Volume 51 — California Reports

Contest about the right to purchase several subdivisions of swamp and overflowed land, in township five north, ranges four and five east, Mount Diablo meridian, lying in the county of Sacramento. There were 440 ^ acres of land, and the payment made on the 26th of May, 1865, was three hundred and one dollars and fifty-eight cents. The county treasurer gave Baldwin a receipt for the money, and entered the payment on his books.

<p>Appeal from the District Court, Sixth Judicial District, County of Sacramento.</p> <p>Action to quiet the title to lot four, in the block between I and J and Twelfth and Thirteenth streets, in the city of Sacramento. In the early part of 1868, W. K. Brown was in possession of the lot, but it had been sold under a judgment for the taxes of the previous year, and Fred Elliott hacl purchased it, and received a sheriff’s deed, January 13, 1868. On motion of Elliott, Brown was removed, and Elliott was placed in possession on the 15th day of July, 1868, by virtue of a writ of assistance. The tax on the lot for the year 1868 became delinquent, and suit was brought to enforce it, in which both Brown and Elliott were made defendants, and judgment enforcing the lien of the tax was rendered July 20, 1869. An order of sale was issued on the judgment, and the sheriff again sold the lot, on the 30th day of August, 1869, to Eli Mayo. Mayo did not pay the purchase-money until the 12th day of February, 1870. There had been no agreement between Mayo and the sheriff about a credit on the purchase-price. The sheriff made no entry on his books about the sale, nor any return thereof, until the 15th day of March, 1870. On the 7th of March, 1870, the sheriff made Mayo a deed of the lot. The six months allowed by law to Elliott to redeem expired February 28, 1870. In November, 1869, Mayo, at the solicitation of Brown, agreed to convey to such person as Brown should name, the interest he (Mayo) had acquired from the tax sale, and Brown paid him ten dollars on account of the same. On the 8th of March, 1870, Mayo, in accordance with his agreement with Brown, and in consideration of the further sum of sixty dollars, conveyed the lot to Martin Bancich, the person named by Brown. On the 24th day of January, 1872, Bancich conveyed the lot to the plaintiff, Maina, who bought of him in good faith, and without notice and for a valuable consideration, and without any knowledge of the arrangement between Brown and Mayo. On the 15th day of March, 1870, Fred Elliott claimed the right to redeem the lot from the sheriff’s sale to Mayo, and for that purpose deposited with the sheriff a sum sufficient to effect a redemption. On the 7th of December, 1870, Elliott conveyed his interest in the lot to John Dooley, who had acquired the title of Sutter, the Mexican grantee, and on the 3d day of June, 1871, Dooley conveyed the property to Kate Elliott, the wife of Fred Elliott. Prior to the deed to Kate, Dooley and her husband had been in possession of the lot since July 15, 1868.</p> <p>The court below rendered judgment for the plaintiff, and the defendants Kate Elliott and Fred Elliott appealed.</p>

Ejectment to recover the west half of the northwest quarter of section one, and the east ten rods of the east half of the northeast quarter of section two, all township number seven north, range number four east, Mount Diablo meridian, lying in the county of Sacramento. The land was surveyed and platted by the United States prior to September, 1860.

On the 12th of October, 1869, a petition was presented to the Board of Trustees of the city of Sacramento, signed by owners of lots fronting on Tenth street, between J and N, to have Tenth street, between said points, improved by grading and planking it. Sacramento lies on the east side of the river of that name, and the streets, commencing at the river, are numbered back east from one up to Tenth, Eleventh, etc. These streets run nearly north and south.

Ejectment to recover a tract of five acres of land in the southwest corner of the east half of section nine, township two south, range thirteen west, San Bernardino meridian, and lying in the county of Los Angeles.

<p>Poweb of Mobtgagee oveb Moetgaged Pboperty.—A mortgagee has no power to authorize another party to enter upon the mortgaged property and remove fixtures therefrom, and the rights of the mortgagor are not affected by such authority given by the mortgagee.</p> <p>Damages fob Injuey to Mortgaged Property. — If fixtures attached to mortgaged property are severed from the realty and taken away, they are freed from the lien of the mortgage, and the mortgagor may recover damages; and the facts that the severance takes place by the consent and concurrence of the mortgagee, and that he afterwards enforces his mortgage, and, at the sale, obtains a sheriff’s deed, do not defeat the action of the mortgagor for damages.</p>

Action for damages caused to a horse and buggy by the negligence of the members of the paid fire department of San Francisco, in running the steam fire engine against the horse and buggy, while going to a fire. The plaintiff had judgment and the defendant appealed.

Ejectment to recover a tract of laud in the city of Los Angeles, being portion of the pueblo lands belonging to said city. The plaintiff averred in his complaint that his title was derived by grant from the Mexican Government, and that the grant had not been confirmed by the Government of the United States or the legally constituted authorities thereof. The defendant plead the Statute of Limitations as one defense. The court submitted the following questions to the jury: 1.

Action' to recover the sum of seven hundred and eighty-five dollars which the defendant had drawn out of the bank. The defendant claimed that the check spoken of in the opinion had paid the amount. The defendant had judgment and the plaintiff appealed. The other facts are stated in the opinion.

Ejectment to recover a portion of the Rancho Los Animas, in the county of. Santa Clara. The court rendered judgment against the defendants. The defendant Tripp appealed. , The other facts are stated in the opinion.

The plaintiffs, in their complaint, alleged that they were husband and wife, and that the defendant was keeeping a hotel at Eureka, in the county of Humboldt, and that on the 14th day of December, 1872, in room Ho. 2 of the hotel occupied by Mr. Graham and his wife, some clothing hanging on a rack was set on fire and partly consumed; and that, on the 16th of the same month, in another room of the hotel occupied by the defendant, some person placed a lighted match on a…

<p>Conte act foe Steeet Impeovement in San Feanoisco.—If, in a proceeding to improve a street in San Francisco, the Board of Supervisors do not make an order for the publication of the notice of the award of the contract, all the proceedings subsequent to the award, including the assessment, are void.</p> <p>Act Validating Void Assessment.—An act attempting to validate a void assessment on a lot in a city for a street improvement, if it has that effect, does not, by relation, make the assessment valid as of the date when it was levied, but only validates it at the date of the passage of the act.</p> <p>Action to Enfobcb Lien.—An action cannot be maintained to enforce a lien for a street improvement, which lien did not exist at the time the action was commenced.</p>

Action to enforce the lien of an assessment on a lot in San Francisco for improving Haight street from Laguna to Buchanan street. The assessment was made and issued by the Superintendent of Streets on the 5th day of January, 1872. The action was commenced on the 13th day of May, 1872. On the 15th day of January, 1872, J. P. Treadwell appealed from the assessment, and on the 19th day of January the Protestant Orphan Asylum also appealed.

<p>Validating Street Assessment.—An act validating an assessment for improving a street,"if of any effect, makes the assessment valid only from the time of its passage.</p>

<p>Sale on? Land by Maeeied Woman.—An article of agreement made in 1849 between John Martin and his wife of the one part, and Hoppe and Marvin of the other part, by which the husband and wife grant, bargain and sell to the parties of the other part a tract of land, the separate property of the wife; and the parties of the other part bind themselves to lay out the land into town lots, and sell the same, and pay to the husband and wife one-half the proceeds, was sufficient under the law then in force to pass the wife’s title to the land, without being acknowledged by her separate and apart from her husband, and was a conveyance of the title.</p> <p>Idem.—An indenture made afterwards between said husband and wife of the first part, and Hoppe and Marvin of the second part, and Burnett of the third part, by which it is agreed that Burnett shall be substituted in place of Marvin, and shall do and perform the stipulations in the agreement to be performed by Marvin, vested in Burnett the title which Marvin had held, and imposed on him the obligations of Marvin.</p> <p>Idem.—A conveyance afterwards made by the husband and wife of the land did not vest in the grantee any title, either legal or equitable, for the wife had parted with her title, and her only remedy was an action to compel the performance of the covenants.</p>

The plaintiff was the owner of a two-story brick building, Nos. 166, 168 and 170, on the south side of K street, -between Sixth and Seventh streets, in the city of Sacramento, and was doing business in the same, having a stock of furniture and upholstery goods.

<p>Evidence in Action against Execütob.—In an action brought against an executor upon a claim against the estate, the deposition of the plaintiff cannot be read in evidence since the amendment to the Code of Civil Procedure, which took effect July 1, 1874, even if the deposition was taken before said amendment was passed.</p> <p>Poweb of Legislatübe oveb Evidence.—The Legislature has the power to change or modify the rules of evidence at any time, and may exclude depositions which were admissible when taken.</p>

<p>Appeal from Judgment.—Section 959 of the Code of Civil Procedure does not forbid the hearing of an appeal from a judgment, unless there is a bill of exceptions.</p> <p>Bill of Exceptions.—When a question on appeal is, “Do the findings sustain the judgment?” a bill of exceptions is not necessary.</p> <p>Decision of Court.—The “ decision ” to be excepted to in section 956 of the Code of Civil Procedure applies to the findings of fact.</p> <p>When Exception Enquired.—No exception is required to a final judgment, but the exception to be taken to the decision of the court is an exception to the findings of fact, which ordinarily is based on the insufficiency of the evidence to sustain the findings.</p> <p>Sale of Sixteenth and Thirty-sixth Sections of State Lands.—There is nothing in the Political Code which prohibits the sale of a sixteenth or thirty-sixth section to one who has contracted to convey to another a part of the land.</p>

The defendant, on the 19th day of April, 1849, went into possession of a lot at the northwest corner of Broadway and Battery streets, city and county of San… Held: as a conclusion of law, that the plaintiff was entitled to judgment for said sum of five thousand four hundred dollars, and interest on each month’s rent, at ten per cent, per year, from the time it accrued until July 10, 1874, making twelve thousand and eight dollars interest. The plaintiff had judgment.

<p>Appeal from the District Court, Eleventh .Judicial District, County of Amador.</p> <p>The complaint alleged that the defendants owned and worked the “ North Amador Mine,” at Sutter Creek, by and through their superintendent and agent, Clenden, who had full power and authority from the defendants to superintend, direct, manage and control the working and operating of the mine, and to employ any and all servants and laborers in and about the working and operating of the mine, and to discharge them at discretion; and that all the laborers at the mine were employed by the defendants through the superintendent, and that Westlake was the engineer who operated the engine and hoisting tackle used at the mine to hoist the water from the shaft, and that Westlake was incompetent and negligent, and destitute of ordinary skill in the business, and the defendants and Clenden knew that to be the case before the injury complained of. That, on the 18th day of March, 1873, Patrick Collier, an employee, was working in the bottom of the shaft, when, owing to the negligence and want of skill of Westlake, a tub of water fell down the shaft, and Collier was killed. There was no averment that the defendants were negligent in employing Clenden. The plaintiff sued as the administratrix of his estate. The court sustained a demurrer to the complaint because it did not state facts sufficient to constitute a cause of action. The plaintiff declined to amend, and judgment was rendered for the defendants. The plaintiff appealed.</p>

<p>Opening a Default. — An application to open a default, made after the adjournment of the term at which the judgment by default was rendered, cannot be entertained unless the moving party makes a showing of reason why he failed to make the application during the term.</p>

Adelaide Pearson,- the plaintiff, was the legitimate child of Richard Pearson and his former wife, from whom he was divorced, and was born, in Missouri on the 10th day of October, 1850. Held: on the second trial, that Laura Pearson was the lawful wife of Richard, and this appeal was taken by the plaintiff to test the correctness of the decision in that regard. The only question raised was in relation to that point.

Ejectment to recover a belt of land fronting on Ann street, in -the town of Washington, three and a half feet wide, and extending back to the rear line of the lots fronting on said street. The defendant had judgment and the plaintiff appealed. ■ The other facts are stated in the opinion.

<p>Appeal from the District Court, Twentieth Judicial District, County of Santa Cruz.</p> <p>On the 10th day of September, 1866, the defendant filed in the office of the State locating agent an application to purchase the southwest quarter, and the west half of the southeast quarter of section six, and the north half of the northwest quarter of section seven, township nine, range three west, Mount Diablo meridian. The application was defective because it waa not accompanied by the affidavit mentioned in the opinion. The lands were applied for in lieu of the north half of section thirty-six, township nine north, range eighteen west, San Bernardino meridian, which had been taken from the State by a private claim. The land was relinquished to the State on the 1st day of January, 1871, and the Surveyor-General of the State approved of the application on the 21st day of January, 1871, and issued to the defendant a certificate of location conditioned that the defendant should pay the county treasurer twenty per cent, of the purchase-money in fifty days, and the first year’s interest. On the ICth day of March, 1871, the defendant paid the money to the county treasurer, and thereupon the Register issued to him a certificate of purchase. On the 31st day of December, 1872, the plaintiff filed with the Surveyor-General an application to purchase the same land, and afterwards filed in the land office a protest against the issuance by the Register of any evidence of title to the land, and demanded that the contest be referred to the District Court for trial. Thereupon the Register of the State land office made an order referring the contest to the District Court for trial. The plaintiff thereupon commenced this action. The court below held that the certificate of purchase was void, and rendered judgment annulling the defendant’s certificate of purchase and that the plaintiff was entitled to purchase the land.</p> <p>The defendant appealed.</p>

<p>Assignment fob the Benefit of Creditors. — If a debtor enters into an agreement with his creditors by which a person named in the agreement is to take charge and possession of his property as trustee for the creditors, and is to sell and dispose of the property, and the net proceeds are to be applied to the payment of debts, and the trustee accepts of the trust, and the creditors direct and control the trustee in the management of the business; the debtor is entitled in equity to have the proceeds in the hands of the trustee applied as a credit on the debts, and is not compelled to look to the trustee for the same if he fails to make a proper application of such proceeds.</p>

<p>Appeal from the District Court, Seventh Judicial District, County of Solano.</p> <p>. The facts in relation to the contest between Hidden and Jordan about the land are fully stated in Hidden v. Jordan, 21 Cal. 92, and in Hidden v. Jordan, 32 Cal. 397. After the remittitur went down upon the reversal of the judgment in the 32 Cal., the decree was modified so as to adjudge the amount due from Hidden to Jordan to be fifteen thousand four hundred and fifty-eight dollars and four cents. Hidden paid the money and Jordan conveyed to him the legal title in 1872, and on the 10th day of June Hidden was v placed in possession. In the year 1862 a road was laid out, a part of which passed across the land. Jordan was made a pary to the proceedings laying out the road, and waived damages. Hidden was not made a party. After June 10, 1872, Hidden conveyed the legal title to plaintiff Lord, as security for money borrowed from Lord. In December, 1874, Hidden built a fence across the road under a claim that the proceedings laying out the same were illegal, as he was not made a party. Davisson was road overseer, and tore down the fence. Thereupon this suit was commenced to enjoin Davisson from keeping the road open. The court below rendered judgment for the plaintiff, and the defendant appealed.</p>

Action to recover damages for an alleged malicious prosecution by the defendant, in causing the arrest of the plaintiff on a charge of perjury, claimed to have been committed in the case of Perry v. The Central Pacific Railroad Company (reported in 50 Cal. 578), in which case the plaintiff was a witness for Mrs. Perry. The complaint was made, and the plaintiff was arrested-on the 14th day of July, 1873, and on the next day the magistrate held the defendant to bail.

<p>Appeal from the County Court, County of El Dorado.</p> <p>The plaintiff owned a lot in the city of Placerville, county of El Dorado, fronting on Main street, on which there was a one-story frame building, nineteen feet two inches in width, and forty-eight feet in depth, which was built in 1856 by the plaintiff and one Smidt. The plaintiff occupied this building as a saloon, and had purchased Smidt’s interest. The defendant owned a lot adjoining plaintiff’s lot on the east, on which was a two-story brick building, erected in 1853. In 1856 a fire destroyed the woodwork of the brick building, but, after the fire, the building was refitted and occupied. In 1861 the defendant built a new brick building on the rear part of the old one, and both were used as one building. The brick building extended back eleven feet beyond the wooden building on the plaintiff’s lot. The foundation of the brick building was on the land of the defendant, and at the surface of the ground it was one inch from, the sill of the wooden building. The brick wall sloped gradually over the plaintiff’s lot from the bottom to the top. The plaintiff’s building was out of repair, and he notified defendant, in June, 1874, that he desired to repair and raise it, and requested him to move the brick wall. The walls of the brick building did not lean more rvhen this suit was tried than when the plaintiff constructed his building.</p> <p>The court below did not find any damage, and found, as a conclusion of law, that the wall was not a nuisance, and rendered judgment for the defendant. The plaintiff appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Enjoining a Judgment.—One District Court has no jurisdiction to enjoin a judgment rendered in another District Court. The fact that the judge of the court where the judgment sought to enjoined was rendered, is disqualified from sitting in the case, does not constitute an exception to the rule.</p>

<p>Obdeb of Publication of Notice by Pbobate Goubt.-—If the statute fixes the number of days that a notice of the time of application to the Probate Court for probating a will and issuing letters testamentary shall be published, the order directing the publication of such notice need not direct how often the notice shall be published, if it requires the publication to be made according to the statute.</p> <p>Peobating Wills.—If one only of two or more executors named in a will petitions for its admission to probate, and no citation is served on the others named as executors, and it does not appear that such others are residents of the county where the petition is filed and therefore are required to be cited, it will not be assumed, for the purpose of invalidating the proceedings admitting the will to probate, that such others were residents of the county where the petition was filed.</p> <p>Idem.—The question not decided, whether, on a petition by one of several, named as executors in a will, for its admission to probate, the failure to cite the others where they reside in the county, leaves the court without jurisdiction to probate it.</p> <p>Signing Minutes of Pbobate Goubt.—The statute of May 1, 1851, requiring the orders and decrees of the Probate Court to be entered at length in the minute-book, and to be signed by the judge, is directory merely, as it is entirely silent as to the consequences to follow from a failure of the judge to sign.</p> <p>Final Disohabge of Exeoutob fbom his Teust.—The allowance of the final account of an executor does not discharge him from his trust, nor is it a decree of distribution or the equivalent of such a decree. Until the entry of a decree discharging an executor from liability, he is not discharged from his trust.</p> <p>Ejectment by Devisee Named in a Will.—A devisee named in a will cannot maintain ejectment for land devised to him therein until the final discharge of the executor from his trust, and a distribution of the estate.</p>

The court gave judgment that the defendants held the legal title to an undivided one-half of the land in trust for the plaintiff, and that they convey the same to him. The defendants appealed. The other facts are stated in the opinion.

Action to have the defendants declared the trustees of the plaintiff, in the ownership of certain lands, and to compel them to convey to the plaintiff. When the action was called for trial, the plaintiff offered himself as a witness. The defendant objected on the ground that he was a party against an administrator, upon a demand against the estate of the deceased, and that section eighteen hundred and eighty of the Code of Civil Procedure prohibited him from •testifying.

<p>Appeal from the County Court, City and County of San Francisco.</p> <p>The plaintiff was a religious corporation. The defendants, Parker, Norton, Harris, Freeman and Hargro, were, on the 5th of April, 1875, and had been for one year, trustees de facto of the plaintiff. There were sixty-five members of the church. On the 5th of April, 1875, at 12 o'clock, noon, without any previous notice, William Seth, H. A. Blake, George McDowell, James Sampson, John Warren, Albert Elliott, R. T. Houston, James Mason, A. Jackson, and four others, all members of the church, assembled in the same for the purpose of electing church trustees. They had the proxies of twenty other members. Said Seth and others were elected, and a certificate of such election was drawn up and signed, and acknowledged and filed in the office of the county clerk, as required by law. Defendant Hillery was pastor of the church. - They then served on him notice of dismissal, and entered into possession of the church and removed the lock on the door and put on a new one, and employed a special policeman to guard the door and prevent any of the old trustees de feudo from entering. Seth and his associates held possession until April 9, 1875, when the old trustees de facto forced an entrance into the church, and took forcible possession. Seth and his associates claimed to be trustees elected by a majority, that is, thirty-three. out of sixty-five votes. They commenced this action (forcible entry and detainer), in the name of the corporation to recover possession of the church. The court nonsuited the plaintiff, because Seth and his associates had not shown that they represented the corporation, and, therefore, their possession was not the possession of the corporation, and ■ the entry of the defendants was not an expulsion of the corporation from possession. The plaintiff appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Appeal from the District Court, Twentieth Judicial District, County of Santa Cruz.</p> <p>In October, 1866, the defendant Simms settled upon and thenceforward continued to reside on and improve subdivisions of section two, township ten south, of range four west, Mount Diablo base and meridian, and known on the official survey as lots No. 1, No. 2, No. 9, and No. 10, and containing less than one hundred and sixty acres. Prior to 1866, a portion of said township had been surveyed and the official plat of the survey filed in the United States Land Office at San Francisco, but there had been no official survey of said section two. Simms was a qualified pre-emptor, and was intending to pre-empt said lots when they were surveyed, and employed one Moore, a land agent in San Francisco, to examino the land office, and see when the official plat of a survey Avas filed, and to notify him when the filing took place. Moore examined the records of the land office from time to time, but did not discover that the survey had been made until April, 1872. In July, 1870, the official plat containing a survey of said section was filed in the land office. The State of California had organized a University, to which belonged the land coming to this State under the act of July 2, 1862, donating public lands to the several States for the benefit of colleges of Agriculture and the Mechanic Arts; and, on the 23d of November, 1870, Wood, as the agent of Hollinshead, applied to the land department of the University to purchase said lots along Avitli other subdivisions, as a part of the land-grant made to the State under said act. By an act of our Legislature the University selected and sold its lands. Wood then, and again on the 23d of May, 1871, filed affidavits in the University land office. The University sold him, as the agent of Hollinshead, the land, for five dollars an acre, and gave him a certificate of purchase. The rules adopted by the land department of the University required those avIio applied to purchase land to take an affidaA'it that there were no legal or equitable claims to the land, and that there Avas no occupation of or settlement on the same, except that of the applicant. The United States Register and Receiver, after the purchase from the University, certified the land over to the State of California, and, on the 17th day of January,-1873, Wood received a patent from the State, and then conveyed to Hollinshead. The lots occupied by Simms contained one hundred and twenty-five acres, and, • on the 16th day of April, 1872, when he first heard that the plat of survey had been filed, he applied to the Register of the land office to be allowed to file his declaratory statement. His improvements on the land were of the value of about two thousand dollars. The Register refused to allow him to file the statement, because the land had been certified over to the State. On the 28th of January, 1873, the plaintiff commenced this action to recover possession of the land he had so purchased, which consisted of lots 1, 2, 3, 5, 6, 7, 8, 9, 10, and the southeast quarter of the northwest quarter of said section, containing three hundred and twenty-one and ninety one-hundredths acres. The defendant, for relief on the equity side of the court, set up the foregoing facts in relation to his settlement on lots 1, 2, 9 and 10, and in relation to the purchase by the plaintiff, and asked to have the plaintiff declared his trustee, etc. The plaintiff, if he had been permitted to pre-empt the land, would have been required to pay the government only one dollar and twenty-five cents per acre. The court below denied equitable relief, and rendered judgment for the plaintiff. The defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

Ejectment to recover a part of the Rancho la Purissima Concepcion, lying in the county of Santa Clara. The defendant plead the Statute of Limitations. A grant, made by the Mexican nation to the plaintiff, was confirmed by the Board of Land Commissioners. An appeal was taken to the United States District Court, where the grant was again confirmed on the 17th of April, 1856.

<p>Ebomissoey Note.—When, at the time of the execution of a promissory note, a contract in writing is made between the payor and payee upon a separate piece of paper which describes the note and clearly refers to it, the note is to be read in connection with the contract as though it had been incorporated into it, and, in an action on the note brought by the payee, the payor may introduce evidence that the payee has broken the stipulations of the contract.</p>

<p>Water Front or San Francisco.—The commissioners appointed under the act of May 18, 1853, to sell land belonging to the State on the water front of San Francisco, had no power to sell any of said land without the “ red line map ” of the water front, required to he made by the fifth section of the act of March 26, 1851, commonly called the Beach and Water Lot Act.</p>

Action to enforce the lien of an assessment on a lot for the improvement of a street in San Francisco. The resolution to improve Jackson street from Davis to Drum street, was adopted by the Board of Supervisors on the 24th day of February, 1874; plaintiff performed the work, and the Superintendent of Streets issued an assessment on the 27th day of April, 1874. The defendant’s lot ivas assessed for two hundred and twenty-six dollars and ninety-six cents.

<p>New Trial.—The Supreme Court will not disturb an order of the court below granting a new trial on the ground that the evidence was not sufficient to sustain the verdict of a jury, if the evidence is conflicting.</p>

The following is the agreement under which the stock was purchased: “San Nbanoisco, November 21, 1863. “Agreement between Dr. John.H. Hill and J. W. Haskin, for the purchase of Crockett Consolidated Mining Company’s stock on joint account; all profits arising from the purchase and sale of said stock to be divided equally; Dr. Hill to furnish money for the purchase of said stock; one-half of the amount so advanced to be paid to him by said Haskin, with interest at four per…

Ejectment to recover an undivided one-third of a tract of land in the city of Los Angeles, and bounded on the east by Alameda street; on the north by Aliso street; on the west by lands formerly owned and still in part owned by Manuel Pequeña; that is to say, on the west by the eastern line of the land now owned by the said Pequeña, and the extension of said eastern line to Aliso street, and on the south by a plank fence standing on the line of land now occupied by Paula…

Action of forcible entry and detainer. The plaintiff recovered judgment, and the defendant appealed. The case came up on a bill of exceptions, which was settled on the 17th day of December, 1874.

This is the second appeal in this case. (See 44 Cal. 236.) The plaintiff, on the 23d day of November, 1867, let the premises (a part of Mission Block No. 24), to the defendant, to have and hold during the will of the plaintiff. The defendant entered under the lease. On the 23d of November, 1869, the plaintiff made written demand of the defendant to deliver up the possession of the premises, and no other demand was made. The defendant, in his answer, denied the lease.

<p>Judgment on Joint Demand.—If several defendants are sued jointly as copartners, the clerk has no authority to enter a several judgment by default against one of them.</p> <p>Idem.—If three defendants are jointly sued on a demand against them as partners, the court should not enter a judgment against two of them only.</p>

<p>Limitation ov Actions as to Spanish Grant.—The Statute of Limitations affords no defense to one who, without right, enters into possession of a Spanish grant belonging to an infant, if a suit for its recovery is commenced within five years after the infant attains his majority.</p> <p>Idism.—The owner of a Mexican grant of land which has not been finally surveyed or patented, cannot recover possession of the same from one who has been five years in the adverse possession thereof after the owner has attained his majority.</p>

<p>Appeal from the District Court, Tenth Judicial District, County of Sierra.</p> <p>On the 7th day of August, 1869, James Arnott was indebted to defendant Griffin in the sum of eleven hundred and sixty dollars, and to the plaintiff in the sum of seven hundred and ninety-two dollars, and executed to defendant Griffin the following bill of sale:</p> <p>“Know all Men by these Presents, that James Arnott, resident of Brandy City, Lincoln township, county of Sierra, State of California, party of the first part to these presents, does hereby cede, sell and deliver, and by these presents does convey unto Michael Griffin, of Brandy City, township, county and State aforesaid, party of the second part, all my right, title and interest in and to a certain mining claim, situate on Grizzly Hill, in the county and State before named; said right and title being one undivided one-fifth interest in the claims known and designated as A. Sharpe and Company’s Claims, for the sum of eleven hundred and sixty dollars to me in hand paid, and for the further sum of seven hundred and ninety-two dollars, which my interest owes Thomas Sharpe, of said Co., which the party of the second part agrees to pay as fast as it comes out of the claim, after deducting three dollars a day for living for each day’s work, together with one undivided one-fifth interest in all mining tools and appurtenances of whatever nature or kind.</p> <p>“Witness my hand this 7th day of August, a.d. 1869.</p> <p>“James "Arnott.</p> <p>“Witness:</p> <p>“William Bbumwell.”</p> <p>The plaintiff brought this action, and alleged in his complaint that the bill of sale was intended as a mortgage to secure both of said debts, and that his debt was first to be paid, and that he had a prior lien. The defendant Griffin alone answered, and denied that the bill of sale was intended as a mortgage, and also set up that if it was found to be a mortgage, that the plaintiffs’ debt was not to be paid until the amount thereof had been realized from the proceeds of the claim over and above three dollars per day, and that nothing had been realized from such proceeds. The court found that the bill of sale was intended to be a mortgage, and that the defendant Griffin had worked the claim, but had not realized three dollars a day from it, and enforced the lien of the mortgage as to the debt due to the plaintiff, and directed that the proceeds of sale, after satisfying Sharpe’s debt and costs, should be paid into court for the person entitled thereto.</p> <p>The defendant Griffin appealed.</p>

<p>Appeal from the District Court, Second Judicial District, County of Tehama.</p> <p>The action was ejectment. The plaintiff Colby was sworn on his own behalf, and testified to two or three conversations he had held with the defendant. The record on the point decided, reads as follows:</p> <p>“Matthew Healey, the defendant, recalled as a witness in his own behalf:</p> <p>“Mr. Belcher. Mr. Healey did you hear Mr. Colby’s testimony, in regard to a conversation, stated by him to have occurred at the Deer Creek Meadows, about the last of May, 1871, between himself and Sandy Young and yourself?</p> <p>“Mr. Leiois. We object for this reason: That Mr. Healey has been upon the stand and testified with regard to the testimony of Mr. Colby; that since he was called upon the stand Mr. Colby has not been called, and has made no statement; there has been no new development in regard to the testimony of Mr. Colby.</p> <p>“ The Court. The objection is sustained.</p> <p>“Mr. Belcher. We except to the ruling.</p> <p>“Mr. Belcher. Then we ask leave of the court to proceed with the examination of this witness; our former examination was confined to a single conversation testified to by Mr. Colby; we now desire to examine him as ¿o the other conversations testified to by Mr. Colby, and generally upon the case.</p> <p>“ Mr. Leiois. We shall object just the same.</p> <p>“ The Court. The court has no discretion against the objection of the plaintiff.</p> <p>“Mr. Belcher. We except to the order of the court denying us the privilege in the exercise of its discretion.”</p> <p>The plaintiffs recovered judgment, and the defendants ■ appealed.</p>

Defendant Gann was the owner of the fractional south half of section nineteen, township five south, range nine east, Mount Diablo base and meridian. The land was assessed for the fiscal year 1868, and the tax was eleven dollars and thirty-eight cents. Gaim failed to pay the same, and, on the 15th day of February, 1869, suit was commenced to enforce the lien of the tax, in which Gann was defendant.

The plaintiff alleged in his complaint that the Western Pacific Eailroad Company was a corporation from December, 1862, till June 23, 1870, when it consolidated with the Central Pacific Eailroad Company of California under the name of the Central Pacific Eailroad Company; that he was the owner of lots two and fourteen in block two hundred and twenty-four in the city of Stockton, which fronted on Sacramento street a distance of one hundred and fifty feet, and had a house on…

Ejectment to recover lots five and six in block thirty-five, in the town of Colusa, county of Colusa. The town of Colusa is on a grant of eleven leagues made by the Mexican nation to Manuel Jimeno. Jimeno conveyed the grant to Thomas O. Larkin and John S. Missroon, on the 30th of August, 1847. The United States confirmed the Jimeno grant, and patented it to Larkin and Missroon, on the 18th day of July, 1862. Both parties claimed under Larkin and Missroon.

<p>Water Right Connected with Ditch.—If a ditch for the conveyance of water for sale in the mining regions receives its supply of water from a stream at its head in the mountains, and extends a number of miles down, the water flowing through it the whole distance, and the title of the owner to the upper half or section of the ditch afterwards passes to one person, and the title to the lower half to another, the person who acquires the upper half is entitled to the exclusive use of the water from the stream at the head of the ditch.</p>

Action to rescind a contract for the purchase of real estate, and to recover the money paid on the purchase and the value of the improvements placed on the premises. The action was dismissed as to all the defendants except William Monahan and T. F. Reardon.

<p>Appeal from the District Court, Seventh Judicial District, County of Marin.</p> <p>Ejectment to recover a tract of about one thousand four hundred acres of land in Marin County, portion of the Eancho Laguna de San Antonio. On the 28th day of May, 1855, Harry Wade became the owner of the laud, and on the 25th day of April, 1856, a judgment was entered against him decreeing a sale of the land on a mortgage. On the 2d day of June, 1855, the sheriff sold the land, under the decree, to Charles H. Willson for two thousand dollars. On the 31st day of October, 1856, Wade called on the sheriff to redeem the land from the sale and asked him how much money was required to redeem. The sheriff, after figuring the amount, told him that two thousand seven hundred and fifty dollars was sufficient to redeem, and Wade handed him that amount, and the sheriff executed and delivered to him a certificate of redemption. On the 26tli day of December, 1856, the sheriff, notwithstanding the redemption, executed and delivered to Willson a deed. On the 28th day of February following, Wade withdrew from the sheriff the money and at the same time executed and delivered to him the following document:</p> <p>This is to certify, that I, Harry Wade, have received on this 28th day of February, 1857, of the sheriff, G. N. Vischer, and do hereby withdraw from his custody, the sum of two thousand seven hundred and fifty dollars, being the sum deposited as above, and I hereby release the said sheriff from all liability or responsibility in said suit, but without prejudice to my rights as against others. $2700. Harby Wade.</p> <p>On the 21st of March, 1862, Charles H. Willson conveyed the land to Allen T. Willson. On the 1st day of February, 1858, Wade conveyed the land to Henry Wilkins. Henry Wilkins died intestate on the 18th day of November, 1867, and the plaintiff became the administratrix of his estate. Allen T. Willson died on the 28th day of September, 1870, and the defendant, Charlotte, on the 7th day of November, 1870, became the administratrix of his estate. The defendant recovered judgment and the plaintiff appealed.</p>

John Galvin died in December, 1873. Letters were issued to his wife, and on the 10th day of October, 1874, James Simpson, Jr., presented to her a claim against the estate for money lent in October, 1863.

The plaintiff averred that the Board of Trustees of the city passed an ordinance providing that persons should construct sidewalks in front of their lots within sixty days, and if they failed to do so the city should construct them, and the cost thereof should be charged to and paid by the owners of the lots, and that the same should be a lien upon the lots; that the defendants owned a part of block 268, fronting on State street, and failed to construct a sidewalk, and the…

Action to recover five hundred and sixty dollars and sixty-six cents, alleged to have been received by the defendants to and for the use of the plaintiff.

<p>Subbeme Couet will not Pebfobm Duty of Counsel.—The Supreme Court will not perform the duty of counsel by examining the record to ascertain if possibly error may not have intervened, if there is no oral argument, and points and authorities are not filed.</p>

This is the second appeal. The case, on the former appeal, is reported in 47 Cal. 154. The pleadings were verified. On the trial, the court, against the objection of the plaintiff, permitted the defendant to read in evidence a complaint filed in the canse which had been superseded by an amended complaint. The defendant recovered judgment, and the plaintiff appealed.

In April, 1870, the plaintiff was engaged in the sale and shipment of gasoline in New York City, and agreed with the defendant to sell and ship to San Francisco, gasoline of the specific gravity of 85° at twenty-five cents per gallon, to be paid for by remittance from San Francisco on the arrival of the bills of lading in course of mail from New York. The plaintiff was to put up the gasoline for shipment in first-class cases, of the full measure of five gallons.

<p>Purchaser op Promissory Note.—A bona fide holder of a note who purchased it for value before it fell due, and without notice of payments made on it, can collect the face of the note and interest.</p> <p>Covenant that Certain Sum is Due on Note.—The assignee of a promissory note who purchases it in good faith before it falls due, without knowledge that payments have been made on it, and receives a covenant from the payee that the sum he pays for it is due, cannot maintain an action on the covenant if such amount is not due, for he sustains no loss, as the payor is liable to him for the face of the note.</p> <p>Action on Covenant.—In order to enable one to maintain an action on a covenant, there must not only be a breach of the covenant, but some loss or damage to the covenantee.</p>

In June, 1865, a corporation was organized in this State called the California and Oregon Eailroad Company, forth e purpose of constructing a railroad from Marysville to the boundary between California and Oregon. In November, 1867, another corporation was organized under the laws of this State for the purpose of building a railroad from Eoseville, on the line of the Central Pacific Eailroad Company, to Marysville.

On the 12th day of October, 1859, the plaintiff leased to Thomas J. Gately certain lots in San Francisco, for the term of fifteen years commencing on the said day.

<p>Appeal from the District Court, First Judicial District, County of Santa Barbara.</p> <p>January 19, 1865, the defendant, Thomas Sprague, made, executed and delivered his promissory note to the-plaintiff, Dennis, in the words and figures following to wit:</p> <p>“$2400. January 19, 1865.</p> <p>“ On the 1st of November, proximo, I promise to pay to Thomas Dennis, or order, two thousand four hundred dollars, for value received, in United States gold coin, with interest at the rate of one and one-half per cent, per month.</p> <p>“Thomas Sprague.”</p> <p>At the time of the making and delivery of the note, the defendant Huse guaranteed its payment by indorsing the same. When the note fell due, Dennis failed to make demand of payment and give notice of non-payment. After-wards, and about the month of September, 1866, Huse made a payment on the note, and said to the payee: “Mr. Dennis, I am responsible for that note.” Dennis after this indorsed the note in blank, and delivered it to F. Maguire. Subsequently, Maguire assigned the note to Dennis by indorsement, without recourse, and redelivered the same to him. Afterwards, Dennis delivered the note to the plaintiff Curtiss, without receiving any value, but with an agreement that Curtiss should bring suit and divide with him what he recovered. The. plaintiff recovered judgment, and the defendants appealed.</p>

<p>Enfobcbmbkt of Mobtgage.—If a mortgage is given on two pieces of land, • and the mortgagee enforces it against and sells only one piece, he thereby waives the lien of the mortgage on the other piece; and if the land sold fails to bring the amount due and costs, and a judgment is docketed for the deficiency, the mortgagor cannot complain.</p>

The defendant was a corporation engaged in the business of receiving deposits in money, and loaning out the same for the benefit of the depositors after the payment of expenses. Its loans were secured by mortgage. Between the first Monday in March and the first Monday in June, 1874, it was assessed for solvent debts, secured by mortgage, in the sum of §11,366,934.59. The tax levied on this sum was §77,460.48.

The defendant McKee had been treasurer of the county of Monterey, and an action was commenced on his official bond for an alleged delinquency in office. An attachment was issued in the action, and a motion was made before the county judge of Monterey County to dissolve the same. The judge granted the motion, and the plaintiff appealed.

<p>Appeal from the District Court, Tenth Judicial District, County of Tuba.</p> <p>The defendant was engaged in mining for gold at Sucker Flat, county of Tuba. The plaintiff was in its employ, and was engaged in picking dirt and gravel into the defendant’s ground-sluice. íhe defendant was engaged in blasting rock on the mine. One Began was the foreman of all the work, and had authority to employ and discharge hands. The plaintiff was struck'by a rock thrown from a blast a distance of about three hundred feet. He was exposed to injury by the blast, and it was by means, of Began’s negligence that he was not notified that the blast was to be fired. The defendant recovered judgment, and the plaintiff appealed.</p>

<p>Vebbab S411E 05? Beal Estate.—A gold mine is real estate, and an interest therein, other than an estate at will or for a term not exceeding one year, can be transferred only by an instrument in writing. A verbal sale is not good.</p> <p>Possession of Bhab Estate.—The owner of an undivided interest in a mine is entitled to the possession of the whole mine, as against one who has not title to any portion of the mine.</p>

The plaintiffs alleged in their complaint that they owned and occupied a ranch which they used for dairy purposes, and that the defendants, with force and arms, tore down and destroyed the fence inclosing it for the space of about one mile, by reason whereof the cattle of other people came in and destroyed the grass and broke np their dairy business.

<p>Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.</p> <p>Action to enforce a contract in writing for the sale of real estate. The testimony was taken and the case was held under advisement by the court, and, after deliberation, the court directed judgment to be rendered for the defendant. No findings of fact were made. The plaintiff moved for a new trial and filed a statement in support of it, which was settled by the court. The motion for a new trial was denied. The point that no findings had been made was not raised either in the statement or in a bill of exceptions. In the statement the point was made that the decision was not sustained by the evidence; but the point could not be made that the findings were not sustained by the evidence, as there were no findings. The plaintiff appealed from the judgment and from an order denying a new trial.</p> <p>The other facts are stated in the opinion.</p>

<p>Note Executed out ov this State.—If suit is brought on a promissory note executed out of this State and due more than two years before the action is commenced, the presumption is that it is barred by the Statute of Limitations; and if the defendant has been absent from the State during any portion of the two years, that fact should be averred in the complaint.</p>

The Santa Cruz Railroad Company commenced proceedings in the Twentieth District Court, County of Santa Cruz, to condemn certain lands of Sanborn and others for the use of its road. After summons had been served, the court made an order under section 1254 of the Code of Civil Procedure, authorizing the company to take possession of and use the land sought to be condemned until the final conclusion of the proceedings, upon giving bonds to pay damages.

<p>Taking Pbivate Pjropbbty fob a Public Use.—The Legislature cannot, in the exercise of the power of eminent domain, take private property for a purely private industry, such as to enable a person to build a flume on the land of another to carry off the tailings from his mine, or to enable him to deposit the tailings on such land.</p> <p>Legislative Declabation as to Public Use.—Although, as a general rule, a legislative declaration that a certain business is a public use, for which the right of eminent domain may be exercised, is not open to review by the courts, yet, when it appears plain that property is sought to be taken for a purely private use, courts are not bound by the declaration.</p>

<p>Appeal from the County Court of Solano County.</p> <p>Wyman and Lemon were candidates for the office of county treasurer of the county of Solano, at the general election in the fall of 1875. The canvass of the returns by the Board of Supervisors gave Wyman one thousand six hundred and thirty votes, and Lemon one thousand six hundred and thirty-three votes. Lemon received the certificate of election and Wyman commenced an action in the County Court contesting the election. Ballots were counted for Lemon upon which the elector had scratched other names with ink, and the ink thus used had discolored the ballot. Wyman objected to these votes being counted, and relied on sections 1206 and 1207 of the Political Code as authority to sustain his objection. These sections provide that when any ballot found in a ballot-box bears upon it, or upon the outside thereof, any impression, device, color, or thing, designed to distinguish such ballot from other ballots, or to impart knowledge of the person who voted such ballot, it shall be rejected. The court confirmed the election of Lemon and Wyman appealed.</p>

On the 4th day of September, 1871, the defendant was elected treasurer of Monterey County, and entered on the discharge of the duties of his office on the first Monday in March, 1872.

The facts out of which this action arose are stated in the case of Meyer v. Tully (46 Cal. 70).

<p>Plea of Fobmeb Conviction.—If, in a criminal case, there is a plea of not guilty and also a plea of former conviction or acquittal, the defendant is entitled to a verdict on each plea. If there is a verdict of guilty alone, there can be no judgment of conviction.</p>

<p>Application to the Supreme Court to be discharged on habeas corpus.</p>

On the 20th of January, 1876, Rosenblat was arrested in San Francisco by the chief of police on a warrant issued by the judge of the Police Court, charging him with being a fugitive from justice, and with having fled from the City and State of New York, where he had committed the crime of obtaining money under false pretenses. The judge continued the hearing of the case from time to time until the 29th of January.

The gold fields on the Pacific coast, and on the eastern slopes of the Pocky Mountains, were situated on the public lands of the United States. These fields were also in mountainous districts, through which flowed numerous rivers and small streams of water. This water was necessary to separate the gold from the earth.

<p>Acts concerting Lawful Fences.—The fifth section of the act of 1850, concerning lawful fences, as amended by the act of April 3, I860 (Stats. 1860, p. 141), is in force only in the counties named in the act, and section 841 of the Civil Code is in force in the remainder of the counties.</p> <p>Constbuotion of Codes.—When the provisions of the different codes conflict with each other, such a construction must be given to them that both may, if possible, have effect.</p> <p>Payment fob Pabtition Fence.—In the county of Monterey, if the owner of land incloses it with a fence, and the owner of an adjoining tract afterwards incloses his land, so that such fence answers the purpose of a division fence, the owner of the adjoining tract must pay the person who built the fence one-half the value of so much, of it as answers for a partition fence between them.</p> <p>Idem.—The fact that the owner of such adjoining tract and the owners of other tracts had, by an understanding between them, inclosed their land in one field, does not change the rule, nor is it changed by the fact that no fence is constructed where there are natural barriers sufficient for the protection of the land.</p> <p>Idem.—The lien given by the act to the one who builds the division fence is not an exclusive remedy for the recovery of one-half the value, but it may also be recovered by an ordinary action.</p> <p>Idem.—The liability of the owner of the adjoining tract became fixed when he inclosed his land, and was not impaired by the passage of the act of February 4, 1874, to protect agriculture, etc.</p>

<p>Bedemption of Lasd sold fob Taxes.—If sufficient money is paid to the county treasurer to redeem land sold for taxes, and the payment is made for the purpose of effecting a redemption, and a receipt is taken, the redemption is effected, even if the receipt is not filed with the recorder, and recorded by him.</p> <p>Idem.—If land sold for taxes is redeemed, the redemption has the effect of defeating a deed afterwards given to the purchaser.</p> <p>Deed oe Land sold eob Taxes.—A deed of land under a tax-sale is only prima facie evidence that no redemption had been effected; and the party who makes the redemption may, in ejectment on the title acquired by the deed, prove that a redemption was effected.</p>

The plaintiff averred in his complaint that, on the 17th of April, 1866, Simon Jones owned a lot on Mission street, near Seventeenth street, and sold and conveyed it to Thomas Jones; that on the 12th day of November, 1867, the Board of Supervisors levied an assessment of $644.93 against Thomas Jones for grading the street in front of the premises; that the assessment was assigned to B. F. Dennison, the contractor, who, on the 12th day of November, 1869, commenced suit on it…

<p>Trespass bx cutting down Trees.—If the plaintiff, in a complaint for cutting flown trees on his land, does not aver that the defendant cut them down knowingly, willfully, or maliciously, he cannotrecover the treble damages given in the two hundred and fifty-first section of the old Practice Act.</p> <p>Idem.—If the complaint contains such averment, and it is found that the timber was cut down through a mistake as to where the boundary line was, the plaintiff cannot recover treble damages.</p> <p>Idem.—Without such averment, the plaintiff may recover simple damages.</p> <p>Title of an Act.—While the title of an act will not control the language of a statute in the body, it may be referred to as tending to explain the intention of the act when the language is doubtful.</p> <p>Idem.—The head-notes to the chapters and titles in the Practice Act are entitled to more consideration in explaining the intention of the different sections, where the language is doubtful, than the title of the entire act.</p>

<p>Formation op Swamp Land District.—A petition for the formation of a new swamp land district out of a portion of an old district, under section 3481 of the Political Code, must show that the old district sought to be divided was in existence prior to Ma)r 28, 1868.</p> <p>Petition fob the Formation op a Swamp Land District.—A petition to a Board of Supervisors for the formation of a swamp land district must state all the facts necessary to show that the Board has jurisdiction to act.</p> <p> By Bhodes, J., McKinstry, J., concurring: </p> <p>Petition to poem Swamp Land District.—A petition presented under said section 3481 for the formation of a new swamp land district, must state the name of the owner of each tract of land which has been disposed of in the territory sought to be set off, and must give a description of the same.</p> <p>Idem.—Such petition should also be published precisely as presented to the Board.</p> <p> By McKinstry, J.: </p> <p>Idem. — Such petition should be signed by all the persons owning lands within the proposed new district.</p>

<p>Appeal from the District Court, Fifth Judicial District, County, of Stanislaus.</p> <p>The action is for the recovery of certain personal property described in the complaint. It appears from the complaint that the plaintiff is the sheriff of Stanislaus County, and, as such officer, received a writ of attachment in the suit of Davis v. Gilmore (one of the defendants here). The property in dispute in this action was levied upon, as will hereafter more fully appear. The defendants, other than Gilmore, claim to have become the bona fide purchasers of the property prior to the alleged levy above referred to.</p> <p>It is found by the court below that one Aull, under-sheriff of the plaintiff, having’attached the property in dispute, left the same in the temporary charge of one Chase, Avho resided upon the premises where the property was situated. The finding on that point is as follows:</p> <p>“ Seventh. Said attachment Avas made in the manner following, and not otherwise: Defendant Gilmore was engaged in harvesting grain for one Bartholomew, and was using-said propery in said work. When said Aull reached the premises of Bartholomew, the harvesting was finished and the defendants were conveying said property towards the house; said Aull found the defendant Gilmore at the house, and informed him of his purpose to attach said property, at the same time handing him a copy of the summons, complaint, and attachment in said suit of Davis v. Gilmore. He requested said Gilmore to have the engine, separator, derrick fork, wagon, etc., driven to a certain place on the ranch, out of the road, and placed near together, Avhich Avas done. Said Aull then made a memorandum of the property attached, and then went to the blacksmith shop where said Chase was at work, and requested him to look after said property till the return of Bartholomew (avíio Avas absent, but expected to return that day), and on his return to turn it over to him as keeper. Aull also at the time gave to said Chase a written appointment of Bartholomew as keeper of said property, with a description of the property indorsed thereon; and said Anil instructed said Chase if any one meddled with said property, to inform them that it was attached, to all of which said Chase agreed. The property at the time was within about a hundred yards of the blacksmith shop, where said Chase was at work, and the top of the engine and derrick was visible from the shop, the rest being hidden by a fence. On the return of Bartholomew, which was the same day, said Chase delivered to him the appointment as keeper, with memorandum of the property attached, but the property had before that time been removed by defendants.”</p> <p>The court further finds “ that at the time of the sale by Gilmore to the other defendants, the parties to the sale knew of the attachment of the same by Aull, but thought said attachment was invalid.”</p> <p>The plaintiff recovered judgment and the defendants appealed.</p>

<p>Sham Answee.—Although a general denial to the allegations of the complaint may, if falsely pleaded, he characterized as sham, yet an inquiry in advance of the trial cannot he entertained by the Court as to the good faith of the defendant in pleading it, nor can it be stricken out as sham on an application of the plaintiff.</p> <p>Idem.—The defendant has a right by a general denial to put the plaintiff to the proof of his demand.</p>

<p>Defendant in an Attachment Suit.—A defendant in an action, against whom a writ of attachment has been issued, cannot be compelled to attend before the judge or a referee, and submit to an examination as to the condition and situation of his property, nor can he be compelled to deliver up his property.</p> <p>Idem.—Section 545 of the Code of Civil Procedure refers to persons owing debts to, or having possession of, personal property belonging to the defendant in an attachment suit.</p>

Application to the Supreme Court to review an order of the district judge of the Fifth Judicial District, admitting Miner Walden to bail pending his appeal from a judgment of the County Court of Stanislaus County convicting him of a crime.

The defendant was charged in the indictment with having burned a building capable of affording shelter to human beings. The jury found the defendant guilty without specifying the degree of his guilt. The defendant moved for a new trial, which was denied. He then prepared a bill of exceptions, inwhich he specified, among other reasons for granting a new trial, that the evidence was insufficient to sustain the verdict.

On the 19th day of September, 1864, D. S. K. Buick applied to the State Land Office to purchase the south half of the southeast quarter of section thirty-sis, in township five south, range one east, Mount Diablo meridian.

<p>Appeal from the District Court, Fifth Judicial District, County of San Joaquin,</p> <p>The San Joaquin River takes its rise at a point over two hundred miles a little southeasterly from the city of Stockton. It drains the country lying between the Sierra Nevada Mountains on the east, and the Mount Diablo range of mountains on the west. The country between these ranges of mountains is called the San Joaquin Valley. The valley proper is about thirty miles in width, and the low foothills of the mountains on either side are several miles in width. Stockton is built midway the valley, on a slough of the river, a few miles from where it empties into the head of Suisun Bay. The Stockton and Visalia Railroad Company was a corporation organized prior to December, 1869, for the purpose, according to its articles of association, of constructing and maintaining a railroad from the navigable waters, in the city of Stockton, county of San Joaquin, through said county, and the counties of Stanislaus, Merced, Fresno and Tulare, to a point at or near the town of Visalia, in said county of Tulare. The Stockton and Copperopolis Railroad Company was also a corporation organized in 1865, for the purpose, according to its articles of association, of constructing and maintaining a railroad from the city of Stockton, in the county of San Joaquin, through said county and the counties of Stanislaus and Calaveras, to the town of Copperopolis, in Calaveras County. Copperopolis is in the county of Calaveras, forty-seven miles a little north of east from Stockton. Visalia is in Tulare County, about one hundred and sixty miles a little east of south from Stockton, and is in the San Joaquin Valley. On the 2d day of March, 1867, Congress passed an act granting public lands in alternate sections, on either side of the road, to aid in the construction of a railroad from Stockton to Copperopolis, and designating the Stockton and Copperopolis Company as the corporation entitled to the grant, provided the Legislature of this State designated it as the company to be vested with the grant. The Legislature did so designate it. On the 13th day of September, 1867, the Stockton and Copperopolis Company filed a map in the office of the Secretary of State,' designating the line of its road, by which the same ran from Stockton a little north of east to the town of Peters, and thence to Copperopolis. The latter company acquired the right of way for its road to Milton, and, in 1866, graded eleven miles of its road between Stockton and Peters. Work was not resumed on the road until November, 1870, and the railroad was completed to Peters in February, 1871, and to Milton in September, 1871. It has not been extended beyond Milton, and, as a part of the political history of the country, I will state that Congress, since this case was tried in the District Court, has declared its land grant forfeited. The Legislature passed an act, approved April 1,1870, requiring an election to be held in Stockton, to decide upon a proposition for said city to issue to the Stockton and Visalia Railroad Company three hundred of its bonds, of one thousand dollars each, bearing interest at seven per cent, per annum, payable in twenty years, to aid in the construction of a railroad from the water front of said city, through the county of San Joaquin, and up the San Joaquin Valley, in the direction of the town of Visalia, county of Tulare. If the election was favorable, the bonds were to be issued by the council of the city, and delivered to G. W. Kidd, B. W. Bours and J. M. Kelsey, who were to hold them as trustees for the following use: When the trustees received a written verified statement of the president of the company, that the track had been laid for the distance of five miles from the water front of the city, and that cars and engines were running over the same; and when they received the written statement of the council of the city that said five miles had been constructed and the track laid in a manner and of a character acceptable to them, and that the same was properly stocked, then the trustees were to deliver to the company one hundred of the bonds; so in like manner upon the completion of a second and third five miles; and upon receiving the written statements, the second and third one hundred bonds were to be delivered. An election was held under the act, and the result was favorable to the issuance of the bonds. The council caused them to be made, and delivered them to the trustees.</p> <p>The Stockton and Visalia Bailroad Company did not file a map or profile of their railroad with the Secretary of State, but, after the result of said election, and after the bonds were delivered to the trustees, constructed a railroad from Peters, up the San Joaquin Valley, in the direction of Visalia, for a distance of nineteen miles and a quarter, to Oakdale, beyond the southern line of San Joaquin County, which was completed on the 20th of September, 1871. On the 28tli of September, 1871, the Stockton and Copperopolis Bailroad Company, pursuant to a resolution passed by its Board of Directors, conveyed to the Stockton and Visalia Company its railroad from the water front in Stockton to Peters. The latter company did not lay out, or project, or construct a railroad from Stockton to Peters, and had not built any railroad except that from Peters to Oakdale. From Stockton to Visalia, in a direct line, the country is level and entix-ely.practicable for a railroad. The Stockton and Visalia Company, on the 16th of October, 1871, requested the council of Stockton to give the written statement required by the act, but the council refused.</p> <p>This action was commenced on the 28th day of March, 1873, and the members of the council of Stockton, its mayor, and the president of its council, and the trustees holding the bonds, were made defendants along with the city. The plaintiff asked for a writ of mandate directing the council of Stockton to make the written statement required by the act, and to deliver it to the trustees, and requiring the trustees, upon receipt of the same, to deliver to it tho bonds. The court denied the writ, and the plaintiff appealed.</p> <p>Greathouse & Haggin, D. S. Terry, and W. H. Patterson, for the Appellant, argued that the court below did not construe the act of 1870 correctly, and cited Thompson v. The New York and Harlem Railroad Co., 3 Sand. Ch. 655 6; and that the Stockton and Visalia Company had a right to make the purchase, and cited Stockton and Visalia Co. v. Stockton, 41 Cal. 168; and that the conveyance was good for the roadbed, rails, ties, depots, buildings, etc., and that it was not necessary to have it carry the franchises of the grantor; and cited Donner v. Dayton & Cin. R. R. Co., 1 Cin. Supr. Ct. R. 139; Bruffett et al. v. Great Western R. R. Co., 25 Ill. 356-7; State v. Rives, 5 Iredell (Law), 306; Arthur v. Coml. R. R. Co., 9 S. & M. (Miss.) 431—2; Commomwealth y. Wilkinson, 16 Pick. 176; Williams v. The N. Y. Cen. R. R. Co., 16 R Y. 108; Wager v. Troy Union R. R. Co., 25 N. Y. 533; and Milhau v. Sharp, 27 N. Y. 620; that it was sufficient if there was no statute prohibiting the sale, and cited State v. Rives, 5 Iredell, 305; Donner v. Dayton and Cincinnati R. R. Co., 1 Cincinnati Superior Court, 139; Bruffett v. Great Western R. R. Co., 25 Ill. 356-7; Barlow v. Chicago R. I. & P. R. R. Co., 29 Iowa, 280; Miller v. R. & W. R. R. Co., 36 Vermont, 488, 491-2; Bank of Middleton v. Edgerton, 30 Vt. 190; and Hall v. Sullivan R. Co., 21 Law Rep. 138, 141; also cited by Pierce, p. 522; but that the statute permitted it, and cited subdivision second of section seventeen of the act to provide for the incorporation of railroad companies “ To receive, hold, take, and convey, by deed or otherwise, the same as a natural person might, or could do, such voluntary grants and donations of real estate, and other property of every description, as shall be made to it, to aid and encourage the construction, maintenance, and accommodation of such railroad.”</p>

<p>Appeal from the District Court, Fifth Judicial District, County of Tuolumne.</p> <p>This is the second appeal in this case. The case on the first appeal is reported in 47 Cal. 598. The principal facts are there stated. On the second trial, after the remittitur went down, the plaintiff called Raymond, one of the trustees of the plaintiff, as a witness. Raymond testified that Gil-son proposed to him to pay the plaintiff two thousand dollars and obtain a purchaser of its quartz ledge and mill for five thousand dollars, if the plaintiff would satisfy its judgment against him, Gilson; that a meeting of the board of trustees of the plaintiff was called, at which Gilson was not present, but which was attended by Rogers, an attorney, at the request of Gilson who told Raymond that he wanted Rogers to go there to see that everything was right; that at the meeting the witness told the board what Gilson’s proposition was, and the board then voted to accept of it; that the board then requested Rogers to place the matter in legal shape, and he, Rogers, told the witness to take pen, paper and ink, and write down what he told him; that witness did so, and at Rogers’s dictation wrote as follows:</p> <p>“Meeting of the Board of Trustees of the Gilson Quartz Mining Company, held at Sonora, June 1G, 1871; present C. E. Gorham and R. S. Raymond. On motion, C. E. Gorham was chosen president pro tern. A proposition having been made to the company, on behalf of L. Gilson and E. M. Hampton, to pay the sum of $2000 in gold coin to the company, and also to cause to be relinquished to the company by D. M. Kenfield all right, title or claim by him of, in, or to any of the capital stock of said company, now or hitherto held or claimed by him, and all dividends which have arisen or may arise therefrom, in consideration of the cancellation of a certain judgment obtained in the District Court of the Fifth Judicial District, County of Tuolumne, State of California, on the 7th day of May, 1868, in the case of the Gilson Quartz Alining Company v. L. Gilson and E. M. Hampton, for the sum of $7216.04, and costs of suit. On motion of R. S. Raymond it is ordered that said proposition be, and the same is hereby accepted, and the said R. S. Raymond is hereby authorized, as trustee of the Gilson Quartz Mining Company, on the receipt of the $2000 aforesaid, and the relinquishment by D. M. Kenfield, as aforesaid, to cancel said judgment.</p> <p>“A proposition having been made on behalf of Jesse Holliday to purchase the Gilson Quartz Mining Company’s property for the sum of $5000 in gold coin, it is ordered that the said proposition be, and the same is hereby accepted, and C. E. Gorham and E. S. Eaymond, two of the trustees of the said company, are hereby authorized, on behalf of said company, to execute the proper conveyance of said property to said Holliday, on receipt of the sum of money aforesaid.</p> <p>C‘E. S. Eaymond,</p> <p>“ Secretary Gilson Quartz Mining Company.”</p> <p>The witness was then allowed, against the objection of the defendants, to testify that the resolutions as written were not the resolutions passed by the board. The following is his testimony:</p> <p>“Q. State what was, as near as you can, the exact language in which the resolution was stated, and which was voted upon at the meeting.</p> <p>“A. I made a statement to the meeting of Gilson’s proposition, that he had offered to pay $2000 in cash, and sell the property of the Gilson Quartz Mining Company for $5000, in consideration of the cancellation of this judgment. It was moved that we accept that proposition, and it was voted upon and passed. At the time Eogers was dictating those resolutions that appear on the book, we both objected to the manner in which he was dictating. He said it didn’t make a G—d d—n bit of difference; it was all right anyhow; we were bound to get our money; it didn’t make any odds what went on the books.,</p> <p>“ Q. How state what portion of the resolution was objected to, and who objected to it, as appears on your books there.</p> <p>“A. Well, it didn’t say that Gilson was responsible for the" sale of the mill and mine here for $5000; that Avas one thing; both Gorham and myself objected.”</p> <p>The plaintiff recovered judgment, and the defendants appealed.</p>

<p>Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.</p> <p>Action to recover the value of merchandise alleged to have been converted by defendant to its own use. The merchandise was sold by Samuel Hart & Company, of Philadelphia, and Lawrence & Cohen, of New York, to Adelsdorfer Brothers, of San Francisco, about the 1st of December, 1871, and shipped immediately for San Francisco by the Pacific Fast Freight Line, which was a common carrier between the Atlantic coast and San Francisco, to be delivered to Adelsdorfer Brothers, at San Francisco. The defendant owned the railroad between Ogden and San Francisco, which formed a branch of the Fast Freight Line. On the 20th day of December, 1872, Adelsdorfer Brothers became insolvent. On the 3d day of January, 1872, at twenty minutes before 9 o’clock A. sr., the vendors notified defendant that the consignees had failed and the goods were not paid for, and that they stopped them in the hands of the defendant. The goods were then in transit. About two hours after this notification, Adelsdorfer Brothers assigned the bills of lading to the plaintiffs, who were auctioneers, and who had been for more than fifteen years in the habit of receiving from the assignors such bills of lading, and selling the goods at auction on their arrival, and reimbursing themselves out of the proceeds. The plaintiffs did not know of the insolvency of the assignors, nor did they know of the notification of the vendors until the 20th of February, 1872. The plaintiff exhibited the bills of lading to the defendant and demanded the goods, but the defendant refused to deliver them, and about the 20th of March, 1872, delivered them to the vendors. The court below rendered judgment for the plaintiffs, and the defendant appealed.</p> <p>The other facts are stated in the opinion.</p>

<p>Construction of Deed.—A deed by which a husband bargains and sells real estate to his wife and son by name, and to such other heirs as the wife may have during the marriage, and after her decease to the children of the marriage, their heirs and assigns forever, vests the estate in the wife and son named in the conveyance in equal parts as tenants in common, in fee simple, even if other children are afterwards born to the spouses.</p> <p>Bade of Land of Infant by Guardian.—The guardian of an infant who is authorized by an act of the Legislature to sell the real estate of his ward, subject to the approval of the sale by the Probate Court, has no authority to accept anything hut money in payment of the pnrchase-money.</p> <p>Account in Equity between Guardian and Ward.—If an infant owns an undivided half of a tract of land as a tenant in common with his mother, and the father and husband, as his guardian, sells the whole tract and receives in payment of the purchase-price a part in money and the other part by canceling, with the consent of the wife, a debt due from the guardian to the purchaser, equity will compel the wife to accept as her portion of the purchase-price the debt thus canceled, and will decree the money paid, to the ward, and the ward has no claim against the purchaser.</p> <p>Act authorizing Guardian to sedd Land of Infant.—An act of the Legislature which authorizes the guardian of an infant to sell the real estate of such infant, subject to the approval of the Probate Court, for the purpose of enabling the guardian to reinvest the proceeds in other property for the benefit of the ward, is not an assumption of judicial power by the Legislature, and a sale made by the guardian in compliance with it is valid.</p>

Action to enforce a lien on a lot for an assessment for tho improvement of a street in San Francisco, made under the statute of 1869-70, p. 890. The action was commenced on the 8th day of June, 1872. The contract for the improvement of the street was made on the 14th day of September, 1870; and the assessment was made and issued on the 19th day of February, 1872, and recorded on the 2d day of March, 1872, and became delinquent on the 1st day of April, 1872.

<p>Boottoabt Lines.—If two persons own adjoining tracts of land, and one of them erects a fence upon what he believes to be the boundary line between the tracts, and the fence is not on the true line, but is several inches on the adjoining tract, and the one building the fence holds adverse possession of the land of the other thus inclosed for several years, under the belief that the fence is on the true line, these facts do not make the line on which the fence is built the dividing line, nor make it the true line, and the one whose land is taken can recover it in ejectment.</p>

<p>Appeal from the District Court, Eighteenth Judicial District, County of San Diego.</p> <p>On the 17th of September, 1872, the defendant, by its president, employed Isaac Hartman, an attorney at law, to conduct legal proceedings in the courts for the condemnation of certain lands in the city of San Diego, for the use of the defendant, and agreed to pay him therefor the sum of one thousand dollars. Hartman entered upon the performance of the services and continued in the same until directed by the defendant to discontinue the proceedings. During ■, the rendition of the services the defendant had notice of the \ same, through its officers, who frequently conferred with / him in relation to the business. On the 13th of September, 1873, Hartman assigned his demand to the plaintiff, who brought this action to recover the same. The complaint contained a count on the special promise to pay one thousand dollars, and also averred that the services were worth that sum. The court found as a fact that the defendant agreed to pay one thousand dollars, but failed to find the value of the services, and rendered judgment for the plaintiff for the one thousand dollars. The defendant appealed from the judgment and from an order denying a new trial.</p>

<p>When Judgment is a Bab.—A judgment in favor of the defendant, in an action brought by one who claims to have been a pre-emptor, to have the patentee, whose right he contested in the land office, declared his trustee, is,a bar to another action between the same parties, when no new facts have arisen which change the legal relations of the parties.</p>

The complaint alleged that the defendant was sheriff and ex officio tax collector of the county of Mendocino; that between the 1st day of April and the 1st day of July, 1872, the assessor of Mendocino County assessed the property of the county, and set down and assessed and entered on his assessment-roll, “the property of the plaintiff, as follows: Beal estate, valued at............................$ 100 00 Improvements thereon.......................... 409 00 Money on…

The indictment charged Ismail Bomero, Creceucio Montez, and the defendants, with the crime of rape committed on the person of Delfina Leiva, on the 22d of November, 1875, at the county of Los Angeles. The prosecutrix, Delfina, was the only witness called for the people.

The defendant was charged in the indictment with having murdered Ah Jack. The evidence for the people proved the corpus delicti, but tended to show that the deceased was assaulted by Ah Sing, Ah Tou and Ah Him, and was killed by a pistol ball, and that the defendant had previously threatened to kill the deceased. The defendant’s testimony tended to show that the deceased was the assailant, and to disprove the evidence as to threats.

<p>Authobitx os' District Coukt,—The District Court has jurisdiction to make an order holding aceusecLpersons to answer to a criminal charge. Habeas Cobpus.—The questions, whether an order holding an accused iierson to answer on a criminal charge is erroneous, or was irregularly entered, cannot he considered on an application for the discharge of the accused on habeas corpus.</p>

The defendant was charged in the indictment with having been intrusted, in the county of San Joaquin, with a gold watch and chain by one Tyree, for her use, and with having, in said county, fraudulently embezzled and converted it to his own use, without the consent of said Tyree.

The defendant, John E. Green, pre-empted the northwest quarter of section fourteen, township eight south, of range five west, Mount Diablo meridian, lying in San Mateo County, containing one hundred imd sixty acres. On the 1st of November, 1867, he received a patent for the same from the United States. On the 29th day of January, 1868, he was residing on the land with his wife and family, and made and filed a declaration of homestead on the same.

The plaintiff was incorporated in 1869, for the purpose of constructing a gravel road in the county of San Joaquin, State of California, commencing at the east end or termini of the Stockton and Calaveras Gravel Road, and running thence along and upon the present county road,.in a northeasterly direction, to the town of Waterloo, in the said county of San Joaquin, being a distance of about six miles.

Between the first day of January, 1870, and the 9th day of March, 1870, Horace M. Whitmore and Russell Stevens were doing business as partners, under the firm name of The Garcia Flume and Mill Company, and employed the Miners’ Foundry and Machine Works Co-operative to manufacture for them certain machinery. The machinery was made and delivered at various times, and was of the value of two thousand six hundred and twenty-nine and seventy-three oneliundredths dollars.

The plaintiff claimed the northeast quarter of section twenty-nine, in township six south, range one west, Monte Diablo base and meridian, as a pre-emptor, and the Register and Receiver of the United States Land Office allowed him to enter and pay for it in 1866. In 1867 the Commissioner of the General Land Office directed the Register and Receiver to investigate the claim of the defendants as purchasers from the Mexican grantee, and to take the testimony of all parties.

On the 10th day of June, 1872, defendant Burrows entered into a contract in writing with the plaintiff to erect for him a dwelling-house in Sacramento and furnish the materials therefor. The plaintiff was to pay him five thousand two hundred dollars.

<p>A Public Cobpobation.—An act of the Legislature which requires the supervisors of a county, upon the petition of persons in the possession of more than one-half of the acres of any specified portion of the county, to erect such specified portion into a levee district for the purpose of reclaiming the same from overflow, and then provides the details by which the reclamation shall be effected, makes a levee district organized by the Board of Supervisors a corporation, and a public corporation, even if the act does not in terms declare it a corporation.</p> <p>Attack on Bight op Cobpobation to act as Such.—In such case, if the petition to the Board of Supervisors appears on-its face to be signed by persons owning a majority of acres, and the district is in fact exercising corporate powers, the validity of its corporate existence can be tested only by proceedings in behalf of the people, and it cannot be shown in a collateral action that persons owning a majority of acres did not sign the petition, and that the charter was therefore procured through fraud.</p> <p>Injunction to Besteain Collection on Tax.—An injunction will not be granted to restrain the collection of a tax, when it does not appear that the complainant would sustain irreparable injury, or the sale would cast a cloud on the title.</p> <p>Idem.—The above rule is applicable to an assessment for a local improvement as well as to a state and county tax.</p>

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

At the general election held in Monterey County on the first day of September, 1875, the -plaintiff and defendant were voted for for the office of recorder of the county. The Board of Supervisors canvassed the votes, and declared that the defendant had received 1016 votes, and the plaintiff 1015 votes.

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

<p>Appeal eeom Obdee denying a New Tbial.—To render an appeal from an order denying a new trial valid, hoth the notice of appeal and undertaking on appeal must he filed within sixty days after the order is made.</p>

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>On the 6th day of December, 1870, the plaintiff contracted with the Board of Education of the city and county of San Francisco to construct a school-house on a portion of Hamilton Square, in said city and county. The board failed to fulfill the contract on its part by not placing the plaintiff in the possession of the ground where the house was to be built, and he brought this action to recover damages for its failure to carry out the contract on its part. The Board of Supervisors had passed a resolution authorizing the Board of Education to use the portion of the square on which the school-house was to be built for that purpose. Hamilton Square is on that portion of said city and county covered by the Van Ness ordinance. The ordinance, and the act of the Legislature ratifying it, are to be found in the Statutes of 1858, pages 51 to 56. The plaintiff had judgment. The court, on motion of the defendant, granted a new trial, and the plaintiff appealed from the order granting a new trial.</p>

Action to recover damages for speaking slanderous words. The complaint alleged that the defendant, in the presence of third persons, called the female plaintiff a damned thief and a damned whore, and that, at the time of speaking the words, the female plaintiff “sustained a good name and character among her neighbors and acquaintances for moral worth, honesty, virtue, and integrity.” The plaintiff obtained the verdict of a jury and had judgment in his favor.

<p>Mechanics’ Liens.—If the owner of a building which is being erected makes payments to the contractor in good faith before receiving notice that a material-man claims a lien for material furnished the contractor, such material-man cannot enforce his lien except for the balance, if any, due the contractor on the contract.</p> <p>InEM.—The amendments to the Code of Civil Procedure concerning liens of mechanics and material-men, adopted in 1874, have not changed the above rule.</p>

<p>Sams op Land Bounded on a Street.—A deed which describes the land conveyed as bounded by, upon, or along a street, conveys the land to the center of the street.</p>

<p>Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.</p> <p>On the 6th day of September, 1872, the plaintiff Drew purchased at Omaha, from the agent of the Union Pacific Eailroad Company, a second-class ticket to San Francisco, for the sum of $80, being $20 less than the regular rate. In consideration of this reduced rate, plaintiff accepted a ticket which is in form and words as follows:</p> <p> </p> <p>He then, the same day, proceeded on a regular train of the Union Pacific Eailroad towards Ogden. Shortly after leaving Omaha the conductor came along, took up the ticket, as was the usual custom, and gave plaintiff, in lieu of it, another ticket or check, in form and words as follows:</p> <p> </p> <p>The date indicated and punched in the margin was the 6th day of September, 1872.</p> <p>When the plaintiff reached Ogden, the conductor of the train to Sacramento told him, in response to a question, that he could go to Salt Lake and stay a week, but that he had better be back inside of a week. Thereupon he went to Salt Lake and was back at Ogden in two days. He then proceeded on the Central Pacific Bailroad to Sacramento, remained over there one night, and the following day, September 13, 1872, took passage on the train going to San Francisco. Before reaching Brighton station, the conductor came around, looked at his ticket, told plaintiff it had expired, and demanded the usual fare to San Francisco. Plaintiff refused to pay, and when Brighton was reached, the conductor again demanded the fare, and upon the further refusal to pay it, told plaintiff he must leave the train. Plaintiff refusing to pay or leave,' the conductor picked up his traveling bag, carried it to and left it on the station platform, the plaintiff following, and the train went on, leaving plaintiff. Brighton is five miles distant from Sacramento.</p> <p>This was an action to recover damages for being removed from the train. The plaintiff had judgment, and the defendant appealed from the judgment and from an order denying a new trial.</p>

<p>Effect of Decbeis in Paetition.—If one of several tenants in common gives a lease of a portion of the common property, with an agreement to receive a portion of the crop for the rent, ancl after the lease is made a suit for partition is commenced, and a decree of partition is entered in which the leased land is assigned to another of the tenants in common, the decree does not pass to the latter the portion of the crop to be received as rent, unless it is harvested before the decree is entered.</p> <p>Judicial Notice.—Courts will take judicial notice of the time of harvest in the counties where they preside.</p>

Henry Melius died intestate, in the county of Los Angeles, on the 26th day of December, 1860, leaving as his heirs, his widow, Anita F. Melius, and six children. One of the children, Henry Melius, Jr., died in May, 1871. The widow was appointed administratrix of the estate, but, prior to November 30, 1861, she married the defendant Trudel, and on the last-named day the defendant became administrator.

The complaint, filed May 23, 1874, alleged that the defendant, Jose de Arnaz, at the present county of Los Angeles, in the year 1847, intermarried with Merced Abila; that said Jose had no property of his own, real or personal; that in 1848, or 1849, said Merced acquired by inheritance and gift from her uncle, Antonio Ygnacio Abila, and from other relatives, as her separate property, six hundred head of cattle, three hundred horses, ten mules, ten oxen, and four thousand…

<p>Effect of Dkcbee in Pabtition on Bjsnt;s.—If one of several tenants in common leases a portion of the common property to a tenant, and after the lease is made suit for partition is commenced and a decree entered which assigns to another of the tenants in common the land leased, the decree does not pass to the latter the rent of the leased land unless such rent falls due after the decree is made.</p>

<p>Application to the Supreme Court for writ of prohibition.</p> <p>Jacob C. Beicleman died on the eighth day of July, 1865, seized of a large amount of real estate in the city and county of San Francisco, leaving a will in which he nominated Samuel H. Parker executor without bonds, with direction to the executor to sell, within one year, all said real estate except such portions as were by the will given, devised, and bequeathed, in trust, for the benefit of the testator’s niece and nephew, Katie and Willie Ketler. The testator, in said will, made several specific bequests of money, and then devised to the plaintiff, Williams, $20,000 in money, proceeds of the sale, in trust for his said nephew and niece, to be put out at interest, and the interest to be expended for their education and support until the said Willie arrived at his majority, and then to be divided between them; and also devised certain lots to said Williams in trust for said Willie and Katie, and the one-half of all the remainder of his property to be held also in trust for said Willie and Katie. The testator also devised to said Williams $20,000, to be in like manner held and used in trust for the testator’s sister, Alice C. Conroy, and her children and their descendants, and one-half of all the remainder of his property to be likewise held in trust for said Alice and her children and their descendants. The will provided that the trustee should not give bonds. Said Katie married one Kidwell after the death of the testator, and died in 1871, leaving three children. Said Alice C. Conroy died after the publication of the will, but before the death of the testator, leaving four children. One of the last-named children, Clara, also married and had, at the time this suit was tried, four children. The will was probated and the plaintiff accepted of the trust,' and entered upon the discharge of its duties. Parker, the executor, received letters testamentary, and died in 1866, whereupon William K. Satterlee and John W. Brummagim were appointed administrators with the will annexed. Satterlee died in December, 1866, and Brummagim became sole administrator. The administrator sold the real estate on the twenty-fourth day of July, 1867, at auction, for the sum of §540,886, one-fourth in cash, one-fourth payable in one year, one-fourth payable in two years, and one-fourth payable in three 3'ears, deferred payments bearing interest at eight per cent, per annum. The trustee received from the administrator, proceeds of the estate, between the thirty-first day of December,- 1866, and the tenth day of October, 1870, §289,899.75, of which §255,183.35 was a part of the principal sums realized at the sale, $33,605.10 was interest which had been received on deferred payments, and $1,111.30 rvas rent of real estate which had been specifically devised to the plaintiff, in trust for said Willie and Katie Ketler. The plaintiff also received from said rents the further sum of $13,362.48, of which he expended for taxes and repairs on the property the sum of $3,314.88. The plaintiff also received certain other sums for rents of property specifically devised, and paid out other sums for repairs and taxes, and the net amount of rents received by him as trustee from the property specifically devised to said Ketlers was $9,298.40. The plaintiff did not separate nor keep in separate funds the two sums of money received on the two trusts created in favor of the Ketlers and Mrs. Conroy and her descendants, and mixed the trust funds with his own, and deposited them in a bank in his own name. The plaintiff did not put the two sums of $20,000 each out at interest, as he was required to do by the will, nor did he put any of the trust money out at interest, although he could, within thirty days after its receipt, have invested the money on mortgage security at eight per cent, per annum.</p> <p>On the sixth day of October, 1870, the plaintiff Williams commenced an action in said court against the cestuis que trust, and in his complaint alleged that he had performed valuable services for the estate, and had faithfully discharged his duties as trustee, and asked that a reasonable compensation be allowed him out of the trust fund, and that an account be taken, and a new trustee be appointed, and that he be at liberty to assign and convey to his successor all property held by him in trust. The complaint did not state how much money he had received or paid out. On the fifteenth day of December, 1870, the court accepted the resignation of Williams as trustee, and appointed Joseph A. Donohue and Joseph G-. Eastland in his place. The court, in taking the account, charged the trustee with $48,428.45 as interest which he ought to have earned and received by putting the trust money in his hands out at interest, and found that there remained due by the plaintiff as trustee, on the twenty-seventh day of August, 1873, the sum of $110,331.12, and directed that upon the payment of said sum to the clerk of the court, he should be discharged from all liability; and also made an order, on the twelfth day of November, 1875, that that he forthwith pay said sum to the clerk of the court. The trustee having failed to pay the money to the clerk, the court, on the nineteenth day of February, 1876, made an order that he show cause on the twenty-fifth day of February, 1876, why he should not be adjudged guilty of contempt in disobeying the order to pay the money to the clerk. The trustee, on the first day of March, 1876, petitioned the supreme court for a writ of prohibition to prevent the defendant Dwinelle, as judge, from adjudging him guilty of contempt. The defendant demurred to the petition.</p>

Ejectment to recover the undivided one-half of fifty-vara lot one hundred and twenty-eight, in San Francisco. Held: in pursuance of an order of your honorable court; the process verbal is herewith annexed and made part hereof, in which, after having deliberated concerning the interests of the minors, they have advised in relation thereto.

Ejectment brought on the sixth day of December, 1869, to recover a part of the Tolinas or Armijo rancho, situated in Solano county. Juan B. Alvarado, Governor of California, on the third day of March, 1840, granted said rancho to Jose Francisco Armijo. On the seventeenth day of March, 1846, said Jose conveyed the rancho to his son, Antonio Maria Armijo. The son died after April 22, 1850, leaving a widow and seven children.

<p>Ordee of Intboducing Evidence.'—The mere order in which the evidence is to be introduced rests in the discretion of the court trying the cause.</p> <p>Evidence on Tbial foe Abson.—On a trial for arson, the prosecution may prove that the prisoner had attempted to set fire to the house on a day I>revious to the burning alleged in the indictment, for the purpose of showing the intent of the prisoner in subsequently setting fire to the house.</p> <p>Vabiance between Proofs and Indictment.—If, in an indictment for arson, the building burned is described as the property of Pearce and Bensley, and as having been formerly occupied by Yanarsdale & Go., and the proof is that Yanarsdale & Co. did occupy it, but fails to show that Pearce and Bensley owned it, there is no material variance between the indictment and the proof as to the identity of the property.</p> <p>New Trial and Bill of Exceptions in Criminal Oase.—The fact that the sheriff, in the absence of the judge, adjourned the court at ten a.m., instead of waiting till twelve m., is not ground for a new trial in a criminal case, nor can it be incorporated into a bill of exceptions.</p>

<p>Fboebbtx hot Subject to Taxation. —Neither promissory notes, solvent debts, nor mortgages, are subjects of taxation; and if assessed along with other property and the tax-collector can separate the legal from the illegal portion of the tax, and the legal portion is tendered him and he refuses to receive it, and the whole tax is then paid under protest and to prevent a sale of the property, the illegal portion may be recovered back.</p>

<p>Execution of Contbact.—If two parties execute a bond as sureties for a third, conditioned that he will fulfill a contract he has made with a fourth, to erect a building within a given time, and a written agreement is afterwards drawn up to be executed by the four, extending the time to fulfill the contract, and such agreement is signed by three only, it is not binding on either.</p>

The act of' 1868, under which District 108 was formed, provides (section 32), that petitioners for the formation of a “Reclamation District,” after the approval of their petition, have power ‘ ‘ to ordain and establish such 'By-Laws’ as they shall deem necessary to effect the work of reclamation and keep the same in repair.” The statute then provides that the “By-Laws” shall be signed by the petitioners and recorded in the same book, immediately following the petition for…

On the fourth day of February, 1860, a patent was issued by the United States to Juan Bolcoff and Francisco Bolcoff, for a Mexican grant, called the Befugio Bancho, lying in Santa Cruz county. The patent was based on a grant made by the Mexican government to Jose Bolcoff, the father of said Juan and Francisco, in the year 1840.

The five hundred and eighteenth section of the Civil Code imposes a penalty of twenty-five dollars upon a toll gatherer who demands or receives more toll than he is authorized to take.

Ejectment to recover the S. E. ¼ of Sec. 24, T. 3 S., R. 5 E., Mount Diablo meridian. The defendant, Curtis Brigham, in his cross-complaint, alleged that he settled on the land as a pre-emptor on the tenth day of May, 1868, and filed his declaratory statement on the eighth day of August, 1868.

<p>Challenge to Jtjeoe.—The action of the court in a criminal case in allowing a challenge to a juror for implied 'bias, is not the subject of an exception.</p> <p>Punishment of Paety convicted of Mubdbe.— Since the passage of the statute permitting jurors, when they find the defendant guilty of murder in the first degree, to limit the penalty to imprisonment for life, instructions of the court calculated to influence the jury upon the question of punishment should be pertinent and have reference to the evidence, and the propriety of such instructions should be governed by the same rules of law which are applied to instructions upon the principal issue.</p> <p>Instecctions to Juey in Cbiminal Case.—Instructions to a jury in a criminal case must be predicated upon some evidence given before the jury.</p> <p>Pbbsumptions in Cbiminal Case.—On a trial for murder, guilty knowledge on the part of the prisoner that the deceased was unarmed, cannot be assumed to exist, but must be affirmatively shown.</p>

<p>A Tax on Business.—A license fee or charge for the transaction of any business is a tax within the meaning of the term “tax ” as employed in section 6 of Article VI of the Constitution, and in section 838 of the Code of Civil Procedure.</p> <p>Jueisdiction 03? Polick Coubts.—A Police Court of a city has jurisdiction of actions for the violation of an ordinance of the city.</p> <p>Action to Recoveb Tax.—In an action brought in a Police Court to recover a license tax for the transaction of business, if the answer denies the legality of the lax, the Police Oonrt cannot try the cause, but must transfer it to the District Court</p>

<p>Proceedings against Garnishee.—When the garnishee denies that he is indebted to the judgment debtor, neither the referee nor the court has power to compel him to pay to the sheriff the amount of his alleged indebtedness, but the court may enter an order authorizing the judgment creditor to institute an action against the garnishee to determine the question of indebtedness.</p>

The defendant was a banking corporation organized under the laws of the United States. The action was brought to recover a license tax of one hundred dollars per quarter, which it was alleged the defendant had failed to pay for five quarters.

<p>Finding of Facts.—The finding of facts must support the judgment, and must respond to all material issues.</p> <p>Pbocbedings on Beveesad of Judgment.—If the judgment is reversed for a failure to find on all the issues, the court may, when the remittitur goes down, amend its findings without a new trial, if ft can do so on the evidence already taken; otherwise it may proceed to hear evidence upon the point, after notice to the parties.</p> <p>Estopped by Judgment.—If, in an action for damages for a trespass on land, the plaintiff relies for title upon certificates of purchase issued by the State, and the defendant puts in issue the plaintiff’s title, and the plaintiff recovers judgment, the judgment is not a bar to an action brought by the defendant against the plaintiff to determine which of the parties has the better right to purchase the land from the State.</p>

Action to recover $5,324.40, being a tax assessed and levied in the year 1873, on $300,000, the capital stock of the defendant, and on $6,000, solvent debts secured by mortgage, owned by the defendant. The court rendered judgment against the defendant for the tax on its capital stock. The defendant appealed.

The plaintiffs and others, and W. B. Bogers, Philip Boach, John Heinlen, Harvey Swicard, and Charles H. Mitchell, were owners of the rancho Santa Teresa in the county of Santa Clara, and, on the 25th day of August, 1876, commenced an action for the partition of the rancho.

<p>Appeal from the County Court, County of Tehama.</p> <p>H. A. Mayhew and C. P. Brainard were candidates for the office of county judge, at the judicial election held in the county of Tehama, on the twentieth day of October, 1875. Mayhew, by the official canvass, was declared elected. Misch, an elector in the county, filed a petition contesting his right to the office, on the ground that enough illegal votes had been cast for him, which, if deducted from his vote as declared, would elect Brainard. The defendant, in his answer, also set up that illegal votes were cast for the contestant. The trial commenced on the tenth day of December. After the contestant had rested, the defendant offered in evidence a written list of the number of illegal votes, and by whom given, which defendant intended to prove, and at the same time proved that he delivered a copy of said list to the contestant on the seventh day of December, 1875. The contestant objected to the said list being received in evidence, upon the ground that the copy thereof was not delivered to the contestant at least three days before the trial.</p> <p>The court sustained the objection, and refused to allow the said list to be read in evidence. The defendant then called several witnesses, and offered to prove by each that illegal votes were cast for the contestant; but the court, on the objection of the contestant, ruled out the evidence, on the ground that no notice of the number of illegal votes and by whom given had been served on contestant. Section 1116 of the Code of Civil Procedure provides that, in such cases, neither party shall give evidence of illegal votes, unless he gives his adversary, at least three days before the trial, a written list of the number of illegal votes he expects to prove, and by whom given. Section 12 of the same codo provides that the time in which any act provided by law is to be done is computed by excluding the first day and including the last, etc.</p> <p>The contestant had judgment and the defendant appealed.</p>

After the Supreme Court of the United States had rejected the Suscol grant, Congress, on the third day of March, 1863, passed an act for the relief of the purchasers under Vallejo and his assigns of portions of the said Suscol raucho, entitled “An act to grant the right of pre-emption to certain purchasers on the Suscol rancho, in the State of California,” by the terms of which bona fide purchasers from said Vallejo or his assigns were permitted to enter and purchase…

<p>Assignment of a Chose in Action.—If a creditor assigns and delivers to a debtor, to satisfy a debt due the latter, a chose in action of greater value than the debt, and the assignment is made in good faith, and there is no fraud, the assignment vests in the assignee the right to receive for his own use the entire proceeds of the chose in action, as against the creditors of the assignor.</p>

<p>Appeal from the District Court, Sixth Judicial District, County of Sacramento.</p> <p>The plaintiff was the owner of the west one-fourth of lot No. 3, between K and L and 8th and 9th streets, city of Sacramento, and had a brick building on the same, eighty feet in depth from the street. The wall on the east side of the building and lot extended one story below the surface of the ground and two stories above, and, at the surface and below, extended to the plaintiff’s east line. Above the surface of the ground and on the north end the wall, near its top, inclined over the defendant’s land about four inches, and in the middle of the wall, where the joists of the second story entered it, it bulged out about eight inches over the defendant’s lot. The defendant, Woods, in 1874, erected a tliree-story brick building on his lot, and used for the wall on the line between the two lots the plaintiff’s east wall by cutting holes into it four inches deep and inserting joists into the same. Where the plaintiff’s Avail ceased, at the top of the second story, the defendant continued it up one story higher, and rested his rafters in this new Avail. The plaintiff commenced this action to obtain a decree declaring that the defendant had no right to use the Avail, and to compel him to cease using it and remove his joists, and to obtain a perpetual injunction. The court gave judgment declaring the defendants’ use of the Avail wrongful, and restraining them from the future use of it, and requiring them to restore the wall to its original condition, and if they failed to do so authorizing the plaintiff to make the restoration.</p> <p>The defendant appealed.</p> <p>The defendants other than Woods were his tenants.</p>

On and prior to June 29, 1875, L. Raffour was the proprietor of and owned the furniture in the Occidental Hotel, at Santa Barbara. On the first day of June, 1874, he gave the plaintiff Horn a mortgage on the property to secure a debt of $2000, and, on the twenty-ninth of June, he gave the plaintiff a bill of sale of the property.

The complaint alleged that the plaintiff did not safely keep, etc., the sum of $20,142.76.

<p>Action to enjoin threatened Trespasses.—An action to enjoin the commission of trespasses on land cannot be maintained when the plaintiff is totally disseised and the defendant is in the adverse possession of the land.</p>

Onthesixteenth day of January,1869, the defendantsformed a partnership in the manufacture of wine, to continue until the first day of January, 1873. The business was conducted under the name of White alone, and McMullen and Round-tree were secret partners. In August, 1870, the plaintiff sold White wine casks, and in August, 1871, sold him other wine casks.

<p>Unlawful Detainer.—A landlord, who is in the possession of land through his tenant, is not an occupant of the same within the meaning of the second subdivision of Sec. 1160 of the Code of Civil Procedure in relation to unlawful detainers, and cannot maintain an action for an unlawful detainer after a demand made to surrender possession.</p> <p>Unlawful Entry and Detainer.—The person whose occupancy of land is through his servants, and who has never been in possession, cannot, maintain an action for an unlawful entry, made during his temporary absence, and a refusal to surrender possession.</p>

Action to determine a contest arising in the office of the Surveyor-General of this State concerning the right to purchase certain swamp lands in the county of Plumas, described as the west half and southeast quarter of southwest quarter of section twenty-nine (29); the north half of the northwest quarter, the west half of the northeast quarter, and the east half of the southeast quarter of section thirty-two; and the west half of the southwest quarter of section…

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

<p>Appeal from the District Court, Sixteenth-Judicial District, Count}' of Kern.</p> <p>On the seventh day of April, 1875, Lesser Hirslifeld recovered judgment in said court against Margaret J. Bnrdete, for the sum of $805.75. An execution was issued and placed in the hands of the defendant, who ivas sheriff of Kern county, and he, on the seventeenth day of May following, sold certain real estate by virtue of the same, and Hirshfeld became the purchaser at $723.40. Hirslifeld, on the eighth day of December, 1875, sold and assigned the sheriff’s certificate of sale to the plaintiff, Yoakum, who, on the same day, demanded of the defendant a sheriff’s deed of the property. The sheriff refused to execute the deed for the reason that the defendant in the execution had, on the seventeenth day of November, 1875, redeemed the property, and he had accepted the redemption money and given her a certificate of redemption. The plaintiff claimed that the redemption was ineffectual, because the defendant in the execution had, after the trial of the cause in which the judgment was rendered, and in December, 1874, conveyed the property sold on the execution to B. Brundage and Henry S. Moore. This was an application for a writ of mandate to compel the sheriff to execute and deliver a deed. The statute permits real property sold on execution to be redeemed:</p> <p>1. By “the judgment debtor or his successor in interest .in the whole or any part of the property;”</p> <p>2. By “a creditor having a lien by judgment or mortgage on the property sold or on some share or part thereof, subsequent to that on“which the property was sold.”</p> <p>The persons mentioned above iti the second paragraph are termed redemptioners.</p> <p>The statute provides that a redemptioner must produce to the officer or person from whom he seéks to redeem, and serve, with his notice to the sheriff, a copy of the docket of the judgment under which he claims the right to redeem, certified by the clerk of the court. The defendant Burdete, 'Avhen she redeemed, did not produce such copy. The court rendered judgment for the defendant, and the plaintiff appealed.</p>

Action of forcible detainer to recover possession of the S J of Section 11, the SJ of S.E J, the N.Wi- of S.EI-, and and the N.E£ of Section 10, Township 19, N. Range 4 W., Mount Diablo meridian, lying in Colusa county.

Action to obtain a divorce. The complaint averred “that during more than a year last past defendant has treated her Avith Avanton and willful neglect, in that by reason of profligacy and dissipation he has failed to provide for her the common necessaries of life.” The answer denied the allegation.

<p>Appeal from the District Court, Fifth Judicial District, County of San Joaquin.</p> <p>Ejectment to recover an undivided one-half of a tract of land, sold by the State to William K. Melville, as swamp land. Melville paid for the land and received a certificate of purchase on the thirtieth day of August, 1858. In February, 1859, Melville entered into a contract in writing by which he sold to one Ward his interest in the land acquired by the certificate of purchase. Ward took possession, but the contract was not acknowledged or recorded. On the twenty-sixth of April following, Melville, for a valuable consideration, executed, acknowledged, and delivered to Ward an assignment of the certificate of purchase, and authorized Ward to receive a patent for the land. On the fifteenth day of November, 1859, Ward sold and assigned to A. J. Sanor and the plaintiff, the certificate of purchase and land, and acknowledged the same so as to entitle it to record, and, on the same day, the certificate and both assignments were recorded. On the twenty-fifth of March, 1859, W. E. Cocke recovered a judgment in the District Court of said county against Melville, for $1072.26, which was docketed on the same day. On the twenty-second day of June, 1859, the sheriff sold the land under the judgment; Cocke became the purchaser, and on the seventh day of January, 1860, received a sheriff’s deed, which was recorded the same day. On'the twenty-fourth day of September, 1860, Cocke sold and conveyed to Sanor the entire tract of land, and Sanor, on the third day of December, 1864, conveyed the same to defendant Johnson. Sanor, for four years before his sale to Johnson, had been in the sole occupation of the premises, and at the time he sold had a substantial inclosure around the same. Johnson, from the time of his purchase, remained in such possession as is explained in the opinion. The suit was commenced in October, 1874. The defendant, in his answer, set up title in himself to the whole of the demanded premises, and pleaded the statute of limitations. The court rendered judgment for the defendant, and the plaintiff appealed.</p>

The plaintiff was Secretary of State from the first Monday in September, 1871, to the first Monday in December, 1875. The Political Code prescribed the duties of the Secretary of State, but in addition thereto, the Code created a Board of Examiners, consisting of the Governor, Attorney-General, and Secretary of State, whose duty it was tó examine and allow or reject all claims against the State.

Indictment for assault with intent to commit murder, alleged to have been committed on the seventeenth day of July, 1875, by shooting at Andrew H. Foster. The prosecutor claimed a tract of railroad land and the defendant set up a claim to a portion of the same. The prosecutor was plowing, and the defendant was planting watermelon seeds on the same. The prosecutor came near the defendant and a discussion arose between them about the land.

<p>Sheriff’s Sale of Land.—If a sheriff, by virtue of an execution, levies on and advertises for sale several separate tracts of land, he must sell the tracts separately and not in mass.</p> <p>Setting aside Sheriff’s Sale.—If a sheriff, on an execution, sells separate tracts of land in mass, the creditor has his remedy by motion to set aside the sale, even if a stranger becomes the purchaser and pays the money for the property.</p>

<p>Appeal from the District Court, Seventh Judicial District, County of Solano.</p> <p>The -defendants built the schooner Joseph Perkins, at the city of Vallejo, said county. They were associated under the name of the “Co-operative Ship Building Association,” and commenced constructing the vessel in April, 1874, and completed it in January, 1875. While the vessel was being built, the association gave their laborers certificates, of which the following was the form:</p> <p>“Vallejo, Cal., July 11, 1874.</p> <p>“•This certifies that Chas. Booth is entitled to receive fifteen dollars and 75-100, in payment for three and a half days work in the employ of the Vallejo Co-operative Ship Building Association, when the three-masted schooner now in course of construction by said association is sold. This certificate when properly indorsed is payable to bearer.</p> <p>“Joseph Perkins, President.</p> <p>“Orín 0. Junkins, Secretary.”</p> <p>The plaintiff purchased a large number of these certificates, and in March, 1875, brought this action to recover judgment in gold coin on them. The defendants-claimed that the certificates were not due, as the vessel was not yet sold. The court found that the defendants did not use reasonable diligence in the construction of the vessel, and did not make an honest effort to sell it at its market value, and rendered judgment, in gold coin, for the plaintiff. The defendant appealed.</p>

<p>Appeal from the District Court, Nineteenth Judicial District, City and Couuty of San Francisco.</p> <p>Ejectment to recover a lot on Fifteenth street, between Valencia and Guererro streets, city and county of San Francisco. The defendant Garrissino was defaulted for failure to answer. McDermott intervened, and i_i his pleading, called an answer in the transcript, he denies the title of both the plaintiff and defendant to a part of the demanded premises, and avers that he is, and that he and his predecessors in interest have been, for moro than five years, in the adverse possession of such part of the demanded premises. The plaintiff objected to the intervention, but the court overruled the objection, and, after a trial, rendered judgment for the plaintiff against the defendant for that part of the demanded premises not claimed by the iutervenor, and in favor of the intervenor for his costs. The plaintiff appealed.</p>

<p>Appeal from the District Court, Nineteenth Judicial District, City and County of San Francisco.</p> <p>Bill filed in Nineteenth District Court to enjoin the prosecution of two suits pending in the Fourth District Court, city and county of San Francisco, and one pending in the Nineteenth District. Injunction granted on bill, and motion on bill and answer to dissolve. Motion denied, and defendants appealed from the order.</p>

<p>Appeal from the District Court, Third Judicial District, City and County of San Francisco.</p> <p>Action to recover a street assessment for improving Shot-well street from Fourteenth street to Eighteenth street. The following was the resolution of intention adopted by the Board of Supervisors: “That sidewalks be constructed on Shotwell street from Fourteenth to Eighteenth street, where not already constructed; and that the sidewalks thereon be reconstructed where necessary.”</p> <p>The court rendered judgment for the plaintiff. The. defendant appealed. The other facts are stated in the opinion.</p>

Ansyl Smith died April 25, 1875, leaving a will. Letters testamentary were issued to A. Madan. February 3, he filed a petition for the sale of the real estate. The petition was heard March 11, 1876, and there being no objection the court made an order of sale. The order does not recite that the condition of the land was proved on the trial, nor does it appear in the record that it was proved. The executor made the sale on the 28th of April, 1876.

<p>Place or Teial.—In actions to enforce the lien of a tax, the county, where the property on which the lien exists is situated is the place of trial, rather than that where the defendant resides.</p> <p>Change or Venue.—In a motion to change the venue for the convenience of witnesses, if the plaintiff’s evidence is in the county where tlie suit is brought, and the defendant fails to show that his evidence is not accessible in said county, the motion should he denied.</p>

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

<p>Appeal from the District Court, Fifth Judicial District, County of San Joaquin.</p> <p>The facts of this case are given in Hewlett v. Owens et al. (50 Cal. 475). After the remittitur went down, the plaintiffs move for leave to file an amended complaint, in which Hoerl was made a joint defendant, and which stated a cause of action in trover against the three defendants. The court denied the motion. The plaintiffs then moved for leave to file an amended complaint, stating a cause of action in trover against the original defendants. The court also denied this motion. The cause was then tried, and judgment was- rendered for the defendants. The plaintiffs appealed.</p>

Action on the following note: “§708.90. “Nine months after date, for value received, I promise to pay to J. C. Merithew, or order, the sum of seven hundred and eight and 90-100 dollars in United States gold coin, together with interest thereon at the rate of one and one-half per cent, per month from the date hereof until paid, said interest payable quarter yearly. “(Signed) Andrew Christensen. “(Dated) San Francisco, Oct. 17, 1873.” ; ■ The payor gave the payee a mortgage on…

<p>Deliveby of Shebiff’s Deed.—A sheriff’s deed takes effect from the time of its actual delivery, and the execution of the deed by the sheriff, and information given by him to the grantee that the deed is ready for him, do not amount to a delivery.</p> <p>Limitation of Actions.—The Statute of Limitations does not commence running against a purchaser of land at a sheriff’s sale until the sheriff’s deed has been delivered to the purchaser.</p>

The plaintiff contracted in writing to plow 1280 acres of land for the defendant for two dollars per acre, payment to be made when the land was all plowed. The plowing was to be done in January, February, and March, 1874. The plaintiff only plowed 750 of the 1280 acres, and then brought suit to recover-for what he had plowed. He reeovered judgment, and the defendant appealed. The other facts are stated in the opinion.

<p>Appeal from the District Court, First Judicial District, County of Ventura,.</p> <p>On the 4th day of November, 1873, the requisite number of freeholders of the San Buena Ventura and Saticoy road districts, County of Ventura, petitioned the Board of Supervisors to open a public road from the town of San Buena Ventura to the western line of the rancho Santa Paula y Saticoy. The proposed road passed over the land of the. defendant Thompson, taking ten acres of tké same.' The usual proceedings were had before the board, and the value of his land was assessed at three hundred dollars. The money was tendered to Thompson on the 10th day of June,. 1874, but he refused to receive it. Thereupon this action was commenced to condemn the land. The complaint is signed by B. T. and W. T. Williams, as attorneys for the defendant, and contains no averment that it was filed by authority of the district attorney or road commissioner. The complaint does not aver, nor was it found that the Board of Supervisors made an order causing the suit to be instituted. The court found the value of defendant’s land to be thirty-five dollars per acre, and that the road passed over his land for a distance of one and a half miles, taking lO/oó acres, and that the cost of fencing on both sides of the road would be one thousand and nine hundred dollars. The court further found that the proposed road would be a benefit to the defendant and enhance his land to an amount more than equal to any damage which he would sustain by reason' of opening the road. As a conclusion of law, the court found that the plaintiff was entitled to an easement over the land for the road. Judgment was thereupon rendered, granting the easement without any compensation to Thompson, and that he pay the costs. He appealed from the judgment.</p> <p>The Political Code prescribes the manner of instituting and carrying on proceedings to condemn lands for public highways. A petition must be presented to the Board of Supervisors by a certain number of freeholders. The Board must proceed to have the survey made and appoint viewers, who must report to the board, among other things, the damage to the owner of the land over which the road passes. The board must then ascertain and declare the amount of damage awarded to each non-consenting landowner. If any person to whom damages are awarded refuses to accept the same the board must, by order, direct proceedings to procure the right of way to be instituted by the Commissioner of Highways or District Attorney of the county, in the manner provided in the ■ Code of Civil Procedure. The Code of Civil Procedure requires actions to condemn private property for a public use to be brought in the District Court, and requires the court to assess the value of' the property sought to be condemned, and, if it constitutes a part of a larger parcel, the damages which will accrue to the portion not taken, and how much the part not taken will be benefited, and then provides that if the benefit' equals the damages no compensation shall be allowed except the value of the portion taken; but if the benefit shall be less than the damages, the former shall be deducted from the latter, and the remainder shall be the only damages allowed, in addition to the value.</p>

<p>Appeal from the District Court, Sixth Judicial District, County of Sacramento.</p> <p>Action to recover from the State the plaintiff’s salary as a member of the Board of Examiners, accruing from the first day of July, 1874, to the first Monday in December, 1875. The facts of this case are the same as in Melone v. The State, ante, p. 549.</p>

<p>'Becitals in Tax Deed.—In the absence of a statute declaring that the recitals in a tax deed shall convey the title to the land therein described, and shall be prima facie evidence of title, the burden is cast on the party claiming under the deed of proving that the recitals are true.</p>

<p>Appeal from the District Court, Seventeenth Judicial District, County of Los Angeles.</p> <p>Action to recover on a written contract to pay for wool sold. One of the defenses was that the wool was not in a merchantable condition. The trial was in Los Angeles. On the trial, the plaintiff offered to read the evidence of one Yale, as taken down by the reporter on a former trial of the same case. The defendant objected because it had not been shown that the witness was deceased or out of the jurisdiction of the court. Thereupon the plaintiff proved that the witness then lived in San Jacinto, in the county of San Bernardino, whereupon the court overruled the objection. The reporter’s notes were then read. The plaintiff recovered judgment, and the defendants appealed.</p> <p>. Subdivision 8, of section 1870, of the Code of Civil Procedure, provides that evidence may be given upon the trial of the testimony of a witness given in a former action between the same parties, relating to the same matter, when the witness has died, or is out of the jurisdiction, or is unable to testify.</p>

The plaintiff had a' street- railroad on which it was running cars for the carriage of passengers, extending along the centre of Market street, San Francisco. The road was constructed under a permission granted in an act of the Legislature passed April 6, 1857 (Stats. 1857, p. 178), and acts amendatory thereof passed in 1858, 1861, and 1863.

<p>■ Damages Caused by a Tobtv—If a party leases to another a cellar for storing goods, and represents that it is dry and safe from water, the fact that its walls are defectively constructed, so that, as the result of a rainstorm and high tide, the water is backed up in a sewer and forced into the cellar; and the goods are injured, do not give the lessee a cause of action in tort to recover the damages.</p>

<p>Pbesumptions of Fact.—Presumptions of fact fall within the exclusive province of a jury, and it is therefore erroneous for the court to charge a jury that the existence of a fact developed in the evidence raises a reasonable presumption of the existence of another fact.</p>

<p>Appeal from the District Court, Seventeenth Judicial District, County of Los Angeles.</p> <p>In June, 1846, the Mexican nation granted to Juan and José Loreto Sepulveda, the rancho Los Palos Verdes, lying in the present county of Los Angeles. Said Juan and José Loreto, in 1852, in Avriting, declared that they held the title in trust and for the use of José Diego Sepulveda, Ygnacio Sepulveda, and Teresa Sepulveda, jointly Avith themselves, and that each of the five were entitled to equal shares in the rancho. The grant was confirmed on the tenth day of December-, 1866, but no patent had been issued when this suit was tried. In 1844, said José Diego Sepulveda, and one Johnson, executed a deed of exchange, wherein J osé conveyed to J ohnson an undivided one-fifth of Los Palos Verdes, and Johnson conveyed to said José his interest in the rancho Yucaipa. Johnson took possession of the rancho Palos Verdes, and Sepulveda took possession of Yucaipa. This action was commenced in 1874, for a partition of the rancho Palos Verdes. The deed between Johnson and Sepulveda contained full covenants of warranty. José Diego Sepulveda was dead, and, on the trial, his heirs claimed that Johnson had acquired no interest in the Palos Verdes by the deed of exchange, because he did not own Yucaipa, and therefore Sepulveda got nothing by the deed. For the purpose of showing that Johnson'did not own Yucaipa, they offered in evidence the translation of the expediente of the rancho San Bernardino, another Spanish grant, with evidence that Yucaipa was within the boundaries of Ban Bernardino. The plaintiffs objected because not accompanied with the original expediente or a certified copy thereof. The original was on file in the office of the surveyor-general of the "United States for California. The court overruled the objection. The plaintiffs appealed.</p>

<p>Appeal from the District Court, Sixth Judicial District, County of Sacramento.</p> <p>On the 8th day of June, 1875, C. W. Clark and others presented a petition to the Board of Supervisors of the county of Saeramemto, representing that they were “the holders of certificates of purchase and other evidences of title representing more than one-half of that certain body of swamp and overflowed land situated in the county of Sacramento, bounded and described as follows.” Then followed a general description of the boundaries of the district. The petition then stated “that all of said body of land has been sold. That the number of acres in each tract, together with the names of the owners thereof, are as follows, viz.” Then followed a description of each tract of land, and, in this description, each tract of land was described by the number of its swamp-land survey—like this: “Tract composed of swamp surveys of Sacramento county, Numbers 11, 103, 119, 373, 436, 519, 643, 933, and part of 223, contains thirteen hundred and twenty acres, and is owned by O. W. Clark.” The petition also stated that “ the whole of said body of land is now embraced within and forms a part of Reclamation District Number Two (2), which District Number 2 was organized and formed prior to March twenty-eighth, eighteen hundred and sixty-eight.” The board, on the 17th of August, 1875, approved of the petition. The plaintiff obtained from the District Court a writ for the review of the order of the board, and the order was set aside on the return, because the petition did not state jurisdictional facts.</p> <p>The Board of Supervisors appealed.</p> <p>Section 3481 reads: “If the holders of certificates of purchase or patents for lands within any district formed prior to March twenty-eighth, eighteen hundred and sixty-eight, and in which the lands have not been reclaimed, desire to have their lands set off from such district, they must, in addition to the petition required in section 3446, show to the Board of Supervisors that their lands are capable of an independent reclamation.”</p> <p>Section 3446 is as follows (Amendments 1874, page 45): “Whenever the holders of title or evidence of title representing one-half or more of any body of swamp and overflowed, salt marsh, or tide lands, susceptible of one mode of reclamation desire to reclaim the same, they may present to the Board of Supervisors of the county in which the lands, or the greater part thereof, are situated, at a regular meeting of the board, a petition setting forth that they propose to form a district for the reclamation of the same, a description of the lands by legal subdivisions or other boundaries, the county in which they are situated, the number of acres in the proposed district, and in each tract, with the names (if known) of the owners thereof, and designating as unsold any lands not reduced to private ownership.”</p>

<p>Personal Property Affixed to Land.—An engine resting upon and fastened by bolts and nuts to timbers which are imbedded in the soil is a part of the realty.</p> <p>Idem.—A steam boiler secured by trestle-work imbedded in the soil and resting on and surrounded by mason-work of stone and mortar built on the ground, is a part of the realty.</p> <p>Personal Property Affixed to Publio Land.—One who purchases land from the United States becomes the owner of personal property affixed to the land by a third person while the land was a part of the publio domain.</p>

The defendant was charged by the indictment with having murdered Tee Ah Chin by stabbing him with a knife, on the tenth day-of December, 1875. The indictment was found in the County Court of the city and county of San Francisco, and was transmitted by the clerk to the District Court, Fifteenth Judicial District, for trial. There were, at the time, in the city and county of San Francisco, five judicial districts, each' having jurisdiction over the entire city and county.

<p>Instbhction to Jobv.on the Evidence.—The court should not instruct the jury upon controverted matters of fact, nor upon the weight of evidence.</p> <p>Effect of Evidence.—In an action for damages for failing to comply with an alleged contract to furnish freight for the plaintiff to haul with his teams, the fact that the defendant had taken a contract to haul freight for a third person, does not go to prove that the defendant had employed the plaintiff to do the hauling.</p>

<p>Liability of Railboad Company fob Damages.—Where a railroad track passes along a street, both the railroad trains and teams are entitled to the use of the street, and if horses are frightened by the appearance of the train or the ordinary noise of its passage, the railroad company is not liable for damages.</p> <p>Idem.—So if the cylinder-cocks are opened and the steam is blown off, and this is necessary in the prudent management of the engine, and the horses are frightened thereby, the railroad company is not liable for the damages.</p> <p>Vaeiance between Pboof and Complaint.—If the plaintiff claim» damages from a railroad by reason of the negligence of one of its employee», and the evidence of the plaintiff tends to show that the act of the omplo.i ee was willful and without the scope of his duty, the defendant must take advantage of it by motion for a nonsuit, or asking an instruction to the jury.</p>

<p>Appeal from the District Court, Sixth Judicial District, County of Sacramento.</p> <p>From 1868, up to 1872, *the plaintiff was a member of the board of supervisors of the county of Sacramento. The county was engaged in the excavation of a drainage canal through the low lands leading into the Sacramento river. The plaintiff, up to 1872, had -been in the habit of superintending the work on the canal, and had received pay from the county for his services. In the last-named year he presented a bill for $427, which was rejected by the board on the ground that he was a member of the board, and could not receive any pay for services, except his salary as supervisor, which was one hundred dollars per month. The legislature passed an act which was approved March 25, 1874, by which the board of supervisors was authorized and required, notwithstanding the lapse of legal time, to examine and act upon and allow or reject the claim of the plaintiff, and requiring the auditor, if the claim was allowed, to audit the same. The plaintiff, immediately after the passage of the act, presented his claim, and it was rejected on the fifth day of May. On the fifteenth day of June thereafter this suit was commenced. The court gave judgment for the plaintiff, and the defendant appealed.</p>

<p>Appeal from the District Court, Twentieth Judicial District, County of Santa Clara.</p> <p>The plaintiff recovered judgment and the defendant appealed. The o.ther facts are stated in the opinion.</p>

. The defendant, on the fourth day of March, 1872, was elected marshal of the city of Oakland, for two years, and, as marshal, was ex officio tax collector. Brooklyn, an incorporated town, joined Oakland on the south. On the first day of May, 1872, W. H. Hamilton was elected assessor of Brooklyn, and assessed the property of the town before the first Monday in August. The Board of Trustees of Brooklyn, on the seventh day of October, levied a tax for town purposes.

Ejectment brought November 21, 1871, to recover a tract of land known as the Lancho del Corte Madera de Novato, lying in Marin county. In March, 1853, Juan Martin owned the demanded premises, and he and his wife, Tomaso, had five children, to-wit, Mary (married to George Brewer), Josefa, Mary Victoria, Thomas, and Alexander.

<p>Witnesses in Action Against an Estate.—Section 1880 of the Code of Civil Procedure, which prohibits partios to an action in which a claim is made against an estate from testifying, is not to be construed as prohibiting an executor or administrator from calling a party to the action to testify in behalf of the estate.</p>

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

<p>Title to an Act.—When the language of an Act is plain, the title cannot he resorted to for the purpose of restraining that language.</p> <p>¡Removing Officers of a Corporation.—The Act approved March 21,1872, which provides for the removal of the Board of Directors of a Corporation, applies to Mining Corporations.</p>

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>The case was tried by the court and judgment was rendered for the plaintiff. No findings of fact were filed, nor did the transcript contain any bill of exceptions in relation to the want of findings, nor did it show that they were waived. The appellant brought up the testimony in a statement. The defendant appealed from the judgment rendered on the 16th day of December, 1874, and from an order denying a new trial.</p>

<p>Finding of Facts.—If the answer does not deny the allegations of the complaint, but sets up new matter as a defense, a finding by the court that the facts stated in the complaint are true is not a finding upon all the issues. The court should find upon the new matter.</p> <p>Idem.—In such case no presumption will be indulged that findings were waived if the record is silent upon the subject.</p>

<p>Stipulation.—If the parties, before a trial, agree on the facts, and then stipulate that either party may, on the trial, add such documentary evidence as he sees proper, the stipulation will be construed to mean evidence pertinent to the issue and which was in existence at the date of the stipulation.</p> <p>Stipulation' in Case op Intervention.—If, in an action of ejectment, a third party intervenes, and his petition to be allowed to intervene does not state facts sufficient to entitle him to do so, and, without making the objection, the plaintiff and intervener agree upon the facts and stipulate that the claim of the intervenor shall he determined upon the legal, effect of the stipulated facts, the plaintiff cannot afterwards raise the objection that the case is not one in which an intervention can be made, or that the pleadings are insufficient for that purpose.</p> <p>Law or a Case.—A judgment of the Supreme Court in a case becomes the law of the case in all its stages while the facts remain the same.</p> <p>Pabites Estopped by a Stipulation.—If the parties in an action of ejectment agree to the facts, which facts are based on the presumption that at a certain time the title to the demanded premises was in a third person, and the court is asked to determine which has acquired the title of such third person, and the court decides on the facts, neither party will afterwards be heard to assert, for the purpose of avoiding the effect of the judgment, that such third person had no title.</p>

<p>Appeal from the Bistrict Court, Sixth Judicial Bistrict, County of Yolo.</p> <p>The plaintiff recovered judgment, and the defendant appealed. The other facts are stated in the opinion.</p>

Action to quiet the title to a part of block 127 on the Potrero Nuevo, city and county of San Francisco. When the cause was called for trial, the plaintiff moved to dismiss the action. The court denied the motion. The defendants recovered judgment and the plaintiff appealed. The other facts are stated in the opinion.

of Sacramento. Ejectment to recover a tract of land adjoining the city of Sacramento, described as ten-acre tract No. 76, as laid down on a map made by H. Custer. The demanded premises are a part of the grant made by the Mexican nation to John A. Sutter, on the 18th of June, 1841. Sutter owned the' demanded premises on the 14th day of September, 3852, and then conveyed them to William S. Mesick.