Volume 40 — California Reports

The facts are stated in the opinion. First — Time may be made of the essence of a contract. The doctrine of Lord Thurlow that a purchaser could not so stipulate, rested on no principle, and has long been exploded. In equity, time is held to be of the essence of a contract in case of direct stipulation, or necessary implication. And the conduct of the parties may be resorted to, to show that they regarded time essential. (Benedict v. Lynch, 1 Johns, 0.

Action to recover damages for the destruction by fire of certain stacks of wheat and a quantity of wheat sacks belonging to plaintiff, through the “ carelessness, negligence and unskillfulness of the defendants and their agents.” The Court below found tbat tbe estimated amount of wheat in tbe stacks burned was six hundred sacks, the value of which, in sacks, was fifteen hundred and twenty-four dollars. Judgment was for defendant, and plaintiff appealed.

Tbe facts are stated in tbe opinion. First — A stockholder cannot maintain an action against the corporation for non-fulfillment of its duty. (Smith v. Hurd, 12 Met. 371; Hopkins v. White, 1 Head, 31; Peabody v. Mint, 6 Allen, 52; Gorham v. Gilson, 28 Cal. 479.) Second — If any collusion was bad between the directors themselves, or the directors and a third person, to the stockholders’ injury, an action lies against the directors, not the corporation.

<p>Appeal from tbe District Court of Thirteenth District, Merced County.</p> <p>This action was tried by tbe Court and judgment entered in favor of defendants. Plaintiff moved for a new trial, which was denied; from tbe judgment and order denying tbe motion for a new trial this appeal is taken.</p> <p>Tbe other facts are stated in tbe opinion.</p> <p>First — It was tbe intention of tbe Legislature, in ordering a survey to be made, to make tbe survey determine tbe boundary between tbe initial points, where no natural boundary is given; and, until tbe survey is made wbicbis to fix tbe line, tbe jurisdiction on tbe line to be surveyed remains as left by tbe Act of March 8, 1866,</p> <p>Second — Tbe survey was not made until long after tbe time wben tbe lien for taxes bad accrued to Merced. If Stanislaus acquired tbe territory after tbe lien accrued sbe did not thereby acquire any right to tbe taxes of that year. (Moss v Shear, 25 Cal. 38.)</p> <p>Third — Taking tbe language of tbe statute, it is apparent that tbe Legislature did not intend to be understood as respondents contend.</p> <p>“Beginning at tbe Stakes monument, thence in a straight line to a point on tbe San Joaquin Biver seven-miles below tbe mouth of tbe Merced Biver.”</p> <p>This is tbe first call in tbe boundary mentioning tbe river. Tbe line commences straight, and runs to a point in tbe river, and as if to show that it was not tbe intention of tbe Legislature to make this seven miles by tbe meanders of tbe river, they make tbe river by its meanders tbe line from that point up to tbe mouth of tbe Merced.</p> <p>First — In taking tbe distance from one point to another on a navigable river, tbe measurement should be by its meanders and not in a direct line. (Johnson v. Panned's Heirs, 2 Wheaton, 206; 4 Peter’s Condensed Bep. 84; 4 Curtis’ Bep. 79.)</p> <p>So also where tbe distance called for is upon a road. (Bodleyv. laylor, 5 Cranch. 191; Hitev. Graham, 2 Bibb. 144-5 ; McKee v. Bodley, Id. 482 ; Whittaker v. Hall, Id. 79 ; Craig v. Hawkins Id. 53.)</p> <p>This rule was recognized in Kimball v. Tenwle. (25 Cal. 449.)</p> <p>“It is well settled by numerous authorities that where a river is named as a boundary, tbe boundary line follows tbe meanders of tbe stream.” (Hieles v. Coleman, 25 Cal. 142; Gh'eejileaf v. Kilton, 11 N. H. 531; Luce v. Garley, 24 "Wendell, 451; Morrison v. Keen, 3 Greenleaf, 474; Devaston v. Payne, 2 Smith’s Lead. Cases,, and 243-4, and cases therein cited.)</p> <p>Second — The taxes levied on the land described in the complaint in this action, for the fiscal year A. X). 1868, by the Board of Supervisors of Merced County, prior to the passage of the Act of the Legislature defining the boundary line between the counties of Stanislaus and Merced, approved February 13th, 1868, (Stats. 1867-8, p. 56.) did not become a lien upon said land in the county of Merced, at the time the taxes were levied thereon, and the taxes so levied on said land in Merced County never attached as a lien thereon, and were not payable in said county.</p> <p>The Board of Supervisors in each county in this State were authorized and required by law to levy the taxes for the fiscal year A. D. 1868, at any time between the 28th day of February and the first Monday of April in said year, and the act of the Board of Supervisors in levying the taxes in Merced County for the fiscal year 1868, prior to that time, was an absolute nullity. (See Statutes 1867-8, p. 82.) The land described in the complaint was, on and after the 13th day of February, A. D. 1868, situated in the county of Stanislaus, and the taxes for said fiscal year thereon duly levied by the Board of Supervisors of Stanislaus County prior to the first Monday of April, A. D. 1868. When such taxes became a lien upon said land, which could not be satisfied or removed until all the taxes thereon assessed were paid, or the land vested absolutely in a purchaser under a sale for taxes. (Stats. 1867-8, pp. 56, 82-3: Moss v. Shear, supra; Ex parte Corbett, unreported case July Term, 1867.)</p>

Tbe facts are stated in tbe opinion. First — Tbe Court will take judicial notice that tbe salt-marsh and tide lands affected by this suit are a part of tbe Day and Harbor of San Francisco.

Tbe facts are stated in tbe opinion. First.- — It is averred in the answer tbat tbe whole tract contains six thousand four hundred'add… Held: in numerous cases, that “such evidence in this State, under our system of practice is admissible at law as well as in equity.” (Jaclcson v. Lodge, supra; Johnson v. Sherman, 15 Cal. 291; Cunningham v. Hawkins, 27 Id. 606; Hopper v. Jones, 29 Id. 18; Polhemus v. Trainer, 30 Id. 687; Sears v. Dixon, 33 Id. 332; Gay v. Hamilton, Id.…

The facts are stated in tbe -opinion. Tbe doctrine of mutuality does not apply to tbis case.

Action to recover possession of two quarter sections of land, situated in Solano County, to wit: tbe northwest quarter of section 10, and tbe southwest quarter of section 10, township 4 north, range 2 east; and for damages for the use and occupation of the same, and costs of suit.

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

District, City and County of San Francisco. This action was commenced against Robert J. Yande-water in bis lifetime, to recover six thousand dollars and interest alleged to be due upon a promissory note made by him, and payable to the order of the Real del Monte Consolidated Gold and Silver Mining Company. While the action was pending, Yandewater died, leaving his wife, Ann Sophia Yandewater, sole executrix.

District, City and County of San Francisco. Judgment was for plaintiff, defendant moved for a new trial, which was denied; and, from the judgment and the order denying the motion for a new trial, defendant appeals. The other facts are stated in the opinion.

Action to foreclose a mortgage made by tbe defendants Harry Loto and bis wife Mary, to secure a contract for tbe sum of fifteen hundred dollars, with interest, payable sixty days after tbe issuance of a patent by tbe Government of tbe United States for a tract of land claimed by tbe defendant Mary Love, as her separate property, it having been conveyed to her by her former husband, Narcisso Ben-' nett, to wbom it bad been originally granted by tbe Mexican Government.

<p>PleadÍsg. — Ageeement as Disohaege op Debt in Suit. — An agreement between tbe parties which is to operate as a discharge of a debt in suit, must be pleaded in defense of the pending action.</p> <p>Peactice. — Default.—S. & S. brought suit to recover a sum of money which they claimed to be due them from B. & W. B, upon being served with summons and copy of complaint, entered into an agreement with S. & S., in which he admitted that a certain sum was then due, and stipulating that it was to be settled in a particular manner. Held, that the agreement affords no ground for setting aside a default entered against B. in the absence of any promise by S. & S. to discontinue the suit, or to delay its progress.</p>

On December 28tb, 1859, tbe firm of Cox, Francis & Co. were doing business as commission merchants, and as dealers in miscellaneous trade in San Francisco. Fulton, tbe plaintiff, was carrying on a tannery and manufacturing leather belting and hose.

Tbe facts are stated in, tbe opinion. Tbe Court below erred in refusing to allow plaintiffs to introduce testimony in support of tbe allegations of tbe complaint, and in granting defendants’ motion for judgment on tbe pleadings. Tbe Court was led into botb these errors by reason of a mistaken idea as to tbe theory of pleading, and by a misconception of Sees. 46 and 50 of tbe Practice Act. Sec. 46 of tbe Act provides that tbe answer of defendants shall contain * * *.

Tbe facts are stated in tbe opinion. No principle of commercial law is better settled, tban that negotiable paper, wbicb bad an original lawful inception and consideration as between tbe original parties, is not open to any defence existing between maker and payee, or intermediate endorsers or holders, in tbe bands of a bolder for value who acquired title to tbe paper before it became due, and without notice of its having been dishonored, dr that any defence existed against…

The plaintiff appealed. Tbe other facts are stated in tbe opinion. First — When there is no fraud or oppression on tbe part of tbe creditor, and no debt (using tbe word “ debt” in its broadest and least technical sense), there can be no mortgage. (Hiclcox v. Loioe, 10 Cal. 206-7; Bobinson v. Gopsey, 2 Edwards, 143.) Second — Tbe papers on their face show a sale and contract of re-purchase at tbe option of tbe original vendor.

Judgment was for defendant. Plaintiff moved for a new trial, which was refused; and from the judgment and order denying a new trial, plaintiff has appealed. The other facts axe stated in the opinion. jFirst. Where an act not willful, but the result of negligence, is the immediate and direct cause of an injury, an action of trespass, vi et armis, will lie. (18 Johnson’s Eep. p. 256. 19 Id. p..381. Lecme v. Bray, 2 East.

Judgment was entered for plaintiff in pursuance of a stipulation entered into by counsel tbat tbe action in Ibis case should abide tbe result of tbe action of Himmelmann v. Steiner, and tbat execution should be stayed until tbe final determination of tbat action in tbe Supreme Court- Pending tbe appeal in' tbat case, tbe plaintiff in tbis procured tbe Sheriff to sell tbe premises described in tbe complaint to satisfy bis judgment, and himself became tbe purchaser and…

Judgment was for plaintiff, and defendant appealed. The other facts are stated in the opinion. The thing taxed is palpably not a subject of taxation. (Hittell, 6154.) It is not the money of the defendant loaned nor is it his money at interest. It is at the best but a debt which may or may not be “solvent,” and if a solvent debt, it should have been so taxed. It is the credit given to Casad upon his purchase of the land which had already been taxed to Kohl.

Defendant’s motion in arrest of judgment and for a new trial was overruled, and defendant appealed from tbe judgment, as well as from tbe order overruling bis motion in arrest of judgment and for a… Held: in one or two cases, that an accessory before the fact could be convicted upon an indictment charging him as principal. But this, we apprehend, is against every rule of true pleading.

The other facts are stated in the opinion. The ground of the relator’s appeal is, that when the Court granted Bagley a new trial, it did not have any statement before it upon which in law it was authorized to act, because the exhibits upon which the relator’s defence was founded, and the judgment rendered, were not copied in the statement, or in possession of the Court.

<p>"Vendok and Vendee.— waebanty. — Where a tenant in possession by deed of bargain and sale conveys the premises occupied by him, for a valuable consideration and his vendee is subsequently ejected by the landlord, in the absence of warranty or with only special warranty against the acts of the vendor, the vendee is not entitled to relief either in law or equity against his vendor.</p> <p>Idem. — Concealment.—Ekatjd.—Concealment of the fact by a vendor, of real property that he holds merely as tenant, does not constitute such fraud as will entitle his vendee to relief in equity.</p>

<p>Pkactice. — De:fadi.t.—where a defendant is personally served in the county in -which the action is brought, with the summons and copy of the complaint, and leaves the State without having prepared and verified an answer, and his attorneys do not answer for him, the Court is justified in rendering judgment by default, and in refusing to open the default.</p>

<p>Appeal from tbe District Court of tbe Fifth District, San Joaquin County.</p> <p>Tbis is a proceeding based upon a petition addressed to tbe Judge of tbe District Court, praying tbat a writ of cer-tiorari issue, directing tbe Board of Supervisors of San Joaquin County to certify up to said Court tbe papers and proceedings pertaining to tbe establishment of a certain highway in said county.</p> <p>Tbe petitioner, who is tbe owner of a portion of tbe land through which a proposed road passes, alleges in bis petition tbat it nowhere appears in tbe petition to tbe Board of Supervisors to establish said road tbat tbe proposed road is in tbe State of California; tbat tbe viewers failed to mark out said road and to report its probable cost, and to comply with tbe law. in such case made and provided; tbat it nowhere appears in tbe proceedings of tbe Board of Supervisors tbat said Board notified tbe known owners of tbe land over which it was proposed to construct said road, of tbe time or place of meeting of tbe viewers, either personally or otherwise, and tbat tbe Board of Supervisors, by its order establishing said road, failed to comply with material requirements of tbe Act of April 19th, 1859, “Concerning roads and highways in tbe counties of Tuolumne, San Joaquin, Plumas and Siskiyou,” under wbicb tbey acted, and thereby exceeded its jurisdiction.</p> <p>The Court granted the petition and ordered the writ to issue as prayed for.</p> <p>At the bearing, defendant moved to dismiss the- petition and writ upon the following grounds:'</p> <p>1st. That it does not appear from said petition, nor is it averred therein, that the proceedings, sought to be reviewed were judicial in their character.</p> <p>2d. That it does not state or show in what respect said Board exceeded its jurisdiction in making the order referred to' in the petition.</p> <p>The Court denied the motion, and after hearing the case upon the return, found that the Board of Supervisors exceeded its jurisdiction in establishing said highway, and rendered judgment, ordering “that all the proceedings of said Board subsequent to the appointment of viewers be annulled, vacated and rendered wholly void.” From this order and judgment the Board has appealed.</p> <p>Counsel for respondent moved this Court, to dismiss the appeal, on the ground that the notice of appeal was not given by the President of the Board of Supervisors or the District Attorney.</p> <p>The other facts are stated in the opinion.</p> <p>First — The petition on which the application for the writ is founded, does not state facts sufficient to authorize the issuance of the writ.</p> <p>1st. Because it does not allege or show that the respondent was “beneficially interested” in its issuance, or that he has sustained any injury or injustice whatever by the action of the Board. (Practice Act, Sec. 457; Strong v. County Commissioners, 31 Maine, 578; Rand v. Tobis, 32 Id. 450; Darkness v. Waldo County Commissioners, 26 Id. 353; Perry v. Lovett, 24 Texas, 359; Clifford v. Waldrop, 23 Ill. 336; McKenzie v. Pitner, 19 Texas, 135; People v. Berne, 44 Barb. N. Y. 467; Starkweather v. Seeley, 45 Id. 164; Finch v. le~ hama Oo. 29 Cal. 453)</p> <p>2d. Tbe petition does not state in wbat particular tbe Board exceeded its authority. (Welch v. Bagg, 12 Micb. 8 Cooley, 41; Chambers v. Lewis, 9 Iowa, 1st "With. 583; Wraiion v. Wilson, 22 Cal. 465.)</p> <p>' 3d. Tbe petition does not allege or show that tbe proceedings sought to be reviewed were judicial in their character.</p> <p>Second — The respondent has no right to complain on account of changing the line of the proposed .road on land other than his own, nor would such action vitiate the order of the Board. It could not possibly amount to an excess of jurisdiction; it might be irregular, but nothing more. (Harhnessv. Waldo County Commissioners, supra.) A mere irregularity or technical error or informality is not enough to invalidate the order of the Board laying out a road, and in fact will not be inquired into on the return to the writ. The Court goes to the extent of reviewing the proceedings of the Board of Supervisors to determine whether the Board has exceeded its jurisdiction, and there the review terminates. (Central Pacific B. B. Co. v. Board of Equalisation of Placer County, People v. Burney, 29 Cal. 459; Peoples. Johnson, 30 Id. 101; People ex. rel. Agneio v. Mayor of N. 7. 2 Hill. 10; People ex rd. Bodinev. Goodwin, 1 Selden, 568; Ewing v. Thompson, 43 Penn. 372; 30 N. Y. 72.)</p> <p>The law for the condemnation of land for public use must be strictly followed. (Sanford v. Worn, 27 Cal. 171.)</p> <p>Scarcely a single provision of the law is complied with, from the filing of the petition for a highway, up to the time of the final order of the Board.</p>

Tbe facts are stated in tbe opinion. Tbe proposition of Sloan and Hartman was made, not to any persons by name, but to such as should undersign or subscribe.

Tbis action was brought in tbe name of S. L. Frost and Margaret F. Frost, bis wife, against defendant, administrator of tbe estate of William Harford, deceased, to recover a sum of money due- on a note executed and delivered to said Margaret F. Frost, by said Wm. Harford during bis lifetime. Defendant demurred to tbe complaint on tbe ground of misjoinder of parties plaintiff in tbe action. Tbe demurrer was overruled.

Action of ejectment to recover possession of tbe southerly-forty-seven acres of tbe west half of tbe southeast quarter of Section 18, (T. 2 N. E. 8 E. ) in tbe County of San Joaquin.

Judgment was for plaintiff. Defendant moved for a new, trial wbicb was denied, and from tbe judgment and tbe order denying a new trial, tbis appeal is taken. Tbe other facts are stated in tbe opinion.

<p>Statdtoby Constbdction. — Sade op Sait Maksh and Tide Lands. — Payment op Insiaddments. — In passing the Act of March 30th, 1868, “to survey ancl dispose of certain salt marsh and tide lands belonging to the State of California, ” it was the intention of the Legislature to provide for the payment of the deferred installments, by requiring the payment of twenty-five per cent, of the whole purchase price within the first year and a like amount in each of the two following years.</p> <p>Idem. — The stipulation in the receipt to be given by the Commissioners to the purchaser, for the amount of the first payment of twenty-five per cent to the effect, “thatif within one, two or three years thereafter he pays the additional seventy-five per cent. * * * he shall receive a deed from the State,” was inserted for the purpose of giving the purchaser the privilege of paying the whole balance in a shorter period of time than three years, should he desire to do so.</p> <p>Idem. — Unpaid Installments. — It was the duty of the Tide Land Commissioners to treat lands, upon which the first installment of the deferred payments x-emained unpaid for a longer period than one year, as “lands unsold by the State, ” and to proceed to resell the same.</p>

Tbe facts are stated in tbe opinion. Tbe Court bad no jurisdiction over tbis case for tbe purpose of a trial on tbe 16tb day of November, 1868, There was no Court at tbe time tbis trial was bad — no legal jury, no legal proceedings of any character whatever. Tbe term expired for San Joaquin County, two days before tbe trial of tbis cause.

„ Defendants moved for a new trial, which was denied, and from the judgment and the order denying a new trial, defendants appealed. The other facts are stated in the opinion. The work performed by the plaintiff was not of a character to entitle him to a lien under the Act of March 30, 1868. This Act, being in derogation of the common law, and creating extraordinary rights and liabilities, is to be strictly construed.

Tbe facts are stated in tbe opinion. First — In action for damages for personal injuries, on the ground of negligence, the plaintiff cannot recover, if his own negligence contributed directly to the injury, or if by the exercise of ordinary prudence he could have avoided the injury.

<p>Appeal from the District Court of the Twelfth District, City and County of San Francisco.</p> <p>The complaint alleges that, in 1853, John Griffin con-veyed certain real property to Martha J. Blanchar with the consent of her husband, J. D. Blanchar, in trust for the use and benefit of Harriet M. Bisley, and S. Bisley, who were minors. In 1862, plaintiff was married to Harriet M. Bisley, who bore him one child, and died the following year. The child died two years later.</p> <p>Plaintiff, as the sole heir of his child, claims that whatever right Harriet M. Greer nee Bisley had in the trust estate now belongs to him, and prays judgment that the defendants Martha J. Blanchar and J. D. Blanchar be ordered to convey the premises to plaintiff and S. Bisley, and that they make an accounting of the rents and profits of the premises, and, when ascertained, that they be ordered to pay over to plaintiff one half of the same. Defendants demurred to the complaint, among others, on the general ground that it does not state facts sufficient to constitute a cause of action.</p> <p>The demurrer was sustained by the Court, on the ground that by the deeds from Griffin to Martha J. Blanchar in trust for Harriet M. and S. Bisley they, the cestui que trust, became joint tenants of the premises, and the plaintiff as heir of Harriet M. Bisley or his child had no interest in the same. The plaintiff not being able to amend his complaint in that respect, judgment on demurrer was rendered against him; from which judgment he appeals.</p> <p>First — Section First of the Act of April 27th, 1855, provides: “Every interest in real estate granted or devised to two or more persons, other than executors and trustees, as such, shall be a tenancy in common, unless expressly declared in the grant or devise, to be a joint tenancy.” (Hit-tell’s General Law, p. 107.) The language of this Act is very clear; it does not say to be granted, but granted; and necessarily includes premises granted, as well as to be granted.</p> <p>"Was tbe right of ownership which each joint tenant had in the premises, a vested right, which the Legislature had no right to take away? We contend that no such right existed until the demise of one of the co-tenants, for each of the co-tenants had a perfect right to sell her interest in the premises, and thereby destroy such joint tenancy. No one will contend that a wife has a right of dower in the estate of her husband, or a husband that of tenant by courtesy in the estate of his wife, in this State, on the ground that the same was acquired before the passage of the law abolishing said right. Joint tenancies are not favored under our system. (Bowen v. May, 12 Cal. 351.)</p> <p>We also contend that there is nothing in the complaint to show that the said Harriet M. and S. Bisley were joint tenants. “Joint tenancy cannot arise by descent or act of law, but merely by purchase or acquisition by the act of the party.” (Smith on Beal and Personal Property, 171; also 2 Blackstone, 181.) It does not appear from the complaint that the land was jDurchased by the Bisleys, and, they both were minors, from six to nine years of age, it is not probable that the same was purchased by them.</p> <p>The question is whether the interest of the two Bisleys in the property was such an estate as may, or under the old system might, be held in joint tenancy.</p> <p>The attorney for the appellant claims in his brief that it was not, but he fails to produce any authority. Washburn in his work on Beal Property, (Yol. 1, page 421) adopting the language of the old writers, defines joint tenancy to be “where several persons have any subject of 'property jointly between them in equal shares by purchase.” That the Bis-leys held an equitable estate in the premises will not be denied. That such an estate is a “subject of property” is certain, and we fail to see why it is not capable of being held in joint tenancy, governed by and subject to all the rules thereof. The estate held by the Bisleys in this case was the only one of importance or value. It was decided in Griffin v. Blanchar, (17 Cal. 70), that Mrs. Elanchar held only as the trustee of a dry and naked trust, her power over the land being insufficient to charge it with a mortgage. The girls took the only estate in the land of real life and value. They took by deed of purchase, by the same title; they took the same interest, at the same time, and held it by the same possession; and it is hard to conceive why as to that “subject of property,” why as to that estate, they did not become joint tenants. Their joint tenancy having been established in 1.853 was not disturbed by the Act of 1855. (1 Hittell, See. 685.) The statute expressly refers to deeds to be executed in the future, and it has been decided it does not interfere with any of the incidents of an estate in joint tenancy already existing. (Dewey v. Lambier, 7 Cal. 347.)</p> <p>If these views are correct, when Harriet M. Eisley died her interest passed to her sister, S. Eisley, who, as the complaint shows, survived her and is still living, and neither her child nor the plaintiff took interest therein</p>

Tbe defendant appealed. Tbe other facts are stated in tbe opinion.

<p>Mortgage. — Legal Title. — It is definitely settled in tliis State that a mortgage does not convey tlie title to the mortgaged premises, hut only creates a lien thereon for the security of the mortgage debt.</p> <p>Idem. — Seniob and Junior Mortgagees. — Eppect of Foreclosure. — Although the foreclosure of a first mortgage, to which the junior mortgagee was not a party, does not affect the rights of the latter, yet such a foreclosure is valid between the holder of the first mortgage and the mortgagor; and the purchaser at the foreclosure sale acquires the legal estate of the mortgagor subject only to the lien of the junior mortgagee.</p> <p>Idem. — Eoreoloscbe.—Paeties.—■ Subsequent incumbrancers are not necessary, though proper parties, to an action to foreclose a mortgage.</p> <p>Idem. — Equity.—Legal Title and Mortgagees’ Interest. — Equity will keep the legal title and the mortgagee’s interest, although held by the same person, separate, whenever necessary for the full protection of such person’s just rights.</p> <p>Idem. — Eibst Mortgagee. — A first mortgagee who obtains a valid decree of foreclosure, and beomes the purchaser at the foreclosure sale, acquires the legal title freed of the first mortgage as against the mortgagor and all persons brought into Court, while as against a junior mortgagee, who was not a party to the foreclosure suit, he holds the legal title subject to both mortgages, and this, although he still retains his rights as first mortgagee.</p> <p>Idem. — Subsequent Mobtgagee. — A subsequent mortgagee has no estate in the land itself nor any lien upon the land, except subject to the prior lien; that is, he has a right to be paid out of the excess; which is, in effect, a right to redeem, and incidentally — if made a party to a foreclosure suit — a right to defend by pleading the Statute of Limitations, or the invalidity in whole or in x:>art of the plaintiff’s claim, or that it is paid.</p> <p>Idem. — Whenever a subsequent mortgagee files a bill to redeem the former mortgage, or to redeem the former and to foreclose his own, he may allege and show that the claim of the prior mortgagee has' been exaggerated, or any other kindred fact which will increase the fund.</p> <p>Idem. — No decree in a proceeding to which he was not made a party can deprive a mortgagee of the right to relief, by showing that an apparent prior incumbrance is fraudulent or not supported by any consideration.</p> <p>Idem. — A junior mortgagee possesses the right to extinguish the senior in-cumbrance; and, by whatever mode he may elect to exercise this right, it oxserates as a satisfaction of the claim of the prior mortgagee, and a release from his lien.</p> <p>Idem. — Although a subsequent mortgagee may bring his action against the mortgagor without making the prior incumbrancer a party, no decree in the suit can affect the prior incumbrancer, whose rights are paramount.</p> <p>Idem. — Bight to Redeem. — 1The right of the subsequent mortgagee as against the purchaser at the foreclosure sale under the first mortgage, is a right to redeem.</p> <p>Idem. — A suit of foreclosure as against a younger mortgagee is a suit to cut off the right of redemption; when therefore, the younger mortgagee is not made a party, his right to redeem is unaffected by a decree of foreclosure and a sale under it.</p> <p>Idem. — Pubchaseb at Eobeclosube Sale. — Subbogation.—A purchaser at foreclosure sale who voluntarily discharges a junior mortgagee, is not, as a matter of law, thereby subrogated to all the rights which the junior mortgagee ever had against the mortgagor; hut — if entitled to subrogation at all — only to such right as the junior mortgagee has at the time of the payment of his mortgage debt.</p>

<p>Statutory Construction. — Act of Congress Requiring Stamps on written Instruments. — The Act of Congress to provide Internal Revenue, passed June 30th, 1864, which provides that certain instruments, unless stamped in the manner therein required, shall not he “recorded, or admitted, or used as evidence, in any Court,” etc., embraces only proceedings had, and acts done in public offices and Courts established under the Constitution of the United States, and by authority of Acts of Congress framed in pursuance thereof.</p> <p>Constitutional Construction. — Rules oe Evidence in State Courts. Congress has no constitutional authority to legislate concerning the rules of evidence administered in the Courts of the State, nor to affix conditions or limitations upon which those rules are to he applied and enforced.</p> <p>Internal Revenue Stamp on Whitten Instruments. — Omission or. — The omission of a United States revenue stamp cannot, under any circumstances, he set up as a defence in a State Court, to an action upon a contract. The case of Hallock v. Jaudin, (34 Cal. 172) overruled on this point.</p> <p>Power or Agent. — Contract or Sale. —Execution or, under Verbal Authority to Sell. — A verbal authority to an agent to sell real estate, is not sufficient to authorize the agent to execute a contract of sale in the name of his principal, or to sign the name of the latter to such contract.</p> <p>Idem. — Verbal Authority to Execute. — A power to sign the name of a principal to a contract of sale, may be given verbally; but the words used for that purpose must be so distinct and clear in their meaning and import, as to manifest with the requisite degree of certainty, the intention of the principal.</p>

Tbis cause was tried by tbe Court without a jury. In tbe course of tbe trial tbe plaintiff offered in evidence tbe findings and judgment in tbe former action of Mason v. Michael Wolff and Whiteman for tbe balf acre of upland. Defendants objected to tbe evidence on tbe ground tbat it was not between tbe same parties, called for different land, and was irrelevant, incompetent and immaterial. Tbe Court overruled defendant’s objections and admitted' tbe evidence.

, The plaintiff appealed. The facts are stated in the opinion. We find in this covenant the mention at least of two separate and distinct limits wherein restraint is to be exercised. Held: tbat for sucb purposes a tenancy at will shall be deemed a tenancy from year to year.

Tbe facts are stated in tbe opinion. First — Tbe lots of land described in tbe complaint were not described in tbe assessment. In order to validate an assessment upon real estate, it is necessary that tbe real estate should be accurately described.

The complaint sets forth, that plaintiff, who is an attorney at law by profession, was employed by defendant in October, 1861, to apply for and procure a patent for a certain rancho in Napa County, in which defendant claimed under Julian Pope, deceased, an undivided one fifth interest, and to induce certain settlers or squatters residing upon portions thereof to remove therefrom, or otherwise to relieve the premises of their possession or adverse claims, defendant…

Defendant was convicted of tbe crime of “grand larceny.” He moved for a new trial, wbicb was denied, and be appealed from tbe judgment- and from tbe order denying a new trial, Tbe other- facts are stated in tbe opinion.

Defendant is a railroad corporation, and tbe complaint alleges tbat, on tbe 21st day of May, 1868, tbe defendant by its servants, workmen or agents, was running and propelling a car on its road along Turk street near Larkin street in tbe city of San Francisco; and tbat tbe defendant by its servants, workmen and agents, or some one of them, then and there so carelessly and negligently conducted, managed and propelled tbeir said car, tbat tbe car with tbe borses attached…

Upon arraignment tbe defendant entered tbe plea of “not guiliy.” Subsequently when tbe case was called for trial, counsel for defendant asked leave of tbe Court to withdraw tbe plea of “not guilty,” for tbe purpose of interposing a demurrer to tbe indictment upon tbe following grounds : 1st. That it does not substantially conform ■ to tbe requirements of Sections 237 and 238 of tbe Criminal Practice Act, 2d. That more than one offence has been charged in tbe indictment. 3d.…

Petition to the Supreme Court to issue a peremptory writ of mandate, directed to the respondent, John Hanna, County Clerk of the City and County of San Francisco, and ex-officio Clerk of the District… Held: that tbe party entitled to tbe writ of restitution cannot be adequately compensated by resorting to tbe Clerk’s bond for damages, etc; and tbe case of Fremont v. Grippen (10 Cal. 215) is cited by tbis Court as a parallel case tberein.

Action for the recovery of certain real estate, situate in the city of Sacramento. Judgment was for defendant. Plaintiff moved for a new trial, which was denied, and he appealed. The other facts are stated in the opinion.

<p>Evcdence. — Pbivileged Communications. — Communications from a-elient'to his attorney, touching the subject matter under investigation, are on principles of public policy privileged, and are not admissible in evidence, even though the attorney may be -willing to disclose them.</p> <p>Idem. — When it appeared that an attorney called as a witness, in a criminal prosecution, was unable to state, whether admissions to which he had testified, were made to him as counsel, or by the defendant whilst under examination as a witness in his own behalf, the Court should have excluded the testimony of its-own. motion.</p>

The defendant was convicted of the crime of grand larceny. He moved for a new trial, on the grounds that the Court misdirected the jury in matters of law in giving certain instructions; that the Court erred in refusing to give instructions ashed by defendant; that the Court erred in the decision of questions of law in regard to the admissibility of testimony objected to by defendant; and that the verdict is contrary to law and the evidence.

Action brought by Josepb S. Alemany, Boman Catholic Archbishop of San Erancisco, against the defendants, members of the congregation of Boman Catholic Germans of the City of San Erancisco, to obtain a decree for the sale of certain lots, and the buildings thereon, including the Church of Saint Boniface, held in trust by him for the use of said congregation, and to apply the proceeds after paying off the indebtedness of said congregation to the purchase of another and more…

. Tbe facts are stated in tbe opinion. First — Plaintiff being in possession as owner of tbe premises, and baying declared bis intention to pre-empt tbe same at tbe time of tbe execution of the Sheriff's deed, and tbe rendition of tbe judgment in ejectment, stood in tbe relation of a trustee to defendant, as to any after acquired title to tbe premises, and any such after acquired title would enure to tbe benefit of defendant.

This was an action of ejectment to recover certain lands in San Francisco, from many defendants. The various defences set out were — 1. General denial. 2. Plaintiff not in possession within five years. 3. Title. 4. Adverse possession of five years. 5. Title in some third person — and in landlord. 6. Abandonment. 7. Title in the City. 8. Occupancy under color of title.

Judgment was for defendant; and plaintiff appealed. Tbe other facts are stated in tbe opinion. If tbe judicial election bad taken place under tbe Act of 1851, (p. 287) or that of 1853, (p. 333), neither of which prescribes any qualifications, tbe relator might need to rely entirely upon tbe principle discussed in tbe case of Walther y. Rabolt (30 Cal. 185).

<p>Cebtiokabi — The writ of certiorari can only issue to an inferior officer or tribunal exercising judicial functions, and the proceedings or act to be reviewed must be judicial in its character.</p> <p>Judicial Act. — The performance of a ministerial act by a judicial officer, does not constitute the act itself a judicial proceeding.</p> <p>Idem. — Ministeeial Act. — Cektioeaei.—The appointment of a member oi the Board of Supervisors by a County Judge, is a ministerial and not a judicial act, and is not subject to review by certiorari.</p>

<p>Pleading. — Answeb.—Illegal Contbact. — Where facts showing the illegality of a contract sued upon, are sufficiently- alleged in the answer, the plaintiff cannot recover upon the pleadings, although such facts are not pleaded or insisted upon as a defence.</p> <p>Void Contbact. — A contract void in part and of such a nature that the good cannot be separated from the bad, and the part which is good enforced, is an entire contract, and void.</p>

Plaintiff demurred to tbe answer on tbe ground that tbe defence set up was insufficient in law, because tbe deed to Brown, wbicb was set out in tbe answer, was a good and valid deed, and transferred to bim all tbe title and possession of Elizabeth S. Welton and her husband, Merit Welton, to tbe real estate therein named. Tbe Court below sustained tbe demurrer, and tbe defendants Merit Welton, Lamson Welton and Amy Welton, appealed. . Tbe other facts are stated in tbe opinion.

Defendant demurred to tbe complaint, and tbe demurrer was overruled by tbe Court, Tbe other facts are stated in tbe opinion. The complaint does not state facts sufficient to constitute a cause of action.

<p>Pbactioe. — New Tbiab in Counts: Coubt. —New trials may be granted by tbe County Court in cases of appeal from the judgment of a Justice of the Peace, and it is the duty of the County Judge to settle a statement or motion for a new trial which has been duly filed and presented to him for settlement.</p>

<p>Action fob Medical Sebvices. — A physician employed to attend a patient is the best and the proper judge of the necessity of frequent visits, and in the absence of proof to the contrary, the Court -will presume that all the professional visits -were deemed necessary and -were properly made.</p> <p>Idem. — Pleading.—Constbuction Of. — In an action on account for services rendered, -where the complaint alleges the services were rendered between two specified days, items occurring on the two days mentioned, are not within the allegations of the complaint.</p>

Plaintiff claims that title to the premises in dispute, vested June 20th, A. d. 1858, in I. Thomas, by virtue of the location of School Land Warrant No’. 133, under and in accordance with the provisions of the Act of the Legislature of the State of California, passed May 3, 1882, entitled, “An Act to provide for the disposal of the five hundred thousand acres of land granted to this State by Act of Congress” of September 4, 1841, and that plaintiff acquired title by a…

A demurrer to tbe complaint was overruled. The Court, found among other facts, tbat tbe defendant in tbe year 1856, asserted a claim to the land in controversy and filed a declaratory statement of his intention to pre-empt the same in the proper Land Office, and therein declared that he was a citizen of the United States; that, on the 29th day of October, 1858, defendant declared under oath, according to law, his intention to become a citizen of the United States; that the…

Action to compel execution of a deed. In 1864 Bird sold land to Chapman, received his money, bat gave a bond for a deed at Chapman’s request. Cottle attached the land then in Bird’s possession, as the property of Chapman. Bird .answered it was Chapman’s property, but that $750 was due therein.

Tbe facts are stated of opinion. To constitute a forfeiture for non-payment of rent at common law, it was requisite, among other things, that tbe demand should have been for tbe precise sum due. (1 Saunders Bep. 287, note 16; 1 Leon, 305; Fabain and Windsor’s case, Cro. Eliz. 209; Chipmcm v. Fhneric; 3 Cal. 273; GasJdllv. Trainer, Id. 334).

<p>Findings. — Conflicting Evidences. — The finding of the Court below upon an issue where the evidence is conflicting, will not be-disturbed on appeal.</p> <p>City of Benicia. — Act of Congress to Quiet Land Titles. — Prior Conveyance. — In an action to recover the possession of lands, under the Act of Congress of July 23, 1866, to quiet the titles to the lands within the City of Benicia, where it appears that the plaintiff’s grantor had executed to the persons under whom defendants claimed a prior quitclaim deed for the same property, and for all the subsequently acquired title of the party of the first part under her deed, the plaintiff cannot recover, notwithstanding the fact that such grantor was in. the bona fide occupancy of the premises at the time of the passage of the Act.</p> <p>Practice. — Failure to State Objections to Evidence. — 'Where the objections to the admission of a deed in evidence are not stated, or the party has failed to specify as one of the grounds of his motion for a new trial, the ruling of the Court in admitting the deed, in evidence, there is nothing presented on which the action of the Court in that respect can be reviewed.</p> <p>Idem. — Exceptions to Findings. — Exceptions to findings provided for, by Section ISO of the Practice Act, relate not to errors, but only to defects in the findings.</p>

<p>PAETNEESHIP. — PoWEE 03? ONE PAETNEE TO CONVEY. — EeMEDY IN EQUITY. — A copartner lias authority to convey the copartnership property in any transaction, within the scope of the partnership, and each copartner has an unlimited power of disposal of his share of the partnership property, subject only to the claims of creditors of the firm, and of the other co-partners on a settlement of the partnership affairs, unless he be restrained from so doing by the terms of the copartnership; but the claims of such creditors, and copartners, being only in the nature of an equitable lien, on the partnership property, can only be enforced in a Court of Equity</p> <p>Idem. — Incompetence 03? Couet or Law to Adjust Aeeaies oe. — A Court of Law is not competent to administer redress, in adjusting the affairs of a partnership, and to ascertain and enforce the equitable liens of creditors, and of the several copartners.</p> <p>Idem. — Eeeect 03? Conveyance 03? one Paktnees Inteeest. — Where one partner without the consent of his copartner, conveys his interest in the partnership property, to another, the latter becomes a tenant in common with the copartner, and the claim of a creditor of the firm can only be asserted to the property as against the third party in possession, in a Court of Equity.</p> <p>Idem. — Eeplevin by Pubchasee 03? Paetneeship Peopeety, Attached by CeDditob op the Eiem. — Pkesuhption in Favoe op Judgment. — Where one partner bona fide, sold the partnership property to satisfy his individual indebtedness, and in an action of replevin by the purchaser 'against a creditor of the firm who has attached the property, after the sale and delivery, as the firm property, 'and for a firm debt; the Court properly rendered a judgment for the purchaser; and it will be presumed in support of the judgment, that the Court below found it as a fact that the other partner consented to, and authorized the sale.</p>

On the trial tbe plaintiff proved that there were two dams • erected in Cache Creek under the personal direction of one Orrin Simmons, that the lower one was a permanent structure across tbe stream with projecting timbers with grooves into which planks could be and were frequently slipped so as to raise the water above the permanent and immovable structure, and was higher than the one upon the site of which it was built, and which it was intended to replace; that the other…

C. Hutchings was plaintiff, and H. C. Crane & Co., defendants. Tbe action was commenced April 25, 1866. At tbe trial a verdict and judgment were rendered for defendant. Plaintiff moved for a new trial which was denied, and be appealed. On appeal tbe order of tbe District Court was reversed, and a new trial ordered, which was bad in 1868, and a general verdict and judgment were again rendered for defendant.

<p>Statutory Constbuction. — Behead on a Statute. — An Act of the Legislature is repealed hy a subsequent Act when it appears from the last Act, that it -was intended to take the place of or repeal the former, and when the two Acts are so inconsistent that effect cannot he given to both.</p> <p>Idem. — Bepugnanoy.—A repugnancy in principles merely, between two Acts of the Legislature, forms no reason why both may not stand.</p> <p>Idem. — Act to Aid the Meecantide Lebbaby Association. — The Act to prohibit lotteries etc., passed April 24, 1861, and the Act to aid the Mercantile Library Association of San Francisco, passed February 19, 1870, are not repugnant in the sense of the rule which would construe the last Act as .a repeal of the first.</p> <p>Idem. — Where an Act of the Legislature recognizes the existence of a general law upon any subject and attempts to create an exception, the exception is not repugnant to the general law, or, if it be, it is only to the extent of the exception.</p>

<p>Dischabge in Insolvency. — A judgment rendered against a defendant subsequent to his discharge in insolvency, in an action commenced before the proceedings in insolvency were instituted, is not void on the ground that the judgment was in violation of the restraining order made at the com-, meneement of the proceedings in insolvency, or that the defendant was discharged from all his debts and liabilities, including the debt of the plaintiff prior to the rendition of the judgment.</p> <p>Idem. — Pleading.—The defendant is entitled to plead his discharge in insolvency in bar of such action, by supplemental answer.</p> <p>Idem. — Where a discharge in insolvency is pleaded in bar of an action commenced before the proceedings in insolvency were instituted, a judgment in favor of plaintiff is conclusive that he was entitled to his judgment, notwithstanding the alleged discharge in insolvency.</p> <p>Idem. — Where such plea is omitted, the judgment is as conclusive upon the defendant as it would be had his defence been accord and satisfaction, payment, etc., which he had neglected to plead.</p> <p>Idem. — Pbaciice.—A defendant, against whom, a judgment has been rendered subsequent to his discharge in insolvency who has a complete remedy at law, is not entitled to relief in equity by injunction to restrain the enforcement of the judgment.</p>

<p>Cbiminab Pbactioe. — The verdict of a jury in the trial of an indictment for the crime of an “ assault to commit murder,” which found the defendants guilty of “an assault to commit great bodily injury,” imports nothing more than that the defendants were guilty of a simple assault, which is a misdemeanor only.</p> <p>Idem. — A judgment upon a conviction of a misdemeanor only, which adjudges the defendant to he punished by imprisonment in the State prison, is absolutely void.</p>

This is an action to recover damages for the erection of a dam, and to abate the same as a nuisance, and to enjoin the continuance thereof. Defendants admit the erection of the dam, and claim the right to continue the same; and allege that the grounds claimed by plaintiffs belonged to and is a part of the mining claim of defendant, P. Bumpus.

Tbe facts are stated in tbe opinion: First — Tbe contract called for a quit-claim deed, but respondent tendered a grant, bargain and sale deed, for signature of appellant and wife. This was not a demand under tbe contract. A contract to sell land and give a deed does not authorize tbe vendee to demand one executed by tbe wife, even if she has dower. (Ketchum v. Fvertson, 13 J. E. 270.

Action brought to recover a sum of money claimed to be due plaintiff upon a certain contract. Plaintiff demurred to the answer, and the demurrer was overruled. He then moved the Court for judgment on the pleadings which motion was sustained, and judgment ordered accordingly. Defendant then moved the Court for leave to file an amended answer. The motion was denied, as was also a motion to set aside the judgment. This appeal is taken from the judgment and from the said orders.

The case is stated in the opinion. First — The Court erred in ordering the allegation in plaintiff’s complaint, that defendant has no lawful right to use that portion of the street where the injury was done, to be stricken out. The track was laid on the extreme right, or east side of the street, whereas the statute requires that it should be in the middle.

<p>Appeal from the Probate Court of Solano County.</p> <p>This was a proceeding on the petition of Mary Jane Swift, the mother and custodian of the persons of her minor children, William T. Swift and Granville P. Swift Jr., to the Probate Court of Solano County, praying for an order to compel Granville P. Swift, the guardian of the estate of said minors, to pay her certain sums of money expended by her, for the necessary board, lodging, clothing, and incidental expenses of the said minors.</p> <p>On the hearing, it appeared in evidence and was admitted by defendant, that the account and demand presented by the petitioner was correct, and that the expenditures had been necessarily made on behalf of said minors. That said minors owned, in their own right, property, which yielded and paid annually, two thousand dollars in United States gold coin. That defendant was the legally constituted guardian of the estate of said minors, and that he had received from their property, money sufficient to pay said demand.</p> <p>Whereupon, defendant by his counsel, objected that the Probate Court had no authority or jurisdiction to entertain said petition and application, and moved that the same be dismissed, which motion was refused by the Court, and an order entered, directing the said Granville P. Swift, Sr., to pay to the petitioner, out of the estate of the said minors, the sum demanded as prayed for in said petition; from which order defendant appealed.</p> <p>The Probate Court is a Court of limited jurisdiction, and therefore cannot take jurisdiction nor administer remedies, other than those given by, and in the manner prescribed by statute. (Gx’imes Estate v. Morris, 6 Cal. 123; Haynes v. Meelc, 10 Cal. 110; Downer v. Smith, 24 Cal. 123.) The Probate Court has no jurisdiction, by statute or otherwise, to take cognizance of a disputed claim against a minor’s estate, or the guardian thereof, for necessaries furnished such minors, and adjudicate upon its validity or invalidity. Act to provide for the appointment and prescribe the duties of guardians. (1. Hittel’s Digest, section 3362; Cicrtis v. Still-xuell, 32 Barb. 354; Andrews v. Wallace, 29 Barb. 350; Tucker v. Tucker, 4 Keyes, N. Y. 136; Wilson v. Baptist Educational Society -.of New York, 10 Barb. 308; Magee v. Vedder, 6 Barb. 352.) A claim against the estates of minors, when disputed, must be established by suit in a Court of law or equity, and thus become a recognized debt, before the Probate Court can take jurisdiction to compel its payment.</p> <p>Act in relation to guardians — supra. (Wilson v. Bap. Ed. Soc., of N. Y. supra; Gole v. Eaton, 8 Cushing, 587; Gonant v. Kendall, 2, Pickering, 36.)</p>

<p>Appeal from tbe District Court of tbe Fourth Judicial District, City and County of San Francisco.</p> <p>This is an action for tbe dissolution of an alleged partnership between tbe plaintiff and defendant, a division of tbe accrued profits of tbe concern, and a sale of tbe partnership assets and distribution of tbe proceeds between tbe alleged partners in proportion to tbeir respective interests.</p> <p>Judgment was rendered for tbe plaintiffs Jbu accordance witb tbe prayer of tbe complaint, defendant moved for a new trial wbicb motion was denied by tbe Court, and defendant appealed.</p> <p>Tbe other facts are stated in tbe opinion.</p> <p>Tbe complaint avers partnership between plaintiff and defendant wbicb is not sustained.</p> <p>Tbe pleadings admit that defendant was and is in possession, and bad and has exclusive possession of tbe said third interest.</p> <p>Tbe offer of sale made by Cassinelli to defendant on 18tb of March, plaintiff assenting to same, and defendant accepting said offer by paying $200, and agreeing to pay balance in two or three days, was a good sale, and vested the title to tbe third interest in defendant — nothing more could then be done to make a more effectual sale, defendant being in possession. Plaintiff was bound thereby, having assented to same.</p> <p>Oassinelli was the vendor whom defendant bought from, and to whom defendant owed the balance, viz, $650.</p> <p>The bill of sale from Oassinelli to plaintiff made the 22d of March, was not an assignment of said debt, but farther establishes the fact that Oassinelli owned said third interest on 18th of March, when he sold same to defendant.</p> <p>If defendant misunderstood the terms of the sale — namely, the balance due — it would not vitiate same. Oassinelli did not try to annul or rescind the sale, and no act of defendant could do so. (See Miller v. Steen, 30 Oal. 402 ; 34 Oal. 139.)</p> <p>The theory that the minds of Oassinelli and defendant never met, is not tenable; for if defendant believed he was buying for a less sum than $850, it does not appear he acted on said belief, by claiming his money back, or demanding a recision of the sale. Defendant only refused to pay plaintiff said balance, which he had a right to do.</p> <p>It does not appear that defendant had any misunderstanding in relation to payment, or otherwise, with Oassinelli, his immediate vendor, or that Oassinelli wished or tried to rescind the sale, which could be done in no other manner than refunding to defendant the $200 paid. Oassinelli could not keep defendant’s money and recover the property, also. (Miller v. Stein, supra.)</p> <p>Plaintiff was not authorized to receive of defendant the balance, viz, $650; defendant could only safely pay said sum to Oassinelli.</p> <p>It seems to us, that the true answer to One question, settles this case, viz: did appellant purchase Oassinelli’s one third interest ? He did not.</p> <p>The minds of the parties did not meet. There was an attempt, and a failure, to agree upon a pric9. There was a misunderstanding in that particular. That misunderstanding is fatal because it was mutual, and not the result of deceit.</p> <p>Eespondent did purchase, and appellant is not in a position to question his right of purchase.</p> <p>The fact that appellant was in possession at the time of his negotiation with Cassinelli, is not such a circumstance as would make that a contract which the parties had not agreed upon. His possession was only the possession of the copartnership, and inured as much to the benefit of Oas-sinelli or his vendee as to his own, and was their possession as well as his own.</p> <p>Appellant’s brief seems to go upon the idea, that appellant was in the position of a vendee, under a contract for a conveyance; and in that view, that his possession may help him out.</p> <p>Unfortunately for that position, there is first, no contract; and, second, no possession except a joint possession, which the law would not permit him to lay down at his pleasure.</p> <p>Appellant owed respondent, or Cassinelli, nothing; not $650 balance, because he had not promised to pay it; not $550 balance, because respondent had not agreed to take it.</p> <p>Appellant asserts in brief, that if defendant (appellant) misunderstood the terms of the- sale, — namely, the balance due — it would not vitiate the same; and cites Miller v Steen, (30 Cal. 402, and 34 Cal. 139.)</p> <p>We have read those decisions carefully, but do not find that they are authority for any such assertion. In Miller v. Steen, the contract as to its terms was certain. There was no question made, but that the minds of the parties had met as to all the terms of the contract. The questions there, were legal, and arose upon and under the contract in applying it to subsequent facts.</p> <p>There there was a contract to go upon; here there is not.</p> <p>Appellant states in his brief, that if defendant “(appellant) believed he was buying for a less sum than “ $850, it does not appear be acted on said belief by claim- “ ing bis money back or demanding a recision.”</p> <p>It appears, tbat appellant refused to pay tbe balance, on tbe basis tbat tbe whole price for tbe purchase was $850, and insisted tbat tbe whole price was only $750.</p> <p>There being no sale, there was nothing to rescind.</p>

<p>Estates of Deceased Pebsons, Bight of Appeal. — The heirs and devisees or legatees of an estate, are made parties to the proceedings for a distribution, and any one of them feeling aggrieved may appeal from the final order.</p> <p>Idem. — Exeodtoe.—The executor of an estate cannot maintain an appeal from a final order of distribution, upon the grounds that the property was improperly divided between the legatees.</p>

<p>APPLICATION-to-the Supreme--Court for-a-writ-of mandamus.</p> <p>The- facts- are stated in the-opinion.</p> <p>First — The City and County of San Francisco is an integral part of the government of the State and the general Statute of Limitations does not apply to it. Indeed from the very nature of things it could not. The State cannot be sued except by express permission and the limitations upon the right to sue or enforce a claim against it are the only statute of limitations required, or which would be apposite. Why should there be a limitation upon the right to sue' when no such right exists ? (Hunsalcer v. Borden, 5 Cal. 288; Napa Valley II. JR. Co. v. Napa Co., 30 Cal. 435; Sharp v. Contra Costa Co., 34 Cal. 284; Sherborne v. Yuba Co. 21 Cal. 113; Huffman v. San Joaquin Co., 21 Cal. 426.)</p> <p>Second — Section 60 of the Consolidation Act evidently applies only tó the salaries provided by that Act, or at least, claims which accrued under it. Paxson v. Hale, cited above, substantially holds that this is a liability inherited by tbe city and county, but which does not accrue under it. The same is substantially decided in Frank v. City and County of San Francisco, (21 Cal. 268.)</p> <p>This point was made in the case of Paxson v. Hale, and expressly overruled. There it was claimed by respondent, that the salary was within the language of the Act, which provides that “no payment can be made from the treasury, or out of the public funds, unless the same be specially authorized by this Act.” The dissenting opinion of Judge Sawyer shows that this very question was under discussion in this Court. Of course, the only reply to it is, that the liability is one that was imposed upon the city, and inherited by its legitimate successor; and that as the service was still required, the law did not by implication repeal the provision for compensation. It was not the salary of an officer of the new government, but a liability existing outside of the Consolidation Act.</p> <p>That is not a fixed compensation, which it is necessary to present under that Act seems true from the case if the People v. Middleton, (28 Cal. 604,) and from the doctrine of the People ex rel. Hunt v. The Board of Supervisors, (28 Cal. 429.)</p> <p>First — By Section 1 of “An Act to repeal the several charters of the City of San Francisco, to establish the boundaries of the City and County of San Francisco, and to consolidate the government thereof,” approved April 19th, 1856, it is provided that the corporation, or the body politic then existing, and known as the City of San Francisco, shall remain and continue to be a body politic, in name and in fact, by the name of the City and County of San Francisco. (Stat. 1856, p. 145.)</p> <p>In the case of Frank v. The City and County of San Francisco, (21 Cal. 696,) it was held that the corporation, the City of San Francisco, was not destroyed by virtue of the statute last referred to herein, but that it was continued.</p> <p>By the provisions of “ An Act to incorporate the City of San Francisco,” (Stat. of 1850, p. 223, Sec. 2,) permission was given to “ sue and be sued, plead and be impleaded, defend and be defended, in all Courls of law, and in all actions whatsoever.”</p> <p>“Express permission ” bas been given for twenty years to sue tbe City of San Francisco and its successors.</p> <p>The right had existed, and there is nothing in the Statute of Limitations debarring the respondent from the benefit of the various provisons. (Pimental et al. v. The City of San Francisco, 21 Cal. 367.) •</p> <p>The reason of appellant for the non-application of the statute, is on the ground that the City and County of San Francisco is an integral part of the government of the State.</p> <p>Yet we discover, upon examination, that by Section 20, of Chapter III; Hittel’s Gen. Law, (Sec. 4,362,) the limitations defined are extended and apply to actions on behalf or for the benefit of the State.</p> <p>It may possibly be claimed that the statute runs against the State, but not in favor of the State.</p> <p>If the State is protected by the Statute of Limitations from State claims and demands, certainly an “integral part of the government of the State ” will be included within its benefits. (The City and Comity of San Francisco v. Calder-wood et al., 31 Cal. 585.)</p> <p>We have no doubt that if the City and County of San Francisco was not bound by the Statute of Limitations, that it could not avail itself of its provisions as a defence to an action.</p> <p>In this State, according to our reading of the section quoted, the Legislature has enacted that the State shall be within the full force and operation of the statute, and as the sovereignty of the State is within the provisions of the statute, it is difficult to perceive by what pretension less than the sovereign can be excluded from, or debarred, the privilege incidental to the operation of the statute</p> <p>There is no reason why the municipality should be exempted, even if tbe State in any ease was, by virtue of its sovereignty, granted sucb immunity.</p> <p>Second — If tbe petitioner was entitled to a salary of twelve hundred dollars per annum we claim that be should have presented bis demand within one month after the expiration of each month for which he was entitled to charge for his services, required by the (90th) ninetieth section of the Consolidation Act.</p> <p>Now was petitioner an officer of the City and County of San Francisco ? He alleges that he was. The amount which he claims he is entitled to receive falls certainly under the head of salary; or fee, or compensation, (either one of which, it makes no difference to respondent)</p> <p>Sec. 90, therefore, is applicable, and is as much a Statute of Limitations as the general statute.</p> <p>The language, “and any demand whatsoever upon the treasury hereafter accruing shall not be paid, but shall be forever barred by limitation of time, unless the same be presented for payment, properly audited, toithin one month after such demand became due and payable,” is sufficiently explicit and expressive, and the meaning thereof is neither vague, indefinite or uncertain.</p> <p>We would suggest, for the information of petitioner, that his “ demands ” became due and payable many months before the case of Paxson v. Hale was decided by the Supreme Court.</p>

The facts are stated in tbe opinion. Tbe Court erred in dismissing plaintiff’s complaint and rendering judgment for defendant, because, from tbe pleadings and findings, it appears tbe defendant was about to obtain, and will obtain if not restrained, a patent for a strip of land in front of plaintiff’s land to wbicb be (defendant) is not entitled, and sucb patent will be a cloud on plaintiff’s right to tbe slope of tbe bank in front of bis claim. II.

<p>Bailment. — The delivery of personal property to another, by the owner, to he taken care of, and returned at a stated time, upon the terms that the latter is to he compensated ont of its increase, is a mere bailment, for the benefit of both parties, and does not divest the title of the true owner.</p> <p>Idem. — Sale by Bailee. — -Evidence.—The purchaser of property, from a bailee, stands in privity with the latter, and the letters of the bailee, written to his bailor, or other admissions of his while in possession, going to show how he held the property, are proper evidence against the bailee, or his transferee.</p> <p>Sale op Pebsonal Ppopebty. — Title.—A sale of personal property passes to the purchaser only such title as the vendor had.</p> <p>Bailor and Bailee.-— Paetnebship. — A contract between A. and B., by which A. transfers to B. the possession of a flock of sheep, upon the terms that B. should herd and take care of them for three years, at the end of which time he was to return to A. the original number of sheep entrusted to him, and the increase be equally divided between them, does not constitute a partnership between A. and B. in the sheep.</p>

<p>The case is stated in the opinion.</p>

<p>Wbit op Oebtiokabi. — Euweb op Couet to Issue. — Constitutional Constbuction. — Under Art. YI. Section 4, of the Constitution as amended in 1862, the writ of certiorari can be rightfully issued from the office of the Clerk of the Supreme Court only upon an order of the Court, made upon application for that purpose.</p>

> This is an 'action for forcible entry and detainer under the statute of 1866. Judgment was rendered for tbe plaintiff for restitution of the premises, and defendant moved for a new .trial; tbe motion was denied, and defendant appealed from tbe judgment and from tbe order denying tbe motion for new trial.

The facts are stated in tbe opinion. Eitberthese (fictitious) persons were defendants, or they were not; if they were defendants judgment could not be entered in their favor, except upon trial of the cause, and that could only be had upon issue joined; if they were not defendants in the suit, they could not move in the cause at all, nor could any judgment be entered therein, in their favor and against the plaintiff.

Action for a partition of the premises in controversy, and for the rents, issues and profits for the ten years next preceding. Judgment was for defendant, and plaintiffs appealed. The other facts are stated in the opinion- On the death of plaintiffs’ mother, one hall of the premises went to them, as tenants in common with defendant. (Act April 17th, 1850, p. 254, defining rights of husband and wife, Secs. 9, 11, 12 ; Hittell’s Dig., Secs. 3571, 3573, 3574 ; Panaudv.

City and County of Sitn Francisco, Defendants appeal from tbe judgment and from the order denying a new trial.

’Action for damages brought by plaintiff, to recover the value of certain horses and mules alleged to have been killed by the cars of the defendant, while passing along their unfenced railroad track running through a field occupied by plaintiff. Plaintiff proved ownership of the stock, and their value to be three hundred and ninety dollars; that they were killed by defendant’s cars, on the railroad track in plaintiff’s field, and that said railroad was unfenced.

J. Price, by plaintiff, through mistake a portion of which was thereafter by them conveyed to defendant Summers, who, it is alleged, well knew at the time of said conveyance to him by said Pascal, and D. J. Price, and was fully informed in all the circumstances of said mistake.

Action for recovery of damages, caused by laying out a public road through appellant’s land. Tried before a jury, with a series of instructions from the Court. Judgment for the plaintiff (appellant) for six hundred dollars.

Tbe facts are stated in tbe opinion. First — Appellant being in possession of tbe land sued for and having an equitable title thereto, can defeat a recovery at law.

This is an action of ejectment. On tbe trial tbe defendant offered in evidence, tbe judgment roll of an action to foreclose a mortgage of tbe premises in question, in wbicb action tlae plaintiff grantor was a defendant and a party foreclosed. The defendants claimed title, under the Sheriff sale and deed, pursuant to said judgment.

The facts are stated in- tbe opinion. Appear from District Court of tbe Sixth District, City and County of Sacramento. First — On tbe trial, tbe defendant in rebuttal placed several witnesses on tbe stand, and offered to prove by them tbat Barret, Gruce, Newbouse and O’Connor, witnesses who bad been sworn and examined for defendant, were present at tbe time of tbe difficulty. Tbe Court refused to permit tbe testimony to be given.

The facts are sufficiently stated in the opinion. First — The Court erred in overruling defendant’s challenge to the panel and list-of jurors appearing pursuant to the special venire. When the panel is formed from persons whose names are not drawn from the grand jury bos, a challenge may be made to the panel on account of any bias of the officer who summoned the jury which would be good grounds of challenge to a juror. (Orim. Pr. Act Sec. 337.) Section 346 Crim. Pr.

This is an action by the plaintiff for damages for an alleged violation of the trade-mark of his intestate, by the defendant. Judgment was rendered for plaintiff, and defendant appealed. The other facts are stated in the opinion. - In cases of this character, there are usually two sources of damage — first, injury to reputation; and second, loss of trade and business.

The facts are sufficiently stated in the opinion. The People v. Hodges (27 Cal. 340), is decisive of this case. The Criminal Pract.

The facts are stated in the opinion. First — The Court submitted the question, was Phoebe Ingersoll the beneficiary mentioned in Vallejo’s contract to convey, to the jury. This was erroneous, for the reasons that recital in the deed óf Yallejo and Slusser were conclusive, that Chester Ingersoll, and not Phoebe Ingersoll, was such beneficiary. (Ohatauque Oo.

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

The case is stated in the opinion. First — The complaint of plaintiffs shows no cause of action in their faYox. It contains no allegation of demand upon the corporation, or refusal by it to institute the action in its own name; it therefore shows no equity in favor of the plaintiffs, and is fatally defective.

<p>Habeas Cobpdb Act. — Appead.—No appeal lies from the order of a Judge admitting a party to bail under the provisions of the Habeas Corpus Act.</p>

re two propositions to which we invite the attention of the Court, either of which we respectfully submit is sufficient to defeat plaintiff’s action: First — That tbe assumed or pretended judgment upon which this action was brought is in excess of the -amount for which a Justice of the Peace is authorized to render judgment; it exceeds that amount (exclusive of interest and cost) by tbe sum of $36.50, The Justice of the Peace undertook to render a judgment for the sum of…

Tbis is an action to compel a conveyance of one half interest in certain lands, and a flock of sheep, alleged by plaintiff to have been purchased by defendant on tbeir joint account, by virtue of a verbal agreement entered into between them prior to tbe purchase Tbe defendant demurred to tbe complaint, ón tbe following, among other grounds: Mrst — Tbat said complaint did not state facts sufficient to constitute a cause of action.

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

This is an action brought by tbe plaintiff to obtain dissolution of partnership and, settlement of account between plaintiff and defendant. .

<p>Justice’s Coubt — .Appeal fbom. — In an appeal from a Justice’s Court a failure to produce in the County Court a duly certified copy of the docket of the Justice of the Peace, is a failure to prosecute .the appeal ■within the meaning of section 367 of the Code.</p> <p>Idem. — When the County Court has acquired jurisdiction, both of the parties and of the subject matter of the action, its orders thereafter, though they may be erroneous’, are not void, unless they contravene some provision of the statute regulating appeals to the County Courts.</p> <p>County Couet. — Dismissal oe Appeal. — Notice.—An appeal to the County Court maybe dismissed, for the causes mentioned in the statutes, “after notice.” The Court may err as to the kind, or length, of the notice, but if the appellant have notice in fact the order of dismissal is not void.</p> <p>Idem. — -The writ of certiorari will not lie to an inferior Court, to annul an order which is merely erroneous but not void, in a matter of which such Court has acquired jurisdiction.</p>

<p>Peactice. — Continuance.—To entitle a party to a continuance on the ground of the absence of evidence, the affidavit must show the materiality of the facts which he expects to prove by the absent witness.</p> <p>Obihinal Peactice., — Laeceny.—Venue.—In a prosecution for larceny, the venue may be laid in any county into which the stolen property may be conveyed.</p> <p>Idem.— Pleading. — When the venue has been laid in the county to which the stolen property has been brought, it is not necessary to state in the indictment, facts showiug tbe commission of the larceny in another county.</p> <p>Idem. — Evidence.—In such case, it is competent to the prosecution to prove that the property was stolen in another county, before it was brought into that in which the venue is laid.</p> <p>County Judge. — Constitutional Consteuction. — A statute authorizing a County Judge to hold Court for the County Judge-of another county, is not repugnant to the Constitution.</p> <p>Idem. — Holding Couet in anothee County. — When the County Judge of one county, at the request of the County Judge of another, holds the Court of the latter, for the trial of an action, and the record does not show for what cause the request was made, the existence of some one of the causes mentioned in the statute, will be presumed.</p> <p>Idem. — Jubisdiction.—"Where the record shows no objection, by either party during the trial, to the exercise of jurisdiction in the cause, by the Judge of another county, it will be presumed that the parties consented to the request by the proper Judge of the county, that he should hold the Court.</p> <p>Idem. — A request by the County Judge of one county, to the County Judge of another, that he should hold the Court of the former, for the trial of a cause, gives the latter color of authority in that behalf, and he having held the Court for that purpose, his authority cannot be enquired into collaterally.</p>

Plaintiff alleges tbat a part of said lumber was rafted from one of said vessels, and allowed to remain in tbe water for a period of three weeks, by which it„ was greatly damaged, and nearly ruined, and tbat another portion of said lumber was not delivered at all; by reason of wbicb they claimed to be damaged in tbe sum of twelve thousand dollars.

This is an action of ejectment for a lot of land in the town of Colusa. The plaintiff claimed title under the “Colus” grant, and the defendant under the “Jimeno” grant. The case was first tried in the District Court of Colusa County, at the ’May Term, 1868, and judgment was rendered in favor of the plaintiff. Defendant took an apjieal to this Court, and at July Term, 1869, that judgment was reversed and a new trial ordered.