Volume 48 — California Reports

The Municipal Criminal Court, in which the petitioner was convicted, is a Criminal Court in the City and County of San Francisco. The defendant was tried and convicted in November, 1871, and brought before Mr. Justice Wallace . in the same month, to be discharged on bail, pending an appeal to the Supreme Court. [The case was not reported, and my attention having been called to it by the Chief Justice, I give it a place here.—Repostes.]

The City of San Francisco, as successor of the Pueblo . of that name, asserted title to four square leagues of land, and presented its claim to the Board of Land Commissioners created by the Act of Congress of March 3d, 1851. The Board confirmed the claim to a portion of the land, and rejected it for the balance. The city appealed to the District Court, from which Court the case was transferred to the Circuit Court.

The defendant appealed from the judgment and from an order denying a new trial. The other facts are stated in the opinion.

Action to recover the possession of the W. £ of the N.W. £ of Sec. 13, Tp. 6 N., R. 7 W. Mount Diablo base and meridian, commenced May 2,1870. The plaintiff rested his right to recover on his certificate of purchase, issued by the Register of the State Land Office, on the 15th of April, 1870, on the location made by the plaintiff on the 9th day of December, 1865.

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

<p>Application to the Supreme Court for writ of mandate.</p> <p>The facts are stated in the opinion-</p>

The defendant was indicted jointly with Ah Wee and Ah Hoy, for the murder of Ah Quong. The indictment charged the three as principals. The trial was called in October, 1873, and the defendant moved for a continuance on the ground of the absence of T. W. Gilmer, a witness who had testified at a former trial. The affidavit for a continuance did not state what Gilmer could testify to, but referred to the reporter’s notes of the testimony given by Gilmer on the former trial.

The plaintiff was the owner of a railroad, extending from the city of San José, county of Santa Clara, through the counties . of Alameda, San Joaquin, Sacramento, Placer and Nevada, to the eastern boundary of the State, and thence to Ogden, in the Territory of Utah. Eight and ^ miles of its road was in the county of Santa Clara, which was assessed for the fiscal year 1872-3 at $7,000 per mile.

The plaintiff was a corporation, organized for the purpose of supplying Napa City and the inhabitants thereof, and the inhabitants of other towns and places in Napa County, with pure fresh water; and, on the 27th day of October, 1871, filed a petition with the County Judge of Napa County, praying for the condemnation of the waters of Tulucay, or Spencer Creek, and the right of way over the lands of the defendants for conducting the water.

On the 5th day of February, 1858, the District Court of the United States for the Southern District of California, entered a decree confirming to Thomas O. Larkin a tract of land in Monterey County, known as the Bancho Cienga del Gabilan, containing eleven square leagues. The grant was alleged to have been made to José Antonio Charvis, in Monterey, on the 26th day of October, 1843, by Manuel Micheltoreno, then Governor of California, and Charvis had sold to Larkin.

<p>Assault with Intent to Commit Robbebx.—When it appears on the trial that a defendant charged with an assault with intent to commit robbery, presented to a traveler on the highway a cocked pistol, and said, “stop, or I will shoot you,” it is the province of the jury to determine from the acts of the defendant, and from all the surrounding circumstances, whether the defendant intended to commit robbery, or was actuated by some other purpose.</p> <p>Eeeoe Aetebwabds Cubed.—Error of the Court in refusing, in a criminal-case, to allow the defendant to ask a witness a question, is cured by afterwards permitting the witness to answer the same question.</p>

<p>Paetx to an Appeal fbom Obdeb of Pbobate Coubt.—On au appeal from an order of the Probate Court removing a guardian of an estate, and appointing another guardian in his place, taken by the guardian removed, the newly appointed guardian is a necessary party.</p> <p>Tbanscbipt on Appeal.—A transcript on appeal must be agreed to by all the parties or their counsel, or certified to by the clerk. A stipulation agreeing to the transcript, signed by the-counsel of all the parties except one, is not sufficient.</p>

The defendant was indicted for the crime of murder, in the killing of Alexander Black, on the 2d day of November, 1872. The indictment was found by the Grand Jury on the 19th day of March, 1873. The term of the County Court at which it was found, commenced on the second Monday in December, 1872. The Code of Civil Procedure was approved on the 11th day of March, 1872, and went into effect on the 1st day of January, 1873.

<p>Appeal from the District Court, First Judicial District, County of Santa Barbara.</p> <p>The defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

The case was thus: Tilden & Breed were brokers in San Francisco, and engaged in buying mining stocks on commission for others, and when they loaned a portion of the money to make a purchase, were in the habit of keeping the stock purchased as their security. Joseph L. King employed them as his brokers, to buy mining stocks, and entered into a contract with them, which is contained in the following letter: “ San Francisco, March 21, 1868.

Vicente Guerrero, on the 25th day of March, 1861,- was the owner of- a lot of land in the city of Los Angeles, and, on that day borrowed of the defendant fourteen hundred dollars, and to secure the same, gave the defendant a mortgage on the lot, and gave his promissory note, bearing interest at two per cent, per month, payable on or before the 1st day of November following.

<p>Possession op Stolen Peopeety.—In order that the possession of stolen property may be made available toward a conviction, other circumstances indicative of guilt must be shown.</p> <p>Eebob against Appellant.—Error, in excluding evidence against a defendant offered by the people, cannot betaken advantage of by counsel for the people, upon an appeal by the defendant.</p>

<p>Duty of Officers who advertise for Bids.—When a County Treasurer is authorized by statute to advertise for bids for the surrender of County bonds, in order that he may redeem them with money in the treasury, he has no authority, in the advertisement, to insert a condition upon which bids will be received, which is not to be implied from the duty to advertise, and which is not necessary to the exercise of his authority; such as that the bonds must accompany the bid; and it is his duty to accept the most favorable bid, even if not accompanied by the bonds.</p>

<p>Wateb ComnssiouBBS.—The Board of Water Commissioners for San Bernardino County, created under the Act of February 18, 1884, are merely agents selected for the public convenience, to regulate the distribution of water according to the rights of the parties in interest; but their action in distributing water, does not prevent the parties from applying to the Court for, nor the Court from granting relief, if to any one is distributed more than his just proportion of the water.</p>

Action to recover a piano and damages for its detention, or the value thereof if a return could not be had. The piano was alleged by the complaint to be worth five hundred and fifty-five dollars, and the damages were laid at one thousand dollars. The attorneys stipulated in open Court that the jury, if they found for the plaintiff, might assess the damages in currency.

Ejectment to recover a tract of land at the intersection of Mission and Mary streets, being a part of 100-vara lot, 202. The defendants were severally in possession of separate parcels of the demanded premises. The premises were granted by J. W. Geary, Alcalde of San Francisco, to J..

Action to recover from the defendant three thousand nine hundred and eighty-seven dollars, being the State and County Tax levied for the fiscal year 1871, and special school taxes in several school districts in the County of Nevada, in which the property of the defendant was situated. The real estate was fully described in the complaint, and the Court was asked to enforce a lien on it for the tax.

The following is a copy of the draft sued on: “ $622 00. Mr. Leopold Kahn, No. 821, Mission street, “San Francisco: Please pay to Mr. Langenbcrger, Bloch- “ man & Co., or order, the sum of six hundred and twenty- “ two dollars, on March 15th, 1872, without grace, and “ charge the same to account of “A. Kbcegeb. “Anaheim, Feb’y 23d, 1872.” The plaintiffs were doing business under the firm name of Langenberger, Blochman & Go.

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

<p>Complaint in Tboveb.—Under our practice, in an action for taking and carrying away goods, an allegation in the complaint, that the defendant took and carried away the goods, is equivalent to an averment that the defendant converted the goods to his own use.</p> <p>Judgment rsr Tboveb.—If, in an action of trover, the complaint, in addition to alleging a taking and carrying away of the goods, avers a detention of the same, and it appears on the trial that the defendant had sold the goods before the suit was brought, and the plaintiff recovers judgment only for the value of the goods, the defendant is not injured by the allegation of a detention.</p> <p>Evidence on a' Defective Answee must be Objected to.—If, in an action against a Sheriff for damages for taking goods, by virtue of an attachment, from a vendor of the defendant in the attachment suit, the Sheriff relies on fraud in the sale, but in his answer does not distinctly aver the facts constituting the fraud, and the answer is not demurred to, nor is evidence of the fraud objected to on the trial, a judgment for the plaintiff will not be disturbed, for it is too late to raise an objection to the evidence for the first time in the Supreme Court.</p> <p>Judgment not Bevebsed fob Ebbob which does no Haem.—When the' Court fails to find on a material issue, and the findings are excepted to for that reason, the judgment will not be reversed if the finding must have been adverse to the appellant.</p> <p>Declabations of Yendob as Evidence.—The declarations of a vendor, made after a sale and. delivery of personal property, are not admissible in evidence to show fraud in tlje sale.</p> <p>Ccubt may Disbegabd Illegal Evidence Beceiyed.—If illegal evidence is admitted on the trial, the Court does not err in refusing to find a fact proved by such evidence.</p> <p>Declabations of Agent as Evidence.—The declarations of an agent of a vendee whose agency is limited to the care and custody of goods after they have passed to the possession of the vendee, are not admissible in evidence to show that the purchase by the vendee was fraudulent.</p>

• The plaintiff entered one hundred and sixty acres of land as a preemptioner, and the thirty acres was a part of it. The complaint alleged that the fence was worth three hundred and sixty dollars, and the building forty dollars. The other facts are stated in the opinion.

The will was admitted to probate on the 11th day of August, 1868. On the,, 26th day of October following, the executors returned to the Court, an inventory of the estate of the deceased, in which the real estate was appraised at nineteen thousand seven hundred and fifty dollars, and the personal property at eleven thousand four hundred and seventy-six dollars.

The plaintiff brought this action for damages, alleging that he and Hewitt took a herd of sheep from the defendant, under a contract of which the following is a copy:' “This agreement made at Santa Barbara, California, between John C. Fairbanks of the first part, and James A. Blood and Bosewell B. Hewitt of the second part, witnesseth: That the said party of the first part agrees to furnish to the said' parties of the second part twenty-seven hundred American ewes, to be…

On the 23d of November, 1869, Rachel B. Vamcleve, who was the owner of a lot on Post street, in San Francisco, entered into a contract with George Coffran, Joseph Ñongues and J. W. Wilbur, by which they agreed to furnish the materials and erect for her, on the lot, a building, and she was to pay them the sum of thirteen thousand nine hundred dollars.

<p>Appeal from the District Court, Sixth Judicial District, County of Sacramento.</p> <p>Ejectment to recover a tract of land bounded as follows: “Commencing at a point on the easterly bank of the Sacramento river, at the northwest corner of a tract of land conveyed by John A. Sutter, Jr. to George McKinstry, Jr., John A. Sutter, Theodore Cordua, and John Bid well, by deed bearing date April 4th, 1849, and known as the ‘ McKinstry Tract,1 and running thence easterly along the northerly line of said ‘ McKinstry Tract’ one mile; thence northerly one half mile; thence westerly and parallel with the north line of said ‘McKinstry Tract’ to the Sacramento river; thence down stream and along the easterly bank of said Sacramento river to the place of beginning.” The complaint alleged an ouster on or about the 13th day of February, 1868. The answers contained a general denial.</p> <p>The premises in controversy were a portion of the grant made by the Mexican nation to John A. Sutter, on the 18th of June, 1841, and patented by the United States to Sutter on the 20th of June, 1866. The plaintiff proved that said Sutter conveyed the demanded premises to John A. Sutter, Jr., on the 14th of October, 1848. The plaintiff offered in evidence a deed from John A. Sutter, Jr., to George Mc-Dougal, dated June 19th, 1849. The defendant objected that this deed did not include the land in controversy. The Court asked the plaintiff’s counsel if he expected to prove that the land described in the deed was within the limits of the patent to Sutter. The counsel answered yes; whereupon the Court overruled ^the objection. This deed conveyed the following tract of land:</p> <p>“A piece of land situate on the south-easterly side of the Sacramento river, in Upper California, described as follows: Commencing at a point above and adjoining the tract of land held by McKinstry & Co., situate and adjoining the present town site of Sutterville, running parallel and back from the river of said tract of one half mile in breadth of McKinstry & Co. the distance of one mile; thence running in a straight line in a north-easterly direction one half mile; thence one mile towards the river Sacramento; thence one half mile to the point intersecting the said land held by McKinstry & Co., the whole to include one mile in length and one half mile in breadth, immediately adjoining and running with parallel lines with the half mile held by McKinstry & Co.; also all that piece or parcel of land lying between the last named line above described and the Sacramento river.”</p> <p>The plaintiff then offered in evidence a deed from Mc-Dougal to Jonathan D. Stevenson and W. C. Parker, which was objected to for the same reason, but received by the Court, and a deed from Parker to Hart also objected to for the same reason, and received. The plaintiff offered in evidence a certified copy of a decree made by the District Court of the Fourth Judicial District, in the suit of J. D. Stevenson v. Mary Hart, Executrix of the Will of Wm. Hart, deceased, rendered August 11, 1860. This decree required the defendant, as executrix, to make and deliver to the plaintiff a deed of one undivided half of the premises in controversy. No other papers in the action were offered in evidence. The plaintiff then offered a deed from Mary Hart, as required by the decree. The plaintiff, by several mesne conveyances, deraigned title from Stevenson.</p> <p>The plaintiff, also, for the purpose of showing the boundary of the McDougal tract, offered in evidence a deed from John A. Sutter to L. W. Hastings, dated November 30, 1849. The defendant’s attorney objected to it as irrelevant. The Court overruled the objection.</p> <p>The plaintiff, also, for the purpose of showing the boundary of the McDougal tract, offered in evidence two deeds from John A. Sutter, Jr., to John A. Sutter, Sr., Theo. Cordua, George McKinstry, Jr., and John Bidwell. The first was dated April 4th, 1849, and the second was made as explanatory of the first, and was dated July 1st, 1850. The defendant objected to these deeds as irrelevant, but the Court overruled the objection. The first of said deeds conveyed the following:</p> <p>“All that piece or parcel of land, situated, being, and lying in the Territory of California, bounded and described as follows, to wit: commencing at the northwest corner of the town of Sutterville, adjoining the part of said town now belonging to L. W. Hastings, Esq. ; thence running up Sacramento river one half' mile—said line to commence at low water-mark; thence running back on a line running at right angles with the aforesaid line of Hastings’ to the distance of one mile; thence running southerly on a line parallel with the river bank one half of a mile; thence running in a direct line to the place of beginning."</p> <p>The second deed was as follows:</p> <p>“This indenture, made the 1st day of July, in the year of our Lord one thousand eight hundred and fifty, between John A. Sutter, of Hock Farm, in the county of Sutter, State of California, of the first part, and John A. Sutter, Theo. Cordua, Geo. McKinstry, Jr., and John Bidwell, of the second part, witnesseth: that, whereas, the said John A. Sutter, by his certain deed, bearing date the fourth day of April, A. D. one thousand eight hundred and forty-nine, for a valuable consideration, conveyed a certain tract of land to the said parties of the second part, which tract or parcel of land is described in said deed as follows, to wit: commencing at the northwest corner of the town of Sutterville, adjoining the part of said town now belonging to L. W. Hastings; thence running up the Sacramento river one half a mile—said line to commence at low water-mark; thence running back on a line running at right angles with the aforesaid line of Hastings to the distance of one mile; thence running southerly on a line parallel with the river bank one half a mile; thence running in a direct line to the place of beginning. And, whereas, the said deed does not fully and clearly describe the boundaries of the land intended to be conveyed thereby; therefore, know all men by these presents, that it was my full intent _ and meaning to convey by the aforesaid deed, bearing date the said fourth day of April, in the year of our Lord one thousand eight hundred and forty-nine, all the land therein described, together with all the land lying between the north and the south boundaries of said tract, and a line extending northward in continuation of Hastings’, or the eastern boundary line of the town of Sutter and the Sacramento river. And these presents are intended to be explanatory of my full intent, purpose, and meaning as intended at the date thereof to be expressed in the aforesaid deed, bearing date on the aforesaid fourth day of April, in the year of our Lord one thousand eight hundred and forty-nine; and this indenture is hereby made a part and parcel of the aforesaid deed, so executed as aforesaid, on the said fourth day of April, A. d. eighteen hundred and forty-nine.”</p> <p>After the record evidence was completed, the plaintiff introduced parol evidence, to show the location of the ground in controversy.</p> <p>The trial was concluded, and the Court took the case under advisement on the 21st day of November, 1870. On the 8th day of August, 1871, the plaintiff» gave notice of a motion to set aside the order of submission, and for leave tó introduce further evidence. The motion was made and granted on the 1st day of September, 1871,' and the plaintiff introduced additional testimony.</p> <p>The plaintiff recovered 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>

Judicial District, City and County of San Francisco. The plaintiffs, Lamora Silvey, Christopher Silvey and - Lilly Allison, were the infant children of Anthony Silvey, whose life was insured. The other facts are stated in the opinion.

<p>Appeal from the County Court of Tehama County.</p> <p>The defendant and William Fugit and Z. Calmeye were charged in one count of the indictment with the crime of highway robbery, and in. another count they were charged as accessories. He demurred to the indictment, on the ground that it charged the same offense in more than one form. The demurrer was overruled.</p> <p>On the 26th day of September, 1871, four men armed with rifles, stopped the stage which carried the express, at Cottonwood Hill, in the county of Shasta, and robbed Wells, Fargo & Co.’s treasure-boxes.</p> <p>The testimony for the prosecution tended to show that there were five men concerned in the robbery, whose names were, Wm. Fugit, Z. Calmeye, John Grant, Wm. Cullen, and the defendant Shepardson. That the five arranged the plan to rob Wells, Fargo' & Co.’s treasure-box on the stage, but that Shepardson, the defendant here, was in camp some miles distant when the robbery was committed, and waited there until the other four had committed the robbery, when they joined him, and the money obtained by the robbery, about two hundred and eighty dollars, was equally divided, Shepardson receiving his share. The Court gave, among other charges to the jury, the following: “An accessory is he who stands by and aids, abets or assists, or who, not being present aiding, abetting or assisting, hath advised and encouraged the perpetration of a crime. He or she who thus aids, abets or assists, advises or encourages, shall be deemed and considered as principal, and punished accordingly. And the inquiry is, whether the proof that the prisoner was accessory to the crime before the fact is admissible under the indictment. If you believe from the circumstances and facts proved that the' defendant assisted in planning the robbery, or received a portion of the money taken at the time, with the knowledge of how it was obtained, he is an accessory, and you should find him guilty as charged.”</p> <p>The defendant was convicted, and appealed.</p> <p>' The other facts are stated in the opinion.</p>

<p>Appeal from the Probate Court of the City and County of San Francisco.</p> <p>Upon the application of J. P. Dinsmore, as assignee of a claim of two hundred and eighty-seven dollars for medical services, held by one Fraser against the estate of the deceased, and which had been allowed, the executors of the estate were directed to show cause why they should not pay the claim out of certain money in their hands, the proceeds of the sale of a specific bequest (household furniture), made by the deceased to one A. J. Quick. After a hearing of the cause, at which the facts stated in the opinion were elicited—and also the facts that the whole amount of the expenses of the sickness of the deceased as allowed, including Fraser’s claim, was one thousand one hundred and seven dollars and thirty-three cents, none of which had been paid; that the funeral expenses had been paid; that the time for the presentation of claims had expired; that there was no property in the hands of the executors for the</p> <p>payment of the expenses aforesaid, except the legacies and devises, and that the bequest to Quick had been sold by his consent for eight hundred and ninety dollars and thirty-seven cents, the money being in the hands of the executors—the Court ordered that the eight hundred and ninety dollars and thirty-seven cents be applied to the payment of a dividend, in proportion to his claim, to each creditor, on account of the last sickness of the deceased, with interest on each claim from the date of its approval.</p> <p>The executors appealed.</p>

Tenth Judicial District^ County of Colusa. The contract-spoken of in the opinion was a parol one. The defendant recovered judgment, and the plaintiff appealed. The other facts are stated in the opinion.

<p>Obdeb op Coubt.—If an order which is required to be made by the Court, is entitled and filed in the Court, and bears the seal of the Court, it will not be considered as an order of the Judge at Chambers, because the words “it appearing to me," are used in it, and the testatum clause says “in witness whereof, I have hereunto set my hand.”</p> <p>Oath Administebed by the Coubt.—If the statute requires an oath to be administered by the Court or Judge, and it is administered by the Clerk in open Court, under the direction of the Court, and tested by the Clerk, it is administered by the Court in the sense of the statute.</p> <p>Obdeb Making a Sole Teadee.—A certified copy of the order declaring a married woman a sole trader, is admisssible in evidence, even if, in the order, the Judge uses the first person, as though it was made by him</p> <p>instead of the pourt,,¡>nd the .path .attached thereto appears upon its face to have been administered by the Clerk.</p>

<p>Assignee in Insolvency.—The assignee in insolvency of a person who applies for the benefit of the Act of May 4, 1852, “ for the relief of insolvent debtors, and protection of creditors,” becomes vested with the title to all the insolvent’s property, from and after the surrender, even if it is not mentioned in the schedule, and the 'assignee does not know of its existence until after the discharge.</p> <p>Effect of Nonsuit where there is an Intervention.—If there is an intervener in an action who claims an interest in the property in dispute, adverse to both the plaintiff and defendant, and the plaintiff answers the . intervention, raising material issues, his right to be heard on those issues is not affected by a nonsuit granted on the motion of the defend" ants.</p> <p>Nonsuit of Plaintiff does not Dismiss Intervention.—If there is an intervenor who claims an interest in the matter in dispute, adverse to both plaintiff and defendant, and they answer the intervention raising material issues, and, on motion of the defendant, the Court nonsuits the plaintiff, the action is still pending as to the issues raised on the inter- • vention, and the Court should proceed and try them. The intervention should not be dismissed on the ground that there is no action pending.</p> <p>Motion to Dismiss an Intervention.—A motion to dismiss an intervention, like a motion for a nonsuit, should point the attention of the Court and of the opposite counsel to the precise ground on which it is made.</p>

Action to recover the possession of two mules and their harness, and two lumber wagons. The plaintiff was, and for several months prior to -the month of October, 1871, had been the owner of certain lands in the county of Santa Cruz, and extensively engaged in the preparation and transportation of oak bark for the purpose of tanning.

<p>Liability of City fob Negligence of a Conteactob on a Steeet.—When the Act incorporating a city requires sewers to be constructed under contracts to be let by the city, the contractor, in performing the work, is not the agent or servant of the city; and any negligence in performing the work is his negligence, and the city is not liable fór injuries sustained through his negligence.</p>

On the 16th day of March, 1867, Louis Bobidoex, the deceased, made the power of attorney mentioned in the opinion, and he departed this life on the 24th day of September, 1868. On the 18th day of September, 1868, Bobidoex, and his wife, the plaintiff here, executed to the defendant a deed of one undivided one fourth of the Bancho Gurupa, in consideration of his services as attorney in fact already performed, and to be continued as long as Bobidoex should live.

<p>Complaint against City foe Negligence of Street Contractos.—"When the charter of a city requires work in the improvement- of streets to be done by contract, or by the owners of adjacent lots, and an action is 'brought against the city for an injury sustained by negligence in the work on such improvements, an averment in the complaint, that the work was being done at the instance of the city, will be construed as alleging that the work was being done as the charter dirgcted.</p> <p>Liability of City fob Damages.—When the charter of a city requires work in improving streets to be done by contract, or by the owners of adjacent lots, the city is not liable for damages sustained by reason of the negligence of the contractor, or owner of adjacent lots, in performing such work.</p>

<p>On the 31st of October, 1867, the defendant insured the life of Benjamin C. Howard, for the term of five years, and for the sum of five thousand dollars. The following are the material parts of the policy which have reference to the question here involved:</p> <p>. “This policy witnesseth: That the Continental Life Insurance Company, in consideration of the representations made to them in the application for this policy, and of the sum of two hundred and sixty-seven dollars and twenty-one cents, to them in hand paid by Benjamin C. Howard, and of the sum of two hundred and sixty-seven dollars and twenty-one cents, to be paid on or before the last day of February and June next, and of all loans and interest made upon this policy at any time, and of the annual premium of twelve hundred and two dollars and forty-five cents, to be paid on or before the thirty-first day of October in every year, during the continuance of this policy, or within thirty days after the several payments as above shall be due and payable (or with consent of the Company, half or quarter, or thrice yearly in advance, .with interest), one third of which may be indorsed as a loan; do assure the life of Benjamin C. Howard, of San Francisco, in the County of San Francisco, State of California, for the sole use of Benjamin C. Howard, in the amount of five thousand dollars, for the term of five years, from the date of this policy, or until his decease, or, in case of his death, before that time; and the said Company do hereby warrant and agree to and with the said assured, well and truly to pay, or cause- to be paid, the said sum insured to the said assured, within ninety days after the said Benjamin C. Howard shall have been insured for five years, as'aforesaid; or, in case he shall die before that time, then to the legal representatives of the said assured, within ninety days after due notice and satisfactory evidence of his death during the continuance of this policy, and proof of the just claims of the assured under the same; any balance of the year’s premium, (when not all paid at the commencement of the year,) or any indebtedness to the Company, on account of this policy, being first deducted therefrom.”</p> <p>The assured elected, with the consent of the company, to make thrice yearly payments, and, on the 31st day of Octoher, 1869, paid one third of the yearly premium, but failed to make the payment due on the last day of February, 1870. On the 21st day of April, 1870, the sum due on the last day of the February previous was tendered by Howard, but the Company declined to receive it. On the 9tli day of October, 1869, the assured assigned the policy to the plaintiff. The assured died on the 6th day of May, 1870, and this action was brought to recover the sum insured by the policy.</p> <p>The defense set up by the company was that, before the death of the assured, to wit: On the last day of February, 1870, there became due and payable as premium on the policy, the sum of two hundred and sixty-seven dollars and twenty-one cents, which had not been paid or tendered on said last day of February, or within thirty days thereafter, whereby the policy became null and void.</p> <p>The Court below instructed the jury that, by a proper construction of the policy, if the assured elected, with the consent of the company, to make half yearly, or thrice yearly payments, that then, upon making the first payment of any year, a credit was extended to him for the other payments of that year, until the end of the year; and that if he died during the year, the company were entitled to deduct from the amount insured the unpaid payments pf the year. The jury, under the instructions of the Court, found a verdict for the plaintiff.</p> <p>The defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

The action was brought upon two bonds of the defendant, J. N. Powell, as executor of the estate of G. W. Powell, deceased, against him as principal, and his co-defendants as sureties. One of the bonds was given when the letters testamentary were issued to him, and Dale and Gus-haw were sureties on this, and the other was given subsequently, pursuant to an order to sell certain real estate; and defendants Nason, Laugenor and Boberts were sureties on this.

The defendant was indicted jointly with Ah Wee and Ah Moy, for having murdered Ah Quong, at the city of Sacramento, on the 1st day of March, 1873. Ah Quong was shot and also injured with a hatchet, and was immediately carried into a room. Ah Quong and Ah Wee wore Chinamen. After Ah Quong had been carried into the room, and when he was at the point of death, several white persons came into the room, and several Chinamen, among whom was Ah Wee.

Ejectment to recover a tract of land in the county of Sacramento, described as “ commencing on the east bank of the Sacramento river, where Main street, in the town of Sutterville, would strike said bank, being the southwest corner of a tract of land conveyed by John A. Sutter to L. W. Hastings; running thence easterly along said south line of said Hastings’ tract one mile; thence at right angles southerly one half mile; thence at right angles westerly to the Sacramento…

<p>Abbest of Judgment in Cbiminai, Case.—If a committing magistrate, before whom an examination is about to he held, with the assent and concurrence of the district attorney, promises a person under arrest, that, if he will become a witness for the people, against other persons then under arrest for the same offense, he shall be acquitted, and the defendant, induced by such promise, testifies and implicates himself, and is afterwards indicted, these facts do not furnish ground for a motion in arrest of a judgment of conviction.</p> <p>Idem.—The only grounds on which a motion in arrest of judgment in a criminal case can be based, are those mentioned in the statute.</p> <p>Dischabge of Pbisoneb when on Tbiai.—A promise of immunity from punishment, made by a prosecuting attorney, or a committing magistrate, to a person charged with a crime, if he will become a witness for the people against others charged with the same crime, furnishes no ground for discharging the prisoner from prosecution, when on trial. Idem.—The discharge of a prisoner, that he may be a witness against others, must be made at the trial, before the defendant has gone into his defense, by the Court of its own motion, or upon the application of the district attorney.</p> <p>Idem.—A defendant, in a criminal case, cannot be discharged from the indictment, without a trial, except in the case provided for by the statute.</p>

The defendant was indicted for stealing a mare at the County of Nevada, on the 20th day of November, 1872. The trial was had at the August term, 1873. A venire was issued to the Sheriff to summon a panel of twenty-four jurors. When the case was called for trial, the defendant challenged the panel, and based his challenge on an affidavit filed.

The charging part of the indictment was as follows: “The said William O’Neil, on the 9th day of April, a. d. 1873, and previous to the time of finding this indictment, on the point west of Crescent City,1 did unlawfully and feloniously assault one Hannah Dunlay, with intent to outrage her person, by throwing her (the said Hannah Dun-lay) on her back, and attempting to have sexual intercourse with her; all of which is contrary,” etc. The defendant consented to be tried by a…

John F. Stayton, W. H. Devries and John F. Smith gave their joint and several promissory note to W. M. Ryer for the sum of forty-six hundred dollars, payable on the 22d day of October, 1862. As between the makers of the note, Stayton was to. pay one half of it; and, on the 7th day of January, 1863, the note had been placed by Ryer in the hands of the plaintiff, who was an attorney, for collection.

Third Judicial District, City and County of San Francisco. The complaint alleged that, on the 27th of November, 1858, Francisco Hurtado and Maria Dolores Hurtado were husband and wife, and that they borrowed from John D. Shafter four thousand dollars, and, to secure the payment of the same, gave him a mortgage on a tract of land in Marin County, .which was the separate property of said Maria, and that, on the 20th of August, 1869, they borrowed from him one thousand dollars,…

The case was thus: Patrick Collins, the defendant here, Peter Stanley, Robert Smith and James McGovern were charged in the indictment with having, on the 16th day of April, 1873, committed the crime of robbery, by taking legal tender notes from the person of Charles Simonson, at the city and county of San Francisco.

By an Act of the Legislature of this State, approved March 18, 1874, it was provided that, whenever one fourth of the legal voters of any township, incorporated city, or town, should petition the Board of Supervisors of the county in which the township, incorporated city or town was situated, to call a special election to vote upon the question of “liquor license,” or “no liquor license,” the Board of Supervisors must, within one month after the petition was filed, call a…

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

The-defendant was indicted on the 10th day of February, 1874, for murder, alleged to have been committed by killing _Catherine Erni, at the City and County of San Francisco, on the 17th day of September, 1873. The defendant, when arraigned, pleaded a former acquittal, former jeopardy, and not guilty.

The murder was alleged to have been committed in the City and County of San Francisco, on the 28th day of May, 1873. The deceased was killed on Clay street, near the corner of Pike. No witness testified in words that the place of the killing was in the City and County of San Francisco. Several witnesses were sworn for the prosecution.

August 5, 1834, Josepha Vallejo petitioned Governor Figueroa for a grant of a rancho called “ Chualar,” within the boundaries of the present county of Monterey. Accompanying the petition was a diseño, and a reference was made to the ayuntamiento of Monterey. A favorable import was made; the priests of the Mission of San Carlos consented to the grant.

Ejectment to recover a- part of block sixty-three, in the City and County of San Francisco. The defendant in the course of the trial, offered in evidence the following power of attorney: “Know all men by these presents, that I, Loren Davis, of the city of San Francisco, State of California, have made, •constituted, appointed, and by these presents do make, constitute and. appoint Nathaniel 0.

County of Santa Clara. The answer of the defendant was claimed to be defective,, in not stating fully the existence of all the facts which entitled the defendant to preempt under the laws of the= United States. The Court below adjudged that the plaintiff should convey the land to the defendant upon being paid what it cost him, and interest thereon. The plaintiff appealed. The other facts are stated in the opinion.

The evidence on the trial was confined to the circumstances constituting the assault and battery. No evidence was offered tending to show that the. plaintiff had paid or become liable to pay any money for medical attendance, nursing, board, or for the prosecution of the action. The plaintiff recovered judgment for eight hundred dollars and costs, and the defendant appealed. The other facts are stated in the opinion.

<p>Deed to Mabbied Woman nob Consedebation.—A deed to a wife, made by a person other than the husband, for a valid consideration paid to the grantor by the husband, which conveys the property to the grantee “as her separate property, and to and for her sole and separate use,” constitutes the premises, in law, the separate estate of the wife, and the husband cannot maintain ejectment for their recovery.</p> <p>Impeovements by Husband on Wife’s Peopebty.—If the wife has the legal title as of her seperate estate, the building of fences and other acts of possession done by her husband will be considered to have been done by him as her agent, for her benefit, and in subordination to her title.</p> <p>Outside Lands in San Peanoisco.—A conveyance made by the city of San Francisco to one in possession of outside lands merely has the effect to aid and assure the title, already held.</p> <p>Legal Effect of Deed in Ejectment.—If the husband brings ejectment, and relies on a deed to his wife malting the demanded premises her separate property, as a muniment of title,, and no equitable defense is set up, neither party can make enquiry for the purpose of controlling or defeating the legal effect of the deed.</p>

Action of forcible entry and unlawful detainer, to recover a lot on the northwest corner of Broadway and Gough streets, in the City and County of San Francisco. The complaint averred that the plaintiff was in the peaceable possession of the lot on the 14th day of November, 1868, and that on said day, the defendants, with a strong hand and violence, entered.

<p>Non-joinder of Parties Defendant.—When there is anon-joinder of parties defendant, and the defect does not appear on the face of the complaint, the objection must be taken by answer or it is waived. It cannot be taken by a motion for a nonsuit. ■</p> <p>Oomedaint fob Work and Labor.—An allegation in a complaint, that the defendant was, on a day named, indebted to the plaintiff in a certain sum of money for woijk and labor before that time performed for him at his request, states of a cause of action.</p>

The plaintiff was the administrator with the will annexed of the estate of Jacob C. Beideman, deceased, and as such, sold at public auction the land belonging to the estate. At the sale, which took place on the 24th day of July, 1867, a tract of land on Polk street, San Francisco, was sold to the defendant for three thousand one hundred dollars, and he paid the required deposit of ten per cent. On the 7th day of August, 1867, the Probate Court confirmed the sale.

Action to enforce a mortgage given by the .defendant Donner to the plaintiff, on the 15th day of March, 1862, on an undivided five sixths of the fifty-vara lot No. 39, at the corner of Folsom and Second streets, San Francisco. Donner claimed the lot by a grant made to him by Hyde, Alcalde of San Francisco,on the 19th day of July, 1847, and had commenced an action against several persons who were in possession of it to recover possession.

The defendant was indicted for a crime alleged in the indictment to have been committed in the County of Mendocino. He was convicted, and appealed. The other facts are stated in the opinion.

<p>Sake of Land by Order of Probate Court.—When, a sale of the real estate, left by an intestate, is made by an administrator, and a person other than the purchaser afterwards offers to take the land at a price at .least ten per cent, greater than that bid, and the Probate Court for this reason refuses to confirm the sale, it may, in its discretion, either order a new sale or accept the bid of the person who thus offers an increased price.</p> <p>Idem.—When, in such case, the Court refuses to confirm a sale, it may continue the matter for further proceedings, and, at a subsequent term, either accept the bid of the person who offers an increased price, or order a new sale.</p> <p>Power of Pb'obate Court oyer its Orders. — When, in an order of the Court refusing to confirm a sale of land made by an administrator, because an offer is made of at least ten per cent, more, a clause is inadvertently included declaring the sale null and void, the Court may, at a subsequent term, accept the new bid.</p>

The case was thus: Maria Josefa Soto and Gil Cano intermarried in California sometime about 1840. Said Cano died about the month of December, 1844, leaving children by the marriage, Rafael Cano, Nicholas Cano, Luisa Cano, and Guadalupe Cano. Said Maria Josefa, in 1844, after the death of her first husband, intermarried with James Stokes, and there were born children of this marriage, James, Junior, Manuel, Domingo, Catherine, Josephine, William, Henry, Mary, Fanny and Luisa.

The Court below found that the parties were tenants in common, in the proportion of, plaintiff one third and defendant two thirds, and made an interlocutory decree for a partition. The defendant appealed. The other facts are stated in the opinion.

<p>Appeal from the District Court, Third Judicial District,</p> <p>County of Santa Clara.</p> <p>Ejectment to recover the land on the plaintiff’s side of the division fence, which the defendant claimed was included within the limits of the land measured to her by the Alcalde. 'The plaintiff recovered judgment and' the defendant appealed. *</p> <p>The other facts are stated in the opinion.</p>

The defendant Bee had been in the employ of the San Francisco and Humboldt Bay Eailroad Company, and sued them for his services. The ease went to the Supreme' Court, and is reported in the 46 Cal. p. —.

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>The complaint alleged that George Lumley, in his lifetime, borrowed two hundred dollars from the defendant, and gave him his note for it, and, to secure the note, gave the defendant an absolute deed of a lot in Ban Francisco. That Lumley, when the note fell due, tendered the money and a deed of reconveyance ready to -be executed, and demanded a reconveyance, and that the defendant refused the money and to reconvey. That since then the defendant had sold the lot to one Kerr, who bought in good faith and without notice. Damages were claimed in the sum of one thousand dollars. The Court below sustained a demurrer to the complaint and the plaintiff appealed.</p>

Ejectment to recover a lot in the town and County of Colusa. The plaintiff claimed under the Jimeno grant, and the defendants under the Coins grant. The general facts in relation to these conflicting grants are stated in the cases referred to in the opinion. The complaint averred the ouster to have taken place on the 2d day of February, 1870. The transcript does not show when the suit was commenced, but an amended complaint was filed December 7, 1870.

This action was brought to recover damages, sustained by the plaintiff, Hannah, by the loss of an arm, as stated in the opinion. In the complaint, the damages were laid at. twenty thousand dollars. There was no evidence of the expense of plaintiff’s illness, or as to the amount of time lost by her, or its value to her, or as to her capacity to earn money. The evidence showed that she was engaged in washing.

Action to recover the sum of one thousand six hundred and eighty-nine dollars and eighty-seven cents, for the tax of the year 1870. The District Attorney, in the complaint, first described the whole tract of land by metes and bounds, and then gave a particular description by metes and bounds of each excepted parcel, as given in the deeds conveying the same, referring to the page of the record of each deed.

<p>Appeal from the District Court, Second Judicial District, Tehama County.</p> <p>' Action to recover a tax.</p> <p>The following is the description contained in the assessment, of the land assessed :</p> <p>“ Fifteen thousand one hundred and eighty acres of land, commencing at Sacramento river at the mouth of Antelope Creek; thence following the middle of said river six hundred and thirty-two and forty-nine one-hundredths chains distant in a straight line from point; thence north forty-eight and a half east, four hundred and ninety-six chains; thence south forty-eight and a half east, six hundred and thirfytwo and four one-hundredths chains; thence south forty-eight and a half west, four hundred ■ and two chains to place of beginning; excepting the portion of said rancho herein-before conveyed by Job F. Dye to Copeland; and also nine hundred conveyed by the company to Sanborn and H. C,. Copeland—being nine hundred acres.”</p> <p>The complaint described the whole tract, and then contained a description of the several parcels averred to be excepted from the general tract. First, about eight thousand acres sold by Job F. Dye to F. W. Fratt and T. B. King. Second, one hundred and sixty acres sold to D. W. Crumley. Third, about five hundred and seventy-four acres sold, by said Dye to H. C. Copeland. Fourth, one hundred and sixty acres sold to W. H. Bahney. The complaint excepted three additional tracts by description, without, stating that they had been sold.</p> <p>The plaintiff recovered judgment for three thousand four' hundred and seventy-eight dollars and forty-four cents, and the defendants appealed from the judgment, and from an order denying a new trial.</p>

Ejectment to recover a lot in San Francisco. The original defendants were Francis Bornheimer and Catherine Bornheimer, his wife, Wm. Thompson and E. A. Lawrence.

The defendant was indicted for the crime of murder, alleged to have been committed at San Francisco, on the first day of November, 1873, by killing one Edward W. Allen. Allen kept a saloon, and a crowd of persons having collected there so as to obstruct his doorway, he went from his place behind the bar with a cane or stick to clear the passage-way. A difficulty took place, during which he was killed.

<p>Appeal from the District Court, Fourteenth Judicial District, County of Placer.</p> <p>*</p> <p>On the sixth day of March, 1870, the plaintiff brought suit against the three defendants on three promissory notes, two signed by defendant Griffin alone, and one signed by the three defendants. Griffin had given a mortgage to secure the notes. Summons was served on Griffin alone, and defendants McDonell and Moore did not appear. Judgment by default was rendered against Griffin, and the Sheriff sold the mortgaged property, and reported a deficiency of one thousand two hundred and ninety-four dollars and ten cents, which was docketed by the Clerk. On the 16th of December, 1872, the plaintiff procured a summons which was served on the defendants McDonell and Moore, requiring them to appear and show cause why they should not be bound by the judgment to the extent of the note which they had signed. On the trial, the only evidence introduced was the promissory motes, the judgment, the order of sale, Sheriff’s report, and docket entry of the unsatisfied balance. The Court entered judgment in favor of defendants Moore and McDonell, and the plaintiff appealed.</p>

The complaint was as follows: Christian F. A. Dambmann, plaintiff in this suit, assignee of the estate and effects of Oscar Beinstein and Simon Mamlock, bankrupts under the statute of the United States, complains of Patrick J. White and Henry Breslauer, defendants, and alleges against them as follows: Heretofore, to wit: On or about the thirty-first day of March, in the year eighteen hundred and sixty-nine, at the City and County of San Francisco, the plaintiff was possessed…

<p>Appeal from the District Court, Third Judicial District,</p> <p>City and County of San Francisco. John Gorman obtained a judgment in the Justice’s Court of the City and County of San Francisco, against Black and Durkin. Black appealed to the County Court, and Porter and others became his sureties. The County Court gave judgment against Black and Durkin. Porter, one of the ‘sureties, was sued on the appeal bond, by Parnell, the assignee of Gorman, and judgment rendered against him in the Justice’s Court, on the 7th day of December, 1870, for one hundred and forty-six dollars and forty-eight cents. On the 27th of December, 1870, Porter appealed, and defendants Hancock and Lyons became his sureties. On the 12th day of July, 1870, the County Court gave judgment against Porter for three hundred dollars and twenty-five cents including principal and costs. In the judgment was a clause directing that execution be stayed until the further order of the Court, and until an assignment of the judgment of Gorman against Black and Durkin, be made to Porter, their surety. In this State of the case, while the execution on Parnell’s judgment against Porter was stayed, he commenced a suit against Porter’s sureties on appeal, Hancock and Lyons, to recover his judgment against Porter, the three hundred dollars and twenty-five cents. The Court below gave the plaintiff judgment, and the defendants appealed.</p>

<p>Mobtgage on Public' Land.—If a person is residing on public land subject to preemption, and executes a mortgage thereon, and then sells the land to another, who tabes possession and afterward preempts the land arid obtains a title from the United States, the mortgage cannot be enforced against the title thus acquired from the United States, because the preemptor does not deraign his title from the United States through the person who executed the mortgage.</p>

The defendant was a corporation. The action was commenced in the county of Santa Clara. The defendant moved to change the venue to the City and County of San Francisco. The Court denied the motion, and the defendant appealed from the order. The other facts are stated in the opinion.

Action to recover seven hundred and ninety-five dollars, the value of goods sold. The complaint alleged that the goods were sold to the defendants at their special instance and request.

Judicial District, City and County of San Francisco. On the 15th day of November, 1865, the plaintiff obtained a judgment against the defendants in said Court, for five hundred and ninty-nine dollars and costs. On the 15th day of November, 1869, he commenced suit on the judgment by filing a complaint and procuring a summons to be issued.

The complaint was in the usual form, and averred the plaintiff’s ownership and seizin on the first day of January, 1872, and the ouster on the second day of January, 1872.

<p>Appeal from the District Court, Third Judicial District, County of Alameda.</p> <p>The complaint was as follows: “That heretofore, to wit: on the 7tli day of November, A. d. 1872, the plaintiff and defendant, at the city of Oakland, county of Alameda and State of California, entered into a certain contract in writing, which said contract reads in the words and figures following, to wit:</p> <p>“ Oakland, November 7th, 1872.</p> <p>“Mr. G. M. Fisher—Dear Sir: I am in receipt of your notice that Mr. Hoops has thrown up his contract with you to build your house in this city, upon which I am bondsman; and I will reply as follows, to wit:</p> <p>“The three days’ notice which you have given to proceed with said contract having gone by, without his so proceeding therewith, you are at liberty to complete the same, as cheaply as possible by sub-letting, open to competition, and as per the specifications, details, drawings, and plans upon which the contract with Mr. Hoops was based.</p> <p>“I am- willing, as bondsman, that you shall so go on, jointly with Doctor P. M. McLaren, my named agent for the purpose, and complete the said house as above on the following conditions:</p> <p>“First, we are to and do repudiate said contract and bond, (and all bills made thereunder) between you and said Hoops, together with all notices served concerning the completion of said house to this date, either- by you on me, or by me on you, or upon said Hoops by either of us, or upon either of us by Hoops, thus closing the former transactions in any way concerning said house entire to date, as between you and myself; and cancelling all claims that you have against me to date concerning said house, but not in any way to alter my rights against said Hoops, or yours against him in consequence of his failure to complete said house as per his contract. Also the architects on said house, to wit:</p> <p>“Messrs. Ball & Day shall have nothing further to do with the house in any way hereafter, and in case of any dispute between you and my named agent, as to the completion of said house, the matter shall be referred to Mr. Wolfe, an architect of Oakland, whose decision shall be final;"said house to be completed at my expense, and all bona fide valid bills against said house to date, made by said Hoops, and for which liens have been filed, or may hereafter be filed upon said house to be paid by me, (or litigated, as I may choose before paying them, should I deem them unjust) you paying one half the actual expenses of such litigation, and I the other. You also to pay over to me as I may require it from time to time, the full contract price that you were to pay to said Hoops to construct said house, together^ with the price paid by me for any and all extras that I may put upon said house; and also you are to pay to me, as I require it, one half the actual loss or difference between the actual cost of the entire erection of said house, and the said named contract price that you were to have paid said Hoops for the construction of the same.</p> <p>“It being of course understood and agreed by both you and me, that all money legally paid by you to date on said house to said Hoops by way of architect’s certificates, together with all bills actually paid by you on said house to date, and which bills were actually chargeable to said Hoops under his contract to construct said house, and for which acceptances valid liens may be filed against said house, together with all acceptances already made by you for work done or material furnished by said Hoops on said house, and which acceptances you are compelled to so pay by reason of such valid liens and for said house between this date and ten days after the completion of the same by me, shall all come out of and be deducted by you from the money hereinafter named to be paid by you to me.</p> <p>“ In short, I am to complete said house, and to pay the bills hereinbefore named to be paid by me, and to clear said house of all valid mechanics’ liens filed thereon for money due on its construction, either by litigation or otherwise, as I may choose to do, and you are to pay over to me all the moneys therefor hereinfore named to be paid to me as I may require it; and it is hereby agreed that you shall claim no damages against me for any actual time required to complete said house, or otherwise; and that should either party hereto violate this agreement in any way, he shall become at once due and owing the other party hereto the sum of one thousand dollars, United States gold coin, for liquidated damages, which sum may be collected by law by the other party from the party so violating the same, together with cost of collection and attorneys’ fees in the sum of one hundred and fifty dollars, United States gold coin; and said party so violating this agreement, does hereby waive all his rights to any and all defense at law against the other party in the enforcement of such liquidated damages, attorneys’ fees, and expense of collection.</p> <p>“ Signed and sealed on this the day and year first above named by me.</p> <p>“Jno. W. Peabson, “Galen M. Fishes.</p> <p>“And accepted by me on the face hereof in presence of.</p> <p>¥it. H. Paesons.”</p> <p>Anri plaintiff avers that he has in all respects performed all the conditions in said contract contained to be done or performed by him. That he paid to said defendant the whole of the balance of the contract price agreed by plaintiff to be paid to said Hoops for the erection of the building referred to in said contract herein set forth, to wit: the sum of two thousand four hundred dollars in gold coin; th'at on the completion of said building mentioned in the foregoing contract, and in the contract with said Hoops, plaintiff and defendant had an accounting together as to the amount of deficiency remaining after having applied all the money under the original contract with said Hoops, nbt paid out at the date of the agreement herein set forth. That a writing showing such deficiency and the amount and persons to whom such deficiency was due, was made and signed by plaintiff and P. M. McLaren, the named agent of defendant, and which writing is as follows:</p> <p>“Agreed deficiency on G. M. Fisher’s house on "Webster street, Oakland, as per contract between said Fisher and John W. Pearson, any errors or omissions excepted.</p> <p>“ San Francisco, Dec. 17, 1872.</p> <p>Chaplin, carpenter.............................. $112'00</p> <p>Frost & K., painters............................ 275 00</p> <p>Grosso & Wilcox, hardware.................... 40 12</p> <p>Hawley & Co., (correct P. M. McLaren, agent)... 108 34</p> <p>Amount carried forward........................ $535 46</p> <p>Amount brought forward....................... $535 46</p> <p>Heywoods & Jacobs, lumber................... 188 52</p> <p>Eedican, plasterer............... 60 00</p> <p>“ ." 138 39</p> <p>Wm. Heymon, turning........... 85 00</p> <p>Eemillard, brick-mason............. 179 00</p> <p>John Allen, laborer.............. 19 25</p> <p>Sands....................... 8 80</p> <p>Barbagaletta, Hardware.................. 6 50</p> <p>$1,220 92</p> <p>By cash on hand'. .............. ..................»... 47 09</p> <p>2) 1,173 83 586 91</p> <p>Cash paid Eedican by Fisher................... 60 00</p> <p>$526 91</p> <p>"It is understood that if Mr. Fisher has made himself personally liable for any of the within statement of accounts, that the whole shall be paid by him of such bills as he has made himself personally liable for.”</p> <p>".The above statement we believe to be correct.</p> <p>"G. M. Fisher, “P^ M. McLaren.”</p> <p>And plaintiff avers that immediately after making said statement, and writing last above set forth, he paid to said defendant, John W. Pearson, the one half of said deficiency, to wit: the sum of five hundred and eighty-six dollars and. ninety-one cents in gold coin.</p> <p>And plaintiff avers that said defendant has failed and refused to perform his part of said contract herein first set forth, and has violated the same; that defendant has failed and refused to pay said agreed deficiency claims set forth in the writing last set forth, or any portion or part thereof, except the claim of Chaplin, Frost & K., Hawley & Co., Eedican, Grosso & Wilcox part nine dollars and seventy cents, amounting in the aggregate to the sum of five hundred and sixty-five dollars and four cents, leaving a balance of six hundred and eight dollars and seventy-nine cents unpaid; and though often requested to pay the same by said plaintiff, yet he has refused and still refuses so to do; and though demanded, has refused to pay back to plaintiff the five hundred and eighty-six dollars and ninety-one cents paid by plaintiff to defendant as aforesaid.</p> <p>Plaintiff further complaining, avers that on account of the violation of said contract first herein set forth by said defendant, plaintiff has been put to great cost and expense, and has had liens filed against his said property on account of said claims so unpaid as aforesaid, and judgments obtained against him, and his property advertised for sale; and he has been compelled to pay large sums of money in shape of costs and attorneys’ fees, besides having to pay the indebtedness set forth in the writing last above herein set forth, amounting in all to the sum of seven hundred and twenty-eight dollars and seventy-nine cents, gold coin.</p> <p>And plaintiff avers that by reason of defendant’s violation of said agreement first herein set forth, the said defendant has become indebted to said plaintiff in the sum of one thousand dollars, gold coin of the United States, together with the sum of one hundred and fifty dollars attorneys’ fees.</p> <p>The defendant answered, and the Court rendered judgment for the plaintiff for the liquidated damages mentioned in the contract. The defendant appealed.</p>

The plaintiff averred in his complaint, that the defendant, Moon, owned the lot, and, about the 22d of July, 1869, entered into a contract in writing with the defendant, Clark, by which Clark, in consideration of certain money to be paid him by Moon, agreed to erect for Moon a building on the lot.

<p>Appeal from the District Court, Seventh Judicial District, County of Marin.</p> <p>On the 7th day of August, 1855, William A. Richardson, his wife Maria A. Richardson, and others, their relatives, were the owners of a tract of land known as the Saucelito Rancho, containing four square leagues, lying in the county of Marin, and another tract known as the Albion Rancho, lying in Mendocino County, containing twenty square leagues, and some town lots in San Diego. The Marin County Rancho was heavily encumbered, and proceedings were pending for the final confirmation of both tracts, and litigation was pending and about to be commenced to enforce liens, encumbrances, etc.</p> <p>The plaintiffs, Howard & Perley, were partners in the practice of law in San Francisco, and were Richardson’s attorneys. They advised him to convey his property to some business man who had the capacity to manage it, in order to have the encumbrances paid off, and to save some portion of it, and selected the defendant Throckmorton as a proper person to receive the conveyance. On said day Richardson and the others conveyed to Throckmorton. The conveyance recited that it was made upon the conditions that Throckmorton should sell so much of the land as he deemed necessary to pay all debts which were a lien on the property, and should sell the land within three years, and pay to the grantors one fifth of all proceeds over and above what was- required to pay all debts and his own- expenses and expenses of litigation; or, at his option, he might convey to the grantors an undivided one fifth of what remained after the debts and expenses were all liquidated. Throckmorton was to conduct all litigation, defend all suits, etc. The plaintiffs testified that there was an understanding between them and Throckmorton, before the deed was executed, that he should'employ them as his attorneys in all litigation concerning the property. On the 21st day of August following, Throckmorton and Howard & Perley entered into a contract by which Howard & Perley were to “conduct and manage the legal part of the business arising out of, and connected with, the said property,” and were “to commence and conduct all suits in law or equity, which may be necessary or proper, in-order to set aside or remove any of the encumbrances now existing against the said property, or any part thereof; and they also agree to defend any and all suits that may be commenced in any of the Courts of this State, or in the District or Circuit Court of the United States, in California, or appealed to the Supreme Court of the United States, by any of the parties holding encumbrances on any part of said property against said Throckmorton or said Eichardson, or by any other person claiming under said Throckmorton, and all suits which may arise out of said transactions,, until the final decision and settlement of the same.”</p> <p>“ And they (H. & P.) further agree at all times to give their advise to said Throckmorton on any question that may arise concerning the said property; * * * * * and to do and perform all legal -business appertaining to the duties of attorneys and' counsellors, arising out of, and connected with, the said property.”</p> <p>Upon compliance by Howard & Perley, Throckmorton undertook to pay Howard & Perley one fifth of the net profits, after deducting all advances, all encumbrances, the expenses of litigation, etc., etc., and to transfer one fifth of the residue to Howard & Perley.</p> <p>The deed to Throckmorton was superseded by another, on the 9th day of February, 1856, in which the clause requiring Throckmorton to sell in three years, was left out, but in other respects the conditions were the same.</p> <p>There was much litigation concerning the property, which lasted for many years, and several of the suits were appealed to the Supreme Court.</p> <p>The plaintiffs claimed that they had fulfilled all the conditions of the contract on their part, by giving their personal attention to the litigation, and by employing defendant Goold, who was an attorney, to represent and act for them. They assigned an undivided one half of what they were to receive under the contract to Goold, in 1858, .in consideration of his legal services to be thereafter rendered. In 1868- the litigation had been ended, and Throckmortion had received some four hundred thousand dollars, for sales made of portions of the Saucelito Eancho, and had paid all the debts; and there was about sixteen thousand acres of the Saucelito Eancho, and all the other land remaining unsold. Howard & Perley demanded of Throckmorton a fulfilment of the contract, which he re-refused. This action was then commenced for an accounting, and for a specific performance. Goold was made a defendant under an allegation that he had been asked to join as plaintiff, and had refused. Throckmorton relied principally for a defense on the alleged fact, that Howard & Perley had failed to comply with the contract, and that he had been compelled to employ other attorneys. There was no finding of facts, but the Oourt below decreed a specific performance, and referred the matter to a referee to take an account. Upon the coming in of the report, judgment was rendered in favor of the plaintiffs, for sixteen thousand one hundred and eleven dollars and fifty-four cents, and in favor of Goold for the same sum, and the defendant Throckmorton was ordered to convey to Howard & Perley an undivided two twenty-fifths of the land unsold, and to Goold the same quantity. The defendant Throckmorton appealed. The other defendants were made such under allegations, that they had bought portions of the Saucelito Sancho, and given notes for the same, and mortgages to secure the notes, which were in Throckmorton’s hands.</p> <p>The other facts are stated in the opinion.</p>

Market street is a wide street leading through the city of San Francisco, over which there is a large amount of travel, and Waller street extends from Market street in a westerly direction towards the Pacific ocean. The plaintiff owned lots on each side of Waller street, a short distance from Market street; and between Market street and the plaintiff’s lots, the defendant owned two blocks of land, through which. Waller street passed.

On the 15th day of June, 1857, a corporation, called the San Francisco Water Works, was formed, under an Act entitled “an Act to provide for the formation of corporations for certain purposes,” passed April 14, 1853, as amended by an Act, approved April 30, 1855.

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>The plaintiff recovered judgment in an action of ejectment, and the defendants moved for a new trial. O. C. Pratt was the Judge of the Twelfth District Court, who presided at the trial, and his term of office having expired, his successor, E. W. McEjnstry, granted a new trial.</p> <p>The plaintiff appealed from the order granting a new trial.</p>

Ejectment to recover fifty vara lots, numbers four, five and six, of block number two hundred and ninety, in the Western Addition of the city and county of San Francisco. The complaint started out with an averment that, on the 28th day of April, 1865, the plaintiffs owned the demanded premises.

The plaintiff was the owner of a lease of a lot in San Francisco, made by Madeline Curdy to Thompson and Peyton, which ran from October 1,1884 to October 1, 1869. On the 19th of June, 1866, the lessor gave a right of renewal for five years, which the plaintiff also owned. On the 13th of October, 1868, the plaintiff assigned the lease and right of renewal to Eosenfeldt and Birmingham, as security for money loaned by them to him.

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>The defendants were doing business as partners, under the firm name of Cohen & Sperling. On the 1st day of March, 1872, Cohen gave Reubin the note of the firm for the sum of one thousand dollars. Sperling defended under an allegation in his answer, that Cohen owed Ruebin the money before the partnership was formed, and gave the note for his individual debt. The plaintiff recovered judgment, and the defendant Sperling appealed.</p> <p>The other facts are stated in the opinion.</p>

The plaintiff, on the 15th day of October, 1870, recovered a judgment against the defendant, John B. Beers, for two thousand nine hundred and seventy-four dollars, on a debt for money loaned. Two executions were issued on the judgment, on the 27th day of November, 1871, one to the Sheriff of Alameda county, and the other to the Sheriff of San Francisco, both of which were returned unsatisfied.

<p>Appeal from the District Court, Eleventh Judicial District, County of Amador.</p> <p>The defendant was indicted for the crime of murder in the first degree, was convicted, and appealed.</p> <p>The other facts' are stated in the opinion.</p>

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

<p>Evidence on Tbiad bob Bübgbaby.—The prosecution, in an indictment for the crime of burglary alleged to have been committed by breaking and entering the room of D. with the intent to steal, cannot prove that the defendant entered a room of D. different from that alleged in the indictment, and at a time different from that alleged in the indictment, and stole money from D.</p>

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

<p>HvinENCE that Witnbss is x Pkostitute.— If the evidence of a witness, introduced by the people in a criminal case, shows that she is a prostitute, the defendant is not injured by a refusal of the Court to allow him. to prove that she is reputed to be a woman of that character. •</p>

The plaintiff, on the 24th day of June, 1871, sold the defendant an undivided one half of a patent for a stave sawing machine. The defendant paid him one hundred dollars down, and was to pay him nine hundred dollars two years from the day of sale, or, in default thereof, was to. reconvey the property. This action was brought to recover the nine hundred dollars.

<p>Appeal from the District Court, Eighteenth Judicial District, County of San Diego.</p> <p>The defendant was indicted for the crime of murder. He moved that the judgment be arrested, because he had not been found guilty by the jury, and because the jury had found him not guilty, and the verdict had been rendered by a jury of one. The Court below denied the motion.</p>

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>Action to enforce an alleged lien on a lot in San Francisco, for the improvement of the street on which the lot fronted. The complaint failed to aver that the defendants owned, or had any interest in the lot, or that the assessment was against them; but alleged that the assessment wag against the lot. The defendants demurred to the complaint: the Court sustained the demurrer, and the plaintiff declining to amend, judgment was rendered for the defendants. The plaintiff appealed.</p>

<p>Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.</p> <p>The plaintiff recovered a judgment against the defendants by default. They moved to set aside the default, and the Court made an order setting it aside, but the order did not prescribe the payment of costs as a condition. The plaintiff appealed.</p>

The action was brought to condemn certain lands owned by the defendants to the use of a wharf and chute, to construct which the plaintiffs alleged that they were possessed of a franchise granted by the Board of Supervisors of San Mateo County. The defendants, in their answer, denied that the plaintiffs weré the owners of any franchise.

Motion to dismiss an appeal, on the certificate of the Clerk below, from a failure to file the transcript within the time required by the rules of the Court.

John H. Cutter, a resident of Hew Hampshire, was, and had been for many years, the owner of ,a trade-mark used to designate a certain… Held: invested and managed for the benefit of my son, John P. Cutter, in such manner .as they shall judge to be most for the interest of my said son, until he shall arrive at the age of thirty years, and to pay over to him or expend for him the income, or such part thereof as said trustees shall deem necessary or suitable until he shall…

Ejectment to recover about one hundred and twenty-six acres of land, part of the so-called Suscol Ranch, in the county of Solano. M. G. Vallejo claimed about eighteen leagues of land, called the Suscol Rancho, under an alleged Mexican grant, but the Supreme Court of the United States, in 1862, rejected the grant, and the land became a part of the public domain.

Jean Corneille De.Boom resided in the city of Paris, Republic of France, and was the owner of an undivided one half of real estate in the city and county of San Francisco, and also owned two hundred and fifty shares of the stock of the Spring Valley Water Works, a corporation which supplied the city and county of San Francisco with pure water.

<p>Appeal from the County Court, City and County of San Francisco.</p> <p>The case was thus: The Clear Lake-Water Company was incorporated for the purpose of supplying the people of the .city and county of San Francisco with pure, fresh water. The company, on the 24th of December, 1866, filed a petition in the County Court of the City and County of San Francisco to condemn the “Laguna de la Merced” and a belt of land three rods wide meandering the entire circumference of the lake, “including all the lands and waters within' those boundaries,, and the springs and streams which empty into the same.” A large number of persons' were named in the petition, as owning, or claiming, an interest in the property sought to be condemned. A time was set for hearing the petition, and notice was served on those named in the petition. ■ Commissioners were then appointed to assess compensation to the parties owning the property. The Commissioners having taken testimony, on the 15th day of March,- 1873, filed their report, in which they assessed as compensation to be paid the gross sum of two million two hundred and fifty- one thousand three hundred and seven dollars. The petitioner moved the ' County Court to set aside the report, but made no objection before the Commissioners. The County Court granted the motion, and from this order the claimants appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Office of Tbiai, Juez.—It is the office of a trial jury, by their verdict, to find the facts in issue, whether general or special, and with the legal effect of those facts they have no concern.</p> <p>Dissent of Jubob .fbom Vebdiot.—Although a juror may, at the last moment, dissent from a verdict rendered, yet that dissent must be founded ón the question of fact presented by the verdict, and not upon imformation received from the Court, as to what is the legal effect of the verdict as found.</p> <p>yEBDicr of Jtjby.—If the jury have special issues submitted to them, and find on these issues, and also find a general verdict for the plaintiff; and when the verdict is read, the Court declares that on the findings the defendant must have judgment, and some of the jury then dissent from the special verdict, and the Court sends them out for further delibera tion, and they then return with general verdict, but are unable to agree on the special verdict, the Court should not accept the general verdict.</p>

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>Thomas Watson was Sheriff of Monterey County. The defendant Stevens procured ¿a writ of attachment against the property of one Billings, which was placed in the hands of Watson, as Sheriff, on the 3d day of December, 1869. He attached horses and mules, and charged keeper’s fees, and the expenses of feeding the animals in a stable. His bill for these services was assigned to the plaintiff, who brought this action to recover the same. No certificate was procured from the Court that the charges were reasonable. The Court below granted a nonsuit, and the plaintiff appealed.</p>

The plaintiff was and had been for many years a resident of the City of New York, and was the owner of a lot at the intersection of Drumm and Washington streets, San Francisco, of the value of about forty thousand dollars, having several buildings upon it, which were rented to tenants.

The case was thus: M. Gr. Vallejo claimed that a large tract of land had been granted to him by the Mexican government, before the acquisition of California by the United States, and applied to the Board of Commissioners, appointed by the United States, to have the alleged, grant confirmed. It was called the Suscol Bancho. The case was appealed to the Supreme Court of the United States, and, in 1862, that tribunal decided that the grant was invalid.

The plaintiff appointed John C. Halley his deputy, October 1, 1868, and did not, in his written appointment, assign him to any particular portion of the district. The district of which the plaintiff was collector, included the counties of Alameda, Santa Clara, Santa Cruz, Monterey, San Luis Obispo, Santa Barbara, Los Angeles, San Bernardino and San Diego. The plaintiff verbally assigned Halley to the county of Alameda.

Ejectment to recover about one hundred acres of land, part of the Visitación Eancho in San Mateo county. The answer denied the plaintiff’s title, and also denied the ouster, and set up an adverse possession of five years. The action was commenced January 12, 1871.

Leet commenced this action to quiet the title to a belt of land eighty feet wide and one hundred and seventy feet long. He alleged that he was in possession of the land and owned it, and that Rider claimed it adversely to him, and threatened to enter on the same and take possession thereof, and destroy his fences, trees and shrubbery. The land was in the city of Sacramento, and was a part of the Sutter grant.

Frank Bock was the executor of the will of James Holbert, deceased. By the will, the executor was directed to keep invested the money of the personal estate upon first class real estate security for the same. L. T. Carr was retained by the executor as his attorney in the administration of the estate.

<p>Appeal from the District Court, Eighteenth Judicial District, San Bernardino County.</p> <p>Action to recover a tax levied on an assessment of the Muscupiable Bancho, in San Bernardino County. The xancho contained twenty-four thousand six hundred and .fifty-six acres, and the entire ranch, as a whole, was assessed at twenty-four thousand six hundred and fifty-six -dollars. Two years before the assessment, the defendants, Hancock and Hays, had sold to A. J. Pope seven thousand four hundred and seventy - nine acres of the rancho by metes and bounds, leaving the defendants only seventeen thousand one hundred and seventy-seven acres. The answer alleged a. fraudulent assessment. There was no evidence to show the value placed by the Assessor, on the seven thousand four hundred and seventy-nine acres sold. The Court below rendered judgment for the defendants, and the people appealed.</p>

The judgment was recovered by Mrs. Fuller on the 6th day of March, 1873.

The plaintiff alleged in his complaint that on the 26th of October, 1871, he sold the defendant one hundred and fifty shares of the stock of the Eureka Consolidated Mining Company, for four thousand five hundred dollars, to be paid in United States gold coin, of which sum nine hundred dollars was to be paid on the receipt of a contract, and the balance on delivery of the stock, which was to be delivered at any time thereafter, within thirty days, at the demand of the…

Ejectment to recover possession of a part of lot number eleven, block number thirty-three, in Los Angeles.

<p>Appeal from the County Court, County of Los Angeles.</p> <p>This is the second appeal in the above cause. The first is reported in 47 Cal. 180, where the facts are stated. Upon the reversal of the judgment, and the granting of a new trial as stated in the opinion in 47 Cal. • and when the remittitur had been filed with the Clerk of the Court below, the defendant moved to be restored to the possession of the hotel. He had, when the judgment in favor of Pico was rendered, been turned out of possession under a writ of restitution, and Pico had rented the hotel to one Knowlton, who took the lease with knowledge of the pendency of the action, and of the appeal.</p> <p>On the hearing of the defendant’s motion to be restored to the possession, the plaintiff, Pico, filed an affidavit of Charles Knowlton, stating that he had, on the 24th of March, 1873, leased the hotel and furniture from Pico, for the term of two years, upon the payment of a monthly rent of seven hundred and fifty dollars. The affidavit then proceeded thus:</p> <p>“For further answer, he avers it is true he had ‘ knowledge of the suit adjudicated in the County Court, and of its pendency on appeal in the Supreme Court,’ but avers that he had knowledge at the same time that said Cuyas had disavowed any right to the possession in his own right, and only claimed to have previously had some right to such possession as the member of a partnership which had long before that time been dissolved. As respects the decision of the Supreme Court, respondent avers that the same was not rendered until long after the execution of his said lease and his entry thereunder upon said premises, and that, therefore, he could«not have had any knowledge of the same prior to his said entry.</p> <p>“Further answering, respondent'avers that he has been informed and verily believes that said Cuyas has no right, interest or estate whatever in said Pico House or in said furniture, or in any part of either, and no right in the possession of the same; that said Pico did, long prior to the execution of respondent’s lease, make what purported to be a lease of the said house alone to the said Cuyas; that said so-called lease never, in point of fact, went into operation or vested in said Cuyas, any right whatever to the possession of said house; that said Cuyas never entered into possession of said house under said so-called lease or paid any rent in accordance with its terms, but that the only entry thereon ever made, and the only possession ever had by him of said house was rendered in pursuance of an alleged partnership in the business of hotel keeping entered into by said Cuyas and said Pico.</p> <p>“That said so-called lease was, as claimed and asserted by said Cuyas, wholly suspended and set aside by the terms of said alleged partnership, and the effect thereof as a lease destroyed; that said Cuyas, at divers times and upon divers occasions, and especially upon the trial in the County Court of the cause of Pico v. Cuyas, referred to in the affidavit of said Cuyas, stated upon oath that the said so-called lease to him had been merged and superseded by the said partnership, and the said Cuyas upon that and other occasions further stated that he had no interest whatever in said furniture, but that the same was wholly owned by the said Pico; that before accepting the lease aforesaid, respondent had full notice of the foregoing and other statements and declarations of said Cuyas; and further, that if any partnership had ever in fact existed between said Pico and Cuyas, the same had been long before that time wholly dissolved; that respondent, relying on the statement and representations of said Cuyas respecting the said so-called lease, and knowing that said partnership, if it had ever existed, had been dissolved, was induced thereby to take the lease aforesaid from said Pico.”</p> <p>The Court below denied the defendant’s motion. to be restored to the possession, and he appealed from the order.</p>

<p>OoNSTEVCTiosr of A Wn.li.—A will, made before the present Codes took effect, is to be construed under the statutes in force at the time it was made.</p> <p>Constbuction of A Whu.—The word “relation,” in the statute, providing that a devise to a relation shall not lapse by the death of the devisee during the lifetime of the testator, if the devisee leaves lineal descendants, includes only relations by blood, and not by affinity.</p>

<p>Appeal from the District Court, Seventeenth Judicial District, County of Los Angeles.</p> <p>The plaintiff, on the 29th of March, 1873, loaned the defendant fifteen hundred dollars, for the term of five years, and the defendant executed his promissory note therefor, and, to secure the note, gave the plaintiff a mortgage on lots 1, 2, 3 and 4 of block B., in the city of Los Angeles. The defendant covenanted in the mortgage that he would, within six months, expend the sum of fifteen hundred dollars in erecting permanent and valuable improvements on the mortgaged property, including at least one substantial dwelling-house. The plaintiff, on the 5th of January, 1874, filed a bill to foreclose the mortgage, in which he alleged that the mortgaged property was not worth more than four or five hundred dollars, and that he would not have made the loan but for the covenant contained in the mortgage, and that the defendant in order to obtain the loan, fraudulently represented that he would make the improvements mentioned in the covenant, and that the defendant had not made the improvements; that he owned some lots in Los Angeles, beside those mortgaged, and was threatening to sell all his lots, including those mortgaged, in order to defraud the plaintiff out of his debt. That the defendant was insolvent, and the plaintiff would lose his debt if the defendant sold his property. There was a prayer for a preliminary injunction restraining the defendant from selling any of his lots in Los Angeles. The Court granted the preliminary injunction as to the lots mortgaged. The defendant appealed from the order granting the injunction.</p>

<p>Motion fob New Trial.—When the notice of a motion for a new trial was served in 1872, the proceedings upon the motion must be determined by the Practice Act then in force, and not by the Code of Civil Procedure.</p> <p>Motion to Dismiss Motion fob a New Trial.—If the Court below does not decide a motion to dismiss a motion for a new trial, the appellate Court cannot consider the question.</p> <p>Idem.—If no appeal is taken from an order refusing to dismiss a motion for a new trial, the appellate Court cannot review the order.</p> <p>Idem.—If the record on appeal does not contain any facts in support of a motion to dismiss a motion for a new trial, the appellate Court will not .disturb an order denying the motion.</p> <p>OiiDBii Gbanting- New Tbiai.—If the trial Court grants a new trial on the ground that the evidence is insufficient to support the decision, and the evidence is substantially conflicting, the appellate Court will not disturb the order granting a new trial, even if the order is made by a Judge who did not hear the evidence at the trial.</p>