Volume 32 — California Reports

<p>Mortgage as Evidence.—If a mortgage on a mining claim describes it generally by name, and then gives the monuments and cardinal points by which it is bounded on three sides, without naming the boundary on the fourth side, and there is an averment in the complaint stating the fourth boundary, and the complaint also gives the general name and the other three boundaries as contained in the mortgage, without naming the cardinal points, and the mortgage is not set out in Time toerba in the Complaint, it is admissible in evidence in an action to foreclose it, as against a subsequent mortgagee who denies that the mortgagor mortgaged the land described in the complaint.</p> <p>Parol Evidence to explain • Mortgage.—Where a mortgage on land describes the land generally by name, but does not state all the monuments bounding it on its several sides, and the complaint contains an averment as to what the monuments not given were, parol evidence maybe introduced to identify the mortgaged premises as set out in the complaint.</p> <p>Variance between Pleadings and Proofs.—A judgment will not be reversed on the ground of variance between the pleadings and proofs when the variance does not mislead the appellant to his prejudice.</p> <p>Idem.—The seventy-first section of the Practice Act, requiring immaterial variances between the pleadings and proofs to be disregarded, is a most beneficial provision, and should be literally construed and carried out.</p>

Ejectment to recover a lot of land four hundred and twelve and a half feet in length and one hundred and thirty-seven and a half feet wide, being Fifty Yara Lots One, Two, and Three, of Block Two Hundred and Eighty-nine of the Western Addition to San Francisco. The defendants entered into possession of the demanded premises in October, 1862.

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

This action was commenced in October, 1864. In 1852 the Tuolumne Water Company excavated a ditch from the Tuolumne Eiver and Five Mile Creek. This company had a surplus of water which it turned into Mormon Creek above the heads of plaintiffs’ and defendant’s ditches, until the summer of 1864, when it was able to use it all by an extension of its ditch.

The indictment charged that the defendant, “ on the twelfth day of August, A. D. 1866, at the city, county, and State aforesaid, about the hour of twelve of the clock, m., of the nighttime of the same day, with force and arms, the house, room, apartment, and tenement of one Jacob Gr. Jackson and William E. Wood, doing business under the name and style of J. G-.

The defendant was indicted for the crime of murder, and convicted of murder in the first degree, and sentenced to be executed. He appealed from the judgment. The other facts are stated in the opinion of the Court.

<p>Application to the Supreme Court for discharge on habeas corpus.</p>

<p>Certiorari to the County Court of Sacramento County.</p> <p>The facts are stated in the opinion of the Court.</p>

The plaintiff appealed from an order discharging the attach ment. The other facts are stated in the opinion of the Court.

The defendant was employed as a porter by one Mearny, a saloon keeper at Downieville, Sierra County. Mr. Mearny left his saloon in charge of his barkeeper late Saturday evening, and did not return until 11 o?clock A. M. the next day. When he left he placed a tin box, containing two hundred and thirty-five dollars and seventy-five cents in gold and silver coin, in his safe. The key of the safe was in a sugar bowl.

The plaintiff owned real estate in San Francisco, which in 1866 was assessed at twenty-seven thousand dollars. The defendant, who was Tax Collector, enforced the payment of the tax on this sum, which was eight hundred and thirty-seven dollars. The other facts are stated in the opinion of the Court.

Application to the Supreme Court for writ of mandate. The Legislature passed the following Act, which was approved by the Governor, March 28tli, 1863 : “An Act to authorize the Board of Supervisors of Sonoma County to appropriate Money for a Map.- “ The people of the State of California, represented in Senate and Assembly, do enact as follows: “ Section 1.

When the thirteen grand jurors had been impanelled, there were seven others in attendance who had been summoned. The defendant was indicted for the crime of rape, and convicted and sentenced to confinement in the State Prison for the term of twenty years, and appealed. The other facts are stated in the opinion of the Court.

Plaintiff recovered judgment in the Court below. Defendants applied for and obtained an order, which was entered as allowing them “ twenty days time in which to move for a new trial.” They moved to have the order amended so as to read “ twenty days time to file statement on motion for a new trial herein,” claiming that that was the order they applied for and which was granted, but that it was not entered right.

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

The defendant was convicted, and sentenced to the State Prison, and appealed. The other facts are stated in the opinion of the Court.

The plaintiffs alleged in the complaint that the plaintiff, Elizabeth Corcoran, on the 17th day of July, 1861, and thence until the 23d day of October, 1862, was the widow of Preston H. Lee, and that on the day last named she intermarried with the plaintiff, F. E. Corcoran, and that the defendants, on the ]7th day of July, 1862, in consideration of twenty thousand dollars by said Elizabeth, then loaned them at their request, gave her their promissory note in writing.

The defendant was charged with and convicted of the crime of incest, and appealed. The other facts are stated in'the opinion of the Court.

The plaintiff paid Booth for the premises one hundred and fifty dollars per month. The plaintiff appealed. The other facts are stated in the opinion of the Court.

The assault with intent to rob was alleged to have been committed at Stewart’s Flat, on the 26th day of March, 1866. One Baird owned a mining claim some distance from the place of the alleged assault.

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

On the trial the plaintiff offered in evidence the tax deed to his grantor, without proving that the person who executed it was the Tax Collector, or the genuineness of his signature. The recitals in the deed did not state in what manner the tax had been levied, the rate of taxation, nor for what amount the land had been assessed by the Assessor, nor that a certificate of the tax sale had been filed with the County Clerk.

Plaintiffs averred in their complaint “ that they now are and for several years last past have been the owners in fee simple absolute, and in the possession and rightfully entitled to, the possession of” (here followed a description of the land).

On the 22d day of May, 1861, the Probate Court of Santa Clara County appointed the defendant, John R. Wilson, guardian of the person and estate of Catharine Foley, a minor under the age of fourteen years. Said defendant qualified and gave a bond, with the defendant Minor and one H. C. Melone as sureties, and letters of guardianship of the person and estate of said Foley were issued to him.

The principal facts are stated in the report of this case on the former appeal, found in 23 Cal. 94. A brief recapitulation will here be made to elucidate the points decided. Boyreau sued Campbell and others in the Circuit Court of the United States for the Northern District of California, to recover possession of a portion of the Rancho San Leandro, in the County of Alameda.

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

The bond sued on was joint and several. The plaintiff averred in the complaint that John W. Morris was Treasurer of Mendocino County from the 7th day of March, 1864, until the 5th day of March, 1866, and that he received as Treasurer, for the use and benefit of the county, in gold coin, fifteen thousand dollars, which was the property of the county, which sum he had unlawfully in his possession, and that he had refused to deliver it to his successor in office, although he…

The above cause is but one action, and being on original bill to foreclose two mortgages, and on cross bill to set aside and cancel those mortgages, and another mortgage based upon the same title, both actions were tried together, and only one judgment was rendered in the Court below. The Court dismissed the bill to foreclose the mortgages, and gave judgment that they be cancelled and surrendered. The plaintiff, Genella, appealed. The respondent moved to dismiss the appeal.

The following is the indictment found in this case: “ Henry Schwartz is accused by the grand jury of the City and County of San Francisco, State of California, by this indictment, found on this 2d day of November, A. D. 1866, of the crime of arson in the second degree, committed as follows : That said Henry Schwartz, on the 29th day of August, A. D. 1866, at the city, county and State aforesaid, feloniously, wilfully and maliciously did aid, abet and assist, advise and…

This was a second appeal in the same case. The first is reported in 27 Cal. 476, where the main facts are stated. The other facts are stated in the opinion of the Court.

On the 26th day of December, 1860, the defendant, Newbaur, executed to the plaintiff, Mahler, a mortgage on a house and lot in Placerville, El Dorado County, to secure his promissory note given to Mahler for two thousand five hundred dollars. • On the 9th day of June, 1862, Newbaur conveyed the mortgaged property to defendant Ellsasser.

<p>New Trial.—If the party intending to move for a new trial does not file his statement within five days after giving notice of such intention, the statement should be disregarded.</p> <p>Idem.—A party giving notice of motion for a new trial is bound by that notice. He cannot afterwards give a second notice, and file his statement within five days of the second notice, but more than five days after the first notice.</p>

<p>Appeal from the District Court, Second Judicial District, Santa Barbara County.</p> <p>The following was the complaint upon which judgment was rendered:</p> <p>“ The plaintiffs above named complain of the defendant, and for cause aver: That on the 11th day of August, 1863, the defendant was indebted to the plaintiffs in the sum of one thousand four and twenty hundredths dollars ($1,004 20-100), on an account for goods sold and delivered by the plaintiffs to the defendant, at his request, in the City of Santa Barbara; and that no part thereof has been paid, and that there is now due them thereon, from the defendant, the sum of one thousand four and twenty hundredths dollars, with interest thereon from the 11th day of August, 1863.</p> <p>“ Wherefore they demand judgment as against the defendant, in the sum of $1,004 20-100 dollars, with interest from the 11th day of August, 1863, with costs.”</p> <p>Plaintiffs had judgment by default, and defendant appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

Action to recover possession of an undivided half of eleven square leagues of land, known as the Punta de Reyes Ranch, lying in Marin County, and also two square leagues of land , adjoining said eleven leagues, and lying in the same county. The first tract was granted by Manuel Micheltoreno, Governor of Upper California, to Antonio Maria Osio, on the 30th day of November, 1843, and was afterwards confirmed by the Board of Land Commissioners to Andrew Randall.

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

The deed from James Smith to the plaintiff was in the usual form of deeds of bargain and sale, and contained no recitation or declaration that Smith held the title or conveyed it as administrator or trustee. Defendant objected to its reception in evidence because the plaintiff had shown no order or authority from the Probate Court to sell the land or execute any conveyance therefor, and because she had shown no settlement of the estate of Robert Smith, deceased.

The defendants claimed to be in possession of a tract of mountain land which they used for grazing. It was public land,.and was not entirely inclosed. There was, however, a fence across its north end, with a barway in it for ingress and egress in that direction. The defendants had a house on this tract of land, in which they resided, and in May, 1864, were pasturing four or five hundred head of cattle on the same.

<p>Trial after Change of Venue.—If the defendant procures a change of venue, the plaintiff may pay the costs and transmit the papers to the county fixed as the place of trial, and have the case placed on the calendar and tried.</p> <p>New Trial on Ground of Surprise.—In order to sustain a motion for a now trial on the ground of surprise, the moving party must show not only surprise, but that he is injured by it, and this he must do by showing what case he can establish in the event of a new trial.</p> <p>Issues of Law and Fact.—When there is both a demurrer and an answer to the same complaint, raising both an issue of law and fact, the issue of law should first be disposed of.</p> <p>Idem.—When there are both issues of law and fact joined in the same cause, and the cause is tried on the issues of fact and a judgment rendered, the presumption will be indulged, on appeal, that the issue of law had first been disposed of.</p> <p>Demurrer and Answer.—An issue of law and fact should not be mixed in an answer. A demurrer should be filed as a separate pleading.</p>

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

Job F. Dye had a grant of land made to him by the Mexican Government, which was confirmed by the United States.

The following is a copy of the complaint in this action : “ The plaintiff complains of the defendant, and for cause of action herein alleges, that prior to the commencement of this suit the plaintiff rendered services to the defendant, as the attorney of and for the defendant, upon his retainers, in the prosecution and defense of divers causes, suits, arid business of and for the defendant, and in counselling and advising him, at his request, and for divers journeys and…

The trespass was alleged in the complaint to have been committed on the 1st day of March, 1866. The action was commenced April 28th, 1866. The other facts are stated in the opinion of the Court.

<p>Appeal to the Supreme Court op the United States.—An appeal from the Supreme Court of this State to the Supreme Court of the United States, is taken within ten days “after rendering the judgment” within the meaning of these terms as used in the Act of Congress, and operate as a supersedeas, if the writ of error is sued out and lodged with the Clerk, and the proper security given, within ten days from the time a petition for rehearing is denied.</p>

The defendant Brown, on the 23d day of May, 1855, executed his promissory note to Nathan B. Moore for the sum of three thousand dollars, payable on the first day of June, 18-56, bearing interest at the rate of three per cent per month, and said Moore, on the first day of October, 1857, assigned the same to M. C. Blake. Blake recovered judgment on the note in the District Court of the Twelfth Judicial District, City and County of San Francisco, on the 19th day of March, 1858.

<p>A Trial.—A trial is the examination before a competent tribunal, according to the law of the land, of the facts or a question of law put in issue in a cause, for the purpose of determining such issue.</p> <p>Fees of Justice in San Francisco.—Where no trial of an action is had, or entered upon, a Justice of the Peace in San Francisco can charge only two dollars for all services rendered, including the entry of a judgment of discontinuance.</p> <p>Idem.—If the plaintiff, after the summons is served, and on the return day, without any other proceedings, directs the Justice to enter a judgment of discontinuance, no trial is had or entered upon.</p> <p>Writ of Mandate to Justice.—A writ of mandate will issue to compel a Justice of the Peace to enter a judgment of discontinuance.</p>

When the plaintiff introduced the assessment roll in evidence the defendant’s attorneys objected to its reception because “it was not made in accordance with the requirements of section eight of ‘ An Act to authorize the City Council of the City of Oakland to improve the streets, lanes, alleys, courts and places in said city,’ approved April 4th, 1864; that the said pretended assessment does not show the name of the owner of each lot, or portions of a lot; nor the rate per…

The defendant was indicted for killing one Samuel R. Eddy, at the County of Sierra, on the 4th day of July, 1866. He was sentenced to the State Prison by the Court, and appealed. The other facts are stated in the opinion of the Court.

<p>Issues in Partition.—If, between the parties to an action for partition, disputes exist as to their rights or interests in any respect, such disputes may be litigated and determined.</p> <p>Judgment in Partition.—A judgment in an action for partition is binding and conclusive as to title upon all the parties who are served with summons or appear, and a bar to a new action.</p> <p>Idem.—If the complaint in partition avers that a defendant has, or claims to have, some interest in the land, which interest is unknown to plaintiff, and a summons is served on such defendant, and he fails to appear, and the judgment does not give such defendant any interest, it is res adjudicata and estops him from recovering in a new action.</p> <p>Idem.—The effect of a judgment in partition is to be determined by our statute, and not by the common law.</p>

<p>Eligibility to Office of District Attorney.—There is nothing in the Constitution or laws of this State, nor is there any usage or custom which requires that a license to practice law from the Supreme, or any other Court, must be obtained before a person can become eligible to the office of District Attorney.</p>

<p>Specification of Errors in Statement.—A motion for a new trial should he denied unless the statement specifies the particular errors upon which the moving party will rely in support of his motion. If there is only one question of error that could be raised on the record, this does not excuse the necessity of specifying it.</p>

The plaintiff recovered judgment in the Court below, and the defendant moved for a new trial and filed a statement. On motion of, plaintiff's attorney the Court struck out the statement. The other facts are stated in the opinion of the Court.

<p>Assessment op Lot for* Street Improvement.— If a lot in San Francisco is assessed for a street improvement to a person by name, and not'to unknown owners, the contractor cannot recover judgment against another person for the assessment.</p> <p>Idem.—An assessment on a lot in San Francisco for a street improvement, made to a person by name, is an assessment to him as owner. Such assessment, to be valid, must be made to the owner, if known.</p>

The plaintiffs’ patent was issued in June, 1862, by the State, after a full compliance by them with the Acts of the Legislature regulating the sale of swamp and overflowed lands. The action was commenced in August, 1863. The defendant went on the land in January, 1862, and claimed the right of possession as a pre-emptor under the laws of the United States, as being public land of the United States, subject to settlement and to entry for the purposes of pre-emption.

<p>Complaint in Forcible Entry and Detainer. — Forcible entry and forcible detainer are separate causes of action, and ought to be separately stated in different counts in the complaint. If not so stated in the complaint it is bad on demurrer, but if the complaint is not demurred to the objection is waived.</p> <p>Pleadings in Forcible Entry and Detainer.—The offenses mentioned in the Forcible Entry and Detainer Act should be separately stated in the complaint,• and fraud, if relied on, should also be separately stated.</p> <p>Amendment to Complaint.—If the plaintiff sues upon one only or upon two of the causes of action mentioned in the Forcible Entry and Detainer Act, and the testimony makes a cause of action named in the Act, but not set out in the complaint, it is the duty of the Court on its own motion, or on the motion of the plaintiff, to permit him to amend his complaint to suit the testimony. Amendments to Pleadings.—A motion to amend a complaint does not come too late because made after the plaintiff has closed his testimony and the defendant has moved for a nonsuit. A motion to amend is always in time when it immediately follows an objection to the complaint or answer.</p> <p>Possession of Lot.—A person has possession of a lot twenty-eight feet by one hundred and thirty-two sufficient to enable him to maintain forcible entry and detainer, if it adjoins a lot on which he lives, and has a stable on it, and he cultivates it, even though the fence inclosing the whole is not very substantial.</p> <p>Entry upon Another's Possession.—One entering upon a lot in the possession of another does not effect a complete entry and acquire possession until he has expelled the party in possession and effected an exclusive lodgment.</p> <p>Forcible Entry.—For the purpose of determining whether an entry is forcible, all that transpires between the parties from the time of the coming of one until the going out of the other is to be taken into account.</p> <p>What constitutes Forcible Entry.—One who goes to a lot in another’s possession, accompanied by several men, and builds a fence around it, while the former possessor is remonstrating, and removes him from the line of the fence where he places himself to prevent the fence from being built, is guilty of a forcible entry.</p>

B. S. Brooks entered into a covenant with the defendant, by which Brooks covenanted to sell the defendant a lot in San Francisco, and defendant covenanted to pay him a sum of money when Brooks should procure a judgment against Flanegan and Stevens, and Gorham as assignee in insolvency of Samuel L. Dennison, and their heirs and assigns, quieting the title to the land. Brooks procured the required judgment by publication of summons.

defendants: The following is the patent offered in evidence “ Whereas, the Legislature of the State of California, on the fourth day of April, A. D. one thousand eight hundred and sixty-four, passed an Act, entitled An Act to authorize the sale and conveyance to the North San Francisco Homestead and Railroad Association of certain overflowed lands in the City and County of San Francisco,’ which Act authorizes the location and disposal of a portion of the overflowed and tide…

<p>Right to Land acquired prom Mexico or Spain.—The transfer of the sovereignty of California from Mexico to the United States did not affect the right of the inhabitants to their land which they had acquired from Mexico or Spain, before such transfer.</p> <p>Titles acquired prom Mexico in California.—The United States, after the acquisition of California from Mexico, was bound to respect, not only perfect titles acquired by the inhabitants under Mexican domination, but also to respect such equitable claims as had their origin in the action of the Mexican Government, but were inchoate at the date of the succession, and to take such steps as were necessary to perfect the same.</p> <p>Judgments Affirming Validity of Mexican Grants.—The judgment of the Board of Commissioners appointed by the United States to inquire into the validity of titles acquired from Mexico, or of the Courts of the United States on appeal, affirming a title derived from Mexico, when final, is conclusive upon the Government and upon all persons claiming under the Government by title subsequent.</p> <p>Bight of California to Land within its Borders.—The State of California came into the Union, with her claim to the lands within her borders, such as she took by virtue of her admission under general grants to all the States previously made by the Federal Government, and such as might thereafter be granted from the same source, and such as she then acquired by virtue of her sovereignty, subordinate to the prior equities of grantees under the former sovereign, and bound by the action of the Federal Government in ascertaining and settling such equities.</p> <p>Mexican Grant of Land Overflowed by Tides.—If the United States has confirmed the title to land in this State acquired from Mexico during Mexican rule, and which the State would otherwise have owned by virtue of its sovereignty, the State has no power to dispose of the same.</p> <p>Land Held by State by Sovereignty.—The land which the State owns by virtue of its sovereignty is such as is covered and uncovered by the ebb and flow of the neap or ordinary tides.</p> <p>Sale of Land Held by State by its Sovereignty.—The State can make no disposition of the lands it holds by virtue of its sovereignty prejudicial to the rights of the public to use them for navigation and fishery, but it may dispose of such lands for the purpose of promoting the interests of navigation or of reclaiming them from the sea, where it can be done without prejudice to the public right of navigation.</p>

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

The Court below rendered judgment against the defendants Pierre and Jean Louis Sansevain, and Requena, the executor, but gave judgment in favor of defendant Rene. The defendants against whom judgment was rendered appealed. The other facts are stated in the opinion of the Court.

The facts out of which this controversy arose are fully stated in the report of the same on a former appeal found in 21 Cal. 92. The defendant recovered judgment in the Court below, and the plaintiff moved for and obtained a new trial. The defendant appealed from the order granting a new trial.

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

The demurrer of the creditor was overruled, and his motion for a rule on the insolvent was denied. The Court discharged, the insolvent from his debts, and the creditor appealed. The insolvent was a married man, haying several children, and stated the value of his household furniture to be one thousand dollars. The other facts are stated in the opinion of the Court.

<p>Judgment op District Court by direction of Supreme Court.—If the Supreme Court directs the District Court to enter a judgment in a case in particular form, the District Court has no authority to enter a different judgment from that directed, even if the judgment directed, to be entered fails to give the party what was justly or legally his due.</p> <p>Law of Case.—A decision of the Supreme Court in a case becomes the law of that ease in all its stages.</p>

' The plaintiff recovered judgment in the Court below, and the defendants appealed from the judgment and from an order denying a new trial. The plaintiff also appealedTrom a part of the judgment. The other facts are stated in the opinion of the Court.

<p>Appeal from the County Court, Los Angeles County.</p> <p>The defendant was convicted upon the second trial and sentenced by the Court, and appealed from the judgment.</p> <p>The other facts are stated in the opinion of the Court.</p>

The defendant was indicted for the murder of Pablo Moreno, at Los Angeles County, on the 22d day of October, 1866. The Court below instructed the jury as follows : “ The defendant may be convicted on circumstantial evidence, if the jury believe from the proof that such evidence is inconsistent with his innocence and leaves no rational doubt of his guilt. “ Doubts must be reasonable.

<p>Administrator with Will Annexed.—If the testator appoints an executor of his will, and the executor dies, and an administrator with the will annexed is appointed, the administrator with the will annexed, under the statutes of California, possesses all the power conferred on the executor named in the will, and can sell the land devised if the executor could have sold it.</p> <p>Power to Sell given in a Will.—When the testator in his will directs his executor, within one year after his decease, to sell his real estate, the proceeds to be disposed of upon certain trusts, the power to sell is not limited to one year, but may be exercised after that time, unless there are express words in the will showing the intention of the testator to thus limit the exorcise of the power.</p>

<p>Excusing Grand Jurors.—The Judge excused persons summoned as grand jurors and in attendance, without requiring them to appear and make their excuses under oath in open Court; held, no error.</p> <p>Objection to Grand Jury.—If a defendant in a criminal case has an opportunity given him to interpose a challenge to the grand jury and to the individuals of such jury, before the indictment is found, but makes no challenge, he cannot afterwards take advantage of any objection to the panel or to an individual grand juror. ></p>

<p>Private Act.—An Act of the Legislature confirming sales of land before then made by a Board of Fund Commissioners, which sales conveyed no title for want of power in the Board, is a private statute of which the Courts will not take notice as evidence of title unless offered in evidence.</p> <p>Private Act must be Offered in Evidence.—Courts will not take judicial notice of a private Act unless offered in evidence.</p> <p>Commissioners of Sinking Fund in San Francisco.—The sales of land made by the Commissioners of the Sinking Fund of San Francisco on the 25th day of January, 1851, were void for want of power in the Commissioners.</p>

The plaintiffs and the defendant Jean Vignes, were the children of Jean Louis Vignes and Jeanne S. Vignes. Their said father and mother were natives of France. Their father emigrated to Los Angeles, California, about the year 1827, but their mother remained in France, where she died in 1843.

The plaintiff recovered judgment in the Court below, and the defendant appealed. 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 plaintiff appealed from the judgment.</p> <p>The other facts are stated in-the opinion of the Court.</p>

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

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

The east half of the west half of Lot Three in the block between Second and Third and I and J streets, Sacramento, was assessed to F. LeRoy in 1864, for grading I street from Front to Sixth. The lot assessed fronted on I street, and was the property of Theodore LeRoy. The tax was returned as delinquent. The District Attorney brought an action against “ F. LeRoy Coe 1847, John Doe, and the said real estate,” to recover judgment for- the tax.

<p>Homestead.—A homestead cannot be carved out of land held in joint tenancy or tenancy in common, even if the joint tenant or tenant in common, who claims the homestead, is in the exclusive possession.</p> <p>Ouster of Tenant in Common.—Taking actual possession of land under a deed which purports to convey the whole thereof, under a belief that it does convey the whole, when in fact it gives title to an undivided portion only, is not an ouster of the tenant in common who owns the other undivided part.</p> <p>Legal and Equitable Title.—If the plaintiff in his complaint avers that he holds the legal title to land and does not set up an equitable title, he cannot on the trial rely on an equitable title.</p>

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

<p>Dismissal of Action.—The plaintiff in ejectment, if no counterclaim is made in the answer, has a right to dismiss the action as to one or all of the defendants. Dismissal of Action as to One of Several Defendants.—If one of several defendants in ejectment answers and the others make default, the plaintiff may, before trial, dismiss the action as to the defendant answering, and take judgment against the others.</p> <p>Defendant in Ejectment.—When the demanded premises are in the possession of a tenant, the tenant is the proper party defendant in ejectment. The landlord is not a proper party defendant, and if made so the Court will, on motion, order a nonsuit as to him.</p> <p>Landlord may Defend in Name of Tenant.—If the tenant in possession is sued in ejectment, the landlord may, in cases in which his title is drawn in issue, bo permitted to defend the action in the name of the tenant, but not in his own name. Setting Aside Default.—If the tenant sued in ejectment has, by neglect or design, suffered a default, the landlord may, upon a proper showing and motion in the name of the tenant, have the default set aside.</p> <p>Stay of Proceedings under Writ of Restitution.—If the tenant and landlord are jointly made defendants in ejectment, and the tenant suffers default, and the landlord answers in his own name, and the plaintiff dismisses the action as to the landlord and takes judgment against the tenant, the Court cannot on motion of the landlord order a stay of proceedings under a writ of restitution.</p> <p>Appealable Order.—If the plaintiff dismisses the action before trial, and the Court on defendant’s motion makes an order restoring the cause to the calendar for trial, no appeal lies from this order.</p>

After the death of Harman, and before the supplemental decree in the divorce suit was made, his executors were substituted as defendants in his stead, but the children, both of whom were infants, were not made defendants or in any way brought in.

The facts of this case are stated in the opinion of the Court. Some general facts as to the widening of Kearny street are stated, in the Appeal of Piper, post.

The Legislature passed an Act (See Laws 1864, p. 347,) giving power to the Board of Supervisors of San Francisco to determine by order to lay out, open, extend, widen, or straighten any street in said city, and that it will be necessary to take private lands for that purpose.

<p>¡New Trial.—The rule laid down in Piper’s Appeal, ante, 530, as to granting a new trial on the ground that the judgment is not warranted by the evidence, affirmed.</p> <p>Specification of Objections to Confirming a Report.—A specification in an objection to the confirmation of the report of the Commissioners appointed to estimate benefits and assess damages to lot .owners for widening Kearny street, in San Francisco, that the Commissioners have assessed some lots far beyond, and others much below the proper sum,” is too general to admit proof that a lot in which the objector had no interest was assessed relatively too low in comparison with another lot in which the objector has no interest.</p> <p>Competency of Witness on Trial about Confirming Report.—A Commissioner appointed to estimate benefits and assess damages to lot owners in the matter of widening a street in a city, is a competent witness on a trial in the County Court upon the question of confirming the report of the Commissioners when objections are made to it.</p>

<p>Appeal from the County Court, City and County of San. Francisco.</p> <p>The principal facts out of which this contest arose are stated in Piper’s Appeal, ante, 530.</p> <p>One John J. Vioget was the owner of a lot on Kearny street, distant twenty-five feet and ten inches southerly from the southwest corner of Kearny and Commercial streets, and during his lifetime created an estate in said lot by lease to Adolphe Silvy and Francois Amoretti, to expire on the 10th day of June, 1870. Mrs. Lefevre claimed to be the assignee of the lease. The respondent claimed that she was only assignee of Silvy’s interest in the lease, but that Amoretti had died without making any assignment of his interest, and that the same vested in his heirs. The Commissioners in their report awarded the sum of four thousand one hundred and thirty-three dollars and thirty-three cents to be paid to contestant and the heirs of Amoretti for damages to be sustained to a brick building on the lot, and the sum of fourteen thousand four hundred and sixty-six dollars and sixty-seven cents to the owner of the fee. Mrs. Lefevre claimed that the said sum of four thousand one hundred and thirty-three dollars and thirty-three cents should have been awarded to her alone, and on that ground objected to the confirmation of the report. The County Court confirmed the report, and she appealed.</p>

<p>Owner of Fee of Lot to pay Tax for Widening Street.—The Commissioners appointed to estimate benefits and assess damages for widening a street in San Francisco under the Act of April 4th, 1864, may properly assess the expenses to be borne by a lot which is under lease, to the owner of the fee, where the benefits all accrue to such owner, without apportioning any part of the same to the lessee.</p>

<p>Pleadings on Note.—If the complain^ in a suit on a note avers that the defendant made and delivered the note to the plaintiff, and that the plaintiff is still the owner and holder, the allegation that plaintiff is the owner and holder is but a conclusion of law, and an answer denying it but admitting the other allegations of the complaint, raises no material issue.</p> <p>Idem.—Such answer should be stricken out on motion as irrelevant, and plaintiff is entitled to judgment on the pleadings, even if there is an averment in it, that the action is not prosecuted, in the name of the real party in interest, and that another person owns the note.</p> <p>Sham Answer.—If the complaint avers that defendant made and delivered the note to plaintiff, and that plaintiff is still the owner and holder, and the answer denies that plaintiff is the.owner and holder, and the plaintiff introduces affidavits showing by a statement of facts that the note is his, and the defendant’s counter-affidavits merely state that the answer is true and was put in in good faith—the answer is sham, and should be stricken out as such.</p>

The following is a copy of the note sued on: “11,500 00-100. “ On or before the 1st day of May, A. D. 1865, we, or either. of us, promise to pay A. F. Shriver, or order, the sum of fifteen hundred dollars in gold coin of the United States, with interest thereon at the rate of two per cent per month from date until paid, for value received. “ Lovejoy & Co., “ January 4th, 1865. Grandvoinet.” The defendant Grandvoinet appealed.

The plaintiff was the owner of a tract of land called the “ Ranchito,” in Los Angeles County, formerly granted to Juan Crispin Perez by the Mexican Government.

<p>Certiorari to the Board of Supervisors of Placer County, sitting as a Board for the Equalization of Taxes.</p> <p>The Central Pacific Railroad of California, starting from Sacramento on its way east, passes through the County of Placer. The Treasurer of the company, in the spring of 1866, reported to the Assessor of Placer County forty and a half miles of railroad in said county liable to taxation, and estimated its value at six thousand dollars per mile, making a total value of two hundred and forty-three thousand dollars. The Assessor assessed the road at that amount. On the complaint of the District Attorney, the Board for the Equalization of Taxes raised the tax to six hundred and seven thousand five hundred dollars. The railroad company appeared by its attorneys before the Board on the proceeding to equalize the tax, and a large amount of evidence was taken. The same was not taken down or preserved. The Clerk in his return did not embody the evidence.</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 following is a copy of the material portion of the complaint in this action:</p> <p>“ And for cause of complaint the said plaintiff avers that heretofore, to wit: on the 17th day of August, A. D. 1866, at the City of Sonora., County and State first aforesaid, he was the owner of and in the quiet and peaceable possession of a certain stock of goods, wares and merchandise, as well also machinery and tools for the manufacture of syrup, in all of the value of about twenty-five hundred dollars lawful money of the United States (a schedule of said articles with their values being hereunto attached and made part of this complaint.)</p> <p>“ That being so the owner, and in the possession of said" property at, etc., aforesaid, the said defendant, John L. Bourland, then and still being the Sheriff of said county, by virtue of certain alleged legal process not against this plaintiff, forcibly, wrongfully, and against the will of plaintiff, took and converted said property, to the great damage of plaintiff, to wit: his damage three thousand dollars.</p> <p>“ And the plaintiff avers that he did, on the 18th day of August, A. D. 1866, at, etc., aforesaid, in writing demand of the said Bourland a return of said property, which demand the said Bourland refused.</p> <p>“ And the said plaintiff further avers that heretofore, to wit: on the 2d day of March, A. D. 1866, the said defendants, Josiah Hall, S. S. Turner, T. N. Willis, John Shaw, C. Labetoure, J. M. Gaudin, M. E. Hughes, John Hurd, John Wolf-ling, and H. C. Schultz, became, and ever since hath been, the securities on the official bond of the said defendant, Bourland. That said bond was duly filed, executed, and recorded in the manner prescribed by law. That by reason of the acts of the said Bourland the terms and conditions of the said bond have become and are broken, and the said defendants, the securities as aforesaid, have become, jointly with the said Bourland, liable to pay to the plaintiff the damages sustained by him as aforesaid, together with interest.”</p> <p>The defendants appealed from the judgment. ’</p> <p>The other facts are stated'in the opinion of the Court.</p>

<p>The Court below sustained the demurrer to the complaint, the plaintiff declined to amend, and judgment was entered against him, and be 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>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Second Judicial District, Tehama County.</p> <p>Ejectment to recover lots nine, ten, eleven, and twelve, in block thirty-one, in the town of Red Bluff, Tehama County. The complaint was in the usual form, and the answer consisted of a general denial, and a clause setting up title in defendant acquired by a purchase of the demanded premises at Sheriff’s sale, made under an execution issued on a judgment in favor of E. E. Corcoran and wife, and against J. Gr. Doll and J. L. Simpson, rendered after the date of the deeds hereinafter mentioned. It was admitted on the trial that said Doll owned the property on the 13th day of April, 1864. The plaintiff, to sustain the issue on his part, offered- in evidence a deed of trust made by said Doll to said Simpson, on the 13th day of April. The following is a copy of such portion of the deed as bear upon the points in dispute:</p> <p>“ This deed made and entered into this thirteenth day of April, A. D. 1864, between J. Granville Doll, party of the first, J. L. Simpson, party of the second part, and Cunningham Hawkins, party of the third part, witnesseth as follows, to wit:</p> <p>•“ Whereas the party of the first has borrowed of the party of the third part, the sum of fifteen thousand dollars ($15,000), and has executed and delivered his promissory note therefor, in the words and figures following, to wit:</p> <p>“ $15,000. Sacramento, April 13, 1864.</p> <p>“ ‘ On or before the first day of May, 1866, for value received, I promise to pay to Cunningham Hawkins or bearer, in Bed Bluff, of Tehama County, fifteen thousand dollars in gold coin of the United States, of the standard value of 1860, with interest from date until paid, at the rate of two per cent per month, payable in like gold coin monthly, and should default be made in the payment of said interest, then the same shall be added to the principal and bear the 'same rate of interest, or the whole amount of principal and interest shall become immediately due and payable at the option of the holder hereof.</p> <p>“ J. Granville Doll.’ ”</p> <p>“And whereas, it is agreed between said parties of the first and third, that the payment of such promissory note and the interest that may grow due thereon shall be secured by the said party of the first part conveying to the said party of the second part the property hereinafter described, which the said party of the second part shall hold, subject to the trusts and conditions hereinafter expressed.</p> <p>“ Article 1st. Now, therefore, the said party of the first,, part, in consideration of the premises and the sum of one dollar to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, hath granted, bargained, sold and conveyed, and by these presents doth grant, bargain, sell and convey in trust, as hereinafter expressed, unto the said party of the second part the following described property. [Here follows a description of the property.]</p> <p>“2d. And the trusts which the said party of the second part declares are as follows: First, That he will, upon the payment of the said promissory note and the interest, re-convey to the said party of the first part all and singular, or so much thereof as may remain unsold of the hereinbefore described property, and will account for the rents, issues and profits thereof in the meantime, as well, as for the proceeds of sales of property which may be sold by virtue of the power hereinafter conferred. Second, That he will skilfully and prudently control, manage and take care of all the property by this instrument vested in him, and will, upon the failure of the said party of the first part to pay the interest on said promissory note, as the same becomes due, apply the net proceeds arising from the rent, use and occupation of said property towards the payment of the same. Third, That he will, upon the demand of the said party of the third part, or the holder of said promissory note, upon the said party of the first part failing for the space of three months to pay the interest thereon, proceed to sell at private or public sale, whichever in his discretion may seem best, so much of said property as he may deem prudent, and for such sums as of money as to him shall seem meet, and apply the proceeds of such sales towards the liquidation of said debts evidenced by said promissory note. Fourth, That his compensation for such services shall be limited to such disbursements as the prudent and skilful management and protection of the property shall require to be made, and a commission of five per cent upon the sales of said property made by him, and ten per cent upon all sums collected by him for rents of the said property. * * * * *</p> <p>“ J. Granville Doll.” [l. s.]</p> <p>“ J. L. Simpson.” [l. s.]</p> <p>The defendant’s attorney objected to the deed being received in evidence, because not signed by Hawkins. The Court reserved its decision upon the point until the further progress of the trial. The plaintiff then introduced in evidence a deed of the property from the trustee Simpson to Edward C. Jones, dated December 17th, 1864. Defendant’s attorney objected, because no authority was shown from Hawkins, the cestui que trust. The Court still reserved its decision.</p> <p>The plaintiff, after proving that the Bank of Bed Bluff was a corporation, then introduced a power of attorney from said E. C. Jones to said corporation, dated the 20th day of December, 1864, empowering the corporation to sell said property and apply the proceeds to Jones’ indebtedness to the Bank. This power of attorney contained a power of substitution. In connection with this power, the plaintiff also introduced a substitution of the power from said corporation to J. L. Simpson, dated July 5th, 1865.</p> <p>The plaintiff then introduced in evidence a certified copy from the Becorder’s office of a deed of the property from said Edward C. Jones to John C. Barr, of Clark County, Ohio, dated May 10th, 1865. The loss of the original had been first proved. In this connection plaintiff proved that Barr’s given name was Jacob C. Barr, and that by znistake he was called John C. Barr in the deed.</p> <p>The plaintiff then introduced in evidence a deed of the property given by said Jones by his attorney in fact, J. L. Simpson, dated the 17th day of March, 1866. This deed fi’ozn Jones by his attorney to Bari’, is the one which recites the former deed of Jones to Barr and the mistake in it, and that it was made to correct and confirm the former deed, as stated in the opinion of the Court.</p> <p>The defendant, as the testimony was offered, interposed objections, but the Court still reserved its decision. The plaintiff then rested. The defendant by his attorney, moved for a nonsuit, because the plaintiff had shown no title to the property. The Court granted the motion, and plaintiff excepted. The plaintiff appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Defense of Pendency of Another Action.—The defense of the pendency of another action is not available, unless the causes of action and the plaintiffs, at least, in both actions, are the same.</p> <p>Idem.—In an action to quiet plaintiff's title to land, alleged to be clouded by defendants giving out that the title is in themselves and not in plaintiff, an action of ejectment pending, in which the defendant does not ask for affirmative relief, is not available as a defense.</p> <p>Defendant need not Litigate 2Tbw Matter.—A defendant in ejectment is bound to bring forward all matter of a strictly defensive character, or be precluded from again litigating the same; but he is not bound to set up or litigate new matter constituting a cause of action in his favor.</p> <p>Possession of Land.—A person who enters into the actual possession of a portion of a tract of land, claiming the whole under a deed in which the entire tract is described by metes and bounds, is not limited in his possession to his actual inclosure, but acquires possession to all of the land not in the adverse possession of another person at the time of his entry.</p> <p>Prior Possessor of Land.—"Where the title to land rests in possession only, the prior possessor has the better title.</p>

<p>This case is reported ante, 620.</p> <p>The facts are stated in the opinion of the Court.</p>

The following is a copy of the bill of particulars furnished by the plaintiff: “ February 23, 1864. “Hr. W. A. Prader, To Providence Tool Co. “For mdse, as per bill..........................$877 94 “ G-eo. Cadwalader, “Attorney for Plaintiff.” “ Indorsed: Service of a copy hereof admitted this 26th day of Jane, 1866. “ R. C. Clark. “ By H. McCreary.” The other facts are stated in the opinion of the Court.

The following are the material allegations of the complaint in this case: Joseph Love, the plaintiff in the above entitled action, and a resident of England, by his attorneys, Van Clief & Gear, shows to this honorable Court that on the 29th day of July, 1858, the Sierra Nevada Lake Water and Mining Company— which was then and still is a corporation duly organized under and by virtue of the laws of the State of California, whose principal place of business is at Forest City,…

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

<p>Appeal from the District Court, Tenth Judicial District, Colusa County.</p> <p>This was an action to recover possession of a lot in the Town of Colusa. The complaint was in the usual form. The answer contains a denial of all the allegations of the complaint, and sets up title in the defendant under the Jimeno Grant. The plaintiff proved title to the demanded premises under the Coins Grant, and the defendant showed title under the Jimeno Grant. The Jimeno Grant was of eleven leagues, and bore date on the 4th day of November, 1844, and was presented to the Board of Laud Commissioners for confirmation on the 24th day of March, 1852, and confirmed by the Board on the 10th day of January, 1853. It was confirmed by the District Court of the United States on the 5th day of July, 1855, and by the Supreme Court of the United States at its December term for the year 1855.</p> <p>The Colus Grant was of two leagues, and bore date on the 4th day of October, 1845, and was presented to the Board of Land Commissioners for confirmation on the 31st day of March, 1852, and rejected by the Board on the 25th day of October, 1853. It was confirmed by the District Court of the United States on the 5th day of July, 1855, and an appeal from the decree of the District Court was dismissed by the Supreme Court of the United States at its December term for the year 1855. The final official survey of the Jimeno Grant was confirmed and adopted on the 6th of April, 1861, by a decree of the District Court, and an appeal from that decree to the Supreme Court, was dismissed on the 29th day of May, 1862; upon this final survey a patent was issued to the claimants on behalf of the United States, bearing date on the 18th day of July, 1862.</p> <p>The final official survey of the Colus Grant was confirmed and adopted on the 2d day of February, 1861, by a decree of the District Court, and an appeal from that decree to the Supreme Court was dismissed at the December term of said Court for the year 1864. The final survey and patent of the Jimeno Grant, and the final survey of the Colus Grant, cover the lot in question.</p> <p>While the final survey of the Jimeno Grant was before the District Court for confirmation, according to the provisions of the Act of Congress of the 14th day of June, 1860, C. D. Semple filed in said Court his intervention in the words and figures following, to wit:</p> <p>“ This day came Charles D. Semple, before me, Clerk of said Court, and made oath that heretofore, in this Honorable Court, there was a grant of eleven leagues of land called the Jimeno Grant, situated in the Counties of Colusa and Yolo, on the west bank of the Sacramento River, confirmed to the above named defendants; that before the final confirmation of said grant the said Missroon sold his entire interest therein; that the said Larkin also sold, before bis death and before the final confirmation, his entire interest except about two thirds of one league, which this affiant is informed now belongs to the heirs of the said Larkin ; that this affiant is now the owner of about two thirds of one league of said grant, claiming title under said Larkin and Missroon by mesne conveyances from them. Affiant further says that Missroon is an officer in the United States Navy, and never took any part in the management of the case, but that Larkin had the entire control of it until the final confirmation. A controversy then arose between some of the principal owners, when Larkin retired from the case, leaving the management of the survey to this affiant and some two others. A survey was ordered and made by the United States Surveyor-General for the State of California, which was protested against by this affiant, and the matter was referred to the Secretary of the Interior, and said survey was set aside and a new one ordered, which last survey was made in the month of October, 1858, and approved by the Surveyor-General aforesaid. Now this affiant says, that by this last approved survey said Jimeno Grant is not properly located; that it is located to the extent of two leagues upon land claimed by the owners of the Colus Grant, containing two leagues, finally confirmed to this affiant; and this affiant believes that the title to the Colus Grant is superior to the title of the Jimeno Grant to the same land, so that if the title to the Colus Grant shall prove to be the superior and better one, then this affiant will lose about one half of his aforesaid interest.</p> <p>“Affiant further says that these is more than eighteen leagues contained within the map or diseño of the said Jimeno Grant, and that the whole maximum of land may be surveyed within the diseño without interfering with the land claimed by the claimant of the Colus Grant.</p> <p>“ Therefore this affiant prays that an order may issue out of this Honorable Court, directing that the said approved survey may be returned into this Honorable Court for its adjudication and decision.”</p> <p>While the final survey of the Colus Grant was before the said United States District Court for confirmation, according to the provisions of the Act of Congress of the 14th June, 1860, George Hagar filed in said Court his intervention in the words and figures following, to wit:</p> <p>“ In the District Court of the United States for the Northern District of California. The United States v. Charles D. Semple, Clamant. No. 28.</p> <p>“ Now comes George Hagar, by leave of the Court first had and obtained, and intervenes in this proceeding, and excepts to the approved survey (containing eight thousand eight hundred and seventy-six and two one-hundredths acres) of the Colus Rancho filed in this case, because it embraces land granted to Manuel Jimeno (the grantor of said Hagar) by the Mexican Government, in the year 1844, and before the date of the Colus Rancho; and the said George Hagar, intervenor herein, in support of said exceptions, alleges and says, etc.[Here the intervenor goes on at great length to give many reasons why the Colus survey should not be approved, and then proceeds.] And the said intervenor would further represent that he is now the legal owner and holder, by good and sufficient mesne conveyances from the said Larkin and Missroon, of the larger portion, to wit: more than five thousand acres of the land, so embraced as aforesaid, by the said survey of the said Colus Rancho.” [Then follows other statements immaterial to the issues in this case.]</p> <p>An order was made by the United States District Court, on the 5th day of January, 3861, allowing the said Hagar to withdraw .his intervention in the said Colus survey "case.</p> <p>An agreement was entered into on the 4th day of January, 1861, between C. D. Semple and George Hagar, in the words and figures following :</p> <p>“ In the District Court of the United States for the Northern District of California. The United States v. Larlcin and Missroon, Claimants for Jimeno 'Mancho. No. 23. Whereas, Charles D. Semple, claimant of the Colus Rancho, case No. 28, has intervened under the provisions of the Act of Congress, approved June 14th, 1860, in the matter of the survey and location of the lands claimed in the above entitled cause of Larkin and Missroon j and whereas, George Hagar, claiming a portion of the Jimeno Eancho, has intervened in the matter of the survey and location of the Colus Eancho ; Now, therefore, to dispose of said interventions and the exceptions to said surveys, it is hereby stipulated and agreed between the said Hagar and Semple, interveners as aforesaid, that the said Hagar, intervenor in the matter of the location and survey of the Colus Eancho, shall and does hereby withdraw his exceptions to the said survey, and dismiss his petition to intervene. And the said Charles D. Semple, intervenor as aforesaid in the said Jimeno case, shall and does hereby withdraw his intervention in the matter of the survey and location of the said Jimeno Eancho, save and except for the sole purpose of opposing its location over and upon the survey of the said Colus Banch, should such effort be made. And the said Semple, claiming a portion of the said Jimeno Eancho, hereby further agrees to co-operate with A. C. Whitcomb, attorney of record in the said Jimeno case, to obtain such location and survey of the said Jimeno Rancho as the said Whitcomb may think legal and proper, and to the interest of the owners thereof, provided always said location be not made or attempted upon or over the survey of the said Colus Eancho.</p> <p>“Dated at San Francisco this 4th day of January, 1861.</p> <p>(Signed) “ George Hagar, Intervenor.</p> <p>“ C. D. Semple, Intervenor.”</p> <p>At thé time he intervened in the Jimeno case, C. D. Semple was the owner, by mesne conveyances from Larkin and Missroon, of one undivided third part of the upper or northern two square leagues of the Jimeno Grant; and these said two leagues, according to the patent of the Jimeno Grant, overlap and interfere with the Colus approved survey to the extent of more than five thousand acres.</p> <p>When the decree was rendered finally confirming the survey of the Jimeno Grant, C. D. Semple, intervener, was present in Court and consented to said decree.</p> <p>Judgment was rendered by the Court below in favor of the defendant, and the plaintiff appealed.</p>