Volume 39 — California Reports

This case arose upon a petition to the Supreme Court, in the exercise of original jurisdiction, for a writ of mandate, to compel the Board of Supervisors of Sacramento County to canvass the votes cast for Supervisors in the third, fourth and fifth districts of that county, at the general election in 1869. The case is stated in the opinion.

<p>Actions to Quiet Title.—The Possession Necessaby.—The possession necessary to maintain an action, under Section 254 of the Practice Act, must ho such as would enable the plaintiff, without the aid of any other title, to maintain an action to eject a mere intruder therefrom.</p> <p>Idem. —If adverse possession, to a part of the land, should be shown in a third person, the suit would he considered as brought to determine the adverse claim of the defendant, only, to the land remaining in the possession of the plaintiff.</p> <p>By Temple, J., dissenting:</p> <p>Possession at Common Law.—At common law, the owner, after a mere entry, is deemed in the actual possession, until ousted by an actual adverse possession. Possession undeb the Statute.—If the owner has full dominion and control of his property (which he has, if not held adversely), he may well he said to be in possession, in every sense of the word.</p> <p>Idem. —I think the true rule, under the statute, is, that whenever the owner has a possession, whether actual or constructive, which may be intruded upon, he may bring suit to determine an adverse claim, and thus prevent an intrusion under claim of title.</p>

<p>Fobcible Entby and Detainee—Reiob Possession.—The proof « the prior possession of the premises by the defendant, does not constitute u defense to the action of forcible entry and detainer.</p> <p>Idem. — A forcible entry necessarily tends to a breach of the peace.</p>

This action was originally brought by Bobert Dyson in the District Court of the Fourth District, City and Coo/ntj of San Francisco, from which it was transferred to the District Court for the Fifteenth District, and from that it wan transferred to the District Court for Marin County. Bobert Dyson having died pending the action, J. W. Brumagim, administrator of his estate, was duly substituted as plaintiff in his stead.

The case is stated in the opinion. The objections to the indictment were raised upon demurrer, and on motion in arrest of judgment.

<p>Appeal from the District Court of the Seventeenth District County of Los Angeles.</p> <p>The case is stated in the opinion.</p>

<p>Tendee op Payment.—A tender, as far as the computation of interest is concerned, must he considered as a payment.</p>

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

<p>Appeal from the Probate Court for the County of Santa Barbara.</p> <p>The case is stated in the opinion.</p>

Appear from the District Court of the Fifteenth District, City and County of San Francisco. The plaintiff commenced an action against several defendants to recover possession of a tract of coal-hearing land, and to procure an injunction, bfo damages were prayed for in the complaint, and none were stated or claimed in the summons.

<p>Appeal from the District Court of the Sixth District, Sacramento County.</p> <p>Thé complaint charged that, on the 29th of July, 1868, the defendant called the plaintiff “a thief.” On the trial proof was made of the utterance of the words during a period varying from three months to three years before the suit was brought.</p> <p>The other facts of the case are stated in the opinion.</p>

The following is the instruction refused by the Court below, and commented on in the opinion : “Defendant in this case is charged with the burning, feloniously, of the house occupied by him and his wife. Ton must be satisfied, from the evidence, that the defendant burned the house himself.

<p>Appeal from the District Court of the Seventeenth District, Los Angeles County.</p> <p>The case is stated in the opinion.</p>

This was an application to the Supreme Court, in the exercise of its original jurisdiction, for a mandamus to the respondent, as Governor of the State. The case is stated in the opinion.

<p>Practice.—Jurisdiction must be Shown.—It is incumbent on a party appealing to this Court, to show, affirmatively, by the record, that the amount in controversy is sufficient to authorize an appeal.</p> <p>Idem. —When this is not shown, the appeal will be dismissed.</p>

<p>Party to an Action on a Judgment against One of Two Joint Debtors.—The party not served with process, in an action against defendants jointly indebted (under the 32d Section of the Practice Act), is not a proper party defendant in an action upon the judgment against the party on whom service of process was made.</p> <p>Constitutional Law.—Section 32, Practice Act.—The validity of the 32d Section of the Practice Act, so far as it authorizes a judgment on an execution against any of the property of the party not served, commented on, and questioned.</p>

<p>Upon certiorari to the County Court of Tolo County, issued upon the relation of C. P. Sprague.</p> <p>The case is stated in the opinion,</p>

<p>Pbaotice on Appeals in Cbminal Cases. — On the simple affirmance of am order or judgment appealed from, in criminal cases, no order of the appellate Court, directing the Court from which the appeal is taken, to proceed to enforce the judgment, is necessary to re-invest that Court with jurisdiction'.</p> <p>Idem.—The mode of executing judgments, in criminal cases, is prescribed and controlled by statute, and not by an order of an appellate Court.</p>

<p>Pbactice.—Motion to Set Aside an Obdeb of Dismissal fob want of Pbosecution.—When a plaintiff, after bringing his action, but has no summons served, absents himself for many months from his place of residence, leaving no attorney to represent him, lie has no cause to complain that some of the defendants have voluntarily appeared and filed their answers and the case had been set down on tho calendar for trial, and, when called, dismissed for the want of prosecution, unless he shows that he was acting under some mistake of law, or been lulled into a false security by something which the defendants appearing had said or done.</p>

This action was brought to compel the execution of a conveyance to an interest in a mining claim, in performance of an alleged verbal agreement of purchase and sale.

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

<p>Mechanics’ Lien Act of 1868.—La adjusting the conflicting rights of mortgages, material-men, laborers, etc., under the Act of 1868, “to secure the liens of mechanics and others,’’ the rule laid down by the statute is the familiar one, in equity, that lie has the better right who is first in point of time.</p> <p>Ldem.—Construction of Words “Payments” and “Credits.”—The words “payment and offsets ” arc substantially equivalent, in meaning, to the words ‘ credits and offsets,” as employed in the fifth section of the Act.</p> <p>Practice.—The action of the Court below, in granting or refusing an application to re-open a case for the purpose of introducing further proof, is largely a matter of discretion, and will not be reviewed by the appellate Court, except under peculiar circumstances, showing an abuse of the discretion.</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>

<p>Pleading.—Fbaud. —When a party relies upon fraud, either to support his cause of action or in defense, he must set up the facts which constitute the fraud.</p> <p>Idem.—Instbuctions by the Couet. — In an action on a policy of insurance, to recover for a loss occasioned by fire, if the question whether the plaintiff caused the building to be burned was not one of the issues made by the pleadings, it is error for the Court to instruct the jury they could find against the plaintiff on that ground.</p>

This cause was before this Court at the July Term, 1867, and is reported in the 33d volume, page 39, of the California Beports. The case is fully stated in the opinion.

Application to the Supreme Court, m the exercise of original jurisdiction, for a writ of mandate to the Supervisors of Calaveras County.

<p>Peactice Act.—The Practice Act-is entirely remedial. It does not affect the rights of the parties as to'the subject-matter of the controversy, but prescribes the mode in which redress may be had when these rights have been invaded.</p> <p>Insolvent Act—Pbactice Undeb.—The Insolvent Act creates the right or privilege which is sought in the proceedings under it, and the record must show a substantial compliance with its requirements as conditions precedent.</p> <p>Idem. —Every intendment may be indulged in favor of the validity of the proceedings not inconsistent with the record; but this rule does not dispense with a substantial compliance with all the conditions of the statute. The record must, therefore, show such a compliance.</p> <p>Idem.—If it appear affirmatively from the record that the order to show cause was made one day before the petition was presented to the Judge, it comes within the rule in Hahn v. Kelly, and is coram non judice and void.</p> <p>Idem.—No mistake as to dates can be presumed, even if every intendment is to be indulged in favor of the proceeding. This would be a presumption against the record, which cannot lie.</p> <p>Idem.—Under the insolvent law of this State, the proceeding in bankruptcy is the voluntary act of the insolvent, and he is not divested of his right of property, nor does the title vest in the assignee, until a valid assignment is made.</p> <p>Idem. —-The assignment when properly made takes effect, by relation at the time the petition is filed, and the order staying proceedings is made.</p> <p>Judgment and Execution.—The statute does not require the docketing of the judgment to precede either the issuing or service of the execution. The docket creates and preserves a lienfor two years, but without docketing the judgment, execution may be issued upon it, and real estate levied upon and sold, and the sale and conveyance will pass all the interest held by the judgment debtor at the time of the levy.</p>

<p>Appeal.—From an order sustaining a demurrer to a portion or the whole of an answer, or dismissing it in whole or in part, no appeal can be taken to this Court; the only method of review of such proceedings here is through an appeal from the final judgment thereafter entered in the action itself.</p>

<p>Appeal from the County Court of Trinity County.</p> <p>This is an appeal from a judgment of the County Court of Trinity County, for the restitution o'f certain premises in the town of Weaverville, Trinity County, and for damages, rendered the 17th day of July, 1868.</p> <p>On the 3d day of July, 1869, the defendant, Stokes, filed in the clerk’s office of said Court, a notice of appeal from said judgment, and on the 19th day of July, the following affidavit of the service of said notice :</p> <p>State of California, ) sg County of Trinity, j</p> <p>I, Charles Twambly, Toeing duly sworn, say, that Richard Stokes, the defendant in the action of I. Abrahms, surviving partner of the firm of I. Karsky & Co. vs. Richard Stokes, personally served a copy of notice of appeal to the Supreme Court of this State, on said Isaac Abrahms, July 6th, A. D. 1869, from a judgment rendered in the County Court July 17th, A. D. 1868, by default, against said Richard Stokes for restitution of property, etc.</p> <p>C. W. Twambly.</p> <p>The plaintiff was represented, in the County Court, by his attorney.</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>

<p>Decebe of Divoboe.—Res Adjudicata. —If, in an action for a divorce, the decree awarding it does not determine any disposition of the community property, and no such question he presented for decision -by the pleadings, it will not conclude the parties, or either of them, in respect of their claims to such property.</p> <p>Idem.—Jurisdiction.—Any other Court, than the one rendering the decree of divorce, if otherwise competent, has the jurisdiction to determine the disposition of the community property, under the provisions of the statute.</p> <p>Idem.—If a decree for a divorce, simply, be for the cause of adultery, it does not . follow that the guilty party would be deprived of his or her interest in the community property.</p> <p>Evasive Pleading.—One of the allegations of the complaint was that “the defendant fraudulently transported plaintiff into Kern County, for the purpose of having her served with a copy of the summons and complaint.” The answer to which was as follows : “Defendant denies, and it is not true, that he fraudu. lently transported plaintiff into Kern County for the purpose of having her served with a copy Of the complaint and summons in said aforesaid action. fleZtZ, to be a palpable evasion of, the substance of the charge which it pretended to answer.</p> <p>Practice.—Injunction. — A temporary injunction should not be dissolved on the coming in of the answer, which does not present a full or fair denial of the equities disclosed in the complaint, or which does not deny the principal matters on which the complaint proceeds, at all.</p> <p>Idem.—The general rule, that when an answer fully denies the equities of the com- • plaint the injunction should be dissolved, is not one of universal application; nor does it follow, as a necessary legal conclusion, that the injunction be dissolved on the coming in of such an answer.</p> <p>Idem. —When the Court below has seen proper to continue an injunction in force until the hearing of the case, its determination, in so far as it rests upon the effect of the denial of the equities of the complaint merely, is entitled to just consideration here, and tins Court ought not to disturb it, except, perhaps, under peculiar circumstances, or unless an abuse of descretion be made to appear. Per Rhodes J., dissenting:</p> <p>Pbactice.—Injunction. — When an injunction has been obtained upon the allegation that the property, the disposition of which is enjoined, is the common property of the plaintiff and defendant, on the coming in of the answer, denying that there is any common property, the injunction should bo dissolved, unless the plaintiff shows by affidavits, or other competent testimony, that the denials of the answer, in that particular, are untrue.</p> <p>Idem. —An injunction should not be granted to restrain the defendant from collecting debts that are due, when no provision is made, by the appointment of a receiver, or otherwise, for their collection.</p>

' Suit was brought by the plaintiff to recover the amount, in gold coin, of two promissory notes, and for goods, wares and merchandise. At the commencement of the suit an attachment, in the usual form, was regularly issued, under which a large amount of property, belonging to the defendant, was seized.

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

<p>Motives of the Legislature not a Proper Subject of Inquiry.—The motives of a member of the Legislature in moving, or of the body of which he is a member, in passing a legislative Act, is not a proper subject of judicial mquiry_</p> <p>Constxtutional Construction. —Veto Power. —Adjoubnment. —An adjournment of either house of the Legislature from day to day, is not such an adjournment as would prevent the Governor from returning a bill with his objections, within the ten days prescribed by the Constitution.</p> <p>Idem. —When a bill is returned with his objections, by the Governor, to the House in which it originated after it has adjourned for the day on the last of the ten days within which he can make the return, and because of failure to find the house in session, is re-delivered to and retained by the Governor, it does not constitute a return within the meaning of Section 17, Article IV of the Constitution.</p> <p>Idem.—The bill should he placed beyond the Executive control, by delivery to the President, Secretary, or other proper officer of the house.</p> <p>Mandamus to Governor. — Courts having jurisdiction of the writ of mandamus, may issue tho same to compel the Governor to perform a ministerial act required by law and not included within tho powers confided to his discretion by the Constitution.</p> <p>Per Temple, J., dissenting:</p> <p>Mandamus.—The writ of mandamus should not issue when there is another sufficient and adequate remedy.</p> <p>Idem.—Petitioner’s Interest.—Where the petitioner has no vested or specific interest in the proceedings, he is not entitled to the relief afforded by a writ of mandamus.</p> <p>Idem. — Stipulation. —Inquiry into Facts. — A stipulation that the petitioner has such an interest in the proceedings as to make Mm a proper party thereto, does not preclude inquiry into the facts going to show the existence of such interest.</p> <p>Mandamus.—Jurisdiction of Courts.—Courts have not jurisdiction to issue writs of mandamus to the Governor.</p>

This is an action brought against A. Hollub, administrator of the estate of Bezer Simmons, deceased, in which Orrin Simmons was substituted as defendant, he having succeeded said Hollub as administrator. The complaint was filed on the 16th of September, 1869, and was for the recovery of the sum of $62,000, with interest at the rate of five per cent, per month from the 11th day of August, 1850, due on a promissory note, of which the folknving is a copy: “$62,000.

<p>Opinions of Covets__Dicta.—In construing judicial decisions, that only is held to be authoritatively decided which was necessarily involved in the decision of the cause.</p> <p>Mexican Gbants.—Descbiption of the Land.—To constitute a complete and perfect grant to a specific parcel of land, it must, in some method, appear on the face of the instrument, or by the aid of its descriptive portions, not only that a specific parcel was intended to be granted, but it must also be so described that the particular tract, intended to be granted, can be identified with reasonable certainty.</p> <p>Idem.—Where there is nothing in the grant, nor in any of the documents to which it refers, by which to fix the lines of one of the sides of the tract intended to be granted, or to determine the particular quantity, the concession does not confer upon the grantee a perfect title to any specific parcel of land.</p> <p>The case of IBnturnr. Browei- (24 Cal. 644) and United States v. Peralta (19 How. 340), commented on and explained.</p>

On the second day of March, 1868, the defendant, Julius Wetzlar, brought suit in the nature of an action of ejectment against the… Held: or to which he is entitled in common with Samuel Brannan, Bruce et al., under their purchase from John A. Sutter, Jr., of June 20th, 1850, * * * which had not been sold prior to August 28th, 1857, by Wetzlar, Brannan, Bruce et al.” In the year 1857 (the sale to Werner being in April, 1858) Wetzlar testified, in the case of Brannan v.…

<p>Act fob the Sale of State Lands — Constbuction of__An applicant for the ■ purchase of lands belonging to the State, under the provisions of the Act of March 28,1868, who has obtained a certificate of location from the Surveyor General, but has failed to pay the instalment of twenty per cent, of the purchase money within fifty days from the date of the certificate, will be considered as having abandoned his exclusive right to purchase, and the Surveyor General may issue a new certificate to another applicant for the purchase of the same lands.</p>

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

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

This case arose upon, a petition to the Supreme Court, in the exercise of original jurisdiction, for a writ of mandate, to compel the Treasurer of San Diego County to pay certain warrants issued by the Auditor of said county, which had been duly presented to him for payment, and indorsed “not paid foi' want of funds,” prior to the passage of the Act for funding the unfunded indebtedness of said county. The other facts are stated in the opinion.

<p>Appeal from the District Court of the Seventeenth District, Los Angeles County.</p> <p>The case is stated in the opinion.</p>

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

This is an action for a perpetual injunction to restrain the execution of a writ of restitution issued upon a judgment, in forcible entry and detainer entered in favor of the appellants, in the County Court of Sacramento County, against B. A. Saunders, the husband of the respondent, for certain lots situated in the City of Sacramento.

<p>Appeal from the District Court of the Fifteenth District, Contra Costa County.</p> <p>The case is stated in the opinion.</p>

This is a suit on a note given by H. C. Dohrs to respondent, January 12,1869, payable January 12,1870, with interest at one and a quarter per cent, per month, payable monthly. The note was secured by a mortgage, executed by both H.C. Dohrs and his wife.

<p>Appeal from the Probate Court of the City aud County of Sau Francisco.</p> <p>The case is stated iu the opinion. "</p>

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

<p>Trespass by a Marshal..—A trespass committed by a Deputy Marshal or Sheriff, in his official character, is considered, in law, as committed directly and personally by his principal.</p> <p>Idem:.—Personal Responsibility When a trespass is committed by a Marshal or Sheriff, either personally or by deputy, his official character does not relieve him from personal responsibility.</p> <p>Idem.—Action eor Damages.—Pleading.—In an action against an officer, such as Sheriff or Marshal, for a trespass committed through his deputy, it is not necessary to state the official character of the defendant in the complaint, or to charge the trespass as having been committed through a deputy.</p> <p>Action fob Trespass against a United States Marshal.—Jurisdiction of.— District Courts have jurisdiction of actions for trespass against a United States Marshal.</p> <p>Idem.—Whether the fact that defendant was Marshal of the United States, and the trespass was committed by his deputy, under cover of his office, gives him the right to have the cause transferred to the Courts of the United States—no decided,</p>

<p>Appeal from tlie District Court of the -Tenth District, Sutter County.</p> <p>The facts are stated in the opinion..</p>

This is an action brought by the plaintiff, Cogswell, against Alpheus Bull and others, who, at the time of the alleged illegal misappropriation of the funds of the corporation, constituted the Board of Directors of the North Beach and Mission Railroad Company, and the North Beach and Mission Railroad Company to compel defendants to account for and refund certain moneys belonging to said corporation, which they, while acting as Directors thereof, it is claimed,…

<p>Criminal Peactice.—Indictment.—Description of Offense.—Though an indictment give an erroneous appellation, or fail to give any appellation, to the offense, if the' acts constituting the offense, as defined by the statute, are sufficientiy stated, the requirements of the Criminal Code, in that respect, are answered.</p> <p>Idem.—Circumstantial Evidence.—Where independent facts and circumstances are relied upon to identify the accused as the person committing the offense charged, each essential independent fact in the chain or series of facts relied upon to create a presumption of guilt must be established to a moral certainty, or beyond a reasonable doubt.</p> <p>Idem.—Instructions.—When the evidence against the accused is entirely circumstantial, and is conflicting in relation to a material fact going to make up the chain of circumstances, an instruction to the effect that “if the jury entertain a reasonable doubt as to the existence of such fact, the defendant must be acquitted,” is pertinent and appropriate, and should be given.</p> <p>Per Cbochett, J.:</p> <p>Instruction.—Criminal Practice.—In a criminal prosecution, an instruction from the Court to the jury, that they must convict, “ although they may not be entirely satisfied, from the evidence, that the defendant, and no other or different person, committed theoffense,” is erroneous.</p> <p>Evidence Necessary to Convict.—No conviction should be had unless the jury is “entirely satisfied,” from the evidence, that the defendant is guilty.</p>

This is an action to rescind a contract for the purchase of a one third interest in a meat market and to recover of the defendants the amount of the purchase money paid, and funds advanced by the plaintiff on account of said contract, on the ground of false and fraudulent representation as to the true value of said interest and of the profits and goodwill of the business made by the vendors at the time of entering into such contract. The other facts are stated in the opinion.

The findings by the Court below establish the following facts in the case: That the defendant was in possession of the premises, claiming the same adversely to the plaintiff, at the commencement of the action; that the defendant entered upon the premises, June 12, 1860, and has since that time resided thereon; that before the defendant entered he declared his intention of becoming an American citizen, and was competent to enter upon said land as a pré-emption claimant, and…

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

The defendant was Mayor of the City of Los Angeles, and was indicted for wilfully and unlawfully receiving, selling and transferring certain scrip and warrants on the treasury of said city, etc., under the Act of the 4th of May, 1852, “To prevent certain officers from dealing in certain securities or evidences of debt,” On the trial, the jury brought in a verdict of “guilty,” whereupon the defendant moved for a new trial, upon the ground, among others, of the misconduct of…

<p>Appeal from the District Court of the Fourth District, City and County of San Francisco.</p> <p>This action was brought to secure the specific performance of a written contract entered into by the defendant to convey to plaintiff’s assignor the undivided half of a certain tract of land in the City of San Francisco. This tract of land was owned in fee simple by defendant and one Jacob Snyder, as tenants in common. On the 7th day of May, A. D. 1868, defendant and E. T. Steen entered into a written agreement, whereby defendant agreed to sell, and Steen agreed to purchase, the undivided half of said tract of land at the price of $1,250, in gold coin; and Steen thereupon paid a portion of the purchase money. Steen assigned the contract to plaintiff, who tendered the balance of the purchase money to defendant and demanded a deed, which defendant refused to execute, on the ground-of false and fraudulent representations made by Steen at the time the contract ivas executed, and by reason of which he was induced to enter into the same. Defendant alleges, in his answer, that he then tendered the portion of the purchase money received on account of said contract and demanded the cancellation of the same; he therefore prays judgment that the said contract may be rescinded and cancelled.</p>

<p>Appeal from the District Court of the Fifth District, Tuolumne County.</p> <p>This was an application to the District Court for a peremptory writ of mandamus, commanding respondent, as County Clerk and ex-officio Auditor and Recorder of Tuolumne County, to issue to the petitioner certain licenses, to be used in the discharge of his duties as ex officio Collector of Taxes for said county; which office he claimed under the Act of March 28,1868, he having been elected Sheriff at the general election of 1869, and qualified as Collector of Taxes on or before the first Monday of March, 1870, at which time said Act went into operation. The petition was denied; from which order and the order overruling the demurrer of petitioner, this appeal is taken.</p> <p>No briefs on file.</p>

<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.</p>

<p>Cbbiinal Pbactice.—Abobtion.—Evidence op Pbesnancy.—In a prosecution for an attempt to produce an abortion it is competent to prove by the witness, on whom the offense was alleged to have been committed, not only the fact that she was pregnant, but all the circumstances tending to show her pregnancy.</p> <p>Idem.—Cobbobobative Testimony.—Where the only evidence is the testimony of the woman on whom the attempt to produce an abortion was made, it must be corroborated in respect to some of the material facts which constitute a necessary element of the crime.</p> <p>Idem.—Any evidence, in addition to that of the witness, tending to show a criminal intent on the part of the defendant would be a sufficient corroboration of her testimony to bring the case within the statute, although it might differ from hers as to the particular method employed to produce the abortion.</p>

<p>Pbactice— Objections. — Objections which go to the sufficiency of the statement of facts contained in the complaint, but not to the sufficiency of the facts themselves, cannot he entertained, unless presented by special demurrer.</p> <p>Idem.—Default. — The default of a defendant amounts to an admission of the facts stated in the complaint, and leaves no issue between him and the plaintiff.</p> <p>Idem.—Findings.—Judgment.—A defendant in default is unaffected by the findings, and has no grounds of complaint if the judgment is not sustained by or is repugnant thereto.</p>

<p>Criminal Law.—Cobeobobattve Evidence.—To obtain a conviction on the testimony of an accomplice, there must he corroborative evidence tending to criminate the accused, aside from and without the aid of the testimony of the accomplice.</p>

<p>Laboeny. —Itis competent for the Legislature to declare that the larceny of specific property designated shall be deemed grand larceny, without regard to the value of the property.</p> <p>Indicdient under Statute of March 28, 1868.—Under the Statute of March. 28,1868, providing that feloniously stealing and tailing away of any horse, mare, or gelding, etc., shall be deemed grand larceny, itis not necessary to state in the indictment the value of the animal alleged to have been stolen.</p>

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

<p>Application to the Supreme Court for a writ of mandamus to the County Judge of Solano County, to compel him to try a cause.</p> <p>The other facts are stated in the opinion.</p>

<p>Replevin of Chops Gbown and Habvested by a Tbespasseb.—While the owner may recover for use and occupation, he can in no case he held to he the owner of the crops grown and actually harvested on the land by the defendant while in possession.</p> <p>Joint Judgment. — Community of Intebest.—Where there are several defendants, and no community of interest or ownership in the property is shown by them, a joint judgment in their favor is erroneous.</p> <p>Damages—Measure of in Actions fob Recoveby of Pebsonal Pbopebty.— In actions for the recovery of personal property of a fluctuating value, where exemplary damages are not allowed, the correct measure of damages is the highest market value within a reasonable time after the property was taken, with interest from the time such value was estimated.</p>

<p>Indictment against Public Ofeiceb.—Description of Office.—An allegation in an indictment presented after the passage of the Act of April 6th, 1863, “ To provide for the maintenance and supervision of common schools,” charging the defendant as ‘ Superintendent of Common Schools,” is a sufficient description, under that Act, of the office held by defendant.</p> <p>Per Sprague, J., dissenting:</p> <p>Construction of Sections 66 and 67 or the Act Concerning Crimes and Punishments.—County Superintendent of Public Schools.—A County Superintendent of Public Schools is an “officer or person” contemplated by Section 67 of the Act concerning crimes and punishments; his refusal, therefore, to pay over to the person authorized by law to demand the same—a sum of money received by him in his official capacity, amounting to less than one hundred dollars, is only a misdemeanor.</p>

<p>Appeal from the District Court of the. Fourth District, City aud Couuty of Sau Francisco.</p> <p>The facts are stated in the opinion.</p>

<p>Tax Suit.—Validitx op Judgment in.—The validity of a judgment in a tax suit must he tested by the same rules, and is subject to attack in the same mode and by the same means, as a judgment in an action of any other class.</p> <p>Idem.—Service of Summons.—Jurisdiction.—In a tax suit, a recital in the decree “ that all the owners and claimants of the property have been duly summoned to answer the complaint herein and have made default in that behalf,!’ there being nothing contradictory to it in the record, is conclusive, in a collateral proceeding, that the Court acquired jurisdiction of the owner of the premises. Idem.—Assessment Boll.—A defective assessment roll may he introduced in the trial of a tax suit to show that the taxes were not legally assessed, hut can not avail in a collateral attack on the judgment.</p> <p>Constructive Service of Process.—The power of the Legislature, to provide for constructive service of process, is too well settled to be attacked on constitutional grounds.</p>

<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.</p>

<p>New Teial.—Sdbpbise.—Where an attorney has notified his client that unless his fees are paid he will abandon his case, and the client has failed to pay the fees, he is not entitled to a new trial on the ground of surprise by the nonattendance of his attorney at the trial.</p>

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

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

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

'County of San Francisco. Judgment was rendered in the Court below upon a demurs rer to the complaint. • ■ The other facts are stated in the opinion. .

<p>Practice.—Former Action.—Where the alleged new fact existed at the commencement of a former action in which the point in'issue was the same, and the plaintiff neglected to avail himself of it, he is not entitled to set it up in a subsequent action.</p> <p>Corporation—Debts of a.—The debts of a corporation, incurred in the transaction of its legitimate business, are included among its “proper and legal expenses.”</p> <p>Idem—Purchase by Agent of the Indebtedness of.—The purchase of the claims against a corporation by its agent, although acting without authority in malting the purchase, does not necessarily relieve the corporation of its indebtedness, but may substitute the agent in place of the original holders to the extent of the amount expended in the purchase of the claims.</p> <p>Idem—Sale oe the Property of.—The ownership of property is not essential to the existence of a corporation, nor is a corporation dissolved by the sale of its property.</p> <p>Idem.—-Dissolution.—The Court cannot treat a corporation as already dissolved because its condition or business arrangements are such that it will be necessary or proper for it to institute proceedings for its dissolution.</p> <p>Idem.—Sale of Stock Under an Assessment.—Injunction.—Whether a stockholder, whose stockis about to be sold under an assessment whichhe alleges to be-illegal and void, would suffer such injury by the sale of his stock as would ntitle him to relief by injunction in a Court of equity, not decided.</p>

<p>Statutory Construction.—Franchise of the Spring Valley Water Works.— By the provisions of the Act of the 23d of April, 1858, authorizing George Ensign and others, owners of the Spring Valley Water Works, to lay down water pipes in the public streets of the City and County of San Francisco, the Spring Valley Water Works are not required to supply said city and county with water for municipal purposes, free of charge, other than for the extinguishment of fires.</p> <p>Pleading.—Estoppel.—A previous adjudication, in which the same rights were put in issue, may be properly pleaded by way of estoppel in a subsequent proceeding in equity, between the same parties.</p> <p>Per Crockett, J.:</p> <p>Statutory Construction.—Franchise of the Spring Valley Water Works.— The third section of the Act of the 23d of April, 1858, imposes upon the Spring Valley Water Works the obligation to furnish, free of charge, a pro rata supply of water for municipal purposes other than the extinguishment of fires, in the event of water being introduced by some other person or persons, as provided by said section.</p>

<p>Malicious Peoseoution.—Malice. —In actions for a malicious prosecution, actual malice must ha proved as a fact to the jury.</p> <p>Idem.—Advice of Counsel.—In such actions the defendant may rebut the evidence of the plaintiff touching the want of probable cause, by showing that he acted in good faith, under the advice of counsel, after a fair and full statement of the facts of the case.</p> <p>Idem. — Pleading.'—Such evidence is directly responsive to the evidence on the part of the plaintiff tending to show the want of probable cause, and does not constitute new matter within the sense of the Code.</p> <p>Misconduct of the Juror.—To induce a portion of the jurors to assent to a verdict of SI,500 instead of SI,000, by drawing lots, is misconduct on the part of the jury, for which the verdict should he set aside.</p> <p>Police Judgeof San Ebanoisoo. — The Police Judgeof San Francisco is vested by the statute with the powers of a Magistrate.</p>

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

<p>Guarantor—Liability of.—A person who writes his name in blank on the back of a note to which he is not a party, prior to delivery, stands in the same relation to the parties to, and to the holder of the note as an indorser, and is entitled to a like demand and notice in order to fix his liability.</p>

<p>Act to Change the Street Grades in San Francisco.—Award of Damages.— Under the Act of March 28,1868 (concerning the change of street grades in San Francisco), it was the purpose of the Legislature to confine the award of damages to those who should petition for them allowance as provided by said Act.</p> <p>Idem.—The Commissioners, under the above Act, have no authority to award damages in excess of the amount claimed in the petition.</p> <p>Idem.—Valuation__Jurisdiction of County Court.—The County Court has no authority to inquire into the question of mere valuation, that being fixed by the action of the Commissioners, in conjunction with the Committee of the Board of Supervisors; no fraud being alleged, the authority of the County Court is confined to errors of jurisdiction and irregularities appearing on the face of the proceedings.</p> <p>When the Change of Grade is Established.—Where the proceedings are free from fraud, and have been regularly conducted, the change of grade is absolutely fixed by the act of the Board of Supervisors in adopting the report of the Commissioners.</p>

<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.</p>

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

<p>Injunction.—When it appears that all the equities of the complaint are denied by the affidavits filed on the part of the defense, it is not an abuse of discretion to deny the prayer for a temporary injunction.</p>

The fourth finding of the Court, so far as it relates to the form of the assessment roll, is to the effect “ that the only entry in said book, or in any book or assessment roll for the fiscal year of 1868, relating to the property described in said complaint, or which is alleged by plaintiff to refer, or in any way apply to the Sierra Buttes Quartz Mining Company, is in the form and in the words and figures following, omitting the description of property:.

<p>Municipal Criminal Court of San Francisco.—Constitutional Construction. —The Municipal Criminal Court of the City and County of San Francisco is an inferior Court within the intent of Section 1, Article VI, of the Constitution, as amended in 1862.</p> <p>Idem.—Effect of Amendment of 1862.—The effect of the amendment of 1862 was to limit the power conferred on the Legislature by Article VI of the Constitution to the establishment of municipal and inferior Courts within the limits of am incorporated city.</p> <p>Idem—Obdbb Transferring Cases to, Before Organization.—An order of the County Court of the City and County of San Francisco transferring certain criminal cases pending in said Court to the Municipal Criminal Court of said city and county, prior to the qualification of -the Judge of the last mentioned Court, was valid, and the Municipal Court, when organized, had authority to try and dispose of such cases.</p>

This action was brought By the plaintiff, Joseph D. Ellis, to recover from the defendant certain sums of money for work and labor done and for services rendered by plaintiff in and about the caulking, painting and finishing two schooners, the “ Stag Hound” and “ Louisa Morrison,” for defendant, at Coos Bay, in the State of Oregon, during the year 1868; and also as assignee of certain claims of other parties, for other work, labor and services done and performed in and about…

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

<p>Pleading.—A party who seeks relief must himself state the facts upon which he relies; failing in this, he cannot derive benefit from a cross bill which states another and different cause of action in his behalf.</p> <p>Fbaud.—-An allegation of actual fraud is not sustained by proof of a mistake.</p> <p>Mistake.—Fbaud.—It is not true, as a legal proposition, that a mistake is constructive fraud.</p>

<p>Action on a Judgment Obtained in Another State.—An action on a judgment of a Court of competent jurisdiction in the State of New York may bo main-tallied ill tins State, notwithstanding an appeal from such judgment has been taken and is still pending in the Court of Appeals in that State.</p> <p>Idem.—Pleading.—To constitute a valid defense to such an action it must be shown that the appeal had the effect to suspend the judgment appealed from, or of staying the execution thereof.</p>

Application to the Supreme Court for a writ of mandamus commanding the Governor to authenticate a bill passed by ' the Legislature, The other facts are stated in the opinion.

<p>Appeal from the- District Court of the Seventeenth District, Los Angeles County.</p> <p>Tlio facts are stated in the opinion.</p>

<p>Probate Practice.—Publication of Notice.—Notice of an application to admit to probate an alleged will under Section 13, or a copy of such, will, with an authenticated probate thereof under Section 28 of the Probate Law, is not “ a summons, notice or advertisement ” required to be published in the “ State Paper” under the Act of March 29, 1870.</p>

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

<p>Appeal from the District Court of the Fourth District, City and County of San Francisco</p> <p>This is an action for freight on a cargo of lumber, shipped by plaintiff for defendants, at Port Orchard, Washington Territory, and duly delivered in San Francisco by plaintiff, under a charter party of affreightment, executed by the parties at Port Orchard, prior to the loading of the vessel.</p> <p>The complaint sets out as the cause of action that, “by a certain charter party of affreightment,” etc., between plaintiff, master of the bark Vidette, and the defendants, it was witnessed that the plaintiff agreed to charter the bark Vidette to the defendants, to take on board a cargo of lumber at Port Orchard, for San Francisco, in California, in consideration whereof, the defendants agreed to furnish a full cargo of lumber to said bark, and to receive the said cargo in San Francisco, as fast as delivered, and to pay a freight of nine dollars, in United States gold coin, per thousand feet, to plaintiff or his agent, for every thousand feet taken on board at Port Orchard.</p> <p>After averring the receipt of the .lumber on board the bark, and its delivery in San Francisco in accordance with the terms of the alleged charter party, plaintiff then alleges due performance by him, of all the conditions and agreements of said charter party by him to be performed and fulfilled, “ and that the sum of money to be paid to the plaintiff” etc., amounted to the sum of $5,516 95, of which defendants had notice, etc.; and that, although often requested, defendants have not paid, nor has either of them paid, the said sum, or any part thereof, to plaintiff, except the sum of $1004 69, paid in lumber. Plaintiff therefore prays judgment for the sum of $4,512 26, in gold coin of the United States.</p> <p>On the trial, the plaintiff proved the execution of the charter party referred to in the complaint, the delivery of the cargo in San Francisco, and its receipt by the defendants.</p> <p>After the close of plaintiff’s testimony, the defendants moved for a nonsuit, on the following grounds :</p> <p>First—That the complaint does not state facts sufficient to constitute a cause of action.</p> <p>2d. Because it is nowhere alleged in the complaint, that any contract was ever made or executed between the parties.</p> <p>3d. Because it is nowhere alleged in the complaint, that any contract was ever delivered between the parties.</p> <p>4th. Because it is nowhere alleged in the complaint that the cargo of lumber mentioned therein, was ever transferred from Port Orchard to San Francisco, or elsewhere, or at aE, under the contract offered in evidence, or any other.</p> <p>5th. Because it is nowhere alleged in the complaint, that defendants ever agreed to pay plaintiff anything for transporting said cargo of lumber, nor is it alleged, nor does it appear, what the service was worth, if anything.</p> <p>' Second—Because it is not proven that any contract was ever made, executed or delivered, between the parties, or any of them.</p> <p>Third■—Because it was not proven that the cargo of lumber, in the complaint mentioned, was ever transported from Port Orchard to San Francisco, under the contract.</p> <p>Fourth—Because it was not proven what was the value of the transportation of said cargo from said Port Orchard to San Francisco.</p> <p>The motion for nonsuit was overruled.</p> <p>Defendants then introduced in evidence a bill of lading, signed by the plaintiff, for the cargo of lumber shipped at Port Orchard, to be delivered in San Francisco, reserving freight at the rate of nine dollars per thousand feet, but not specifying that the freight was payable in gold coin.</p> <p>The Court rendered judgment for the plaintiff, for the amount claimed in the complaint.</p> <p>Defendants moved for a new trial, which motion was overruled, and defendants appealed.</p> <p>The other facts are stated in the opinion.</p>

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

This was an action for damages to personal property, commenced in the Justices’ Court of the City and County of San Francisco, wherein judgment was rendered in favor of plaintiff. The defendant appealed to the County Court, which Court rendered judgment in favor of plaintiff in the sum of S300.

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

<p>Feaud—False Repeesentation.—S. entered into an arrangement with R., F. and W., to purchase, on their joint account, a tract of land, at a price not to exceed 534,000, with a mutual understanding that S. should consummate the purchase for the least price for which the land could be bought. S. completed the purchase for the sum of 530,000, but represented to his associates that the price was 534,000, and received from each of them his proportion of that sum. Held, that the false representation of S. was a fraud upon his associates, and that he is liable to them for the excess of purchase money received from them, with interest.</p>

<p>Practice—Modification of a Judgment.—A modification of a judgment cannot be made in this Court, until a re-hearing has been granted.</p>

<p>~R.Anyn.OAT) LAW. — CONFIRMATION OF REPORT OF COMMISSIONERS A FINAL JUDGMENT.—An order of the District Court, confirming the report of the Commissioners appointed under the Railroad Law, to condemn lands for railroad purposes, is a final judgment, within the meaning of Section 347 of the Practice Act.</p> <p>Idem.—Interest on Amount of Award. —Where land has been condemned under the above Act, and an award of damages made, the owner of the land is entitled to interest on the amount of the award, to commence thirty days after the final confirmation of the report.</p>

<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.</p>

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

This was an application to the District Court for a writ of mandamus to the Treasurer of Butte County, to compel him to purchase and pay for certain warrants then in his possession, which the petitioner had surrendered for redemption during the term of office of defendant’s immediate predecessor, under the provisions of the Act of April 4, 1864, entitled “An Act in relation to the Board of Supervisors of the County of Butte, etc.,” and the Acts amendatory thereof.

<p>Appeal from the Probate-Court of San Joaquin County.</p> <p>: The facts are stated in the opinion.</p>

<p>Deed by Attobney in Fact.—Acknowledgment op.—The acknowledgment of a deed which recites that “ personally appeared before mo, a Notary Public of said county,--, by his attorney in fact,---, known to me to be the person,” etc., is sufficient as the acknowledgment of the attorney in fact.</p>

The respondents were indicted in the. County Court of El Dorado County. On the trial a demurrer to the indictment was sustained. From the order sustaining the demurrer this appeal is taken by the People. The other facts are stated in the opinion.

<p>Evidence.—Mevobandcm: Book.—A entry in a memorandum book is subject to explanation, by the party making it, to the same extent as it would have been had the words been spoken instead of being written.</p> <p>Eeeok by the Covet is Peeswed to be an Injuby__Error imports injury to the party against whom it is committed, unless it affirmatively appear by the record that no injury did or could occur to him thereby.</p>

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

The appellant was tried and convicted in the Court helow of the crime of burglary, and from the judgment and order denying him a new trial he appeals to this Court. The other facts are stated in the opinion.

<p>The facts are stated in the opinion.</p>

<p>Tax Suit.—Service op Summons.—In an action to collect delinquent taxes, service by posting a copy of the summons on the real estate and improvements described therein, in compliance with Section 41 of the Revenue Act of May 17, 18G1, is sufficient to authorize a judgment against the land and improvements so served.</p> <p>Idem__Act. of May 12, 1862.—The statute under which such service was made, . is not superseded by the Act of May 12, 1862.</p> <p>Idem.—Personal Judgment.—When there is no appearance of the personal defendant, a judgment against hint is erroneous, unless it is shown that he was personally served with the summons.</p> <p>Idem.—Return of Sheriff.—The return of service by the Sheriff, on the party in possession, where no appearance is made, is prima facie evidence that the person served was the person in possession within the meaning of the statute.</p>

The defendant was convicted of murder in the second degree, and moved for a new trial, one of the grounds for which was misconduct of one of the jurors. The motion was denied by the Court, and defendant appealed. The other facts are stated in the opinion.

The facts are sufficiently stated in the opinion of the Court, and in the report of the case on the former appeal, to be found in 31 Cal. p. 11,

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

<p>Appeal from the District Court of the Seventh District, Solano County.</p> <p>This is an action upon an alleged contract by which the • plaintiff claims one half the profits made by the defendant in the purchase and sale of a lot of cattle.</p> <p>It was alleged in the complaint that defendant agreed with plaintiff that if he would accompany him to the lower part of the State and lend his assistance and personal services in the purchasing, driving and taking care of a lot of cattle, he (defendant) would furnish all the money necessary in the business without charge therefor, and would market and sell said cattle, and upon tlie completion of the contract would share equally the profits thereof with plaintiff.</p> <p>The case was tried by a jury, who found: First—That there was a contract as set up in the complaint. Second— That there was a profit of $2,018, and that “therefore we find for the plaintiff the sum of $1,009.”</p> <p>The defendant moved for a new trial, which was denied; and from the judgment and order denying a new trial this appeal is taken.</p>

<p>Application for a writ of mandamus to compel the Loan Commissioners of Santa Clara County to satisfy, with coin, certain bonds held by applicant, and issued under ‘ ‘An Act to authorize the Board of Supervisors of Santa Clara County to take and subscribe two hundred thousand dollars to the capital stock of the San Francisco and San Jose Railroad Company, and to provide for the payment of the same, and other matters relating thereto,” approved April 9, 1861.</p> <p>The other facts are stated in the opinion.</p>

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

<p>Appeal from the County Court of Los Angeles County.</p>

<p>Application for a writ of mandamus.</p>

<p>Liability of Employee.—A party who employs another to do work is primarily liable to the employee for Ms wages, although the work was "being performed for him by a third party under contract.</p> <p>Idem.—Passage Money.—A party employed to perform work at a place distant from that at which he was when employed cannot recover his passage mor.ey to , such place if the complaint fails to allege any consideration for the promise to pay such passage money.</p> <p>Idem.—Iñtebest.—In an action to recover wages for work and laber, interest can only bo recovered from the time of filing the complaint. I</p>

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

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

<p>Certiorari to the County Court of Sacramento County.</p> <p>Suit was brought in the Justice’s Court of Lee Township, in Sacramento County, to recover damages in the sum of one hundred dollars. The Court rendered judgment in favor of plaintiff for the sum of §15 and costs. Notice of. appeal was filed with the Justice of the Peace, but was not served on plaintiff nor any one representing him. A sufficient undertaking on appeal was also filed and a transcript of the docket of the Justice of the Peace sent with the other papers to the County Court. On motion of plaintiff’s attorney, the appeal was dismissed because no legal notice had been served on plaintiff, and a judgment for costs rendered in favor of plaintiff for witness’ fees, etc. Motion was afterwards made by defendant to set aside the judgment for costs on the ground that the Court had no jurisdiction to render the same, which motion was overruled. Defendant thereupon applied to this Court for a writ, of certiorari, on the. ground that the County Court exceeded its jurisdic- ■' tion in rendering said judgment against the defendant, requiring said Court to certify the record and proceedings in the action of Blair v. Cummings, in said County Court, and for an order staying execution and all proceedings in the County Court herein until said writ be disposed of in the Supreme Court.</p>

Action was brought to recover alleged delinquent taxes claimed to have been assessed upon certain lands in Los Angeles County. Judgment was for plaintiff.

<p>School Lands. — Statutobi Constboction. — Section i of the Act of April 28, 1858, to provide for the location and sale of certain school lands, which provides that the locating agent shall not locate more than three hundred and twenty acres, either directly or indirectly, for any one person, was not amended or repealed so as to abrogate or dispense with such limitation until the Act of March 28,1868.</p> <p>Idem. — Only such portions of prior Acts relating to the same subject, as are repugnant to or are in conflict with its provisions, were superseded or repealed by the Act of April 27, 1863, to provide for the management and sale of the lands belonging to the State.</p>

This is an action for taxes. A judgment was rendered by default, and the appeal is from an order dismissing a motion to set the judgment aside. The motion to dismiss was based on an affidavit of the attorney for the plaintiffs, stating that he was informed and believed that the attorney representing the defendants had no authority to appear for them.

Defendant was convicted of arson. He moved for a new trial on the following grounds : First—The Court erred in the decision of questions of law arising during the course of the trial. Second—The verdict is contrary to law. Third— The verdict is contrary to evidence. The motion for a new trial was granted. The other facts are stated in the opinion.

<p>Fraudulent Conveyance.—Creditor’s Bill.—Judgment.—In an action brought against the grantee, to set aside a conveyance made by a deceased debtor, on the ground that it was made to hinder and delay creditors, to which the representative of the deceased debtor was not a party, it is error to render a judgment declaring a trust against the grantee and in favor of the estate of the grantor.</p> <p>Pleadings.—Judgment.—The judgment must accord with, and be warranted by, the pleadings of the party in whoso favor it is rendered.</p> <p>Idem.—A judgment that is not supported by the pleadings is as fatally defective as one which is not sustained by the evidence.</p> <p>Unusual Practice.—It is an anomaly in practice to render judgment in favor of a party who is not before the Court, and is not represented in any manner in the action.</p>

Defendant Avas convicted of murder in the first degree, and a neAV trial being denied, he appealed to this Court.

<p>Application to the Supreme Court for a writ of mandamus commanding a Justice of the Peace of Stockton Township, San Joaquin County, to issue execution on a judgment.</p> <p>Suit was brought in a Justice’s Court to recover from the City of Stockton the sum of two hundred and ninety-nine dollars and costs of suit. Judgment was rendered in favor of the plaintiffs in the amount prayed, and costs of suit, taxed at seven dollars and eighty cents. Defendant appealed to the County Court, and while the appeal was still pending moved the Court that the proceedings be suspended, and that the pleadings be certified to the District Court of the Fifth District, on the ground that the determination of the action would necessarily involve the question of title to or possession of real property. The Court granted defendant’s motion, and the pleadings were certified to the said District Court. Afterward, on motion of plaintiff, the District Court dismissed the case on the ground that no question of title to or possession of real property was involved.</p> <p>Afterward, plaintiff demanded of the said Justice of the Peace that he issue an execution on said judgment, which was refused.</p>

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

<p>Evidence of a Conviction to Disceedit a Witness.—In order to discredit a witness by showing Ms conviction of an offense, the best evidence of the conviction is requisite.</p>

A demurrer to the indictment, on the ground that it did not state facts sufficient to constitute a public offense, was sustained—and from the order sustaining the demurrer the People appeal. The other facts are stated in the opinion.

This was an action against the Sheriff of Lassen County to recover the value of certain property levied upon and sold by the defendant under an execution issued from a Justice’s Court of said county. The property levied upon and sold consisted of two horses, a set of harness and a buggy. At the time of the levy of the execution, plaintiff was residing upon a farm and carrying on the business of a farmer.

<p>Cbiminal Law. — Right of the Accused to be Examined in His Own Behalf.— The right of the accused to he examined in his own "behalf is one which he may exercise or not, and no presumption can he properly indulged against him for his not doing so. .</p> <p>Idem.—The existence of this right does not modify or change any of the rules of evidence as they existed anterior to its incorporation into the Code of Criminal Practice.</p> <p>Evidence of Chabacteb of Deceased on Teial fob Hubdeb.—It is not a mar terial question whether the deceased was, in fact, a man of dangerous character; it is his reputation, as such, that constitutes the legitimate subject of inquiry.</p>

<p>Obhhnal writ issued out of the Supreme Court, and heard at Chambers.</p> <p>The facts are stated in the opinion.</p>