Volume 5 — California Reports

This was an action brought to recover the amount due on certain warrants, drawn by the County Auditor on the Treasurer of the County of San Francisco, which warrants were issued by an order of the Court of Sessions of that county, to pay for a lot purchased by order of the Court of Sessions of said county, in the year 1850.

The action was an application for a mandamus to compel the Secre. tary of State, Treasurer, and Controller, to keep their offices at the town of San Jose, upon the allegation that it was the Seat of Government. The Court granted a peremptory writ, and defendants appealed. The points in controversy wul be found distinctly stated in the opinion of the Court.

<p>Appeal from the District Court of the Tenth Judicial District, Nevada County.-</p> <p>The facts appear in the opinion of the Court.</p>

Action brought for the possession of certain land, leased by plaintiff to defendant, James M. Gill, and described in the complaint as situate in the County of Contra Costa, known as the Peninsula, “ Punta del Potrero,” and bounded by a straight line constituting the base of said peninsula, .and the low water mark of the shore, connecting the ends of said straight line and shore surrounding the peninsula.

This was an action brought for the recovery of damages to plaintiff’s land, sustained by reason of the overflow of defendants’ canal. Defendants moved to dismiss the cause for want of jurisdiction, the Court •overruled the motion, and defendants assigned error.

Action for damages done to plaintiffs’ flume. The jury rendered a verdict for plaintiffs. Upon the affidavits of Benj. L. Conyers, one of the jury who rendered the verdict; and of the under Sheriff of Nevada county, who was present at the deliberations of the jury, defendants moved for a new trial. The Court overruled the motion, and defendants appealed. The purport of the affidavits appears in the opinion of the Court.

This was a bill for an injunction to prevent the defendants from exercising ferry privileges on the American river. The Court granted the injunction, and defendants appealed. The opinion of the Court contains the facts.

' Appeal from the District Court of the Twelfth Judicial District, San Francisco County A'ssumpsit for freight due on a charter party. The defendant plead in abatement the pendency of an action, for the non-delivery of freight, between the same parties, in the District Court of the United States. Plaintiff- demurred to this plea, and the Court sustained the same, and overruled a motion for a new trial. Defendant appealed.

Action brought to recover the possession of a portion of a tract of land, described in the complaint as the Encinal de Sa?i Antonio. In February, 1851, Antonio M. Peralta leased to Payot & Depassier, the premises in dispute, for the term of six years.

The facts appear in the opinion of the Court. Appellant pro. pers., argued—That the order of the County Court, transferring the cause to the District Court, was unlawful, as the District Court has no power to try appeal cases. It should have been transferred, if at all, to another County Coart.

On the 4th day of August, 1852, the respondents commenced an action by attachment, in the District Court of the Fourth District, against T. A. Thomas and others, and sent their writ of attachment to the County of El Dorado. On the 10th day of August, 1852, the writ of attachment was leviel upon a quartz mill and machinery of the said Thomas and others, by Buchanan, one of the appellants, who was then the Sheriff of said County.

<p>Where accounts bear upon their face the words “ audited and approved," and “ certified to be correct-held, that this is language sufficient to create them instruments of writing within the meaning of the statute.</p> <p>Such instruments are not barred by that portion of the statute of limitations applying to accounts.</p>

The plaintiff was a resident of Montreal, Canada, and sole heir of Charles E. Clarke, a deceased intestate. Held: “ that the allowance and settlement of the estate by the Probate Court of Sacramento county was conclusive against the plaintiff, and that no evidence would be admitted, proving or tending to prove that the settlement of the Probate Court was fraudulent on the part of the defendant, and not made according to law.” Plaintiff then…

<p>Costs, by way of indemnity, ought not to be taxed in case of a nonsuit.</p> <p>Where an action has been commenced against several defendants, and there has been a judgment in their favor, they are not all entitled to recover separate costs to the amount allowed by the Act, but can only recover jointly, as though there had been but one defendant.</p>

<p>Whore a party of four or five men enter a building occupied by another in the night time, during the hours of sleep, and take possession, and avow their intention to keep possession, and actually do keep possession, it is sufficient evidence of force to maintain the action of forcible entry and detainer.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p>

<p>That section of the statute which provides, that any other of the next of kin who would be entitled to share in the distribution of the estate shall be entitled to administer, must be construed to mean the next of kin capable of inheriting, or who would be entitled to distribution if there be no nearer kindred.</p>

Bill for a specific performance. Action tried by the Court below on an agreed statement of facts. The points in controversy are found distinctly stated in the opinion of the Court.

Mandamus to compel the appellant to execute certain deeds to property alleged to have been purchased by the respondent at sheriff’s sale. The case was tried without a jury ; and upon the proofs submitted, the Court granted the writ. The facts appear in the opinion of the Court.

<p>Appeal from the Court of Sessions of Yuba County.</p> <p>This was a case brought up for review by writ of error. The opinion of the Court contains the material facts.</p>

<p>Appeal from the County Court of the County of Santa Clara.</p> <p>The facts, as far as pertinent to the issue, are in the opinion of the Court.</p>

The ease was an appeal from a Justice's Court. The words “ to pay to” were omitted in the undertaking. The Court declared the omission fatal, and dismissed the appeal. Defendant appealed to this Court.

The prisoner was tried and found guilty of murder. The facts pertinent to the issue are contained in the opinion of the Court.

This was an appeal from an order granting an injunction restraining the defendants from selling certain property in the City of San Francisco.

<p>Where a cause is heard cn appeal in a County Court, for the purpose of trying the same de novo, it is the duty of the Court to proceed with the trial on the merits of the case.</p> <p>•A judgment of dismissal, therefore, upon the ground that it did not appear that the defendants had notice of the trial in the Court below, is erroneous, and will he set aside.</p>

The following are the facts as found by the Court: The action was brought to compel the defendants to re-convey certain land alleged in the complaint to have been deeded through mistake. The deed described the tract as containing thirteen and one-half acres, more or less. After the conveyance, a survey for the first time was made of the property, and it was found to contain eighteen and one-half acres.

<p>Appeal from the County Court of Yuba County.</p> <p>The facts of the case appear in the opinion of the Court.</p>

<p>An affidavit, to the effect that an instrument has been materially altered, without showing in any manner" in what the alteration consists, furnishes but feeble ground upon which to base a motion to set aside a judgment.</p> <p>An admission by an attorney of record of the correctness of an amount due, tor which judgment is taken, when not done in fraud of the rights oí" his client, destroys the effect of a denial in an answer.</p>

<p>A sued B for twenty-two head of cattle and two wagons, and recovered a verdict for twelve head and the wagon, which was accepted by A, and allowed to stand. ■ C, who held under B,was afterwards sued by Afor the remainder of the cattle. TIdcl. that if A had commenced another suit against B, his former recovery would have been a complete bar to the action, and that if B could plead the former recovery in bar, so could C, who claimed immediately through B.</p>

The plaintiff was a resident of the County of San Francisco. The defendants resided in the County of San Joaquin. The bill prayed an injunction to restrain defendants from bringing suit against the plaintiff in San Joaquin County, alleging that the same would be accompanied with serious damage, hardship, and cost to plaintiff, by reason of his being compelled to conduct the suit at an additional expense, in a distant county.

<p>Appeal from the District Court of the Eleventh Judicial District, Placer County.</p> <p>The facts freely appear in the opinion of the Court.</p>

Ryan sued Johnson, a Justice of the Peace, for extorting illegal fees in his official capacity. The defendant demurred to the jurisdiction of the Court, and to the complaint generally. The Court sustained the demurrer, and dismissed the complaint. Plaintiff appealed.

The action was ejectment for a lot in San Francisco. The case being tried by the Court without a jury, the Court found the following facts: That the plaintiff in the year 1853, was the lawful owner of the promises in dispute ; that his Attorney permitted one Angus McDonwell to enter upon the premises, for the purj>ose of grading and hauling stone from the same.

<p>Appeal from the District Court of the Tenth Judicial District, Nevada County.</p> <p>The facts will be found distinctly stated in the opinion of the Court.</p>

<p>Appeal from the District Court of the Tenth Judicial District, Nevada County.</p> <p>The facts fully appear in the opinion of the Court.</p>

<p>Questions not directly involved upon appeal, and those which are unnecessary to a judgment of affirmance or reversal, will not he considered.</p>

<p>Appeal from the District Court of the Tenth Judicial District, Ne„ vada County.</p> <p>The facte are distinctly stated in the opinion of the Court,</p>

<p>Appeal from the District Court of the Tenth Judicial District, Nevada County.</p>

The prisoner was indicted for grand larceny—the jury rendered a verdict of conviction. Defendant’s counsel moved for a new trial, upon the ground that the County Judge and one Associate Justice alone composed the Court, during the trial of the defendant. The Court refused the motion, and defendant appealed.

Action originally commenced in the County of Santa Clara. Defendants moved for a change of venue, and the Court after due cause shown, transferred the case to the County of Alameda. The case was tried by the Court, without a jury, who found the facts as follows: On the 4th day of October, 1852, the Court of Sessions of Santa Clara County, appointed William Aikenhead, County Treasurer, in place of one Clayton, resigned.

The action was an application for an injunction to restrain defendants from entering upon the plaintiffs land and committing waste, by cutting down valuable timber.

<p>By the Mexican laws, all property acquired during marriage was common property, and the wife could neither be bound as security for her husband, nor liable as a joint contractor, except where it was shown that the contract was advantageous to the wife.</p> <p>To establish that a contract is advantageous to the wife, means, that it accrued to the benefit of her separate estate.</p> <p>Under the rule of the Mexican law, where the wife is the survivor of the husband, she is liable for one-half of the community debts; but to fix this liability, it must be shown that a fruitless effort has been made to obtain payment through an administration of the community assets, or that there is no common property, and that the community is insolvent.</p>

Assumpsit for work and labor done at defendants’ request. At the trial, defendants requested a jury, which the Court refused, and proceed to try the case, and upon the proofs, gav.e judgment for plaintiff. Defendants appealed.

Forcible entry and detainer for certain property in San Francisco, Defendants counsel requested the Court to charge the jury that “plaintiff in order to recover must prove an actual possession in himself and not in a tenant, for if a tenant was in possession at the time of the entry the action must be in the tenant’s name.” The Court refused the charge, and overruled a motion for a new trial, and defendants appealed.

<p>A Court of Equity will not permit litigation by piece meal. The whole subject matter and all the parties should be before it, and their respective claims determined once and forever.</p>

<p>Tlie District Court is a Court of general original jurisdiction, its process is coextensive with the State.</p> <p>Causes may be removed from one district or county to another county or district in the manner provided by statute.</p> <p>But it seems that this would not be permitted, after a party has appeared and answered to tile merits.'</p>

<p>A garnishee should be allowed to amend his answer whenever it appears that he has committed a mistake or fallen into an error, which could not reasonably have been avoided.</p> <p>This Court will not interfere ill this respect with the proceedings of the Court below, unless the record shows a gross abuse of discretion.</p> <p>An order requiring a garnishee to pay into Court the amount for which judgment has been rendered against him, may be considered as improper.</p>

<p>An injunction will not be granted in aid of an action of trespass, unless it appear that the injury will be irreparable, and cannot be compensated in damages.</p> <p>It is not sufficient that the affidavit should allege that the injury will be irreparable, ii must be shown to the Court how and why it would be so, otherwise the extraordinary remedy of injunction will not be allowed, especially where no action has ever determined the plaintiff's right.</p>

<p>Appeal from the District Court of the Tenth Judicial District, Nevada County.</p>

<p>A notice of appeal from a Justice’s to a County Court, stating that defendant appealed from the whole judgment, is a sufficient notice within the statute.</p>

<p>Appeal from the District Court of the Sixth Judicial District, county of Sacramento.</p> <p>The facts in this case are as follows:</p> <p>In April, 1853, one Fenn being indebted to Survey, went to defendants’ Express Office in Nevada, and purchased a cheek or draft drawn by Mulford, their agent, on defendants at Sacramento, for $115, and inclosed it in a letter directed to plaintiff at Sacramento, and deposited it with defendants, as expressmen, to deliver it. It was duly taken by defendants to Sacramento, and a few days thereafter plaintiff called at defendants’ office in Sacramento, and they replied they had no letter for him. It appears that a short time previous, on the same day, a person who falsely represented himself to be the plaintiff, had presented the check, demanded the §115 named therein, and received payment. The true owner then demanded the cheek, and also demanded payment thereon, which the defendants refused.</p> <p>It was proved on the trial that the defendants were common carriers and bankers, and that the carrying and delivering of letters was a portion of their usual daily business.</p> <p>The jury found a general verdict for plaintiff for §115, the amount of the check, together with interest.</p> <p>Defendants made a motion for a new trial, which the Court overruled, and defendants appealed.</p>

The prisoner was tried and found guilty of the murder of one Henry Tillman. The facts and errors assigned will be found distinctly stated in the opinion of the Court.

<p>Where a plaintiff set up his right to property, hy virtue of a conveyance which was shown by the testimony of a witness, to be a mortgage, held that the defendant on cross examination could show that the mortgage had been satisfied.</p>

<p>Appeal from the Court of Sessions of Placer County.</p> <p>The facts appear in the opinion of the Court.</p>

The facts are as follows : On the 15th day of December, 1852, Lewis Reford and Thomas C. Thomas held a mortgage on, and were in possession of the ship Thracian, and were joint owners in the adventure of the voyage on which tire ship was then engaged.

<p>Ap-peal from the County Court of Yuba County.</p> <p>The defendants McFarland & Elrod, were sued as makers of two certain promissory notes.</p> <p>The notes were regularly endorsed to the plaintiffs, who brought suit thereupon. The answer of the defendants admitted the genuineness and execution of the notes, but contained an allegation on information to the effect, that the plaintiffs were not the legal owners or holders of the notes, but that they had been placed in their hands by the payee for collection.</p> <p>At the trial, plaintiffs offered the notes in evidence and rested. Defendants’ counsel moved for a nonsuit, upon the ground that plaintiffs had not proved the genuineness of the indorsements.</p> <p>The Court granted a nonsuit; whereupon plaintiffs’ counsel requested of the Court permission to prove the indorsements—which request the «Court refused.</p> <p>Whereupon, plaintiffs appealed,</p>

<p>Appeal from the District Court of the Fourth Judicial District, San Francisco County.</p> <p>This action was brought upon a promissory note, of which the following is a copy :</p> <p>Marysville, Cal., April 12th, 1852.</p> <p>$1000.00.</p> <p>Sixty days from date I promise to pay Henry Pierce or order, the sum of one thousand dollars, value received of him.</p> <p>HUGH KENNEDY.</p> <p>(Indorsed) Ford, Lathrop & Co.</p> <p>The complaint dontáiüed two Counts, One charging the defendants as joint makers, the other charging Ford, Lathrop'& Co. as indorsers. It appears from the statement upon appeal, agreed to by the parties, that on the 12th day of June following, the day upon which the note fell due, Kennedy, the maker, was absent from the city of Marysville, but was somewhere in the vicinity, and no demand was made upon him for payment or left at his former place of residence.</p> <p>No notice of demand or non-payment was given to the indorsers.</p> <p>On the 14th day of the same month the note was presented to the indorsers for payment, who declined paying the same, saying that the note was due on the 14th of June, and as it was not presented on that day, they had a right to consider it paid.</p> <p>The Court below granted a nonsuit, and plaintiff appealed.</p>

The material facts of the case are contained in the opinion of the Court. At the trial, the jury found that the possession of the plaintiff was anterior to that of the defendants, and under instructions from the Court, found for the plaintiff. Defendants’ counsel excepted to the ruling of the Court, and from the final judgment entered in the canse, appealed.

<p>Appeal from the District Court of the Third Judicial District, ■ Santa Clara County.</p> <p>The opinion of the Court contains the facts.</p>

This was an action of ejectment for an undivided estate, brought by the plaintiffs, as the widow, and the heirs at law of Santiago Johnson, deceased. It appears from the complaint that the plaintiffs are tenants in common with other co-tenants not made parties. At the trial the jury returned a verdict lor the plaintiffs, in accordance with the proof adduced.

<p>In an action charging conspiracy to obtain a favorable compromise of suits about to be commenced, it is not sufficient merely to show that there were no grounds to warrant the suits. It ought in addition to be proved that the intention of the parties were unfairly directed to the obtainment of such an end, by understanding and agreement between them, which may be shown either by their words or acts.</p>

Action for recovery of rent of premises in San Francisco. On the 15th of October, 1852, the plaintiffs leased to G. W. Mow-bray and A. J. Colby, certain premises in the city of San Francisco for the period of six months. Some time afterwards Mowbray assigned to the defendants the lease, and the term created by virtue thereof, as collateral security for a loan of $4,000.

<p>Where an appeal is dismissed for want of a proper bond, and no final judgment has been rendered, an appeal can be taken at any time within the period allowed by law.</p>

<p>To sustain an action of forcible entry, or forcible and unlawful detainer, actual force, threats of violence in the entry, or the just apprehension of violence to-the person, must be shown to have existed, unless the detainer be riotous.</p> <p>Force, either actually applied or justly to be feared from the conduct of the defendant, is essential to the support of this action.</p> <p>Facts which might constitute a mere trespass upon property, have never been! held to sustain the action of forcible entry or forcible and unlawful detainer.</p>

<p>In defense to an action on a promissory note it is not sufficient to plead in general terms want of consideration, and that the note was obtained by fraud. The answer should set out the circumstances under which the note was given, and, point out the facts which constitute the fraud.</p> <p>It is not a good plea to allege that a note sued on is the property of another, and not of the plaintiff, without showing some substantial matter of defense against the one asserted to be the owner, and which could not be set up against the plaintiff.</p>

<p>Courts will not defeat rights of property on the ground of fraud, unless the fraud be made plainly apparent.</p> <p>Courts of Equity will enforce the stipulations of a deed of separation whenever it affects rights to property or income, and sometimes, where the jurisdiction has attached on account of questions relating to property, it will even lend its aid collaterally to enforce the stipulation for a separation.</p> <p>Where infants are deprived of apparent rights by a decree of Court, they have the power in a new action to attack it, and this, too, whether or not they were made parties to the first suit.</p>

<p>Appeal from the District Court of the Third Judicial District, Alameda County.</p> <p>The complaint alleges that the plaintiff was in peaceable possession of a certain lot situated in the town of San Antonio, upon which he had erected a wooden building. That the defendant subsequently entered upon the same unlawfully, and destroyed and carried off said building.</p> <p>The plaintiff introduced proof of possession and damage, and rested his case. Defendant moved for a nonsuit, upon the ground that the plaintiff had not proved such a possession as would entitle him to recover. The Court overruled the motion, and defendant excepted.</p> <p>Defendant then offered to introduce,,, the record of a pre-emption claim filed by him; proving his title to the land described in plaintiff’s complaint. The Court excluded the same. The jury gave damages for the plaintiff. Defendant moved for a new trial, which the Court denied, and defendant appealed.</p>

The action was brought upon two promissory notes given by the defendant for the purchase of two lots in the City of San Francisco. On the 5th day of December, 1853, the Common Council of the City of San Francisco passed an ordinance, providing for the sale of certain city property. The property was sold under this ordinance, and the defendant was one of the purchasers.

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>The facts will be found distinctly stated in the opinion of the Court.</p>

<p>Appeal from the District Court of the Seventh Judicial District, Sonoma County.</p> <p>The facts appear at length in the opinion of the Court.</p>

<p>An award rendered upon a fair arbitration of a matter in dispute between two parties, and for a long time after concurred in, must be held to be conclusive.</p>

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

<p>Appeal from the District Court of the Tenth Judicial District, Sierra County.</p> <p>The case was brought upon the Chancery side of the Court below, and had for its object the cancellation of a bill of sale of an interest in a mining claim, given by plaintiff to defendant.</p> <p>The complaint alleged that the sale was made without consideration, but did not allege any reasons why the transfer had been made.</p> <p>The answer denies the allegation, and asserts that the sale was made for a valuable consideration.</p> <p>The cause was referred by consent, and upon the testimony reported by the referee, the Court sitting as a jury gave a decree in favor of the plaintiff.</p>

<p>Appeal from the Court of Sessions of Monterey County.</p> <p>The facts material to the points decided appear in the ojfinion of the Court.</p>

<p>Under the 12th section of the Act concerning Corporations, passed April 223, 1850, no transfer of stock is good against third parties, unless the transfer be made upon the books of the company.</p>

<p>Where no appeal is allowed by law, the proper method to take a case to to an appellate Court is by writ of error.</p> <p>No appeal was allowed by law from a County Court to the Supreme Court prior to the 1st day of July, 1854.</p>

<p>Appeal from the District Court of the Fifth Judicial District, County of San Joaquin.</p> <p>The point in controversy is distinctly stated in the opinion of the Court.</p>

<p>Proceedings in insolvency are not slridi juris either proceedings in law or equity, but a new remedy or proceeding, created by statute, the administration of which has been vested in the District Courts of this State, independent of their Common law or Chancery powers as Courts of general jurisdiction.</p> <p>Whenever a new right is created by statute, and the enforcement of such right is committed to a Court even of original jurisdiction such Court quoad koo is an inferior Court, and must pursue the statute strictly.</p> <p>Our statute, though not strictly speaking,"a bankrupt law, may be treated as such, or as an insolvent act, or both.</p> <p>Where the petition of the insolvent shows upon its face, that a portion of the indebtedness from which he seeks to be discharged, has been contracted as a banker, the Court has no jurisdiction of the proceedings.</p> <p>The statute denies the benefit of the Act to those insolvents, who have been guilty of fraud, and in such cases the Courts would be bound to take jurisdiction, it not appearing upon the face of the proceedings, that the party liad been guilty of any act which would prevent such jurisdiction from attaching; and having once obtained possession of the whole fund it would be competent for a Court of Chancery to proceed and distribute, even if it should afterwards appear, in the course of judicial investigation, that the insolvent had been guilty of some act which prevented his discharge.</p> <p>The mere right of discharge is not the only relief resalting to the debtor. Exemption from arrest upon mesne or final process, as Well as from the costs and expenses of harrassing litigation, is a portion of the relief.</p> <p>It is well settled that the title of an Act is no £art of the law itself, although it may he referred to in cases of doubt to ascertain the intention oi the Legislature.</p>

<p>The amendments to the Charter of the City of Marysville provide that the Common Council shall not take any stock “ in any public improvement, or effect a loan for any purpose, without first obtaining the consent of the people, at an election held for the purpose.” Held, that this could not be extended to improvements other than municipal in their character, and the Legislature did not intend to invest the City with authority to embark in speculative enterprises of improvement.</p> <p>Under this provision, the City has no power to subscribe stock in the Citizens’ Steam Navigation Company.</p> <p>The words public improvements, when applied to a municipal government, must betaken in a limited sense, as applying to those improvements which are the proper subjects of police and municipal regulation—such as gas. water, almshouses, hospitals, etc.—and can not be extended to subjects foreign to the object of the incorporation, and beyond its territorial limits.</p> <p>The powers of municipal corporations are limited to the express grant of their charters ; and the object of their creation is governmental, and not commercial.</p> <p>The thirty-first section of the fourth article of the Constitution, provides that Corporations may be formed under general laws ; but shall not be created by special act, except for municipal purposes.” Held, that the term municipal is limited to governmental, and can not be extended to commercial purposes.</p> <p>If the term public improvements, in the amended Charter, could be construed to extend to commercial speculations, then it would be in violation of said section of the Constitution : as it would be granting powers to a corporation by a special act for other than municipal purposes.</p>

<p>Lands held by no other tenure than possession may be the legitimate subjects of control: and sometimes in equity, chattel interests or personal property are made the subject of specific performance.</p> <p>A contract should be enforced in every case where the subject of it is susceptible, of substantial enjoyment; provided always, that the circumstances surrounding and connected with the contract, bring it within the equitable rules which entitle it to the relief sought, and where the remedy at law is uncertain or insufficient.</p>

<p>By the fifth section of the Act concerning Notaries Public, notes are made pro-testable, and by the tenth section, the protest of a Notary is expressly made evidence of demand, and non-payment of notes as well as bills.</p> <p>A seal is sufficient, where the impression is made upon the paper only, and not upon wax.</p>

<p>Appeal from the District Court of the Tenth Judicial District, Yuba Góúnty.</p> <p>The facts material to the points decided are fully set forth in the opinion of the Court.</p>

<p>A claim tor the possession of real property, with damages for its detention, cannot he joined in the same complaint under any system of pleading with a claim for consequential damages arising from a change of a road, by which a tavern-keeper may have been injured in his business.</p>

The action was replevin for wrongfully taking from the custody and possession of the plaintiff a large amount of personal property. The answer alleges that the defendant attached the property in his official capacity as Sheriff, in a suit brought by Dexter Taft against Mitchell & Nunes. That the property, although sold to the plaintiff, had not been delivered to him, but remained in the possession of-Mitchell & Nunes.

<p>By the law merchant, it is sufficient if a check drawn upon one day, be presented for payment in the usual banking hours upon the next succeeding day, where the payee resides in the immediate vicinity of the place of payment, as in the same town or city.</p> <p>The payee of a check, in presenting it for payment, in order to hold the drawer, is bound to exercise reasonable diligence.</p> <p>The report of a referee upon conflicting testimony must be treated in the light of a verdict of a jury, and will not be disturbed in this Court upon an appeal from an order refusing to grant a new trial in the Court below.</p>

<p>Appeal from the County Court of Sacramento County.</p> <p>The points in controversy will be found distinctly stated in the opinion of the Court.</p>

<p>The administering of the oath, as provided by statute, to a person who is challenged for not being a qualified voter, is a matter in the discretion of the judges of the election.</p> <p>If the person challenged should admit that be bad not been naturalized, or that his certificate of naturalization had been issued by a Court known to have no jurisdiction of the subject matter: or in case of a citizen whose right to vote was well known, the judges could, very properly, decline administering the oath.</p> <p>But they have no right to require the production of the certificate of naturalization by the party challenged.</p> <p>When the judges have administered the oath, the right to vote is concluded, and it is error to deny it.</p>

<p>The Judiciary have jurisdiction by habeas corpus to investigate cases where a party is arrested as a fugitive from justice, escaped from another State.</p> <p>The Courts possess no power to control the Executive discretion in surrendering fugitives from justice ; nor can they compel a surrender in such case; yet the Executive having acted, that discretion may be examined into, in every case where the liberty of the subject is involved.</p> <p>It is not necesary that the affidavit upon which the requisition issued should set forth the crime charged, with all the legal exactness necessary to be observed in an indictment. If it distinctly charge the commission of an offense, it is all that is necessary.</p> <p>The Governor of the State issuing the requisition for the fugitive, is the only proper judge of the authenticity of the affidavit; and the Judge, on habeas corpus, can not go behind his action to iuquire whether the affidavit ivas a forgery.</p> <p>It is not necessary that the affidavit should state that the prisoner is a “fugitive from justice”—the allegation that he committed the crime, and then secretly fled, is sufficient to deduce the conclusion, that he is a fugitive from justice.</p> <p>When the requisition certifies that the affidavit is “ duly authenticated according to the laws” of said State, it is sufficient.</p>

The opinion of the Court contains the facts. E. W. F. Sloan and A. M. Crane, for Appellant, contended that the action of the Court below was erroneous, and cited 3 Bac., Ab., 81. G, Rees v. Emeric, 6 S. and R., 288. Newcomb v. Butterfield, 8 Johns., 342. Livingston v. Platner, 1 Cow., 175. Benton v. Dale, 1 Ib. ,160. King v. Havens, 25 Wend., 419. Germain v. Booth, 1 Denio, 639. 2 Wend., 247.

<p>Appeal from the County Court of Solano County.</p>

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

<p>The statute does not contemplate that homesteads should be carved out of land held in joint tenancy, or by tenancy in common, because it has provided no mode for their separation and ascertainment.</p>

<p>Under our system of pleading, it is only necessary that the cause of indebtedness should be stated in such a manner as to apprise the defendant of the object of the suit.</p> <p>The plaintiff alleged that “ Hull & Co.” were indebted to him, but failed to prove that there were others in company with Hull in the transaction. Held, that the words “ and Company” might be treated as surplusage, and the action proceed as against Hull alone.</p> <p>If a judgment entered be irregular, as embracing more parties than the testimony justifies, the proper practice is to move to correct the judgment in the Court below.</p>

<p>Appeal from the District Court of the Third Judicial District, Monterey County.</p>

<p>A complaint in ejectment need not aver title in the plaintiff, but an averment of his prior possession, and an ouster, is sufficient.</p> <p>Prior possession is evidence of title, and this can not, by any system of reasoning, be made to yield to mere color of title.</p> <p>To sustain a title by virtue of a Tax Collector’s deed, it has, by the best authorities, been held, that every pre requisite to the exercise of the power of sale by the officer must be shown to have been accomplished.</p> <p>Our statute makes Tax Collectors’ deeds prima fade evidence of title.</p> <p>One of the pre-requisites to the validity of a tax sale is the authority under which the taxes are assessed.</p> <p>The defendant attempted to show an Ordinance of the City of Sacramento, but offered only a newspaper copy of it. In support of this, as secondary evidence, the counsel for the defendant swore to a search for the original, which he himself had made in a book of Ordinances handed him by the keeper of the City Archives. Held, that the evidence was properly excluded, because this was an insufficient predicate.</p> <p>The search should have been made and testified to by the keeper of the records, or he should have been subpoenaed to bring into Court with him the original Ordinance, and then, upon his failure to find it, after diligent search, the copy, if established to be correct, would have been admissible.</p> <p>Secondary evidence must always be received with caution, and then n ot until every means is shown to be exhausted in the effort to procure that which is superior.</p>

The complaint sets forth, in sfibstance, the following facts: That the plaintiff, Rachel Beard, intermarried With the defendant’s testator, Wm.

The action is brought by the plaintiffs, who are endorsees of certain notes or orders issued by the defendants, an incorporated company, upon their Treasurer, for money borrowed by them in their corporate capacity.

<p>Appeal from the District Court of the Twelfth Judicial District, San Francisco County.</p> <p>The facts material to the points decided appear in the opinion of the Court.</p>

This action was brought upon a promissory note for $800, given by the defendants to the plaintiff and one McCord, for the purchase of certain property in Solano County. The defendants in their answer admit the execution of the note, but allege that the land was sold by the plaintiff with covenant of warranty; and that owing to a defect or want of title of the plaintiff, the consideration for which the note was given had entirely failed.

<p>Appeal from the County Court of Contra Costa County.</p>

<p>A defendant in replevin who recovers judgment, the jury failing to find the value of the property to exceed two hundred dollars, is nevertheless entitled to his costs, when the plaiutiif’s complaint states its value at a sum exceeding that amount.</p>

The plaintiff in his complaint sets out that he entered into a contract with the Steamer Columbia, through her proper officers, for the transportation of himself and family, together with their baggage, from the Port of San Francisco to the Port of Crescent City, in the State of California. That he performed all of his portion oí the contract so entered into—paying his passage money, delivering his baggage, and embarking his family.

<p>Appeal from the District Court of the Fourth Judicial District, San Francisco County.</p> <p>The facts material to the points decided appear in the opinion of the Court.</p>

This action was brought to recover the possession of certain property in El Dorado county. The title relied upon by the plaintiffs was derived from a sale made by the Sheriff, by virtue of an execution issued out of the County Court of said county. The execution was upon a judgment rendered in the County Court in a suit to enforce a mechanic’s lien, in which the amount in controversy was greater than two hundred dollars. The Court nonsuited the plaintiffs, and they appealed.

<p>The desertion of the husband entitles the wife to her own domicil.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>The facts material to the points decided, appear in the opinion of the Court.</p>

The facts of the case are contained in the special verdict of the jury, which appears in the opinion of the Court. The Court below gave judgment upon the verdict for the plaintiff. Defendants appealed.

<p>Appeal from the District Court of the Twelfth Judicial District, San Francisco County.</p> <p>Action to recover rent. The opinion of the Court contains the facts.</p>

<p>Appeal from the District Court of the Seventh Judicial District, Contra Costa County.</p> <p>The opinion of the Court contains the facts.</p>

<p>Appeal from the District Court of the Fourth Judicial District, San, Francisco County.</p> <p>The cause was tried by the Court below without a jury, who found the facts as stated in the opinion of this Court.</p>

<p>The doctrine of garnishment, although partially regulated hy statute, is not the less a common law proceeding, and therefore in proceedings against a garnishee, the parties are entitled to a jury trial.</p> <p>In Chancery cases the parties have no right to demand a trial by jury, but in all cases at law, it is a right which can he insisted upon and enforced.</p>

<p>This Court has no appellate jurisdiction in cases of misdemeanor or crimes of a less degree than felony, and no jurisdiction can be conferred by die Legislature in these cases.</p>

The defendant, Head, was administrator upon the estate of Jose M. Sanchez, deceased. Merritt was the Probate Judge of Monterey County. The suit was a bill in Chancery, for the benefit of heirs, to set aside certain proceedings in the Probate Court. A statement of facts sufficient for a full understanding of the case, will be found in the opinion of the Court.

<p>The right of a member of an incorporated company to sue the corporation is undoubted.</p> <p>One partner cannot sue the other in an action at law. The remedy is by bill in equity for a dissolution and an account.</p> <p>The Practice Act authorizes the Court to make an order directing a party to produce books and papers in Court.</p>

<p>The power to naturalize is made a judicial power by Act of Congress.</p> <p>Congress cannot confer any judicial power upon a State Court,</p> <p>The provision of the Constitution of the United States, which gives Congress the power to establish “ an uniform rule of naturalization,” is construed to mean, that the rule when established shall be executed by the States.</p> <p>Under the Act of Congress of 1802, “ every Court of Record in any individual State, having common law jurisdiction and a seal, and clerk or prothonotary, shall be considered as a District Court within the meaning of this Act,” and such Courts have power to naturalize.</p> <p>The Supreme Court of this State having exclusive appellate jurisdiction, has no power to naturalize.</p> <p>The Legislature of California has hy express enactment, conferred jurisdiction on the District Courts of this State to grant naturalization, according to the rules established by Congress.</p> <p>All other Courts of this State, being Courts of inferior and limited powers, and although some are Courts of Record, yet having only statutory, and not common law jurisdiction, they have no power to grant naturalization, and any attempt of the kind by them would be corara non judies, and void.</p>

<p>Although a Municipal Corporation has delegated to it certain powers of government! it is only in reference to those delegated powers that it will be regarded as a government.</p> <p>In reference to all its oilier transactions, such as affect its ownership of property in buying, selling or granting, and in reference to all matters of contract, it must be looked upon and treated as a private person, and its contracts construed in the same manner, and with like effect as those of natural persons.</p>

<p>The occupant of mineral land may rely upon his possession against a mere trespasser, unless he uses the laud for grazing or agricultural purposes.</p> <p>In permitting persons to go upon public lands occupied by others, for the purpose ot mining, the Legislature has legalized what would otherwise have been a trespass, and the Act cannot be extended by implication to a class of cases not specially provided for.</p> <p>The occupation of a lot for the purpose of hotel keeping is not inconsistent with the policy of the State with regard to mining claims.</p> <p>The wants of mining communities demand some facilities for the business of mining, and persons settled in good faith upon lots in the mining towns, and carrying on business, should be reasonably protected.</p>

<p>Appeal from the District Court of the Fourth Judicial District, San Francisco County.</p> <p>Ejectment for a certain lot in San Francisco. The facts material to the points decided appear in the opinion of the Court.</p>

<p>Appeal from the-District Court of the Third Judicial District, Santa Clara County.</p> <p>The opinion of the Court contains the facts.</p>

<p>Appeal from the County Court of Contra Costa County.</p> <p>The material facts appear in the opinion of the Court.</p>

<p>Appeal from the District Court of the Seventh Judicial District, Solano County.</p> <p>The plaintiff commenced an action against the defendants, Vaughn and Shirley, to recover the possession of a certain lot in the city of Benicia.</p> <p>Shirley answered, disclaiming any interest or title in the property, and Vaughn answered by denying generally the allegations in the complaint.</p> <p>The Mayor and Common Council of Benicia intervened and claimed title to the property in dispute, through a deed from Malinda Cooper and her children, who had become possessed of the land by a deed from Stephen Cooper. This deed was drawn in the usual form, and signed by Stephen Cooper, and opposite his name was written the word “ seal.” The deed, which had been recorded, was acknowledged before the County Recorder of Solano County, but does not bear upon its face his official seal.</p> <p>The Court refused to permit the original deed to be read to the jury in evidence, Defendants excepted. The jury found that there had been a sufficient delivery, and gave a verdict for the plaintiff.</p> <p>The interveners appealed.</p>

Ejectment for certain lots of land situated in the town of Martinez. The complaint contained the usual averments, and the answer admitted possession, but claimed title to the property by virtue of a tax collector’s deed.

Tills cause was referred to Nathaniel Bennett, Esq., to try the issues joined, and report a judgment.

The defendants, merchants in San Francisco, made a sale in writing to one S. H. Allen of forty barrels of whisky, to arrive on the ship Golden Fleece. Alien paid a portion of the purchase money, and before the arrival of the ship, assigned the memorandum of sale to the plaintiff for a valuable consideration.

<p>When property, the. subject of a suit, is delivered and accepted pending the suit, that is, before verdiet, the damages should he merely nominal.</p> <p>Where a party, accepts the goods which are the subject of the suit, the only damages that he can recover, are the value of the goods at any time between the detention and the delivery, with interest thereon.</p>

<p>Where the holder of a note accepts a draft or check in payment, he is not hound to give up the note before payment of the draft or check.</p> <p>The substitution of a new security will discharge an indorser.</p> <p>The surrender of a note is prima fade evidence of its payment.</p> <p>But where a note was delivered to the maker long before it became due, upon his giving the holder an order on the indorsers, which was dishonored, and thereupon it was returned to the holder, it did not operate as a payment.</p>

<p>Where a judgment of a Justice of the Peace is for an amount exceeding his jurisdiction, the County Court on appeal should dismiss the whole case.</p>

<p>Under the statute respecting County Treasurers, passed March 22d, 1850, the party who registers his warrants becomes a preferred creditor, and is to lie paid as soon as there are sufficient funds in the treasury, and the prior registered warrants are paid.</p>

On the twenty-fourth day of January, 1852, Joseph C. Perry sold to one Jonas Thayer certain property in Tuolumne county, and took a mortgage for the payment of the purchase money, which was duly recorded. On the first day of February, 1853, Perry conveyed by deed, containing covenants of general warranty, all his right, title, and interest in and to the property, to the plaintiff.

<p>"Where a mortgage covers two lots, and the mortgagor conveys one of them, with covenant of warranty against his own acts, this warranty runs with the land; and if such lot is subjected to the mortgage, the purchaser would be entitled to be reimbursed by the mortgagor, and might maintain an action upon the warranty. Held, therefore, that the mortgagor could not complain that the decree of foreclosure ordered the sale of the uuconveyed lot for the payment of the mortgage debt.</p> <p>If the mortgagee has no notice of these transactions, he could have all the lots in the mortgage subjected to the payment of his debt.</p>

Bill in equity to compel the defendant to execute certain deeds to property in San Francisco.

<p>Appeal from the Superior Court of the city of San Francisco.</p>

<p>Time and place are of the substance of every election.</p> <p>The Legislature cannot confer upon a County Judge the power of designating the place and manner of holding an election, as it is a ministerial and not a judicial act, and an election thus held will be void.</p> <p>By the Constitution of this State, the Legislature must fix the seats of justice, or places of holding Court, and c.umot'delegate the power to any other body, or to decision by popular vote. Jfjiit UimjiiNm.üT, J.</p>

The plaintiff, a shipmaster, and the defendants, merchants in San Francisco, were ¡Dartners in an adventure of certain shipments of oil from the Sandwich Islands. The defendants sold the oil and rendered to the plaintiff account sales thereof. The plaintiff not being satisfied with the result, agreed with Bailey, one of the partners, to submit the matter to arbitration. The agreement to arbitrate was signed only by Jones and Bailey.

<p>A jnrov being challenged for bias, was examined before triers, and asked the following questions 1st. Are you not a member of a secret and mysterious order known as, and called, Know Nothings, which has imposed on you an oath or obligation, beside which, an oath, administered to you in a court of justice, if in conflict with that oath or obligation, would be by you disregarded? 2d. Arc you a member of any secret association, political or otherwise, by your oaths or obligations to which, any prejudice exists in your mind against Catholic foreigners? 3d. Do you belong to any secret political society known as, and called by the people at large in the United States, Know Nothings ? And if so, are yon bound by an oath, or other obligation, not to give a prisoner of foreign birth, in a court of justice, a fair and impartial trial ? Held, That the Court erred in ruling out these questions.</p> <p>The juror was also asked the questions, Have you, at any time, taken an oath or other obligation of such a character, that it hascaused a prejudice in your mind against foreigners Are you under any obligation not to extend the same rights, privileges, protection, and support to men of foreign birth as to native ■ horn American citizens ? Have you any prejudice whatever against foreigners? Held,¡>er Bryan, J., That the Court erred in ruling out the questions.</p> <p>The law contemplates that every juror who sits in a cause, shall have a mind free from all bias or prejudice of any kind, and if a juror is prejudiced in any manner, he is not a proper person to sit in the jury box.</p> <p>Prejudice is a state of mind, which, in the eye of the law, has no degrees.</p> <p>Where a juror is challenged for actual bias, the triers are to determine the fact from the testimony, and any testimony which would lead to the conclusion that a bias existed in the juror’s mind, is competent testimony.</p> <p>To ascertain whether a bias exists in the mind of a juror, resort must be had to his declarations to others, or to his sworn statements, when interrogated.</p> <p>Prejudice being a state of mind moro frequently founded in passion than in reason, may exist with or without cause; and to ask a person whether he is prejudiced or not against a party, and if the answer he affirmative, whether that prejudice is of such a character as would lead him to deny the party a fair trial, is not only the simplest method of ascertaining the state of his mind, but ■is probably the only sure method of fathoming his thoughts and feelings.</p> <p>If the juror had taken such oaths as arc referred to, he was grossly uuüt to sit as a juror.</p>

Assumpsit for goods sold and delivered. On the 3d day of August, IBS'S, the defendant entered into a written contract with one Samuel Strong, by which Strong agreed to sell to the defendant a certain quantity of lumber, to be used in the construction of a building which the defendant was about erecting in San Francisco.

<p>This Court having complete appellate power over the right to grant a change of venue, it is not to be supposed that it will trust implicitly in the discretion of . inferior Courts.</p> <p>Where one hundred citizens united in employing counsel to prosecute the defendant, Held, to he a sutSeient ground for a change of venue.</p> <p>Appeal from the District Court of the First Judicial District, Los Angeles county.</p> <p>The opinion of the Court contains the facts.</p>

<p>Under the two hundred and forty-sixth section of our criminal code, an indictment is sufficiently certain as to time, if it appear from it that the offense was committed at some time prior to the finding ot the indictment.</p> <p>So an indictment would be sufficiently certain under the statute, in charging the defendant with feloniously taking three head of cattle, without showing the particular species of cattle taken.</p> <p>Under the criminal code of this State, words used in an indictment are to be construed according to their common acceptation, except words or phrases specifically defined by law.</p> <p>In cases of grand larceny it was the intention of the Legislature that the jury should only assess the punishment when they thought that the defendant deserved the punishment of death, and if they do not agree to such a punishment, then they should find a general verdict.</p>

<p>Tli3 thirty-ninth section of the Act concerning Courts of Justice, provides that, the Cleric of the Superior Court shall ue elected at the next municipal election of the City of San Francisco, and thereafter every two years, by the legal electors of the City of San Francisco, and shall hold his office for the term of two years from and after his election.” At the tim; of the passage of this Act, the municipal a:id general State elections were held on the same day in September. The fourth section of the Am mded Charter of San Francisco provides, that the municipal election shall be held on the fourth Monday in May in each year, and at an election held at this time, the relator was elected. Held, that by the thirtieth section of the Am mded Charter, the Legislature intended that the Cleric of the Superior Court should be elected at the mu iieipal election, on the fourth Monday in May, and the relator was therefore properly elected.</p> <p>Held, farther, that the relator is entitled to the office at the expiration of the two years from the date of the defendant’s election.</p> <p>The Legislature possesses the power to alter or abridge the term of office of purely legislative creation.</p>

Action for damages for injuries sustained by plaintiff in crossing defendant’s ferry.

Replevin for a certain number of cattle levied on by the defendant, Sheriff of Sacramento county, as the property of one D. G. Weston.

<p>The Federal Government has not only the right of eminent domain, hat the fee, and the prime and uncontrolled right of disposition of the territory, all of Which are attributes of sovereignty.</p> <p>The Territory of California passed to the United States, subject to the power of the Federal Government to establish a Territorial Government, or erect the ■same into a State. It was garrisoned and held by United States troops and governed by United States officers. Every acre of land not the property of Mexican citizens passed to it, and the power of the Federal Government to acquire territory, either by purchase or treaty, is undisputed.</p> <p>Sovereignty can never be in abeyance, and until there was some local government organized, either by the people of the territory, or some other competent authority, the United States, upon the doctrine of necessity, succeeded to, and represented the Government of Mexico, so far as the same could be exercised within the purview of the Constitution.</p> <p>The United States, after the treaty of Guadalupe Hidalgo, did not become vested with authority to prosecute any claim for a forfeiture or escheat that had accrued in California to the Mexican Government.</p> <p>An alien may hold real estate against every one, and even against the Government, until office found.</p> <p>Laws regulating the admission of foreigners and aliens, and placing them under peculiar disabilities, and especially those relative to escheats, are political in their character.</p> <p>The policy of the Government of the United States has been to encourage the immigration of foreigners, and to this extent a system of pre-emption has been adopted in all the Territories and new States, in which there is no discrimination between foreigners and native citizens.</p> <p>Foreigners can hold property in all the Territories, and may inherit, in the absence of legislation upon this subject.</p> <p>By the civil law, as well as the common law, the King cannot take upon himself the possession of an estate said to have escheated, until the fact is judicially ascertained by a proceeding in the nature of an inquest of office.</p> <p>The Mexican law of escheats did not remain in force in California until the ratification of the treaty of Guadalupe Hidalgo.</p> <p>This law was abrogated by the conquest of the country by the Americans, as far as citizens of the United States and aliens were affected.</p> <p>Twelve days before the ratification of the treaty of Guadalupe Hidalgo, Leidesdorff, a naturalized citizen of Mexico, died, seized of certain lands in San Francisco, and Anna M. Sparks, his mother and heir, through whom the defendant claims title, was not at the time of his death a citizen of the United States or of Mexico, hut was a subject of Denmark, and never resided in Mexico or the United States. Held, that in order that the United States should take any interest in the land, it was necessary that the forfeiture should have been ascertained, either by the United'States or by Mexico.</p> <p>On the death of Leidesdorff, bis mother, by the rule of natural justice, became entitled to the possession of the land, and could not he disturbed until office found.</p> <p>There having been no inquest of office under the Mexican laws, Anna M. Sparks held the land, until the change of Government, and no disability existing under the laws and Constitution of the United States, and no means being provided for instituting this proceeding or declaring a forfeiture, she became vested with the absolute title, which cannot now be disturbed.</p> <p>There is no common law of the United States as contradistinguished from the individual States ; and the Courts of the United States, instead of administering the common law or any particular system, conform to the law of the States where they are situated.</p>

On the 23d day of August, 1853, one Auguste Deck, a citizen of Prussia, died intestate, in the city of San Francisco, leaving, undisposed of, a large amount of real estate. On the 14th of September following, letters of administration were granted by the Probate Court to the defendant, Gerke, Clark afterwards purchased from the absent heirs a large portion of the property.

<p>Appeal from the District Court of the Twelfth Judicial District, San Francisco County.</p> <p>The facts material to the points decided, appear in the opinion of the Court.</p>

<p>Appeal from the District Court of the Seventh Judicial District, Maria County.</p> <p>The facts material to the points decided appear in the opinion of the Court.</p>

<p>Appeal from the District Court of the Twelfth Judicial District, San Francisco County.</p> <p>The facts material to the points decided appear in the opinion of the Court.</p>

The defendants were sued as indorsers of a promissory note. The case was tried by the Court, who found that the note upon which this action was brought, was presented to the makers, and payment demanded, on the 13th day of December, 1854, the day upon which it fell due: that payment was refused: and that the note was duly protested, and notice of the protest was given to the indorsers, Wood and Lathrop, in due time, but that such notice stated that the note was presented on…

Bill for an injunction to restrain the defendants from diverting the water course of plaintiff’s mill. The facts are as follows: In June, 1852, A. G. Chauncey & Co. commenced the construction of a saw mill on lands of the United States in Shasta county, at the mouth of a small stream called Spring Creek, and completed it in November of the same year, at a cost of about ten thousand dollars. The lands were mineral lands of the United States, containing mines of gold.

<p>Appeal from the District Court of the Seventh Judicial District Marin County.</p>

<p>Tenants in common of an estate, cannot joint in an action for the recovery of the estate. The interest of each is separate and distinct, and each can only recover his undivided moiety.</p>

Ejectment for certain property situated in San Francisco. The plaintiff, to prove his title, offered in evidence a judgment obtained in the Superior Court of San Francisco, by Peter Smith, against the city. Upon this judgment, execution had been issued, and the plaintiff had purchased the property in dispute, at Sheriff’s sale.

<p>The purchase of property hy a factor in his own name, makes him to all the world the apparent owner, and as far as affects the rights of third persons, his power is unlimited. He has the right to sell or pledge.</p>

<p>After tbe adjournment of the term, the Court loses all control over cases decided, unless its jurisdiction is saved by some motion or proceeding- at the time, except in the single case provided by statute, where the summons has not been served, in which the party is allowed six months to move to set the judgment aside.</p> <p>Where costs are imposed as a condition for re-opening a case after the adjournment of the term, the acceptance of the costs by the opposite party, will not be construed into a consent to have the cause re-instated.</p> <p>A party is not confined to his remedy by statute, but may resort to a Court of Equity for relief against a judgment obtained by fraud or surprise.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>The plaintiff had acted for some months as the agents of the defendants, at San Diego.</p> <p>This suit was brought to recover the sum of $1,800, alleged to be due the plaintiff for services rendered.</p> <p>The complaint averred that the plaintiff had been employed by Robinson, Bissell & Co., who were the defendants’ agents at San Francisco. The proof adduced at the trial established this fact, but no evidence was brought forward to show that Robinson, Bissell & Co. had any authority to employ an agent at San Diego.</p> <p>The Court charged the jury in favor of the plaintiff. Defendant’s counsel excepted. The jury found for the plaintiff in the sum of $6,119. The Court overruled a motion for a new trial, and defendants appealed.</p>

<p>The mere fact that the plaintiff’s counsel read, in his address to the jury, a portion of an answer which had been stricken out, is not error of itself.</p> <p>The defendant could have asked the Court to rule out the answer as testimony, and charge the jury to disregard it.</p> <p>It is not every impropriety, committed during the trial of a cause, which can be set down as error in the Supreme Court.</p> <p>Errors cannot be relied on in an appellate Court, which are not taken advantage of, and raised in the Court below.</p>

Action for damages, for a malicious prosecution of plaintiff by the defendant. The facts are fully set forth in the opinion of the Court.

<p>It is not alone the influence of liquor which avoids a contract, hut it must be shown to exist to such extent,as to seriously impair the reasoning faculties a$ the time of the contract.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p>

<p>On May 1, 1851, the Legislature passed two Acts, one to regulate Proceedings in Criminal Cases ; the other, to regulate Fees in Office—both fixing the fees of the Clerk in criminal cases, and essentially different. HM, that the latter Act must govern, as the subject of fees was the sole object of that Act, and the fixing of fees in the former Act being a mere incident, the main purpose of the Act being to regulate Criminal Proceedings.</p>

<p>The usual and best method of proceeding in cases of foreclosure, is to appoint a Master to find and report the amount due, and these exceptions may be filed to the report upon which the judgment of the Chancellor is given, and this may afterward be assigned as error.</p> <p>It is no error for the Chancellor to make the calculations himself; but when he has done so, a mistake in calculation must be brought to his notice, in some form analogous to that of an exception to a Master’s report.</p> <p>A mistake in the computation of interest, or taxation of costs, cannot be attacked for the first time in an appellate Court. The party complaining must move in the Court below to correct the computation, or re tax the costs, and thus obtain the judgment of the Court of original jurisdiction, upon the disputed items, before resort can be had to a higher tribunal.</p> <p>In entering a judgment, the correct rule is to add the interest due on the notes up to the time of the judgment, to the principal, and enter the judgment for the gross amount, and such judgment is then to bear the same interest as the notes, until paid.</p> <p>The theory of the law is not that the party recovers the particular note or chose in action, as is commonly imagined, but that he recovers damages for the nonperformance of the contract; and in case of failure to pay money due, the true measure of damages is the amount of money owing and the interest which was agreed upon.</p>

<p>Appeal from the District Court of the Twelfth Judicial District, San Francisco County.</p>

<p>An instrument not under seal, is not the character of security which is required, by the statute to be given by Notaries Public.</p> <p>If such an instrument be consid red as a good contract at common law, yet, as it is payable to the State, and not assigned to the plaintiff, the latter has no right of action in his own name.</p>

<p>Where the southern line of a creek was the dividing line between the City of Oakland and the remainder of Contra Costa County, both the city and county have jurisdiction to build a bridge over the creek. ;</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>This was an action brought to foreclose a mortgage made by the respondent, C. G. Howard, to secure the performance of a contract made by Howard and his wife, Anna D. Howard.</p> <p>By that contract, in contemplation of a future separation of the wife from the husband, and in consideration thereof, he agreed to pay to her, through Robinson as trustee, $100 per month, as long as she should live separate and apart from him.</p> <p>Robinson first brought an action at law, in the Twelfth District Court, to recover the sum of $300, then alleged to be due on said contract, setting forth the contract verbatim in the complaint. Howard demurred, on the ground that the contract was void on its face, and that according to the case made, the plaintiff had no cause of action. The issue on demurrer involved the whole merits of the case. The demurrer was sustained, and there was judgment final for the defendant in due course of law.</p> <p>The respondent, in answering the complaint in this case, pleaded specially in bar the record and judgment above mentioned. On reading the judgment record upon the trial in this case, it was held to be conclusive, and the Court dismissed the complaint. Plaintiff appealed.</p>

<p>Appeal from the District Court of the Tenth Judicial District, Yuba County.</p> <p>The facts material to the points decided appear in the opinion of the Court.</p>

<p>Writ of Error from the Probate Court of Los Angeles County.</p> <p>The facts material to the points decided appear in the opinion of the Court.</p>

<p>In foreclosing a mortgage containing a stipulation that the mortgagee should be entitled to all costs, including counsel fees not exceeding five per cent, of the amount due, it is not necessary to aver in the complaint that five per cent, was reasonable counsel fees, as the counsel fees thus stipulated to be paid, were not the cause of action, but, like costs, a mere incident to it, and might be fixed by the Court, at its discretion, not exceeding the five per cent.</p>

■ Appeal from the District Court of the Twelfth Judicial District, San Francisco County. The case was referred to Nathaniel Bennett, Esq., to try the issues and report a judgment, who reported a judgment in favor of the defendant. The Court refused to set aside the report of tha referee, and plaintiffs appealed.

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

<p>An order to take testimony by deposition, should specify the notice to be given to the adverse party. A deposition taken upon an order without such specification, where the opposite party has not had. reasonable notice, ought not to be read in evidence.</p>

<p>Appeal from the County Court of Placer County.</p> <p>The opinion of the Court contains the facts.</p>

<p>In a controversy between two mining companies, it was competent to prove the execution of certain receipts for water purchased by the plaintiffs, as tending to show the existence of the company, and that it had actually located, and was in operation, at the time the receipts purport to be signed.</p>

<p>Where, in a Chancery cause, certain issues of fact are submitted to, and determined by a jury, the granting of a new trial is entirely discretionary with the Chancellor, and his action is not revisable.</p>

<p>Appeal from the District Court of the Fourth Judicial District, San Francisco County.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>The facts material to the points decided, appear in the opinion of the Court.</p>

<p>Appeal from the District Court of the Fourth Judicial District, San Francisco County.</p> <p>This was an action brought upon a store account. Defendant denied generally, and pleaded specially the statute of limitations. The cause was submitted to a referee to report a judgment. The referee reported a judgment in favor of the plaintiffs for $240, the amount of the last item charged in the account.</p> <p>The plaintiffs moved to have the report set aside, and have the case recommitted to the referee, which motion the Court granted. At the same time, the defendant asked leave to amend that part of his answer relating to his plea of the statute of limitations. This request the Court refused.</p> <p>Afterward, the referee filed his second report, in which he gave the plaintiffs judgment for $1,383 83, the whole amount sued for.</p> <p>The Court denied a motion for a new trial, and respondent appealed.</p>

<p>Appeal from the District Court of the Fifth Judicial District, San Joaquin County.</p> <p>Bill for foreclosure of a mortgage of certain property in the County of San Joaquin. Anne Byrne, the wife of the defendant, having failed to sign the mortgage, intervened, and claimed a homestead.</p> <p>The facts material to the points decided, appear in the opinion of the Court.</p>

<p>A married woman has no power to sign in her own name a promissory note, and execute a mortgage to secure its payment.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>The facts material to the points decided appear in the opinion of the Court.</p>

<p>Appeal from the Superior Court of the City of San Francisco. Action for damages sustained by the plaintiff in falling into an uncovered hole, dug in the sidewalk in front of defendants' premises. The Court below gave the following instructions to the jury:</p> <p>Third—“ If the plaintiff’s negligence in any manner contributed to his injury, he cannot recover.”</p> <p>Fourth—“If at the time of the accident the plaintiff was intoxicated from the use of ardent spirits, and that was one of the causes which caused the accident, the plaintiff cannot recover.”</p> <p>Fifth—“ Drunkenness at the time of the accident on the part of the plaintiff, is proper for the jury to consider on the subject of negligence on the part of the plaintiff.”</p> <p>The jury found a verdict for the defendants, and plaintiff appealed.</p>

<p>Actions for the foreclosure of mortgages must be tried in the county in which the subject of the action, or some part thereof, is situated.</p>

<p>General words in powers of attorney are limited and controlled by particular terms and designations.</p> <p>Where B authorizes A to do all acts in his name concerning their mining operations, followed by the authority to sign B’s name to any company articles, does not authorize A to sign B’s name to a promissory note, even where the money was used in carrying on their joint mining operations.</p> <p>The authority to sign his name in this particular instance, is a limitation upon what might otherwise be considered a general power.</p> <p>A defendant who has suffered default, is not a competent witness to prove that he was authorized by his co-defendant to sign his name to a note, as by so doing, he would reduce the amount of judgment against himself.</p>

<p>Appeal from the District Court of the Third Judicial District, Santa Clara County.</p> <p>The facts material to the points decided, appear in the opinion of the Court.</p>

<p>A broker, whose commissions or compensation depends on his principal’s recovery, is incompetent as a witness, on the ground that he is directly interested in the event of the suit.</p>

Ejectment for certain property in San Francisco. The facts are as follows: On the 4th day of January, 1850, Robert A. Parker, by virtue of a power of attorney from one Charles C. Southard, sold and conveyed to James Cunningham, the property in dispute. In May, 1853, Cunningham conveyed to Rassette, under whom Crozier claims. In December of the same year, Southard, with a full. knowledge of the former conveyance, sold the property to the plaintiff.

Judgment was obtained against the defendant. The Sheriff’s return upon the execution was in the following words : “ Served the within execution on the Linda Ferry, or the interest of the defendant, L. W. Thomas, in and to said ferry, and the appurtenances belonging, this eleventh day of May, 1854, and on the seventh day of June, after full legal notice, as required by law, sold the above interest of defendant in and to the said property to Mr. S. A. Armstrong, for the sum of…

<p>A warranty will not be implied except in cases where goods are sold at sea, where the party has no opportunity to examine them, or in case of a sale by sample, or of provisions for domestic use.</p> <p>Where the plaintiff inspects the goods before purchasing, the case is taken from the operation of the rule of implied warranty.</p> <p>To constitute a warranty, no precise words are necessary; it will be sufficient if the intention clearly appear.</p> <p>There is no warranty in the following words of a sale note: “We have this day sold you two shipments of seeds, for arrival.”</p>

Assumpsit for services rendered as a clerk for the defendant. The case was referred to Edward Stanly, to report a judgment, who found the facts as stated in the opinion of the Court, and gave judgment for the plaintiff, who sued on. a quantum meruit. The Court refused to set aside the report of the Referee, and defendant appealed.

<p>0. obtained a judgment against H. in the County Court of Tolo County, for the restitution of certain lands ; defendant appealed to the District Court, where the judgment was affirmed, and the defendant again appealed to the Supreme Court, where both judgments were reversed, and the cause was remanded to the District Court for further proceedings. After the remittitur was filed in the District Court, the County Court issued a mandamus commanding the Clerk to issue a writ of restitution, pursuant to the original judgment in that Court, and on the petition of H., a certiorari was issued, to remove the proceedings to the Supreme Court. Held, on motion to dismiss the writ, that the writ of certiorari was the proper remedy ; that the judgment sought to be enforced having been reversed by the Supreme Court, the County Court exceeded its jurisdiction in issuing the mandamus.</p> <p>A party against whom a judgment is sought to be enforced, although not a party to the mandamus, may apply for a writ of certiorari.</p>

<p>An exception to the admissibility oí a deed in evidence, must be taken on the trial of the cause, at nisi prim. The point cannot be considered on appeal.</p> <p>Where the plaintiff's case does not depend alone on the evidence mentioned in an instruction requested by the defendant, it is proper to refuse it.</p>

<p>Appeal from, the District Court of the Ninth Judicial District, Shasta County.</p> <p>The facts material to the points decided appear in the opinion of the Court.</p>

<p>In the case of the loss or destruction of negotiable paper, the plaintiff cannot maintain an action, without first indemnifying the defendant.</p> <p>The party to whom a note is made payable, is prima facie the owner. His right to maintain the action, cannot be questioned on the ground that it belongs to a third party, except the defendant pleads payment to, or offset against that party.</p> <p>Where the Clerk of a Court is called as a witness, to prove the records of the Court of which he is Clerk, it is no objection that he is interested in the result of the suit.</p>

<p>Appeal from the District Court of the Sixth Judicial District, Sacramento County.</p>

The action was brought upon a protested bill of exchange, of which the following is a copy: - ADAMS & CO.’S EXPRESS--§3,000. and ' No. 2123 - BANKING HOUSE. -- Mormon Island, February 21, 1855. Pay to A. G. Sayre, or order, Three Thousand Dollars—value received—and charge the same to account of this office. (Signed,) C. P. NICHOLS, Agent, Per Geo. W. Corey. Messrs. Adams & Co., Sacramento.

Replevin for certain personal property attached by the defendant, Shirley, in his official capacity as Sheriff, as belonging to one Beebe Robinson. The other defendants made parties in the cause, were creditors of Robinson. The plaintiff, in order to prove his title, produced in evidence a bill of sale from Robinson of the property in dispute.

<p>Appeal from the District Court of the Third Judicial District, Santa Clara County.</p> <p>The opinion of the Court contains the facts.</p>

<p>Appeal from the District Court of the Twelfth Judicial District, San Francisco County.</p>

<p>Appeal from the District Court of the Seventh Judicial District, Napa County.</p>

<p>The judgments and orders of Courts or Judges on the subject of contempts, are by our statutes declared to be final and conclusive. Under the writ of Habeas Corpus, this Court cannot review the orders of another Court in such cases.</p> <p>The District Courts have jurisdiction to punish for contempts of their process, and to issue such writs as are necessary to the exercise of that jurisdiction.</p> <p>Contempt is defined by the statute to be the disobedience or resistance of a lawful order of a Court or Judge ; and if a Court, having jurisdiction, should issue an erroneous order, it is obligatory, until reversed by an appellate Court, and a disobedience of it is a contempt.</p> <p>Courts of equity have the power to appoint receivers, and to order them to take possession of the property in controversy, whether in the immediate possession of the defendant or his agents ; and in proper cases they can also order the defendants’ agents or employees, although not parties to the record, to deliver the specific property to the receiver.</p> <p>The District Court caused the parties, C. and J., to be served with a rule to show cause why they should not be ordered to deliver certain property in their possession to the receiver, appointed in a case to which they were not parties; and in obedience to the rule, they appeared and contested the matter before the Court. Held, that when they appeared and filed their answer to this rule, the Court acquired full jurisdiction over their persons as well as the subject matter.</p>

The defendants were sued as administrators of the estate of Grove C. Mickle, deceased. The action was brought upon three promissory notes, amounting in the aggregate to §6,580, given by Mickle to Bagley and Sinton. The consideration of the notes, and the circumstances under which they were given, are as follows: Mickle entered into a contract with Bagley and Sinton for the purchase from them of a certain lot in San Francisco. The price agreed upon, was $14,000.

<p>Appeal from the Superior Court of the City of San Francisco.</p>

<p>A mortgage is a mere incident to a debt, and in order to maintain an action founded on the mortgage, the debt must first he proved.</p> <p>In this case the Court therefore erred in permitting the plaintiff to introduce the mortgage in evidence, without first producing or accounting for the note.</p>

<p>The plaintiff cannot recover against “the corporation of Bradley, Berdan &Co.,” upon a written contract entered into between himself and “ Bradley & Co.;” as the contract was not made by the corporation.</p> <p>If, however, a deceit was practiced on the plaintiff, and the circumstances of the case were such as to raise the presumption that the corporation was cognizant of the deceit, and fraudulently participated in it, by availing itself of the plaintiff’s labor, it is liable, not upon the written agreement, but for work and labor.</p>

<p>A sale or alienation of the homestead property, without the signature of the wife, is void only as to the homestead value. Any excess over five thousand dollars is subject to the control of the husband, and may be disposed of in any manner by him.</p> <p>Where an action is brought, to foreclose a mortgage upon property claimed as a homestead, the wife of the mortgagor is a necessary party to a full adjustment of the controversy, and should be allowed to intervene.</p>

In August, 1853, the plaintiff commenced in a Justice’s Court, in Alameda County, an action of forcible entry and detainer against the defendant. The defendant answered, claiming title to the premises. The Justice, instead of proceeding to try the case, certified it to the District Court. The cause was tried in the District Court of the Third Judicial District, during the November Term of 1853, and judgment rendered against the defendant.

This was an action for goods sold and delivered. The case was submitted to a Referee to report a judgment. The Referee reported a judgment in favor of the defendant. The facts found are as follows: Henshaw purchased a bill of goods from Phillips & Mosely, of Boston, which were consigned to plaintiff, who was their agent in San Francisco. After the arrival of the goods, plaintiff delivered them to the defendant, who accepted them and stored them.

Action for the foreclosure of a mortgage. Guy entered into a verbal contract with Garriere and Thompson, to sell them a certain lot of land in San Francisco. Garriere and Thompson took possession of the property, and employed Wood, one of the defendants, to erect thereupon a brick building.

<p>Appeal from the District Court of the Twelfth Judicial District, San Francisco County.</p> <p>This was an appeal from an order refusing to set aside a confession of judgment, previously n^,de in this case by all of the defendants.</p> <p>After execution was issued, Thomas Sherry moved to set aside the judgment and execution, on the ground that at the time he executed the authority to enter the judgment, he was confined to his bed by severe illness. That the authority was obtained from him by the attorney of the plaintiffs at the time of his sickness, without the advice of counsel; and under promises made by the plaintiffs’ counsel which were not intended to be performed.</p> <p>Daniel R. Provost, a judgment creditor of the defendants, also moved to have the judgment set aside, on the ground that the plaintiffs had not complied with the three hundred and seventy-fifth section of the Practice Act, which provides that if the confession of judgment be for money due, or to become due, the statement in writing must state conclusively the facts out of which it arose, and shall show that the sum confessed therefor, is justly due or to become due.</p> <p>The statement in this ease is in the following words: “ The above-named defendants hereby authorize the entry of a judgment against us in favor of the plaintiffs, for the sum of eleven thousand dollars, which amount is actually due by us to the said plaintiffs for goods sold and delivered by them to us at our request.”</p> <p>The affidavit of Sherry does not allege that the claim was not just, or that the money was not due from the defendants to the plaintiffs.</p>

This was an action for the foreclosure of a mortgage made by defendants, Monroe and Felt, to McKee, to secure the payment of three promissory notes made by Monroe and Felt to James L. Ord, agent of William H. McKee, for the purchase price of lands owned by McKee. Ord held a power of attorney to sell all lands belonging to McKee situated in the Sacramento valley.