Volume 4 — California Reports

<p>[At the commencement of this volume are published the opinions delivered in the following cases: Beslep v. The City of San Francisco, decided in July Term, 1852; Tunis v. The Steamer Senator, decided in October Term, 1852; Smith v. Bowe, and The People, ex ret. Ed. T. Mehomy v. Stephen B. Harris, Mayor, decided in January Term, 1853; and Brake <& Burlingham v. Palmer, Cook & Co., decided in October Tern, 1853.</p> <p>These cases having been omitted in the previous volumes of Reports, are inserted here on account of their importance. The opinions sufficiently state the cases in which they have been delivered.]</p> <p>Abbitbatioií — Statute to be Pursued. — To constitute a submission to arbitration under the statute, so as to give the award the effect of a judgment, the statute must be pursued in the manner in which the submission is filed with the Clerk, and the motion made for judgment on the award.</p> <p>1 Reference — Effect of. — A reference in which there is no order of Court, or agreement filed with the Clerk or entered on the minutes, is a voluntary withdrawal of the case from the jurisdiction of the Court, by which the Court loses all control over the case and has no authority to enter judgment upon the finding, except by consent of parties.</p>

<p>Appeal from the Fourth Judicial District.</p>

<p>1 Trail — Special Issues, how Fbamed. — When, in a chancery case, the Court directed that special issues of material facts in the case should be framed or settled, and stated in writing, before proceeding to trial, held, not to be error.</p> <p>Law and Equity Distinctions Pbesebyed. — The essential and inherent distinctions between law and equity, as two separate though connected sciences, is not abolished by the Practice Act.</p> <p>Reeebence — Consent, when Essential. — When this Court decided in Polack y. Smith, that a reference could not be ordered without the consent of the parties, it intended that decision to apply to a case at common law, in which the party was entitled to a jury trial, and not to extend to cases in equity.</p>

<p>MtTNioiPAii Coeeobations — Riohis of. — The right to fit up a building for city or public purposes, and provide suitable accommodations for the transaction of the business of the city, is a necessary incident to the administration of every municipal government.</p>

<p>Damages, in Trespass. — In an action of trespass, the question of damages is a question particularly for the determination of a jury.</p>

Rutenberg, as guardian of Louisa, filed a petition in the Probate Court of the County of San Francisco, against David T. Bagley, administrator of Samuel Sandford, alleging that Sandford, in his lifetime, recognized Louisa, in writing, to be his child, and as he had no other children, that she was his sole heir, and prayed for her maintenance out of Sandford’s estate and general relief.

This was a suit upon a bond for $7,725, executed by defendants to one Wood, and assigned by Wood to plaintiff. It was conditioned for the delivery of 3,000 sheep, sold by one Thompson to Wood. The defendants denied all the allegations of the complaint.

Plaintiffs sued upon tbe bond of defendants, [16] conditioned for *the payment of tbe interest upon a mortgage executed by defendant D. G. Whitney, to one Nathaniel P. Sheldon. The defendant Whitney, at the trial, moved the Court for a nonsuit, which the Court granted, and the plaintiffs appealed. The bond conforms with the requirements of the Act concerning Fraudulent Conveyances and Contracts, in respect to the expression of a consideration.

This was an action to recover upon a contract for two thousand barrels of flour sold by plaintiffs to defendant, and named in the sale-note as Haxall flour.

The plaintiff sued upon two promissory notes, one for $500 and the other for $900, signed by the defendant Hurst, in the partnership name of Davis & Hurst, in favor of Nathaniel Smith, and by him indorsed to plaintiff.

<p>1 Homestead — Aot Construed. — The Homestead Aot does apply to and affect property acquired precious to its passage.</p> <p>Idem — Record of. — In the absence of any statute regulation requiring a record of the selection of the homestead, or indicating any mode in whicn the intention to dedicate property as a homestead shall be made ¡mown, the filing of a notice in the Recorder’s office of the county could have no legal effect, and would not be conclusive on purchasers or creditors.</p> <p>Homestead — What is. — The “homestead” is the dwelling-place of the family, where they permantly reside; and, by common law, such residence raises the presumption that the premises so held are the homestead, and every one is bound to take notice of the character of the occupant’s claim.</p> <p>Idem — Dedication a Question of Pact. — The fact of the dedication of the premises in question as a homestead, was properly submitted to the jury.</p> <p>* Homestead — Purchaser of. — In an action of ejectment, the purchaser Lp =, j 0 of the homestead from the husband, without the concurrence of the wife, is not entitled to recover the excess of its value over 55,000. [24]</p>

Mayo filed his complaint, praying for the recovery of the possession of land in the City of Sacramento, and damages for the detention of the land and for forcible eviction and expulsion from it, and for the value of improvements erected upon it by him. Defendant demurred to the complaint, because several causes of action had been united in it. The Court sustained the demurrer, and the plaintiff appealed.

The plaintiff brought suit against Pierre B. Cornwall, as indorser of a promissory note, drawn by Barton Lee, dated Sacramento, November 8th, 1850, for the sum of $500, and payable to the order of said Cornwall, on the 1st day of July, 1851, with interest, at the rate of one per cent, per month.

This was an action of ejectment, brought by Engels & Hooper, against Charles W. Lubeck, to recover certain lands, known on the map of the City of Sonoma, as lots No. 585 and 581, and other lands, alleged to be the property of the plaintiffs, Defendant filed a general answer of denial.

The plaintiff brought this action against the defendant to recover possession of a tract of land, situated on the north side of the Calaveras Eiver, in the County of San Joaquin, containing 318 acres, more or less; alleging that, whereas the complainant was, on the 1st day of October, 1851, and for a long time previous thereto, in the possession of the said tract of land (describing it) and had, at the date aforesaid, commenced improvements on the said premises, and did…

The. plaintiff, on the 15th day of June, 1853, filed his complaint in the Superior Court of the City of San Francisco, against the defendant, to recover the sum of $3,890 18, with interest and costs of suit, on the instrument set forth in the opinion of the Court, averring that, on said day, the said instrument was duly presented by him to the drawer, and payment demanded; that payment was refused by the drawee, and that said instrument was then and there duly protested for…

<p>1 Negotiable Instrument, Certificate of Deposit.-A certificate is a negotiable security, and, as far as negotiability is concerned, must be placed on the same footing as promissory notes.</p> <p>Certificate of Deposit — Action on. — Where it is alleged that a negotiable security, as, for example, a banker’s certificate of deposit, has been lost or destroyed, the maker of it has a right to require indemnity against all future claims under it, before its payment can be enforced by law.</p> <p>2 Lost Instrument — Indemnity Required before Action. — The best rule is, to require indemnity in all cases, whether the bill or note has been lost or destroyed, notwithstanding- its occasional hardship.</p>

This was an action to recover $4,400 for wharfage or levee dues for laying at the wharf or bank by the levee in the harbor, and within the corporate limits of the plaintiff, fourteen trips. Two ordinances had been passed by the city, one on the 2d of January, 1852, and the other on the 2d of June, 1852, to * regulate wharfage or levee dues and the [42] duties of the Harbor Master, and upon them and the statutes incorporating the city, this action was based.

This case is similar to that of the same plaintiff against the steamer New World, except in the particulars mentioned in the opinion of the Court.

Judicial District. The complaints, in these several cases, against the several defendants therein, and doing business in the City of San Francisco, by designation of the Attorney General, in order to secure an impartial trial, were filed in Contra Costa [48] County, in * the ordinary form,, to recover the penalties imposed by Article YI of the Eevenue Act of May 18th, 1853, on auctioneers, for selling real or personal property without a license; and, also, by Article YII, on…

Matthey sued defendants on three promissory notes of Delacroix, dated March 1st, 1851, for $610 20 each, with five per cent, per month interest, each indorsed by Gally & David, as partners. The cause was tried without a jury by consent. [63] * The complaint alleged that Gally & David had waived notice of non-payment of the notes.

This action was brought by Burgoyne & Co. against Middleton & Claghorn, auctioneers for Fernandez & Peyton, t On the trial the plaintiff gave in evidence the bill of parcels and other evidence tending to maintain the issue on their part, and among other things, an advance in the price of coffee, shortly after the sale.

<p>Appeal from the Sixth Judicial District.</p> <p>This action was for the recovery of a tract of land in Sacramento County, called the “ Pocket.” The complaint prayed for an injunction to restrain waste, which was granted. The defendants answered separately, claiming the portion occupied by them respectively, being 160 acres each; that the land was public land, and that they had complied with the Act prescribing the mode of maintaining and defending possessory actions on Public Land in this State, passed April 20th, 1852.</p> <p>The plaintiffs proved that they had taken possession of the land in August, 1849, no person being thereon, and soon afterwards inclosed and commenced to build a house upon it, and that the defendant took possession of it in June or July, 1852. The inclosure of the plaintiff was by making a ditch from the river Cassimer to a slough. The Pocket is bounded by the river, the tule, the slough, and the ditch.</p> <p>The Court instructed the jury that the plaintiffs could re-*cover if they were in prior possession of [68] the premises in controversy, and had it inclosed within, by natural or artificial boundaries, or by both, and to what extent they may have inclosed; and if the jury believed that the plaintiffs were in prior possession, it was evidence of a title in fee simple; that the law of California respecting the occupation of public land has nothing to do with this case. A party may have a fee simple title by possession merely, short of twenty years.</p> <p>The defendants asked the Court to give the following instructions, which' were refused by the Court, and the refusal excepted to by the defendants:</p> <p>1st. The presumption of law, arising on the treaty by which the lands of California were ceded, is that all lands in the State are public lands, unless it is shown that the title has passed out of the Government. The jury will presume the land is Government land, unless it appears to have been granted away. If the land is Government land, the plaintiffs cannot recover more than 160 acres of land in this action.</p> <p>2d. To constitute a real and substantial inclosure, definite and notorious in its character, the plaintiffs must show that they constitute a fence and substantial artificial barrier, such as a ditch or fence, clearly marking the line of such inclosure, and the extent of the possession under it, and clearly separating the land claimed from the common ground.</p> <p>3d. The plaintiffs having failed to show that any claim to the tract in controversy has ever been filed before the Commissioners, under the Act to ascertain and settle the private Land Claims in the State of California, the same is to be held and considered as part of the public domain of the United States.</p> <p>4th. That the plaintiffs must show that their claim of possession does not exceed 160 acres, and that the boundaries of the same are marked out, and that they have made improvements thereon to the value of one hundred dollars.</p> <p>5th. If the jury believed, from the evidence, that the defendants are in possession of whole, distinct and separate parcels of the land described in the complaint, they will find for defendants.</p> <p>* And thereupon the defendants asked the Court to [69] give the following instructions, which the Court gave, with qualifications-, embraced in brackets, to which qualifications defendants excepted.</p> <p>If the defendants entered separately, and held separate parcels of the land, the plaintiffs cannot maintain á joint, action against the defendants, and the defendants are entitled to a verdict at your hands. [If the defendants hold separately, and not jointly, the jury will bring in separate verdicts against each.] The digging of a ditch across a. neck of land, bounded on the other three sides by a river, tule and slough, is not such an inclosure as will sustain the alleged possession of the plaintiffs. [It is, if it forms an impassable barrier or inclosure.]</p> <p>The jury brought in a verdict in favor of the plaintiffs, and separate verdicts against the defendants, and judgment, was entered accordingly.</p> <p>Mere possession is no proof of title in fee simple. (1 Greenl. Ev. § 51, 56; 1 Cal. 480; Adams’ Eject. 32, note. Possession, to be evidence of title in fee or to maintain ejectment, must have continued uninterrupted for at least, twenty years. (5 Dana, 394; 9 Wend. 520; 6 Cow, 750.)</p>

<p>1 Ejectment on Pbiob Possession. — Possession, coupled with color of title, must prevail, except where a better title is shown in the defendants; and where a plaintiff in ejectment pleads a fee simple title, he is not compelled to prove the same; but can properly rely upon prior possession, if he choose to do so.</p> <p>2 Idem — What cannot be Shown m Defense__The defendant, when a more naked trespasser, cannot introduce evidence to show that the title is in a third party, or that the fee of the land in question is in the Government of the United States; nor to impeach the validity of the conveyance to plaintiff collaterally as against third persons.</p> <p>3 Idem — Sepaeate Answees. — The plaintiff in ejectment may sue one or more defendants, and they may answer separately, or demand separate verdicts; unless they do so, however, they will be concluded by the general verdict.</p>

The complaint alleges that the plaintiff is the owner of the fifty vara lot, known on the Map of San Erancisco as No. 1492; that the defendant is obstructing the navigation to the lot, by mooring and anchoring store-ships, and making embankments in front of it: and prays for an injunction and an abatement of the nuisance.

This was a suit for the principal and interest of a promissory note. The principal was $107, and the interest $170, making $277, for which amount judgment was rendered, and defendant appealed.

<p>Bond — Parties in Action. — In an action upon a bond or written undertaking, there can be no constructive parties jointly liable with the proper obligors.</p>

The complaint states that, on the 24th of September, 1851, the plaintiff conveyed to the defendant Jackson, a lot of ground, being a portion of the 50-vara lot known on the official map of the City of San Francisco as lot No. 126; that on the repayment of the purchase money and fifty dollars additional, Jackson agreed to re-convey the premises to plaintiff; that the defendant Calderwood, with a knowledge of the facts and rights of the plaintiff, and fraudulently conspiring…

The facts of the case sufficiently appear in the opinioh of the Court, 1st. Prior possession is sufficient evidence of title upon which to recover in ejectment. (10 Johns. 355, 357; 4 lb. 205, 212; 9 Wend. 223; 15 lb. 175; 2 Hill, 341; 8 Carr. & P. 536.) 2d. Possession is a question of fact, and should have been submitted to the jury; the nonsuit was improper. (1 Wend. 376; 8 Mass. 336; Pr.

Kelly, to whom, in order to save expenses, it was conveyed directly by Eaton.

This was an action for the recovery of a mining claim. The jury found a verdict for the defendant, and [103] the plaintiffs * moved for a new trial; and, among others, assigned the following reasons for a new trial, which were deemed by the Court sufficient for granting the motion: 1st. Improper conduct on the part of the jury.

The plaintiff sued for work done on the sloop Nabob & Ruth, and a wharf and lime-kiln, ajl belonging to the defendants. The defendants McKinley and Garrioch answered, denying each of the allegations of the complaint.

The facts of this ease, and the questions of law involved, sufficiently appear in the opinion of the Court. The testimony having been received by the plaintiff without objection at the time, it was too late to make the objection afterwards. (1 Denio, 518; State v. Bodin, 4 Cow. 855.) Objection was made after the cross-examination; the objection did not come too late. (1 Greenleaf Ev. § 421, ei seq.; 1 Stark. Ev. 124; 2 Camp. 14; 2 Swan, 400; 1 Phil. Ev. p. 13.)

<p>1New Teial, Motion, Eeeeot on Fn,m«. — A motion for a new trial, filed wiflim the time allowed hy law, stays the operation of the judgment, and preserves all rights, until it can he heard and determined, and is not affected hy the adjournment of the Court for the term.</p>

<p>1Vendob’s Lien — On Bond fob Conveyance. — A vendor of real estate who makes no conveyance, but gives a bond, conditioned for the execution of a conveyance, on payment of the purchase money by the vendee, has an equitable lien on the land for the purchase money, and holds the legal title as a security for the enforcement of his lien.</p> <p>Idem — Enfoboement of. — A failure on the part of the vendee to pay the purchase money for two years and more, does not forfeit his right under the contract, as the vendor may proceed to enforce the payment of the debt, at any time after it becomes due.</p> <p>Vendee — Riohts of on Sale by Vendob. — When the vendor, under a power of sale, reserved in such a contract, sells the property either at public or private sale, the surplus, beyond the purchase money due, belongs to the vendee, and the payment of it may be decreed by judgment of the Court against the vendor.</p>

<p>Tbial — Waiver of Juey. — The mere act of filing an answer does not operate as an appearance at the trial so as to prevent the waiver of a jury trial under the 179th section of the Practice Act.</p>

This was a suit upon a replevin bond for $1,500. The complaint alleges that the bond was conditioned to prosecute a replevin suit, before a Justice of the Peace, of said Isbell against McDermott for a wagon and three yoke of oxen, or their return, in case of judgment against Isbell; that the property was delivered to Isbell under the process of the Justice, on the execution of the bond; that the Justice decided he had no jurisdiction of the action, and entered a judgment…

■Appeal from the Fourth Judicial District. This was a submission to the .Court without action upon a case stated. Judgment in favor of plaintiff. Defendant appealed. The facts appear in the opinion of the Court.

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>In this case the plaintiff brought suit against the defendants to recover the sum of $18,500, alleged to have been collected and received by them, for the use of the plaintiff, which, though often demanded, they had refused to pay; it being the amount of an insurance effected by them on the ship Mattakesett, for the plaintiff, with certain parties in the City of Hamburg.</p> <p>[118] *The defendants answered, denying specially the receipt of the money, and the ownership of the vessel by the plaintiff.</p> <p>On the trial the plaintiff called Conrad Steffins, the confidential clerk of defendants, who testified that he knew that plaintiff had directed the defendants to obtain insurance on the Mattakesett, in Hamburg, for the plaintiff, and that defendants had ordered J. & C. Cordes there to obtain this insurance; that one of this firm was also a member of the firm of Cordes, Steffins & Co., in San Francisco. Defendants received a letter from J. & C. Cordeb informing them that the insurance money was partly received, to the amount of 18,000 marks banco. (Letter produced.) Witness had also heard Adolphus Steffins, one of the defendants, make the' same statements, sometime after the receipt of the letter, that the insurance money had been received, etc.; that the letter stated that 50 per cent, of the insurance money had been paid by rates. (Here there was a dispute about the meaning of the words “gehen ein,” it being contended by the defendants that they did not represent a transaction past and completed, but that the money was in course o£ payment by installments.)</p> <p>Adolphus Steffins, one of the defendants, being called as' a witness, testified that he had received the order for the insurance from the plaintiff; that he had directed J. & C. Cordes, of Hamburg, to effect the insurance, one of whom is one of the defendants; that he had received advices from them that the insurance money was in part paid and received by them; that 18,000 marks banco were to be paid, and that part of the money was coming in by installments; that witness had received the premium from plaintiff; that defendants did not act gratuitously for him, but as brokers, to effect the insurance. Defendants admitted the plaintiff to be the owner of the ship Mattakesett.</p> <p>The plaintiff here closed his case, and the Court ordered a nonsuit to be entered against him. The plaintiff moved for a new trial, alleging that the Court erred in entering a judgment of nonsuit; that the judgment was contrary to the law and the facts in the case. Motion denied, and plaintiff appealed.</p> <p>The receipt of the money by the- agent in Hamburg, was the receipt of the principal. (2 Gall. 565.) Its receipt was admitted by one of the defendants, and that binds them, whether received in point of fact or not. The Court erred in not allowing the question of fact to go to the jury. (Practice Act, § 165.) Every partner is an agent, etc.</p> <p>No evidence was offered showing the receipt of the money by defendants; the evidence given rather tended to raise a presumption that J. & O. Cordes had received, or were about to receive it, and hence, to prove a variance; supposing. them to have received it, there was no evidence to show that they were the agents of defendants for that purpose; they were merely agents to effect the insurance. Plaintiff showed no demand on the defendants for the money, although this was essential. (5 Cow. 376; 7 Wend, 320; 5 Taunt. 572; 10 Johns. 285; 9 N. H. 359.)</p>

<p>Writ of Error to the County Court of Sacramento County;</p> <p>This action was originally commenced on the 4th day of May, 1850, before B. E. Washington, Esq., Recorder of the City of Sacramento, by W. H. Y. Cronise against J. G, Garghill, under the Statute against Forcible Entries and Unlawful Detainers, to recover possession of a lot in the City of Sacramento, alleged to be unlawfully withheld from the possession of the plaintiff by the defendant, and [121] praying relief in the * premises, and restitution, with damages assessed, according to the provisions of the Statute, in such case made, etc. On the 13th of May, 1850, the defendant appeared and excepted to the jurisdiction of the Becorder. On the 18th of May, on affidavit of defendant that a fair trial could not be had before the Becorder, the proceedings were transferred to the Court of Justice Sackett, and by agreement of parties, the case was set for trial on the 25th day of May. On that day, plaintiff and defendant, by their attorneys, appeared. Defendant first pleaded to the jurisdiction of the Court, which plea was overruled. He then pleaded the general issue, and went to trial. On the 27th day of May, 1850, the Justice entered judgment in favor of the plaintiff for the recovery of the possession of the premises, and $1,350 treble damages under the Statute, and costs of suit. Defendant appealed to the County Court, which, on hearing and argument, affirmed the judgment of the Justice, with ten per cent, damages, costs of suit, and rent from the 31st day of May, 1850, at the rate of $100 per month, with the delivery of the possession of the premises to the plaintiff, and awarded a writ of possession and execution for the damages. Defendant moved the Court for an appeal to the Supreme Court, which was denied, and the plaintiff's attorney placed in possession under the writ. On the 28th of December, 1853, on the petition of defendant, the Supreme Court awarded a writ of error to the County Court, to bring the record and proceedings before this Court for revision. Various errors were assigned, but the only two considered appear in the opinion of the Court.</p>

In this case Andrew J. Grayson filed his complaint in the nature of a bill in equity, against Albert H. Guild and Joel Lightner to compel a settlement of the affairs of the firms of Grayson & Guild, and Grayson, Guild & Lightner, praying that a receiver might be appointed to take possession of their effects, with authority to sell the stock of goods, collect outstanding claims, and pay debts, and that an account should be taken between Grayson and the said Guild and…

[128] %The bill in this case seeks to compel a conveyance, by the defendant John C. Hays, the Sheriff of San Francisco, of certain lands levied upon as the property of the City, under executions issued upon certain judgments against the City of San Francisco, rendered on the 6th and 18th of September, 1861, in favor of one Peter Smith and one Jesse D. Carr, for the sums of $13,960 and $4,000, respectively, stating that the property was sold by the Sheriff and purchased by…

<p>The opinion -of the Court contains a full statement of this case.</p> <p>Cited 4 Teates, 111: 2 Binney, 40; 1 Barr, 493 : 4 Johns. 216; 1 Edward’s Ch. R. 652; 8 Wend. 620; 5 Binney, 588.</p>

<p>Appeal from tbe Court of Sessions of Contra Costa County.</p>

<p>Eobcible Entes and Detainee, what must be Shown. — In an action of forcible entry and detainer, tbe holding over the land is the foundation of the action, and must necessarily be proved, like any other substantive fact.</p>

<p>Appeal from the Seventh Judicial District.</p> <p>This was an application for a mandamus. The opinion states the proceedings.</p>

The opinion of the Court fully states the facts of this case, which was appealed by the plaintiff, upon a [181] refusal by the * Court below to grant him a new trial. The grounds of the application for a new trial were, that the Court had refused' to give the jury instructions involving principles substantially the same as are decided in the opinion of this Court.

Forbes, being about thirty acres, more or less.” The Justice gave judgment for the plaintiff, and the defendant appealed, first, to the County Court, and after judgment against him there, to this Court. The grounds of the appeal are stated in the opinion. Cited 1 Harr. & J.- 449; 2 Harr. & J. 147; 3 Harr. & J. 206; 1 Harr. & Gill, 172, 435. Cited 3 Serg. & R. 418; 1 Scam. 407; 1 South.

This was an action brought by the plaintiff, as assignee of a lease, or contract, giving the exclusive right and privilege for the space of ten years from date, to fell, saw or otherwise make use of all the timber standing on the rancho of the contracting party, in pursuance of which, the assignor of the plaintiff entered into and took possession of the rancho and built houses, cut timber, and commenced the erection of a mill.

The original proceedings before the Justice of the Peace were for the recovery of land under the statute passed April 20th, 1852, prescribing the mode of maintaining and defending possessory actions on public lands in this State. The cause was brought by certiorari, to the District Court, on the ground that the Justices’ Court had no jurisdiction, and that the County Court could acquire no appellate jurisdiction where the original Court had none.

<p>Appeal from the First Judicial District.</p>

<p>Writ oe Error to the County Court of Solano County.</p>

<p>Appeal from the Eleventh Judicial District.</p> <p>The opinion of the Court fully states the grounds of the appeal.</p> <p>Cited 3 Dallas, *305; 11 Pet. 226; 7 Cow. 368; 2 [189] Cal. 183; Chitty’s Criminal Law, 399; 1 McLean, 334.</p>

<p>1 Easement — Right op Way Cannot be Defeated. — An atttempt by the City of San Francisco to convert a public easement to private use, or to defeat the right of way over a public street, is beyond the power of a Corporation, and the Legislature has no authority to interfere with the disposition of the land and premises upon which the easement is situated, after title has passed from the State.</p> <p>San Fbanoisco Stbeets on City Feont. — Where a city is laid out with streets running to the water, such streets should be held to continue on to the high water, if the city front is filled in, or the space enlarged by accretion or otherwise.</p> <p>Idem — Extension to Wateb Feont of City. — All the public streets of the City of San Francisco running into the water, as laid down on the official map of the city, were, by operation of the Act of March 26th, 1851, extended and carried to the front line of the city, and, as such, are subject to the free enjoyment of the public, and exempt from executions against the city.</p>

The affidavit alleges an indebtedness of the defendants to the plaintiffs, “over and above all legal set-offs or counter claims, upon a contract express or implied for the direct payment,” etc. The Court below held the affidavit uncertain and indefinite, in alleging the contract to be in the alternative, either express or implied, and therefore insufficient. Erom this order the appeal was taken.

An action of ejectment was commenced the 5th of February, 1853, for a lot in the City of San Francisco. The plaintiff introduced evidence to show that the lot in question had been bought by the defendant Duprey, on the 13th of April, 1850, during the time of his marriage with the plaintiff; that they had since been divorced upon her application.

This was an action brought to foreclose a mortgage on a lot in San Francisco, at the southwest corner of Powell and Broadway streets, executed December 25th, 1849, by defendant, Eoss and his wife, to Alfred Eobinson, attorney in fact of the plaintiff, Angelica T. Powell, to secure the payment of $16,000.

[199] *Kohle was convicted of the murder of Nathaniel Holsclow, and appealed to this Court. He assigned various errors. The only one considered was the refusal of the Court to allow him to challenge one of the jurors, as stated in the opinion. Cited 4 Ham. 819; 1 Chitty’s Crim. Law, 545; 4 Black. 458; 7 Blackford, 593; 8 Blackford, 194.

<p>Appeal from the Ninth Judicial District.</p>

The plaintiff sued upon several promissory notes, made by the defendants, to the order of Youngs & Howell, and alleged in the complaint to have been indorsed by Youngs & Howell to the plaintiff. The defendants, in their answer, denied the making of any such notes by them, and averred that the plaintiff was not the real owner of the notes, or the real party interested in the suit; that .said notes were merely indorsed to the plaintiff for the purpose of collection.

Ejectment for a lot in San Francisco. The complaint does not state the residence or citizenship of any of the parties. The defendant Edmund Smith, filed his affidavit for a removal of the cause to the District Court of the United States for the Northern District of California.

<p>Customs as Evidence. — The custom of merchants is not admissible in evidence 1 to vary the plain meaning of a written contract.</p>

This was a submission, under the statute, to arbitrators, to settle a controversy between the parties, arising out of a claim by the plaintiffs against the defendant, for professional services.

Writ oe Error to the County Court of San Francisco. On the 3d of January, 1854, Eay, the owner of the Niantic Hotel, served a notice on Armstrong, his tenant, to quit the premises. On the 4th, they agreed to submit the whole subject matter of “how Armstrong went in and how he was to go out, ” to George Simpton, as arbitrator. On the 5th, Simpton rendered his award in the case, deciding that Armstrong was to abandon the premises on the 9th of January.

Tbis was an action to recover a piece of land on Sansome street, in tbe City of San Francisco. Tbe plaintiff first offered in evidence a deed for tbe land, from B, W. Williams to bimself, dated 27tb November, 1852. Tbe plaintiff tben offered in evidence a certified copy of a deed from William Devier, Street Commissioner, to defendant, dated September 27tb, 1851.

The plaintiff brought this action against the defendants, joint owners and partners with him in a mining claim, on Middle Feather River, for a share in the claim, which had been sold by the company, for his default in paying an assessment. He also claimed $2027, his share of the gold taken from the claim.

This was an action against the indorser of a note. The defense was, that the notice of dishonor was insufficient.

This was an action of forcible entry and detainer. The plaintiff claimed 160 acres of land near the City of San José under the pre-emption laws of the United States, and by virtue of an Act of the Legislature of California, entitled “An Act prescribing the mode of Maintaining and Defending Possessory Actions on Public Lands in this State,” a verdict was rendered against the defendant.

The opinion contains a statement of the case. *lst. The Court erred in refusing to set aside the [219] indictment on the motion of the defendant.

This was an action on a promissory note of the defendants, in favor of plaintiffs, for $8,000, subject to a credit of $8,800.

This was an action of trespass, quart clausvm fregit. The complaint recited, that the boundaries of the land described in it were according to a survey of one Lusk. The defendants, in order to contradict the survey of Lusk, introduced Nathaniel Squib, a surveyor, but not the County Surveyor. The plaintiff objected to the witness, but his objection was overruled, and he excepted, and judgment being rendered against him, he appealed.

This was an action brought by Kritzner, the plaintiff, against the defendants, Warner & Smith, to recover the sum of $1010 44, for lumber furnished and work and labor done, in and about the erection of the Insane Asylum, at Stockton, in October and November, 1852. The defendants answered separately, denying all indebtedness to the plaintiff.

The facts in this case are fully stated in Gaskill v. Trainer etal., reported in 3 Cal. 334. The statement there given, together with that portion of the decree' of the Court specially excepted to, is all that is necessary to an understanding of the opinion of the Court.

This was a proceeding instituted by the plaintiff Fitzgerald, in the Ninth Judicial District Court, against the defendants, Urton et al. to abate a nuisance, laying his damages at $250, * and praying for a perpetual [236] injunction against them in the commission of the same.

Thompson was convicted of tbe murder of Andreas Fajardo. Tbe indictment commenced tbus: “John H. [239] Thompson is *accused by tbe grand jury of Calaveras County, by this indictment, of tbe crime of murder, committed as follows:5’ It tben proceeds to charge tbe offense in the adopted technical form of an indictment for murder by shooting, but omits the averments locating and describing the wounds, and the averment that it is found on the oaths of the jurors.

<p>Appeal from the Fifth Judicial District.</p>

The answer of the garnishee stated that he and Levy had entered into a contract that Levy should put up a building on Nathan’s lot for the sum of $4,400. The contract was thrown up by Levy, and he authorized Nathan to complete the bouse, which the latter did. Nathan answered that, according to the terms of the contract, he should owe $2,195 75, to be paid over at the times specified in said contract.

The plaintiff leased to the defendant the first story of a building to be erected. He reserved to himself eight feet in width by thirty in depth. The cellar was to be finished by the plaintiff, and the first story was then to be erected by the defendant. The plaintiff had the privilege, by the lease, of building additional stories for his own benefit.

This was an action of ejectment brought in the County of Santa Clara, by the plaintiff, as a purchaser ar Sheriff’s sale, to recover a tan-yard, and other real estate in said county, adjoining the town of .Santa Clara. The venue for the trial, by consent of parties, was changed to Contra Costa County, and the case tried by the Court without a jury.

This was a suit brought by plaintiff against Guild, on the 23d day of August, A, D, 1853, in the Superior Court of the City of San Francisco, on a judgment recovered, by said plaintiff, against Said Guild, on the 28th day of April, 1851, in the Circuit Court of St. Louis County, in the State of Missouri, for the sum of $451 31, and costs of that suit, which costs, the complaint alleged, amounted to the sum of ten dollars and sixty-five cents, and were taxed, in said Circuit…

. The complaint was for the violation, by the defendant, of a verbal contract, alleged to have been entered into by the •defendant, to employ the plaintiff and his wife, in the defendant’s service, and find them house-room and board for one year.

This was a proceeding instituted by the plaintiff, Robert. Allen, against Bethuel Phelps and Paul Shirley, the Sheriff of Solano County, to restrain them from selling certain lots in the City of Benicia, under a judgment for the foreclosure of a * mortgage, including them, and to [257] declare the said mortgage void, as to said lots, under the following circumstances: On the 2d of February, 1850, Robert Semple sold and conveyed the property in question to Stewart & Cooke,…

This was an action brought by plaintiffs against the defendants, as bankers, to recover the sum of $2,037 70, a balance due them, on the 2d day of October, 1851, for divers sums of money, deposited wi.th the defendants. The defendant Wells, denied generally any indebtedness to the plaintiffs.

This was an action brought by the plaintiff Riddell, against the defendants, Blake, to recover $2,425, being the principal and interest of a promissory note given by them on the purchase of a tract of land from the plaintiff, situated in the County of Solano, made January 28th, 1853, and payable September 20th, 1853.

This was an action of ejectment brought by Mary Ann Taylor, widow of James Taylor, deceased, on the 14th of July, 1858, to recover a lot of ground in the City of San Francisco, near the corner of Pacific and Sansome streets, on the ground that at the time, and previous to its conveyance to the defendant Hargous, by her husband, on the 7th day of April, 1852, it was, and had been the homestead of the family, and that she did not unite in the said conveyance, as required by…

This was an action for labor performed, laying brick for the walls of a building in the City of Stockton. The complaint stated there had been a contract, by which it was specified that the walls were to be twenty inches thick above the foundations, and that the price per thousand for laying, was to be nine dollars for the common bricks, and thirty-five dollars for the pressed bricks.

<p>Appeal from the Eleventh Judicial District.</p> <p>Mason sued Tipton, Hatfield and Sims, and alleged that he had, in May, 1852, formed a partnership with Tipton and contributed $2,683 in merchandise, being one-half of capital; that in July, 1852, Tipton ended the partnership, took forcible possession of the effects, and retained all the profits; that in August, 1852, Tipton sold out all the partnership effects to Hatfield and Sims, for $3,000, consisting of store-house, merchandise and rancho; that Hatfield and Sims appropriated the same, contrary to the wish of Mason, and refused to recognise his right, and had notice, at the time, of the sale to them, of Mason’s interest in said effects.</p> <p>A verdict was rendered in favor of the plaintiff, against all the defendants, for $1,978, and judgment being entered accordingly, they appealed.</p>

<p>Appeal from the Fifth Judicial District.</p>

Ejectment. The defendant, in the year 1850, was in possession of the lot, which was situated in the City of Sacramento. One R. A. Pearis, in August of that year, commenced proceedings before a Justice of the Peace, to get possession of the lot.

<p>1 Jurisdiction, lost on Adjournment on Tebm. — The Court below loses all power over a cause in which it has rendered judgment, upon the adjournment of term, and cannot disturb its judgments, except in tbe cases provided by statute.</p> <p>2Waiveb by Abbeaeanoe on Attobney. — An appearance, by am attorney, at common law and by the express letter of onr statute, amounts to an acknowledgment or waiver of service.</p>

<p>Contract to Deliver Lumber, construed__The plaintiff contracted with a mill on Puget Sound for the purchase and delivery to him of certain lumber, to be paid for in goods on the arrival of a ship on the Sound, at any time after six weeks from the date of the contract, upon giving three days notice, and assigned the contract to defendants, who, after the expiration of that time, went to the Sound, gave three days verbal notice under the oontract, and demanded the lumber, but failed to receive it, because it had not been paid for by the plaintiff. In a suit by the plaintiff against the defendants to recover the consideration of the assignment, the defendants set up in defense a failure of consideration. Reld, that it was not necessary for defendants to notify plaintiff of the time when they should make the demand, nor to give a written notice to the mill, no such stipulation being required in the contract; that the plaintiff was bound to be ready to pay for the lumber whenever the ship should be at the mill to receive it and the mill ready to deliver it; that the delivery was not a condition precedent, as the conditions were concurrent; that the defendants were not bound to prove that the plaintiff was not ready to pay, etc.; and that the fact that he did not pay, and that delivery was refused in consequence thereof, was sufficient to sustain the defense.</p>

<p>Appeal from the---Judicial District.</p>

<p>Appeal from the Tenth Judicial District.</p>

<p>1Appeal, Aefirmanoe oe Judgment. — The notices and affidavits filed on an application to re-tax costs, were not embodied in a bill of exceptions or statement. Beld, that the judgment must be affirmed, upon the presumption that the Court below decided properly upon all the evidence before' it.</p>

<p>Appeal from the-Judicial District.</p>

<p>New Trial — Discretion.—The exercise of a sound discretion in granting a new triad, upon a review of the facts alone, will not he disturbed.</p>

This was an action of trover, brought by the plaintiffs against the defendant, Sheriff of the County of San Francisco, for taking and carrying away, on or about the 20th of June, ‘1854, the goods in a certain store, No. 102 on Battery street, in the City of San Francisco, valued at $6,000. The material facts in the case were these: The goods ' originally belonged to Samuel J. Josephs.

The plaintiff brought this action to recover a lot at the northeast corner of Dupont and Sacramento streets, in San Francisco, and damages for withholding the possession. There was but one count in the eomplaint. Plaintiff claimed under, and produced a quit claim deed, dated October 21st, 1852, from D. A. Cheever and Henry Cheever to him, which was executed by D. A. Cheever, by his attorney, Henry Cheever.

<p>Appeal from the —--District Court.</p>

<p>Appeal from the Eleventh Judicial District.</p> <p>The complaint states that the defendants, on the 10th of November, 1851, being indebted to the plaintiff and one Thomas Sharp, in the sum of three thousand dollars, and to secure the payment thereof, and as an acknowledgment of such indebtedness to be paid by Isaac Nixon, the then President of said Company, and under the corporate seal of the same, made and delivered to said plaintiff and Sharp thi’ee certain writings obligatory, as follows: “Know all men by these presents, that we, the Bear River and. Auburn Water and Mining Company, of the Town of Ophir, County of Placer, and State of California, to secure the payment, well and truly to be made, unto Thomas Sharp and Peter Shafer, of the town, county and State aforesaid, of the sum of three thousand dollars, and to be paid as follows: Three hundred dollars at or before the ensealing and delivery of these presents, two hundred dollars on the 10th day of December,-' A. D. 1851, and the balance in equal monthly payments of five-hundred dollars each, and payable on the tenth day of each and every month until paid, have mortgaged and assigned, and by these presents do mortgage and assign unto the said Thomas Sharp and Peter Shafer, their heirs and assigns, all that certain lot and property known as the Empire Hotel, situated, lying and being in the town, county and State aforesaid (describing it). The condition of the above mortgage is such that, if the said Bear River and Auburn Water * and Mining Company shall pay or cause to [295] be paid to the said Thomas Sharp and Peter Shafer, their heirs or assigns, the aforesaid mentioned sum of three thousand dollars, at the time or times abovementioned, then this mortgage shall be null and void, otherwise to remain in full force and virtue. In witness whereof, we have hereunto set our hands and seals this tenth day of November, A. D. 1851, at the place aforementioned.”</p> <p>That on the 10th day of January, 1852, the said Thomas Sharp, for value received, assigned and transferred his interest in said instrument to the plaintiff, and plaintiff says that there is now due on the same the sum of two thousand •dollars, with legal interest thereon; that he has demanded payment thereof from said defendants, but though they have often promised, have failed to pay the same or any portion thereof, wherefore plaintiff prays judgment for said sum of $2,000, with interest and general relief and costs.</p> <p>The defendants denied the liability and promise alleged in the complaint. At the trial, the Court charged the jury as follows: The mortgage sued in this case contains a sufficient acknowledgment of a debt due from defendants to found this action upon, and is sufficient of itself as a cause of action. The mortgage given in evidence is a valid and binding agreement or obligation upon tbe defendants, and one upon wbicb tbe plaintiff can maintain an action, notwithstanding tbe law respecting such corporations prohibits them from making a mortgage upon tbe property of tbe company.</p> <p>To wbicb defendants excepted.</p> <p>Tbe jury brought in a verdict for plaintiff, upon wbicb judgment was entered, and defendants appealed.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>This was an action brought by plaintiffs to recover damages from the defendant for injuries sustained by plaintiff’s wife, on the 23d day of June, 1853, by reason of the carelessness and negligence of the defendant, by his agents and servants, in recklessly and improperly discharging a blast, at defendant’s stone quarry, and by neglecting to give proper notice thereof. The damages were laid at $3,000,</p> <p>Defendant denied all the allegations of the complaint.</p> <p>The cause was tried on the 15th day of September, 1853. After the evidence on both sides was offered, the Court charged the jury that they must render a verdict for the plaintiffs, etc. If the jury believed that due diligence and care were not exercised, they were at liberty to give smart money; if the jury, however, believed that due diligence and care were used, the jury are not to give punitive damages. The defendant excepted to the charge of the Court. The jury came into Court, and upon being asked- how they found, the foreman stated that they found for the plaintiff in the sum of $5,000; $2,500 for actual damages, and $2,500 for smart money.</p> <p>The defendant’s attorney requested the Court to direct the Clerk to record the verdict as rendered by them. Tho Court stated that the verdict must be recorded entire, and declined to direct the Clerk to record it as given in. The foreman of the jury then stated that their verdict [298] was for the plaintiffs, in *the sum of $5,000. The defendant excepted to the ruling of the Court in refusing to have the verdict recorded as the jury first rendered the same.</p> <p>Plaintiffs’ counsel filed a remittitur for the sum of $2,000 over and above the $3,000 damages laid in the complaint, and took judgment for $3,000 damages and costs, against the defendant, who moved for a new trial, which was denied; whereupon he appealed from the judgment and the order refusing a new trial.</p> <p>The pursuit of the appellant was a lawful one. The true rule in such cases is laid down in 21 Wend. 618. One so engaged, accidentally doing damages, is not responsible, unless the injury was the result of his negligence, or done wilfully. (8 Wend. 472; 8 John, 92.) No negligence was shown. Even if there had been negligence, the jury could not give smart money. The injury to the plaintiffs was all they claimed redress for; not punishment to the defendant. (See Law Reporter for 1847.) Yindictive damages are not authorized when there is no malice, and this rule applies equally to cases of injury to persons as well as to property. (13 Johns. 131; 23 Wend. 425; Baldwin C. C. R. 142; 9 Barn. .% Cress. 725; 4 Carr. & Payne, 161; Sedgwick on Damages, 548-9, 570.)</p> <p>The defendant was liable, even if negligence had not been alleged or proved. (2 N. Y. 160, and cases there cited.) When there is conflicting evidence on a point submitted to a jury, their verdict will not be disturbed. (1 Cal. 373; 2 lb. 17.) This Court have held that vindictive damages, i. e., smart money, may be given in a civil action for a personal injury. (2 Cal. 54; Sedgwick on Damages, 453, 468, and cases cited.) The power to grant new trials is one of legal discretion, and only the abuse of it would justify an appellate Court in interfering with such order. (2 Cal. 177; lb. 348.) There was no such abuse in this case.</p>

The complaint stated that one Hardin Bigelow, in the month of March, 1850, made a contract with the City of San Francisco, to furnish the city with piles and piling-timber; that the city had not complied with the contract, and thereby had become indebted to Bigelow, who, on the 6th of September, 1850, assigned to the plaintiff his claim upon the contract, and damages for its non-fulfilment.

This was an action commenced by the plaintiff, in the District Court of the Fourth District, on a written, contract with the defendant, a foreign corporation, existing in the City and State of New York, to serve the defendant in the capacity of chief engineer, reporting for duty at Panama. Tire complaint charged a breach of the contract, and claimed wages due, and damages.

<p>Appeal from the Court of Sessions of San Erancisco County.</p>

<p>Appeal from the--Judicial District.</p>

<p>Appeal from the -Judicial District.</p>

<p>1 Promissory Note, after Maturity. — A negotiable note, taken by the holder, after its maturity, is taken subject to all subsisting equities between the maker and the payee, but not such as subsisted between the maker and any intermediate holder.</p>

Action for the breach of a contract. The complaint alleged that on the 20th day of November, 1850, the defendants being about to construct a plank road from the City of San Francisco to the Mission Dolores, covenanted and agreed with Daniel K. Warner and Frederick Dunbar to furnish, for the construction of the road, sufficient merchantable plank to complete the same, and contracted to pay for the lumber at the rate of $80 per 1000 feet; a portion thereof to be delivered…

<p>Appeal from the Tenth Judicial District.</p> <p>The opinion fully states the case.</p> <p>The plaintiff is estopped. (2 Cal. 142-3.) There was a defeasance or cancellation of the-bond.</p> <p>That parol proof may be given of the fulfilment, discharge, or satisfaction of a written contract, see 4 vol. Philips’ Evidence, 605, note 268 ; 3 Johns. N. Y. 509; 7 Cowen, 47.</p> <p>A covenant under seal, not broken, cannot be discharged by parol. (Cr'o. Jac. 99; 1 Taunt. 429; Dart on Vendors, 449; 7 Wend. 129; 10 Wend. 184.)</p> <p>Parol evidence is inadmissible to disannul or substantially vary a written agreement, except upon the ground of fraud or mistake. (1 Johns. Ch. 428-9; Chitty on Contracts, 106-7; 3 Blackf. 353.)</p>

The complaint set forth a contract in these words: The said parties, on said date, purchased the bark called the Sarah Hooper, from Messrs.

<p>Neootiaele Instrument before Maturity. — A negotiable promissory note, the consideration of -which is against public policy, when transferred to an innocent holder before its maturity, is purged o'f the objection, and must be enforced.</p>

The complaint in this action is in the following words: “ Cornelius Mershon, the plaintiff in the above entitled cause, complains against Andrew Randall, defendant, both residents of the County of Marin, in the State of California, and says, that the defendant is justly and truly indebted to the plaintiff in the sum of twenty-one hundred and eighty-three dollars and forty-six cents, according to the following account, to wit: Defendant Dr. to Plaintiff. 1852.

This was an action brought by the plaintiff against the defendants, on the 13th day of February, 1854, to recover the balance of $2,500 due on a written building contract under seal, entered into with them for the erection of the Placer Hotel in the City of Sonora, and for extra work and alterations, made in the plan of the work during the progress of the building.

<p>Amendment, Pxsesumbtious. — A refusal to allow an amendment is presumed to be right, unless the character' of the proposed amendment is shown in the records.</p> <p>Pleading, Disohabge must be Sbecially Pueaded. — Evidence of the discharge of the debt sued on, by transactions subsequent to the filing of tbe answer, is admissible only under the plea of payment puis darrein continuance.</p>

<p>Appeal from the-Judicial District.</p> <p>Cited Isham y. Bennington Iron Co., 19 Yt. 249; Merlot v. Lawrence, 1 Blatchf. C. C. R. 612; Ham et al. v. State, 7 Blackf.315; U. S, v. Warner et al. 4 McLean, 468; Payne v. Comer et al. 3 Bibb, 181.</p> <p>Cited Bowen v. Lease, 5 Hill, 225; Taylor v. JDelany, 2 Caine’s Ca. 150; ease of Yates, 4 Johns. 358; Howard v. Thompson, 21 "Wend. 319; Article 4, § 23 State Constitution.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>This was an action brought by the plaintiff, to recover from the defendant for work and labor done, under a written contract under seal, stipulating for payments as the work progressed. Under the contract, the sum of $75,000 was to be paid on the first day of October, for work to be done during the month of September; provided, work to that amount had been done during that period. The plaintiffs claimed to recover for the amount of work actually done, viz; $53,000, during the month of September under the contract, alleging that they had been prevented from doing more, by the interposition of the defendant; and because of the defendant’s inability to pay according to the terms of the contract.</p> <p>The defendant denied the allegations of the complaint.</p> <p>By consent of parties, the case was referred to Joseph P. Hoge, Esq., as sole referee, to find the facts and report a judgment.</p> <p>The referee reported the facts, fully sustaining the allegations of the complaint; and judgment was entered thereon, in favor of the plaintiffs, for the sum of $56,710, with costs.</p> <p>Defendant moved to set aside the report of the referee, and for a new trial, on the grounds, among others, that the referee admitted the plaintiffs to introduce parol proof, to vary, set aside and change the special contract under seal, set forth [336] in*the complaint; also, parol evidence of a parol agreement to modify, change and alter the special contract declared upon, etc.</p> <p>The Court refused to set aside the report of the referee, or to grant a new trial, whereupon the defendant appealed.</p> <p>The plaintiffs seek to recover under the contract, not upon the common counts. Parol evidence cannot be given to alter or vary the written contract. (3 Blackf. 358; 3 Term B. 592; 12 East, 583; 7 Taunt. 596; 13 Wend. 75.) •</p> <p>The rule of evidence relied on has no application; the evidence objected to was admitted to show a waiver, (Beach v. Govillard, decided at this term; 3 Johns. 528; 9 Pick. 298.) Tender and refusal or waiver, are equivalent to performance. Penalty and forfeiture are not to be favored in law, or tolerated in equity. There is no error on the face of the report of the referee, and the Court cannot look beyond it. (2 Cal. 322.)</p>

<p>Appeal from the Fourth Judicial District.</p>

<p>Appeal from the Tenth Judicial District.</p> <p>This suit was brought by the plaintiff to recover the sum' of $2,030 66, alleged to be due for the rent of certain premises in the City of Marysville, leased by the plaintiff to defendants. 1</p> <p>The defendants agreed, by the terms of the lease, to pay the plaintiff the rent reserved. At the end of the lease was a clause which provided that the defendants should' deliver up the premises “in as good condition as at present, reasonable wear and tear excepted; also excepted, total loss by fire, whensoever the lessees are not answerable for neglect and carelessness.”</p> <p>The Court instructed-the jury-as follows:</p> <p>“The last exception in the lease did not apply to all the covenants which the defendants bound themselves to perform, but only applied to the covenant whereby the defendants bound themselves to deliver the property in as good condition as it was when the lease was made, and that under said clause the defendants would not be excused from paying rent during the whole term of the lease, notwithstanding the premises were, destroyed by fire, without the fault or carelessness of the defendants.”</p> <p>To this charge the defendants excepted; and a verdict being rendered against them, they moved for a new trial, which was denied; and judgment being entered on the verdict, they appealed.</p>

The defendant was convicted of an “assault with a deadly weapon, with intent to inflict a bodily injury,” and he appealed.

This cause originated in the final settlement in the Probate Court of Marin County, of the accounts of the defendant, McCormick, as administrator of John Reed, deceased, and guardian of his infant children.

<p>Appeal from the Sixth Judicial District.</p> <p>This was an action brought by the plaintiff Hoyt, against the defendants Saunders & Eichardson, to recover the sum of $1,702, with costs and damages, being the amount of a promissory note given by Eichardson in the name of Saunders & Eichardson, after the dissolution of said firm. The defendant Saunders, answered separately, denying all responsibility on the said note. By consent of parties, the case was referred to H. O. Beatty, Esq., to report on all the questions of law and fact in the premises. On the 6th of October, 1853, the case came on for trial before the referee. After an examination of the case, the referee reported the facts found by him, and then proceeds: "The referee comes to the following conclusions of law: 1st. When the note was given, the defendant Eichardson, had no authority to sign the name of Saunders to the note, consequently, as to Saunders, it was a void instrument. 2d. That Saunders, at a subsequent day to the execution of the note, made it his own, by becoming the partner of Eichardson in the engagement of the purchase, and by doing such acts as tended to show the plaintiff that he affirmed the purchase of the house (for which the note was given), and his entire failure to apprise the plaintiff that the note was given in his name without authority. 3d. The referee also reported, that in [346] his opinion, if * Saunders was not liable on the note, he should be held liable for the reasonable value of the house, and that for that purpose the plaintiff should be allowed to amend his complaint.</p> <p>On the 8th of October, 1853, defendant, after notice to plaintiff, moved the referee — his report not having been filed in Court — to open the case for the purpose of admitting newly discovered evidence, which the defendant did not know and could not have introduced on the trial, laying the necessary grounds by affidavit, etc., and setting forth the nature of the evidence. The referee overruled the motion to open the case and admit the newly discovered-evidence, to which the defendant excepted. The referee, in view of the application, made the following supplementary report:</p> <p>“The referee in the above entitled case, reports, that after the foregoing report had been written and signed by him, the defendant Saunders, filed an affidavit, which is returned into Court, with this supplemental report, setting forth the discovery of more testimony, which, if it had been introduced in time, and had satisfactorily explained and shown that the lumber spoken of was really sold to Richardson previous to its being used in the house, would probably have changed the conclusion of the referee as to the affirmance of the note by Saunders. The referee having heard the case, and written out and signed his opinion, doubts his authority to re-open the case and admit new testimony, without the authority of the Court, and submits to the honorable Court the question as to the propriety of so doing, and asks the order and direction of the Court in the premises — all of which is respectfully reported.</p> <p>“H. O. Beatty, Referee.”</p> <p>The defendant moved the Court to remand the case to the referee, with instructions to admit the newly discovered evidence, which was refused by the Court, and the defendant excepted.</p> <p>Defendant also excepted to the report and decision of the referee, and moved the Court to set aside the same and grant him a new trial, on this ground, among others, viz : “Newly discovered evidence, material for said defendant Saunders, which he conld not, with reasonable diligence, have discov -*ered and produced at the trial.” [347] The Court overruled the motion for a new trial, and ordered judgment to be entered on the report of the referee; to which action of the Court the defendant also excepted, and appealed to this Court, assigning the said action of the referee and Court, for error.</p> <p>1. The referee exercised a sound discretion in refusing to admit the alleged newly discovered evidence, after the ease had been closed before him. Proceedings before a referee are to be conducted according to legal rules. The report of a referee is to be reviewed in the same manner as if made by the Court. (Practice Act, Comp. Laws, p. 352.)</p> <p>2. Admitting the referee erred, the Court will not remand the cause for new trial, where the verdict must necessarily be the same, as in this case. If substantial justice has been done, the Court will not order a new trial, although error appear on the record. (1 Scam. 490 ; 2 lb. 350; 3 lb. 18; 1 Gilman, 475.)</p> <p>3. The position of appellant’s counsel, that an express ratification would be necessary, is not good law, because it is clearly settled that in all cases of doubtful authority, authority may be impUed from the acts of the party charged. (14 Wend. Gansevort, v. Williams.) But we do not rely on the subsequent ratification as a new agreement, but as evidence of original authority in Richardson,</p>

<p>Appeal from the Tenth Judicial District.</p>

<p>1 Revende Adt — Count? Tax. — The Revenue Act of 1853 provides that the Boards of Supervisors, or Courts of Sessions, shall levy, in addition to the State Tax, a tax not to exceed fifty cents on each one hundred dollars, for county purposes, and such other special taxes as may he hy law authorized to be collected.</p> <p>Idem: — Constbuotion oe. — Under this provision, the Court of Sessions of Sacramento levied a tax of fifiy cents for county purposes, tweniy-five cents for funded debt tax, etc. Held, that the words of the Revonue Act, authorizing a tax of fifty cents on each one hundred dollars for “county purposes,” ought to be restricted to the current expenses of tho year, as an appropriation, leaving the scrip-holders of the county to loot for payment to the tax collected for the floating debt.</p>

This was au action brought by the plaintiffs Ruiz, against the defendants, Norton & Oo., to recover the sum of $23,000 with interest, from January 21, 1853. The complaint showed that on or about the 22d day of December, 1852, the defendants made and entered into the following contract, in writing, with the plaintiffs, through Godeffroy, Sillem & Oo., their agents: [356] *“ Bought of Messrs.

On the second trial of this case, after the reversal of the . judgment before reported, the counsel for the plaintiffs opened, by stating (after reading the pleadings), that they would prove the due execution of the contract of sale, set forth in the complaint; and that, when it was executed, the ship “Glyde,” with a cargo of two thousand bags of Peruvian rice on board, was lying in the harbor of San Francisco, consigned to Godeffroy, Sillem & Co., who were the duly…

This was a bill in equity, filed by Daniel Wilson and wife, in their own right, and Wilson as guardian, ad litem, of the minor heirs of Jose Maria Sanchez.

<p>Appeal from the Third Judicial District.</p>

<p>Appeal, when does not Lee. — An appeal does not lie from an order of the Chancellor making a new party defendant.</p>

<p>1Cbiminal Law — Plea of Eobmeb Conviction — The defendant was convicted of manslaughter, upon an indictment charging the crime of murder. The verdict was, on his motion, set aside. Meld, that to a second trial for murder, upon the same or a different indictment, defendant can plead the former conviction of manslaughter aB an acquittal of the crime of murder. Meld, also, that under the same indictment the defendant may be again tried, and convicted for manslaughter.</p>

This was an action to recover damages from the defendants for a malicious prosecution, and the damages were laid at $10,000. At the October term, 1852, on the first trial, after the plaintiff had made some progress in the cause, he offered certain depositions in evidence, which on objection by the defendants, were rejected by the Court, and thereupon the Court, a ithe instance of the plaintiff, withdrew a juror.

This was an action brought by the plaintiff to recover $15,000, the amount of an undertaking, executed by the defendants at the time of suing out an injunction, restraining the plaintiff from filling the slips appurtonant to Market Street Wharf, and from running his locomotive and train of dirt cars thereon, etc. This undertaking was executed on the 12th day of June, 1852.

<p>Appeal from the Tenth Judicial District.</p> <p>This was an action to obtain an entry of satisfaction upon a judgment and injunction.</p> <p>The facts of the case were, that Ransom and a certain Geo. W. Josselyn had entered upon certain property in Marysville, belonging to Josselyn, but then in the possession of Farish & McLaren; that the latter had commenced an action of forcible entry and detainer, before a Justice of the Peace, against the plaintiff and Josselyn; that the case was appealed to the County Court, where judgment was rendered against Ransom and Josselyn for the restitution of the property and $1,800 damages. Subsequently, Farish & Mc-Laren purchased the property in question from Josselyn, paying him seven hundred dollars for it, the value of the propérty being over $2,000.</p> <p>And at the same time they procured one Jas. H. Adams to guarantee Josselyn from liability on the judgment, on condition Josselyn should take no appeal. Farish & Mc-Laren then issued ah execution, and levied it upon the property of Ransom.</p> <p>Josselyn testified that McLaren agreed verbally, at the time of Josselyn’s conveyance, not to prosecute him on the judgment.</p> <p>The injunction was granted, and, by the decree, was made perpetual.</p> <p>The defendants appealed,</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>The facts of the case sufficiently appear in the opinion of the Courl.</p>

The complaint in this case averred that the plaintiff had recovered judgment against Arents & Co., on which an execution had been issued, and returned, no property found; that Arents & Co. had conveyed certain town lots to the other defendants to defraud creditors, and praying a sale of the property to pay the judgment; in fact, containing the substantial averments usual in a creditor’s bill under the old system of practice.

Services were rendered by the plaintiff under the contract, and pending the litigation, the defendant settled the claim, and conveyed by deed his interest in the property, without the advice or knowledge of the plaintiff. The plaintiff claimed to be entitled to the sum agreed upon by the parties, and brought suit for it. The defendant contended that the plaintiff was only entitled to recover what his services were worth, without regard to the contract.

This was an action brought by the plaintiffs for the second of exchange, drawn payable at sight, by the defendants, in, San Francisco, upon the Clinton Bank, of Columbus, Ohio,' in favor of the plaintiffs, for $4,000, and fifteen per cent, damages for its non-payment. The second of exchange was presented to the Clinton Bank, and payment refused, the 27th of August, 1853, and it was duly protested.

This was an action of ejectment. The cause was tried by the Court without a jury, by consent.

<p>Witness — Beesons Incompetent. — Section 394 of the Civil Practice Act provides: “ No Indian or Negro shall be allowed to testify as a witness in any action in which a white person is a party.”</p> <p>1 Idem. -Section 14 of the Criminal Act provides: “No Black, or Mulatto person, or Indian shall be allowed to give evidence in favor of, or against a White man.” Held, that the words, Indian, Negro, Black and White, are generic terms, designating race. That, therefore, Chinese and all other peoples not white, are included in the prohibition from being witnesses against Whites.</p>

This was an action brought by the plaintiff Griffin, against the defendants Alsop & Co., to recover 120,0.00 damages, by reason of their converting to their own use 2700 mats of No. 1 white China sugar, alleged to belong to the plaintiff.

Writ op Error to the Sixth Judicial District. This was an action originally commenced against one George Gahan, in which an attachment was laid in the hands of Burgoyne & Co., March 12th, 1851. John Y. Plume filed an answer for himself and William M. Burgoyne, denying that Burgoyne & Co. were indebted to Gahan, or had any property of his in their possession, or under their control.

<p>Contract — Breach of Entibe Contbaot. — Where the contract is entire, a breach of part is a breaeh'of the whole, and discharges the party complaining of it from the performance of any of the conditions on his part, and gives him a complete right of action.</p> <p>Contract, Measure of Damages. — The rule of damages against a purchaser for not receiving goods according to contract, is the difference between the contract price and the market value, at the time of the breach of the contract.</p>

<p>Appeal from the Third Judicial District.</p>