Volume 46 — California Reports

<p>Statement on Motion fob Hew Tbial. — A statement on motion for a new trial must contain the specifications particularly pointing out wherein the judgment is not warranted by the evidence, or wherein the facts found are contrary to the evidence, or what the errors in law were, if the new trial is asked on said grounds, or it will he disregarded.</p> <p>Implied Findings of Fact.—If the facts found are silent upon some material issue, the law implies that the Court found upon that issue in such a way as to support the judgment.</p> <p>Facts Insufficient to Show Tbespass. —In replevin for hogs distrained under the Act of March 26th, 1857, the Court found that the ‘ ‘defendant had caught the said hogs in traps on his land, and had hauled them in wagons to the pen,” and that certain persons, selected by the Constable without notice to the plaintiff and in his absence, and who were not sworn nor acting on the testimony of sworn witnesses, appraised the damages ‘‘ committed by said hogs in destroying fifteen acres of grain which defendant claimed was destroyed by said hogs.” Held, that such facts do not tend to prove the trespass.</p>

The complaint alleges that in October, 1873, James Brennan owned the “thousand-acre tract,” being a part of the Rancho Corralitos, and that defendant, Ford, at the same time owned an undivided one thirteenth of the Rancho San Andreas, and that said Brennan then made an agreement with said Ford by which said Brennan was to sell and convey to said Ford the undivided half of said “thousand-acre tract,” and said Ford was to sell and convey to said Brennan the undivided half of…

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

The proposed road passed over the lands of several private proprietors.

Petition to the Supreme Court for writ of mandate. Frederick Miller, after complying with the requirements of the law, in obtaining a survey, etc., paid the Treasurer of Sacramento County, on the 3d day of October, 1868, twenty per cent of the purchase money, and ten per cent interest, in advance, on survey number nine hundred and forty-two, being portions of sections nineteen, twenty, twenty-one, twenty-nine and thirty, township four north, range four east, lying in…

<p>Appeal from the District Court of the Fifteenth Judicial District, City and County of San Francisco.</p> <p>The defendant, under a contract with the Superintendent of Streets in San Francisco, was engaged in blasting rock on the westerly side of Kearny street. The defendant was struck by a rock, thrown by the explosion of a blast, and died from the effects of the injury.</p> <p>The defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Bum of Paf.tioui.aes.'—A count in a complaint for a sum of money alleged to be.due by the defendant, for the use and occupation of the plaintiff’s land, does not present a claim upon which a bill of particulars can be required.</p> <p>Hew Tbial.—Although the Court excludes all evidence on the part of the plaintiff, and renders a judgment for the defendant, yet a trial is had, in the sense in which the Gonrt may grant a new trial, on application of the plaintiff.</p> <p>Evidence when Bill oh Pabticulabs is Demanded.—If the complaint contains several counts, on one of which a bill of particulars cannot be required, and the defendant demands a bill of particulars, which is not given, the Court should not, on the trial, exclude evidence on the count on which a bill' of particulars was not required.</p>

<p>Order £[ade Without Notice.—An order made without notice to the other party maybe set aside without notice to the party who procured it.</p> <p>Ejectment.—The bare pendency of proceedings for the condemnation of land is not a valid defense in ejectment.</p>

<p>Mining Claims on Public Lands.—Mining claims on the public lands must be held and worked in accordance with the local mining laws adopted and in force in the mining district where the same are located.</p> <p>Abandonment of Claim Undeb Mining Laws. — If the local mining laws of a district provide that, on a failure to work and notice a claim as required by the mining laws, the claim shall be consideradas abandoned, a failure to comply with such laws.is an abandonment of the claim, and it is open to location as vacant ground.</p> <p>Relocation of Mine Lost by Abandonment.—If several, as tenants in common, locate a mining claim on the public lands, and, by a failure to comply with the local mining laws, forfeit the same, it may be relocated by a part of the first locators along with others who were strangers to the first location; and the tenants in common, whose names are left out in the notice of relocation, cease to have any interest in the mine.</p> <p>Renewal of Location of Mine.—If the mining laws require a renewal of notice of location at stated periods, and a claim has been lost by reason of a failure to make such renewals, and one of the joint locators afterward renews the location, stating that it is a renewal and nota new location, the renewal will inure to the benefit of all the locators.</p> <p>Reviewing Evidence on Motion fob New Tbial.—A specification in a . statement on a motion for a new trial in a ease tried by the Court where findings of fact have been filed, that a particular finding, naming it, was not justified by the evidence, is sufficient to enable the Gourtto review the evidence so far as it relates to each finding thus pointed out.</p>

<p>Appeal from the District Court, of the Third Judicial District, County of Santa Cruz.</p> <p>The plaintiff was the son of the defendant. The complaint contained three counts, one for services performed by the plaintiff for his father and Steigleman, who were partners during the minority of the plaintiff, from the 18th day of June, 1867, to the 18th day of June, 1869, and another for like services, from the 18th day of June, 1869, when the plaintiff is alleged to have attained his majority, to the 1st of May, 1871. These two counts averred special promises to pay the plaintiff twenty-five dollars per month during the first period, and seventy-five dollars per month during the second period. The second count alleged that the partnership existed up to January 14th, 1871, and that on the last named day Steigleman died.</p> <p>The third count was on a quantum meruit for plaintiff’s services during the entire period, and also averred Steigleman’s death, and that defendant was left sole surviving partner.</p> <p>The defendant demurred to the complaint, because it did not state facts sufficient to constitute a cause of action, and because two causes of action were united. The Court below overruled the demurrer. The defendant answered, and the cause was tried by the Court.</p> <p>On the trial the plaintiff elected to abandon the second count of the complaint, and proceed on the third count, upon the quantum meruit, and, against defendant’s objection, was allowed to introduce evidence to show a special contract, as tending to show the value of his services.</p> <p>The Court found that the plaintiff’s services, after he attained his majority, were reasonably worth seventy-five dollars per month, and gave the plaintiff judgment for the services performed after he attained his majority. The Court says: “For the services rendered after plaintiff became of age there is a count upon a quantum meruit, and there is proof that the services were rendered and were reasonably worth the sum of seventy-five dollars per month.”</p> <p>The defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Appeal from the District Court of the Twelfth Judicial District, City and County of San Francisco.</p> <p>When the case was called for trial the defendant’s attorney challenged the panel of trial jurors, because it had not been summoned until after the Code went into effect, and had not been summoned in accordance with the provisions of the Code. The Court allowed the challenge, so far as the trial of this indictment was concerned, and directed the Sheriff to summon from the body of the county additional jurors. When the case was again called for trial, the defendant’s attorney challenged the panel, because an order had been made before the commencement of the term drawing a panel of jurors. The Court denied the challenge.</p> <p>The defendant was convicted of the crime of murder in the first degree, and appealed.</p> <p>The other facts are stated in the opinion.</p>

William J. Douglas and Christopher Hutchinson brought this action, on the 22d day of August, 1872, against E. Dakin and J. G. Libbey, for unlawfully holding premises which they had leased from the plaintiffs, after rent fell due and demand had been made for its payment. The defendants, in their answer, deny the allegations of the complaint, and set up several defenses.

<p>Notorious Cohabitation and Adultery. — Proof of notoriety is as material as proof of the fact of adultery, in making out the offense of living a state of open and notorious cohabitation and adultery.</p>

Application to the Supreme Court for a writ of mandate. The petitioner was convicted of grand larceny in the Municipal Criminal Court of the City and County of San Francisco, and his counsel, desiring to take an appeal, applied to the Judge of the Court to settle and sign a bill of exceptions. The Judge declined to do so, the time for taking it having expired. The petitioner then made the application for mandamus to require him to settle and sign it.

The Circuit Court of the United States, by a decree entered on the 18th day of May, 1865, confirmed the claim of the City of San Francisco to the pueblo lands. The corporate limits of the City, as defined by the Act of 1851, reincorporating the City, had been subsequently enlarged.

<p>Opening Default.—If there are two defendants, and one of them is not a real party in interest, and relies on the promise of the other to defend the action, and for that reason is defaulted, it is not an abuse of discretion for the Court to open the default as to him.</p>

The defendant Crenshaw and six others were convicted as accessories before the fact in the murder of Chee Long Tong, and appealed from the judgment. The other facts are stated in the opinion.

Action to recover an assessment for improving a street in San Francisco. The defendant demurred to the complaint. The Court below sustained the demurrer, and the plaintiff, declining to amend, final judgment was rendered for the defendant. The plaintiff appealed. The other facts are stated in the opinion.

Action to collect an assessment levied on lots for improving a street in San Francisco. The proceedings for the construction of the sidewalks, as mentioned in the opinion, were taken under the provisions of an Act, approved April 1st, 1872, entitled “An Act repealing Article IV of an Act entitled,” etc, (See Laws 1871-2, p. 804.) The resolution of intention to do the work is given in the opinion. Under the resolution the Superintendent of Streets let the contract.

<p>Appeal from the District Court of the Twelfth Judicial District, City and County of San Francisco.</p> <p>The complaint alleged that the plaintiff, in July, 1863, owed Tully & Durkin one hundred and ninety-nine dollars and thirty-eight cents; Katz, three hundred and eighty dollars; and Morrison & Bryant, one hundred and eighty-eight dollars; and that, being in embarrassed circumstances, it was agreed between himself and his creditors, that Katz and Morrison & Bryant should assign, without consideration, to Tully & Durkin, their claims in trust to have the same, with the claim of Tully & Durkin, put into a judgment for</p> <p>the use of each creditor, according to his interest; that the assignment was made, and the plaintiff, on the 8th day of July, 1863, confessed judgment in favor of Tully & Durkin for seven hundred and sixty-seven dollars and thirty-eight cents; that execution was issued, and, July 20th, 1863, the Sheriff returned the execution, having made two hundred and fifty-three dollars and twenty-five cents on the same over costs; that Tully & Durkin sued the judgment, and, December 6th, 1872, recovered judgment for one thousand two hundred and twelve dollars; and that December thirteenth, thereafter, the plaintiff paid defendant Pierson, who was the attorney for Tully & Durkin, three hundred dollars on the judgment; that neither Tully & Durkin or Pierson had paid any of the money received on the judgment to Katz or Morrison & Bryant; that Tully & Durkin had issued an execution on the judgment, and the Sheriff had levied on the plaintiff’s personal property, and was about to sell it, and that defendant Pierson claimed an interest in the judgment by assignment; that since the last judgment was recovered Morrison & Bryant and Katz had acknowledged and filed in the Clerk’s office satisfaction in full of their interests in the judgment; that the plaintiff had moved in the Court for an order declaring the judgment satisfied, and, on the motion, an issue of fact had been raised between the said trustee and cestui que trusts, and the Court denied the Order, leaving the plaintiff to his remedy in equity; that Pierson, if he had any interest in the judgment, received it with full knowledge of the existence of the trust, and that Tully & Durkin were insolvent. There was a prayer for an injunction restraining the collection of the judgment.</p> <p>The defendants demurred to the complaint, because it did not state facts sufficient to constitute a cause of action. The Court below granted a preliminary injunction, but afterwards dissolved the same and sustained the demurrer, and the plaintiff declining to amend, final judgment was rendered for the defendants.</p> <p>The plaintiff appealed from the order dissolving the injunction and from the judgment.</p>

<p>Poweb of Contbobbeb Oveb State Pbinteb’s Accounts.—The Controller may decline to audit the accounts of the State Printer, even after they have been approved by the Board of Examiners, if he is of opinion that the work has not been correctly computed, or that it contains items which are not a legal charge against the State.</p>

<p>Appeal from the District Court of the Eleventh Judicial District, County of El Dorado.</p> <p>The defendant was convicted of murder in the second degree and appealed.</p> <p>The other facts are stated in the opinion.</p>

The property sued for was a horse, eight hogs, one cow, arid twenty-five tons of barley. The barley was raised on the plaintiff’s farm. The plaintiff had judgment, and the defendant appealed. The other facts are stated in the opinion.

<p>Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.</p> <p>The plaintiff brought this action to recover possession of a patent issued by the United States for a quarter section of land. The defendant was Register of the United States Land Office, at Marysville, California. In his answer, he alleged that the plaintiff entered the land for which the patent was issued as a preemptor, and, before making the entry, took the required oath “that he had never had the benefit of any right of preemption in this State.” That representations had been made by affidavit to the Commissioner of the (General Land Office, at Washington, that the plaintiff had before enjoyed the benefit of the right of preemption in this State, and that he had, by means of false swearing, made the entry for which the patent was issued, and that the Commissioner had directed the defendant to retain the patent until the matter was investigated.</p> <p>The defendant served notice on the plaintiff’s attorney that he would take the plaintiff’s deposition before E. L. Brown, a Notary Public at Davisville, Yolo County, at the office of said Notary, in Davisville, Yolo County, on the 12th day of March, 1872, commencing at eleven A. M. of that day. The subpoena directed the plaintiff to appear before “the undersigned, a Notary in and for Yolo County,” etc., without giving the place. The Court below, when the case was called for trial, on motion of the defendant, dismissed the action. The defendant moved to vacate the judgment and grant a new trial. The statement was settled August 1st, 1872. The motion was denied, and the defendant appealed from the order and judgment.</p> <p>The other facts are stated in the opinion.</p>

<p>Note op Mining Corporation.—A Superintendent of a mining corporation cannot bind the corporation by a promissory note, unless he has authority from the corporation to make it.</p> <p>Assignment op Promissory Note. — An assignment of the note of a mining corporation, made by its Superintendent, but void for want of the authority of the Superintendent to make it, does not carry with it the debt for which the note was given.</p>

<p>Judgment after Conviction. — It is doubtful whether the limitation of time fixed in the Penal Code, within which judgment may be pronounced in a criminal case after conviction, applies in the case of a judgment upon a plea of guilty.</p> <p>Waiver of Statutory Right in Criminal Case. — The defendant in a criminal case may waive the time which the Penal Code allows after conviction before sentence is pronounced, and may consent that judgment be pronounced immediately.</p> <p>Waiver of Statutory Right. — A party may waive a right created by the statute for his benefit.</p>

<p>Application to the Supreme Court for mandamus to require the respondent, as Auditor of Placer County, to deliver the poll tax blanks to the petitioner as Assessor.</p> <p>The County of Placer was divided into three revenue districts, in each of which was an Assessor and Collector. The petitioner was the Assessor in one of these Districts. The Auditor claimed that the Collector was entitled to collect the poll taxes, and refused to deliver the blank poll tax receipts to the petitioner.</p>

<p>Finding of Facts.—When, material facts within the issues are not expressly found, the presumption, is that they were found in accordance with the judgment, unless it affirmatively appears that no other facts were proved than those included in the findings.</p> <p>Complaint in Street Assessment Case.—The fact that an assessment was made and issued is a material averment in a complaint to enforce the collection of a street assessment in San Francisco.</p> <p>Construction oe Statute Concerning Pleadings.—The law of 1869-70, concerning street assessments in San Francisco, which prohibits any defense, except that the Board did not acquire jurisdiction to order the work, or payment, or fraud in the assessment, was not intended to prevent the defendant from denying material averments in a complaint, but was merely intended to restrict affirmative defenses to those mentioned.</p>

The defendant was indicted for the crime of grand larceny, February 10th, 1873. On the 8th of March, when the cause came on for trial, and before a venire for a jury had been issued, he moved for a continuance, on the ground that two of his witnesses, residents of the State of Nevada, were absent. In support of the motion he filed an affidavit, the substance of which is stated by the Court. The motion was denied, and the defendant was tried and convicted.

The defendant appealed. The other facts are stated in the opinion. The Judge of the District Court, the Hon. William C. Wallace, in his conclusions of law, uses the following language : “In regard to the merits of the case I am compelled to say that the land sought to be purchased, in my opinion is not of the character that the Legislature intended to sell.

This action was commenced in a Justice’s Court to recover fifteen dollars and thirty-five cents, alleged to be due by defendant for tolls on plaintiff’s bridge, and was transferred to the District Court for trial, under the provisions of section five hundred and eighty-one of the Civil Practice Act.

<p>The prisoner was brought before the Supreme Court on a writ of habeas corpus.</p> <p>The other facts are stated in the opinion.</p>

The defendant was indicted for the crime of murder in Trilling Mary Shaw alias Mary Gibson, and was convicted of murder in the first degree. The offense was committed on the 19th day of September, 1872; the indictment was found on the 27th day of November, 1872, and the trial took place in March, 1873. The Penal Code went into effect at twelve o’clock m. on the first day of January, 1873. The defendant appealed. The other facts are stated in the opinion.

The defendant was convicted of the crime of murder in the first degree, in the killing of James Crotty, on the 2d day of August, 1872, and appealed. On the direct examination of the defendant, he stated where he had been during the three hours—mentioning several places he visited.

<p>Appeal from the District Court, Fourteenth Judicial District, County of Placer.</p> <p>The complaint averred that the plaintiff, and W. H. Kinder, and J. D. Pratt were Supervisors of Placer County; and that on the 4th day of April, 1870, said county was the owner of a large amount of the capital stock of the Central Pacific Bailroad Company of California; and that on said day the Legislature passed an Act authorizing said Supervisors to sell said stock, on such terms as they should deem expedient; and that on the 13th of April, 1870, the Supervisors sold the stock to D. O. Mills & Co., a banking firm of Sacramento; that on the 10th day of December, 1870, the defendant published in his paper (the Placer Herald) of, and concerning the plaintiff, as a Supervisor, these false and defamatory words:</p> <p>“The Act, under which the Supervisors sold our railroad stock, passed at the last session of the Legislature, gave the Supervisors power to sell said stock upon such terms and conditions as shall be deemed expedient by said Board, thus taking away from any other officers of the county all voice in the matter, or even to touch or keep an account of the proceeds. Under this extraordinary power the Board did sell, and after they had had the two hundred and fifty thousand dollars counted out to them, they then made such terms and conditions that the money never reached the County Treasury. These terms were, that D. O. Mills & Co. should keep the two hundred and fifty thousand dollars four months, and with it buy up our bonds at a discount, and then pay over the bonds to the Supervisors as so much gold coin at par. Instead of the money being in the Treasury here, it never was inside of Placer County, for the Supervisors swapped it off in Sacramento, and a villainous swap it was. Two things appear plain; one is, ‘Who struck Billy Patterson?’ and the other is, ‘Who whipped the devil around the stump,’ and thereby made money?”</p> <p>The complaint alleged that the defendant meant, in said article, to charge him with having, in the performance of his duties as Supervisor, corruptly made money and acquired illicit gains in the sale of the stock, and with having been bribed by D. O. Mills & Co.</p> <p>In the answer, the defendant denied that he meant to charge the plaintiff, as alleged, or that the article would bear the construction given to it by the plaintiff.</p> <p>The Court charged the jury as follows :</p> <p>“It is not pretended that the article complained of charges the plaintiff in express terms with corruption in office, or with dishonesty in his official or private conduct, but it is averred that the defendant intended to so charge, and that it was understood by those who read it as so charging. Now this is the meaning assigned to the article by the plaintiff in his complaint, and it is for you to determine whether that is the true meaning of the'alleged libelous article.</p> <p>“In order to determine this question you will read and consider the article itself, and also consider and weigh the evidence offered, for the purpose of illustrating the true and real meaning of the alleged libelous article. You are to read and understand the alleged libelous article according to the ordinary import of the language used.</p> <p>“The article complained of commences by undertaking to give a brief history of the sale of Placer County’s railroad stock to D. O. Mills & Co. It states that the Supervisors, the plaintiff being one of them, after selling the stock to D. O. Mills & Co., and after having the money counted out to them, swapped it off for the bonds of Placer County; that swap or exchange is characterized as ‘villainous.’</p> <p>“So far, then, there is no dispute as to whom the article referred. It no doubt states and means that the plaintiff and his associates (Supervisors) did exchange the purchase money for the county bonds; and if the article ended here, I apprehend that the plaintiff could not maintain this action. Beading it so far, and placing upon it that construction which the language would ordinarily impart, and understanding it according to the usual acceptation of the words employed, I would say that the article is not capable of bearing that construction placed upon it by the plaintiff—that is to say, it cannot be understood as charging the plaintiff with doing anything dishonest, or with corrupt motives. It amounts, in my judgment, to nothing more than a statement that the exchange of the money for the bonds was unwise, improvident, and disadvantageous to the County of Placer. It is true the transaction is called ‘a villainous swap,’ but I suppose no one reading the article down to and including those words could or would be justified in believing that it was intended to charge the plaintiff with corruption in office. The word ‘ villainous ” evidently was used to express the degree of improvidence or injudiciousness of the exchange, and not the- motives or inducements that led to it.</p> <p>“ If the article, then, as I before stated, stopped here, this case would be free from difficulty; but it proceeds and closes with this sentence : ‘ Two things appear plain : one is, Who struck Billy Patterson ? and the other is, Who whipped the devil around the stump and thereby made money ? ’</p> <p>“ By reference to the article itself it is clear that by Billy Patterson is not meant the plaintiff, but the author of a communication that appeared in the paper of the previous week; but to whom the words ‘ who whipped the devil around the stump and thereby made money,’ referred is not clear. The plaintiff avers in his complaint that by this language the defendant meant to charge him with corruption in office, with making illicit gain in the transaction referred to, and with being bribed by D. O. Hills & Co. to cheat and defraud the County of Placer, etc. This is denied by the defendant, who says that it refers to the County Auditor, who had charged his percentage on money that never was in the County Treasury, and with which he had never dealt and could not deal.</p> <p>“Tour verdict then will depend upon the solution of the single question, what is the true meaning and construction of the article complained of ?</p> <p>“From the article itself it appears that it was written in reply to one published in the Stars and Stripes of the week previous, in answer to a communication published in defendant’s paper on December third.</p> <p>“The article complained of, then, seems to be but a continuation of a discussion commenced in the Herald of December third.</p> <p>“In order to ascertain the true meaning and intent of the alleged libelous article, you will take into consideration the other two articles to which I have referred; and this I say to you because it is usual that discussions in relation to matters of public interest are carried on in the public newspapers ; and as there can be no libel unless the libelous matter is made public, and as in this case it is said to have been made public by the general circulation of the newspaper containing it, it must be presumed that those who read it must have read it in connection with the. other articles, of which this was a continuation; and as you are to place yourselves in the position of those who read it, you must read it with the same light, and then by your verdict say what construction the readers of this paper put upon the article claimed by the plaintiff to be libelous: and if, after this, you should believe that the article contains a charge of corruption in office against the plaintiff, and was so understood by those who read it, you will find for the plaintiff.</p> <p>“But if, on the contrary, you should believe that article, taken in connection with the preceding ones, does not so charge the plaintiff, and cannot be understood as charging him with dishonesty or corruption in office, you will find for defendant.</p> <p>“ It is my duiy to inform you that you are the sole judges of the facts; it is not my province to charge you as to them; and I have therefore endeavored to avoid any intimation upon them. If you should find for the plaintiff, you will assess the damages at such sum as you may think reasonable and proper.”</p> <p>The other facts are stated in the opinion.</p>

<p>Sheriff’s Deed for Taxes. — A Sheriff’s deed made under a sale for a tax, in pursuance of a judgment enforcing the lien of the tax, is not void because the property sold, being several lots in a city, was assessed in sólido, and not each lot separately.</p> <p>Idem.—Such deed is not void because the purchase money at the tax sale was not paid to the Sheriff until some time after the sale, provided the Sheriff accepted of it.</p> <p>Deed fob -Latest Tax the Best.—A title acquired by a Sheriff's deed, in pursuance of a sale for a delinquent tax, will prevail over a title acquired by a similar deed for the tax of a previous year, even if the sale for the oldest tax was made after the sale for the later tax.</p>

The defendant was indicted for forgery, and, on being arraigned, he challenged the panel of the Grand Jury, and moved to set aside the indictment, specifying as one of the grounds of his motion that the indictment had not been found as prescribed by the statute.

This action was brought against the administrators cum testamento annexo and heirs of James Fuller, deceased, to foreclose a mortgage of certain real estate given to secure a promissory, note dated November 12th, 1862, payable two years after date. The mortgagor died in December, 1862.

On the 14th day of February, 1853, the President and Trustees of the City of San Diego, as successors to the Pueblo of San Diego, presented to the United States Board of Land Commissioners for California a petition for the confirmation of the claim of the city to the pueblo lands, and, on the 22d day of February, 1856, the Commissioners confirmed said claim to the extent of eleven square leagues.

The plaintiff, who had been a member of the Howard StreetMethodistEpiscopal Church, in San Francisco, brought this action against the pastor and some of the members of that church. The Court below sustained a demurrer to the complaint, and the plaintiff failing to amend, judgment by default was rendered against him. The other facts are stated in the opinion.

An injunction was granted restraining the defendants from erecting a Hall of Records or other county buildings for Alameda County, from contracting any debt or liability on behalf of the county for or on account of such buildings, and from allowing any accounts against the county thereon. The other facts are stated in the opinion.

The cause was tried before a jury, and the Court instructed them as follows: “I am asked by defendant to give you two instructions. The first I give you, and it is as follows : ‘“If you shall find that the accident to the schooner Greenfield, by which the loss mentioned in the complaint occurred, was occasioned by a peril of navigation, you will find a verdict for the defendant. ’ “The other instruction I will not give you.

Under the Act of March 28th, 1868, for the management and sale of the lands belonging to the State, certain lands in Kern County were sold to various parties by the State, and the purchasers paid into the Treasury of the State twenty per cent of the purchase money and the first year’s interest, amounting in each case to one hundred and twelve dollars, and received therefor certificates of purchase.

The plaintiff in his complaint averred that in January, 1868, and thence to June, 1869, he had been and still was the owner of, entitled to possess, and in the possession of the mining claim in dispute, and that about the 21st of April, 1870, while he was still the owner of and in possession of the claims, the defendants entered and commenced washing away the earth and gravel, and extracting the gold therefrom. The complaint was filed June 25th, 1870.

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

<p>Interest on Judgments.—Under the first section of the Act of March 30th, 1868, regulating the rate of interest, all final money judgments, whether for money lent or otherwise, bear interest at the rate of seven per cent per annum.</p> <p>Interest ox Judgment between Copartners.— If a judgment be rendered in an action brought by one partner against Ms copartners, dissolving the partnership, and directing a sale to be made of the partnership property and a division of the proceeds—first, to the payment of costs ; second, to the payment of an amount found due to the plaintiff from the partnership, and the balance to be distributed among the partners—the Sheriff, in making the distribution, must pay legal interest on the amount found due to the plaintiff.</p> <p>Final Judgment.— A judgment dissolving a partnership and directing a sale of the partnership property and a division of the proceeds, is a final judgment.</p> <p>Modification of Judgment by Supreme Court. — An order of the Supireme Court, modifying a judgment from which an-appeal has been taken, by reducing its amount, does not set it aside so as to prevent it from drawing interest from the time it was rendered by the Court below.</p>

The account mentioned in the opinion was attached to and referred to in the complaint as “Exhibit A.” The only averment in the complaint of an agreement to pay in gold coin was the following: “ Plaintiffs allege that all the transactions herein specified were in and for United States gold coin, and that the moneys advanced as aforesaid were all in said gold coin.” J. H. Jones & Co. had assigned the demand sued on to the plaintiffs.

<p>Appeal from the District Court, Twelfth Judicial District City and County of San Francisco.</p> <p>The Court below directed the writ to issue, and the defendants appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Working Mining Claim.—It is not the province of a Court to question the judgment of the owner of a mining claim as to the manner in which he shall work the claim, so that the working does not interfere with prior rights acquired by others.</p> <p>Right of Oldest Locator in Working Mining Claims.- — The owner of a mining claim comprising the bed of a canon may erect dams across the bed of the canon for the purpose of enabling him to work the same, even if thereby mining claims on the banks of the cañón belonging to others are flooded, provided the claim in the bed of the cañón is the oldest location, and in such case the injury sustained by the owner of the bank claim is damnum absque injuria.</p> <p>Idem.-—In such case a declaration of the owner of the cañón claim, before building the dam, that he will put in a dam that will flood the claim on the bank of the cañón, is consistent with the utility or necessity of the dam in working the canon.</p>

The defendant demurred to the complaint, because it did not state facts sufficient to constitute a cause of action; and, at the same time, moved the Court to strike from the complaint, as irrelevant and immaterial, the following allegations: “VII.

<p>Appeal from the District Court of the Seventh Judicial District, County of Solano.</p> <p>The complaint contained a full recital of all the proceedings in the State and United States Land Offices, and averred that defendant Jackson had sold all or the greater portion of the land to defendant Devlin, but held a mortgage on the same ' to secure the purchase money. There was a prayer that the defendants be enjoined from setting up any claim or title to the land under or by virtue of the patent. The complaint seems to be based on the theory that the defendants held the legal title in trust for plaintiff.</p> <p>The defendants on the trial were permitted to introduce in evidence a certficate of S. T. Nye, the Register of the United States Land Office at Stockton, California, that on the 14th day of February, 1857, State school land warrants numbers one hundred and sixty-one and three hundred and forty-three, for one hundred and sixty acres each, were located by A. P. Jackson upon the land in controversy, and that the warrants were on file with the word “ Surrendered ” written across their face, and that the land had been surveyed by the United States, and the plats of survey approved by the Surveyor General, and that the location had been made with the consent of the Begister and Beeeiver of the Land Office. The certificate was dated March 18th, 1863.</p> <p>The other facts are stated in the opinion.</p>

<p>Change of Vende by Probate Court.—The Probate Court of a county has jurisdiction to change the place of trial of an issue of fact to the Probate Court of another county.</p> <p>Practice on Change of Vende in Probate Court.—When the place of trial of an issue of fact in the Probate Court is changed to another county, the Clerk of the Court to which the case .is sent can certify a transcript of the proceedings and result of the trial back, and the Court from which the case was sent can enter the appropriate judgment.</p> <p>Change of Vende in Probate Court.—When an issue of fact is joined in a Probate Court as to the competency of a testator to make a will, and three trials had at great expense, in which the juries disagreed, have shown that an impartial jury cannot be obtained, it is not error to change the venue.</p>

The complaint contained five counts. The first count averred that, on the 1st day of June, 1869, the defendant was indebted to the plaintiff in the sum of nineteen thousand dollars for work and labor performed for and money furnished defendant before that time.

When the plaintiff rested the defendant moved for a non-suit, because there was no proof of title passing from the Government of the United States or any other Government. The Court denied the motion. The other facts are stated in the opinion.

Ejectment to recover a lot on Howard street, San Francisco, twenty-five feet front by one hundred and ten. feet deep. The plaintiffs were the children of Solomon Higgins by his first wife. Solomon Higgins, on the 8th day of April, 1872, deeded the demanded premises to the plaintiff Goldstone.

<p>Contract Within Statute oe Frauds.— A verbal contract between the lender and borrower that money loaned is to be repaid when nut-bearing trees about to be planted on the borrower’s farm yield an income sufficient to pay the same, over and above paying the expenses of-the farm and of the borrower’s family, is void under the Statute of Frauds, because the • parties must have contemplated that more than one year would elapse before the time of payment would arrive.</p> <p>The Law Presumes a Promise to Pay Money Borrowed. — Although a contract between the borrower and lender of money, as to the time of its payment, may be void under the Statute of Frauds, yet, as the borrower has the lender’s money, the law presumes a promise that he will repay it on demand.</p> <p>Principal and Not Agent Must Sue. — When S., as the agent of R, loans the money of R, an action against the borrower to recover it must be brought in the name of R. S. cannot sue for the money.</p>

The demanded premises are in Sonoma County, and consist of six hundred and forty acres of land located on the north and south banks of the Pintón River, or Sulphur Creek. The celebrated Geyser Springs, and the Geyser Springs Hotel are on the property. The plaintiff, Mary Po-lack, purchased the land from the State as a part of the five hundred thousand acres granted to this State by the United States, and obtained a certificate of purchase on the 30th day of December, 1862.

The original case of Bowers v. Cherokee Bob, out of which this appeal grew, is reported in 45 Cal. 496. The defendant in that case (Knight) was the appellant here; and Blumenberg, Mendheim, Waugenheim, and Knack were the respondents.

Judicial District, County of Placer. The defendant Schnabel owned the Julian mine, and tho defendant Cronise made a contract with him to purchase the same, and was allowed to enter into possession of and work the same. A large number of persons, with the knowledge of Schnabel, worked on the mine for Cronise, and their wages not being paid they filed liens on the same.

Ejectment to recover a lot one hundred and twenty feet square in the Town and County of Santa Barbara. On the 9th day of August, 1849, the Ayuntamiento of the Pueblo of Santa Barbara granted the lot to Candelaria Cañizares. On the 16th day of February, 1858, the Mayor and Common Council of the City of Santa Barbara, the successor of the Pueblo of Santa Barbara, also conveyed the lot to said Cañizares.

This is an action to foreclose a mortgage given by William M. Pierson to H. S. Burr for seven thousand dollars, dated December 29th, 1869, payable one year after date, upon two and one half fifty varas of land in block one hundred and nineteen, Western Addition. After the mortgage was given, H. S. Burr deceased, and plaintiff was appointed his executor. William M. Pierson, one of the defendants, made default.

The property in dispute was a brewery. When the deeds were made the plaintiff and his mother were tenants in common of the property. The mother had conveyed her interest in the property to the plaintiff before this action was commenced, to wit; in the Fall of 1869.

<p>Indictment fob Larceny.—In an indictment for larceny, for stealing a cow, it is sufficient to charge that the defendant “did steal, take, and cariy away,” without adding the words “lead, or drive away.”</p> <p>Concluding Argument to Jury in Criminal Case.—When other counsel are associated with the District Attorney in the prosecution of a criminal case, the Court may, in its discretion, for good reasons, allow the associate counsel to conclude the argument.</p> <p>Idem.—Iu such case, nothing appearing in the record to the contrary, the presumption is that the Court had good reason for allowing associate counsel to conclude the argument.</p> <p>Attempt to Escape when Arrested for Larceny.—If a person, when arrested on a charge of larceny, and after being informed of the cause of his arrest, escapes, or attempts to escape, it is a circumstance that the jury may consider in determining his guilt or innocence.</p> <p>Alleged Error in Instructions to the Jury.—If the testimony is not in the record, a judgment in a criminal case will not be reversed for alleged error in instructions, if, from the nature of the case, testimony might have been introduced which would have warranted the instructions.</p>

Herman Schroeder died in January, 1862, leaving real estate situated on Everett street, and Minna street, in San Francisco. The deceased left a will, by which he devised his property to his wife Adeline Schroeder, and appointed her executrix.

The main facts are stated in the opinion and in the former reports of the case. The case of Atherton et al v. Fowler et al., post, p. 323, will illustrate the points of law here involved. The plaintiffs appealed.

This action was commenced May 25th, 1863, to recover five hundred tons of hay, of the alleged value of five thousand dollars, grown and lying in bales, swaths, and windrows on a tract of land known as the “ Sulphur Spring Valley Tract,” in Solano County. The plaintiff alleged in the complaint that he owned the land.

The drug store was purchased from Dr. Reynolds, October 26th, 1869. March 12th, 1870, Dr. Mayon was indebted to McDonald & Co., and they commenced an action against him, and procured an attachment to issue, which was placed in the hands of the defendant, who was Sheriff, and he attached the drugs. The plaintiff commenced this action against the Sheriff to recover the goods.

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

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

The findings were filed in vacation, on the 14th day of June, 1872, and additional findings were filed on the 24th of June, 1872. The record is silent as to whether any exceptions were taken to the findings. The judgment was rendered on the 14th day of June, when the findings were filed. The defendant recovered judgment in the Court below, and the plaintiff appealed. The other facts are stated in the opinion.

<p>Arson.—If an attempt is made to hum a house by lighting a fire, and the wood of the house is charred in a single place so as to destroy its fiber, the crime of arson is complete, even if the fire is then extinguished.</p>

The defendant was indicted and tried for, and was convicted of the crime of rape. He appealed from the judgment and from an order denying a motion for a new trial. The other facts are stated in the opinion.

The former appeal, which is referred to in the opinion, is reported in 35 Cal. 576. This was an action of partition.

<p>Proof of Sum Dub on a Mortgage.—If'an answer, in an action to foreclose a mortgage, denies that there is money due on the debt the mortgage was given to secure, the mortgage is competent evidence for the plaintiff to prove the sum due.</p> <p>Proof to Reduce Sum Dub on Mortgage.— If two persons buy property together, and one furnishes all the money, and the other, to secure him for one half the money advanced for such other, mortgages other property, and the two then agree, in writing, that the mortgage is given for money advanced in the purchase, and that in the settlement of accounts the mortgagor shall be allowed reasonable compensation for services as an attorney which he may render in perfecting the title to the property purchased, the value of the services rendered as attorney under the contract may be proved for the purpose of reducing the amount due on the mortgage.</p>

<p>When Equity will Exfobce a Conveyance of the Title and Possession of Land. — If A., being in the possession of land, contracts in writing with B. to sell and convey the land to B., and to deliver him possession at any time within five years, upon the payment of the price agreed on, and C., with notice of this contract, obtains from A. a deed of the land before B. has paid the agreed price, B. may pay the agreed price to C., and equity will compel C. to convey the land to B., and to deliver him possession of the same.</p> <p>Idem.-—The fact- that such land is public land, held by A. under the possessory Act of this State, is no defense.</p>

<p>Appeal from the District Court of the Fifteenth Judicial District, City and County of San Francisco.</p> <p>The “ outside ” lands, so called, in the City and County of San Francisco, lie between the corporate limits of the City of San Francisco, as defined by the Act to reincorpórate said city, passed April 15th, 1851, and the Act to consolidate the government of the City and County of San Francisco, passed April 19th, 1856, and the Acts amendatory thereof. These lands were confirmed to the city and county by Act of Congress, passed March 8th, 1866. On the 14th of January, 1868, the Board of Supervisors of said city and county passed “ Order No. 800,” dividing these outside lands into blocks and lots, and laying out streets, and also a public park. These lands were then in the possession of private persons, and the order confirmed to the possessors the title, but required that an assessment should be levied on the land not taken for public use, to pay the possessors of the land taken for public use for the value of the same. This order was confirmed by two Acts of the Legislature passed in 1867-8. (See Laws 1867-8, pp. 379, 410.) The Collector of the said city and county was required to collect these assessments.</p> <p>“ Order No. 800 ” will be found in the laws of 1867-8, p. 379. The first section of the order provided that “immediately after the passage of this order, the Board of Supervisors shall proceed to devise and adopt a plan for the subdivision into blocks and lots of all the lands not reserved to the United States, situated on the peninsula of San Francisco, and within the present corporate limits of said city and county, and above the natural ordinary high-water mark of the Bay of San Francisco and the Pacific Ocean, as the same existed on the 7th day of July, 1846, and without the corporate limits of the City of San Francisco, as defined in the Act to reincorporate the said city, passed by the Legislature of California on the 15th day of April, 1851, so far as said Board may deem such subdivision necessary; and to select and set apart for public uses such lots and portions of said land as said Board may deem necessary, subject to the limitations and provisions hereinafter in this order contained.”</p> <p>The defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Promissory Note Without Consideration. — If a person delivers to his agent a promissory note, with the place for the name of the payee left blank, with directions lo fill up the blank with the name of a bank, and have the note discounted at the hank, and with the money pay another note on which the principal is indebted, and if the agent fills the blank with the name of the person holding such other note, and delivers him the same in payment of the other note, the agent violates his authority, and tie note is without consideration and is void in the hands of the payee.</p>

The Court below rendered judgment for the plaintiff, and the defendant appealed from' the judgment and from an order denying a new trial. The other facts are stated in the opinion.

The action was upon a contract. In February, 1872, the plaintiffs, Yoorman and Schultz, under the firm name of Pacific Refinery Company, agreed to sell and deliver to the defendant Yoight forty thousand gallons of rectified or refined pure spirits, of the grade and kind known as the Pacific Refinery Company’s Number One, to be made ninety per centum over proof standard, to be delivered in good packages, consisting of barrels, pipes, three-quarter pipes, and puncheons.

<p>Election Law in Sacramento.—The general election laws of this State, with their successive modifications and changes, apply, so far as practicable, and so far as they are not inconsistent with the Act incorporating Sacramento, to the municipal elections in said city.</p> <p>Jurisdiction of County Court of Sacramento County.—The County Court of the County of Sacramento has jurisdiction to hear and determine a contest concerning the right to hold a municipal office in the City of Sacramento.</p> <p>Adoption of Other Statutes Into an Act.—The Legislature may, in an election law for a city, adopt and make a part of the same the general law of the State regulating elections, not only as it exists at the time, but as it may exist after changes or modifications of the same.</p> <p>Genebat, Election Laws of this State. — Section one thousand, one hundred and eleven and the following section of the Code of Civil Procedure, providing for the contest of elections, are a part of the general system for the regulation of elections in this State.</p> <p>Affidavit to Grounds of Contest of Election.—The affidavit to the written statement of the grounds of the contest of an election may be in the form of an ordinary verification to a pleading.</p> <p>Rejecting Ballots Cast bv an Elector.—A ballot east by an elector at an election should not be rejected simply because it differs from the regulations prescribed in the Code, in matters over which the elector has no control, such as the size of the ballot, the kind of paper on which it is printed, or the character of type, or leading used in printing.</p>

<p>Appeal from the District Court of the Third Judicial District, City and County of San Francisco.</p> <p>The action was to recover damages, alleged to have been caused to the plaintiff by the premature explosion of blasting fuse, in consequence of the unskillfulness and negligence of the defendant in manufacturing it. The plaintiff was using the fuse to ignite a blast in a mine where he was at work. He obtained a verdict and judgment, which were subsequently set aside and a new trial granted. The appeal is from the order granting the new trial.</p>

<p>Appeal from the District Court, Nineteenth Judicial District, City and County of San Francisco.</p> <p>This was an action for damages. The plaintiff was employed in March, 1871, as an under porter in the storehouse of the defendants, who were merchants in San Francisco. It was his duty to raise and lower goods from one story to another by means of a hoisting apparatus or “ cage ” worked by hand. The hook attached to the hoisting rope hooked into a staple on the cage, and mousings were placed on the hook to keep it from unhooking. There was no way of knowing when the cage reached the lower floor except the person working it heard it strike the bottom or saw the rope slack, which it did as soon as the cage struck the floor. When the rope slacked it twisted and was liable to throw the hook out of the staple so that the weight of the cage and whatever was put on it while in that position would rest on the mousings when the cage was raised. On the 10th of October, 1871, while the plaintiff was loading the cage—the rope having twisted the hook out of the staple, the weight of the cage rested upon the mousings and broke them. The cage fell, and the plaintiff, who was pulling on the rope, fell to the lower floor as it slacked, breaking his leg and rendering amputation necessary. He then brought this action, alleging that the apparatus was constructed in an unsafe manner and of unsound materials, and that the facts were known or might have been known to the defendants by the use of ordinary diligence. At the trial evidence was introduced to show that about a year before the plaintiff was employed in the store, the cago had fallen from the same cause as when the plaintiff was injured; that the falling was known to the defendants, but they did not remedy the defect or inform the plaintiff of it. The jury gave the plaintiff a verdict for six thousand five hundred dollars.</p> <p>The other facts are stated in the opinion.</p>

The Savings and Loan Society was a corporation and had no capital except the sum of five hundred thousand dollars, which was invested in United States Government bonds. All the solvent debts owing to the corporation were due for moneys deposited by depositors, loaned out at interest, to be repaid to the depositors when returned by the borrowers, with net interest accumulating from time to time. The loans were secured by mortgage to the corporation.

Application to the Supreme Court for writ of mandate to the Tax Collector of the City and County of San Francisco. The defendant, who was Tax Collector of the City and County of San Francisco, had in his hands the sum of one hundred and thirty-one thousand four hundred and eleven dollars and sixty-six cents, which had been paid to him for taxes between the first Monday of October, 1872, and the first Monday in February, 1873.

<p>Application to the Supreme Court for writ of mandate to require the respondent, as Auditor of the City and County of San Francisco, to enter upon the assessment book of that city and county for the fiscal year 1873-4 the unpaid taxes for the fiscal year 1872-3 upon certain solvent debts.</p> <p>The parties, so far as mentioned in the petition, and the amounts assessed, are as follows: Masonic Savings and Loan Society, assessed at three hundred and sixty-five thousand dollars; Savings and Loan Society, at seven million nine hundred and sixty-eight thousand seven hundred and forty dollars and forty cents; Societie Francaise d’Epargnes, at four million nine hundred and fifty-seven thousand five hundred and eighty-three dollars and seventy-three cents; German Savings and Loan Society, at two million six hundred and twenty thousand and twenty-one dollars; Odd Fellows’ Savings Bank, at three million eighty thousand seven hundred and ninety-three dollars; San Francisco Savings Union, at four million two hundred and twenty-seven thousand nine hundred and forty dollars; Hibernia Savings and Loan Society, at eleven million three hundred and fifty-four thousand five hundred and thirty-two dollars; Land Mortgage Union of California, at thirty-three thousand nine hundred and sixteen dollars; Security Savings Bank, at three hundred and thirteen thousand nine hundred and sixty-two dollars and seventy-seven cents; Humboldt Savings and Loan Society, at five hundred and seven thousand three hundred and three dollars. The petition also states that there are many other assessments against divers persons for solvent debts; that the rate of the tax for State purposes was fifty cents in the hundred dollars, and for city and county purposes one dollar in each hundred dollars; that the Auditor delivered a corrected copy of the assessment book to the Tax Collector pursuant to law, on the fourth Monday in October, 1872; that the Collector attempted to collect the taxes but was enjoined [the injunctions were subsequently dissolved by the Supreme Court]; that on the third Monday in January, 1873, the Tax Collector attended at the office of the Auditor and compared the duplicate assessment book with the original, and marked “paid” in the latter all the taxes so marked in the former, not including the taxes on solvent debts, and then delivered to the Auditor a complete delinquent list, including such taxes; that the Auditor compared the list with the assessment book, certified it to be correct, and delivered it to the Tax Collector on the first Monday in February, 1873; that none of the taxes designated have been paid; that on the 25th of September, 1873, the Tax Collector attended at the office of the Auditor, marked the taxes that had been paid upon the assessment book, but did not mark the delinquent taxes on solvent debts; that at the same time the Auditor requested him to make the affidavit “that the taxes not marked paid ’ had not been paid, and that he had not been able to discover any property belonging to or in the possession of the person liable to pay the same whereof to collect them, ” which he refused to do, but did make an affidavit that to the best of his knowledge and belief “every person and all property assessed in the delinquent list for the fiscal year 1872-3, on which taxes have been paid, has been credited in the list with such payment;” that the Auditor has not entered these delinquent taxes, or any part of them, on the assessment book for the fiscal year 1873-á; that on the'27th day of September, 1873, the Auditor delivered to the Collector what purported to be a duplicate assessment book for that year, whióh does not contain the taxes on solvent debts, and though it had been demanded of the Auditor that he should complete the book by inserting those taxes, he had refused to do so, contending that they had been canceled by the order of the Board of Supervisors quoted in the opinion of the Court. The answer sets up the order attempting to cancel the taxes as a defense. The opinion of the Court was filed December 8th, 1873.</p> <p>The other facts are stated in the opinion and concurring opinion.</p>

Ejectment to recover a lot in San Francisco. George Treat, being in possession of the demanded premises on the 23d of July, 1866, executed to Hammond, the defendant, a bond to convey to him the same on or before July 23d, 1867, provided Hammond paid him the purchase money—four hundred and fifty dollars—with interest at twelve per cent per annum.

^ Ejectment to recover a tract of land in Santa Clara County, being a portion of Las Animas Eancho. This suit was commenced on the 30th day of August, 1871, and the complaint averred an ouster on the 28th day of August, 1868. Judgment was rendered on the 21st day of December, 1872, giving plaintiffs possession of one undivide one half of the demanded premises, and four hundred and forty dollars as damages for withholding posoession.

The girl upon whom the offense was alleged to have been committed testified that the offense was committed. The counsel for the defense, on cross-examination, asked her how long defendant remained on her body? whether he threw her down right off when they went into the barn ? and. other questions of a like nature.

The action was ejectment. The defendants had judgment, and the plaintiff appealled. The other facts are stated in the opinion.

<p>Discharge Undeb Bankrupt Act.'—Under the Bankrupt Act of the United States, a discharge cannot be obtained from a debt created while acting in a fiduciary character.</p> <p>Debating Debt in a Fiduciary Charaoteb.—One who receives goods consigned to him on commission to be sold, and the proceeds, less commissions, to be transmitted to the consignor, if he sells the goods and fails to transmit the money, creates a debt in a fiduciary capacity.</p>

<p>Tax on Pbopeety of Municipal Coepobation.— The property of a municipal corporation is not liable to taxation for municipal purposes.</p> <p>Idem.—A municipal corporation cannot tax its own property.</p> <p>When Tax Deed is Void.—If a tax is illegal and void a sale under it is a nullity and a deed of property sold for such a tax conveys no title.</p> <p>Ejectment Against Stbangee to the Title.—A defendant in ejectment who is a stranger to the title, cannot object, in a case where the plaintiff derives his title from a municipal corporation, that the plaintiff has not proved otherwise than by the recitals in his deed, that he was one of the parties to whom the corporation was permitted by law to sell.</p> <p>Defense by Stbangee to Title in Ejectment. — If a municipal corporation is by law allowed to sell its realty to certain persons or their assigns, and conveys to an assignee, who brings ejectment against a stranger to the title, the defendant, on the trial, will not be allowed to question the fact that the plaintiff was such assignee.</p>

The action was brought to recover back a sum of money paid the defendant, as Tax Collector of the County of Santa Clara, under protest. The defendant had judgment on demurrer to the complaint, and the plaintiffs appealed.

<p>Appeal from the District Court of the Fifth Judicial District, Tuolumne County</p> <p>This was an action to enjoin the defendant from taking possession of certain land to which he claimed title under a decree foseclosing a mortgage. The complaint alleges that in July, 1869, the premises in suit—unsurveyed, land of the United States—were quitclaimed by one Baldwin to the defendant, Ebeler; that in August of that year the plaintiff gave his promissory note to the defendant for a sum of money; that in April, 1871, the plaintiff, being in possession of the land, entered it as a homestead under the laws of the United States; that in February, 1872, defendant brought an action "to recover the amount of the note, alleging that the Baldwin deed was intended as a mortgage to secure the payment of the note, and asking that it be foreclosed as such; that the plaintiff, then defendant, was made a party to the suit and did not answer, and a decree of foreclosure was entered, under which the Sheriff sold the land to the defendant, Ebeler; that the land was not redeemed, but was deeded to the defendant by the Sheriff; and that the Sheriff was about to put the defendant in possession. The defendant demurred that the complaint did not state a cause of action, and that it showed the plaintiff had had his day in Court, Ms rights having been adjudicated in the foreclosure suit, The demurrer was sustained, judgment was rendered for the defendant and the plaintiff appealed.</p>

The action was ejectment, in which the plaintiff had judgment. A new trial was granted on the application of the defendants, and the plaintiff appealed from the order. The other facts are stated in the opinion.

<p>Appeal from the Probate Court, Tehama County.</p> <p>The facts are stated in the opinion.</p>

<p>Appointment of an Administrator.—If there is a contest in the Probate Court between the Public Administrator and a creditor of an estate as to which shall administer, and other creditors request the Court to appoint the Public Administrator, it is within the discretionary power of the Court to appoint the Public Administrator.</p> <p>Who Entitled to Administer.— Query? Is a person who purchases a claim against an estate after the death of the decedent a creditor who is entitled to be preferred to the Public Administrator as administrator of the estate ?</p>

This action was brought to recover damages for injuries alleged to have been caused to a dwelling house by blasting upon a street adjoining it. The plaintiff obtained a judgment, and the defendant appealed. Before the time the appeal was taken, the appellant had been adjudged a bankrupt, all his property, debts, and credits having been assigned to his trustee in bankruptcy.

The judgment was rendered April 16th, 1870, and notice of motion for a new trial given April 21st, 1870. The other facts are stated in the opinion.

Action for breach of promise of marriage and for seduction. The judgment for the plaintiff was rendered Novemher 8th, 1872. January 23d, 1873, the Court below granted a new trial on condition that the plaintiff pay the defendant’s costs within twenty days. The judgment was for one hundred and ninety-one and sixty-five one hundredths dollars costs. The proper costs were only one hundred and seven dollars and twenty cents.

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

In 1864 (Laws 1863-4, p. 347), the Legislature passed an Act empowering the Board of Supervisors of the City and County of San Francisco to lay out, open, extend, or widen any street in said city, and to determine what property would be benefited by the proposed improvement and ought to bear the expense thereof, and to assess the expense upon the property declared to be benefited.

The plaintiff had judgment in an action of forcible entry and detainer brought to recover possession of eighty acres of public land, and the defendant appealed from the judgment and from an order denying a new trial. The other facts are stated in the opinion.

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

Pearson, the testator, died on the 10th day of January, 1865, having made his will a week before his death. The decree of distribution was made on the 4th day of June, 1866. The plaintiff was born on the 10th day of October, 1850, and was a minor when the probate proceedings were had. This action was commenced before June, 1871, and was tried in September, 1871. The other facts are stated in the opinion.

This action was brought to foreclose a lien claimed upon a dwelling house for labor performed upon it. The defendant objected to the lien being received in evidence, because it did not contain the name of the person by whom the plaintiff was employed. The Court overruled the objection. The plaintiff had judgment, and the defendant appealed.

<p>Mortgaging Homestead.—If the husband' and wife own a tract of land, a part of which is claimed as a homestead, and both execute a mortgage ‘ on the whole tract to secure a debt, and the husband afterwards executes a • mortgage upon the part not covered by the homestead to secure his debt, and the first mortgagee forecloses, malting the other mortgagees parties, the second mortgagees cannot insist that tho homestead be sold, but the decree 'should direct the part not covered by the homestead to be first sold, and if the proceeds satisfy the first mortgage that the homestead be reserved from sale. The second mortgagees must rely on the surplus, if any, arising from the sale of the part not covered by the mortgage.</p>

Application to recall remittitur and to he allowed to file a petition for a rehearing. The appeal, which was from a judgment rendered in the District Court of the Third Judicial District, City and County of San Francisco, was decided October 14th, 1873.

<p>Deed does not Show Change of Possession. — A deed which conveys to the grantee all the grantor’s right and title, and all his right of possession, does not show, or tend to show, any actual possession in the grantee, nor any change of possession from the grantor to the grantee.</p> <p>Deed as Evidence in Forcible Entry. — A deed is not admissible in evidence in an action of forcible cntry and detainer for the purpose of showing possession in the plaintiff at the time of the alleged entry of defendant, nor is it admissible to show a right of possession in the plaintiff, for the right of possession cannot be litigated in such action.</p>

The plaintiff brought the action for one thousand six hundred dollars, the value of professional services as an attorney at law; judgment was rendered in his favor for twenty-six dollars and thirty cents without costs; he moved for a new trial, which was refused, and he appealed from the order refusing it. The other facts are stated in the opinion.

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 in ejectment; the defendant moved for a new trial- and the motion was denied. February 1st, 1873, the defendant filed a notice of appeal and undertaking on appeal, but did not serve the notice until February 3d, 1873. After filing the transcript and an opening brief, the defendants, on March 5th, 1873, took an appeal from the same judgment and order, filing their notice and undertaking and serving the notice on the same day.

The complaint alleged that the plaintiffs owned back claims on Poverty Hill, Sierra' County, which were placer gold mining claims, and that the claims had no frontage on the face of the hill, and that ,the defendants owned the claims in front of and adjoining the plaintiffs’ claims; that by the local customs of miners the owners of rear claims were entitled to a right of way through the front claims for a cut or tunnel; that the plaintiffs had, at an expense of fifty…

<p>Judgment Lien.—A judgment creditor, in order to preserve the priority of his lien, must sell the real property within the period of the statutory lien of the judgment, and the levy of an execution during that period neither creates a new lien nor extends the judgment lien.</p> <p>When Judgment Lien Commences to Run. — The two years within which the judgment creditor must sell the real property dates from the docketing of the judgment, unless execution is stayed by an order of the Court pending a motion for a new trial, or by an appeal with a stay bond. An order enjoining a sale on the execution does not stop the running of the two years lien, nor extend the time within which the executor’s sale must be made.</p> <p>Collateral Attack on Judgment.—A judgment cannnot be collaterally attacked on the ground that the costs were improperly taxed or inserted in the judgment.</p>

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

<p>Replevin fob Crops—The true owner cannot maintain replevin for crops raised on his land by others who are holding the possession of the land adversely to him.</p>

The “findings ” alluded to in the opinion were as follows: “I find for the defendants in this case, because: 1. The evideuce is insufficient to prove that Tgnacio Alviso placed his son in possession of the land in controversy with the intention of renouncing it in his favor and irrevocably transferring to him the title to it. 2. It is insufficient to prove that the son accepted the possession of the land as a donation from his father. 3.

Certiorari from the Supreme Court to the Board of Equalization of Placer County, on petition of the Central Pacific Railroad Company. The County of Placer was divided into revenue districts, and sixteen and a quarter miles of the railroad of the petitioner was in District Number One, and seventy-six miles thereof in District Number Two.