Volume 49 — California Reports

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

The defendants were indicted for murder in the first degree, charged to have been committed by killing Ah Sam, on the 5th day of September, 1873. The jury found the defendant, Ah Kong, guilty of murder in the second degree, and the defendant, Tong Si, guilty of manslaughter. The defendants appealed. The other facts are stated in the opinion.

<p>Enticing a Female to a House of Ill-fame.—An indictment for enticing an unmarried female to a house of ill-fame for purposes of prostitution must allege, and the prosecution must prove, on the trial, that such female was of previous chaste character.</p> <p>Idem.—Proof in such case that the female was of previous chaste character need not be made by evidence directly upon the point, but may be shown, prima facie, by presumption from other facts.</p> <p>Seducing a Female.—To seduce a female is not an offense within the meaning of the two hundred and sixty-sixth section of the Penal Code, which makes it a crime to procure any female to have illicit carnal connection with any man. The Act refers to one who procures the gratification of the passion of lewdness in another.</p>

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

The defendant was indicted for an assault with intent to commit a robbery, and convicted, and appealed. The other facts are stated in the opinion. Murphy Shackelford & McPheters, for the Appellant, cited Wharton and Stiles’ Medical Jurisprudence, Secs. 262 to 266.

The case was thus: The defendant, Margaret Rodgers, on the 11th day of March, 1872, to secure her note to the plaintiff for one thousand dollars, executed to him a mortgage on a lot in San Francisco. On the 14th day of May, 1867, the defendant Margaret, andher husband, defendantP. R. Rodgers, mortgaged the same property to the defendant, the Hibernia Savings and Loan Society. Before the execution of the mortgage to the plaintiff, Mrs. Rodgers was divorced from her husband.

Marguerite, the wife of the decedent, died in France, on the 3d day of December, 1870; the decedent died in California some months after, and his will was presented for probate on the 2d day of October, 1871. One of the executors, Joseph Begue Bidau, filed a petition for a distribution of the estate, on the 22d day of October, 1873.

<p>Condemnation of Land fob a ¡Stbeet.— Commissioners appointed to assess damages and benefits, in a proceeding to condemn land for a public highway, have no jurisdiction to investigate the question of title, by taking testimony and adjudicating whether the public had not previously acquired a right of way over the land for a road.</p> <p>Wbit of Ceemobaei.—The 'County Court has no jurisdiction to issue the writ of certiorari, except in aid of its appellate jurisdiction.</p>

<p>Appeal from the County Court, County of San Joaquin.</p> <p>The defendant was indicted for house-breaking. Ah Sam was called as a witness for the People, and having given testimony material to the issue, on his cross-examination by the defendant, said he was in jail on a criminal charge. He was then asked, “were you not there on a charge of house-breaking ? ” ' The district attorney objected to the question, and the Court sustained the objection. The defendant was convicted, and appealed.</p>

<p>Oedeb Vacating Judgment.—An order vacating a judgment on account of surprise or excusable neglect, need not require as a condition precedent the payment of all the opposing party’s costs.</p>

The defendant, Mrs. Campbell, while stopping at Los Angeles, as stated in the opinion, entered into a partnership with the defendant Galvin, in the millinery and fancy goods business in March, 1872, and the firm became indebted to the plaintiffs m the sum of eight hundred and fifty-nine dollars and eleven cents, for goods purchased in said business.

<p>Deposition op Witness in a Cbminal Case.—When a witness for the people in a criminal case, is required to enter into an undertaking with sureties, to appear and testify, and is committed for failure to comply, and it appears that he is unable to procure sureties, he may be discharged, and his deposition may be forthwith taken on behalf of the people.</p>

1 Action for damages for a trespass alleged to have been committed on the plaintiff’s lot, fronting on Jones street, in San Francisco, by dumping earth, rocks and gravel on the same, by which her house, fences and shrubbery were alleged to have been injured The defendant justified under a contract with the Superintendent of Streets of the City and County of San Francisco. A copy of the contract and assignments thereon was annexed to the answer.

<p>Tbial foe a Felony.—In a case where the defendant is indicted for a felony, and has heen admitted to bail, the Court should, at the commencement of the trial, order him into actual custody.</p> <p>Receiving Vebdiot in Case of Felony.—In a case of felony, the prisoner must he personally present in Court when the verdict is rendered. If the verdict is received in his absence, it is not valid.</p>

<p>Appeal from the District Court, Seventeenth Judicial District, County of Los Angelos.</p> <p>The defendants, Hatfield and wife and Winston, and John King, executed a mortgage to the plaintiff on a tract of land, to secure the promissory note of the husband, Winston, and King. This action was commenced to enforce the mortgage. King died before the suit was commenced, and his administrator was made a party defendant. Mrs. Hatfield answered separately, and alleged that she owned, as her separate property, an undivided one fourth of the land mortgaged, and that she signed the mortgage as an accommodation to the makers of the note, and received no consideration therefor; and that the three fourths undivided of the mortgaged property could be sold separately without injury to the parties, and without pro rata diminution of the price, if sold as a whole; and asking that the interest of the makers of the note in the land be sold first; and if the proceeds were insufficient to pay the debt, that then her undivided one fourth be sold. The Court entered a decree, requiring the interest óf the makers of the note in the land to be sold first, provided it brought enough to pay the debt; but if it did not, that then the entire tract be sold. The defendants other than Mrs. Hatfield and her husband, were dissatisfied with this, and moved for a new trial, which was granted by the Court. She appealed from the order granting a new trial.</p> <p>The Court gave as a reason for granting a new trial, the supposed error in permitting the interest of Mrs. Hatfield in the land to be sold separately.</p> <p>The other facta are stated in the opinion*</p>

<p>"Waives oí Pbotest oí Note.—If the endorser of a promissory note, before the maturity of the same, tells the holder to give himself no uneasiness about the note; that it will be paid at maturity; that he is collecting money for the maker, and that he will see that the note is paid; this promise amounts to a waiver of demand, notice and protest.</p>

About the 1st day of January, 1872, the plaintiff sold to Michael Beddy and John Beddy, a milk route, together with wagons, horses, cans, etc., for twelve hundred dollars. Beddy Brothers paid him four hundred and five-dollars, leaving a balance of seven hundred and ninety-five dollars due.

<p>Fobeclosübe of Mobtgage.—It is the rule in ordinary cases of foreclosure, that the title ordered to he sold, is only the title which was held by the mortgagor at the date of the mortgage.</p> <p>Idem..—Such rule is applicable to all cases of foreclosure, except perhaps when facts of an equitable character are stated, which show that a title acquired by the vendee of the mortgagor, after his purchase from the mortgagor, should also he subjected to the line of the mortgage.</p> <p>Dbcbeb Fobeclqsing a Mobtgage.—A decree enforcing the lien of a mortgage, which directs the mortgaged premises to he sold, and bars the defendants of the right" of redemption of, or claim to the mortgaged premises, so far as the title was vested in the mortgagor at the date of the mortgage, affects only the title which the mortgagor held, and does • not direct the sale of, or affect the title which a purchaser from the mortgagor, who was a party defendant, acquired after his purchase from the mortgagor, from one who held adversely to the mortgagor.</p> <p>Cboss-Comklaint.—A cross-complaint, like a complaint, must, in itself, state all the requisite facts to entitle the defendant to affirmative relief, and defects in it cannot be cured by the averments of any of the other pleadings in the action.</p> <p>Foeeclpsuee of Mobtgage.—If a decree foreclosing a mortgage does not direct the sale of a title acquired by a purchaser from the mortgagor after his purchase, and who is a party defendant, this result can he attained solely by supplemental proceedings in the foreclosure suit, and upon allegations not only showing a right to such relief, but a sufficient excuse for not having brought that title before the Court in the original proceedings.</p>

<p>Jury Cannot Decide on the Law.—The Court cannot submit to the determination of the jury a question of mere law.</p> <p>Pertinency of Evidence not to be Submitted to Jury.—The Court must nqt submit evidence to the jury hypothetically, that is to say, to be considered by them if they are of the opinion that it is applicable to the issue, but to be disregarded by them if they are of a contrary opinion.</p> <p>Jury Cannot Decide on Pertinency op Evidence.—It will not do to admit improper evidence, and then leave the question of its pertinency to the jury.</p>

<p>Possession op Stolen Pbopebty.—If a person is indicted for breaking and entering a house with intent to steal goods therein, the fact alone, that goods taken from the house were found in his possession soon after the alleged breaking, although a circumstance to be considered in determining his guilt, is not sufficient to convict.</p>

Ejectment to recover lots two and eight, in the block bounded by N and O and Fifteenth and Sixteenth streets, in the City of Sacramento. The demanded premises were a part of the grant made by the Mexican Government to John A. Sutter in 1841.

<p>Confessions as Evidence.—If the prosecution, in a criminal case, offers in evidence a confession made by the defendant in a deposition made by him before a committing magistrate, the foundation must be laid for its introduction by preliminary proof, showing, prima facie, that it was freely and voluntarily made.</p> <p>Idem.—If such confession is offered in evidence, the defendant is entitled, before it is received, to prove that it was not voluntarily made.</p> <p>Construction of Penal Statutes.—The rule that penal statutes must be strictly construed, has been abolished in this State by the Penal Code.</p> <p>Stealing a Heifer.—The word cow, used in the section of the- Penal Code, concerning larceny, includes a heifer, and one who steals a heifer may be indicted for stealing a cow.</p>

<p>Sufficiency of Denials in an Answer.—If an admistrator brings an action against a former administrator of the same estate and his sureties, and, in his complaint, states the proceedings resulting in the appointment of the former administrator, his removal, and the appointment of the plaintiff, and then avers that the former administrator was afterwards cited to render an account, and rendered one; and that the Court settled the account, and rendered a final decree, in which it found that he was indebted to the estate in a sum named; and the defendants, in their answer, deny that there had been a final settlement of the accounts, or that a final decree had been entered in the Probate Court upon such settlement, the denials are sufficient to defeat a motion for judgment on the pleadings, even if the denials are coupled with an allegation that an appeal to the Supreme Court has been taken from the only decree rendered.</p>

<p>Effect of Appeai from Money Judoment.—Under the provisions of the Code of Civil Procedure, as it stood in 1873, the perfecting of an appeal from a money judgment, and the filing of an undertaking to stay proceedings, operated merely to stay proceedings on the judgment, but did not release from levy property already seized by the Sheriff, under an execution issued on the judgment before the appeal was effected.</p> <p>Idem.—Pending the appeal in such case, it was the duty of the Sheriff to retain possession of the property.</p>

Action of forcible entry and detainer brought on the 6th day of January, 1870, to recover possession of a tract of land at the intersection of Post and Buchanan streets, in the City and County of San Francisco. The plaintiff’s testimony tended to show that, in 1865, the demanded premises were unenclosed, and on the 23d of August of that year, the plaintiff erected a small house on the same, and moved into it. That Butler then came to him and claimed the land.

Matthew Delaney died at San Francisco on the 19th day of December, 1865, leaving him surviving his wife, Mary Delaney, and three children, Edward J. Delaney, Cecilia M. Delaney, now Cecilia M. Wynants, and the appellant, Mary A. Delaney, now Mary A. McCurrie, wife of J. P. McCurrie, who are the only heirs of the deceased.

City and County of San Francisco. The defendants were lumber dealers in the city of San Francisco, and had a lumber yard on the easterly side of Stewart street, between Howard and Folsom streets. Their office fronted on the east side of Stewart street, which runs north and south, and there were two gangways or roads leading from the street into the lumber yard, one on the north side of the office, and one on the south, each about twelve feet wide.

<p>New Tkiai, in Divobce Case.—In an action for a divorce on the grbund of cruelty, if, after a decree is rendered, the losing party applies for a new trial on the ground that the evidence is insufficient to sustain the judgment, and the testimony of one party is directly contradicted by the other, the rule in other cases that, where there is a conflict in the evidence the judgment will not be disturbed, will be applied.</p> <p>Evidence in Divobce Case.—If, in an action for a divorce, the wife testifies to acts of personal violence committed by the husband, evidence of the husband attempting to excuse, or apologize for such acts, will not be regarded as substantially contradicting her.</p> <p>COBBOBOBATIVE EVIDENCE UNDEB SECTION ONE HUNDRED AND THIRTY OF THE Cum Code.—Case where the evidence of the party seeking a divorce was sufficiently corroborated under section one hundred and thirty of the Civil Code.</p>

The plaintiff, in his complaint, averred that he was in possession of the north half of the south half of lot number eight, in the block between N and O, and Fourth and Fifth streets, in the city of Sacramento, and claimed title in fee to the same, and that the defendants claimed an interest therein adverse to the plaintiff. The defendants answered, and then asked for affirmative relief by way of cross-complaint.

Action to recover judgment for services as an attorney at law, commenced October 16, 1872. The defendant demurred to the complaint, the demurrer was overruled, and time given to answer. He failed to answer within the time and his default was entered and judgment rendered against him on the 28th day of April, 1873.

Ejectment to recover the east quarter of lot three, and the west half of lot four in the block between Seventh and Eighth, and M and 17 streets, city of Sacramento. The plaintiff and the defendant’s former husband, A. B. Alsip, were brothers-in-law and partners in farming, raising stock and making butter and cheese, in the State of Indiana and in this State, from 1842 to 1867.

Clark and Perkins, who were partners, doing business in the city of San Francisco, on the first day of April, 1865, entered into an agreement in writing with Gridley, who resided in the city of Marysville, by which Gridley undertook to purchase wool in Marysville and the country adjacent thereto, and ship the same to Clark and Perkins.

<p>Appeal from the District Court, Fifth Judicial District, County of San Joaquin.</p> <p>In June, 1872, defendant J. P. Jackson was the owner of a house and lot in the city of Stockton. One Charles Whale informed Jackson that defendant Moulton proposed to purchase the house and lot, and to repair the house and live in it; and Jackson answered that he could purchase it and do as he pleased with it, and they would not differ as to the price. Whale reported this conversation to Moulton, who thereupon entered into possession of the premises, and commenced making repairs thereon. Moulton paid no rent to Jackson, but remained in possession of the premises. Jackson saw the building on the 13th of October, 1872, after all the repairs had been completed, except a half a day’s painting, but before any liens had been filed. The repairs, except the half day’s painting, were finished September 18, 1872. Moulton employed Whale to repair the house, and, in making repairs, lumber and other materials were purchased from the plaintiffs of the value of five hundred and seventy-eight dollars and eighty-eight cents. The repairs were made during July, August and September, 1872. Jackson did not give a notice that he would not be responsible for the repairs. The lien was filed October 31, 1872. Moulton did not purchase the property, and failed to pay the mechanics and material men, and they filed liens in the Recorder’s office, under the Mechanics’ Lien Law, and this action was commenced to enforce the plaintiffs’ lien. The defendants, other than Jackson and Moulton, were lien-holders, who had furnished materials to, or performed work for Moulton, in the work of repairs. The Court below enforced the liens, and the defendant Jackson appealed.</p>

<p>Appeal from the Probate Court of the City and County of San Francisco.</p> <p>Henry W. Halleck died at the city of Louisville, State of Kentucky, on the 9th day of January, 1872, leaving a will in which he nominated Elizabeth Halleck, his wife, the executrix of his estate. The will was probated, and, on the 23d of April, 3873, the executrix filed, in the Probate Court, her final account, and also a report in which she alleged that all the debts of the deceased, expenses, and charges of administration had been paid, and that the estate was in a condition to be closed, and praying that the final account might be allowed and settled. On the same day she filed a petition for a distribution of the estate. Thomas J. L. Smiley and G. W. Smiley filed an opposition, of which the following is a copy:</p> <p>“How come Thomas J. L. Smiley and G. W. Smiley, Trustees of the City Market Company, and, by leave of the Court first had and obtained, file this their amended opposition to the settlement and allowance of the final account of the executrix of the will of H. W. Halleck, deceased, and to the distribution of the estate of said deceased, according to the prayer of the petition of said executrix, filed in this Court on the 23d day of April, A. D., 1873, and say that the said account should not be settled or allowed as a final account of her administration of said estate, and that no such or any distribution whatever of said estate should be made at the present time, and for cause show as follows, to wit.:</p> <p>“That'on or about the — day of July, 1855, one Joseph L. Folsom died in the City and County of San Francisco, being at the time of his death a resident thereof, and leaving a last will and testament, in which said H. W. Halleck, A. C. Peachy andP. Warren Van Winkle were named as executors thereof.</p> <p>“That afterwards, to wit, on the 6 th day of August, a.d., 1855, and after due proceedings had in this Court, said will was duly admitted to Probate, and said H. W. Halieck, A. 0. Peachy and P. Warren Yan Winkle duly qualified as such executors, received letters testamentary, and entered upon the administration of the estate of said Folsom, deceased, and continued to administer the same up to the 9th day of January, A. D., 1872, when the said H. W. Halieck died leaving him surviving the said Peachy and Yan Winkle, who have ever since as surviving executors, administered the estate of said Folsom, deceased.</p> <p>“That no account of said executors, or of any or either of them, has been filed or rendered in this Court in the estate of said Folsom, deceased, since the 26th day of April, A. D., 1869.</p> <p>“ That no final account of said executors, or of any or either of them, has ever been rendered or filed or settled or allowed in this Court, in the estate of the said Folsom, deceased, nor have said executors, or any or either of them been discharged, nor has the estate of said Folsom, deceased, been settled or closed or fully administered, but the same is yet in the course of administration.</p> <p>“That said H. W. Halieck, up to the time of his death, was one of the executors of said will of said Folsom, deceased, and had not rendered any account of his or their administration of said estate of Folsom, deceased, since the said account filed on the 26th day of April, a. d., 1869, nor had his accounts of the administration of said estate of Folsom, deceased, been ever finally settled; nor had the said Halieck been discharged from the duties of his trust as such executor; nor has the estate of said Halieck, deceased, ever been discharged from any liabilities, if any, for his acts or omissions as such executor of said will of Folsom, deceased, or for moneys, if any, due from him at the time of his death, to the said estate of Folsom, deceased, or for any cause whatever, as such executor, whether individually, or jointly with his said co-executors, but said liabilities, if any, still remain undischarged, and a charge upon his estate, and are a lien thereon, and said moneys, if any, still remain due and unpaid by his estate.</p> <p>“These opponents, therefore, allege that his estate is not. in such a condition that his executrix can file a final account of her administration thereof, and they deny the allegation in her said petition for distribution contained, that his estate is in a condition to be closed, and deny that all valid claims that may exist against his estate have been paid or ascertained.</p> <p>“That these opponents are creditors of said estate of Folsom, deceased.</p> <p>“ That their claim against said Folsom estate was duly presented to and allowed and approved by said executors and the Probate Judge, and a great portion thereof still remains due and unpaid.</p> <p>“That said Halleck, in his lifetime, and his said co-executors, claimed and pretended, and his said surviving co-executors, ever since his death, have claimed and pretended, and still claim and pretend that the said estate of Folsom, deceased, is insolvent and able to pay only a very small portion of its indebtedness.</p> <p>“ These opponents therefore claim and allege, that, as such creditors, they are interested in the estate of said Halleck, deceased, and that they have a claim against his estate which is contingent upon the estate of said Folsom, deceased, proving insolvent, and such insolvency being caused, either wholly or in part, by the acts or omissions of said Halleck, as such executor, either individually or jointly with his co-executors, and upon an order to be made by this Court for the payment of the creditors of said Folsom estate, when the account of said Halleck of his transactions as such executor up to the time of his death, shall have been filed and finally settled and allowed, and moneys shall have been ascertained to have been due to the said Folsom estate from him, as such executor, at the time of his death.</p> <p>“That, by reason of such account not having been filed, these opponents - have thus far been unable to determine whether or not said Halleck, as such executor, was at all indebted to said estate of Folsom, deceased, or if any indebted, the amount of such indebtedness, and by reason of the final accounts of said surviving executors not having been filed, settled and allowed, and said Folsom estate wholly administered, these opponents have been unable to ascertain whether or not said Folsom estate is solvent.</p> <p>“These opponents, therefore, allege that they have a contingent claim against said estate of Halleck, deceased, and that said claim is contingent both as to its existence and to its amount, and that they have one month after the same shall have become absolute, and the amount thereof established, within which to present the same.</p> <p>“Wherefore, these opponents pray that the allowance of said account of said executrix, as a final account, be denied, and that the said petition for distribution, on file herein, be dismissed.”</p> <p>The executrix demurred to the opposition because it was not sufficient in law to constitute a valid ground of opposition. The Probate Court sustained the demurrer. The Probate Court then examined the final account and settled the same, and refused to allow the opponents to prove the facts alleged in their opposition, and then entered a decree of distribution according to the will. The opponents appealed from the several orders.</p>

<p>SlSnmrs out Cost Bill.—An order denying a motion to strike out a bill of costs can be reviewed only upon an appeal from the judgment.</p>

Judicial District, County of Butte. The facts are stated in the opinion. W. C. Belcher and Burl & Sexton, for the Appellant, upon the point that the Legislature may authorize the owner of premises to take up cattle and hogs found damage feasant, cited, Cook v. Gregg, 46 N. Y. 489; Hale v. Clark, 19 Wend. 498; Garabrant v. Vaughn, 2 B. Monroe, 327; Ford v. Ford, 3 Wis. 399; Burrows v. Fassett, 38 Vt. 625, and Harriman v. Fifield, 36 Vt. 341.

<p>Action oe Uniaweul Detainee.—An action of unlawful detainer, for holding over after the expiration of the term, cannot be maintained, unless the time during which the defendant was to occupy the land had expired when the demand for possession was made by the plaintiff: and the above rule holds good, whether the agreement under which the defendant occupies is a lease, or an agreement to farm the land for a portion of the crop.</p> <p>Idem.—The fact that the agreement under which the defendant occupies is a verbal one, and that, by its terms, it was to continue for two years, does not change'the rule.</p>

<p>Appeal from the District Court, Second Judicial District, Tehama County.</p> <p>On the 2d day of June, 1863, William Chard and Daniel Finch, were, and for many years prior thereto had been partners, under the firm name of Chard & Finch, and as such engaged in operating and maintaining a ferry across the Sacramento Biver at the town of Tehama, in the County of Tehama, and State of California. During the existence of the partnership, on or about the 3d day of February, 1858, the firm purchased certain real estate in Tehama County, for its use and benefit, paid for it with partnership funds, and continued to use the same in said partnership business, until the second day of June, 1863, at which time Finch was largely indebted to Chard on account of said partnership business, and on that day, for a valuable consideration, Chard sold and conveyed to the plaintiff all his interest in the ferry and said real estate, with all the rents and profits, and all debts and demands due said firm, or to become due to the same from said business and from Finch. After this sale from Chard to the plaintiff, the ferry and the business thereof was carried on by Finch, until the 29th day of February, 1864, and all the profits accruing from the same were received by him. On the last named day the plaintiff commenced an action in the Court below against said Finch, to wind up, and have an account taken and a settlement made of said partnership business (Chard being-made a party to said action). Upon the trial of said action, Finch was found to be indebted to the plaintiff in the sum of $3,580 99, for which sum and $167 30, costs of suits, judgment was rendered in said Court, in favor of the plaintiff, and against Finch, and it was further adjudged and decreed in said action that the said real estate was partnership property belonging to said firm, and liable as assets for the payment of said judgment, and it was ordered to be sold, etc., and the proceeds brought into Court.</p> <p>During the pendency of said action, and on the 22d day of August, 1864, Finch sold to the defendant here all his right and title to and in said real estate, and executed to him a deed therefor. The defendant purchased with knowledge of the pendency of the action, and with notice of the partnership, and of the indebtedness of Finch to Chard, but no lis pendens was filed. The judgment of the plaintiff remaining unenforced, he, on the 12th day of May, 1868, brought this action to have the interest of Finch in the real estate sold, and the proceeds applied to the payment of said judgment. On the trial, the plaintiff offered in evidence said judgment. The defendant objected, but the Court overruled the objection. The plaintiff had judgment and the defendant appealed.</p>

<p>Appeal from the District Court, Fifth Judicial District, County of San Joaquin.</p> <p>Bill in equity to enforce the specific performance of a verbal contract to sell and convey real estate. Several special issues were submitted to a jury, and they returned their findings thereon February 27, 1871. On the 2d day of March, 1871, the plaintiff filed and served notice of motion for a new trial, and filed a statement in support of the motion on the 7th of March following. The Court adopted the findings of the jury and rendered a judgment for the plaintiff, on the 17th of Hay, 1871, and the judgment was entered on that day. On the 28th of April, 1873, the Court denied the motion for a new trial. The plaintiff filed and served notice óf appeal on the 9th day of May, 1873. The other facts are stated in the opinion.</p>

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

The case was thus: On the 5th day of November, 1870, the First Congregational Society of San Francisco entered into a contract with E. R. Shain, for the erection of a chnrch edifice. The edifice was to be completed by the 1st day of February, 1871.

Petition to the Supreme Court for a writ of certiorari, to review a judgment of the County Court of the County of Inyo. The petitioner stated in his petition, that he verily believed that an impartial trial could not be had before Theron Reed, Judge of the District Court of the Fifteenth Judicial District. The County of Inyo was in the Fifteenth Judicial District.

<p>Sufficient Title to Recover in Ejectment.—In ejectment to recover public land, when the answer denies the allegations of the complaint, the mere findings by the Court that, on a day named, before the commencement of the action, the plaintiff paid to the receiver of public lands at a local land-office the amount due the United States Government for the demanded premises and took his receipt therefor, having theretofore made the necessary proofs before the land-officers, are not sufficient to show any title or right of entry in the plaintiff.</p>

The petition was filed December 3, 1870. There were two tracts through which a belt of land for a railroad track was sought to be condemned, and one track belonged to the Galgiani’s, G. Peri, A. Peri, and L. Silna, and the other tract to Louis Vilhac and J. S. Page. The other facts are stated in the opinion.

<p>Appeal from the District Court, Twelfth Judicial District, City and County of Ban Francisco.</p> <p>The complaint in this action was as follows; “John A. Magee and Arthur W. Moore, the plaintiffs in the above entitled action, complaining of Francis X. Hast, the defendant in the said action, allege: That said plaintiffs are partners in business, under the firm name and style of Ma-gee, Moore & Go. That on the 17th day of November, 1871, the said defendant was, and still is, indebted to the said plaintiffs in the sum of $1,247 50 gold coin, on an account for goods, wares and merchandise, consisting of leather and shoe manufacturers’ goods sold and delivered by the said plaintiffs to the said defendant, at his special instance and request, at the city and county of San Francisco.</p> <p>That no part of said sum has been paid.</p> <p>That there is now due to the said plaintiffs thereon from the said defendant, the sum of $1,247 50 gold coin, with interest thereon from the 17th day of November, 1871, at the rate of-per cent, per-.</p> <p>Wherefore, the said plaintiffs pray judgment against the said defendant for the sum of $1,247 50 gold coin together with interest thereon from the date last aforesaid, and costs of suit.”</p> <p>The defendant answered, setting up an agreement in writing, made by the plaintiffs, to sign a release for the whole of the indebtedness on receipt of thirty per cent, thereof; and a tender of the thirty per cent., and its refusal by the plaintiffs.</p> <p>The defendant, on the trial, introduced in evidence the following agreement with the signatures annexed, but excluding the condition annexed to the signature of Magee & Moore. The plaintiffs objected, and the Court sustained the objection. The defendant then offered the agreement in evidence, with the said condition, and it was read.</p> <p>“ Know all men by these presents, That whereas, Francis Xavier East, trading and doing business in the city and county of San Francisco, is unable by reason of divers losses to pay and discharge his debts and liabilities in full; and, whereas, each of the names and firms undersigned, who are creditors of said F. X. East, have mutually agreed, one with the other and with the said F. X. East, to share a loss and make a settlement of our several claims, and thereby prevent a sale of the assets of said F. X. East, and allow said F. X. East to continue in business.</p> <p>‘ ‘ Now, therefore, in consideration of the premises, we, the undersigned, covenant and agree, one with the other, that on the delivery to each of us of the promissory notes of said F. X. East for an amount equal to thirty (30) percentum of the amount due us severally, which said notes are made payable in gold coin of the United States, at thirty days from this date, and endorsed to our satisfaction, that we and each of us on demand, will execute and deliver to said F. X. East, a release under seal of all claims and demands which we, the undersigned, severally, and not jointly, ever had, or which each of us now has against the said F. X. East, by reason of any matter or thing up to the date of these presents. But said release shall contain a clause and covenant that if the said promissory notes be not paid at maturity that the release shall be void and of no effect, and that the said F. X. East pay all expenses incurred.</p> <p>“In witness whereof, we have hereunto set our hands and seals the twenty-seventh day of November, 1871.</p> <p>“In presence of ”-———</p> <p> </p> <p>The defendant then introduced in evidence an acknowledgment, signed by a number of creditors, that they had received promissory notes, as provided in the composition agreement, for thirty per cent, of their demands, and releasing their debts if the notes were paid in thirty days. This acknowledgment and release was signed by the creditors (except Magee & Moore,) who signed the composition agreement, and by some other creditors. The defendant had creditors who resided in Philadelphia, but they did not execute either paper. There were some San Francisco creditors who did not sign the composition agreement, and there was evidence introduced by the plaintiffs, tending to show that some of the creditors were paid in full. The plaintiffs had, before the date of the composition agreement, signed an attachment bond as surety for the defendant in an attachment suit he had commenced against one Broderick. The defendant introduced testimony tending to show that the plaintiffs agreed to accept thirty cents on the dollar, if he would indemnify them against their liability on the attachment bond, and that he did thus indemnify them before they signed. The plaintiffs had judgment in the Court below and the defendant appealed.</p> <p>The other facts are stated in the opinion,</p>

<p>Aepexii.—When the notice of appeal is not inserted in the transcript, but in place thereof there is a stipulation that a notice of appeal was filed and served, and there is also a statement on motion for a new trial, and an order denying the same, the Court cannot determine whether the appeal was taken from the judgment or order denying a new trial.</p> <p>Statement on Motion foe a New Tbial.—A statement in support of a motion for a new trial must specify the particular errors of the law relied on, and the particular reasons why the verdict is alleged to be contrary to the evidence.</p>

<p>The above case is reported in the 47 Cal. p. 474. At the time the report was made the suggestion' relative to the death of Galliac had not been made in the Supreme Court. The facts are stated in the opinion.</p>

The plaintiff, as assignee of James dwell, brought this action to recover assessments levied upon lots 7, 8 and 9, in Block No. 5, in the Western Addition to the City of San Francisco, for the construction of a brick sewer with manhole and cover in McAllister street, from Larkin to Polk street. James B. Townsend, Edward Boper, J. W. Beay and George Spanagel were made parties defendant.

In January, 1872, R. F. Byan, an attorney at law, presented a claim to J ames McKinley, administrator of the estate of Finley McKinley, for fees for professional services alleged to have been rendered the deceased in his life-time. The claim consisted of several items for conducting different suits, searching records, etc., amounting altogether to $1,225. It was approved and allowed by the administrator January 23, 1872, and by the Probate Judge on the 29th of the same month.

<p>Appeal from the District Court of the Seventh Judicial District, Solano County.</p> <p>It is alleged in the complaint that the plaintiff—an attortorney and counselor at law—having been appointed by the District Court to defend two pauper prisoners indicted for the crime of murder, gave his professional services in their behalf at the trials, and prosecuted appeals to the Supreme Court from a judgment of conviction, necessarily expending the sum of $300 in procuring affidavits in the cases and in attending on the Supreme Court; that he presented a claim to the Board of Supervisors of Solano county for the money so expended, and for $1,500 as compensation for services rendered, and that the Board rejected the claim. He brought this action to recover for both items. The defendant had judgment upon a general demurrer, and the plaintiff appealed.</p>

<p>Fedebal Pbisoneb in State Peison.—A person who has been convicted of a crime against the United States by a Federal Court, and confined in the prison of the State with the consent of the State, is deemed to be in the custody of the Federal authorities.</p> <p>Belease op Fedeeai Pbsonebs by State Courts.—The courts or judges of the State have no authority to release a prisoner upon a habeas corpus when the prisoner is in the custody of the authorities of the United States, pursuant to a judgment of conviction by a Federal tribunal of exclusive jurisdiction in the case.</p>

<p>Appeal from the District Court, Fourteenth Judicial District, County of Placer.</p> <p>In October, 1870, the defendants recovered a judgment before Clydesdate, a Justice of the Peace, against the plaintiff here, for $250 damages, and $13 41 cost.</p> <p>The plaintiff appealed to the County Court. The County Court reversed the judgment and rendered a judgment against the defendants here, for $19 60 costs. After the rendition of the judgment by the justice, and before it had been reversed by the County Court, the plaintiffs therein, (defendants here,) procured an execution from the justice, and, by virtue thereof, a constable levied on and sold a team of two horses and a wagon, the property of the defendant (plaintiff here), for three hundred dollars. Quinn brought this action to recover the sum for which the team sold, and the costs in the County Court.</p> <p>The defendants in their answer set up the. following facts by way of counter claim: That on the 8th day of October, 1869, one J. L. Grant was the owner of the N. E. ¼ of section 9, T. 11 N., R. 7 E., Mount Diablo meridian, together with the boarding and lodging-houses thereon, and was indebted to A. P. Craner and W. P. Craner, and that the Craners sued him, and, on the 2d day of May, 1870, recovered a judgment against him for $1,093 10, and procured an execution thereon, and sold the property on the 13th day of June, 1870, and the defendants became the purchasers, and obtained a sheriff’s deed on the 17th day of December, 1870, and that said Grant, to defraud said Craners of their debt, in 1869, made a fraudulent sale of said property to one Jordon, and that the plaintiff Quinn, well knowing the facts, entered into possession of the property in subordination to the title of Jordon, and since the 13th day of June, 1870, had been holding the property and enjoying the rents, issues and profits thereof; and that said rents, issues and profits had been of the value of $125 per month, and that therefore the plaintiff was indebted to the defendants in the sum of $2,900, for said rents and profits.</p> <p>The plaintiff demurred to the counter claims, and the Court sustained the demurrer. The plaintiff had judgment, and the defendants appealed.</p> <p>The other facts are stated in the opinion.</p>

The defendant and Domingo Estrado, were jointly charged in the indictment with having murdered John Cruse, at the County of Sacramento, in April, 1874. The evidence on the trial showed that the deceased was killed at the City of Sacramento, on the night of the 7th and 8th of April, 1874, by a stab made with a knife. During the trial, the prosecution called E. M. Stevens as a witness, who testified to a conversation between the defendant and one Boyle, which he overheard.

Domingo Estrado, the defendant here, and Filomena Cotta, were jointly charged in the indictment with having murdered John Cruse, at Sacramento, in April, 1874. Cruse was killed by the stab of a knife, in the night of the 7th of April, 1874. The next day Estrado and Cotta were arrested for the murder. On the 12th of April, they were taken by the police officers to the station house, and were there asked to make statements.

The defendant was tried for the crime of murder in the first degree at the term of the District Court, held in Inyo county, for May, 1874. Several of the jurors were challenged by the defendant on the ground that the juror had formed an unqualified opinion as to the guilt or innocence of the defendant.

<p>Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.</p> <p>The complaint alleged that the plaintiffs were lumber dealers, and that the defendant, Michael Murray, was a contractor, and that, about November 20, 1870, said Murray contracted with defendant Conley to construct for him a two-story dwelling house, and built the same under the contract, and that the plaintiffs, at Murray’s request, November 24, 1876, sold to Conley, at the request of Murray, his agent, lumber which was used in the building, and that Murray still owed them $568 42 for the same. That before the expiration of the thirty days ensuing the completion of the building, the plaintiffs filed their claim for a lien, under the Act of 1867-8. The defendant Conley demurred to the complaint. The Court sustained the demurrer, and the plaintiffs appealed.</p> <p>The other facts are stated in the opinion.</p>

Ejectment to recover a tract of land on the south side of the city of Sacramento. The demanded premises were a part of the Rancho New Helvetia, which was granted by Mexico to John A. Sutter. They had been, along with other lands, divided into ten-acre tracts,. and were numbered 10, 11, 12, 13, 14, 15, 59, 60, 68, 69, 74, 77, 78 and 79. The defendants were severally in possession of the lots, each one claiming one or more.

<p>Ejectment to recover the undivided one half of a small tract of land in the City of Los Angeles. The demanded premises became the common property of B. S. Eaton and his wife in 1854. They dedicated it as a homestead under the Act of 1851. The wife died in 1859, leaving, issue of the marriage, two children, Mary and Frederick, two of the plaintiffs. Mary afterwards became the wife of the plaintiff Hancock. The surviving husband and children continued to reside on the premises, and he, in 1860, married a second time, and, on the 27th of April, 1861, he filed a homestead declaration under the Act of 1860. On the 9th of February, 1867, said B. S. Eaton and his wife executed a warranty deed of the premises to. the defendant Bush. The other defendants were the tenants of Bush. The defendants recovered judgment, and the plaintiffs appealed. The other facts are stated in the opinion.</p>

Ejectment to recover a tract of land containing eight hundred and seventy-seven and nineteen one hundredths acres, being a portion of the Bancho Bio de Santa Clara or Calonia. On the 19th day of October, 1871, the plaintiff gave the defendant a written lease of the land for the term of one year at an annual rent of $650. The land was described by metes and bounds in the lease.

<p>Patent fob Pueblo Lands.—A patent of the United States for the lands of a pueblo, confirmed under the Act to settle private land claims in California, is issued in pursuance of authority conferred by said Act, and is admissible in evidence.</p> <p>Certified Copy of Deed.—A certified copy of a deed from the County Recorder’s office is primary evidence, and is admissible without proof of loss of the original.</p> <p>Document Referred to in Bill of Exceptions.—If a bill of exceptions refers to a deed printed in the transcript, the deed must be identified in the bill.</p>

Ejectment to recover the north-west quarter of section twenty-eight, township three north, range seven east, Mount Diablo meridian. The action was commenced March 7, 1873. The demanded premises were selected by the State of California in 1863, as a part of a grant made by Congress.

<p>Waiver of Signature to Bill of Exceptions.—A party may, by stipulation, waive the signature of the Judge or referee to a bill of exceptions, and consent that a motion for a new trial be heard upon such bill.</p>

<p>Conditional Liability on a Contact.—If the owners of swamp land in a district, contract to pay certain persons stipulated amounts of money to be expended in building a levee, to reclaim the district, and such persons employ another to build the levee at a certain price per cubic yard, and stipulate that they are not to be personally liable unless they fail to use due diligence in collecting the money, the person so employed cannot recover for his labor, without showing a want of diligence in collecting the money from the owners of the land.</p>

<p>Appeal from the County Court, Los Angeles County.</p> <p>The statute (Laws 1861, p. 31), provided for a Board of Water Commissioners in each township of the county of Los Angeles, and also declared what persons should be liable to work on water ditches. It further declared that the Board of Water Commissioners, upon receiving a petition from a majority of the persons in a township liable to work on water ditches in said township, must proceed to lay out the ditch, and then confer with persons over whose land it passed, and try to come to an agreement with them as to the right of way, and if they failed to agree, that such commissioners must appoint an arbitrator, and request the person whose land was to be taken, to appoint another, and if he failed to do so, that the County Judge must appoint a second, and the two a third, and the three must appraise the damages, and report their action to the County Court, which must act on their report, and confirm, or set it aside. Under this Act, a petition was presented to the Board of Water Commissioners of San José township, Los Angeles county, in 1871, to construct a new ditch for irrigation. The commissioners appointed an arbitrator, and Dalton having failed to appoint a second, the Judge made the appointment, and the two appointed a third. The arbitrators made their report to the County Court, and the same was confirmed. Dalton appealed to the Supreme Court, and that tribunal reversed the order of the County Court, upon</p> <p>the ground that it did not appear that the commissioners had been unable to agree with Dalton. In the meantime, San José township had been divided, and Azusa township had been created out of a part of it, and the latter township included some of Dalton’s land, over which the ditch was to pass. After the remittitur from the Supreme Court was filed, and July 10, 1873, the Board of Water Commissioners for Azusa township presented a supplemental petition to the County Judge, to continue the proceedings in the name of Azusa township, and asked him to appoint an arbitrator for Dalton. The petition set forth that the Board of Water Commissioners for San José township had in fact attempted to agree with Dalton, and failed to do so, and it was accompanied by an affidavit of John W. Casey, that he was a member of said last named Board, and that an attempt was made to agree with Casey, which failed. The County Judge appointed an arbitrator, who, in conjunction with two others, appointed as the law required, made an appraisal, and reported the same to the County Court, and the same was confirmed. Dalton again appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Damages in an Action for a Trespass„—In an action for a trespass, committed by breaking into the plaintiff’s rooms and destroying property, the jury, in estimating damages, must not take into consideration the plaintiff’s counsel fees and other expenses growing out of the litigation.</p>

The indictment charged the defendant with having, on the 23d of October, 1873, assaulted one J\ L. Gaudy, with a knife, with intent him, the said Gaudy, to murder. On the 27th of October, 1873, the defendant was called for arraignment, his counsel being present. When called, he stood up, and the indictment with the endorsements thereon, including the names of the witnesses, was read to him by the Clerk.

The Act of March 28, 1868, entitled an Act to provide for the management and sale of lands belonging to the State, provides that whenever an unreclaimed body of swamp and overflowed land is susceptible of one mode of reclamation, that upon a petition, signed by a majority of acres, the Board of Supervisors may form the same into a district, and that such majority may then adopt by-laws and elect a Board of Trustees to manage the reclamation, which Board shall employ…

<p>Cross-Complaint.—If the defendant answers the complaint, and also files a cross-complaint asking for affirmative relief, and both parties introduce evidence on the cause of action set forth in the complaint, and submit the cause to the Court, whether the defendant shall then be permitted to re-open the cause and introduce evidence in support of the cross-complaint, is a matter resting in the discretion of the Court.</p> <p>Idem.—The Appellate Court will not disturb the action of the Court below in the exercise of such discretion, unless it is incorrectly or improvidently exercised.</p> <p>Correcting Error in Foreclosure Suit.—If, after a sale under a decree of foreclosure, the sheriff reports a deficiency greater than exists, and the clerk dockets a judgment for the deficiency reported, the remedy of the party injured is by motion in the Court and action in which the foreclosure was had. He cannot, in a collateral action, question the validity of the proceedings in the foreclosure suit.</p>

The plaintiff averred in his complaint, that his daughter, Abby, aged seven years, on the 11th of April, 1872, was crossing Dora street, in the line of Harrison street, in San Francisco, and that while walking on the cross-walk laid for that purpose, the servant of the defendant carelessly and negligently drove a team of two horses and a wagon against her, and injured her so that she was sick, and that the plaintiff was compelled to render his and his wife’s services in…

On the 28th of March, 1872, the Legislature passed an Act entitled, “an act to provide for the introduction of good pure water into the town of San Luis Obispo,” whereby the exclusive right was granted to Benrinio, Dana and Hays, and their assigns, to supply the inhabitants of said town with pure water. The plaintiff claimed to be their assignee.

The defendant was indicted for the crime of murder. The jury returned into Court with the following verdict: “We, the jury, agree that the defendant is guilty of murder in the second degree.” The defendant appealed. The other fact is stated in the opinion.

<p>Appeal from the District Court, Sixth Judicial District, County of Sacramento.</p> <p>By a reference to the 45th of Cal. 647, some of the facts will be, found stated which apply to this case.</p> <p>Under the writ of assistance which was issued as there stated, on the 22d of October, 1872, Henderson, the defendant here, was, on the 29th of October following, placed in possession of the north-west quarter, the south-west quarter, the west half of the north-west quarter, and the north-west quarter of the south-east quarter of section thirty-six, township five north, range seven east, Mount Diablo meridian. Henderson remained in possession until the 20th of August, 1873, when Daniels was restored to possession, under the decision of the Supreme Court. Daniels then brought this action to recover the rents and profits of the land, while Henderson was thus in possession. In his complaint, he merely alleged that he was in possession on the 29th day of October, 1872, and that the defendant then ousted him wrongfully and entered into possession and enjoyed the rents and profits until the 20th of August, 1873, and that he was entitled to the possession when the defendant entered, and during all the time the defendant was in possession. The defendant, in his answer, denied that the plaintiff was entitled to the possession of the land.</p> <p>The answer then proceeded as follows:</p> <p>And for a further defense the defendant alleges that on the 28th day of October, 1868, one Jacob Morss filed in the State Land Office of California, an application for the purchase of the north-west quarter and north half of the southwest quarter of section thirty-six, township No. five north, range seven east, Mount Diablo meridian and base, San Joaquin county, California, which said application was approved January 2d, 1869, and a certificate of purchase for said land issued to said Morss May 11th, 1869, numbered 1778.</p> <p>That on the 23d day of March, 1867, said Morss filed in said land office an application to purchase the south half of the south-west quarter of section thirty-six of said township and range, which said application was approved on the 4th day of June, 1867, and a certificate of purchase therefor issued to said Morss on the 30th day of August, 1867, numbered 744.</p> <p>That on the 28th day of October, 1868, one William Morss filed in said land office an application for the purchase of the west half of the north-east quarter and northwest quarter of the south-east quarter of section thirty-six of said township and range, which application was approved on the 2d day of January, 1869, and a certificate of purchase therefor was issued to said William Morss, May 11th, 1869, numbered 1779.</p> <p>That on the 16th day of November, 1868, the said Jacob and William Morss conveyed all the above described land to Nathaniel McTucker, who then and there executed and delivered to said Jacob Morss a mortgage in fee of all said land to secure the payment of a certain promissory note to wit: for the sum of $2,500. given for the balance of the purchase-money of said land</p> <p>That on the 23d of June, 1869, the said Jacob and William Morss assigned to said McTucker their respective certificates of purchase hereinbefore mentioned, numbered 1778 and 1779, and on the 15th day of October, 1870, said certificate numbered 744 was assigned to said McTucker by said Jacob Morss.</p> <p>That on the 26th day of November, 1868, said Jacob Morss assigned said note and mortgage to this defendant, which said mortgage was, after due proceedings had, foreclosed in the District Court of the Fifth Judicial District, in and for San Joaquin County, on the 18th day of May, 1871, and subsequently, to wit, on the 28th day of March, 1872, all of said lands were, by order of said Court, sold by the Sheriff of San Joaquin County, at public auction to this defendant, and after the expiration of six months from said sale, to wit, on the 1st day of October, 1872, defendant received a deed from said Sheriff of all of said land.</p> <p>That on the 13th day of October, 1869, the said Nathaniel McTucker executed a mortgage on said premises to secure the sum of $5,500, and at the same time assigned the certificate of purchase numbered 1779, and on the 26th day of August, 1869, assigned said certificate numbered 1778 to one John McTucker, which transactions, as affiant is informed and believes, were intended as a mortgage security for said $5,500 to said John McTucker, and not otherwise.</p> <p>That on the 10th day of July, 1871, said certificate number 744 was assigned by said Nathaniel McTucker to one Mary McTucker without any valuable consideration whatever.</p> <p>That at the time of the execution of the said mortgage by said Nathaniel McTucker to said John McTucker, said John McTucker was fully aware of the existence of the said mortgage held by defendant on said lands, which said mortgage was recorded in Book B of Mortgages, volume 9, pages-.</p> <p>That on the 13th day of September, 1871, a patent was issued to John McTucker and his heirs to the lands described in said certificates, numbered 1778 and 1779, and on the same day a patent was issued to said Mary McTucker and her heirs to the land described in certificate numbered 744. Defendant further alleges that if said plaintiff has any claim to said land the same was derived under said patents and not otherwise.</p> <p>On the trial, the plaintiff introduced testimony showing his possession and ouster, and the value of the rents and profits. He then introduced the transcript on appeal of the case of Henderson v. McTucker, and the case, as reported in the 45 of Gal., and rested. The defendant offered to prove the facts set out as new matter in his answer, but the Court refused to allow the evidence.</p> <p>The Court found as facts, that the plaintiff, prior to the 29th of October, 1872, was in the possession, and that the defendant, acting under a supposed right given him by the writ of assistance, on said day, obtained possession of the land, and retained possession until August 20, 1873, and that the plaintiff was entitled to the possession. The plaintiff had judgment, and the defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Fees of Collector of Taxes.—If the statute allows a collector of taxes, for his own use, a percentage for collections of State tax, and also a percentage on the amount of County tax collected, and provides that he shall pay the percentage allowed him on the county tax into the county salary fund, and that it shall become a part of said fund, the collector cannot claim the per centage to be paid into the salary fund as his own fees or property.</p>

The defendant recovered judgment in the Court below; the Court granted a new trial on the application of the plaintiff, and the defendant appealed from the order. The other facts are stated in the opinion.

Action on two promissory notes, one for $2,200, made October 1, 1862, payable one day after date, and the other for $152 50, made May 5, 1862, payable on demand. The notes were payable to L. P. Felton or order, and were indorsed to the plaintiff. The complaint averred that the defendant, on the 1st day of July, 1863, departed from the State of California, and did not return until November, 1868. The action was commenced March 28, 1870.

The defendant, after the plaintiff had rested, moved for a nonsuit, because: First.—The evidence failed to show that the accident happened without any negligence on the part of the plaintiff contributing thereto. Second.—The evidence showed that the negligence of the plaintiff did contribute to the accident. The Court said that the question of neglect was a question for the jury, and not for the Court.

Ejectment to recover lot 6 in block 15, in the town of Princeton, County of Colusa. The plaintiff recovered a judgment against Thomas Long in the County Court of Colusa County, on the 17th day of July, 1871. Long was at this time the owner of the demanded premises. In January, 1873, an execution was issued on the judgment, and the lot was sold to the plaintiff, by the sheriff.

Ejectment to recover a tract of land in Santa Barbara County, The action was commenced March 9, 1870. The demanded premises, on the 30th day of March, 1861, were conveyed by Alfred A. Green to Dolores L. Green, his wife, and thus became her separate property. The plaintiff, to recover, relied on a deed of the demanded premises given him by said Green and wife, duly acknowledged, so as to pass the wife’s separate property, dated March 10, 1865.

Ejectment to recover a tract of land in San Rafael township, Marin County, commenced February 21, 1870. The trial was before a jury, and the defendant had a verdict and judgment. The plaintiff moved for a new trial, and the Judge, on the 9th day of December, 1870, made an order granting a new trial.

This is the second appeal in this ease. The case on the first appeal is reported in the 44 Cal. 392. When the remittitur reached the Court below, the plaintiff amended his complaint, making Wm. Gates and Willet Gates joint-plaintiffs.

In October, 1865, a corporation was organized to build a toll-turnpike, road from San Quentin, Marin County, to San Rafael, called the San Rafael Turnpike-road Company. They commenced the road about that time, and constructed it across a tract of swamp and overflowed land, near San Quentin. The company was organized under the laws of this State for the construction of toll-roads, and after the road was completed collected tolls from those who passed over it.

<p>Appeal from the County Court, County of Colusa.</p> <p>The defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

Action to recover the value of eighty head of cattle alleged to have been converted by the defendant. The parties were partners in a band of about six hundred cattle, which they pastured on the public range in the mountains in Humboldt County. In June, 1869, they dissolved the partnership, and corralled all the cattle they could then find. It was agreed that they should divide the cattle, Hindley taking two thirds and Hoare one third.

<p>When Court of Equity wild Enjoin Pboceedings in Pbobate Coubt.— When the administrator of an estate, and other persons, enter into a conspiracy, and institute proceedings in a Probate Court to procure the sale of the property of the estate for their own benefit, upon fraudulent claims allowed by the administrator, a Court of Equity has jurisdiction to arrest the proceedings in the Probate Court, by injunction.</p> <p>Idem.—In such case, if the proceedings are regular on their face, and the Probate Court has jurisdiction, the relief granted will be confined to an injunction, and the order of the Probate Court will not be set aside and annulled.</p>

On the 3d day of August, 1868, the Board of Supervisors of the City and County of San Francisco resolved to grade Jackson street from Polk street to Van Ness avenue. Such proceedings were had that a contract was entered into with John Hammill, and he performed the work. He assigned his demand to Himmelmann.

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>Action to recover an assessment levied on a lot at the southwesterly corner of Washington and Franklin streets, San Francisco, under a contract for improving the street, let under the Acts of April 25, 1862, April 25, 1863, and Acts supplementary thereto. The defendant recovered judgment and the plaintiff appealed.</p> <p>The other facts are stated in the opinion.</p>

The “Peoples’ Steam Navigation Company” was established in 1858, with a capital stock of one hundred thousand dollars, divided into shares of two hundred and fifty dollars each. In May, 1868, the defendants became the owners of eight shares of the capital stock of the corporation. In September, 1869, the corporation made its promissory note for $3,000, by which it promised to pay to the order of the plaintiffs, said sum.

John Ledwidge died in the county of Sonoma on the 12th day of December, 1870. He had been in the employ of the defendant for several years as superintendent of a flouring mill. The plaintiff was Public Administrator, and, as such, administered on his estate. He alleged in his complaint an indebtedness of the defendant to the estate in the sum of $10,000; a balance due for goods sold, labor done, and money paid by the intestate for the defendant’s use.

Conrad Kuchel was one of the original incorporators and stockholders of the Los Angeles Vineyard Society, a corporation organized in 1857, for the purpose of manufacturing wines. The corporation had acquired considerable real estate, portions of which had been subdivided into fifty vineyard lots, whereon vines had been planted and cultivated.

April 23, 1867, the plaintiffs sued Luther Hayward in the Fifteenth District Court, for the City and County of San Francisco, on a promissory note for $1,511 58, and interest, and procured an attachment which was placed in the hands of defendant Wood, who was sheriff of Solano County, and he, on the 25th of the same month, levied on personal property of Hayward, at Vallejo.

The action was brought on a promissory note given by Thomas Sprague to Thomas Dennis, or order, on the 19th day of January, 1865, and payable on the 1st day of November following. The note was endorsed by the defendant Huse. Dennis, the payee, transferred the note to the plaintiff after it fell due.

<p>Undertaking in Replevin.—If an undertaking, in an action of replevin commenced in a Justice’s Court, limits the liability of the persons who execute it to a judgment for a return of the property rendered by the Justice, and such judgment is not recovered in the Justice’s Court, a recovery cannot be had on the undertaking, even if, on appeal, such judgment is rendered by the County Court.</p> <p>Idem.—If the statutory form of the undertaking is followed, the defendant can recover the value of the property and costs, upon a judgment in his favor in the appellate Court.</p> <p>Idem.—The sureties, in an undertaking in replevin, are not liable to the defendant for the value of the property, unless he recovers a judgment for the return of the property. A judgment in favor of the defendant which does not award him a return of the property, does not impose any liability on the sureties.</p>

This is the second appeal in this case. The case on the former appeal is reported in the 42 Cal. 336. On the second trial, it appeared that defendant Pierce had not occupied any of the demanded premises, except the southwest quarter of section fifteen. At the commencement of the trial, the plaintiffs’ attorneys suggested the death of plaintiff Fagan, and asked that his executors, John and Patrick Tormey, be substituted as plaintiffs in his place. The Court made the order.

The defendant, on the 9th day of August, 1870, contracted with the plaintiff to lease from him for thirty six months from the 13th of August, the third story of a building on the southwest corner of Sansome and Pine streets, San Francisco. She executed a written lease. The rent was payable monthly. On the 5th of April, 1871, there was due on. the lease $588, and this suit was brought to recover the same.

The defendant was the registered owner of the schooner “ Spud,” engaged in carrying freight from Hookton to Eureka, Humbold County. A short time before-the 3d day of November, 1872, he made a verbal agreement with H. S. Soule, by which the latter was to sail the schooner as master, and victual and man her, and give Holt, the owner, one third of the gross earnings. Soule had not sailed the “Spud” within two years before the contract was made.

<p>Appeal from the District Court, First Judicial District, County of San Luis Obispo.</p> <p>Action to recover the undivided half of a threshing machine, commenced August 21, 1872. The defendant was sheriff, and levied on the same as the property of William Freeborn, by virtue of an attachment placed in his hands, issued by a justice of the peace, in the suit of Goldtree Brothers v. William, Freeborn. The trial was had before a jury, May 13, 1873. The transcript contained the judgment roll, and what purported to be instructions given by the Court to the jury, but no bill of exceptions. The defendant appealed from the judgment.</p> <p>The other facts are stated in the opinion.</p>

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>On the 17th day of January, 1856, Samuel Philips, was the owner of a lot in the city of San Francisco, on the northwest corner of Battery and Sacramento streets, fronting forty-five feet and ten inches on Battery, and ninety feet on Sacramento street, and mortgaged the same to Eugene Bitter and Theodore Le Boy to secure his debt to Bitter in the sum of $27,000, and his debt to Le Boy in the sum of $8,000, and interest on said sums at one and three fourths per cent, per month. In 1859, Bitter and Le Boy obtained a judgment in the District Court, foreclosing the mortgage, and directing the mortgaged property to be sold to satisfy the sum of $39,284 39, then due on the mortgage. On the 12th day of March, 1859, the parties enter into the following agreement:</p> <p>“In the District Court, Twelfth Judicial District, Cpunty of San Francisco.</p> <p>“Louis E. Bitter and Theodore Le Boy v. Samuel Phillips.</p> <p>“In this cause the defendant having paid to the plaintiffs the sum of thirteen hundred and fifty dollars and twenty-five cents, and having satisfied and paid the plaintiffs’ attorney his fees in the cause, so that no charge is to be made by him against his clients, and also the defendant having paid to the plaintiffs’ attorney one hundred and sixty dollars, the costs taxed in the cause; therefore, it is stipulated and agreed that the judgment for the two per cent, commission for counsel fee and costs taxed be satisfied to that extent, but remain in full force and effect for the thirty-nine thousand two hundred and eighty-four dollars and thirty-nine cents, with interest from the 5th day of March, a. d. 1859, as expressed in the judgment. And it is further agreed and stipulated that the jplaintiffs will pay A. H. Houston the amount due him under the contract with defendant for grading the streets in front of the property mortgaged, and charge the amount paid against the payment by them received above and the rents to be hereafter collected by the said Le Boy. It is further stipulated and agreed, that Theodore Le Boy, one of the plaintiffs, is to have charge of the property mortgaged, and to have the right and power to collect the rents now due and to become due from the tenants, and to rent the property or any part of it as it becomes vacant, as fully and with the same right and power over the property as if.it belonged to him and the other plaintiff; and at the end of each and every month, to apply the rents so by him to be collected to the payment of the interest due on the judgment in this cause above referred to amounting to thirty-nine thousand two hundred and eighty-four dollars and thirty-nine cents, and the surplus interest, after paying taxes, etc., to apply to the judgment. And it is further stipulated, that the order of sale or execution be and the same is stayed for the period of eighteen months from the 5th day of March, A. D. 1859, and at the end of that time, if the judgment or any part of it remains due and owing, that then an order of sale or execution issue in this cause to the Sheriff of this county, requiring him to sell the property mortgaged to pay the said judgment or amount due thereon, and that until the expiration of the said eighteen months this cause is continued.”</p> <p>“Dated March 12, 1859.”</p> <p>(Signed.)</p> <p>“It is further stipulated that Mr. Le Boy is to have four per cent, on the amount of rents collected by him under this stipulation.</p> <p>"March 12, 1859.” (Signed.)</p> <p>On the 10th day of September, 1860, they made a second agreement, as follows:</p> <p>“In the District Court, Twelfth Judicial District, in and for the County of San Francisco.</p> <p>“ Louis E. Bitter and Theodore Le Boy v. Samuel Phillips.</p> <p>“The stipulation entered into on the 12th day of March, A. d. 1859, between plaintiffs and defendant, staying the order of sale on execution for the space of eighteenth months, having expired on the 5th of September, a. d. 1860, and the accounts and vouchers having been rendered to defendant according to said stipulation, the amount due to plaintiffs has been found to be thirty-five thousand four hundred and forty-two dollars and eighty-one cents ($35,-442 81), and the defendant being unable to pay said debt, has asked a further continuance of this cause for the period of twelve months, with the privilege of twelve months more, which request has been granted on the following terms:</p> <p>“ 1st. Theodore Le Boy shall have the management of the property, as provided in the stipulation of March 12,1859, but his commission on rents and profits of said property shall be five (5) per cent, on the gross amount of receipts, instead of four per cent.</p> <p>“ 2d. From and after the 5th of September, 1860, the said Theodore Le Boy will keep two separate accounts, Nos. 1 and 2. Account No. 1 shall be charged with $35,000, amount due for principal. Account No. 2 will be charged with $442 81, balance of the amount due on the 5th of September. $35,442 81 total amount due on the 5th of September. Account No. 2 shall be credited with the rents, and charged with all expenses; as taxes, repairs, assessments, commission on collection of rents, and generally all disbursements required for the management of the property, and also each month in advance, with the interest at one and one quarter of one per cent. (If) per month on $35,000, unless said principal is reduced as hereinafter provided, and in case of any reduction of said principal, then with the monthly interest at If per cent, on the balance, and as soon as the credit balance of gaid account Eo. 2 shall amount to one thousand seven hundred and fifty dollars ($1,750), that is to say five (5) per cent, on the principal, said sum of $1,750 shall be divided between the plaintiffs, a pro rata of their respective interest in said principal, and said sum of $1,750 shall be deducted from the principal in account So. 1. And from the date of such repartitions, the monthly interest of If per cent, shall be counted only on the balance of principal, but it is understood that said repartitions or dividends shall never be less than $1,750 at one time.</p> <p>“Defendant having carefully examined the accounts rendered to him up to September 5, 1860, and having found said accounts correct and faithful, binds himself never to dispute the same, said accounts being hereby finally settled.</p> <p>“And it is expressly stipulated that the order of sale or' execution be, and the same is hereby stayed for the period of twelve months from the 5th day of September, 1860, and at the end of that time, if any part of the judgment remains due and owing, then an order of sale on execution may issue in the cause to the sheriff of this county, requiring him to sell the mortgaged property to pay the amount due on the judgment; and that until the expiration of said twelve months this cause is continued.</p> <p>“Dated in San Francisco, the 10th day of September, in the year of our Lord 1860.”</p> <p>Le Eoy entered into possession of the premises under the first agreement, and collected the rents and took care of the property, and applied the net proceeds on the amount due on the judgment down to the time judgment ,was rendered in this action, to-wit, February, 10, 1872. Le Boy, from time to time, accounted with Philips, and gave him statements of the rents received, sums paid out for taxes, repairs, etc., and of the amount due on the decree. On the 3d day of April, 1869, Philips conveyed to the plaintiff, Frink, a portion of the mortgaged premises fronting twenty-three feet and eight inches on Battery street, and sixty-three feet and four inches on Sacramento street.</p> <p>Before the conveyance to Frink, Le Boy became the owner by assignment of the mortgage and judgment debt. Frink, on the 27th of January, 1870, commenced this action to recover possession of the premises thus conveyed to him. At the time the judgment in this action was rendered, there was due to Le Boy on the judgment debt, the sum of $23,-000. The defendants, other than Le Boy were his tenants. In their answer, the defendants plead the Statute of Limitations, and, by way of cross complaint, set up the mortgage, the judgment foreclosing the same, and the said agreement with Philips, and asked that the mortgaged premises be sold under the decree, and that the sum due Le Boy be paid out of the proceeds of the sale. They also asked, if this relief was denied them, that Le Boy be quieted in his title.</p> <p>The plaintiff answered the cross-complaint, pleading the Statute of Limitations as to the right of Le Boy to have affirmative relief. The Court refused to grant the relief asked by the defendants, and rendered judgment for the plaintiff. The defendants appealed from the judgment and from an order denying a new trial.</p>

<p>Mileage op Sherbet and Constable.—A Sheriff or Constable, under the Statute of 1870, for executing a warrant of arrest, is entitled to mileage, both for the distance traveled in going to make the arrest, and for that traveled from the place of arrest to the magistrate. They are also entitled to mileage for distance traveled outside the county in making an arrest, and in taking the prisoner toward a magistrate.</p>

On the 26th of November, 1833, Jose Figueroa, then Governor of California, granted to Joaquin Castro the rancho, known as “San Andreas,” in the present County of Santa Cruz. On the 18th of April, 1823, Don Luis Anto. Arguella, then Governor of California, granted the rancho “ Corralitos ” to Jose De Amesti, and', on the 1st of April, 1844, Manuel Micheltorena, then Governor of California, gave him a confirmatory grant. The other facts are stated in the opinion.

<p>Patent fob Mexican Grant.—Both the officers of the government and the grantee, as well as those in privity with him, are hound by the recital of facts contained in the patent for a Mexican Grant.</p> <p>Power to Issue Patents and Sell Public Land.—Neither the President nor any officer of the government has any power to dispose of the public domain, or to sign or cause the seal of the United States to be a,f- „ fixed to a patent, except such as is conferred by a statute of the United States.</p> <p>When Patent may Issue.—A patent to a Mexican grant of land cannot be issued until after a final confirmation.</p> <p>What Recitals in Patent are not Conclusive.—While the recitals of fact contained in a patent are binding on all concerned, an opinion of the executive officers as to matters of law, indicated either by the act of issuing the patent, or by the recitals contained therein, is not conclusive.</p> <p>Patent Issued without Authority is Void.—A patent for a Mexican grant of land, issued while an appeal to the Supreme Court from the decree of the District Court confirming the same is pending, is void.</p> <p>Vacating an Obdeb Granting an Appeal. —When an appeal has been granted by a District Court of the United States to the Supreme Court, the jurisdiction of the Supreme Court attaches, and the District Court has no power to vacate the order granting the appeal.</p>

<p>Enfoboino Lien undeb Act of 1868.—If, at the time of the lien of a material man or laborer accrued under the Act of March 30, 1868, the owner of the premises was not in possession, but the same were in possession of a lessee whose term had not expired, and who caused the labor to be done or the materials to be furnished, a personal judgment cannot be rendered against such owner, in an action enforcing the lien.</p> <p>Idem.—If, in- an action to-enforce such lien cvated by a lessee, the premises belonged to a corporation, and its President visited the same while the work was going forward, and was informed of the same, it is, prima facie, sufficient to charge the corporation with knowledge of the fact that the work was being done, and if the corporation gives no notice that it will not be responsible, its estate in the premises may be sold for the lien, as well as the estate of the lessee.</p> <p>Claim fob Lien Filed with the Becobdeb.—The claim for a lien filed with the County Eecorder, under the Act of 1868, must state the name of the person to whom the materials were furnished, and the name of the owner or reputed owner of the premises.</p>

<p>Striking Documents from the Recobd.—A verdict of a jury and order modifying it printed in a transcript, which form no part of a statement on motion for a new trial, and which were not before the Court when the motion was heard, will be stricken from the record in the Supreme Court.</p> <p>Specifications in Statement.—A statement on motion for a new trial made before the code took effect, Inust, if it is claimed that the verdict is against the evidence, specify the particulars wherein it is claimed that the evidence is insufficient.</p> <p>Exception to Charge of Court.—A statement made by counsel to the official reporter, when the Court charges the jury that he wishes it understood that he saves an exception to the charge, does not amount to an exception, even if it was assented to at the time by the opposing counsel.</p> <p>Litem.—Even if counsel for the respective parties may, by consent, reserve the right to except to the charge of the Court to a jury, this consent is of no avail unless the exception is contained in the statement on motion for a new trial.</p>

<p>Proof of Corporate Existence.—If a party is indicted for stealing the property of a corporation, it is sufficient for the piosecution to prove (hat the company is a corporation defacto, doing business as such.</p> <p>Testimony of Accomplice in Crime.—One who did not know of the larceny until after it was committed, but whp purchased the stolen property under directions of an officer, with money furnished by the officer with a view of detecting the thief, is not an accomplice whose testimony requires corroboration in order to convict the defendant, under section 4 of the Penal Code.</p> <p>Confessions as Evidence.—A confession of a crime made to one in authority, upon a promise to the accused that it will be better for him to make a full disclosure, is not admissible in evidence upon the trial of the accused, because it is not voluntary.</p> <p>Plea of Eormer Conviction.—If a defendant in a criminal ease appeals from a judgment of conviction, but does not move for a new trial, and the judgment is reversed, and a new trial ordered, the former conviction is not a bar to a new trial.</p>

Application to the Supreme Court for a writ of mandate. The plaintiff applied to the Supreme Court for a writ of mandate. He set forth, in his petition, that in November, 1866, he commenced an action in the District Court of the Sixteenth Judicial District, for the county of Inyo, (of which District the defendant was and is Judge) and that, in May, 1867, the Court sustained a demurrer to the complaint, and refused to allow him to amend his complaint.

A number Di- gentlGinen in Santa Rosa and vicinity, Sonoma County, formed a plan to erect ajeollege, to be under the management of the Christian Church.

Francisco. On the 18th day of June, 1870, John McHenry executed to the plaintiff a mortgage on a lot at the north-westerly corner of Washington and Taylor streets, to secure his promissory note for $14,000, due twelve months after date. On the 13th of August, 1872, this action was commenced to enforce the mortgage.

<p>Official Repobtebs of Cotjbts.—The Act of March 26, 1872, (statutes 1871-2, p. 551,) allowing the short-hand reporter of the County Court of San Joaquin County to attend before a grand Jury and take down the testimony of witnesses, is repealed by the amendments to the Code of Civil Procedure, approved March 30, 1874, and said amendments are a substitute for all former Acts, both general and special, respecting official short-hand reporters.</p>

<p>Shbbty on Attachment Bond.—The liability of a surety on an attachment bond is on his contract. He is not liable as a trespasser, for a seizure of property attached by the sheriff, evenjf the bond was void.</p>

The complaint was filed on the 21st day of March, 1872. On the 31st of May following, defendant Duran filed and served on the plaintiff’s attorneys a disclaimer of all interest in the “subject-matter of the controversy.” June 12, 1872, Duran and Brown filed a joint answer, and, on the 2d of April, 1873, they filed another joint answer.

Appear from the District Court, Seventh Judicial District, County of Napa. On the 1st day of April 1871, the defendant Currey recovered a judgment against the plaintiff Wood, in the District Court of Napa County, for the sum of $4,912 25. On the 3d day of June, 1871, Currey received on the judgment, by sale on execution of certain real estate known as the Napa Soda Springs property, the sum of $2,748 40.

<p>Enramas of Eaots.—In actions tried by the Court since the passage of the Codes, where findings of facts are made, the Court must ¿nd on all the material issues made in the pleadings.</p> <p>Idem.—A statement in the findings of facts, that no testimony was offered by either party upon an issue made in the pleadings, is not a finding in the negative on such issue.</p> <p>Deceivino Land Offioebs.—If a patent to land is issued to a railroad company. under a grant made by Congress of alternate sections along the line of its route, and ejectment is brought on the patent against one who had settled on the land, and acquired a pre-emption right before the land had been withdrawn from market, and he depends on the ground that the land officers were misled by false and fraudulent testimony of the agent of the railroad company, the facts that such agent swore that the land was vacant and unappropriated, and that the land officers did not know that the defendant was on the land, tend to show that the land officers were so misled.</p>

Horace Hawes was a resident of San Francisco, and the owner of a large amount of valuable real estate, lying in San Francisco and in the county of San Mateo. On the 24th of February, 1871, he executed a deed of the real estate to the defendants, in trust, for the establishment and maintenance of. an institution for the diffusion of knowledge, to be called the “Mont Eagle University.” Hawes died on the 12th day of March, 1871.

Nancy J. Branson, was the wife of Louis Branson, and was sole plaintiff when the action was commenced. She averred in her complaint, that she was in the possession of a lot, one hundred feet by two hundred, at the north-east corner of block one hundred and eighty-seven, in Horton’s addition to the city of San Diego; that the same was her separate property, and that the defendants claimed an estate therein adverse to her, and their claim was without right.

The witness Plageman was the person whose house had been broken and entered. The District Attorney, in the course of his examination, did not ask him his name, and there was no proof that it was Plageman’s house which had been broken, except the answer to the question put by the Clerk. The defendant was convicted, and was sentenced to the State prison, June 20, 1874, and appealed. The other facts are stated in the opinion.

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

Action to recover the amount of an assessment for street work in San Francisco. The plaintiff recovered judgment, and the defendants appealed. The other facts are stated in the opinion.

The indictment charged C. G. T. Swenson with the crime of “an assault with intent to commit murder, committed as follows, to wit: The said C. G. T. Swenson, on or about the 26 th day af January, a. d. eighteen hundred and seventy-four, at and in the county and State aforesaid, did assault, with intent to commit murder, one Benjamin Cook, then and there living, contrary to the form, force and effect of the statute,” etc. After a verdict of guilty, the defendant moved that the…

<p>Costs in Cbiminai, Actions.—Under the Act of 1851, concerning the costs of criminal actions, if a case is removed from the county where the indictment was found, for trial in another county, the county where the indictment was found is liable for the fees of the Sheriff of the county to which the cause was removed, and the Auditor of the latter county may draw his warrant on the Treasurer of the former for the same, and mandamus will lie to compel such Treasurer to'pay it.</p> <p>Act in Fobce:—The Act of April 29, 1851, concerning costs in criminal actions (Stats. 1851, p. 185), is still in force, and was not repealed by the Penal Code.</p> <p>Statutes Continued in Fobce by the Codes.—The volume of statutes continued in force, published by the Code Commissioners, has not received the legislative sanction, and is not, therefore, authority.</p>

<p>Puea of Gtomrr, Effect of.—If the defendant pleads “ guilty of the offense as charged in the indictment,” and the indictment charges the offense of petit larceny committed after a previous conviction for petit larceny, the plea confesses the offense charged, which includes the previous conviction, and the defendant must he sentenced for a felony.</p>

<p>Condemnation of Land fob a Railroad.—In. an application by a railroad company to condemn land, if damages are assessed for an undivided interest in a tract of land, the company cannot move to set aside the report of the Commissioners as to such undivided interest, but the motion, if made, must be to set aside the report as to the whole tract in which the party owns an undivided interest.</p> <p>Right of Eminent Domain.—In special proceedings by which private property is taken for public use, the statute must be strictly pursued.</p>

<p>Appeal from the District Court, Fifth Judicial District, County of San Joaquin.</p> <p>The State of California, March' 1,1859, issued to Isabella Percy, a certificate of purchase for the west half of section eleven, township three north, range eight east, Mount Diablo meridian, under the Act of 1858 to provide for the sale of the unsold portion of the 500,000 acres granted to the State for school purposes, etc., and also issued to Wm. Fogarty, under the same Act, a certificate for the south-east quarter of section three, and south-west quarter of section two, same township and range. Defendant Eldred became the owner of these certificates by purchase, and entered into possession of the land. July 15, 1867, he gave Thomas Hill his promissory note for $1,434 20, bearing interest at one and a half per cent, per month, and, to secure the note, assigned to Hill the first-named certificate. July 17, 1867, Eldred also gave M. C. Hillyer his note for $453 55, bearing interest at the rate of one and one quarter per cent, per month, and, to secure the same, assigned to Hillyer the certificate last-named. March 4, 1871, Hillyer assigned said note to the plaintiff. There became due annually to the State on said certificates, interest at ten per cent, per annum on one dollar per acre, the amount of purchase-money due the State. Eldred neglected to pay this interest, and, to prevent the land from being forfeited to the State, the plaintiff paid the sum of $328 13 interest on the sum due for each piece of land. Thomas Hill died in 1868, and left a will, in which his property was devised to the plaintiff, who was his widow. The will was probated, and the estate settled, and the property distributed to the plaintiff. The plaintiff commenced this action in April, 1871, on said notes, and asked the Court to decree her a lien on said certificates of purchase and land, and that the same be sold, and the proceeds applied to satisfy the amount her due and costs. The Court below decreed that the certificates be sold separately, and the proceeds of the sale of each be applied on the debt it was assigned to secure, and the amount paid for interest, and also decreed that the plaintiff had an equitable lien on each piece of land for the amount due on the note the assignment was made to secure, and for the sum paid as interest to preserve the land, and directed the land to be sold, and the proceeds to be thus applied. The Court computed interest on the sums paid for interest due the State at the rate mentioned in the notes. The defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

The steamer Japan sailed from the port of Hongkong, in China, and arrived at the port of San Francisco, in California, on the 24th day of August, 1864.

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>This was an information filed by the Attorney-General in which it was alleged that the defendant was an usurper and intruder into the office of “Inspector of Gas Meters” in the City and County of San Francisco, and that the relator was entitled to the same. Judgment was asked excluding the defendant from the office, and declaring that the relator was entitled to it. The information was filed on the 27th of July, 1874. The defendant was appointed to the office by the Governor, on the 29th day of November, 1871, and, on the 1st day of December following, qualified and took possession of the office, and continued to perform its duties from that time forward. On the 7th of July, 1874, the Governor appointed the relator as his successor. On the 9th day of July, 1874, he took the’oath, and filed a bond and qualified; and, on the 13th of July following, demanded possession of the office from the defendant, who refused to comply with the demand. The relator’s appointment was not sent to the Senate for confirmation, as that body was not in session. The Court below held that there was a vacancy in the office, and that, as it occurred during the recess of the Legislature, the appointment did not require the consent of the Senate, and gave judgment for the relator. The defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>1 Action to enforce a lien for work done in improving a street in San Francisco, commenced August 1, 1870. The resolution of intention to improve the street was passed May 3, 18G9. The name of the plaintiff’s attorney was printed at the bottom of the complaint instead of being written, and the complaint was printed, except blanks, in which there was writing. The defendants moved the Court to strike out the judgment-roll, because the name of the plaintiff’s attorney was not written, but printed at the end of the complaint, and because the judgment was against both defendants, while only one of them was served with summons. The Court below denied the motion. The defendants appealed.</p> <p>The-other facts are stated in the opinion.</p>

<p>Statement on Pbopebty Fubnished to an Assessob.—If, in an action to recover a tax brought against a railroad company, the company avers in its answer that its superintendent furnished the Assessor with a written statement of the real estate belonging to the company, the company cannot, on the trial, be heard to dispute the authority of its agent to give a list of its property, nor to deny that the property contained in. the list belonged to the company.</p> <p>Idem.—Such statement of property furnished to an Assessor is binding on the corporation, and justifies the Assessor in adopting it as a correct statement of the property belonging to the company.</p> <p>Becobd of Assessob’s Official Action.—An Assessor is not required to keep a book containing the original list and assessment of each man’s property, and if he does keep such book, entries in it are not a record of his oficial action, and may be changed by him.</p> <p>Idem.—The “ tax list or assessment-roll ” which must be certified by the Assessor and delivered to the Clerk of the Board of Supervisors, is the only record of his final judgment, as to the value of property.</p> <p>Tax fob School Purposes.—A tax for school purposes must be based upon an assessment made by an Assessor elected by the qualified electors of the school district.</p>

<p>Appeal from the District Court, Fifth Judicial District, County of Stanislaus.</p> <p>McElhany, the defendant, recovered a judgment in the County Court of Sonoma County, against Samuel Gates ei al., and on the 9th day of July, 1869, procured an execution directed to the Sheriff of Stanislaus county, and placed it in the hands of the plaintiff, who was such Sheriff. The Sheriff levied on property, and March 9, 1870, brought this action to recover for his services, and the fees of a keeper. The complaint, after allegations that the plaintiff was Sheriff, and that the execution was issued and placed in his hands, proceeded as follows:</p> <p>“ That in pursuance of the said execution, and at the special instance and request of the said defendant, W. H. McElhany, the said plaintiff as Sheriff, as aforesaid, did render and perform certain work, labor and services for the said defendant, W. H. McElhany, between the 18th of July, A. D. 1869, and the 1st day of March, A. D. 1870, whereby the said defendant, W. H. McElhany, became indebted to the said plaintiff for the services done and performed as aforesaid, as follows, to wit:</p> <p>To levying execution in the aforesaid case of McElhany v. Gates el al.........................$ 2 00 To advertising property in said case............. 3 00 To mileage—38 miles, in said case.............. 19 00 To Keeper’s bill for taking care of property levied upon, 226 days, at $2 50 per diem.......... 565 00 Paid County Clerk of San Joaquin ... %.......... 6 00 Amounting to the total sum of...................$595 00 “That no part of the said sum has been paid; wherefore,</p> <p>plaintiff prays judgment for the sum of $595,- and for all costs of suit.”</p> <p>The defendant interposed a general demurrer to the complaint, which was overruled. On the trial, the plaintiff proposed to prove by himself and others, the value of his work and services in taking possession of, and preserving the property levied on. The defendant objected that the certificate of the Court was the only competent evidence of the value, and that the evidence was not competent under any allegation of the complaint. The Court overruled the' objection. There was no evidence of any certificate by the Court. The Court below rendered judgment in favor of the plaintiff for all the items contained in the complaint, except the item of $6 clerk’s fees. The defendant appealed.</p>

The defendant Perdue, and Walter S. Spear, were charged in the indictment with the murder of Enoch E. Babcock. The offense was charged to have been committed at Marysville, Tuba County, on the 8th of August, 1873. The defendants moved for a change of venue upon the ground that they could not have an impartial trial in Tuba County, owing to the prejudice of the people against the defendants.

On the 18th day of January, 1875, a warrant was issued by the Chief Justice of the Supreme Court, for the arrest of the petitioner, White.

<p>Abbest of Fugitive fbom Justice.—The law of this State authorizing the arrest of a fugitive from justice who has fled from another State, before a demand for his surrender by the executive authority of the State from which he fled, and his detention for a reasonable time to afford an opportunity for such executive demand, is not in conflict with the second section of Art. IV of the Constitution of the United States.</p> <p>'Warrant fob Abbest of Fugitive fbom Justice.-—The proceedings under the statute in relation to the arrest and detention of fugitives from justice, are required to be similar to those against persons charged with crimes committed in this State, and the warrant must specify the offense alleged to have been committed by the accused.</p>

<p>Grant on Land to Central Pacific Railroad Company.—The grant made to the Central Pacific Railroad Company of California, by the Acts of Congress of July 1, 1862, and July 2, 1864, gave to said company and its assigns a title to the odd sections within the limits of the grant which were included within the boundaries of an inchoate Mexican grant, proceedings for the confirmation of which were pending when said Acts were passed, but which was afterwards rejected by the Courts of the United States.</p>

<p>Selection op Lieu Land.-—A selection of land, as lieu land, in place of the sixteenth and thirty-sixth sections granted to this State, made before the land selected has been surveyed by the United States, is unauthorized and void.</p> <p>Pbaotice on Bevebsal op Judgment.—If a judgment was rendered before the passage of the Code of Civil Procedure, and there was no finding of facts or agreed statement of facts, the Supreme Court, on reversing the judgment, will not direct a judgment to be rendered in favor of the losing party.</p> <p>Act op Congbess op July 23, 1866, concebning State Lands.—The Act of Congress of July 23, 1866, confirming selections of public land made by or on behalf of this State under grants of Congress, which selections were void when the Act passed, did not have the effect of confirming the title of the State to a selection of an odd section within the belt granted by Congress to the Central Pacific Bailroad Company of California, by the Acts of July 1, 1862, and July 2, 1864.</p> <p>Land G-bant to Centbal Pacipio Bailboad Company.—The odd sections of land included within the boundaries of a rejected Mexican grant which was rejected after the passage of the Acts of Congress of July 1, 1862, and July 2, 1864, granting land in aid of the construction of the Central Pacific Bailroad Company of California, passed, by said Acts, to the railroad company, and the State, after the passage of said Acts, could not select such sections as lieu lands.</p>

<p>Gbant of Land to Centeal Pacific) Railboad Company.—The grant of land made to the Central Pacific Railroad Company of California, hy the Acts of Congress of July 1, 1862, and July 2, 1864, gave said company a title to the odd sections within the limits of the grant, as against a claimant under a Mexican grant, which was rejected after the passage of said Acts.</p>

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

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

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

On the 12th day of August, 1858, at the City and County of San Francisco, Frances A. McEnnis, Mary F. Buckley, Sebastian Doyle, Mary F. Brown, Frederica McGrath, Mary Bernice Williams, Ella Eose Dougherty, Mary P. O’Driscoll, and Mary P. McCarthy, desiring to act in concert for the objects and purposes specified in the certificate hereinafter mentioned, but principally for the care, relief and protection of orphans, and desiring to form an incorporated company for the…

Application to be discharged upon habeas corpus from imprisonment in the State Prison.

Joseph W. Clark commenced an action in the District Court of the Twelfth Judicial District, City and County of San Francisco, against John W. Harker, Mary A. Harker, George M. Harker, and Duel Harker, and alleged, among other things, that John W. Harker was indebted to him, and that Mary A. Harker had a large amount of the property of said John W., as his fraudulent trustee, to keep the same out of the reach of the plaintiff, and that said John W. and Mary A. designed…

<p>Note Payable Thirty Days after Demand.—When a promissory note is made payable thirty days after demand, no cause of action arises on the note until thirty days after a demand of payment.</p> <p>Idem.—If the maker of such note dies before demand of payment is made, a presentation of the note to his administrator for allowance as a claim against the estate, is not a demand of payment.</p>

<p>Deobbe of Specific Pebfobmahce by Pkobate Coubt.—If the statute authorizes the Probate Court to compel an administrator to execute a conveyance of real estate, in a case where the intestate had contracted in writing to convey it, the petition asking for a decree compelling the administrator to convey, must state that the contract was in writing, in order to give the Probate Court jurisdiction.</p> <p>Idem.—Section 1597 of the Code of Civil Procedure does not empower the Probate Court to direct an administrator to perform specifically a contract for the conveyance of land made by his intestate, unless the contract of the intestate was in writing.</p> <p>Idem.—The words “ and in all cases where such decedent, if living, might be compelled to make such conveyance,” inserted in such section by way of amendment to section 205 of the old Probate Act, do not extend the jurisdiction of the Probate Court to cases where there was no contract in writing.</p> <p>Idem.—The question of the extent of equitable jurisdiction which may be conferred on the Probate Court, as collateral to the main objects for which that Court is created, not decided.</p>

<p>Appeal from the District Court, Seventh Judicial District, County of Sonoma.</p> <p>Ejectment to recover lot number 5, of section 11, in township 4 north of range 8 west, Mount Diablo meridian, in the county of Sonoma. The plaintiff claimed under a sale of the United States as public lands, and a patent issued to the purchaser, José Eamon Mesa. The defendant claimed the demanded premises as a part of the Eancho Laguna de San Antonio, granted by the Mexican nation to Bartolomé Bojorques in 1846. The plaintiff offered in evidence the patent to Mesa, and a deed from Mesa to himself, and having introduced testimony with regard to damages, rested. The defendant then introduced in evidence the expediente of the Eancho Laguna de San Antonio. To the expediente was attached a diseño or map. The grant to Bojorques described the land granted as follows: “ Bounded on the south-east by the land of Juan Martin, on the northwest with the two rocks (los dos piedros), on the southwest with Los Tómales, and on the north-east with Juan Miranda, and is of the extent of six square leagues.”</p> <p>Defendant then offered in evidence the petition of Bojorques, for the confirmation of the grant presented to the Board of Land Commissioners, October 12, 1853, and the decree of the Board confirming the grant, in which it was described as follows:</p> <p>“The lands of which confirmation is hereby made, are known by the name of 1 Laguna de San Antonio,’ being the same on which said petitioner resides, and bordering towards the north-east on the lands known in November, A. D. 1845, as the lands of Juan Martin; towards the northwest on los dos piedros; to the south-west on Los Tómales; and toward the north-east on lands known, at the date of the last mentioned, as the lands of Juan Miranda; the said premises being of the extent of six square leagues. Deference for more particular description thereof to be had to the original grant, and to the map, a copy of which is filed in this case.”</p> <p>The defendant then offered in evidence the decree of the District Court of the United States for California, entered September 10, 1855, on appeal from the Board of Land Commissioners, affirming the decree of said Board, and an order made by the said District Court on the 24th day of November, 1856, reading as follows:</p> <p>“The Attorney-General of the United States having given notice that no appeal to the Supreme Court of the United States will be presented in this case, and a stipulation having been entered into by the District Attorney,1 that no further appeal shall be taken on the part of the United States, and for leave to the claimant to proceed under the decree of this Court heretofore rendered in his favor. On motion of the District Attorney, it is ordered, adjudged and decreed, that the claimant have leave to proceed under the decree of this Court, heretofore rendered in his favor, as on final decree.”</p> <p>The defendant then proved title in himself under the grant. The plaintiff, in rebuttal, introduced the plat of the survey and field notes of said rancho, made by the Surveyor-General, and introduced evidence tending to show that the demanded premises were not within the boundaries of the survey. It was here admitted that the land in controversy was within the boundaries of the diseño or map, but not within the boundaries of the survey of the grant made by the Surveyor-General. The plaintiff then offered to prove the matters stated in the opinion, and copied from the bill of exceptions. The defendant had judgment, and the plaintiff appealed from the judgment, and from an order denying a new trial.</p>

Application to the Supreme Court for a writ of mandate. The Act of March 28, 1874, provided that the Board of Supervisors of Siskiyou county must meet in Yreka, the county seat, on the second Monday in May, 1874, and order an election to be held in Siskiyou county, on the 30th day of May, 1874, at which the qualified electors of the county might vote on the question of the annexation, to Siskiyou county, of a portion of Klamath county described in the Act.

The defendant was charged in the indictment with having, on the 16th day of October, 1873, murdered Owen Grillen by a blow with an ax.

The last will of Robert W. Durham was filed in the Probate Court of Butte county, on the 2d day of November, 1871, and was admitted to probate on the 27th day of February, 1872. The executors named in the will were Charles F. Lott and W. W. Durham, and letters were issued to them. The will contained the following clause: “ Item eight—It is my will, and I hereby direct, that all my personal property of every nature and kind.

<p>Administration on an Estate.—If an administrator of an estate is appointed and qualifies, and afterwards, without his removal (a will having been found), another person is appointed administrator with the will annexed, and qualifies, the latter appointment supersedes the former administration, and the acts of the administrator with the will annexed are valid.</p> <p>Objections to the Validity op Pbobate Sale op Land.— If the Probate Court acquires jurisdiction to direct a sale of the real estate left by the deceased, and the same is sold by the administrator with' the will annexed, and a deed given to the purchaser, objections, that the claim to pay which the sale was made was not a debt for which the land stood charged under the will, and that it was not presented to the administrator for allowance, should be taken in the Probate Court, or by appeal, and cannot be raised in a collateral action to partition the land.</p> <p>Conflict between Sale by Heirs and by Probate Court.—If the grantee of a Mexican grant petitioned for its confirmation, and died during the pendency of the proceedings, and his children were substituted in his place, and the confirmation was made, and the patent issued to them, as his heirs, a sale of the land made under the direction of the Probate Court before the patent issues, will confer on the purchaser a better right than the heirs possess, and a Court of equity will inforce such right against the heirs, or a purchaser from them.</p> <p>Limitation of Actions as between Tenants in Common.—If the possession of one, as a tenant in common, is not disturbed by his co-tenants, and there have been no acts of exclusion equivalent to an ouster by his co-tenants, they cannot claim the benefit of the Statute of Limitations as against his right or title.</p>

<p>Construction ot Will.—A will which devises a certain number of cattle and sheep, and also bequeaths to the devisee the right, during his natural life, to pasture the cattle and sheep on land of the testator devised to another is to be construed as giving to the devisee the right to graze on the land, during his life, the number of cattle and sheep bequeathed, even if not the identical live stock bequeathed.</p> <p>Idem.—Wills are to be liberally construed so as to effectuate the intention of the testator.</p>

The petition for the settlement of the bill of exceptions was filed in the Supreme Court on the thirteenth day of January, 1875. The other facts are stated in the opinion.

<p>Appeal from the District Court, Seventeenth Judicial District, County of Los Angeles.</p> <p>About the year 1784, pursuant to instructions from the Viceroy of Mexico to the Governor of California, the Pueblo de Los Angeles was created, on what is now the site of the city of Los Angeles, and was endowed with the quantity of land usually allotted to Pueblos in California. The river Los Angeles flows through the Pueblo, and the Pueblo was vested with the right, in absolute ownership, to the water flowing in the same. The Pueblo, through and by its ayuntamiento, excavated and constructed ditches, irrigating canals, zanjas and acequias for the purpose of conducting said water from the river to and upon the lands of its inhabitants, within the limits of the Pueblo, and was from the time of the construction thereof up to and until the 4th day of April, A. d. 1850, the owner in fee simple of all and each of such ditches, irrigating canals, zanjas and acequias. The Pueblo, through its ayuntamiento and officers, appropriated and used the waters of the Los Angeles river for the purposes of irrigation and domestic uses until the incorporation of the Pueblo as a city, on the 4th day of April, A. D. 1850.</p> <p>On the 4th' day of April, 1850, the city of Los Angeles was incorporated, and succeeded to and acquired all the rights, claims and powers of the Pueblo de Los Angeles in regard to property, and through its officers and representatives, from the day of its incorporation until the 2d day of April, A. d. 1870, continued to appropriate and use the waters of the river in the same way and for the same purposes as the Pueblo before it had done.</p> <p>The city of Los Angeles, acting by its Mayor and Common Council, from the date of its incorporation until the 2d day of April, 1870, charged to and collected from persons using the water flowing in said river and through its irrigating ditches connecting therewith, a certain water rate or tax, which being paid into -the City Treasury, constituted a “Water Fund,” and was disbursed by the City Treasurer upon warrants drawn on that fund for services and labor rendered in connection with the management, control'and disposition of the said water.</p> <p>On the 2d day of April, a. D. 1870, an Act of the Legislature of the State of California, entitled “An Act to create" a Board of Water Commissioner in the City of Los Angeles, and to define their powers and duties,” was approved. By this Act certain powers and duties were conferred upon the Board of Water Commissioners, among which were to raise money by sale of water, the money so raised to be paid into the hands of the City Treasurer, and there constitute a fund, to be known as the Water Fund; also to draw warrants upon that, fund in the payment of certain indebtedness which they were authorized to contract. (See Acts of 1869-70, pages 702-7, inclusive.)</p> <p>Under that Act, and upon that Water Fund, the warrants in question and the subject-matter of this proceeding were drawn.</p> <p>After two years’ experience, it was ascertained that the new arrangement did not accomplish the result hoped for, and, on the 19th day of January, 1872, the Act of April 2, 1870, creating the Board, was repealed, and the management and distribution of the water was again vested in the city. (For the repealing Act, see Acts of 1871-2, page 30.)</p> <p>Subsequently, by the same Legislature, another Act entitled, “An Act to amend the charter of the City of Los Angeles,” was passed and approved, February 20, 1872. (See Acts of 1871-2, pages 128 and 129.)</p> <p>By this Act, the Mayor and Common Council of the city were authorized to raise money by sale of water and a special tax upon land within the city irrigated from the said ditches, which money should be paid into the City Treasury, and should there constitute a separate fund, to be known as the “Water Fund,” and was to be disbursed only as provided in said Act.</p> <p>On the 1st day of April, 1871, the Board of Water Commissioner's consisted of Luis B. Martinez, J. J. Warner, and Bafael L. Banchet, and there was due Felix Gallardo for services as overseer, in the construction and management of the ditches, the sum of one hundred dollars, and to one Jesus L. Cruz, for like services as overseer, one hundred dollars. On said day the said Board allowed and approved the said accounts, and drew its warrant on the defendant who was City Treasurer, of which the following'is a copy:</p> <p>“Mr. George B. Butler: Pay to the order of Felix Gallardo one hundred dollars, value received, and charge the same to account of the Los Angeles City Water Fund.</p> <p>“Signed: LUIS B. MABTINEZ, Chairman.</p> <p>“[No. 32.] J. J. Warner, Secretary.”</p> <p>A similar warrant was drawn in favor of Cruz. The warrants were presented for payment on said day, and the Treasurer endorsed thereon “not paid for want of funds.” The warrants were assigned to the plaintiff, who, on the 23th of May, 1873, again presented them to the defendant, who was still Treasurer, but he declined to pay them, alleging as a reason that the fund upon which they were drawn was no longer in'existence. This was an application for a writ of mandate to compel the Treasurer to pay the warrants. The Court ordered the writ to issue, and the defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

• Action commenced on the 15th day of March, 1872, under the 254th section of the Practice Act, to quiet title to a tract of salt marsh swamp land, lying in Marin County, between the San Bafael Turnpike Boad Company’s road, and the highlands to the westerly and southerly of said road. The land was located by John Simms and John F. McCauley, under an Act of the Legislature of this State for the sale of salt marsh lands, and they obtained a certificate of purchase.

Mandamus to compel defendant to pay the following warrant: “$155 03.

<p>Specification of Reasons -why New Tbial should be Gbanted.—In an application for a new trial on the ground that the evidence does not justify the decision, a specification that the evidence is insufficient to justify the judgment, is not sufficient.</p> <p>Idem.—In such case a specification that the cause of action set forth in the complaint is not sustained by the evidence, is not sufficient.</p> <p>Possession of Public Land.—One who has public land enclosed by a fence, and has a shed on it, and cuts hay on it, but does not reside on it, has possession.</p> <p>Evidence of Title.—Proof that a party had the actual possession of land is prima facie evidence of title.</p>

The Board of Land Ommissioners confirmed the claim of the Pueblo of San José to four square leagues, and an appeal having been taken to the United States District Court for the Northern District of California, that tribunal, on the 6th day of August, 1857, also confirmed said claim, discribing it by-metes and bounds.

<p>Liability op County Tbbasubek.—If a County Treasurer receipts to persons who owe the State for land, without receiving the money, hut with an understanding that such persons will pay him the money when he requires it to make a settlement, and the Treasurer soon after dies, and such persons pay the money to his successor in office, who credits it to the account of the deceased, the Treasurer’s bondsman cannot be holden for the money, for the payment to the successor in office is a liquidation of the demand.</p>

In December, 1869, M. S. Webb obtained from the North America Life Insurance Company an endowment life policy for $4,000, payable to himself in fifteen years, or to his personal representatives, upon his earlier death. May 12, 1870, he married, and died April 15, 1872, intestate. Deceased left, surviving him, his wife in San Francisco, and his father and three sisters residing fix Massachusetts.

By an Act approved April 2, 1870, the Board of Supervisors of the City and County of San Francisco was authorized and required to cause Market street, from Valencia street to Seventeenth street, to be opened and graded. The Act provided that wherever Market street, between said points, passed over land the private property of any person, the Board might condemn the same.

On the 9th day of April, 1870, Stephen A. Wright madé his last will, by which he devised all his property to Matilda A. Wright, an infant daughter, ten years of age, and gave the use and income arising from his property to Ada E. Wright, his widow, until said Matilda should arrive at the age of eighteen years, and then said Matilda was to have all the property in her own right. S. F. Eeynolds was nominated sole executor in the will.

Action for the recovery of a promissory note given by Thomas Martin to the defendant, or order, for $800, with interest at one per cent, per month, dated November 25, 1872, and alleged to have been endorsed by the defendant to the plaintiff, and by the defendant afterwards wrongfully taken from the possession of the plaintiff.

<p>Sale of Spirituous Liquors.—It cannot be assumed judicially th#it a city ordinance requiring the payment of fifty dollars every ninety days for the privilege of retailing spirituous liquors in quantities less than one quart, is a virtual prohibition of the sale of such liquors.</p> <p>License fob the Privilege of Selling Spirituous Liquobs.—A city ordinance requiring the payment of a license every ninety days for the privilege of retailing spirituous liquors does not violate any provision of the Constitution.</p> <p>License to Transact Business.—The power granted to the common council of a city to fix the rates of license for the privilege of transacting business, is a branch of the taxing power which is not affected by the constitutional requirement that taxes shall be uniform. The council, therefore, in fixing such rates, may discriminate and impose a larger license tax upon one class of business, such as retailing liquors, than on another.</p> <p>License fob Doing Business.—Clauses in a city charter requiring that the rates of license for the transaction of business fixed by the council shall be proportionate to the amount of business, and that the license shall be discriminating, only require that after the council, in the exercise of their authority to discriminate, has selected a business pursuit as the subject for license, the sum exacted from each person following that business shall be fixed by the amount of business done by each.</p>

The defendant, Vasquez, Theodore Moreno, Cleodovedo Chavez, and Romulo Gonzalez, were charged by the indictment, found in the County of Monterey, with the crime of murder, committed in said county on the 26th day of August, 1873, by shooting Lander Davidson. The place of trial was changed to the County of Santa Clara.

<p>Application to the Supreme Court for a writ of prohibition.</p> <p>On the 4th day of May, 1874, a petition was presented to the Board of Supervisors of San Mateo county, asking the Board to order an election to decide the question of a removal of the County Seat from the place where it was fixed</p> <p>by law. The number of names attached to the petition was five hundred and forty-seven, and the number of votes cast in the county at the last preceding election was thirteen hundred and fifty-seven. Two petitions, identical in language, had been circulated and signed, and on one of them there were one hundred and eleven names. These one hundred and eleven names were, for convenience, cut off from the petition to which they were attached, and pasted on to the other petition, so that all the names appeared on- one petition. One third of one thousand three hundred and fifty-seven is four hundred and fifth-three, which was the number of signatures requisite to give the Board jurisdiction to act. Deduct from five hundred and forty-seven, one hundred and eleven, the names pasted on, and it leaves four hundred and thirty-seven only, or sixteen less than four hundred and fifty-three, the requisite number. The Board made an order calling an election to be held on the 13th day of June, 1874. This was an application for a writ to prohibit the Board from further proceedings under the order, and from holding the election.</p>

Action brought, on the 22d day of August, 1873, to recover damages for the violation of the terms of a contract to lease six hundred acres of land, given by the defendant to the plaintiff, and signed by both parties, and containing the following terms: “ This is for a dairy ranch; the lease to.commence the 1st day of October, 1871, and continue for the space of five years, ending with October 1st, 1876. To furnish female cattle that are fit for dairying.

The Legislature of the State of California passed an Act, approved March 16, 1874, authorizing the Board of Supervisors of the city and county of San Francisco to procure a ship, on board of which to instruct boys in seamanship, to be called a training ship, to be anchored in the bay of San Francisco, except when employed in cruising.

The defendant was charged in the indictment with having stolen a horse, the property of James Furnish, on the 23d of July, 1874.

The defendant and Elodore Saldez were jointly indicted for burglary alleged to have been committed on the 5th day of January, 1874, by entering in the night time the room of Eosa Miranda and Juana Castro, with intent therein to commit larceny. Said Miranda and Castro kept a saloon on Dupont street, San Francisco, and lived in a room over the saloon.

Action to recover damages for an alleged libel. The plaintiff obtained the verdict of a jury for $1,500 on the 30th day of September, 1873. The defendants moved for a new trial, and the Court below granted a new trial for several reasons, and among the number, that the evidence was insufficient to justify the verdict. The plaintiff appealed from the order. The other facts are stated in the opinion.

The defendant, Patrick Clark, had occupied one hundred and sixty acres of land in Sonoma County, from October, 1871 to October, 1872, as the tenant of the plaintiff. Patrick Clark desired to lease the land for another year, and had several conversations with the plaintiff on the subject.

<p>Appeal from the District Court, Second Judicial District, County of Butte.</p> <p>On the 9th day of March, 1870, Abraham T. Enos petitioned the Probate Court of Butte County to be appointed guardian of the person and estate of James Polk Wright. The petition stated that Wright had real and personal property in Butte County, and was insane. The Court issued a citation to Wright to appear, on the 26th day of April, 1870, and show cause against the application. The citation was served, and the Court made an order, on said 26th day of April, appointing Enos, upon his executing and filing a bond in the sum of three thousand dollars, with sureties. On the 11th day of July, 1870, the plaintiff petitioned to be appointed said guardian. The petition contained merely the usual statements that Wright was insane, and had property in Butte County, and made no reference to the former application of Enos. The Court, on said 11th day of July, made an order appointing the plaintiff. The following is the order.</p> <p>“Now on this 11th of July, 1870, it appearing to the satisfaction of the Court that said James Polk Wright is insane, and by reason of said insanity incapable of properly managing' his own affairs. It further appearing that said James Polk Wright is a resident of Butte County, now at a private asylum in Alameda County. It further appearing that said James Polk Wright is the owner and possessor of certain real and personal property; and it further appearing that heretofore, viz, on the 18th day of March, a. d. 1870, a petition was filed by one Abraham T. Enos, praying that letters of guardianship of the estate and person of said Janies Polk Wright, and it appearing on proofs adduced that the said James Polk Wright was insane, and incompetent to manage his own affairs, an order was made on the 26th day of April, 1870, appointing the said Abraham T. Enos guardian of the estate and person of the said James Polk Wright, and requiring him to give bonds in the sum of three thousand dollars, conditioned for the faithful performance of his duties as such guardian. And it further appearing that sufficient time having been given to the said Abraham T. Enos to file said bond, and he having failed to do so, it is ordered that A. Halett, having filed his petition to be appointed guardian of the estate and person of the said James P. Wright, and upon the reading of said petition, and the proofs adduced, it is ordered that the said A. Halett be appointed guardian of the person and estate of the said James P. Wright, upon his filing a bond to said Wright in the sum of two thousand dollars, conditioned for the faithful performance of his duties as such gardian.”</p> <p>Halett gave the required bond, and letters were issued to him, and he-entered upon the discharge of his duties, and continued to discharge them until the 9th day of November, 1871, on which day Wright died. On the 30th day of April, 1872, the said Court appointed the defendant administratrix of the estate of Wright. On the 8th day of July, 1872, the plaintiff filed in the Probate Court his report and final account as guardian. The defendant appeared and filed an objection to the account on the ground that Halett was not the legally constituted and appointed guardian. The Court settled the account, and adjudged that there was due the plaintiff from the estate of Wright $440 67. This action was brought to recover said sum. On the trial the defendant objected to the order appointing the plaintiff guardian being received in evidence, on the ground that no citation had been issued, and that, therefore, the Probate Court had not acquired jurisdiction of the person of Wright. The Court overruled the objection.</p> <p>The Court held that Halett’s appointment was void, and rendered judgment for the defendant. The plaintiff appealed.</p>

<p>Effect of Codes on Act Regulating Fees in San Fkangisco.—The Act of February 9, 1866, allowing the prevailing party, in certain actions tried in San Francisco, to include in his judgment five per cent, on the amount recovered, is not repealed by the codes.</p>

<p>Pleadings in Trespass.—If the complaint charges that the defendant maliciously and violently assaulted the plaintiff and struck him on the head •with a heavy club, and the answer admits that the defendant struck the plaintiff with a “fence pole,” it is an admission that the defendant struck the plaintiff substantially as charged, but not an admission of the alleged malice accompanying the blow.</p> <p>Judicial Knowledge.—The Court will take judicial knowledge of the fact that a “ fence pole ” is a heavy club.</p>

<p>Pbobate oe Will.—The Prohate Court cannot hear the petition for the probate of a will without proof of service of notice upon the heirs, as required by the Code of Civil Procedure.</p> <p>Objections to Pbobate of a Will.—If an instrument is offered for probate as a will, which is testamentary in its character, questions concerning the construction to be placed upon it cannot be raised for the purpose of preventing it from being admitted to probate. Such questions cannot be considered until after it is probated.</p>

<p>Appeal from the District Court, Sixth Judicial District, County of Tolo.</p> <p>Ejectment to recover the north-west quarter of section twenty-six, in township eleven north, range two east, Mount Diablo base and meridian. The plaintiff claimed title to the demanded premises by virtue of a patent from the State of California, conveying the same to him as a part of the grant of the swamp and overflowed land to the State, by the Act of Congress of September 28, 1850. The patent was dated September 21, 1862. The defendant Laugenour claimed title by virtue of a patent issued to his grantor, as a preemptor, by the United States, on the 16th of June, 1866. The defendant Carpenter was his tenant. On the trial, witnesses were sworn and examined by each party as to the character of the land on the 28th of September, 1850. Before any testimony was offered, the Court sent the jury to examine the land. The plaintiff had a verdict and judgment, and the defendants appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Appeal from the District Court, Ninth Judicial District, County of Shasta.</p> <p>The indictment charged the defendant with having murdered Luther Whittle, on the 28th of July, 1874. He was convicted of murder in the second degree, and appealed. The other fants are stated in the opinion.</p>

The plaintiff, in his complaint, averred that, in November, 1871, he leased, by lease in writing, to Jose Llaguno, two thousand ewes, for the term of two years, commencing on the 1st day of September, 1871, and that the lessee took possession, and that abont the 28th of June, 1872, while the lessee was in possession of the sheep, as bailee of the plaintiff, defendant Orr, at the instigation and request of defendants Beasley and Lowe, unlawfully, fraudulently, willfully, and…

<p>Appeal from the District Court, Fourteenth Judicial District, County of Placer.</p> <p>The plaintiff, Anthony Clark, and J. M. Minor, R. Win-spear, and defendant Jones, were the-owners, as tenants in common, of a tract of mining ground, at Forest Hill, Placer county, called the Dardanelles mining claims. Defendant Jones, Adam McDonald, Benjamin Rowe, and Ann Corcoran, were the owners as tenants in common of an adjoining tract of mining ground, called the Ora. claims. The first named was called the Dardanelles Company, and the second named was called the Oro Company. On the 30th of September, 1869, the members of the Dardanelles Company leased to the members of the Oro Company their mining claims, including a canon leading from the claim down the side of the mountain to the river, through which they had been accustomed to wash their gold-bearing earth. Jones was, as a tenant in common in each company, both one of the lessors and one of the lessees. Jones owned a controlling interest in the Oro Company, and was its Superintendent. He, as such Superintendent, and on behalf of the Oro Company, sold to a company of Chinamen the gold-bearing tailings in the canon, and received $1,900 therefor. The sale was made and the Chinaman worked out the tailings, and took therefrom about $1,900, in gold dust, after the lease had expired. Jones accounted to the Oro Company for the sum he thus received. Jones owned two and one half fifteenths of the Dardanelles claims, and the plaintiff six and one half fifteenths, and Minor three and one half fifteenths, and Winspear two and one half fifteenths. Minor and Winspear assigned to the plaintiff, who brought this action to recover twelve and one half fifteenths of the money Jones received from the Chinamen, and twelve and one half fifteenths of certain other sums which Jones had collected from persons who owed the Dardanelles Company. The theory of the plaintiff was, that at the expiration of the lease the tailings belonged to the Dardanelles Company; and that as Jones, as a tenant in common in the Dardanelles Company, had realized the money from its property, that he was liable to the other tenants in common for their proportions of the sums he had received. The plaintiff had judgment, and the defendant appealed.</p>

<p>Appeal from the District Court, Twentieth Judicial District, County of Santa Clara.</p> <p>The Court found substantially the following facts, in addition to the twenty-third finding:</p> <p>On the 1st day of November, 1872, the plaintiff leased to B. E. Hardin and R. A. Hardin eighty acres of land for the term of ten months, ending September 1, 1873, at a rent of ten and twelve dollars per acre. The Hardins cultivated the land to hay and wheat. On the 24th of July, 1873, they were owing the plaintiff the rent, and were indebted to Cochran and Chase about $350. At this time, the wheat and hay were in stacks, and the Hardins were threshing the wheat and baling the hay, when Cochran and Chase levied an attachment on the property for their debt. The Hardins informed the plaintiff of this, and wished him to secure his rent. Thereupon Cochran was sent for, and it was agreed in his presence that the plaintiff should pay Cochran and Chase, and pay the parties who were threshing and baling the hay, and that the Hardins should execute a bill of sale of the property to the plaintiff, and he should take possession of and sell the same, and from the proceeds reserve his own debt, and what he paid out, and pay the balance to the Hardins. This arrangement was carried out immediately, and Cochran and Chase released their attachment. The next day, Lemoine, Gambert & Co., other creditors of the Hardins, attached the property for a claim of about $800, and the sheriff took it from the possession of the plaintiff, and sold a part of it on an execution issued on a judgment obtained in the action. Menton thereupon brought this action against the defendants, who were the sheriff and his deputies, to recover the property sold, or its value. The defendants recovered judgment, and the plaintiff appealed.</p> <p>The other facts are stated in the opinion.</p>

The plaintiff was the owner of several .tracts of land in the county of Alameda. These tracts were separately assessed by the deputies of Edwin Hunt, who acted as Assessor, in the year 1870. The defendant McClure was Treasurer and ex-officio Collector of Alameda county, and when the tax became delinquent, added thereto, as required by law, five per cent.

The defendant, William Fugit, and Z. Calmeye, were jointly indicted for the crime of robbery. Fugit pleaded guilty, was sentenced, and was afterwards pardoned and was used by the prosecution as a witness on the trial of this case. The defendant was convicted and appealed. This is the second appeal, and the facts are stated in the former case, reported in the 48 Cal. 189, where the appeal is erroneously stated to have been taken from Tehama County.

The defendant was charged in the indictment with the crime of rape, alleged to have been committed in Humboldt County, upon the person of Lucy Elnor Kirby, a girl of the age of eleven years, on the 10th day of June, 1874. The defendant was the husband of a sister of the girl, and the latter lived in his family. One Baker had married another sister of the girl, and lived near the defendant.

The case was thus: The city of Los Angeles owned water works for supplying its citizens with pure water, consisting of pipes, reservoirs, etc., and also owned the right to divert water from the Los Angeles Eiver.

The defendant and James Alexander were jointly indicted for the murder of Catherine Strong, charged to have been committed in the county of Mendocino, on the 1st day of February, 1874. The defendants had no examination before a magistrate, but were indicted by the grand jury soon after their arrest. On the application of the defendants, the place of trial was changed to the county of Sonoma.

The defendant was indicted for the murder of Ah Peu, alleged to have been committed on the 11th day of October, 1874. Ah Peu was mortally wounded by a pistol shot, and on the 14th of October, 1874, his dying declaration was taken down by a magistrate, who acted through an interpreter. This declaration charged the defendant with having fired the fatal shot. On the trial it was admitted in evidence.- The defendant was convicted, and appealed. .

<p>The defendant was indicted for embezzlement, alleged to have been committed by feloniously taking and secreting 451 sheep, the property of J. S. Cone, the prosecutor, with the fraudulent intent to convert them to his own use. The indictment contained what purported to be a copy of a contract entered into between said Cone as party of the first part, and the defendant as party of the second part, on the 14th day of September, 1872. By the contract, Cone let Hust have 1,300 sheep to keep for one year. Hust was to have one half the wool, and, at the end of the year, was to return the 1,300 old sheep, but if there was any deficiency in the number, enough of the increase was to be counted out to make 1,300, and the remainder of the increase was to be equally divided between the parties. The defendant took the sheep under the contract, and the indictment alleged that, in September, 1873, he fraudulently and feloniously took and secreted 451 of the sheep, and converted them to his own use. During the trial, the District Attorney offered in evidence a paper, purporting to be a copy of the agreement, set out in the indictment. The defendant objected that there was no proof that it was executed by him, and that it was irrelevant, and that it was not shown to be the agreement set out in the indictment. ' The Court overruled the objections. The defendant was convicted, and appealed.</p>

The defendant was charged in the indictment with having assaulted one Lena Hanna, a girl under ten years of age, with intent to commit a rape. On the trial, the prosecution called one Totten as a witness, and, against the objections of the defendant, were permitted to prove by him declarations of the defendant that he had had intercourse with other girls under ten years of age, but their names were not given. The defendant was convicted, and appealed.

<p>Appeal from the District Court, Sixteenth Judicial District, County of Inyo.</p> <p>Ejectment to recover two thousand one hundred and fifty and twenty-four one-hundredths feet undivided in a quartz lode two thousand four hundred feet in length, and damages for its detention, commenced on the 10th day of February, 1873. On the trial, the plaintiffs, in order to prove a right to the possession of an undivided interest in the San Felipe mine, deraigned from De la Mere, to wit: Seven hundred feet undivided, proved the execution of, and offered to read in evidence an agreement, of which the following is a copy. The defendants objected to the evidence on the ground that the same did not convey title, and did not divest said De la Mere, of the title conceded to have been vested in him at the date of said agreement, and that ejectment could not be maintained on said agreement. The Court overruled the objection and permitted the agreement to be read to the jury, to which ruling the defendants excepted:</p> <p>“ This covenant and agreement, made this 4th day of August, A. d. 1870, by and between the undersigned, each one respectively with the others:</p> <p>‘ * Witnesseth: That the following parties, to wit: De Gustave Wiss, now of Olancha, Inyo county, State of California, Henry W. Schmidt, George S. Mann, Alfred Wheeler, M. Allison Wheeler, and John Bicketson, of San Francisco, and Enrique A. De la Mere, of Cerro Gordo, Inyo county, State of California, are the sole owners in fee simple and as tenants in common of all the property, real and personal, of the San Felipe Mining Company, said parties comprising and constituting said company.</p> <p>“It is also admitted, covenanted and agreed that the said company and the property aforesaid are indebted to the following individual members thereof, for advances of money in gold coin, made by them heretofore in the following amounts, to wit: To Gustave Wiss, four thousand five hundred dollars; to Henry W. Schmidt, four thousand five hundred dollars; to M. Allison Wheeler, five thousand seven hundred dollars; to George T. Mann, five thousand nine hundred and eight dollars; to Alfred Wheeler, three thousand and twenty-five dollars; which said amounts, together with any other amounts which eithér of them shall hereafter advance or furnish to said company, together with interest thereon, at the rate of two per cent, per month from date of advance of said .amounts, shall be respectively repaid in gold coin by said company or the incorporation formed, pro rata, from the first proceeds of the mine, or the first moneys received after the current expenses are paid-proper vouchers being presented for each respective amount so advanced.</p> <p>“ And it is further covenanted and agreed that the said company shall forthwith be incorporated under the laws of the State of California, with a capital stock of one million dollars, divided into one thousand shares of the par value of one thousand dollars each.</p> <p>“That the Board of Trustees shall be five in number, and the principal place of business shall be in San Francisco.</p> <p>■ “ That as soon as said company is so incorporated, the respective parties hereto, in whose names there shall be standing of record any right, title or interest in and to any of the property hereinbefore named, shall forthwith make, execute and deliver to said incorporation deeds of conveyance of such right, title and interest.</p> <p>“And that the stock of said incorporation when issued shall be disposed of as follows, to wit: One hundred shares thereof shall be issued and delivered to each of the seven parties above named, which stock shall represent his interest in the property of said company.</p> <p>“That the said incorporation shall also-credit each of the parties aforesaid with the amount of money advanced by him as aforesaid, and shall give to him the necessary and - proper obligations of the company for its re-payment.</p> <p>“ The remaining three hundred shares of said stock shall be reserved stock, to be sold or used by the corporation for its benefit in carrying on the enterprise; but should the same not be required for such purpose within one year from the date of incorporation, then said three hundred shares, or so much thereof as shall not have been so used, shall be distributed equally between the said Wiss, Schmidt, M. A. Wheeler, George S. Mann and Alfred Wheeler.</p> <p>“In witness whereof, the said parties have hereunto set their hands and seals, this fourth day of August, A. D. 1870.</p> <p>“D. G. Wiss, [l. s.]</p> <p>“H. W. Schmidt, [l. s.]</p> <p>“Geo. S. Mann, [l. s.]</p> <p>“Alfred Wheeler, [l. s.]</p> <p>“M. Allison Wheeler, [l. s.]</p> <p>“John Bicketson, [l. s.]</p> <p>“E. A. De la Mere, [l. s.]”</p> <p>The corporation was formed on the 8th day of August, 1870, and deeds' were given to the corporation by all the parties to the agreement, except Mere, who died on the 9th day of October, 1870.</p> <p>The Court charged the jury that said instrument was sufficient to divest said Mere of his interest, also to vest the same in plaintiff, and to enable plaintiff to recover the same in this action, to which charge defendants excepted. The plaintiffs obtained the verdict of a jury, and had judgment for all the ground. The defendants appealed.</p>

<p>Levy of Execution by Shebiff.—If an execution is placed in the hands of a sheriff with directions to levy on a sum of money in the hands of a corporation, and he exhibits the execution to the company and demands the money, the facts that the company, while admitting that it has the money, refuses to deliver it to the sheriff, and that the sheriff cannot seize or take manual possession of the money, and that the plaintiff’s attorney has notice of these things at the time, do not excuse the sheriff for failing to levy the execution, whether the company has the money as a distinct sum belonging to the defendant, or he is its creditor for the amount.</p>

In 1871 a Swamp Land District was formed in Colusa county, under the Act of 1868, for the reclamation of swamp lands. The district was numbered 124. The plaintiffs here were appointed the trustees of the district, and Thomas Eddy, James Balsden and J. J. Hicock were appointed Commissioners to assess upon the different tracts of land, the expense of reclaiming the same.

<p>Appeal from the District Court, Tenth Judicial District, County of Tuba.</p> <p>Ejectment to recover nine twentieths undivided in certain mining claims in Tuba county. Both parties claimed title under Lyman King. The plaintiff proved by King that he owned the demanded premises, and went into possession of the same prior to 1860. He then introduced a deed to him from King, dated January 4, 1866. The defendants called as a witness one of their number, L. B. Clark, who testified that King sold him the demanded premises and gave him a written conveyance, in April, 1862, and that the conveyance was lost; that he did not know the conveyance was lost till December, 1865, when he looked through all his papers, safe, pigeon-holes, and house for it, and could not find it, and that he sold to the Pittsburgh Company, in December, 1865, and delivered to the Company all his papers. The defendants constituted the Pittsburgh and Tuba Eiver Mining Company. The defendants then offered to prove the contents -of the conveyance, but the plaintiff objected because its loss had not been shown, and that no foundation had been laid for the same. The Court overruled the objection, and permitted evidence of its contents to be introduced.</p> <p>The defendants recovered judgment, and the plaintiff appealed.</p>

The complaint averred that the plaintiff owned land in the town of Calistoga, county of Napa, through which the road -which was being opened passed, and that the defendants were Supervisors of the county of Napa, and Boad Master of Boad District No. 9, in said county, in which district the proposed road was located.

<p>Foreclosure oe Mortgage.—If the mortgagor, after the execution of the mortgage, makes a conveyance of the mortgaged property, and the conveyance is not recorded before foreclosure proceedings are commenced, the grantee need not be made a party defendant, and a judgment against the mortgagor is conclusive against such grantee.</p> <p>Idem.—If the mortgagor, after the execution of the mortgage, makes a conveyance of the mortgaged property, and the mortgage is foreclosed in an action in which summons is served on the mortgagor alone, the plaintiff cannot obtain relief by bringing a new action against the mortgagor and grantee, but must seek relief by motion in the original action.</p>

The defendant was indicted for murder, and convicted of murder in the second degree, and appealed. The other facts are stated in the opinion.

Application to be admitted to bail pending an appeal to the Supreme Court. The petitioner was convicted on the 22d day of May, 1875. The other facts are stated in the opinion. The case was heard by Mr. Chief Justice Wallace.

<p>Appeal from the District Court, Sixth Judicial District, County of' Sacramento.</p> <p>The case was thus: The State Board of Education, on the 12th day of July, 1870, by resolution adopted McGuffey’s Eclectic Series of Readers for the use of public schools, to go into use on the 1st day of June, 1871. At a meeting of the Board, held June 22,1874, a resolution was passed inviting publishers of text-books to lay before the Board, on or before January 5,1875, proposals for supplying text-books for the use of the public schools in this State. The resolution and the proceedings of the Board that day, were published as a matter of news by the Sacramento “Union,” a daily paper published at Sacramento. On the 5th day of January, 1875, the Board held a meeting, and, by resolution, adopted the Pacific Coast, First, Second, Third, Fourth and Fifth Readers, published by A. L. Bancroft & Co., to go into use in the public schools on the 1st day of June, 1875. This was an application for a writ of review to set aside the proceedings of the Board, as being in excess of jurisdiction, because official notice was not given of the proposed change. The Court below set aside the proceedings, as null and void. The defendant appealed.</p>

This case was reported in the 47 Cal., p. 10, where the facts are stated. The petition for a rehearing had been mislaid, and the records of the Court failing to show that an application for a rehearing was pending, the case was reported. The opinion on the petition for rehearing is now. published for the benefit of counsel.