Volume 45 — California Reports

<p>When Attachment Cannot be Issued.—One who receives the stock of an association, as collateral, to secure him for a liability incurred by signing a promissory note, and who is compelled to pay the note thus signed, cannot sue out an attachment in an action brought to recover the money thus paid.</p> <p>Idem.—In such case, the party receiving the stock has some interest in the certificates, and the value of his lien, or its Sufficiency to cover the amount • of the claim it was intended to secure, or the question whether the certificates were indorsed, are matters not to be inquired into on a motion to dissolve the attachment.</p>

The county seat of Alameda County had been fixed at San Leandro since 1856. Held: to determine the question- of the removal ' of the county seat.

<p>Appeal from the District Court ot the Second Judicial District, County oí Tehama.</p> <p>Replevin to recover one hundred and seventy-iour sacks of peanuts or the value thereof. Ah Chong had a verbal lease of the land hereinafter described, from the defendant Whipple, and was growing peanuts thereon. Being indebted to the plaintiffs, he, on the 22d day ot August, 1870, gave them a mortgage on the crop growing on the south half of the northwest quarter of section two, township twenty-five north, range two west; which mortgage was recorded two days thereafter, and the plaintiffs put a man in charge of the same. August 8th, 1870, Ah Chong, being indebted to defendant Whipple, gave him a mortgage on the northeast quarter of the southwest quarter and the northwest quarter of the southeast quarter of said section, and the same day Whipple sold the debt to defendant Ward, and Ah Chong, on the same day, gave Ward possession of the mortgaged premises, with an agreement that he was to harvest and sell the crop and apply the proceeds towards paying the debt. On the 19th day ot October, 1870, Ah Chong gave the plaintiffs a mortgage on the- crop growing on the land covered by the Whipple mortgage, as further security for the payment of their debt. After this second mortgage, the plaintiffs took away from the land last named sixty-eight sacks of peanuts, which the defendant Ward had harvested. Defendant Ward harvested the peanuts on the land last named, and took away one hundred and seventy-four sacks. The plaintiffs sued to recover this one hundred and seventy-four sacks. The defendants, in their answer, set up that the plaintiffs had wrongfully taken away said sixty-eight sacks, and asked for judgment for return of the same or the value thereof. The Court below gave judgment for the defendant Ward for a return of the sixty-eight sacks, or three hundred and forty-seven.dollars and forty-eight cents, the value thereof. The plaintiffs appealed.</p> <p>The other facts are stated in the opinion.</p>

Application to the Supreme Court for writ of mandate. The Legislature, in March, 1872, passed an Act (Laws 1871-2, p. 723,) authorizing the Board of Trustees of the City of Sacramento to determine the quantity of water required daily for the use of said city, and then to advertise for plans, detailed specifications, and bids,'for the machinery and connecting pipes, delivered and set up in working order for supplying the quantity of water required.

<p>Limitation of Action on Official Bond. —An action upon an official bond is not an action “ upon a liability created by statute ” mentioned in the third subdivision of the seventeenth section of the Statute of Limitations, and is not therefore barred by such statute after the expiration of three years.</p> <p>Liability of Sureties on Official Bond.— The sureties of a County Treasurer are liable for public money received by him as Treasurer after the expiration of his term, so long as he remains in possession of the office, and until he delivers it over to his successor.</p> <p>Receipts of Principal on Official Bond.—The receipts of a County Treasurer given to a Tax Collector for public money, after tho expiration of his term, but before he has delivered possession of the office to his successor, are prima facie evidence to charge the sureties on his official bond.</p>

The plaintiff averred in his complaint that, on the 17th day of June, 1869, the defendant Alva had paid the United States for the southwest quarter of section twenty-two, township twenty-six south, range ten east, Mount Diablo meridian, containing one hundred and sixty acres, and had received a certificate of purchase for it, and was in possession of it, and that on said day he made a verbal sale of the land to the plaintiff, in consideration of seven hundred dollars then…

The attorney for the appellant 'stated in his affidavit that he had relied upon the rules as last published iu the printed volumes of reports. The other facts are stated in the opinion.

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

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

The defendant, Charles Moore, and B. Doyle, were jointly indicted for the crime of robbery, alleged to have been committed by forcibly taking from the person of one Lewis Voyle a watch and gold and silver coin. The defendant had a separate trial, and was convicted, sentenced, and appealed. The appeal was taken on a bill of exceptions.

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

<p>Appeal from the District Court of the nineteenth Judicial District, City and County of San Francisco.</p> <p>This was an action to recover a street assessment.</p> <p>The facts are stated in the opinion.</p>

The action was against the defendants as debtors of a judgment debtor of plaintiff in a former action. Judgment was rendered for the defendants, and plaintiff moved for a new trial. The notice of motion for new trial was struck out by the Court and the new trial denied. The transcript contains a statement on appeal, and also a statement on motion for a new trial.

<p>Liability oe Cities.—Incorporated cities are not liable for injuries sustained by private individuals, caused by the neglect of the city officers in keeping its "streets in repair, unless made so liable by the Acts under which they are incorporated.</p> <p>Cities.—Incorporated cities are mere governmental instruments for purposes of internal administration, like counties created by law for the same purpose.</p>

<p>Appeal from the District Court of the Seventh Judicial District, County of Solano.</p> <p>Action to recover possession of personal property. The plaintiff alleged in his complaint that on the 13th day of August, 1869, he owned and possessed the property, and that on the same day the defendant took the same from him, and that he demanded possession on the 25th day of August, 1869, and the defendant refused to deliver the same. Judgment was asked for the recovery of possession, or if delivery could not be had, then for the value.</p> <p>In the Fall of 1869 the plaintiff purchased the property from one Wise, the consideration being the assumption by the plaintiff of certain debts of Wise, for which the property had been attached. The property was released from the attachment and returned to Wise, in whose possession it remained for some time, when the defendant, who was Sheriff of Solano County, levied on it by virtue of attachments issued in suits against Wise, and took it from Wise’s possession.</p> <p>The defendant first made one Dustan his keeper, after-wards one Simpson, and when Simpson had retained the property about eight weeks, made Wise his keeper. The writ of replevin issued in this case was placed in the Coroner’s hands, who took the property from Wise. ' The defendant justified under the attachments, and asked judgment for a return of the property or its value. ' On the trial in the Court below, the Court, at plaintiff’s request, instructed the jury as follows:</p> <p>“ Under our statute a levy of attachment on personal property capable of mantial delivery must be made by taking the property into custody. If the creditor permits property levied upon to remain in the hands of the debtor, his levy cannot operate to defeat the rights of the true owner thereof.</p> <p>“If the jury find that there was an actual sale of the property in suit made by Wise to Hawkins, and that the Sheriff, after levying the attachment against Wise, permitted the property to remain in the custody, or that he returned the same to the custody of Wise, then the said attachment did not affect the rights of Hawkins, and he had the right to take the same, even though the property had never been delivered to him, and the possession thereof had never been changed.”</p> <p>It will thus be seen that the theory on which the case was tried was, that the Sheriff had not possession of the property, but had permitted the defendant in the attachment to retain it, and that, therefore, the levy was void. This was in contradiction of the complaint, which averred that the Sheriff had possession.</p> <p>The plaintiff recovered judgment, and the defendant appealed.</p>

In February, 1872, eight judgments for delinquent taxes were rendered against the lots in the block between J and K and Twenty-second and Twenty-third streets, Sacramento City—an action having been brought against each lot separately.

<p>Appeal from the County Court of Los Angeles County.</p> <p>The defendant was convicted of an assault with intent to commit murder, under an indictment which charged the assault, and also charged an attempt to cause death by administering poison. The defendant demurred to the indictment, on the ground of duplicity, in charging two distinct offenses. The demurrer was overruled. The defendant was tried and convicted, and sentenced, and made this attempt to appeal.</p> <p>The other facts are stated in the opinion.</p>

Applications upon agreed statements for peremptory writs of mandate, commanding the respondents, as Justices of the Peace, to tax fees claimed by the petitioner as District Attorney of San Joaquin County. The petitioner successfully prosecuted certain cases of assault and battery before the respondents as Justices of the Peace in Stockton Township— one case in July and another in October, 1872.

<p>Appeal from the District Court of the Third J udicial District, County of Alameda.</p> <p>This was an action of ejectment, in which the complaint was filed.ancl summons issued in April, 1868. On the 9th of May, 1871, the defendants filed affidavits, to. the effect that they had not been served with summons until the 1st day of May, 1871, although they had lived near the plaintiff since the filing of the complaint. Upon these affidavits they moved to quash and set aside the service of summons, and to dismiss the suit. The plaintiff" objected to the Court entertaining the motion, on the ground that the defendants had made no appearance in the case, and that the motion was premature. In support of the objection they filed affidavits, stating that the action was commenced to save the Statute of Limitations; that by reason of questions involved in the Spanish title to the land, then in controversy in the Supreme Court, the plaintiff had been unable to have the cause tried; that in 1869 the plaintiff became bankrupt, and his assignee had no knowledge of the ownership by him of any interest in the premises in suit until immediately preceding the service of the summons on the defendants, and that there had been no laches of which the defendants could complain. The motion was granted, and judgment was rendered for defendants.</p> <p>McCormick, for Appellant, argued that it was error to dismiss the action before issue joined (Secs. 148, 523, Pr. Act), and that the plaintiff had not been negligent.</p> <p>Hamilton, for Respondent, argued that the service was too late to be a compliance with the statute.</p>

These actions were commenced to abate a dam, and to enjoin the diversion of water, and for damages. The trial was by the Court without a jury.

The action was commenced June 18th, 1872, and the summons was served on the defendant June 26th, 1872. Twelve days afterwards judgment by default was entered against the defendant. On the same day he moved for an order on the plaintiff to show cause why the default should not be set aside, the judgment vacated, and the defendant allowed to answer.

The .plaintiff brought this action to abate a sewer and sink, alleging it to be a nuisance. Defendant had judgment, and plaintiff appeals.

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

The plaintiff and defendant intermarried on the 24th day of November, 1867, and at that time the defendant owned a house and lot (the premises in controversy) situated at San ’ José, of the value of two thousand dollars. The plaintiff and defendant resided on the lot from January to April, 1868, when the plaintiff, the wife, at the husband’s request, went to San Francisco to reside, and the defendant remained in San José, and the premises were rented.

This suit was brought July 27th, 1870, to recover damages for an alleged trespass in entering the plaintiff’s close and digging up his land. The defendants in their answer allege that the acts complained of were done by them as officers of the county in proceeding by lawful authority to lay out and establish a public highway.

<p>Appeal from the District Court of the Third Judicial District, County of Alameda.</p> <p>This was an action for the restitution and possession of certain lands on the Encinal of San Antonio. The plaintiffs had judgment for the possession of the entire premises described in the complaint. Afterwards the Court modified the judgment so as to make it apply to a smaller tract. The defendants appeal from the modified judgment.</p>

<p>Appeal from the District Court of the Fourth Judicial District, City and County of San Francisco.</p> <p>On the 12th of October, 1868, the plaintiff commenced an action of ejectment to recover a tract of land, being a part of the Rancho Laguna de la Merced. The complaint described the demanded premises by metes and bounds, but did not state the number of acres. After the case was at issue,, and- on the 26th day of July, 1870, the cause w.as tried before the Court, without a.jury.- July 26th, 1870, the Court pronounced judgment from the bench in favor of the plaintiff. A judgment was entered by the Clerk for the premises, by metes and bounds, as described' in' the complaint. September 22d, 1870, the defendant gave notice of motion for a new trial, and.a statement was filed. July 14th, 1871, the motion for a new trial was denied. July 24th, 1871, the defendant appealed from- the order -and from the judgment. At the October Term, 1871, the Supreme Court affirmed the judgment, on the ground that the statement was defective, and it is in reference to this that the Court, in its opinion on this appeal, speaks of a stipulation. The remittitur" from the Supreme .Court was filed in the" 'office of the Clerk of the District Court, in November, 1871,. and an" execution was issued, under which the plaintiff was, by the Sheriff" on the 22d day of November, 1871, put. in possession of- the premises described in the complaint.' On the 2d day of Dé•cember¡¡ 1871, the defendant gave notice of motion to"- correct the judgment. The motion was heard December 8th, 1871. It appeared by the affidavits read- on the hearing, and'by the statement which had been filed'on the motion for a new trial, that, on the' trial, the plaintiff based his right to recover on a deed.which conveyed only eight acres in said rancho, while the tract described in the complaint embraced an area of more than fifty acres. The. affidavits filed by the moving party tended to show that the mistake in the entry of the judgment was not discovered until the writ was served. The Court below held that the judgment actually pronounced was only for the eight acres which the plaintiff’s proofs showed he was entitled to, and ordered that the judgment entered by the Clerk be canceled, and that the Clerk enter a judgment nunc pro tunc, as of the date of the original judgment, for the eight acres. The plaintiff appealed from this order.</p>

Suit on a note for two hundred and seventy-five dollars, and interest. The plaintiff obtained a judgment in a Justice’s Courtiff Contra Costa County for two hundred and seventy-five dollars principal and sixty-one dollars and sixty cents interest. On appeal to the County Court the judgment was affirmed. The transcript filed in the Supreme Court contains nothing to show that an appeal was intended to be taken.

Judgment in ejectment was entered for the plaintiff June 22d, 1872. Notice of intention to move for a new trial was filed by the defendant July 1st, 1872. On the 5th of July the plaintiff signed a stipulation agreeing that the defendant should have until July 8th in which to file his statement on motion for a new trial, the plaintiff’s attorney being temporarily absent from the county.

The plaintiff, ex rel. the Attorney General, commenced this proceeding in May, 1871, to oust “the Ophir Copper, Silver, and Gold Mining Company, of Placer County, California,” from the enjoyment of its franchise, charging in the complaint that under the name of the “ Ophir Copper, Silver, and Gold Mining Company” the defendants had usurped and intruded into certain corporate franchises and corporate powers which they had no right to exercise under that name.

The action was ejectment, and defendant had judgment by nonsuit.

Replevin for six horses mares and colts, four hundred fence posts, two plows, one reaper, three thousand pickets, and one cultivator. The complaint prayed for judgment for possession, and for five hundred and sixty dollars, the value thereof, and five hundred dollars damages. The defendant justified as Constable under a writ of attachment issued in a Justices’ Court at the suit of Conway & Co. against William C. Chapman.

The northwest quarter of section thirteen, township eight north, range five east, Mount Diablo meridian, was in the grant by Congress to the Central Pacific Railroad Company. Yovember 1st, 1865, the company had not received a patent therefor, but was willing to sell the same by giving a bond for a deed when the patent was issued. John H. Carroll was occupying some of this quarter section, and James McCloy the other part.

This suit was brought to enforce a mortgage given to secure the following promissory note: “ $2,641 yxny. “ San Francisco, March 12th, 1869. “ Two years after date, for value received, we jointly and severally promise to pay John T. Barry or order, the sum of twenty-six hundred and forty-one and eighty-seven one hundredths dollars, in gold coin of the United States, with interest from date until paid at the rate of ten per cent per annum, payable monthly, in the like gold…

S. W. Scott purchased a tract of land from the plaintiffs on the 27th of September, 1865, for four thousand dollars, and executed his three promissory notes to them for one thousand three hundred and thirty-three dollars each. One of these notes was payable in one year, another in two years, and the third in three years. Defendants J. M. Scott and Miles Scott signed, as sureties, the note payable in one year.

The plaintiff recovered a judgment, in September, 1869, against the defendant, for ten thousand one hundred and twenty-four dollars and thirty-two cents, and procured an execution on the same, under which the Sheriff of San Francisco sold several lots, as the property of the defendant, and the plaintiff purchased them for over seven thousand dollars, and received the Sheriff’s deed.

<p>Appeal from the District Court of the Seventh Judicial District, County of Lake.</p> <p>The facts are stated in the opinion.</p> <p>Seawell £ Shafler, for Appellant, referred to section twenty-four of the Act of March 20th, 1855, concerning Supervisors; section one of the Act of April 2d, 1857, for the presentation of claims against counties; and section one of the Act of March 5th, 1864, also in relation to presenting such claims, and argued that they were in conflict with the Act of March 27th, 1868, under which this action was brought. They further argued that a county could not be sued, except by consent of the State; and that the nature and measures of redress were entirely in the will and discretion of the Legislature, and cited Sharp v. Contra Costa County, 34 Cal. 284; also, that when a statute created a new right, and prescribed a remedy, such remedy was exclusive, and cited Meed, v. Omnibus M. M. Co., 88 Cal. 212; Ward v. Severance, 7 Cal. 126; Sedgwick on Stat. and Const. Law, 402. That the only remedy given to plaintiff by the statute was a right of action, and the only liability imposed on the county was a liability to be sued. “ The city or county in which such property was situated shall be liable in an action, etc., for the damages,” etc. The county was not liable, except in an action. The Board of Supervisors had no power to allow the claim. The whole matter seemed to be studiously withdrawn from the jurisdiction of the Board of Supervisors.</p>

This was an action to recover possession of lot number one, in the block bounded by K and L and Fifth and Sixth streets, in the City of Sacramento. The plaintiff claimed title under a deed alleged to have been made by Sutter, Jr., to Brannan, Bruce, Graham, and Wetzlar, on the 20th of June, 1850.

<p>Appeal from the District Court of the Second Judicial District, County of Lassen.</p> <p>The complaint alleges that the plaintiffs are heirs of Rufus Kingsley, deceased; that Kingsley and the defendant were equal partners in business; that the wife of Kingsley was appointed administratrix of the estate; that the defendant filed a statement in the Probate Court showing the amount of moneys received and paid out on account of the deceased partner; that the administratrix allowed the charges against the estate; that thereafter the final account of the administratrix was allowed by the Court and the administration of the estate was closed; that subsequently the plaintiffs ascertained that the defendant had made fraudulent charges against the estate and that he had retained property belonging to the estate; that all the debts of the copartnership had been paid, and that “ the wrongs and frauds complained of were only in part known at the time of the filing of said accounts in said Probate Court.” The plaintiffs ask that the defendant be required to make a full discovery and settlement of the business of the copartnership, and demand judgment for the moneys due the estate. The defendant demurred to the complaint, the demurrer was sustained, and the plaintiffs appealed.</p> <p>Spencer, for Appellant, argued that the debts of the estate having been satisfied, the remainder of the estate is the property of the heirs entirely free, and may be sought by any action or process known to the law in the names of the real parties in interest.</p>

<p>Writ oí Assistance on Tax Sale.—A writ of assistance will not issue in favor of a purchaser from one who received a Sheriff’s deed for land sold under a judgment for delinquent taxes. Such writ can only issue in favor of one who was the grantee of the Sheriff.</p> <p>Appeal from Order Granting Writ of Assistance.—One who is not a party to the record cannot appeal from an order granting a writ of assistance. Such person must move to vacate the order granting the writ, and in that way place himself oh the record, and then, if the motion is denied, appeal from the order denying his motion; or if the writ is executed, move to be restored to the possession, and if the motion is denied, take his appeal.</p>

<p>Appeal from the District Court, Sixth Judicial District, County of Sacramento.</p> <p>October 21st, 1869, the plaintiff sued the defendant to recover possession of the block bounded by I, J, Fifteenth, and Sixteenth streets, alleging that he had, by verbal lease, leased the same to the defendant, and that the defendant had failed to pay the rent, and that he had given him notice to quit. The defendant answered, denying the allegations of the complaint. The plaintiff recovered judgment.</p> <p>A writ of restitution was issued about the 1st of July, 1870, and the Sheriff called on Sprout to remove him. Sprout, about this time, learned for the first time that the block was a public square, and belonged to the city, and on the eleventh of July applied to the city for leave to occupy it, which application was granted by the Board of Trustees. At this time the city authorities did not know that Sprout was the tenant of Mayo, or of the proceedings had. Sprout, having been advised by counsel that he could not avoid being removed under the writ, and to prevent being forcibly turned out by the Sheriff, on the eighteenth day of July moved from the premises. This was done without any arrangement with the city authorities, or any collusion with them. On the same day, Rider, one of the Trustees of the city, finding the block vacant, took possession, as the agent of the city, and put one Grabo in charge, to hold the same for the city. On the second day of August, the Sheriff’, acting under the writ of restitution, placed Mayo in possession. On the 21st day of August, 1871, the city gave notice of motion, to be heard on the twenty-eighth, to be restored to the possession. The Court granted the motion, and the plaintiff Mayo appealed.</p> <p>Dunlap, for Appellant, argued that the city authorities, having filed no pleadings, were without a standing in Court, and that the Court had no power over the writ after it had been issued and returned, and cited Den v. Ferin, 1 Halst. 481; 4 Cal. 289.</p>

This was an action of ejectment for the possession of a quarter section of land within the boundaries of a larger tract claimed by the plaintiff, and which his evidence tended to show he had inclosed and pastured before defendant’s entry, and for the rents and profits of the land while held by defendant. The defendant denied the plaintiff’s prior possession, and claimed title as a settler under the Act of April 20th, 1852. The case was tried by the Court with a jury.

<p>Pre-emptioner on Suscol Ranch.—One who claims the benefit of the Act of Congress, passed March 3d, 1863, granting the right of preemption to purchasers from Vallejo, of land in the Suscol Ranch, before the rejection of Vallejo’s claim thereto by the Supreme Court of the United States, must show that he purchased from Vallejo, or his assigns, and had reduced the land to possession before the time of said rejection of Vallejo’s claim.</p> <p>Equitable Defense in Ejectment.—The defendant in ejectment, who relies on an equitable defense, must, in his answer, set up fully the facts on which his equity rests.</p>

<p>Appeal from Order.—Alleged error in entering an order cannot be inquired into on appeal, unless there is a statement annexed to the order.</p> <p>Construction of Bule of Court.—If a rule of Court provides, that when a cause has heen at issue for two years upon a question of either law or fact, and the plaintiff has not brought it on for a hearing, that the defendant shall be entitled to an order of dismissal without notice, the continuance of the time for the argument of a demurrer by consent takes away for two years thereafter the right of the defendant to move for a dismissal.</p> <p>Diligence in Prosecuting Suit.—On an appeal from an order which involves the question of the dismissal of an action for want of diligence in prosecuting it, the question of diligence must first he presented to the Court below on notice given, or it will not be considered by the appellate Court.</p>

October 30th, 1871, the plaintiff recovered judgment in the United States District Court, at San Francisco, against the Main Street Wharf and Commercial Company, for services rendered between April 1st, 1867, and June 6th, 1868. Execution issued upon the judgment was returned December 13th, 1871, not satisfied because of the insolvency of the company.

<p>Appeal from the District Court of the Seventeenth Judicial District, County of Los Angeles..</p> <p>The action was ejectment. Plaintiff had judgment, and defendant moved for a new trial. In the order denying the motion the Court says: “ The engrossed statement in this case does not contain a large proportion of the evidence in the case, as shown by the engrossed statement itself. It refers to other documents and quotations from the record books of the Common Council of the City of Los Angeles. The engrossed statement must contain all that the parties rely on, set out in full, as they wish it to be considered by the Court, The Court cannot hunt up records, record books, or papers, because the statement refers to them and says: ‘ here insert such and such documents.’ The engrossed statement is supposed to contain all that the parties will rely on in appeal to the Supreme Court.”</p>

. The plaintiff sued for damages for an alleged breach of promise of marriage, and had judgment for two thousand seven hundred and fifty dollars. The defendant moved for a new trial; the motion was denied and he appealed. The other facts are stated in the opinion.

The complaint alleges that the plaintiff cut and hauled eight hundred and twenty-six thousand feet of logs for lumber for the defendant, under a contract with him, and asks judgment for the value of the same.

<p>Alteration of Pindings of Pact.—The fact whether the findings of a Court have been surreptitiously altered is peculiarly within the knowledge of the Court itself, and its determination of the fact, one way or the other, will rarely, if ever, be disturbed on appeal.</p>

The Rancho El Pinole, containing about four leagues of land in Contra Costa County, was partitioned among the eleven heirs of the grantee, Martinez, in accordance with a decree of the District Court, made May 2d, 1870.

<p>Appeal from the District Court of the Third Judicial District, County of Santa Clara.</p> <p>Ejectment to recover a lot of land in the City of San José, commenced December 20th, 1870. The Alcalde of the Pueblo de San José, on the 15th day of May, 1849, granted to Antonio Sunol a tract of land in said pueblo, which tract includes the demanded premises. Sunol and his family resided on the tract until his death about 1865. In 1861 Sunol made a declaration of homestead on a lot on which his residence stood, and which was a part of the tract granted. In March, 1865, Sunol made a will, in which he devised to his executors, his son Harcisso Sunol and Henry M. Haglee, all and singular his property, real and personal, wherever situated, to hold the same in trust, to sell and pay his debts, and certain bequests made in the will, and to hold the remainder in trust for his heirs. The property devised was the sepárate property of the testator.</p> <p>There were several children, and the will contained a clause that “ should my present wife, Dolores Mesa Sunol, elect to choose the devise and bequest herein named, in lieu of what the law may set aside for her, I do give, devise, and bequeath unto her, my said wife, out of the residue of my estate, and after the payments of said debts and legacies above named, one eighth part and portion of my said estate, both real and personal.” The will also contained this clause: “ It is my desire that my present residence, with the furniture therein, be not sold or disposed of unless necessary, and that the same shall be used by my said wife and children as their home.” The last clause in the will was as follows: “ Should my said wife, Dolores, refuse to accept the gift and devise to her, above mentioned, then the said one eighth portion so given and devised, I give, bequeath, and devise to my children as above named, to be divided equally between them, share and share alike.”</p> <p>The defendant, Auzerais, had a mortgage on the homestead lot, and to pay off this mortgage the executors, in 1866, sold him the demanded premises, being a portion of the homestead lot, but not embracing the dwelling or outhouses. After this sale Mrs. Sunol, the widow, made a deed of gift of the premises thus sold to the plaintiff After the will had been filed for probate, Mrs. Sunol filed in the Probate Court a paper relinquishing her right of homestead, and accepting of the bequest contained in the will. The case was tried before a jury who rendered a verdict for the defendants. The Court granted a new trial on motion of the plaintiff, and the defendants appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Appeal from the District Court of the First Judicial District, County of Santa Barbara.</p> <p>The Complaint in this case was filed December 30th, 1868. It averred that on the 26th of August, 1866, the plaintiff Josefa owned, as her separate property, an interest in a tract of land known as “La Colonia o el Bio de Santa Clara,” and that the plaintiffs, on said day, deeded it to the defendant by a deed absolute on its face, but that it was intended as a mortgage to secure a loan of money, and that the plaintiffs had tendered the money and demanded a reconveyance, but ♦ the defendant refused the money and refused to reconvey. The plaintiffs ask to be allowed to redeem, and for a reconveyance. The defendant demurred because the complaint did not state facts sufficient to constitute a cause of action; that there was a misjoinder of defendants, and that it was ambiguous, uncertain, and unintelligible. The Court overruled the demurrer. A jury was called, and the following special issue was submitted to them by the Court: “Was the conveyance set forth in the complaint made by plaintiff intended as security for money loaned?” During the trial the plaintiffs obtained leave to file an amended complaint, which was filed October 30th, 1871. The amended complaint alleged that the deed given to the defendant was the deed of the plaintiff Manuel alone. The Court thereupon submitted to the jury another issue, to wit, the follovving: “Did plaintiff, Josefa Gonzalez, acknowledge the conveyance set forth in the complaint before any officer, apart from, and without the hearing of her husband?”</p> <p>When this second issue was submitted some testimony had already been taken, and it was submitted upon the testimony already before the jury, as well as that which might thereafter be offered. The defendant objected to all these proceedings. Farol evidence was offered by plaintiffs to show that Josefa’s husband was present when she signed, although the certificate of the officer stated that she was not. Defendant’s objections to this were overruled. There had been a former trial on which the defendant had been examined as a witness on his own behalf. The plaintiffs offered in evidence the defendant’s testimony given on such former trial. The defendant objected because he was present in Court. The objection was overruled.</p> <p>The Court instructed the jury, and refused instructions asked by defendant, concerning the distinction between a deed given as security for a loan and one given with a reservation on the part of grantors of a right to repurchase. The jury failed to agree on the first issue, but answered the second in the negative. The Court then found the facts on the issue on which the jury had disagreed, and that the deed had been given as security for a loan of money. One of the points macfe by defendant’s counsel after the amended complaint was filed was that, as the land was the separate property of the plaintiff' Josefa, and as she did not join in the deed, and the plaintiff Manuel had no title to convey, he had no right to redeem.</p> <p>The Court below gave judgment for the plaintiffs, and the defendant appealed.</p>

In an action commenced in 1870 the defendant in this case sued the plaintiff in ejectment for the possession of certain land to which he had obtained title by a patent from the United States.

The action was ejectment, in which the plaintiffs claimed title under two grants, dated August 14th, 1847, and made by John Hutton, Alcalde of the Pueblo of San José, one' of which granted land in the pueblo to Feliz Buelna, describing it as “on the south end of said town, being bounded northeast by the road to Monterey, northwest by the lot of Francisco Sesena, and by the water on the rear, and containing seventy-five varas in front, and running back on the south line one…

The complaint averred that plaintiffs were, and since March 29th, 1869, had been partners in the manufacture and sale of lumber, and that plaintiff Ross and defendant Cornell, on the 4th day of January, 1867, formed a partnership in the same business, and that July 18th, 1867, they admitted plaintiff Francis into the firm, with the agreement that his interest and liability should relate back to the day the partnership was formed; and that, on the 26th of March, 1869,…

The juror Smith, when called, in answer to questions, said he had formed some opinion merely from what he had heard, but never expressed any; but, that he thought it would not do to rely altogether on what he had heard, and he did not place implicit belief on it; that his opinion was a conditional one, as he doubted whether what he heard was true; and that he should be governed entirely by the testimony and not by what he had heard; and that he had not formed an unqualified…

<p>Person Accused oe Crime a Witness on His Own Behale.—If a defendant, who is on trial for a larceny, becomes a witness in his own behalf, a question put to him on cross-examination, as to whether he has notjbeen previously arrested for another larceny, is not objectionable on the ground that the defendant cannot be shown to be guilty of the offense charged by showing that he had been accused of another crime.</p> <p>Objection to Question Put to Witness.—A party cannot. abandon the ground of objection taken to a question put to a witness on the trial below and assume another on the trial of an appeal in the Supreme Court.</p> <p>New Trial.—A new trial will not be granted on the ground of newly discovered evidence which is in conflict with the evidence given on the trial.</p>

<p>Authority of Controller to Draw Warrants. — The authority and duty of the Controller of State to draw a warrant upon the Treasurer, is limited to eases in which he is authorized to draw such warrant by some law which provides a specific appropriation for the payment of the warrant so drawn.</p> <p>Specific Appropriation.—A specific appropriation is an act by which a named sum of money has been set apart in the treasury and devoted to the payment of a particular demand.</p> <p>Fund.—The Fund upon which a warrant must be drawn must be one the amount of which is designated by law, and therefore capable of definitive exhaustion.</p> <p>Construction of Statute. — The seventeenth subdivision of section four hundred and thirty-three, Article YI, of the Political Code, repeals the provision of section six of the Act of 1869-70, in respect to the duty of the Controller to draw warrants in payment of salaries of the Tide Land Commissioners.</p>

On the 13th of September, 1864, Thomas Donnolly, T. C. Donnolly, and one Landsberger, comprising the firm of Donnolly & Co., sold to the plaintiff for seventeen thousand and eighty-five dollars the business of manufacturing “Donnolly’s Yeast Powder,” and entered into his employment, agreeing that for eight years they would not engage in the manufacture of “Donnolly’s Yeast Powder,” nor in any branch of the business.

<p>Payment of Monthly Rent on Expiration of Lease for Years. If, on the expiration of a lease for a year or for years, with rent payable monthly, the tenant retains possession of the premises and pays the same rent each month, this does not in law create a new term for a year, without any agreement to that effect, but only creates a tenancy from month to month.</p> <p>Presumption Arising from Payment of Rent After Term Expires. The payment of monthly rent, after the expiration of a lease for years with rent payable each month, is a mere fact in evidence from which an agreement for a further term may be presumed, but if the evidence tends to show that the tenant refused to accept a new term of a year, that fact tends to overthrow this presumption.-</p>

<p>Appeal from the District Court of the Seventh Judicial District, County of Solano.</p> <p>On the 24th day of June, 1871, one Vest deeded the premises in suit to the plaintiffs; but the deed was not recorded until July 29th, 1871. On the twenty-fifth of the latter month the defendants commenced an action against Vest, and two days afterwards levied an attachment upon the land in controversy. August 8th, 1871, judgment was rendered against Vest in default of appearance, and on the tenth of that month proceedings were commenced, to sell the land in satisfaction of the judgment. This suit was brought to restrain the sale. The defendants answered, denying plaintiffs’ possession, and all knowledge of their possession of, or claim to, the land prior to the recording of the deed. The plaintiffs had judgment upon the pleadings, and the defendants appealed.</p> <p>Wells, for Appellants, argued that the effect of the attachment was to create a lien upon the premises, which, being subsequently perfected by a judgment and sale, constitutes the defendants bona fide purchasers, and entitles them to protection as such, and cited Practice Act, Secs. 125, 217; 11 Cal. 238; 5 Conn. 544; 11 Pick. 341; 19 Pick. 39; 5 Me. 453; 29 Me. 29; 5 Me. 369; 12 Me. 48; 22 Me. 312; 29 Cal. 374; 16 Pick. 265; 14 H. H. 510; 10 Met. 320; 7 How. U.-S. ' 612.</p>

<p>Appeal from the Municipal Criminal Court of the City and County of San Francisco.</p> <p>The defendant was convicted of burglary at the March Term of the Court, 1871. In September following—the third term after conviction—he was sentenced to imprisonment in the State Prison for three and a half years, and he appealed from the judgment.</p> <p>Kinley, for Appellant, argued that the statute requires sentence to be passed at the same term at which the verdict is rendered (Cr. Pr. Act, Sec. 448); otherwise the Judge, by delaying the sentence.* could prolong the time indefinitely.</p>

The complaint alleges that in December, 1865, the plaintiff entered into a written agreement with the defendant by which she bound herself to advance money to pay a debt due from the defendant to a minor on account of an annual maintenance for the payment of which the defendant was responsible; and also to continue paying the allowance until the child should become twenty-one years of age; that to secure the repayment of this money the defendant gave the plaintiff a mortgage…

<p>Appeal from the District Court of the Seventh Judicial District, County of Marin.</p> <p>Ejectment for a tract of land described in the complaint as follows:</p> <p>“Beginning on the northerly line of the Rancho Corte Madera de Novato, as surveyed and patented to John Martin deceased, distant seventeen chains north, thirty-six and one quarter degrees west, from a post at the commencement of course number eleven, called for in said survey; thence north along the west line of sections numbers thirty-one, thirty, and nineteen, township four north, range seven west, Mount Diablo base and meridian, as surveyed and established by G-. H. Thompson, United States Deputy Surveyor, November 7th, 1866, one hundred and thirty-five chains, to a stake set on the center of the west line of said section nineteen as the half-mile stake in its subdivision; thence south eighty-seven and a half degrees west, ninety-eight chains fifty links; thence south seventy-seven and three-quarter degrees west, forty-five chains fifty links; thence north eighty-five and three-quarter degrees west, twenty-nine chains; thence north fifty-nine and a- quarter degrees west, eighty-three chains; thence south eighty-two and a half degrees west, one hundred and twenty-four chains; thence south sixty-four and a quarter degrees west, sixty-one chains, to the commencement of course number six, as called for on the north line of Bobert 0. Matthewson’s survey of the said Bancho Soulajulle, made in August, 1859; thence, with said Matthewson’s said survey, north twelve degrees west, eighty-five chains seventy links, to post in a group of rocks as called for in said survey; thence north sixty-seven and three-quarter degrees west, fifty chains, to post in stone mound also called for in said survey; thence south eighty-eight and a quarter degrees west, sixty chains and twenty links, to a stone mound also called for in said survey; thence south forty-four and three-quarter degrees west, twenty-eight chains, to a stone mound also called for in said survey; thence north sixty-four degrees west, one hundred and two chains sixty links, to a post in a stone mound also called for in said survey; thence north eighty-three and a half degrees west, forty-one chains and forty links, to a post in" mound called for in said survey; thence south sixty-six degrees west, twenty-one chains, to post in mound as called for in said survey; thence south twenty and a quarter degrees west, seventy-three chains, to a post in stone mound (high knoll, group of rocks) also called for in said survey; thence south thirty-five and a half degrees east, ninety chains eighty links, to post in stone mound also called for in said survey; thence south fifty-one degrees east, two hundred and ten chains twenty links, to post in mound with trenches, as also called for in said survey; thence south sixty-four degrees east, one hundred and eighty chains, to a post as called for in said survey; thence south forty-four degrees east, one hundred and sixty chains, to post as called for in said survey; thence north sixty-six and a half degrees east, one hundred and sixty chains, to post set for the southeast corner of said Rancho Soulajulle also called for in said survey; thence north thirty-four and a half degrees east, two hundred and thirty-two chains thirty links, to post set for the northwest corner of the Rancho Corte Madera de Novato; thence along the northerly line of said Rancho Corte Madera de Novato south thirty-six and a quarter degrees east, one hundred and six chains eighty links, to the place of beginning.”</p> <p>The complaint alleged that the land was granted by the Mexican Government to Ramon Mesa on the 29th day of March, 1844, by the name of Soulajulle, and that the grant had been adjudged to be a valid claim by the proper authorities of the United States, under the provisions of the Act of Congress of March 3d, 1851, and that said tract so declared valid was bounded and described as follows:</p> <p>[The boundaries thus described are found in the opinion.]</p> <p>There were twenty-five defendants who answered in several separate answers denying plaintiff’s title, or that he was entitled to the possession of the land, and denying ouster. The answers admitted that the several defendants were in possession of separate parcels of the general tract described in the complaint, describing such separate parcels. The answers also denied that the grant had been declared valid.</p> <p>On the trial the plaintiff introduced in evidence the grant by Micheltorena, Governor of California, to Ramon Mesa, dated March 29th, 1844, in which the land was described as “the place known by the name of Soulajulle, bounded by the Laguna de San Antonio, by the tract of land named Ricasio, and by rancho of Don Juan Martin.” The plaintiff also offered in evidence a deed of the grant from Mesa to Walter Skidmore, dated August 6th, 1855; and a dee'd from Walter Skidmore to Walter A. Skidmore, for the same land, dated December 12th, 1859; and a deed of the same land from Walter A. Skidmore to H. C. Lillie, dated October 3d, 1860; and a deed from Lewis Lillie, H. C. Lillie, and Byron Lillie to the plaintiff, dated February 16th, 1871. The plaintiff then introduced the decree of confirmation of the District Court of the United States, dated March 3d, 1856, confirming to Pedro J. Vasquez “a portion of a tract called ‘ Soulajulle,’ in Marin County (granted to José Ramon Mesa, March 29th, 1844), and is bounded and described as follows: Bounded on the east by the land owned by Wm. M. Fuller, and running northward and southwardly the entire distance of Wm. M. Fuller’s west line, and running out therefrom four miles long and two miles wide; bounded on the north by the Laguna de San Antonio, and south by the tract of land called Ricasio; reference, for a more particular description, to be had to the grant, map, and transfer filed in the case ; provided, that the land above described be found within the exterior boundaries of the said original grant made to José Ramon Mesa by Governor Manuel Micheltorena, on the 29th day of March, 1844; but, if the whole of the above described land be not found within the exterior boundaries of said original grant, then only such quantity thereof as may be found therein is herein confirmed.”</p> <p>Vasquez’ petition for confirmation was also offered in evidence, in which he states that Mesa, on the 28th day of March, 1850, conveyed to him twelve square miles of the grant “ Soulajulle,” and that the said grant was of three square leagues. Plaintiff then introduced a deed from Yasquez to Lewis Lillie, dated November 23d, 1858, conveying all Yasquez’ interest in the grant. This was all the evidence.</p> <p>The plaintiff was nonsuited, and appealed.</p>

The plaintiff, as administratrix of the estate of John S. Chipman, sued for rents claimed to be due the estate. The other facts are stated in the opinion. Crane, for Respondent, moved to dismiss the appeal, because it was not taken. within sixty days after the order appealed from was made, nor until more than two years thereafter, and cited Practice Act, Sec. 336, Sub. 3; 10 Cal. 380; 30 Cal. 11; 22 Cal. 650; 23 Cal. 283; 31 Cal. 207; Coombs v. Hibberd, 43 Cal. 453.

J. B. Fegan and Eliza Fegan were husband and wife. In 1871, the wife being insane, Thomas T. Yeager was appointed guardian for her person and estate. Subsequently the husband filed a petition for the revocation of the letters of guardianship. After a hearing the Court denied the petition, and the husband appealed.

<p>Appeal from the District Court of the Third Judicial District, County of Santa Clara.</p> <p>This was an action of ejectment to recover possession of lands alleged to he within the grant to the Pueblo de San José, which lands were confirmed to the plaintiff as the successor of said pueblo. The defendant Shaw claimed under a deed from the city as to one parcel of land, and by right of fifteen years occupation as to another. In his answer he asked for a stay of proceedings until a final survey, as provided in the Act of April 2d, 1866 (Laws 1865-6, p. 772), “ for the determination of actions for the recovery of lands.” The case was tried by the Court without a jury. After the testimony had been closed, an entry was made in the minutes of the Court that “ the cause is held for argument.” The attorneys for the parties, by mutual agreement, argued the cause before the Judge at his chambers, and subsequently judgment was rendered for the plaintiff as to the second parcel of land. The defendant’s counsel, on the argument, verbally requested that written findings be filed, hut the request was not entered in the minutes. The defendant moved for a new trial. The motion was denied, and he appealed.</p>

The principal facts of this case are found in a report of the same, on the first appeal reported, in 31 Cal. 500. The intervenor, Bradley, in his complaint, averred that he was the owner of the undivided one fourth of the demanded premises, and that the defendants unlawfully entered and ousted him.

The complaint filed in the District Court sets out that in October, 1868, a final decree of partition was made, dividing the Rancho Santa Teresa among various alleged tenants in oommon; that in May, 1868, one Castro, who had not been made a party to the partition proceeding, brought an action of ejectment for the recovery of an undivided one fifty-fifth interest in the ranch; that the judgment below was against Castro, but upon appeal to the Supreme Court that judgment was…

<p>Appeal from the District Court of the Fifth Judicial District, County of Tuolumne.</p> <p>The plaintiff alleges that he held by assignment a Sheriff’s certificate of sale of real estate; that the defendant, being a junior judgment creditor of the defendant in execution under which the real estate was sold, sought to redeem from the plaintiff, and for that purpose paid him the redemption money in what purported to be legal tender notes, but of which one note of the denomination of one hundred dollars was counterfeit; that the plaintiff did not discover that the note was counterfeit until some two months after the payment; that twelve days after the discovery, December 12th, 1870, he tendered back the entire sum paid, including the counterfeit note, demanding that the redemption be canceled; that the defendant refused to receive the notes or to cancel the redemption; that the defendant had obtained a deed from the Sheriff for the land, dated December 16th, 1870, and that he was about disposing of the property. The plaintiff asked that the defendant be restrained from disposing of the real estate; that the redemption be declared fraudulent, and that the defendant be required to re convey the title to the plaintiff. The defendant demurred to the complaint, on the ground that the plaintiff had an adequate remedy at law. The demurrer was sustained, and judgment rendered for the defendant. The plaintiff appealed from the judgment and from the order sustaining the demurrer.</p>

<p>Variance Between Complaint and Proof.—An objection that there is a variance between the evidence and the cause of action stated in the complaint, cannot be made for the first time on motion for new trial, or in the Supreme Court.</p> <p>Interest on Judgments.—The Act of 1870 concerning interest (Laws 1870, p. 699), allows interest on all money judgments.</p> <p>Amendment to Complaint.—When it appears on the trial that there is a variance between the proof and the complaint, and an objection to the evidence on that ground is made by the defendant, the Court will, if an application is made, allow the complaint to be amended.</p>

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

<p>Appeal from the District Court of the ¡Nineteenth Judicial District, City and County of San Francisco.</p> <p>The complaint averred that the complainant was a citizen and taxpayer of the State of California. The complaint was filed January 20th, 1873, and it alleged that Marks’ term of office as Harbor Commissioner was four years from the 6th day of December, 1869; and that the office of State Harbor Commissioner was an office provided for and created by the terms of an Act of the Legislature entitled “ an Act to provide for the improvement and protection of the wharves, docks, and water front of the City and County of San Francisco,” approved March 14th, 1863; and that the duties of said Board, among other things, were to collect such rents, tolls, wharfage, eraneage, and dockage as should be fixed under said Act, and to disburse and dispose of the revenue arising therefrom as in said Act provided; and that the said John J. Marks knowingly, willfully, and corruptly refused and neglected to discharge his said duty as a member of said Board of State Harbor Commissioners; and that he willfully and corruptly conspired and colluded with Jasper O’Farrell, likewise a State Harbor Commissioner and member of said Board, the two constituting a majority thereof; and did control, influence, and direct its action so as to cause said Board to so manage the affairs of said Commission that the said revenue arising from said rents, tolls, wharfage, eraneage, and dockage should not be disbursed and disposed of according to law and said Act of the Legislature, but should be fraudulently appropriated to their own proper use and benefit, and especially to the use and benefit of said John J. Marks. That heretofore, to wit: on the 1st day of June, 1872, at said city and county, the said Board of Harbor Commissioners resumed possession of Broadway wharf, a wharf of the property of the State, and under the control of said Board, and before that time under lease to the Central Pacific Railroad Company, for the purpose of ascertaining its actual value, with the view of reletting it to said railroad company; that said Marks was, at the time above named, Harbor Commissioner as aforesaid, and acted officially in said Board in favor of said proceeding, causing and'influencing the same by his official vote and action to be done; that upon the said order being passed the Board, the said Marks undertook, in his. official capacity as State Harbor Commissioner, to cause the same to be carried out; and that, in that behalf, he ordered the acting collector of said wharf, John Buchanan, to collect the tolls of said wharf during said month of June, 1872, and to pay the tolls so collected, day by day as fast as collected, to Charles Callaghan, then an employé of said Board. And further, that the said Marks then and there, acting in his official capacity as State Harbor Commissioner, directed the said Charles Callaghan to receive said tolls from said Buchanan, and to cause false and fraudulent reports and returns to be made to the office of the State Harbor Commissioners concerning the same, concealing the real amount of tolls so collected; and the said Marks then and there directed the said John Buchanan and the said Callaghan so to make such false and fraudulent reports and returns.</p> <p>And the complaint further charged that the said John Buchanan, acting under the orders of said John J. Marks, collected the tolls at said wharf for said month, and that the same "amounted to the sum of nine hundred and seventy-eight dollars, which sum was of the moneys of the State, and that, acting under said Marks’ orders, only five hundred and twenty-six dollars and seventy-five' cents of said sum was paid over to the State by said Buchanan, or by any one whomsoever, but that the balance, to wit: the sum of four hundred and fifty-one dollars and twenty-five cents, was received and taken from the said John Buchanan by the said Charles Callaghan, acting under said Marks’ orders, and was afterwards, to wit: on the day last given aforesaid, by the said Charles Callaghan, paid over to Thomas Marks, the son and duly authorized agent of the said John J. Marks, for the use of the said John J. Marks, and that the same was afterwards, to wit: on the day and year aforesaid, by said Thomas Marks, duly delivered to his said father, John J. Marks, and by him converted to his own use. That no part of said last named sum of four hundred and fifty-one dollars and twenty-five cents has ever been accounted for or paid to the State Treasury, as required by law.</p> <p>And the complaint further charged that the hereinabove recited transaction at and relating to the said Broadway wharf was done the better to enable said Marks to influence and cause said Board to make a corrupt contract of lease of said wharf to said Central Pacific Railroad Company, and that the same was afterwards, to wit: on the 1st day of July, 1872, by said Board, under and by the official influence and action of said Marks, made and entered into with said railroad company.</p> <p>That at the city and county aforesaid, to wit: on or about the 1st day of July, 1872, Broadway wharf, of the property of the State under control of said' Board, was let by said Board to the Central Pacific Railroad Company, as tenants, from month to month, at the monthly rent of five hundred dollars per month, a sum which was then, and ever since hath been, greatly less than the true monthly value of said wharf. That said wharf was then and there, and hath ever since been and now is, worth the just and full sum of two thousand dollars per month, which fact the said John J. Marks well knew. But that in refusal and neglect of his duty he voted and officially acted in said Board in favor of making said lease, thereby causing the same to be made at said inadequate sum of five hundred dollars per month. That he was moved to his said action by a corrupt and secret understanding with said railroad company; that he, the said John J. Marks, was to be paid for his said action the sum of two thousand five hundred dollars cash in hand.</p> <p>And the complaint further alleged that the said John J. Marks was afterwards, to wit: on the day and year aforesaid, paid by said company, in pursuance of said before mentioned secret agreement, the said sum of two thousand five hundred dollars, which he appropriated to his own use, in violation of his duty and against the law.</p> <p>There were other charges of a similar nature with regard to leasing Washington street wharf to Goodall & Helson, and the bulkhead on East street to Turner & Harvey, the Greenwich dock to Green & Searles, and Cowell’s wharf to Edwards & Sage, and the wharf on East street to Thomas & Drake.</p> <p>The complaint also averred that it was the duty of said Board to employ suitable wharfingers and collectors, and to require of them to keep a correct account of moneys collected, and to pay over such moneys once a week, and that Marks, in collusion with O’Earrell, caused the Board to neglect and refuse to do so, and caused the Board to appoint improper persons, and caused the Board to refuse and neglect to require said appointees to keep any account, or to pay over the money by them collected once a week, or at any time; and that Marks caused the employes to expend the moneys by them collected without vouchers or check, in making repairs on wharves, etc.</p> <p>That said Marks caused an assessment to be levied on all the wharfingers and collectors, to make up a fund of ten thousand dollars to be paid to him; and that said wharfingers and collectors, by direction of Marks, paid said assessments to Marks out of money collected by them of the revenues of the wharves of which they were collectors.</p> <p>That said Marks also caused said wharfingers and collectors, out of the money collected by them, to buy him a set of silver plate, at a cost of nine hundred dollars.</p> <p>That it was the duty of said Board to cause the docks and slips to be dredged, and to award a contract therefor to the lowest bidder, after advertising the same, and that Marks made an agreement with one Black to do said dredging at thirty-four cents per cubic yard, when it was worth only twenty-five cents per yard, and the contract was let to Black without any advertisement, and Marks received from Black ten ¡3er cent of the gross proceeds of the dredging.</p> <p>There was a similar charge with regard to a contract with Boobar and Richardson about driving piles.</p> <p>That Marks influenced the Board to require the wharfingers and collectors to charge full sums to vessels for wharfage and dockage, but to retain one third of the amount to pay assessments laid by Marks, and to return to the Board a sum less than that collected.</p> <p>The plaintiff appealed.</p> <p>The other facts are stated in the opinion.</p>

The plaintiff had judgment in a suit brought to determine the right to purchase certain tide lands—the contest having been referred to the Court under the provisions of the Act of March 28th, 1868 (Sec. 17), by the Surveyor General— and the defendant appealed.

The plaintiff brought suit in forcible entry, on the 13th of March, 1872, and had judgment by default, on the 24th day of April, 1872. Subsequently two of the defendants moved that the judgment be set aside; that they be allowed to appear and answer, and that they be restored to possession of the premises. On the hearing of the motion affidavits were filed, and the testimony of several witnesses was taken.

In 1869, Henry and Robert. Dawson entered upon certain land belonging to D. W. C. Rice and others, under a written agreement to raise a crop of grain, taking two thirds of it for their labor and delivering one third to the owners of the laud as rent. The plaintiff was agent for Rice, and claims that as soon as the grain was harvested he purchased it and employed the proprietor of a thrashing machine to thrash it.

<p>What is New Matter in an Answer.—If a judgment entered by confession is prima facie fraudulent because the statement upon which it was entered fails to set out the facts upon which the indebtedness accrued, and a bill is filed by a creditor of the judgment debtor to set aside the judgment, allegations in the answer of the facts out of which the indebtedness arose, are matters in avoidance of the prima facie fraudulent judgment, and are new matter.</p> <p>Stipulation as to Taking Judgment.—If the answer contains new matter, which, if true, would entitle the defendant to judgment, and the parties stipulate that “ all, if any, new matter pleaded in avoidance * * * shall be taken as proven,” the stipulation entitles the defendant to a judgment.</p> <p>When Judgment not Void.—A judgment is not void as to creditors because the action is commenced before the maturity of the note which was the cause of action, and the defendant confesses judgment without service of process.</p>

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

<p>Judgment in Ejectment.—A judgment for the plaintiff in ejectment raises the presumption that the defendant was shown to be in possession of the demanded premises at the commencement of the action.</p> <p>Facts which Support Judgment Deemed Found.—Though actual findings appear in the record which are insufficient of themselves to support the judgment, yet other findings will be implied in favor of the party who recovers judgment, embracing every fact in issue not expressly found in favor of the party against whom judgment was rendered, or irreconcilable with the express finding.</p> <p>Presumption in Favor oe Judgment in Ejectment.—If the Court, in ejectment, finds that the defendant was not in actual occupation of the demanded premises when suit was commenced, and still renders judgment for the plaintiff, it will he presumed, in support of the judgment, that the Court found that the defendant had such possession as would support ejectment.</p>

The plaintiff filed a complaint, in which, after reciting certain proceedings in former suits in which judgments were rendered against him, he asks a decree to enjoin the defendants from enforcing such judgment, and to require one of the defendants to reconvey to the plaintiff whatever title to certain land he may have acquired under a decree in one of the former suits. The defendants had judgment upon demurrer, and the plaintiff appealed.

The Court below found, in addition to the finding in the opinion, that “ the plaintiff has proved a right of entry to an undivided interest in the land in controversy derived from parties who had been in the prior actual possession of it.” This case was submitted on the same briefs as Tubbs v. Ghirardelli, ante, p. 231. The plaintiff had judgment in ejectment, and the defendants appealed. The other tacts are stated in the opinion.

<p>Act of Congress, Called “Suscol Act.”—The Act of Congress, approved March 3d, 1863, granting the right of preemption to bona fide purchasers from Vallejo of the Suscol Pancho, or portions thereof, gave to such purchasers the mere privilege of acquiring the title from the United States; and those who failed or refused to exercise that privilege lost all right to claim the benefit of the Act.</p> <p>Equitable Defense in Ejectment.—One who was a purchaser from Vallejo, and in possession of a portion of the “Suscol Rancho ” prior to the rejection of Vallejo’s claim to the same, and who refused to join with coterminous purchasers in an application to obtain a patent under said Act, and made no effort to avail himself of the privilege granted by said Act, cannot, in ejectment brought against him by such coterminous proprietors, who had obtained a patent for the land he had thus purchased as as equitable defense, convert the plaintiffs into trustees holding the legal title for his benefit, and compel them to convey to him.</p>

<p>Appeal from the District Court of the Fifth Judicial District, County of Tuolumne.</p> <p>The relator filed a petition, in which he alleged that at the general election in 1869 he had received a majority of two votes, out of one thousand seven hundred and fifty-eight, for the office of Coroner, as shown by a recount of the ballots, and that, notwithstanding this, the Board of Supervisors, acting as a Board of Canvassers, had refused to give him a certificate of election. He asked that judgment be rendered declaring him duly elected Coroner. The respondent denied the allegations of the petitioner specifically, and alleged that the ballots cast at the precincts of Sonora and Columbia were not returned sealed as required by law; that after the ballots at those precincts were cast, counted by the officers, and the result certified to, a large number of the ballots were changed in favor of the relator; that the ballots presented to the Board of Canvassers were not the ballots as cast; that the Board had been governed by the returns of the officers of the election as to the two precincts named, from which it appeared that the respondent was elected by a majority of six votes. The respondent had judgment, and the relator appealed.</p>

<p>Affidavit in Support of Application for Certiorari.—An affidavit made in support of an application to the Supreme Court for a writ of certiorari to the County Court, must set forth the reason, if any, why the application was not made to the District Court, or to the Judge thereof.</p>

<p>Appeal from Refusal to Grant an Order.—An appeal does not lie from, the refusal of a Oourt to grant an application for an order to show cause why an injunction should not issue. Such refusal is not an order refusing to grant an injunction.</p>

John Petty was convicted, in the County Court of San Joaquin County, of an assault, and was adjudged to pay a fine of five hundred dollars and the costs, taxed at two hundred and forty-three dollars and thirty-five cents, of which thirty dollars were for reporters’ fees, and to be imprisoned until the fine should be paid, at two dollars per day.' He applied to the District Court for a writ of certiorari to review the proceedings of the County Court, alleging that the Court…

<p>Insufficiency of Evidence to Sustain' Judgment.—The question of the insufficiency of the evidence to sustain the decision or finding, cannot be presented by means of a statement on appeal, nor can it be considered on an appeal from the judgment.</p> <p>Specification in Statement.—A specification in a statement that “the Court erred in rendering judgment for defendant, because the testimony shows that every step required by law to create a lien on defendant’s land for the grading of Eremont street was correctly taken,” is, if it amounts to anything, not a specification of an error of law, but of the insufficiency of the evidence to sustain the decision.</p>

<p>Application to the Supreme Court for a peremptory writ of mandate, requiring the Judge of the Seventeenth Judicial District, County of Los Angeles, to enter a judgment of acquittal.</p> <p>The applicant represents that he was indicted for murder, and at the June Term of the Court was placed upon trial before a jury duly impaneled and sworn; that testimony was taken, argument had, and the case submitted to the jury upon instructions giveu by thfe Court; that the jury retired, but failed to agree, and the Court thereafter adjourned for the term, there being nothing of record to show that the jury was discharged; that the defendant was set at large, giving bail for his appearance at the next term; that at the ensuing September Term, when the cause was called for the purpose of fixing the day of trial, the petitioner moved the Court to enter a judgment of acquittal, on the ground that he had been once put in jeopardy; that the motion was denied, and that the Court fixed a day for the trial.</p>

The plaintiff' sued to recover money alleged to be due upon a contract for grading Eighteenth street from Roe street to Castro street. The complaint is in the usual form for such actions.

<p>Action upon Bail Bond. — In an action upon a bail bond, given by a person held on a criminal charge, the complaint must allege that the person bailed was released from custody upon the execution and delivery of the bond.</p>

<p>Appeal from the County Court of Trinity County.</p> <p>The defendant was indicted for grand larceny; he demurred to the indictment; the demurrer was overruled; he was convicted, and appealed from the order overruling the demurrer.</p>

<p>Oral Instructions in Criminal Cases.—The giving of oral -instructions to a jury in a criminal case, without the consent of defendant, is error.</p>

<p>Appeal from the District Court of the First Judicial District, County of Santa Barbara.</p> <p>The testimony tended to show that the defendant had been engaged in keeping a hotel in the State of Nevada, and the plaintiff was in his employ at thirty-five dollars per month; that in June, 1868, the defendant sold his hotel in Nevada, and removed to Santa Barbara County, where he engaged in farming; that the plaintiff went to Santa Barbara, and continued in the defendant’s employ as a household servant from July 12th, 1868, to September 6th, 1871. The other facts are stated in the opinion.</p>

<p>Appearance in Probate Court.—The voluntary appearance in the Pro-hate Court of an executor, in proceedings relating to the estate, is a waiver of the issuance and service of a citation on him.</p> <p>Order op Probate Court not Appealable. — An appeal does not lie from an order of the Probate Court setting aside its own proceedings, had before a final order, upon application of the surviving wife to have the homestead set aside to her.</p>

<p>Appeal from the District Court of the Tenth Judicial District, County of Sutter.</p> <p>The defendant was convicted of murder in the first degree, and appealed from the judgment.</p> <p>The other facts are stated in the opinion.</p>

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

The judgment in favor of 'Wichelhausen and against Johnson was recovered in the above Court on the 26th day of May, 1868, and was for the sum of five hundred and forty dollars and sixty-three cents, bearing interest, a part of it at two per cent per month, and part of it at ten per cent per annum. Wichelhausen assigned it to plaintiff December 26th, 1870.

<p>Appeal from the District Court of the-Judicial District, City and County of San Francisco.</p> <p>The defendant had judgment, and the plaintiff appealed January 6th, 1873. The transcript does not show the district from which the appeal was taken. The motion to place the cause on the calendar was made January 29th, 1873.</p>

The defendants had judgment in an action to recover the value of the use of certain land, and the plaintiffs appealed. The other facts are stated in the opinion.

<p>Conflict of Evidence on Motion.—When, on a motion made in the Court in which a partition was made, to fix the true boundary line between two of the parties, the evidence is conflicting, the determination of the Court below will not be disturbed on appeal.</p> <p>Boundary Lines in Decree of Partition.—When, in a judgment of partition, a boundary line between two of the parties is described as passing along a visible object, and is also described by courses and distances, the latter must yield to the former.</p>

<p>Finding of Fact by the Court.—A material fact, put in issue "by the pleadings, will be presumed to have been found by the Court in such a way as to support the judgment.</p> <p>Specifications in Statement.—The appellate Court will not review the evidence to determine whether the finding of the Court upon a particular issue of fact is justified by the evidence, unless there is a specification in the statement that the evidence was insufficient to justify the finding on this issue.</p>

<p>Appeal from the District Court of the Fifteenth Judicial District, City and County of San Francisco.</p> <p>Peter Eamsay owned personal property in a boarding house, restaurant, and barroom, consisting of tables, furniture, stove, cooking utensils, bar fixtures, liquors, etc., and on the 23d of March, 1871, gave the plaintiff’ a bill of sale of the same. The goods were of the value of from six hundred to one thousand dollars. On the 25th of March, 1871, the defendant took the said goods from the plaintiff", and afterwards sold them. The defendant was the Sheriff* of the City and County of San Francisco. It does not appear by the record why the defendant took the property.</p> <p>The complaint contained the usual allegations of the plaintiff’s ownership and possession of the property, and the unlawful taking of the same by the defendant. The answer did not set up any special defense, bu¿ merely denied the allegations of the complaint.</p> <p>The affidavits for a continuance were based on the alleged absence of C. P. Genehten, who, it was alleged, would testify that Eamsay told him he had sold his property to the plaintiff to defraud his creditors. On the trial plaintiff introduced Ramsay as a witness. Defendant, on cross-examination, sought to prove by him that he had sold his property to the plaintiff to defraud his creditors, but the Court, on plaintiff’s objection, refused to allow him to do so, on the ground that the answer did not permit. the defendant to attack the good faith of the sale. The plaintiff also was introduced as a witness in his own behalfj and on cross-examination the defendant sought to prove by him that, after the sale, Ramsay remained in possession of the property, but the Court refused to allow it for the same reason. The affidavits on motion for a continuance were printed in the transcript, but were not included in the statement, nor were they identified as having been used on the hearing of the motion for a new trial. The plaintiff recovered judgment, and the defendant appealed from the judgment and an order denying a new trial.</p> <p>The other facts are stated in the opinion.</p>

<p>Appeal from the District Court of the First Judicial District, County of Santa Barbara.</p> <p>The plaintiff had judgment and the defendant moved for a new trial. The motion was denied and he appealed.</p>

<p>Assault with Deadly Weapon.—An assault made with intent not to do murder hut only to do a lesser hodily harm, is not constituted a felony, unless such an assault was made with a deadly weapon, or hy resort to means of a deadly nature.</p> <p>Assault without a Deadly Weapon.—An assault made without the use of a deadly weapon with intent to do mere bodily harm, and not to do murder, is a misdemeanor, nothing more.</p> <p>Judgment in Criminal Case. — Under an indictment for an assault to commit murder, a conviction of an assault made with a deadly weapon to do bodily harm cannot be supported, unless it sufficiently appear upon the face of the indictment that the assault was made with a deadly weapon.</p>

<p>New Trial in Criminal Case.—The Court will not grant a new trial in a criminal case on the ground that the evidence does not justify the verdict, if the evidence is conflicting.</p> <p>Possession oe Stolen Property.—If the defendant is seen in possession of the stolen property shortly after it was stolen, and does not explain his possession hy showing that it was honestly acquired, it is a circumstance tending to show his guilt.</p>

<p>Error which Does ho Ihjurt.—Although it is error, when there is evidence as to defendant’s good character in a criminal case, to instruct the jury that “ evidence of character can only be considered in cases where the guilt of the accused is doubtful,” yet, if the evidence so conclusively establishes the guilt of the defendant that no amount of evidence of good character could have changed the result, such error does no injury and the judgment will not be disturbed.</p>

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

The appeal was taken from the judgment and from an order denying a motion for a new trial. ' The other facts are stated in the opinion.

<p>Attempting to 'Commit a Bape. — A person who stands by, when an attempt is make by others to commit a rape, but who does no act to aid, assist, or abet its commission, is not guilty of an attempt to commit a rape.</p>

<p>Limitation of Action on Promissory Note.—A promissory note made payable 011c day after the happening of a partieular event, is not cine until one day after such event happens, and a suit on it is not barred by the Statute of himitutio'ns, if commenced on the'day after such event happens.</p> <p>Right of Set-off "when Property is Held in Trust.—When money deposited by a defendant with a Sheriff, as security for property released on attachment, is withdrawn by the attorneys of the parties, and divided between them, and each gives his note to the other for one half of it, with a stipulation that it was to be held in like manner as if it remained in the Sheriff’s hands; after the plaintiff recovers judgment the defendants’ attorneys may he sued on the note given by them, and they cannot set off, either the note of plaintiff’s attorney to them or what is due to them by their client, for their services in the action.</p> <p>When Attorney Holds Money in Trust.—When the attorneys for th parties withdraw from a Sheriff money deposited with him as security for a judgment that may he rendered in an action, they hold the money in trust for both parties to the action, the same as it was held by the Sheriff.</p>

The plaintiffs had judgment for damages in a suit against sureties on an injunction bond, and the defendants appealed. The facts are stated in the opinion.

<p>Recovery of Purchase Money for Land Sold.—Where the seller contracts that upon the payment of the purchase money he will execute and deliver to the buyer a deed for the land sold, he cannot maintain an action for the purchase money without first tendering a deed and demanding payment.</p>

The defendant was tried and convicted, and sentenced to be hanged January 31st, 1873. The other facts are stated in the opinion.

This was an information filed by the Attorney General. The complaint averred that the “ defendants had associated themselves together under the name of the Stockton and Visalia Railroad Company, unlawfully claiming to be a corporation, and by the name aforesaid are unlawfully acting as such pretended corporation, and have without right or authority usurped the franchise and privilege of a corporation.” The complaint then stated the particulars wherein the defendant had…

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

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

The defendant was the owner of a railroad extending from the City of Oakland, Alameda County, to Sacramento, a distance of about' one hundred and thirty miles. The San Francisco and Alameda Eailroad Company owned a railroad extending from Alameda, Alameda County, to Haywards, a distance of about twenty miles. Alameda and Oakland are both on the Bay of San Francisco, across from the City of San Francisco, and Alameda is about two miles south of Oakland.

<p>¡Record to Show Exceptions.—Where the record fails to show that exceptions were taken to the rulings of the Court during the trial, and to the charge given to the jury, objections to the same will not be considered.</p> <p>New Trial on Account of Newly Discovered Evidence.—A new trial will not be granted on account of newly discovered evidence if the same was cumulative, or if with proper diligence it might have been procured on the former trial.</p> <p>Sufficiency of Evidence—To justify a verdict of damages for malicious prosecution, considered.</p> <p>Measure of Damages.—Where a trespass is committed from wanton or malicious motives, or a reckless disregard of the rights of others, or under circumstances of great hardship and oppression, the measure and amount of damages are matters for the jury alone. Courts will not disturb the verdict on the ground that the damages are excessive, unless the amount of damages is so disproportionate to the injury proved as to make it clear that the jury acted under the influence of passion or prejudice.</p> <p>Damages bob Malicious Pbosbcutiou.—In the case stated in the opinion: held, that seven thousand dollars damages, for malicious prosecution, are not excessive.</p>

<p>Construction on Statute—Criminal Sale oe Land.—The giving of a mortgage upon land by a party who has already conveyed his title to another by deed, is not disposing of the land within the meaning of the statute, which makes it a felony to fraudulently sell land after having once sold it.</p>

The law of California relating to swamp and overflowed lands placed the management of the same under the control of the Boards of Supervisors of the several counties, whose duty it was to divide the same into districts.

The plaintiff filed a bill praying for an injunction restraining the defendant from constructing a railroad on the east-side of the center of Broadway street. An application was made for a preliminary injunction, which was heard on complaint and answer, and was denied. The other facts are stated in the opinion.

The defendants recovered judgment in the Court below, that the plaintiffs had no title to the lands known as the “ Bancho Boca de Santa Monica,” and that the defendants owned the same. 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 facts are stated in the opinion.</p>

The lien was filed February 28th, 1870, under the Act of March 30th, 1868. The complaint was- filed on the twenty-eighth of May following, and the summons was issued October 25th, 1870. The plaintiffs obtained a judgment of foreclosure by default, and on the next day, without notice, the Court modified the judgment to a money judgment only. The plaintiffs appealed from the modified judgment.

<p>Motion for Writ of Mandate on Pleadings.—A motion for a peremptory writ of mandate based on the pleadings, in an application for such writ to the Supreme Court, to compel the Board of Supervisors of a county to order an election for a county seat under sections three thousand nine hundred and seventy-six to three thousand nine hundred and eighty-five of the Political Code, will he denied, if the answer denies that one third of the voters who voted, and whose names were on the Great Register at the election preceding the presentation of the petition to the Board of Supervisors, signed the petition.</p> <p>Question of Pact in Mandamus Case to be Referred to some District Court.—If, on an application for a writ of mandate, to compel a Board of Supervisors to order an election to locate a county seat, the answer denies that one third of the voters, whose names were on the Great Register, signed the petition to the Board of Supervisors, the Supreme Court will order the question of fact, as to whether one third of the voters signed such petition, to he referred to some District Court for trial, and the verdict upon the question to he certified to the Supreme Court.</p> <p>Writ of Mandate on Pleadings.—If, in an application for a writ of mandate, made to- the Supreme Court, the answer denies a material averment in the complaint, a peremptory writ will not be issued on the pleadings.</p> <p>Denials in Answer to Petition for Writ of Mandate.—The answer to a petition for a writ of mandate, presented to the Supreme Court, may deny the allegations of the petition, upon information and belief.</p> <p>Order to District Court on Referring Question of Pact in Mandate Proceedings.—Upon an application to the Supreme Court for a writ of mandate to a Board of Supervisors, to compel such Board to call an election to determine the location of a county seat, if an issue of fact, as to the number oí voters who signed the petition for the election, is referred to a District Court for trial, such District Court will be directed to cause to be brought before it, by appropriate order, the original petition to the Board, its records, and the Great Register of the county. .</p>

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

<p>Liability op Drawee op Check.—The drawee of a check is hound, at his peril, to know the handwriting of the drawer; and if he pay a check to which the signature of the drawer has been forged, he must suffer the loss as between himself and the'drawer, or an innocent holder to whom he has made payment.</p> <p>Presumption as to Signature and Handwriting in Check.—The drawee of a check is presumed to be acquainted with the signature of the drawer, but not with the handwriting in the body of the check; and the fact that the handwriting in the body of the check is not that of the drawer raises no presumption that it is not genuine.</p> <p>Liability por Payment op Altered Check.—If the drawee pay, even to an innocent holder, a check which has been fraudulently altered in amount after it left the hands of the drawer, he will be entitled to recover back from the person to whom it was paid the excess over the true amount of the check, unless the alteration is made in such a manner that on the face of the paper there appears enough to excite suspicion of fraud, or the drawee has information which would lead a prudent person to suspect that the check has been altered.</p> <p>.Suspicious Pacts Requiring Inquiry.—Where a party received from a stranger, in exchange for legal tender notes, what purported to be a genuine check of a third person, the signature being genuine, and the writing in the body of the paper being in the usual form, though in a handwriting different from that usually employed, and on applying by an agent for payment of the check, informed the drawee that the check had been presented by a stranger: held, that these facts were not of such a suspicious character as to put the drawee on inquiry as to the genuineness of the check; and that if there was any negligence in the case on either side (the check having, after payment, been discovered to have been altered as to the amount), it was on the part of the holder in receiving the check.</p> <p>Laches in Demanding Payment—Query?—Whether, in such a case a delay of nine days by the drawee in demanding repayment of the holder constitutes such laches on the part of the drawee as will defeat the action?</p> <p>Laches in Railing to Return Altered Check.—Where the drawee of an altered check fails to return or offer to return it to the party to whom he paid it, he is guilty of laches.</p> <p>Undertaking op Holder on Presenting Check por Payment.— When the holder of a bank check or bill presents it for payment to the drawee, and indorses it, he undertakes with the drawee that the prior indorsements are genuine, ¡jnd that he has a valid title and a right to receive the money; but the indorsement of the holder does not of itself import an Undertaking that the check has not been altered in amount.</p> <p>Right to Recover for Money Paid on Altered Check.—The right of the drawee to recover back the amount paid on an altered check rests upon the fact that the money was paid by the drawee without consideration under an innocent mistake, and not upon the indorsement of the holder, as importing a promise to refund the money in case it should afterwards appear the check had been fraudulently altered.</p>

The prisoner was brought before Mr. Chief Justice Wallace, at chambers, on an application to be discharged from custody. He had been convicted in the Police Court, of the City and County of San Francisco, of the offense of petit larceny, prior to January 1st, 1873, and was again convicted of such an offense on the 13th day of January, 1873, when he was held to answer for a felony. Mr. Tighe, for the Prisoner.

On the 29th day of September, 1868, the note in'suit was executed by Jacob Heppe, and the mortgage was also given to secure the same by said Jacob, and Henrietta, his wife. The note was for three thousand dollars, and fell due two years after date. Suit was commenced to foreclose the mortgage in December, 1871. The complaint averred that the premises had been set apart by the Probate Court, for the use of the widow and family.

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

The Act of the Legislature of March 14th, 1870, provided for the issuance of deeds by the Mayor of San Francisco, to those who should present a petition with ex parte proofs that they “have been from and including the 8th day of March, 1866, and still are in the possession of” tthe lauds, and have paid the taxes and assessments. The plaintiff appealed. The other facts are stated in the opinion.

The judgment foreclosing the mortgage in the case of Debus v. Dorland et al., did not recite that service was made of the summons, or that the defendant Dorland had made default, or that any proofs were taken in open Court. The other facts are stated in the opinion.

Udolpho Wolfe brought these suits in his lifetime to restrain the defendants from using his trademark, and for damages. A preliminary injunction was granted on the complaint when the suit was commenced. The defendants answered, and moved, on the answer and affidavits, for a dissolution of the injunction. The motion was granted, and the plaintiffs appealed from the order.

Action to abate a ditch as a nuisance. The complaint averred that the plaintiff, since November, 1867, had owned the northeast quarter and the northwest quarter of section twenty-nine, township fourteen north, range six east, Mount Diablo meridian, and that the defendants, in March, 1871, dug a ditch across the same, about two feet deep and three wide, and that the ditch was dug and used for mining purposes.

The lot in controversy in this action is the one involved in the case of Hice, administrator, etc., of Kittleman, deceased, v. Cunningham et al., 29 Cal. 492; and the judgment in that case is the one relied on here as an estoppel. After the decision of that case the defendant Ashley acquired. the interest of the heirs of Kittleman in the property. The defendant Rice suffered a default in this case.

<p>Lease With a Reservation in It.—A lease of land containing a provision that the lessor may, during the term of the lease, occupy any house or houses, or occupy any part or the whole of the demised premises, is valid.</p> <p>When Lessor May Maintain Forcible Entry for Demised Premises.—A lease of land, with a reservation in it that the lessor may, during the term of the lease, occupy any part or all of the demised premises, does not prevent the lessor from maintaining forcible entry and detainer against a stranger to the lease for a forcible entry into the demised premises, if the lessor, notwithstanding the lease, continues to occupy the same.</p> <p>Evidence in Forcible Entry and Detainer.—If a lease of land containing a provision that, during the term, the lessor may occupy any part of the demised premises, and if he brings forcible entry and detainer during the term, against a stranger to the lease, to recover the demised premises, he may prove on the trial that, notwithstanding the lease, he was occupying the same when the defendant entered.</p> <p>Evidence for Defendant in Forcible Entry and Detainer.—In forcible entry and detainer, the defendant cannot, for the purpose of showing that the plaintiff had only a scrambling possession, introduce evidence to show that during the whole period of the plaintiff’s possession, third persons, with whom the defendants were not in privity, were stopping near the demised premises, awaiting an opportunity to enter and take possession, when they could do so without force.</p> <p>Plaintlet’s Possession in Eorcible Entry and Detainer.—If the occupation of the plaintiff in forcible entry and detainer was acquired and maintained with threats and force, as against third persons not in privity with the defendants, it affords no justification to the defendants for invading the premises, for, as against the defendants, the plaintiff’s occupation was peaceable and actual.</p> <p>Evidence in Eorcible Entry and Detainer.—In forcible entry and detainer, the defendants may, for the purpose of showing that the plaintiff had only a scrambling possession, prove that, before the entry made by them complained of, they had made attempts to take possession, but were prevented from entering by an exhibition of force by the plaintiff, or his servants.</p> <p>Peaceable Possession in Eorcible Entry and Detainer.—If, during A.’s temporary absence, B. intrudes into possession of his premises and refuses to leave on demand, and resists A.’s reentry, by threats and exhibition of force, and A., without relaxing his efforts to regain possession, finally succeeds in doing so, then B. will not acquire such a peaceable possession as will enable him to evict A.</p> <p>Evidence in Eorcible Entry and Detainer.—If the plaintiff in forcible entry and detainer, entered upon the demanded premises without resistance, and remained for some weeks in the undisturbed possession, the defendants cannot prove that before his entry they had, under a claim of title, inclosed and occupied the premises, and were thus occupying it when he entered.</p> <p>Instructions to a Jury.—It is not error for the Court to refuse instructions to a jury upon propositions of law having no reference to any evidence introduced.</p> <p>Eorcible Entry and Detainer by Tenant in Common.—One tenant in common may maintain forcible entry and detainer to recover possession of premises held by several as tenants in common.</p> <p>Civil Action.—An action of forcible entry and detainer is a civil action within the meaning of the Act allowing one or more of several tenants in common to bring an action for the protection of the common property.</p>

<p>Nonsuit for Variance.—When the plaintiff proves a contract essentially different from the one declared on, the defendant is entitled to a nonsuit on the ground of variance.</p> <p>Bight to Mote for a Nonsuit.—The defendant is not precluded from moving for a nonsuit, because he permitted the testimony to be introduced without objection, when the testimony of the plaintiff proves a contract different from that declared on.</p> <p>Presumption as to Complaint.—As against the plaintiff, the presumption is that his complaint correctly states the contract which was the causé of action.</p> <p>Party Pirst Violating Contract Cannot Complain.—The purchaser of the good will and franchise of a ferry, who agrees to pay a certain price for the same, must fulfill his contract and pay the money, before he can be heard to complain that the seller has reestablished the ferry.</p>

Robert C. Brooks, Anthony Riley, and James Burke were Calderwood’s tenants, against whom he brought ejectment for holding over. The action was commenced April 4th, 1863, and the judgment was affirmed in the Supreme Court, July 15th, 1865. , Edmond Brooks was not made a party.

During the trial of this cause, plaintiffs offered testimony • tending to prove that the defendant and a company called the Good Friday Company had a law suit in the District Court of Placer County, in 1867, concerning the property now claimed by defendant, and called the Good Friday ground; that during the progress of the trial an order was made that the jury then summoned to try the case proceed to view the premises in dispute; that Daniel Choate was selected on the part…

By consent of parties, the case was referred to a referee, to try all the issues and report the testimony, his findings of fact, and a judgment. Among other witnesses, one Stephen C. Foster was introduced by the plaintiffs, and, while under cross-examination, said that he had seen the patent issued for this grant in Mr. Abel Stearns’ possession.

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

On the trial the plaintiff offered the two promissory notes, and the indorsements thereon, in evidence, and then rested. The defendant was sworn on his own behalf’ and gave evidence tending to establish the defense set up in the answer.

The defendant, incorporated under the name of the Twin and City Creek Turnpike Company, constructed a turnpike toll road in San Bernardino County, from the residence of Ballard Wall, south of Twin Creek, up the dividing ridge between Twin Creek and City Creek to the top of the mountain near Bear Springs.

<p>Office Created by the Legislature.—The Legislature can abolish or change an office created by it, and it may extend or abridge the terms of its incumbents at pleasure.</p> <p>Construction of Statute.—If it appears from the language of an amendatory Act, and of the Act which is amended, that by the words “ Board of Underwriters,” used in the former, the Legislature meant “ Board of Fire Underwriters,” the Court will construe it as intended. Appointment to Office.—The Legislature may confer the power of electing a Fire Commissioner in a city upon a Board of Fire Underwriters, which is a voluntary association of persons and not a corporation.</p> <p>Idem.—A change in the membership of such association does not take away its power of appointment, and the appointment may be made by a majority vote. Power of Appointment to Office.—The Constitution does not prohibit the Legislature from conferring on a voluntary association of persons who are not citizens of the United States or electors of the city, the power to elect a person to fill an office created by the Legislature.</p>

The plaintiffs appealed. The defendant claimed one hundred and sixty acres as a preemptioner. The other facts are stated in the opinion.

This action was commenced February 8th, 1870. The Wilsons had assigned to plaintiff Hendy their interest in the contract. It was alleged that the defendants, other than the Vallejos, claimed some interest in the land adverse to the plaintiffs. The Wilsons were attorneys at law. The plaintiffs appealed. The other facts are stated in the opinion.

<p>Latitude Allowed in Contract.—A contract to deliver about fifty-three thousand pounds of wool does not require the delivery of that exact number of pounds, but the vendor has a reasonable latitude allowed him as to the number of pounds he shall deliver.</p> <p>Delivery of Goods by Vendor.—If the vendor delivers a less quantity of goods than he contracted to deliver, the vendee is at liberty to refuse to accept, and if he accepts a part, he may return that and refuse to accept less than the whole, but having received and retained a part, he cannot refuse to pay for the part received.</p> <p>Warranty of Goods Sold.—No particular words are necessary to constitute a warranty as to the character, condition, or quality of goods sold, but if the vendor, at the time of sale, affirms a fact as to the essential qualities of his goods, and the purchaser buys on the faith of such affirmation, it is an express warranty.</p> <p>Warranty in Executory Contract.—There may be an express or implied warranty when the contract for the sale of goods is executory, as well as when it is executed.</p> <p>Damages for Breach of Warranty.—If the vendee accepts the goods sold when delivered by the vendor, and renders the vendor an account, it does not prevent the vendee from recovering damages for a breach of a warranty made by the vendor as to their quality, if the vendee thus accepted and rendered the account in ignorance of the true condition of the goods.</p> <p>Remedy of Vendee for Breach of Warranty.—If the vendor warrants the goods sold, and the vendee discovers after they are delivered that there has been a breach of the warranty, he is not compelled to return the goods, although he may do so and rescind the contract, but he is at liberty to retain them and bring an action for the breach of the warranty, or he may plead the breach in reduction of damages in an action brought by the vendor for the purchase money.</p>

The plaintiff appealed from the judgment in favor of the wife and from an order denying a new trial The appeal was taken and the case argued before- Mr. Justice Belcher came on to the Bench. The other facts ar§ stated in the opinion.

The complaint averred that the plaintiff and the defendants Juan Pablo Bernal, Jean David Guerraz, Amos White, and John Trimble claimed, and possessed as tenants in common, the land of which partition was asked, and that the plaintiff owned in fee one undivided quarter of the whole thereof; and that the defendant George M. Yoell claimed the same interest in the land claimed by the defendant Parker, and that -it was an issue of law which of said two defendants was the…

<p>Application to Purchase Land—Piling Affidavit—No rights will attach in favor of an applicant to purchase school land from the State, under the Act of April 27th, 1863, until he files the affidavit prescribed by sections twenty-eight and twenty-nine of that Act, indorsed on a description of the land, in the office of the County Recorder.</p> <p>Time of Piling Affidavit.—The statute does not require that the affidavit shall not be filed before or at the time of the other proceedings. It is only necessary that it be filed within a reasonable time before or after, and for the purposes of the intended purchase.</p>

<p>Attornment by Tenant to Third Party.—A tenant cannot justify his attornment to a third party by merely showing that such party has recovered a judgment against him for the possession of the leased premises. He must also show that his landlord was notified of the pendency of the action brought against him, and had an opportunity to defend; otherwise the landlord is neither bound nor estopped by the judgment.</p>

The jury found that there had been no settlement of the partnership accounts, and the defendant appealed from the judgment and from an order denying a new trial. The other facts are stated in the opinion.

This action was commenced in February, 1869. The premises in dispute are in the City and County of San Francisco, and are described as that certain block of land bounded by De Haro, Alameda, Carolina, and South Channel streets, situated upon what is known as the Potrero Huevo, -and designated upon a certain map on file in the Recorder’s office of said city and county, and marked S.S.W., as Block 169, and so described and known upon the official map of said city and county.

<p>Appeal from the District Court of the Third Judicial District, County of Monterey.</p> <p>None of the defendants, except Thompson, appeared in the action.</p> <p>The defendant Thompson recovered judgment, and the plaintiff appealed.</p> <p>The other facts are stated in the opinion.</p>

On the 16th of March, 1869, the plaintiff, as Sheriff of Kern County, levied upon certain personal property belonging to one Stine, by virtue of a writ of attachment issued in a suit brought by defendant Livermore and Julius Chester against Stine. Subsequently Livermore' obtained a judgment in that suit, but being dissatisfied with it, he moved for a new trial. His motion was denied, and he appealed td the Supreme Court.

<p>Complaint in Action eob Damages—In an action for damages caused by the sale of the plaintiffs’ real estate under an execution issued on an erroneous judgment, afterwards reversed, it is not necessary in the complaint to make a direct averment of the existence of the property, if that fact appears by necessary inference drawn from the facts stated.</p> <p>Amendment to Pleading—If the Court, during the trial, grants leave to file an amendment to the complaint, and it is filed before the argument is concluded, and there is nothing in the record to show the other party was not present and consenting, the amendment will not be disregarded in the Supreme Court.</p> <p>Idem.—The facts that the Clerk’s minutes show that leave was given to file an amended complaint, and that amendments only to the complaint were filed, do not furnish ground for wholly disregarding the amendments in the Supreme Court.</p> <p>Reversal of Judgment.—If a judgment is reversed by the Supreme Court of the United States, with directions to the Court below to enter a decree in accordance with the opinion, and its mandate is filed in the lower Court, the judgment is set aside, even, if the lower Court does not make any order conforming its judgment to that of the Supreme Court, and if the lower Court denies a motion made to thus modify the judgment.</p> <p>Sale of Land on Judgment Afterwards Reversed.—If real estate is sold on a judgment, and the judgment is afterwards reversed, the former owner has his election to either have the sale set aside and be restored to possession or to affirm the sale and maintain an action for damages.</p> <p>Order Denying Motion to Set Aside a Sale Hot an Estoppel.— A person whose land is sold on an erroneous judgment, afterwards reversed, is not estopped from maintaining an action for damages by having had a motion to set aside the sale and be restored to possession denied.</p> <p>Who Liable for Sale Made Under Erroneous Judgment. — One who takes an assignment of an erroneous judgment, and procures an execution to be issued on it, and becomes a purchaser of land sold under the execution, is not entitled to protection as a bona fide purchaser, and is liable in an action for damages caused by the sale.</p> <p>Uncertainty in Complaint.—A defect in a complaint for uncertainty must be taken advantage of by special demurrer. It is not reached by a general demurrer.</p> <p>Pleading Tenancy in Common.—An averment in a complaint, where there are several plaintiffs, that the plaintiffs own seven tenths of certain real estate, raises the legal presumption that they own it as tenants in common.</p> <p>Tenants in Common May Join in Action.—Tenants in common may join as plaintiffs in an action for damages for the sale of land under an erroneous judgment, which is afterwards reversed; and if one of the tenants in common is dead, his executor or administrator may join as plaintiff with the other tenants.</p>

This is an action of trespass for a forcible interference with the plaintiff’s business and trade property. The defendants were the Board of Directors of the State Prison, at San Quentin, and were the successors in office of the Board which made the contract, in 1865, as hereinafter mentioned, and entered upon the discharge of their duties on the first Monday in December, 1867, to continue in office four years thereafter.

The action brought by Brady to recover his damages was against the County of Solano, and he recovered judgment therein for seven hundred and thirty-three dollars, on the 24th day of September, 1867. The present action was commenced on the 10th day of August, 1871. No appeal had been taken from the judgment recovered by Brady, and the time for an appeal had expired.

<p>Appeal from the District Court of the Fifth Judicial District, County of San Joaquin.</p> <p>This action was brought to recover a street assessment in the City of Stockton. In October, 1869, the Common Council passed Ordinance Do. Seventy-nine, which provided that Fremont street should be graded from Steamboat levee to Tule street, a distance of nine blocks; and further provided that the Street Committee should advertise for bids for the grading, requiring that each block should be bid on separately. The committee advertised for bids in accordance with the ordinance, and in response thereto Henry Myers presented a bid, in which he proposed to “ grade with earth, from Hunter to El Dorado streets, Steamboat levee; also, all the blocks on Fremont street to Tule street, as per your advertisement, for fifty cents per cubic yard.” The committee afterwards reported to the Council that they had accepted Myers’ bid for all the blocks but one, and awarded the contract for grading them to him. The report was adopted by the Council. Myers did the grading under the contract, and his work was accepted by the Council. The defendant is the owner of certain property assessed for the expenses of the work, and having refused to pay the assessment, this action was brought to collect the amount. .</p> <p>Judgment was rendered for the defendant, and the plaintiff appealed..</p> <p>The other facts are stated in the opinion.</p>

The appeal is taken by Barton Daniels, from an order granting a writ of assistance and an order refusing to set aside such writ. The plaintiff Henderson, in an action against Nathaniel McTucker, obtained a decree of foreclosure May 18th, 1871, under which, at the Sheriff’s sale, he purchased the land.

The defendant was tried upon an indictment for felony. In its charge to the jury the Court used this language: “ Of course there is one thing to be said about this kind of defense [insanity]. It is doubtless true that it has been relied upon in a great many cases, and has been sustained where it should not have been; it has got to be somewhat odious in the minds of the community.

<p>Appeal from the District Court of the Third Judicial District, County of Alameda.</p> <p>The action was ejectment; the plaintiffs were allowed to file an amended complaint, in which the names of additional plaintiffs were inserted; they obtained judgment, and the Clerk in entering the judgment followed the enumeration of plaintiffs in the original complaint. The defendants moved to vacate the judgment, on the ground of the mistake, and the motion being denied, they appealed.</p>

The defendant had judgment in an action to abate a nuisance, and the plaintiff appealed. The facts are stated in the opinion.

The Colirt sustained a motion to strike out the answer, and rendered judgment as of default, from which the defendant appealed.

The exterior lines of the township in which the demanded premises are located were surveyed by the United States in 1852. The defendant recovered judgment, and the plaintiff appealed from the judgment and from an order denying a new trial. The other facts are stated in the opinion.

The plaintiff had judgment May 2d, 1872, in an action of ejectment, and the defendant moved for a new trial. On the eighth of May the statement was filed, and, amendments having been, proposed by the plaintiff, the Judge settled the statement on the fourteenth. On the sixteenth the statement was engrossed, and on the twenty-first an order was made staying all further proceedings on the judgment until after the hearing and determination of the motion.

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

The demanded premises were the southwest quarter of section twenty-one, township number three south, range number three east, Mt. Diablo meridian, Alameda County. The plaintiffs resided in San Francisco, and, prior to 1870, had inclosed a large tract of land, ifie-ludlng the demanded premises. Previous to the FsJI of 1870, one Taylor had leased from the plaintiffs the whole, tract and farmed it to small grain.

This action was brought in September, 1872, under the Forcible Entry and Detainer Act of 1866, to recover possession of a house. The building is on the southeast quarter of section fourteen, township ten north, range eight east, Mount Diablo meridian.

The petitioner applied for a writ of mandate to require the Board of Supervisors, as a Board of Canvassers, to canvass the returns of certain election precincts at an election held February 15th, 1873, for the purpose of selecting a county seat for Kern County. The Code of Civil Procedure, section eighty-five, subdivision five, provides that County Courts may issue writs of mandate. The respondents had judgment upon demurrer, and the petitioner appealed.

The plaintiff claimed to be a corporation formed under the “Act to authorize the formation of corporations for the construction of plank or turnpike roads,” approved May 12th, 1858.

<p>Action to Annul State Certificate of Purchase.—In an action to annul a certificate of purchase of land sold on credit hy the State for nonpayment of the purchase money, if the holder of the certificate is known, the action must he brought against him by his real name, and there must he a personal service of summons. In such case the summons cannot be served by publication.</p>

<p>Municipal Cobfobations.—The Act of 1863 which declares that the Board of Supervisors of Sacramento County shall he a body politic and corporate,does not make that county a municipal corporation within the meaning of that term as used in the nineteenth section of the Political Code.</p> <p>County of Sacramento.—The County of Sacramento is subject to the provisions of the Code respecting the government of counties.</p>

James Ballentine died May 13th, 1872, leaving a widow, Sarah Ballentine, a son, James H. Y. Y. Ballentine, a daughter, Jane M., wife of Samuel Jaques, and likewise the widow and minor children of a deceased son, John P. A. Ballentine, who had died about one month prior to his father. Mrs. Jaques resided in Few York City.