Volume 38 — California Reports

<p>Repairs to Streets or Highways.—The owner of land, bordering upon public streets or highways, is not bound to lceep them in repair.</p> <p>Repairs to Streets and other Public Thoroughfares in San Francisco.— The law does not impose upon the owner of a lot fronting upon a public street m San Francisco, the duty of repairing defects in the portions of the street upon which Ms lot abuts.</p> <p>Streets and other Thoroughfares in San Francisco.—The legislative charter of the City and Couniy of San Francisco confers the entire control, supervision and management of all the public streets, thoroughfares, etc., within its corporate limits, upon the Board of Supervisors and Superintendent of Public Streets and Highways.</p> <p>Consolidation Act—Construction of the 24th Section as amended in 1863.— The design, and only effect of tMs section, is, to exempt the city and county from the liability for injuries wMeh would otherwise attach to it, by reason of the exclusive control of the streets and public highways, conferred upon it by other sections of the statute, and to transfer such responsibility to individual officers, agents and employes of the corporation.</p> <p>Statute of April 26, 1862.—The application of the Act “requiring compensation for causing death by wrongful act, neglect or default,” is not to be extended to any matters not embraced in the strict letter of the statute.</p> <p>Action against Administrator.—No action can be maintained against an administrator, as stich, that is founded upon malfeasance or misfeasance, or for a tort.</p> <p>Idem.—No action can. be maintained to charge the estate of a deceased person upon a money demand, unless the claim has been previously presented to the administrator for Ms allowance.</p>

Twelfth District Court, City and County of San Francisco. Suit was commenced, in April, 1867, to .recover on two promissory notes, made in the early part of the year 1858, and payable immediately after their execution.

<p>State Selections upon Unsubveyed Public Lands Confirmed.—The holders of State selections, made upon public lands not then surveyed by authority of the United States, under the Act of Congress of the 23d of July, 1866, to quiet land titles in California, have acquired the rights of a pre-emptioner upon unsurveycd public land, if their selections have been surveyed and marked off, and designated in the field, and bought, in good faith, under the laws of the State, unless, at the date of that Act, some pre-emption, homestead, or other right, under the • laws of the United States, had attached to the land, or the land was within some reservation.</p> <p>Effect of the Act of Congbess of the 23d of July, 1866, upon State Locations.—It had the effect to legalize the possession of locators upon unsurveyed lands, until they have an opportunity to present their claims for determination by the officers of the United States, as therein provided, and to enable them to maintain actions in the Courts, in relation thereto.</p> <p>Idem.—Under the Act of Congress of the 23d of July, 1866, the holder of a State location upon unsurveyed public land, bought by him in good faith, under State laws, may maintain ejectment, if ousted.</p> <p>“Land sold in Good Faith”—Meaning of.—By the words “sold to purchasers in good faith, under the laws of the State,” occurring in the Act of Congress of the 23d of July, 1866, is meant such selections as have been made according to the conditions of the State laws under which they purport to have been made, and which have been sold in a manner which would have passed the title, had it then been in the State.</p> <p>Bubden of Pboof in an Action to becoveb a State Selection.—The holder of a State selection upon unsurveyed public land, in an action to recover the possession, makes a, prima facie case by exhibiting a certificate of purchase from the State. If the land be within any of the exceptions stated in the Act of Congress, the burden of proof is upon the defendant.</p>

<p>Appeal from the District Court of the Third District, County of Santa Clara.</p> <p>Trial by the Court, and judgment being given in favor of defendants, the plaintiff appealed.</p> <p>The facts in the case are stated in the opinion.</p>

<p>Appeal from the District Court of the Fourth District, City and County of San Francisco.</p> <p>Suit to recover land. After the complaint was filed, and before answer, the interest of the defendant in. the land in controversy was sold by the Sheriff, under an execution against him, to John McHugh and James Brennan, who, upon regular motion, and under exception by plaintiff, were substituted by the Court as defendants in the action, in place of James Wallace, and the answer was filed, and the defense conducted in their names, and on their behalf. At the trial, after plaintiff had exhausted his peremptory challenges, one Jtyan was called as a juryman, who, in answer to questions touching his competency, said : “ I am engaged in the same business as Brennan & McHugh; I have business with them frequently; if the evidence were evenly balanced, I would incline to their side—but, of course, I would decide the case against them if the testimony was against them.” Whereupon the plaintiff challenged him as a juryman, on the ground of bias.</p> <p>The other facts in the case are stated in the opinion. There was a verdict and judgment for defendants. From the judgment, and from the order refusing a new trial, the defendant appealed.</p>

The facts of this case are minutely detailed in 28 Cal. 652, and in 32 Cal. 659. They are likewise sufficiently recapitulated in the dissenting opinion of Hr. Justice Cbocicett, to render any further statement unnecessary for the full and clear apprehension of the points discussed or decided.

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

The plaintiffs appealed. By the statute enacting and organizing the County of Kern, it was provided that the Sheriff of the County should be, ex officio, Tax Collector. The statute contained no provision to the effect that his official bond as Sheriff should serve also as his official bond as Tax Collector, or that he should be required to give but one bond, which should be for the faithful performance of the duties of both offices.

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

The action was for the recovery of a lot of ground in the City of Vallejo, and within the limits of the Suscol rancho. The plaintiff'claimed title through several mesne conveyances, under the Act of Congress of March 3d, 1863 (12 U. S. Stats. 808) “granting the right of pre-emption, etc., to the purchasers of the Suscol rancho,” and a patent issued in conformity therewith.

<p>District Court—Want of Jurisdiction in.—The District Court has no jurisdiction of an action against an administrator, which seeks to charge the estate with expenses of administration.</p> <p>Expenses of Administration—Jurisdiction of Probate Court over.—Services rendered and money advanced, at the request of an administrator, for the benefit of an estate, are “expenses of administration;” and the Probate Court has exclusive original jurisdiction to adjust and enforce such demands.</p>

<p>Appeal from the District Court of the Fifth District, County of San Joaquin.</p> <p>The case is stated in the opinion of the Court.</p>

<p>Appeal from the District Court, Fifth District, San Joaquin County.</p> <p>The case is stated in the opinion.</p>

<p>Appeal from the County Court of Mendocino County.</p> <p>The case is stated in the opinion of the Court.</p>

This proceeding arose under the provisions of the statute directing the Surveyor General, in certain cases, to refer the contest between conflicting claimants of State lands to the decision of the District Court. Judgment was entered in favor of Ketchum, and Dunn appealed. The case is stated in the opinion.

Upon the trial, when the plaintiff had introduced all his testimony, the defendant moved for a nonsuit, which was refused. The verdict and judgment was for -the plaintiff, and the defendant appealed. The case is-stated in the opinion of the Court.

Action for damages against the defendant for obstructing the plaintiff in the enjoyment of a right of way across the defendant’s land, and for an injunction restraining the continuance of said obstructions. The complaint contained two counts. The first count set forth, among other matters, that one Wolfle was once the owner of both the plaintiff’s and defendant’s tracts of land.

<p>Appeal from the District Court of the Fifth District, San Joaquin County.</p> <p>The case is fully stated in the opinions delivered.</p>

<p>Appeal from the District Court of the Fifth District, San Joaquin County.</p> <p>The case is stated in the opinion of the Court.</p>

• Defendant was indicted, jointly with one John O’Donnell, for the crime of burglary. The indictment charges that defendant, with force, etc., did break and enter the house, room, apartment and tenement of one Frank Garcia, with intent, then and there, in said room, etc., to commit larceny. Defendants demanded separate trials.

<p>Consideration—Failure of.—A failure of consideration, in whole or in part, after a bona fide assignment of a promissory note, is no defense to a suit by the assignee against the maker, even though the assignee had full knowledge of the original consideration for which the note was given.</p>

The defendant was indicted for an assault with intent to commit murder upon C. Mittrovich. He was tried and convicted, as charged.

<p>Appear from the District Court of the Fifteenth District, City and County of San Francisco.</p> <p>The suit was brought on the following instrument:</p> <p>-‘San Francisco, Aug. 26, 1865.</p> <p>“On the sale-of the Baker Mine, situated near Lincoln, Placer Co., Cal., I promise to pay to Wm. M. Gabb, for services rendered in assisting in the sale of said mine, by report or otherwise, the sum of two thousand five hundred dollars, gold coin of the United States, provided such sale shall be made within twelve months from the above date.</p> <p>“G. 0. King.”</p> <p>There was judgment for the plaintiff, and the defendant appealed.</p>

<p>Appeal from the County Court of San Joaquin County. The case is stated in the opinion.</p>

<p>Appeal from the District Court of the Fifteenth District, City and County of San Francisco.</p> <p>There was judgment for the defendant, and plaintiff appealed.</p> <p>The facts are stated m the opinion of the Court,</p>

This was an action brought under the statute concerning unlawful detainers, for the restitution of demised premises after the expiration of the term, and for damages.

<p>Appeal from the District Court of the Fifteenth District, City and County of San Francisco.</p> <p>The plaintiff, a married woman, complained that her husband, one of the defendants, had sold to Madden, the other defendant, a lot of land which was of her separate estate, and prayed the injunction of the Court to prevent the consummation of the sale by execution of deed. The complaint was verified.</p> <p>The husband entered no appearance to this complaint.</p> <p>Madden answered that he had no information or belief as to whether the lot was of her separate estate or not, and for that reason denied that it was.</p> <p>He further charged in his answer, by way of cross-complaint, that Kirstein, his co-defendant, by a written instrument, agreed to sell to him the lot in controversy, and execute a deed therefor, and prayed for the specific performance of this agreement. A copy of the instrument was set forth in the answer.</p> <p>To the cross-complaint, the defendant, Kirstein, filed a general demurrer.</p> <p>The plaintiff took default against the husband, and then moved for judgment against Madden in the pleadings. Pending the discussion of this motion, Madden moved, upon his affidavit, to amend his answer, by more fully denying that the property in dispute was part of the separate estate of the wife.</p> <p>This motion was overruled, and judgment was granted to plaintiff upon the pleadings.</p> <p>The demurrer of defendant, Kirstein, to Madden’s cross-complaint was sustained. Final judgment was afterwards signed, from which Madden appealed, and assigned the foregoing rulings of the Court as errors.</p> <p>The instrument of writing set out in the cross-complaint was as follows:</p> <p>“ I have this day sold to John Madden my lot on Natoma street, together with all the buildings and improvements thereon, and known by No. 32 (giving a full description), for the price of $6,500, in gold coin of the United States, and have received fifty ($50) dollars on account of the purchase of said lot. This sale is subject to the approval of the title. If the title be rejected as bad, I agree to refund said Madden the above mentioned fifty dollars; but if the title be approved, I agree to convey to said Madden, or his assigns, by a good and sufficient grant) bargain and sale deed, the above described premises, by said Madden paying me the balance of the purchase money, in gold coin of the United States. And I also allow said Madden fifteen days, from the date hereof, for the examination of the title of said premises, and have hereunto set my hand and seal, this 22d day of July, A. D. 1868.</p> <p>“Chables Kibstein.” [seal.]</p> <p>The affidavit and other papers on which Madden moved to amend his pleading, are not set out at length in the statement on appeal, but are therein referred to as being found in the transcript of the record of the proceedings before the District Judge, and are by him, in said transcript, duly certified and authenticated as the papers and affidavit upon which the motion was made. Kespondent’s counsel objected to the consideration of any of the documents that were not set out in the statement on appeal.</p>

On the trial of this case, one Michael Hayes testified : “That he was the person who took out the contract sued upon and mentioned in the complaint. After the contract was awarded to him, he met the defendant, Beay, who told witness that he (B.) had been to the office of the Street Commissioner to take out a ‘property owners’ contract’ for the work.

This case was submitted to the Court upon an agreed statement, the following extract from which fully exhibits the origin and nature of the controversy: In the year 1855 the College of California was incorporated as a College of Science and Letters, pursuant to the provisions of an Act of the Legislature of the State of California, entitled “An Act to provide for the Incorporation of Colleges,” passed April 20,1850, and the several Acts amendatory thereof.

<p>Appeal from the District Court of the Fourth District, City and County of San Francisco.</p> <p>There was judgment for plaintiff, and defendant appealed.</p> <p>The case is stated in the opinion.</p>

The defendant was tried for murder, and found guilty in the second degree. He appealed to this Court. The facts are stated in the opinion.

Suit was brought to compel the defendant to execute a conveyance to plaintiff of the undivided one half of a lot or parcel of land lying in the City of Petaluma, to which plaintiff claimed to be entitled by virtue of his having paid one half of the purchase money for the same, together with the defendant, to whom alone the deed from the vendor was made, conveying to the defendant the title to the whole.

The plaintiff relied for title upon a deed executed by John W. Geary and others. This instrument showed, in its introductory clauses, that it was intended to be executed by the grantors in their capacity as ‘‘Fund Commissioners of the City of San Francisco,” hut to which their individual signatures and private seals alone were affixed.

<p>Appeal from the District Court of the Fourteenth District, Placer County.</p> <p>The defendant appealed.</p> <p>The case and points of counsel are sufficiently stated in the opinion of the Court.</p>

<p>Practice—Statement fob New Trial.—.Under Section 195 of the Practice Act, this Court cannot review the action of the Court helow in refusing a new trial, if the statement upon which the motion is founded fails to specify the particulars in which the evidence is insufficient to justify the decision, and there he no errors of law, except on the assumption that the decision was contrary to the evidence.</p>

<p>Practice on Appeal.—Unless the undertaking on attachment he referred to in, or he made a part of, the statement on appeal, it will not be regarded as a portion of the record by the appellate Court.</p> <p>Partners—Action between.—No action at law can be maintained, nor can an attachment be sued out, by one partner against another for any matter touching the partnership affairs.</p> <p>Partnership.—In consideration of the right granted him hy plaintiff, to make, use, and vend at Ms (the defendant’s) own expense, and on his own account, within the British Dominion, certain machines of which the plaintiff was the inventor, and to sell the right to others to make, use and vend the same, the defendant undertook and agreed to procure from the British authorities letters patent to the plaintiff for said machines, and to pay over, quarterly, to the plaintiff one half the proceeds of all sales made by Mm. Held—not a contract of partnership.</p> <p>Idem. —Actual intention is necessary to constitute a partnersMp inter se.</p> <p>Idem.—Where there is no community of interest in capital, stock, profit or loss, there is no partnership.</p> <p>Attachment—Practice.—There is no objection to the preparation of all the papers requisite, to the writ of attachment, before, or at the same time the complaint is prepared, so that the undertaking and affidavit he not filed in advance of the complaint, and the writ he not issued before the summons and the copy of complaint.</p> <p>Idem.—It is not necessary for the affidavit to state the probative facts requisite to establish the ultimate facts required by the statute to he shown as the basis of the writ.</p>

<p>Pleading.—The allegation in a complaint that, the plaintiff “is the owner” of the land sued for, is, in substance, an allegation of seizin in fee, in “ ordinary,” instead of in technical language.</p> <p>Desckietion op Land.—A description is not defective which calls for a lot of land one hundred varas square, bounded on three sides by well known streets, upon the plat of a city laid out, surveyed and platted, and. on the other by the unsurveyed lands.</p> <p>Alcaldes’ Recobds op Gbants, etc.—Certified copies of instruments found in the books of records of deeds, etc., kept by Alcaldes, and which have been transferred to the custody of County Becorders, are admissible in evidence under the same circumstances as are certified copies of records made by the Recorders themselves. Spbague, J., dissenting.</p> <p>Book “K” of Deeds, in Office of Becobdeb of San Francisco.—Certified copies of instruments recorded in Book “K” of Deeds, in the office of the Becorder for the City and County of San Francisco, are admissible in evidence without proof of the execution of the originals. Spbagüe, J., dissenting.</p> <p>Touchard v. Keyes (21 Cal. 203), and Anderson v. Kish (36 Cal. 625), commented on, and approved.</p> <p>Name of Gbantee in Conveyance. —It is sufficient, in a conveyance, if the grantee is denominated by the customary name at the time of the execution of the instrument—no matter what might be the true name.</p> <p>Tax Sales.—-A party against whom a tax is levied cannot obtain any title to property, by purchase of it at a sale for the payment of the taxes which he should have discharged.</p> <p>Assessment fob Taxes.—An assessment is void if there be no valuation.</p> <p>Presumption of Death.—That a person has not been heard of for seventeen years by his wife, is sufficient to justify a presumption of his death.</p> <p>Per Sfbaqüe, J., dissenting:</p> <p>Bule of Evidence.—The best evidence of which the case, in its nature, is susceptible, must always be produced.</p> <p>Idem—Alcalde Grants.—-The best evidence of an Alcalde grant is the official public record of the acts of the Alcaldo by whom the grant was made. In the absence of this, and of all secondary proof to establish the genuineness of the grant, a copy of a record of a grant made in a book seen in the office of an Alcalde, is not admissible in proof—more especially, if the grant claimed was made nine months before the record, and it be not shown that the Alcalde in whose charge it was seen continued in office until the date of the record.</p> <p>This case distinguished from Donner v. Palmer (31 Gal. 508), and Touchard v. Keyes (21 Cal. 209.)</p> <p>Pbesumption of Death from Absence of Intelligence.—The testimony of the Wife that she had not heard from her husband for seventeen years, being herself, all the time, absent from his last known place of residence, living under various assumed names, and at no time bearing that of her husband, thereby suggesting the probability that she had endeavored to conceal herself from her husband, is not sufficient to justify the presumption of his death.</p>

The defendants demurred to plaintiff’s complaint, on the ground that it did not set forth facts sufficient to constitute a cause of, action. The wife demurred on the further ground, that she was improperly made a party to the suit. The demurrers were sustained, and the plaintiff declining to amend his complaint, final judgment was thereupon rendered for the defendants. From which order and judgment the plaintiff appealed. The case is stated in the opinion.

<p>Occupancy op Lands by Tenants in Common.—Tenants in common hold their lands by unity of possession, and each and every one of them has the right to enter and occupy the whole of the common lands, and every part thereof.</p> <p>Possession op one Tenant in Common__One tenant in common has no share, except that which is undivided, and has no right to exclude his co-tenant from any portion of the common lands.</p> <p>Oarpentier v. Wilson (27 Cal. 524) cited and approved.</p> <p>Wbit op Assistance—Execution op.—It is the duty of the Sheriff, in the execution of a writ of assistance, to place the purchaser on foreclosure of mortgage of an estate in common in the possession of every part and parcel of the land, jointly with the other tenants in common.</p> <p>Idem. —In the execution of the writ, the Sheriff cannot remove any of the tenants in common who hold under a title derived from a source independent of him through whom the purchaser claims.</p> <p>Writ of Assistance—Second Wbit.—If the return to the first writ does not clearly declare that it has been fully executed, and it is made to appear by affidavits that it has not been, it is competent for the Court to issue another writ.</p>

This suit was brought against Davis and wife, as the makers of a note and mortgage, and against the other defendants as purchasers and subsequent encumbrancers of the mortgaged premises, to obtain judgment on the note and to foreclose the equity of redemption of all the defendants.

<p>When Landlord bound by Judohent aoainst Tenant.—In an action of ejectment against a tenant, if the landlord assumes the defense and puts Ms title in issue, the judgment rendered therem bmds Mm as evidence by way of estoppel, the same as though he was made a party on the record.</p> <p>Decided on authority of Valentine v. Mahoney, (37 Cal. 389.)</p>

<p>Appeal from the District Court of the Twelfth District, City and County of San Francisco.</p> <p>The complaint alleges that the defendant, Wilson, being indebted to one James C. Zabriskie and his associates in a certain mining enterprise, in the sum of $1,500, for the purpose of securing the payment of the same, executed a conveyance of certain described tracts or parcels of land to the said Zabriskie, in trust for himself and the said co-creditors of the said Wilson. That afterwards the said creditors of Wilson, for value received, transferred and assigned said indebtedness of $1,500 to the plaintiff. That at the time of said transfer, the said Zabriskie executed to the plaintiff a mortgage upon the tracts or parcels of land so held by him in trust, to secure the payment of the said indebtedness to the plaintiff. It then continues in the ordinary form by asking for a judgment against said Wilson for the amount clue, and for a decree of foreclosure and sale of the described premises.</p> <p>The defendant, Wilson, moved the Court to dismiss the action as to him, on the ground:</p> <p>That the complaint shows that the instrument or conveyance made by the said Wilson to the said Zabriskie and others, was only in the nature of a mortgage or trust, to secure certain indebtedness, then owing by said Wilson to the said Zabriskie and the other persons therein named, and for no other purposes; and that the said Zabriskie, as such trustee, had no power to transfer such trust, or such conveyance, nor any power to mortgage, convey, transfer or otherwise encumber the premises described in the said complaint, and so mortgaged and entrusted to him for a specified purpose.</p> <p>Which motion being overruled, the defendant, Wilson, filed his answer. As the issues presented by the answer are not noticed in the opinion of the Court, it is deemed unnecessary to set forth the character of its contents.</p> <p>There was a trial by the Court, and judgment and decree for plaintiff, and a motion for a new trial, which was denied; from all of which Wilson appealed.</p>

<p>Alimony. — The provision for alimony, made in the statute concerning divorces, was not intended to be a prohibition to the granting of alimony in other cases.</p> <p>Idem.—The power to decree alimony falls within the general powers of a Court of Equity, and exists independent of statutory authority. And in the exercise of this original and inherent power, a Court of Equity will, in a proper case, decree alimony to the wife, in an action which has no reference to a divorce or</p> <p>Idem.—The power conferred on the Court by the statute concerning divorce and alimony, to provide for the separate maintenance of the wife, pending an action for, or after, a final decree of divorce, does, by necessary implication, negative the power or jurisdiction of the Court to decree an allowance for the separate maintenance of the wife, except when jurisdiction is acquired by the commencement of an action for divorce upon allegations of statutory cause therefor.</p> <p>Idem.—The subject-matter of allowance for separate maintenance or alimony to the wife, as an independent matter, is not within the general original jurisdiction of .Courts of Equity, and is only exercised in reference thereto as derivative and incidental to some other original, primary, substantive matter, to which their jurisdiction had attached.</p>

The facts of the case, so far as they are material to present distinctly the points decided by the Court, are as follows : The plaintiff, a judgment-creditor of Treadway, brought this action to set aside and have declared fraudulent and void, deeds of conveyance of certain property therein described, from Treadway to Dellinger, and from Dellinger to Eeay, on the ground that the first was made with the intention to defraud creditors; and that the second was obtained by Eeay…

<p>Appeal feom an Oedeb Refusing to Vacate the Awabd of Aebiteatoes.— An appeal from an order of the Court refusing to vacate the award of arbitrators must be taken within sixty days from the time the order is made. Motion to Dismiss an Appeal—Pbactice.—-If one of the grounds, on which a motion to dismiss an appeal is made, be that the appeal was not taken at the proper time, it is not waived by the failure to state it in the motion to dismiss, for it goes to the jurisdiction of the Court. But it is the better practice to take it at that time.</p>

<p>Pleading.—The rules of pleading, under our system, are intended to prevent evasion, and to require a denial of every averment in a sworn complaint, in substance and in spirit, and not merely a denial of its literal truth; and when the defendant fails to make such denials he admits the averment.</p> <p>Idem—Denial of Allegations Conjunctively Stated.—If several material facts are stated conjunctively in a verified complaint, an answer which undertakes to deny these averments as a whole, conjunctively stated, is evasive, and an admission of the allegation thus attempted to be denied.</p> <p>Idem.—The allegation of a complaint, that M., at the time of his death, owned and was in possession of twenty-two head of work oxen, each worth S75, is not put in issue by a denial “that M., at the time of his death, was in the possession of, or the owner of, twenty-two head of work oxen, worth S75 per head.” On the contrary, it is evasive, and equivalent to an admission of the allegation. Practice. — Whenever the answer fails to deny any of the material allegations of the complaint in such form as to put the same in issue, the plaintiff is entitled to judgment upon the pleadings.</p>

In this case, original proceedings were instituted before the Supreme Court by petition, on the part of the Attorney General, in behalf of the People of the State, for a writ of certiorari, to review the action of “the State Board of Judges, ” in awarding certain premiums therein complained of, and which, it was alleged, were in excess of their jurisdiction, because the Board of Judges had proceeded under the Act of 1866, which, it was contended, was repealed by an Act of…

<p>Construction of the 13th Section of the Act concerning Corporations.— The prohibition of the 13th Section of the Act concerning corporations is directed against the trustees, and is designed to protect creditors, as such; and, also, to protect the stockholders against their mismanagement in distributing capital stock in the form of dividends.</p> <p>Idem.—Any arrangement which will have the effect to withdraw the capital of an incorporated company, and turn it over to the stockholders, except in the manner provided by law, is in violation of that provision of the statute which forbids the trustees “ to divide, withdraw, or in any way, pay to the stockholders, or any of them, any part of the capital stock of the company,” and is void as to any creditor of the corporation, either prior or subsequent, who had no notice of the arrangement at the time of giving the credit.</p> <p>Capital Stock.—By capital stock, tho statute intends the capital of the corporation on which it transacts business, whether such capital consists of money, property or other valuable commodities.</p> <p>The Performance of Acts, prohibited by Law, will not be Enforced by a Court of Equity.—It may he stated, as a general proposition, that an act which the law prohibits to be done, is in so far infirm, that a Court of Equity will not lend its aid to enforce its performance. To grant any relief, the Court must first decide that the transaction, on which it is claimed, was lawful and valid.</p> <p>Idem.—Nor can a transaction, imbued with tho fatal infirmity of being in violation of law, be purged of its infirmity by means of an estoppel.</p> <p>Estoppel.—A judgment-creditor is not estopped from denying the title of the debtor to the property sold, under execution, in satisfaction of his judgment.</p> <p>Idem.—The doctrine of estoppel in pais proceeds wholly on the theory that the party to be estopped has, by his declarations or conduct, misled another to his prejudice, so that it would be a fraud upon him to allow the true state of facts to be proved.</p> <p>Idem.—When invoked in respect to the title of property, to constitute an estoppel it must appear: First'—That the party making the admission, by his declarations or conduct, was apprised of the true state of his own title; Second—That he made the admission with the express intention to deceive, or with such careless or culpable negligence as to amount to constructive fraud; Third—That the other party was not only destitute of all knowledge of tho true state of the title, but of all convenient or ready means of acquiring such knowledge by the use of ordinary diligence; and, Fourth—That he relied directly upon such admissions, and will be injured by allowing its truth to he disproved.</p> <p>The case of Dezell v. Odell (3 Hill, 315), questioned.</p> <p>Upon Re-hearing:</p> <p>Practice.—When a case, involving questions of law and of equity, is brought before the Court for trial, without a juiy, the more regular and orderly practice is, first, to dispose of the equitable branch of the case.</p> <p>Idem.—In such case, it should distinctly appear from the record, that the issues on the equity side of the Court were first tried and disposed of; or, if the whole action and all the issues were tried and submitted together, that fact should appear.</p> <p>Appeal.—Whether an appeal will lie from a judgment which determines only the questions of an equitable nature in the case, and leaves all the issues of law wholly undisposed of ? Quere.</p>

This appeal was taken from the order of the Court below dismissing the petition of the appellants for a mandamus to compel the respondent, Street Superintendent of San Francisco, to execute with the appellants a contract which had been awarded to them by the Board of Supervisors for the grading of a certain street. The other facts of the case are stated in- the opinions of the Judges.

<p>Statute of Limitations, on Demubbeb. — On demurrer to a complaint, founded upon the Statute of Limitations, if .the complaint fails to show whether the contract in suit was verbal or in writing, it will be presumed to have been in writing for all the purposes of the demurrer.</p> <p>Idem.—On appeal, all presumptions are in favor of the judgment; and if a demurrer to a complaint, founded upon the Statute of Limitations, has been sustained, and the transcript fails to show when the action was commenced, it will be presumed that it was not commenced until after the statute- had run.</p> <p>Statute of Limitations—Expbess Tbust.—The Statute of Limitations does not begin to rim in the case of an express trust, until the trustee, with the knowledge of the cestui que trust, has disavowed and repudiated the trust.</p> <p>Expbess Tbust.—T. agreed with 3L that if they could obtain a road franchise from the Legislature in T.’s name, and M. would draw a hill to that effect, and would construct half the road, he constructing the other half, they should be equal owners and divide the tolls. M. drew the hill, which became a law, and constructed his half of the road; then, by express agreement, T. took possession of the road and collected the tolls on mutual account. Held, to he an express trust. ■</p> <p>Public Policy.—M., for a consideration, promised to draft a bill for a franchise in favor of T., and to place it in the hands of some member of the Legislature, to he introduced in that body, but did not promise to work for its passage, either secretly or openly. Held, that the promise was not contra bonos mores.</p> <p>Idem.—A person may, without any violation of public policy, for hire, work for the passage of hills by the Legislature, provided he does not conceal his interest in the matter, hut lets it be known and understood by the members whose judgment he undertakes to influence.</p>

<p>Appeal from the District Court of the Fourth District, City and County of San Francisco.</p> <p>A statement of the case is contained in the opinion of the Court.</p>

<p>Appeal from the District Court of the Sixth District, Sacramento County.</p> <p>The case is stated in the opinion.</p>

<p>Appeal from the District Court of the Fourteenth District, Nevada County.</p> <p>The case is stated in the opinion.</p>

<p>Executions—When Voidable.—If an execution directs the levy of more money than the judgment calls for, it is not for that reason void, but only voidable.</p> <p>Executions—When Amended.—If an execution calls for too much money, it will not be set aside, but amended, so as to agree with the judgment, upon the application of the parties to it, or either of them.</p> <p>Execution Sales—When Valid—When Void. — Sales to a bona fide purchaser under voidable executions uve valid, though the executions be afterwards set aside, but sales under void executions are invalid, and pass no title, even to a bona fide purchaser.</p> <p>Common Law Rules as to Validity of Judicial Sales Unchanged by Statute. —The two hundred and thirty-seventh section of the code does not change the rules of the common law as to the validity of judicial sales, hut guards against their mischievous consequences in certain cases, hy affording a remedy which the common law does not.</p> <p>Bona Fide Purchased—Who is.—If a purchaser at a judicial sale he not a party to the execution, he is a bona fide purchaser; hut whether he would be a bona fide purchaser,' if a party to the execution, not decided.</p> <p>Executions not Void.—Executions which have been issued according to the established course of practice, and are not so erroneous that they cannot he amended, are not void.</p> <p>Executions Void.—Executions not under seal, issued from a Court which has been abolished, or is not of competent jurisdiction, or upon a void judgment, or upon a judgment against an administrator, or after the death of the judgment debtor, or after an appeal and stay—instanced hy the Court as probable examples of void executions.</p> <p>Executions not Open to Collateral Attack.—Executions which are merely voidable cannot be attacked collaterally even by tko parties to them, much less hy strangers.</p> <p>Idem. ■—The plaintiff in an action of ejectment relied upon an execution sale to which neither ho nor the defendant was a party. The execution called for $695 more than the judgment, but corresponded with it in other respects. Held— That the execution was not void, but voidable only, and the sale therefore valid. Executions not Ibbegulab.—If the execution calls for the amount of the judgment in the Court below, and for the costs of an appeal also, it is not, for that reason, irregular.</p> <p>Execution—Betubn of Imhatebial. —If the return endorsed upon an execution fails to show a legal levy, or any levy, the purchaser’s title is not prejudiced thereby, for it in no respect depends upon the return of the officer for its validity.</p>

<p>Pbopebty Exempt irtoir Execution.—The exemption of property liable to seizure and sale by the third subdivision of Section 219 of the Practice Act is intended to apply only to oxen, horses or mules, suitable and intended for the ordinary work conducted on a farm.</p> <p>Idem. —A stallion, not used as a work horse on a farm, but kept for the service of mazes, is not exempt from execution.</p>

<p>Pkacuce—Repebence.—When the Court has decided the principles upon wMch an account should be taken and settled, upon an order of reference, it is not competent for the referee to review the action of the Court; but it is his duty to take the account in pursuance of the principles thus settled.</p> <p>Idem.—If errors occur in determining these principles, the party which seeks to have them corrected by the appellate Court must do so by some proceeding addressed directly to that end; they cannot be reviewed in this Court on an application for a new trial, on the ground that the referee adopted and applied those principles in the adjustment of the accounts.</p> <p>Sobvivxng Pabtneb in Real Pbopebti-__The surviving member of a partnersMp owning real property is something more than a mere tenant in common with the representative of the estate of the deceased partner. He is a trustee for the purpose of winding up the affairs of the firm, and is accountable for ilic value of the use and occupation of the landed estate of the partnership.</p> <p>Surviving Partner and Administrator of Deceased Partner—The surviving partner is bound to account and pay over to the administrator of the deceased-partner all the profits of the realty, as well as that of the personalty that rightfully belong to the estate, notwithstanding he may have purchased the interest of the heirs in the estate, or of the community interest of the surviving wife of the deceased partner; and it is for the Probate Court to distribute the estate to the. parties entitled.</p>

<p>Constitutional Constbuction—Amendment of the Sixth Aeticle of the Constitution. —The provision of tiio 19th Section of the amendment of Article VI of the Constitution, to the effect that the organization of the several Courts shall not ho changed until the time appointed in the amendments, necessarily means that their jurisdiction shall continue until that time.</p> <p>Idem.—The several Courts of the State continuo with their jurisdiction unimpaired, notwithstanding the adoption of the amendment, until the organization of the new Courts hy which they were to he superceded.</p> <p>Skbvice of Pbotest in Surrs fob the Collection of Taxes.—In suits for the recovery of taxes, to obtain a valid judgment in rem against the real estate, it is necessary that the process should be served in the manner directed by the statute, viz: by posting a copy in some public place thereon.</p> <p>Idem. —If there be, however, sufficient service of process upon the owner, a personal judgment against him is valid, under an execution upon which the land may be sold.</p> <p>Sale of Land undeb Execution of a Judgment fob Taxes. —At a salo of land under execution of a judgment for taxes, it is competent for the Sheriff to sell the same to the purchaser who will take the smallest quantity to pay the judgment and costs.</p> <p>Judgment Docket.—It is not contemplated that there shall be moro than ono judgment docket in each county.</p>

<p>Pee-Emption Bights to Lots.™ Towns and Cities.—The Act of Congress entitled “An Act for the disposal of coal lands and of town property in the public domain,” approved July 1, 1864, and the supplementary Act thereto, approved March 3d, 1865, were designed for the benefit and relief of such persons as having settled upon the public land, might desire to lay out and establish a town or city, including their possessions; or having already laid out a town or city on unoccupied public lands, and settled upon lots or municipal subdivisions within the boundaries thereof, to enable the occupants of such town or city lots to procure a title thereto from the United States at a minimum price; and to enable other parties desiring to purchase lots within an established city or town, upon the public lands, to procure a valid title thereto.</p> <p>Idem.—In the passage of these laws, Congress had in view the individual interests of bona fide settlers upon small parcels of public lands, as well as the com- „ mon interests of a community of persons, so contiguously settled as to justify the establishment of a city or town, and did not intend the Act for the especial benefit of municipal organizations or corporations.</p> <p>Idem.—When a portion of the public domain had been laid out as a town, into streets, blocks and lots, settled upon, occupied and appropriated, prior to the Act of July 1st, 1864, persons who,i in good faith, were in the actual possession and occupation of any one or two lots, or other municipal subdivisions, with substantial improvements thereon, then actually existing, or subsequently represented by a proper map, plat, etc., filed, certified and verified by parties assuming to act for the inhabitants of the town, with the view of securing the benefits and privileges contemplated by said Act, acquired legal rights, and a vested interest in such lots or municipal subdivisions which, under the law, they had the privilege of ripening into a perfect title, and of which they could not legally be divested, except by neglect or failure on their part to avail themselves of the privileges secured by the law, or a voluntary relinquishment thereof.</p>

<p>Note Payable on Demand—Days op Gbace.—By provision of the statute (Statutes of 1851, p. 523), promissory notes, payable on demand, are entitled to days of grace.</p> <p>Statute of Limitations—Computation of Time__In computing the time at which the Statute of Limitations begins to run on promissory notes, the day on which the note becomes due is excluded, in all cases, when days of grace are allowed.</p>

The defendants appealed. The action was under the statute against forcible entries and detainers. • The complaint and findings were as follows : COMPLAINT.

The defendant sets forth the following causes of demurrer to the complaint: First—The complaint does not set forth facts sufficient to constitute a cause of action. Second—The complaint alleges that rentals paid, and agreed to be paid was $150, payable monthly, thus averring that such rents had been paid., as well as agreed to be paid.

<p>Appeal from the District Court of the Tenth District, County of Sutter.</p> <p>The case is stated in the opinion.</p>

the District Court of the Third District, Santa Clara County. The plaintiff appealed. This was an action of ejectment for an undivided half of a tract of land in the City of San José. Down to a certain point both parties claimed title through the same channel. At that point the title was in John M. Murphy and Martin Cloud, each holding an undivided half. The plaintiff claimed to have acquired Murphy’s interest by deed dated March 29,1867.

Upon the return of the writ, it appears that Warder, the appellant, was appointed by the Probate Court of Stanislaus County, guardian of the estate of one Cooper, who had become insane.

<p>Practice on the Admission of Evidence.—It is the better practice to decide on the admissibility of evidence when it is offered; but if the rule he departed from, it is the duty of the Court, at a subsequent stage of the case, to rule upon the point distinctly, and if the evidence he excluded, to state on what ground.</p> <p>Description of Land in a Deed of Conveyance. —In construing a deed of conveyance, in which the land intended to be conveyed is described by reference to certain degrees of latitude, and also to a certain map therein specifically described, the degrees of latitude and other imaginary lines will he discarded, as less certain and reliable than the map.</p> <p>Evidence—Certified Copies of Becorded Instruments.—It is well settled that certified copies of instruments duly recorded may ho read in evidence without proof of the execution of the originals.</p> <p>Presumption of the Execution of Becorded Instruments.—If an instrument be duly recorded, it furnishes sufficient prima, facie evidence that it was duly executed.</p> <p>Wbat is Necessary to Make Copies of Becorded Instruments Evidence.— To authorize certified copies of recorded instruments to be read in evidence, it must be shown that the originals arc not under the control of the party, unless the proof of that fact be waived by the adverse party.</p> <p>Waiver of Introductory Proof. — If the objection to the admission of a certified copy of a duly recorded instrument in proof be that the instrument is “ not duly certified and proved,” it will be held to be a waiver of the objection that the original was not produced, or not shown to be under the-control of the party offering the evidence.</p>

<p>Jurisdiction—Specific Performance__The jurisdiction of a Court of Equity to decree specific performance does not turn at all upon the question whether the contract relates to real or personal property, but upon the question whether the breach admits of adequate compensation in damages.</p> <p>Idem. —If damages at law will be adequate compensation for the breach, specific performance will not be decreed.</p> <p>Idem.—If non-performanco will embarrass the plaintiff in his business plans, or involve him in- loss which a jury cannot estimate with any degree of certainty, specific performance should be decreed.</p> <p>Idem in Eespect to Sales of Personal Property.-^ The general rule is, that specific performance of contracts for the sale of personal property will not be decreed; yet, if- the thing bargained for is of unusual distinction or curiosity, or is so related to the business of the plaintiff that non-performance will embarrass or impede him in his business, threatening a loss of profits which a jury cannot correctly estimate, or the like, specific performance will be granted.</p> <p>Idem. —A party seeking specific performance of contracts for the sale of personal property must state, in his complaint, the peculiar facts upon which he-relies as taking his case out of the general rule that specific performance will not be decreed in relation to such contracts.</p> <p>Idem.—D. being the owner of the right or privilege to deliver a newspaper to subscribers within a certain district, sold to S., at a price agreed upon, to be thereafter paid, and when paid, D. was to give a bill of sale. S. took possession, and paid .part of the purchase money', when D. turned him out. S. then sued for specific performance; but no further facts being stated showing why damages would not be full compensation, specific performance was denied.</p> <p>Idem.—A party who relies upon an exception to a general rule, must state the facts which bring his case within it-</p>

<p>Appeal from the District Court. of the Fifteenth District, City and County of San Francisco.</p> <p>The case is stated in the opinion.</p>

The natural facts of the case, as disclosed by the pleadings and findings, are as follows : On the 27th day of August, 1863, the respondent, Mary E. Price, was the owner and holder of a promissory note for $1,200, made by one Thomas J. Johnston, payable to her or her order, and that she held Johnston’s mortgage upon the premises in controversy, as security for the payment of said note.

<p>Double Taxation.—The levying a tax upon money at interest, as well as upon the property mortgaged to secure it, does not present a case of double taxation aa against the mortgagee.</p> <p>Covenant by the Mortgagor to Pay the Taxes on the Debt—The State is not bound by the stipulation between the mortgagor and the mortgagee that the former shall pay all the taxes levied on the mortgaged debt.</p> <p>Taxation of Money at Intekest Secübed by Mortgage.— By the provisions of the Revenue Act it is the “money at interest” which is subject to be taxed, and not the mortgage, as such.</p> <p>County in which Money at Interest is to be Taxed.—Money at interest is to be taxed in the county in which the creditor resides.</p>

<p>Constitution—Construction of__The settled construction of a constitutional provision made before its adoption into the Constitution of this State should ho held as the just interpretation thereof.</p> <p>Constitutional Law—Criminal Law.—If a party charged with an offense has been once acquitted by the verdict of a jury, he cannot he held to answer again for the same offense, no matter by what mistakes or errors on the part of the Court, jury or prosecution the acquittal was obtained.</p> <p>Idem.—If a party is once placed upon his trial before a competent Court and jury, upon a valid indictment, the “jeopardy” attaches, to which he cannot again be subjected, unless the jury he discharged from rendering a verdict by a legal necessity, or by Ms consent; or, in case a verdict is rendered, it be set aside at his instance.</p> <p>Construction of Common Practice Act.—By the just interpretation of that provision of the statute which gives to the people the right of appeal in criminal cases, it must he confined only to such cases in which errors in the proceedings may occur before legal jeopardy has attached to the accused.</p>

<p>Estate in Reversion—At what Time the Right to Becomes Absolute.—The right to an estate in reversion becomes absolute on the happening of the event which terminates the intermediate estate.</p> <p>Idem.—When it was provided in a conveyance of real estate to certain parties in trust for a specified purpose, that if the trustees should declare by resolution that the objects of the trust were found to be impracticable, that the estate thereby conveyed should be determined, and the land revert to the grantor, it was held that on the happening of that event, the trust deed became void, and the right of the grantor became absolute.</p> <p>Honey Regarded as Land. —The proceeds of a policy of insurance (effected by the trustees) for a loss happening to the property during the continuance of the trust estate, and not expended for the purposes of the trust, will, on the determination of the trust estate, be regarded, in equity, as real property, and will belong to the owner of the reversion.</p> <p>Fixtures. —The strictness of the earlier rule requiring a structure to he attached to the soil, in order to become a fixture, is being relaxed in this country.</p> <p>Idem.—An addition to a house already existing, is not personal property, hut becomes, like the house to which it is attached, a part of the realty.</p>

<p>Appeal from the District Court of the Fifth District, County of San Joaquin.</p> <p>The case is stated in the opinion.,</p>

Appear from the District Court of the Fourth District, City and County of San Francisco. The appeal was by the plaintiff from an order granting a new trial. The Court below did not state in writing the grounds upon which the new trial was granted, contrary to the provisions of the 196th Section of the Code.

The verdict rendered on the -trial-of this case in the-Court below, is as follows : “We, the jury impanelled to try the above case, find : The defendant pay to said plaintiff the sum of twenty-two hundred dollars ($2,200), or return to said plaintiff all pipe and other material received by said defendant from said plaintiff, together with three hundred dollars damages.” Upon the returning of the verdict by the jury, and before the same was recorded or the jury discharged,…

The case is stated in the opinion of the Court. As the case came here on demurrer to the complaint, the argument on the part of the defendants and respondents is first given.

<p>Gabnishee—Pboceedings Supplementary to Execution.—In proceedings supplementary to the execution, the denial of the debt, or the adverse claim to the property by the garnishee, contemplated by the Practice Act, is a claim or denial in good faith, and not one of mere pretense.</p> <p>Idem.—When it is evident that the garnishee is acting in bad faith, in denying his indebtedness or asserting his claim, the referee may treat it as fraudulent, and disregard it.</p> <p>Idem—Peesuhptions to Sustain the Judgment op the Referee. —In the absence of explicit findings upon material points, it will be presumed that the referee found the facts necessary to support the judgment.</p>

In addition to the facts stated in the opinion of the Court, the following statement contains all that is material for a full apprehension of the points decided. The defendant, a member of a mining corporation, was sued for his proportion of the debts of the company by a creditor thereof.

<p>Pbactice.—Under the seventh section of the Statute of 1866 against forcible entries, the defendant does not waive his right to answer by demurring, unless he answers at the same time. He may demur without answering, and if his demurrer be overruled, he may answer upon terms, in the discretion of the Court.</p>

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

<p>Interest on Judgments—Practice.—In modifying or affirming money judgments on appeal, it is wholly unnecessary for this Court to make any reference to the right to interest, when that subject is regulated by statute. The right to interest follows, as a matter of course, when the facts on which it depends are established.</p>

The defendant appealed. At the request of the plaintiffs, the Court instructed the jury as follows: First. —“Unless there he an express agreement to the contrary, the commission of a broker is due as soon as he finds a party Avilling and able to purchase property placed in his hands for sale, and who agrees to purchase the same on the terms named.

<p>Appeal from the District Court of the Fifteenth District, City and County of San Francisco.</p> <p>The case is stated in the opinion.</p>

At the time of filing and serving a demurrer and their answer, the defendants also served a notice of motion for a change of the place of trial. This motion was denied by tire Court below, on tire ground that the right to proceed therefor had been waived. This refusal constituted one of the grounds of appeal.

This is an action by a landlord for the recovery of the demised premises against one who entered as tenant and held over after the expiration of the term. The demanded premises appear to have been leased by plaintiffs to one Adams, and others, on the 24th of June, 1862, for five years. In 1863, Adams and others subleased the premises to one Prosser, who leased to defendant in 1864.

<p>Suits-—Conduct and Hanage-kent or.—When a suit is instituted in the name of the State, by the permission of the Attorney General upon the relation of the real party in interest, seeking relief, and tho State has no direct interest in the event of tho suit, the Attorney General, as such, has no power to control the conduct of the suit, or to withdraw Ms consent to the use of the name of the people, to the prejudice of the relator.</p> <p>Decree upon Stipulation.—A decree, purporting to be entered upon stipulation, but not in conformity therewith, should be set aside on motion.</p>

<p>Appealable Obdeb—What Not.—An order sustaining a demurrer to an answer containing an equitable defense, is not appealable*</p>

<p>Appeal from the District Court of the Seventh District, Solano County.</p> <p>The case is stated in the opinion,</p>

. The respondent, County Auditor for the County of Butte, appealed from the judgment of the District Court by which it was adjudged, upon a petition for a mandamus, that he should draw his warrant on the County Treasury, in favor of the appellant, for a certain deficiency in the payment of his salary as County Treasurer, in his petition alleged to be due to him.

The plaintiff appealed. The action was to establish a trust as to the title to certain land, and to compel a conveyance. The remainder of the case is given in the opinion of the Court.

<p>Declaratory Statement—Register’s Certificate.—A declaratory statement for the purpose of pre-empting lands, or the Register’s certificate of .he filing of such statement, confers no title. It is merely an application—an offer to purchase, after the requisite proof of residence, qualifications, etc., shall he made.</p>

<p>Appeal from the District Court of the Second District, Tehama County.</p> <p>The ease is stated in the opinion.</p>

<p>Claim and Delivery of Pebsonal Pbopebty.—Li an action for the delivery of personal property, under the code, the plaintiff may or may not, at his election; seek its immediate delivery.</p> <p>Action against Shebiff—No Demand.—No demand is necessary before suing a Sheriff for personal property tortiously taken by him.</p> <p>Tobtiocs Taking.—If a Sheriff take property not belonging to the defendant in the writ, whether in his possession or not, the taking is tortious.</p>

<p>Appeal from the District Court of the Fifth District, San Joaquin County.</p> <p>This was an action to recover of the defendant the balance due upon an account stated, for goods sold and delivered, and for money paid, laid out and expended by plaintiff for defendant.</p> <p>The defendant’s answer denied all the allegations of -«lie complaint, and also set up a counter claim, in several counts, for a sum largely in excess of the plaintiff’s demand. The plaintiff failed to file a replication, or answer, to any of the matters set up in the defendant’s answer.</p> <p>The other facts in the case are stated in the opinion.</p> <p>There was a verdict and judgment for plaintiff, and the Court refusing a new trial, the defendant appealed.</p>

<p>A Deed a Moetgage.—A deed absolute upon its face may be proven to have been intended as a mortgage.</p> <p>A Deed not a JIoetgage.—V. gave F. a deed of bargain and sale, absolute on its face; at tho same time, and as a part of the same transaction, F. gave V. a written instrument to the effect that tho deed had been taken as security for a note which he held against V-, and that F. would endorse upon tho note all moneys received by him from sales of tho land, and that when the note was all paid F. would deed back to V. all the land then unsold. Held, that this was not a mortgage merely, but a trust for the benefit of F., and that the legal title was in F. while the trust continued.</p> <p>Res Adjudicata.—If V. convey to F. upon trust to sell enough land to pay a note held by him and then to re-convey what shall be left unsold; and if F. during the trust, sues A. to recover some of the land and is defeated; and if, after tho land is re-conveyed, Y. sues A., relying upon the same title, the judgment against F. is conclusive, if pleaded by A. against a recovery by Y.</p>

<p>Agency—Authobity op Secbetaey op a Mining Cobpobation—The Secretary of a mining company has not authority, by virtue of his office, to make assignment of tho promissory notes of tho company.</p> <p>Idem.'—Such assignment is not a corporate act, unless it is shown that the Secretary was not only authorised to make tho transfer, but to maleo it in Ms official capaciiy.</p> <p>Money Received undeb an Invalid Assignment.—Money collected upon a judgment by tho assignee, under an invalid assignment, may be recovered by a judgment creditor of the party who is rightfully entitled to it.</p> <p>Estoppel op Recobd.—Tho claimant of tho proceeds of a judgment, under the rightful owner, is not estopped by tho judgment in favor of the assignee, under an invalid assignment, unless it is shown that the fact of the assignment was put in issue between the debtor and tho alleged asignee.</p> <p>Pleading—Estoppel by Matteb op Recobd.—Estoppel by.matter of record must be pleaded.</p>

<p>Pbesuhtion in favob of the Judgment when thebe abe no ¡Findings.—If no findings are filed, on the trial of a case by the Court without a jury, in support of the judgment, it will be assumed that the facts necessary to authorize the judgment were found in behalf of the party in whose favor it was rendered.</p>

<p>Pleading—Complaint upon an Undertaking Given on Appeal__In an action upon an undertaking given on appeal from the judgment of a District Court for the possession of real estate, for costs and damages, and for the value of the use and occupation of the premises, it is not necessary to aver in the complaint that the District Court had jurisdiction to render the judgment appealed from.</p> <p>Idem.—Nor is it necessary to allege that the undertaking had the effect to stay the execution of tlio judgment, if it appears therein that iiroceeclings for the execution of the judgment were never taken, and that the appellant has full benefit of a stay pending his appeal.</p> <p>Idem.—If a copy of the undertaking be set out in the body of the complaint it will be taken and considered ad a part thereof.</p> <p>Idem.—A complaint, in such a caso, is not defective, because it contains no averment that an execution had been issued, and returned unsatisfied, or bccanse no demand for payment is alleged to have been made on the principal.</p> <p>Idem. —Nor is it necessary to allege that the plaintiff in the judgment was entitled to tlio possession of the promises pending the appeal.</p> <p>Assignee of Undertaking on Appeal.—An assignee of an undertaking on appeal cannot recover, without alleging and proving an assignment of the judgment, or the claim which has been scoured by the undertaking.</p> <p>Assignment of Undertaking and Judgment on Claim.—An assignment which purports to transfer to the assignee all the right, title and interest of the assignor in the undertaking, “ and in the amount thereby secured,” is broad enough to enable the assignee to recover for use and occupation, pending the appeal, and costs.</p> <p>Action for Use and Occupation upon an Undertaking on Appeal.—In an action for uso and occupation upon an undertaking on appeal, the defendants are estopped from denying that the defendant in the judgment was in the possession at the time ho took his appeal and gave the undertaking.</p> <p>Idem—Coünier Claim.—"A judgment for costs, in an action for the recovery of real property, against the tenants in possession, which was defended by the landlord in the name of the tenants, cannot, as such, be enforced against the landlord, or be made the ground of a counter claim against him.</p>

<p>Appeal by Intebvenob.—The right of an intervenor to take an appeal is immediate upon tko sustaining of an objection, by demurrer, to his right to intervene. Right to Intebvene.—In a suit upon a promissory note, by the holder against the maker, a third person, who claims to be the rightful owner of the note, has the right to intervene.</p>

<p>Attachment op Pabtnbbshh? Pbopebty bob the Debt ob one op the Pabtnebs.—Certain notes, from third person, but for a larger amount, were held by the garhishee, as collateral, to secure a debt due to him by the partnership, at the time of the levy of an attachment by a creditor of one of the partners. After fiie garnishment the garnishee accepted an assignment by the partnership . of the notes held by him as security, in trust for himself and other persons who were creditors of the firm prior to the attachment. The garnishee collected the notes and applied the proceeds to the payment of the creditors in whose favor the trust was created, and in so doing exhausted the whole amount of funds collected on the notes. BeZd, that the creditor of the individual partner obtained no lien by his attachment.</p> <p>Pabtneesbxp Pbopeety subject to Execution and Sale fob the Individual Debt of a Pabtneb. —Partnership property can be seized under an execution against one of the partners, for his individual debt, and sold; but the interest which passes by the sale is only the interest of the debtor partner in the residuum of the partnership property, after the settlement of the partnership debts.</p> <p>Per Crockett, J., dissenting:</p> <p>Liability of a Partnership Debtor under an Attachment Process for Debt of Individual Partner.—To justify a garnishee in the attachment suit for the debt of a partner, in paying any debts, due by him to the partnership, to the creditors of the partnership, after the notice of the garnishment, the burden of proof is on him to show that the partnership debts would exhaust the entire amount of partnership property and assets.</p> <p>Per Sawyer, C. J.:</p> <p>Idem. —To enable the plaintiff in the attachment to recover, the burden is on him to show that there would be a surplus of funds after the payment of all the partnership debts.</p>

<p>Appeal from the County Court, City and County of' San Francisco.</p> <p>The case is stated in the opinion.</p>

<p>Appeal from the District Court of the Fourth District, City and County of San Francisco.</p> <p>The plaintiff appealed.</p> <p>The case is stated in the opinion of the Court.</p>

<p>Commissioners of the Funded Debt of the City of San Francisco.—The Commissioners of the Funded Debt of the City of San Francisco are the exclusive judges of the necessity for the sale or lease of the property of the city held by them in trust, until the trust is finally closed, and their action cannot be interfered with; nor their discretion be controlled by the city, or its assignee, except on the ground of fraud, or a gross abuse of discretion by the Trustees.</p>

<p>Appeal from the District Court of the Sixth District, Sacramento County.</p> <p>The case is stated in the opinion.</p>

<p>Pleading.—Motion to Dissolve Injunction.—It is no ground for dissolving an injunction upon a motion made upon the complaint alone, that two causes of action have been improperly joined, without separately stating them.</p> <p>Idem.—Evasive Answer.—The complaint alleged that “East street, in the City of Stockton, had been laid out and dedicated as a public highway, and lias been used as a public thoroughfare for sixteen years.” The answer denies that there is such a street in Stockton. Held, that the answer is evasive.</p> <p>Idem.—When sufficient equities are shown in the complaint, and which are not denied by the answer, there is no error in refusing to dissolve an injunction.</p>

The case was a motion to dimiss the appeal in an action for partition, and is stated in the opinion of the Court. S. O. Houghton, for the motion, relied upon Sections 337, 338 and 339 of the Code and Morenhout v. Higuera (32 Cal. 295.)

On the 26th of April, 1867, the appellants brought an action against respondent and another, to recover possession of “twenty-one hundred sacks of potatoes,” and alleged that such potatoes, on the first day of the same month, at the County of Mendocino, came unlawfully into the possession of the defendants in that action, and were unjustly detained by them, and they filed with the Sheriff an undertaking and affidavit, with an endorsement thereon, directing him (the Sheriff)…

The variance between the execution recited in the officer’s deed and. that offered in evidence, referred to in the opinion, consisted in this : that the latter directed the officer to make the amount of the judgment “ out of the real property of A. & E. Lightwhile hy the former he is commanded to make the judgment out of the real property of the same parties belonging to them “on the 23d day of August, 1867.” The other facts in the case are stated in the opinion.

<p>Measure of Damages fob Breaches of Contract for the Performance of Services.—While the contract price will he adapted as the prima facie measure of damages in actions for breacli'of contract for the performance of services, the damages may, nevertheless, be increased or diminished, accordingly as the proof shows that the plaintiff has sustained an actual loss greater or less than the contract price.</p> <p>Idem—Parties whose services have been refused, when offered according to their contract, may not refuse employment from others, and insist upon the payment of the full contract price, but should protect themselves from loss, so far as it may be done by reasonable exertions.</p> <p>Idem.—The amount received for the employment of the services by other parties, should be deducted from the amount of the damages computed by the contract price.</p>

<p>Appeal from the District Court of the Fourth District, City and County of San Francisco.</p> <p>The case is stated in the opinion. '</p>

<p>Appeal from the District Court of the Third District, .Alameda County.</p> <p>The case is stated in the opinion.</p>

<p>Practice—Appeal not within a Year.—If the appeal from a judgment be not taken 'within a year, it will be dismissed.</p> <p>Idem—Want oe Undertaking on Appeal.—If there be an appeal from the judgment on which an undertaking was given, and also an appeal from an order refusing a new trial, upon which no undertaking on appeal is given, the latter will be dismissed, unless the appeHant offers to file an undertaking in conformity with the statute.</p>

<p>Appeal from the District Court of the Tenth District, County óf Tuba.</p> <p>The case is stated in the opinion.</p>

<p>Forcible Entry and Detainer—Statute of 1866.—Forcible entry, within the meaning of the Act of 1866, may be committed by breaking the doors, etc., of a building, without any violence to the person in possession of the building.</p> <p>Idem.—The statute .seems to contemplate that a party may maintain an action for a forcible entry or a forcible detainer; and its purpose is to secure a speedy, if not a summary, restitution of the premises to the party deprived of the possession by the means therein specified.</p> <p>Idem—Demand and Refusal.—A demand for the surrender of the possession, upon the party detaining the same, and a refusal for the period of five days, are essential in order to constitute a constructive forcible detainer, as defined by the • third section of the Act.</p> <p>Idem.—A demand upon the party making the forcible entry, but who did not detain the premises, is ineffectual.</p>

<p>Appeal—Right op.—Parties have no right to appeal from judgments which do not affect their rights.</p> <p>Hisjoindeu of Causes of Action, and of Pabties.—In an action to foreclose a mortgage, can the titles held by parties claiming under the mortgagor, obtained prior to the dato of the mortgage, he litigated? Quere ?</p> <p>Idem.—Unless the objection of a misjoinder of parties or causes of action is taken by demurrer, it is considered waived.</p> <p>Idem.—And if a demurrer on these grounds has been interposed, hut not prosecuted, and he overruled by the Court below, because it was not prosecuted, the objection will be held to be waived.</p> <p>Complaint to Remove a Cloud upon Title.-—In an action to remove a cloud upon title, the facts which show the apparent validity of the instrument which is said to constitute the cloud, and also the facts showing its invalidity, should bo stated in the complaint.</p> <p>Idem. —But when the instrument which constitutes the cloud is a tax deed, which, under the statutes of this State, is declared to he prima facie evidence of title, the name of the instrument is sufficient for the purpose of showing an apparent validity.</p> <p>Complaint—Sufficiency or.—The Court will not reverse a judgment on the ground that the complaint does not state the facts quito so fully as it ought. If no demurrer has been interposed, there must appear to he an entire want of mar terial facts to justify the disturbing of the judgment.</p> <p>Couet of Equity.—Pbactice of in Setting aside a Tax Deed.—When the tax is valid, hut the sale irregular, equity will not cancel the tax deed at the suit of the owner of the land, without a tender of the taxes to the purchaser.</p> <p>Idem.—-Blit where the purchaser of the tax title has made the purchase by collusion with the owner, with the view of defrauding a mortgage creditor of the owner, a tender of the amount of the taxes is not necessary.</p>

<p>Certiorari to the County Court of Sacramento County. The case is stated in the opinion.</p>

<p>Appeal from the District Court of the Seventh District, Marin County.</p> <p>The case is stated in the opinion.</p>

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

<p>Damages pob Personal Injuries Through Negligence.—When the owner of fixed property, requiring repairs, employs a contractor to do the entire work with his own means and by his own servants, he is not responsible for personal injuries to third persons occurring through negligence in the performance of the work.</p> <p>Ideal—Responsibility for injuries in such cases is upon him who has the contract and management of the work; and unless the relation of master and servant exists between the owner and the person through whose negligence the plaintiff sustained his injury, the doctrine of respondeat superior does not apply.</p>

<p>Forcible Entry and Detainer.—When the plaintiff’s evidence entirely fails to disclose anything approximating to force, violence, or any effort at intimidation or threats of force or violence on the part of the defendants, or either of them, at the time they entered into the possession of the premises in controversy, or at any time thereafter, he malíes no case under the first or second sections of the Forcible Entry and Detainer Act of April 2, 1866, entitling him to the summary remedy provided by the Act.</p> <p>Idem—The Possession Requisite to Maintain the Action.—Stock ranging over unenclosed public lands is not evidence of such a possession of any specific portion of such lands in the owner of the stock as will enable him to maintain this action.</p> <p>Oral Evidence of a Transfer of an Interest in a Possessory Claim. — Oral evidence of a transfer of title or interest to land claimed under the Possessory Act is not admissible.</p>

<p>Practice.—If the plaintiff anticipate the defense and offer testimony in rebuttal of it, the Court may, in its discretion, refuse to admit, after the defendant has closed his case, further testimony in rebuttal which is merely cumulative.</p>

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

<p>Constitutional Law.—Legislative enactments, or municipal ordinances, “toprohibit noisy amusements and to prevent immorality,” are not repugnant to the Constitution of the United States, nor to the Constitution of the State.</p> <p>Idem—Laws intended to regulate the enjoyment of the natural rights of persons, do not impair, but foster and promote those rights, and to provide such laws is the essential,object and purpose.of Government.</p> <p>Constitutional Construction.—By the provision of the Constitution of the State, that “ every law of a general nature shall have a uniform operation,” is meant, that the Legislature shall not grant to any citizen or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.</p> <p>Legislative Duty and Power.—Wherever wrong is found, the Legislature is allowed and required to provide an adequate remedy, and they may confine the operation of the remedy to the locality where the wrong exists, and its application to the persons by whom the wrong or evil is wrought; and in'that, and every other instance, they are to look to the nature of the case and the adequacy of the remedy.</p>