Volume 35 — California Reports

<p>Construction of Contract to receive and forward Freight.—By a written agreement, 0. agreed with P. to consign to P., at S., all his freight intended to be transported to IT. T. “during this Summer and Fall, amounting, it is now supposed, to about one thousand tons, and will deliver it to him from time to time in such quantities that at least twenty-five per cent of the whole freight shall be delivered to him during each and every month from the first day of July next.” P. agreed with 0. that he would receive at S., and transport to IT. T., at a price specified, all the freight that 0. should consign to him at S. before October 31st. Held, that 0. was bound by the contract to consign to P., at S., all his freight, regardless of its quantity, intended to be transported to IT. T. during the “Summer and Fall” specified, and in such proportions as to equal twenty-five per cent of the whole amount during each month from July to October, both inclusive.</p> <p>Contract, when not Changed by Subsequent Agreement.—Where a contract in writing was duly executed between 0., a corporation, and P., for the trans-portation of the freight of 0., and after part completion of the contract by P., the President and Secretary of 0. promised P. to allow him different and better terms of payment for its completion than the contract terms, but without any authority from 0. shown therefor, by which promise, however, P. was not prejudiced, or induced to vary from a strict fulfillment of the contract; Held, that thereby the terms of the contract were not affected, and that P., in an action against 0. for its fulfillment, could not recover except in accordance with its terms.</p>

This was an action to recover delinquent taxes due the City of Placerville. Judgment in the Court below passed for the defendants upon demui’rer to plaintiffs’ complaint. Plaintiffs appealed. The other facts are stated in the opinion of the Court.

<p>Evidence Concerning Hotel.—On the trial of the issue whether a certain house was, at a given date, a hotel, the publication by its proprietors of an advertisement to the public of the house as such, in the newspapers of the vicinage, at and before said date, is competent evidence to establish the public character of the house.</p> <p>Pleading—Averments of Answer, when deemed Controverted.—A pleading by a defendant in an action of replevin which admits the taking complained of, but justifies under legal process, and prays judgment for a restitution of the property replevined, or for its value, contains only matter of confession and avoidance, and under the fifty-sixth section of the Practice Act, is deemed controverted by plaintiff.</p> <p>Chattel Mortgage—When Good.—Where, on the trial of an action for the replevin of goods from a defendant who in answer admitted the taking, but justified under legal process against a third party, held and served by him as Sheriff, it was proved by plaintiff that he held an unsatisfied chattel mortgage of the goods, duly executed by said third party, for their purchase price, of which defendant had notice : Held, that upon this state of facts, and in the absence of any evidence tending to justify the taking of the goods by defendant, plaintiff was entitled to judgment for their recovery.</p>

<p>Appeal from the District Court, Tenth Judicial District, Yuba County.</p> <p>The trial of this cause was by the Court, without a jury. The pleadings on the part of the defendant, a corporation, consisted of the answer and a supplemental answer; the latter setting up as defenses the matters stated in the opinion of the Court, while the former put in issue all the averments of the complaint except that the defendant made claim of title to the disputed premises, and alleged that at the commencement of the action, and continuously thereafter, it had been in possession of the same.</p> <p>On the trial plaintiffs, for the purposes stated in the opinion of the Court, introduced in evidence, under the objections and exceptions of defendant on the ground of irrelevancy, incompetency, and that being secondary evidence, no foundation had been laid for its introduction, the contents of forty-six pages of a book kept in the office of the County Recorder of Yuba County, called “Pre-emption Book, No. 2,” which consisted of a record of the notices of location of divers quartz mining claims, among others, and the first of which in the order of record, was the notice of location of plaintiffs’ claims. It appeared that the record of plaintiffs’ notice, which was a true copy, was made from an original draft shown to be still in existence, but not produced or its absence accounted for.</p> <p>The evidence for the plaintiffs consisted, in part, of the depositions of John Richards and James Pearce, mentioned in the opinion of the Court, which were introduced in evidence under the objections and exceptions of defendant, on the grounds that they were not taken by questions and answers, and were not properly certified to. The facts concerning said depositions were as indicated in the opinion of the Court.</p> <p>The only specifications contained in appellant’s statement on motion for a new trial, as to the insufficiency of the evidence to support the findings, were the following :</p> <p>“ Seventh—That the Court erred in each and every of its findings of facts, as each, every, and all of them are contrary to the evidence, in that there is no evidence to support them.</p> <p>“Eighth—That each and every of the findings of the Court are unsupported by the pleadings, and are contrary to law.</p> <p>“Ninth—That the evidence is insufficient to support the findings.</p> <p>“ Tenth—That the findings are not responsive to the issues made by the pleadings, and are insufficient, defective, uncertain, and general.</p> <p>“ Eleventh—That the findings are contrary to the evidence, in that the evidence showed that the defendants were at the time of the commencement of the suit, and long before then, and ever since have been, the owners of and in the possession of the ground in dispute; and that the plaintiffs never had been and were not in possession of the same at the commencement of suit, and have not since been.</p> <p>“Twelfth—That findings are contrary to the evidence, in that the evidence was sufficient, and was uncontradicted, to support every allegation contained in the defendant’s supplemental answer.”</p> <p>The plaintiffs had judgment in the Court below, from which and from an order denying their motion for a new trial the defendant appealed.</p> <p>The other material facts are stated in the opinion of the Court.</p>

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

<p>Newly Discovered Evidence as a Ground for New Trial.—Newly discovered evidence, when cumulative merely, furnishes no ground for a new trial; at least unless it clearly appears that its production would have changed the result, and that the strictest diligence would not have enabled the moving party to procure the same at the trial.</p> <p>What Constitutes a Breach of a Covenant.—To entitle a party to recover the penalty of a bond given for the faithful performance of a covenant, in an action instituted for that purpose, it is not alone sufficient to show a technical breach of its literal terms, but upon a reasonable interpretation of the intent and meaning of the covenant, to be ascertained from all its terms, it must likewise appear that some substantial right, guarantied thereby, has been infringed, or some of its purposes defeated.</p>

<p>Appeal from the District Court, Tenth Judicial District, Colusa County.</p> <p>The defendant, who had been indicted by the grand jury of Colusa County for murder, was convicted of the crime of manslaughter. Before pleading to the indictment, the defendant moved to set it aside, because of divers alleged defects and irregularities in drawing and empanelling the grand jury by which it was found. It appeared on the hearing of the motion that in this case no record was preserved of certain of the statutory proceedings required to be taken in drawing grand jurors, but the proceedings taken, so far as shown, were regular and sufficient. Whether the said proceedings not shown were in fact taken correctly or taken at all, did not appear at said hearing. Ho showing was made at said hearing respecting the empanelling of said grand jury, except that the County Court excused therefrom (cause not stated) certain persons who had been drawn as grand jurors, and that certain other persons who had been summoned from the body of the county for the purpose of completing said grand jury, filled the places of those so excused.</p>

<p>What Constitutes Part of the res gestae.—Declarations which were voluntarily and spontaneously made, springing out of the principal transaction, and tending to explain it, and were made at a time so near to, although not precisely concurrent with it, as to preclude the idea of deliberate design, are to be regarded as contemporaneous with it, and are admissible in evidence as part of the res gestae. Declarations in extremis.—Declarations of the deceased concerning the circumstances attending the receipt of his fatal wounds, were made while realizing himself to be in a dying condition, although made early in the morning, and his death occurred at three o’clock P. si. of the same day: Held, that they were admissible in evidence against defendant, who was on trial charged with the murder of the deceased.</p> <p>Idem—Written Memoranda of the Same.—The fact that a written statement of the declarations made by the deceased in extremis was at the time verified by him, and introduced in evidence at the trial of the party thereby accused of the murder, furnishes no objection to the introduction of other and independent evidence of the same or similar declarations.</p>

<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>

District Court, Seventh Judicial District, Solano County. This was an action brought to recover one half of a quarter section of land in Solano County, alleged to be within the limits of a Mexican grant known as the Tolenas or Armijo Grant. The facts, as set forth in the opinion of the Court concerning the titles under which the parties respectively claimed, are established by the evidence contained in the appellants’ statement on motion for a new trial.

This was an action for a breach of promise of marriage, with damages laid at one hundred thousand dollars. The defendant’s answer consisted of a denial of the alleged promise, and a general charge of unchaste and immodest behavior on the part of plaintiff, and of specific charges of cohabitation by her with divers persons named, and among them witness B. B. Lincoln; of all which defendant alleged his ignorance until after the time of the alleged promise.

Original writ issued out of the Supreme Court, and heard at Chambers, before Sanderson, J. The facts are stated in the opinion.

This was an action by one of the several tenants in common against the others, for the partition among them of the Rancho Rinconada del Arroyo de San Francisquito, situated in Santa Clara County.

Original writ issued out of the Supreme Court, and heard at Chambers before Sanderson, J. The facts are stated in the opinion.

The defendant was indicted by the Grand Jury of Santa Clara County for the embezzlement of the moneys of the City of San José.

The charging part of the indictment was as follows: “ The said Francis Burgess, in the night time, at the hour of four o’clock A. m. of the 2d day of February, A. D. 1868, * * * did, at the County of Napa aforesaid, to wit: in the Town of Napa City, in the county and State aforesaid, feloniously and burglariously, with force and arms, enter the house of J. M. Nichols, * * * with intent to commit petit larceny, by burglariously and feloniously stealing, taking, and carrying…

This was an action by the plaintiff as an indorsee upon a certificate of deposit executed by the defendants, a copy of which is as follows: “ $750. No. 28,850. “Bank of D. 0. Mills & Co. “ Sacramento, Oct. 18, 1866. “ George Rosenbaum has deposited in this bank' fifteen hundred dollars, payable to himself or order, in United States gold coin, on return of this certificate properly indorsed. “D. 0. Mills & Co.” The complaint was in the usual form.

On the bill of items appended to the complaint was a credit “By cash $200,” dated April 24th, 1861. All the other items were on the debit side. The plaintiff recovered judgment for the whole account, and the defendant appealed. The other facts are stated in the opinion of the Court.

<p>Appeal from the County Court of San Joaquin County.</p> <p>In November, 1864, plaintiff, being in the possession of certain lands in San Joaquin County, leased the same to the defendant, against whom while in possession under the lease, to wit: December, 1865, W. H. Lyons commenced in the District Court for said county an action of ejectment for the recovery of said land, and in due course recovered judgment as prayed, and in January, 1866, under process issued on said judgment, was put in possession, which possession was held by him in the person of his agent, Edgar W. Parish, until the 13th of May, 1867.</p> <p>In August, 1866, plaintiff recovered judgment against defendant as his (plaintiff’s) tenant holding over, in the County Court of San Joaquin County in a “ Forcible Entry and Unlawful Detainer” action for the restitution of said lands; and on the said 13th day of May, under a writ issued for the enforcement of the judgment, the Sheriff of said county evicted Edgar W. Parish, the agent of said Lyons, and placed plaintiff in possession. Subsequently, on motion of said Lyons made • in this cause in the County Court, it was ordered that Edgar W. Parish, as agent of said Lyons, be restored to the possession of which he had been deprived by the Sheriff under the last described writ.</p> <p>Before this appeal was taken the form of said order in all essential respects was entered as an order by the Clerk in the records of the County Court founded on a memorandum placed on the files of this cause, written by the Judge of the Court, but not signed; hut said order was only made by the County Court subsequent to the perfection of this appeal by the plaintiff.</p> <p>The other facts dre stated in the opinion of this Court.</p>

<p>New Trial when Evidence is Conflicting.—An appellate Court will not set aside the finding of the Court below on account of insufficiency of the evidence to support it, when the evidence is substantially conflicting.</p> <p>Joint Liability in Ejectment.—If one of two defendants, with the knowledge and consent of the other, employs men to remove buildings and fences from land, turn out the occupants, and take possession, the acts performed and possession so acquired are as much the acts and possession of the one who assented to them in advance, and for whose benefit in part such possession was taken and held, as of the party who actually employed the men and directed the acts to be done.</p> <p>"When Erroneous Ruling not Prejudicial.—If the Court erroneously rules that certain evidence is admissible, the opposite party is not prejudiced thereby, unless the ruling is followed by the introduction of the objectionable testimony.</p> <p>When Error not Injurious.—A party' is not injured by a refusal to strike out exceptionable testimony, if the same party afterwards introduces the same testimony, or if counsel afterwards concede the facts stated in such testimony.</p> <p>Parties Plaintiff in Ejectment.—One tenant in common can recover possession of the entire premises, as against a mere trespasser, without joining his co-tenants as plaintiffs.</p>

This was an action brought by the plaintiff, who, during the years A. D. 1865 and 1866, was one of the four Collectors of taxes of Tuolumne County, to recover from the defendant an alleged unpaid balance of his salary as such officer for said years.

The defendant Durham appealed. Bird transferred two of the notes to Catharine Brady, and the plaintiff was the administrator of her estate. The other facts are stated in the opinion of the Court.

This action was brought to recover damages alleged to have been sustained by plaintiff by reason of sand and sediment washed on to a tract of six acres of land, in Bloomfield, Nevada County, on the northwest bank of Knap’s Creek. The complaint averred that the defendants had washed the sand, etc., out of the banks of Knap’s Creek above his land, and caused it to flow down upon his land.

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

The Pond Gold and Siver Mining Company was a corporation organized in this State, under the Act of 1853, “ to provide for the formation of corporations for certain purposes,” for the purpose of carrying on the business of mining at Aurora, in the State of Nevada. The capital stock of the company was six hundred thousand dollars, divided into twelve hundred shares of five hundred dollars each. The cause was tried by the Court, a jury having been waived.

The defendant appealed. The notice of appeal was served by one Pew, who acted as the agent of appellant and his attorneys. In this Court the respondent moved to dismiss the appeal, upon the ground (among others) that there was no proof of service of the notice of appeal. The other facts are stated in the opinion of the Court.

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

On the 31st day of July, 1860, Darwin D. Mann recovered a judgment in the District Court, Alameda County, against the defendants, Ward and Yesey, for five hundred and fifty dollars damages, and two hundred and sixty-six dollars costs. On the 30th day of March, 1864, Mann assigned the judgment to Thomas W. Mulford, and on the 26th day of Decernber, 1864, Mulforcl assigned it to the plaintiff Corwin.

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

<p>Application to the Supreme Court for writ of mandate to compel the County Judge of Calaveras County to reinstate a case in Court after he had dismissed the appeal.</p> <p>On the 7th of September, 1867, H. A. Hogden recovered a judgment against Lewis and others, in the Court of Wm. Hopkins, a Justice of the Peace, for one hundred and seventy-six dollars and fifty cents, and costs taxed at nineteen dollars and seventy-five cents. The defendants took proceedings to appeal to the County Court. The County Court, on motion of plaintiff’s attorney, dismissed the appeal. The ground on which the motion to dismiss was based was, that the appeal was taken upon questions of law alone, and there was no statement. Affidavits upon both sides were filed.</p> <p>The petitioner, Lewis, applied for a writ of mandate to compel the County Court to reinstate the case.</p>

<p>Common Property Liable for Wife’s Sole Debt.—In an action against the husband and wife, on a sole debt of the wife, contracted by her before marriage, a judgment may be rendered to be collected out of the common property of both husband and wife.</p>

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

The motion for a new trial was denied by the Court below, and the defendants appealed from the order denying the same, and from the judgment. The other facts are stated in the opinion of the Court.

The plaintiff, on the 6th day of March, 1866, recovered judgment against the defendant Gardner for the sum of three hundred and thirty-two dollars and thirty-six cents. A nonsuit was granted as to the other defendants. The defendant Gardner moved for a new trial and filed a statement, to which amendments were proposed by the plaintiff. The Judge settled the statement by allowing some of the amendments.

<p>Suit for Breach of Contract.—A. and B. enter into a contract, by which A. is to manufacture for B. a given amount of lumber by a given time, for which B. is to pay a fixed price per thousand, payable at the end of each month, and B.r without fault on A.’s part, refuses to pay for lumber sawed and received, and to receive any more lumber, and declares the contract at an end: Held, that A. may treat the contract as wholly broken by B., and sue to recover the contract price for the lumber delivered, and upon the breach to recover the entire damages resulting from the breach of the contract, without waiting for the time of performance to elapse.</p> <p>Rule of Damages for Breach of Contract.—When a party who contracts with another to make lumber for him, and to pay him a fixed sum therefor monthly, as the lumber is made, breaks the contract, without any fault on the other’s part, the rule of damages for the breach is the difference between the cost of making* the lumber and the contract price.</p> <p>Breach of Contract.—If one contracts to make merchantable lumber for another, and the other takes away unmerchantable lumber, contrary to the wish and orders of the maker, this is not a breach of the contract on the part of the manufacturer.</p> <p>Construction of Contract.—Where A. contracted with B. to make for him at his mill two million feet of lumber, and commence before July 20th, 1866, and make from fifty to eighty thousand feet per month, and to deliver on or before January 1st, 1867, at least three hundred thousand feet; and to commence on or before May 20th, 1867, and deliver from eighty to one hundred and fifty thousand feet per month, until one half of what is not delivered is sawed and delivered; and to commence on or before May 20th, 1868, and saw and deliver at least eighty and not to exceed one hundred and fifty thousand feet per month, until the two million feet was delivered: Held, that the true construction of the contract is, to deliver three hundred thousand feet before January 1st, 1867, at the rate of not less than fifty thousand feet per month; and to deliver not less than eighty thousand feet per month, commencing May 20th, 1867, and continuing until one half of the two million feet undelivered is delivered; and to further deliver at least eighty thousand feet per month, commencing May 20th, 1868, until all is delivered.</p> <p>Measure op Damages.—Where one of the parties to a contract, the performance of which extends through a length of time, refuses .to fulfill on his part, and declares the contract at an end, the other may sue for and recover as damages the profits he could have made by the fulfillment of the contract, without waiting for the time to expire.</p>

The Central Pacific Railroad Company of California, a corporation formed under the laws of this State, to construct a railroad from Sacramento, through the Counties of Nevada and Placer, to the eastern boundary of the State, filed its petition in the District Court of Sacramento County to acquire and appropriate, for the construction, operation, and maintenance of the track of their railroad, and for water stations, depots, machine and workshops, turntables, and other…

On the 21st of January, 1868, John Winter brought suit against John E. Fitzpatrick, in Justice’s Court, in the City and County of San Francisco, to recover judgment for the sum of two hundred and fifty-three dollars and thirty-five cents, balance on account for goods sold and delivered.

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

This was an action for assault and battery, without any averment of alia enormia, or any claim for injury to character. The alleged libel was published one day before the assault was committed. The defendant had judgment, and the plaintiff appealed.

Action to recover a tax assessed on the schooner William Ireland, in the County of Mendocino. The Court below found, as a conclusion of law, that the schooner “ William Ireland had no situs in Mendocino County, and was not subject to taxation there” at the time of the assessment. Whereupon judgment was entered for defendants. The People appealed. The other facts are stated in the opinion of the Court.

The transcript did not contain a judgment, hut contained the demurrers of four defendants and the order of the Court overruling the same. It also contained an order of the Court dismissing the cause as to three of the defendants, and an order setting aside the order of dismissal, and an order refusing to vacate this last order. There was a still further order appointing a referee.

<p>Contracts—When Valid.—A contract, to be obligatory on either party to it, must be mutual and reciprocal.</p> <p>Idem—Courts op Equity.—Courts of equity will not attempt to enforce vague and shadowy claims.</p> <p>Idem.—C. purchased certain lots, and borrowed the purchase money from M., to whom, as security for the loan, C. caused a deed, in form absolute, to be made by the seller, upon the agreement that when payment should be made of the money loaned, and interest, together with certain additional advances made to C. by M., the latter should convey the lots to C. To discharge this indebtedness C. negotiated a loan of C. I. Co. of a sum sufficient to liquidate M/s demands, and fifteen hundred dollars in addition, upon the agreements, which were fully executed, that C. should pay M. and receive from him the promised conveyance, and simultaneously execute a mortgage of the lots to C. I. Co., to secure said last loan. Subsequently C. I. Co. assigned an unpaid balance of its demand, together with said mortgage, to plaintiff, who brought suit to foreclose and make K. a party defendant, to whom C. being indebted at the time of said purchase, and by reason thereof had promised K. to buy for her a lot and thereon build a house which should become her property. While said lots stood in M.'s name, C. pointed out to K. one of them as the one intended, built a house thereon, and K. went into possession, and so continued until said suit. There never was, however, any accounting between C. and K. at any time, or any price agreed or fixed on said lot. Held, that this transaction created no equitable title in K. which could have been enforced in a Court of equity as against C., if the title had been in him, and is void as a defense to plaintiffs said action.</p>

The Court below dismissed the action, and the plaintiff appealed. The other facts are stated in the opinion of the Court.

Replevin to recover possession of thirteen hundred and sixty-three sacks of oats. Silas Hogle had rented a tract of land from James G. Denniston, in San Mateo County, and in April, 1863, had growing thereon over one hundred acres of oats. At the time last mentioned he executed to the plaintiffs, upon the growing crop, the mortgage mentioned in the opinion of the Court. The plaintiffs claimed to have taken possession of the crop, and harvested it.

<p>Homestead—When not Subject to Administration.—Under the provisions of section one hundred and twenty-one of the Probate Act, as amended in 1866, the widow, (where there are no minor children,) or a minor child or children of the deceased are entitled to have a homestead set apart by the Probate Court for her or their use, even though such homestead had not been occupied by the deceased, or selected and recorded as a homestead by him before his death. Such homestead, when thus set apart, is not subject to administration.</p>

<p>Judgment in Ejectment—Of what Conclusive.—A judgment for plaintiff in ejectment is not conclusive except as against defenses actually made, or legal defenses that might have been made on the trial, and does not preclude a defendant from asserting a title subsequently acquired.</p> <p>Idem—Of Restitution Under.—"Where a plaintiff has been restored, under a writ of restitution, to the possession of the demanded premises in an action of ejectment, the defendant so evicted is ever after estopped at law to deny that plaintiff was rightfully restored, and that his own prior possession was wrongful.</p> <p>Homestead—What Essential to.—The rule, as declared in Gregg v. BostwicJc, 33 Cal. 220, is affirmed.</p> <p>Idem.—A homestead right in lands cannot "be acquired by one who, at the time of declaring the same, is out of possession, and has never since had the possession; nor can such right be created and asserted by a wrongful possessor as against one who at the time of such creation was lawfully entitled to the possession.</p>

Nathan Wixom, and Betsy Eliza Wixom, Ms wife, on the 16th day of April, 1861, were residing on and made and filed a declaration of homestead on Lots One and Eight, in Block Twenty, in the City of San Bernardino, County of San Bernardino. Nathan Wixom afterwards died, and his wife, who was administratrix of the estate, petitioned the Probate Court, in 1867, to set aside the homestead to her use.

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

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

On the 27th day of March, 1862, Henry J. Isaacs died, leaving a will, by which he appointed the defendants executors of the same. In due time they entered upon the discharge of the duties of their trust. On the 18th day of December, 1866, the Probate Court made an order directing the executors to pay Mrs. Kate S. Isaacs the sum of five hundred and seventy-three dollars and sixty-four cents, in her own right and as guardian of the infant children of the testator.

The demanded premises are in the County of Contra Costa. The complaint averred that on the first day of August, 1860, the plaintiff was and still is seized in fee as owner and entitied to the possession, and that afterwards, on said day, defendants entered and excluded him from possession. The prayer was for judgment for possession of the entire tract of land.

January 31st, 1866, the plaintiff commenced an action against the defendants on the following promissory note: $2,600. Coloma, June 7th, 1862. On or before the first day of October next, the Coloma Canal Company promise to pay Samuel McConnell & Company the sum of two thousand six hundred dollars.

The plaintiffs were husband and wife, and complained that on the 3d day of October, 1866, the defendant assaulted and beat the wife, and restrained her of her liberty by arresting her and taking her to prison, for some alleged offense, in the City of San Francisco. Plaintiffs claimed five thousand dollars damages.

The following is that part of the contract between Davis and Kincaid which refers to the case at bar: “ Articles of agreement, made this 3d day of September, A. D. one thousand eight hundred and sixty-four, between Chas.

<p>Jurisdiction op Supreme Court.—The Supreme Court has no jurisdiction in criminal .cases except such as amount to a felony. It has, therefore, no jurisdiction of an appeal where the defendant was convicted of an assault, even if he was indicted for a higher offense, amounting to a felony.</p> <p>Idem.—The jurisdiction of the Supreme Court in criminal cases, on defendant’s appeal, is not to be determined by the offense charged in the indictment, but by the offense of which the defendant is convicted.</p> <p>Effect of Conviction in Criminal Case.—A defendant indicted for an offense is indicted for every offense of a lesser grade that may be included under it, and if convicted of one of the lessor offenses, cannot, if a new trial is granted, be again tried for a higher offense than that of which he was convicted.</p>

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

The plaintiffs were a firm engaged in the purchase of wool in San Francisco, under the name of Clark & Perkins. The defendant resided at Marysville, Yuba County. Said Gridley of the one part and Clark & Perkins of the other part, on the 1st day of April, 1865, entered into a contract in writing, by which the defendant was to purchase wool at Marysville and the country adjacent thereto, at the lowest obtainable prices, and ship the same to the plaintiffs at San Francisco.

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

On the 17th day of October, 1859, the plaintiff demised to the defendant, for the term of three years, a residence and tract of land on which the same was built, in the City of San Francisco, on the road leading from the Mission Dolores to the San Souci, receiving therefor a monthly rent of one hundred dollars, payable monthly, in advance. The defendant recovered judgment, and the plaintiff appealed. The other facts are stated in the opinion of the Court.

This was an action of ejectment to recover the possession of a piece of land in the Town of Santa Cruz, County of Santa Cruz. The suit was commenced in April, 1860. The plaintiff claimed that on the 1st day of February, i860,, he was seized of the land in fee simple absolute, and was entitled to the possession of the same. The defendants denied plaintiff’s title, and claimed that the land was a part of the public domain of the United States.

<p>Dissolution of Partnership.—Where one partner has the management of the partnership affairs, and. makes false entries in the books, and defrauds his co-partner of a portion of the partnership receipts, and retains the same to his own use, the partner thus defrauded is entitled to a dissolution of the partnership and an accounting, even if the partnership was by agreement to continue for a fixed term and the term has not expired.</p> <p>Idem.—If in such a case there has been an accounting between the partners, and the partner defrauded does not discover the fraud until after the accounting, he may sue for an accounting and dissolution, and on the trial may surcharge and falsify the account, without demanding a reaccounting prior to tho commencement of the action.</p> <p>Accounting between Partners.—Whenever a partner is entitled to a dissolution, the talcing of an account is necessary, and follows as a matter of course.</p>

Action to enforce a lien on a lot for macadamizing a street in San Francisco.

This action was brought on the following contract: “ This agreement, made the 22d day of April, A. D. 1867, between D. S. Lightner and W. Lightner, partners doing-business in the Town of Havilah, in the County of Kern, and State of California, under the firm name of Lightner & Lightner, with John Dunlap as their surety, of the first part, and William Menzel, of the same place, with Hammel & Denker as his surety, of the second part, witnesseth: That the said parties of the…

This was-an action of ejectment to recover a tract of land in the City and County of San Francisco. The several defendants made separate defenses to the action and by different attorneys. In the Court below judgment passed in favor of all the defendants. The plaintiffs moved for a new trial, which was refused, and thereupon appealed from both the judgment and the order denying a new trial.

The following is a copy of the indictment against the defendant, under which he was convicted, to wit: “ The said James Garnett is accused by the Grand Jury of the County of Sacramento, California, by this indictment, * * * of the crime of selling land twice, committed as follows : The said James Garnett, on the seventh day of April, A. D. eighteen hundred and sixty-eight, at the county and State aforesaid, did bargain and sell to one John Barrett those certain lots of land…

This was an action to set aside as fraudulent a conveyance made by defendant J. G-. Doll, of certain real and personal property in Tehama County to The Tehama County Stock Breeders’ Association, a corporation; to have the title of said property adjudged to be in the plaintiffs, who deraigned title thereto through a judicial sale and deed to them under a judgment rendered in their favor and against defendants J. Gr.

<p>Section Six (Chapter One) op Statute op Frauds.—The provisions of the sixth section (Chapter One) of the Statute of Frauds relate exclusively to corir tracts in respect to real estate.</p> <p>Idem.—A verbal agreement was made by J. and B., who were two of several] judgment creditors, with Bartram, an execution debtor, who owned a. large amount of real and personal property, then under execution levy, but still in Bartram's possession, the value of which exceeded the amount due on the exemptions by over one half, to take into their immediate possession, in their own names, and to purchase all of said property at the Sheriff's sale for the benefit of Bartram, and to advance their own money, if necessary for that purpose; and when they should have repaid themselves for said advances, with interest, together with the amount of their own judgment demands out of the rents, issues and profits of the property, and the sales of such portions of the personal property as could he advantageously sold by them, to reconvey the portions of the property unsold to Bartram: Held, that so far as the agreement contemplated the payment by J. and B. to he made from the proceeds of Bartram's property, there was raised a resulting trust in favor of Bartram, and it was, therefore, not within the Statute of Frauds; and so far as the agreement contemplated the payment by J. and B. to be made from money to be advanced by J. and B., it was equivalent to a loan of the money and a taking of the title as a security for its repayment, under such circumstances as would amount to a fraud upon Bartram if J. and B. should afterwards he allowed to repudiate the agreement, and was, therefore, not within the statute.</p> <p>Idem.—To allow!, and B. under such cirucmstanccs to evado their promise, would be to enable them to i>ractice a fraud upon Bartram, and convert a statute designed to prevent frauds into a shield for their protection.</p> <p>Idem.—If in such case !. and B. acted from the outset in had faith, and entered into said agreement with the intent and for the- purpose of defrauding Bartram, by betraying him into a false confidence, and thus to get possession of his property, such fraud on their part would, of itself, take the ease out of the operation of the Statute of Frauds.</p>

<p>What Constitutes a Public Street in San Francisco.—Under an Act of 1862, rclating to the City of San Francisco, (Stats. 1862, 393, Sec. 1,) the mere dedication of land by the owner to public use, as public streets, lanes, alleys, or other public places, converts it into public streets, lanes, alleys or other public places, for the purposes of said Act, without any formal acceptance of the same as such by the Board of Supervisors, who may thereafter improve them in the manner provided by law, although until this is done there may not be any obligation to keep them in a safe or passable condition for public use.</p> <p>What may be Dedicated as a Public Street.—A street or court, which is a mere cul de sac, may be dedicated to public use in like manner as a thoroughfare. What Constitutes a Dedication op Land by the Owner to Public Use as a Street.—M., who was the owner of the middle one of three adjoining one hundred vara lots, which filled the space between Second and Third streets, in the City of San Francisco, offered it for sale, and sold portions of it at public auction in parcels or subdivided lots, each having a width of twenty-five feet, and fronting on either side on an extension of Perry street, which at that time, so far as actually opened, was but a cul de sac, extending at a right angle from Third street midway through the adjoining one hundred vara lot lying on Third street, and terminating at M/s said lot. But at said sale M. had represented on a large map, by which the sale was made, said subdivided lots as each fronting on an extension of Perry street, made midway through her said lot, and terminating at the other adjoining one hundred vara lot lying oh Second street. The sales were made to the highest bidder, and were absolute. Sold, that in law this constituted •a dedication by M. of that portion of her lot which was represented on said map as an extension of Perry street to public use as a street, and as such, was thereafter subject to the jurisdiction of the Board of Supervisors for all purposes of its improvement, which when made operates as a complete acceptance of the dedication, and perfects the right of the public to its use as a public highway for all purposes.</p>

<p>Purpose of the Statute against Forgeries.—The purpose of the statute against forgeries is to protect society against the fabrication, falsification, and the uttering, publishing, and passing of forged instruments, which, if genuine, would establish or defeat some claim, impose some duty, create some liability, or work some prejudice to another in his rights of person or property.</p> <p>Idem—Requisites of Indictment for.—To constitute forgery, the forged instrument must be one which, if genuine, may injure another; and it must appear from the indictment charging the offense that such is its legal character, either from its recital or description of the instrument itself; or, if that does not show it to be so, then by the averment of matter aliunde which will show it to be of that character.</p> <p>Idem.—An indictment against T. for forging and uttering an instrument in writing with intent to defraud J. and 0., merely recited the instrument charged to have been forged, without alleging any facts aliunde adding to its face—which instrument, from aught appearing on its face, was a nudxim pactum: Held, that a demurrer to the indictment, on the ground that it did not state facts sufficient to constitute a cause of action, was well taken.</p> <p>Indictment—Disjunctive and Conjunctive Averments.—Where the statute enumerates several acts disjunctively, which, separately or together, shall constitute the offense, the indictment, if it charges more than one of them, which it may do, and in the same count, should do so in the conjunctive; and the indictment will be held bad on demurrer when such acts are stated in the disjunctive. But this rule has no application where the words used disjunctively in the statute are synonymous.</p>

<p>Appeal from the Probate Court of Los Angeles County.</p> <p>This is an appeal by William T. Tomlinson, Sarah A. Griffith, James Tomlinson, and Henrietta Smith, the heirs at law of J. J. Tomlinson, deceased, and who contested the probate of the last will and testament of deceased.</p> <p>The other facts are stated in the opinion of the Court.</p>

This was an action to recover a street assessment of the defendant who was a lot owner on Clay and Leavenworth streets, in the City and County of San Francisco. The plaintiff sued as the assignee of one M. W. Griffin, who was the contractor by whom the street improvements in question were made. The complaint was in the usual form, and the answer of the defendant was a general denial.

This was an action to recover a portion of the One Hundred Vara Lot Thirteen, in the City and County of San Francisco.

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

<p>Appointment of Referees in Actions for Partition.—The appointment of referees in actions for partition is governed by the general provisions of the Practice Act, and can only be made upon the agreement of all the parties, except in cases falling within the provisions of section one hundred and eighty-three of the Act.</p> <p>Idem.—It is erroneous" for the Court to order a reference for the purpose of trying all the issues in an action for partition, in which there is a party whose name is unknown, and whose consent cannot, therefore, be procured; and all proceedings thereon must fall.</p> <p>Power of Court over its own Proceedings. — The rule that a Court has no power over its own judgments upon the expiration of the term has no application, except to final judgments—nor while the proceedings are in. fieri.</p> <p>Idem, in Actions for Partition.—The order of a Court for a partition of lands, or for a sale in case a partition cannot properly be made, is not a final judgment in an action for partition. They are to be succeeded by a judgment confirming the partition or sale.</p> <p>Presumption in Favor of Decision of Court below.—In the absence of a contrary showing it will be presumed, on appeal, that the Court below proceeded regularly, and that its decisions were correct. "Where the record on appeal did not contain the whole judgment roll, and the absent portions were not presented in a bill of exceptions or statement on appeal, no questions arising on matters contained in such absent portions can be made on appeal.</p> <p>Order Vacating an Order of Reference not Appealable.—An order made by the District Court vacating a former order of reference and the subsequent" proceedings had under it, is not appealable.</p>

<p>Appeal from the County Court of Nevada County.</p> <p>The defendant was indicted, tried, and convicted for the crime of rape, alleged to have been committed upon the person of one Ellen Dorsey. The defendant demurred to the indictment, upon the ground, among others, that it charged two offenses. The demurrer "was overruled, and defendant excepted. The defendant moved in the Court below for a new trial, which was denied, and thereupon appealed from the judgment and the order denying a new trial.</p> <p>The other facts are stated in the opinion of the Court.</p>

This was an action for the recovery of a small tract of land in Alameda County. The trial was by the Court without a jury and upon certain findings of fact filed; judgment passed for the defendants. Both parties deraigned title from Ignacio Peralta—the plaintiffs claiming under a deed made to them subsequently to that under which defendants deraigned title, to wit: the deed to Maria A. Toler.

Defendants George Steele, R. B. Turner, Anita Bojorques, and nineteen others, appeal. The other facts are sufficiently stated in the opinion of the Court.

This was an action of replevin. Judgment passed for the defendants, G. Gagliardo and A. Gagliardo, in the Court below, and the plaintiff appealed, and assigned for error that the Court erred in denying his application for a continuance. The other facts are stated in the opinion of the Court.

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

This was a proceeding instituted by the plaintiff in said Court under the provisions of the Act of the Legislature, entitled “An Act to provide for the incorporation of railroad companies, and the management of the affairs thereof,” etc., approved May 20th, 1861, to condemn certain lands of the defendants—forty-four in number—to secure the right of way through the same for the plaintiff’s line of railroad.

In this action the plaintiff sought the mandate of the Court to compel the defendant to levy and cause to be collected, in pursuance of the provisions of the Act entitled “An Act to authorize and provide for the payment by the County of Amador to the County of Calaveras or its assigns of interest on certain indebtedness due from the County of Amador to the County of Calaveras,” approved March 31st, 1866, (Stats. 1865-6, p. 471,) a tax to create a fund sufficient to pay the…

This was an action of ejectment, brought by plaintiff as the administrator of the estate of William D. Bell, deceased, to recover the possession of a tract of land in Amador County, and was commenced November 8th, 1866. In the Court below judgment passed for the defendant, and the plaintiff moved for a new trial, upon the ground, among others, that the Court erred in refusing to give to the jury certain instructions mentioned in the opinion of this Court.

This was an action of ejectment to recover a tract of land in Sonoma County.

This was an action of ejectment for the possession of an . eighth undivided interest in a mining claim and quartz mill situated in Mariposa County. , The complaint was in the usual form, and the answer traversed all of its material averments.

This was a proceeding to obtain a peremptory writ of mandate against the defendant, as Secretary of the Kern River Gold and Silver Mining Company, commanding him to transfer to J. R. Mead, the relator, upon the books of the .company, thirty shares of the capital stock thereof.

This was an action upon nine promissory notes made jointly by defendants to plaintiff, dated June 1st, 1865. The complaint was in the usual form.

This was an action to procure the mandate-of the Court below to compel the defendant, who was the Auditor of El Dorado County, to issue an order on the County Treasurer for the amount of the plaintiff’s account, which had been first allowed by the Board of Supervisors, then rejected by the defendant as Auditor, and thereafter allowed again by the unanimous vote of the Board. The defendant thereupon again refused to issue said order.

<p>Indictment—Sufficiency of.—If the language employed in the charging part of an indictment be capable of two interpretations without doing violence to its terms, only one of which imports a charge of larceny, the indictment is bad.</p> <p>Idem.—An indictment should state facts which, if true, would necessarily import that the crime imputed to the defendant had been committed.</p> <p>Idem.—An indictment against W. charged that he "did unlawfully and feloniously take, steal, and carry away from the mining claim of the B. M. Co. * * fifty two pounds of gold-bearing quartz rock, the personal property of said B. M. Co., of the value of four hundred dollars,” under which W. having been convicted of grand larceny, the Court below arrested the judgment, on the ground that the indictment did not charge the commission of a felony, and was insufficient; Held, that the judgment was properly arrested.</p> <p>Trespass on Real Property not Indictable.—In consequence of the stable and permanent nature of real estate, the rule of the common law which is in force in this State is, that an injury to it is not indictable—and, therefore, to steal anything adhering to the soil is not larceny.</p> <p>Idem.—The soundness of the rule, upon principle and considerations of policy, is questioned, and remedial legislation suggested.</p>

<p>Appeal from the District Court, Second Judicial District, Tehama County.</p> <p>This was an action to recover delinquent taxes. The Court below found as a fact that the property upon which the delinquent tax was assessed was a growing crop, and found, as a conclusion of law, that such property was exempt from taxation.</p> <p>Judgment passed for the defendant, and the People appealed.</p>

The plaintiff’s land is situated in Placer County. The portion of the defendant’s answer which set up fraud in the procurement of the plaintiff’s patent, and other affirmative matter, in defense to the action, was as follows: “Defendant avers that if said plaintiff' or her predecessors in interest ever had or now have such patent for such last named land, or any of them, that the same has been, by plaintiff and her predecessors, procured and obtained by fraud in this way: By…

This was an action on an account for goods alleged to have been sold and delivered to the defendant. The answer was a general denial.

<p>In the Supreme Court of the State of California.</p> <p>This was a proceeding instituted in this Court to review and set aside as void a certain order made by the respondent as Judge of the District Court of the Seventh Judicial District in and for Mendocino County.</p> <p>It appears from the petition of the petitioner and return to the writ of review, that on and prior to the 20th day of July, 1866, there was pending in the District Court of said Judicial District in and for Sonoma County, an action commenced by Susan Bennett against petitioner for a decree of divorce from the bonds of matrimony then subsisting between said Susan Bennett and petitioner, in which action the petitioner had appeared and answered the complaint filed therein. That prior to said date the respondent had caused a citation to be issued to the petitioner to appear and show cause before him, in the City of Ukiah, in Mendocino County, why Susan Bennett, the plaintiff in said action, should not be allowed the sum of two thousand five hundred dollars out of the estate of the petitioner, for the prosecution of said action and for the maintenance of her and her children; also, to show cause why she should not have the care and custody of said children. That on said day the respondent caused to be entered on the records of said District Court, in and for Mendocino County, the order following, to wit:</p> <p>State oe California, \</p> <p>County of Mendocino, j</p> <p> In the District Court of the Seventh Judicial District. </p> <p>Regular Term.—Friday, July 20th, 1866. Court met, pursuant to adjournment. Present—Hon. J. B. Southard, District Judge; Thomas H. Bond, District Attorney; Lew. M. Warden, Sheriff; James Anderson, Clerk.</p> <p>Susan Bennett, ] v. V</p> <p>Saneord Bennett. J</p> <p> Order for Alimony and Custody of Children. </p> <p>An order to show cause why Susan Bennett should not have the care and custody of her two infant children; also, asking for a maintenance for herself and her two children, and costs of litigating this suit for divorce in case of Susan Bennett v. Sanford Bennett.</p> <p>The case being called up for hearing, L. A. Horton, Esq., appearing for plaintiff, and Messrs. Spurr & Thomas for the defendant, after a full hearing of the case by the Court, both by affidavit and witnesses examined on part of plaintiff and defendant, and. after argument of counsel:</p> <p>It is ordered and decreed by the Court that Susan Bennett, plaintiff, have the charge and custody of her two infant children; and that said Sanford Bennett, defendant, pay, within ten days from the date of this order, to the said Susan Bennett, for the purposes above named, one thousand dollars in legal money of the United States.</p> <p>It is further ordered that the said Sanford Bennett, defendant, deliver to the said Susan Bennett the aforesaid infant children, until the further order of this Court, on demand of the said Susan Bennett, and on serving a copy of this order.</p> <p>It is further ordered by the Court that a certified copy of this order, together with all papers filed in this Court, be transferred to and filed in the office of the Clerk of Sonoma County.</p> <p>J. B. Southard, District Judge.</p>

L. T. Burton was the creditor of the estate of Nicholas A. Den, deceased, mentioned in the opinion of the Court, and he appealed. The other facts are stated in the opinion of the Court.

Judgment passed for the plaintiff in the Court below, and the defendant appealed. The other facts are sufficiently stated in the opinion of the Court.

The plaintiffs brought an action against the defendant, in the Fourth District Court, (subsequently transferred for trial to the Fifth District Court for San Joaquin County,) to recover the sum of thirty thousand dollars received by him as their agent at Stockton, and converted by him to his own use. Thereafter judgment passed for the plaintiffs for said demanded sum, and costs of suit.

■ Appeal from the District Court, Fourth Judicial District, City and County of San Francisco. This was an action to recover a street assessment for laying down the Bicolson pavement in Powell street, in the City and County of San Francisco.

The plaintiff, in 1867, recovered judgment, in the Court of William H. Bell, a Justice of the Peace in and for said city and county, against one Richard Merriman, for the sum of eighty dollars, with interest and costs.

This was an action brought to set aside certain conveyances ás fraudulent, and to place the plaintiff in possession of certain portions of the lands so conveyed and remaining in the hands of the grantees unsold, and for an account of all sales, and a decree for the payment to the plaintiff of her share of the proceeds.