Volume 47 — California Reports

<p>Appeal from the District Court, Twentieth Judicial District, County of Santa Cruz.</p> <p>The defendant kept the hotel in Santa Cruz known as the “ Pacific Ocean House,” and was the owner of seventeen thirtieths of the furniture used in the hotel. The plaintiff owned twelve thirtieths of the furniture, and Daniel D. Blackburn owned one thirtieth. The defendant refused to let the plaintiff into the possession and use of the furniture with him, or to pay him any rent therefor, or to let him remove twelve thirtieths of it, or to let him into the possession or use of any part of it. The furniture was of the value of eight thousand dollars.</p> <p>The complaint alleged the interest of plaintiff in the property, and the value thereof, and that the defendant unlawfully withheld the property from the possession of the plaintiff to his damage—two thousand seven hundred and fifty dollars. There was aprayer for the recovery of possession, or for two thousand seven hundred and fifty dollars, the value thereof, if delivery could not be had.. The defendant recovered judgment in the Court below, and the plaintiff appealed.</p> <p>The other facts are stated in the opinion.</p>

Faut sued Harry Mason, H. T. Mason, and Madame Jarvantin, before a Justice of the Peace in Table Rock Township, Sierra County, to recover two hundred and ninety-nine dollars and ninety-nine cents. The plaintiff and H. T. Mason lived in Table Rock Township, but Harry Mason and Madame Jarvantin lived in Sears Township. The summons was issued November 2oth, 1869, and served November 26th, 1869. The summons commanded the defendants to appear and answer ten days after service.

This was an action on a street assessment in San Francisco. The date of the warrant, diagram, and assessment was March 8th, 1869. The judgment was rendered for plaintiff May 27th, 1872. Defendants Henarie and Meyer each moved for a new trial. Their motions were denied, and they then appealed separately, each relying on certain alleged errors. The other facts are stated in the opinion.

<p>Appeal from the District Court of the Twelfth Judicial District, City and County of San Francisco.</p> <p>The work was performed in 1868. The defendants appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Appeal from the District Court of the Fifth Judicial District, County of San Joaquin.</p> <p>This action was brought to recover an amount awarded by arbitrators. The plaintiff obtained a judgment, and the defendant appealed from the judgment and from an order denying a new trial. _</p> <p>The other facts are stated in the opinion.</p>

<p>Pboof of Facts Admitted in Answeb.—The plaintiff need not prove facts alleged in the complaint which are admitted in the answer.</p> <p>Pboof of Demand in Bepbevin.—If the complaint in replevin avers a demand made for the property, and the answer admits it, a demand need not be proved.</p>

The defendant, after the plaintiff had rested, in support of the allegation in the answer as to the character of the land, offered to prove that it was swamp and overflowed, both by the map and field notes of the approved survey by the United States, on file in the Land Office, and by witnesses who knew the character of the land. The Court excluded the testimony, on the ground that the defendant was estopped by the former judgment.

Appear from the District Court, Fifth Judicial District, County of San Joaquin. This suit was commenced January 13th, 1871.

The action was brought to recover upon a street assessment; judgment was rendered for the plaintiff, and the defendant appealed therefrom and from an order denying a new trial. The other facts are stated in the opinion.

The contract to do the work was made on the twenty-first day of February, 1868. The resolution of intention, declared it to be the intention to grade the street. The other facts are stated in the opinion.

The assessments were issued August 23d, 1869. The record does not show when the suit was commenced. The trial was had November 18th, 1872, and the plaintiff introduced in evidence the assessments, diagrams and warrants, and the return thereon duly signed and authenticated.

Ejectment suit to recover a tract of land, alleged to be within the boundaries of the “ Canada de los Alisos,” a Mexican grant, which was surveyed in 1858, and patented in 1871. The Court below rendered judgment for the defendant, and the plaintiff appealed. The other facts are stated in the opinion.

The action was brought to recover the value of a brick house erected by the plaintiff on lot No. 7, in the block between H and I, Sixteenth and Seventeenth streets, city of Sacramento.

The action was brought to recover on a street assessment. The appeal is taken by the plaintiff from an order granting the defendants a new trial. The other facts are stated in the opinion.

The action was brought to enjoin the defendant, as Sheriff, from executing a deed to the premises in controversy, under a judgment obtained against the plaintiff, Q. A. Clements. The plaintiff, M. E. Clements, wife of Q. A., had declared a homestead in the premises prior to the judgment. At the trial, the plaintiffs offered the declaration of homestead in evidence, and it was admitted, the defendant objecting that the acknowledgment was not taken as required by law.

<p>Community Pbopebty.—Where a woman, living upon public.land of the United States, married, and the husband thereafter filed a declaratory statement upon it in his own name, and made the required proof, and was allowed to enter and purchase the land in his own name; and, subsequently, the husband and wife by their joint deed sold the land, and, . with the proceeds, the husband purchased other land: held, that the land so purchased was community property.</p> <p>Discbetion of Coubt in Dividing Community Pbopebty.-—Where a divorce is granted on the ground of extreme cruelty, the guilty party is entitled to receive only so much of the community property as the Court may deem just under the facts of the case; and the discretion of the Court in dividing the property is subject to revision on appeal.</p> <p>Division of Pbopebty in Case of Divobce.—The inference to be derived from sections 146 and 147 of the Civil Code is, that if a divorce is granted on the ground of adultery or extreme cruelty, the injured party is entitled to more than one half of the common property.</p>

The action was brought to quiet title to a tract of land known as the Rancho Paso de Bartolo or Ranchito containing 8,000 acres, and for the construction, or, if necessary, the reformation of a deed.

<p>Descriptive Calls in a Deed.—If, in a deed, the beginning point of the survey of the tract conveyed is a visible monument which is clearly ascertained, and the descriptive calls are certain and definite, the title passes. A subsequent survey, changing the location of a larger tract, within which, it was said in the deed, the land conveyed was located, or restricting its area, cannot divest the title of the grantee or impair his rights.</p>

<p>Incidentai Obdebs—Eminent Domain.—The general rule that an order incidental to proceedings in Court, and interlocutory in its character, may, during the pendency of the proceedings, be modified or vacated altogether, as the circumstances appearing from time to time may seem to the Court to require, applies to proceedings taken in the exercise-of the power of eminent domain.</p>

This is an action by a married daughter against her father to compel the execution of a second deed to certain premises, the first deed having been lost before it was recorded. The property had been conveyed by the plaintiff and her husband to the defendant in trust, to be reconveyed to plaintiff as her separate property. The cause was referred to the Court Commissioners, who reported findings in favor of the plaintiff.

On the 7th of December, 1868, Josephine White owned four lots, each 25 feet by 75, in Oakland, Alameda County, and resided on them with her infant child, a boy about eight years old. The child was not born in wedlock, for Josephine had never been married. On said day, she made a declaration of homestead on the premises, and had it recorded. The premises did not exceed five thousand dollars in value.

<p>Appeal from the District Court of the Fifth Judicial District, County of San Joaquin.</p> <p>The defendants had judgment in an action of ejectment; the Court granted the plaintiff a new trial and the defendant appealed from the order granting it.</p>

<p>Appeal from the District Court, Tenth Judicial District, Colusa County.</p> <p>April 3d, 1872, the defendants gave A. Mead their note for $365.55, payable one day after date, with interest at one and a half per cent, per month. On the 5th day of April, 1872, Mead assigned the note to S. P. French, and French, on the 24th day of February, 1873, assigned the note to the plaintiff. Between the two assignments Mead and the defendants had dealings together, and the amount of the defendants’ account, against Mead, was $235.30, while-Mead’s account against them was $200. The defendants had no notice of the assignments until after these dealings had taken place. The defendants, in their answer, pleaded their account against Mead as a set-off. On the trial, they proved this set-off and rested. The plaintiff then offered proof of Mead’s account against the defendants — the $200.</p> <p>The defendants objected, because this set-off had not been pleaded. The Court overruled the objection, and admitted the evidence, and gave judgment for the plaintiff, for the amount of the note, less the $35.30, the difference between the two accounts. The defendants appealed.</p> <p>The other facts are stated in the opinion.</p>

The petitioner presented a petition, as the widow of Martin Cameto, deceased, stating that in June, 1864, during the lifetime of her husband, she had filed a declaration claiming a homestead out of the real estate of her husband, and asking that the property described in the declaration be set apart to her as a homestead. John Dupuy, executor of Cameto, and Charles Cameto, a minor heir of Cameto, contested the petition.

Petition for a writ of prohibition, to the Board of Supervisors of Kern County, prohibiting them from levying a special tax to pay a debt contracted by the purchase of a toll road. The defendants filed a general demurrer to the petition. The other facts are stated in the opinion.

The action was brought to compel the defendant to deliver up a sheriff’s deed to be canceled, and to enjoin a conveyance of the premises. The plaintiff acquired the title to the premises in suit by deed of gift from her husband, J. F. Sharp, in December, 1870. In February, 1868, the defendant, Miller, obtained a decree against Sharp, foreclosing a mortgage upon the premises in controversy and a fiity-vara lot at North Beach.

<p>Appeal from the District Court of the Third Judicial District, City and County of San Francisco.</p> <p>The action was for trespass, and the plaintiff had judgment for damages in the sum of $20,000, and appealed from an order opening the default. The facts are stated in the opinion.</p>

<p>Appeal from the District Court, Third Judicial District, Alameda County.</p> <p>The facts not stated in the opinion are found in the report of the case on a former appeal, 4á Cal. 18.</p>

<p>Taxes Cannot be Remitted.—The Legislature cannot authorize the' Board of Supervisors of a county to remit a tax, or a part of a tax, within a specified district. An order of the Board attempting to do so is null and void, because in conflict with the provision of the Constitution, which requires taxation to be-equal and uniform, and which requires all property to be taxed.</p> <p>Remission oe Taxation.—An Act authorizing a Board of Supervisors of a county to remit the taxes, or a part of the taxes, upon any portion of the property within a district is unconstitutional, even if the tax is imposed for local purposes to be expended within the district.</p>

It appears by the evidence that the deceased had made some threats against the defendant.

The defendant was indicted for the crime of murder, committed in the killing of Wm. H. Wall. The defense was that the killing was done in self-defense against a felonious assault by one Fisher, the shot by which the deceased was killed having been aimed at Fisher. The evidence was conflicting. The defendant was convicted of murder in the second degree and recommended to the mercy of the court. The appeal is from the judgment and from an order denying a new trial.

The defendant was indicted for an assault with intent to murder Amanda Butler. He was tried and convicted. The verdict was set aside, and a new trial was granted.

The defendant was indicted for the crime of murder in the first degree, as stated in the opinion. Upon the trial he was found guilty and was adjudged to suffer death. He appealed from the judgment.

<p>Appeal from the County Court of Tulare County.</p> <p>The defendant was indicted for stealing a steer, the property of one Houston.</p> <p>At the trial, two witnesses testified that they found the defendant and a Spaniard named Alipas in “ Greasy Cove,” cutting up the animal and jerking the meat, the defendant claiming the animal as his own. ■ Noticing that the head, ears, and the portion of the skin which bore the brand were missing, one of the witnesses, who was armed with a revolver, asked the defendant where they were. He declined to tell, and thereupon the witness kicked him over. The witness then asked the Spaniard, who told him to “look up the branch.” On going in the direction indicated, the head was found in the water, and the ears and brand were found concealed in a hollow tree. Counsel for the defendant objected to the introduction of the testimony in regard to what the Spaniard said, upon the grounds that it was irrelevant, no conspiracy having been shown, and that the declaration was not shown to have been voluntarily made; but, on the contrary, it appeared to have been made under duress. The objection was overruled, and the defendant, by his counsel, excepted. The Spaniard Atipas testified that he was in the employ of the defendant; that they had started out to kill one of the herd belonging to the defendant; that he—Atipas—lassoed the steer, tied it up until the defendant looked at it and told him to kill it, which he did. The defendant testified that he had cattle running in that place; that' the Spaniard knew his brand and mark; thát the Spaniard killed the animal before the defendant saw it, and that he did not know who concealed the head, ears, and brand. The argument to the jury was closed by counsel employed to assist the District Attorney. The tenth instruction referred to in the opinion was as follows: “If the jury believe, from the evidence, that the defendant did not directly commit the offense alleged, but that he stood by and aided, abetted, or assisted another person to commit the offense^or that he was not present, but had advised and encouraged another to commit the offense, the defendant cannot be found guilty under the indictment, but must be acquitted.” The second instruction, given at the request of the prosecution, was, in substance, that if the jury believed that the ears and brand were cut off and hid away, they might take those facts into consideration in determining whether the defendant intended to steal the animal. The defendant was convicted, and he appealed from the judgment, and from an order denying him a new trial.</p> <p>The other facts are stated in the opinion.</p>

<p>Appeal from the District Court of the Second Judicial District, Tehama County.</p> <p>The offense of which the defendant was indicted was charged as follows: “The said Isaac Weaver, on the fourteenth day of March, 1873, and before the finding of this indictment, at the county of Tehama, State of California, feloniously, willfully, and of his malice aforethought, in and upon one Adoph Walmer did make an assault, and the said Isaac Weaver feloniously, willfully and of his own malice aforethought, then and there did kill and murder the said Adolph Walmer.” The affidavit of John Weaver, which is referred to in the opinion, stated, as a ground for a continuance, that a certain absent witness had been served with a subpena, but the Sheriff had informed the affiant “that in all probability the witness would not be present at the trial.” The defendant was convicted, and he appealed from the judgment.</p>

The defendant was adjudged to pay a fine of $300 for a contempt of Court, and he appealed from the judgment. A decree had been entered in the Sixth District Court, Judge Reardon presiding, divorcing the defendant from his wife, and awarding him the custody of an infant child. The other facts are stated in the opinion.

<p>Indictment.—An indictment which charges an assault with intent to do bodily harm upon the person of another, charges only a simple assault.</p> <p>Appeal fkom Obdeb Sustaining Dehttbbeb.—If a demurrer to an indictment is interposed, on the ground that the indictment does not charge a felony but a simple assault, and it is sustained as to the felony, leaving the case for trial as to the assault, the order sustaining it is not a final judgment from which an appeal will lie.</p>

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 Second Judicial District, County of Butte.</p> <p>The defendant was indicted jointly with You Ton for the crime of murder, committed in the killing of Ah Lung. At the trial twelve jurors were called and sworn to answer questions. After they had answered, several peremptory challenges were interposed, and the remainder were accepted. Others were then called to fill the panel, and after they had been examined for cause, the defendant peremptorily challenged Davis who had been accepted as a juror when the first list of jurors was called. The challenge was disallowed, the Court holding that it could not be interposed without cause shown. The defendant was convicted of murder in the second degree and appealed.</p>

The' defendant was indicted for the crime of burglary. On his arraignment he asked leave to file a plea, setting up as a bar to the indictment, the prior conviction of one Emerson, for the same offense. The Court refused to allow the filing of the plea, defendant excepting. He was then put upon his trial. The instructions referred to in the opinion were as follows: “ 7.

<p>Testimony of Pebsons Accused of Obime.—Under the code a person accused of crime may voluntarily become a witness for or against himself at a preliminary examination ; and, if it appear that his testimony was voluntary and free from undue influence, it may he used in evidence against Kim on his subsequent trial for the offense.</p>

<p>Police Court <ot San Francisco.—The Police Judge’s Court of the City and County of San Francisco, possesses the same powers and jurisdiction in criminal action and proceedings which are not specially defined in the Act creating such Court, as is or may be conferred by law upon Justices of the Peace or Justices’ Courts.</p> <p>Idem.—The Act of February 13th, 1872, in relation to said Court, is not repealed by the Political Code.,</p> <p>Political Code.—Sections eighteen and nineteen of the Political Code having been passed April 1st, 1872, may have a material bearing on Sections 4,478 and 4,479 of that Code.</p> <p>Judgment and Commitment for. Misdemeanor.—Ex parte Murray, 43 Cal. 455, approved, as to a judgment and warrant of commitment of the Police Judge’s Court of the City and County of San Francisco.</p> <p>Title 3, Part IV ov Political Code.—Title 3, Part IV of the Political Code does not apply to any municipal corporations existing at the time it went into-effect.</p>

<p>Application to the Supreme Court for discharge on habeas corpus.</p> <p>The facts are stated in the opinion.</p>

<p>Application to be discharged from custody on habeas corpus. The facts are stated in the opinion.</p>

The defendant was indicted for the crime of murder in the first degree committed in the killing of John B. McCarty in July, 1873. The grand jury consisted of fourteen men, but two of them being disqualified were challenged, the challenge was allowed and they took no part in the finding of the indictment. It appeared at the trial that the defendant, together with Patrick Mulcahy, the deceased and others were engaged in threshing grain in a field.

, Rood was the owner of land, and by Wilson, his attorney-in-fact, made a parol agreement to lease the same to McCarger for two years from the first day of October, 1868. By the terms of the agreement of lease plaintiff was to enter upon, and into possession of, the land, and plow the same and sow it with grain, and pay to the defendant, as rental, the one fourth of the crop raised upon the lands the first year, the same to be delivered at the threshing machine in the field.

May 28th, 1872, the plaintiff, through his broker, S. Lacour, made a verbal contract with Klopenstine, by which Klopenstine was to sell him 100 shares of Pioche mining stock for $1,350.

The action, which was to recover upon a promissory note, was commenced January 27th, 1873, and on the same day the plaintiff filed an affidavit, in which he stated that the defendant resided in Paradise Yalley, in the State of Nevada. On the 12th of February following, he moved the appointment of an attorney to represent the defendant. The motion was granted; an attorney was appointed, the case was tried the same day, and judgment was rendered for the plaintiff.

<p>Appsal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>Complaint in ejectment in the usual form. The answer denied the allegations of the complaint, and then proceeded by saying, “and further answering,” etc., without setting up the other matters as a separate defense, or in the form of a cross-complaint. The matters further answered were that the defendant gave the plaintiff a deed, absolute in form, of the premises, but that the deed was intended as a mortgage to secure a debt due from the defendant to the plaintiff, and that the defendant was ready and willing to pay the debt, and had offered to pay. it, but that the plaintiff refused to receive it. The answer also alleged that the defendant was still the owner in fee of the premises. No affirmative relief was asked for. The Court below rendered judgment for the plaintiff, and the defendant appealed.</p>

Several blocks of land in the city, of Sacramento were assessed separately for taxes in 1868, but were all assessed to one owner. The tax became delinquent, and suit was brought to enforce it, and, on the 20th day of July, 1869, a judgment was rendered against all the blocks directing their sale for the tax. An order of sale was issued, and the Sheriff sold all the blocks on the 21st day of March, 1870, for the tax.

<p>Appeal from the District Court, Sixth Judicial District, County of Sacramento.</p> <p>Ejectment to recover the south half of the north half of lot No. 4, in the block between H and I, and Fifth and Sixth streets, Sacramento.. The plaintiff derived title to the lot from L. H. Foote. September 11th, 1863, Mesick sold to Foote by a deed containing the following description: “ All the right, title and interest, estate, claim and demand, legal and equitable of him, said party of the first part, of, in, and to all of the town lots situated in the city of Sacramento remaining unsold, which are described in and conveyed by a certain deed of conveyance bearing date the ninth day of July, 1855, made and executed by John A. Sutter, Jr., to the party of the first part.”</p> <p>The deed from Sutter to Mesick of the ninth of July, 1855, above referred to, contained a particular description of two thousand lots in the city of Sacramento, and concluded as follows :</p> <p>“And also all the right, title, interest or estate of the said party of the first part of, in, and to any and all lots, pieces or parcels of land within the corporate limits of the said city of Sacramento.”</p> <p>The lot in suit was not among the two thousand particularly described in this deed, nor had Sutter, Jr., any interest in it at the time this deed was made.</p> <p>Mesick acquired a title to the lot by a deed from Bran-nan, dated May 20, 1859. Mesick quitclaimed to McKee February 23, 1857, and McKee sold to the defendant.</p> <p>The plaintiff had judgment in the Court below, and the defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

On the 3.0th day of November, 1859, Pierre Le Goat gave the plaintiff his promissory note for §567,00, payable sixteen months after date, bearing interest at 2-|- per ce,nt. per month compounded every five months, and, to secure the same, gave said Ponce a mortgage on a mining claim in Nevada County.

<p>Appeal from the District Court, Seventeenth Judicial District, County of Los Angeles.</p> <p>Action to recover for legal services rendered to defendant as an attorney. The Court found that the plaintiff was the attorney of the defendant in the District Court of the United States, in the case mentioned in the opinion, and that judgment was rendered therein on the eighth day of June, 1869, and that there was no other employment than the original and first employing, and that the value of plaintiff’s services, rendered up to the time of judgment, was three thousand dollars. This action was commenced June 24, 1871. The Court below was of opinion that plaintiff’s claim for services rendered prior to June 8,1869, was barred by the Statute of Limitations, and that as there was no proof of the value of his services after June 23, he was entitled to recover the nominal sum of one dollar, and gave Mm judgment for one dollar. The plaintiff appealed.</p>

the District Court of the Twentieth Judicial District, Monterey County. The action was for rent.

<p>Stipulation as to Filing Statement.—A stipulation made on the day that a statement, on motion for a new trial, should be. filed, “that the foregoing constitutes a true and correct, engrossed and settled statement, * * * *, hereby waiving all informalities in respect to filing and service of the same,” does not justify the moving party in neglecting to file the statement for five months after the date of the stipulation.</p> <p>Idem.—In such case, the right to move for a new trial is waived by the neglect to file the statement.</p>

The complaint alleged that since January 1st, 1866, the plaintiff had owned a farm in San Mateo County, over ivhich flowed the water of Tunitas Creek, a natural water course and that the water was indispensable to the plaintiff, and he used it for watering stock and for all purposes necessary or convenient for the occupation or cultivation of the farm, and had no other water which he could use for such purposes.

The action was for damages for the killing of a shepherd dog. The plaintiff had judgment by default, and subsequently the Court, on motion of the defendant, made an order opening the default. The appeal is from that order.

<p>Ejectment by Heib, tending Administbation.—The right to the possession of the real property of an estate remains exclusively with the administrator until the estate is settled, or distribution is directed by order of the Probate Court, and until then neither the heirs nor their grantees can maintain ejectment for any portion of such property.</p> <p>Idem.—The fact that the Probate Court has distributed the property after the commencement of a suit in ejectment, and that the plaintiff is the distributee, does not entitle him to recover.</p> <p>Ejectment—Bight op Entby.—In ejectment, the plaintiff must have a right of entry when the action is commenced as well as when it is tried.</p>

Ejectment for a portion of fifty-vara lot No. 3,328 on the northwest corner of O’Farrell and Hyde streets, in San Francisco. The defendants in their answer set up title in themselves, and asked for relief on the equity side of the Court, to be quieted in their title -and possession. Both parties claimed under J. J. Bryant, to whom the lot was granted by John W. Geary, the Alcalde of San Francisco, on the twentieth day of November, 1849.

The-complaint contained two counts, one for the rent of the hotel at $570 per month, from June 15th, 1870, up to. February 15th, 1872, and the other for thirty thousand dollars, for so much money paid by the plaintiff at defendant’s request, to merchants in San Francisco, for furniture, carpets, etc., bought by defendant from the merchants.

<p>Deeense in Ubiatoul Detainee.—If the lessor of a hotel, after the lease is made, enters into a contract of partnership in keeping the hotel with the lessee, which contract is carried into execution, the lessee may prove the same as a defense in an action of unlawful detainer afterwards brought by the lessor to recover possession of the premises.</p>

<p>When Pee-emetionee may Attack Patent.—A defendant in ejectment, who is in possession as a pre-emptioner under the laws of the United States, may attack a patent given by the State to the plaintiff for the land as swamp and overflowed, by evidence showing that the land is not swamp and overflowed.</p> <p>Notice op Application bob a Patent.—A provision in. a State law for the sale of swamp lands, requiring the Register to publish notice oí an application for a patent, in order that adverse claimants may contest, does not require the United States to appear and contest its claim of title with the State.</p>

<p>Appeal from the District Court, Seventeenth Judicial District, County of Los Angeles.</p> <p>The plaintiff Beaudry on the eighteenth day of April, 1868, went to the husband, Noah Felch, with a deed of the premises and executed to him the $2,000 note, and at the same time procured his signature to the deed. On the fifth day of May, 1868, the wife executed the deed, and the $8,000 was paid to her. The plaintiff appealed.</p> <p>The other facts are stated in the opinion.</p>

Action to recover upon a street assessment in San Francisco. The plaintiff recovered judgment in the Court below, and the defendants 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 Twentieth Judicial District, Santa Clara County.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.</p> <p>The plaintiff obtained a verdict and judgment for ten thousand" dollars damages.</p> <p>The other facts necessary to present the points decided are stated in the opinion.</p>

<p>Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.</p> <p>The facts in this case are stated in the opinion, and in the report of the same case contained in 34 Cal. 48.</p>

The complaint averred that the plaintiff owned a lot on Battery Street, San Francisco, and that, about September 29th, 1868, he, by his agent, sold it to the defendants, as partners, for $50,000 in gold coin, $2,500 to be deposited with Maurice Dore & Co.- until a deed of 'conveyance was executed by the plaintiff, who was at Bremen, in Germany; the balance of the purchase money and the $2,500 to be paid when the deed was received.

<p>Pbesumphon as to Right of Company to Hold Lands.—When it appears, in the course of a judicial proceeding, 'that land has been conveyed to a company by a company name, as “ The Sacramento Valley Reclamation Company,” and there is an absence of all proof as to whether the company is a corporation, or capable in law of taking and holding, lands, it will be presumed that the company was capable in law of taking and holding real estate.</p> <p>When Cebtiobabi wan be Denied.—In certiorari to review the proceedings of a Board of Supervisors in organizing a district for the reclamation of swamp lands, if it appears that the petition to organize the district was defective, on account of not stating with precision what lands in the district had been sold, yet, if the petitioner for the writ appeared before the Board and did not raise the objection, and waited several months before applying for the writ, and mischievous consequences might follow from a reversal of the proceedings, the Court will dismiss the writ.</p> <p>Idem.—Certiorari ought not to be granted, even if the record, when returned, ' appears to be defective or informal, provided substantial justice has been done, or if ruinous consequences would follow a reversal of -the proceedings, and parties cannot be placed in statu quo.</p> <p>Estoppel in Cebtiobabi.—When, on an application before a Board of Supervisors to organize a district for the reclamation of swamp lands, a person whose lands are included in the proposed district, at the hearing, files a protest, because his lands are held under a Mexican grant, but admits that the lands are swamp and overflowed, he is estopped, on certiorari to review the proceedings of the Board, from denying that the lands are swamp and overflowed.</p> <p>Title of a Statute.—In construing statutes, resort is sometimes had to the title, as tending to throw some light upon the intention of the Legislature, in very doubtful cases; but, in any case, it is entitled to but little weight, and is never allowed to enlarge or control the language in the body of the act.</p> <p>Act of 1838 fob Reclaiming Swamp Lands.—The Act of 1868 (Stats. 1867-8, p. 514), which provides for the reclamation of swamp and overflowed lands, is not limited to swamp and overflowed lands acquired by the State under the Arkansas Act, but applies to all swamp and overflowed lands in the State, even if the title was derived from a Mexican grant.</p> <p>Poweb op Legislatube.—The Legislature has the constitutional power to compel local improvements, which, in its judgment, will promote the health of the people and abate nuisances, and it may open canals for irrigating arid districts, and build levees for draining lands, and impose local assessments to pay for súeh works. ,</p> <p>Constitution op a State.'—-The constitution of a State is not a grant, hut a limitation of power, and when an Act of the Legislature is called in question as repugnant to the constitution, those who call it in question, must point to the provision in the constitution which has been violated.</p> <p>Assessments pob Local Impbovements.—The authority to compel local improvements, at the expense of those to be immediately benefited, is not taxation.</p> <p>Clauses in Constitution about Local Impbovements.—Those clauses in the constitution which provide that taxation shall be equal and uniform, and prescribe the mode of assessment, and the officer by whom it shall be made, and that all property shall be taxed, have no application to assessments levied for local improvements.</p> <p>Reclamation op Swamp Lands.—The Legislature has the constitutional power to xirovide for the reclamation of all the swamp and overflowed lands in the State, whether the title has been acquired under the Arkansas Act, or from Mexican grants, and to assess the land reclaimed, to pay for the expense incurred.</p>

The land in controversy was the, northwest quarter of the southeast quarter and the southwest quarter of the southeast quarter of section 10, T. 12 N., E. 1 W., Mount Diablo meridan, lying in Yolo County. The plaintiff entered into possession of it in 1859, and remained in possession, cultivating and improving it, up to the time of the trial of this cause.

John A. Sutter was the grantee from the Mexican government of the land comprising the city of Sacramento, and before the organization of the State government of California, made the plat of the city,… Held: at the time of the commencement of this action, the title of Goote and Pearis. The-possession had been delivered with these conveyances. Defendant Harrington was the tenant of Frey.

<p>An Answeb in a Suit as Evidence.—A joint answer of two defendants, signed by their attorney, and verified by only one of them, is not admissible in evidence, for the purpose of proving the allegations therein contained, in an action brought against the defendant who did not sign or verify.</p>

' The defendants were the editors, publishers, and proprietors of the San Jose' Daily Mercury, published at San José, county of Santa Clara, and, on the twenty-sixth day of April, 1870, published in the same the following article: “Mb. Lick Interviewed.—Local items being somewhat scarce, yesterday, we dispatched ‘one of ours’ to interview our millionaire fellow-citizen, Mr. James Lick.

The action was ejectment for a strip of land fronting two feet and eight inches on Kearny street, with a depth of sixty-six feet and six inches, and a rear breadth of three feet six and one half inches, claimed as a portion of fifty-vara lot No. 383.

In July, 1863, Thomas A. Jones erected a small house on the land in dispute, and moved into the same. On the eleventh day of August, 1863, Jones and Francis E.Weygant conveyed the land to the Mary Anna Cook spoken of in the opinion.

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>Ejectment to recover a tract of land in the city and county of San Francisco, lying on Rincon point, and bounded by Beale street on the southwest, and upon all the other sides by the high water line of the Bay of San Francisco, as said line existed in the year 1846, and as marked upon the official map of said city, containing about seventeen fifty-vara lots; excepting therefrom the portion bounded by Beale, Harrison, and Main streets, and said high water line of the bay.</p> <p>The defendants were severally in the possession of parcels of the demanded premises, and answered separately, denying the allegations of the complaint, and setting up the Statute of Limitations.</p> <p>The action was commenced on the sevententh day of April, 1868, and the cause was called for trial on the fifth day of December, 1870.</p> <p>The plaintiff opened the case by the following statement of what he claimed the facts of the case to be, and what he expected to prove:</p> <p>The plaintiff Pickett entered into actual possession of the lands described in the complaint, in November, eighteen hundred and forty-six, enclosed them with a fence sufficient to exclude cattle, cultivated a portion of them, built a house upon them which he occupied until November, eighteen hundred and forty-seven, when he went to the Sandwich Islands on a temporary visit, leaving the said house and lands in the charge of Elijah Grimes, then a resident of Yerba Buena, otherwise called San Francisco, where the lands were situated.</p> <p>About three months after the plaintiff Pickett’s departure for the Sandwich Islands, as aforesaid, a party of armed soldiers, pretending to act on behalf of the United States, but in reality without any authority to do so, came upon the said lands, destroyed the said house, and for a long time afterwards the military in command at San Francisco retained possession of the same, but without any valid authoritv from the United States.</p> <p>The said plaintiff Pickett endeavored to regain possession of the said lands by application to the military authorities, and to the authorities of the Pueblo of Yerba Buena or San Francisco, and to defendants, but his application was always rejected; he was prevented from resuming possession, but never abandoned his claim.</p> <p>The defendants afterwards gradually succeeded to the actual possession of the said lands, and ivere in such actual possession on the first day of January, eighteen hundred and fifty, claiming the same in their own right, adversely to the plaintiff, and have since continued in such possession to the time of the commencement of this action.</p> <p>The said lands are a portion of the pueblo lands of the Pueblo of Yerba Buena, or San Francisco, for which a confirmation was petitioned for by the city of San Francisco, by a petition filed with the Board of Commissioners to ascertain and settle private land claims in the State of California, by whom said claim was-confirmed; thence removed by appeal to the District Court for the Northern District of California; thence removed to the Circuit Court of the United States for the.District of California; where a decree of confirmation was finally rendered on the-eighteenth day of May, a. d. 1865, in the words and figures following:</p> <p> </p> <p>“The appeal in this case, taken jby the petitioner, the City of San Francisco, from the decree of the Board of Land Commissioners, to ascertain and settle private land claims in the State of California, entered on the twenty-first day of December, 1854, by which the claim of the petitioner was adjudged to be valid and confirmed to lands within certain described limits, coming on to be heard upon the transcript of proceedings and decision of said Board, and the papers and evidence upon which said decision was founded, and further evidence taken in the District Court of the United States for the Northern District of California, pending said appeal, the said case having been transferred to this Court by order of said District Court, under the provisions of section four of the Act entitled “An Act to expedite the settlement of Titles to Lands in the State of California,” approved July 1st, 1864, and counsel of the United States and for the petitioner having been heard, and due deliberation had, it is ordered, adjudged and decreed, that the claim of the petitioner, the City of San Francisco, to the land hereinafter described, is valid, and that the same be confirmed. The land of which confirmation is made is a tract situated within the county of San Francisco, and embracing so much of the extreme upper portion of the peninsula above ordinary high-water mark (as the same existed at the date of the conquest of the country, namely, the seventh of July, A. D. 1846,). on which the city of San Francisco is situated, as will contain an area of four square leagues; said tract being bounded on the north and east by the Bay of San Francisco, on the west by the Pacific Ocean and on the south by a due east and west line drawn so as to include the area aforesaid, subject to the following deductions, namely: Such parcels of land as have been heretofore reserved or dedicated to public uses by the United States; and, also, such parcels of land as have been by grants from lawful authority vested in private proprietorship, and have been finally confirmed to parties claiming under said grants by the tribunals of the United States, or shall hereafter be finally confirmed to parties claiming thereunder by said tribunals, in proceedings now pending therein for that purpose; all of which said excepted parcels of land are included within the area of four square leagues above mentioned, but are excluded from confirmation to the city. This confirmation is in trust for the benefit of the lot-holders under grants from the pueblo, town or city of San Francisco, or other -competent authority, and as to any residue in trust for the use and benefit of the inhabitants of the city.</p> <p>“'San Francisco, May 18th, 1865.</p> <p>“Field, Circuit Judge.”</p> <p>The said lands are also a part of the lands described in a certain Act of the Legislature of the State of California, entitled “ An Act concerning the city of San Francisco, and to ratify and confirm certain ordinances of the Common Council of said city,” approved March 11th, 1858 (Laws 1858, p. 52); and also a part of the lands described in Section five of an Act of Congress, passed July 1st, 1864, which said section is in the words-and figures following, to wit:</p> <p>“Sec. 5. And be it further enacted: That all the right and title of the United States to the lands within the corporate limits of the city of San Francisco, as defined in the Act incorporating said city, passed by the Legislature of the State of California, on the fifteenth of April, 1851, are hereby relinquished and granted to the said city and its successors, for the uses and purposes specified in the ordinances of said city, ratified by an Act of the Legislature of the said State, approved on the eleventh of March, 1858, entitled “An Act concerning the city of San Francisco, and to ratify and confirm certain ordinances of the Common Council of the city,” there being excepted from this relinquishment and grant, all sites or other parcels of lands which have been, or now are occupied by the United States for military, naval or other public uses, or such other sites or parcels as may be designated by the President of the United States, within one year after the rendition to the General Land Office, by the Surveyor-General, of an approved plat of the exterior limits of San Francisco, as recognized in this section, in connection with the lines of the public surveys; and provided, that the relinquishment and grant by this Act shall in no manner interfere with or prejudice any bona fide claims of others, whether asserted adversely under rights derived from Spain, Mexico or the laws of the United States, nor preclude a judicial examination and adjustment thereof.”</p> <p>The lands described in the complaint are a part of lands mentioned and referred to in Section 12 of the Act of the Legislature of the State of California, entitled “An Act to authorize the Funding of the Floating Debt of the city of San Francisco, and to provide for the payment of the same,” passed May 1, 1851, and are a part of the lands which the Commissioners of the Sinking Fund “in said Section 12 of said Act mentioned, were required in and by Section 12, to convey to the Commissioners of the Funded Debt of the city of San Francisco,” created by said Act; and said lands described in the complaint were by the said, “the Commissioners of the Sinking Fund,” conveyed in accordance to the requirements of said Act to the said Commissioners of the Funded Debt, by deed of conveyance, bearing date of the twenty-first day of May, a.d. 1851.</p> <p>That the defendants, C. W. Hathaway, S. L. Mastick, Seth Wetherbee, Charles F. Jones, B. Cocks, S. W. Holladay, Charles Hare, George F. Sharp and William Sharp, prior to the first day of April, a. d. 1863, under and by virtue of an Act of the Legislature of the State of California, entitled, “An Act to authorize the Commissioners of the Funded Debt of the city of San Francisco to compromise and settle certain claims to real estate, and to convey such real estate, pursuant thereto,” approved April 14,1862, severally obtained from the said “the Commissioners of the Funded Debt of the city of San.Francisco,” deeds of conveyance of the respective parcels of lands described in their • several answers, which conveyances purported to convey to the said last mentioned defendants, respectively, the lands claimed by them in their respective answers in this action.</p> <p>The plaintiff insisted that the said conveyances and each of them were wholly inoperative to defeat or impair his right of action in the premises, and had no force of evidence, because—First: No title appeared in the said Commissioners of the Funded Debt to any of the premises in controversy. Secondly: Said conveyances did not contain the recitals required by the laws under which the same were made showing proof of publication of the award therein mentioned according to said laws. Thirdly: Said conveyances did not contain recitals showing that the value of the respective lands was ever ascertained or paid, as prescribed by said laws under which the same were executed. Fourthly: Said conveyances did not contain any recitals showing that the expenses of the respective proceedings before said Commissioners of the Funded Debt, had been paid before said conveyances respectively were executed. Fifthly: That said conveyances did not affect the rights of the said plaintiff in any respect. Sixthly: That if the said conveyances, or any of them in any way affected the rights, of the plaintiff, it was only by conveying to the respective grantees therein an interest in said lands of which they instantly became seized to the sole use of the said plaintiff, which use instantly executed itself, and vested said interest in the said plaintiff solely.</p> <p>The plaintiff having finished his statement of the case, the defendants, by their counsel, demurred to the statement in open Court, and moved for a nonsuit thereon, and insisted, that admitting for the purpose of said motion, that the showing of the plaintiff was, in all respects true, as matter of fact, it did not appear that the plaintiff ought to have judgment against any of the defendants in the action, but that, on the contrary, it did appear that the defendants, and each of them, should have judgment against the plaintiff.</p> <p>The Court, thereupon, granted the motion, to which decision the plaintiff excepted.</p> <p>The plaintiff appealed from the judgment.</p>

Ejectment to recover fifty-vara lot, 1,476, in the city and county of San Francisco.

Ejectment to recover fifty-vara lot No. 31, lying at the north-west corner of Washington and Kearny streets. The action was commenced December 16th, 1864. The defendants other than Eeese and Guy, were the tenants of Eeese and Guy.

Action to restrain the sale of land under execution. The defendant, Anderson, having initiated a homestead claim under the laws of the United States in 18G3, subsequently perfected it, and received a a patent in June, 1869. Prior to the issuance of the patent, and pending the proceedings, he became indebted to defendant Little upon a promissory note. Subsequently, an action was brought upon the note, and a judgment was rendered against him January 19th, 1871.

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>Action brought on the following promissory note:</p> <p>“San Francisco, July 1st, 1869.</p> <p>“On or before the 1st day of April, a.d. 1870, without grace, for value received, I promise to pay to the order of myself, twenty-five hundred dollars, in United States gold coin, with interest from date till paid, at the rate of one per cent, per month—interest payable monthly.</p> <p>“D. Jordan.”</p> <p>The note was given in purchase of an interest in the “Stirling Mine,” in Arizona Territory. The defendant recovered judgment in the Court below, and the plaintiff appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>“Tax” and “Assessment.”—The fact that a statute designates as a “tax” that which in its elements is an “assessment,” does not make it a “tax.” The question whether it is a “tax” or “assessment” must be decided by the nature of the imposition.</p> <p>What is an Assessment.—If a street is opened in a city, and to pay for the land taken, and the damages to improvements thereon or adjacent thereto, and injured thereby, and all other expenses, bonds are issued; and to pay the same and the interest thereon, an annual per-centage is directed to be levied on the lots benefited thereby, which per-cent-age is upon the enhanced value of the lots, as fixed by a board of public works, this imposition is an assessment and not a tax.</p> <p>Idem.—In such case the interest to accrue on the bonds, and the discount suffered in converting them into cash, are incidental expenses, and the property benefited is only charged with the cost of the improvement.</p> <p>Statute Imposing an Assessment.—When a statute for opening a street in a city provides that, to pay the damages and expenses incurred thereby, an assessment shall be levied on the lots benefited “according to the enhanced value of the respective parcels of lands as fixed” in a report of a Board of Public Works, the assessment must be limited to the increased value of each lot caused by the improvement, and must not include the value of the lot without the improvement.</p> <p>Exemption op Public Property prom Assessment.—When, to pay the expenses of opening a street in a city, an assessment is imposed on the-lots to be benefited thereby, in proportion to the benefits accruing to each, the exemption from the assessment, of lots belonging to the United States, to this State, and to the city, does not render the-statute void, or the assessment illegal.</p> <p>Tax on Public Property.—The property of the United States, or of this State, or of a municipal corporation, is not subject to taxation for revenue purposes.</p>

The action was brought under the provisions of the Act of March 28th, 1868, “to provide for the management and sale of the lands belonging to the State,” to recover an assessment on certain swamp and overflowed lands belonging to the defendants, and situated in [Reclamation District No. 124. The case was tried by the Court without a jury, and the facts stated in the opinion were found by the Court. Judgment was rendered for the defendants, and the plaintiffs appealed.

<p>Poweb of Legislatube as to Duties of State Officebs,—Although the Constitution is wholly silent with respect to the duties to he performed by the Attorney-General, Secretary of State, Controller, and Treasurer, and contains no express limitation on the power of the Legislature as to the nature of the duties it may impose on these officers, yet a limitation on this power is necessarily implied, from the nature of these offices.</p> <p>Idem:.—Such limitation will be found in the general class of duties which the incumbents of similar offices had performed in other States, before our Constitution was adopted.</p> <p>Idem.'—In assigning to these officers their duties, the Legislature possesses a wide discretion, and the Courts will not interfere unless the duties assigned are in their nature wholly foreign to the office.</p> <p>Attoeney-Genebal’s Salaby, aed Poweb of Legislature oveb his Duties.—The Legislature has no power to compel the Attorney-General to perform the duties of a member of the Board of Examiners, to examine and approve or reject claims against the State; but if such duties are imposed on him by law, and he voluntarily performs them, the Legislature may compensate him for this unofficial service, by paying him a salary in addition to that which he receives as Attorney-General, even if the law allowing him such salary is passed during his term of office.</p>

Ejectment to recover one hundred and fifty acres of land near Petaluma, Sonoma County. The land was sold by Charles Hunt, the guardian of Henry Flege, the husband of the plaintiff, to Jesse Hill, for the sum of $4,100. On the trial, the defendants offered to prove that the plaintiff received from the guardian a large proportion of the purchase money, but the Court, on the objection of the plaintiff, ruled out the testimony.

The action was commenced December 30, 1867. The findings of the referee, not stated in the opinion, were, in substance, that from the first day of January, 1865, to the date of the commencement of the action, the plaintiff and defendant had transactions together in and about advancing money, the one to the other, for different purposes.

San Francisco. George L. Howard, George Brotherton, and Lewis Brotherton were jointly indicted for having, on the fourteenth day of May, 1870, forged a check, of which the following is a copy: “ No. 1251, San Francisco, May 14th, 1870. “The Bank of California pay to Hickox and Spear, or order, Fourteen Thousand Five Hundred and Sixty-one -JyL Dollars. “14,561 Treadwell & Co.” Upon the trial, D. Hicks, a juror, having been called and sworn, on his examination by defendants’…

<p>Appeal from the District Court, First Judicial District, County of San Luis Obispó.</p> <p>The following is a copy of the assessment as made by the Assessor:</p> <p> </p> <p>The three tracts of "land were separate and distinct.</p> <p>The other facts are stated in the opinion.</p>

<p>Appbovab op Subvey of Swamp and Ovebfdowed Land.—The Surveyor-General of this State, since the passage of the Act of April 4th, 1870, supplementary to the Act of 1868, for the sale of State lands, has had no authority to approve of a survey of land as swamp and overflowed, nor to refer a contest between applicants for the purchase of such lands to the District Court for trial, until six months after the land has been segregated as swamp and overflowed by authority of the United States or of this State by legislative enactment.</p> <p>Contest fob the Pubchase of Swamp Land.—In a contest in the District Court concerning the right to purchase swamp and overflowed land, a judgment that neither of the parties is entitled to purchase the land in contest or any part thereof, is equivalent in its effect to a dismissal of the action.</p>

<p>Appeal from the District Court of the Nineteenth Judicial District, City and County of San Francisco.</p> <p>The plaintiff recovered a judgment, from which the defendant appealed; and on motion of the plaintiff, the appeal was dismissed for failure to file the transcript within the time required by Hule 2 of the Supreme Court. The defendant subsequently moved to set aside the order dismissing the appeal, filing in support of the motion the affidavit referred to in the opinion.</p>

■ Action on two policies of insurance issued by the- defendant to the plaintiff, one for $1,150, covering the billiard table, bar-room furniture and fixtures, and mirror of the plaintiff, in his saloon in San Diego, and running for one ■year from July 12th, 1869; and the other for $2,800, covering the frame saloon building, and running for one year from February 1st, 1870. The property was destroyed by fire May 12th, 1870. The action was commenced July 22d, 1870.

The action was commenced to enjoin the sale of the property in suit, and a preliminary injunction was issued. Subsequently, on the application of the defendant, the injunction was dissolved, and the plaintiff appealed. The judgment on which the execution was issued, was recovered after the homestead declaration was filed. The judgment was not one of the class embraced within the provisions of section 1,241 of the Civil Code. The other facts are'stated in the opinion.

The action was ejectment, in which the plaintiff claimed title under a patent from the State for the land as swamp and overflowed, granted to the State by the Act of September 28th, 1850, and the defendant claimed under a patent from the United States, issued in accordance with the Preemption Act of 1841. Both patents were issued prior to July 23d, 1856.

Two actions of ejectment, brought one to recover from defendants Doyle and Bates the East half of section twenty-four, T. P. 3 South, Bange 2 East, Mount Diablo Meridian, and the other, to recover from defendants Pratt and Carr, the West half of Section 24 in the same town and range. The lands are in Alameda county, and the defendants claimed that they were within the exterior boundaries of the rancho Los Pocitas, granted by the Mexican nation to Mr. Livermore.

<p>Validity of Elections.—It is essential to the validity of an election to an office, by the people, that such election be authorized by some statute in force at the time.</p> <p>Teem of Office.—When an office becomes vacant and is filled by appointment, the term of the officer appointed continues until the next election by the people authorized by law.</p>

The prosecutrix, Mrs. Julia Dow, and her sister-in-law, Mrs. Lupton, were riding on the same horse, on the public highway, about eleven o’clock a.bi. Mrs. Lupton was in the saddle and Mrs. Dow was riding behind. They were going from their home to Mr. Dermott’s, and had passed Mr. Turner’s house and got within about three quarters of a mile of Mr. Dermott’s when they met defendant Brown.

<p>Appeal from the Probate Court of the City and County of San Francisco.</p> <p>In August, 1870, M. C. Bateman was appointed executor of the last will and testament of J. H. Mullins, deceased, there being several legatees named in the will. In December of the same year Patrick Mullins, one of the legatees, filed a petition for the removal of the executor, on the grounds stated in the opinion. In obedience to an order of the Court, the executor appeared to show cause why his letters testamentary should not be revoked, and a trial ensued, at which a large amount of testimony was given, notes of which were taken by the short-hand reporter, and subsequently transcribed for the use of counsel and the Court. During the progress of the investigation, the Court ordered the short-hand reporter’s bills for transcribing the testimony, amounting to $768, to be paid by the executor out of funds in his possession belonging to the estate. They were so paid, and the amounts were included by the-executor in his final accounting.</p> <p>The executor was removed on the ground of mismanagement, and Peter Craig was appointed administrator, with the will annexed, of the estate. Upon the settlement of the final account of the removed executor, the questions of embezzlement and fraud were again raised by the contestants, and the executor demanded that the issues be tried by a jury. Accordingly a jury was summoned, and, special issues having been submitted, a verdict was returned acquitting the executor of all the charges of fraud and embezr zlement, and deducting §707.50 from his accounts, as sums improperly allowed. Upon the réndition of the verdict, the Court made an order that the executor pay the jury fees, amounting to $138, out of the funds of the estate. He paid them, as directed, and the amounts were allowed him in his final accounting, on the ground that they were paid by tho orders of the Court. The administrator and certain of the legatees appealed from so much of the judgment, in the settlement of the final account, as allowed the charges for reporter’s and jurors’ fees.</p>

<p>Sheeief’s' Deed.—A party who relies on a Sheriff’s deed, must offer in evidence not only the deed, hut the judgment and the execution, hy virtue of which the property was sold.</p> <p>Appdetehahces of a Menihg Claim,—If a mining company owns a mining daim, and buys a water ditch, “ and the water rights thereto appertaining,” this purchase does not, of itself, constitute the ditch and water rights appurtenances of the mining claim.</p> <p>Idem.—If there is a ditch leading out of a creek, and a mining company owns the ditch,- and also owns a mining claim, and uses a portion of the waters of the creek in working its claim, it does not follow that the ditch is an appurtenance of the mining claim.</p> <p>Pboof of What is ah Appubtehahce.—The one who asserts that a ditch and its water rights are appurtenant to a mining claim, has cast on him the burden of proving that such is the fact.</p> <p>Idem.—The party who buys a mining claim and its appurtenances, and who asserts that a ditch and its water rights passed to him by the conveyance, as appurtenances to the claim, must, in order to hold them as such, prove that they were appurtenances.</p>

<p>' Appeal from- the District Court of the Twelfth Judicial District, City and County of San Francisco.</p> <p>The action was brought to recover a street assessment, founded upon a contract for repairing certain streets and cross-walks “where necessary,” constructing cess-pools and culverts “where necessary,” and constructing and reconstructing curbs and sidewalks “ where necessary.”</p> <p>On the trial, after the plaintiff had rested, the defendant moved to dismiss the action because the complaint did not state facts sufficient to constitute a cause of action. The motion was denied. Subsequently judgment was rendered in favor of the plaintiff, and the defendant appealed.</p>

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

This was an action of unlawful detainer, and for holding over contrary to the terms of a lease. The plaintiff had judgment, and the defendant appealed therefrom 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 Santa Clara.</p> <p>Bill in equity to have the defendant adjudged to hold in trust for the plaintiff, the title he acquired by a United States Patent to about fifty-four acres of land, and to be required to convey it to the plaintiff.</p> <p>The plaintiff, in October, 1856, settled on the north half of the north half of sec. 1, T. P. 7 south, Bange 2 west, Mount Diablo meridian, but his actual occupancy was confined to the north half of the U. E. J.</p> <p>The north half of the north-east quarter was within the exterior boundaries of a Mexican grant called “ Pastoría de los Borregas,” which had been granted by the Mexican Government to Francisco Estrada. The grant was for two square leagues within exterior boundaries containing a much greater quantity of land. In J.862 the plaintiff was removed from the land afterwards patented to the defendant by a writ of restitution, in an action of ejectment in which one Lyons was plaintiff, said Lyons claiming title under said grant. The plaintiff removed on to the north half of the north-west quarter, where he afterwards continued to reside.</p> <p>The defendant; purchased the title of Lyons, to the north half of the north-east quarter before July, 1866. The grant was confirmed, but upon the final survey, the north half of the north-east quarter was excluded, and a patent for the grant was issued in 1885. All the title of Estrada to the lot in dispute, vested in the defendant before the survey. The defendant remained in possession of it by his tenants. The plaintiff intended to hold and claim all the land on which he originally settled as a pre-emptioner. The final survey of the grant was made in June, 1865, and in April, 1866, the township in which the land in dispute is located, was surveyed as public lands, and on the sixteenth day of July, 1868, the plaintiff filed his declaratory statement, and on the fourth day of September, 1866, he made payment and received a certificate of purchase for the whole of said north half of the north half of section one. On the twenty-fourth day of May, 1867, the defendant filed in the land office at San Francisco, his application to purchase the land in controversy, under the seventh section of the Act of Congress, approved July 23d, 1866, entitled “An Act to quiet land titles in California,” alleging that he had purchased the same in good faith from a Mexican grantee, as a part of the grant “ Pastoría "de los Borregas.” The defendant’s application was allowed, and a patent was issued to Mm in October, 1871. The other facts are stated in the opinion.</p>

<p>Ejectment against Tenant.—In ejectment by the landlord against a tenant who was in possession when he gave the lease, the landlord makes out a primes facie ease; by the production of his lease, and the burden is cast on the tenant, if he depends on the ground of paramount title in himself or another, of proving such title, .and if he fails to do so, the landlord must prevail.</p> <p>When Lease Estops Tenant.—A tenant is estopped by a lease which he takes when in possession, unless he proves paramount title in himself or another, under whom he claims.</p> <p>Description in a Grant by an Alcalde.—A grant by an Alcalde, of a lot in a pueblo, “twenty-five yards in front by fifty in depth, and hounded southeast by Chaipa Garcia’s house and lot, ’ ’ was valid, and conveyed ownership to a definite tract of land, if Chaipa Garcia occupied a lot in the pueblo, and a lot twenty-five by forty yards could be located immediately to the north-west of hers</p> <p>Idem.—An entry subsequently made by the Alcalde, in his book of records, immediately below the grant, in these words, ■ ‘ the above is located fronting twenty-five varas on Market Place, and forty varas fronting on San Carlos street, does not affect the grant, and may he disregarded. It does not grant any land, but undertakes to locate a lot already granted and definitely described.</p> <p>Grant by an Alcalde.—When an Alcalde granted a lot by a description sufficient to pass the title, his jurisdiction over the subject matter ended.</p>

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

The action was brought to recover the possession of certain mining claims, and also to enjoin the working or sale of the property.

The action was ejectment. The plaintiff had received a patent from the United States before the action was commenced. The defendant set up the equitable defense stated in the opinion, and asked the Court to decree that the plaintiff execute the agreement, by conveying the land to the defendant, and that the plaintiff be enjoined from asserting title to the premises.

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>Ejectment to recover a small tract of land, being a portion of a fifty-vara lot, on the north-east corner of Church and Eighteenth streets, in the city of San Francisco.</p> <p>Thomas Dorland was the owner of the fifty-vara lot, and, on the eleventh of April, 1865, conveyed it to Benjamin S. S. Brooks by a quitclaim deed; which deed was recorded on the twenty-fourth day of April following. Dorland’s deed to Brooks was merely intended by him to release to Brooks a portion of the land conveyed which was outside of Dorland’s enclosure, for the purpose of compromising a dispute between him and Brooks. Dorland remained in possession of the demanded premises (the same being within his enclosure) until March 2d, 1867, when he sold to the defendants by deed of bargain and sale, and delivered them possession.</p> <p>Thomas Dorland soon after died. The plaintiff, Henry S. Dorland, was his son and heir. On the second day of October, 1869, Brooks conveyed the same fifty-vara lot to the plaintiff, who commenced this action May 16, 1870, to recover possession. The other facts are stated in the opinion. The plaintiff recovered judgment, and the defendants appealed.</p>

Application to the Supreme Court for a writ of mandate to compel the Auditor to issue a warrant on an account which had been allowed by the Board of Supervisors.

The tract of land sought to be condemned is known as Point Pinos. The stone building, which the United States had erected on the demanded premises, was built in 1854 for a lighthouse and the residence of a lighthouse keeper, and had been used for that purpose. The defendants appealed. The other facts are stated in the opinion.

Action to enjoin the defendant from committing waste on a tract of land belonging to the plaintiffs, in the county of Santa Cruz.

<p>Appeal from the District Court, Seventeenth Judicial District, Los Angeles County.</p> <p>The complaint averred that, on the sixteenth day of December, 1869, an election was held in Los Angeles for the election of five members of the Common Council, for the term of two years from the date of their election, and that C. Yejar was one of the five who received the greatest number of legal votes, and was. elected; but that, on the sixteenth day of December, 1869, the defendant usurped the office, and had since unlawfully exercised and withheld the same from the relator. The defendant demurred, on the ground that the Court had no jurisdiction, and the Court overruled the demurrer. He then answered, and judgment was rendered for the relator, and he appealed. The other facts are stated in the opinion.</p>

<p>Cancellation of Cebtletcate Settling Statement.—If, after an appeal was taken from a judgment, a statement on appeal was settled and certified as correct by the Judge, he could, under section sixty-eight of the Practice Act, at any time during the term, or within five months thereafter, cancel the certificate, on becoming satisfied that it was erroneous, or was made through inadvertence, and the filing of the transcript on appeal in the Supreme Court did not deprive him of this power.</p> <p>Settling oe Statement aeteb an Appeal.—When a certificate of the Judge, settling a statement made after appeal from the judgment, is cancelled by the Judge, after the transcript on appeal from the judgment has been filed in the Supreme Court, the respondent is not entitled to have the appeal dismissed, but the appellant is entitled to have the appeal retained until he can procure the statement to be settled and certified.</p>

Certiorari from the Supreme Court to the District Court of the Sixth Judicial District, County of Sacramento. The plaintiff was a corporation, organized in January, 1865, to construct a railroad from Vallejo to Sacramento and Marysville. The railroad passed up the west side of the Sacramento river to a point opposite the city of Sacramento (which is on the east bank of the river) and then crossed the river and entered the city.

<p>Liability of City fob Damage done by a Mob.—Persons whose goods are destroyed by a mob, in n riot in a city, are not entitled to recover from the city the value of the goods destroyed, unless such persons, if they had knowledge of the impending danger, use reasonable diligence to notify the mayor or sheriff of the threatened riot and the apprehended danger to their property; nor are they entitled to recover if they instigate or participate in the riot.</p> <p>Cbedibility of Witnesses.—It is the province of the jury to decide on the credibility of witnesses.</p> <p>Ruling out Testimony.—If the proffered testimony of a witness upon a matter is ruled out by the Court, on the objection of the opposite party, and two other witnesses are allowed, without objection, to testify to the same matter, the party who offers the testimony is not injured.</p> <p>Idem.—If, in an action against a city to recover damage for property destroyed by a mob, the Court rules out testimony that, during the riot, the plaintiff could not have gone on to the street to notify the Mayor, the error, if any, is immaterial, provided that, before the riot commenced, the plaintiff knew of the impending danger, and had ample opportunity to notify the Mayor,</p>

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

In the former suit, brought for the same cause of action, the following are the entries in the Minutes of the Court, and the judgment rendered: “Monday, January 17, A. d. 1870. “ Court met pursuant to adjournment.

The petitioner was incorporated under the laws of California, on the 10th day of June, 1865, for the purpose of constructing and operating a railroad through the counties of Solano, Yolo, Sacramento, Sutter and Yuba, from the town of Vallejo, Solano county, to Sacramento city, Sacramento county, and to the city of Marysville, Yuba county. The route of the road from Vallejo extended northerly on the west side of the bay of Suisun, and the Sacramento river.

Ejectment to recover lots one and two of Sectioñ 15, T. 7, south E. 1 west, Mount Diablo meridian. The complaint was in the usual form.

<p>When New Tbiae should be Refused.—If, on the trial of an action for the value of services rendered the defendant, the plaintiff fails to prove the services and their value, and there has been no surprise or misapprehension, a new trial should not be granted to enable him to prove the services and their value.</p>

The action was ejectment, in which the defendant had judgment and the plaintiff appealed. The other facts are stated in the opinion.

The note sued on was dated February 29th, 1868, and made payable twelve months after date without grace. The suit was commenced March 1st, 1873. On the trial of the action, as soon as the plaintiff closed his evidence, the defendant’s attorney, in open Court, asked the attorney for plaintiff, when he claimed the note sued on fell due; to which the plaintiff’s attorney, also in open Court, answered, the last day of February, 1869.

Ejectment to recover a portion of the rancho “El Agua Caliente,” lying in Alameda County, and described in the complaint as bounded “ on the south by the Arroyo del Agua Fria, on the east by the east line of said ranch, on the north by the land of Joseph C. Palmer, (as known in December, 1867,) and on the west by the lands formerly known as the lands of Joseph Colombet and the lands belonging to Emlay & McKeon, before the thirtieth of December, 1867, and containing about one…

<p>Application for a writ of prohibition".</p> <p>An action was commenced against the petitioner, Whitney, in the District Court of the Fifteenth Judicial District, and, after an ineffectual effort to have the trial of the case continued on account of the absence of certain witnesses, he moved for a change of the place of trial to the District Court of the Nineteenth Judicial District. The motion was denied February 4th, 1874, and he appealed from the order denying it. He then moved that the trial of the action be postponed until the appeal should be determined by the Supreme Court. The Court refused to grant that motion also, and set the cause for trial on the twenty-third of February,' 1874. Thereupon he made this application to the Supreme Court for a writ, to prohibit the District Court from proceeding with the trial during the pendency of the appeal, on the ground that such trial would be without and in excess of the jurisdiction of the Court.</p>

<p>Appeal from the District Court, Sixth Judicial District, County of Sacramento.</p> <p>This case was before the Supreme Court at the July Term, 1872, and was then remanded for a new trial. It is ■ reported, 44 Cal. 139, and the leading facts are there stated. Upon the new trial in the Court below, the plaintiff testified that he received the check for $2,500, from the defendant about nine o’clock a.m. on the first day of November, 1871, and that Mr. Crackbon, the secretary of the defendant, who gave him the check, asked him how long he was going to remain in Sacramento, and he replied, it might be two or three days, and it might not be so long; and that Crackbon then told him he could leave the money in the bank till he went away, and that Crackbon went with him to the bank to identify him. The witness said, that until Crackbon suggested that he could leave the money in the bank till he went home (the witness lived some distance from Sacramento) he had intended to draw the money, .and that on Crackbon’s. suggestion he went to the bank of the drawees, B. F. Hastings & Co., merely to be identified, and that after Crackbon had identified him, Hastings asked him if he wanted the money, and he replied no, but would be back that afternoon for it. The witness then said, that he called at the bank that day about 2 P. M. and found it closed by the Sheriff; and that he immediately demanded payment from the defendant. The witness said, that when he first called he did not present the check for payment, and did not demand payment of it.</p> <p>Mr. Crackbon, the secretary of defendant testified, that he had no conversation with Simpson about his leaving the money at the bank, and that he went to the bank with Simpson merely to identify him, and that when he had done so Hastings turned round to get the money to pay it, when Simpson told him he was going to remain in town two or three days, and did not care to take- the money until he was ready to go home.</p> <p>H. F. Hastings testifies that he was cashier of the banking house of B. F. Hastings & Co., and that Simpson handed him the check, and Crackbon identified him, and that he turned to the tray containing the money and took up some double eagles, and was turning to the counter to pay the check, when Simpson said he did not want the money just then, but would call again. He said the bank then had sufficient of defendant’s money on hand to have paid the check, and could have paid it at any,time within an hour afterwards.</p> <p>On this state of facts, the plaintiff asked the Court to instruct the jury, as follows:</p> <p>“In this ease the defendant was the drawer of the check described in the complaint, the plaintiff was the payee, and the banking house of B. P. Hastings & Co. was the drawee. If the plaintiff went to the banking house of B. P. Hastings & Co. within the usual banking hours of same day the-check was delivered to plaintiff, to demand payment of his check, and found the bank closed, that circumstance excused him from making the presentation for payment in order to charge defendant.”</p> <p>The Court refused so to instruct the jury, and plaintiff excepted.</p> <p>Judgment was rendered for the defendant, and the plaintiff appealed.</p>

<p>Objection to Evidence.—An objection made to a power oí attorney offered in evidence, that it is irrelevant and incompetent, does not enable the objector to raise the question, that the power only authorizes the sale of “ lots unsold,” and that |here is no evidence that the lot in controversy is unsold.</p> <p>Poweb of Attoenjsy as Evidence.—A power of attorney to sell “ lots unsold ” is admissible in evidence without first making proof that the lot in controversy was unsold when the power was given.</p> <p>Motion fob Nonsuit.—A motion for a nonsuit must distinctly point out the grounds on which it is asked, and it is not error to refuse-it, even if there is ground for it, and it is not asked on such ground.</p> <p>Idem.—If a nonsuit is asked for defect of proof on some point, the Court will permit the plaintiff to supply the defect if he can do so.</p> <p>Limitation of Actions.—The Statute of Limitations of this State, in respect to an imperfect Mexican grant of land, does not commence running until the patent is issued by the United States to the confirmee.</p>

The action was brought to recovera delinquent tax. The defendant set up in his answer that the assessment was void because not made against him by his true name. Judgment was rendered for the plaintiff, and the defendant appealed.

The action was brought to recover a delinquent tax, levied ior State and county purposes for the fiscal year 1870. The assessment was made by James La Bue, who in 18G7 was elected Township Assessor of Brooklyn Township—one of the six Supervisor Townships into which the county was divided at the time of his election. The plaintiff had judgment and the defendant appealed.

<p>Appeal from the District Court~of' the Sixth Judicial District, County of Sacramento.</p> <p>This was an action to require the defendant to convey the legal title to a lot in the city of Sacramento to the plaintiff. The plaintiff was organized as a corporation January 31st, 1856, under Chapter VIII of the Act of April 29th, 1850, entitled “An Act concerning corporations.” About one year thereafter the premises in controversy were conveyed by one Hunter to Robinson, Perry and Folger, who were the trustees of the plaintiff. In November, 1857, the , plaintiff’s trustees, as such, conveyed the property to the defendant’s predecessor, the Mayor and the Common Council of the city of Sacramento, by a deed in which the habendum is as follows: “To have and to hold all and singular the above mentioned and described premises, together with appurtenances, unto the said party of the second part, and to their successors in office as trustees of said Young America Engine No. 6, and for the use and benefit of said company forever.” At the trial, the plaintiff having introduced the deeds above mentioned, the defendant offered to prove that the original purchase money ($1,000) was subscribed by citizens other than members of the plaintiff, for the purpose of buying a lot on which to erect a house for Engine Company No. 6, the City Council agreeing to build the house; that after the lot had been purchased with this understanding, the city built an engine-house thereon at a cost of $4,000; that the house was built by the city, and occupied by the plaintiff with the understanding and agreement that it belonged to the city for the use of its fire department, and not for the separate use of the plaintiff; that no member of plaintiff had paid any part of the purchase money; that a change having been made in the organization of the fire department of the city, the plaintiff was about to disincorporate and divide its property among its members and so divert the same from the uses of the fire-department. The plaintiff objected to the evidence and the Court excluded it on the ground that, no mistake or fraud about the execution of the deeds having been alleged, the defendant could not be allowed by parol evidence to vary the terms of the trust .created. The defendant excepted to the ruling; and, judgment having been rendered for the plaintiff, the defendant appealed.</p>

<p>Findings in Case of Nonsuit,—Findings of fact and conclusions of law are not required nor proper in case of nonsuit.</p> <p>Tender before Bringing Action.—If the judgment creditor agrees with the judgment debtor that the judgment shall be satisfied upon the performance of certain conditions by the judgment debtor, and the judgment is satisfied, and the judgment creditor afterwards sues to cancel the satisfaction on the alleged ground that it was fraudulently obtained before all the conditions were performed, he is not obliged, before bringing the action, to return money paid him in performance of the condi- . tions, nor to place the debtor in statu quo.</p> <p>Idem.—In such case, the judgment creditor is entitled to retain the money paid him, in any event.</p> <p>Idem.—The plaintiff, before bringing such action, is not obliged to return or tender to a third person property given by such third person to the judgment creditor, as one of the considerations for the cancellation of the judgment.</p>

In 1869 the plaintiff obtained a judgment against the defendant, under which certain real estate, standing of record in the name of Main & Winchester, was levied upon, and an interest which the plaintiff believed the defendant had in the land, was purchased by the plaintiff in satisfaction of the judgment.

The action was brought to recover a street assessment. The defendant had judgment, and the plaintiff appealed therefrom, and from an order denying a new trial.

In an action before a Justice of the Peace Robert Lowry obtained a judgment against G. 0. Reynolds, and the latter appealed to the County Court. The County'Court dismissed the appeal on the ground, that the sureties on the undertaking on the appeal had not justified within five days after the filing of a notice of exception to the sufficiency of the sureties. The exception was filed with the .Justice, but no notice of it was given to Reynolds or to his attorney.

<p>Dismxssaxi of Affbai.—A defendant who appeared separately in an action in which there were several defendants, and who was not served with notice of appeal, or made a party to any proceedings subsequent to the judgment, cannot move to dismiss an appeal taken by one of the other defendants.</p>

<p>Appeal from the District Court of the Fourth Judicial District, City and County of San Francisco.</p> <p>This action was brought originally by Spanagel against Treadway and Dellinger, to set aside, as fraudulent, a deed made by Treadway to Dellinger for four fifty-vara lots in San Francisco. On the twenty-fourth of October, 1861, while Treadway was the owner in fee of the premises in suit, and while he was indebted to the plaintiff and to others for borrowed money, he executed a conveyance of the property to Dellinger without consideration, and to defraud his creditors, and the fraud was participated in by Dellinger. In January, 1862, the plaintiff commenced an action pg'inot x'readway to recover the money due him, and he attached the land in controversy to secure the payment of the judgment he was seeking. Subsequently, he obtained a judgment, in pursuance of which the property was sold by the Sheriff, the plaintiff becoming the purchaser; and no redemption having been effected, the Sheriff’s deed passed to the plaintiff, Spanagel. In January, 1863, Spanagel claiming the legal title by virtue of the deed so obtained, brought this action to remove the cloud cast upon his title by the deed to Dellinger. In August, 1863, he filed an amended and supplemental complaint against the same defendants, and adding as defendants J. S. Ellis, Sheriff of San Francisco, and J. W. Beay, in which, after re-stating the foregoing facts, he alleged further that prior to the conveyance to Dellinger, an attachment suit had been commenced by one Davis, a creditor of Treadway, against Treadway, in which judgment was obtained by Davis, and under it two- of the lots in controversy were, on the nineteenth of July, 1862, sold by the Sheriff to one Boper; that on the seventeenth of January, 1863, Dellinger, as successor in interest to Treadway, redeemed from the Sheriff’s sale under the Davis judgment; that on. the same day the plaintiff, intending to effect a redemption from the sale, if one had not already been made, inquired of the Sheriff, Ellis, as to the matter, and was informed that Del-linger, as successor in interest to Treadway, had redeemed; and relying upon such information, took no further steps to redeem the lots; that two days thereafter—the nineteenth— Beay, with full knowledge of the redemption and of the fraudulent character of the conveyance to Dellinger, obtained from Boper an assignment of his Sheriff’s certificate of sale, and also procured Dellinger to execute and deposit with one Sawyer, as an escrow,, a deed for all his title in the four lots; that on the twentieth of January, Beay and Dellinger went together to the Sheriff’s office and withdrew the redemption money deposited by Dellinger; that these proceedings took place during the pendency of the suit, and after the filing of lis pendens; and that Beay, having received and recorded the deed from Dellinger, and pretending that the lots had not been redeemed, had presented the certifi- ■ cate of sale under the Davis judgment, and demanded from the Sheriff a deed to the three lots. The plaintiff asked that Reay and Ellis be made parties to the suit, and that they be enjoined, the one from making and other from demanding the deed under the Davis judgment. In October, 1863, Reay and Ellis, after demurring, answered. Reay denied the material allegations as to the fraudulent-character of the deed to Dellinger; denied notice of fraud, and the redemption, and alleged that the redemption money was withdrawn by Dellinger before the time for redemption had expired. Ellis also denied that the redemption had been effected. Dellinger and Treadway also answered. A trial was had, and judgment was rendered against all the defendants. Reay'and Ellis moved for a new trial; it was denied, and they appealed. The order denying the new trial was reversed, and a new trial was ordered. (38 Cal. 278.) The judgment against Treadway and Dellinger was acquiesced in.</p> <p>After the new trial was granted, in November, 1870, ,J. B. Townsend, by leave of the Court, filed a petition of intervention,- alleging that he had acquired Spanagel’s title to the undivided half of two of the lots, to the whole of another, and asking to be admitted as a co-plaintiff with him. He also set out as a matter of supplement, that since tho joining of issue on the “ amended and supplemental” complaint, Spanagel had recovered a judgment against Tread-way and Dellinger, declaring the deed in controversy fraudulent and void, as against him; that Reay’s title was acquired during the pendency of the suit in which such judgment was rendered, and after the filing of a notice of lis pendens in it, as well as with actual notice of the fraudulent character of Treadway’s deed, and of the pendency of the suit to set it aside; claimed that Reay was consequently bound by the judgment, and prayed, in addition to the relief asked in the complaint, that Reay be decreed to be estopped by the judgment against his grantors, Treadway and Dellinger. Spanagel filed a second “supplemental complaint,” setting up the same supplemental matter as that in Townsend’s intervention.</p> <p>The Court made an ex parte order allowing Townsend to intervene. The defendant moved to strike out Townsend’s intervention as irregular, because leave to file it was granted ex parte. The motion was denied. Beay and Ellis .filed a general demurrer to the petition of intervention and to the supplemental complaint. The demurrers were overruled and they answered. On the 21st of October, 1870, Beay and Ellis applied for leave to amend their original answer, which had been filed October 16th, 1863, so as to change the admission therein, that the money intended for the redemption of the lots sold under the Davis judgment was deposited with the Sheriff, to an allegation that it was deposited with one Struver, who was a book-keeper of the Sheriff, and not a deputy. The applicants represented to the Court that they had become better acquainted with the facts of the case since the filing of the first answer, and deemed it advisable to make the change, and they claimed that they had been prevented by the appeal from the first judgment from applying sooner. The Court refused the motion on the ground that Beay having admitted in a verified answer the deposit of the money by Dellinger with the Sheriff, was bound by the admission. Judgment was rendered, declaring the deed from Treadway to Dellinger fraudulent and void, as against Spanagel and Townsend; that the redemption from the sale under the Davis judgment was effected by Dellinger as successor in interest to Treadway, and was valid; and enjoining Ellis from executing a deed to Beay. The defendants, Beay and Ellis, appealed.</p>

Sutter County. The action was brought by Regli and Pleisch against the defendant, as Sheriff of Tuba county, to recover damages for the conversion of a number of cows, heifers and calves. On the sixth of May, 1872, Q-. W. Leet commenced an action against Antoine Gerig, for money due upon a promissory note. Gerig was then the tenant of Leet, occupying a ranch in Sutter county, and Pleisch worked for him. Gerig owned ana kept the cattle on the ranch.

<p>Notice oe Aeeeabance.—A notice, that the defendant appears in the action for the sole purpose of making a motion to quash the summons, is a sufficient appearance to entitle the defendant to be heard upon the motion.</p> <p>Dismissal oe Action.—When the complaint was filed and the summons issued in October, 1870, and the summons was served in January, 1873; Held, that a prima facie- case of lack of diligence in prosecuting the action existed, and that, in the absence of proof on the part of the plaintiff to excuse the negligence, the Court should dismiss the action.</p>

The defendants demurred to the complaint; the demurrer was overruled, and judgment was rendered for the plaintiff. The defendants appealed. The other facts are stated in the opinion.

<p>Appeal from the District Court, Third Judicial District, Alameda County.</p> <p>Ejectment to recover a tract of land containing one acre in Oakland township, Alameda County. The plaintiff’s title was a deed made by the tax collector of Alameda County, dated the tenth day of August, 1872, made on a sale of the demanded property for the delinquent State and county taxes for the fiscal year 1871-2. Caroline Schmidt owned the property, and the deed to her was of record. The defendant recovered judgment and the plaintiff appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Damages fob Dbivolotjs Appeal.-—'When an appeal is frivolous, and taken apparently for delay, the Court will impose damages on affirming the judgment.</p>

The action was replevin. There was no appearance at the trial on behalf of the defendant and the plaintiff obtained a judgment. Subsequently the defendant applied to have the judgment set aside upon the grounds mentioned by the Court. The application was denied, and the defendant appealed from the order denying it.

The appellant, claiming to be the widow of the decedent, and calling herself Tilly Beverson, objected to the allowance of the final accounts-of Christopher Beverson, the administrator, alleging, that… Held: that there was no marriage between the claimant and the decedent and dismissed the claim, and made an order prohibiting the claimant from interfering in the affairs of the estate. She appealed from the order.

The action was brought against W. H. Gill on a promissory note, and an attachment was levied upon his personal property. Subsequently, and before judgment, Gill died, and his administrator, the defendant Morgan, was substituted as defendant in the action.

Action to recover damages for a libel contained in an application addressed by the defendant to the Supreme Court.

On the tenth day of March, 1866, Jacob Kippel and Mary Ann Kippel were occupying a piece of land in the city of Sacramento, in the block bounded by M and N and Ninth and Tenth streets. This piece of land fronted eighty feet on Ninth street, and extended back one hundred and twenty feet towards Tenth street. The size of a lot, as laid down on the official map of Sacramento, was eighty feet front by one hundred and sixty feet deep.

Appear from the Probate Court of Solano County. This was a proceeding to compel the guardian of the estate of W. T. and G. P. Swift, minors, to account for his transactions, and to remove Mm from the office of guardian. It did not appear that the guardian had squandered the income of his wards, or that he was insolvent. After a hearing of the cause, the Court made an order removing the guardian, and he appealed. The other facts are stated by the Court.

<p>Appeal from the District Court, Fifth Judicial District, County of San Joaquin.</p> <p>Ejectment to recover the north-west quarter of Section twenty-one, T. P. 4 north, range 8 east, in the district of lands subject to sale at Stockton, California. The suit was commenced January 13, 1864. The history of this case will be found in the former reports, 24 Cal. 609; 27 Cal. 322 and 33 Cal. 75. Megerle settled on the land in 1850. It was not surveyed by the United States until May, 1855. Megerle filed his declaratory statement, as a pre-emptioner April 12, 1856. On the'fourteenth of May,' 1856, David S. Terry located State land warrants on the quarter section. On the first day of September, 1863, the United States issued a patent for the land to Megerle. On the eighth day of January, 1862, the State of California issued a patent for the land to Terry, as a part of the 500,000 acres granted to this State for school purposes. On the trial in the Court below, the plaintiff introduced his patent and rested. The defendant Ashe claimed under Terry, and the other defendants were his tenants. Terry contended that Megerle had lost his right of pre-emption by not availing himself of it within three months of the time the plat of the survey of the township was returned to the local land office. The stipulations mentioned in the opinion were offered in evidence by the plaintiff in rebuttal. The defendant objected to the notice published by the Kegister and Beceiver, because there was no authority in the land officers to publish the notice, and that the publication of the notice was unauthorized by law, and that the fact of the publication thereof did not tend to show that the plat had not been returned to and filed in the land ■ office as early as the fifth day of December, 1855, and did not tend to show at what time said plat was so returned to and filed in the said land office; and that matters appearing in said stipulation are irrelevant and inadmissible.</p> <p>The notice to pre-emptors was first published in February, 1856, but what day in February the stipulation does not state. From the fact that the jury found that the plat of survey was returned to the local land office on the fifteenth day of February, 1856, it would appear that the notice to pre-emptors was taken into consideration in fixing the date. The plaintiff recovered judgment, and the defendants appealed. The other facts are stated in the opinion.</p>

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

Ejectment brought in the county of El Dorado to recover a mining claim. The plaintiffs served notice on the defendant, at El Dorado County, that they would, on the 9th day of May, 1871, take the deposition of G. M. Adams, before E. Y. Joice,. a Notary Public, at his office in San Francisco.

<p>State Boabd fob the Equalization of Taxes.—Section 3,666 of the Eolitioal Code is unconstitutional, in so far as it delegates to the State Board of Equalization the light to fix the rate of taxation, “ after allowing for delinquency in the collection of taxes,” because it is a delegation of legislative power to said Board.</p> <p>Idem.—The Legislature cannot confer on a State Board for the equalization of taxes, appointed by the Governor, the power to add to or deduct from the assessed value of property, as fixed by the Assessors elected by the people, for such power would in effect constitute such Board of Assessors.</p> <p>Enjoining Collection ox Tax.—An injunction will not be granted to restrain the collection of a tax by a sale of the property of the tax-payer. Before a Court of Equity will lend its aid in such case it must be made to appear that, after a sale, a deed is about to be executed which will .cast a cloud on the title.</p>