Volume 42 — California Reports

<p>Seizure by Sheriee, at direction oe Judgment Creditor, when Joint Trespass.—Where a Sheriff, under an execution against McGrane, and at the direction of the judgment creditor Williston, seized upon certain property, including wheat and barley, in possession of Goodyear, who had purchased in good faith and for value of McGrane after the crop was cut and stacked; and, at the same time, the Sheriff, having in his hands a mortgage given by McGrane to Williston upon the crop while growing, took possession of the wheat and barley also under such mortgage, and placed all the property seized in possession of Casey, as his keeper, as agent of Williston: held, that these facts established a joint taking by the Sheriff and judgment creditor, which, if wrongful, would sustain an action against them jointly as trespassers.</p> <p>Mortgage on Growing Crop.—The intent of the provision relating to mortgages of growing crops, in section seventeen of the Statute of Frauds (Stats. 1856, p. 87), was to protect the lien of such a mortgage, without any delivery of possession, until the crop was so far harvested as to be capable of manual delivery and transportation; but the continuance of such lien afterwards, as against a subsequent purchaser in good faith, depends upon actual delivery of the crop to the mortgagee, and his retention of the possession thereof.</p> <p>Purchase in Stacks ot Grain Mortgaged while Growing.—Where a mortgage was given upon growing crops of wheat and barley, as provided in section seventeen of the Statute of Frauds (Stats. 1856, p. 87), and after they were cut and put into stacks and shocks the mortgagor sold and delivered them to a purchaser in good faith, and for value: held, that the lien of the mortgage, without possession in the mortgagee, extended only to a severance of the crops from the land, and that the purchaser took them relieved of the mortgage lien.</p>

Under the special Act of the Legislature, referred to in the opinion of the Court, a petition was presented to the Council of Oakland, asking that Eighth street be opened, straightened, and widened, from Adaline to Wood street, to the width of eighty feet. In compliance with the petition, the city engineer was ordered to prepare a map of the proposed improvement.

This was an action of ejectment for an undivided half of a tract of land in the City and County of San Francisco, bounded by Grove, Webster, and Haight streets, and a line seventy-one and a half feet east of Fillmore street, excepting therefrom block two hundred and ninety-nine. The case was tried before a jury, and resulted in a verdict and judgment for plaintiff. A motion for new trial having been denied, defendants appealed from the judgment and order.

This was a proceeding under the provisions of an Act of the Legislature, entitled “An Act to authorize the Board of Supervisors of the City and County of San Francisco to modify the grades of certain streets,” approved March 30th, 1868 (Stats. 1867-8, p. 594), and an Act amendatory thereof, approved February 1st, 1870 (Stats. 1869-70, p. 41).

The land conveyed by the plaintiff to the defendant consisted of three tracts in San Joaquin County, embracing in all about four hundred and ninety acres.

<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>

<p>Title to Property op Incorporated Company.—The sale of property belonging to an incorporated company under a judgment recovered against the individual members of the company in an action to which the company was not a party, passes no title.</p> <p>Inadmissible Evidence.—The records of such a suit and of the sale in pursuance of the judgment obtained in it, are not admissible as evidence of title in the judgment purchasers as against one who claims under a judgment against the company.</p>

The judgment involved in this appeal was in favor of plaintiffs and against defendant, and was entered on March 30th, 1868. Afterwards counsel for defendant moved for leave to offset an execution in favor of defendant and against the plaintiff David Calderwood, against the execution issued in this action in favor of plaintiffs, for their costs on a former appeal. The motion was denied April 13th, 1868.

<p>Appeal from the District Court of the Fifteenth Judicial District, Contra Costa County.</p> <p>The San Pablo Pancho, consisting of seventeen thousand nine hundred and thirty-six acres, having been assessed as an entirety to numerous owners, without designating the individual interests, and the taxes upon a portion of it remaining unpaid, this suit was brought to enforce the payment of the delinquent taxes. The plaintiff had judgment, and the defendants appealed.</p> <p>The other facts are stated in the opinion of the Court.</p> <p>B. S. Brooks, for Appellants, argued that the whole of the ranch having been assessed as an entirety, there was no authority for selling an undivided interest, and the judgment for that purpose was erroneous.</p>

<p>Joint Judgment Erroneous as to one Defendant.—A joint judgment on a promissory note rendered against the administrator of a deceased maker and the surviving makers, is erroneous as to the administrator, if it is not made payable de bonis testatoris, but this error does not invalidate it as to the other defendants.</p> <p>Presentation or Claim to Executor.—An objection to a recovery on a claim against the estate of a deceased person on the ground that it was not presented to the executor for allowance, cannot be made for the first time in the Supreme Court, nor on motion for a new trial.</p>

The cause was tried by jury in the Court below, and there was a verdict for the plaintiff. The main ground of defendants’ motion for a new trial and on this appeal was insufficiency of the evidence to justify the verdict and judgment; and the briefs of counsel were chiefly directed to abstracting and discussing the weight of the evidence. The other facts are stated in the opinion of the Court.

This was an action to recover the sum of seven thousand five hundred dollars, the value of two hundred and sixty-nine shares of the capital stock of the Exchequer Mining Company, alleged to have been converted by the defendants. It appears that in 1867 Joseph Tilden hypothecated five hundred shares of the stock of that company with defendants, as collateral security for a debt of eighteen thousand six hundred and seventy-five dollars.

<p>Appeal from the District Court of the Fourth Judicial District, City and County of San Francisco.</p> <p>The plaintiff sued to have certain deeds from Treadway to Dellinger, and Rom Dellinger to Reay, set aside, on the ground that the first was made with intent to defraud creditors, and that the second was obtained by Reay with full knowledge of such fraudulent intent; and also to enjoin defendant Ellis, as Sheriff, from executing the deed for the property in suit to Reay. The Court found in favor of the plaintiff, and rendered judgment in his favor. Defendants Reay and Ellis moved for a new trial; the motion was denied, and on appeal the order denying the motion was reversed.</p> <p>The other facts are stated in the opinion of the Court.</p> <p>[The former decisions in this case are reported in 34 Cal. 476, and 38 Cal. 278.]</p>

Ejectment for eighty acres of land in Los Angeles County. There having been a judgment for defendants, and motion for new trial overruled, plaintiff appealed. The other facts are stated in the opinion.

The lot in controversy had a front of forty-eight feet nine inches on Post street, and seven feet nine inches on Sutter street, being a long strip in the middle of a block.

<p>Advances on Joint "Venture—When Statute of Limitations Commences Running.—In an action by Hill, to recover one half his advances made under a contract between him and Haskin, whereby they agreed to buy and sell on joint account certain mining stock, Hill to advance all the money and Haskin to repay one half with interest, and Hill to hold all the stock purchased as security for his advances, but without specifying any time within which the repayment was to be made: held, that an offer to account and a demand for repayment by Hill were conditions precedent to his right to maintain the action, and that the Statute of Limitations would not commence running against him until such offer and demand.</p>

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

Ejectment. The defendants were indebted to one Manion, on a note secured by mortgage on the demanded premises, and obtained from Farmer the money to pay the note. Farmer relied on his paper title. The defendants appealed. The other facts are stated in the opinion.

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

There was a judgment in this case in February, 1869, dismissing the action as to the defendants Robert 0.

0 The facts, so far as they are material to the decision, are stated in the opinion; but it may he added that the action was instituted professedly for the purpose of relieving the County of Plumas from the operation of the Act of March 30th, 1868, known as the Bond Act (Stats. 1867-8, p. 630). The decision in the Court below having been adverse, the plaintiff appealed.

<p>Half the Common Property Left by Deceased Husband Goes to Widow Absolutely.—Where a husband dies, one half of the common property vests in the surviving wife, unaffected by any testamentary disposition he may have attempted to make of it.</p> <p>Will of Common Property—Widow’s Eights. — Where a husband, having only common property, left a will devising all his estate to his wife for life, and after her death to be equally divided between the children; held, that she was entitled to one half of the property absolutely in her own right, and to a life estate in the other half under the will.</p> <p>Construction of Wills—Devises Affecting Wife’s Half of Common Property.—A purpose by a husband to attempt the disposition by will of the wife’s half of the common property is not to be readily inferred, and especially not where the words employed may have their fair and natural import by applying them only to that moiety of which he has the testamentary disposition.</p>

<p>Appeal from the District Court of the Fourth Judicial District, City and County of San Francisco.</p> <p>The plaintiff obtained a verdict and judgment for five thousand dollars, and the defendant appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

This was a suit in equity to compel the defendants to convey to the plaintiff an undivided one half interest in two parcels of land—one known as the Geyser Springs tract and the other as the Hieassio Rancho—upon an alleged agreement by the defendant, Joel S. Polack, to so convey.

<p>Jurisdiction op State Courts.—State Courts have concurrent jurisdiction of cases of action cognizable in admiralty where only a common law remedy is sought.</p> <p>Liability op Common Carrier.—A common carrier is not only responsible for negligence but is an insurer against any loss not occasioned by act of God, the public enemies, or the fault of the party suffering the loss.</p> <p>Idem—Burden op P&oop.—When loss occurs, the burden of proof is upon. the carrier to show that it resulted from one or the other of these excepted cases.</p> <p>Liability por Damage to Cargo op Vessel.—Where the cargo of a vessel is damaged in consequence of an accident which results from the falling of the tide, unless it appear that the vessel could not have been so moored as to prevent it being left aground, the owner of the vessel is liable for the damage.</p>

On the 12th of October, 1869, Strahle & Hughes leased certain billiard tables to McEwen for one year, under a writ-' ten agreement that he should pay them a monthly rent óf forty-three dollars and eighty-four cents, and at the end of the year should have the right to purchase the property for the sum of five dollars. On the 12th day of July, 1870, McEwen sold the tables to one Otto, informing him that fifty-three dollars and eighty-seven cents of the rent rer mained unpaid.

<p>Water Rights—Judgment Consistent with Verdict.—H. constructed a water-ditch, hy which he appropriated three hundred inches of water from a running stream, hut not all of the stream. B. appropriated the remainder'of the water. Subsequently H. made a new ditch, appropriating water from the same stream. In a suit to enjoin B. from interfering with H. in the use of the water, H. obtained a verdict that the second ditch did not diminish the quantity appropriated hy B., and judgment was rendered enjoining K. from disturbing H. in the use of three hundred inches of water. Held, that the judgment was consistent with the verdict and with justice.</p>

This was an action to recover the one half of eighteen hundred and ninety-seven sheep, being a lot of seven hundred and fifty claimed to have been mortgaged by plaintiff to defendant on May 30th, 1866, and their increase up to the commencement of the suit in October, 1869; and in default of such sheep, for the sum of three thousand seven hundred and ninety-four dollars.

This was an action upon an alleged contract between the parties, entered into June 21st, 1867, by which the defendants agreed to build a dam across the Tuolumne River, about a mile and a half above the Town of La Grange, sufficiently high to cause the water of the river to flow in ordinary requirements in the ditch owned by plaintiffs—said dam to be completed in the year 1867, or as soon thereafter as practicable, and guaranteed to stand five years after completion; in…

<p>Authority of District Courts as to Certiorari.—The District Courts and the Judges of those Courts have authority to issue the writ of certiorari. The amendments to the Constitution do not affect the question.</p> <p>Proceedings of Supervisors subject of Review.—The proceedings of a Board of Supervisors, in laying out a highway, involved the exercise of judicial functions in the sense of rendering such proceedings the subject of review through the instrumentality of a writ of certiorari.</p> <p>Judicial Discretion as to Certiorari.—The granting or refusal of a writ of certiorari for the purpose of reviewing the action of a Board of Supervisors, is within the sound discretion of the Court, having due regard to public convenience.</p> <p>Certiorari Barred by the Lapse of a Tear.—Unless circumstances of an extraordinary character be shown to have intervened, the remedy through a writ of certiorari should be held to be barred by the lapse of one year.</p> <p>Expenditures of Public Money to be Considered.—The Board of Supervisors of Marin County made an order opening a highway, and, under the belief that the proceedings were final, considerable sums of the public moneys were expended in improving the road. Held, that parties injured by the road, who failed to complain for more than a year after the order was made, should be remitted to their ordinary remedies.</p>

Appeal Rom the District Court of the Third Judicial District, Alameda County. This was an action to quiet title to certain lands in Oakland Township, Alameda County. The defendants Day, Palmer, Bradley, Haswell, McLean, and Hardy, disclaimed. To the answer of The Central Land Company, setting up the contract between Brown and wife and Taylor, the plaintiffs demurred. The demurrer having been sustained, and defendant declining to amend, there was a judgment for plaintiffs.

The complaint alleges that the plaintiff and defendant own a tract of land in common; that the plaintiff desires a partition, but the partition cannot be made without prejudice to the rights of the parties; that the defendant purchased his interest from the plaintiff, and that part of the purchase money remains unpaid; wherefore, he prays that the defendant’s interest be sold to pay the debt.

<p>Filing Undertaking on Appeal.—An undertaking on appeal must be filed within five days after the notice of appeal is filed.</p> <p>Notice and Undertaking on Appeal.—The Supreme Court has no authority to relieve a party from the consequences of a failure to comply with the statute in relation to the service and filing of notices and undertakings on appeal. The statute of 1861 applies only to insufficiencies in point of mere form of such notices and undertakings.</p> <p>Per RHODES, C. J., CROCKETT, J., concurring:</p> <p>Contempt oe Court.—An order of Court adjudging a party guilty of contempt is not appealable.</p>

<p>Appeal from the District Court of the Fifth Judicial District, San Joaquin County.</p> <p>The complaint in this case, after setting forth facts entitling him to judgment at law against the defendant, prayed for an accounting that defendant might be adjudged to pay to plaintiff, in gold coin, what might appear on such accounting to he due, and for general relief. To this defendant demurred, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer being overruled, and an answer put in, there was a trial before the Court, and a judgment rendered on November 18th, 1868, in favor of plaintiff, for the sum of one thousand six hundred and thirteen dollars and seventy cents, and interest at the rate of ten per cent per annum on nine hundred and thirteen dollars and seventy cents thereof from November 18th, 1863, and on seven hundred dollars thereof from July 1st, 1864—in all two thousand three hundred and seventy-six dollars, in gold coin—the judgment to draw interest at seven per cent per annum. Findings were filed sustaining the judgment. The defendant moved for a new trial, which was denied, and he then took this appeal from the judgment.</p>

This was an action of ejectment for an undivided fourth part of a tract of about eighty acres of land in the City and County of San Francisco. The suit was originally commenced in the name of William A. Quarles, Administrator of the Estate of Thomas B. Hope; but afterwards, Soule being appointed administrator in his place, he was substituted in this case. The defendants embraced about seventeen persons well known, and a great number of fictitious names, alleged to be unknown.

Letters of administration upon the estate of the deceased were issued to William A. Quarles, Public Administrator of the City and County of San Francisco, in Hovember, 1868. In April, 1871, he filed his account, in which, among other things, there was a charge of one thousand dollars in favor of his attorney in settlement of the estate.

The facts, sufficient for an understanding of the points decided, are stated in the opinion. The conclusions of law and judgment, rendered in December, 1868, were to the effect that plaintiff should recover two hundred and seventy-four dollars, the deterioration in value of the stock between the time of the demand by plaintiff and the trial, and for a transfer of the stock. The defendant appealed.

The Court below, on the trial of this action, found that the title of the land involved passed from the United States, by virtue of a patent dated May 20th, 1867, to the defendant Thompson and his associates, and that they were the legal owners thereof; that the Act of Congress of March 3d, 1863, granting the right of preemption to certain purchasers on the Suscol Banch took from the State of California all power, right, or authority to sell or dispose of the said land; and…

<p>Appeal from the District Court of the Fourth Judicial District, City and County of San Francisco.</p> <p>This was an action of ejectment for a tract of about twelve acres of land, known as the Hutton Tract, in the City and County of San Francisco. The suit was originally commenced in the name of Edwin Phelps, but an affidavit having been filed by him to the effect that he had transferred his interest to Charlotte A. Phelps, she was, on motion, substituted as plaintiff in his place.</p> <p>The plaintiff claimed that her husband, Abner Phelps, from whom she deraigned title through Edwin, had been in adverse possession of the land from 1853 to 1863. The defendants, who claimed through various mesne conveyances from Captain J. F. Hutton and Agostin Haraszthy, among other defenses, denied Phelps’ possession, and set up possession in said Hutton and his tenants.</p> <p>In the course of the trial it appeared that in 1860 there was no one living upon the property, but that the fences placed there by Captain Hutton were in good order, and that Abner Phelps, who lived upon an adjoining tract of land, had several cows pasturing upon this. J. F. Hutton, Jr., being upon the witness stand on behalf of defendants, testified that in that year he returned from the east, shortly after Captain Hutton, his father’s, death; that he went out to look at the land; that he found the fences up, and several cows of Abner Phelps’ on it; that he crossed the tract, and was about to climb over the fence and go to Phelps’ house when Abner Phelps came up, and a conversation took place in reference to the possession of the land, one being on one side of the fence and the other on the other side. Witness was then asked the question, “ What then took place between you and Abner Phelps in conversation?” Plaintiff objected, on the ground that the evidence would be irrelevant, immaterial, and incompetent, and that no foundation had been laid for the conclusion that defendants were connected with the Hutton claim. The objection was overruled, and the plaintiff excepted. The witness then testified that Phelps said that the land belonged to Captain Hutton; that he had made an arrangement with Captain Hutton to hold possession for him; and that he would take his cattle out if desired, but witness replied there was no occasion.</p> <p>It also appeared in evidence on the part of defendant that from 1853 to 1857, Mr. and Mrs. Bach were in possession, living upon and keeping a milk ranch upon the tract; that they entered under and paid rent to Captain Hutton; and that they served Phelps with milk. Abner Phelps being interrogated by plaintiff as to these facts, testified that he allowed the Bachs to live on the tract, and that the milk he received was in the way of rent. To rebut his evidence, Mrs. Pfoff, formerly Mrs. Bach, was called by defendants, and testified that Phelps agreed to pay cash for all the milk he got; and that, though he was often solicited by .them, both before and after they left the Hutton Tract, he never would pay, or give them satisfaction; but never mentioned anything about rent, or pretended to them that they were, or ever had been, his tenants. Plaintiff then offered to recall Abner Phelps, for the purpose of denying the testimony of Mrs. Pfoff; that he was to pay cash for the milk furnished him. The Court refused to permit the witness to be recalled for that purpose, on the ground that it would be going into plaintiff’s case anew. Plaintiff excepted.</p> <p>There having been a judgment for defendants, and a motion for a new trial denied, plaintiff appealed from the judgment and order.</p>

The facts are stated in the opinion of the Court. The spring therein referred to is situated on the hillside north of the Town of San Eafael, and is usually known as the San Eafael or Dixon Spring. The defendant appealed.

<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.</p>

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

The parties owned adjoining tracts of land, and the controversy was as to the location of the boundary line between them.

<p>Appeal from the District" Court of the Fifteenth Judicial District, Contra Costa County.</p> <p>This was an action of ejectment originally commenced in the District Court for the Seventh Judicial District, in and for Solano County, to recover a portion of the Suscol Pancho. It was afterwards dismissed as to the defendants Ellis, Cyrus CWilson, and John Wilson, and judgment was taken by consent against defendants Savory and Thompson. The defendant Pierce, in his answer, besides pleading the general issue and plaintiff Hickson’s want of interest, referred to and included, by way of cross-complaint, a bill for equitable relief in reference to the same land, which he had previously filed in the Fifteenth District Court for the City and County of San Francisco.</p> <p>While the case was in this position the Judge of the Seventh District Court caused an order to be entered to the effect that he was disqualified from acting in it, and changing the venue to the Fifteenth District Court for Contra Costa County, where it was tried, and the judgment for plaintiffs against defendants rendered, and motion for new trial denied, as stated in the opinion. Defendants appealed.</p>

<p>Mining Law-^-Extension of Plume on One’s own Claim not a Nuisance.—Where defendants owned and possessed a hydraulic claim on Dutch Ravine, into which their flume emptied, and plaintiff, being the owner of a claim below, dug a ditch, commencing on defendants’ claim but below their flume, for the purpose of appropriating the water discharged therefrom, and thereupon defendants’ extended their flume further down on their own claim but so as to prevent such appropriation by plaintiff: held, that defendants’ had a right to such extension, though there might be a question as to whether it served any useful purpose or not, and that it could not be abated by plaintiff as a nuisance.</p> <p>Extent of Right of Possessor of Mining Claim. — The owner and possessor of a mining claim on public land has a right to prevent any subsequent comer from erecting or constructing any superstructure, cut, or ditch on his claim, unless the right to construct the same is given by some mining custom or regulation.</p> <p>Character of Possession of Mining Claims. — The character of the possession necessary to work mining claims will vary with the nature of the mines, the mode adopted in working them, and, perhaps, with the char- „ acter of the country.</p> <p>Presumption as to TJse of Entire Mining Claim.—If parties are allowed by mining regulations to include within their claim land outside of that which they expect to work, it will be presumed, in the absence of proof to the contrary, that it is for the convenience of working the claims, and that its possession is necessary.</p> <p>Right oe Owner to Evert Portion oe Mining Claim.—Evidence that a portion of a mining claim is not valuable for mining purposes is not admissible, on general principles, to prove that the owner of the claim has no right to hold such portion.</p>

Dr. E. T. Bale, who was a grantee from the Mexican Government of a rancho in Napa Valley, called Carne Humana, or Coljolwanoc, died in 1849, leaving a will in which there is this clause: “Para mi hija Lolita [Isidora]. El molino de harina y todo el terreno, etc., que pertinece a dicho molino, media legua, mas o menos.” [To my daughter Lolita.

This was an action to set aside a deed made by the defendant Woods, the husband of the plaintiff', to the defendant Whitney. The property mentioned is a lot of ground, with improvements, in San Francisco. It was purchased for nine hundred dollars of one L. W. Fisher, in June, 1853, and at the instance of the husband the deed was made directly to the plaintiff. It was in terms a bargain and sale deed, reciting the consideration paid..

This was an action of ejectment for a lot in the City of Los Angeles, alleged to belong to the plaintiff, as of her separate property. It was tried before a jury, and resulted in a verdict and judgment' for plaintiff. The facts bearing upon the points decided are stated in the opinion. Plaintiff appealed.

This was an action to recover the sum of three thousand dollars, the contract price for building a mill, alleged to be due from defendants as a mining partnership, doing business at Grass Valley, Nevada County, under the firm name and style of the New York Hill Mining Company.

This was an action of ejectment for three hundred and sixty acres of land, a portion of the San Pablo Rancho, in Contra Costa County. Both parties claimed under Joaquin G. Castro, in whose name the rancho was finally confirmed by the United States on February 24th, 1858, and final survey approved August 17th, 1864.

<p>Appeal from the District Court of the Twelfth Judicial District, City and County of San Francisco..</p> <p>This was an action originally commenced July 5th, 1857, by Charles B. Polhemus and George W. P. Bissell, composing the firm of Alsop & Co., to foreclose a mortgage execu-' ted in 1854 on certain real estate in the City of San Francisco, by William M. Carpenter to Reuben Clark and James George, to secure the payment of a note for thirty thousand dollars, with interest at the rate of two and one half per cent per month, payable in six months, or in six or twelve months thereafter, at the option of the maker, to be signified in writing within five months. This note and mortgage were assigned by Clark and George to the firm of Alsop & Co.; and at the time of the commencement-of the action there was allowed to be due upon it fifteen thousand dollars, with interest thereon from November 16th, 1855, at two and one half per cent per month.</p> <p>The defendant Treadwell, who was the only one that answered, set up that the assignment to Alsop & Co. was made to defraud the creditors of Clark and George; that it was pretended to be made as a security for the repayment of twelve thousand six hundred and nineteen dollars and sixty-five cents borrowed of plaintiffs by Clark and George; that this sum and interest had long before been repaid; that on February 1st, 1855, Carpenter conveyed to Clark and George the mortgaged premises and other property, in full payment and satisfaction of the mortgage debt and interest; that after Clark and George so acquired the fee, Treadwell recovered a judgment against them for three thousand six hundred dollars, docketed March 26th, 1857, under which he subjected the mortgaged premises to sale, and bid them off for two thousand four hundred dollars, and received the Sheriff’s deed October 30th, 1857; that after the conveyance by Carpenter to Clark and George plaintiffs entered into the receipt of the rents, and had received and converted to their own use all the rents subsequent to Treadwell’s purchase at Sheriff’s sale on April 28th, 1857, amounting at the time of answer to ten thousand dollars. Defendant prayed that the mortgage, should be declared satisfied; that if anything should be found due plaintiffs, chargeable on the land, he should be let into possession upon paying it; that the rents received by plaintiffs since April 28th, 1857, should be ascertained, and they be decreed to pay them to him before a foreclosure, or out of the proceeds of a foreclosure sale; and for general relief.</p> <p>The cause was referred to E. W. F. Sloan, who, on March 22d, 1859, reported a judgment that plaintiffs should pay Treadwell the sum of eight thousand one hundred and twenty dollars and fifty-seven cents, and turn over to him the possession of the mortgaged premises. From the judgment entered upon this report the plaintiffs appealed, and at the April Term, 1862, the judgment was reversed and a new-trial ordered. In accordance with the intimations of the Supreme Court, contained in their opinion, Treadwell soon afterwards commenced a separate action against Polhemus, as survivor of the firm of Alsop & Co., and his tenants, to recover the premises and the value of their use and occupation from the time of his purchase, which then amounted, as alleged, to upwards of fifty thousand dollars. After the trial of this ejectment case had commenced, on July 29th, 1863, the parties entered into a stipulation, by the terms of which it was agreed that the ejectment suit should drop; that the present foreclosure suit should proceed to trial; that when tried an account should be taken of the rents received by plaintiff’s after April 28th, 1857, certain disbursements agreed upon deducted, and interest cast on the residue of the rents, from the time received, at two per cent per month with annual rests, or, in other words, compounding annually; that the amount of rents and interest thus ascertained was to be deducted from the amount for which the plaintiffs might at the trial establish a. lien on the mortgaged premises as against Treadwell, and the plaintiffs to have a decree of foreclosure only for such balance; but if the amount of plaintiffs’ lien should prove less than the amount of rents and interest, it was to be deducted and Treadwell to have judgment for the residue, or for the whole amount of rents and interest if plaintiffs failed to establish any lien as against him. This stipulation was filed and made a rule of Court in this case.</p> <p>Afterwards plaintiff, apparently finding the stipulation unfavorable, made several attempts to dismiss his action; and, among other proceedings, instituted two mandamus suits—one against the Clerk, and one against the Judge, to compel them to enter a dismissal. These actions will be found reported in 28 Cal. 166, and 29 Cal. 264. On account of them, the trial of the foreclosure suit was delayed until the latter end of 1867; and on January 2d, 1868, the Court below announced its decision, that judgment be entered for defendant, but without costs. The defendant, in the meanwhile, had requested written findings; and on February 14th, 1868, the following were filed:</p> <p>“ In this cause, the defendant Treadwell’s counsel having requested findings by the Court in writing, I now file the same, as follows:-</p> <p>“ FINDINGS OF FACTS.</p> <p>“Under the pleadings and proof, and under the stipulation of the respective parties, dated July 29th, 1863, filed December 9th, 1863, and entered thereafter, as an order of Court in the cause, on the nineteenth day of this same month, I do not find any balance or amount for which the plaintiff has a lien on the mortgaged premises, in the complaint described, as against the defendant Treadwell, after deducting therefrom the rents received from said premises (less amounts paid for repairs, taxes, improvements, and fortifying the title), from and after April 28th, 1857, the date of the said Treadwell’s, purchase thereof at Sheriff’s sale, together with interest on said items of rent, at the monthly fate, and with the annual rests in computing the same, provided for in said stipulation. . if or do I find the amount of said rents and interest thereon so to be deducted, or any part, thereof, is not required to satisfy the amount which otherwise, and but for said stipulation, would have been a lien on said mortgaged premises.</p> <p>“ And as a conclusion of law therefrom, I find that neither the plaintiff is entitled to a decree of foreclosure against the lands in the complaint described, nor is the defendant Treadwell entitled to a judgment or decree for any amount whatever against the plaintiff. And it is ordered that neither party recover costs against the other.”</p> <p>The defendant excepted to the above as findings, and requested the defects in particulars pointed out by him to be corrected and remedied; all of which the Court below refused. Defendant afterwards filed and served Ms notice of, and statement on, motion for new trial, as stated in the opinion, which, being overruled, defendant Treadwell appealed from the order and the judgment.</p>

This was an action of ejectment for a lot in the City and County of San Francisco. On December 17th, 1869, findings were filed and judgment ordered to be entered in favor of defendant Coleman. A few days afterwards, plaintiffs moved on the same findings for judgment the other way; and on December 29th, 1869, the former judgment was vacated and judgment for plaintiffs rendered.

This was an action of ejectment for a lot on the southeast corner of Fifth and K streets, in the City of Sacramento. The facts of the claims of the respective parties are set forth in the opinion; but it may be added that the deed from Sutter, Jr., by Burnett to Holman, was a bargain and sale deed of all the right, title, and interest of the grantor, with a warranty against the claims of all persons whatsoever.

<p>Judicial IToticb or Terms or District Courts.—The Supreme Court will take judicial notice of the regular terms of the District Courts as fixed by statute, and also of the fact that they are authorized by statute (Stats. 1863-4, p. 118). to adjourn any general term in one county within their districts to a day certain within the time prescribed for the commencement of the next term in the same county, provided such special term shall not interfere with any general term in such district.</p> <p>Adjourned Term oe District Court.—Where the general February Term of the Sixth District Court for Sacramento County must have commenced on February first and concluded prior to March fifteenth; and the general March Term of the same Court for Tolo County must have commenced on March fifteenth and concluded prior to April fifth; held, that under and by compliance with the Act of 1864, providing for adjourned terms' (Stats. 1863-4, p. 118), such Court could hold a legal session in Sacramento County after March fifteenth, and up to April fifth.</p> <p>Presumption in Favor oe Legality oe 'Sessions oe District Court.— Where it appeared from a record on appeal from a District Court for a certain county that the trial took place on a day subsequent to the regular general term in such county; held, that as by compliance with the statute of 1864, relative to adjourned terms (Stats. 1863-4, p. 118), such Court could be legally held at such time, it would be presumed, in the absence of any showing to the contrary, that it was legally held.</p> <p>Vesting oe Title under Deed upon Condition Precedent.—The instrument executed by John A. Sutter, Jr., to Brannan, Bruce, Graham, and Wetzlar, on June 20th, 1860, in reference to Sacramento and other property, was a deed upon condition precedent; and upon the performance of that condition, which was the payment of the purchase money, the title to the lands described vested in grantees.</p> <p>Ejectment Founded upon Title.—Where a plaintiff relies upon title as the basis of his right to recover possession, and fails to establish his title, judgment is properly rendered against him.</p>

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

Upon an original application to the Supreme Court a writ of certiorari was granted, upon which the record of the proceedings of the County Court of the City and County of San Francisco in this case was brought up for review. The other facts are stated in the opinion of the Court.

<p>United States Internal Kevenue Stamps—Dueey v. Hobson, 40 Cal. 240, Aeeirmed—On the point that the omission of a United States internal revenue stamp cannot be set up as a defense in a State Court to an action on contract.</p> <p>Reliance upon. Authority afterwards Overruled — Opportunity to make other Points.—Where a single defense was interposed to an action, and such defense was supported by a decision of the Supreme Court, which, however, was afterwards reversed; held, that judgment should not be rendered on the record, but the cause remanded for further proceedings.</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.</p>

The plaintiff recovered judgment in the Court below for one thousand dollars. Defendant moved for a new trial, which being refused, he took this appeal from the judgment and order.

This was an action of ejectment for twenty town lots in the City of Sacramento. As a portion of his deraignment of title to some of them, the plaintiff introduced a deed from Roland Gelston, by bis attorney in fact, Joseph Clough, to James C. Zabriskie. It was the power of attorney under which Clough acted that first engages the attention of the Court in the following opinion. From Zabriskie, the title passed to P. B. Cornwall, and from him to David B. Milne.

The plaintiff and defendant were married, and lived together fifteen months. The defendant worked at his trade as carpenter, earning from four to five dollars per day, but furnished nothing for the support of the family. The plaintiff owned a house and' three acres óf land, upon which the family lived, and by keeping hoarders and selling milk and eggs she supported the family.

<p>Legislative Power to Appropriate Municipal Funds.—The power of the Legislature to appropriate the moneys of municipal corporations in payment of claims, ascertained by it to be equitably due to individuals, though such claims be not enforceable in the Courts, depends largely upon the legislative conscience, and will not be interfered with by the judicial department, unless in exceptional cases.</p> <p>Liability of San Francisco for Street Work under the Patrick Creighton Belief Act. — The circumstance that the contract, under which Patrick Creighton did certain street work in San Francisco, expressly provided that the city should in no event be liable for any portion ■ of the expenses thereof: held, not to affect or in any manner invalidate the special Act subsequently passed by the Legislature (Stats. 1869-70, p. 309), requiring the city to pay him.</p>

■ The southerly line of the land purchased by the defendant, Boots, of Rafael Alviso, and which it was stipulated in the partition agreement he was to retain in severalty, appears to have been run and-surveyed, and should have been described in courses and distances, as follows: Beginning at a post marked “B. Ho. l,”.in the center of the Coyote Creek, from which a sycamore tree, three feet in diameter, bears north 63° 15' west, one chain distant, and running thence south 89°…

<p>Appeal from the District Court of the Twelfth Judicial District, City and County of San Francisco.</p> <p>This was an action to restrain the defendant Brown from prosecuting a forcible entry case against the defendants Perry and Ewald, in the County Court of the City and County of San Francisco. That suit, as appears, was originally commenced in 1860, before a Justice of the Peace. Being there decided in favor of the defendants therein, it was appealed to the County Court, where it was again decided in favor of the same parties. Brown subsequently took an appeal to the Supreme Court, where the cause remained unmoved from 1861 till 1869, when certain defects in the appeal papers were remedied upon an affidavit made by one A. Williams, to the effect that he had made certain clerical errors in the indorsements of the admission of service of the notice of appeal; and, the cause being then brought on for hearing before the Supreme Court, the judgment of the County Court was reversed and the cause remanded for a new- trial.</p> <p>In the meanwhile, the plaintiffs McCreery and Sullivan purchased the ground in controversy, consisting of about twenty-five acres of land in the City and County of San Francisco, from Perry and Edwards. In their complaint they allege that their grantors were in the actual possession of the land and transferred it to them; that Brown never had any right, title, interest, or possession; that he had no record title whatever; that his claim was fraudulent, and made to extort money; that, as a matter of fact, he had abandoned his forcible entry case, and claim to the premises, immediately after taking the appeal to the Supreme Court; that plaintiffs, though previous to their purchase they had had the title of the land searched, were ignorant of any claim by Brown; that the papers on appeal in said suit were insufficient to sustain the appeal taken; that after-wards, as the land became valuable, the defendants Brown and Perry confederated and combined together to defraud plaintiffs, and, in pursuance of their plans, induced Williams to make the affidavit before referred to, and caused the record to be altered so that the appeal might be heard; that the record was thereby falsified and made to state what was not the truth; that the Court was imposed upon by said affidavit and alterations, all of which were done without any notice to or any knowledge of the plaintiffs; that the appeal in the Supreme Court, not being opposed, but fraudulently connived at by Perry, resulted in a reversal of the judgment and a sending of it back for the new trial, which they prayed to restrain. They further alleged that Brown was irresponsible; that Perry and Ewald would not defend said action; and that .if it should be allowed to go to judgment, and Brown thereby and by means of his frauds obtain possession of the premises, it would require tedious and expensive proceedings to evict him.</p> <p>. Upon the complaint being filed, and on motion of plaintiffs, an injunction was issued and served with the summons, requiring the defendant Brown, until further order, to desist from further prosecuting the forcible entry suit in the County Court. Afterwards Brown filed his answer, specifically denying each and every material allegation of the complaint, and then moved to dissolve the injunction, supporting his motion by affidavits of A. Williams, his former attorney, and M. A. Wheaton, his then attorney, in the forcible entry case, in addition to his own sworn answer.</p> <p>On a hearing, the motion to dissolve the injunction was denied; and the defendant Brown appealed from the order.</p>

This was an action of ejectment for a lot known as .the Pear Garden of Lorenzo Soto, in the old City of San Diego. Defendant Hollister disclaimed any interest. Defendant Wallace filed a general denial, and set up the Statute of Limitations. There was a judgment for defendant Wallace; and a motion for new trial having been overruled, plaintiff appealed.

This action was tried by the Court below without a jury, and resulted in a judgment for plaintiff for two thousand five hundred dollars, as prayed in his complaint. A motion for a new trial having been overruled, defendant appealed from the judgment and order. The facts are stated in the opinion.

<p>Jurisdiction as to Maritime Contract.—Where materials and supplies are furnished a domestic vessel at her home port, under a contract with the master of the vessel, the United States Courts have exclusive original jurisdiction of proceedings in rem to enforce a lien against the vessel for the same.</p> <p>State Legislation on Admiralty Proceedings.—The statute of this State, so far as it attempts to authorize proceedings in rem for causes of action cognizable in the admiralty, is unconstitutional.</p>

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

The mining ground in controversy is situated at Young’s Hill, in Yuba County. The award and judgment in favor of plaintiffs was for the possession of the ground and one thousand six hundred dollars damages, for gold extracted and taken away by defendants.

The facts are stated in the opinions. There having been a judgment in the Court below in favor of defendants, the plaintiffs appealed.

John Eains died on the 17th day of November, 1862, and E. K. Dunlap was, on the 5th day of January, 1863, appointed the administrator of his estate. The administrator first published notice to the creditors of deceased on the 28th day of February, 1863. The notes fell due September 14th, 1863. This action was commenced on the 29th day of October, 1864. The Court below allowed the plaintiff one thousand dollars for counsel fees in foreclosing the mortgage.

This was an action brought in accordance with section seven of the amendatory Act of February 1st, 1870 (Stats. 1869-70, p. 41), in reference to the collection of assessments for the “Second Street Cut” in San Francisco.

This was an action to recover five thousand dollars, insurance upon the life of Paul Scoles, the plaintiff’s deceased husband. It was tried before a jury, and resulted in a verdict and judgment for plaintiff, as prayed by her. A motion for a new trial having been denied, defendant appealed from the judgment and order.

It appears from the findings in this case, that on December 4th, 1869, plaintiff commenced a suit, to recover one thousand four hundred and sixty-five dollars, against Henry McCann, in the Sixth District Court, Sacramento County, and issued a writ of attachment to the Sheriff of the City and County of San Francisco, which was duly served, by way of garnishment, upon the Union Insurance Company.

The defendant was convicted of the crime of murder in the first degree. He moved for a ne.w trial, the motion was denied, and he appealed. The other facts are stated in the opinion of the Court.

<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 opinions.</p>

This was an action to quiet the plaintiff’s alleged title to the Rancho “Moro y Cayucos,” in San Luis Obispo County, to set aside a deed thereto made on November 24th, 1857, by James McKinlay to his wife Carmen Amesti de McKinlay, and for general relief.

This was an action of ejectment, commenced February 12th, 1866, to recover possession of the Rancho “ Los Corralitos,” in Santa Cruz County. The complaint did not aver any damages, and named sixty-seven defendants, and averred that the true names of twenty-eight of them, sued as John Doe, Richard Roe, and others, were unknown to plaintiffs, and prayed that, when ascertained, they might be inserted with proper and apt words to charge them and each of them.

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

This was an action brought for the purpose of having a certain tract of eight leagues of land, called the Rancho “ Caslamayomi,” in Lake County, adjudged to be held by the defendant in trust for the plaintiffs, to compel a conveyance thereof to them, and to enjoin defendant from setting up any title thereto adverse to the plaintiffs.

The Court below gave judgment in favor of Poppe in the ejectment suit, and dismissed Athearn’s hill in equity against Poppe. Athearn appealed. The other facts are stated in the opinion delivered by Mr. Justice Crockett, which is here published.

Ejectment for part of lot number six, in block number six, in the Town of Colusa. The defendant recovered judgment in the Court below, and the plaintiff appealed. The other facts are stated in the opinion, and in Yates v. Smith, 40 Cal. 662; and same case, 38 Cal. 60. The cases of Treadway v. Semple, 28 Cal. 652, and Semple v. Wright, 82 Cal. 659, throw light on the litigation.

The defendant was arrested in February, 1871, for the murder, in Alameda County, of Zelotes Reed, and held to answer. At the next term of the County Court of that county the Grand Jury investigated the charge, and ignored the bill.

<p>“Mining Customs” as Against Written “District Mining Laws.”— In an action for possession of a mining claim, where plaintiff relied upon a location under certain written rules adopted hy the miners of the district some five years before, which did not require the posting of notices upon the claim at the time of location; and defendant offered to prove that there was a custom in the district requiring the posting of such notices; and the Court excluded the evidence on the ground that the written rules superseded any custom; held, that the exclusion of such evidence was error.</p> <p>Observed “Mining Customs” Prevail over Disregarded “District Mining Laws.”—Section six hundred and twenty-one of the Practice Act makes no distinction between the effect of a “ custom ” or “ usage,” the proof of which must rest in parol, and a “regulation” which may be adopted at a miners’ meeting and embodied in a written local law; and a custom reasonable in itself, and generally observed, will prevail as against a written mining law fallen into disuse.</p> <p>“District Mining Laws”—What Gives them Validity.—The rules adopted by the miners of a district acquire validity not from their mere enactment, but from the customary obedience and acquiescence of the miners following the enactment.</p> <p>Existence oe “District Mining Law” a Question oe Fact.—As the “mining law ” of a district must not only be established but in force, it is void whenever it falls into disuse or is generally disregarded; and the question whether it is in force at a given time is one of fact for the jury.</p>

The facts will be understood from the opinion. The defendant appealed from an order denying a motion to settle his statement on motion for new trial.

This was a proceeding on a writ of certiorari issued out of the Supreme Court to the Board of Supervisors' of the City' and County of San Francisco, for the purpose of reviewing its action on a street assessment appeal. It appears that on January 6th, 1871, the Superintendent of Streets of that city and county made and issued an assessment for the grading of Townsend street, between Second and Third streets.

This was an action upon a promissory note for three thousand dollars, made in the name of “ Howell & Haynes ” to R. M. Turner, and by Turner indorsed to plaintiffs. Howell and Turner made default. Haynes answered separately, setting up, among other things, that “ Howell & Haynes ” was a partnership formed for the sole and exclusive purpose of mining, and that Howell had given the note without Haynes’ knowledge or authority, and in fraud of his rights.

The appeal was taken frony the judgment, from “ the order allowing the plaintiff to take a nonsuit, and also from the order refusing to allow the defendants to make proof of the facts set up in defendants’ cross-complaint, and from all the orders and errors specified,” etc. The facts are stated in the opinion. '

Action to enjoin the sale of land under an execution. In 1867 the plaintiff, being the owner in fee of a large tract of land, consisting of two thousand five hundred and forty-two acres, made a verbal agreement with one Robinson to sell him a parcel of about one hundred and twenty-five acres, out of the northeast corner of the tract, at two dollars per acre.

<p>Salary of County Clerk of Placer County.—The Act of February 25th, 1858, concerning the office of County Clerk of Placer County (Stats. 1858, p. 29), does not limit the salary of the Clerk to the amount of fees received by him; and if the fees collected for any one month do not amount to the salary to which he is entitled, he can recover the difference from the county.</p> <p>■ Statute Requiring Officers to Pay oyer Pees, Less Salary.— Where a statute concerning the office and fixing the salary of a County Clerk provided that he should collect all official fees, and at the first of every month pay the same over to the County Treasurer, “less his salary for the next preceding month;” and the fees for several months being less than the salary, it was claimed that the salary was only payable out of the collected fees; held, that he was entitled to his full annual salary, and that there was no legislative intention to limit the. salary to the amount of fees received.</p>

The facts are stated in the opinion. There having been a judgment for plaintiff and motion for new trial overruled, defendants appealed from the judgment and order.

<p>Bight of Way by License.—Where a party uses a way over land belonging to another, by agreement with the owner of the land, and the land is sold to a third party without notice of the arrangement as to the right of way, the third party is not bound by the arrangement.</p> <p>Idem.—In order to maintain a right of way, acquired by parol license, as against a purchaser from the one who gave the license, the one claiming such right of way must show a right based on prescription.</p> <p>Same, how Bipenbd into Perfect Title.—The use of a way which began under a parol license, may, by prescription, ripen into a perfect title; but in such case the user must have been exercised under a claim of right for the period prescribed for the Statute of Limitations.</p>