Volume 50 — California Reports

The plaintiff, on the 15th clay of April, 1872, by lease in writing, demised to the defendant for the term of one year from the 1st day of May, 1872, with the privilege of two years, the premises known as the “Skaggs Springs,” northwest of Healdsburg, in Sonoma County, State of California, to include the hotel building, cottages, corrals, and half the bam; also, the small fenced field (about ten acres), southwest t)f the hotel, and the garden and orchard at the hotel; the…

<p>CoNTBiBtrroBV Negligence a Mattes of Defense.—In an action for damages to the person, alleged to have been sustained by carelessness or negligence of the employees of a railroad company, while a passenger on a train, contributory negligence on the part of the plaintiff is a matter of defense to be proved by the defendant.</p> <p>Idem.—The above rule does not prevent the trial court from directing judgment, as in case of nonsuit, if the evidence introduced by the plaintiff conclusively establishes the defense of contributory negligence.</p>

<p>Payment 'of Promissory Note.—If one party furnishes another one thou-' sand dollars in money, and such other gives him his note therefor, with the understanding that the payor shall procure third parties to assign to himself certain liens on land claimed hy the payee, which liens the payor shall hold for the benefit of the payee, in satisfaction of the note, the agreement amounts to an accord and satisfaction, and is a payment of the note.</p>

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>The Board of Supervisors of San Francisco resolved to grade Jackson street from Frhnklin street to Octavia street. Franklin and Octavia streets cross Jackson street at right angles, and Gough street also crosses Jackson at right angles between Franklin and Octavia. The contract was let and the work performed. The plaintiff was the assignee of the contract, and commenced this action to enforce a lien on the lot described as commencing at the northwesterly corner of Jackson and Gough streets, running thence northerly along the westerly line of Gough street, 1278 feet; thence at right angles westerly, 13712 feet; thence at right angles southerly, 127$ feet; and thence at right angles easterly, 137& feet, to the point of commencement, said lot of land being known and designated by the letter D on the diagram.</p> <p>At the trial, on the 16th day of July, 1873, the plaintiff offered in evidence the assessment, diagram, warrant, affidavit of return and certificate of recording the same.</p> <p>The following is the original diagram:</p> <p> </p> <p>The figures on this diagram represent feet and fractions of feet, and the letters represent the lots.</p> <p>The plaintiff then offered in evidence the record of the foregoing assessment, diagram, warrant, and return. The assessment, warrant and return were correctly recorded.</p> <p>The following is the record of the diagram:</p> <p> </p> <p>It will be observed that the record of the diagram is incorrect so far as the lot is concerned on which the lien was sought to be enforced, inasmuch as it does not give its depth on Gough street, to wit, “127.8J,” or on the other lots.</p> <p>The plaintiff then rested, and the defendant moved for a nonsuit because the evidence, to wit, the record of the diagram, contained no description of the lot on which the lien was sought to be enforced.</p> <p>The court granted the motion, and the plaintiff appealed from the judgment and from an order denying a new trial.</p>

<p>Title Acquired by Tax Sale.—The title acquired by the later sale for taxes must prevail over that acquired by a sale for taxes of a prior year.</p>

<p>Appeal from the District Court, Third Judicial District, County of Alameda.</p> <p>Ejectment to recover the east half of section 24, township three south, range two east, Mount Diablo meridian, lying in the county of Alameda. The defendant Doyle was in the possession of the north half, and the defendant Bales of the south half of the demanded premises. In 1863 the State of California, in part satisfaction of the grant of the sixteenth and thirty-sixth sections, or other lands in lieu thereof, selected and located the demanded premises as lieu lands, and sold the same to the plaintiff, who paid the purchase-price and received a certificate of purchase. In 1865, he went into possession of the land, and remained in possession until November 1, 1870, when he was ousted by the defendants. The land is located in Livermore Valley, and one Robert Livermore, prior to the acquisition of California by the United States, had obtained a grant of land in the valley, called “Los Pocitas.” Prior to 1860, this grant had been confirmed by the courts of the United States. The following is the description contained in the decree of confirmation:</p> <p>“The land of which confirmation is hereby made is known as ' Los Pocitas,’ and is bounded and described as follows, to wit: On the north, by the Somas de las Cuevas; on the east, by the Sierra de Buenos Ayres; on the south, by the dividing-line of the Establishment of San Jose, and on the west, by the Rancho of Don Jose Dolores Pacheco, containing, in all, two square leagues, a little more or less, provided that quantity be contained within the boundaries named, and if less than that quantity be contained therein, then that less quantity is hereby confirmed.”</p> <p>The area of land embraced by the boundaries in the decree was from ten to twelve square leagues, embracing the greater portion of the valley. In 1865, a survey of the grant was made, and approved by the Surveyor-General of the United States for California, which contained about nine square leagues, and included the demanded premises. This survey was approved by the Surveyor-General, but was afterwards, in 1868, set aside by the Commissioner of the General Land Office and the Secretary of the Interior, and a new survey was directed to be made, which should contain but two square leagues. In 1869, the Surveyor-General made a new survey which contained but two square leagues, and approved the same on the 11th of May, 1870. An appeal was taken to the Commissioner of the General Land Office and he confirmed the survey, and, on appeal to the Secretary of the Interior, he confirmed the survey on the 6th of June, 1871, and a patent was issued to the claimants of “Los Pocitas,” which did not embrace the demanded premises. In 1869, the township embracing the premises in controversy was surveyed, but the plat of the survey was not filed in the local land office at San Francisco until the 28th day of June, 1871. On the 15th day of November, 1871, the Commissioner of the General Land Office listed and certified over to the State of California the demanded premises. On the 23d of July, 1866, Congress passed an act confirming to the State of California selections which the State had made of any portion of the public domain in part satisfaction of any grant made to the State by any act of Congress where the State had sold the same to purchasers in good faith, but there was the following proviso to the act:</p> <p>‘‘No selection made by said State, contrary to existing laws, shall be confirmed by this act for lands to which any adverse pre-emption, homestead or other right has, at the date of the passage of this act, been acquired by any settler under the laws of the United States, or to any lands which have been reserved for naval, military or Indian purposes by the United States, or to any mineral land, or to any land held or claimed under any valid Mexican or Spanish grant."</p> <p>The third section of the act provides that where the State has selected and sold lands which have not been surveyed by the authority of the United States, such selections shall give the purchaser from the State the same right as a preemptioner upon unsurveyed public lands, and that when the land is surveyed by the United States, the holder of the State title may prove up his purchase and claim within the time allowed pre-emptioners to prove up, and when the proofs are made, the land shall be certified over to the State by the Commissioner of the General Land Office. The act of Congress of August 3, 1854 (10 Stats, at Large, 346), reads as follows:</p> <p>“ In all cases where lands have been, or shall hereafter be granted by any law of Congress, to any State or Territory, and when said law does not convey the fee-simple title of such lands, or require patents to be issued therefor, the lists of such lands which have been or may hereafter be certified by the Commissioner of the General Land Office, under the seal of his office, either as originals, or copies of the originals or records, shall be regarded as conveying the fee simple of all the lands embraced in such lists as are of the character contemplated by such act of Congress and intended to be granted thereby; but when lands embraced in such lists are not of the character embraced by such acts of Congress, and are not intended to be granted thereby, said lists, so far as these lands are concerned, shall be perfectly null and void, and no right, title or interest shall be conveyed thereby.” ,</p> <p>The plaintiff, on the 10th day of July, 1871, applied to prove up his claim and purchase under the third section of said act of 1866, and, on the 15th day of November, 1871, the United States approved the selection by the State, and listed and certified over the land to the State of California. On the 29th of November, 1871, the State issued to the plaintiff a patent. The defendants were qualified pre-emptors, and, on the 29th of June, 1871, filed their declaratory statements as pre-emptioners, and, on the 4th day of December, 1871, tendered to the Register proofs of their settlement and improvements, and offered to pay for the land, but the Register refused to approve of their preemption claims or to receive the money. This action was commenced on the 24th of June, 1873. The court below rendered judgment for the plaintiff, and the defendants appealed.</p>

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>On the 1st day of November, 1869, the plaintiff sold defendant Mars a lot on Jessie street, in San Francisco, for $2200, and executed to him a conveyance, which was recorded. There was a verbal agreement that the vendee should pay the purchase-price when demanded by the vendor, and that if he did not so pay it, he should reconvey the lot to the vendor. The plaintiff retained possession of the property through his tenant and received the rents. In 1873, Mars became insolvent, and defendants Hitchcock and Harding levied attachments on the property, in suits commenced against Mars on promissory notes given by him. They recovered judgments in these actions, and advertised the property for sale. In March, 1874, Mars had not paid the purchase-price, and this suit was commenced to enforce a vendor’s lien. On the trial there was slight testimony tending to show that the plaintiff demanded payment before bringing suit, but the defendant contended that it was not sufficient to establish a demand. No evidence was introduced to show that the attaching creditors</p> <p>knew that the plaintiff had not been paid. The defendant Adams was the sheriff, and had advertised the property for sale on an execution issued on the Hitchcock judgment. He was made defendant in order to enjoin the sale. On the trial, after the plaintiff had rested, the defendants Hitchcock and Adams moved for a nonsuit for the following reasons :</p> <p>“1st. The condition never happened upon which Gallagher was to have the right to a reconveyance; he has never expressly demanded the money, and it is not yet due; and</p> <p>“2d. If hé has demanded it, he has failed to show a written contract establishing an express trust.”</p> <p>The court granted the nonsuit. The plaintiff appealed from the judgment and from an order denying a new trial.</p>

<p>Defense in Ejectment.—If, in ejectment, the answer is a general denial, ' the defendant may prove any fact going to show that the plaintiff had no right of entry at the time the action was commenced.</p> <p>Reversal of Judgment on Findings.—A judgment will not be reversed on the findings alone, unless they show affirmatively that no such judgment could properly have been rendered.</p> <p>Constructive Possession—Limitation of Aotions.—If one who claims title under a deed to a large tract of land, enters upon it and erects a house, and acquires actual possession of a small part around his house, and constructive possession of the whole, and the owner of the true title afterwards enters on the same tract in another place claiming the whole, the constructive possession thus acquired by the one who first entered is overcome by the constructive possession of the true owner, so that the Statute of Limitations does not run in favor of the one who has not the true title.</p> <p>Idem.—If the holders of two hostile titles to the same tract of land are each in the occupation of a small portion within the exterior boundaries of the tract, the constructive possession follows the true title, and the Statute of Limitations does not run in favor of the holder of the invalid title, except as to his actual possession.</p>

<p>Judgment vob Costs.—A County Court has no jurisdiction, in a criminal case, to render a judgment for the costs against a prosecuting witness.</p>

Ejectment to recover possession of a tract of land in the city of San Francisco, bounded as “commencing at a point on the south line of California street, distant one hundred and nine feet nine inches west from the southwest corner of Yan Ness avenue and California street; running thence west on the said south line of California street, one hundred and forty feet; thence south and parallel with Yan Ness avenue, two hundred and seventy-five feet to the north line of Pine…

Complaint in ejectment filed January 28, 1870. Summons'issued January 28, 1870, and served December 12, 1870. Defendant filed his answer December 21, 1870. March, 1873, the defendant gave notice of motion to dismiss the action for want of prosecution. The motion came up for hearing on the 30th day of May, 1873.

An action between Thomas S. Page, plaintiff, and Welcome Fowler et ah, defendants, was tried in the District Court, and a verdict rendered in favor of the defendants, on the 12th day of April, 1871, for four hundred and fifty tons of hay, or its value and interest, amounting to $12,069.29. (See 39 Cal. 415, and 46 Cal. 323.) Judgment was not entered on the verdict, and Page moved for a new trial.

Bobert J. Preston and his two sons, J. M. and B. M. Preston, the plaintiffs here, were the claimants of, and were in possession of a tract of land known as Preston’s Point, lying on the bay of Tómales, county of Marin. The tract contained about eight hundred acres. A part of it was dry land, being a portion of a larger tract known as the “Rancho Bolsa de Tómales,” and a part was swamp and overflowed land, lying on the bay adjacent thereto.

The record does not show from what District the appeal was taken.

<p>Issues must be Settled befobe Judgment.—If, in an action on a promissory note, the defendant denies that the plaintiff is the owner and holder of the same, and special issues are submitted to a jury which do not constitute a defense if the plaintiff is the owner and holder of the note, and the jury find on the special issues alone, it is error for the court to render judgment until there is a finding on the issue of ownership.</p> <p>Promissory Notes.—If the payor of a note conveys land to the holder, by way of security for its payment, and the holder afterwards sells the notes to a third person, and then conveys the land to another person to secure his own debt, these facts do not constitute a defense, if such third person sues the payor to recover on the notes.</p>

<p>Appeal from the District Court, Fifteenth Judicial District, County of Contra Costa.</p> <p>Ejectment to recover the northeast quarter of section 29, township number one north, of range number one east, Mount Diablo base and meridian.</p> <p>The defendant, in his answer, set up that the plaintiff claimed the land under the grant made to the Central Pacific Railroad Company of California, and that the land was mineral land, and was, by the express terms of the grant, excepted from the operation of the same. On the trial the plaintiff offered in evidence a patent from the United States to the Western Pacific Railroad Company of California, dated May 31, 1870, conveying the demanded premises as a</p> <p>portion of the land granted by Congress to aid in the construction of a railroad, by the act of July 1, 1862, and the act amendatory thereof, passed July 2, 1864. By the terms of said acts the grant was limited to public land which was not mineral land, and which was not sold, reserved, or otherwise disposed of by the United States, and to which a preemption or homestead claim should not have attached at the time the line of said road should be definitely fixed. The following was the granting clause in the patent:</p> <p>“Now know ye, That the United States of America, in consideration of the premises and pursuant to the said act of Congress, have given and granted, and by these presents do give and grant unto the said Western Pacific Bailroad Company of California, and to its assigns, the tracts of land selected as aforesaid and described in the foregoing, yet excluding and excepting from the transfer by these presents, “all mineral lands,” should any be found to exist in the tracts described in the foregoing; but this exception and exclusion, according to the terms of the statute, shall not be construed to include iron land.</p> <p>“To have and to hold the said tracts with the appurtenances unto the said Western Pacific Bailroad Company of California, and to its assigns forever, with the exclusion and exception as aforesaid.”</p> <p>The defendant objected to the admission of the patent in evidence because it was irrelevant. The court overruled the objection. The plaintiff then deraigned title by mesne conveyances from said company, and rested. The defendant then offered to prove that the land was mineral land, containing large quantities of cinnabar and quicksilver, and that he had held the land as a mining claim since October, 1866, under the rules and regulations and customs of miners in the district where the land was situated. The plaintiff objected to the testimony as irrelevant, and the court sustained the objection.</p> <p>The plaintiff recovered judgment, and the defendant appealed from the judgment and from an order denying a new trial.</p> <p>The other facts are stated in the opinion.</p>

<p>Macadamizing a Stbebi.—In San Francisco, the macadamizing of a street and the construction of sidewalks, are different kinds of work, and when a street is ordered to he macadamized, it is meant that the road-h way only is to be improved.</p> <p>Contbact fob Impboving a Stbeet.—Under a resolution of intention to macadamize and curb a street, the Board of Supervisors of San Francisco do not acquire jurisdiction to order work to be performed on a sidewalk; and if the notice for sealed proposals calls for work also to be done on the sidewalks, the contract following the notice is void unless the work done on the sidewalks can be separated from that done on the roadway.</p>

<p>BepeaIi of Act.—The forty-fifth section of the Bevenue Act of 1861, relating to the effect of a deed of land sold for taxes, has not been repealed.</p> <p>Deed of Land given on Tax Sade. — A deed of land executed by an officer under a sale made on a judgment enforcing a lien for a tax, cannot he held to have an effect which the statute under which the judgment was rendered says it shall not have. Such deed is not, therefore, conclusive evidence of title against one who paid the tax and was not a party to the judgment.</p> <p>Effect of Deed of Land given on Tax Sade.—A judgment in an action in rem to enforce a lien on land for a tax, cannot he held to enlarge the operation of the deed given by a sheriff under a sale on the judgment, beyond the limitations of the statute by force of which the judgment was rendered.</p>

<p>Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.</p> <p>The partnership commenced on the 2d day of February, 1869, and was dissolved on the 1st day of November, 1869-. The business of the firm was keeping a meat market and buying and selling meats. The defendant owned the shop and the tools and personal property, which were used in carrying on business. When they agreed to dissolve, they had • an accounting of their affairs, and ascertained that the profits had been about one hundred and thirty dollars per month, including bills due the firm. The firm debts were about seven hundred dollars. The exact state of the accounts was not ascertained. The plaintiff had received from the firm four hundred and thirty-two dollars, and then received sixty dollars more, and thereupon the agreement mentioned in the opinion was entered into. The defendant paid the firm debts. Judgment was rendered for the defendant, and the plaintiff appealed.</p>

Action to recover possession of City Slip lot No. 43, in the city of San Francisco. The plaintiffs averred in their complaint that the plaintiff Elizabeth, on the 7th day of January, 1869, by a written lease, leased to defendants the lot for the term of two years, to commence on the 10th day of March, 1869, reserving a monthly rent of twenty-five dollars, and that the defendants had failed to pay the rent due May 10, 1870.

Contest in relation to the right to purchase the south half of the southwest quarter, and the fractional southeast quarter of section twenty, and the fractional east half or lots No. one (1), and two (2) of section nineteen, and the fractional northeast quarter of the northeast quarter of section thirty, all in township nineteen (19) north, range one west, Mount Diablo base and meridian, according to the United States survey of the public lands, containing three hundred and…

<p>Appeal from the District Court, Sixth Judicial District, County of Sacramento.</p> <p>R. Stribling purchased from this State the south half of sections two and three, township nine north, range four east, Mount Diablo base and meridian, and, on the 9th day of February, 1860, paid twenty per cent, of the purchase-money and received a certificate of purchase. Stribling, in October, 1860, assigned to A. Black the south half of section three, and in December, 1860, assigned to B. B. Red-ding and Frank Kosta the south half of section two. In September, 1866, the people of the State commenced an action against Stribling, Redding, and one E. H. Coyle, to annul the certificate of purchase issued to Stribling. Summons was served on Redding alone, and on the 23d of October, 1866, judgment was rendered against him by default. On the 25th day of January, 1869, the plaintiff made application to purchase said south half of sections two and three, and on the 29th day of said January, his application, survey, affidavit, etc., were filed in the office of the Surveyor-General of this State. On the 8th day of September, 1869, John Black purchased from Redding and Kosta their interest in the land, and the next day, on his motion, and with the consent of the district attorney, the court made an order vacating the judgment of annulment. On the 16th day of December, 1869, Black paid the State the full amount due on the Stribling certificate of purchase. On the 8th day of September, 1869, said Black also made application to purchase the land in the same manner that the plaintiff did. On the 14th day of June, 1870, Black assigned to E. H. Coyle the certificate of purchase and the lands described in it. The Surveyor-General refused to approve of the plaintiff’s application, and certified the matter to the District Court for trial. The plaintiff filed his complaint, and the court held that Coyle was entitled to a patent for the land, and gave judgment accordingly. The plaintiff appealed.</p> <p>The court below held that the judgment rendered in 1866 was insufficient to annul the certificate of purchase to Stribling, and that his assignee was entitled to a patent.</p>

On the 3d day of October, 1861, M. Gray, the defendant’s grantor, made application to purchase the west half of the northwest one quarter of section ten (10), and, upon such application, the County Surveyor of Santa Clara County surveyed the land, and on the 8th day of March, 1865, a patent was issued by the State to said Gray. The defendant bought of Gray, and received his deed in February, 1867, and entered into possession.

The plaintiff was a corporation, organized in 1871, under the act of 1861, entitled “An act to provide for the incorporation of railroad companies,” etc. It was formed for the purpose of constructing a railroad from Sancelito in Marin County to the Walhalla Eiver, at or near the Pacific Ocean, in Sonoma County. This proceeding was commenced against Sidney Y. Smith, and a large number of other persons, to condemn land for a track, and for depot purposes in Marin County.

No transcript had been filed in the Supreme Court at the time the motion was made and decided. The other facts are stated in the opinion.

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

The will of Robert Durham, deceased, was filed in said court on the 2d day of November, 1871, and probated on the 27th day of February, 1872.

On the 31st day of March, 1871, George W. Lee, and his wife Delia, were residing with their minor children on a lot in Vallejo, and Mrs. Lee filed a declaration of homestead thereon. The house and lot were community property. On the 17th of September, 1872, J. F. Houghton recovered a judgment against the husband for over nine thousand dollars.

<p>Cbedit to Wife on Faith of heb Sepabate Estate.—The amendment of May 12,1862, to the act of 1850 defining the rights of husband and wife, freed the personal estate of the wife from the rule laid down in Maday v. Love (25 Cal. 367), and since the amendment, a court of equity will enforce a lien on the wife’s separate personal estate for supplies furnished her to be used in the care of such estate, and upon the credit of the same.</p>

The plaintiff averred in his complaint that, on the 12th day of January, 1872, he owned the steamer Express, worth $10,000, and that it had been seized by the marshal under a process from the District Court of the United States, issued by virtue of a decree in equity for about $300, and was about to be sold to satisfy the decree, and that, at his request, the defendant agreed, as his agent, to attend the sale and bid in the property, and pay for it and hold it in trust for…

<p>Tita-rtt.ttw on Collecting Agent eob Negligence.—K. was indebted to B. & Co., and B. & Co. drew their draft on him for the amount, indorsed it, and sent it to M. to collect, as their agent. M. indorsed it, and delivered it to "W., 3?. & Co., who were an express company, and acting as collecting agents, for collection. The draft was not paid by K., the drawee, and W., 3?. & Co. failed to protest it, and did not give M. notice of non-payment. M. sued W., 3?. & Co. for negligence: Held, that as M. only received the bill as the agent of B. & Co. for collection, that W., F. & Co. were not liable to him for damages. Held, further, that the facts that B. & Co. were indebted to M., and that M., on receipt of the bill, credited them with the same, did not fix the liability of W., F. & Co., but that W., F. & Co. could introduce evidence to explain the credit thus given, and to show that the credit was not intended to make M. the owner of the bill, but was a mere memorandum to simplify bookkeeping, made with the intention of charging B. & Co. with the amount, if the bill was not collected.</p>

In September, 1868, the plaintiff took a lease of five years of certain premises upon the lands of the New Almadén Quicksilver Company, in the county of Santa Clara. After taking the lease, he erected a wooden building on the premises, and used the same in the butchering business. The building cost about eighteen hundred dollars.

The complaint averred that the defendant, Montgomery, sued the plaintiff, King, and one Enoch Dobbs, in Justice’s Court, for $270, and recovered judgment, and that the plaintiff King appealed to the County Court, where judgment was rendered in his favor.

The plaintiff, in his complaint, averred that he was sheriff of the city aud county of Ban Francisco from the 4th day of December, 1871, to the 30th day of November, 1873, and that, during said term, he received money for the transportation of prisoners to the State Prison, and insane persons to the Insane Asylum, and that the mayor, county judge and auditor, having examined his books and found that he had received it, required him to pay it to the treasurer of said city and…

The plaintiffs are attorneys at law, and brought an action to recover for legal services rendered for the defendants, who were husband and wife, and recovered judgment. The case was decided in 1870, when Mr. Justice Temple was on the bench, and is now reported, because referred to in the case of Drais v. Hogan, post, p. 121. The plaintiffs appealed from an order granting a new trial. The facts are stated in the opinion.

J. H. Budd and W. L. Dudley, on the 19th of April, 1869, brought an action against the plaintiffs here, and alleged in their complaint that on the 28th of August, 1868, the defendants were husband and wife, and that the wife, in August, 1868, employed them as her attorneys to bring an action against her husband for divorce, on the ground of extreme cruelty, and also to procure a division of the common property, which was worth eighty-five thousand dollars.

<p>Ebbob which is Immatebial .— If the answer contains a special defense which consists of an averment of facts which, if admissible in evidence, can be proved under the denials contained in the answer, an order of the Court overruling a demurrer to the special defense, if erroneously made, constitutes an immaterial error.</p> <p>Exception to Chaege of Coubt.—A general exception to the charge of the Court to the jury which does not specify when it was taken, nor any particular portion of the charge, but goes to the charge as a whole, will not be noticed by the Supreme Court.</p> <p>Bill of Exceptions.— The question not decided whether a statement signed by the judge at the bottom of his charge to the jury, that “ the foregoing instructions were given by the court, to which the plaintiff excepted,” is a bill of exceptions.</p> <p>Obstbtjcting a Navigable Stbeam.—In an action to abate, as a nuisance, a boom across a navigable river, made to intercept saw-logs floated down in time of high water, and for damages, it is incumbent on the plaintiff to prove that the obstruction was unreasonable.</p> <p>Befüsal of Instbhctions to Juey.—If none of the evidence is found in the record, the court will not grant a new trial on the ground that certain instructions to the jury were refused, for the court may have refused to give them because there was an entire lack of evidence on which to base them.</p>

<p>Ambiguous Complaint.—The defendant is entitled to a distinct averment in the complaint of the facts which the plaintiff claims to exist, and if the averments are in the alternative, the complaint is ambiguous, even if either averment states a cause of action.</p> <p>Constbuction op a Finding op Fact.—A finding that the indorsement and delivery of a policy of life insurance were “not solely in consideration of a pre-existing debt, but chiefly as a gift,” is in effect a finding that there was a valuable consideration, which was, however, in the opinion of the Court, inadequate.</p> <p>Fraud in the Sale op Peesonalts.—Inadequacy, or failure of consideration, is not of itself sufficient, even as against the creditors of an insolvent assignor, to authorize a court to find fraud, as a conclusion of law.</p>

The defendant was indicted for murder in killing Erastus B. Walker, in Butte County, California. At the time of the homicide, Keith was keeping a saloon at Bigg’s Station. On the night of the homicide, he and deceased and a man named Starkweather were playing cards in an adjoining saloon, kept by a man named Nelson. The deceased became angry with Starkweather, when Keith left and went to his own saloon. Shortly after, the other parties went to the defendant’s saloon.

<p>Appeal from the District Court, Seventeenth Judicial District, County of Los Angeles.</p> <p>Frederick Packard was indebted to J. C. Morrison in the sum of about seven hundred dollars, and Morrison brought an action on the debt and procured a writ of attachment which was placed in the hands of the defendant Burns, who was the sheriff of Los Angeles County. The writ was issued on the 26th day of July, 1870. Packard had been keeping a saloon, but on the 15th day of July, 1870, had sold his saloon, the liquors, and everything contained in the saloon, to the plaintiff Harris. The plaintiffs were partners. The sheriff levied on and took the goods from the plaintiffs. On the trial, it appeared that Harris was to pay one thousand dollars for the property, fifty dollars of which was paid down, and for the remainder Harris gave his notes, one for two hundred dollars, due on demand, and five for one hundred dollars each, due in thirty, sixty, and ninety days, and four and five months, and one for two hundred and fifty dollars, due in six months. The plaintiffs brought this action against the sheriff to recover the value of the goods. The jury found a verdict for the defendant. The plaintiffs appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Appeal from the District Court, Fifth Judicial District, County of San Joaquin.</p> <p>Ejectment to recover State survey No. 577 of swamp and overflowed land, in the county of San Joaquin. The defendant claimed in his answer that, in 1862, the demanded premises were unsurveyed, and that he entered thereon as a pre-emptor, and that, in 1864, about July 1st, the plat of survey was filed; and that within ninety days thereafter he applied to the register to be allowed to pre-empt the land,</p> <p>but that the register refused to allow him to do so, because on the map of the United States survey on file in his office, the land was designated as swamp and overflowed. That the land was dry land, and that he had been at all times ready and willing to pre-empt and make proof and pay for the land.</p> <p>On the trial, the plaintiff offered in evidence the township plats of survey on which the land was designated as swamp and overflowed. The defendant objected to the testimony as incompetent and irrelevant. The court overruled the objection. The State of California sold the land as swamp and overflowed prior to 1865, and issued a patent to the plaintiff in 1865. The issue as to the character of the land was submitted to a jury, who found that the land was swamp and overflowed. The plaintiff recovered judgment in the District Court, and the defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

The complaint averred that Horace M. Whitmore, on the 2d day of April, 1869, gave his promissory note to the defendant, the San Francisco Savings Union, for the sum of fifteen hundred dollars, payable one year from date, with interest at one per cent, per month, payable monthly, and at the same time to secure the note, gave to the defendants, De Fremery et al., a deed of trust of a tract of land in Alameda County; that the deed contained a power authorizing the trustees to…

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>Ejectment to recover an undivided one-fourth of a tract of land in the city and county of San Francisco. William Paty owned the demanded premises, and died intestate, in San Francisco, on the 14th day of February, 1850, leaving, him surviving, Martha Ann Paty, his widow, and three children, Ellen D. Paty, Charles M. Paty, and one of the plaintiffs, Francis W. Paty. Charles M. Paty died in 1857, unmarried, and without issue. Under the statutes of this State, the plaintiff Francis inherited from his father and deceased brother an undivided one-fourth of the premises. The other plaintiffs claimed under Francis, who was born December 6, 1845. This action was commenced December 3, 1869, so that five years had not elapsed after he attained his majority. Letters of administration upon the estate of William Paty were granted to John H. Gleason and John Paty, on the 23d of February, 1850, and, on the 31st day of July, 1851, Gleason, one of the administrators, petitioned the Probate Court of San Francisco for leave to sell the demanded premises along with other land, to pay the debts of the intestate. Leave was granted, and the sale took place October 4, 1851. The proceedings of the Probate Court were regular, except that one of the administrators, John Paty, did not sign either the petition or the deed. The defendant deraigned title under this sale. The defendant had also purchased the interests of the widow and Ellen D. Paty. On the 6th day of May, 1861, the Legislature passed an act entitled “An Act to authorize the guardian of Francis William Paty to sell certain real estate.” The act reads as follows:</p> <p>“Section 1. Martha Ann Paty Dayley, the mother and guardian of Francis William Paty, a minor, is hereby authorized and empowered to sell, at public or private sale, in her discretion, any or all of the real estate, or interests therein, of the said Francis William Paty, as shall, in her opinion, most promote his interest.</p> <p>“Sec. 2. On making any such sale, or sales, the said Martha Ann Paty Dayley may convey the property so sold to the purchaser, or purchasers, thereof, and receive the purchase-money therefor; and the title so conveyed shall be valid, and convey all the interests of the said minor in the property so sold.</p> <p>“Sec. 3. The said Martha Ann Paty Dayley shall account for the proceeds of such sales as for any other assets in her hands pertaining to said minor.</p> <p>“Sec. 4. No deed or conveyance of the said real estate, or any part thereof, made under the provisions of this act, shall be valid, or convey any title, unless the sale shall have been confirmed by the Probate Court, previous to the execution of such deed of conveyance.”</p> <p>On the 5th day of November, 1850, Mrs. Paty was appointed guardian of her son Francis, by the Probate Judge of Plymouth County, in the Commonwealth of Massachusetts. She was also appointed guardian of her said son by the Chief Justice of the Hawaiian Islands, on the 27th day of May, 1856. She was not appointed guardian of her said son in this State. Under the foregoing act, the widow, and mother of Francis, sold the interest of the plaintiff Francis in the demanded premises, to the defendant. The court below rendered judgment for the defendant, and the plaintiff appealed from the judgment and from an order denying a new trial.</p> <p>It will be observed that Mr. Paty died before April 22, 1850, the day on which our probate system was adopted, so that under the decisions of our Court, the Probate Court had no authority to administer on his estate.</p>

<p>Appeal from the District Court, Sixth Judicial District, County of Yolo.</p> <p>On the 27th of July, 1870, the California Quicksilver Mining Company commenced a suit in said court against Charles Livermore, Horatio Livermore, Frank Mahon, William Cook, Daniel Murphy, - Cleary, John Doe, Richard Roe, and John Stiles, to recover possession of a cinnabar mine. The plaintiff, on the 25th of January, 1871, recovered a judgment against Charles Livermore, Frank Mahon, and John Cherry, and on the 28th day of February, 1871, procured a writ of restitution thereon, which was placed in the hands of the sheriff, who, on the till of March, 1871, removed from the mine John H. Redington, Michael Meara, and Bernard Aidlecamp. The defendants, in their answer, claimed that neither Mahon nor Cherry owned any interest in the demanded premises, and that Livermore owned an undivided one-fifteenth. Redington, Meara, and Aidlecamp moved to be restored to the possession, and introduced affidavits tending to show that Eedington owned eleven undivided fifteenths, and Meara and Aidlecamp three undivided fifteenths of the mine, and that Livermore owned one undivided fifteenth, and that the defendants Mahon and Cherry were merely employed to work on the mine. The court denied the motion, and the moving parties appealed.</p>

Action on a promissory note for eight hundred and ninety dollars, given by the defendant to the plaintiff on the 15th of September, 1871, due ninety days after date. The plaintiff admitted that five hundred dollars was paid on the note January 1, 1872, and claimed that there was a balance of three hundred and ninety dollars due on it. The note was given at Rohnerville, Humboldt County, where the plaintiff resided. The defendant resided in the mountains some miles distant.

<p>New Tbiab—When Testimony is Taken by Depositions.—If the testimony is all taken by depositions, the Supreme Court will not disturb the verdict on the ground that it is not sustained by the evidence, unless it clearly appears that the verdict is against the weight of evidence.</p> <p>One Abbechng Ebbob must Show it. — The appellant who alleges error must show it; and if it is alleged that the verdict is against the weight of evidence, in a case where the testimony is taken by depositions, it is not sufficient merely to create a doubt upon that point.</p>

<p>Lieu ob Indemnity Lands.—The act of Congress of July 23, 18GG, to quiet land titles in California, did not confirm to the State lands selected by the State as lieu lands, unless such lands had not only been selected as lieu lands before the'passage of the act, but had also been sold by the State before said date.</p> <p>Evidence or Sale or Land by the State.—A duplicate, dated in 1873, of a certificate of purchase for lieu lands, issued by the register of the State land office in 1861, is not evidence sufficient to show that the State had sold the land in 1861, as against the holder of a United States patent for the same land, dated prior to the time the duplicate certificate was issued.</p> <p>Idem.—The party in such case should prove the series of acts required by law to entitle him to the certificate of purchase, and produce the certificate of purchase, or, having accounted for its absence, prove its contents. ^</p>

John A. Sutter was the Mexican grantee of the territory where the city of Sacramento is built.

Action to recover damages for the destruction by fire of unthreshed wheat in stacks, and threshed wheat in sacks, and stubble standing in the field of the plaintiff in Monterey County. The negligence alleged in the complaint was in driving and propelling the locomotive. There was no allegation about negligence in permitting dry grass to remain in the defendant’s right of way.

The defendant, after his motion to set aside the return of summons was denied, answered the complaint, and a trial was had. The plaintiff recovered judgment, and the defendant appealed. The other facts are stated in the opinion.

<p>Oedeb Denying a New Tbiau.—The Supreme Court will not disturb an order of the court below denying a new trial if there is some evidence to support the finding of the court upon which the judgment was entered.</p> <p>Statement on Motion fob New Tbial.—A specification in a statement on motion for a new trial, that there was no evidence tending to show that the defendant wrongfully entered upon the demanded premises or ejected the plaintiff therefrom, is not sufficient to enable the Court to review the evidence on such point. It only points to the character of the defendant’s entry.</p>

Action to enforce a lien on a lot twenty-five feet front by eighty deep, on the northwest side of Brannan street, one hundred feet northeasterly from Second street. The lien was claimed for $617.76, for modifying the grade of Bran-nan street, under a contract made by the city authorities, under the act of March 30, 1868, mentioned in the syllabus.

Action for damages alleged to have been caused by the construction of a railroad. The plaintiff was the owner of the west half of a block of land in the environs, or a little outside of the corporate limits of the city of Stockton, bounded north by Lafayette street, west by Sacramento street, and south by Sonora street. On the premises was a two-story brick house, fronting on Sacramento street, which he occupied as a family residence.

E. H. Cone, on the 21st of July, 1868, filed his complaint against the defendant to recover possession of the southeast quarter of section twenty-four, in township nine north, range two east, Mount Diablo base and meridian, lying in Tolo County. The defendant answered.

The plaintiff, on the 17th of April, 1868, commenced an action against Adams and others to recover possession of lands in the city and county of San Francisco. There were a large number of defendants named in the complaint, and there was an allegation that the real names of defendants John Doe and Bichard Boe and others, were unknown to the plaintiff, and that he, therefore, sued them by fictitious names. January 27, 1869, J. B. Lewis answered.

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

Stidger was the owner of five promissory notes given him by Strahle & Hughes, on the 29th of August, 1868. One for $4000, payable on the 29th day of August, 1870; one for $5000, payable August 29, 1871; one for $5000, payable August 29, 1872; one for $5000, payable August 29, 1873; and one for $3000, payable August 29, 1874. The notes bore interest at eight per cent, per annum, and were secured by mortgage.

Action to recover an assessment for improving Scott street in the city of San Francisco. The proceedings were had under the act of April 4, 1870 (Stats. 1869-70, p. 890). The resolution of intention passed by the Board of Supervisors was published as stated in the opinion. The defendants had judgment, and the plaintiff appealed. The other facts are stated in the opinion.

<p>Power of Secretary of Interior in Relation to Public Lands.—The Secretary of the Interior, in reviewing the decisions of the Commissioner of the General Land Office in relation to the sale of public lands, exercises a supervisory rather than an appellate power in the sense in which the term appellate is employed in defining the powers of courts of justice.</p> <p>Idem.—In the exercise of such supervisory power, the Secretary of the Interior may approve, modify or annul the acts, proceedings and decisions of the Commissioner of the General Land Office, whenever certified to him, without the formality of an appeal.</p> <p>Idem.—But even if the power of the Secretary of the Interior over the decisions of the Commissioner is to be regarded as appellate, the statute has not provided the machinery for taking an appeal, and consequently that matter is subject to such rules and regulations as the department may prescribe, and if the Commissioner of the General Land Office transmits the papers to the Secretary of the Interior, the presumption is that they were regularly and properly transmitted.</p> <p>Idem.—After a person claiming to be a pre-emptor has filed his declaratory statement, and has been permitted to pay for the land, and has received a certificate of purchase under the ruling of the Commissioner of the General Land Office, the Secretary of the Interior may direct the entry to be cancelled and annul the purchase, and after his decision the preemptor ceases to have any right or title to the premises.</p>

The defendants were a joint stock association doing an express business under the name by which they were sued. They were engaged in carrying treasure to and from the mines. On the 10th day of October, 1873, the stage was stopped by highwaymen near Buckeye, Shasta County, and the defendants’ treasure-box was taken from the same and broken open and its contents stolen.

On the 14th day of November; 1869, the plaintiff and Joseph C. Tucker were keeping a private asylum for insane persons, at the town of Alameda, county of Alameda, and on the morning of that day a locomotive and train of cars of the Western Pacific Railroad Company, going east, collided with a locomotive and train of cars of the San Francisco and Alameda Railroad Company, going west, at a point about two miles from the asylum.

<p>Reputation op Witness fob Tbuth and Inteobitv.—If the defendant proves that a witness, called and examined by the prosecution, has been convicted of a felony, it is an assault upon the character of the witness for integrity and truth, and the prosecution may, in rebuttal, examine witnesses to prove that the reputation of the witness for truth and integrity is good in the community where he resides.</p>

<p>Jurisdiction of Disteict Courts.—The district courts have jurisdiction of actions to recover from the owners the value of goods sold and delivered at the request of the master, for the use of a vessel engaged in navigating the high seas.</p> <p>Authobitz of the Master of a Vessel.—The master of a vessel is presumed, even at a home port, to have authority to contract for such articles for the use of the vessel as come under the general appellation of ship’s stores, and the owner of the vessel is liable for the value of the same, unless he shows that the master had not such power.</p> <p>Supplies fob a Vessel.—If supplies for a vessel are purchased at a home port, by the captain, with the knowledge and consent of the ship’s husband, the owners are prima fade liable for the same.</p> <p>Idem.—In such case the owners are liable, even if credit is given to the ship’s husband, unless exclusive credit was given to him.</p> <p>Pboof of a Fact constituting a Defense.—The court should not instruct the jury, that if the defendant has introduced evidence tending to prove a fact which would constitute a defense, he is entitled to a verdict.</p> <p>Eeboneous Instruction.—It is not error to refuse an instruction to a jury which assumes a fact to exist no proof of which was introduced.</p> <p>Bevival of a Debt Paid by a Note.—If several notes are given in payment of a debt, and only a part of the notes are paid, the original debt is revived as to the notes unpaid.</p>

<p>Appeal from the District Court, Sixth Judicial District, County of Sacramento.</p> <p>The plaintiff had been, for more than ten years, in the possession of a piece of land forty feet by fifty in length, and fronting on I street at a place opposite to where Third street enters I. The land lay in what would be Third street north of I if Third was opened north of I. The plaintiff had covered the lot with buildings, which he rented to tenants. The council of the city of Sacramento claimed that when the city of Sacramento was laid out, in 1848 and 1849, by Sutter and his grantees, that Third street was dedicated as a public street north of I, and passed a resolution directing the defendant Bider, who was street commissioner, to open the street. He threatened to do so, and the plaintiff commenced this action to enjoin him. The defendants, in their answer, set up that the land was a public street, and that the buildings on it were an obstruction to the use of the street, and were a nuisance.</p> <p>The plaintiff had judgment and the defendants appealed.</p>

<p>Damages for Malicious Pbosecution.—Case stated in which a verdict of seven thousand dollars damages for a malicious prosecution was held to be excessive.</p>

<p>Power of Legislature over Interest.—The Legislature has the power to impose on debtors the obligation of paying interest after the passage of the act, on debts already due, and the act is not retrospective.</p> <p>Interest on Legacies.—The Probate Act, prior to the adoption of the Civil Code, did not allow interest on a general legacy, payable in money.</p> <p>Idem.—A legacy which was due when the sections of the Civil Code allowing interest on legacies went into effect, drew interest from that time - forward.</p> <p>Act of 1850 concerning Interest.—The act of 1850, “ to regulate interest on money,” prohibited interest when not provided for by written contract, except in the cases therein specified.</p>

<p>Appeal from the District Court, Fifth Judicial District, County of Tuolumne.</p> <p>The court below rendered judgment that the plaintiff was entitled to purchase the north half of the land in controversy, and that the defendant was entitled to purchase the south half. Both parties appealed, and it was stipulated that both appeals should be heard on the same transcript.</p> <p>The other facts are stated in the opinion.</p>

Ejectment to recover possession of a lot of land at the northeast corner of Guerrero and Eighteenth streets, city and county of San Francisco. The suit was commenced November 10, 1869. The lease of Rix to Wilke was a written contract by which Rix agreed to let Wilke have possession of the land for one month, and Wilke agreed to take and hold such possession under Rix as his landlord, and pay therefor a rent of one dollar. It was signed by both of them. The plaintiff appealed.

The following is the note upon which suit was brought: “Sixty days after date, for value received, I promise to pay to the order of C. Tully the sum of' one thousand dollars, in United States gold coin, and not otherwise, with interest at the rate of two per cent, per month from date until final payment; interest payable in gold coin.

<p>Making an Additional Pabtt a Defendant.—If the plaintiff moves on the 19th of April for an order to bring in an additional party as a defendant, and the order is made, and on the 13th of May stipulates that such party may file an answer nunc pro tune, as of the 19th of April, the plaintiff is estopped from saying that such defendant was not a party, and in court from the 19th of April.</p> <p>When Foreign Cobfobation mat belt on Statute of Limitations.—If a foreign corporation has a managing agent in this State who exercises his authority openly as such, without fraudulent concealment, it may be sued in the courts of this State, and service of process made personally upon such managing agent; and if the agent, as such, has held and possessed land for the company for five years, the corporation may claim the benefit of the Statute of Limitations.</p> <p>Statute of Limitations as to Realtt.—In ejectment, a party who is brought in on motion of the plaintiff, as an additional defendant, after the suit has been pending a long time, may claim the benefit of the Statute of Limitations up to the day he is made a party.</p> <p>Effect of Averments in Complaint in Ejectment.—If the plaintiff, in his complaint in ejectment, alleges that the defendant is present and in the actual occupation of the demanded premises, he cannot afterwards be heard to say that the defendant was not present and in occupation, but was out of the State, when the defendant relies upon his presence and occupation as constituting an adverse possession, and as entitling him to the benefit of the Statute of Limitations.</p> <p>Erroneous Judgment.—A judgment rendered against a party who is brought in by motion as a defendant after the trial is concluded is erroneous as to such party.</p> <p>Possession of Land by an Agent.—If, in ejectment, a-corporation and its managing agent are both made defendants, and the court finds that the corporation is and has been in possession of the demanded premises by its agent, and that the corporation has a legal defense to the action, the possession of the agent cannot be disturbed.</p>

The two parcels of land in controversy in this action are thus described: First.

The complaint alleged that B. F. Moulton, in 1864, made his promissory notes to J. H. Kevins for $1750.

<p>Judgment in Gold Coin.—In a proceeding to condemn land for a public use, if the Court finds generally the value of the land taken, in dollars and cents, without saying that the estimated value is in gold coin, it cannot render a judgment in gold coin.</p> <p>Idem.—The point not decided whether, in proceedings to condemn land for a public use, the Court may find its value in gold coin, and render a judgment in gold coin.</p> <p>Special Damages in Taking Land fob a Public Use.—In a proceeding to condemn land for railroad purposes, the damage sustained hy the defendant arising out of the shape in which his land is cut, the raising of the railroad track across it hy an embankment, and the cutting off the remainder of the tract from a road, so as to injure its sale for homestead purposes, are not special damages, and may be proved without being pleaded specially.</p>

<p>Power or Board or Equalization.—The Board of Supervisors, sitting as a board for the equalization of taxes, does not exceed its jurisdiction by refusing to accede to an application to reduce the assessed valuation of property.</p> <p>Idem.—Such board has no power to strike out from an assessment, made by the assessor, property assessed by him.</p>

Application to the Supreme Court for a writ of review. The defendant, Sharpstein, was judge of the Twelfth Judicial District, City and County of San Francisco. The Spring Valley Waterworks was a corporation, engaged in supplying pure water to the inhabitants of said city. Its sources of supply of water were the streams flowing in the mountains, in the county of San Mateo, south of said city.

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco,</p> <p>John Moffitt was engaged in the plumbing business, in San Francisco, and had a stock of goods, and a horse and wagon, used in the business. He was in debt, and Thomas Day and his other creditors brought suits, and levied attachments. Judgments were recovered, and Moffitt’s property was sold on execution. At the sheriff’s sale, the plaintiff O’Brien became the purchaser for the sum of four hundred and twenty-five dollars. A few days after the sale, Chamberlain and Lyons, who were auctioneers, were employed to sell the goods at auction. At this sale, the goods brought six hundred and twenty-five dollars. Day, whose judgment had not been paid, procured McKibben, who was sheriff, to attach the money received for the goods, in the hands of the auctioneers. O’Brien demanded the money, and upon the refusal of the defendants to pay it to him, brought this suit against the auctioneers and the sheriff. On the trial, the defendants introduced evidence tending to show that Moffitt procured O’Brien to bid off the goods at the sheriff’s sale, and that after the sale they remained in Moffitt’s possession, and that he exercised acts of ownership over them until the time they were sold at auction by the defendants, Chamberlain and Lyons. The theory of the defendants was that Moffitt employed O’Brien to bid off the goods and furnished him the money, and that Moffitt retained possession of them, and had them sold at auction in the name-of O’Brien, but for his own benefit.</p> <p>The court instructed the jury as follows:</p> <p>“In order to maintain this action it must appear that the plaintiff was the owner of the property; that he bought it at the sheriff’s sale is not disputed; that he paid for it is not disputed; but it is contended that he bought it for the benefit of Moffitt, and that Moffitt still being the owner of the property, the money received by the sale of it by these defendants was Moffitt’s money, and was liable to be attached by the creditors of Moffitt; that is the theory of the defendant’s case. Mr. Day claims that he had an attachment upon this property, amounting to six hundred and odd dollars. He subsequently got a judgment, in August last, against Moffitt. He says that no part of that amount has been paid, and that this money should be appropriated to the payment of this claim.</p> <p>“Now, the question for you to determine is, whose property did this become after the sheriff’s sale? Did the plaintiff in this action buy it, and.pay for it with his own money, and did it thereby become his property, or did he pay for it, in part or in whole, with the money of Moffitt, and was the purchase made for the benefit of Moffitt? If you believe it was, it will be your duty to find a verdict in favor of the defendants; but if you believe that the sale was made in good faith, and that the plaintiff thereby acquired the title to the property, you should find a verdict in favor of plaintiff.”</p> <p>The defendants asked the court to charge the jury “that unless there was a continued change of possession of the goods after the purchase thereof by plaintiff, at the sheriff’s sale, and if the jury believed that Moffitt continued in the possession of the goods after the sale, that then the jury might take those facts into consideration in determining the question, whether or not the purchase of the goods at the sheriff’s sale was made by the plaintiff for the use and benefit of Moffitt. And if, from all the facts and circumstances of the case, the jury believe that said goods were bought by plaintiff for the use and benefit of Moffitt, then their verdict should be for defendant.”</p> <p>The court declined to so charge, saying: “I do not think that in a case like this the rule would apply as to continued change of possession.”</p> <p>The plaintiff had a verdict in his favor, on which judgment was rendered, and the defendants appealed from the judgment and from an order denying a new trial.</p>

Edward Franklin sued Ephraim. Merida and others to recover possession of a tract of land in the city and county of San Francisco.

Blum was the guardian of the heirs of the estate of Nicholas Valencia, deceased. As such, lie had in his hands money belonging to the heirs. Brownstone Brothers presented an account to him against certain of the heirs, which he refused to allow, but agreed to submit to the Probate Court the question whether they should be paid. The court made an order that he pay the accounts, and upon this order an execution was issued.

Ejectment to recover a belt of land lying on the boundary-line between fifty-vara lots Nos. 4 and 5, and fractional fifty-vara lots Nos. 2 and 3, in the city of San Francisco. In 1863, William Y. Wells owned said fractional fifty-vara lots, and the defendant Connolly owned lots 4 and 5.

<p>Matters or Substance in a Complaint.—Matters of substance, which are necessary to be alleged in a complaint, cannot be left out, and the defect supplied by reference to an exhibit attached to and made a part of the complaint.</p>

<p>Appeal from the District Court, Third Judicial District, City and County of San Francisco.</p> <p>The complaint- alleged, in substance, that Matthew Maume was a resident of the city of San Francisco from the year 1849 until the year 1854, when he left for the city of Mexico. That he owned several parcels of real estate in San Francisco, and, in January, 1859, was in Limerick, Ireland, and there made a conveyance of said real estate to Michael Dundon, his brother-in-law, and inserted in the conveyance a consideration as paid, but that no consideration was paid, and that the deed was made to keep the property from the creditors of Maume, but with the understanding that Dun-don should come to San Francisco and manage the property for Maume, and when requested so to do, reconvey it to him. That Dundon came to San Francisco and found the property in the possession of squatters, who were holding it without right or title. That he was a weak, timid man, and made the acquaintance of defendant McMinn, who was an attorney and a clerk in the office of defendants, G, F. &. Yf. H. Sharp, who were also attorneys. That McMinn and the Sharps frightened Dundon with the story that he was in danger of his liberty or life, and persuaded him to convey the property to McMinn and leave the country, and gave him $750 to enable him to return to Ireland. That Dundon made the conveyance to McMinn, and left for Ireland, McMinn and the Sharps having promised him to take charge of the property and manage it for the benefit of Maume. That McMinn paid no consideration for the property, except the $750 given by the Sharps to Dundon. That the Sharps, as attorneys for McMinn, had recovered possession of the property by means of the Maume title, and McMinn had conveyed a part of it to them. That Maume died in Galveston, Texas, in 1862, leaving a will in San Francisco, in which he named 0. McO. Delaney and P. M. O’Brien his executors. That the will was not discovered until 1870, when it was probated, but the executors renounced their trust, and, on the 27th of October, the same year, William Maume was appointed administrator with the will annexed. That Maume was removed for cause, on the 10th day of January, 1873, and the plaintiff was appointed special administrator. That the several creditors of the estate had, in April and December, 1872, recovered judgments against the estate. That the property was worth about $250,000, and there were no other assets of the estate. The other defendants were made such under allegations that they had either taken conveyances of portions of the estate, or mortgages on it, with a full knowledge of the facts.</p> <p>The defendants demurred to the complaint, and the demurrer was sustained. The plaintiff declining to amend", judgment was rendered against him by default, and he appealed. This suit was commenced February 14, 1873.</p>

<p>Appeal from the Municipal Criminal Court of the City and County of San Francisco.</p> <p>The facts are stated in the opinion.</p>

Application to the Supreme Court to be discharged on habeas corpus. On the 14th day of March, 1871, a judgment was rendered in the District Court of the Fifteenth Judicial District, in favor of A. M. Burns, against the petitioner, in a civil action, for the sum of $15,404.94, and convicting him of fraud. On the 3d day of August, 1875, the petitioner was arrested on an execution issued on the judgment and imprisoned in the jail in San Francisco.

Santiago Arguello died intestate, in November, 1862, and was, at the time of his death, a resident of the county of San Diego. He left a tract of land called the “Rancho ex Mission of San Diego,” containing thirteen square leagues. He left a widow and several children and grandchildren. Homer W. Searl became the administrator of his estate in 1872, and gave the bond required by law.

Ejectment commenced April 15, 1868, for a tract of about five acres of land, being portion of the Eancho San Antonio, granted to Luis Peralta by the Mexican government about the year 1820.

<p>Appeal from the County Court of the County of Stanislaus.</p> <p>The complaint contained three counts: one for an unlawful entry upon a tract of mining claims, and a refusal to deliver possession of the same after demand; another for a forcible entry on the claims, and unlawfully keeping possession of the same; and a third for keeping possession of the claims "with a strong hand, and by menaces and threats of violence.</p> <p>The evidence on behalf of the plaintiffs tended to show that, in 1863, the plaintiffs commenced running tunnels for prospecting purposes, in a spur of Red Mountain, in the gold regions in Stanislaus County, and built a log cabin near by, which they occupied while at work. That the plaintiffs continued prospecting, at different times, till about November, 1873, when they ceased work, and did not again occupy the claim or cabin, although their tools remained in the cabin. The defendants, in May, 1874, entered upon and claimed a portion of the ground upon which the plaintiffs had prospected, and also repaired and occupied the plaintiffs’ cabin. Prior to the entry of the defendants, the plaintiffs had not marked off or designated by boundaries the ground claimed by them. The plaintiffs, in October, 1874, caused a survey to be made of about six hundred acres, including the ground claimed by the defendants. The land was public land.' More than five days before the commencement of this action, the plaintiffs served on the defendants a written demand for the surrender of the tract described in the complaint, but the defendants failed to comply with the demand. The action was commenced on the 5th day of November, 1874. When the plaintiffs rested, the defendants moved the court for a non-suit, on the following grounds:</p> <p>1. That there is no evidence showing that the plaintiffs, or any of them, were in the actual, peaceable or exclusive possession of any of the land mentioned and described in the complaint, at the time defendants entered thereon.</p> <p>2. There is no evidence tending to show any forcible or unlawful entry, or any forcible or unlawful detainer.</p> <p>The court denied the motion, and the defendants excepted.</p> <p>The plaintiffs obtained a verdict and judgment. The defendants appealed from the judgment and from an order denying a new trial.</p>

<p>Appeal from the District Court, Seventeenth Judicial District, County of Los Angeles.</p> <p>Ejectment to recover the "Willow-Grove,” commenced in January, 1870.</p> <p>On the 14th day of October, 1852, Henry Dalton, then being the owner of the rancho San Francisquito, by deed of that date, conveyed to John O. Wheeler an undivided one-tliird part of it; and on the 8th day of November, 1855, the said Dalton and Wheeler, having agreed upon a partition, mutually executed and delivered to each other deeds for the portions falling to each respectively, under said partition.</p> <p>JBy the deed from Dalton to Wheeler the former conveyed to the latter all that “portion of the San Francisquito Bancho described as follows: Commencing at the northeast corner of said rancho where the northern boundary intersects the river Azusa, thence running in a southerly direction with the river Azusa to the southeast corner of said rancho; thence westerly along the old road forming the southern boundary of said rancho to a point distant from said river Azusa, by an air line, one-third of the distance of the southern boundary of said rancho; thence in a direct line to the north boundary of the rancho, run with such course as will comprise within the boundaries above mentioned one-third part of the entire area of the said rancho of San Francisquito; thence easterly and along the northern boundary to the place of beginning.”</p> <p>The rancho had been granted to Dalton by the Mexican Government in 1845. In September, 1852, he had petitioned the Board of Land Commissioners for the confirmation of the grant. The rancho embraced about two square leagues. In 1867, a patent was issued by the United States to Dalton. The land in controversy is known as the “Willow Grove,” and comprises 61 ^ acres. The plaintiffs deraigned title from Wheeler and the defendants from Dalton.</p> <p>The following plat shows the rancho and land in controversy.</p> <p> </p> <p>When the grant was made, an accurate survey was also made, and juridical possession was delivered. • By this survey the southeast corner of the rancho was on the “old road,” about five chains to the east of the west bank of the river. For many years it had been understood in the neighborhood, that the dividing-line between Wheeler and Dalton was to the west of the land in controversy, and Wheeler and his grantees had taken possession of it and held it as within the limits of the deed to Wheeler, without any complaint on the part of Dalton or his successors in interest, until after the patent was issued by the United States. The official survey made by the United States, described in the patent, placed the southeast corner of the rancho in the centre of the river, at the point “O” on the plat, eighteen chains easterly from the west bank of the river; and the juridical possession had placed it at “E,” five chains west of the bank of the river, and twenty-three chains from “O.” The boundaries of the rancho as understood at the date of the deed from Dalton to Wheeler were as fixed by the juridical possession. Several questions were involved here. First. Was the southeast corner to be placed at the point where the juridical possession placed it, or at the point where the United States survey placed it? Second. Are the words, “distance of the southern boundary,” to be construed as meaning its length measured along the road, or as meaning a straight line between the extremities of the boundary? If the deed was construed as referring to the southeast corner of the rancho, as fixed by the juridical possession, and the words southern boundary as referring to the distance measured along the road, then the land in dispute belonged to Wheeler. If said corner was to be fixed where placed by the United States survey, and the distance between the termini of the southern boundary was measured by a straight line, then the land belonged to Dalton, and the defendants were entitled to judgment.</p> <p>The decision of one of these questions one way, and one the other, might have given to each party a portion of the land in dispute. The court below construed the deed as referring to the southeast corner as fixed by the United States survey, and held the measurement along the southern boundary was to be made in an air line, and gave judgment for the defendants. The plaintiffs appealed.</p>

<p>Appeal from the District Court, Nineteenth Judicial District, City and County of San Francisco.</p> <p>Action on the following promissory note:</p> <p>“One day after date, for value received, I promise to pay to Mark Ager or order, the sum of six hundred and fifty dollars in U. S. gold coin, to bear interest at one per cent, per month, until paid.</p> <p>Í C E. L. Duncan.</p> <p>“San Francisco, December3, 1873.”</p> <p>The court below found the following facts:</p> <p>“3. That the money for which said note was given was not the money or property of plaintiff, but of one B. C. Quigley, by wtiom it was given to plaintiff for the purpose of paying it over to defendant, which plaintiff did on the same day he received it.</p> <p>“4. That defendant and said Quigley were co-partners in business, and the said sum of money for which said note was given was a part of one thousand dollars which Quigley agreed to furnish towards the capital stock of said co-partnership business, as his, Quigley’s, share thereto, and was used in said business.</p> <p>“5. That defendant was induced to give said note by and upon the representations of said Quigley, that he, Quigley, was in debt, and was fearful his creditors would annoy him and break up and ruin said partnership business if they knew he, Quigley, was interested and had capital invested therein; and that it was verbally agreed by and between defendant and said Quigley, at the time of signing said note, that said note was never to be paid, of which representations and agreement plaintiff had full knowledge at the time said note was given.</p> <p>“6. That said note was given without any consideration whatever, other than as above stated.</p> <p>“7. That a short time before said promissory note was given, said Quigley had made an assignment of all his property to his creditors, and it does not appear from the evidence, or otherwise, that there were any legal claims against him at the time said note was given.”</p> <p>The court rendered judgment for the plaintiff, and the defendant appealed.</p>

<p>Will of Husband devisino Communitv Pbofebty.—If a married man, by-will, devises his real estate to his wife, and the same is community property, and there is nothing on the face of the will to show that he intends to devise more than the undivided half which is subject to his testamentary disposition, and, after the death of the testator, the executor, under a power of sale in the will, and in ignorance of the law which' allows the wife to inherit one-half of the community property, sells and conveys the right of _ the testator to all the land, and the purchaser, also in ignorance of the law, supposes he is buying the entire property, and the wife, also in ignorance of the law, receives the purchase-money, she does not thereby waive her right to the undivided half of the property which the statute permits her to inherit.</p> <p>Idem.—In such case there is no alternative by which the widow is required to elect whether she will take under the will, or repudiate it and claim her inheritance under the statute.</p> <p>Election ob Ratification.—The essence of either an election or ratification is, that it was done with full knowledge of the party’s right.</p>

Ejectment to recover a tract of land in Marin-County,-and described in the complaint as follows: “Commencing at a point in the township line between townships one and two north, range six west, thirty-three chains west of the northeast corner of section four; thence running east-on-said township line to a point where it strikes the Murphy ranch boundary; thence following said Murphy ranch boundary-line to a point where it strikes the southerly boundary of swamp and…

W. A. Anderson was auditor of the county of Sacramento in the years 1866 and .1867. On the 1st day of October, 1886, the board of supervisors allowed him the sum of $1650, for extending the figures on the general tax-roll of that year. On the 1st of October, 1867, the board made him the same allowance.

The following is a copy of the note sued on: '$2000. San Rafael, May 16, 1866. “One year after date, for value received, the San Rafael Turnpike Road Company promises to pay Charles D. Bates, or order, in United States gold coin, two thousand dollars, with interest thereon from date until paid, at the rate of one and one-half per cent, per month, said interest payable monthly in like gold coin.

The plaintiff was an owner of real estate, and a taxpayer in the county of Santa Cruz, and, as such, on behalf of himself and others who owned real estate and taxable property in the county, filed a bill in equity to enjoin the supervisors of said county from issuing to the Santa Cruz Railroad Company bonds of the county to the amount of two hundred and forty thousand dollars, under an act approved April 4, 1870, entitled “An Act to empower the Board of Supervisors of the…

<p>Record of Patent as Evidence.—A patent for land, issued by the United States, may be proved by producing from the Recorder’s office the book in which it is recorded, without proof of loss of the original.</p> <p>Records of Secretary of . State’s Office as Evidence. — Certified copies, from the office of the Secretary of State, of the articles consolidating two or more railroads, are admissible in evidence to prove such consolidation.</p> <p>Articles Consolidating Corporations.—The articles which are filed in the office of the Secretary of State, consolidating two or more railroad companies, are admissible in evidence to prove such consolidation.</p> <p>Power of Secretary of Interior.—The Commissioner of the General Land Office and the Secretary of the Interior have power to set aside and annul the action of the register and receiver in allowing a pre-emptor to prove up and pay for land, and in issuing to him a certificate of purchase therefor.</p>

<p>Enfoboemekt of Tbüst.—M. and 0. were both residing on an unsurveyed quarter section of public land, and agreed that it should be purchased from the State in the name of 0., and that each should furnish one-half the money to make the purchase, and pay one-half the expense, and own one-half the land, and that when the purchase was made from the State, C. should convey one-half to M. 0. afterwards pre-empted the land, and received a patent for it from the United States: Held, that before M. could have G. declared his trustee, and compel him to convey to him one-half the land, he must show that the land could have been purchased from the State by one of them; that is, that the State had held the title, and would have sold and conveyed it.</p>

Suit on a promissory note, of which the following is a copy: “ $9945.44. “ San Fbancisco, August 25, 1871. “On or before the 25th of September, 1871, for value received, I promise to pay to the order of the Bay View Homestead Association the sum of $9945.44, in gold coin of the United States, it being the amount of funds of said association held by me as late treasurer thereof, with interest thereon from date until paid, at the rate of one per cent, per month.

<p>Appeal from the District Court, Fifth Judicial District, County of San Joaquin.</p> <p>Ejectment to recover the southwest quarter of section twenty-nine, township two south, range five east, Mount Diablo meridian. The land was within the limits of the grant to the Central Pacific Railroad Company of California. The plaintiffs claimed under the Western Pacific Railroad Company. The latter company was the successor in interest of the Central Pacific, of the lands granted to the latter company between the Bay of San Francisco and Sacramento. The plaintiffs introduced in evidence a patent from the United States to the Western Pacific Company, dated May 31, 1870, embracing the demanded premises, and then deraigned title from the latter company. Defendant introduced evidence tending to show that her husband, Abel Fairchild, entered on the land as a pre-emptor, in 1883, and died in 1865, and that she was his heir, and continued to live on the land after his death. She then proved that she filed her declaratory statement on the 4th day of October, 1870, and that the United States issued a patent to the “heirs of Abel Fairchild” on the 16th day of April, 1872. The land was surveyed and the plat filed in the local land office on the 5th day of June, 1863.</p> <p>In rebuttal, it was admitted that the right of the Western Pacific Bailroad Company, plaintiffs’ grantor, if any it ever had, attached on the 30th day of January, 1865, by virtue of a letter of the Commissioner of the General Land Office, filed in the United States Land Office, at San Francisco, on that day, withdrawing the land from sale, preemption and settlement, which was granted by the act of Congress, approved July 1,1862, entitled “An Act to aid in the construction of railroad and telegraph lines from the Missouri Biver to the Pacific Ocean, and to secure to the Government the use thereof for postal, military and other purposes,” and the acts amendatory thereof and supplementary thereto.</p> <p>The court rendered judgment for the defendant, and the plaintiffs appealed from the judgment and from an order denying a new trial. The appeal from the judgment was taken more than one year after it was rendered.</p> <p>The third section of the act of Congress of July 1, 1862, grants to the company the alternate sections designated by odd numbers within ten miles on each side of the road; and by the act of July 2, 1864 (2 Lester’s Land Laws, 122), this grant was extended to the odd numbered sections within twenty miles on each side of the road.</p>

Prior to the 1st of August, 1870, one Benvonito was in the possession of and claiming to own a mining claim on the west half of the northeast quarter of section nineteen, township ten north, range twelve east, Mount Diablo base and meridian, in the Newtown Mining District, county of El Dorado. At the same time, the plaintiff G. B. Baffetto and others were in the possession of and claiming to own a mining claim adjoining and including the remainder of said subdivision.

<p>Appeal from the District Court, Fifth Judicial District, County of San Joaquin.</p> <p>James M. Henderson brought an action against Enoch Sturgeon on the 9th day of August, 1872, and on the 26th day of August, 1872, recovered judgment by default for three thousand four hundred and sixteen dollars and costs. On the 2d day of September, 1872, Sturgeon died intestate. The plaintiff received letters of administration on his estate on the 6th day of November, 1872. On the 26th day of August, 1872, an execution was signed by the clerk, and attested by his seal, but it was not delivered to the sheriff until the 25th of September following. The sheriff, by virtue of the execution, on the 26th of September, levied on a part of the property which had been attached, and which consisted of barley, and a wagon, and stock, and sold the same on the 2d of October. On the 2d of October, the sheriff, by virtue of the execution, levied on the remainder of the attached property, and sold the same on the 8th of October. The administrator brought this action to recover the property, and damages for its detention. The plaintiff had judgment and the defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

On the 10th day of August, 1872, the defendant commenced an action in the District Court of the county of San Joaquin, against Enoch Sturgeon, to recover judgment for money alleged to be due. A writ of attachment was issued and placed in the hands of the sheriff of Sacramento County, who levied it upon a quantity of barley, wheat, a horse, and some hogs, the property of Henderson.

The city of San Francisco, as the successor of the pueblo of that name, became entitled to, and had confirmed to it, the pueblo lands, consisting of four square leagues. The city, on the 20th day of June, 1855, passed an ordinance relinquishing to the possessors thereof said lands, with certain exceptions.

<p>Appeal from the District Court, Third Judicial District, County of Santa Clara.</p> <p>The rancho Eincon de los Esteros, granted by the Mexican nation to Domingo Alviso, was, after his decease, confirmed to his children, Eafael, Estefana, Maria de Jesus, and Magdalena. On the 19th day of January, 1863, said children, and James Lick, and William Welch, owned, as tenants in common, the southerly half of the rancho. Madeline Pacheco, the mother and guardian of the children, on the 1st day of August, 1854, conveyed to defendants Deray and Michelot, a tract of land, being part of the rancho, described as bounded on the southwest by the road leading from San Jose to Alviso, in length forty rods; thence lying northeast, a square plot, measuring on each of the four sides forty rods, and containing ten acres. The children were then minors. The grantees entered into possession under the deed, and planted the trábt to grapevines, and improved, as stated in the opinion. In 1862 the road mentioned in the deed was vacated, and a new road laid out from San Jose to Alviso, leading across the vineyard, about sixteen rods easterly from the old road. Soon after the change of roads, Deray, who had acquired Michelot’s interest, was advised that his title was not good, and applied to Eafael and Estefana, who had attained their majority, to sell him the tract which he occupied as a vineyard. They agreed to do so, and, on the 19th day of January 1863, gave him the conveyance mentioned in the opinion. This deed recited a consideration of four hundred dollars, and “granted, bargained and sold, conveyed and confirmed” to Deray “all of their right, title, claim, interest and demand in and to ” the land described in the deed. The plaintiff Estefana Wade, was the wife of the plaintiff Charles, and the same person as- Estefana Alviso. The deed of the tenants in common to Wright recited that they were tenants in common, and that they had agreed to partition, and that it was made to effect the partition, and that the land was conveyed to Wright in trust to convey to each of- the co-tenants the tract which had been allotted to him by the agreement to partition. This deed was dated the 26th day of October, 1865. The final survey of Ihe rancho had been approved, but no patent had issued by the United States. The court rendered judgment for the defendants, and the plaintiff appealed.</p> <p>The other facts are stated m the opinion.</p>

<p>Appeal from the District Court, Seventeenth Judicial District, County of Los Angeles.</p> <p>The plaintiff owned a span of horses and a wagon, with which he was engaged in peddling vegetables in the city of San Jose. On the 26th day of April, 1872, he drove his horses in front of the house of one Bertrand, in San Jose, not far from the railroad track, and left them unhitched while he went into the house with vegetables. He knew that the cars passed there every day at about that hour, but knew that his horses were accustomed to railroad trains, and were not frightened at them. On coming out of Bertrend’s house, he saw his horses moving towards the railroad track, and pursued them, and caught hold of the lines just before they reached the track, and standing on the ground attempted to turn them, so as to avoid a collision. In doing so, the hind wheel of the wagon was struck by a car, and broken in pieces. The plaintiff was hit on the shoulder and thrown against the wagon, or to the ground, and his hand was injured so as to require amputation. The horses moved on a few paces, and stopped. This was an action to recover damages for the injury. When the plaintiff rested, the defendant moved for a nonsuit, which was denied by the court. The plaintiff recovered judgment, and the defendant appealed.</p>

Frederick Sulzberger married Christina Sulzberger on the 1st day of September, 1870. He died on the 3d day of November, 1872, leaving one-child, Elizabeth. At the time of his death the wife was pregnant. By his will, he devised ten thousand dollars to his daughter Elizabeth, and the same amount to his posthumous child. The child was born in January, 1873, and died in April, 1873. The widow and Thomas Dobbins were named executors. Both qualified, but the widow did not act.

Ejectment to recover an undivided one-half of a small tract of land in the city of Los Angeles, commenced November 14, 1870. Nathaniel Pryor, a resident of Los Angeles, died on the 10th day of May, 1850, seized in fee of the demanded premises, along with other lands in Los Angeles, and also leaving personal property. He left, surviving him, a wife, Paula Homero, and two sons, Paul and the plaintiff Nathaniel. The plaintiff was born in September, 1848.

On the 30th day of November, 1872, Henry Schmeidell, a broker in San Francisco, owned twenty shares of the stock of the defendant, a corporation organized for mining purposes, and received the following certificate: “Twenty Shares.

<p>Confessions of a Defendant.—A defendant cannot be-convicted of a.-crime on his extra-judicial statements or confessions alone, without other evidence tending to show the commission of the crime.</p> <p>Indictment of Accessoby.—An indictment against an accessory must, in addition to other matter, contain all the averments that would be necessary in an indictment against the principal; and it must therefore allege that the crime of the principal was committed before it was found and presented.</p>

<p>Objections to the Answer.—If a cause is tried upon the theory that the answer denies the allegations of the complaint, the plaintiff will not be permitted to raise the objection, in the Supreme Court, that the answer is insufficient in this respect.</p> <p>Contract to Build ¡Railroad.—If a contract with a railroad company for constructing its road provides that the contractor shall not deviate from the contract, nor receive any pay for extra work, unless a written order for the same is made and signed by the engineer, the contractor cannot recover for extra work done on the verbal order of the engineer, even if there is another clause in the contract which provides that the engineer may direct alterations in and additions to the work.</p>

<p>Witnesses in Action against Administbatob.—Section 1880 of the Code 0f Civil Procedure, which prohibits parties to an action or proceeding against an executor or administrator upon a claim against the estate' from being witnesses, applies not only to parties who have an interest adverse to the estate, but to all nominal parties to the action.</p>

<p>Appeal from the District Court, Nineteenth Judicial District, City and County of San Francisco.</p> <p>The plaintiff, in his complaint, alleged that on the 30th day of April, 1871, he made an agreement with Anna Morales, to purchase from her her interest in the rancho Agua Caliente, in the county of Sonoma, and was to pay her therefor two hundred and fifty dollars, and that the rancho was her separate property, and her husband was to unite with her in the deed; that on the same day, he saw defendant Hamilton, and told him of the agreement, and agreed with him to sell him an undivided one-third, for which Hamilton was to pay him two hundred and fifty dollars; that on the following day he called on defendant Woods, an attorney, and agreed with him to conduct such suits as might be necessary about recovering the land, and to retain, as assistant counsel, B. S. Brooks. That on the 10th day of May, 1871, defendant Hamilton made and delivered to the plaintiff and defendant Woods, a deed, whereby he bargained, sold, and conveyed to the plaintiff and said Woods, an undivided two-thirds of the rancho; that on the 27th day of May, 1871, Morales and her husband executed a conveyance of the rancho, in which, at the plaintiff’s request, defendant Hamilton was the sole grantee; that on the 29th of May, 1871, defendant Hamilton' proposed that the title to the whole rancho should be vested in him and the plaintiff, an undivided- one-half each, and that they then join in signing an agreement with defendant Woods, and that Hamilton then proposed that the deed he had made on the 10th of May should be delivered up to him, and it was so delivered, and a deed was drawn up from the plaintiff and Woods to Hamilton, but it was not delivered because the agreement with Woods was not signed; that the deed to Hamilton, of the 10th of May, had not been recorded, and Hamilton having thus obtained possession of it, executed and delivered to defendant Bryant a deed of the whole rancho, without any consideration, and that Bryant had notice of all the facts; that Hamilton then refused to recognize the plaintiff as having any interest in the land, and he and Bryant claimed to be the owners thereof, and had made some agreement in relation thereto with the other defendants; that Woods had conveyed to one Hamil, and Hamil to the plaintiff, the undivided one-third of Woods; that by the acts of the defendants in ignoring the rights of the plaintiff, and setting up title adverse to him, they had forfeited all right to retain the benefits and advantages which they' were to reap from their contract, and the plaintiff had a right to rescind, and had rescinded the same, and offered to return to Hamilton the money he paid. There was a prayer that the defendants unite in a conveyance to the plaintiff. There was a trial, and the court rendered judgment for the defendants. The plaintiff appealed from the judgment and from an order denying a new trial.</p>

<p>Appeal from the District Court, Fourteenth Judicial District, County of Placer.</p> <p>The plaintiff, in his complaint, alleged that prior to February 18, 1869, the plaintiff, E. Winspear, J. M. Miner, and defendant Jones had owned and been partners in certain mining claims and water ditches at Forest Hill, Placer County; that on said day the partnership was dissolved by a judgment of the District Court, in a suit brought by Jones, in which Clark, Winspear and Miner were defendants; that an appeal was taken to the Supreme Court by the defendants; and, for the purpose of enabling the property to yield an income to the owneirs pending the appeal, on the 30th day of September, 1869, Clark, Winspear, Miner, and Jones, the former partners, by agreement in writing, leased the property to the defendants to hold for the term of one year, unless the appeal was sooner decided, the defendants agreeing to pay therefor the sum of four thousand dollars, or a proper proportion thereof if the appeal was decided in less than one year. That the year expired before the appeal was decided, and that the defendants had not paid the money or any part thereof; that Miner and Winspear had assigned to the plaintiff; that the interest of Clark in the property was six and one-half fifteenths, and of Miner three and one-half fifteenths, and of Winspear two and one-half fifteenths, and Jones two and one-half fifteenths. Judgment was asked for twelve and one-half fifteenths of four thousand dollars. The defendants demurred and then answered, the demurrer having been overruled. The plaintiff recovered judgment and the defendants appealed.</p>

Ejectment to recover the rancho Cañada de San Miguelito, in the county of Ventura. The plaintiff had judgment, and the defendants appealed. The other facts are stated in the opinion.

<p>Appeal from the District Court, Sixth Judicial District, County of Yolo.</p> <p>Ejectment to recover a belt of land fourteen feet wide on the south side of lot number one, in Elliott’s addition to the town of Woodland, county of Yolo. Elliott owned a tract of land in Woodland and platted it into lots as an addition to the town. It was 645 feet wide, east and west, and 13325 feet long, north and south. The tract was in the northeast quarter of the southeast quarter of section thirty-two, township ten north, range two east, Mount Diablo meridian. Messinger acquired Elliott’s right, and, November 3, 1870, conveyed to Giddings lot No. 1 of the plat, described in his deed as follows: “Lot number one of Nathan Elliott’s Southern Addition to the town of Woodland, as shown by plat of said addition, recorded in recorder’s office of said Tolo County, in book K of Deeds, on page 245.”</p> <p>Thó plaintiff claimed under Giddings, and introduced the deed in evidence, and then the plat of the addition to the town. The following is the plat, together with the marginal note on the same:</p> <p> “Map showing Nathan Nlliott's Southern Addition to the town of Woodland. </p> <p>USTOBTEC.</p> <p> </p> <p>“This addition is situated on the following described land, viz.: Commencing at the northwest corner of the east half of the southeast quarter of section thirty-two, township ten north, range number two east, Mount Diablo base and meridian; running thence south eighty rods, more or less, to the northwest corner of a forty-acre lot owned by J. D. Daly; running thence east six hundred and forty-five (645) feet; thence north eighty rods, more or less, to the north line of said quarter section; thence west six hundred and forty-five (645) feet to the place of beginning.</p> <p>“Recorded at request of Nathan Elliott, June 25, 1870, at 3 o’clock p. if.</p> <p>“E. Bynum, Recorder,</p> <p>“By C. J. Giddings, Deputy.”</p> <p>The following is the plat as located in the section;</p> <p> </p> <p>It appeared from the testimony and admissions of the parties, that Elliott, when he made a survey of the plat, planted a stake, for a starting-point, fourteen feet north of the corner of the northeast quarter of the southeast quarter as fixed by the United States survey, and made a survey of the plat from such stake, so that the plat was carried fourteen feet north of the line of the United States survey. The defendant, in 1872, received a deed of lot four from Messinger, described as lot one was in the deed to Giddings, and took possession according to Elliott’s survey, which carried lot four fourteen feet on to lot one, according to the United States survey. The court gave judgment for the defendant and the plaintiff appealed.</p> <p>The other facts are stated in the opinion.</p>

The plaintiff was the owner of a tract of land near Santa Bosa, county of Sonoma.

The firm of Goodrich & Polhemus, on the 29th of March, 1871, contracted with the defendants to deliver, in good order, to the latter, two lots of wool, on or before May, 1871, the latter contracting to pay nineteen and one-half cents per pound for it. The plaintiffs brought this action on the 4th of October, 1871, to recover a balance due them for the wool on an account stated. The balance claimed was $2056.02.

Action brought against the defendant to recover damages for having, as justice of the peace, rendered judgment and issued execution in an action where he had no jurisdiction.

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>Action for the partition of the rancho Laguna de Merced, lying partly in the city and county of San Francisco, and partly in the county of San Mateo. The action was commenced in 1868. There were a large number of defendants, who were alleged to own interests in the rancho. Among the defendants were E. Grisar and Daniel Green, who alone answered. It does not appear that summons had been served on any of the defendants. One of the defendants, Josefa de Haro Denniston, moved the court for leave to make further service of the summons on the ground that, since the commencement of the action, circumstances had occurred which made the plaintiff unwilling to proceed with the action. At the hearing of this motion, the attorney for the plaintiff moved to dismiss the action. The attorney for Grisar and Green was present when the motions were heard, and supported the motion of Mrs. Denniston’s attorney. Some of the defendants supported the motion to dismiss. The court denied it, and granted the motion of the plaintiff’s counsel to dismiss. Afterwards, on the 8th day of August, 1873, Grisar and Green, by their attorney, moved the court to set aside the order dismissing the action, on the ground, stated in an affidavit, that their attorney had no notice of the motion to dismiss, and that the dismissal was in contravention of the spirit of a stipulation theretofore made in the cause by the attorney for the plaintiff, and that, at the time the stipulation was made, Grisar had a suit pending for a partition of the same rancho, which he dismissed at the plaintiff's request in consideration of the stipulation being given. The court denied the motion to set aside the judgment of dismissal. The defendants presented a bill of exceptions relating to the dismissal of the action, which bill is spoken of in the opinion as having been settled too late. The defendants Grisar and Green appealed from the judgment of dismissal and from the order refusing to vacate the judgment of dismissal.</p> <p>The other facts are stated in the opinion,</p>

<p>Appeal from the District Court, Thirteenth Judicial District, County of Fresno.</p> <p>The indictment as found and returned by the grand jury, read as follows, except the words in italics. The words in italics were afterwards interpolated, by being written on the margin of the indictment, opposite the first words of lines, being the same words they precede:</p> <p>“H. H. Granice is accused by the grand jury of the county of Merced, State of California, of the crime of murder, a felony committed as follows: The said H. H. Gran-ice, on or about the 7th day of December, eighteen hundred and seventy-four, at the town of Merced, in the county of Merced, in the State of California, then and there being, did, then and there, with a pistol loaded with powder and leaden ball, maliciously, feloniously, and unlawfully shoot and kill and murder one Edward Madden, a human being, etc.”</p> <p>The defendant pleaded not guilty. On the trial, after the prosecution had rested, the' defendant moved to strike out those portions of the indictment which had been interpolated, and, in support of his motion, offered to prove the fact of the interpolations. The counsel for the prosecution opposed the motion, because, as he stated, he had informed the defendant’s counsel of the interpolation before he had pleaded, and had offered to make an affidavit to that effect. The court refused to hear evidence of the interpolation, and denied the motion. The defendant was convicted of murder in the first degree, and sentenced to imprisonment for life. The defendant appealed.</p>

<p>Cobbobobating Evidence.—The evidence which is necessary, under section 1111 of the Penal Code, to corroborate the testimony of an accomplice in order to secure a conviction, need not be evidence tending to establish the precise facts testified to by the accomplice.</p>

Judicial District, County of Sonoma. Action to quiet title to a tract of land in Sonoma County, being a part of the Eancho Los Guillicos, granted to Don Juan Wilson by the Mexican nation in 1837. In July, 1851, William Hood and Amelia Wilson were the owners of the rancho, and conveyed to Martin and William Hudson a tract of land, being part of the rancho.

Ejectment to recover a tract of land in Santa Barbara County. The defendant filed an answer. This is a copy of the judgment: “This cause came# on regularly for trial. The said defendant appeared by his attorneys. A jury of twelve persons was regularly impaneled and sworn to try said cause. Witnesses on the part of the defendant were sworn and examined.

Haraszthy borrowed ten thousand dollars from Abel Gray, and gave him his promissory note. The following is the note, and also the pledge of personal property for its payment, on the same paper with the note: “ $10,000. San Francisco, Sept. 29, 1863. “One month after date, without grace, I promise to pay to Abel Guy, or order, the sum of ten thousand dollars, for value received, with interest thereon at the rate of two per cent, per month from date until paid, payable monthly.

<p>Appeal from the District Court, Fifteenth Judicial District, County of Contra Costa.</p> <p>The complaint averred that the plaintiffs, on the 23d day of September, 1871, were and now are the owners of a tract of land known as the “Los Medaños Rancho,” in Contra Costa County, and that, on the same day, the defendant was in possession of a tract of land situated about three miles in a southerly direction from the rancho, which then was and since had been used by the defendant for mining coal, and that, in the conduct of its business of mining, the defendant at said date and ever since had caused to be discharged, etc. The remainder of the allegation is found in the opinion. It was then alleged that the plaintiff had demanded of defend-* ant to abstain from said acts, but the defendant had neglected to comply. Judgment was asked for damages and that the defendant be enjoined. The plaintiff appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Testimony op Exeebt as to Genuineness op Handwbiting. —In order to render one a competent-witness, as an.expert, to the genuineness of a signature, he must have been educated in the business about which he testifies, or he must have acquired actual skill and knowledge upon the subject. It is not enough that he has sometimes compared signatures of other persons when disagreements as to their genuineness had risen in the course of business.</p>

<p>Jtjezdical Possession of a Mexican Gnash.—If the officer giving juridical possession of a grant made by the Mexican nation, gave possession of land outside the boundaries of the grant, the possession thus given was unauthorized and void, and conferred no title except as to the land within the boundaries.</p> <p>Dcin taitón of Actions.—An action to recover land embraced within a Mexican grant may be commenced within five years next after a patent is issued by the United States, although more than five years have elapsed after the final approval of the survey by the District Court of the United States.</p>

<p>Setting Aside a Judgment.—When a cause is submitted,, without argument and no brief is on file for the appellant and the judgment is affirmed, and it afterwards appears that there was a stipulation of respondent’s counsel extending the time for filing a brief which had not been filed, the court will set aside the judgment and restore the case to the calendar if the case is an important one. Counsel are, however, guilty of an irregularity in not placing the.stipulation on file.</p>

<p>Ebbob in Beeusing an Instbuction.—An error in refusing to give an instruction to the jury is cured, if the instruction refused is substantially given in the charge to the jury.</p> <p>Instbuotions should apele to the Facts of the Case.—If, on a trial for murder, there is nothing in the facts of the case which tend to reduce the offense to manslaughter, it is not error for the court to refuse to instruct the jury as to what constitutes manslaughter.</p> <p>Manslaughteb.—No words of reproach, however grievous, are sufficient provocation to reduce the offense of an intentional homicide-with a deadly weapon from murder to manslaughter.</p> <p>Judgment in Cbiminal Case.—If no substantial rights of a defendant-convicted of a criminal offense have been interfered with, the judgment-will be affirmed.</p>

<p>Poweb of ah Administbatob.—An administrator, as such, has no power to bind the heirs by consenting to a proceeding under the provisions of the Political Code for laying out a highway over the lands of the estate, by which such heirs are divested of their estate in the lands.</p> <p>Idem.—The consent of an administrator to the laying out and opening a highway under the provisions of the Political Code across the land of the estate, confers no, right and is void.</p>

The plaintiffs owned two bands of sheep, consisting of twelve hundred, and four hundred and eighty head.

<p>Appeal from the District Court, Fourth Judicial District, County of Monterey.</p> <p>The plaintiff recovered a judgment in said court, on the 28th of April, 1873, against the defendant, for $12,000 and costs. The plaintiff’s attorney placed an execution in the hands of J. B. Smith, the sheriff of Monterey County, and requested him to levy on a particular tract of land in said county. The sheriff declined. Thereupon the plaintiffs procured the order of court mentioned in the opinion.</p>

Ejectment to recover an undivided one-fourth of a block of land, being block 31, in the town of Brooklyn, county of Alameda.

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

<p>Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco,</p> <p>Wm. Hearne, the deceased, was a driver on a street-car running on Folsom street, San Francisco. On the 25th of May, 1871, he was driving his car southerly on Folsom street, and as he reached Twenty-third street, a train of the defendant came from the' west, and collided with the street- . car where it crossed Twenty-third street. It was a freight train, and was backing down with the engine behind. Hearne was killed by the collision, and this action was brought by his widow, as administratrix, to recover damages. The plaintiff had judgment, and the defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

Augustin Olvera ownedthe Rancho Cuyamaca, lying in San Diego, under a grant from the Mexican nation. In 1854, he entered into an agreement with Elisha O. Crosby, a practicing attorney, whereby it was agreed that said Crosby was to prosecute his claim for the rancho before the United States Land Commissioners, and the Courts of the United States, to a final confirmation, and procure a patent therefor.

<p>Trespass Quabe Clausum Fbegit.—In trespass, guare clausum fregit, it is incumbent on the plaintiff to show that he was in the actual possession of the premises at the time of the alleged trespass, and the defendant may prove, under a general denial, that a tenant of the plaintiff was in the actual possession.</p> <p>Action by Bevebsioneb for Injury to Freehold.—In an action by a reversioner for an injury done to the freehold, the duration of the term of the • tenant in possession is evidence admissible on behalf of the defendant, as affecting the measure of damages.</p> <p>Trespass on Land.—An action for forcibly entering upon land owned and possessed by the plaintiff, and tearing down a dwelling-house and outbuildings, and carrying away the materials of which they were built, and for digging up and carrying away fruit trees, is guare clausum fregit.</p>

<p>Court Commissionebs.—Under the act of April 4, 1864, which provides that in tax suits, upon default of the defendant, the Court Commissioner shall draft a decree, etc., the duties of the Court Commissioner do not commence until the summons is duly served, and if a case is referred to him, his first duty is to ascertain whether the summons has been served.</p> <p>Sekvice of Summons bx Publication.—In a suit to enforce a lien for taxes, if the complaint is not verified, service of summons cannot be made by publication and posting, without making an affidavit and procuring an order of publication, as in other cases.</p> <p>When Coubt Cohmissioneb is Guilty of Negligence.—If a Court Commissioner whose duty it is, in-tax cases, in case of default, to draft a decree, drafts one, inserting therein that summons has been served, without any previous effort to ascertain that fact, he is guilty of gross negligence, and the negligence is none the less if he acts in good faith and without any fraudulent intent.</p> <p>Relief bt Couet of Equity against Feaud.—If a Court Commissioner whose duty it is, in cases of default in tax suits, to draft a decree enforcing the lien of the tax, by negligence inserts in the decree a clause that the summons has been served when it has not been served, and afterwards becomes a purchaser of the property at the tax sale, a court of equity will not permit him to profit by his wrongful act, and his deed will be set .aside.</p>

<p>Bill of Exceptions. On an appeal from the judgment, a hill of exceptions which is a mere rescript of the testimony by question and answer, with the objections taken and the ruling thereon, will not be considered.</p>

The plaintiff was a corporation organized for the purpose of supplying.the inhabitants of Petaluma with pure, fresh water. The plaintiff claimed through the Petaluma Water Company the right to divert the water flowing in Alder Creek. The defendant owned land through which the creek flowed, and diverted the water from the plaintiff’s reservoir. This action was brought to recover damages, and for an in- junction. The plaintiff recovered judgment, and the defendant appealed.

<p>Appeal from the District Court, Seventeenth Judicial District, County of Los Angeles.</p> <p>The plaintiff was a corporation formed for the purpose of excavating a canal from the San Gabriel River to Wilmington, and also for the purpose of building a reservoir to hold water. The proposed object was to supply farmers with water for purposes of irrigation, and to supply the people with pure water, and to supply water for manufacturing purposes. The company also proposed to construct reservoirs to hold water, and to transport freight and passengers on the canal. The verdict of the jury was rendered June 16, 1873. The plaintiff, on the 23d of June, asked the court to make findings of fact in the case. The defendant objected, and asked for judgment on the findings. The court, on the next day, made findings, in which it found that the taking was necessary for a public use, and rendered judgment condemning a part of the land sought in the complaint. The defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Attachment on Bah Bond.—A bail bond in a criminal case is an undertaking for the direct payment of money upon which an attachment may issue.</p>

<p>Eoboible Entby and Detainee.—A person who is in the actual and peaceable possession of land, as the tenant at will of another, may maintain an action of forcible entry and detainer, if forcibly dispossessed.</p> <p>Tenant at Will.—If the owner of land permits another to occupy land without any lease or agreement to pay rent, and such other merely takes care of it for the owner, he is a tenant at will.</p> <p>Eeactice as to Review oe Evidence.—If the proof does not warrant the damages awarded in an action of forcible entry, the defendant, if he wishes to have the question reviewed, should either move for a new trial on that ground, or specify in his bill of exceptions in what particulars the evidence did not justify the decision.</p>

Wallace J. Horton brought an action against the plaintiff Clark, before W. M. Minnis, a justice in Cache Creek Township, Tolo County, to recover two hundred dollars damages, which he alleged he had sustained by defendant’s cattle having trespassed on a tract of land.

Ejectment to recover a tract of land containing about one hundred acres, being portion of the rancho San Antonio, in the county of Alameda. The action was commenced June 29, 1861, and at this time the grant had been confirmed, but the final survey had not been approved. Both parties claimed under W. W. Chipman. Chipman and Aughinbaugh owned the land, and on the 11th day of November, 1854, Aughinbaugh sold to Ohipman.

The complaint averred that the plaintiff., at defendant’s request, sold Doane a ten-stamp battery for eight hundred and fifty dollars, and that defendant made and delivered to the plaintiff the following instrument: “ San Francisco, August, 1872. “S. P. Doane, having bought of G. D. Roberts, a ten-stamp battery, at Whisky Diggings, and agrees to pay therefor the sum of eight hundred and fifty dollars, in four equal installments, every three months from this date, I hereby…

H. P. Whittemore owned a lot in San Francisco. On the 3d day of May, 1869, the Board of Supervisors adopted-a resolution of intention to improve the street on which it fronted. The contract was let, and, on the 6th day of June, 1860, the assessment for the expenses was made and issued. The lot was assessed in the sum of $2377.72. Whittemore had died on the 9th day of March, 1870.

<p>Defects in a Complaint.—If several causes of action in a complaint are not separately stated, or if a cause of action stated is against public policy, the defects cannot be taken advantage of by a motion to dismiss the action, or by a motion for judgment on the pleadings.</p> <p>Review of Evidence.—The Supreme Court cannot review the evidence unless the bill of exceptions specifies the particulars in-which the evidence is alleged to be insufficient to sustain the verdict.</p> <p>Judgment Payable in Gold Coin.—If there is no allegation in the complaint that there was an agreement to pay in gold coin, the court cannot render a judgment payable in gold coin, even if the verdict of the jury is for gold coin. The verdict cannot go beyond the issues.</p>

<p>Complaint on Judgment.—A complaint which avers that the defendant made his note; that the plaintiff commenced an action on the note and obtained judgment, and that no part of the note or judgment has been paid, states a cause of action on the judgment and not on the note, and does not state two causes of action.</p> <p>Time when Action is Commenced.—If a complaint on a judgment is amended so as to state a cause of action on a promissory note, the action on the note is not commenced until the-amended complaint is filed, and the Statute of Limitations on the note commences running at the time last mentioned.</p> <p>Idem.—When a complaint is amended so as to state a new cause of action, the action is not - commenced as to said new cause until the-umended complaint is filed.</p>

On the 3d of August, 1871, L. Pellier gave A. C. Farno or order his promissory note for five hundred dollars, payable one year after date. On the 1st of September following, he gave Farno of order another note for the same sum, payable fifteen months after date. Prior to June 13, 1872, Farno executed to Pellier a full release in writing of every claim he had against him. Pellier died on said last named day, leaving a will.

<p>Judgment whebb seveeal Defendants abe Jointly Liable.—In an action against two defendants on a joint contract, the plaintiff may have a several judgment against one defendant who has heen served with process, even though the other is not served.</p> <p>Idem.—Such judgment is not vitiated as to the defendant served, even if, in form, entered up against hoth the defendants.</p> <p>Judgment against Administbatob.—A judgment against an administrator for a demand against the intestate should provide for the payment of the same in due course of administration.</p>

<p>Appeal from the District Court, First Judicial District, County of Santa Barbara.</p> <p>The town of Santa Barbara, as the successor of the pueblo of that name, owned the pueblo lands within its limits. On the 23d of February, 1867, P. C. Carillo petitioned the board of trustees of the town for a grant of block forty-eight. On the 30th of March following, the board made the grant, and appraised the block at ten dollars. On the 23d of April following, Carillo sold a part of the block to S. S. Phillips for sixty-two dollars, and gave him a quitclaim deed. The defendant, by mesne conveyances, acquired the title of Phillips. The board of trustees executed a deed to Carillo in pursuance of the grant, on the 26th of April, 1867, three days after the sale to Phillips.</p> <p>On the 5th day of January, 1874, Carillo made a second deed of the premises to E. Van Yalkenberg, who conveyed to the plaintiff. The second deed of Carillo was for a consideration of two hundred and fifty dollars. This was an action of ejectment commenced February 26,1874, to recover the land conveyed to Van Yalkenberg. The court below rendered judgment for the defendant, and the plaintiff appealed.</p>

<p>Annual Meeting of Stockholders of a Corporation.—A notice of the day, hour, and place of the annual meeting of the stockholders of a corporation to elect a board of trustees, must be given, or such meeting cannot be legally held, unless the stockholders are all present and consenting, either in person or by proxy.</p> <p>Idem.—The fact that one of the by-laws of the corporation fixes the day upon which such meeting shall be held, is not a sufficient notice of the time and place at which the meeting will be held'.</p>

<p>Betuno apart Homestead by Probate Coubt.—The amendments of 1874, made to the Code of Civil Procedure, do not prevent the Probate Court, in case of the death of the husband, or wife, from setting apart a homestead for the use of the survivor or the minor children, if none had been selected and recorded before the death.</p> <p>Idem.—If such amendments repeal the sections providing for the manner in which the homestead is to he set apart, the court, under section 187 of the Code of Civil Procedure, may adopt a method of doing so.</p> <p>Idem.—Such homestead may he set apart out of the separate estate of the deceased husband.</p> <p>In whom Homestead vests.—If the Probate Court, after the death of the husband, sets apart a homestead out of the separate estate of the decedent, it vests in the surviving wife if there are no minor children; but if the decedent left a minor child or children, one-half vests in the widow, and the other half in the child, or in the children in equal proportions.</p> <p>Idem.—If a homestead he selected while the husband and wife are both living, out of the separate property of either, it vests, on the death of the person from whose property it was selected, in his or her heirs, subject to the power of the court to assign it for a limited period to the. family of the decedent.</p>

<p>Pbobate Coubt mat seiiEot Homestead.—When no homestead has been selected during the lifetime of the deceased husband, the Probate Court may set one apart for the use of the widow, and may, since the amendments of 1874 to the Code of Civil Procedure, adopt a manner of doing so.</p> <p>Idem.—If, in such case, the property to be set apart as a homestead is incumbered by mortgage liens, and cannot be partitioned without material injury, the Probate Court may direct it to be sold subject to the liens of the mortgages, and the homestead to be set apart out of the proceeds.</p> <p>ObDEB SETTINCr ASIDE HOMESTEAD DOES NOT DESTBOY LlENS.—The statute requiring the Probate Court to set apart a homestead for the surviving husband or wife, does not declare that the order setting apart the same shall destroy or impair any lien on the property, and such order does not have that effect, even if the Legislature has the constitutional power to destroy such liens.</p>

On the 5th of July, 1866, I. S. Van Trees gave the plaintiff his promissory note for one thousand dollars, due twelve months after date, and from time to time made payments on the same. He died on the 6th of December, 1873, leaving a will, in which the defendant, who was his widow, was named executrix. She qualified and entered upon the discharge of the duties of her trust. A part of the estate consisted of eight hundred acres of land, which had been community property.

On the 23d day of March, 1855, B. C. Sanders and defendant Brenham owed S. Moss, Jr., the sum of fifty thousand dollars, and gave him their note, with interest at three per cent, per month, and, to secure the note, mortgaged to him f00\ parts, undivided, of a part of the Rancho San Antonio, in the town of Oakland, county of Alameda. The note and mortgage were soon assigned to J. Mora Moss.

Appear from the District Court, Fifth Judicial District, County of San Joaquin. Action to enforce a lien on lot-eleven, block two hundred and seventy, for an assessment for improving a street in the city of Stockton. The defendant recovered judgment and the plaintiff appealed. The other facts are stated in the opinion.

<p>View op Land by a Juey.—In ejectment, the statute authorizes the court to direct the jury to he conducted to view the land in controversy; but it does not authorize them to view any other property than that which is in litigation.</p> <p>View by Juey op Pbopebty in Suit as Evidence.—The jury, when directed by the court to view the land in litigation, in ejectment, cannot use the result of their examination as independent evidence in the case.</p> <p>View op Land by a Juey.—An instruction to a jury sent out to view land in controversy “ that they examine the land, examine the quality of the soil, and the growth upon it,” and that “ you avoid, forming an opinion as to its quality until you have finally heard all the evidence,” does not authorize them to take into consideration the result of their own examination as independent evidence.</p>

<p>Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.</p> <p>The following facts were alleged in the complaint: The plaintiff owned several hundred tons of wheat lying in the sack in Solano County, part of it north of Putah Creek, and part of it south of that creek. Defendants Ballard and Hall were commission merchants and partners, doing business in San Francisco, and purchasing wheat in Solano County, and defendant Hawkins was their agent in Solano County. Defendant Hawkins, as such agent, contracted with the plaintiff to buy his wheat, that part of it north of Putah Creek for twenty-seven dollars per ton, and that part south of Putah for twenty-seven and one-half dollars per ton. Plaintiff and defendant Hawkins told Hall what the contract was, and he then drew up the following contract in writing:</p> <p>“I hereby sell to V. Hawkins, from eleven to fourteen hundred tons of wheat in the Wolf skill Ranch; the part lying on the south side Putah at 1.27J (one twenty-seven and half cts.), and the part on the north side of said creek at 1.27 (one twenty-seven cts.), on ranch; said grain to be sacked in good order.</p> <p>“ June 27, 1887.”</p> <p>The plaintiff did not read the writing or hear it read, bnt defendants Hawkins and Hall told him it was like the verbal agreement, and supposing they told him the truth, he signed it. They knew the writing was not like the verbal agreement, and told him it was, to defraud him, and to induce him to sign it. The defendant Hawkins assigned the written contract to the other two defendants, and the plaintiff delivered them three hundred and seventy tons of wheat on the south side of Putah Creek, and four hundred and twenty-five tons on the north side. That they paid him for the wheat at the price fixed in the writing, and he receipted for it, telling them that if it was not right he should ask for a correction. Upon going home, he discovered the fraud that had been practiced on him, and asked them to rectify it, but they refused. The difference between the price as agreed on, and that fixed in the writing, was $1463,62. The plaintiff was illiterate, and scarcely able to read writing. The plaintiff asked to have the written contract and receipt declared void, and for judgment for the sum of $1463.62. The defendant demurred to the complaint, the court sustained the demurrer, and judgment was rendered for the defendants. The plaintiff appealed.</p>

After the passage of the act (Laws, 1873-4, p. 436) forthe issuance of bonds to aid in the construction of roads, the Board of Supervisors of San Luis Obispo County refused to issue the bonds. This was an application for a writ of mandate requiring them to do so. The suit was brought by the Attorney-General in the name of the State. The court below gave judgment that the writ issue. The defendants appealed. The other facts are- stated in the opinions and dissenting opinion.

<p>Contract fob Payment of Money.—The payment of money cannot he made dependent on the performance of a condition by the party to whom it is to ho paid, which condition, by its terms, may not he performed until after the date at which the money is to be paid.</p> <p>Conditions Pbecedent in a Contract.—Courts are disinclined to construe the stipulations in a contract to do certain things within a given time, in consideration of the payment of money by the other party, as conditions precedent, unless compelled to do so by the express language of the contract.</p> <p>Cqntkact to Build Street Railroad.—If property-holders along the line of a street contract with a street railroad company to pay it certain sums of money, if, within a certain time, it constructs a railroad along the street, the fact that the road is not built within the time is not an excuse for the non-payment of the money if the road is actually built; but the subscribers may recoup the damage they sustain by the failure to complete in time.</p>

The plaintiff owned a crop of wheat growing on land adjacent to the track of the Southern Pacific Bailroad, in Santa Clara County. The crop was destroyed by fire, on the 29th of June, 1872. The plaintiff claimed that the fire was caused by sparks from the engine in passing along the track opposite the land, and that the fire was caused by the carelessness of the defendant’s agents.

<p>Questions of Fact fob a Juey.—In an action for personal injuries alleged to have been sustained by reason of the negligence of the defendant, the presence or absence of negligence on the part of the defendant, and of contributory negligence on the part of the plaintiff, are questions of fact for the jury, in view of all the circumstances proved.</p>

<p>Appeal from the District Court, Fifteenth Judicial District, County of Contra Costa.</p> <p>The Western Pacific Railroad Company, the successor in interest of the Central Pacific Railroad Company of California, on the 4th day of June, 1867, entered into a contract with Joseph P. McCabe, in which it was recited that the company had sold him the northeast quarter of section twenty-seven, township one north, range three east, Mount Diablo base and meridian, for the sum of four hundred dollars, and that it would execute to him a deed in fee simple within thirty days after it received a patent for the land from the United States. McCabe entered into possession of the land, and on the 15th day of February, 1868, sold and conveyed the land by a quitclaim deed to Joseph Spar-ling for the sum of eight hundred dollars, and Sparling entered into possession. On the 13th day of April, 1870, Sparling mortgaged the land to Wesley Morgan, to secure the payment of fifteen hundred dollars. On the 8th day of November, 1870, Sparling sold and conveyed the land to Charles Clayton and Joseph W. Jordan. On the 12th of October, 1871, Clayton and Jordan sold and conveyed to Jabez M. Baldwin. On the 23d of October, 1871, Morgan commenced an action to enforce the lien of his mortgage. On the 3d of April, 1870, a patent for the land was issued to the Central Pacific Railroad Company, the successor in interest of the Western Pacific Railroad Company. On the 15th of May, 1872, the land was sold under a decree rendered in the foreclosure case, and Morgan became the purchaser. It was in this foreclosure suit that Baldwin was sued as John Doe. He did not appear in the action. On the 30th day of May, 1872, the Central Pacific Railroad Company conveyed the land to Clayton and Jordan, they having procured an assignment of the contract. On the 26th of August, 1872, Clayton and Jordan again conveyed to Baldwin. On the 28th of September, 1872, Baldwin, who was in possession, commenced this action to quiet his title. The defendant obtained a sheriff’s deed after the commencement of the action, and set it up in a supplemental answer. The plaintiff recovered judgment, and 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>The plaintiff owned lot seven hundred and twenty-four and the northerly half of lot seven hundred and twenty-five, fronting sixty-eight and nine-twelfths feet on East street. East street was marked and laid out upon the official map of the city of San Francisco, in the year 1851, being the same referred to in the act of the Legislature entitled “An Act to provide for the disposition of certain property in the State of California,” approved March 26, 1851 (vide Statutes 1851, p. 307), as a public street, and it was referred to as a public street in subsequent acts of the Legislature, and on June 27, 1856, was declared an open public street by an ordinance of the board of supervisors of the city and county of San Francisco, but the same was never filled in or graded, or actually opened to public use, the same being, until quite recently, covered by the waters of the Bay of San Francisco, and actually used by private parties, who piled and capped and planked portions of the same as lumber-yards, and for other private use's, and who, upon parts of so-called East street, projected wharves into the Bay of San Francisco across the same, which wharves and lumber-yards were used by said parties for their own private uses, and at which wharves they were accustomed to allow lumber and freight to be landed from ships and vessels, on payment of dockage and wharfage to them.</p> <p>In front of the plaintiff’s lot, extending thirteen feet therefrom, was a slip called Pelican Slip, and a wharf extended from the front of the lot to the slip. Vessels were in the habit of entering the slip with lumber, etc., and the plaintiff was accustomed to rent his lot as a place of deposit for lumber, at about $200 per month. The defendant erected a fence across the head of the slip in East street. The fence .prevented the hauling of lumber across the wharf to the plaintiff’s lot, and materially reduced the rental value of the same. This action was brought to recover damages, and to abate the fence as a nuisance. The court rendered judgment for the defendant and the plaintiff appealed.</p>

<p>Nuisance bz Obstbucting a Stbeet.—If, in front of a lot in a city, there is a public street in a condition to be used as such, and an obstruction is placed on the street by which its use as a highway is impeded, and which prevents the owner of the lot from having free access to the street threfrom, he may maintain an action in his own name against the person maintaining the obstruction to abate it as a nuisance and to recover damages.</p> <p>Idem.—In such case it is not material by whom the street was improved, whether by the public-or by private persons.</p>

Mrs. Elizabeth A. Gordon, a resident of the county of Santa Clara, on the Gth day of December, 1874, made a will, in which, after making several small bequests, she devised tlie residue of her estate, valued at about $170,000, in equal proportions, to her brother, John J. Clarke, and to trustees to hold for the use of her daughter Helen.

Ejectment to recover a portion of the street mentioned in the opinion, upon which, it was alleged, the defendants had entered, and from which they had excluded all other persons. The defendants demurred, because the complaint did not state facts sufficient to constitute a cause of action. The court overruled the demurrer. The plaintiffs recovered judgment, and the defendants appealed. The other facts are stated in the opinion.

<p>Agreement to bits: Rem, Estate.—A finding, that L. promised and agreed with M. to sell him all his right, title and interest in a certain rancho, is substantially a finding that M. purchased and was entitled to a conveyance of the interest in the rancho owned by L., including that which stood in the name of his wife, and which was community property.</p> <p>When the Law raises a Tbdst.—If one bargains with another for the purchase of a tract of land with the knowledge of a third person who stands by and becomes a party to it by advancing a portion of the money to enable the purchaser to complete the bargain, and if such third person then, without the knowledge of the purchaser, buys from the seller a portion of the same land, for which he obtains a conveyance, which is placed on record before the conveyance to the first purchaser, such third person will become the trustee of the first purchaser, and if he sells the land to a bona fide purchaser without notice becomes liable for the damage sustained.</p>

A corporation called the “Maxim Gas Company of California,” was formed to manufacture and sell illuminating gas. The gas was produced from gasoline. Livingston 0. Blair, while in the employ of the corporation, was killed by an explosion. The plaintiff was appointed administrator of his estate, and commenced this action on the twenty-sixth day of June, 1874, against the stockholders of the corporation to recover damages, alleging that the. acts of the corporation.

<p>Appeal from the District Court, Nineteenth Judicial District, City and County of San Francisco.</p> <p>Ejectment to recover a tract of land in the city of Oakland. The plaintiff, in his opening statement, said that Hayes and Caperton owned the demanded premises in 1855, and sold it to Samuel J. Clark, who paid a portion of the purchase-money down, and gave his notes for the balance; that the grantors gave Clark a deed, in which the name of the grantee was left blank; that Hayes and Caperton after-wards sued. Clark on the notes, but before they recovered judgment, he, without the knowledge of Marshall, inserted the name of Humphrey J. Marshall as grantee in the deed, and had it recorded. That H. and C. recovered judgment against Clark, and had the property sold on execution, and Wunderlin became the purchaser, but before he received a sheriffs deed, Marshall sold the property to defendant Cadogan, who had notice of the facts; that Cadogan had sold portions of it to the other defendants, who also bought with notice; that after the deed from Marshall to Cadogan was recorded, Hayes and Caperton conveyed to Wunderlin. At the close of the plaintiffs statement, defendant moved that he be nonsuited, because it appeared that the legal title was in the defendants, and that the plaintiff, at most, had only the equitable title which Clark had; or, in other words, a right to go into equity to compel a conveyance. The court granted the motion, and the plaintiff appealed.</p>

<p>Appeal from the District Court, Tenth Judicial District, County of Colusa.</p> <p>The defendant and Crossin were partners in running a stage from Colusa to Wilbur Springs, and, as such, owned horses, stages, harness, barley, etc. Crossin sold out his interest to the plaintiff, who demanded to be let into possession of Crossin’s undivided interest in the property. The defendant refused, and this action was brought to recover possession of an undivided one-half of the property or the value thereof. The plaintiff recovered judgment for nine hundred and sixty dollars. The defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

The defendants demurred to the complaint, because it did not state facts sufficient to constitute a cause of action, and because it showed a conversion of the stock, and the proceeds arising therefrom, by Seth Pinkham as special administrator of the estate of Wm. B. Bourn, prior to the appointment of the defendants as executors of the estate. The court overruled the demurrer, and the defendants answered.

<p>Appeal from the District Court, Eighteenth Judicial District, County of San Bernardino.</p> <p>Action to quiet title to a mining claim known as the Green Lead, near Holcomb Valley, San Bernardino County. The plaintiff, in his complaint, alleged that he was the owner, and in the possession of the mine; that he and his grantors had been in the exclusive adverse and continuous possession of the mine for four years last past; that the defendants claimed an estate and interest in the mine adverse to the plaintiff; that in 1867 one Moore owned and possessed the mine, and was indebted to the firm of Wolff & Folks, and to secure them, gave them a deed of the mine, and that the debt was paid in October, 1868, and Wolff re-conveyed the mine, and in September, 1873, Folks conveyed his interest to the defendants without any consideration; that Wolff & Folks were partners, and the defendants took their deed with full notice, etc. The complaint had attached to it a copy of the deed from Wolff to the plaintiff, which purported to be a conveyance from Wolff & Folks, but was executed and acknowledged by Wolff alone, in the name of, and for the firm. The answer, in addition to the matters stated in the opinion, alleged that the deed from Moore to Wolff & Folks was not intended as a mortgage, but a conveyance in consideration of a pre-existing debt, and that the deed from Wolff back to Moore was given on the representation of Moore that he could sell the claim to better advantage than Wolff could, and that Wolff, being desirous of making a sale, made the conveyance under the promise from Moore to pay him the proceeds when he sold, and that the plaintiff took the conveyance from Moore with notice, and that Folks conveyed to the defendants an undivided three-fifths of the mine. The defendants appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Bights of Ditch oh Pubdio Lands.—Persons who, under the local customs and decisions of the courts in California, had acquired a right to the use of water in a ditch, prior to the passage of the act of Congress of July 20, 1866, acquired by said act a right of way, and of the ditch through which the water was running, over the public lands, and the subsequent grantees of the United States take subject to the easement.</p> <p>Lands geanted to the Pacific Bailboad Companies.—The Pacific Bail-road Companies, by virtue of the acts of Congress of 1862 and 1864, granting them lands to aid in the construction of a railroad, did not acquire an equity in the land granted which State courts are bound to respect, until commissioners, appointed under the fourth section of the act, certified that the railroad and telegraph line had been completed on a subdivision examined by them.</p> <p>Idem.—The Pacific Bailroad Companies, by virtue of the acts of Congress of 1862 and 1864, granting them lands, did not acquire a right to abate ditches on such lands as a nuisance, provided the ditch had acquired a right to the use of water which was recognized by the local customs and decisions of the courts prior to the passage of the act of Congress of July 26, 1866, granting the right of way to ditch-owners over the public lands.</p>

<p>Express Warranty of Personal Property. — A mere praise of personal property, indulged in by the owner when offering it for sale, does not, under the rule of the common law, amount to an express warranty of its quality or marketable condition.</p> <p>Implied Warranty of Personal Property.—A mere praise of personal property, such as wool, indulged in by the owner when offering it for sale, does not amount to an implied warranty of its quality or condition, if the buyer has an opportunity to examine it and fails to do so, and no artifice is used by the seller to prevent him from making an examination.</p> <p>When Error is Cured. — If the court, on the objection of one of the parties, refuses to allow a witness to answer a question, and the matter about which he is asked is afterwards fully explained by other witnesses, the error, if any, is cured.</p>

<p>Impeachment of Witness by his Lhttebs.—If a person not a party to an action is examined as a witness, letters written by him cannot afterwards be put in evidence by the party not calling him, unless, when examined as a witness, his attention is called to them, and the other party is afforded an opportunity of cross-examining him in relation to them.</p> <p>Ebbob is pbeshmed to Injhbe.—When the appellant has shown error in the admission of testimony, the error will be presumed to have been injurious to the adverse party, unless the contrary clearly appears.</p>

The defendant charged the plaintiff with stealing his turkeys. The plaintiff sued for damages. The plaintiff had the verdict, of a jury and judgment. The defendant moved for a new trial. One ground of the motion was newly discovered evidence.

Ejectment to recover an undivided one-fourth of a lot at the northwest corner of Valencia and Twentieth streets, city and county of San Francisco. The plaintiffs were the children of Charles W. Cook and Charlotte F. Cook, who intermarried in 1849. In 1853, the husband and several other persons became the owners, as tenants in common, of a tract of about twenty-five acres of land, of which the demanded premises formed a part.

The following was the complaint in this action: “This plaintiff, by amended complaint, alleges and complains : “1st. That he is the owner of certain goods and chattels, personal property, now on the Buena Vista Bancho, in the county of Monterey, and State of California; said goods, chattels, and personal property as follows, viz., one dwelling and dairy-house, three outhouses, two wells containing platform and buckets, several hay troughs, and seven miles of post and rail…

<p>• Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>John "W. Geary, who was alcalde of San Francisco prior to August, 1850, granted to one Tiffany, fifty-vara lots, 1340, 1341, and 1342, in block No. 289, lying between Hyde and Larkin and Beach and North Point streets, in said city. Tiffany, on the 16th day of August, 1850, conveyed the lots to the plaintiff. The lots were included within the pueblo of San Francisco, and were also within the tract reserved by the President of the United States as the “Point San Jose Military Beservation,” by executive proceedings, commenced November 7, 1850, and terminating December 31, 1851. The city petitioned the United States for the confirmation of its claim to the pueblo lands, and the case having been appealed, the Circuit Court of the United States, in May, 1865, confirmed the claim of the city to four square leagues of pueblo lands, including the land in controversy in this action, subject, among others, to the deduction of such lands as had, before such confirmation, been reserved to public uses by the United States.</p> <p>Congress passed an act, approved July 1, 1870, a part of the first section of which reads as follows: “Be it enacted by the Senate and House of Bepresentatives of the United States of America, in Congress assembled, that all the right and title of the United States to the military reservation in the city and county of San Francisco, State of California, known as the Point San Jose Military Beservation, be, and the same are hereby relinquished and granted to the said city and county, and its successors, for the uses and purposes as follows: First. To maintain all streets and alleys as now laid out upon the official map of the city of San Francisco. Second. And then in trust to grant and convey the remainder of said lands to the parties severally who are, at the date of the passage of this act, in the actual bona fide possession thereof by themselves or their tenants, or in such parcels as the same are so held and possessed by them; or who, if they have not such possession, were deprived thereof by the United States military authorities when they went into the occupancy of said military reservation; or were deprived thereof by intruders or trespassers, against whom possession may be recovered by legal process.”</p> <p>Under said act, the defendant Palmer petitioned the city for a deed of said lots, and the plaintiff also made application. The defendant Palmer’s application was granted. The plaintiff commenced this action to set aside the deed to Palmer, and to have the city declared his trustee, and to obtain a conveyance from the city. On the trial it was admitted that whoever was in possession was turned out by the military authorities. The action was commenced on the 14th of February, 1871. The court below found that the plaintiff had not been at any time in the bona fide possession of the premises in controversy. Judgment was rendered in favor of Palmer, and quieting his title.</p> <p>The plaintiff appealed.</p>

<p>Appeal from the District Court, Fifth Judicial District, County of San Joaquin.</p> <p>The defendant was a justice of the peace in Stockton Township, County of San Joaquin. In a case tried before him in which H. H. Naglee was the plaintiff, and B. Triplett and E. Cannavan were defendants, judgment was rendered for the plaintiff and the defendants appealed. "When the appeal was taken, the defendants paid the justice the fees which he demanded, and among the items of his costs were about five dollars which were illegal. Triplett filed an information before the -District Court, asking for the removal of Hunter from office, and a fine of five hundred dollars. The court gave judgment as asked, and the defendant appealed.</p>

<p>Appeal from the District Court, Seventh Judicial District, County of Mendocino.</p> <p>In September, 1872, E. J. Ytkipple agreed verbally with S. Mitchell to sell and convey to him a lot of land at Iiibbesilla, Mendocino County, for one hundred dollars, and Mitchell paid him the money and took possession and put permanent improvements on the lot. Whipple died in October, 1872. In November, 1872, Mitchell sold to the plaintiffs. The defendants were appointed executors of the will of Whipple, on the 23d of November, 1872. This was an action to compel the executors to convey the lot to the plaintiffs, commenced April 16, 1874. The defense interposed was, that the action was barred by section 353 of the Code of Civil Procedure. The section provides that if a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, an action may be commenced against his representatives after the expiration of that time, and within one year after the issuing of letters. The plaintiffs had judgment, and the defendants appealed.</p>

<p>Dtschabge 03? Jtnsx.—If, when a cause is on trial before a jury, the court continues the hearing to a day which carries the court into the next term, and then, before the day arrives, adjourns the court for the term, the jury is discharged, and the court cannot proceed with the hearing before the jury when the day arrives.</p> <p>Idem.—If, in such case, the court does not adjourn for the term, it may proceed with the hearing notwithstanding the close of the term.</p>

<p>Appeal from the District-Court, Nineteenth Judicial District, City and County of San Francisco.</p> <p>On the 1st day of December, 1868, defendant Fitzpatrick borrowed from the plaintiff $1100, and gave him his promissory note, due twelve months after date, with interest at two per cent, per month. To secure the note, defendant John and his wife Jane gave a mortgage on certain real estate in San Francisco. On the 1st day of April, 1871, there was due the plaintiff on the note the sum of $1567.20, at which time the defendants tendered the same to the plaintiff, who declined to receive it. No further payments were made. On the 3d day of May, 1873, this action was commenced to enforce the lien of the mortgage, and for an execution for the balance unpaid after a sale of the mortgaged property. The defense interposed was the tender made on the 1st day of April, 1871. The court found the amount due on the mortgage to be $2991.46, and rendered judgment for the plaintiff. The mortgage contained a clause, that in the event of a foreclosure, the borrower should pay, as the plaintiff’s counsel fees, twenty per cent, of the amount found due. The court held, that this twenty per cent, was in the nature of a penalty, and that the plaintiff could recover only a reasonable sum for attorney’s fees, and allowed him two hundred and fifty dollars. The defendants appealed.</p>

This action was brought to enforce liens on four lots for two assessments, one for grading, and the other for macadamizing and curbing Vallejo street, from Webster to Pierce street. The-eontract for grading was let September 20, 1869, and' that for macadamizing and curbing was let November 8, the same year. The assessment for the former was made and recorded November 23, and that for the latter was made and recorded December 8, 1870. The suit was commenced August 29, 1872.

Ejectment to recover a part of lot one in the block bounded by K and L and Fourth and Fifth streets, in the city of Sacramento. Charles Heal was one of the defendants when the suit was commenced, and was the tenant of defendant Birge. Heal ivas in possession of the demanded premises when the suit was commenced, but died soon after. Ileal’s widow resided on the premises a short time after his death and left them.