Volume 44 — California Reports

The defendant Perkey alone answered. The Court below granted the injunction, and he appealed. The other facts are stated in the opinion.

The Western Pacific Railroad Company is a corporation, formed on the 13th day of December, 1862, to build a railroad from a point at or near the City of San José, where it connected with the San Francisco and San José Railroad, through the Counties of Santa Clara, Alameda, San Joaquin, and Sacramento, to the City of Sacramento, a distance of one hundred and twenty-three miles, and there to connect with the Central Pacific Railroad.

<p>Canceling Void Deed.—A Court of equity will not interfere to cancel a deed upon the ground that it operates as a cloud upon the complainant’s title, when the deed is void on its face or the result of proceedings void upon their face, and requiring no extrinsic evidence to disclose their illegality.</p> <p>Idem—Immaterial Circumstances.—The circumstances that the plaintiff is an infant in present need of money, and that the lot is covered with water and not now productive, do not aid in giving a Court of equity jurisdiction to remove a cloud on title.</p> <p>Attack upon Deed made under Detective Power of Attorney.— "Where a party applies to a Court of equity to cancel a deed made hy an attorney in fact, under a power of attorney which did not authorize the conveyance, he may set out the power in his complaint and take the judgment of the Court as to whether it did authorize the conveyance or not.</p>

Original writ of habeas corpus issued out of the Supreme. Court, and heard at chambers before Mr. Justice Hiles. The facts are stated in the opinion.

<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>

This was an action to restrain the defendant from diverting the natural waters of Mormon Creek, and for damages for a diversion of those waters from a mining ditch owned by the plaintiff.

<p>Injuries to Infant—Inadmissible Evidence.—"Where an infant child sues "by her father, as guardian, for damages for suffering and deformity caused by the act of a vicious animal belonging to the defendant, and recovers judgment, such judgment is not available as a bar or admissible in evidence, in a suit brought by the father in his own name, for services rendered and expenses incurred in the cure of the wounds inflicted upon • the child.</p> <p>Idem—Measure of Damages.—Where an infant child has been wounded by a vicious animal, and has thereby been disfigured or deformed, the father of the child can recover from the owner of the animal only for such expenses as he has incurred in healing the original wound, and not for any expense incurred in removing the deformity or disfiguration.</p>

The defendant in his answer admits his intention to do the acts alleged in the complaint, and sets up as a justification certain proceedings of the Board of Supervisors of the county for the purpose of opening a public road through the lands of the plaintiff, and a notification to him, as Roadmaster of the district, to proceed to open the same.

<p>Contract Establishing Partnership.—A joint contract in writing, entered into by several persons with another, in which they agree to furnish certain materials and perform certain labor for such other, and which does not fix or define the relations of. such persons among themselves, or as to third persons, and which does not show any community of interest between them in the profits to he realized, nor the losses to he sustained, does not of itself, by legal intendment, establish a partnership between them in reference to the work undertaken.</p> <p>Proof of Partnership.—It is.the business of one who alleges a partnership to show it affimatively. The burden of proof is on him.</p> <p>Joint Contract—Partnership.—If two persons enter into a joint contract, in writing, to perform certain labor and furnish certain materials for another, which contract does not define the relations of such persons between themselves; and if, by the understanding between themselves, one is to perform one part of the labor and the other another, and each is to receive a proportional sum of the money paid for the whole, the relation of partners does not exist between them.</p> <p>Implied and Express Contract.—The difference betweenthe method of proving an implied and express contract is this: The tomier must be proved by an ascertained agreement between the parties, while in case of the latter, the law will imply that the party did make such an agreement as under the circumstances disclosed he ought in fairness to have made.</p> <p>Joint Liability.—If two jointly contract to do work and furnish materials for another, and the two, as between themselves, are not partners, hut each is to perform a portion of the job and receive his proportional part of the pay, and one of the two employs a laborer on his part of the job, the law will not raise an implied contract that both are liable to the laborer.</p> <p>Parol Evidence to Vary Written Contract.—When a stranger to" a joint written contract, entered into by several persons, relies on it as evidence of a partnership between the persons who signed it, in reference to the work the parties undertook by the contract to perform, such parties may show, by parol evidence, the true relations between themselves, even though such evidence vary or contradict its terms.</p> <p>Idem.—The rule that parol evidence cannot he received to vary or contradict a written contract, applies only to controversies between parties to the contract, their representatives, and those claiming under them, and has no application to a controversy to which a stranger is a party.</p>

The defendant was indicted for the crime of murder, in the killing of James Quigley, and was convicted of manslaughter. At the trial the counsel for the defendant read to the jury, to illustrate, and as a part of his argument, the facts and the decision of the Court in the case of Shorter v. The People, 2 Comst. 197, and in the case of Granger v. The People, 5 Yerg.

The following is the eighth instruction referred to in the opinion: “ If you believe from the evidence that an explosion of defendants’ boiler took place at their depot on the 27th day of August, 1866, and the said plaintiff, while standing on the platform of defendants, in the depot where passengers usually went, in getting on and off the cars, that the plaintiff while in that position, was then intending to take passage on said cars, and about to step into the baggage car,…

The petitioner was brought before Chief Justice Wallace and Justices Niles and Belcher, upon an application to be discharged from custody. The other facts are stated in the opinion.

The plaintiff brought this action to recover toll, alleged to be due by the defendant for traveling on its road with a four-horse team. The Court below granted a nonsuit. The plaintiff appealed. The other facts are stated in the opinion.

The defendant demurred to the indictment, and the demurrer was overruled. He moved for a change of venue; the motion was denied, and he was tried and convicted. This appeal is taken from the judgment and from an order denying the defendant’s motion for a new trial.

<p>Mubder Defined.—The term murder has but one meaning in California, and that is, the unlawful killing of a human being with malice aforethought, either express or implied.</p> <p>Idem—Statutory Construction.—The Act of 1856, dividing the crime of murder into two degrees, and prescribing imprisonment as the punishment for murder in the second degree, did not make murder in the second degree less or other than murder.</p> <p>No Limitation to the Time fob the Prosecution of Mubder.—As against the crime of murder, whether of the first or second degree, there is no limitation of time within which a prosecution may be commenced. Order of Argument.—In a criminal case it is competent for the District Court to require the counsel for the defendant to open, and the counsel for the prosecution to close the argument to the jury. The Court need not state any reasons for such a ruling.</p> <p>Failure to Give Instructions not Asked for.—Where a party, in a criminal case, fails to ask the Court to give instructions to the jury upon a particular point, he cannot complain of error on the part of the Court in not giving the instructions.</p>

Suit on the following promissory note: “ Los Angeles, December 3d, 1868. “ On the fifteenth day of April, A. D. 1869, we promise to pay to Maria Merced W. de Carrillo or order, for value received, the sum [of] three thousand six hundred dollars, gold coin, without interest. “ C. V. HOWARD, [Two-dollar stamp, canceled.] “JOHY Gf.

<p>Appeal from the County Court of Tolo County.</p> <p>The defendant was convicted of grand larceny, and appealed.</p> <p>The other facts are stated in the opinion.</p>

The Court below denied the prayer of the complaint, and the plaintiff appealed.. The other facts are stated in the opinion.

The defendants Blake and Moffitt owned a lot in the City of Oakland, and the defendant Kyte contracted to erect a wooden building upon the lot for them, and to furnish all the material. The plaintiffs were engaged in the manufacture of sash, blinds, and other wood work for buildings, and at the request of Kyte they furnished materials and performed labor of the value of one thousand and thirty dollars and sixty-eight cents, for the building.

<p>Jurisdiction of Probate Court.—The Probate Court has no authority to cite the administrator of an administrator to settle the account of his intestate with the estate of which he was the administrator.</p> <p>Idem.—The Constitution does not confer on the Probate Court jurisdiction of all matters relating to the estates of deceased persons, but of such matters only as the statute directs it to exercise jurisdiction over.</p> <p>Jurisdiction of District Courts in Probate Matters.—The District Courts have jurisdiction of actions against the administrator of an administrator, to settle the account of his intestate with the estate of which he was the administrator. This jurisdiction arises out of the equity powers of District Courts.</p> <p>Idem.—In such case an action on the bond of the deceased administrator (even if it" might be maintained) is not the sole remedy, but a claim may be presented to the administrator, and, if rejected, a suit may be brought on it.</p> <p>Omission to Provide for Children in Will.—If the testator, in his will, devise his property to his grandson, the son of his deceased son, and the testator has children living, it does not show, as matter of construction of the will, that his children were brought to his recollection, and that his omission to provide for them in his will was intentional.</p>

<p>Promissory Note made Due when Interest is Not Paid.—"When a promissory note, payable at a future time, provides for the payment of interest quarterly, and contains a clause that if default he made in the payment of the interest quarterly, then the note shall immediately become due at the option of the holder, a failure to pay the interest makes the whole amount of the note due absolutely, at the option of the holder, if he so elect, without any notice from the holder to the payor.</p> <p>Idem.—In such case the holder has no duty to perform to the payor, and the latter has no excuse to delay payment.</p> <p>Belief in Equity Against Enforcement of Contract.—If a promissory note, payable at a future day, provides for the payment of interest quarterly, and that if default be made in the payment of interest quarterly that the whole note shall immediately become due at the option of the holder, a failure to pay the interest makes the principal due, and a Court of equity will not relieve against the enforcement of the contract as made. Interest on Judgments.—A decree enforcing a mortgage rendered after the passage of the Act of 1867-8, concerning interest, may contain a provision making the sum due bear interest at seven per cent per annum.</p>

<p>Entry of Judgment before Ruling upon Exceptions.—The entry of a judgment before overruling exceptions which have been taken to the findings, does not vitiate the judgment.</p> <p>Construction of Deed—Description by líame.—Where, in an action of ejectment, the plain tiff claimed under a deed which described the land * by name, as “ all the undivided two thirds of all the lands known by the name of Rancho de San Vicente, situate in the County of Los Angeles and State of California,” and then added a particular description which was erroneous : Held, that the deed was intended to convey two thirds of the whole rancho, however erroneous the particular description might be.</p> <p>Idem.—When there are two descriptions in a deed, one of vdiich describes the premises conveyed generally by name, and the other gives a particular description by metes and bounds, which is erroneous and does not cover all the land contained in the first, the latter will be rejected.</p> <p>Idem.—A tract of land which has a well known name may be described by that name in a deed.</p>

The plaintiff applied to the agent of the defendant for the payment of a policy of life insurance, amounting to twenty-five hundred dollars, and the agent gave him a check upon the bank of B. F. Hastings & Co.,' in Sacramento City. , The check was drawn at about nine o’clock in the morning of Hovember 1st, 1871, and immediately thereafter the agent accompanied the plaintiff to the bank for the purpose of identifying him, as he was a stranger in the city.

The fourth instruction mentioned in the opinion was as follows: “That if the defendant wrongfully, and without reasonable and probable cause, made the charge against the plaintiff, then the charge was malicious without proof that it was dictated by angry feelings or vindictive motives.” The other facts are stated in the opinion.

The action was on a street assessment made in July, 1870, under a contract for street work entered into in 1869. The contract was made under and in accordance with the Act of March 26th, 1868 (Stats. 1867-8, p. 358), and the Acts of which it is amendatory.

The complaint was filed October 27th, 1870. On the same day the defendant’s attorneys served on the plaintiff’s attorneys the notice of appearance mentioned in the opinion. On the 30th day of December, 1870, the plaintiff’s attorneys filed the notice of appearance and had the default of the defendant entered.

<p>Intervention without Objection.—If answers of intervention are filed in the Court below, by persons not parties to the record, and the plaintiff makes no objection, but goes to trial, he cannot afterwards raise the objection in the Supreme Court that it was irregular and erroneous to permit them to intervene.</p> <p>Finding of Facts.—If the finding of facts are silent on certain issues, the presumption is that the finding on those issues was such as to support the judgment.</p> <p>Estoppíel.—The fact alone, that one as the attorney in fact for another, executes to a third person a deed of land, does not constitute an equitable estoppel, so as to prevent the person who thus acted as attorney in fact from afterwards setting up a title to the property acquired by him from the person for whom he acted as attorney in fact, before he executed the deed.</p>

<p>Ratieicatiok oe as Uxauthoeized Act.—A ratification by a party of an act done in Ms behalf by another, without authority, if such ratification be made under a misapprehension of the full scope of the Act, is voidable to the extent of the mistake, and the party can be relieved pro tanto.</p>

The complaint averred the mistake in the undertaking sued on, by the omission of the Avord “ thousand,” and asked that the contract be reformed by inserting the word. The judgment did not decree a reformation, but was a simple judgment for one thousand eighty-one and ten one hundredths dollars damages and costs in the attachment suit. The defendants appealed. The other facts are stated in the opinion.

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

The judgment in ejectment was rendered December 23d, 1868. The complaint described the demanded premises as “ situate on the Potrero Nuevo, in the City and County of San Francisco, commencing at the northwest corner of the claim of G. F. & W. H. Sharp, where the same intersects the lands now occupied by Wm.

<p>Motion to Dissolve Injunction.—When the defendant moves, on the complaint and answer, to dissolve an injunction, the answer will be treated, for all the purposes of the motion, as an affidavit, and the plaintiff, on the hearing of the motion, is entitled to reply to the answer by affidavits.</p> <p>Idem—Service of Copies of Affidavits .—The plaintiff is not required to serve upon the defendant copies of affidavits used in reply to the answer, on a motion to dissolve an injunction.</p> <p>Error Without Injury.—If the Court erroneously rejects evidence which is not necessary in the case, so that the party offering it sustains no injury by the rejection, the error will not be considered on appeal.</p> <p>When Injunction will Not be Detained .—The injunction will not be retained where it appears that the acts, the performance of which is sought to be restrained, had been performed before the order for the injunction was made or served.</p>

<p>Oral Ikstructious is Cbimihal Oasis.—It is error per se for a trial Court; in a criminal case, to give to the jury any charge or instructions otherwise than in writing, except by the express consent of the parties, and the consent cannot be inferred, from a failure to object at the time the oral charge is given.</p>

The plaintiff recovered judgment for the sum of two thousand dollars, and the defendant appealed. The other facts are stated in the opinion.

<p>Appeal from the County Court of San Diego County.</p> <p>This was an action brought under section four of the “Act concerning forcible entries and unlawful detainers,” approved April 27th, 1868; Stats. 1863, p. 653. The body of the lease was as follows:</p> <p>“Dennis O’Brien, the party of the first part, hereby agrees to rent, let, or lease to Edmund L. Jones, the party of the second part, all the farm or homestead claim of one hundred and sixty acres of land, situated as above, for one year from date, to wit: until the 14th day of June, 1871. And E. L. Jones, the party of the second part, hereby agrees and binds himself to pay for the use of the above mentioned property, in cash, the sum of two hundred and twenty-five dollars, and an iron-gray horse, to be paid as follows: One hundred and twelve dollars and fifty cents on the 1st day of July, 1870, and one hundred and twelve dollars and fifty cents on the 1st of October, 1870, and to deliver over the premises to the above mentioned Dennis O’Brien, in good condition, on the 14th day of June, 1871, and to make no charge for any improvement done during his occupation. Dennis O’Brien hereby agrees to refrain from turning any stock on, or otherwise using, any ground E. L. Jones has under cultivation, until the 1st day of November, 1871.”</p> <p>The defendant, in his answer, denied that the term of the lease had expired, and claimed that it extended to November 1st, 1871, but did not aver that the land, or any part of it, was under cultivation.</p> <p>The Court struck out the answer, and gave judgment for the plaintiff. The defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

Ejectment to recover the northwest quarter of section six, township three south, range seven west, of San Bernardino base and meridian. The plaintiff averred in his complaint that the land was formerly in the possession of Raymundo Yorba.

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

In 1837 Joaquin Bernal died, seized of the Rancho Santa Teresa, lying in what is now the County of Santa Clara. The land descended to his eleven children, among them Mareellina. Prior to 1853 Marcellina died, and Fichólas Valencia, one of her children, inherited a fifth of her interest. Thus Fichólas, through his mother, inherited one undivided fifty-fifth of the rancho.

The judgment was rendered February 22d, 1871, and the (notice of intention to move for a new trial was filed and served March 3d, 1871. Twenty days additional time were given to file statement. The other facts are stated in the opinion.

On the 9th day of July, 1869, the Board of Supervisors of the City and County of San Francisco resolved to improve the sidewalks on California street, from Gough street to Cemetery Avenue, hy macadamizing them. The contract was let to B. Kenny, on the 6th day of October, 1869, at six cents per square foot.

This was an action for the partition of a portion of a city lot, and of the rents and profits of the property for the preceding ten years. The defendant, Broad and his wife, acquired the title to the lot in 1852, by purchase from Logan, the grantee of the Alcalde, and held it as community property until 1858, when the wife died. The plaintiffs are the children of the wife.

<p>Appeal from the District Court of the First Judicial Dis- ■ trict, County of San Luis Chispo.</p> <p>The plaintiff appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Appeal from the County Court of the City and County of San Francisco.</p> <p>Action of unlawful detainer brought against the defendant for holding over. The plaintiff appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Appeal from the District Court of the Sixth Judicial District, Sacramento County.</p> <p>This action was brought on the following contract:</p> <p>“This agreement, made and entered into this 3d November, A. 1). 1866, by and between Jefferson Wilcoxson and James Farris, of the County of Yolo, State of California, parties of the first part, and John F. Brady and Thomas Brady, of the County of Solano, State aforesaid, parties of the second part, witnesseth: That the said parties of the second part do hereby agree and bind themselves to receive and feed three hundred and forty-one head of cattle, weighing two hundred and thirteen thousand and fifty-five (213,055) pounds net (said net weight to be arrived at by deducting one half of the .gross weight), from the date of this instrument until the 1st day of March, A. D. 1867; the said parties of the second part binding themselves to furnish good and sufficient corrals, with troughs, supplied daily with an abundance of fresh water for said cattle; and they (the said second party) bind themselves further to feed the aforesaid cattle barley hay, all they will eat, in mangers constructed in the aforesaid corrals; both parties to this agreement stipulating one with the other, that the said parties of the first' part shall at all times be in legal possession of said cattle, and that they (the said first parties) shall own and possess the original net weight at this date of the aforesaid cattle, to be valued at the price of eight (8) cents per pound, for the purposes hereinafter named. It is further agreed that if the cattle increase in net weight, the said parties of the first part are to allow the said parties of the second part eight (8) cents per pound for such net increase; but in the event they should decrease in net weight, the said parties of the second part are to allow the said parties of the first part eight (8) cents per pound for such net decrease, to be determined when sales of the cattle are made; the said parties of the first part reserving the right to sell the cattle, or any portion thereof, at any time, first giving the said parties of the second, part the refusal to buy the cattle offered at the price they (the said first parties) propose to sell. It is further agreed that the said parties of the second part are to have, for feeding and taking care of said cattle, two thirds of the increase in the price the cattle are sold for over and above eight (8) cents per pound on the net weight of said cattle at the date of this agreement. It is further agreed that should there be any cattle remaining unsold on the 1st day of March, A. B. 1867, in case the parties hereto cannot agree on the market price at that time, each party to this agreement shall choose a man (and in case they cannot agree upon the market price, they shall choose a third man); the referees are to examine the cattle and fix the market price of that quality of beef, at the corral, on the net weight as aforesaid. In case one half th% cattle should be taken out and sold before the 15th February, 1867, the said parties of the second part agree to feed the remaining half until the 15th March, 1867, if so desired by the parties of the first part. It is also agreed and understood, that at any time the said parties of the first part may want to market said cattle at San Francisco or elsewhere, the expenses of driving and selling shall be divided between the parties hereto as follows, to wit: the said parties of the first part to pay one third, and the said parties of the second part to pay two thirds of the whole amount of the expenses necessarily expended in the sale of said cattle, or any number of them, at any one time. It is agreed that if half, or a less number than half, of the above named cattle should remain until the 15th of March, 1867, then on that day the valuation is to take place, instead of the 1st of March, 1867, as above mentioned. The above mentioned cattle, when sold, or delivered, are to be weighed out at the corral of the parties of the second part, they furnishing correct scales, and men to assist in weighing, when required or called on by the parties of the first part.”</p> <p>The plaintiffs received and kept the cattle at their ranch, in Solano County, and they were sold by the defendants, and the proceeds of the sales were received by them, as follows: Twenty-five head were sold on the 4th of March, 1867, at the plaintiff’s ranch, to one Stebbins, net weight.................................... 15,420 ibs. At nine and three fourths cents per pound, amounting to.................. $1,503 45 One hundred and two head were sold on the 25th of March, 1867, at plaintiff’s ranch, to one O’Connor, net weight............................... 64,775 ibs. At eight and a half cents per pound, e amounting to............................ $5,505 87 Two hundred and fourteen head were sold, after being slaughtered and dressed as beef, in San Francisco, in March, 1867, for the sum of.i... $12,491 20 The weight of the dressed beef, as sold, being.............................. 142,024 ibs. Total net weight of cattle and beef.. 222,219 ibs. Total amount of money received..... . $19,590 52</p> <p>The whole expense of driving the two hundred and fourteen head of cattle to San Francisco, of slaughtering and dressing them into beef, of selling the beef, and of feeding .them from the time they were taken from plaintiff’s ranch until they were slaughtered, was paid by defendants, and amounted to the sum of eight hundred and sixty-one dollars and seventy-two cents.</p> <p>There was also connected with the sale of the one hundred and two head sold to O’Connor, .an expense, which was paid by defendants, amounting to one hundred and two dollars.</p> <p>The net weight of the two hundred and fourteen head, when they left plaintiffs’ ranch, to be sent to San Francisco, was one hundred and thirty-eight thousand two hundred and sixty-seven pounds, being three thousand seven hundred and fifty-seven pounds less than the weight of the beef of the same cattle when slaughtered and ready for sale at San Francisco.</p> <p>The total weight of the cattle at the time of the sales, if those sold in San Francisco be counted at the weight of the beef sold in San Francisco, would be an increase upon the net weight of the cattle at the time they were received by plaintiffs, on the 3d day of November, 1866, of nine thousand one hundred and sixty-four pounds.</p> <p>By counting the net weight of the two hundred and fourteen head of cattle sold in San Francisco at their net weight when they left plaintiffs’ ranch, which was one hundred and thirty-eight thousand two hundred' and sixty-seven pounds, then the increase of the net weight upon the original weight, when received by plaintiff, would be five thousand four hundred and seven pounds.</p> <p>The Court below found as a conclusion of law that the weight of the two hundred and fourteen head sold in San Francisco was to be estimated at the plaintiffs’ corral, and not in San Francisco where they were sold, thus allowing plaintiffs for five thousand four hundred and seven pounds increase in weight instead of nine thousand one hundred and sixty-four pounds, which would have been the amount if estimated at San Francisco.</p> <p>The plaintiffs recovered judgment for three' hundred and sixty dollars and eight cents, and appealed from the judgment.</p>

The defendants, whose names are given, appealed from the order granting a new trial. The other facts are stated in the opinion.

José Joaquin Bernal died in 1834, seized in fee of the Rancho Santa Teresa, leaving surviving him eleven children, his sole heirs at law, among whom Marcellina Bernal was one. Marcellina afterwards intermarried with Julio Valencia, and there was, issue of this marriage, five children, two of whom were named Maria Eusebia Valencia and Antonio Valencia.

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

The demanded premises are described in the complaint as follows: “ Commencing on the east bank of the Sacramento Diver at the southeast corner of Sacramento City, and running from thence south fifty degrees and forty-five minutes east along the southerly line of what are called the ‘ Ten-acre Tracts ’ ninety-six chains and twenty links; thence due west to the Sacramento Diver; and thence up and along said Sacramento Diver to the place of beginning.” The plaintiffs, to…

This was an action to recover an assessment for grading California street, from Gough street to Cemetery Avenue. At the trial the plaintiff made a prima facie case by introducing in evidence the assessment, diagram, warrant, and return, together with the record thereof and proof of assignment of the assessment, etc., to him, and then rested.

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

<p>Statement on Motion foe New Trial.—When a nonsuit is granted, and the plaintiff makes a statement on motion for a new trial, in the specification of reasons why a new trial should be granted, he must insert the alleged error of granting a nonsuit.</p> <p>New Trial as to One not Appealing.—If there are several defendants, and an order granting a new trial is erroneous as to one, the error as to him cannot be corrected on the appeal of the others, in which he does not join.</p> <p>"Substitution of Executor as Defendant.—If, pending an action, one of the defendants dies, and on plaintiffs’ motion his executor is substituted as defendant in his place, and no notice of this fact is served on the executor, and he does not appear or answer, or adopt the answer of his testator as his own, and the testator is named in the judgment, the rights of the executor are not affected by the trial and judgment, and a judgment rendered is a nullity, so far as he is concerned.</p> <p>Judgment in Eator of One Dead.—A judgment in favor of a dead man is a nullity.</p> <p>Authority of Attorney to Accept Service of Notice.—When service of a notice of motion for a new trial is accepted by one attorney for another, who was his associate on the trial, each, however, appearing for different defendants, it will be presumed that he had authority to accept the service, if the point is first raised in the Supreme Court.</p> <p>Proof of Possession in Ejectment.—If, in ejectment, the defendant admits in his answer that he is in possession of a portion of the demanded premises, it is not necessary for the plaintiff to prove his possession.</p>

The defendant was convicted of the crime of grand larceny, and his motion for a new trial having been overruled, he 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.

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

<p>Bill to Caret a Decebe into Effect.—A bill in equity will not lie to carry into effect an interlocutory decree.</p> <p>Idem.—A hill to carry a decree into effect must ordinarily show such decree to have been final in its character, and that by reason of something occurring subsequently to its rendition, the rights of the parties cannot he properly enforced thereunder.</p>

The plaintiff was a taxpayer in the County of Placer. The plaintiff demurred to defendants’ answer and the demurrer was sustained. The Court below gave judgment, directing the warrants to be brought into Court and canceled, and enjoining the Treasurer from paying them. The defendants appealed. The other facts are stated in the opinion.

The defendant by two several policies insured one Stoutenberg against loss by fire of certain goods and fixtures in a store in the City of Sacramento. The store was destroyed by fire on the 31st day of December, 1869, and thereafter Stoutenberg, for a valuable consideration, assigned his interest in the policy to the plaintiffs, who brought this action to recover the amount of the insurance.

<p>Appeal from the District Court of the]First Judicial District, County of San Luis Obispo.</p> <p>The defendants had judgment, and the plaintiffs appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Phonographic Beporter’s Notes op Evidence.—The notes of evidence taken by the Phonographic Beporter at the trial, and transcribed into long hand, even if verified by his affidavit, do not constitute a part of the record on appeal for any purpose.</p> <p>Bill op Exceptions to be Signed.—A bill of exceptions not signed by the District Judge will be disregarded on appeal.</p>

<p>Quitclaim Deed—-Pbe-bmption.—A conveyance by a quitclaim deed does not preclude the grantor from afterwards acquiring and holding the same land by preemption under the laws of the United States.</p> <p>Ceetieicate oe Beceivbb oe United States Lands as Evidence.— A certificate of the Beceiver of a Land Office of the United States, that a person therein named has made full payment for a tract of land therein described, under a preemption entry, is evidence that the person to whom it is given has taken the necessary steps towards preempting the land, and has paid for the same, and establishes in such person a right to the possession of the land, as against one who shows no title.</p>

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

<p>Redemption of Property Sold on Execution.—A redemptioner may-exercise his right to redeem land sold on execution, if no redemption has been made by the judgment debtor, at any time during the six months after the sale; and if in sixty days thereafter there is no redemption from him, the right to redeem, from him is gone, even as to the judgment debtor and he is entitled to a Sheriff’s deed.</p>

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

<p>Appeal from the District Court of the Third Judicial District, County of Santa Cruz.</p> <p>The plaintiff averred, in substance, in his complaint, that since the 1st day of January, 1868, he had been in possession of the northwest quarter of section eight, township number ten south, range three west, Mount Diablo base and meridian, and that he had valuable improvements thereon, consisting of a dwelling house, etc.; that December 10th, 1869, the official plat of the survey of the land was filed in the office of the Surveyor General of the United States, and in the land office of the local district; that on the 1st day of February, 1870, he made application to the Surveyor General of the State of California to purchase the land in lieu of the northeast quarter of section sixteen, township four south, range one east, Mount Diablo meridian, which last named land was within the limits- of a private grant; and he filed with his application his affidavit for location, as required by the Act of March 28th, 1868, and that on the 7th day of April, 1870, he filed with the Surveyor General an amended application and affidavit; that December 23d, 1869, defendant applied to the Surveyor General to purchase the land from the State, and filed his affidavit and application; that June 22d, 1870, the plaintiff filed in the office of the Surveyor General a protest against the approval of defendant’s application, and a contest arose between the applicants involving questions of law and fact, and the Surveyor General, at the demand and request of the plaintiff*, on the 17th day of September, 1870, made an order that the contest be referred to the Court for decision, a certified copy of which accompanied the complaint.</p> <p>The defendant demurred to the complaint, because it appeared on the face of the complaint that the Court had no jurisdiction of the subject matter of said action, or of the parties thereto, and because the complaint did not state facts sufficient to constitute a cause of action. The Court overruled the demurrer.</p> <p>The Court below gave judgment that the plaintiff was entitled to purchase the land. The defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Appeal from the District Court of the Twelfth Judicial District, City and County of San Francisco.</p> <p>Ejectment for two tracts of land lying in the City and County of San Francisco, and in San Mateo County. By agreement of counsel the answer filed in one case was to be taken as the answer in the other, and the cases were tried together.</p> <p>The plaintiffs first offered the patent in evidence, and it was admitted that the demanded premises were covered by the grant, and that the land described in the survey and patent also included the demanded premises.. The deed from Pierce, the confirmee, to Johnson, was then offered in evidence, when it was objected to by the defendants, because executed long prior to the issuance of the patent. The plaintiffs recovered judgments, and the defendants appealed.</p> <p>The other facts are stated in the opinion.</p>

Arthur Eggelso was, on the 24th day of July, 1854, the owner of one hundred vara lot one hundred and fourteen, and on said day executed the deed referred to in the opinion. It described the grantees as “Henry Graff, John J. Fulton, Samuel Rea, and William Graff, composing the firm of Graff, Fulton & Co., parties of the second part.” The lot was purchased with partnership funds, and used for partnership business.

<p>Title under, the Van Hess Ordinance.—Occasional and casual acts of dominion exercised over land in -San Francisco, without cultivating it or surrounding it with a fence, are not sufficient to establish title under the Van Hess Ordinance.</p> <p>Deed oe Land not in Possession ot Grantors.—A deed of a tract of land in San Francisco, only a portion of which has been so reduced to possession by the grantors as to give them possession, or the right to possession or title under the Van Hess Ordinance, will confer upon the grantees no right under the ordinance, except to the part actually inclosed and reduced to possession.</p>

The plaintiff and Fabian Hildebrand were partners, engaged in the business of contracting for and performing street work, under the name of Fabian Hildebrand & Co. On the 27th day of September, 1867, the firm contracted with the City of San Francisco to improve Market street, from East to Steuart. This action was brought against the defendant, as the owner of a lot fronting on the improved street, to recover the assessment thereon.

Ejectment to recover the northeast quarter of the southeast quarter of section five, township nine south, range one west, Mount Diablo base and meridian, and the improvements thereon. Younger & Logan, the lessors of defendants, were allowed to appear and defend the action.

<p>Appeal erom Order Arresting Judgment.—An appeal cannot be taken from an order made after a verdict of guilty, in a criminal case, arresting the judgment.</p>

This action was commenced on the 16th of June, 1868. The Court below rendered judgment for the defendants, and the plaintiff appealed. The other facts are stated in the opinion.

<p>Discretion of the Court or Judge.—An order made upon a motion to dismiss an application for a new trial, on the ground that the same has not been prosecuted with due diligence, is very much in the discretion of the Court or Judge making it; and unless it is apparent that such discretion has been abused, the order will not be reversed.</p>

The defendants demurred to the complaint and the Court below overruled the demurrer. The defendants appealed. The other facts are stated in the opinion.

<p>Appeal from the District Court of the Fourth Judicial District, City and County of Ban Francisco.</p> <p>The Court below rendered judgment for the defendant. The plaintiff appealed.</p> <p>The other facts are stated in the opinion.</p>

The defendant was a corporation, and owned a railroad known as the Potrero and Bay View' Bailroad, which for a considerable distance passed along Kentucky street. It was excavating a deep cut for its track in Kentucky street. The grade had an ascent leading along the street into this cut, and when the cars were loaded with dirt they were propelled by their own weight down this grade, along the street to where the dirt was dumped.

This action was brought against defendant Sargent and the land assessed, to recover the State tax and county tax as well as for the county school tax and the township road tax. The Court below rendered judgment in favor of the plaintiff for the State tax and general county tax. The other facts are stated in the opinion.

<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 notes in suit were assigned to the plaintiffs before the action was brought. The evidence tended to show that in 1862,1863, and 1864 the Amador and Nevada Wagon Boad Company was acting as a corporation, and that on the 3d day of June, 1862, it opened subscription books and the defendants subscribed to its capital stock. The capital stock was forty thousand dollars, divided into eighty shares of five hundred dollars each.

<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>

The note sued on was for three thousand three hundred dollars gold coin, with interest at five eighths of one per cent per month, and was due ten months after date. The plaintiff recovered judgment in the Court below, and the defendant appealed. The other facts are stated in the opinion.

<p>Appeal from the District Court of the Third Judicial District, Santa Clara County.</p> <p>Ejectment to recover possession of a tract of one hundred and thirty-four acres of land in Santa Clara County. Henry Haslett, the deceased, settled on it in 1857 or 1858, and inclosed it and built a house on it, and resided on it, and claimed it to be public land, but at the same time determined to buy the title if it should prove to be a part of the pueblo lands of the City of San José, or part of the Santa Teresa Banch. He died in possession of it, in October, 1868. The land proved to be part of the Santa Teresa Banch, which had been granted by the Mexican Government to parties, from whom the defendant deraigned title to an undivided part. The grant was confirmed and located by a final survey, approved August 31st, 1863. In 1865 an action for partition of the rancho was commenced, and final judgment was rendered in 1868, in which the demanded premises were set off to the defendant. After Ilaslett’s death the defendant entered into possession. It was while the action for partition was pending that Haslett asked the defendant if he would not sell or rent him the land if it should be allotted to him in the partition. The Court below rendered judgment for the defendant. The plaintiff appealed.</p> <p>The other 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> <p>The facts are stated in the opinion.</p>

This is the third appeal taken in this cause. The case will be found reported in 30 Cal. 65, and 37 Cal. 437. It was an action to quiet the title to fifty vara lot number seventeen, situate on Jackson street, between Montgomery and Kearny streets, City of San Francisco. The facts will be found in the former reports.

On the 16th day of September, 1871, James E. Corbet commenced a suit against Noel Davenport, on the promissory note, for one thousand and thirty-seven dollars and fifty-five cents, mentioned in the opinion. A summons was issued, which was served by the Sheriff on the defendant on the eighteenth of September.

<p>Appeal from the District Court of the Tenth Judicial District, County of Sutter.</p> <p>Ejectment to recover possession of eighty acres of land in Sutter County. The demanded premises are a portion of a tract of eight hundred and forty acres, all within the Sutter grant patented to him by the United States, in June, 1866. On the 23d day of July, 1850, Sutter and wife conveyed the eight hundred and forty acres to J. W. Thrift, A. M. Harris, and Alexander Anderson.</p> <p>The Court found as a fact, that Thrift and his co-tenants entered into possession under the deed.</p> <p>The defendants, on the second trial, introduced evidence tending to show that July 1st, 1850, Sutter and wife deeded the eight hundred and forty acres to Robinson, Fowler and others, which deed was recorded July 8th, 1850. This evidence was offered to show that Thrift and others did not acquire the true title by their deed. On the 13th of April, 1853, Morgan and others obtained a judgment against said Thrift and others, and obtained an execution and had the land sold at Sheriff’s sale, and the plaintiff Russell became. the purchaser, and received a Sheriff’s deed December 10th, 1853. Thus the plaintiff had the title of Thrift and others, and the Court found he entered into possession under his deed. There was evidence tending to show that his possession was confined to one or two buildings on the tract, and it is on this point that the Court on this appeal say that the decision on the former appeal is the law of the case, as it was then held that the plaintiff’s possession was sufficient to give him constructive possession of the whole tract. The plaintiff possessed the land without any adverse claim,, until 1866, when the defendant entered on to the demanded premises without title or color of title.</p> <p>The plaintiff recovered judgment and the defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

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

<p>Appeal from the District Court of the Third Judicial District, County of Santa Clara.</p> <p>The complaint contained the following averments:</p> <p>“ That heretofore, to wit: on the 5th day of March, A. D. 1806, and from then until the 6th day of March, A. D. 1868, he was the legally elected, qualified, and acting District Attorney of said Santa Clara County, State of California, in the continuous discharge of the duties and functions of said office;</p> <p>“ That on or about the 5th day of August, A. D. 1867, and while this plaintiff was such District Attorney as aforesaid, and while he was so in the discharge of the duties and functions of said office, a certain action was instituted in the District Court of the Fourth Judicial District of the State of California, in and for the City and County of San Francisco, by direction of the Board of Supervisors of said Santa Clara County, in which said action said Santa Clara County was plaintiff and Peter Donahue, C. B. Polhemus, and H. M. Uewhall were defendants;</p> <p>“ That said action was so instituted by George Barstow and Tompkins, by direction of said Board of Supervisors, on the 5th day of August, A. D. 1867, to recover certain large sums of money, to wit: about two hundred thousand dollars, then due, owing, and payable by said Donahue, Polhemus, and Hewhall to said Santa Clara County;</p> <p>“ That said action was so instituted without the knowledge of this plaintiff, and on behalf of said Santa Clara County, and in the name thereof;</p> <p>“ That plaintiff herein was ever ready and willing, at all times during the period of his incumbency of said office of District Attorney, to perform and discharge all the duties incident or appertaining to said office, and before and at the time of the commencement of said action, plaintiff, in writing, informed and otherwise advised said Board of Supervisors that, as such District Attorney, he was ready, willing, and desirous of commencing and prosecuting said action, and any and all actions- and proceedings whatsoever, requisite and necessary for the recovery of said moneys and indebtedness due, owing, and payable as aforesaid by said Donahue, Polhemus, and Hewhall to said county, on its behalf;</p> <p>“ But said Board of Supervisors disregarded the offer of this plaintiff, as such District Attorney, to institute and prosecute said action, and procured the same to be commenced in the name of said county, in said Fourth Judicial District Court, without the knowledge of this plaintiff, as aforesaid, and by counsel, as aforesaid, other than this plaintiff, as the District Attorney of said county, and hot of plaintiff’s selection or choice;</p> <p>“ That soon after the commencement of said action, and as soon as plaintiff became aware of such commencement thereof, on, to wit: the 24th day of August, A. D. 1867, plaintiff herein filed his written motion as such District Attorney in said action, and in said Fourth Judicial District Court, he, this plaintiffj having first given written notice of the time and place of the hearing of said motion, according to law, to said Barstow and Tompkins, wherein and whereby plaintiff, as such District Attorney, moved said Court that he be substituted, as such District Attorney, as one of the attorneys of record for said county in said action;</p> <p>“ That at the time of the making of said motion, plaintiff herein did, as required by the rules of said Fourth District Court, show to said Court his affidavit then filed, and by other competent written evidence, all of the facts, matters, and things hereinbefore stated and set forth;</p> <p>“ That said Fourth Judicial District Court was, on the day last aforesaid, in session, and entertained said motion, and heard and considered the same, and 'being fully advised, allowed and granted the same, and directed that this plaintiff, as such District Attorney of said Santa Clara County, be entered of record in said Court and in said action as one of the attorneys of record therein, according to the prayer in said motion contained;</p> <p>“ That afterwards, and on the same day and year, said Court, upon the motion of one - Tompkins, Esq., caused an order to be entered of record in the minutes of said Court, vacating said order theretofore made granting said motion of this plaintiff to appear and be entered of record in said action, and thereafter refused to permit or allow this plaintiff to appear or act on behalf of said county in said action, as such District Attorney, for said county or otherwise;</p> <p>“ That afterwards, and on the-day-, A. D. 1867, plaintiff herein, as such District Attorney of said Santa Clara County, filed his written petition, verified, in the Supreme Court of the State of California, in which said petition all of the facts, matters, and tilings hereinbefore stated were at large set forth, and wherein and whereby plaintiff prayed said Supreme Court that a peremptory writ of mandamus issue to compel the Hon. E. D. Sawyer, who was, at the time of the commencement of said action in said Fourth Judicial District Court, ever since has been, and yet is the legally acting District Judge thereof, as such Judge of said District Court, to discharge and perform his official duty, and to permit this plaintiff to appear and act on behalf of said Santa Clara County, as the District Attorney thereof, in said action;</p> <p>“ That said Sawyer, as such Judge of said Fourth Judicial District Court, was duly notified, as required by the rules of said Supreme Court, of the time and place of the hearing of said petition, and required to answer in said Court in obedience to said notice;</p> <p>“ That afterwards, and on the 24th of December, A. D. 1867, and while said proceedings against said the Hon. B. D. Sawyer were pending in said Supreme Court, there was collected by means of said action, in said Fourth Judicial District Court, upon said indebtedness of said Donahue, Polhemus, and Hewhall, to said County of Santa Clara, the sum of one hundred and twenty-eight thousand dollars, which said amount was forthwith paid into the County Treasury thereof, and became and now yet remains a part of the funds and property of said Santa Clara County;</p> <p>“ That said moneys were so collected and paid into said County Treasury in pursuance of a certain agreement and compromise of said action made by said Board of Super-* visors on behalf of said Santa Clara County, with one Chas. Mayne, Peter Donahue, and H. M. Hewhall, on behalf of said defendants in said action, and in payment of said indebtedness of said Peter Donahue, C. B. Polhemus, and IT. M. Hewhall to said County of Santa Clara, and in discharge of the liabilities of said defendants in said action.</p> <p>“ Plaintiff further avers that by reason of the collecting of said sum of one hundred and twenty-eight thousand dollars, as aforesaid, by said action, there accrued to this plaintiff the right to have and recover of and from said Santa Clara County ten per cent upon said sum and moneys so collected and paid into said County Treasury of said county, to wit, the sum of twelve thousand eight hundred dollars.”</p> <p>The defendant demurred to the complaint because it did not state facts sufficient to constitute a cause of action. The Court below sustained the demurrer, and the plaintiff declining to amend, final judgment was rendered against him. The plaintiff appealed.</p>

The defendants, of whom there were several, were in possession of separate parcels of the demanded premises, and answered separately. In Uovember, 1855, the plaintiff left the City and County of San Francisco, and engaged in business in the Counties of Fresno and San Joaquin, more than one hundred miles from San Francisco, and did not return to San Francisco until February, 1863. The plaintiff had judgment in the Court below and the defendants appealed.

The complaint in this action started with the following averments: “ That during all the times hereinafter stated, the said defendants, R. T. Reynolds and Leonard Washburn, were partners in business in said City and County of San Francisco, under the firm name of R. T. Reynolds & Oo.

<p>One Indicted as Accessory a Witness Against the Principal.—One jointly indicted with another, as an accessory after the fact, is a competent witness for the people on the trial of the principal. He is not obliged to criminate himself, but whether he do so or not, is a matter which does not concern the defendant; and he may refuse to testify unless first discharged from the indictment; but this is a matter over which the defendant has no control.</p> <p>Idem.—An instruction- by the Court to such witness, that his evidence cannot be used against himself, even if erroneous, does not prejudice the defendant.</p> <p>Sheriff may Testify to Statements of Accused.—The Sheriff may testify to statements made to him by the accused after his arrest, if such statements are made voluntarily, without any threats or promises of reward.</p> <p>Defendant a Witness in his own Behalf.—If a defendant in a criminal case becomes a witness in his own behalf, and gives testimony tending to exonerate himself, the Court need not, of its own motion, instruct the jury as to the credit to be given to his testimony.</p> <p>Idem.—The statute declaring that when a defendant in a criminal case becomes a witness in his own behalf, the credit to be given to his testimony must be left solely to the jury, under instructions' of the Court, does not establish a new rule for defendants in criminal cases, but simply applies to them a rule which exists as to other witnesses.</p> <p>Possession .of Stolen Property.—An instruction to the jury, that “the possession of stolen property is not alone sufficient to convict,” and that' “ it is merely a guilty circumstance which, taken in connection with .other testimony, is to determine the question of guilt,” is not erroneous by.reason of the use of the words “ guilty circumstance.”</p> <p>Receiving the Verdict of a Jury.—The irregularity of receiving a verdict in a criminal case, without first calling over the names of the jurors, does not prejudice a defendant, if the jury were all present and had agreed.</p>

<p>Actions against Attobneys eob Negligence.—In actions against attorneys for negligence or want of skill in the management of suits, when the facts are ascertained the question of negligence or want of skill is a question of law for the Court.</p> <p>Idem.—If the attorney for a party makes a mistake or blunder, by submitting a motion for a new trial before the statement is certified, by reason of which the appellate Court is prevented from looking into and reviewing the action of the Court below on the trial, and the attorney is sued for such mistake or blunder, the Court cannot assume, in the case against the attorney, as matter of law, that the Supreme Court would have decided the case against the attorney’s client if it had been fairly before it, and that, therefore, the client has sustained no damage.</p> <p>"What is Negligence in an Attobney.—An attorney is liable for the want of such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise.</p> <p>Idem.—It is a want of ordinary care and skill in an attorney to submit a motion for a new trial before the statement in support of it is certified.</p> <p>Eyidehoe to Prove what is Negligehce ih ah Attorhey.—In an action against an attorney for negligence in conducting a suit, evidence of another attorney is not admissible to show that, upon the facts admitted or proved, the attorney was guilty of negligence.</p> <p>Ah Error which does ho Harm.—A new trial will not be granted by reason of an error committed during the trial, which does the moving party no harm.</p> <p>Judicial Notice of Evidehce.—If the Court excludes a remittitur as evidence, on the ground that it will take judicial notice of it, the presumption is that it did take j udicial notice of it.</p>

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

The petitioner was brought before Mr. Chief Justice Wallace, at chambers, on an application to admit him to bail in a sum less than the amount fixed by the committing magistrate—the Municipal Criminal Court of the .City and County of San Francisco having refused to entertain a similar application. The facts are stated in the opinion of the Chief Justice.

Ejectment to recover the “ narrow strip of the land conveyed to Wainwright, included within the lines of the O’Connor lot ” mentioned in the opinion. The defendant appealed. The other facts are stated in the opinion.

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

<p>The prisoner, Joseph Max, petitioned to be discharged on habeas corpus.</p> <p>The other facts are stated in the opinion.</p>

The plaintiff sued the two defendants on a promissory note made by Turner, who signed the names of “ Stearns and Turner ’’ to it. The complaint alleged that the defendants were partners and made the note as partners. Stearns answered, denying the partnership.

County of San Erancisco. The estate was in the hands of the Public Administrator. The money was withdrawn by him from the Hibernia Savings and Loan Society, on the 19th day of December, 1870. On the 15th day of January, 1872, lie presented bis filial account. On the 16th day of April, 1872, the Court made an order charging him with the sum of three hundred and seventy-four dollars and fourteen cents interest on the sum withdrawn. The administrator appealed.

The land sold was an undivided one fourth of a tract of fifty-two acres.- At the time of the sale eight hundred and thirty dollars was paid to the plaintiff, and the following is the written memorandum of agreement referred to in the opinion of the Court: “ Memorandum of agreement made and entered into this 15th day of December, A. D. 1858, between J. Franklin Williams and Josiah Sturgis of the first part, and John A. Price and Mistress Mary E. Price of the second part,…

• The defendant was convicted of murder, and appealed from the judgipent upon the judgment roll alone, alleging error in the instructions given to the jury by the Court, of its own motion.

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

The plaintiff had been at work for the defendant as clerk and salesman in his store for three and one half years, when on the 3d day of April, 1871, the defendant caused Mm to be arrested on a charge of having embezzled two dollars and fifty cents. Tlie plaintiff recovered judgment for fifteen hundred dollars. The other facts are stated in the opinion.

Application to the Supreme Court for a writ of certiorari to the Board of Supervisors of the City and County of San Francisco.

<p>Making Copy op Assessment Book by Aüditob,.—The Auditor, in making a duplicate of the assessment book for the Tax Collector, must observe and follow such alterations as have been made by the Board of Supervisors in the exercise of their power in equalizing the assessed value of property, but he must disregard an order of the Board canceling an assessment, or any order of the Board by which it assumes an authority not conferred upon it by law.</p> <p>Idem.—While the Auditor, in making a copy of the assessment book for the Tax Collector, cannot review or correct the errors of the Board of Supervisors while acting within the sphere of their authority, still he must disregard any order of the Board which it had no j urisdiction to make.</p> <p>Power op Supervisors to Cancel Assessment.—A Board of Supervisors has no authority to cancel an assessment of property made by the Assessor and placed by him on the assessment book, and if the Board make such order it is a nullity.</p> <p>Writ op Mandate to Auditor—The Auditor will be compelled, by writ of mandate, to deliver to the Tax Collector a correct duplicate of the assessment book, as made by the Assessor, with such alterations only as have been made by the Board of Supervisors while acting within the sphere of their authority.</p>

Action to recover taxes assessed for tbe year 1869 on Lot B, Block 765; Lot A, Block 773; Lot B, Block 773; Lot E, Block 765; Lots E, II, and I, same block; Block 743, Block 559, Block 567, Block 568, Block 571, Block 632, Block 659, Block 662, and west half of Lot 1148, eighty acres in tbe City of San Diego. The complaint averred that defendant Culverwell owned the property and that it was assessed to him.

Ejectment to recover the north one third of lot three, in the block hounded by Front and Second and O and B streets, in the City of Sacramento. The plaintiff relied on the title acquired at the tax sale mentioned in t-lie opinion. The tax suit was brought December 20th, 1865, to recover judgment for the tax of 1865. The plaintiff recovered judgment, and the defendants appealed. The other facts are stated in the opinion.

<p>Proof in Action for Street Assessment.—In an action for the recovery of an assessment for the improvement of a street in San Francisco, it is necessary for the plaintiff to prove, if the same is denied, that notice of the award of the contract to the plaintiff for the improvement was published for five days, pursuant to an order of the Board of Supervisors.</p> <p>Advertising for Proposals to do Street Work.—A resolution of the Board of Supervisors of San Francisco, authorizing their Cleric to advertise for proposals to do certain work mentioned in the resolution, on a street therein named, is sufficient authority to said Clerk to advertise five days for proposals, in the mode provided by law, as well as to post notices in the office of the Superintendent of Streets.</p>

<p>Appeal from the District Court of the Fifth Judicial Dis- . trict, Stanislaus County.</p> <p>The defendants appealed.</p> <p>The other 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> <p>November 14th, 1864, the plaintiff commenced an action against-Doyle, and John Doe, and Bichard Boe, to re-</p> <p>cover possession of part of block two hundred and ninety, in the "Western Addition. On the eighteenth of the same month the Sheriff returned the summons as served “ upon James Doyle (as Doyle) one of the within named defendants.” John Doyle answered, and on the 1st day of December, 1866, the Court rendered judgment against James Doyle. On the 19th of February, 1867, the Sheriff' returned a writ of possession unexecuted. An alias writ issued, and on the 19th of October, 1867, the plaintiff moved for an order on' the Sheriff to show cause why he should not execute the writ. The Court discharged the order, and plaintiff appealed to the Supreme Court. (See Ford v. Doyle, 37 Cal. 346.) Soon after the entry of judgment the judgment roll was lost or mislaid. On the 15th of October, 1867, a new judgment roll was filed by order of the Court to take the place of the old one. This new judgment roll did not contain a copy of the Sheriff’s return on the summons. After the decision of the Supreme Court the old judgment roll was found, and after the same had been found the plaintiff’s attorney gave notice of a motion, to be heard on the 29th of November, 1871, for an alias writ of possession to issue.</p> <p>The motion was based on an affidavit of plaintiff’s attorney reciting the above facts, and assigning particularly why the writ should issue—the fact that the judgment roll had been found containing the Sheriff’s return. It was not asserted but what the plaintiff knew all the time of the Sheriff’s return, and but what he might have had a copy of it placed in the substituted judgment roll. On the hearing of the motion the defendant objected, and the Court ordered the writ to issue, but stayed proceedings under it, and reserved its decision on the objection.</p> <p>The defendant moved to quash the writ, and on the 27th of December, 1871, the Court granted the motion. From this order the plaintiff appealed.</p>

<p>Treasury Notes a Legal Tender tor County Bonds.—Bonds issued by a county, either after or before the passage of the Legal Tender Act of Congress, made payable in money generally, and issued under a law which does not require payment to be made in any specified kind of money, may be paid in legal tender notes.</p>

<p>Appeal from the District Court of the Fourth Judicial District, City and County of San Francisco.</p> <p>The plaintiff had been employed by the defendant as a salesman and bookkeeper in his boot and shoe store, and he discharged him, and thereafter published in the San Francisco Chronicle the following articles, which constituted the libels declared on:</p> <p>“ P. Kelly, prize bootmaker, desires to inform his customers and the public in general, that, owing to the great increase of his business, he has made a change in the ladies’ custom department, by discharging those who were incompetent, and employing three of the most experienced artists from Hew York.”</p> <p>“ To Business Men: Advice from P. Kelly.—When you have incompetent men in your employ, discharge them at once, as P. Kelly does, and get better ones in their stead.</p> <p>“P. KELLY,</p> <p>“Prize bootmaker.of the Pacific Coast.”</p> <p>The plaintiff recovered judgment, and the defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Appeal from the District Court of the Second Judicial District, County of Butte.</p> <p>The ditch about which this controversy was had lies in Butte County, and takes the water of Butte Creek, near Heal’s sawmill, and extends down the banks of Butte Creek and over the divide between little Butte Creek and Dry Creek to Dry Creek; thence along Dry Creek, over the mountain, to St. Clair Elat, and thence along the foot of Table Mountain to Thompson’s Elat. It was excavated over public lands, and crossed the northeast quarter of the southwest quarter and the north half of the southeast quarter and the southeast quarter of the southeast quarter of section twenty-three, and the northwest quarter of the northwest quarter of section twenty-five, township twenty north, range three east, Mount Diablo base and meridian. These were the lands the plaintiff" purchased from the United States. It was excavated and the water of the creek appropriated in accordance with the local customs and the decisions of the Courts of this State, and the water was used for mining purposes. It cost, when excavated, twenty thousand dollars.</p> <p>The defendants recovered judgment in the Court below. The plaintiff appealed.</p> <p>The other facts are stated in the opinion.</p> <p>Burt £ Sexton, for Appellant, argued that while the land was public the ditch owners were tenants at will of the United States, and became so of the plaintiff at his purchase, and that the possession of defendants could not ripen into a title, under the Statute of Limitations, without their giving notice that they were going to hold adversely, and cited Rick v. Smith, 9 Wheat. 241, p. 288; Ricard v. Williams, 7 Wheat, p. 105; Brandt v. Ogden, 1 John. 156; Medford v. Pratt, 4 Pick. 222; Gloucester v. Beach, 2 Pick. 60 and note; Bachelder v.Wakefield, 8 Cush. 243; Washburn on Easements, p. 124, Secs. 26, 27; Angell on Watercourses, p. 258, Sec. 216.</p>