Volume 43 — California Reports

This action was originally commenced in the District Court of the Seventh Judicial District for Solano County, hut was afterwards transferred to ¡Napa County.

The appeal in this case was decided at the October Term, 1871, and is reported in 42 Cal. p. 331. The defendants applied to the Supreme Court for a modification of the judgment. The other facts are stated in the opinion.

<p>Appeal from the District Court of the Fifth Judicial District, County of San Joaquin. '</p> <p>The plaintiff had judgment and the defendant appealed.</p>

The petition represents that on the 26th day of September, 1867, the District Judge, at his chambers, signed a decree in the case of Susan Bennett against the petitioner, in which it was adjudged and decreed that the bonds of matrimony existing between the parties be dissolved; that the petitioner pay to Susan Bennett the sum of five hundred dollars for her costs, and thirty dollars per month for the support of an infant child; that the said Susan have the care and custody…

<p>A correct form of Clerk’s Certificate for dismissal of appeal given and commented upon.</p>

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

<p>Changing Position of Cause on Calendar.—The position of a cause on the calendar will not be changed to a different day from that on which it is set by the Clerk, whether upon stipulation or motion, except for good cause shown.</p>

In an action to enjoin the defendants from using the plaintiffs’ tailrace judgment was rendered for the defendants. The plaintiffs moved for a new trial. The motion was denied, and they appealed from the judgment and from the order denying the motion for a new trial. The other facts are stated in the opinion.

<p>Appeal from the District Court of the Eighth Judicial District, County of Humboldt.</p> <p>The facts are stated in the opinion.</p> <p>The plaintiff had judgment and the defendant appealed.</p>

<p>Appeal from the District Court of the Seventh Judicial District, County of Solano.</p> <p>The plaintiffs had judgment enjoining the sale of certain land, and the defendants appealed.</p>

<p>Status op Citizenship not Conferred by Recent Amendments to the ¡Federal Constitution.—No white person born witbin the limits of the United States and subject to- their juiis.diction, or born without those limits and subsequently naturalized under their laws, owes his status of citizenship to the recent amendments to the Federal Constitution.</p> <p>Purpose op the Fourteenth Amendment.—The pui-pose of the Fourteenth Amendment to the Constitution of the United States was to confer the status of citizenship upon a numerous class of persons domiciled within the limits of the United States who could not be brought within the operation of the naturalization laws because native horn, and whose birth, though native, had at the same time left them without the status of citizenship. Such persons were not white persons, but in the main were of African blood, who had heen held in slavery in this country, or having themselves never been held in slavery, were the native-born descendants of slaves.</p> <p>Privileges and Immunities of Citizenship. —Under the Fourteenth Amendment to the Federal Constitution, the privileges and immunities of citizens of the United States are guaranteed and protected in every State beyond the operation of State laws.</p> <p>The Elective Franchise not an Immunity of. Citizenship. — The elective franchise is not one of the immunities or privileges intended in the first section of the Fourteenth Amendment to the Federal Constitution.</p> <p>Power of State to determine who may Vote not Curtailed.— The mere power of the State to determine the class of inhabitants who may vote within her limits, is not curtailed in the Fourteenth Amendment.</p> <p>Females not made Voters by the Fifteenth Amendment. — The Fifteenth Amendment took away the authority of the State to discriminate against citizens of the United States on account of either race, color, or previous condition of servitude; but the power of exclusion upon all other grounds, including that of sex, remains intact.</p>

<p>Defective Certificate of Clerk.—A Cleric’s certificate which fails to state the amount or character of the judgment, the order or judgment appealed from, the date or fact of service of the notice of appeal, and that the undertaking on appeal is in due form, is insufficient to support a motion to dismiss the appeal under Rule Dour of the Supreme Court.</p>

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

<p>Appeal from the District Court of the Seventh Judicial District, County of Solano.</p> <p>The defendant had judgment, and the plaintiff appealed.</p> <p>The other facts are stated in the opinion.</p>

This was an action of ejectment for a fifty-vara lot at the northeast corner of Montgomery and Lombard streets, in the City of San Francisco. The plaintiff owned an undivided one fourth of the property, but demanded possession of the whole.

<p>Appeal from the District Court of the Twelfth Judicial District, San Mateo County.</p> <p>The notice, referred to in the opinion, was “ to make the following changes in the route and location of the Half-moon Bay and Pescadero Road, to wit: Commencing at the bridge, at-the present crossing of the San Gregorio Creek, near Carter’s Hotel; thence northerly over the most practi cable route for a road, over and across the lands of James Quintín, W. Buckland, G. W. T. Carter, Asa Fletcher, A. Gordon, and Mrs. Thompson, to a point on the Tunitas Creek, near T. F. Potter; thence northerly along the west side of the present location of said road, over the most practicable route across the lands of T. F. Potter, Ganegan, and O’Conner; thence northerly over the most practicable route across the lands of Martin and Delany, Peter Seban, and F. Wella, intersecting the present Hall-moon Bay Koad, at the crossing of the Lobitas Creek.”</p>

<p>Appeal from the County Court of Sonoma County.</p> <p>The Grand Jury found the following indictment against the defendant:</p> <p>“John W. Taggart is accused by the Grand Jury of the County of Sonoma, State of California, by this indictment found the™ 3d day of October, A. I). 1871, of the crime' of burglary, committed as follows: The said John W. Taggart, on the 13th day of July, A. D. 1871, at the county and State aforesaid, at about the hour of nine o’clock in the night-time of said day, with force and arms the house and tenement of "William Withrow, then and there situate, feloniously and burglariously did break and enter with an intent then and in said house and tenement to commit petit larceny—that is to say, with intent to steal, take, and carry away one claw-hammer, worth one dollar; one spokeshave, worth seventy-five cents; one two-foot rule, worth fifty cents; and one monkey-wrench, worth one dollar, of the goods and chattels of William Withrow and John Charlton. And by way of setting out the above burglarious entrance in a different count and in a different form, the said Grand Jury further accuses the said John W. Taggart of entering said house, in the day-time, with intent to steal, committed as follows: The said John W. Taggart, in the said County of Sonoma, on the said 13th day of July, 1871, at about the hour of six o’clock p. m., and in the day-time of said day, the shop and building of William Withrow willfully and maliciously did enter, with intent to commit petit larceny therein—that is to say, with intent to steal, take, and carry away one claw-hammer, worth one dollar; one spokeshave, worth seventy-five cents; one two-foot rule, worth fifty cents; and one monkey-wrench, worth one dollar, of the goods and chattels of William Withrow and John Charlton. And the Grand Jury further say that the two foregoing counts in this indictment are descriptive of one and the same transaction, contrary to the form, force, and effect of the statute,” etc.</p> <p>The defendant demurred to the indictment, the demurrer was sustained, and the plaintiff' appealed.</p>

The trial of this cause in the Court below resulted in a judgment in favor of, and as prayed by, plaintiff—to the effect that the deed to James Bay was a cloud upon the plaintiff’s title; that it was null and void; that it should be delivered up and canceled, and enjoining defendants from asserting any right, title, or interest, under or through it, to Santa Catalina Island. The other facts are stated in the opinion. The defendants appealed from the judgment.

<p>Effect of Decision in the “ Matter of Beale Street, 39 Cal. 495.”—The directions given by the Supreme Court, in its decision on appeal from the County Court of San Francisco in The Matter of Beale Street, 39 Cal. 495, were but the announcement of results to he ultimately reached, and had no reference to the mere procedure to be pursued in the County Court for that purpose; and they did not authorize that Court to itself modify the report of the Commissioners and enter final judgment Jhereon.</p> <p>Changing Grade of Streets in San Francisco—Final Judgment must conform to Final Beport.—Under the statute of March 2Sth, 1868, authorizing the Supervisors of San Francisco to modify or change the grade of streets (Stats. 1867-8, p. 463), the final judgment to he rendered by the County Court must be one rendered in conformity with the report of the Commissioners on file; and when it is ascertained that there are errors in the report they must first be eradicated from it before the Court can proceed to final judgment; nor can any report become the basis of final judgment except it shall first have received the approval and sanction of the Supervisors. e</p> <p>Control by San Francisco Supervisors over Proceedings to Change Grade of Streets.—As, under the statute of March 28th, 1868, for the change of grade of streets in San Francisco (Stats. 1867-8, p. 463), the County Court, before it is authorized to hear objections to the proceedings, must be notified “ that the Board of Supervisors have confirmed the report ” of the Commissioners; and as, if they reject it, it must fail, and without their approval the proceedings must halt, it follows that the Supervisors have an unqualified veto power over the proceedings in this respect—the proceedings being in reality their own and none the less so because carried on through the instrumentality of the County Court.</p> <p>Beport of Commissioners Changing Street Grade in San Francisco to be Approved in all its Parts by Supervisors.—Under the statute for the change of grade of streets in San Francisco (Stats. 1867-8, p. 463), the report of the Commissioners, upon which the judgment of the County Court is to be rendered, as therein provided, must be one which as a whole and in all its parts and details, and, if modified, with all its modifications, has received the approval and confirmation of the Board of Supervisors.</p>

<p>Sole Trader—Finding op “Full Compliance with Statute."—A finding that there was a full compliance by a married woman with the statute of 1862 relating to sole trader (Stats. 1862, p. 108), is equivalent to a finding that she was authorized to carry on the business specified in her own name and on her own account.</p> <p>Management op Husband does not Exempt Sole Trader prom: Liability.—A sole trader cannot claim exemption from liability, as such, on the ground that she permitted her husband to manage and control the business.</p> <p>Sole Trader Act—Construction op Provision against Husband’s Management.—The provision in section three of the Sole Trader Act (Stats. 1862, p. 108,) that “ nothing contained in this Act shall he deemed to authorize a married woman to carry on business in her own name when the same is managed or superintended by her husband,” was intended only for the protection of the creditors of the husband, and to prevent collusion and fraud between husband and wife, but not to shield the wife from her liability as a sole trader.</p> <p>Form ot Judgment Against Sole Trader.—There is no objection to a general judgment against a sole trader on a claim for which she, as such, is liable.</p> <p>Evidence.—Matters of mere inducement do not require strict proof.</p>

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

<p>Eight of One Partner to Purchase Judgment Against Another.— There is no principle of equity which forbids a partner from purchasing, with his own funds, and outside of the partnership business, a judgment, or other evidence of indebtedness against his copartner, or prohibits him from enforcing its collection by a levy upon, and sale of, the interest of the other in the firm assets.</p> <p>Obligations of Partners “Inter Sese” Confined to Pirm Business.— The obligations of copartners inter sese, whatever may be their nature and extent, refer only to the conduct of the business in which the firm is engaged; ^beyond and outside of such business there is no restraint upon, the right of either partner to traffic for his own profit.</p> <p>Old Partner not Entitled to Account of Profits Since Dissolution.—Where McKenzie and Dickinson, bag manufacturers, dissolved partnership, leaving certain assets of the firm in McKenzie’s hands, and afterwards McKenzie purchased, for much less than its face, a judgment against Dickinson, and had it levied upon Dickinson’s interest in the assets, and on the execution sale bought them in on his own account: held, that Dickinson was not entitled to an account of the profits made by McKenzie in the transaction, nor could he attack the sale made to McKenzie.</p>

This was an action for an accounting as between partners after dissolution. It appears that in 1866 the parties went into the coal business in San Francisco, on a capital of five thousand dollars. In 1868 they dissolved, and defendant received all the moneys that were collected.

The defendant was indicted by the Grand Jury of the City and County of San Francisco for the murder of Alexander P. Crittenden, on the evening of November 3d, 1870. The facts of the homicide are briefly, that Crittenden, on the afternoon of that day, left his residence, in San Francisco, and went to Oakland for the purpose of meeting his wife, son, and daughter, who were on their way from the Eastern States.

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

The first three instructions asked by the defendant were as follows: “ 1. A person while in a state of insanity is by law deemed to be incapable of crime. And insanity of the prisoner at the instant of commission of the offense can be established by evidence tending to prove that he was insane at some period before or afterwards. “2. The presumption of law is always prima facie in favor of sanity.

<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>

<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> <p>Defendant appealed.</p>

<p>Appeal from the County Court of Sonoma County.</p> <p>The defendant was convicted of the crime of arson in the second degree.</p> <p>The other facts are stated in the opinion.</p>

<p>This case is reported in 42 Cal. 303.</p> <p>The facts are stated in the opinion. .</p>

- Appeal from the Distinct Court of the Fourteenth Judicial District, Nevada County.

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

The complaint, after setting forth the death of Michael Slattery, and the appointment and qualification of the plaintiff as his administratrix, and the possession of the deceased, and of the plaintiff, as his administratrix, of a portion (some two hundred and twenty acres) of the Blucher Rancho, in Sonoma County, describing it, proceeded to allege that while said plaintiff, and a great many other settlers, possessing other portions of the rancho, were so settled, and had…

The indictment against the' defendaht was as follows: “ Hosea Avila, alias Portuguese Joe, and Catalice Massalina, are accused by the Grand Jury of the County of Placer, in the State of California, by this indictment, of the crime of having for their own gain received certain personal property previously stolen, knowing the same to have been so obtained.

This was an appeal by Margaret Hartman, the daughter of Daniel Utz, deceased, from a decree of the Probate Court, distributing his estate. Her objections to it were, that the children of her deceased sister, Mrs. Harwig, were admitted to share in the estate, and that her own children were declared tenants in common with herself under the will. The other facts are stated in the opinion.

The premises in controversy were, on and prior to the 13th of April, 1869, owned by Thomas Parr, and were standing on the records of Contra Costa County in his name. On that day th$ plaintiffs in this action commenced a suit against Parr for merchandise furnished him, and caused a writ of attachment of the premises to be placed in the hands of the Sheriff.

This was an action to have the defendant adjudged to hold the legal title of one hundred and thirty-seven acres of land in San Joaquin County, acquired under a patent of the United States, in trust for the plaintiff; to • compel him to convey the same to plaintiff; to enjoin defendant from conveying or transferring to any other person; to quiet plaintiff’s title; and for general relief.

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

This was an action of ejectment to recover possession of a .portion of the German Rancho, in Sonoma County. It was originally commenced in the name of Edson Adams as plaintiff, in the Twelfth District Court, but subsequently Platt was substituted as plaintiff in place of Adams, and the cause was transferred for trial to the Court from which this appeal was taken.

<p>This was an application to the Supreme Court for a writ of mandate.</p> <p>The facts are stated in the opinion.</p>

This was one of eight eases, similar in general character, which were submitted and considered together, and known as the “ Solano County Election Cases.” The contestant was the same in all.

On the 16th of March, 1869, the plaintiff commenced an action against F. Crochet upon a demand for five hundred and sixty dollars and sixty-seven cents, and procured an attachment which was placed in the Sheriff’s hands, who thereupon attached two horses, a set of double harness, and a double wagon, and a leasehold interest in a small tract of land. Crochet claimed the horses, harness, and wagon as exempt from execution, and demanded a return of the same.

<p>“ Swill-Milk Ordinance ” oe San Francisco—Constitutionality oe Health Regulations.—The statute of April 25th, 1863, conferring authority upon the Supervisors of San'Francisco “to make all regulations which may be necessary or expedient for the preservation of the public health ” (Stats. 1863, p. 540), was within the constitutional power of the Legislature to enact; and under it the Supervisors had authority to enact the ordinance (No. 730) against feeding cows on still slops, and vending the milk of cows so fed.</p> <p>Alleged Libel on Vendor oe “Swill Milk”—Question oe Wholesomeness oe such Milk.—In an action of libel for charging a person with selling “ swill milk ” and thereby poisoning the people of San Francisco, where it appeared that the alleged libels were only in respect of the unlawful business carried on by plaintiff, in violation of a city ordinance against the vending of the milk of cows fed on still slops, and defendant justified under such ordinance, and there was judgment for defendant: Held, on appeal from the judgment, that the scientific correctness of the determination by the Supervisors of the unwholesomeness of such mjlk was not open to inquiry in the Supreme Court.</p> <p>Penalty eor Act Amounts to Prohibition oe Act.—A city ordinance, duly authorized, imposing a penalty for feeding still slops to cows, and also for vending the milk of cows so fed, amounts to an authoritative prohibition in both respects; and the prohibited act becomes thereby unlawful.</p> <p>No Libel in Truly Charging Carrying on oe Unlaweul Business.— , Where an alleged libel is only in respect to an unlawful business carried on by plaintiff, the action cannot be maintained. The illegality of the 1 business is an answer to the complaint.</p>

The plaintiff deraigned title under a sale by the executors of William A. Woodruff) the original grantee, made by virtue of the following language in Woodruff’s will: “It is my will that my executors shall, as soon after my death as they shall deem prudent, for the best interest of my estate, convert the same, real, personal, and mixed, of which I may ffiie seized or possessed, into money.” The sale was made without having first obtained an order of the Probate Court.

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

The facts, bearing upon the points decided, are stated in the opinion. The plaintiff claimed under a location of a school land warrant upon the property and á patent therefor from the State, and appealed from a judgment of nonsuit.

This was an action commenced on July 9th, 1869, to recover from the County of Alameda the sum of three thousand four hundred and one dollars and eighty-six cents, with interest thereon from June 2d, 1865. The complaint counted on four judgments recovered against the defendant on the last named day, in the County Court of said county, under section fourteen of “An Act concerning roads and highways in the County of Alameda,” approved March 24th, 1862.

<p>Appeal from the District Court of the Sixtéenth Judicial District, Kern County.</p> <p>This was an action for five hundred and sixty-nine dollars and sixty-eight cents on promissory notes and hook account. The defendant answered, denying any greater indebtedness than sixty-nine dollars and sixty-eight cents in the first count, and in the second setting up a counterclaim for five hundred dollars, for bricks made for plaintiffs, and praying that such amount might be allowed as an offset to plaintiffs’ demand.</p> <p>There was testimony tending to show that the plaintiffs, by their agent, George B. Chester, made a contract with defendant to make fifty thousand bricks for them, and that he made them. After considerable testimony had been heard on the subject of the contract, the defendant, being recalled, testified that the contract was not in writing. Plaintiffs then moved to strike out all the testimony in relation to the contract, on the ground that such contract was invalid, under section thirteen of the Statute of Frauds, because it was not in writing. The motion was denied, and plaintiffs excepted.</p> <p>The second instruction, asked by the defendant and given by the Court to the jury, was as follows : “If the jury believe from the evidence that defendant agreed with George B. Chester to make fifty thousand bricks for the sum of five hijpdred dollars, and that George B. Chester was agent of plaintiffs, they will allow the defendant an offset of five hundred dollars.”</p> <p>The Court also gave the following instruction asked by the plaintiffs: “If the jury believe from the evidence that the defendant and George Chester entered into a contract by which the defendant was to make fifty thousand bricks and the plaintiffs were to pay him five hundred dollars therefor, that in order to bind the plaintiffs by such contract then it must be shown that the plaintiffs assented thereto or authorized George Chester to make such a contract in order to bind the plaintiffs thereby.”</p> <p>The trial, being before a jury, resulted in a verdict and judgment in favor of plaintiffs for sixty-nine dollars and sixty-eight cents. Plaintiffs moved for a new trial, assigning as error, among other things, that the evidence was insufficient to justify the verdict, and that the same was against law, but not particularly specifyiñg that the amount of their recovery was too small. The motion having been overruled, plaintiffs appealed from the order.</p>

This was an action to recover damages for breach of a contract, by which defendant agreed to furnish plaintiffs, who were owners of the steamboat “Lark” and her barge, with five hundred tons of grain, as freight, to he transported from Paradise City, in Stanislaus County, to Stockton, at two dollars per ton. A former appeal of the same cause will he found reported in 38 Cal. 659. The material facts, as found by the Court below, are stated in the opinion. Defendant appealed.

This was an action of ejectment, commenced April 13th, 1868, for a lot in the City of Los Angeles. Defendants answered, setting up the Statute of Limitations and adverse possession thereunder since 1856.

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

In August, 1869, the plaintiff in this action brought an action of forcible-entry and detainer against the defendant in this action, to recover possession of a lot in San Francisco.

On the 20th day of March, 1871, the plaintiff Yenawine recovered a judgment in the County Court of San Diego County against the defendants for two hundred and forty-one dollars. On the 16th day of May, 1871, the County Court granted a new trial. The plaintiff obtained a certiorari from the District Court to bring up the order of the County Court for review. On the hearing the District Court dismissed the writ.

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

<p>Appeal from the District Court of the Thirteenth Judicial District, County of Stanislaus.</p> <p>There was a former appeal in this case, reported in 35 Cal. 434.</p> <p>The facts are stated in the opinion.</p>

<p>Law of a Case.—A decision by the Supreme Court upon the points of a case becomes' the law of the case in all subsequent proceedings upon the same state of facts.</p> <p>Findings—Erroneous Judgment.—Where there are no findings, and the case is brought to the Supreme Court upon the evidence, and the judgment is erroneous, the Supreme Court will not direct the Court below what judgment to enter, but will reverse the judgment, and remand the case for a new trial.</p>

<p>Negotiable Instruments—Pass Book with Bank.—A by-law of a savings bank, assented to by its depositors, that the pass book of each depositor containing his account shall be transferable to order, does not render such pass book a negotiable instrument, and even if it did make it a negotiable instrument between the parties, it would not be so as to third parties.</p> <p>Garnishment oe Money in Savings Bank. — A savings bank cannot . avoid its liability to pay over the money of a depositor, on a garnishment at the suit of the depositor’s creditor, on the ground that its by-laws, assented to by the depositor, make his pass book, in which his account is kept, transferable to order.</p> <p>Pass Book oe Bank.—A pass book of a depositor in a bank in which his account is kept is not a negotiable instrument in a commercial sense, nor can the agreement of the parties make it so.</p> <p>Negotiable Security.—The character of a security, as being negotiable or otherwise, must appear, not by force of the stipulation of the parties that it shall be such, but must be implied by law as the result of the form and effect of the security itself.</p> <p>Agreement Between Parties to Instrument.—An agreement between the parties to an instrument, that it may be transferred to order, is not an agreement that it shall become a negotiable instrument.</p> <p>Bank Account not Negotiable.—A mere agreement between a bank and its depositors cannot impart the character, of negotiability to a mere deposit account, not of itself a negotiable instrument under the law merchant.</p>

<p>Appeal from the District Court of the Fourteenth Judicial District, hi evada County.</p> <p>The assessment was made for the year 1870.</p> <p>.The other facts are stated in the opinion.</p>

This was an action to quiet the title to a tract of land in San Francisco, being a portion of the pueblo lands confirmed to said city. The tract in controversy was granted to William Chandler, by the Alcalde of the pueblo, on the 30th day of December, 1848. Said Chandler, in 1849, conveyed the land by a deed of bargain and sale to Jones and McCormick, and their title passed by sundry mesne conveyances-to the defendants.

The indictment was found and certified to the District Court before the commencement of the term at which the accused was tried. The fifteenth instruction, referred to in the opinion, was as follows: “ It is a well settled rule of law that drunkenness is no excuse for the commission of a crime.

<p>Mandamus to Supebvisors to Lett a Tax.—When the Legislature makes it the duty of the Supervisors of a county to levy a tax sufficient to pay the interest on, and ultimately satisfy the principal of, outstanding bonds of the county, the Board must fairly exercise its judgment with a view to effect the end contemplated, and if it refuses to do so, may be compelled by the writ of mandate.</p> <p>Idem.—If in such case the Board levies a tax which its members know will not produce a sufficient sum, it will be compelled by writ of mandate to levy the additional percentage required.</p>

<p>Appeal from the District Court of the Hinth Judicial District, County of Siskiyou.</p> <p>Autenreith, in the foreclosure suit, made Pfenninger, Buck, and Lang defendants, because they had caused attachments to be levied on the property, claiming that the liens they had acquired by the attachments were subsequent to the lien of his mortgage. Junker, in his complaint against Hessenauer, claimed that the partnership was indebted to him. Autenreith obtained the Sheriff’s deed under his foreclosure sale on the 3d day of May, 1870, and on the ninth of May demanded of Junker, the receiver, possession of the property. His demand not being complied with, on the 21st of May, 1870, he moved the Court for a writ of assistance, and the motion was denied. From the order denying the motion he appealed.</p> <p>The other facts are stated in the opinion.</p>

The following is the contract for the sale of land, referred to in the opinion. An action was commenced on the 4th day of January, 1869, to enforce a specific performance of the contract.

The plaintiff is tlie owner of forty and one half miles of railroad in Placer .Qounty. The property was valued by the Assessors at twelve thousand dollars per mile, and the plaintiff applied to the defendant to reduce the valuation to six thousand dollars per mile. The other facts are stated in the opinion. [For reports of a similar proceeding between the same parties, see 32 Cal. 582 and 34 Cal. 352.]

The complaint averred that the plaintiff was the owner and in possession of a ditch and flume, constructed for conducting water, and that he had for a long time been conveying water in the same for irrigating his land, and that the defendant wrongfully and unlawfully pulled down and destroyed the flume and diverted the water. There was a prayer for an injunction and for judgment for damages.

The plaintiff alleged in his complaint that he and his grantors, since 1851, had owned a ditch known as Woods’ Ditch, and had, until prevented from doing so by defendants, appropriated in it all the night and Sunday water flowing in Woods’ Creek, to the extent of eighty-four inches, and had also appropriated in it all the day water, to the-extent of eighty-four inches, except the first twenty-five inches flowing down the same; that plaintiff became the owner of said property…

<p>Appeal from the District Court of the Third Judicial District, Alameda County.</p> <p>The plaintiff claimed four hundred and seventy-seven dollars and sixty-seven cents in gold coin as his fees in the foreclosure suit mentioned in the opinion. The controversy was submitted upon an agreed statement of facts without action. The Court below gave judgment for plaintiff. The defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

The defendant, on the trial, asked the Court to give the following instruction to the jury, which was refused. It is the third instruction referred to in the opinion: “ If the jury believe that Evans, the defendant, purchased the shoes and dies in question, in good faith, of Ellsworth, and without notice of fraud, then you will find for defendant.” The other facts are stated in the opinion.

<p>Charge of Court nr Criminal Case.—The Court may, in a criminal case, by the express consent of the defendant, or by the mutual consent of the parties, charge the jury orally.</p> <p>Idem.—An entry in the minutes of the Court, in a criminal case, that “the Court charge the jury orally (a written charge being expressly waived),” must be construed as a “mutual consent” to an oral charge.</p>

Action against Bernal, and an undivided one half of two thousand nine hundred and seventy acres of land owned by him, to recover judgment for five hundred and eighty-nine dollars and ninety-one cents tax assessed against the land in 1869. The case came up on the judgment roll. The other facts are stated in the opinion.

<p>Error to be Pointed Out.—Error will not be presumed; but the presumption is that the proceedings below were correct, so far as such presumption is not overcome by the record.</p> <p>Injunction to Restrain Trespass.—In an action for damages and to enjoin future trespasses upon land, the Court, in granting the injunction, should not extend it to land not owned by the plaintiff, although included in the description given in the complaint.</p>

<p>Arbitration—Entry ox Submission "by Clerk Necessary.—Under section three hundred and eighty-two of the Practice Act the Clerk of the Court must be authorized by the stipulation of the parties to an arbitration to enter in his register of actions a note of the submission, and he must make the entry therein; otherwise there is no jurisdiction in the Court over the subject matter or the parties.</p>

The complaint, among other things, averred “ that there is now due from the defendants to the plaintiff on the aforesaid note the principal sum of two thousand dollars, with interest thereon at the rate of one and a quarter per cent per month from the 10th day of March, 1870,” etc. The defendants appealed. The other facts are stated in the opinion.

<p>Statement on Motion fob a Hew Trial.—The specification of reasons why a new trial should he’ granted, to he made in the statement, is not a general one of errors, in admitting or excluding the evidence, as set forth in the foregoing statement, but a particular specification, and a pointing out and reference to each alleged error.</p> <p>Tax on Central Pacific Railroad and Telegraph Line by Stajte.— The State of California has authority to impose taxation for State purposes upon that portion of the Central Pacific Railroad, and the telegraph line in connection therewith, lying within its limits.</p> <p>Taxation by State on Property of Corporation.—A railroad corporation, organized under the laws of a State, cannot claim an exemption of its property, lying within the limits of a State, from State taxation, because the corporation thus created has been subsequently adopted by the Federal Government, and is employed in the service of the General Government, in the carriage of mails, munitions of war, etc.</p> <p>Exemption from State Taxation.—The principle upon which the business of a corporation, created by the Federal Government as an agent in the execution of its powers, is exempt from State taxation, does not apply to the real property of the corporation lying within the limits of a State.</p> <p>Uniform Operation of Laws.—The Constitution of this State does not require laws to have a uniform operation, unless they are of a general nature; and whether a law is of a general or special nature depends, in a measure, upon the legislative purpose discernible in its enactment.</p> <p>Idem.—The Constitution does not prohibit a special Act, because the subject with which it deals might have been the subject of a general law.</p> <p>Uniform Operation of Tax Laws.—A State revenue law is not unconstitutional because there is a want of uniformity between the particular laws prevailing in the several counties, with regard to the enforcement of the payment of delinquent taxes.</p> <p>Revenue Districts and Assessors of Property.—The Legislature is not prohibited by the Constitution from creating more than one revenue district in a county, and providing for the election of Assessors and Collectors of revenue in each district.</p> <p>Suit by District Attorney to ¡Recover Delinquent Taxes.—The Constitution of the State allows the Legislature to pass a law directing the District Attorney of a county to bring actions in the name of the people to recover delinquent taxes, and such law does not interfere with the constitutional duties of the Tax Collector.</p>

<p>Appeal from the District Court of the Ninth Judicial District, Siskiyou County.</p> <p>This was an action for damages. The complaint alleges that the defendants, while driving a herd of sheep through the country, encamped near the plaintiff’s premises, and carelessly, negligently, and willfully permitted fires kindled by them to get out and spread over the adjoining country, ’ thereby destroying a hay shed and corral, a blacksmith shop and tools, a dwelling house, household furniture, lumber, and other property belonging to the plaintiff; and also destroyed a forest of timber upon plaintiff’s land, suitable for lumber, and adjoining a sawmill owned by him, thereby depriving the mill of logs, and making it comparatively valueless. The case was tried by the Court, without a jury. At the trial, evidence was admitted against the defendants’ objections, to the effect that the probable cost of new buildings, to replace the ones that were burned, would be about two thousand six hundred dollars; and testimony that the timber destroyed was suitable for lumber was admitted also, against objections by the defendants. It was shown by the testimony, that the defendants had lighted a fire between the barn and the house, which was less than two hundred yards distant; that there was enough dry brush and material between the fire and the house, and in other directions, to convey the fire to the property burned; and that the defendants had gone away and left the fire burning. The Court rendered judgment for the plaintiff in the sum of one thousand seven hundred and fifty dollars. The defendants moved for a new trial, and the motion being denied, they appealed.</p>

The defendant was convicted, and appealed from the judgment and from an order denying his motion for a new trial. The other facts are stated in the opinion.

The defendant was arrested on a charge of burglary, September 28th, 1871, and committed to jail to await examination. The Court convened November 6th, 1871, when the Judge made an order directing that a Grand Jury be summoned to be in attendance on the sixteenth of that month.

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

<p>Vacating Order Denying Hew Trial.—When an application for a new trial has been made in due form, upon a settled statement, and the Court has passed on the motion, the order made is conclusive so far as the Court making it is concerned. The Court cannot afterwards vacate the order and decide again on the motion. ,</p>

<p>The petitioner was taken before the Court upon a writ of habeas corpus.</p> <p>The facts are 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 plaintiff appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Certificate of Acknowledgment of a Deed.—If the certificate of acknowledgment of a deed of a married woman for her separate property, does not state that she was examined by the Notary without the hearing of her husband, and that she was made acquainted with the contents of the instrument, it is radically defective and does not convey any title.</p> <p>Possessory Bight in Pueblo Lands.—The right or interest which a person held in the pueblo lands of San Francisco, by virtue of possession alone, prior to the passage of the Van Ness Ordinance, if not devised by him, descended to his heirs and could be distributed by the Probate Court.</p> <p>Assignment of Lease by Lessee.—An assignment made on a lease of land, of all the tenant’s right, title, and interest in the premises held under the lease, is not a surrender of the lease to the person to whom the assignment is made, nor does it amount to an attornment to him, unless he has purchased the title from the lessor, but such assignment makes the assignee the tenant of the lessor.</p> <p>Van Ness Ordinance.—The actual possession of land in San Francisc'o within the boundaries of the Van Ness Ordinance, by a tenant, was the possession of the landlord, so as to entitle him to the benefits of that ordinance, and the same result followed if the tenant assigned the lease, and his assignee took possession.</p> <p>Abandonment oe Land.—An attempted sale of land which fails, because of a defect in the deed, is not an abandonment of the land. There cannot be an abandonment to a particular person or for a consideration.</p> <p>Good Paith in Pukchase oe Land.—When a mother and her children own land in common, a purchaser from the mother in good faith, who buys supposing he has acquired the whole title, does not.acquire the title of the children. The title of the children cannot be affected by the good faith of a purchaser from the mother.</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>

<p>Application for a writ of habeas corpus.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of the Fourth Judicial District, City and County of San Francisco.</p>

As stated in the opinion, the main facts in this case, the character of the action, etc., are found in the report of this case in 28 Cal. 596. It is unnecessary to repeat those facts here. The preliminary injunction was there affirmed, and on the trial it was made perpetual, and this appeal is from the judgment. - On the trial in the Court below, the plaintiffs called Tully 11. Wise as a witness.

<p>Appeal from the District Court of the Seventeenth Judicial District, County of San Diego.</p> <p>The defendants appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Damages eor Injury to the Person.—A person injured by the fall of an awning, in process of erection in front of a store, and who sues the person who was erecting the same for damages, is not entitled to include in. his damages the sum paid for his board during the time he was disabled.</p>

This was an action for money had and received. The plaintiff recovered a judgment. The defendant moved for a new trial, which was denied, and he appealed. The other facts are stated in the opinion.

The plaintiff appealed. The note was for two thousand dollars, and bore interest at five per cent per month, interest payable at the end of every three months, and if not paid to be compounded, and bear the same rate of interest as the principal. The other facts are stated in the opinion.

<p>Estate Conveyed by Geant.—The word grant is effectual to convey an estate in a corporeal hereditament. It has become a generic term, applicable to the transfer of all classes of real property.</p> <p>Void Obdinanoe.—If the charter of a city requires any sale or lease of the real estate of such city to be made at public auction to the highest bidder, an ordinance of the Council of the city making a lease of any portion of its realty to a corporation, upon the payment of a rent reserved, is void, and passes no title to the corporation.</p>

<p>Statute oe Limitations—To enable a defendant to avail himself of the Statute of Limitations, as a defense, it must appear that he was in the adverse possession of the demanded promises for the period required by the statute to bar the plaintiff’s right of action.</p> <p>Act oe 1863-4 Ooncebning Van Ness Okdinange.—The Act of March 4th, 1864 (Stats. 1863-4, p. 149), only prohibits a plaintiff in ejectment from relying on the Van Ness Ordinance if he commences his action more than one year after its passage, and has not been in possession within the next preceding five years. It does not prohibit him from recovering on prior possession or paper title.</p> <p>Nonsuit on Opening Statement.—A defendant moving for a nonsuit on the plaintiff’s opening statement, upon a specified ground, on which ground alone the motion is granted, will not be allowed to raise the point for the first time in the Supreme Court that the statement was otherwise insufficient.</p>

The complaint averred, that on the 10th' day of May, 1869, the plaintiff and defendants made an agreement, by which the plaintiff was to cut saw-logs on the defendants’ land and deliver at the defendants’ sawmill sufficient to keep the defendants’ mill running to its full capacity for the period of two years from the date of the contract, and that the defendants were to pay the plaintiff five dollars and fifty cents per thousand feet for all lumber timber so cut and…

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

Lewis and Auzelia Lewis, his wife. The defendants Lewis held a mortgage upon the premises, dated February 10th, 1870, and had given a quitclaim conveyance of the same date to Murray. The defendant Browne, in his answer, set up, hy way of cross-complaint, a claim against defendant Murray, and asked to have a lien in his own favor, filed April 30th, 1870, enforced.

<p>Appeal from the District Court of the Eleventh Judicial District, El Dorado County.</p> <p>This was an action of ejectment brought to recover a part of a water ditch. In 1857 John Curran and others constructed a ditch from the falls of the Gold Hill Canal to a mining claim called the “ Curran Claim.” In 1860-61 Cur-ran, with the assent of the other owners, sold the ditch and claim to defendant Bradford, and one Wm. T. Davis, who died in September, 1868. In 1862 one Charles Aler discovered a mining claim on Starr Hill. He made a verbal agreement with Davis that Davis should give him one half the ditch for one half the claim. Afterwards, in 1868, Davis and Aler agreed to sell one Bingham a fourth interest of ditch, and claim. The claim on Starr Hill was not on the line of the ditch, and in order to get water to the claim it was necessary to construct a flume from the ditch to Starr Hill. This flume was constructed by Davis, Aler, and Bingham, from a point on the ditch at Tinnie’s Vineyard; and it is only that portion of the ditch extending from the falls in the Gold Hill Canal to Tinnie’s Vineyard that is in controversy in this action. All that portion of the ditch extending from Tinnie’s Vineyard to the Curran Claim is not mentioned in the complaint. The ditch was used up to 1865 by Davis and Bingham, taking out water at Tinnie’s Vineyard, and the defendants taking it at Curran Claim; on the 23d of August, 1867, Davis and Bingham executed a deed to Tie Hoon and Ah Sing of the claim on Starr or Cement Hill; after describing the claim, the deed contains this clause: “ embracing a cabin, and all ditches, races, and flumes, etc., now on and used for the working of said claim, including about one mile of flume for the purpose of bringing water to said claim.” This one mile of flume was the means used for bringing water from the “Curran Ditch.”</p> <p>On the first of July, 1868, Ah Young and Ah Gee deeded the same property to the plaintiffs, and upon this deed the plaintiffs base their right of action.</p> <p>Defendant Cockbill, in his answer, alleged that in May, 1865, he purchased said Davis’ undivided half of the ditch in consideration of three hundred dollars, and paid the price, and was placed in possession, and made improvements on the ditch, and had since remained in possession; that Davis promised to make him a deed, but failed to do so, and that the plaintiffs bought, well knowing that he was in possession under a claim of right. He asked that the plaintiffs be compelled to convey to him.</p> <p>On the trial the defendant Bradford "was called as a witness by the attorney for the defendants, and was asked several questions in relation to who had possession of the ditch and used it prior to Davis’ death. The plaintiffs objected to any evidence on these points being given by Bradford, because they claimed title under Davis. The Court sustained the objection. It did not appear on the trial that Bradford had ever sold his interest in the ditch, and as Davis and Bingham’s deed to the Chinamen was a conveyance of the entire property, the plaintiff insisted that his failure at the time to object to Davis’ sale, either estopped him or amounted to an abandonment.</p> <p>The plaintiffs had judgment and the defendants appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Implied Bias.—An unqualified expression of an opinion, even though the opinion itself be of a qualified character, is ground of challenge for implied Mas.</p> <p>Same—When Challenge Ought to be Allowed.—When, after proper investigation had, doubts, more or less grave, as to the actual state of mind of the juror still remain, the challenge for implied bias should be allowed.</p>

<p>Appeal from the District Court of the Seventeenth Judicial District, San Diego County.</p> <p>The plaintiff appealed.</p> <p>The other facts are stated in the opinion.</p>

The Court below denied the defendant’s application for a new trial, and he appealed from the order. The other facts are stated in the opinion.

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

<p>Appeal from the District Court of the Seventh Judicial District, Solano County.</p> <p>The defendants were convicted in the Court below, 9,nd appealed.</p> <p>The other facts are stated in the opinion.</p>

- Appeal from the County Court of Santa Cruz County. The defendant was convicted, and appealed. The other facts are stated in the opinion.

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

The stock of the corporation was divided into one thousand shares, of which M. G. Griffith and W. R. Muffley, the assignors of the plaintiff, owned ninety-one and two thirds shares. Stockholders owning about nine hundred and sixty shares signed the contract. The resolution of the Board of Directors authorized the President and Secretary of the mine to deliver possession of the same, and to execute a deed thereof to the defendants.

<p>Forfeiture of Swamp and Overflowed Land.—A failure to pay the interest annually, and to pay the principal at the end of five years, on a swamp and overflowed land purchase, made under the Act of 1855, works a forfeiture, and the State may resell, as if no purchase had been made.</p> <p>Idem.—A State may waive a forfeiture; but if, after a forfeiture, and before a waiver, the State resells the land forfeited, the waiver will not have the effect to divest the rights acquired by the second purchase.</p>

Ejectment to recover possession of a part of block twenty-five, mentioned in the opinion. This land lies within the territory in San Francisco covered by the Van bless Ordinance. Held: that -fire rule laid down in Hicks v. Coleman, mentioned in the opinion, did not apply to land within the territory covered by the Van bless Ordinance, and that the rule had no application to city lots.

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

In the divorce suit spoken of in the opinion, C. S. Lord obtained a divorce in 1867, and the Court, in its decree, awarded him the custody of his three infant children, and decreed that he pay his wife one hundred dollars per month during her natural life, or in lieu thereof, the sum of ten thousand dollars, at his election.

The note sued on was given for seven hundred and eighty dollars, but the complaint alleged that there was due on it four hundred and fifty-eight dollars and thirty-five cents, with interest from October 6th, 1869, at one and one quarter per cent per month. Judgment was rendered for the defendants December 8th, 1870, and the plaintiff appealed from the judgment.

<p>Double Taxation.—If land subject to a mortgage is taxed, and the debt secured by the mortgage is also taxed, and the tax on the debt is paid by the mortgagee, the mortgagor cannot complain of double taxation.</p> <p>Assessment eor Taxes.—In assessing land for taxation, the Assessor cannot deduct from its value the amount due on mortgages by which it is incumbered, and call the remainder its assessed value.</p> <p>Idem.—Query? Is the statute allowing the Assessor to deduct from solvent debts due the taxpayer, the amount of his indebtedness, constitutional? Idem.—Ohoses in action are property subject to taxation, even when secured by mortgage.</p>

¿Appeal from the District Court of the Sixth Judicial District, Sacramento County. This was an action of ejectment to recover the undivided half of lot number three in the block bounded by I and J, and Front and Second streets, in the City of Sacramento. In August, 1849, John S. Fowler, the owner of the lot, conveyed an undivided half of it to Samuel Brannan.

March 24th, 1848, T. M. Leavenworth, the then Alcalde of San Francisco, granted to Jacob D. Hoppe the one hundred-vara lot described as follows: “ A lot of land containing one hundred varas square, in the vicinity of the Town of San Francisco, and bounded by the extension of the following streets: South by Union street, west by Battery street, north by Filbert street, and east by a line parallel with Battery street, one hundred varas eastward from the same.” On the 13th of…

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

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

The facts are stated in the opinion. [This case was before the Supreme Court at the July Term, 1871, upon an appeal by defendant Sharp. See 41 Cal. 679.]

On the 23d of March, 1869, the defendant proposed to plaintiffs Crosett and King to unite with them in the purchase of a tract of thirty-six acres of land, in Alameda County. They agreed to unite with him in the purchase, and each was to furnish one third of the purchase money, and the defendant was to conduct the negotiations, and buy the land at the least price for which it could be purchased. Defendant represented to Crosett and King that J'.

Ejectment for a lot of land in San Francisco. The plaintiff recovered judgment. The other facts are stated in the opinion.

The indictment charges the defendant with the larceny of one silk dress, one merino dress, three pairs of lace curtains, three table spoons, one carving knife, steel, and fork; five table knives, and a certain number of pieces of money of the value of seventy-nine dollars and twenty-five cents, the property of Robert McPhearson and Jennie McPhearson, his wife.

<p>Appeal from the Probate Court of the City and County of San Francisco.</p> <p>On the 24th day of October, 1860, John Boland purchased a lot in San Francisco, with money, his separate property. He resided on- the same with his wife and daughter, Margaret Boland, and died on the 3d day of February, 1861. Ho homestead was claimed under the provisions of the Homestead Act. Boland left a will, which was probated, by which he devised all his property to his daughter, and nominated John McEamara the executor of his estate. The daughter was born in 1851. After Boland’s death the widow and daughter continued to reside on the lot until November, 1868, when the daughter married one Brackett, and left to reside elsewhere with her husband. In 1862 the widow married Charles W. Lane, and she and said Lane have continued to reside on the premises.</p> <p>In 1869 Boland’s former wife, Mrs. Lane, applied to the Probate Court for an order setting apart the premises as a homestead, under the one hundred and twenty-first, one hundred and twenty-fourth, and one hundred and twenty-fifth sections of the Probate Act. The executor and the daughter opposed the application, and asked that the property be distributed to the daughter under the will. The Court granted the application, and the executor appealed.</p>

The complaint averred that the plaintiff owned a tract of land containing eight acres; that he purchased it of C. F. M. Dinnicke, on the 6th day of February, 1868; that prior to said sixth day of February, and while said Dinnicke owned the land, there was assessed to said Dinnicke a tax on said land and personal property, as State and county tax, sixty-eight dollars and fifty-one cents—of which sum, sixty-two dollars and forty cents were levied on the land; that on the 3d…