant and respondent entered into a contract, under seal, by the terms of which respondent, in consideration of eleven thousand eight hundred and seventy-eight dollars and fifty-five cents, then paid him by appellant, sold to appellant all the right he had under the Sheriff’s certificate of purchase. The contract also provided that if the lien of the judgment had expired before the levy under the execution, respondent, on demand, would repay the money. This action was brought to recover back the money. Defendant recovered judgment in the Court below, and plaintiff appealed.</p>

There were a 'large number of defendants. The plaintiff and several of them claimed title under the deed from Donna Martina Castro, wife of Louis Depeaux, to her eight children. This deed did not contain the name of her husband as a grantor, nor was it signed by him.

<p>Enjoining a Trespass.—Courts of equity may restrain the commission of a trespass about to he committed by taking down fences and opening a road through the plaintiff's land in pursuance of an order of the Board of Supervisors prematurely made.</p> <p>Damages for Laying Out Road.—The award of the Road Viewers for damages sustained by a person for laying out a road across his land is not conclusive. The applicant may, after the award and tender of the money awarded, commence suit against the county in the District Court for his damages.</p> <p>When Road 3iay be Opened.—If an applicant for damages for laying out a road refuses to accept the sum awarded him by the Road Viewers, and commences suit in the District Court, the public do not acquire a right of way until the damages are ascertained in the suit, and a final judgment is rendered thereon, and the damages are paid or provided to be paid.</p> <p>Opening Highway.—Until the question is finally settled as to the amount of damages a person is entitled to for opening a road over his land, and the money is paid or provided to be paid, neither the Supervisors nor the Road Master can remove the fences or open the road.</p> <p>Tender of Da stages for Opening Road.—The tender of the money awarded by the Road Viewers to an applicant for damages for opening a road, does not give a right to open the road if the applicant sues to recover his damages.</p>

The Court instructed the jury as follows: “ If you believe from the facts that the defendant, being a man of abandoned and malignant heart, (at the time and place aforesaid,) having no considerable provocation with the person whose name is stated in the indictment, then and there struck said person with a mallet sufficiently large to cause death, with the intention of inflicting upon the person of the deceased a severe wound, of which wound the deceased soon thereafter died,…

<p>Construing A Statute.—In construing a statute it is an invariable rule to start out with the assumption that some effect is to be given, if possible, to every provision of the law to be construed.</p> <p>Proof of Assessment of Tax.—Jn an action brought under the Act of 1861, to recover a delinquent tax, if there is a defense interposed it is necessary for the District Attorney to show by the delinquent list or the original or duplicate assessment roll that a tax had been assessed and levied. The fact that the second section of the Act provides that the defendant shall not be allowed to set up or show any informality in the levy or assessment as a defense, does not obviate the necessity for such proof.</p>

<p>Embezzlement by Tax Collector.—An indictment against a Tax Collector for embezzling money collected for taxes does not charge two offenses if it states that he received a certain sum for licenses due the State, and a certain other sum for licenses due the county, and then charges him with embezzling the sum total.</p>

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

<p>Parties in Equity.—All persons materially interested either legally or beneficially in the subject matter of a suit in equity, which may be affected by the decree, ought to foe made parties, so that there may he a complete decree, which shall bind them all and prevent future litigation.</p> <p>Idem.—The above rule is one somewhat of convenience, and will not be rigidly enforced when its observance would be attended with great inconvenience and answer no substantially beneficial purpose.</p> <p>Multifariousness of Bill in Equity.—A bill in equity is multifarious when several matters are united against one defendant which are perfectly distinct and unconnected, or when relief is demanded against several defendants of several matters of a distinct and independent nature.</p> <p>Idem.—A bill in equity is ’not multifarious if there is a common liability in the defendants and a common interest in the plaintiffs, or if the interests of the plaintiffs are the same, and the defendants have not a coextensive common interest, but their interests are acquired under different instruments from the same source of title.</p> <p>Idem.—If a bill in equity to enforce a trust avers that plaintiffs’ grantors inherited a tract of land as heirs at law of their brother, who received a grant of the same from the Government of Mexico, and died intestate, and that two of the defendants afterwards received patents for distinct parcels of the same, and that the several other defendants claim the title to separate and distinct parcels of the same derived from the patentees, and that the defendants hold the legal title to the several distinct parcels in trust for the plaintiffs, it is not multifarious.</p> <p>Separate Estate of Husband.—Under the Spanish and Mexican law, land granted by the Government to the husband as a donation, became his separate estate, and passed, upon his dying intestate, to his heirs at law.</p> <p>Trust Estate.—If one who has a grant of land from the Government of Mexico dies intestate, and then a person, mistakenly believing himself the heir, sells a part of the land to another, who afterwards, under the belief that he has acquired a good title, and without any fraud obtains a confirmation of the grant and a patent from the United States, the patent does not deprive the heirs at law of their interest in the property, but the patentee holds the legal title in trust for the true heirs.</p> <p>Idem.—If after the death of a person owning land granted him by the Mexican Government, one mistakenly believing himself the heir, obtains a confirmation of the grant to him and a patent therefor, without any fraud, the patentee holds the legal title thus obtained in trust for the true heir.</p> <p>Idem.—It matters not in such cases whether the respective patentees acted in good faith and did not know that they occupied to the heirs at law the relation of trustees in equity, for the trust arises as matter of law, and is a constructive trust.</p> <p>Idem.—The respective patentees in such cases are presumed as matter of law to have notice of the rights of the true heirs, and that they hold the legal title of the land in trust for them.</p> <p>Idem.—The fact that the true heirs in such case had notice of the proceedings taken by the respective patentees to obtain confirmations of the grant and patents for the same from the United States, but did not intervene to protect their rights, does not destroy the trust.</p> <p>Idem.—The fact that the true heirs in such case were silent during the proceedings for confirmations and obtaining patents, does not estop them from asserting their equitable right to the land and enforcing the trust.</p>

Plaintiff, on the 5th day of February, 1863, was and had been for some time the wife of George Peck, and continued so until his decease, which occurred on the 13th day of June, 1864. He died intestate. Defendant Brummagim was appointed his administrator. On said 5(h day of February, 1863, George Peck was worth upwards of seventy-five thousand dollars, and owed no debts.

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

<p>Federal Homestead Act.—There is nothing in the Act of Congress of May 20th, 1862, granting homesteads to settlers on public lands, which forbids a voluntary alienation of the land by the grantee who has acquired the same as a homestead.</p> <p>Mortgage of Public Lands.-—If one who is in possession of public lands mortgages the same iu fee, and afterwards acquires title to the same under the Federal Homestead Act, he is estopped from denying the lien of the mortgage, and cannot set up a title afterwards voluntarily acquired to defeat it. Section thirty-three of the Act concerning conveyances applies to mortgages as well as absolute conveyances.</p>

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

<p>Indictment for having False Licenses.—An indictment which charges a Tax Collector with having in his possession, with intent to circulate, and with actually putting in circulation and issuing, licenses other than those authorized by law to be issued, does not charge two offenses.</p>

Plaintiff claimed under a patent issued by the State to his grantor, from which it appeared that the State had sold the land as swamp and overflowed. Defendant claimed under the Federal Homestead Act, and denied that the land was swamp and overflowed. On the trial plaintiff, to maintain the issue on his part, offered in evidence a patent issued by the State to his grantor.

<p>Proof of Insanity.—When the defendant is accused of murder, and the defense is insanity, if there is any evidence tending to prove the personal insanity of the defendant, or the killing was apparently without motive, the defendant should he permitted to introduce evidence of the insanity of his parents.</p>

The following were some of the allegations of the complaint : “ Plaintiff further alleges that, being so, in the peaceable and quiet possession of said described premises, and entitled to the possession of the same, the said defendants, on the 13th day of January, A. D. 1864, with great force and violence, and with a multitude of people, unlawfully, and with force, entered on said described premises, and with force and violence removed, put out, and expelled the said…

<p>Appeal from the District Court, Fourth Judicial District, City and County of dan Francisco.</p> <p>On the first day of February, 1864, the Board of Supervisors of the City and County of San Francisco passed a resolution, declaring the intention of the Board to grade Washington street, between Jones and Leavenworth. The resolution was not signed by the Mayor. Defendant Crowley made proposals for the contract, and it was awarded to him, and the Superintendent of Public Streets entered into a contract with him to perform the same. Crowley assigned the contract to plaintiff Hendrick, who performed the work. Crowley was the owner of a lot fronting on the street graded, on which the Superintendent of Public Streets assessed the sum of five hundred and fifteen dollars and forty-one cents, for its proportion of the sum due on the contract. The action was brought to recover this sum. Plaintiff appealed from an order granting a new trial.</p> <p>The other facts are stated in the opinion of the Court.</p>

Twelfth Judicial District, City and County of San Francisco. Action to recover a tax assessed on a lot in San Francisco for street improvements. George B. Bradford and C. A. Hawley and others were made defendants along with Donner.

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

<p>The petitioner, who was detained in the State Prison, applied to the Supreme Court to be' discharged on habeas corpus. The Warden of the Prison returned that he detained the petitioner by virtue of the following commitment:</p> <p>“ State oe California, )</p> <p>“ County of Calaveras. )</p> <p>“ To the Sheriff of Calaveras County: At the October Term of the Court of Sessions in and for the County of Calaveras aforesaid, held at Mokelumne Hill, in said county, on the 5th day of December, A. D. 1859, Hon. Wm. Porter, County Judge, Wesley K. Boncher, Associate Judge, Wm. Tait; Associate Judge, J. H. Dobson was brought before said Court, charged with the crime of mayhem, and indicted by the Grand Jury of said county at said October Term, on the 5th day of December, A. D. 1859, for the crime of mayhem, which crime was committed on the 13th day of November, A. D. 1859, or thereabouts, and the said J. H. Dobson having been tried by a jury on the 9th day of December, A. D. 1859, and a verdict rendered of guilty of the crime of mayhem, as charged in the indictment against the said J. H. Dobson, and the Court having rendered the following judgment on the 10th day of December, A. D. 1859, to wit: that the said J. H. Dobson be taken by the Sheriff of Calaveras County to the State Prison for the State of California, and there be confined for the period of ten years;</p> <p>“ Therefore, the people of the State of California command you to carry the said J. H. Dobson to the State Prison of the State of California, the Keeper whereof is hereby required to keep him in safe custody in the said State Prison until the judgment so rendered be satisfied or he be discharged by due course of law.</p> <p>“ Witness my hand and the seal of said Court, at my office, in the Town of Mokelumne Hill, this 10th day of December, 1859. (Signed,) “ Wm. H. Hanford, Clerk. “By A. W- Genung, Deputy.”</p> <p>The other facts are stated in the opinion of the Court.</p>

This was an action to recover possession of an undivided three fourths interest in One Hundred Vara Lot Number Thirty-Nine, in the City of San Francisco, commenced April 8th, 1861.

<p>Homestead.—The doctrine laid down in Gee v. Moore, 14 Cal. 477; and Brennan v. Wallace, 25 Cal. 114; that the husband and wife were not joint tenants in the homestead, but that the surviving wife took the homestead not by right of survivorship, but as property set apart by law from the husband's estate for her benefit, applied only to the Homestead Law as it existed prior to the amendment of 1860.</p> <p>Idem.—The Homestead Law passed in 1860 must be considered in pari materia with the provisions of the Act of 1851.</p> <p>Joint Tenancy in Homestead.—Even if the Homestead Act of 1860 makes the husband and wife joint tenants in homesteads acquired under the Act of 1851, such joint tenancy does not become perfected until a declaration of homestead is filed, as required by the Acts of 1860 and 1861=</p> <p>Idem.—If a homestead was acquired under the Act of 1851, and no declaration of homestead was made and recorded, as required by the Acts of 1860 and 1861, before the time for filing such declaration had expired, the title to the homestead rested where it was before the premises were appropriated as a homestead.</p> <p>Conveyance of Homestead.—A conveyance made by the husband alone of a homestead acquired under the Act of 1851 was valid, subject to the right of the husband and wife to hold the property as a homestead until it ceased, to be such, and a failure to make and record a declaration of homestead under the Acts of 1860 and 1861, was an abandonment of the homestead, and the grantee then became entitled to its actual possession and enjoyment.</p> <p>Idem.—If husband and wife acquired a homestead under the Act of 1851, and the husband alone made a conveyance of the property and then died before the time expired for making and recording a declaration, as required by the Acts of 1860 and 1861, and no such declaration was made and recorded, upon the expiration of the time for making the same the grantee became entitled to the actual possession and enjoyment of the property.</p>

<p>Testimony of Grand Jurors.—An indictment for perjury, alleged to hate been committed in giving evidence before a grand jury, is not found on illegal testimony because the grand jurors before whom the evidence was given testify as to the alleged perjury before the grand jury by which the indictment is found, without having been required to do so by a judicial order.</p> <p>Obligation of Secrecy on Grand Jurors.—The obligation of secrecy imposed on grand jurors is due and owing to the public, and not to the witnesses who testify before them; and such witnesses cannot take advantage of this obligation in a criminal prosecution against them.</p> <p>Order setting aside Indictment.—An order setting aside an indictment is an appealable order.</p> <p>Idem.—An order setting aside an indictment is not an interlocutory order.</p>

The defendant was sentenced to the State Prison for the term of fifteen years, and appealed from an order denying a new trial. The other facts are stated in the opinion of the Court.

The defendant was indicted for an assault with an intent to commit a rape. The indictment was found December 6th, 1865. When the case was called, April 3d, 1866, upon a suggestion that the defendant was then insane, a special jury was impanelled to try that question, who found the defendant insane at the time. The case was then postponed. The defendant was afterwards arraigned for trial in September, 1866.

The City of San Francisco acquired the demanded premises by a grant from the State of California, made in 1851, by an Act of the Legislature entitled “ An Act to provide for the disposition of certain property of the State of California.” The defendants appealed. The other facts are stated in the opinion of the Court.

Ejectment to recover a lot in Visalia, Tulare County. The cause was tried before the Court without a jury. Defendant had judgment, and plaintiff appealed. The other facts are stated in the opinion of the Court.

<p>Assets of Estate at Common Law.—Under the common law, where no different order is prescribed in the will, the assets of the deceased, for the purpose of paying the debts of the estate, will be marshalled, and the debts paid out of them in the following order : First, the personal estate not specifically bequeathed, or expressly or by implication excepted ; second, lands expressly devised for the payment of debts; third, lands descended to the heir; fourth, lands devised.</p> <p>Idem.—This order of marshalling the assets is not to be disturbed by the fact that lands are devised subject to a mortgage thereon.</p> <p>Idem.—The personal estate is first to be applied and exhausted, even for the payment of debts charged upon the real estate by mortgage, if the debt so charged was the personal debt of the testator.</p> <p>Idem.—It requires express words in the will, or an intent clearly manifest upon an examination of the entire will, to disturb this order.</p> <p>Idem.—The making of a specific bequest is regarded as indicating an intention to discharge the particular personal property specifically bequeathed from the debts of the testator.</p> <p>Idem.—A specific bequest of personal property is the bequest of a particular thing or money specified and distinguished from all others of the same kind, as of a horse, or money in purse.</p> <p>Specific Bequest.—A bequest of “ all my personal estate * * * ’* is not a specific bequest, and under the common law such bequest would not discharge the personalty from being first applied to the payment of the debts.</p> <p>Payment of Debts of Deceased.—Under our law generally the personal estate which comes into the hands of the executor is first chargeable with the payment of the debts of the deceased.</p> <p>Idem.—The rents and profits of the real estate accruing subsequent to the death of the testator, are not personal property in the hands of the executor to be first applied to the payment of debts in exoneration of the general personalty.</p> <p>Idem.—Under our law, as between the legatee of the personalty and the devisee of the realty, the executor is not authorized to appropriate the rents of the real estate which accrued subsequent to the decease of the testator, to the satisfaction of a debt of the deceased secured by a mortgage on the realty, in exoneration of the personalty.</p> <p>Devise of Realty.— Under the common law, every devise of real estate was regarded as specific. Under the statutes of California, a devise of real estate may be general. z</p> <p>Idem.—A devise of all the real estate of which the testator may die seized, made in pursuance of the provisions of section twenty-two of the Act of the State of California concerning wills, is a general, not a specific, devise.</p> <p>Marshalling Assets to pay Debts op Deceased. — Where the testator dies leaving both personal and real estate, and owing debts secured by mortgage on the realty, and bequeaths all the personal estate and one half of all the realty to one devisee, and the remaining half of the real estate to another devisee, and makes no mention of the debts, the legacies and devises are all general, and the real and the personal estate devised, under sections one hundred eighty and one hundred eighty-one of the Probate Act, must contribute pro rata to the payment of the debts, in proportion to the value or amount of the several devises or legacies.</p>

The prisoner applied to Mr. Justice Sanderson, at chambers, to be discharged on habeas corpus. The other facts are stated in the opinion.

The defendant is a corporation, organized under the laws of the State of California for mining purposes. The mining operations of the defendant are carried on in what is called the Comstock Lode, in the now State, but in 1861 the Territory of Nevada.

Action to recover possession of a tract of land in Colusa •County. .Plaintiff recovered judgment in the Court below, and defendants appealed from the judgment and from an order denying a new trial. The other facts are stated in the opinion of the Court.

<p>[Note.—The case of Taylor v. Palmer, ante, 240, had been printed before this opinion was filed. The opinion should regularly have appeared at page 257 of this volume, as a substitute for the opinion of Mr. Justice Sawyer there printed.—Reporter.]</p>