Volume 41 — California Reports

The defendants were the executor and the executrix of the estate of T. J. White, deceased. A copy of the contract was annexed to, and made a part of, the complaint. The contract was dated March 30th, 1858, and the complaint averred that the Sutter grant was confirmed and a patent issued therefor June 20th, 1860, but that the lots ’sold were not embraced' within the boundaries of the grant. The defendants demurred to the complaint.

<p>Sale of Personal Property.—A sale of personal property is not completed, so as to pass the title to the property, so long as anything remains to ho done to the thing sold, to identify it or discriminate it from other things.</p>

The complaint alleged as follows: “ That defendant is a corporation duly organized, incorporated, and existing under and by virtue of the laws of the State of California.

William E. Storms was in the possession of two thousand acres of public land at Eound Valley, Mendocino County, and gave to S. P. Storms a power of attorney, of which the following is a copy: “Eound Valley, 7th Oct., 1859. “ Know all men by these presents, that I, Wm.

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

The first husband of the plaintiff, Mary Elizo Rich, was-Mr. Tubbs. To them were born two children during wedlock. At the time of her marriage with Mr. Tubbs she had property, with which, at her request, he purchased the land in controversy. Tubbs and wife filed a declaration of homestead in January, 1861. Tubbs took the conveyance to himself, and afterwards died, and the widow married the other plaintiff, Chaides E. Rich.

<p>Challenge of Juror.—A challenge of a juror in a criminal case must specify the particular ground of challenge. If for hias, it must state what kind of bias, and the particular cause from which such bias is to be inferred.</p> <p>Challenge to Juror for Actual Bias.—A challenge to a juror for factual bias must be entered on the minutes of the Court; and an application must be made to the Court to have triers appointed.</p> <p>Exception to Ruling of Court.—When the Court overrules a challenge, and the prisoner excepts, the exception is to the decision overruling the challenge, and not to the right of the Court to decide the question at all.</p> <p>Inadmissible Evidence.—Where a party on trial for murder offered to prove that the deceased had said, in conversation some three years before the killing, that he had enemies in the county who, he was afraid, would take his life: held, that the evidence was properly excluded.</p>

Francisco de Haro died intestate on or about the 1st, day of January, 1849, leaving him surviving the following heirs at law, viz: 1. Josefa de Haro, who intermarried with James Gr. Denniston; 2. Rosalia de Haro, who intermarried with Charles Brown; 3. Prudencio de Haro, a male; 4. Carlotta de Haro, who intermarried with Isaac Y. Denniston; 5. Candelaria de Haro, who intermarried with Juan Pruzzo; 6. Natividad de Haro, who intermarried with Paul Tissot; 7. Alonzo de Haro.

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

<p>Application to the Supreme Court for writ of mandate. The other facts are stated in the opinion.</p>

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

<p>Quitclaim Deed op Spanish Qkant.—A quitclaim deed of a Spanish grant, executed by the grantee before he receives a patent from the United States, conveys to the purchaser the title, and the patent afterwards inures to his benefit.</p>

The defendant was convicted of the crime of an assault with intent to commit murder, and appealed. The other facts are stated in the opinion.

<p>Board op Supervisors.—A Board of Supervisors of a county, in allowing or disallowing a claim, exercise judicial functions.</p> <p>Writ óp Mandate.—When a Board of Supervisors have acted on a claim, either by allowing or disallowing it, a writ of mandate will not be issued to reverse or review its judgment.</p> <p>Idem.—Before such writ can be properly awarded the Board must refuse to act upon the claim, after it has obtained jurisdiction of it.</p> <p>Idem.—A statute declaring that a Board of Supervisors shall not be sued in any action whatever, but that it may be proceeded against' by mandamus, does not change the essential nature or office of the writ itself.</p> <p>Resolution op Board op Supervisors Revocable.—A resolution of a Board of Supervisors, after it has disallowed a claim, reciting that the services on which it is based have been performed by the claimant, but that the Board has doubts as to its legality, and directing the District Attorney to enter the appearance of the Board in any Court in which the claimant may commence an action to require the Board to allow the claim, which resolution is not agreed to or accepted by the claimant, is revocable at the pleasure of the Board.</p>

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

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

<p>Ambiguous Complaint. — A complaint is ambiguous, unintelligible, and uncertain, which avers that the plaintiff delivered a horse to the defendant of the value of three hundred dollars, on an agreement that the latter would sell him and account for the proceeds; and that the defendant accepted the horse at the price of three hundred dollars, and promised to sell him at that price and account for the proceeds, and that the defendant sold the horse without stating at what price.</p> <p>Idem.—Such a complaint is founded on contract and not upon tort.</p> <p>"Proof of Allegation when Denied.—If the answer denies the contract as alleged in the complaint, the plaintiff must prove it substantially as alleged.</p> <p>Variance between Allegation and Proof. — A material variance between the contract as alleged and proved, is a ground of nonsuit, unless the plaintiff obtains leave to amend his complaint, so as to make it conform to the proofs.</p> <p>Idem.—If the complaint alleges that the defendant accepted a horse upon' an agreement to sell him for a price not less than three hundred dollars, testimony that the horse was left with the defendant with authority to sell him at not less than three hundred dollars is no proof that the defendant bound himself to sell at not less than three hundred dollars, and there is a variance.</p> <p>Idem.—If the complaint avers that the defendant accepted a horse with "an agreement to sell him and account for the proceeds, proof that the price of sale was limited to three hundred dollars is also a variance.</p>

In 1851 Alfred Green, inclosed a tract of land containing one hundred and sixty acres in the City and County of San Francisco, and resided on it until 1853, when he sold it to D. C. Broderick, who kept the same inclosed with a fence, and cultivated it until 1859, when he died; and his executors continued to use and cultivate it until 1861, when they divided it into lots and blocks and sold the same at public auction.

Judgment was rendered for the defendant; plaintiff moved for a new trial, the Court overruled the motion, and plaintiff appealed from the judgment and the order denying the motion for a new trial. The other facts are stated in the opinion.

Action brought to recover damages for injury to the person of plaintiff, alleged to have been caused by the agent of defendants, while engaged in defendants’ business, by carelessly and negligently driving defendants’ dray against the person of the plaintiff, who at that time was standing on the platform of a street car, as a passenger. Judgment was rendered for plaintiff.

<p>Express "Warranty op Title to Chattels.—There is no breach of an express warranty of title to chattels sold until the vendee’s possession is disturbed by the true owner.</p> <p>.Implied "Warranty op Title to Chattels.—When goods are in possession of the vendor, who, dealing with them as owner, sells and delivers them to the purchaser, nothing being said as to the title, the law implies that he warrants the title to the property sold. „</p> <p>Limitation ov Actions.—The Statute of Limitations, upon an implied warranty of title to chattels sold by one in possession, does not commence running until the vendee is disturbed in his possession by the true owner.</p>

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

<p>■ Partnership Accounts.—Where the complaint, in an action for the dissolution of a partnership and a settlement of the accounts, avers a loss in the transactions of the firm, borne exclusively by the plaintiff, and asks for a judgment against the defendant for his proportion of such loss, the plaintiff may prove a loss resulting from his own act, done in violation of the partnership agreement.</p> <p>Idem.—In such case the plaintiff is entitled to a settlement of the partnership accounts, on such terms as may be equitable; and the defendant may show, as a matter of defense, that he suffered loss by such violation of the contract, and may charge the plaintiff with it.</p> <p>Idem.—The plaintiff in such action need not aver in his complaint that the act from which the loss resulted was in violation of the partnership agreement, in order to let in the testimony as to the loss.</p> <p>Judgment in Action to Dissolve Partnership.—If the complaint, in an action to dissolve 'a partnership and settle its accounts, avers a loss, borne exclusively by plaintiff, and asks for judgment for defendant’s proportion, and the evidence shows a profit realized by plaintiff in one transaction, as well as a loss borne by him in another, the account taken should credit the defendant with his part of the profit realized, as well as charge him with his proportion of the loss sustained.</p> <p>Idem.—In such case, if the plaintiff has settled with the defendant for his part of the profit realized, it is incumbent on the plaintiff to show that fact on the trial.</p>

This was an action brought in October, 1867, to set aside an alleged fraudulent conveyance of twelve hundred and eighty sheep from William Hicks to H. C. Swain, and of some horses, cattle, and hogs to D. O. Mills & Go., and to set aside as' fraudulent and void a discharge in insolvency granted by the County Court of Sacramento County to William Hicks, in.'May, 1867.

<p>Constitutional Construction—Municipal Court ot San Francisco. The Municipal Criminal Court of San Francisco, established by Act of the Legislature March 31st, 1870, is a constitutional Court. (Ex Parte John Stratman, 39 Cal. 517, affirmed on this point.)</p> <p>Idem—County Court—Bight oe Appeal.— The provision in section eight, Article VI, of the Constitution, giving to the County Courts appellate jurisdiction in cases arising in such inferior Courts as may be established in pursuance of section one, of the same Article, is not a guaranty qf individual right; but either confers the absolute right of appeal from the Municipal Court to the County Court, or confers upon the latter the capacity to exercise the jurisdiction, when the Legislature shall provide the mode and means of doing so.</p> <p>Idem.—The question whether the Constitution confers upon the County Court appellate jurisdiction in cases transferred from the County Court to the Municipal Court for trial is reserved.</p> <p>Criminal Praotioe—Evidence.—In a criminal case the prosecution may show, by other witnesses, that a witness for defendant had given a different account of what occurred at the time the offense was committed, from that testified to by the witness on the stand.</p>

The questions presented and decided in this case sufficiently appear from the following extract from the notice of appeal, and from the opinion of the Court: “The plaintiffs hereby appeal to the Supreme Court of this State from so much of the judgment of the District Court as is in favor of defendants or either of them, and against the plaintiffs; that is to say, from so much of said ' judgment as in effect orders, adjudges, and decrees that said plaintiffs shall pay to said…

When the cause was called for trial in the Court below, the defendant’s attorney moved for judgment on the pleadings. The Court denied the motion; the cause was then tried, and the plaintiff recovered judgment. The defendant appealed. The other facts are stated in the opinion. .

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

This was an original application in the Supreme Court for a writ of mandate to require the Common Council of the City of Stockton to levy a tax sufficient to raise the sum of twenty-one thousand dollars, in gold coin, being the interest for the first year (1870) on the bonds issued under and by virtue of “ An Act to empower the City of Stockton to aid in the construction of the Stockton and Yisalia Railroad,” approved April 1,1870 (Stats. 1869-70, p. 551).

<p>Power oe Attorney for Sale of Land.—A power of attorney, giving to the attorney in fact full authority to represent the person of the principal in all that concerns his interest in the State of California, and to annul any other power previously granted, and letters afterwards written hy. the principal to the attorney, speaking generally of the propriety of the sale of land in California belonging to the principal, and of the price and terms, and telling the attorney he can give a provisional writing of sale, and to make a sale and it will be approved, do not confer authority upon the attorney to bind the principal by a contract of sale.</p> <p>Jurisdictioit op Probate Court.—The question whether the Probate Court has jurisdiction to specifically enforce the performance of a contract for the sale of real estate, not decided.</p>

<p>Release on Bail not Imprisonment.—Within the meaning of the Criminal Practice Act, a prisoner released on bail is not imprisoned during such release.</p> <p>Enforcement of Judgment in Criminal Case.—When a certified copy of a judgment in an appellate Court is remitted to the Court from which the appeal is taken, the appellate Court loses all jurisdiction of the case; and all orders necessary to carry the judgment into effect must be made by the lower Court. This provision of the statute is not confined to judgments in the Supreme Court, but is applicable to proceedings in the County Court.</p> <p>Commitment after Appeal.—When a party is convicted of a criminal offense and appeals to the County Court, and, pending the appeal, is released on bail, and the judgment is affirmed, a second commitment need only recite the judgment of conviction, and state that defendant appealed and the judgment was affirmed. It need not recite the judgment of the County Court, or that a remittitur had been issued.</p>

<p>Discharge oe a Jury in a Criminal Case.—The discharge of the jury, impaneled in a criminal case, without the consent of the defendant, Because, after mature deliberation, they are unable to agree on a verdict, is not an acquittal of the defendant, and does not entitle him to immunity from further prosecution for the same offense.</p> <p>Beyiew oe Criminal Case in Appellate Court.—The action of the Court in discharging a jury in a criminal case, because of its inability to agree on a verdict, is subject to review by the appellate Court.</p> <p>Habeas Corpus.—A prisoner, confined oil a criminal charge, is not entitled to his discharge on habeas corpus, because a jury impaneled to try him was discharged by the Court, without his consent, by reason of its inability to agree on a verdict.</p> <p>"What cannot be Tried on Habeas Corpus.—Neither a Court nor Judge will, on habeas corpus, investigate or decide the question whether a jury impaneled to try the prisoner was properly or legally discharged b'y the Court, because of its inability to agree on a verdict.</p> <p>Admission to Bail.—Case stated why a prisoner charged with a capital offense was admitted to bail. *</p>

<p>Construction of Contracts.—In construing a doubtful contract, the Court will ascertain the relation of the contracting parties to each other,_ and to the subject matter of the contract, and if possible, so construe the instrument, however inartificially drawn, as to give effect to the intention of the parties, if it can be done without disregarding the language of the instrument.</p> <p>Construction of a Doubtful Contract.—G. owned a lot twenty feet front, and made a verbal agreement with M. that the latter should buy an adjoining strip five feet wide, and the two should erect a two-story brick building on the twenty-five feet, and G. should own the first story and M. the second. The building was erected, and G., by his tenant, entered into possession of the first story, and M., by his tenant, into possession of the second. Afterwards, G. executed to M. a writing, in which he gave up to M. “ all right and title ” to “ the second story of the store, part of five feet for an entrance for the use of a passage up stairs, and as they are now in use and occupied,” etc. Meld, that the instrument was not void for uncertainty, and that it conveyed to M. all the title of G., legal or equitable.</p> <p>Judgment in Ejectment an Estoppel.—"When ejectment is brought to recover two parcels of realty, and the defendant denies the plaintiff’s title, and on the trial the plaintiff puts in evidence in support of his title to both parcels, and the plaintiff recovers one parcel only, the plaintiff is estopped by the judgment from again litigating the title to the parcel he failed to recover, even if the judgment is silent as to the latter parcel.</p> <p>Sale by Trustee.—A conveyance to one in trust, to rent or sell the property and apply the proceeds towards the payment of a debt of the grantor, conveys the fee, and the trustee has power to convey the legal title.</p> <p>Objection to Testimony.—If the plaintiff offers competent testimony to prove certain facts, and it is rejected by the Court on the objection of the defendant, the defendant will not afterwards be permitted to allege that the plaintiff failed to prove the facts embraced in the offer.</p> <p>Purchaser at Trustee Sale.—When property is conveyed to a trustee to rent and sell, and apply the proceeds to the payment of a debt of the grantor, a bona fide purchaser at the trust sale acquires a good title, even if the trustee, before the sale, had received sufficient money from the rents to pay the trust debt.</p> <p>Title Acquired Pendente Lite.—A defendant in ejectment cannot, on the trial, avail himself of a title acquired pendente lite, unless it is set up by supplemental answer.</p>

Ejectment to recover the land sold under the execution, and described in the- Sheriff’s deed, mentioned in the opinion. The Court below rendered judgment in favor of the defendant. The plaintiff appealed. The other facts are stated in the opinion.

<p>Appeal from the Municipal Criminal Court of the City and County of San Francisco.</p> <p>The defendant having been indicted for grand larceny plead not guilty and previous acquittal. A verdict of guilty was returned by the jury. From the judgment of imprisonment and from an order overruling a motion for a new trial the defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Appeal from the County Court of San Mateo County.</p> <p>The defendant was tried for grand larceny and convicted. A motion for new trial, on the ground of misconduct of the jury, was granted. The appeal is taken from the order granting the new trial.</p>

The complaint averred that the plaintiff was the wife of J. C. Hussey, with whom she intermarried in the State of Iowa, on the 9th day of December, 1869, while temporarily absent from California, which was their domicile; and that pursuant to an ante-nuptial contract between the parties, and in consideration of marriage, and of five thousand dollars in coin, due by said J. C. Hussey to the plaintiff before their marriage (two thousand of which was secured by mortgage on the…

Action commenced in the County Court. The complaint alleged that the defendant entered on the land in the nighttime, during the temporary absence of the plaintiff, and that more than five days before the commencement of the action the plaintiff demanded of the defendant that he surrender the land to the plaintiff. The summons stated that the action was brought for the possession and restitution of the land, describing it.

The Court below rendered judgment for the plaintiffs, and the defendants appealed. The other facts are stated in the opinion.

In the action to recover the street assessment, the complaint was filed December 30th, 1864. The plaintiff in his complaint asked for judgment against the lot, and that a decree be made for the sale of the lot, and that all persons claiming subsequent to the date of the warrant be barred and foreclosed of all equity of redemption. There was no claim for a personal judgment against the defendants.

The petition of the plaintiff for the condemnation of the land was filed in the District Court on the 25th day of March, 1868. Dame street was opened and used for public travel in 1863, and was recognized as a public street, by the Mayor and Common Council of the City of San José, July 6th, 1863. The Western Pacific Eailroad Company commenced proceedings to acquire the right to lay its track along Dame street on the 27th of January, 1865.

This was an action brought by the people of the State, upon the relation of the Board of State Harbor Commissioners, to recover possession of certain property in the City and County of San Francisco, two hundred and eighty-eight feet in length by one hundred feet in width, lying north of Jackson street and east of what was alleged to be the water front of said city and county, as established by law.

There were no findings of fact or conclusions of law in the Court helow, except such as were included in the judgment. The other facts are stated in the opinion:

The Court below gave judgment for the plaintiff, directing the defendant to perform specifically the contract mentioned in the opinion. The defendant appealed. The other facts are stated in the opinion.

March ■ 20th, 1868, Alfred Briggs recovered a judgment in the District Court of the Sixth District, Sacramento County, for three thousand six hundred and twenty-eight dollars and twelve cents. On the 15th of May, 1868, the Judge of said Court made an order for said McCullough and Knobland to appear before a referee to answer concerning their property.

The Court below gave judgment in favor of the attaching creditors, and the plaintiffs appealed. The other facts are stated in the opinion.

- This was an action of ejectment, to recover possession of a portion of the Rancho Los Putos, in Solano County. There was a former appeal in the same case, which will be found reported in 36 Cal. 625. It appears that the original title was a Mexican grant to Manuel Cabeza de Vaca and Juan Felipe Pena, afterwards confirmed and patented by the United States Government. The plaintiffs claimed title under a deed executed in 1848 by Vaca to Jacob D. Hoppe and Zimri Hollingsworth.

This was an action upon a promissory note. The defendants demurred to the complaint; the demurrer was struck out, and a default for failure to answer was entered against them. Afterwards, on motion of defendants, the default was set aside, and an answer was filed. The case was tried by a jury, and a verdict was rendered for the defendants. Plaintiffs appealed. The other facts are stated in the opinion of the Court.

The facts out of which this case arose are stated in Currey v. Allen, 34 Cal. 254.

The plaintiff demurred to the answer, and the Court below sustained the demurrer. The defendant declined to amend the answer, and the plaintiff had-'judgment by default. The defendant appealed. The other facts are stated in the opinion.

The statement on motion for a new trial had no certificate of the Judge attached to it, nor did if appear by the record, except as stated in the order denying the motion to set aside the order granting a new trial, that it had been settled.

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

The plaintiff recovered judgment in the Court below, and the defendant appealed. The other facts are stated in the opinion of the Court.

This was a petition filed by the plaintiff in the District Court, to condemn the land of Frisbie and some fifty others, for the track of a railroad, from the Straits of Carquinez to Sacramento. The Commissioners, in their report to the Court, included the testimony taken before them. On the filing of the report of the Commissioners, the plaintiff’s attorney excepted to the same, and filed a bill of exceptions, which was settled by the Court.

On the first day of July, 1867, the plaintiff leased to the defendant Kelly, a lot in San Francisco, for the term of five years, at a monthly rent of thirty-five dollars for the first two years, and forty-five dollars for the remaining three years. Kelly afterwards sublet to defendant Frist.

the District Court of the Twelfth Judicial District, City and .Cóinty of San Francisco. The defendants were the editors and proprietors of the Hoening Bulletin, published in ^an, Francisco. The plaintiff and several others owned a Mver mine in the State of Nevada, and were incorporated under the name of the Santiago Mining* LLmpány, and the plaintiff became one of the trustees of the corporation. The plaintiff owned and =-T§@Msfóck in the corporation.

The following is the application made by defendant, • Hovember 20th, 1867, and the affidavit accompanying the same: “ Marysville Land District, 1 Hóvember 20th, 1867.

This action was commenced by Nathaniel Chater, in May, 1858, who died during the pendency of the action, and the administrator of his estate was substituted as plaintiff. The agreement between Chater and defendants Gordon and Bond was dated New York, April 4th, 1856. The agreement provided that the parties should form a corporation in San Francisco, to be called the San Francisco Sugar Refining Company.

<p>The relators filed a petition in the Supreme Court, in which they allege that, at an election held in accordance "with an Act of the Legislature for the purpose of determining the location of the county seat of Lake County, the officers of the election in certain precincts and the Board of Canvassers were guilty of fraudulent conduct, whereby it was made to appear that Lower Lake had received a majority of votes over Lakeport, when in fact the latter town had received a majority of twenty-one votes; and that the Board of Supervisors, acting upon returns so made, had issued an order removing the county seat from Lakeport to Lower Lake. They asked the Court to set aside the order of the Board of Supervisors, to decree that Lakeport be the county seat, and to issue a writ of mandamus requiring the county business to be transacted at Lakeport. After issue joined, the questions of fact were referred to the District Court of the Seventh Judicial District, and upon trial a verdict was rendered in favor of Lakeport.</p> <p>The other facts are stated in the opinion.</p>

Charles Gr. Scott and the plaintiff Jane Scott, were husband and wife, and the plaintiffs Charles E. Scott and Indiana Scott, were their only children. Charles Gr. Scott purchased the land and took the conveyance in the name of his wife. In June, 1856, the wife, who was in the State of New York, executed an instrument, making the husband her agent to sell or lease and collect the rents.

The complaint alleges that the plaintiff, om the 9th of May, 1867, entered into an agreement with the defendant to purchase from him a lot of land in San Francisco, for two thousand two hundred dollars, and paid him four hundred and eighty-one dollars and eighty-five cents as part of the purchase money, to be retained by the defendant if he should convey a good title to the plaintiff, but to be returned if the defendant should fail to make such a conveyance; that the…

The Court below rendered judgment for the defendant, and the plaintiff appealed. The other facts are stated in the opinion.

The defendant was convicted of the crime of grand larceny, and appealed from the judgment and order denying a . new trial. The other facts are stated in the opinion.

<p>Landlobd and Tenant.—If the landlord sells and conveys the leased premises, and assigns the lease, the grantee must inform the tenant of the sale before demanding rent, and if the tenant refuse to pay rent to the grantee, when he does not know of the sale the refusal is not a forfeiture of the lease.</p> <p>Ejectment against Tenant.—The grantee cannot maintain ejectment against the tenant of the landlord, because the tenant has refused to pay him rent, unless the tenant had been ihformed of the sale, before rent was demanded.</p> <p>Demand bob Bent.—A demand for rent should be of the amount due. If the amount due is not demanded a refusal to pay does not work a forfeiture of the lease.</p>

<p>Repeal oe Repealing Act.—The repeal of an Act repealing a former Act does not revive the former Act, or give it any force or effect. To revive such former Act it must be reenacted.</p> <p>Oeeice Revived by Repealing Act.—If a general Act creates an office in all the counties of the State, to be filled by election once in two years, and a special Act, passed afterwards, takes one county away from the provisions of the Act, and this special Act is afterwards repealed by an Act which restores the office as to that county, the provisions of the general Act are revived as to the office.</p> <p>Oase Abbirmed.—Trout v. Gardiner, 39 Cal. 386.</p>

<p>Appeal prom Order Petaxixg Costs.—An order on a motion to retax costs, if made after the entry of judgment, is a special'order made after final judgment, from which an appeal lies.</p> <p>Idem.—If such order is made before the entry of judgment, it may be reviewed by an appeal from the judgment, with a statement annexed to the record.</p>

<p>Appeal from the District Court of the Seventh Judicial District, County of Sonoma.</p> <p>The plaintiffs appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Appeal from the District Court of the Third Judicial District, Santa Clara County.</p> <p>The plaintiffs alleged that the defendants were about to obstruct a public road by building a fence across the same, and asked for a preliminary injunction, and that, on the trial, the injunction be made perpetual. The defendants demurred to the complaint, and the Court overruled the demurrer. A preliminary injunction was granted, and, the defendants having answered, on the trial a perpetual injunction was decreed. The defendants appealed.</p> <p>The other facts are stated in the opinion.</p>

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

The plaintiff delivered the piano to Dowling on the 13th day of April, 1866. Dowling used the piano in his family; and on the 28th of July, 1866, and after he had paid the one hundred dollars, sold the same to Main & Winchester, of which firm the defendant was a member. The firm made the purchase in good faith, and had no notice of the terms of the agreement under which the piano was delivered to ' Dowling.

<p>Appeal from the District Court of the Thirteenth Judicial District, County of Tulare.</p> <p>The defendant was indicted for murder at the January term of the Court, 1871, and a motion for a continuance until the first day of the succeeding May term, on account of the absence of material witnesses, was granted. A few days subsequently, at the same term, on motion of the District Attorney, the Court vacated the order of continuance, and set the case for trial on the twentieth of February following, the defendant excepting. When the case came on for trial, Ihe defendant moved for a continuance until the May term, upon an affidavit as to the absence of witnesses by which he expected to show that he committed the homicide in self-defense. The Court overruled the motion, and set the case for trial on the twenty-third of February. On that day, the defendant’s witnesses being still absent, his attorneys obtained leave to withdraw his plea of not guilty, and entered a plea of guilty of murder in the second degree. Before entering this plea, the Court, turning to the side of the room where the defendant and his attorneys were seated, asked if the defendant consented to it. The attorneys for the defendant replied that he did. The defendant himself, however, said nothing, but inclined his head in a manner indicating his consent. The Court set the twenty-fifth of February for pronouncing judgment. When that day arrived the defendant asked leave to withdraw the plea of guilty. The Court refused the request, and proceeded to sentence Mm to fifteen years imprisonment in the penitentiary. From this judgment the defendant appeals.</p>

The plaintiff, on the, trial, introduced a deed of the demanded premises from the defendants to Elizabeth Osborn, their sister, dated December 15th, 1863, giving, granting, and conveying the premises to said Elizabeth, in consideration of love and affection.

This was an action to be allowed to redeem about four hundred and sixty-seven acres of land, the separate property of Josefa G. de Lorenzana, one of the plaintiffs. The plaintiffs had made a loan of money from the defendant, and, to secure the same, had given him a mortgage on the land. When the mortgage fell due it was canceled, and the plaintiffs executed to the defendant a deed of the land. It was alleged that the deed was intended as a mortgage to secure the old debt.

<p>Appeal from the District Court of the First Judicial District, County of Santa Barbara.</p> <p>Ejectment to recover a lot in Santa Barbara, described in the complaint as a “ piece or parcel of land situated in the Town and County of Santa Barbara, California, commencing on the westerly line of Carrillo street, at the northeasterly corner of the lot of Rafael Valdez; thence running northeasterly on the line of Carrillo street one hundred and twenty feet; thence at right angles northwesterly one hundred and twenty feet; thence southwesterly parallel to Carrillo street one hundred and twenty feet; thence one hundred and twenty feet to the place of beginning.”</p> <p>The plaintiff, to show title to the demanded premises, offered in evidence the record of a. grant made by the Ayuntamiento of the Pueblo of Santa Barbara August 9th, 1849, of which the following is a translation:</p> <p>“ By a resolution of the Ayuntamiento, there was granted to Candelaria Cañizares a lot of land forty yards square, adjoining the house of Manuel Cota. The Recorder gave her possession of it, and received the customary price for it.”</p> <p>The plaintiff also introduced a judgment in said Court in favor of the plaintiff and against Francisco Pico, and an execution issued on the judgment, and a sale thereunder of the premises and a deed of the Sheriff to the plaintiff.</p> <p>The plaintiff also offered in evidence a deed from Candelaria' to herself, dated June 17th, 1864, of a lot of land described as follows:</p> <p>“All the right, title, and interest of the party of the first part in all that certain piece or parcel of land situate in the Town and County of Santa Barbara, State of California, bounded in front by Carrillo street; on the north by the land of Francisco Espinosa and others; on the west by open land of the Town of Santa Barbara, and on - the south by the land of Rafael Valdez, being the same lot of land whereon is erected a dwelling house occupied by Francisco Pico, and the same lot of land which was granted to the party of the first part by the Ayuntamiento of Santa Barbara County, and the same piece or parcel of land which Was regranted to the party of the first part, by deed from the Mayor and Common Council of the City of Santa Barbara, dated February 16th, 1858, and recorded in the office of the Recorder of Santa Barbara County, in Book “B ” of Deeds, on pages seven hundred and sixty-seven and seven hundred and sixty-eight, to which record reference is hereby made for a fuller description of boundaries.”</p> <p>The defendant, Francisco Pico, then introduced in evidence a notice served by him on the Sheriff, before the sale, that he claimed the property as a homestead. The Court rendered judgment in favor of the defendants, and the plaintiff appealed from the judgment and from an order denying a new trial.</p>

<p>Excessive Damages—New Trial.—The appellate Court will not review the judgment, as to whether the damages are excessive, unless a motion is made in the Court helow for a new trial, and an appeal is taken from an order denying the same.</p> <p>Words not Libelous of Themselves.—The words “ Clarke is a carpenter by trade, is interested in the Moore title, and has figured quite prominently in some of the squatter riots which have occurred in the Western Addition,” are not -libelous of themselves, as usually understood and received in this State.</p> <p>A Colloquium in Complaint' for Libel.—If it is intended to charge in a complaint that such words were used in an offensive sense, such as engaging in a riot to unlawfully invade the possessions of another, and were so understood by those who read them, there must be a colloquium in the complaint to show in what sense the words were libelous.</p> <p>Colloquium and Innuendo.—A colloquium in a complaint for a libel cannot he supplied by an innuendo. The colloquium states the extrinsic facts to show the libelous meaning of the words,-and the innuendo applies the words to these facts.</p> <p>Popular Sense in which Words are Used.—Whether a publication is libelous per se is to be determined wholly by the sense in which the same is usually understood and received in this State; and whervwords have a general and notorious signification in this State, Courts will take judicial notice of it.</p>

The plaintiff alleged in his complaint, that in 1845 the Mexican nation granted to Juan Uepomoceno Padilla a tract of land in -the Department of-Upper California, in what is now the County of Sonoma, called in the grant the Pancho Poblar de la Miseria, and that the grant belonged to the class called inchoate- or imperfect grants, in this, that judicial possession was not -given, nor was the grant segregated from the national domain until January 18th, 1858, when the same was…

<p>Appeal from the District Court of the Sixth Judicial District, Sacramento County.</p> <p>This was an action of ejectment. The Court below granted a nonsuit, and the defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

On the 1st day of July, 1862, Congress passed an Act granting to the Union Pacific Eailroad Company and the Central Pacific Eailroad Company of California the right of way over the public lands of the United States for their respective roads. On the 1st day of October, 1864, the said Central Pacific Company assigned this right, from Sacramento to San Francisco, to the Western Pacific Eailroad Company. On the 3d day of March, 1865, Congress ratified this assignment.

This was an action brought for goods sold and delivered, amounting to three thousand and forty-two dollars.

<p>Petition for rehearing.</p> <p>The appeal in this case having been decided at the January term, 1871,, upon the'authority of Chambers v. Satterle'e, 40 Cal. 497, the defendant, Byrne, by his attorneys, S. H. Brodie-, Byrne & Freelon, moved for a rehearing, upon the ground that the decision of the Court had not included the point that the Board did not cause notice to b.e published for five days .nor cause the notice to be conspicuously posted in the Superintendent’s office inviting sealed proposals for the work. His counsel argued that the order of the Board failed to comply with the requirements of the statute, and cited Meuser v.Risdon, 36 Cal. 239; Heyman v. Babcock, 30 Calc 367; Himmelman v. Reay, 38 Cal. 163; Hewes v. Reis, 40 Cal. 255; and Blanchard v. Beideman, 18 Cal. 262.</p>

San Francisco. In 1870 the plaintiff obtained a judgment by default against Robert Christy, G. Bergle, and J. Beisel, in an action for the recovery of the possession of a tract of land on the Potrero Huevo, in San Francisco, known as .the Robinson tract. A writ of restitution was issued on the judgment,' and the Sheriff, by virtue of the same, removed Rowland Chatham from the land. He moved the Court, on affidavits, to be restored to the possession.

<p>Turnpike Franchise not Assignable except with Consent oe Grantor.—A franchise to construct a turnpike road and collect tolls thereon is a personal trust reposed in the grantee, and is not assignable either at forced sale or by voluntary conveyance, except with the consent of the granting power. ,</p> <p>A Franchise does not Pass to Assignee in Bankruptcy.—A franchise to construct a turnpike road and collect tolls thereon, being a personal trust, not assignable without the consent of the granting power, does not pass, by virtue of an assignment under the United States bankrupt law, to the assignee in bankruptcy.</p> <p>Transactions Constituting Valid Transehr oe Franchise.— Where the owner of a turnpike road franchise became a bankrupt and the assignee in bankruptcy sold the franchise to a third person, and the bankrupt acquiesced in'the transfer, relinquished all his title, and delivered possession of the road and its appurtenances to the purchaser, and afterwards the Board of Supervisors—the grantors of the franchise—assented to the transfer and authorized the purchaser to collect the tolls; held, that, though the francbise, being a personal trust, did not pass by virtue of the assignment in bankruptcy, the whole transactions constituted a valid transfer of it by the owner, with the consent of the granting power.</p>

The defendant recovered judgment in the Court below, and the plaintiff appealed. The other facts are stated in the opinion of the Court. •

This action was for the return of certain iron pipe, and apparatus for hydraulic mining, alleged to be detained by defendant, and in default thereof, for its value, laid at the sum of two thousand nine hundred and ninety-three dollars and ninety cents, together with damages for wrongful detention.

This action was brought to recover three thousand five hundred and fifty-one dollars and thirty-nine cents for stock purchased for defendant, and commissions and advances, and cash loaned to him by plaintiffs, as brokers.

<p>Testimony of Absent Witness—Insufficient Admission on Motion fob Continuance.—Lovett and Adams were partners, under the firm name of W. E. Lovett & Co.; Adams sold his interest to Flint, who received in part payment a promissory note signed hy the firm name, and afterwards transferred it to other parties who, at maturity, sued for payment. On the trial the parties defendant moved for a continuance, to procure the attendance of Flint as a witness, and in support of the motion, an affidavit was filed stating, that if present, Flint would testify that he had nothing to do either with the execution or delivery of the note, or with the direction of the business of the firm. The plaintiffs admitted that, if present, Flint would testify that he did not sign the note nor authorize any one to sign it for him. On this the Court denied the motion for a continuance, and proceeding with the trial found, that as the note had been signed by Lovett in the firm name, in the presence of Flint, the latter held himself out to the world, hy the transaction, as a partner. Meld: first, that the testimony of Flint, as stated in the affidavit, was competent and material upon the question involved in the finding; second, that the admission of the plaintiffs was not broad enough to cover all the material facts to which defendants expected Flint would testify.</p>

Original application in the Supreme Court for mandamus. The grounds upon which the defendant attacked the Act of March 4th, 1870, and rested his defense to this application for mandamus, are thus stated in the affidavit of Mayor Selby, referred to in the opinion: “ That he is advised and believes, and hereby charges and states, that the validity of the proceedings for the extension of Montgomery street and Connecticut street is questioned and attacked, and that it is…

<p>Construction of Written Contract.—In. a contract for the payment of money at different periods of time, with an extension of time, if needed, for the payment of an installment, the extension is a privilege of which, if the party entitled to it desires to avail himself, he must notify the other party, on or before the day upon which the installment becomes due, that he needs the extension.</p> <p>Complaint in'Action for Damages.—In an action for damages the plaintiff must allege, in his complaint, that he has sustained damages, in order to sustain a judgment for damages.</p> <p>Concurrent Covenants.—A party who agrees to convey land upon payment of the purchase money, cannot recover the purchase money due upon the contract until he tenders a deed, if all the installments became due before the action was brought.</p> <p>Allegation op Tender.—In such a case the complaint must allege a tender of a conveyance.</p> <p>Rescission op Contract—Vendor and Vendee.—When a vendee has so failed to perform the contract that the vendor may elect to treat the contract as rescinded, it is incumbent upon the vendor, in order to work that result, to restore to the vendee whatever he has paid on the contract.</p> <p>Idem—Must be Entire.—The rescission of a contract, to be effectual, must be a rescission in toto.</p> <p>Idem—Allegation in Complaint in Ejectment.—In order to recover possession of premises on the ground of rescission of contract, the plaintiff must allege a repayment or tender of the amount paid by the defendant at the execution of the contract.</p>

<p>Appeal from the District Court of the Third Judicial District County of Santa Clara.</p> <p>Plaintiffs had judgment, and defendant appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

The plaintiff demurred to defendants’ answer, the demurrer was overruled, and the defendants obtained judgment, from which the appeal was taken. The other facts.are stated in the opinion.

This was an action of ejectment for a piece of land in San Luis Obispo Oounty, commenced in March, 1869.

<p>Original application to the Supreme Court for a writ of mandamus.</p> <p>The facts are stated in the opinion.</p>

The plaintiff demurred to the complaint on the ground that it did not state a cause of action, and the demurrer was overruled. Upon the trial judgment was rendered for the plaintiff, and the defendants appealed. The other facts are stated in the opinion.

C. P- Stanford, at the time he executed the instrument referred to in the opinion (August, 1869), was carrying on the Coldstream Sawmill, in Placer County. The plaintiffs to whom, and the other persons for whose benefit also, he made the conveyance, were his employes.

This was an action of ejectment for a tract of about twenty acres of land, on what is known as the “ Potrero Nuevo,” in the City and County of San Francisco. It was originally commenced in the Twelfth District Court, but was afterward, on account of the disqualification of the San Francisco Judges to try Potrero cases, transferred to the Third District Court of Alameda County.

The deed of trust executed by the defendant Stickney to secure the loan made to him by the Fireman’s Fund Insurance Company, as stated in the opinion, was made to the defendants Staples and Bull, as trustees of that company. The plaintiff and the defendants Wright, Leavitt, Ide, and Mechanics’ Mill and Manufacturing Company, were the holders of mechanics’ liens for work done and materials furnished after the execution of the trust deed.

Writ of certiorari to review proceedings of the County Court of the City and County of San Francisco and set aside its judgment. • The facts are stated in the opinion.

This was an action of ejectment, brought against all the occupants (over a hundred in number) of the Rancho •Laguna de San Antonio, in Sonoma and Marin Counties. Isaac R. Jewell, one of the defendants, answered separately; and the case, so far as he was concerned, was tried, and judgment obtained against him in March, 1870. He after-wards made a motion for a new trial, which being overruled, he took this appeal from the order as well as from the judgment.

<p>Construction of Written Contract—Sale of Land.—Where a party who owns hut an undivided one half of a tract of land enters into a contract by which he agrees that, upon the payment of the purchase money, lie will convey the whole of the land to another party, who is induced to regard him as the owner of the entire premises, the vendor is deemed to have sold not only his own interest in the land, but the whole of the land.</p> <p>Idem—Allegation in Complaint.—In the face of such an agreement, the vendor will not be permitted to aver, if he brings an action to recover possession from the party holding under the contract, that he sold less than the whole title to the land, unless he can also aver that the written contract, by reason of fraud, mistake, or the like, does not show the real contract.</p> <p>Bight to Bescind—Specific Performance.—In the case stated, upon a discovery by the vendee that the plaintiff held only the undivided half of the land, he is entitled to proceed at once to rescind the contract; or he may proceed to have the contract specifically enforced to the extent of the plaintiff’s interest in the land.</p> <p>Bestoration of Possession—Bents and Profits.—In proceeding to specifically enforce the contract, it is not incumbent on the defendant to restore, or offer to restore, the possession to the plaintiff; nor is the plaintiff entitled to any portion of the rents and profits accruing since the contract was made.</p> <p>Obligation of Vendor to Convey.—If the vendor in such a case is unable to perform the entire agreement, and can convey only an undivided half of the land, he may be compelled to convey that interest.</p> <p>Obligation of Vendee to Tender Payment.—To entitle the vendee in the case stated to a decree compelling the vendor to convey his undivided half of the land: 7teld, that it was necessary for him to tender as the purchase money only one half of the contract price.</p>

<p>Appeal from the District Court of the Fourth Judicial District, City and County of San Francisco.</p> <p>In December, 1867, Justus Struver, as the assignee of E. W. Linsley & Co., commenced an action in the Fourth District Court against The Eel Eiver Navigation Company to recover1 a balance alleged to be due for goods sold and delivered. The summons was served in the same month, in San Francisco, upon J. D. Bristol as the'President of the corporation. No appearance being made a default was entered and judgment by default taken against the corporation in January, 1868, for six thousand eight hundred and twenty-two dollars and sixty-one cents. It was this judgment which the present action was brought to set aside.</p> <p>The Eel Eiver Navigation Company was organized as a corporation by filing its certificate in the County Clerk’s office of Humboldt County, on October 2d, 1865; and Fern-dale, in that county, named as the principal place of business. On the next day a meeting of the Trustees mentioned in the certificate was held at Ferndale, and Bristol, who was one of the number, was elected President for three months. ■ He attended and presided over another meeting of the Trustees, held on October fifth, and soon afterwards left Humboldt County and never returned or afterwards took any part whatever in the concerns of the corporation. On October fourteenth, at a meeting of the Trustees—Bristol being then absent—H. Patrick was elected President pro tern, for that meeting; and it appears that he continued to act as President de facto. Hone of the other officers, or agents, or stockholders, knew anything about the service on Bristol until several months after the entry of judgment against the corporation.</p> <p>There having been a judgment in the present action for defendant, the plaintiff appealed.</p>

<p>Service of Statement.—A statement on motion .for a new trial need not be served unless there is a rule of Court requiring service. The statute only requires such statement to be filed.</p> <p>Waiver of Notice of Motion for New Tri!al.—Proposing amendments" to a statement on motion for a new trial is a waiver of a failure to serve a notice of the motion, unless the party proposing the amendments makes the objection, or reserves his right to make it when he proposes his amendments.</p> <p>Assessments on Minino Interests.—The statute of 1865-6 in relation to levying assessments against the owners of interests in mining claims for the purposes of working the same, applies only to copartners in the claim, and has no reference to those who are mere pwners and shareholders, without the partnership relation. „</p> <p>Idem.—To warrant such assessment, if the partnership relation does not exist, the joint owner must be notified that thenceforward he will be deemed a copartner for the purpose of working the claim, and the service of the notice changes the relation of the parties, and creates a mining partnership.</p> <p>Constitutional Law.—Constitutionality of the Act of April 2d, 1866, providing for assessments on interests in mining claims, not discussed or decided.</p>

<p>Proof of Rights of Claimants under the Suscol Act.—It was the special duty of the Register and Receiver of the United States Land Office at San Francisco to take proof of the necessary facts entitling applicants, under the Act of Congress of March 3d, 1862, relative to the Suscol Rancho, to the benefit of that Act; and where there is no charge of fraudulent proofs, the award of the Register and Receiver will be regarded as conclusive.</p> <p>Pre-emption of Lands Included in the Suscol Rancho.—By the Act of March 3d, 1863, relative to the Suscol Rancho, all the lands included in the grant to Vallejo are withdrawn from the operation of the general preemption laws of the United States, and an attempt to preempt such lands under the general laws is futile, and confers no title, either legal or equitable.</p>

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

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

<p>Appeal from the District Court of the Twelfth Judicial District, San Mateo County.</p> <p>This was an action against the defendant, Hawes, and certain real estate, known as the “Redwood Farm,” to recover taxes, amounting to seven hundred and sixty-eight dollars and eighty-seven cents, levied for the fiscal year 1868-9. The transcript on appeal, besides the pleadings, findings, and judgment, contained, under the head “ Statement,” a stipulation, dated June 14th, 1869, whereby it was agreed to submit the cause to the District Court upon the evidence and statement of facts therein given, and that upon them and the pleadings the Court should determine all questions of law and fact, and proceed to render final judgment, subject to appeal; and that, in case of appeal by either party, the same might be taken directly, without any previous application for new trial; and that this statement should stand for the statement on appeal. The evidence and facts set forth in the stipulation related to the time and manner of making up the assessment roll and levy of road tax in San Mateo County in 1868. There was nothing in the record purporting to be an objection or exception, nor anything purporting to be a statement, except the foregoing stipulation. There was a judgment on September 30th, 1869, for plaintiff, as demanded in the complaint, and defendant appealed.</p>

• The District Judge, after reciting the facts, concluded his findings in the following language: “That it would operate as great and irreparable injury to defendant to be ejected from the lands in controversy, before the final action of Congress upon the Act of Legislature last mentioned; and as conclusion of law the Court finds that the defendant is entitled to judgment.

<p>Challenge oe Juror eor Implied Bias.—The unqualified expression of an opinion as to the guilt or innocence of a prisoner on trial is ground of challenge of a juror for implied bias.</p> <p>Answer to Challenge.—It is no answer to such challenge to say that in the mind or thought of the party challenged the opinion was qualified, though in its form of expression it was unqualified. The admitted fact being that he had unqualifiedly expressed his opinion upon the question of the guilt or innocence of the prisoner, he was thereby, in judgment of law, incompetent to serve as a juror.</p> <p>Evidence oe Character oe Prisoner.—In a criminal case proof of bad character of the deceased is admissible, only when it tends in some way in connection with the immediate circumstances under which the killing was done, to show that the prisoner had sufficient grounds, as a reasonable man, to fear that he was himself about to receive at the hands of the deceased some great bodily harm, and that he acted under the influence of fear in killing the deceased.</p>

The facts are stated in the opinion. The indictment was as follows: Ah Tuck and Ah Sam are accused by the Grand Jury of the City and County of San Francisco, State of California, by this indictment, found this 25th day of August, A. D. 1870, of the crime of forgery, committed as follows: The said Ah Tuck and Ah Sam, on the 9th day of July, A. D. 1870, at the city, county, and State aforesaid, feloniously, falsely, and willfully did have and keep in their possession live…

One Antonio Martini, having been arrested on a charge of rape upon the person of a child of tender years, and brought before a Justice of the Peace in the City of Petaluma, was bound over to answer at the next term of the County Court of Sonoma County, and his bail was fixed at one thousand dollars. The defendants gave the required recognizance, and the accused was released from custody.

This was an action upon a contract entered into by the parties in April, 1865, by the terms of which defendant was to pay plaintiff two thousand one hundred dollars in gold out of certain moneys to be collected for street work in San Francisco.

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

In the year 1839 the Mexican Government granted to Francisco Sanchez the Rancho San Pedro, lying in what became the County of San Mateo after the admission of California as a State. The grant was confirmed by the United States authorities; and said Sanchez, on the 5th day of March, 1856, conveyed the same to Arcenla Miramontes, Pedro Higuera, and Ramon de Zaldo, in trust.

<p>Findings Inconsistent with Judgment.—To procure a reversal of judgment based upon findings by a Court, on an appeal on the judgment roll alone, the express findings must be absolutely inconsistent with the judgment, conceding all the other facts within the issues to have been found in accordance with it.</p> <p>Facts Presumed to Support Judgment.—Facts within the issues not expressly found and necessary to support the judgment are presumed to have been in accordance with the judgment.</p> <p>Rebuttal oe Presumed Facts.—In order to rebut the implied findings in support of judgment, it must be made to appear either in the findings themselves, or on a motion for a new trial, or by a statement on appeal, that no other facts than those expressly found were proved at the trial.</p>

The case of Vanee v. Fore, mentioned in the opinion, was an action of ejectment brought against the grantees of Clark and Curry to recover possession of the six hundred acres of land conveyed by Peña to Clark and Curry prior to the deed to Vance. It is reported in 24 Cal. 435. This action was brought against the children of Peña—to enforce a performance of the covenant with Vance—Peña having died intestate in 1863. The defendants had judgment, and. the plaintiffs appealed.