Volume 33 — California Reports

<p>Deed of Corporation as Evidence.—A deed, without the corporate seal, purporting to have been executed on behalf of a corporation by its Board of Trustees, is inadmissible as evidence without first showing their authority to execute the same. The recital of such authority in the deed is not evidence of its existence.</p> <p>Idem.—Whether the above rule would be different when the regularly adopted corporate seal is shown by competent proof to be affixed to the deed, not decided.</p> <p>Seal of Corporation.—Admitted, for the purposes of this decision, that a corporation may adopt the private seal of the several Trustees or any one of them as its seal for the occasion.</p> <p>Deed of Trustees of Corporation.—The individuals who are the Trustees of a corporation, in their official character as Trustees, when not acting as a Board, have no authority, independent of that conferred by the corporation, to execute a deed of the corporate property.</p> <p>Exercise op Corporate Power.—The corporate powers of a corporation can be exercised by the Trustees only when duly assembled and acting as a Board.</p> <p>Idem.—Conferring authority to sell and convey the property of a corporation is the exercise of corporate power.</p> <p>Power op Stockholders to sell Corporate Property.—The stockholders of a corporation have no power, as such, to authorize the sale of the corporate property, or to sell the same, either when collectively assembled as such in a stockholders’ meeting, or when acting individually.</p> <p>Sale op Corporate Property.—The power to sell and convey corporate property can be conferred only by the Board of Trustees when assembled and acting as such. The Board may confer this power upon themselves as individual Trustees, or upon any other person or persons.</p> <p>Conveyance op Corporate Property.—Whether the Board of Trustees can authorize the conveyance of all the corporate property, not involved in this case or decided.</p>

<p>Proof of bring Stockholder in Corporation.—If the entries in the stock and transfer book of a corporation are regarded as presumptive evidence that a person therein named a stockholder was such, the books are impeached and the presumption is overcome, if the evidence given orally by witnesses shows that he never accepted but refused to accept any stock in the company.</p> <p>Stockholder in Corporation.—One who never accepts but refuses to accept any stock in a corporation, is not a stockholder, even though the Secretary enters his name in the books as such.</p> <p>By Currey, C. J., ShAFTER, J., concurring : Stock Book of Corporation not Evidence.—The stock book of a corporation is not admissible in evidence in an action by a creditor of the corporation against one claimed to be a stockholder, for the purpose of proving that he is such stockholder.</p>

The plaintiffs commenced this action May 7th, 1866. In their complaint they alleged in substance : that the plaintiff Sarah was the owner in fee, as her separate property, of a lot in San Francisco, on Howard street, between Second and Third, and that she acquired the same by conveyances from John Strathearn and William Gr.

<p>Appeal from the District Court, Second Judicial District, Butte County.</p> <p>Plaintiff recovered judgment in the Court below, and the defendant, Maria S. Solomon, appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Publication op Notice op Order to sell Land to pay Debts^.—Under the Probate Act of 1851, notice of an order of the Probate Court requiring all persons interested to show cause why the real estate of the intestate should not be sold to pay debts, was required to be published for four successive weeks before the day to show cause, in a paper designated by the Court. If such notice was published three weeks in the paper designated by the Court, and then the fourth week in another paper designated by the administrator, the Court did not acquire juris- , diction by the publication.</p> <p>Order to show cause why Land should not be Sold to pay Debts.—If the interval between the date of an order of the Probate Court to show cause why land left by the intestate should not be sold to pay debts, and the day fixed for the hearing of the petition, is less than the time required for the publication of the notice, or is less than the time allowed by law from the date of the order for parties interested to appear and show cause, the order is void, and a sale made under proceedings based on the order is also void.</p> <p>Administrator and Guardian. — If the administrator is also guardian of an infant heir, the two positions, so far as general uses are concerned, are not necessarily incompatible.</p> <p>Idem.—If, however, under the Probate Act of 1851, the administrator was also guardian of an infant heir, and as administrator attempted to divest the title of the heir by a sale, under an order of the Probate Court, of land to pay debts of the intestate, his position was hostile to the heir, and in such proceeding he could not represent the heir, but a guardian ad litem should have been appointed to watch the interests of the heir.</p> <p>Attorneys for Minor Heirs.—The Probate Court, under the Act of 1851, had no authority to appoint-attorneys for absent or minor heirs. Under said Act, when the administrator applied for leave to sell land to pay debts, and there were minor heirs with no general guardian, a guardian ad litem.—not an attorney—Was required to be appointed, for the sole purpose of representing the minor heirs, before the petition was acted on.</p> <p>No Presumptions indulged against Probate Record.—If the probate record is ' full, and shows that an attorney—not a guardian ad litem—was appointed to represent minor heirs on proceedings set on foot by the administrator to sell land to pay debts, it will not be presumed that a guardian ad litem was appointed.</p> <p>When Heir may attack Probate Sale of Land.—If, in proceedings set on foot by the administrator in the Probate Court to sell land to pay debts, the Court acquires no jurisdiction of minor heirs, the order of sale is void, and the sale may be attacked collaterally by the heir.</p> <p>Idem.—An order of the Probate Court confirming such sale is void. There was no order of sale for the confirmation to act on.</p> <p>Estoppel as to Minor Heir. — If an administrator, after procuring from the Probate Court an order to sell real estate to pay debts, afterwards makes a settlement of his account in the Court with the estate, a minor heir is not estopped by such settlement from afterwards contesting the validity of the sale.</p> <p>Act of 1866 ratifying Probate Sales.—The Supreme Court will not give an appellant the beneficial operation of the Act of 1866, ratifying and confirming certain probate sales of real estate, in cases where the judgment in the Court below was rendered before the passage of the Act. In such cases said Act must be made the basis of an original proceeding in equity, if the party would claim the benefit of its provisions.</p>

<p>Registry Act. — The Act of 1865-6 for the registration of voters covers the whole subject of the elective franchise, and applies to municipal and.loeal as well as to general State and county elections.</p> <p>Idem.—Under said Act an incorporated city, which covers parts of two townships, may be divided into Election Districts by making one or more districts in that part of the city lying in each township.</p> <p>Elections since the Passage of Registry Act.—If the Board of Supervisors of a county neglect to divide a town or city into Election Districts, and to appoint a Board of Registration in the same, in compliance with the Registry Act, and an election is held not in accordance with the provisions of said Act, the election is void, and confers no rights u^on the persons who claim to have been elected.</p>

<p>New Trial when Evidence consists op Depositions.—When the testimony helow consists entirely of depositions, which depositions are contained in the record on appeal, the appellate Court will examine the evidence to determine whether the Court below deduced the right conclusions of facts therefrom, and if it is of opinion it did not, will grant a new trial.</p> <p>Idem.—The rule that a new trial will not be granted by the appellate Court when there is a conflict in the evidence, does not retain its full force when the testimony consists entirely of depositions, and the Court below had no opportunity to judge of the manner and bearing of witnesses.</p> <p>General Average in Maritime Law.—General average in maritime law is a contribution made by the owners of a vessel and cargo, and all concerned in the success of her voyage, towards a loss sustained by some of the parties interested, for the benefit of all.</p> <p>Action for General Average. — The owner of a vessel cannot maintain an action for contribution in general average for damage sustained and expense incurred by reason of the peril of the seas, unless the vessel was seaworthy when she left port.</p> <p>Idem.—If the defect in the vessel when she left port was unknown to the owner, and undiscovcrable upon examination, he cannot maiñtain an action for general average.</p> <p>Protest as Evidence.—If a protest of the officers of a vessel is received in evidence, without objection, on behalf of the owner or master, in an action for contribution in general average, it is not conclusive on his behalf of the facts therein recited.</p>

The general facts out of which this controversy arose will he found fully stated in the case of Terry v. Megerle, 24 Cal. 609, and Megerle v. Ashe, 27 Cal. 322. Terry is the grantor of Ashe, and the other defendants are cotenants of Ashe. This action was commenced January 13th, 1864, to recover possession of the Northwest Quarter of Section Twenty-one, in Township Four North, Range Eight East, Mount Diablo Meridian.

Action commenced June 30th, 1862, to foreclose the mortgage on two fifty vara lots in Block Ten of South Beach water lots, in the City of San Francisco. The following averments were in the complaint: August 5th, 1853, W. C. Jewett mortgaged 'the property to Dexter Brigham. February 6th, 1854, Jewett moi’tgaged the same property to Thomas C. Hamhly. March 3d, 1854, Jewett filed a petition in insolvency, and was discharged from his debts.

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

The plaintiff declined to amend his complaint, and judgment was rendered against him. He appealed from the judgment. The other facts are stated in the opinion of the Court.

<p>Nonsuit.—A nonsuit is proper if the plaintiff's evidence does not tend to prove the cause of action set up in the complaint.</p> <p>Idem.—If the complaint states the cause of action to be an agreement of the defendant to pay the plaintiff a certain sum if the plaintiff procures a purchaser who will agree to buy defendant’s land at a price named, evidence that the plaintiff found a purchaser who agreed to buy if defendant would lease the land and pay a stipulated rent therefor for three years ensuing the conveyance, does not tend to make out the cause of action stated in the complaint, and the defendant is entitled to a nonsuit.</p> <p>Legal Effect of Evidence.—In passing on the legal effect of the plaintiff’s evidence, the examinations in chief are not to be detached from the cross examinations.</p> <p>Failure to prove Cause of Action Stated.—If the alleged cause of action is for services for having found a purchaser who agreed to buy defendant’s land at a certain price, evidence that plaintiff found a person who would agree to buy if defendant would first take a lease for three years and give security for the rent, and that defendant did not take the lease, but merely agreed to do so and give security, and that the-purchaser did not accept of such agreement, does not show that plaintiff found a purchaser who agreed to buy at any price.</p> <p>Contract in Duplicate.—If a contract is drawn up in duplicate and signed by one party, and the other takes both copies and returns them the next day without signing either, and declines to sign unless a new provision is inserted, the contract does not bind either party.</p>

Hathaway, on the 19th day of June, 1863, commenced an action against Hamer and one Millard to recover possession of one hundred tons of hay; and having given the necessary bonds, and his attorney having made the required order, the Sheriff took the hay from Millard and delivered it to Hathaway. Hathaway did not prosecute his action, but on the 22d of February, 1865, dismissed it. Hathaway converted the hay to Ms own use, and Hamer brought this action to recover its value.

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>This action was commenced in said Court February 6th, 1866.</p> <p>The plaintiff avers, substantially, in complaint, (in addition to the facts stated in the opinion of the Court,) that W. and A. Elder became, by several conveyances • to each, the purchasers of the property described in the Pangburn mortgage on and before September 7th, 1862; that a part of the consideration of said purchase by, and conveyance to, said Elders, was the amount due and to grow due on the Pang-burn note and mortgage, and that said property was to be held under said mortgage as a lien and security for the payment of said sums; and that, until the conveyance of said property to defendants, said Elders paid to plaintiff the accruing interest upon said note, and admitted to.plaintiff their liability for the same and the principal sum of the note.</p> <p>The plaintiff further alleges “ that on the 17th of November, 1864, the said Elders, for the consideration of the sum of two thousand two hundred dollars, therein expressed, sold, and by their deed of conveyance conveyed the said premises in fee, and all their right, title; and interest therein, to the said defendants, subject to the said mortgage and the amount then due thereon, and that the amount then due for principal and interest thereon did make and form a part of the consideration money and purchase price for the said last mentioned sale of the said premises, and after the payment of the said sum of two thousand two hundred dollars, expressed in said deed of conveyance by the said defendants to the said Elders; and upon the like information and belief this plaintiff charges that it was then and there agreed, as part of the said purchase price upon such sale and conveyanee, that the said defendants should and were bound to pay the amount then due and thereafter to grow due upon the said instrument and mortgage, to the said plaintiff, and that they were to be held as security, and the mortgage to remain as a lien upon the said premises for the payment of the said amount so due for principal and interest upon the said instrument and mortgage.</p> <p>“ And this plaintiff further shows that after the said premises were so conveyed to the said defendants, they, the said defendants, paid all the interest which was then due upon the said instrument, and have regularly paid the interest which has since become due thereon, including the month of January, 1866, and that the said defendants have always admitted their liability to pay the said interest so due thereon and the principal sum of the said instrument and mortgage.”</p> <p>The prayer of the complaint demands that the Court will ascertain the amount due plaintiff on said note and for costs of suit, and decree the sale of said mortgaged property; and the payment to plaintiff, out of the proceeds of said sale, of the said amount found due, and his costs 'of said sale, and for general relief.</p> <p>Defendants, in answer, denied all the foregoing facts, and pleaded the Statute of Limitations in bar of the action.</p> <p>On the trial of this cause, the note and mortgage described in the complaint were put .in evidence, which was all the evidence offered by either party. And the cause having been submitted upon the pleadings, a judgment was rendered and entered in favor of the defendants. Plaintiff appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Seventh Judicial District, Sonoma County.</p> <p>The defendants, except Hugh S. May, appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Action to recover back Purchase Money.—If a purchaser of property from a municipal corporation acquires neither title nor possession from the corporation by the attempted sale, but the sale is void, he is not required to convey or transfer either the property or the possession to the corporation, before the commencement of an action to recover back the purchase money.</p> <p>Power of Municipal Corporation.—A municipal corporation is the creature of the statute, invested with such power only as is conferred by the statute.</p> <p>Idem.—A municipal corporation has no power to receive money, unless authorized to do so by its charter.</p> <p>Liability of Municipal Corporation.—If the officers of a municipal corporation receive into its treasury money obtained from a sale of the property of the city, which sale is void for want of power in the corporation to make it, the purchaser cannot recover the money back from the city.</p> <p>Idem.—In such case, if the city had no power to make the sale she has no power to ‘receive the money, and the act of its officers in placing the money in the •treasury is not the act of the city, but the unauthorized act of its agents, who alone are liable for the money.</p> <p>Idem.—If, in such case, the city, after the money is in its treasury, appropriates it to municipal purposes, the appropriation makes it liable, provided it is made by valid ordinances; but if an appropriation is made by virtue of ordinances which are void, because not passed in accordance with the charter, the city -is not liable for the money, even if it is applied by the officers to pay city debts and expenses.</p> <p>Idem.—If the ordinance under which the Treasurer of a municipal corporation pays out money is void, the payment by the Treasurer is not an appropriation of the money by the city.</p> <p>Ordinance of Municipal Corporation.—A clause in the charter of a municipal corporation having two Boards of Aldermen, which requires an ordinance that has passed one Board to be published in a paper before it is sent to the other, .and that no ordinance which has passed one Board shall be acted on by the other on the same day, except by unanimous consent, is not merely directory, and an ordinance passed in violation of its provisions is void.</p> <p>Municipal Corporations.—There is a clear distinction between most municipal corporations as they exist in Great Britain, and those of a more recent date in the United States. The former depend upon prescription for their existence and authority, while the latter depend upon their respective charters.</p> <p>Cases Affirmed.—StfeCrae&en v. San Francisco, 16 Cal. 621, Grogan v. San Fran- . cisco, 18 Cal. 610, and Pimental v. San Francisco, 21 Cal. 351, affirmed so far as the facts correspond with those found in this case.</p>

<p>Land Liable to Taxation,—A grant of three square leagues of land made by the Mexican Government, to be selected within exterior boundaries containing a much larger tract, after two prior grants have been located within the same boundaries, is real estate liable to taxation, although not yet surveyed, provided there is land enough within the exterior boundaries to satisfy the grant or any part thereof.</p> <p>Description op Land in Assessment.—If the Assessor, in assessing a tract of land which consists of a specific quantity granted by the Mexican Government, to be selected within the exterior boundaries of a much larger tract, describes it as definitely as the nature of the case will admit of, the assessment is valid. •</p>

<p>Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.</p> <p>Plaintiff recovered judgment in the District Court of the Fifteenth Judicial District, November 17th, 1862, against one Lewis Brady, for ten thousand and eighty-seven dollars and fifty cents. Said Brady, on the first day of December, 1862, filed in said Court his notice of appeal to the Supreme Court from said judgment, and from an order of said District Court denying his motion for a new trial in said action. On the same day the defendants and one Leland executed, on behalf of Brady, their undertaking on appeal to the Supreme Court from said judgment. Said Brady filed this appeal bond with the Clerk of said District Court December 3d, 1862. Pending said appeal, the judgment appealed from was stayed uutil the affirmance of the same, and of the said order of the District Court denying the motion of the said Brady for a new trial, by the Supreme Court, and the remittitur from said Supreme Court in said appeal was filed with the Clerk of said District Court; all of which was accomplished November 4th, 1863.</p> <p>In the month of January, 1864, said Leland departed this life, and in the month following, one Henry Hale was lawfully appointed executor of his last will and testament.</p> <p>This action was commenced January 12th, 1867, and in his complaint plaintiff demanded judgment for nine thousand four hundred and ninety dollars and twenty-one cents, being the portion of said judgment appealed from then unsatisfied, and interest thereon, also the sum of sixty-six dollars and fifty-five cents, costs of Supreme Court on said appeal, with interest thereon.</p> <p>After the commencement of this action, plaintiff procured a writ of attachment against the property of defendants to be regularly issued and levied upon their property, to secure the payment of any judgment against them he might thereafter recover.</p> <p>Defendants moved said District Court to dissolve said attachment upon the grounds, to wit:</p> <p>“ 1st. Said action is not an action upon a contract, either express or implied, for the direct payment of money, and the defendants are both residents of this State.</p> <p>“ 2d. The complaint herein does not staté facts sufficient to constitute a cause of action.</p> <p>“ 3d. It appears from the complaint herein, that there was no consideration for the second supposed undertaking or promise contained in the instrument upon which this action is brought.</p> <p>“ 4th. It does not appear from said complaint that there has been any breach of either or any of the conditions in said instrument contained.</p> <p>■ “ 5th. It does not appear from plaintiff’s complaint that the defendants, or either of them, are liable upon said instrument ; but it appears therefrom that said defendants are not, nor is either of them, liable thereon.”</p> <p>The motion was denied by said District Court, to which defendants duly excepted, and appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

This was an action instituted under the General Revenue Laws for the recovery of State and county delinquent taxes, levied upon the defendants in Mono County, for the fiscal year A. D. 1866. The defendants, upon their first appearance in the action, moved to strike out portions of plaintiffs’ complaint.

<p>Notice to Indorser,—To charge an indorser, it is not necessary to show that the notice of dishonor was actually received by him, nor even that it was addressed to him at his place of residence. If the notary, in good faith, makes diligent inquiry of those most likely to know the residence of the indorser, and acts upon the information so obtained, in mailing his notice, the indorser will be charged, notwithstanding the notice may be sent to the wrong place and never reach him.</p> <p>Duty oe Notary.—If the notary is ignorant of the residence of the indorser, he must make diligent inquiry of those most likely to know it ; having done so, he may safely act upon the information so obtained.</p> <p>Diligent Inquiry.—Diligent inquiry is such as business men make when their interests depend upon obtaining correct information.</p>

<p>Powers of Railroad Corporations.— Under the Act for the incorporation of railroad companies, passed May 20th, 1861, railroad corporations possessed all the powers and privileges, for the purpose of carrying on the business of the corporation, that private individuals and natural persons had.</p> <p>Idem.—The power to make and execute contracts the Act has committed to the Directors of the corporation, and declared, among other things, that “ no contract shall be binding upon the company unless made in writing,”</p> <p>Idem.—The words of the Act relied on by appellant to defeat plaintiffs* recovery, to wit, “ no contract shall be binding on the company unless made in writing,** properly interpreted, relate to executory contracts.</p> <p>Idem.—The words of the Act, “ no contract shall be binding on the company unless made in writing,** when considered in conjunction with the other provisions of the statute, and in view of the objects of the corporation, are not to bei read as exempting the company from liability in all cases founded in contract not in writing.</p> <p>Iduem.—It may be that while such contract not in writing remains executory on both sides, an action could not be maintained by either party to enforce it; but where one of the contracting parties has completely performed it on Ms part, and thereby rendered to the other the consideration stipulated, the party having received the consideration promised cannot be permitted to escape liability on the naked letter of the statute, because the meaning of the law is not such as to afford immunity from liability in such a case.</p> <p>Idem.—The clause of the Act under consideration does not render verbal contracts of the kind declared on by plaintiffs void; they are voidable so long as unexecuted on both sides, hut when executed by one of the parties by complete performance, the other becomes liable, and must render the consideration stipulated in advance, or a reasonable compensation, to be ascertained as a matter of fact, if not fixed and agreed upon by the parties themselves.</p> <p>Ratification of Contract.—Where the contract with plaintiffs sued on was entered into, first, by the President of the railroad company, defendant, hut there was subsequently a ratification by the Directors in pais of what the President had done, the contract was not ultra vires, and therefore void.</p> <p>Idem.—The facts, to wit, that after plaintiffs’ employment by the President of the railroad company, and while they were engaged in the service of the company under this employment, the President had frequent interviews with them in respect to the business they were managing, and during the same time the Direc-" tors and officers of the company, who knew of the employment of the plaintiffs and of their attending to the business of the company, advised with them respecting such business, afford sufficient evidence to establish a ratification by the Directors in pais of what the President had done; or that the open and notorious exercise of the power to enter into this contract must be regarded as presupposing an authority delegated by the Board of Directors, in some form accredited by law, to the President of the company, for the purpose.</p> <p>Presumption of Ratification.—The same presumptions are applicable to corporations as to private persons hence, though the records of the defendant may have been an entire blank as to any corporate action of the Board of Directors respecting the employment of the plaintiffs, or services performed by them for the company, it does not follow that the Board did not pass a vote authorizing the President to make the contract $ for a vote of the Board of Directors may be presumed from its acts, though there is no proof of such vote on the corporate record.</p> <p>Power of Railroad Company to Contract. — The contract entered into with plaintiffs was one which the corporation, by its duly constituted agents, had the capacity to make, and therein is distinguishable from Zottman v. The City and County of San Francisco, 20 Cal. 96, and Wallace v. The Mayor and Common Council of San José, 29 Cal. 180.</p>

<p>Construction of Instruments.— In construing written instruments the circumstances under which they were written and the subsequent conduct of the parties may be consulted.</p> <p>Construction of Powers.—3?. gave B., as they supposed, a valid power to sell land, but it was worthless. F. then departed from the State, and afterwards wrote to D., saying : “ I want you to sell some of my lots, or advance the means to meet this administration act, before the year expires, which I send you by mail. You can sell such lots as you see fit, retaining enough to pay Judge Gr. for the first purchase money. It might be best to cut them up so as to sell in small lots. But you judge of this.” Meld, that this letter authorized B. to sell at his discretion. Meld, further, that a .deed made under it by B., if not good as a deed, was good as a contract by F. to convey.</p> <p>Idem.—F. empowered B. to sell land and take up a note held by Gf. against F. B. sold the land to Gr. at the face of the note, which was its full market value, and took the note in payment. Meld, that a power to sell imports a sale for cash ; but held, further, that the above was a sale for cash within the rule, and not an accord and satisfaction.</p> <p>Findings on Appeal.—Findings on appeal will not be disturbed where the testimony is conflicting.</p>

On the trial of this action in the District Court, plaintiff had judgment. The defendants moved for a new trial, which was denied by the Court, and they appeal from the judgment and the order denying said motion.

<p>Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.</p> <p>The defendant was a corporation engaged in transporting passengers for hire over a street railroad in the City of San Francisco in cars propelled by horse power. The complaint averred that at divers times between the 19th of October and 15th of November, 1864, the plaintiff had purchased of the defendant one passage and three tickets for passage, for which, at each time, the defendant demanded and the plaintiff paid twenty-five cents—being six and one fourth cents for each ticket. The action was brought as well on the part of the plaintiff as on hehalf of the State of California. The Court below sustained the demurrer, and the plaintiff declining to amend, gave final judgment for defendant. The plaintiff appealed.</p> <p>The other facts are stated in the opinion of the Court.</p> <p>Has the District Court jurisdiction ? This question depends upon another question, viz: Can the several causes of action contained in the complaint be united under the sixty-fourth section of the Practice Act ?</p> <p>The District Court derives its jurisdiction from the Constitution, and therefore it has original jurisdiction in all civil cases where the sum in controversy amounts to or exceeds the sum of three hundred dollars, and when the “ legality of a tax” is involved (which is this case.)- Consequently, if the several causes of action can be united, the sum involved will exceed that amount, and the District Court has jurisdiction under the Constitution; if they cannot be united, then the sum involved is less than three hundred dollars, and the District Court has jurisdiction only from the Federal tax being involved.</p> <p>This is an action against a corporation for a violation of its charter (Acts 1861, p. 188, Sec. 5.) The remedy is given by another Act, (Acts 1863, p. 296,) and is to be sought in a “ civil action.”</p> <p>■ The Act (Acts 1863, p. 296) under which recovery is sought has- received an interpretation by this Court in the case of Burson v. Coioles, 25 Cal. 535. That part of the Act providing that the penalty may “ be collected in any Justice’s Court,” is mere surplusage. The Act merely creates the cause of action, and whether the jurisdiction is in a Justice’s or a District Court, depends solely on the amount involved. If it is three hundred dollars or more, it is in a District Court, by the Constitution; if less than three hundred dollars, it is in a Justice’s Court, and the Legislature has no power to curtail' the constitutional jurisdiction of the District Court, or to confer concurrent jurisdiction on Justices’ Courts. (New Constitution, Art. VI, Secs. 6, 8, 9.)</p> <p>If the Act had imposed five hundred dollars instead of two hundred dollars, the jurisdiction would be in the District Court, notwithstanding the Act says it is “ to be recovered' in a Justice’s Court.”</p> <p>If the present Act provided that the penalty should be recovered in a District Court only, the District Court would not thereby have gained nor the Justice’s Court have lost jurisdiction of an action for a single violation. It is only by uniting several causes of action, and thus increasing the amount involved, that the jurisdiction can be moved from the Justice’s to the District Court.</p> <p>The Legislature can create liabilities; but the jurisdiction of the District Court to enforce them is given by the Constitution, and is absolute and beyond the reach of legislation. (Zander v. Coe, 5 Cal. 232; People v. Fowler, 9 Cal. 86.)</p>

<p>Homestead Legislation.—In this State, the primary and sole object of legislation upon the subject of homestead exemption, is to secure the exemption of the homestead, with a limitation upon its value, and not the exemption of an amount of the real estate of the head of a family, of certain value, including the homestead.</p> <p>What Constitutes the Homestead.—The homestead consists of a quantity of land, together with the dwelling house thereon, and its appurtenances, not exceeding in value the sum of five thousand dollars.</p> <p>Idem.—In resolving the question, of what land the homestead consists, it is necessary to determine, as a matter of fact, first, what particular land has been occupied as a homestead, and, second, its value.</p> <p>Idem.— The particular land, and none other, which was actually occupied for homestead purposes by the claimant at the time of making the declaration of homestead, will be exempt under its operation. The declaration for which the statute provides, exproprio vigore, does not impress upon the land the quality of homestead.</p> <p>Homestead. — The word " homestead ” is used in the Constitution and statute in its popular sense. It represents the dwelling house at which the family resides, with the usual and customary appurtenances, including outbuildings of every kind necessary or convenient for family use, and land used for the purposes thereof. If situated in the country, it may include a garden or farm ; if in a town or city, it may include one or more lots or blocks. It need not be compact in form, and is not measured by fences merely. The only tests are use and value.</p> <p>Homestead as a Place of Business.—If a homestead should be used also as a place of business by the family, it will not, for that reason, cease to be a homestead, if the portion so used would be necessary or convenient for family usb, independent of the business.</p> <p>Homestead as to Quantity and Value.—The " homestead,” in respect to quantity merely, is unlimited; and if what is actually used exceed five thousand dollars in value, the excess is not homestead under the statute, though it is such in fact. In such a case the statute prescribes the mode of procedure.</p> <p>Idem.—Where, prior to 1857, Gr. and family resided upon a part of Block Eighteen, in 35Tapa City, consisting of Lots One, Two, Three and Four, with no fence thereon except upon the exterior lines of the block, it does not necessarily follow therefrom that the whole block was then used by them as a homestead. The áctual extent of the homestead is measured by use and occupation as such, and not by imaginary or artificial lines.</p> <p>Idem.—Where, since 1857, Gr. and family had only occupied as a home, successively, different portions of Lot Three in said Block Eighteen, and in the month of March, 1862, were so occupying a particular portion of said lot bounded by lines of fences, which portion was of less value than five thousand dollars, and at the last named date Gr. made and recorded, regularly, his declaration of homestead upon the whole of said block ; held, t'hat his homestead right was limited to the portion of Lot Three inclosed within said fence.</p>

<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>

This was an action of ejectment, and for the recovery of damages. The complaint alleges plaintiff’s seizin of a tract of land described, in Contra Costa County, and his ouster therefrom by defendant. The answer denies all the allegations, and as a further defence, sets up in defendant a cotenancy with the other owners of the “ San Pablo Ranch,” of which the demanded premises constitute a part. The cause was tried before the Court without a jury.

The defendant had judgment in the Court below, but the Court dismissed defendant’s cross-complaint. The defendant appealed, and assigned that the Court erred in dismissing defendant’s cross-complaint for equitable relief. The other facts are stated in the opinion of the Court.

<p>Who Affected by a Foreclosure.—The title of the grantee of mortgaged property is not affected by a foreclosure and sale, in a suit commenced after the conveyance by the mortgagor, unless the grantee is made a party to the suit.</p>

<p>Appeal from the District Court, Eleventh Judicial District, El Dorado County.</p> <p>This was an action to foreclose a mortgage. The facts are stated in the findings of the District Court. The defendants had judgment in the Court below. The following were the findings of fact of the District Court, to wit:</p> <p>' “ This cause having been submitted to the Court on the evidence, the Court makes the following findings :</p> <p>“ 1st. That on the 5th day .of April, A. D. 1865, Henry Miller executed to plaintiff his promissory note for and to secure the payment of a loan payable one year after date, for the sum of two thousand dollars. That at the same time of the execution of the note, the said Miller and his wife, the defendant, Catharine Miller, made, executed, and delivered to plaintiff their mortgage deed to secure the payment of a loan, of the certain real estate described in the complaint. That the mortgage was properly acknowledged and executed in every respect.</p> <p>“ 2d. That said note was due and payable at the time of the commencement of the action, and there was due to plaintiff the sum of two thousand and sixty dollars in American gold coin. <</p> <p>“ 3d. That on the.-day of-, 1865, said Henry Miller died, and thereafter, on the-day of-, 1865, the</p> <p>defendant, Hornblower, was duly appointed by the Probate Court of El Dorado County, administrator of the estate of said Henry Miller, and was administrator at the commencement of the action.</p> <p>“ 4th. That on the 22d day of April, 1861, the said Henry Miller made and executed a declaration of homestead upon the property described in the complaint. That said declaration was filed and recorded in the Recorder’s office of El Dorado County on the same day. That at the time of making said declaration, the said Henry Miller and his wife, the defendant, Catharine Miller, were residing upon. said property, and that said property has never at any time exceeded in value the sum of four thousand dollars.</p> <p>“ As conclusions of law the Court finds that the declaration of homestead being upon the property at the time the mortgage was executed, that said mortgage was not valid for any purpose, and that defendant, Catharine Miller, is entitled to judgment refusing a decree of foreclosure.”</p> <p>Judgment was rendered accordingly. The plaintiff appealed upon the judgment roll, and made the following assignment of errors:</p> <p>“ The Court erred in finding that the declaration of homestead being upon the property at the time of the execution of the mortgage, that the mortgage did not become a lien on it. The Court erred in refusing the prayer of plaintiff for relief, in dismissing the bill, and in rendering judgment in favor of defendant, Miller.”</p>

<p>Power op the Legislature to delegate its Authority.'—It was competent for the Legislature, by statute, to delegate to the Board of Supervisors of the City and County of San Francisco, power to make an order that “ no person shall establish or maintain any slaughter house, keep herds of more than five swine, keep or cure hides, * * slaughter cattle, * * pursue or maintain or carry on any other business or occupation, offensive to the senses, or prejudicial to the public health or comfort, in any part of the city and county, after the first day of August, 1866,” if it could have enacted such order in the form of a statute in the first instance.</p> <p>Power op the Legislature.—The Legislature had the power to enact, by statute, such order, unless restrained by the Constitution.</p> <p>Constitutional Restraints upon Legislative Power.—The provisions of the first Article of the Constitution, providing that “ acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness ” are inalienable rights, and that private property shall not be taken for public use without just compensation,” are untouched by said order, or the statute enacted by the Legislature, in pursuance of which said order was made. Ex parte Andrews, 18 Cal. 678, is cited as authority.</p> <p>Distribution op Powers op Government.—By the fourth Article of the Constitution, the powers of the Government are divided into three separate departments—legislative, executive, and judicial—and it is provided that neither of these departments shall exercise powers properly belonging to the others.</p> <p>Legislative and Judicial Powers.—Legislative power prescribes rules of conduct for the government of the citizen or subject, while judicial power punishes or redresses wrongs growing out of rules previously established. The distinction lies between a rule and a sentence.</p> <p>The Order op the Board op Supervisors not a Judicial Act.—The order in question does no more than lay down a rule for the future guidance of all men, • irrespective of calling. It neither charges or convicts the petitioner of anything, and is not the exercise of judicial power.</p> <p>Power op the Legislature.—The Legislature has power, as well as the judiciary, to determine facts. Whether the act of doing so will be judicial or not, is dependent upon the use to which the facts are put when found. The fact that the Legislature, in the enabling statute in question, empowered the Board of Supervisors to determine what should be necessary “ for the preservation of the public health and the prevention of contagious diseases,” etc., and the fact that the Board, acting within the scope of its said authority, determined the characteristics and injurious tendencies of the several acts forbidden in said order, do not stamp a judicial character upon either the statute or order.</p> <p>Validity of the Order of the Board of Supervisors.—The enabling statute, under which the order of the Board of Supervisors was made; is not in contravention of any constitutional provision, and the order is within the power conferred by the statute, and is valid.</p>

<p>Subsequently Acquired Title.—Where C., who at the time had no title to certain real property, made to D. a quitclaim deed to the same, but subsequently acquired title thereto, and then conveyed to P. : held, that D., by his deed, did not acquire the subsequently acquired title. Gee v. Moore, 14 Cal. 472, and Morrison v. Wilson, 30 Cal. 344, are cited as authority.</p> <p>Pleading Equitable Title.—An equitable title cannot avail a defendant in an action of ejectment, unless it be pleaded.</p>

<p>Appeal from the District Court, Tenth Judicial District, Yuha County.</p> <p>The complaint averred that the defendant was a corporation, and that the plaintiff", on the first day of January, 1862, became the owner of one sixth undivided interest of a quartz ledge at Brown’s Valley, and had continued to own it since; and that on the 17th day of November, 1863, the defendant entered into possession, and had since withheld possession from the plaintiff.</p> <p>Plaintiff did not offer any evidence tending to show a demand to be let into possession. After the plaintiff rested, defendant introduced in evidence a deed from plaintiff to one Frazier, and also offered evidence to show that defendant had succeeded to Frazier’s right. Plaintiff offered to show that the deed was made when he was a minor, and that he had disaffirmed the conveyance immediately after he became of age. The Court, on defendant’s objection, excluded the evidence. The Court instructed the jury to find a verdict for the defendant. The verdict and judgment were for the defendant, and the plaintiff appealed both from the judgment and from an order denying a new trial.</p> <p>The other facts are stated in the opinion of the Court.</p>

This was an action to recover the amount of a street assessment. The complaint averred a compliance with the statute, in the proceedings taken to grade and macadamize California street,between Taylor'and Jones streets; averred a letting to plaintiff of a contract for macadamizing, and a letting to B. Kenny, and an assignment by Kenny to plaintiff, of a contract for grading the block referred to. The answer was a specific denial of each averment of the complaint.

On the 3d day of March, 1862, James Canning, the appellant, by a lease in writing, demised to David Levitzky, the respondent, a brick building and lot on the corner of Third and Minna streets, City and County of San Francisco, for the term of three years from that date.

<p>Appeal from the District Court, Tenth Judicial District, Yuba County.</p> <p>The jury did not find the value of any of the property, except the twenty-four spring mattresses which they awarded to the defendant. The Court below awarded to the plaintiff his costs, and the defendant appealed from so much of the judgment as gave costs to the plaintiff.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Bights of Possession to Public Mineral Land.—Where the title of the respective parties to public mineral lands is based on possession alone, the older possession, as between the two, gives the better rigtyk; and this, although the use to which the older possessor appropriated the land was for agricultural purposes, while the younger possession was for mining purposes.</p> <p>Bights of Miners and Agriculturalists in Public Mineral Lands.—Where the plaintiffs, who were miners, did not seek to enter or occupy, for mining purposes, the lands of the defendant, devoted to agriculture, but_ sought to restrain him from flowing water thereon for the purpose of irrigation, by which their adjacent mining claims were injured, the plaintiffs cannot claim any authority, rights, or privileges in the premises under the Act of April 25th, 1855. (Stats. 1855, p. 145.)</p> <p>Idem.—In such a case, the plaintiffs’ rights depend upon the principles and rules of the common law, applicable to adjoining land owners, where the one complains that he has sustained an injury by the acts of the other, done on his own land. In irrigating his land, the defendant is subject to the maxim sit utefe~iiio~ut alienum non laidas.</p> <p>Idem.—In such a case, the defendant has the clear right to irrigate, as well as to cultivate and plant, his land, and an action cannot be maintained against him for a reasonable exercise of his right, although the plaintiffs may suffer annoyanee or injury thereby. He would be responsible to plaintiffs only for injuries caused by negligence or unskilfulness, or those wilfully inflicted in the exercise of said right.</p>

<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>

This was an action to recover the possession of two and one half undivided sixteenth shares of the Independent Tunnel Mining Claims in Placer County. The plaintiff, in the complaint, alleged title in himself, and an ouster hy the defendant. The defendant, in answer, denied all the averments of the complaint, except the fact of his (defendant’s) possession, alleged title in himself, and pleaded the Statute of Limitations. The cause was tried before, the Court with a jury.

<p>Affidavit to open Default.—In an application, made on affidavits, to set aside a default and open a judgment, if the affidavit states that the defendant has disclosed the facts constituting his defence to his counsel, and he is advised by him that he has a good and valid defence, the facts constituting the defence need not be detailed.</p> <p>Idem—Counter Affidavits.—When, in an application to open a default, merits are shown by affidavits, counter affidavits cannot be received.</p> <p>Opening Default.—If the failure to answer is by mistake, and merits are shown on an application to open a default, the application should not be denied because the plaintiff admits merits as to part of his claim, and consents to exclude that part from the judgment.</p>

On the 28th of March, 1861, the defendant was the owner of and living with his family on a lot in the Town of Santa Clara, Santa Clara County. On the same day he executed a declaration of homestead under the Homestead Act of April 28th, 1860, and on the thirtieth of the same month had it filed for record in the Recorder’s office, where it was recorded in the Book of Homestead Declarations.

The complaint was on a'promissory note reading as follows: “ Due Robert Patterson the sum of nineteen hundred dollars ($1,900), in gold coin, in ten days from date, for value received.

<p>Obligations of Lessors.—A lessor is in no ease under obligation to make repairs, unless by force of an express covenant or contract to do so.</p> <p>Idem.—Where D. and M. were the owners of a brick building and the lot on which it stood, and B. (deceased) was in occupation as their tenant, on a monthly letting, without covenants by D. and M. to uphold or keep the premises in repair or in habitable condition, and while such occupation continued, B. (deceased) was crushed to death by the falling walls of said building, caused by the acts of the owners of the adjoining lot, whereby the foundations of said walls were undermined, and of which, D. and M., having timely notice, did not adopt or attempt any preventive measures; held, that a complaint, setting up this state of facts, in an action under the statute, by B., (administratrix,) against D. and M., for the benefit of the next of kin of the deceased, does not state facts sufficient to constitute a cause of action.</p>

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

<p>Appeal from the District Court, Fourteenth Judicial District, Placer County.</p> <p>The plaintiff applied for a divorce on the ground of the adultery of the wife. The Court awarded him a divorce, and the defendant appealed from the judgment.</p> <p>The other facts are stated in the opinion of the Court.</p>

This was an action to compel the defendants to transfer to the plaintiff forty certain shares of mining stock known as the “ Belcher,” and to account to her for all dividends received hy them thereon.

The plaintiff, upon application to the Judge of the Court of the Fourth Judicial District, based upon his complaint in this action, filed in said Court, obtained from him, ex parte, an order of injunction against the defendants, pendente lite, according to the prayer of said complaint. The defendants appealed, from said order. In this Court, the respondent moved .to dismiss the appeal, upon the ground that the order appealed from is not an appealable order.

This was an action against the defendant, as administrator of George Peck, deceased, who in his lifetime sold to the plaintiff “ twenty-five shares of Sumner stock, upon Peck’s warranty that the stock shall he worth and marketable in San Francisco at two hundred dollars per share on November 27th, 1864.” The contract was in writing, and was in the terms following, to wit: . “ David N. Hawley has this day purchased of me twenty-five shares of the Sumner Gold and Silver Mining…

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

The basement of the building contained a greater amount of room than was rented to defendants, hut the part rented by defendants commanded the only access to it. Plaintiffs claimed that they could not rent this without having possession of the part demised to defendants, and that they could have rented the whole together for one hundred and fifty dollars or two hundred dollars per month, while the demised premises only brought much less.

The plaintiff had judgment, and the defendants appealed. The other facts necessary to an understanding of the points decided are stated in the opinion of the Court.

This cause was tried upon the issues presented by the complaint and answer to the complaint, before the District Court, without a jury.

The facts out of which the present controversy arose are fully stated in Mahoney v. Van Winkle, 21 Cal. 554. In 1862 an Act was passed by the Legislature of this State which provided in substance that a person dispossessed from a tract of land by the decree or judgment of a Court of competent jurisdiction, and who, not having a legal right to do so, should re-enter and take possession, should be deemed guilty of contempt of the Court by which the judgment was rendered.

<p>Trial of Title in Action for Partition.—It is competent to try title in an action for partition of lands. (Be XJprey v. Be XTprey, 27 Cal. 329; and Morenkout v. Higuera, 32 Cal. 289, affirmed.)</p> <p>Admissions of Grantor.—Where the grantor of plaintiff, whilé occupying the granted premises, made admissions against the title under which plaintiff claims, held admissible in evidence against plaintiff on the trial of an issue of title.</p>

This was an action of foreclosure on two certain notes and a mortgage of certain real property situated in Los Angeles County to secure their payment. The notes were set forth in hcec verba in the complaint; their due execution was not sufficiently denied in answer to raise an issue thereon.

<p>¡Finality op Judgment.—The finality of a judgment, if considered with reference to the Court rendering it, dates from the rendition of judgment, by the particular Court, upon the merits ; but if considered with reference to the subject matter of the judgment, it does not become final until a judgment upon the merits has been rendered by the Court of last resort, or, if no appeal be taken, then by a Court having original jurisdiction to render a judgment upon the merits, and the time for an appeal or review has elapsed, or the party against whom judgment was rendered has acquiesced in its finality or waived an appeal.</p> <p>Limitation of Action.—Where S. covenanted with H. that the original Mexican title to certain lands which S. conveyed to H. was valid, and in the event said title should not be 'confirmed by the Courts of the United States, before which it was then pending, upon the final adjudication of the same, that S. and his legal representatives should and would be liable to H. for the purchase price of said lands, with interest; and where the District Court of the United States for the Northern District of the State of California, on the 9th day of November, 1859, adjudged said title invalid, from which judgment no appeal was taken or waiver made of the right thereto, or acquiescence in the finality of said judgment declared, within five years thereafter; held, that the right of action for a breach of said covenant only accrued after the lapse of five years from November 9th, 1859, during which time said judgment was subject to appeal, and, as regards its subject matter, was not a final adjudication.</p>

This, is an appeal from an order made after final judgment, directing the docketing of a judgment for a deficiency arising upon a Sheriff’s sale of mortgaged premises under a decree rendered' in the original cause of George Leviston v. Thomas M. Swan, G. W. McMurtry and Edward Me Gary.

<p>Modification of Judgment.—If the Supreme Court direct the judgment of the Court "below to be modified, the Court below cannot open it so as to change it in any other particular than as directed.</p> <p>Idem.—If the judgment of the District Court is for a specific amount of money, and the Supreme Court modify it and fix the amount at which it is to be modified, the District Court cannot in addition thereto add interest, although it was justly due.</p>

In the Supreme Court of the State of California. The People, by the relation of the Board of Supervisors of Solano County, upon notice thereof first given to the respondent, petitioned this Court to issue its peremptory writ of mandate to the Board of' Supervisors of Lake County to immediately proceed and act upon the matter of the location of a certain road described in the petition, and to declare said road a public highway, and open to travel as such, and that they…

This was an action on a promissory note, by its terms bearing interest, payable monthly until paid, alleged to have been made by the defendants, and delivered to the plaintiff April 22d, 1864, and payable on demand. The action was commenced April 5th, 1867.

On the 11th day of April, 1866, the defendants Reynolds & Washburn leased of Perrine & Walker a lot in San Francisco for the term of fifteen years, and entered into possession under the lease.

<p>Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.</p> <p>Bix, the defendant, was appointed Police Judge to fill the vacancy occasioned by the death of P. W. Shepheard, on the second day of January, 1866. At the judicial election held on the sixteenth day of October, 1867, the relator, R. R. Provines, was elected Police Judge for two years, commencing on the first day of January, 1868, and received all the votes that were cast for the unexpired term. The proclamation for an election had not mentioned an unexpired term. Two certificates of election were issued to him, one for the term of two years, commencing on the first day of January, 1868, and the other for the unexpired term. Under the last certificate Provines claimed the office, and qualified and demanded it on the first day of November, 1867. Rix refused to surrender the 'office, and this proceeding hy mandamus was instituted to recover the office. The Court below gave judgment for the relator, and the defendant appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

This action was commenced May 8d, 1865. On the trial the plaintiff gave in evidence the petition and schedule in insolvency filed by Benjamin F. Coons in the District Court of the Fourth Judicial District, and the proceedings had thereunder, from which it appeared that such petition and schedule were presented to the Judge of said Court on the 16th day of September, 1854; that on .the same day said Judge made an order directing that said petition and schedule should be filed…

This was an action for the possession of portions of Fifty Vara Lots Numbers Two Hundred and Ninety and Two Hundred and Ninety-One, situate in the City and County of San Francisco.

This was an action to recover the .value of the contents of the jilaintiff’s trunk, lost from the defendant at sea. The principal issue of fact tried was as to the contents of the trunk and their value, on which points the evidence was conflicting. On plaintiff’s motion, the Court below granted a new trial, and from the order granting the same the defendant appealed. The other facts are stated in the opinion of the Court.

On the 28th day of August, 1866, the plaintiff recovered a judgment in said Court against the defendants, for five hundred dollars and costs. Brown, the judgment creditor, immediately assigned the judgment to S. L. Cutter, by an instrument in writing. On the same day, but after the assignment, the Constable collected from the defendants the sum of two hundred and eighty-three dollars and sixty-three cents, on an execution in favor of Bill and others, and against Brown.

The prayer of the appellant’s petition in insolvency was as follows : “ Wherefore your petitioner prays to make a cession of his estate, and to be discharged from his debts in (pursuance of the provisions of said [Insolvent] Act.” The other facts are stated in the opinion of the Court.

This was an action to recover the southeast quarter of Séetion Humber Seven, in Township Humber Three South, Range Humber Seven East, Mount Diablo Meridian. The plaintiff claimed in his complaint that he was the owner of the land on the first day of December, 1863, and since had been.

The bill of exceptions mentioned in the opinion of the Court is as follows, to wit: “ The order on the Sheriff to show cause, heretofore made, coming on to be heard before this Court, the plaintiff read his affidavit and the order to show cause based upon it; whereupon, the Sheriff, by his attorneys and counsel, Mr. R. H. Lloyd, representing the interests of Jonathan Peel, and Mr. S. W. Holladay representing the interests of David Fitzgibbon, came and showed cause by…

The defendant was sued as an innkeeper to recover for the loss of one hundred and sixty-eight ounces of gold dust, the property of the plaintiff; fifteen hundred dollars, gold coin, at the time of loss the property of the plaintiff’s assignor, Robert Walker; and two hundred and twenty-seven and a half ounces of gold dust, at the time of loss the joint property of the plaintiff’s assignors, Michael Lynn and Duncan McKinnon.

The following was the complaint in this action : “ August Ahrens, the plaintiff in this suit, complains of Bar Adler, the defendant, and for cause of action alleges : That on the 31st day of July, A. D. 1863, and also on divers, days and times previous thereto, as well as after that date, and up to the 10th day of October, 1863, at the City of San Francisco, the defendant, Bar Adler, having offered to this plaintiff that he would convey, by a certain instrument commonly…

On the 24th of October, 1863, the plaintiffs sold and delivered to Wegener & Shoenbar fifty hales of tea on ninety days credit. The transaction was in the ordinary course of mercantile business, Wegener & Shoenbar being in excellent credit. Six days afterwards, the house was attached for amounts exceeding the immediately available assets, and these teas seized by the defendant as Sheriff.

The complaint averred that before 1846 the Mexican Nation granted to Juan Philippi Peña and Manuel Vaca a tract of land in Upper California, known by the name of “ Los Putos Rancho,” and that afterwards the same was confirmed to them by the Courts of the United States, and a patent was issued to them therefor. _ That on or about the 7th day of November, 1853, the said Juan Philippi Peña, by his deed of conveyance bearing that date, for the consideration of the sum of ten…

The defendant was prosecuting two actions in his name to foreclose mortgages on a mining claim in Sierra County. The plaintiff furnished him a sum of money, and the two entered into a written agreement, in June, 1863, that the actions should be prosecuted in the name of the defendant, but that both should be equally interested in the causes of action, and in the property if purchased by the defendant at Sheriff’s sale.

The material averments of the plaintiff’s complaint are as follows, to wit: “ On the 6th day of June, 1864, the firm of Ah Sing & Co. were indebted' to the plaintiff in the sum of ($425) four hundred and twenty-five dollars, being the balance due plaintiff of the purchase money of a-certain interest in a lot of mining claims situate on Dutch Eavine, Placer County, and before that time sold and conveyed by plaintiff to said Ah Sing & Co. That afterwards, to wit: on the day…

Antonio Ignacio Abila died at the County of Los Angeles, on or about the 25th day of September, A.- D. 1858, leaving a will, in which respondent, (Pedro Antonio Abila), Juan Abila, and Rosa Ruiz de Abila (wife of deceased) were named as executors; Juan Abila subsequently resigned his trust, and Rosa Ruiz de Abila (now deceased) and respondent became the remaining executors.

This was an action of ejectment to recover a tract of land in Santa Clara County. The plaintiffs count on both title and prior possession. The questions considered by this Court arise upon the possession of the plaintiffs and their predecessors of the demanded premises.

<p>Appealable Order.—An appeal does not lie from an order made on a motion to retax costs. Such order can be reviewed only on an appeal from the judgment.</p>

On the 8th day of March, 1862, the plaintiff commenced an action in the District Court of the Fourth Judicial District against the defendant Strauss and Richard W. Davis, on a promissory note and to foreclose a mortgage given to secure the note. The service of summons was made by Alexander Boyd, who made his return by affidavit, as stated in the opinion of the Court.

On the 24th day of March, 1862, the plaintiff borrowed from the defendant three hundred dollars, for one year, with interest at one and a half per cent per month, and to secure the defendant the plaintiff gave him a deed absolute on its face of a lot in San Francisco.

April 10th, 1860, S. A. Hastings commenced an action of ejectment in the said Court against J. W. Cudworth and others, including Lyman F. Green, and Hetty C. Green, his wife, to recover possession of a tract of land, which included Blocks Two Hundred and Forty-Two and Two Hundred and Sixty-Four. Said Greens answered, denying the allegations of the complaint, July 5th, 1860.

<p>Proof of Agency for Corporation.—In an action against a private corporaation on a contract made by a person on its behalf, purporting to act as its agent, parol testimony is admissible to show that such person was authorized, to act as its agent, unless the corporation is compelled by its charter to appoint its agents by deed or resolution.</p> <p>Contract to pay in Gold Coin.—An account stated, with a memorandum at the bottom "payable in gold coin (United States) according to contract,” and signed by the defendant, is admissible as written evidence of a contract on the part of the defendant to pay in gold coin.</p> <p>Continuance.—An application for a continuance is addressed to the discretion of the Court. It is not an improper exercise of such discretion to refuse a continuance asked for on an affidavit which discloses neither the names of the absent witnesses nor what the party expects to prove by them.</p> <p>Account Stated.—An account stated alters the nature of the original indebted- • ness, and constitutes a new promise or undertaking.</p>

Action to recover possession of a tract of land in Santa Clara County, containing about four hundred acres, and parcel of the tract of land known as “ the Rancho of Santa Teresa.” Complaint in the usual form. The answers denied the allegations of the complaint, and in addition thereto set up that the defendants were the owners in fee of undivided interests in the said “ Rancho of Santa Teresa,” and were therefore in possession and entitled to possession as tenants in common.