Volume 36 — California Reports

<p>Power of Husband oyer Homestead.—The husband cannot, by his act alone, affect the rights of the wife in the homestead, after the homestead right has once attached by the act of either.</p> <p>Idem.—The husband cannot, by his act alone, extend the time for commencing an action under the Statute of Limitations, upon a note and mortgage given in due form, so as to prolong a lien upon the homestead.</p> <p>Idem.—The execution of a new note and mortgage, by the husband alone, in place of a prior one given on the homestead before the declaration of homestead was filed, does not continue the old mortgage in life, as to the homestead interest, beyond the time when it would otherwise be barred by the Statute of Limitations.</p> <p>Homestead a Joint Estate.—By the provisions of the Homestead Act, there is a joint estate in the homestead vested in the husband and wife, which can only be divested by the concurrent act of both, in the manner provided by law.</p> <p>Fraud of Husband,—The rights of the wife in the homestead cannot be prejudiced by the fraudulent acts of the husband, in which she did not participate.</p> <p>Homestead a Joint Tenancy.—In the homestead estate most of the unities of a joint tenancy are to be found. The main difference between a homestead tenancy and a joint tenancy at common law is, the want of power in one of the parties in the case of the homestead to sever the tenancy.</p>

This was an action to recover a debt contracted by the defendant prior to the 13th day of July, 1865, to which the defendant pleaded his discharge from all his debts contracted prior to said date, under the Act for the relief of insolvent debtors and protection of creditors, and at the trial offered the record thereof in evidence.

The complaint was as follows: “Plaintiff complains of defendant, and for cause of action alleges that on the 21st day of September, 1865, he, this plaintiff, was the owner, seized in fee simple, of all that certain tract or parcel of land situated in the County of Sonoma, State of California, being a portion of the allotment Number Five (5) of the Rancho Roblar de la Miseria, bounded and described ás follows, to wit:” Here followed a description of the land. “Plaintiff…

<p>Injunction to Restrain Tax Sale.—A Court will not restrain a sale for taxes when it is apparent upon the face of the proceedings upon which the purchaser must roly to make out a prima, facie case to enable him to recover under the sale, that the sale would be void.</p> <p>Adding Five per Cent to an Assessment.—The Tax Collector of the City and County of San Francisco has no authority to add íivo per cent to an assessment for widening Kearny street, on failure of the owner to pay the assessment when duo.</p> <p>Void Tax Sale.—Property sold for taxes must at the time of sale be liable for the • entire amount of tax for which it is sold, or the sale will he void.</p> <p>Tax Deed as Evidence op Title,—A deed executed under a sale made for the non-payment of an assessment for widening Kearny street, in San Francisco, without other evidence, is not prima facie evidence of title.</p> <p>Evidence to Recover under Tax Sale.—A purchaser under a tax sale for widening Kearny street, in San Francisco, in order to recover the land, must .introduce in evidence, not only his deed, but the assessment, and must show the regularity of all the proceedings.</p>

On the 27th day of May, 1868, Robert C. Beatie petitioned he Probate Court of Sierra County to admit to probate the instrument hereafter mentioned, as the last will and testament of H. F. Wood, deceased. Alfred Wood, a brother oí deceased, filed his written objections to the probate of the will.

<p>Jurisdiction to Improve Street in San Francisco.—The Board of Supervisors of the City and County of San Francisco acquire jurisdiction of the subject matter of improving a street in the City of San Francisco after the expiration of the notice of intention to improve.</p> <p>Assessment por Street Improvement in San Francisco.—If, at the time the Board of Supervisors of San Francisco acquire jurisdiction to improve a street, and when the contract is entered into, any part of the land fronting on the street to be improved constitutes one lot, the contractor is entitled to have the cost of the improvement made opposite the lot assessed on the whole of the same, in one assessment; and no subsequent change in cutting up the lot by selling parts of the same can defeat that right.</p> <p>Liability of Lot for Street Improvement.—The jurisdiction of the Board of Supervisors of San Francisco to improve a street and render a lot fronting on the same liable for an assessment for the cost of such improvement, when it once attaches, extends to the whole lot through all the subsequent proceedings, although it may afterwards, and before the 'assessment is made, be divided by sales to different parties.</p> <p>Líen of Contractor on Lot for Improvements.—If, at the time a contract in San Francisco is regularly let to improve a street, a lot fronting on the same is owned as one lot, the owner cannot, by selling a part of it before the assessment is made, prevent the whole of it from being assessed as one lot to pay the cost; and cannot, by such sale, prevent the contractor from having a lien on the whole lot for such assessment, even if the part sold extends along the entire front next to the street. Such lien attaches to the whole lot, into whosesoever hands it may go.</p>

. On the 10th day of August, 1868, the plaintiff—the Roman Catholic Archbishop of San Francisco—of the first part, entered into a contract in writing with the defendants, by which he agreed to sell them the lot of ground in dispute for the sum of five thousand dollars, and to make a good and sufficient conveyance thereof, assuring to them the fee simple, free from all incumbrance; and the defendants, in consideration thereof, agreed to pay him, on the 13th day of August,…

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

The defendants demurred to the complaint. The Court overruled over the demurrer, and the defendants declining to answer, judgment by default passed against them. From this judgment the defendants appealed. The other facts are stated in the opinion of the Court.

<p>Appeal from the District Court, Fourteenth Judicial District, ¡Nevada County.</p> <p>The defendant appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

The plaintiff, in his original complaint, deraigned title to his grantor, John A. Sutter, to a lot of land, consisting of one undivided hundred varas square, in the City of San Francisco, through a grant made by Edwin Bryant, the Alcalde of San Francisco, on the 1st day of February, 1847. On motion of Horace Hastings, the City Attorney, this part of the complaint was stricken out, as irrelevant and redundant.

The complaint averred that Domingo Emanuelli, on the 7th day of February, 1856, intermarried with Josefa Carpena, and under the name of Josefa Carpena de Emanuelli; and on the 24th day of February, 1859, and while they were husband and wife, purchased from one Valencia a tract of land, for which he paid one thousand nine hundred dollars; that the consideration money was the separate property of the husband, Domingo, hut the deed was taken in the name, of his wife, Josefa;…

This was an action of ejectment to recover possession of seven and' one third acres of land in Solano County, being part of a grant of land made by the' Mexican Government to Juan Fillippe Peña and Manuel Cabeza Vaca, and subsequently confirmed and patented to them by the United States. The complaint was in the usual form, and the only pleading on the part of the defendants was the answer, which only put in issue the material averments of the complaint.

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

<p>Abatement op Action.—In an action to recover land, an answer of another action pending for the same cause must show that the same title, the same injury, and the same subject matter are in controversy in both actions.</p> <p>Answer in Abatement.—Answers in abatement of an action are to be strictly construed.</p> <p>Judgment on Issue in Abatement.—If an answer in abatement is found true, the judgment should not be in bar, but that the suit, abate.</p>

This was an action of ejectment to recover a tract of land at the Mission Dolores, in the City and County of San Francisco. The original answer was a general denial of the allegations of the complaint; also set up a tax title in Isaac 1ST. Thorne, as an outstanding title.

<p>Writ of Possession—Execution of.—Prima facie all who come into possession of the land, pending the action to recover possession, must go out under the writ of possession, if the plaintiff recovers, for the presumption is that they came in under the defendant.</p> <p>Who Must go Out on Service of Writ of Possession.—If the defendant, pending an action against him to recover possession of land, colludes with another person to obtain judgment against him for possession, and to be placed in possession by a writ of restitution, such other person must go out under a writ of pos* session against the defendant. He will not be protected by his judgment, if it was collusivcly obtained</p>

<p>Findings of Fact on Appeal—When Evidhnce is Conficting—Credibility of Witnesses.—The application of the rule that findings of fact will not bo disturbed on appeal when there is a manifest conflict in the evidence, depends in no measure upon the question whether any of the witnesses are interested in the event of the suit. The credit to be given to their testimony, however attacked, must be determined in the Court below.</p> <p>Conditional Sale of Personal Property—Title.—Where on sale of personal property “the right to receive payment before delivery is waived by the seller, and immediate possession is given to the purchaser, and yet by express agreement the title is to remain in the seller until the payment of the price upon a fixed day, such payment is strictly a condition precedent, and until performance the right of property is not vested in the purchaser.”*</p> <p>Idem—Eights of Second Vendee.—It is a general rule, applicable alike to conditional and absolute sales, that a second vendee is not entitled to stand in any better situation than his vendor in regard to the title of personal property, other than negotiable instruments, and whatever comes under the general denomination of currency. Whether a further exception to the rule exists in favor of bona fide purchasers from the purchaser at a conditional sale, is not decided.</p> <p>Judgment not Authorized by Pleadings—How Objections to may be taken on Appeal.—The objection that the judgment is not authorized by the pleadings, may be taken on an appeal upon the judgment roll alone. The fact that a motion for a new trial was made, which did not state this as one of its grounds, does not operate as a waiver of the objection.</p> <p>Idem.—Where, to an action by P. and R. against Putnam and others for the recovery of four mules, their harness, a wagon, and a saddle, or their value, Putnam, in answer, claimed title and right of possession of three of the mules, without designating which ones, and judgment passed for Putnam for the four mules, or their value, which were valued together only in a gross sum: Held, first, that the judgment was not authorized by the pleadings; and second, that as the judgment cannot be modified for want of data, it must be reversed, and a new trial granted.</p>

<p>Debt—When Fraudulently Contracted.—The fraudulent intent of a party to procure goods without payment is consummated when the possession of the goods is obtained without payment on delivery, or on call, according to the terms of sale. The debt, under such circumstances, is fraudulently contracted.</p> <p>Idem—Liability of Partners for.—In case of a debt fraudulently contracted by a partnership firm by one member alone, the others being ignorant of the fraud, while all the members will be bound in an action brought on the dontract or to recover the property so fraudulently obtained, yet the liability to an action for the fraud, which is essentially different and involves moral turpitude, is limited to the partner committing the same, unless the others assented to the fraud, or ratified it by adopting the act of the fraudulent partner, or retaining its fruits with knowledge of the fraud.</p> <p>Idem—Demand for Price not Necessary.—A demand for the price of goods sold is not necessary to maintain an action against a debtor for fraudulently purchasing the same. Payment, though it would satisfy the debt, would nob remove the taint of the fraud, which is the gravamen of the action.</p> <p>Idem—Judgment in may Authorize a ca. ea.—In such action an issue of fraud may be framed and tried, and the defendant, upon proper proof, may be adjudged guilty, and the Court may order an execution against the person of the defendant so adjudged guilty of the fraud.</p> <p>Idem—Practice Act, Section 72.—The provisions of section seventy-two of the Practice Act has reference to mesne, and not to final process.</p> <p>¡Form of Judgment—Power of ¡District Courts over.—The ¡District Courts in this State, by virtue of their organization and common law powers, have full authority, except when limited by the Constitution or Practice Act, to pronounce such judgment as the exigency of each case shall require.</p>

<p>Appeal from the District Court, Fifth Judicial District, Tuolumne County.</p> <p>This was an action on a policy of insurance. The charging part of the plaintiff’s complaint was as follows:</p> <p>“ That on the said 18th day of August, A. D. 1865, for and in consideration of the sum of seventy-five dollars paid to the said defendant by the said plaintiff, the said defendant made, executed, and delivered to the said plaintiff a policy of insurance, No. 6,009, duly signed by H. Kellogg, President, and William B. Clark, Secretary of said insurance company—wherein the said insurance company, defendant, certified in substance that the said James H. Clark had become, and by these presents was insured in and by said company, upon the property described as aforesaid, in the sum of twelve hundred and fifty dollars, for the term of one year, commencing at noon on the 18th day of August, A. D. 1865, and ending at noon on the 18th day of August, A. D. 1866. The said insurance company did therefor promise to settle and pay to the said plaintiff all loss and damage, not exceeding the aggregate sum of twelve hundred and fifty dollars, which shall or may happen to the aforesaid property by reason or by means of fire during the time said policy shall remain in force.</p> <p>“And the plaintiff further says, that since the said policy of insurance was executed and delivered to the said plaintiff, James II. Clark, the said hotel building, together with the furniture and fixtures therein, so insured as aforesaid, was entirely destroyed by a fire which occurred on the night of June 29th, A. D. 1866, and within the time specified within said insurance policy, which was a loss to the said plaintiff of twelve hundred and fifty dollars and over. And the said plaintiff further avers that due notice of said fire and proof of loss thereby was given to said insurance company in the manner required by them, and according to the conditions of said policy; that more than sixty days have expired since the giving of said notice and proof—yet the said defendant hath hitherto wholly neglected and refused to pay the said claim of twelve hundred and fifty dollars, although demanded so to do. Wherefore, the said plaintiff demands judgment,” etc.</p> <p>The defendant demurred to the complaint on the grounds: first, that it did not state facts sufficient to constitute a cause of action; and, second, that it was ambiguous and unintelligible, for divers reasons stated.</p> <p>The demurrer was overruled, and the defendant excepted.</p> <p>The answer of the defendant was a general traverse of all the material averments of the complaint, except the fact of the destruction of the plaintiff's property by fire—which was, however, averred to have been willfully and fraudulently caused by the plaintiff or his agents. The answer further averred that plaintiff had been guilty of fraud and false swearing in making preliminary proof of the nature and extent of his losses by said fire.</p> <p>On the trial of the cause, which was before the Court, without a jury, the plaintiff, to maintain the issue on his part, offered in evidence a policy of insurance executed by the defendant, the material portions of which were as follows:</p> <p>“By this policy of insurance the Phoenix Insurance Company, in consideration of seventy-five dollars to them in hand paid by the assured hereinafter named, the receipt whereof is hereby acknowledged, do insure James H. Clark against loss or damage by fire, to the amount of twelve hundred and fifty dollars, as follows: * * * And said company hereby agree to make good unto the said assured, his executors, administrators, and "assigns, all such immediate loss or damages not exceeding in amount the sum insured as shall happen by fire to the property above specified from the eighteenth day of August, one thousand eight hundred and sixty-five, at noon, to the eighteenth day of August, one thousand eight hundred and sixty-six, at noon; the amount of loss or damages to be estimated according to the actual cash value of the property at the time of the loss, and to be paid sixty days after due notice and proof of the same made by the assured and received at this office, in accordance with the terms of this policy hereinafter mentioned.</p> <p>“Sec. 2. This company shall not be liable for loss by theft at or after a fire; nor for any loss or damage by fire caused by means of or during an invasion, insurrection, riot, civil commotion, or military or usurped power.</p> <p>“ Sec. 8. In case of loss, the assured * * * shall forthwith give notice of said loss to the company, and as soon after as possible render a particular account of such loss, signed and sworn to by them, stating the actual cash value of the property, * * * when and how the fire originated, and shall also produce .a certificate under the hand and seal of a Magistrate, Notary Public, or Commissioner of Deeds, (nearest to the place of the fire, not concerned in the loss as creditor or otherwise, nor related to the assured,) stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has without fraud sustained loss on the property insured to the amount which said Magistrate, Notary Public, or Commissioner of Deeds shall certify. * * * And until such proofs, declarations, and certificates are produced, and examinations and appraisals permitted, the loss shall not be payable. All fraud or attempt at fraud or false swearing on the part of the assured shall cause a forfeiture of all claim under this policy.”</p> <p>' The defendant objected to its introduction in evidence, on the ground that there was a substantial variance between it and the policy alleged in the complaint. The Court overruled the objection and admitted the policy in evidence, and the defendant excepted.</p> <p>The plaintiff" then asked leave of the Court to amend his complaint. The defendant objected thereto, on the grounds that the complaint had already been adjudged by the Court sufficient on demurrer, and that no reason had been given for any amendment. The Court overruled the objection, and permitted plaintiff to amend his complaint, as follows, to wit: “And the said plaintiff amends his complaint by leave of the Court had on the trial, and avers that the said lire was not caused by means of any of the exceptions specified in the conditions of said policy against which the said defendants declare in said policy that they do not insure.” And the defendant duly excepted.</p> <p>The Court allowed the jury to take into the jury room the preliminary proofs of loss given in evidence by the plaintiff as the articles burned and their value, aud charged the jury respecting them as follows, to wit:</p> <p>“In determining the value of the personal property destroyed, the Court allows you to take to your room the list of articles furnished by plaintiff to the insurance company, as being destroyed by fire. How, in determining the damages which the plaintiff is entitled to recover under his insurance policy for the destruction of this property, * * * you will inquire whether such articles of property were destroyed by fire, and what was their actual cash value, irrespective of the value affixed to them in said list, in the condition in which they were at the time they were destroyed.”</p> <p>The defendant excepted to such allowance.</p> <p>The defendant requested the Court to charge the jury as follows: “ That all fraud or false swearing on the part of the insured in regard to the fire or loss sustained is a forfeiture of any claim under the policy of insurance, and in such case the jury will find a verdict for defendant.” The Court refused to give said instruction as asked, but gave it with the following added thereto, to wit: “And by fraud, or attempt at fraud, or false swearing on the part of plaintiff in this case, the Court would have you understand a willful, intentional, and deliberate false and fraudulent representation as to the articles destroyed or their real value, in order to recover under his policy for property that was not actually destroyed, or in order to recover a much larger amount as the value of the property destroyed than he fairly and justly believes it to be worth.” To which refusal to charge and said modification, the defendant then and there excepted.</p> <p>The jury rendered a verdict for the plaintiff for the sum of one thousand one hundred dollars, and judgment for the plaintiff passed accordingly. The defendant appealed from the judgment and from an order denying its motion for a new trial.</p>

<p>‘ Appeal from the District Court, Eleventh Judicial District, El Dorado County.</p> <p>The following are the material portions of the defendant’s letter of the 4th of August, 1863:</p> <p>“Placerville, August 4th, 1863.</p> <p>“Cart. J. L. McCormick, Peru, Illinois—Sir: I can now make your offer good. I have, hy a little streak, made a small raise over expenses. I will say just what I can do. I can pay you three hundred and fifty dollars at any time now, and three hundred and fifty dollars in one year from the time I do the first, and four hundred dollars in two years from the date of first payment, in American gold coin. * * * I am as anxious to pay you, Captain McCormick, as you are to have it; but I would rather have my notes in this country. * * * y0 man shall ever lose one dollar by me, for sooner or later all will and shall be made right. I am interested in some silver leads that bid fair to prove good, and it matters not if my notes are not due, the moment I lay my hands on money enough to pay you, you shall have it. How, what I wish to say is this: I want you to send my note to Mr. Jacoby. Clear me of that judgment in Ottoway. I will pay to him the first installment. Give him my notes, which will be paid on the day as soon as they become due, or sooner, if I can make the money. How, to prove this, you may have Mr. Jacoby come and see if I cannot do it. * * What I say to you will be done without fail. If I could use my name, I could make money. * * * If I lack a few dollars of my own earning, I can get help to get through with this affair of yours from a friend. How, all you have to do is to send to Jacoby or to myself, and as I have said before so I will surely do.</p> <p>“Truly yours. S. A. Brown.</p> <p>“ The three hundred and fifty dollars is ready. Let me hear from you soon.</p> <p>“P. S. * * * How, let me clear of that judgment at once, and I will save money; otherwise, I cannot. If in time to come I am successful, I will agree to pay you even more for waiting on. me. You have nothing to fear about my not paying you, if you release me. * * *</p> <p>“Yours, Brown.” _</p> <p>The plaintiff had judgment, and the defendant appealed therefrom, and from an order denying his motion for a new trial.</p> <p>The other facts are stated in the opinion of the Court.</p>

Palmer, and Samuel G-. Palmer, to Thomas Dowell, the plaintiff’s intestate, dated May 17th, 1859, and made payable one year after date; also, to foreclose a mortgage upon certain lands situated in Solano County, of the same date, and between the same parties, given to secure the payment of said note.

<p>Public and Private Nuisance.-—A public nuisance may also be a private nuisance, and if so, the person thereby injured may have his action.</p> <p>Idem.—The diversion of the waters of a navigable stream may bo both a public and a private nuisance.</p> <p>Idem.—In so far as a wingdam in a navigable river obstructs the navigation, it is a public nuisancem, but if it obstructs the reclamation of swamp lands, it is a private nuisance.</p> <p>Jurisdiction.—District Courts have jurisdiction in actions to prevent or abate a nuisance.</p> <p>Demurrer to Complaint.—A demurrer to a complaint on the ground that it is ambiguous, unintelligible, and uncertain, must specifically state in what the ambiguity or uncertainty consists, or it will be disregarded.</p> <p>Relief in Action for Nuisance.—The abatement of a nuisance, and the recovery of damages therefor, are not distinct causes of action, which cannot be united in the same complaint, hut merely different kinds of relief to which the plaintiff may bo entitled where a nuisance is the cause of action.</p> <p>Idem.—A party cannot have an action to abate a public nuisance. The remedy is by indictment, or if this is too tardy, equity may interpose, upon the information of the Attorney General.</p> <p>Action against Sacramento.—An action cannot bo maintained, against the City of Sacramento until after satisfaction has been demanded of its Board of Trustees.</p>

<p>Appeal from the District Court, Tenth* Judicial District, Sutter County</p> <p>The plaintiff had judgment as prayed, and defendant William S. Webb appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Taxation—What subject to.—The provisions of the Constitution and Revenue Laws upon the subject of taxing property are to be understood as referring to private property and persons only, and not as including public property and the State or any subordinate part of tho State Government, such as counties, towns, and municipal corporations.</p> <p>Idem—The State cannot be Sued except by its own Consent.—Neither the State in its own person, nor as represented in its local subordinate governments, can be summoned to answer before its Courts except by its own consent, nor can its property, in actions in rein, be so summoned. All suits and judgments brought and recovered in the State Courts against itself or its subordinate governments, without such consent given, are void.</p> <p>Idem—The State does not Tax on, Sue itself.—The State has in no manner provided for taxing itself or its own property, nor" has the State authorized suits to ho instituted by itself against itself or its property for the collection of any tax.</p> <p>Idem — Sacramento City Cemetery.—A tax suit in rem was brought in the name of the People against a tract of land situated in the City of Sacramento. In due course a judgment as demanded was rendered therein, and the property sold, and the proceeds of sale applied to the satisfaction of the judgment. M., who, as purchaser, had in due course received a Sheriff's deed, applied for a writ of assistance to he lot into possession, when, it being shown at tho hearing that a part of said tract was, at the time tho tax was levied and said suit was commenced, the property of said city, and constituted a part of the City Cemetery, the application, as to such part, was denied. Reid, that said application was properly denied, and that said suit, so far as it related to said city and its said property, was coram non judice.</p>

Bogart was the owner of a team, consisting of horses, wagon, and harness. He was at the same time indebted to Fisher & Fisher in the sum of about six hundred dollars. Bogart met one Hichols at Virginia City, in the State of Hevada, to which place Bogart had been hauling goods from Sacramento. This was in June, 1864.

<p>Statement of Grounds of Appeal.—A statement of the grounds of appeal is necessary when the appeal is taken upon grounds which appear upon the judgment roll.</p> <p>Immaterial Averments in Pleading.—Immaterial averments in a pleading need not be answered, and if it be done, both the complaint and answer, so far as they relate thereto, will be disregarded when the sufficiency of the pleadings and issues are brought in question.</p> <p>Specific Performance—Demand for Deed, now far Material.—In an action for the specific performance of a trust by the execution of a deed, a demand therefor before suit is only material as affecting costs. Without such demand the action may be maintained, but the plaintiff will not be entitled to costs.</p> <p>Pleading—Sufficiency of Denial.—An answer that denies a material averment of a complaint “upon information and belief” is a sufficient denial to raise an issue therson. Yassault v. Austin, 32 Cal. 597, and Roussin v. Stewart, 33 Cal. 208, affirmed.</p> <p>Cities and Towns on Public Lands—Construction of Congressional Act relating thereto, of July 1st, 1864.—The effect of the Act of Congress of July 1st, 1864, (U. S. Stats. 1863-4, p. 343,) in relation to the disposition of coal lands and of town property in the public domain, was to withdraw lands upon which cities and towns had been established before its passage, or might be thereafter established, from the operation of the general statutes in relation to the disposal of public lands, and to provide a new system for their disposal.</p> <p>Idem—Effect on Cities and Towns.—The effect of said Act as to towns and cities which had been established, and those thereafter to be established, on public lands, was to secure to them the privileges which the former had usurped and the latter would need.</p> <p>Idem—Effect on Streets, Alleys, and Squares in Cities and Towns.—The effect of the Act in said cities and towns was to dedicate to public use so much of the public land as had been therein appropriated to streets, squares, and alleys,, and to confer a license for a like appropriation in the future.</p> <p>Ídem—Construction of Act of Congress of March 1st, 1867, to Quiet the Title to Land in the Town of Petaluma, etc.—The Town of Petaluma, which prior to the passage of said Act of Congress, was located on the public lands, had, by its proper municipal authorities, dedicated portions of the lands within its corporate limits to public use as streets, alleys, and squares; to which portions J. and C. had subsequently, and before March 1st, 1867, acquired an adverse possession, and thereafter claimed to be bona Jide holders thereof: Held, that under said Act the town acquired the right to the use of such streets, alleys, and squares, and that to the lands so occupied, while this right thereto so remained, J. and C. could not acquire a bona fide occupancy within the meaning of the Act of Congress of March 1st, 1867, entitled “An Act to quiet title to land in the Towns of Santa Clara and Petaluma, in the State of California,” and that the last named Act refers only to land embraced in lots, and not to land in use for streets, alleys, and squares.</p> <p>Former Judgment as a Plea in Bar.—A former judgment rendered in an action tried upon its merits between the same parties and upon the same subject matter, is, if properly pleaded, an effectual bar to another action between the same parties on the same cause: but it constitutes no defense to a cause of action which accrued between the same parties and upon the same subject matter after the rendition of such judgment.</p>

This was an action to recover eight hundred and fifty-eight dollars and fifty-five cents, the amount of an assessment levied on lots in San Francisco for grading the street opposite to their fronts. The complaint asked that the above amount be decreed a lien on the lots, and that they be sold. No personal judgment was prayed for.

It also charged that t,he gold coins were the property of “Wells, Fargo & Co.,” without giving the names of the members of the firm, or averring that “Wells, Fargo & Co.” was a partnership or a corporation. On the trial it appeared that the defendant was the driver of the stage of Woodworth & Co., in which Wells, Fargo & Co. carried their treasure, and as such driver was entrusted with such treasure.

The Court below dismissed tho bill because the pleadings and facts showed it to be a case where relief could he obtained in a Court of law. The other facts are stated in the opinion of the Court.

The first and second instructions asked on the part of the defendant, and refused by the Court, were as follows; “1st. If it appears from the evidence that John Lewis, the deceased, made the first attack upon Taylor, the defendant, with glass tumblers or bottles, and that the danger of great bodily harm to Taylor from such attack was so urgent and pressing that in order to save himself from such bodily harm it was necessary for him to kill Lewis, the jury should find the…

<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>

A x’peal from the Probate Coui’t of the City and County of tian Francisco. The facts are stated in the opinion of the Court.

This was an action against the defendant to recover thirty-one thousand four hundred dollars, being the aggregate sum of one hundred and fifty-seven forfeitures which were alleged in the plaintiff’s complaint to have been incurred by the defendant, by reason of an overcharge exacted of the plaintiff by the defendant on the purchase by him, at divers times, of one hundred and fifty-seven tickets for fares over the defendant’s street railroad in San Francisco.

<p>In the Supreme Court of the State of California.</p> <p>The facts are stated in the opinion of the Court,</p>

This was an action on a promissory note, on which the plaintiff recovered judgment as prayed, by default; whereupon execution issued and was levied on the property of the defendant.

<p>Original proceeding in the Supreme Court of the State of California.</p> <p>The facts are sufficiently stated in the opinion of the Court.</p>

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

The defendant Stilwell set up in defense that he had paid defendant Murdock in full of his building contract before he was notified of the plaintiff’s claim in suit. In the Court below judgment passed for defendant Stilwell, and the plaintiff appealed. The other facts are stated in the opinion of the Court.

<p>Appeal from the District Court, Twelfth 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>

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

This was an action to compel the defendants, Ellsworth, Tuttle, Cutter, and Hinkle, who were the Trustees of the City of Petaluma, to convey by sufficient deed to the plaintiffs the north one hundred and thirty-four feet of Block X (according to Brewster’s Survey) of the City of Petaluma, in accordance with the provisions of the Act of Congress of March 1st, 1867, entitled “An Act to quiet title to land in the Towns of Santa Clara and Petaluma, in the State of California,”…

<p>Action by Tenant in Cojimon in Possession to Determine Adverse Claim to Real Property.—One tenant in common of real property, in the actual possession thereof, may maintain an action, under the two hundred and fifty-fourth section of the Practice Act, to determine the validity of an adverse claim of title thereto hy a cotenant.</p> <p>Vendor's Lien not Transferable.—The equitable lien held by the vendor of real estate after absolute conveyance thereof, is not subject to levy and sale on execution, nor is it the subject of private transfer.</p> <p>Idem—When the Demand for the Purchase Money is Sold or Assigned.— The indebtedness for the purchase price of real estate is the subject of an execution or attachment, levy, and sale, or of a private transfer; hut the equitable interest that attaches to the property conveyed hy virtue of the indebtedness in the hands of the vendor, is extinguished by a transfer of the indebtedness.</p> <p>Title of Mining Company to Quartz Mine and Mill.—Certain real property, consisting of a quartz mine and mill, was owned and worked hy a mining company consisting of M. and S., who together owned two thirds, and C. and Y.s who together owned the remaining one third undivided interest therein. The profits and losses of their mining business were, by tacit agreement, shared by said members in proportions corresponding to their said several interests in the property. M. and S. conveyed by deed absolute their said two thirds interest in said property to R., who immediately entered into and thereafter continued in possession of the same. A small portion only of the purchase price was paid down by R. at said sale. At the date of said conveyance the company was indebted, on account of their said mining business, in the sum of twelve thousand dollars, for which afterward suit was brought against the said members of the company, and under a writ of attachment issued therein said property was levied on as the property of said M., S., C., and Y., and in due course judgment passed against them, and all their right, title, and interest in the property were sold to H., who in due course received a Sheriff's deed therefor, under and by virtue of which he thereafter claimed to own all said property. Held, in an action by R. against E., brought under the two hundred and fifty-fourth section of the Practice Act, that R. acquired under said deed from M. and S. the title to said two thirds undivided interest in said property, and that H. acquired by said Sheriff's deed only the one third undivided interest of C. and Y. in said property.</p>

This was an action to recover possession of the block bounded by J and K and Twenty-third and Twenty-fourth streets, City of Sacramento.

<p>Tub facts are stated in the opinion of the Court.</p>

<p>Appeal from the Probate Court of Santa Clara County.</p> <p>The facts are stated in the opinion of the Court.</p>

This was an action of ejectment commenced March 3d, 1865, to recover a lot of land in the City and County of San Francisco, on the corner of Mission and Rinth streets, being one hundred and thirteen feet by one hundred and thirty-'one, in the north corner of Block Three. The testimony tended to show that in 1850 and 1851 one Kisling was in possession of one hundred and sixty acres of land. The demanded premises constituted a portion of this tract.

The California Steam Navigation Company is and has been for many years a corporation organized under the laws of California for navigating the Pacific Ocean and the waters of the State of California, with boats or vessels in whole or in part propelled by steam.

The Court gave the defendant judgment for his costs, but not for any moneys expended by him on the property. The plaintiff appealed. The other facts are stated in the opinion of the Court.

This action was commenced in a Justice^ Court, to recover a personal judgment for a tax amounting to thirty-five dollars and twenty cents. The complaint was in writing. The defendant answered, and the Court made an order transferring the cause to the District Court for trial, because the answer put in issue the legality of a tax.

The judgment of the Court below was for the defendant. The plaintiff appealed. The other facts are stated in the opinion of the Court.

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

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

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

<p>Duty op Superintendent op Streets in San Francisco.—It is the duty of the Superintendent of Streets in San Francisco, after the fulfillment of a contract to improve the same, to make an assessment on the lots to cover the sum due for the work, and then to issue a warrant thereon. Bo time is limited within which the assessment must be made, nor is the fact that a void assessment has already been made an excuse for not making a valid one.</p> <p>Writ op Mandate to Superintendent op Streets.—An abortive attempt to make a valid street assessment does not exhaust the power of the Superintendent, nor does it constitute a good defense to an application for a mandate to require the Superintendent to make an assessment in the mode prescribed by law.</p>

On the 12th day of June, 1856, David S. Turner, who was the owner of a lot in the City of San Francisco, borrowed fifty thousand dollars of Stephen A. Wright, and gave him his note therefor, with interest at one and three quarters per cent per month, payable three years from date. Turner, on the same day, executed to Wright a mortgage on the property, to secure the note, which mortgage was, on the 18th of June, 1856, recorded in the proper book of records.

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

Judicial District, Solano County. The facts are stated in the opinion of the Court, and in 29 Cal. 131, where the case is reported on a former appeal.

The plaintiff was indebted to Weaver, Wooster, and Sanderson in the sum of three thousand five hundred and seventy-two dollars and seventy-five cents, and on the 28th day of April, 1866, to secure the payment of the same, made and delivered to Weaver, Wooster & Co. his mortgage upon property in Santa Cruz County, for the payment of the money one year from the date of the mortgage.

The testimony tended to show that in March, 1849, Jonathan D. Stevenson claimed a tract of land of about seventy-seven acres in San Francisco, west of any land then surveyed or occupied, and had the same surveyed, and put two small houses thereon, which he kept occupied by men; that in April, 1850, Stevenson took in with him in the claim Satterlee, the plaintiff, Howard, Hastings, and Morse, and that Parsons afterwards took the place of Morse; that in May, 1850, the parties…

The defendant was a married man, and the indictment charged him with having committed a rape on Ellen Dorsey, a girl who lived with his family, on the first day of December, 1866. The defendant introduced testimony tending to show that the character of Miss Dorsey for chastity was bad. When the defendant rested the prosecution offered testimony tending to show her character in that respect good, and the defendant objected, but the Court overruled the objection.

* * * Insanity produced by intoxication does not destroy responsibility, when the party when sane and responsible made himself voluntarily intoxicated; and drunkenness forms no defense whatever to the fact of guilt—for when a crime is committed by a party while in a fit of intoxication, the law will not allow him to avail himself of the excuse of his own gross vice and misconduct to shelter himself from the legal consequences of such crime.

This was an action to recover two undivided one third parts of west half of Lot Five, Block Nine, Suisun City, Solano County. The complaint averred seizin and possession in the plaintiff on October 10th, 1862, and ouster by defendant on the same day. There was also an averment that plaintiff demanded to be let into possession on the same day. Suit was commenced July 21st, 1866.

The respondent moved to dismiss the appeal, because the judgment adjuging the appellant guilty of a contempt was not subject to review on appeal. The Court do not pass on this motion. The other facts are stated in the opinion of the Court.

<p>In the Supreme Court of the State of California.</p> <p>The plaintiff, Sargent, was the Treasurer of San Joaquin County, and was directed by the order to pay the sums allowed to the various witnesses. The defendant was the District Judge of the Fifth Judicial District, which included San Joaquin County. The plaintiff applied to this Court for a writ of certiorari to reverse the order of the District Court.</p> <p>The other facts- are stated in the opinion of the Court.</p>

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

For an account of the rejection of Vallejo’s claim to the Suscol Rancho. (Blackf. 541.) The parties who laid out the City of Benicia, and who claimed under Vallejo, never made a conveyance to the city of the streets, alleys, and public squares, but sold lots and blocks bounded upon such streets, alleys, and public squares, describing them in their conveyances as so bounded. Fischer, by various mesne conveyances, had the title of the parties who laid out the city.

The defendant was a corporation. The plaintiffs, prior to December, 1867, had furnished goods to the defendant upon the order of Withington, who was the foreman of the works and mine of the defendant. On the 11th day of December, 1866, Withington made the contract in writing with the defendant to run the tunnel referred to in the opinion of the Court.

<p>Evidence in chief must be Confined to Matters put in Issue.—In an action for damages the plaintiff should be restricted in his examination of his witnesses in chief to the principal matter in dispute, and it is error to extend it to res inter alios acta.</p> <p>Ídem.—The plaintiff sued for damages for personal injuries received from falling in a passageway in a boarding and lodging house, charged to have resulted from the negligent failure of the defendant to have the same properly lighted, whereby the same was rendered dangerous—on which latter point issue was joined. Held, that it was error to permit the plaintiff to prove, in chief, that another person had fallen and sustained injuries in the same passageway when in the like darkened condition.</p>

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

<p>Dismissing Action for want of Prosecution.—This Court will not reverse a judgment dismissing an action for want of prosecution, unless there has been an abuse of discretion in the Court below in giving the judgment, and it devolves on the appellant to show such abuse of discretion.</p> <p>Iuem.—Allowing an action to rest without service of summons, for two years and eight months after the summons is issued, is such a want of diligence as to justify the Court in dismissing the action.</p> <p>Ibbm.—If notice is given of a motion to dismiss an action for want of prosecution, before summons is served, and the plaintiff then serves the summons, and at the end of ten days takes a default, hut judgment is not entered up, the entry of the default does not preclude the Court from dismissing the action. The dismissal takes effect by relation back to the time of service of the motion.</p>

This was an action hy the plaintiff, a passenger on the car of the defendant, to recover damages for personal injuries sustained by reason of the alleged negligence of the defendant’s servants in starting the car in motion while the plaintiff was alighting, and before she was free therefrom, whereby she was thrown down and her left arm broken. The case was tried hy the Court with a jury, and plaintiff had verdict and judgment for two thousand dollars.

<p>Statutory Construction.—In construing a statute all parts of the Act must be considered, in order to ascertain from the whole what was tho real intent of the Legislature.</p> <p>Idem.—Legislative Acts compelling municipal bodies to make improvements of a local character may not only he passed, but will receive as liberal a construction as other Acts.</p> <p>Idem—If an Act is unwise in its character, Courts have - no power to remedy the grievance.</p> <p>The Title of an Act.—The title of an Act, in cases of doubt, may he referred to as tending to elucidate tho intent of the Legislature, hut it is never permitted to , control the body of the Act.</p> <p>When Statute is Mandatory.—Although it may appear from the first section of an Act that it was not intended to bo mandatory, yet if the other provisions of the Act arc wholly inconsistent with this hypothesis, the Act wPl be held to be mandatory.</p> <p>Idem.—An Act which provides that it shall be the duty of the Board of Supervisors, within a certain time, to proceed and let a contract for a local improve- . ment, and prescribes what the improvement shall he, leaving nothing to the discretion of the Board, is mandatory on tho Board.</p> <p>Construing Act as Mandatory.—If an Act commands a municipal body to proceed and grado a certain street, prescribing the way and manner of doing the samo, and the grade to be adopted, and leaving nothing to the discretion of the municipal body except certain incidents to the main work, Courts will not construe tho Act as not mandatory because these incidents are left to the discretion of tho body.</p> <p>Plaintiff in Mandamus.—An application for a writ of mandate to compel the performance of some Act in which a large number of individuals are interested, which is made in the name of the People, and is not signed by the Attorney General, hut by an attorney of the relator, will not ho dismissed because not made in the namo of some one interested, if the Attorney General unites in tho brief in support of the application.</p>

This was an action brought to recover possession of certain lands in Contra Costa County. The plaintiff deraigned title to the demanded premises under the deeds which are discussed in the opinion of the Court. The defense was, in effect, that the demanded premises were not embraced in said deeds. The case was tried before the Court with a jury.

<p>Fees op Tax Collector.—The Legislature may, without violating the Constitution, provide by law that a Collector of Taxes shall pay a part of the fees and compensation allowed by law into the County Treasury, for the benefit of the G-eneral Fund.</p> <p>Constitutionality op a Law.—A law which provides for the amount of fees attached to the service to be performed in an office, and at the same time provides that the officer shall pay a part of these fees into the Treasury, the title to which is, “An Act to regulate fees in office,” is not liable to the constitutional objection that it embraces more than one object, and that that is not expressed in the title. Taking Fees op Officer for Public Use.—An Act which provides in one section that a Tax Collector shall receive the fees allowed by law, and in another section that he shall pay a part of these fees into the Treasury for the benefit of the county, does not take private property for public use.</p>

This was an action by plaintiff Johnson against defendant Dewey, who was the owner of the “What Cheer House,” and the lot on which it stands, in Sacramento City, and defendant Senatz, who was in possession of said property as the tenant of Dewey, to recover an unpaid balance of the contract price for raising said house to the high grade of said city, and for making certain contract improvements on said house, and to enforce therefor a mechanic’s lien, under the provisions of…

The complaint averred that the plaintiffs had title in fee simple to the demanded premises, and that “said premises were a part of the Rancho Los Putas, commonly called the Vaca and Peña Grant, granted to said Vaca and Peña by the Mexican authorities, and finally confirmed to them by the United States Courts, and duly patented,” etc. The pleadings were not verified. The answers contained first, a general denial, and the several special defenses.

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

The contract sued on was in reference to grading a street in San Francisco. For a reference to the laws in this city which apply to grading streets, see Emery v. San Francisco Gas Co., 28 Cal. 345; Cochran v. Collins, 29 Cal. 129; Thompson v. Hoge, 30 Cal. 179; Taylor v. Palmer, 31 Cal. 240; Miles v. McDermott, 31 Cal. 271; and Taylor v. Downer, 31 Cal. 480. The plaintiff recovered judgment in the Court below, and appealed from the order granting a new trial.

The account of the guardian was sworn to by J. L. Sainsevaine, the gentleman who had principally transacted the business of guardian, and also by the guardian, who swore that he believed that Sainsevaine’s statements were true. The other facts are stated in the opinion of the Court.

<p>Validity of the Civil Rights Bill.—The provisions of the Act, of Congress commonly known as the “Civil Rights Bill,” (14 U. S. Stats, at Large, p. 27,) which provide that “ all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States, and such citizens of every race and color * * * shall have the same right in every State and Territory of the United States * $ to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, * ••• * any law, statute, ordinance, regulation, or custom to the contrary notwithstanding,” were not repugnant to the Constitution of the United States as it read prior to the adoption of the Fourteenth Amendment thereto, and are valid.</p> <p>Idem—Effect of the “Civil Rights Bill” in the State of California.— The effect of the enactment of the “Civil Rights Bill” was to put all persons, irrespective of race or color, born within the United States and not subject to any foreign power, excluding Indians not taxed, upon an equality before the laws of this State in respect to their personal liberty.</p> <p>Idem—Effect on Act concerning Crimes and Punishments.—The fourteenth section of the statute of this State “concerning crimes ancl punishments,” which provides that “no Indian, or person having one half or more of Indian blood, or Mongolian, or Chinese, shall be permitted to give evidence in favor or against any white person,” (Stats. 1863, p. 69,) so far as it discriminates against persons, on the score of race or color, born within the United States and not subject to any foreign power, excluding Indians not taxed, has, by the force and effect of the “ Civil Rights Bill,” become null and void.</p> <p>Idem.—"W., who was a mulatto born within the United States and not subject to any foreign power, was indicted for the crime of robbing Ah Wang, a Chinaman. The indictment was found exclusively upon the testimony of Chinese witnesses. ¡No other testimony against W. was procurable by the District Attorney for the purposes of a trial under said indictment. The Court below, on IWs motion, set aside the indictment and discharged him without day. On appeal from said orders, taken by the People, this Court affirmed the judgment of the Court below.</p>

Henry Bentz, a resident of the City and County of San Francisco, died intestate in said city, July 1st, 1865, leaving a wife, Louise Bentz, and a posthumous child, being his heirs at law. On November 14th, 1865, Louise Bentz, widow of deceased, filed her petition for letters of administration on the estate of deceased. Letters of administration were issued to her January 5th, 1866.

This was an action of ejectment to recover a lot of land at the northwest corner of Bush and Larkin streets, in the City and County of San Francisco, commenced January 24th, 1863. On the 25th of August, 1863, Abner H. Barker recovered a judgment against defendant, F. B. Austin, in the Superior Court of the City of San Francisco, for two thousand nine hundred and forty-six dollars and ten cents, and twenty-six dollars and twenty-five cents costs.