Volume 34 — California Reports

This action was brought against Ellen Fogarty McAdams and Peter McAdams, her husband, Catharine F. Barry and Michael Barry, her husband, Patrick Fogarty and Mary Fogarty, his wife, Patrick Fogarty, administrator of the estate of Thomas Fogarty, deceased, Joseph B. Thomas, James Graves, John D. Arthur, and William W. Arthur.

■ Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.

This was an action upon a promissory note given by the defendant to the plaintiff on the 2d day of August, 1862, for one thousand two hundred and fifty dollars. The defendant pleaded his discharge under the Insolvent Act. His petition was filed on the 26th day of December, 1862.

The defendant, on his application to open the default, introduced affidavits stating that he had a meritorious defence to a part of the cause of action in the opinion of his counsel, and that he employed counsel to defend, and that his counsel did not know of the rule of Court requiring a demurrer to be served on the plaintiff’s attorney. The other facts are stated in the opinion of the Court.

The plaintiff brought this action to recover the sum of five hundred and fifty dollars, which he had deposited with the defendant. The Court found the following facts, and drew therefrom the following conclusions of law: “ 1.

<p>Fraudulent Conveyance.—A conveyance of real estate, made and received for the purpose of defrauding the creditors of the grantor, is good between the parties and as to all the world, except the creditors of the grantor.</p> <p>Idem.—Such conveyance is good as against subsequent purchasers from the grantor, unless they buy without notice and for a valuable consideration.</p> <p>Redelivery of Deed.—A redelivery of a deed by the grantee to the grantor, • with the intention of cancelling the same, does not revest the title in the grantor.</p>

The complaint, after averring that on the 6th day of December, 1866, the plaintiffs were and still are the owners of the property, and are entitled to the possession thereof, proceeded as follows: “ That said plaintiffs, on said day, being as aforesaid owners and in the possession of said personal property, the said I. D. Thompson, one of the said defendants, falsely and fraudulently, and without any consideration, obtained an order for the said brandy from said plaintiffs…

The plaintiff appealed, and assigned that the Court below erred in sustaining the demurrer upon the second ground stated. The defendant appealed, and assigned that the Court below erred in overruling the demurrer upon the first ground stated. The other facts are sufficiently stated in the Opinion of the Court.

The defendants were a joint stock association composed of several persons doing an express business in the State of California. They transported treasure in small safes on the stages. On the 17th day of November, 1863, the stage was stopped near Fiddletown, El Dorado County, and their safe broken open and robbed of two thousand and thirty-five dollars.

This was an action to recover damages sustained hy plaintiff by the flooding with water, and the covering with sand and sediment, of his lands, situated on Coon Creek, in Placer County, to which he claimed the title in fee, from the defendant’s ditches, and for an injunction.

<p>Bill of Review.—If a judgment is erroneous upon the face of the record, a "bill of review will not lie to correct the same. In such case the error must be corrected by an appeal from the judgment.</p> <p>Correction of Error in Judgment.—If a judgment is rendered payable in currency, and the record shows that it should have been made payable in gold coin, the error cannot be corrected by a bill of review.</p> <p>Bill to review Judgment.—It is doubtful whether a bill of review for errors apparent on the face of the record could be maintained under the old chancery system, after an affirmance of the decree on appeal.</p>

The complaint averred the execution of a note hy the defendant to the plaintiff, for six thousand dollars, and a mortgage to secure it. The note was set out in words and figures. The answer admitted the execution of a note for six thousand dollars, but averred that the note executed was another and different note from that set out in the complaint.

This was an action on a promissory note. The answer admitted the execution of the note, and set up in defence, first, that it was without consideration, and that defendant, by reason of its execution, did not become indebted to or liable to pay any sum whatever to the holder thereof; second, that if defendant ever became liable in any sum on said note, the same had been fully paid, except the sum of forty-five dollars and twenty-five cents, to the lawful holder thereof,…

<p>Errors must be Specified.—If errors of law are relied on on motion for a new trial, they must he particularly specified in the statement, and if not so specified are to he taken as released or waived.</p> <p>Possession of Land.—A party may he in possession of land without a personal residence thereon, or without having personally cultivated or improved it.</p> <p>Conveyance of Demanded Land Pending Suit.—The conveyance of the demanded premises, by the plaintiff in ejectment, pending the suit, to a person not a party to the action, does not necessarily defeat the action.</p>

This was an action against respondent and others, upon a note executed to plaintiff by respondent and others, for the sum of two thousand five hundred and sixty-six dollars, with interest at one per cent per month from its date, July 13th, 1861. The defence relied on by respondent was a plea in bar of certain insolvent proceedings and judgment rendered, in the case of James French v. His Creditors, whereby it was alleged that respondent was discharged from the debt sued on.

On the 23d of July, A. D. 1864, Leopold King and Anthony King, partners in business under the firm name of L. King & Brother, brought this action against Henry L. Davis, Sheriff of the City and County of San Francisco, to recover the possession of certain goods and chattels, alleged to be of the value of thirty thousand dollars currency of the United States, charged to have been unlawfully and wrongfully seized and taken by the defendant from the possession of the…

<p>Appropriation op Water by Dam and Ditch.—Where the Court instructed the i jury, in substance, that if plaintiff acquired the prior right to divert a portion of the water of Shady Creek, by means of a dam and ditch, and the dam and stream should at any subsequent time, by reason of mining by strangers above, become filled up to such an extent as to make it necessary to raise the dam higher than it originally was to enable the plaintiff to continue the diversion by means of said ditch, then the plaintiff is entitled to make additions to the height of the dam from time to time, as occasion requires, without limitation, and wholly irrespective of the effect of these additions upon the interests of other parties acquiring rights for mining and other purposes on the stream above, subsequent to said original appropriation of the waters of the stream : held, that the principle on which such instruction is founded is inadmissible and the instruction erroneous.</p> <p>Idem.— Where plaintiff appropriated a portion of the waters of a stream, and diverted it by means of a dam and ditch, sufficient for the purpose in the natural condition of the stream as it then existed, it does not necessarily follow that he thereby acquires the right to raise his dam higher and higher, as occasion might require, to obviate obstructions to its use in the manner of its said original appropriation, occasioned by physical changes in the condition of the stream not anticipated, whether arising from natural or artificial causes.</p> <p>Idem. — The question, what is the extent of the right originally acquired by plaintiff in such a caso to which all subsequently acquired rights must be subordinate, 5s one of fact, for the jury.</p> <p>Idem.—If the plaintiff appropriated a portion of the waters of a stream, and constructed a ditch and dam, amply sufficient, under the conditions of the stream and the country as they then existed, to make the appropriation available, and thereby acquired the right to appropriate and use said portion of said waters in said manner only, this would not prevent or impair tho right of other parties to acquire a right to the surplus waters of the stream, or to its bed and banks, or the adjacent land, to any extent that should not interfere with rights previously acquired. And when the rights of the subsequent appropriates once attach, the prior appropriator cannot encroach upon them, by extending his rights beyond the first appropriation.</p> <p>Idem.—In such a case, when the right has once vested in the subsequent appropriator, the prior appropriator would he no more justified in extending his claim, or changing the means of his appropriation, to the prejudice of the second appropriator, than the latter would he in encroaching upon the prior rights of the first. In such case, each appropriator is, in respect to the particular thing appropriated hy him, prior in time and exclusive in his right.</p> <p>Idem.—Where the plaintiff, by means of a dam of a certain height and dimensions, constructed at a certain point on Shady Creek, and the excavation of a ditch extending therefrom, which at the time of their construction were well adapted to and ample for the purpose, appropriated a portion of the waters of said creek, whatever was thus left unappropriated, cither of the waters of said creek or mining ground therein, was open to be appropriated by defendants; and if the defendants, by first appropriation, acquired the right to work their mining claims, located in the bed and banks of said stream above plaintiff's dam, in their condition at that time, the plaintiff was not authorized, by subsequently erecting a higher dam, to interfere with said right; and this, although by subsequent changes not wrought by defendants, occurring in the bed of the stream, it became impossible for plaintiff longer to divert the waters of the stream at the point chosen for its diversion, without so raising said dam.</p> <p>Idem.—When plaintiff appropriated the waters of Shady Creek, and before other conflicting interests had vested, the right to the water carried with it the right to construct such works as were necessary to the full enjoyment of the water. But when he established his works, and fully appropriated the water by means sufficient for the purpose, and used it for a term of years in a particular mode, then, unless there was something manifesting a more extended right, other parties had a right to suppose he had thereby defined the limits of his right, and act accordingly.</p>

<p>Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.</p> <p>This was an action to recover from the defendant the sum of seven hundred and six dollars and sixty-two cents, as a balance due upon a stated account, and for work and labor done and materials furnished.</p> <p>The defendant, in his answer, denied each and every material allegation of plaintiff’s complaint, except that plaintiff did work and labor for defendant to the amount of five hundred and twenty-five dollars. The defendant then set up a counter claim in four counts, claiming that plaintiff was indebted to him in the sum of one thousand and twenty-nine dollars and twenty-five cents, and demanded judgment for the sum of five hundred and four dollars and twenty-five cents, being the balance due him. The pleadings in this action were verified. The plaintiff failed to file a replication, or answer, to any of the matters set up in defendant’s answer. The cause was tried before the Court, without a jury. The Court held, upon the trial, that the counter claim set up by the defendant stood admitted, and then and there rendered judgment for the defendant for three hundred and twenty-two dollars and fifty cents. The plaintiff afterwards moved for a new trial, and it was granted, from which order granting a new trial the defendant appealed.</p>

This was an action to recover the value of a certain con- . tract alleged to have heen converted by defendants Moss and Buttrick, or by defendant Moss. From the admissions of the pleadings and the facts as found by the Court below, it appeared that the facts of the case were as follows: On the 21st of May, 1862, plaintiff made a written contract with certain parties to build them a macadamized road, in San Francisco County, for a stipulated sum.

The following is a copy of the instrument on which the suit was brought : “ $1,150. “Suisun City, Cal., December 25th, 1865. “ Twelve months after date I promise to pay W. M. Winters, or any authoi’ized agent of the Pacific Methodist College, the sum of eleven hundred and fifty dollars for the ■' endówmé2Ít -of said College; the above sum to draw interest from date at fifteen per cent per annum. ■ A “ 11.

This was an action to recover in gold coin the sum of one thousand two hundred dollars, with legal interest on certain several portions of said sum, from the times of payment by plaintiffs of the said several sums to the defendant Steen. The contract, which was the basis of this action, was set out in the complaint, and will be found in the report of this case on a former appeal.

<p>Appeal from the District Court, Eleventh Judicial District, El Dorado County.</p>

<p>Statute op Limitations'.—A note payable six months after date, with interest payable monthly in advance, contained the following clause : “ In case the said interest, or any portion thereof, should become due, and remain unpaid after demand, then the mortgage given by me, of even date herewith, which is given to secure the payment of this note, may be foreclosed,” etc., and the mortgage contained a provision by which the mortgagee was “ empowered to foreclose said mortgage, according to the provisions in said note contained held, that the prompt payment of the interest on demand when it fell due, did not, under these clauses in the note and mortgage, prolong the time of payment beyond the time specified in the note, and that a cause of action accrued upon the note and to foreclose the mortgage, immediately upon the expiration of the six months, although there had been no default in the payment of interest j held, further, that an action not commenced within four years after the expiration of six months from the date of the note, is barred by the Statute of Limitations.</p>

<p>Pleading—Denials in Answer.—Before entering on the trial of an action, the plaintiff is entitled to an explicit denial of the material allegations of the complaint, or an admission of their truth, either by direct statement, or by silence; and it is the duty of the Court to enforce this right.</p> <p>Idem—Mode of Testing.—Where the answer contains no new matter, and the plaintiff claims that all the denials are bad, he may test their sufficiency by a motion for judgment upon the pleadings.</p> <p>Idem.—If some of the denials of an answer are deemed good, and the others bad, the plaintiff may move to strike out the latter. This practice is justified by the fiftieth section of the Practice Act. Answers consisting of denials, which do not explicitly traverse the material allegations of the complaint, are sham and irrelevant within the meaning of the statute.</p> <p>Puneral Expenses.—In an action under the statute for causing by wrongful act the death of a person, funeral expenses are not recoverable, except as special damages, if recoverable at all, and must be specially pleaded.</p> <p>Variance between Pleading and Proof.—In an action under the statute for causing by wrongful act the death of a person, where the allegation of the complaint was that defendants owned, as tenants in common, the entire block, in front of which the accident occurred, and the proof was that they owned it in distinct parcels in severalty, the variance was immaterial.</p> <p>Negligence—What Sufficient Proof of.—To maintain an action for causing by wrongful acts the death of or injury to a person, two things must be shown : 1st. An obstruction in the road by the fault of the defendant; 2d. No want of ordinary care on the part of the plaintiff. The gravamen of the action is the negligence of the defendant, and plaintiff cannot recover where it appears that the negligence of the deceased or person injured contributed in any degree to the death or injury sustained.</p> <p>Idem.—But in cases where the negligence of the defendant is affirmatively shown, and there is no proof of the conduct of the deceased or person injured, the jury are at liberty to infer ordinary care and diligence on his part, taking into consideration his character and habits, as proved, and the natural instinct of self-preservation.</p> <p>Idem.—In such actions, if the plaintiff makes a case which does not charge the deceased or the person injured with negligence, the case should be permitted to go to the jury, under appropriate instructions.</p>

<p>Appeal from the District Court, Seventh Judicial District, Solano County.</p> <p>On the 28th day of February, 1865, the plaintiff filed his complaint to recover the amount of a promissory note dated March 1st, 1861, and payable on demand. On the 9th of June, 1865, a summons was issued, and thereafter defendant demurred to the plaintiff’s complaint. The complaint was amended so far as necessary to meet the point taken upon said demurrer, and subsequently the defendant answered, setting up the Statute of Limitations as a defense, upon an allegation that the original complaint had not been duly filed; had been mutilated by amendment before summons had been issued thereon, and without leave of Court, and that said amendments were made more than four years after a cause of action had accrued on said note, and that said original complaint did not state facts sufficient to constitute a cause of action against the defendant. Hpon the trial the Court below held the original complaint a nullity, and allowed an amendment, alleging a new promise, to bring the case within the Statute of Limitations.</p> <p>The plaintiff had judgment in the Court below. The defendant moved for a new trial. The motion was denied by the Court, and the defendant appealed from the judgment and the order of the Court denying a new trial.</p> <p>The other facts are sufficiently stated in the opinion of the Court.</p>

This was an action on a promissory note. Plaintiffs had judgment by default in the- Court below, and defendants appealed. The complaint was as follows : ' [ Venue.'] “ John Y. Hallock, and \ Christian Christiansen, J Plaintiffs, I v. ( E. Jaudin & G-.

<p>Appeal from the County Court, Placer County.</p> <p>On the trial of the defendant, who had been indicted for the crime of grand larceny, alleged in the indictment to have been committed by feloniously stealing certain money of one Ah Mung, the District Attorney called Ah Mung as a witness for the people, who testified, among other things, that on the day succeeding the day of the defendant’s arrest, the defendant was taken by the Sheriff, who had him in custody, into a meeting of Chinese merchants at Auburn, held in a brick store, when and where one of said merchants said to defendant, “ Hoy Ten, if you will go and show us the money, we will let you go clear.” The witness was then asked by the District Attorney, what Hoy Ten replied. The' question was objected to by defendant’s counsel, on the ground that any statement that might have been made by defendant in reply, was under the inducement of a promise of favor, and therefore incompetent as evidence against him, which objection was overruled by the Court, and the defendant, by his counsel, duly excepted. The witness then answered, “ Hoy Ten said, ‘ I will go with you to-morrow and get the money; it is at Pine Drove; I buried it in the ground there.’ ” It appeared also in evidence, that on the day following, the defendant pointed. out to the officer having him in charge a portion of the stolen money, at a place near Pine Grove. This latter fact was proffered in proof by the District Attorney, at the time of asking the foregoing question. After the order of Court striking out the evidence, and before the close of the trial, the defendant, by his counsel, moved the Court to discharge the jury and order a new trial, on the ground that said excluded evidence, by reason of its presentation to and consideration by the jury,, before the order of the Court for its exclusion, and from its peculiar tendency, must have biassed the jury to the prejudice of defendant. The motion was denied, and the defendant duly excepted. The defendant appealed.</p> <p>The other facts are sufficiently stated iu the opinion of the Court.</p>

This was an action brought to recover for the use of certain pumps, belonging to plaintiff, in and about the defendants’ ship Bengal. The complaint alleged the value of said use to have been two hundred dollars per day, for eighteen days use.

<p>Indictment Charging Two Offenses.—Where, in the same indictment, C. was charged with the larceny of certain goods, and the defendant with feloniously receiving, having, and aiding in concealing the same, knowing them to be stolen : held, that two offenses were charged, and a demurrer, interposed to the indictment by defendant, on the ground that two distinct offenses were charged therein, and against different parties, was properly sustained.</p> <p>Receiving Stolen Goods.—Where an indictment only charged the defendant with feloniously receiving, having, and aiding in concealing certain stolen goods, knowing the same to have been stolen : held, that the offense, if any, therein charged was for receiving stolen goods, as prescribed in section sixty-three of the Act concerning crimes and punishments, and is a different offense from either larceny or of an accessory after the fact.</p>

The defendant was indicted by the Grand Jury of Sonoma County of the crime of knowingly procuring and having in his possession instruments, etc., used in counterfeiting United States gold coin, etc. The following is a copy of the charging part of the indictment, to wit: “ The said William White, on the fourteenth day of February, A. D. 1866, at the County of Sonoma, did knowingly procure and have in his possession a certain mould pattern, die, puncheon, tool instrument and…

<p>Name of Defendant.—Where a. defendant was indicted by the name of Ah Keet, and upon arraignment disclosed that his true name was Ah Kim, under which name the prosecution was conducted against him to final judgment, except that the jury, in rendering their verdict, prefixed the original title of the cause : held, that the title of the cause prefixed to the verdict was surplusage, and the judgment was properly rendered.</p> <p>Idem.—Such a record and judgment excludes all doubt as to the real party tried and convicted.</p>

<p>Appeal from the District Court, Seventh Judicial District, Marin County.</p> <p>The defendant was indicted by the Grand Jury of Marin County of murder. The first count of the indictment was as follows, to wit:</p> <p>“ The said Timothy Cronin is accused by the Grand Jury of the County of Marin, State of California, by this indictment of the crime of murder, committed as follows, to wit : The said Timothy Cronin, on the eighteenth day of July, A. D. eighteen hundred and sixty-six, and prior to the finding of this indictment, at the County of Marin, State of California, in and upon Julia Cronin, unlawfully, feloniously, and of his malice aforethought did make an assault; and the said Timothy Cronin, with some means, instruments and weapons to the jurors unknown, the said Julia Cronin in and upon the body and the left side of the head of the said Julia Cronin, then and there feloniously, willfully, and of his malice aforethought did strike and beat; the said Timothy Cronin giving to said Jnlia Cronin then and there, and thereby, to wit: with the means, instruments and weapons aforesaid, in and upon the body and left side of the head of the said Julia Cronin, divers mortal bruises, of</p> <p>which said mortal bruises the said Julia Cronin then and there died, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of California.”</p> <p>The defendant demurred to said count on the grounds: First—That it did not contain a statement of the acts constituting the offense which it proposed to set forth, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what was intended. Second—It did not contain the particular circumstances of the offense charged necessary to constitute a complete offense. Third—It did not state the acts constituting the offense therein attempted to be charged.</p> <p>The demurrer was overruled by the Court, and defendant excepted. The following is a portion of the charge of the Court to the jury, to the giving of which defendant at the time duly excepted, to wit:</p> <p>“ Presumptive evidence is admissible in criminal prosecutions as well as in civil cases; the modes of reasoning and of drawing conclusions from facts are the same. When direct evidence cannot be produced, minds will form their judgments on circumstances and act on the probabilities of the case. . As mathematical or absolute certainty is seldom to be obtained in human affairs, reason and public utility require that Judges and all mankind, in forming their opinion of the truth of facts, should be regulated by the superior number of probabilities on the one side or the other, whether the amount of these probabilities be expressed in words or arguments, or by figures and numbers. The principal difference to he remarked between civil and criminal cases with reference to the modes of proof by direct or circumstantial evidence, is that in the former, where civil rights are ascertained, a less degree of probability may be safely adopted as a ground of judgment than in the latter case, which affects life and liberty.</p> <p>“In order to convict, the circumstantial evidence;should be such as to produce nearly the same degree of certainty as that which arises from direct testimony, and to exclude a rational probability of innocence. The circumstances ought to be of such a nature as not to be reasonably accounted for on the supposition of the prisoner’s innocence, but perfectly reconcilable with the supposition of the prisoner’s guilt.</p> <p>“ If the killing of Julia Cronin by the defendant has been proved, the burden of proving circumstances of mitigation, or that justify or excuse the homicide, will devolve on the accused, unless the proof on the part of the prosecution sufficiently manifests that the crime committed only amounts to manslaughter, or that the accused was justified or excused in committing the homicide.</p> <p>“ In case of admissions shown to have been made by the defendant, you are at liberty to believe a part of such admissions, such as you believe to be true, and to reject other parts of such admissions as you may believe, from such admissions or from other evidence in the cause, to be untrue, and disregard such statements made by the defendant as you deem from the evidence to be unworthy of belief.”</p> <p>The following instructions were given to the jury by the Court at the request of the District Attorney, to the giving of which the defendant at the time duly excepted :</p> <p>“ The term 6 reasonable doubt ’ is a term often used— probably pretty well understood—but not easily defined. It is not mere possible doubt, because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of. all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge. The burden of proof is upon the prosecutor. All the presumptions of law, independent of evidence, are in favor of innocence; and every man is presumed to be innocent until he is proved guilty. If, upon such proof, there is reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal, for it is not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary ; but the evidence must establish the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it.</p> <p>“ This we take to be proof beyond reasonable doubt, because if the law, which mostly depends' upon considerations of a moral nature, should go further than this, and require absolute certainty, it would exclude circumstantial evidence altogether.</p> <p>“ The jury must be satisfied from the evidence of the guilt of the defendant, beyond a reasonable doubt, before they can legally find him guilty of the crime charged against him; but in order to justify the jury in finding the defendant guilty of said crime, it is not necessary that the jury should be satisfied from the evidence of his guilt beyond the possibility of a doubt. All that is necessary in order to justify the jury in finding the defendant guilty, is that they shall be satisfied from the evidence of the defendant’s guilt to a moral certainty and beyond a reasonable doubt, although they may not be entirely satisfied from the evidence that the defendant and no other or different person committed the alleged .offense; and if the jury are satisfied from the evidence, beyond a reasonable doubt, that the defendant committed the crime charged against him, they are not legally bound to acquit him because they may not be entirely satisfied that the defendant and no other or different person committed the alleged offense.</p> <p>“ The defendant has offered himself as a witness on his own behalf on this trial, and in considering the weight and effect to be given his evidence, in addition to noticing his manner and the probability of his statements taken in connection with the evidence in the cause, you should consider his relation and situation under which he gives his testimony, the consequences to him relating from the result of this trial, and all the inducements and temptations which would ordinarily influence a person in his situation. You should carefully determine the amount of credibility to which his evidence is entitled; if convincing and carrying with it a belief in its truth, act upon it; if not, you have a right to reject it.</p> <p>“ The counsel for the prisoner has read and recited a number of cases wherein convictions have been sought and had upon strong circumstances of guilt proved against the accused in those cases, and afterwards it has transpired that the accused was innocent, notwithstanding the strong circumstances shown against him. These cases read and recited are extreme cases, and probably do not occur but very seldom in cases decided upon circumstantial evidence. The quotation of such cases is proper in order to make the jury careful in arriving at a proper conclusion from such evidence, but the plain, practical rules of evidence which have been established for ages ought not to be shaken, because of the recital of extreme cases, wherein improper convictions have been had; and if much search be made, it would be found that probably a greater number of cases might be cited wherein improper convictions have been had from direct positive evidence, through inattention or perjury of witnesses. All human testimony is fallible; but jurors in their decisions must take and consider circumstances, and, if sufficient, .act upon them, although the main fact is proved by no eye witness.</p> <p>“ Cases have been read to you by counsel wherein Judges have commented upon the testimony of the witnesses, and expressed their opinions upon its sufficiency to convict, stating to the jury that the evidence was almost as strong as positive proof. Under the law in the country where these opinions were given at that time, the Judges had a right to give to the jury their opinions as to the effect of the evidence ; while under our law in this State the Judge has no right to express an opinion upon the evidence, but the whole weight and effect of the evidence must be left entirely to the jury, without the opinion of the Court as to what verdict they should render.</p> <p>“As I conclude, I admonish you to calmly consider the evidence before you. The interest of the community and of the defendant demands your best efforts truly to decide from the evidence. The amount of credence to be given to the different witnesses is entirely with you. Yon have a right to look at their surroundings, their bearing on the stand, and have a right to reject such parts of the testimony of any of them as is contradicted by other witnesses or other circumstances, showing that they are not reliable.”</p> <p>The defendant was convicted and sentenced for murder in the first degree. A motion for a new trial was made on the grounds, among others, that the Court erred in overruling said demurrer, and in giving said instructions to the jury. The motion was denied, and the defendant appealed from the judgment and from the order denying a new trial.</p>

The defendant was indicted for the crime of murder in the second degree of one Lawrence Nolans, on or about April 25th, 1867, in Sierra County, and was, at the July Term of the District Court, within and for said county, tried and convicted of said offense. The defendant appealed from the judgment, and from an order denying his motion for a new trial.

<p>Confessions of Guilt—How Admitted.—Where confessions of guilt are offered against a defendant, and objected to by him on the ground that they were not voluntarily made, the question thus presented is for the Court alone, and must be decided before the testimony goes to the jury.</p> <p>Confessions of Guilt—When not Admissible in Evidence.—Where the defendant made confessions of guilt under the influence of threats of arrest for the crime of which he was then and there accused, by the person threatening him, or to an officer having him in custody, upon promises of escape if he would confess, and where such confessions did not lead to the discovery of any facts or circumstances by which their truth was established : held, that such confessions were inadmissible as evidence against him when on trial for the crime so confessed.</p>

<p>Time and Mode of Rejecting Claim by Executor or Administrator of Estate.—Where, on the presentation of a demand against an estate, to the executor thereof, as provided in section one hundred and thirty-two of the Probate Act, the executor neglected to indorse thereon his allowance or rejection thereof, but held the same for more than ten days : held, that the claim only becomes a rejected claim on the expiration of said ten days.</p> <p>Findings—When not Defective.—Where the findings of the Court cover all the issues made by the pleadings, they are not defective within the meaning of the one hundred and eightieth section of the Practice Act, whether supported by the evidence or not.</p> <p>Idem.—Where in such case a party is dissatisfied, he can only have a review of the evidence, to test its sufficiency to support such findings, by moving for a new trial.</p> <p>Form of Judgment Against Exeuctor.'—Where, after the rejection by the executor of a claim against the estate on which he is administering, the claimant sues the executor for its recovery, he is only entitled to a judgment which first ascertains the amount due, and adjudges the same to be a valid claim against the estate, and then provides that the same bo paid by the defendant in due course of administration, upon which no execution can be awarded.</p>

The defendants demurred upon the following grounds, to wit: “ Row come the said defendants, the Potosí Gold and Silver Mining Company, John H. Atchison, Lloyd Tevis, and James B. Haggin, by J. P. Hoge and E. D. Wheeler, their attorneys, and demur to the complaint as amended herein, upon the ground that it appears upon the face of the amended complaint: “ First—That the Court has no jurisdiction of the persons of the defendants. “ Second—That the Court has no jurisdiction of…

<p>Relative Rights pertaining to the Occupation of Public Land for Mining and for Cultivation.—Where it appeared that plaintiff had an inclosed garden and fruit orchard, together with his residence and outbuildings, also a dam situated a short distance above the inclosure, and across a ravine extending from above through his inclosure, with a small ditch leading therefrom to his garden and house, whereby he collected and conveyed, for culinary use and for irrigation, pure water, claimed by plaintiff to bo from a natural spring, arising in or near the bed of said ravine, above said dam—all of which were being used and enjoyed by plaintiff, for their several appropriate uses, and so continuously had been for over five years, and when defendants, (having mining claims situated on the hillside above plaintiff's premises,) by means of foreign water procured from ditches, washed the debris of their mine - down" into said ravine, at a point above said dam, and thereby filled up and rendered useless to plaintiff said dam and ditch, and by flooding with water and mud materially injured plaintiff's garden, fruit trees, and buildings, which injury, however, was not done maliciously or unnecessarily, but in the reasonable conduct of their said mining; and where said mining by defendants, and their right to mine in said claims and vicinity, dated back only three years j and where the premises of both plaintiff and defendants were part of the public lands of the United States : held, that the Court below erred in rendering judgment for defendants, in an action by plaintiff against them to recover said damage, and to enjoin, as working an irreparable injury to plaintiff, the continuance of said injurious acts.</p> <p>Idem.—In such case, the right of the defendants to mine in, and to use therefor the ravine, above the plaintiff's premises, must be exercised in such manner as not to damage the prior right of the plaintiff to inhabit and cultivate his premises, and to the use of his dam, as appurtenant thereto.</p>

Plaintiffs brought suit, in the District Court of Santa Cruz County, against Guadalupe Castro, Simeon Castro, Joaquin Castro, and fifty other defendants, in ejectment. The three defendants named were regularly served and in due time by Julius Lee, Esq., who had been employed for that special and limited purpose, filed a demurrer to the plaintiffs’ complaint.

<p>Appeal from the County Court, Sacramento County.</p> <p>The defendant moved for a new trial, and for grounds of motion, among others, assigned that the Court erred in refusing certain instructions to the jury, which were requested on his behalf, and to which refusal he, at the time, duly excepted.</p> <p>The instructions refused were as follows, to wit:</p> <p>“ The breaking and entering, to constitute a burglary, must be into a house, room, apartment, or tenement, or a tent, vessel, or water craft, usually used, or at any time used, as a sleeping place or residence for human beings, or wherein some person dwells, or persons dwell and lie in. If the jury find from the evidence, that the chicken house which the defendant is charged with having feloniously entered, was at any time used as a sleeping place or residence for human beings, or wherein some persons dwell, or persons dwell and lie in, and they also find that defendant feloniously entered with intent to commit grand or petit larceny, or any felony, they will find the defendant guilty as charged in the indictment. If they do not so find from the evidence, they will acquit the defendant.”</p> <p>The motion for a new trial was denied, and defendant appealed from the judgment and from the order of the Court helow denying said motion.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.</p> <p>This was an action to recover three thousand one hundred and twenty-eight dollars and seven cents, for a street assessment in the City of San Francisco, and to enforce a lien on defendant’s property as security for its payment.</p> <p>The complaint alleged a compliance with all the requirements of the laws regulating the improvement of streets in that city; and that after the contract had been duly let, the first contractor failed to perform the same, whereupon the Board of Supervisors immediately, and without repeating the statutory steps to acquire jurisdiction .in the premises, readvertised for bids, under which the contract was duly taken by plaintiff. The complaint claimed legal interest on said assessment from the time the same became due, and prayed that the judgment, to be recovered in said action, should bear said- interest from the time of its rendition.</p> <p>The defendant demurred to the complaint, on the ground that the facts therein stated did not constitute a cause of action, which was overruled, and defendant excepted. The defendant then answered over.</p> <p>On the trial, plaintiff had judgment, according to the prayer of his complaint. A motion for a new trial was made, on the grounds that the Court erred in overruling said demurrer, because it did not appear from plaintiff’s complaint that the Board of Supervisors had any power or jurisdiction to contract with plaintiff—under which contract plaintiff recovered said judgment; second, that the Court erred in rendering judgment for interest on said street assessment from the time the same became due; and, third, the Court erred in rendering judgment allowing interest on plaintiff’s said judgment. The motion was denied by the Court, and defendant appealed from said judgment and from the order denying said motion.</p>

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>The plaintiff brought this action under the two hundred and fifty-foxxrth section of the Practice Act, to quiet title to a part of what was called “ Strawberry Island,” in the City and County of San Francisco. The defendant Wood, in his answer, alleged prior possession in himself, continuing down into the year 1860, and prayed affirmative relief to the extent of being restored to the possession. The plaintiff recovered judgment in the Court below, and the defendant Wood appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

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

<p>Appeal from the District Court, Fifteenth Judicial District, County of Contra Costa.</p> <p>On the 24th day of October, 1855, the plaintiff recovered a judgment against the defendant in the District Court of Contra Costa County, for three hundred dollars and costs. On the 26th day of October, 1855, an execution was issued on the judgment, and on the 29th day of November following the Sheriff sold a tract of land by virtue of the execution, and the defendant became the purchaser and received a certificate of purchase. Ro redemption was made of the premises, and on the 25th day of August, 1863, the Sheriff executed and delivered to Allen a deed of the land. On the 24th day of August, 1865, this action was commenced to have a trust declared and to compel the defendant to convey to the plaintiff. The plaintiff recovered judgment in the Court below, and the defendant appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

The plaintiff and L. L. White were partners, engaged in farming and threshing grain. White died on the 22d day of August, 1864, and on the 13th day of September following letters of administration on his estate were issued to the defendant, V. H. White. On the 17th day of September following, the administrator published notice to creditors to present their claims within ten months.

In 1859 Dutton sued Warschauer in ejectment to recover possession of a lot in the City of San Francisco. At the time the action was commenced, Warschauer was in possession of the lot as the tenant of Joanna Wheelock, the plaintiff herein.

<p>Appeal from the District Court,. Tenth Judicial District, Sierra County.</p> <p>On the 11th day of August, 1864, the plaintiffs commenced an action against the defendants, in the District __ Court, to recover the sum of twenty thousand dollars, for an ’’ alleged trespass upon the plaintiffs’ mining claims in Sierra ^County. The Judge of the District Court, on the 11th day of- August, granted an injunction upon the complaint alone. Thé case was tried, and plaintiffs recovered judgment. This judgment was reversed by the Supreme Court. (See Hess v. Winder, 30 Cal. 349.) After this reversal, and on the 24th of November, 1866, the Judge, on motion of the defendants, modified the injunction so as to permit the defendants to work on a portion of the claim. Erom this order modifying the injunction, and from an order subsequently made, refusing to set aside the order modifying, the plaintiffs appealed.</p> <p>The order modifying the injunction was made on the pleadings and the opinion of the Supreme Court. N o one appeared on behalf of the plaintiffs to contest it.</p> <p>The following is the opinion of the District Judge on the motion to set aside the order modifying the injunction :</p> <p>“ The injunction was modified by an order made on the 24th day of November—no one appearing on behalf of plaintiffs to contest the motion.</p> <p>“ The plaintiffs now move, on affidavits, to set aside that order, and the defendants oppose the motion by counter affidavits. If the case were newly commenced and the application were for an injunction upon the pleadings and affidavits before me, I should grant the order, upon the ground that when there is reasonable ground for contest as to the ownership of mining property, the property should be preserved until the litigation is terminated.</p> <p>“ The case is not new, however; on the contrary, there has been a trial, and upon the showing made by the plaintiffs, the Supreme Court says they were not entitled to judgment.</p> <p>“ The defendants now insist, and, I think, rightly, that an injunction should not now be granted or continued, except upon a showing sufficient to have given the plaintiffs a new trial, if the verdict had been as the Supreme Court sayTj ought to have been.</p> <p>“ The motion is denied, and plaintiffs except.</p> <p>“ I, S. Belcher, District Juff</p> <p>“ December 15th, 1866.”</p>

<p>Voter’s Name must be on Poll List.—Under the Registry Act, a vote is illegal where the name of the elector is not on the poll list of the Election Precinct where the vote is cast on the day of the election.</p> <p>Idem.—Where a name had been entered on a precinct poll list, but at the - final sitting of the Board of Registration, as required by the twenty-fourth section of the Registry Act, had been erased by said Board : held, that the result was the same as if such name had never been on the poll list.</p> <p>Qualifications of Voters under Registry Act. — The questions arising for decision under the Registry Act by the Election Board, when a vote is proffered, are, first, Is the person offering to vote a qualified elector of the precinct where the vote is offered ? and, second, Is his name, at the time, on the Great Register and on the poll list ? Both questions must be answered in the affirmative by the Board, or the vote should be rejected.</p> <p>Counting Votes not Cast.—It was manifest error for the County Court, when trying a contested election case, to allow to one of the contestants votes not in fact received, although offered to and rejected by the Election Board ; and this, whether the proffered votes were properly or improperly rejected.</p> <p>Error without Prejudice.—The respondent has, in all cases, a right to show that the appellant was not prejudiced by the error complained of; and where the Court below rejected an equal number of votes cast for each contestant, upon a state of facts equally applicable to each voter, the error, if such it was, is rendered immaterial.</p> <p>Idem—Statement of Facts on Appeal in Contested Election Case.—On appeal from a judgment rendered in a contested election case, where the appellant assigns as error the improper rejection by the Court below of votes cast in his favor, and a statement is made part of the record on appeal, it is competent for the respondent, by way of amendment thereto, to incorporate in the statement the fact that other votes cast for him were likewise erroneously rejected by the Court below.</p> <p>Idem.—It is the policy of the law, that actions to contest elections should be summary, and to that end it is proper, in case of appeal, that the whole case should be taken to this Court for final decision, if possible.</p>

This was an action on a promissory note, of which the following is a copy, to wit: “ $450. San Francisco, December 9th, 1865. “ Sixty days after date, without grace, for value received, in gold coin of the United States of America, we promise to pay to the order of Jas.

<p>Interest on Street Assessments.—Street assessments in San Francisco are not contracts within the meaning of the statute in relation to interest, nor, by any statute, is interest allowable on street warrants issued for street improvements in that city.</p> <p>Action for Street Assessments.—In actions to recover assessments for street improvements, a strict compliance with the provisions of law authorizing them must be shown, to sustain a recovery.</p> <p>Publication of Notice of Street Improvements.—Where, under the statute, a notice of intention to make street improvements, etc., in San Francisco was required to be published daily, (Sundays excepted,) for ten days, in the newspaper having the contract for the city and county printing, which paper is required to be printed and circulated in said city ; and where such a notice was only printed in such paper for eight out of ten consecutive days, (the remaining two days not being Sundays,) but on said two days no issues were made by said paper : held, that the notice by publication was insufficient and void.</p> <p>Idem.—To constitute a publication in a city paper, it must appear that the paper is both published and circulated in the city—the former alone being insufficient.</p> <p>Idem.—Where such daily newspaper, having the contract for said city and county printing, issued daily two editions, to wit: a morning edition, which was circulated in said city and the country, and an evening edition, which was circulated in the country only : held, that the publication of notice of street improvement in the evening edition of said paper only, was insufficient and void.</p>

This was an action, commenced January 16th, 1865, on a judgment for eighty-five thousand dollars, with interest thereon at the rate of five per cent per month from the date of its rendition, July 18th, 1860. The cause was tried before the Court without a jury, on an agreed statement of facts.

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

This was an action to recover possession of certain two horses and their harness from defendant Griffith, who was Sheriff of El Dorado County, and had levied upon and taken said property from plaintiff under executions issued on judgments against plaintiff and in favor of defendants Hume and King.

<p>Appeal from the County Court, Santa Clara County.</p> <p>The defendant was indicted by the Grand Jury of Santa Clara County for the crime of an assault with a deadly weapon, with intent to commit upon the person of another a great bodily injury, where no considerable provocation appeared therefor—upon which indictment he was duly arraigned in said County Court, and to said charge pleaded not guilty. Thereafter, on his motion by his attorney, said Court, on the alleged ground of irregularities occurring in the empaneling of said Grand Jury, set aside and dismissed said indictment, and discharged said defendant without day, and discharged the sureties on his bail bond from further liabilities thereon. The people excepted, and appealed from said judgment and order to this Court on questions of law alone. The notice of appeal, after filing, was served by delivering a true copy thereof—one to the County Clerk of said county, one to the attorney of record of defendant, and one to said defendant.</p>

<p>Bills of Exceptions—In "What Oases Required, and by Whom Settled.— Errors occurring at the trial of a criminal case cannot be reviewed on appeal by this Court except on bill of exceptions, settled and signed by the Judge of the Court wherein the trial took place.</p> <p>Idem.—A bill of exceptions settled and signed by the District Attorney is unauthorized by law, and void.</p>

To the complaint of the plaintiff, filed in this cause, a demurrer was interposed by defendant on the ground that the facts therein stated did not constitute a cause of action. The demurrer was sustained by the Court below, and judgment final thereon entered for defendant, and plaintiff appealed therefrom to this Court. The other facts are sufficiently stated in the opinion of the Court.

This was an action to recover possession of personal property.

This was an election contest case, instituted, in the County Court to determine the title to the office of County Treasurer of Tuolumne County. Plaintiff had judgment, and defendant appealed. The other facts are stated in the opinion of the Court.

This was an action to recover possession of a portion of the Yerba Buena Rancho, in Santa Clara County. All the averments of the complaint were put in issue hy the answer. The cause was tried by the Court without a jury.

This was an action to recover personal property, consisting of drifted gold bearing earth, severed from a mining claim, and quicksilver, gold amalgam and blocks, etc., situated and being, at the time of the seizure by defendant, in a flume used in operating said mining claim.

<p>Beturn to Writ of Certiorari.—A writ of certiorari, issued out of this Court, was directed to the Board of Equalization of Placer County, to the end of determining whether, in the matter of the equalization of the assessment, for the purposes of taxation, for the year 1866, of certain of the property of the railroad company, the petitioner, the Board, when exercising judicial functions in said matter of equalization, had exceeded its jurisdiction ; and commanded the Board to certify up the said suit and proceedings, with all things touching the same, as fully and entirely as they remained before it, by whatever name the parties might have been called therein ; also, the orders, process, judgments, proceedings and evidence therein, annexed ; to which a return had been made by the Clerk of the Board, containing, according to the certificate of the Clerk, a full, true, and correct transcript of the said records and proceedings of and concerning the said suit and proceedings, with all things touching the same, as fully and entirely as the same remained before said Board : also, of all orders, process, judgments, proceedings, and evidence therein, and therein and thereto annexed, as fully as the same were and remained of record and on file in the office of the Board and of said Clerk of the Board—which return, however, did not contain any evidence received by said Board; whereupon, without any showing, other than said writ and return, the petitioner moved, in this Court, for a further writ, requiring the certifying up of the evidence adduced to and received by the Board, on which the said judgments and orders of equalization had been made. The said return disclosed that witnesses had been examined and evidence received from them by the Board, of and concerning the value of said property, and that its value was thereby proven to be of a sum stated greater than that for which it had been assessed, to which increased valuation it was equalized for said purpose : held, that said motion should be denied.</p> <p>Ipsar.—By the four hundred and fifty-eighth section of the Practice Act, it is required that when the writ of certiorari is directed to a tribunal, the Clerk, if there be one, shall return the writ with the transcript required. The Clerk can only return a transcript of such documents, orders, judgments, proceedings, etc., as remain of record, or on file in his office.</p> <p>Idesi.—The statute authorizing and prescribing the mode of equalization, does not require the taking down, or the preservation in any manner, of the evidence on which equalization may be made by either the Board or Clerk of the Board. Neither does the statute prescribing the mode of procedure in a writ of certiorari, require the inferior tribunal to prepare a statement of the evidence to be annexed to the return.</p>

<p>Appeal from the District Court, Fourth Judicial District, 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>

This was an action to quiet title to a tract of land situate in Alameda County, and to restrain a sale thereof. The facts are as follows, to wit: On the twentieth day of January, 1857, Horace Hawes commenced an action in the District Court of the Twelfth Judicial District, for the County of San Mateo, against Wm.

This was an action by the people of the State against defendant to recover the sum of eight thousand one hundred and sixty-four dollars and fifty cents, alleged to be due for taxes on certain personal property, levied in the City and County of San Francisco, for the fiscal years 1865-6 and 1866-7.

William E. Hamilton died intestate in the City and County of San Erancisco, State of California, on the 14th day of June, 1862, leaving estate therein.

<p>Certificate of Election to ex officio Office.—It is not essential to the right of entry on the discharge of the duties of an ex officio office, that the incumbent should receive a separate certificate of election thereto, or take therefor a separate oath of office, when not specially so required by the Act creating or regulating such office.</p> <p>Constitutional Power of Legislature.—The Legislature has the constitutional power by enactment to divest an officer of an ex officio office to which he had been elected and duly qualified, by a repeal of the law under which he became invested therewith, provided, where such office be created under the Constitution, such repeal does not in effect abolish such office.</p> <p>Idem.—In such case, however, this power does not extend to the transfer of an ex officio office which, under the Constitution, is required to be filled by election, to the incumbent of another office who has not been elected to such ex officio office.</p> <p>Idem.—The clause, to wit: “Assessors and Collectors of town, county, and State taxes shall be elected by the qualified electors of the district, county or town in which the property taxed for State, county or town purposes is situated,” contained in section thirteen of Article XI of the Constitution, is imperative and mandatory, and restricts the power of the Legislature to a particular mode of providing such Assessors and Collectors in the first instance, subject to such mode of filling vacancies which may be occasioned by the death, resignation, or other legal disability of the incumbent as the Constitution has, and statute law may provide.</p> <p>Idem.—The Legislature may by law devolve the office and duties of Tax Collector upon the incumbent of any other elective office, but such law must precede the election of such officer, and his election must be by the qualified electors of the Tax Collector's District.</p> <p>Idem—Act of April 2d, 1866, respecting Office of Tax Collector of San Joaquin County.—The Act entitled “An Act making the County Treasurer of San Joaquin County ex officio Tax Collector,” passed April 2d, 1866, was not designed to fill a vacancy in the office of Tax Collector, but it was to make the Treasurer, instead of the Sheriff, of San Joaquin County Tax Collector. In so far as the Act provides for the transfer of said office to take place before an election of such Treasurer occurs, it is unconstitutional and void.</p>

In this action plaintiff had judgment in the Court below. Defendants moved for a new trial upon grounds set forth in a settled statement on said motion, which motion was denied, and defendants appealed from the judgment and the order denying said motion. In this Court, respondent moved to strike out the statement on said motion from the record on appeal, on the ground that it was not filed in time. The other facts are stated in the opinion of the Court.

After the return of the Sheriff to the writ of restitution, issued on a judgment for plaintiff rendered in this action, showing that the plaintiff had been restored to the possession of every portion of the demanded premises, was filed, Mary Ann Cook, Michael Delany, and B. B. ¡Newman, moved in the Court below to set aside said return and to be reinstated in their possession of portions of the lands described in said judgment, the former (Mary Ann Cook) claiming to be the…

<p>“ Commerce ” includes the Transportation of Passengers.—The term “ Commerce,” as employed in section eight, Article I of the Constitution of the United States, is not limited to an exchange of commodities only, but includes, as well, “intercourse” with foreign nations, and between the States; and the term “ intercourse ” includes the transportation of passengers.</p> <p>Idem.—When the Congress, in the exercise of its constitutional right, has by its legislation established regulations of commerce with foreign nations, and among the several States, its authority is paramount and exclusive, and its enactments supersede all State legislation on those subjects. Whether the States could constitutionally exercise this power in the absence of congressional legislation, not decided.</p> <p>Idem.—In the case where the State has not the constitutional power, by means of direct legislation, to regulate tho intercourse of its citizens with foreign nations, and with the other States, it cannot accomplish by indirect methods what it is forbidden to do directly.</p> <p>Idem—Regulation of Commerce with Foreign ¡Nations, and Between the States, by Congress.—By the enactment of section two hundred and eighty-five of the United States Internal Revenue Act, (2 Brightley’s ¡Dig. 271,) the Act of August 30th, 1852, and tho Act of March 6fch, 1855, (10 U. S. Statutes at ¡Large, 61, 715,) Congress has undertaken to regulate the entire business of transporting passengers by sea.</p> <p>¡Nature and Objects of Act of Legislature passed May 14th, 1862, (Statutes 1862, p. 539).—The Act entitled “An Act to provide revenue for the support of the government of this State from a tax upon foreign and inland bills, passengers, insurance companies, and other matters,” passed May 14th, 1862, has no reference to the execution of the inspection laws of this State, and is not in the nature of a police regulation, but is a measure designed for revenue purposes only.</p> <p>Idem—Act Unconstitutional.—The stamps which, by the provisions of the Act, are required to bo purchased from the State, are to he regarded in no other light than as a tax on the contract for passage, to be paid by the passenger. This is a regulation of commerce, within the meaning of section eight, Article I of the Federal Constitution, and the Act is unconstitutional and void.</p>

This action was brought to recover the sum of twenty-seven hundred and seventy-one dollars, alleged to be due from the testator of the defendants to the plaintiff, on a liability accrued to the plaintiff against the “ Segregated Crown Point Mining Company,” a corporation of which said testator was a stockholder. Plaintiff had judgment, and defendants moved for a new trial, which was denied. The defendants appealed from the judgment and the order denying a new trial.

Ttiis was an action to recover the possession of one quarter section of land in San Joaquin County. The other facts are stated in the opinion of the Court.

This was an action to compel a conveyance by defendants to plaintiff of certain real property alleged to be held in trust for plaintiff.

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

This was an action brought by the Attorney General, in the name' of the People, against the defendant, the Police Judge of the City and County of San Francisco, for unlawfully intruding into the office of Police éommissioner of said city and county.

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

This'was an action to recover for alleged trespasses on a water ditch, and interference with its alleged water right, and to enjoin thé further continuance… Held: in its written opinion delivered on said motion, that the deed was void for want of a grantee named therein capable of taking, and based its order solely on said ground. The deed was not under seal and duly acknowledged. The plaintiffs appealed from the order granting a new trial. The other facts are stated in the

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

The trial was by the Court without a jury. It appeared, from a statement on this appeal, that plaintiff came into possession of a portion of the lands claimed by plaintiff, under a writ of restitution issued on a judgment in an action of ejectment by plaintiff against one Boss, which fact, together with the judgment roll in that action, was put in evidence by plaintiff on the trial of this cause, under appellants’ objection and exception for irrelevancy.

<p>Stale Demand—Administration.—The plaintiff was appointed administrator of the estate of P seventeen years after P.'s death, and shortly thereafter brought action against B. and others to recover possession of a lot in San Francisco, and alleged in his complaint that P. died seized and possessed of said lot; that in February, 1867, after appropriate proceedings therefor, plaintiff had been appointed administrator of the estate of P.; that by virtue of said appointment the plaintiff, on the 1st day of March, 1867, became, and from thenceforth was and still is, entitled to the possession of said lot; that whilst plaintiff was so seized and entitled to the possession, the defendants, B. and others, on the 2d day of March, 1867, wrongfully entered and expelled plaintiff therefrom, and have ever since wrongfully withheld the possession. The defendants demurred to the complaint on the ground, amongst others, that it did not state facts sufficient to constitute a cause of action, or to show that plaintiff is entitled to maintain the action. The demurrer was sustained and judgment passed for defendants. Held, first, that, considering the facts of the entry of defendants, without title, so late as March, 1867, and after plaintiff became administrator, as disclosed in the complaint, the cause of action declared on was not stale ; second, that there is no statute which limits the time within which letters of administration on the estates of deceased persons may be granted ; third, that in such a case no presumption of law arises that there had been a prior administration and that the estate had been closed; and fourth, that the demurrer was improperly sustained.</p>

The portion of the duplicate assessment roll, as amended, which was received in evidence at the trial under the objections of defendants for want of due authentication, and because the assessment therein contained purports to have been made by a person having no legal authority to make it, is as follows: The County Auditor proved that the dollar mark was by him prefixed to the figures in the columns headed “Value of land” and “Total value,” and that he added entire the…

<p>Jurisdiction of District Court—Equitable Action—Voluntary Appearance of Parties.—Pl.aintiff sued defendant in Justice's Court to recover eighty-five dollars and forty-one cents for a street assessment in San Francisco, and recovered a personal judgment for the amount claimed. Defendant appealed to the County Court, wherein plaintiff filed a written complaint in the usual form employed in such cases, except the prayer, which was for a personal judgment only. ° To this complaint defendant answered by a general traverse. The cause was then transferred to the District Court, wherein on the trial—at which defendant appeared without objection of any kind—plaintiff had judgment, by which it was adjudged that plaintiff have a lien on the lot of defendant to secure the amount found to be due, and ordering a sale of the lot in satisfaction of the debt; but there was no personal judgment. In the record brought up by defendant on an appeal from the judgment alone, there is an amended complaint entitled in the District Court which contains a prayer for judgment as rendered, but the transcript contains no evidence that this amended complaint was ever filed in that Court, or any Court, or that any answer thereto was ever filed, or that a default was entered for want of an answer. In this Court no motion was made to strike out this amended complaint or to correct the record. Held, first, that defendant is estopped from denying that said amended complaint was filed in the District Court—that the presumption is it was filed, but through some inadvertence of the Clerk it was not so indorsed, or that the indorsement has been accidentally omitted from the transcript : and second, that, as the relief demanded in the amended complaint and awarded by the judgment was equitable in character, and as the defendant voluntarily appeared and went to trial in the District Court, without objection either to its jurisdiction or to said amended complaint, the Court acquired lawful jurisdiction to render said judgment.</p>

The facts concerning this action are stated in the reports of this case in 21 Cal. 81, and 31 Cal. 461. The principal issue of fact at the trial was as to the character of the land in controversy—whether swamp and overflowed, or dry land.

The defendant is a corporation. The fourth instruction asked by the defendant to he given to the jury was refused by the Court on the ground “ that there was no proof before the Court of defendant’s rule on that subject.” The other facts are stated in the opinion of the Court.

/On the trial Thomas Wheeler, a witness for the People, testified to the larceny of a large number of his own sheep, which before had been herded together with the sheep alleged to have been stolen from Reynolds, the prosecutor, and all were found by him, Wheeler, after the larceny of his own, and after the alleged larceny of the prosecutor’s sheep, still together in the possession of the same parties.

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

This was an action for the seizure and conversion by the defendant, who at the time was Sheriff of the City and County of San Francisco, of certain goods from the possession of plaintiff, and to recover their value.

This was an action to restrain the further prosecution of a certain action by defendant Haley against plaintiff and others to recover certain lots in San Francisco, and to compel a conveyance thereof from the former to the latter. The action was tried before the Court without a jury. Plaintiff had judgment as prayed, and defendants moved for a new trial on the ground (among others) that the evidence was insufficient to justify the findings and decision of the Court.

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

The charging portion of plaintiff’s complaint was as follows : “ Plaintiff avers that on the 29th day of January, A. D. 1867, plaintiff was at the Town of Auburn, and was desirous of going thence to the Town of Colfax, on the line of defendant’s said road, and did then and there, to wit: at the Town of Auburn, in said County of Placer, enter upon and into the regular passenger train of defendant, then and their passing between said Auburn and said Colfax, intending and…

This was an action by plaintiff, who claimed to- be owner of and in the possession of certain mining claims, known as the Swindle Hill Claims, on Swindle Hill, near Yankee Jim’s, to determine an adverse claim thereto by defendants.

Plaintiffs had judgment against all the defendants, who moved for a new trial, which was denied by the Court below, and defendants Galland and Levensohn appealed from the judgment and the order denying a new trial. All the other facts of the case, not stated in the opinion of this Court on this appeal, are stated in the opinion rendered in this cause on a former appeal, and reported in 24 Cal. 100.

This was a proceeding, under the statute, by the contestant, as a qualified elector of Los Angeles County, to contest and set aside the election of defendant, at the general election held in 1867, to the office of District Attorney of said county.

Defendants justified under the levy of an attachment issued in the case of Besse v. Pinkham., in a Justice’s Court, the defendant in which action was the vendor to plaintiff of the property in question. Defendant Carr, acting as Special Constable, made the levy under the attachment. In the Court below, plaintiff had judgment for eight hundred and fourteen dollars, and costs.

<p>Bounty to Volunteers—Who Entitled to.—The volunteers, to be entitled to the bounty provided to be paid by this State, by the Act of April 4th, 1864, (Statutes 1863-4, p. 486,) must have enlisted not only under the laws of Congress requiring a quota of volunteers to be raised in this State, but also while such quota was being raised under the orders of the President.</p>

This was an action in equity to have a deed to lands, absolute upon its face, made to defendant Rogers by the plaintiff and his wife, declared to be a mortgage, to redeem therefrom and to compel a reconveyance. The defendants, by their answer, denied that the instrument was intended as a mortgage or as a security.

This was an action by the People to recover of the defendant certain taxes levied and assessed on its property for the fiscal year 1866. The defendant demurred to the complaint, and it was sustained by the Court below, and judgment passed for defendant. The People appealed. The other facts are stated in the opinion of the Court.

Under an alias execution issued on a judgment in favor of plaintiff and against defendant, rendered by the County Court of the City and County of San Francisco, in this cause, certain lots of the defendants were sold by the Sheriff to one Henry L. Nelson. Thereafter, upon motion of defendants, based on affidavit setting forth cause therefor, but without notice thereof to said Nelson—although notice was served on Gr.

The defendant was indicted for the crime of rape. The charging part of the indictment was as follows: “The said Peter Burke, on the 18th day of May, A. D. 1867, at the County of Mendocino, did have carnal knowledge of a female, named Elizabeth Harris, forcibly and against the will of the said Elizabeth Harris, contrary to the form of the statute,” etc. Defendant demurred, on the grounds, among others, that the indictment does not substantially conform to the requirements of…

The defendant was indicted for the murder of one S. M. Simpson, and on the trial was convicted of murder in the first degree. The defendant moved, before sentence, for a new trial, on the ground,' among others, that the Court by its instructions misdirected the jury; also, in arrest of judgment, on the ground, among others, that upon the verdict as rendered, no judgment of conviction can he lawfully rendered.

The plaintiff brought this action to compel the specific performance of an agreement for the conveyance of laud situate in Santa Clara County. The case was tried by the Court without a jury, in July, 1865, and was submitted on the twenty-sixth of that month. The Judge’s written decision in the cause was filed August 28th, 1866.

<p>Juror—Competency of.—Under the Jury Act, (Stats. 1863, p. 630, Sec. 1, Sub. 3,) a person otherwise qualified, is not a competent juror unless he has been “ assessed on the last assessment roll of his township or county, on real or personal property, or both, belonging to him, if a resident at the time of the assessment.” x</p> <p>Larceny of One's Own Goods—Instruction.—An instruction to the effect that if a man takes his own goods from the possession of his bailee, without the knowledge or consent of the latter, such taking was no larceny, was properly refused.</p> <p>Idem—In such case, the taking will be larceny or not, according to the intent with which the taking is accomplished. If done with intent to charge the bailee, it is larceny.</p>

This was an action upon a promissory note, made by defendant Hendricks, and indorsed by defendant Reed. The note and indorsement were in the following words : “$1,720. Pacheco, April 8, 1862. “ One day after date I promise to pay to the order of Alvin Ford seventeen hundred and twenty dollars, for value received, with interest at two per cent per month till paid. “W. T. Hendricks.” “I hereby waive demand, notice of non-payment and protest.

<p>Admiralty Jurisdiction.—A cause of action, to be cognizable in admiralty, whether- arising out of contract, claim, service or obligation, or liability of any kind, must relate to the business of commerce and navigation.</p> <p>Idem—Mode of Raising Issue on.—The only mode of raising issue on the jurisdiction of a State Court, on the ground that the cause of action pending therein belongs to maritime jurisdiction, is by presenting in the pleadings the essential facts showing such cause to relate to the business of commerce and navigation.</p> <p>Idem—Where the State is Plaintiff.—Whether a State Court would not hold its jurisdiction of an action brought in the name of the People and in aid of the public revenues of the State, even though the cause of action related to the business of commerce and navigation, suggested, but not decided.</p> <p>Power of Harbor Commissioners—Actions in rem.—The provisions of section two of the Act approved March 5th, 1864, (Stats. 1863-4, p. 139,) are sufficient to authorize the Harbor Commissioners of San Francisco to institute actions in rem, as provided in section three hundred and seventeen of the Practice Act, and generally to pursue all remedies that a private person could under the same circumstances.</p> <p>Idem—Wharfage, etc., Collectable in Gold and Silver Coin.—The provisions of section eleven of said Act, (Stats. 1863-4, p. 144,) which provide for the collection of “ all tolls, dockage, and wharfage charges Authorized and required to be-collected, shall be due and collectable exclusively in gold and silver money of the United States,” do not come within the provisions of the Specific Contract Act; but as charges upon property to raise money for public purposes, they do come within the principles laid down in Perry v. Washburn, 20 Cal. 350, and are valid.</p>

<p>Appeal from Probate Court—Notice of.—An appeal from any order, decree or judgment of a Probate Court, or from some specific part thereof, may be taken and perfected by filing with the Clerk of said Court a notice stating such appeal, and by executing an undertaking, or giving surety on such appeal in the manner and to the extent as upon an appeal from a District Court. The notice need not be served.</p> <p>Exception.—An exception is an objection taken at the trial to a decision upon a matter of law, made at any time from the calling of the cause for trial to the rendering of the verdict or decision. An exception simply to an order of the Probate Court appealed from, taken at the time it is made, is entitled to be considered on such appeal.</p> <p>Idem—The decision of a Court, when not rendered immediately after the close of the testimony, is, by operation of law, deemed to be excepted to on a motion for new trial, or an appeal. No express exception to a final decision is necessary for the purposes of a motion for new trial, or review on appeal.</p> <p>Idem—An exception must be taken upon a fact or facts not denied. The point of law to the decision of which an exception lies, does not arise until the facts are determined.</p> <p>New Trial of Issues framed in Probate Court, and Determined in District Court—Appeals from.—A now trial may be granted by the District Court of issues determined therein, which have been framed in a Probate Court, and an appeal from an order granting or refusing the same lies to the Supreme Court. Probate Courts are bound by the final determination of such issues in the District Court.</p> <p>District Courts Without Jurisdiction to try Issues framed in Probate Courts.—Since the adoption of the constitutional amendments of 1862, District Courts have no jurisdiction to try issues framed in Probate Courts. Section six of Article VI, as amended, deprived District Courts of said jurisdiction, as conferred by said section before amendment, and defined in section twenty of the Probate Act. Section eight of the same Article, as amended, vested this jurisdiction exclusively in Probate Courts.</p> <p>Idem—Since said constitutional amendments the provisions of section twenty of the Probate Act—conferring probate jurisdiction on District Courts—have become repugnant to the Constitution, and void.</p>