Volume 37 — California Reports

<p>nr e within which Execution may Issue.—Up to April 8th, 1801, a party in whose favor a judgment was rendered was entitled to an execution at any time within five years, and after five years had elapsed, ho was entitled to an execution on obtaining leave of the Court. Between April 8th, 1861, and April 2d, I860, an execution could issue only within five years after the entry of the judgment. Since April 2d, 1866, an execution in all cases other than for the recovery of money may issue after five years, upon leave of the Court.</p> <p>Right to Execution when once Barred.—If the right to an execution mi a judgment in ejectment had expired by the lapse of more than five years on the second day of April, I860, when the Act was passed providing for the issue of such executions, the passage of said Act did not revive the right to have an execution on such judgment.</p> <p>Act of April 2d, 1866, concerning Executions.—The Act of April 2d? 1806, granting the right to have executions issued on all judgments other than for the recovery of money more than five years afeer the. entry of the judgment, is not retrospective. It applied only to judgments thereafter to be rendered.</p>

In 1862 a corporation was formed, called the Placerville and Sacramento Valley Railroad Company. On the 21st day of August, 1865, the corporation was indebted to Wells, Fargo & Co. in the sum of two hundred and sixty-eight thousand dollars for money advanced.

<p>Appeal from the District Court, Seventh Judicial District, Solano County.</p> <p>The plaintiffs recovered judgment for two thousand dollars damages, and the defendants appealed.</p> <p>The injunction in Frisbie v. Fowler et als. was issued upon the complaint alone, and without notice. It was issued July 14th, 1864, and dissolved May 7th, 1866. No judgment in Frisbie v. Fowler et als. was offered in evidence.</p> <p>The other facts are stated in the opinion of the Court.</p>

The following are the material portions of plaintiff’s complaint, to wit: “ And the plaintiffs aver that they are and have been a corporation formed under tho laws of this State, doing business in said county [Tuolumne] since the 3d day of September, A. D. 1858; and that the said defendant, Boston Tunnel Company, is a corporation, formed under the laws of this State, and doing business in said county since the 19th day of June, A. D. 1858. “ And the said plaintiffs aver that…

The larceny of which the defendant was convicted was charged to have been committed on the night of March 18th, 1868. The defendant appealed. The other facts are stated in the opinion of the Court.

This was an action to recover delinquent taxes. The People had judgment, and the defendant appealed therefrom, and from an order denying its motion for a new trial. The other facts are stated in the opinion of the Court.

<p>Appeal from the District Court, Fifth Judicial District, San Joaquin County.</p> <p>In 1862 the plaintiffs executed to defendant a joint and several bond, in the sum of five hundred dollars, as sureties, to perfect an appeal to the County Court of San Joaquin County, in an action wherein the defendant Quinn was plaintiff and Brennus Kenyon and Simeon Cass were defendants. The bond was not executed by Kenyon and Cass. Defendant Quinn recovered final judgment in that suit July 22d, 1863. On the 22d day of August, 1865, defendant Quinn demanded from the plaintiffs in this suit payment of the sum of five hundred dollars expressed in said bond, and the plaintiffs paid said sum of five hundred dollars to defendant on that day, to be applied toward the satisfaction of said judgment.</p> <p>The defendant did not apply said money, or any of it, towards the satisfaction of the judgment, but, on the 3d day of May, 1867, by execution issued thereon and sale thereunder of the property of Kenyon and Cass, he enforced the collection of the whole of said judgment, amounting to more than five hundred dollars.</p> <p>Thereupon, Kenyon and Cass assigned to the plaintiffs all their claim and demand against the defendant for all the money which they were or might be entitled to by reason of said Sheriff’s sale. The plaintiffs demanded payment from defendant; payment was refused, and plaintiffs brought this action, and in their complaint set up the foregoing facts.</p> <p>The defendant demurred, on the ground that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was overruled by the Court, and the defendant declining to answer, final judgment was rendered in favor of the plaintiffs, from which judgment the defendant appealed.</p>

This was an action for the restitution of a fifty vara lot in the City and County of San Francisco, brought under the Forcible Entry Act of 1866. (Stats. 1865-6, p. 768.) The complaint averred the actual and peaceable possession, and lawful right to the possession of said lot by the plaintiff on the 31st day of August, 1866, and long prior thereto; that on said day the defendants forcibly entered upon said lot and expelled the plaintiff therefrom.

This was an action to enforce a mechanic’s lien under the Act of 1862 (Stats. 1862, p. 884) concerning the liens of rrfechanics and others, on a lot and buildings in the City and County of San Francisco. Defendant J. H. Hammond, with whom the building contract was entered into by the plaintiffs, was, at the date of the contract, and when the action was commenced, in possession of said lot under a contract entered into by him with defendant Treat for the purchase of the same.

Henry C. Johnson died intestate at the Pueblo of San Francisco, State of California, about the 26th day of December, 1849, leaving surviving him his wife, Elizabeth Johnson, then residing at said pueblo, his mother, Eliza Moss, and his brothers, F. A. Johnson, ¡Samuel J., James W., Edgar M., and David J. Johnson, and his sister, Selina E. Abraham, wife of Abraham Abraham. The mother, brothers, and sister lived at Cincinnati, Ohio. The deceased left no children or father.

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

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>The following are the first, second, and third instructions asked by the plaintiff, and refused hy the Court:</p> <p>1st. If the jury believe from the evidence that the possession of the land was mixed as between plaintiff and defendants at the time of the cutting of the hay and at the time of the entry of defendants upon said premises, and that it continued so mixed down to the time of the cutting of the hay and the taking thereof by the Sheriff, then the defendants did not have such a possession of the premises as entitles them to a verdict at your hands.</p> <p>2d. If the jury believe from the evidence that the' plaintiff was in possession of the lands upon which the hay grew as early as 1860, and had the same inclosed hy a substantial fence, and thereafter continued in the possession, use, and occupation of the said lands until the time the defendants entered, and continued in the possession of the said premises after they entered thereon until the hay was cut, then the plaintiff had such a possession of the premises as would entitle him to maintain this action so far as the question of possession is concerned.</p> <p>3d. The defendants have not proven that they or either of them were persons entitled to become pre-emptioners under the laws of the United States; and if the jury believe from the evidence that the hay in question was cut upon premises in the possession of the plaintiff at the time and ever since 1860, the plaintiff is not prevented from recovering by the mere circumstance that the defendants entered upon other portions of the general tract, but not upon the part upon which the hay was cut. The proof does not show that the defendants, or either of them, are persons entitled to become pre-emptioners of land under the laws of the United States.</p> <p>The defendants recovered judgment, -and the plaintiff appealed.</p> <p>The other facts are 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 facts are stated in the opinion of the Court.</p>

This was an action of ejectment to recover possession of an undivided half of One Hundred Vara Lot Number Two Hundred and Fifty-three, in the City and County of San Francisco. The complaint was filed April 10th, 1860.

The following was the stipulation upon which the motion for a new trial was denied: “It is hereby stipulated and agreed by and between the parties to this action, that the motion for a new trial, on the part of said defendants in this action now pending in said Court, may he overruled by order of said Court staying all proceedings upon the judgment in favor of said plaintiff, be continued in force for ten days; and in case the said defendants perfect an appeal to the Supreme…

This was an action brought on the following promissory note: “$710 00. SamFrancisco, August 5th, 1867.—Sixty days after date, without grace, I promise to pay to Austin Wiley, or order, the sum of seven hundred and ten dollars, payable only in gold coin of the Government of the Hnited States, for value received, with interest thereon, in like gold coin, at the rate of one and a half per cent per month from October 6th, 1867, until paid. D. 0.

In 1854, Matthew Delaney went to reside with his family upon a tract of land in the limits of the City and County of San Francisco. The tract at that time was worth seven hundred and fifty dollars. Delaney inclosed the land with a substantial fence, and obtained his living by keeping horses, cows, etc., upon the land.

The complaint averred that Bridget M. Evoy, the testatrix, on the 26th day of April, 1865, was indebted to the plaintiff and John A. Woodson in the sum of five hundred dollars, and, to pay three hundred dollars thereof, on said day made and delivered to them the following deed: “ This indenture, made the 26th day of April, in the year of our Lord one thousand eight hundred and sixty-five, between Joseph D. Mulliken and Bridget M. Evoy, parties of the first part, and E. A.…

<p>Appeal from the Probate Court of Lassen County.</p> <p>On the 5th day of August, 1867, letters of administration on the estate of Charles M. White were issued to John R. Lockwood, who duly entered upon the duties of his trust, and was such administrator at the times hereinafter stated. August 5th, 1868, said administrator filed his annual account, in which it was shown that there was an unsettled claim against the estate made by one G-. H. Dobyns, for four hundred dollars, and that a suit was pending on said claim in the District Court for Lassen. County, which suit was still pending at the times hereinafter stated. September 8th, 1868, Joseph White and others, claiming to be the only heirs of the deceased, filed in the Probate Court a petition for a settlement and distribution of said estate. On said eighth day of September, said Probate Judge made an order calling a special term of said Probate Court on the 12th day of September, 1868, to hear said petition, and ordering that three days notice he given to the administrator. On said twelfth day of .September the Court met, and the administrator applied for a change of venue upon the affidavits mentioned in the opinion of the Court. The Court overruled the motion. The administrator then filed an answer to the petition. A demurrer was interposed to the answer, which was sustained by the Court. The Court then adjourned until the 14th day of September, 1868, and on the last named day made a final settlement and distribution of the estate. The administrator appealed,</p> <p>The other facts are stated in the opinion of the Court.</p>

This was an application to this Court for a writ of mandate. At the general election held in the County of Amador on the 6th day of September, 1865, James Carroll was elected Supervisor of the First Supervisor District, in said county, for the term of three years, commencing on the 2d day of October, 1865. The Board of Supervisors, however, declared Charles II. Ingalls elected, and said Ingalls qualified and entered into possession of the office.

<p>Appeal from the District Court, Thirteenth Judicial District, Tulare County.</p> <p>This' was an action upon the following promissory note: “$1,345 30. Visalia, January 3d, 1867.</p> <p>“One day after date, without grace, I promise to pay to E. Jacob, or order, the sum of thirteen hundred and forty-five dollars thirty cents, payable only in gold coin of the Government of the United States, for value received, with interest thereon at the rate of one and a half per cent per month from date until paid. “ L. E. Ketcham.”</p> <p>The answer set up that the note was given for a balance then due from defendant to plaintiff on a store account, and that thereafter the defendant continued to trade with the plaintiff up to August, 1867, and that the firm of Ketcham & Stayton, of which the defendant was a member, also did business with the plaintiff up to July, 1867, at which time the firm was dissolved, and the account of the firm with plaintiff was transferred to the defendant, with full knowledge and consent of plaintiff. That about September 1st, 1867, the parties attempted to settle, when .plaintiff gave defendant two accounts—one being a bill of the defendant’s account, and the other the account of Ketcham & Stayton; that in the account against defendant the plaintiff charged the defendant with a balance of nine hundred and twenty-seven dollars due on the note sued on; that by said accounts plaintiff made out that defendant owed him six hundred and seventy-eight dollars and eighty-nine cents, but that plaintiff did not allow defendant anything for three drafts on the Bank of California, amounting to fifteen hundred dollars, which defendant had let plaintiff have, and on which plaintiff had collected the money, and that the plaintiff denied having received the drafts; that for the purpose of settling the dispute as to such credit, the plaintiff and defendant entered into a submission, in writing, to the arbitration of Pleasant Byrd and George S. Hoffman.</p> <p>A copy of the submission and award were attached to the answer. The following are such copies:</p> <p>“ State of California, 1 “County of Tulare, j “Know all men by these presents, that there being a difficulty in settlement of accounts between E. Jacob and L. B. Ketcham, both of Tulare County, California, they have agreed, and by these presents do agree, to select arbitrators, and to be bound in their settlement by the decision of said arbitrators. That as arbitrators they have chosen Pleasant Byrd and George S. Hoffman, who, in case of non-agreement, are to select a third arbitrator; the decision of a majority to be final. “L. B. Ketcham, “E. Jacob.</p> <p>“Visalia, September 28th, 1867.”</p> <p>“In the matter of the arbitration of certain matters in difference between E. Jacob on the one part, and L. B. Ketcham on the other: Know all men, that Pleasant Byrd and George S. Hoffman, to whom were submitted as arbitrators the matters in controversy existing between E. Jacob and L. B. Ketcham, all of Tulare County, California, as by their submission in writing, and bearing date the 28th day of September, A. D. 1867, more fully appears; How, having been first duly sworn according to law, and having heard the proofs and allegations of the parties, and examined the matters in controversy by them submitted, do make this award in writing, that is to say: Ketcham & Stayton are entitled to a credit on their account with said E. Jacob of three checks of five hundred dollars each, amounting in the aggregate to one thousand five hundred dollars.</p> <p>“In witness whereof, we have hereunto subscribed these presents, this 19th day of Hovember, A. D. 1867. “Pleasant Byrd. “Geo. S. Hoffman.”</p> <p>The accounts contained many items, and among the items the defendant, in the account against him individually, was charged with nine hundred and twenty-seven dollars on the note sued on.</p> <p>The defendant moved to strike the submission and award out of the answer, because no defense to the action. The Court denied the motion. The defendant on the trial objected to the reception of the submission and award in evidence, because the submission contained no agreement to arbitrate the question of liability of the defendant on the note, and because the award was not final and did not show whether the defendant was indebted to the plaintiff or he to the defendant. The Court overruled the objection.</p> <p>The defendant recovered judgment against the plaintiff for five hundred and ninety-seven dollars and eleven cents and costs. The plaintiff appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

The plaintiffs sued to recover possession of an undivided three fifths of the mine, and recovered an undivided one fifth. The defendants first answered, denying the plaintiffs’ right to more than one undivided tenth of the mine. They after-wards filed an amended answer, in which they admitted the plaintiffs’ right to an undivided one fifth of the mine, and denied having ousted them from said one fifth.

<p>Appeal from the District Court, Fifth Judicial District, San Joaquin 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>Appeal from the District Court, Second Judicial District, Tehama County.</p> <p>This was an action to recover State and county taxes levied in Tehama County for the fiscal year 1867-8. The defendants had judgment in the Court below, from which, and from an order denying a new trial, the People appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Seventh Judicial District, Napa County.</p> <p>This was an action of ejectment, to recover a tract of land in Napa County. The portion of defendant’s answer alluded to in the opinion of the Court, which was stricken out in the Court below on plaintiff’s motion, set up substantially that in an action by Fowler and Hargrave v. Harbin et al., to foreclose a mortgage on the lands of Harbin, judgment passed for the plaintiffs therein, whereupon the mortgaged lands were by the Sheriff duly sold and conveyed.by deed to the plaintiff in this action under an order of sale duly issued to enforce said judgment; that, under a writ of assistance, regularly issued, to put the purchaser in possession of the premises described in said deed, the defendant in this action was dispossessed of a specified portion of the land demanded in this action, whereupon he obtained from the Court which had rendered said judgment and issued said writ of assistance an order to be restored, and thereunder was restored to the possession of said portion of land, on the ground that the same was not included in said deed; that said order was granted'upon a proper motion made therefor, after due notice to and appearance by the plaintiff in this action, and after trial before said Court upon the merits of 'the issues arising thereon; that the plaintiff had no other title or claim of title to said portion of land except under said Sheriff’s deed; that said order had, by reason of' the failure of the plaintiff to appeal therefrom within the time prescribed by law, become final, and that thereby the title to said portion of land, as between the parties to this action, had become res adjudicata.</p> <p>The plaintiff had judgment in this action, 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>

<p>School Fund Raised by the Legislature Inviolable.—Whenever the Legislature of this State raises a fund, by taxation or otherwise, for the support of common schools, any contemporaneous or subsequent legislation having for its object the diversion of such fund to any other purpose is in contravention of the second section of Article IX of the State Constitution, and is void.</p> <p>Idem—Construction of Section Two, Article IX, of Constitution.—The clause of Section Two, Article IX, of the Constitution, which provides “ * * * and such other means as the Legislature may provide shall be inviolably appropriated to the support of schools throughout the State,” includes as such “means” any fund arising from annual taxation for school purposes levied under general laws passed for that purpose.</p> <p>Idem—Unconstitutional Statute.—So much of section eighteen of “An Act to authorize the County of Placer to subscribe to the capital stock of the Central Pacific Railroad Company of California, and to provide for the payment of the same,” etc., (Stats. 1863, p. 145,) as provides that “the taxes that may be paid by said [railroad] company to said [Placer] county, from time to time,” shall be paid into “the Railroad Fund” created by said Act, is unconstitutional and void, so far as it relates to the school tax of said county.</p> <p>Idem—A statute having the effect to exempt the taxable property of a railroad company in any county from the payment of a school tax lawfully levied upon the taxable property within such county, is in contravention of section thirteen of Article XI of the Constitution, which provides that “taxation shall be equal and uniform throughout the State,” and in so far is void.</p>

This was an action brought to determine an alleged adverse claim of title to real property -in the City and County of San Francisco. The material portions of defendant Rankin’s affidavit are as follows: Ira P. Rankin, being duly sworn, says: “That he is one of the defendants in this action; that the summons herein was served on this deponent while he was in attendance as a witness in the District Court of the Fourth Judicial District of this State.

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

The defendant was indicted, tried, and convicted of the crime of mayhem. At the trial M. B. Tubbs was called as a trial juror, who, after being examined as to his qualifications by the defendant’s counsel, was by him challenged for “implied bias” merely, without further specification of the grounds for the same. The challenge was overruled, 'and the counsel for the defendant excepted.

This was an action to recover judgment against the personal defendants and to enforce against certain real property described in the complaint a lien for the amount of State and county taxes, alleged to have been levied and assessed thereon for the year A. D. 1866.

For the nature of this action and the issues joined therein, see the report of this ease on a former appeal.

This was an action to perpetually enjoin the execution of a judgment, recovered in the Fourth District Court, by defendant Hendricks, against Daniel Crowley, since deceased, the then husband of the plaintiff, by which judgment a tract of land within the City and County of San Francisco, then and ever since claimed by the plaintiff* to be her homestead, was decreed subject to a lien and ordered to be sold for the payment of a street assessment, ascertained thereby to be due…

<p>Appeal from the District Court, Fifteenth Judicial District, Contra Costa County.</p> <p>This was an action upon a bail bond against the sureties. One Bailey had been indicted by the Grand Jury of Contra Costa County for the crime of perjury. A bench warrant was immediately issued upon the indictment and placed in the hands of the Sheriff. The County Court, at the time the bench warrant was directed to issue, ordered that the defendant be admitted to bail in the sum of one thousand dollars. Bailey, upon being arrested by the Sheriff, procured immediately defendant and one Taylor to sign the bail bond as sureties, who, as such, justified before a Justice of the Peace of said county. The Justice then delivered the bond to the Sheriff, and directed him to take it to the County Judge for approval; whereupon Bailey was discharged from custody. On the following day the bond was delivered by the Sheriff to the County Judge, who indorsed thereon his approval, though neither of the sureties ever appeared or justified before him. When afterwards the indictment was called for, trial, Bailey failed to. appear, and the recognizance was declared forfeited, and the District Attorney directed to prosecute the same. In this action, which was brought to recover the penalty of the bond, judgment was rendered in the District Court against the sureties for one thousand dollars, the penalty of the bond, and costs. A motion for new trial was denied by the District Court, and defendant Penniman appealed from the judgment and from the order denying said motion.</p>

The defendant was indicted, tried, and convicted of the crime of arson. The defendant moved for a new trial, which was denied.

The defendant, who was indicted for the murder of S. M. Simpson, was tried and convicted of murder in the first degree. At the trial, and while the jury were being empaneled, the counsel for defendant, after examining separately several persons who had been summoned as trial jurors touching their qualifications as such jurors, interposed a challenge to each, “for cause”—which was overruled by the Court, and the counsel for defendant excepted.

The following was the complaint in this cause: “Now comes the plaintiff above named, and by leave of the Court first had and obtained, files this its amended complaint in the above entitled cause, and alleges that plaintiff is, and has been for a long time prior to the commission of the grievances hereinafter complained of, a body corporate, duly organized, created, existing, and acting under and by virtue of the laws of the State of California. “ That said plaintiff was…

This was an action of ejectment to recover the west quarter of Lot Number Five in the block bounded by Second and Third and I and J streets, City of Sacramento. Barton Lee, the father of the plaintiff, in 1850 owned a larger lot, embracing the demanded premises. He failed in business, and conveyed this and other property to assignees in trust to pay his debts, amouting to several hundred thousand dollars.

This was an action of ejectment to recover a tract of land in the City of Sonoma, commenced April 2d, 1868. Trial by the Court, June 23d, 1868, and findings of fact filed the same day, and judgment for plaintiff. On the same day written notice of the filing of the findings served on the plaintiffs’ attorneys.

<p>Appeal from the District Court, Third Judicial District, Santa Clara County.</p>

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>This was an action of ejectment to recover a part of Block Two Hundred and Ninety, in the Western Addition to the City of San Francisco. Complaint was filed November 14th, 1864, and judgment rendered December 1st, 1866, as follows:</p> <p>“ Wherefore, by reason of the law and the finding aforesaid, it is ordered, adjudged, and decreed that Edward Ford, plaintiff, do have and recover from James Doyle, defendant, the possession of that certain lot or parcel of land lying and being situated in the City and County of San Francisco, and described as in the complaint.”</p> <p>The other facts are stated in the opinion of the' Court.</p>

This was an action of ejectment to recover possession of City Slip Lot Number Forty-three in the City of San Francisco. The complaint averred ownership in the plaintiff on the first day of October, 1862, and ouster by the defendants. Suit was commenced August 17th, 1865. The answer set up five years adverse possession. The lot is a part of the water front of San Francisco, The cause was tried on the 28th of August, 1867, by the the Court, sitting without a jury.

This was an application to this Court for a writ of mandate to compel the Board of Supervisors of the County of Plumas to subscribe to the capital stock of the Oroville and Virginia City Railroad Company the sum of two hundred and thirty thousand dollars, and to issue to said corporation the bonds of the county in payment of the subscription. The Legislature passed an Act, approved March 30th, 1868, the first three sections of which are as follows: “ Section 1.

City and County of San Francisco. ' This was an action for a divorce, on the ground of extreme cruelty.

.. Appeal from the District Court, Fourteenth Judicial District, Placer County. The jury found a verdict in favor of the plaintiff for seventeen hundred dollars. . The defendant appealed. The other facts are stated in the opinion of the Court.

<p>Appeal from the District Court, Fifth Judicial District, San Joaquin County.</p> <p>This was an action of ejectment to recover possession of the south half of Section Six and the north half of Section Seven in Township Two North, Range Eight East, Mount Diablo Meridian, San Joaquin County. The complaint was filed April 7th, 1862.</p> <p>The defendants, when the trial commenced, moved the Court, on an affidavit that Lareo had become the owner of the property, to substitute Nicholas Larco as a plaintiff' in place of Hestres. The Court denied the motion.</p> <p>The case was called for trial on the 19th day of December, 1867. The plaintiff, after proving that he was administrator, etc., offered in evidence certificates of the State Locating Agent of California, approved by the United States Land Register and Receiver, showing that, November 26th, 1860, he had located the demanded premises as a part of the five hundred thousand acres donated to this State for school purposes, and of the seventy-two sections donated to this State for a seminary of learning, and that said locations had been made for the use of H. N. Pease and Henry S. Sargent. Plaintiff then introduced State certificate of purchase issued to said Pease and Sargent on the 19th day of February, 1861, and conveyances by them to the plaintiff’s intestate, dated the 5th and the 29th days of January, 1861. Plaintiff offered in evidence a patent from the State of California to the estate of the plaintiff’s intestate, dated the 25th day of May, 1863. The defendants objected to the patent, because issued after the commencement of the suit. The Court overruled the objection.</p> <p>The plaintiff having rested, Thomas Brennan, one of the defendants, being placed on the stand as a witness, was asked this question by attorney for defendants: “When did you first become acquainted with the lands in controversy?”</p> <p>Plaintiff’s attorney objected to all evidence on the part of the defendants as to title in the defendants or either of them, on the ground that defendants had no right to attack the title of plaintiff, in this suit, or to show any title in themselves, except such title as is derived from plaintiff or the State of California, as the case now stands, as shown by the testimony introduced on the part of plaintiff. The Court sustained the objection of plaintiff, and ruled that all evidence be excluded on the part of defendants tending to show title in defendants, or either of them, to the lands in controversy, other than title derived from the plaintiff' or the State of California; plaintiff’s attorney stating that he did not propose to show title in defendants derived from plaintiff or from the State of California. The plaintiff had judgment, and the defendants appealed.</p> <p>The other facts are stated in' the opinion of the Court.</p>

This was an action of ejectment, to recover possession of a tract of land in San Francisco, commenced October 31st, 1861. The complaint was in the usual form.

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

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

The Mexican Government, in 1846, granted to Daniel A. Hill one league of land in what is now the County of Santa Barbara. The United States District Court confirmed the grant to said Hill, and the President of the United States issued to him a patent therefor March 10th, 1865. More, the plaintiff, purchased the land from Hill on the 26th day of ¡November, 1864. Where the land fronts on the sea shore, between high and low tide, are mines of asphaltum.

The facts are stated in the opinion of the Court and in the concurring opinion, and in the report of this case on the first trial, 30 Cal. 65.

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

<p>Aipeal from the District Court, Fifth Judicial District, ■ Stanislaus County.</p> <p>The facts are stated in the opinion of the Court.</p>

This was an action of ejectment for a tract of land in the City of San José, designated on the official map of said city as Lot ¡Number Seven, in Block Two, in Range Three ¡North, of the base line. From the record it appeared that on the 16th day of July, 1847, John Burton, Alcalde of San José, made a grant of said lot and another (¡Number Six) to Joseph S. Buckle.

Upon the trial the defendant offered in evidence the judgment roll in the case of Peter Quivey v. Joseph 8. Buckle, brought to foreclose the mortgage. The following is the certificate of service attached to the summons in said cause: “I certify to having made a personal service of this summons, and a certified copy of the same, as also a certified copy of the bill of complaint, on George S. Buckle, on the 30th day of July, 1850. “John C. Hays, Sheriff. “By Jno.

The plaintiff averred in his complaint that on the 16th day of November, 1862, he entered and settled upon a tract of land described as the Southwest Quarter of Section Twenty-five, in Township Four North, in Range Four West, of Mount Diablo meridian, in Napa County, California, and that said land was apart of what was formerly known as the Soscol Rancho, and which was claimed under a pretended Mexican grant by M. G. Vallejo, but which grant had been rejected by the Supreme…

<p>Ejectment and Tenant in Common.—The grantee of a specific quantity in a larger tract, thereafter to be segregated, becomes a tenant in common with his grantor of the entire tract, and may maintain ejectment against his co-tenants.</p> <p>Idem.—A quitclaim deed passes all the title which the grantor has, and will support ejectment.</p> <p>Law of the Case.—The rule that a previous decision becomes the law of the case, applies only to the decisions of the Court of last resort.</p> <p>Idem.—If, in the trial of a case'at nisiprins, an erroneous ruling is made, it is not binding upon the Court if the question again arises.</p>

<p>Appeal from the District Court, Second Judicial District, Tehama County.</p> <p>The complaint averred that on the 26th day of June, 1865, the plaintiff recovered a judgment before a Justice of the Peace against Prising and Shell for one hundred and ninety dollars and seven cents, and interest until paid at the rate of five per cent per month. That the judgment was docketed in the County Court, and on the 17th of October, 1867, an execution was issued on it and placed in the hands of the defendant, who was Sheriff" of Mendocino County, which execution was returnable in sixty days; and that the Sheriff had collected the money, but had failed to return the execution, to the damage of plaintiff in the sum of five hundred dollars, and interest at five per cent per month until paid.</p> <p>There was a further averment that by reason of the failure of the defendant to make return of the execution, he had become liable to the plaintiff in the penalty and sum of two hundred dollars, according to the provisions of an Act concerning Sheriffs, passed April 29th, 1851. The prayer was for judgment for seven hundred dollars, and interest at five per cent per month as aforesaid.</p> <p>The answer failed to deny the allegations of the complaint, and the cause was submitted on the pleadings. The Court gave the plaintiff judgment for two hundred dollars and costs of suit. The plaintiff appealed.</p>

<p>Appeal from the District Court, Third Judicial District, Sauta Clara County</p> <p>The defendants appealed.</p> <p>The facts and points of counsel are sufficiently 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>The defendants appealed.</p> <p>The facts and the points of counsel appear in the opinion of the Court.</p>

<p>Appeal from the District Court, Third Judicial District, Alameda County.</p> <p>This action was brought to recover four thousand dollars for the service rendered in finding a purchaser of the defendant’s land. The proof showed that the contract between the plaintiff' and the defendant was in parol. The Court below was of opinion that the contract was within the Statute of Frauds, so far as it related to the sale and conveyance of land, and that for that reason the plaintiff could not recover. The plaintiff appealed</p> <p>The other facts are stated in the opinion of the Court.</p>

This was an original application in this Court for a mandamus to compel the Hon. Warren T. Sexton, District Judge of the Second Judicial District, but at the time upon the bench of the District Court of the Twelfth Judicial District, for the City and County of San Francisco, to enter judgment in an action pending before him, wherein Bichólas Smith was plaintiff and John F. Penney and J. B. Thompson were defendants. The action of Smith against Penney and.

Both the Uncle Sam Silver Mining Company and the Overman Silver Mining Company were corporations formed in the State of California, but carrying on the business of mining in the State of Hevada. The plaintiff was a creditor of the Uncle Sam Silver Mining Company in 1865, when the agreement between the Overman Silver Mining Company and the Uncle Sam Silver Mining Company was entered into. The plaintiff appealed. The other facts are stated in the opinion of the Court.

The plaintiff had been incorporated prior to the 18th of April, 1866, under the laws of this State, under the corporate name of tho “Pacific Accumulation Loan Company.” On that day, acting under an Act of the Legislature passed March 31st, 1866, entitled “An Act to authorize the ‘Pacific Accumulation Loan Company’ to change its name,” the plaintiff changed its name to “Pacific Bank.” On the 31st of August, 1865, one Bichard Chenery had made his promissory note payable to the…

This was an action to recover possession of the Miners’ Ditch, the Doorman’s Ditch, the extension of the Doorman’s Ditch, the Grizzly… Held: or in what manner they usually transacted their business. “Nineteenth—The certificate of incorporation of the Miners’ Ditch Company contains the following statement of the objects and purposes of the company: “‘The object for which the said company is formed is to direct the waters running in the bed of the Middle Tuba, at or near a…

<p>Appeal from the County Court of Tehama County,</p> <p>One of the defendants appealed.</p> <p>Tho facts and points of counsel are stated in the opinion of the Court.</p>

<p>When Governor, may Appoint to an Office.—When there is a person in possession of an office who is expressly authorized hy the statute or Constitution to discharge its duties temporarily, till the power upon whom the duty of election or appointment is devolved can regularly act, the Governor has no power to appoint, because no vacancy exists within the meaning of Article ¡Five, section eight, of the Constitution.</p> <p>When Governor can ¡Fill Vacancy in Office.—When the Act creating an office and fixing the duration of the term provides that the officer shall be elected by the Legislature, and hold his office until his successor is elected and qualified, the failure of the Legislature to elect at the expiration of the term does not create such a vacancy as the Governor is authorized to fill by appointment, but the incumbent holds until his successor is elected by the Legislature.</p> <p>When Officer may Hold Over.—When the term of an officer expires, and the law or the Constitution authorizes him to hold over until his successor is elected and qualified, the old incumbent is authorized to discharge the duties of t,he office until a qualified successor presents himself who has been elected by the body upon which the power of election is devolved \ and the Governor has no power to appoint a successor.</p>

The action was against a forwarder for the conversion of goods, and the defendant appealed.

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

<p>Vacancy in Office.—Whether a failure to elect a successor leaves an office vacant at the expiration of the term, in the sense of the eighth section of the Fifth Article of the Constitution, which provides that “when any office shall, from any cause, become vacant, and no mode is provided by the Constitution and laws for filling such vacancy, the Governor shall have power to fill such vacancy by granting a commission, which shall expire at the end of the next session of the Legislature, or at the next election of the people/ ’ considered, hut not fully decided.</p> <p>Vacancy in Office of Director of the Insane Asylum.—Under the statute of 1866, creating a Board of Directors of the Insane Asylum, which provides that “ in case of a vacancy in said Board occurring when the Legislature is not in session, said Board may fill said vacancy until the next assembling of the Legislature, and then the Legislature shall proceed to fill said vacancy for the unoxpired term only/' the filling of vacancies is provided for in the sense of the eighth section of the Fifth Article of the Constitution, and the Governor has no power to fill them by appointment, whether the vacancy be for a full or an unexpired term. (Sprague, J., and Crockett, J., dissenting.)</p> <p>Idem.—If a Director of the Insane Asylum resigns, and the Board of Directors fill the vacancy, the new incumbent will hold until the assembling of the Legislature, and thereafter until the Legislature fills the vacancy; and if the Legislature adjourn without filling the vacancy, ho will still hold until a successor appears who has been appointed by the Board or elected by the Legislature. (Sprague, J., and Crockett, J., dissenting.)</p>

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

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

<p>Appeal from the District Court, Second Judicial District, Butte County.</p> <p>The facts and the points and authorities of counsel are fully stated in the opinions delivered in the case.</p>