Volume 52 — California Reports

Application to the Supreme Court for writ of mandate. The defendant was Secretary of State. The abstract “ a” and the statements “ b ” and “ c,” appended to the opinion of Mr. Chief Justice Wallace, were contained in the petition for the writ, and the two latter were inserted as reasons why the Secretary of State had failed to estimate the vote according to the abstract “ a.” The other facts are stated in the opinion of Mr. Chief Justice Wallace.

At the general election for county officers held in the County of San Joaquin on the first Wednesday in December, 1875, T. O. Crawford, S. G. S. Dunbar, and Jenny Phelps were voted for, for ¿he office of School Superintendent. Crawford received eleven hundred and eighty-two votes, Dunbar received seventeen hundred and two votes, and Phelps received eight hundred and thirty votes. Dunbar was declared elected.

The plaintiff averred in his complaint that on the 5th day of June, 1872, he was a passenger on one of the defendant’s trains, on its railroad from Gilroy to San José, and that on the same day a gravel train run by the defendant was going from San José to Gilroy, and that by the negligence of the defendant the two trains collided and he was injured, and that he did not recover from the effects of his injuries in two years after receiving the same.

In reserving his exception to the charge of the Court, the appellant used the following language: “ And the plaintiff then and there objected [to] the giving of said instruction, and the same is here assigned as an error of law occurring at the trial of said case, and excepted to by plaintiff.”

The California Pacific Eailroad Company was a corporation organized under the laws of this State, in 1869, to construct and operate a railroad between Vallejo, Sacramento, and Marysville, which road was completed. The Central Pacific Eailroad Company is likewise a corporation organized under the laws of this State, in the year 1864, to construct and operate a railroad between Sacramento and the eastern boundary of this State. This railroad was likewise completed.

The complaint alleged that the plaintiff was a stockholder in the Central Pacific Eailroad Company, and that the other defendants were its directors, and that the California Pacific Eailroad Company was likewise a corporation operating a railroad from Vallejo to the city of Marysville; that, in 1871, the defendants, Stanford, Huntington, Hopkins, and Crocker, being desirous of purchasing from certain persons to the plaintiff unknown the capital stock of said last named road,…

Ejectment to recover the northeast one-quarter of the northeast one-quarter of section thirty, township six south, range two west, Mount Diablo meridian.

<p>School District Taxes.—School district taxes cannot he imposed unless the provisions of the Political Code relating to the same are substantially complied with;</p> <p>Notice oe ah Election fob School Tax.—The notice to he published of an election to he held in a school district for the imposition of a tax must state the time at which the election will be held, and if it states that the polls will be open between the hours of one o’clock and six o’clock p. si. it is illegal.</p>

<p>Payment of Tax under Dubess.—Proof that a tax was paid under a written protest before it became delinquent, and before threats were made to sell property for its collection, is not proof that it was paid under duress.</p>

<p>Application to the Supreme Court for a writ of prohibition.</p> <p>On the 10th day of December, 1877, Jefferson Gr. James, Horatio P. Livermore, and a number of other persons commenced an action against John Center and several other persons in Fresno County, Thirteenth Judicial District, to have them declared the trustees of the plaintiffs in the ownership of certain lands, and to quiet the title to said lands. The defendants, most of them, answered, and also filed what they called cross - complaints; to which cross - complaints the plaintiffs filed answers. On the 15th of February, 1877, the plaintiffs’ attorneys filed with the Clerk a dismissal of the action, at the plaintiffs’ costs. The Clerk thereupon entered a judgment dismissing the action and in favor of the defendants for their costs, leaving a blank to - be filled with the amount of costs. On the next day the plaintiffs’ attorneys notified the defendants’ attorneys that the cause was dismissed. Defendants’ attorneys procured from the Judge an order on the plaintiffs to show cause, on the 26th day of February, 1877, why the order of dismissal should not be set aside and vacated, and the cause restored to the calendar. On the last named day both parties appeared by their attorneys, and the Court heard argument and took the cause under advisement. On the 2nd of March the Court made an order setting aside and vacating the judgment of dismissal, and placing the cause on the calendar for trial on the 12th of March. On the 8th day of March, 1877, the plaintiffs served and filed a notice of appeal to the Supreme Court from the order vacating the judgment, and also filed an undertaking on appeal. The District Court was about to proceed and try the cause on the 12th, when the plaintiffs procured from the Supreme Court an alternative writ for the Judge to show cause why a writ of prohibition should not issue. The Judge, in his answer, assigns as reasons why he should be allowed to proceed and try the cause, notwithstanding the appeal, the following:</p> <p>1. That the judgment of the Clerk was entered without authority of law, and was invalid.</p> <p>2. That he had authority to vacate it, and if the order vacating was erroneous, it could be reached by appeal from a judgment to be finally rendered in the cause.</p> <p>3. That on the 8th day of March, when the appeal was taken from the order vacating the judgment, no judgment existed, and the order was not then an order after final judgment and no appeal could be taken from it.</p>

San Antonio Creek forms the boundary between the Township of Alameda and the City of Oakland, in the County of Alameda. The acts referred to in the opinion provided for the construction of a draw-bridge across the creek, and for a tax upon the property in said township and city for the payment of the cost. No provision was made for the election of an Assessor or Collector of the tax in said places, or either of them.

The complaint contained two counts, one for twenty-three hundred and fifty dollars laid out by plaintiff at defendant’s request and for his use, and one for fifteen hundred dollars for work and labor performed for the defendant. The answer denied each allegation of the complaint. The Court found that the plaintiff had laid out for the use of the defendant, and at his request, the sum of fourteen hundred and fifty dollars, and gave the plaintiff judgment for that amount.

Andres Pico died in Los Angeles County on the 14th day of February, 1876. On the 23rd day of February, 1876, Romulo Pico, an illegitimate son of the deceased, petitioned the Probate Court for letters of administration on his estate. Pio Pico, a brother of the deceased, on the 25th of February, also petitioned for letters. Said Pio Pico also filed objections to the appointment of the son. Special issues were prepared and submitted to a jury.

The plaintiffs were husband and wife. The plaintiffs recovered judgment, and the defendant appealed. The other facts are stated in the opinion.

Action of forcible entry and detainer to recover possession of the north half of the southeast one-quarter of section nine, and the north one-half of the southwest one-quarter of section ten, township twenty-nine north, and range thirteen east, Mount Diablo meridian.

<p>Appeal from the District Court, Twentieth Judicial District, County of Santa Clara.</p> <p>The plaintiffs were the surviving wife and brothers of Frank A. Patochi, deceased. They alleged in the complaint that he was killed by a train of cars run by the defendant, and that his death was caused by the negligence of the defendant. The complaint did not claim damages in gold coin, hut the jury assessed the damages at nine thousand dollars in U. S. gold coin, and the Court rendered judgment payable in that coin. The defendant appealed.</p>

The plaintiff, in his complaint, averred that he was the owner of a tract of land commonly called Watson’s Ranch, which he describes according to the subdivisions made by the United States Survey; that it was agricultural land; that he and his grantors had tilled it since the year 1857 ; that a stream of water called Gold Run took its rise in the mountains south and west of the land, and in its natural channel flowed over a portion of the land; that he owned three ditches so…

<p>Jurisdiction of Contest between Applicants to Purchase State Lands. The only contest in respect to the right to purchase State lands, of which the District Courts have jurisdiction, are those which arise in the Surveyor-General’s or Register’s office.</p> <p>1 When Jurisdiction does not Attach.—A District Court has no jurisdiction of an application to purchase lands filed after the order referring the contest to such Court for determination.</p> <p>Requisites of Application.—The applicant must state in his application that there is no claim to the land for which he applies, other than his own, as required by sec. 3408 of the Political Code.</p>

<p>Distribution of an Estate.—TJpon a final settlement of the accounts of the executor or administrator, the Court must distribute the residue of the estate, if application is made therefor, even if the time has not expired , within which a minor or a non-resident may contest the will.</p>

<p>Gbaddtg Stbebts m Sait Fbakoisoo. — The Board of Supervisors of the City and County of San Francisco have no jurisdiction to give notice of an intention to order or to order grading done on any street mentioned in the third section of the Act of 1872, p. 805, in the absence of a petition signed by the owners of a majority of the frontage of the land made liable for the grading, except public property.</p> <p>Idem.—There is no substantial difference between the absence of a petition and a petition lacking the essential averment</p>

<p>Appeal from the District Court of the Thirteenth Judicial • District, County of Fresno. Plaintiff appeals.</p> <p>The contest certified to the Court is as to land situate in the County of Fresno, and included in section thirty-six, township twelve south, range eighteen east, Mount Diablo base and meridian.</p> <p>The plaintiff set forth in Time verba his own application to purchase the east half of said section thirty-six.</p> <p>He then sets forth seriatim the fact that each defendant has also made application to purchase, and the facts connected with the application, severally claiming that the application of each has a fatal defect.</p> <p>Touching the applications of Perkins and Robertson, the allegations of the complaint are as follows :</p> <p>“ This plaintiff further says, that on the 18th day of August, A. D. 1870, the defendant Jesse Nelson Perkins filed in said State Land Office his sworn application to purchase the north half of said section thirty-six; but that said defendant Perkins did not make an affidavit that there was no occupation of said lands adverse to any that he might have, nor did he make an affidavit that the township in which said land is situated had been sectionized, and subject to pre-emption three months or over, and that no adverse occupant had been in occupation of said lands adverse to any occupation that he, the said defendant Perkins, might have, for more than sixty days; by reason whereof this plaintiff says that said application was and is null and void.</p> <p>“That on said 18th day of August, A. D. 1870, the defendant, E. R. Robertson, made and filed with said State Surveyor-General his sworn application to purchase the south half of section thirty-six; but that said defendant Robertson did not make an affidavit that there was no occupation of said lands adverse to any that he might have ; nor did he make an affidavit that the township in which said land is situated had been sectionized, and subject to pre-emption three months or over, and that any adverse occupant had been in occupation of said lands adverse to any that he, the said defendant Robertson, might have for more than sixty days; by reason whereof this plaintiff says that said application was and is null and void.”</p> <p>In his application for the south half of said section, the affidavit of defendant Robertson is as follows:</p> <p>“State of California, County of Sacramento.</p> <p>“ To John W. Bost, Surveyor-General: E. R. Robertson, being first duly sworn, deposes and says: That he is a citizen of the United States of America, and a resident of the State of California; that he is over twenty-one years of age ; that he is desirous to purchase from the State of California, under the provisions of an Act of the Legislature of said State entitled ‘ An Act to provide for the management and sale of lands belonging to the State,’ approved 28th of March, 1868, and the several acts amendatory thereof and supplemental thereto, the following described land in Fresno County, State of California, to wit: The south half of section thirty-six, township twelve south, range eighteen east, Mount Diablo Meridian, containing three hundred and twenty acres, according to the returns of the United States Surveyor-General; that he has not entered any portion of any sixteenth or thirty-sixth section which, together with that now sought to be purchased, shall exceed three hundred and twenty acres; and that there is no legal claim to the same other than his own, and that said lands are not occupied by any bona fide settler; for which I agree to j>ay to the State of California one dollar and twenty-five cents per acre, in gold or silver coin of the United States, in the following manner,, viz: Twenty per cent, of the purchase-money, together with interest on the balance, at the rate of ■ ten per cent, per annum, in advance, from the date of the approval of the location in the Surveyor-General’s office, within fifty days after said approval; and unless such payment is made within said fifty days, then the land above described shall revert to the State, without suit, and any approval hereof shall be and become null and void; and the balance of principal, bearing interest at the rate of ten per cent, per annum, in advance, within one year after the passage of any Act of the Legislature requiring such payments, or before, if I desire. E. R. Robertson.</p> <p>“ Subscribed and sworn to before me, this 18th day of August, 1870.. Géo. Sickel,</p> <p>“ Clerk Supreme Court.”</p> <p>The affidavit of defendant Perkins for the north half of said section is substantially the same as the foregoing, and was made on the same day.</p> <p>The other material facts are stated in the opinion.</p>

This was an original application to the Supreme Court for a writ of prohibition.

This was an application for a writ of mandate to compel the respondent, as Auditor of the City and County of San Francisco, to enter upon the books of his office a demand for $92,000, and to make an endorsement thereon of its having been so entered.

<p>•Oebtiobabi.—The writ of certiorari does not lie to review the action of the Board of Supervisors when their action is legislative in its character, and consists of the passage of an ordinance or resolution.</p> <p>Office of the Writ.—The office of certiorari as to governmental hoards exercising mixed authority, is to review only such proceedings as are judicial in their nature.</p> <p>Water Franchise to be Exercised under General Laws.—The power to charge tolls or rates for water is a franchise conferred on corporations formed under general laws for the formation of water companies, and can ho exercised hy a corporation only in the manner provided for in those laws. Statute Unconstitutional.—The “Act to establish water rates in the City and County of San Francisco ” (Statutes 1875-6, p. 82) is unconstitutional in so far as it attempts to pirovide a mode of fixing rates to he charged by corporations furnishing water to the inhabitants of San Francisco, differing from that provided for establishing rates to he allowed to other corporations formed under the General Laws.</p> <p>Acts of Legislative Body not Judicial.—The passage of a certain preamble and resolution hy the Board of Supervisors held not to he the exercise of the judicial function: it was an attempt to make law, not to render a judgment under the existing law.</p>

The facts are stated in the opinion. The case of Green v. Swift, 47 Cal. 537, throws further light on the litigation connected with this matter.

Ejectment to recover Lot No. 62, of the lands known as the outside or Pueblo lands of the Town or City of Santa Barbara, marked on the map of W. H. Norway’s subdivision of said lands, known as Official Map No. 2, on file in the office of the City Council of said city.

The plaintiff, on the 9th day of December, 1873, filed his application and affidavit in the office of the County Surveyor of Tulare County to purchase from the State, as swamp and overflowed, sections nineteen and twenty, in township twenty south, of range twenty-one east, Mount Diablo base and meridian.

On the 24th day of December, 1866, the plaintiffs owned nearly all of the Rancho Laguna de la Merced, lying partly in the City and County of San Francisco. Within said rancho lies a lake containing about four hundred acres, called Laguna de la Merced, and the springs which furnish it with a supply of water rise on said rancho.

<p>General Ei/ection.—A general election is an election held to select an officer after the expiration of the full term of the former officer.</p> <p>Special Election.—A special election is an election held to supply a vacancy in office occurring before the expiration of the full term for which the incumbent was elected.</p> <p>When Special Election is Void.—A special election for the office of Controller of State, held without executive proclamation made in advance of the election, designating the time at which such election is to be holden, is void.</p> <p>Tbue of Election. — It is essential to the validity of a popular election that the time at which the same is to be holden should be designated in advance.</p>

<p>Tax Paid undbb Pbotest.—To enable one to recover back a tax illegally assessed, and paid under protest, it must appear tbat the tax was delinquent, and that the officer to whom it was paid was armed with authority, real or pretended, to seize property, and threatened to do so.</p>

Action to collect an assessment levied on several tracts of land in Swamp Land District One Hundred and Eight, by having the same declared a lien on the land, and by a sale of the land therefor. The different parcels of land, which were separately assessed, were made defendants along with defendant Hagar. They were described by township, range, and section, or subdivision of a section, according to the official surveys of the United States.

<p>District Attorney's Ebbs.—In actions prosecuted by the District Attorney of a county to recover assessments for the reclamation of swamp lands, which became delinquent prior to the adoption of the Code, the District Attorney is entitled to fifteen per cent, on the amount of the judgment recovered, to he taxed as costs.</p>

<p>Seat, of Cobfobation.—When the common seal of a corporation is affixed to an instrument in writing, purporting to be executed by it, and the signatures of the proper officers of the corporation are affixed to it and proved, Courts will presume that the officers did not exceed their authority, and the seal itself is prima facie evidence that it was affixed by proper authority.</p> <p>Idem.—In the absence of the common seal of a corporation, or of proof of facts from which the existence of a resolution of authorization or of the authority itself may be inferred, the authority of the officers of a corporation to execute a conveyance can only be established by resolution of the trustees entered in the proper book of the corporation, which should be in the office of the Secretary.</p>

The City of Petaluma was a municipal corporation, and the Legislature passed an act, approved March 24th, 1874, authorizing its trustees to issue the bonds of the city to the amount of five thousand dollars for the purchase of the grounds and improvements in said city called the Agricultural Park. There was twenty-seven acres of the land.

Application to the Supreme Court for writ of mandate to compel the defendant, who was Tax Collector of the City and County of San Francisco, to pay into the City and County Treasury money which he had collected in his official capacity. The application for the writ was made on the 18th day of December, 1876.

The Act of 1873-74, (Statutes of 1873-74, p. 50) entitled “An Act to protect agriculture and to prevent the trespassing of animals upon private property,” declares that an owner or occupant of land or a possessory claim, who finds horses, cattle, hogs, etc., upon the same, may take up and keep such animals at the expense of the owner, and shall be allowed for keeping the same a fixed sum each day, and that upon taking up the animals the owner shall be notified immediately,…

On the 18th day of February, 1869, McLaughlin entered into a contract with Fowler to sell him the west half and the northeast quarter of the northeast quarter, and the northwest quarter of the southeast quarter, and the west half and the northeast quarter of the northwest quarter, and the northwest quarter of the southwest quarter of section seventeen, township three north of range six east of Mount Diablo base and meridian, containing, according to the United States…

Ejectment to recover two lots in the City of Los Angeles. Felis Gallardo was made sole defendant in the complaint, but his wife, by leave of the Court, intervened, and the two filed a joint answer.

Action commenced pn the 27th day of March, 1874, to recover an assessment levied on a tract of swamp and overflowed land on Sherman Island, County of Sacramento, in Swamp Land District No. 50. The district was organized in 1865, under the Act of April 2nd, 1866. (Statutes 1865-66, p. 799.) All the papers connected with the district were by the State Board of Swamp Land Commissioners transferred to the Board of Supervisors of the County of Sacramento.

The defendants were indicted for grand larceny, were convicted, and appealed. The other facts are stated in the opinion.

<p>Evidence of Declabations. — If two are jointly indicted, for larceny, and have separate trials, the declarations of the one not on trial, made after the offense was fully consummated, are not admissible against the other on his trial.</p>

Ejectment to recover the northwest quarter of section twenty, township two south, range thirteen west, San Bernardino Meridian, and lying in Los Angeles County. On the 22nd of April, 1868, the township plat was filed in the office of the Register and Receiver of the United States Land Office.

Ejectment to recover the Bodega Ranch, lying in Sonoma County. A portion of the defendants, who occupied, in severalty, parts of the ranch, answered separately, denying the plaintiff’s title to the parts they occupied. The complaint was dismissed as to the defendants not answering, and as to all the land not included in the answers of those answering. The ranch contained about thirty-five thousand acres.

George Thistleton was convicted of a misdemeanor, viz., a libel, in the City Criminal Court of the City and County of San Francisco, and was, on the 27th of January, 1877, sentenced to one year’s imprisonment. On the 8th day of May, 1877, he petitioned the Supreme Court to be discharged on habeas corpus.

The plaintiff alleged in his complaint that he leased a hotel in Santa Barbara from the defendant, and that he furnished it, and that the defendant occupied a room in it, and that by the gross carelessness of the defendant in the use of his room the hotel was burned and he sustained loss thereby.

This is the second appeal. The principal facts will be found in the former report, 50 Cal. 230.

Maria D. Marsh, who resided in Massachusetts, transmitted money to her brother, E. W. Darling, a resident of Santa Clara County, in this State, to loan on her account. Darling, on the 20th day of February, 1875, loaned to George W. Dooley one thousand nine hundred and sixty-eight and fifteen hundredths, dollars, and Dooley gave his note to Darling for the amount, and also gave Darling a mortgage to secure the money.

<p>Sepabate Pbopbbty of Husband ob Wife. — If the husband purchases land on credit, and afterwards pays a portion of the price with his separate property, and he and his wife secure the remainder of the purchase-price with their joint note, and a mortgage on the same,"and he then sells a part of the land at a profit, and with a part of the proceeds pays the note, and with the remainder, increased by some of his separate property, builds a house on the land not sold, the land not sold, and the house thereon, are the separate property of the husband.</p>

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

Ejectment to recover possession of a portion of section sixteen, township four north, range six, Mount Diablo base and meridian. The plaintiff recovered judgment, and the defendant appealed. The other facts are stated in the opinion.

The defendant made a complaint against the plaintiff, before James H. McGee, a Justice of the Peace, charging the defendant with having committed the crime of arson by setting fire to a house, known as Skaggs’ Springs Hotel, on the 28th of October, 1873. On his examination before the Justice the defendant was discharged. He then brought this action to recover damages for a malicious prosecution.

<p>Books ok Cobpobation as Evidence. —In an action brought by a creditor of a corporation against a stockholder to recover the stockholder’s proportion of tbe indebtedness of the corporation, the entries in the books of the • corporation are not admissible in evidence on behalf of the plaintiff to prove the indebtedness of the corporation to him.</p>

<p>-JomDEB of Actions.—The plaintiff cannot, in the complaint, unite a cause of action to annul a marriage hy reason of a former marriage of the plaintiff to one who is still alive, with a cause of action to quiet her title to her separate property, in which the defendant falsely claims an interest.</p>

The defendants, William Leith, Senior, and John Thayer, were jointly indicted for the crime of murder by killing Bobert C. Hayden, on the 19th day of May, 1876. Leith was tried separately. He and Thayer were in a ditch about which there was some difficulty, when Hayden approached. Leith and Thayer both fired. Hayden was killed. Thayer was the co-defendant referred to in the opinion of the Court. The defendant was convicted of murder in the second degree, and appealed.

<p>Unkecohded Conveyance. — A conveyance of land, made before the levy of an attachment on it, in a suit against the grantor, will prevail over the attachment, in the absence of fraud in the conveyance.</p> <p>Finding of Facts.—The Court must find on all the issues when the case is. tried without a jury, and findings are made.</p>

Ejectment to recover Block No. 591 of the Western Addition, in San Francisco. Tho demanded premises were a part of the Pueblo lands of said city.

Ejectment to recover 50-vara lot No. 6, in block No. 512, in the Western Addition, in San Francisco. The plaintiff recovered judgment, and the defendant appealed from the judgment and from an order denying a new trial. The other facts are stated in the opinion.

The action was ejectment, and the findings were as follows: 1. That in November, 1866, E. B. Frink, or some other person, as agent for the persons whose names are attached to the notice of location, a copy of which is attached to the affidavit of S. B. Cox, filed in this cause, posted said notice on a tree at or near the shaft or cut on the lead or mine in controversy. 2. That plaintiffs are, and were at the date of such location, citizens of the United States. 3.

On the 9th day of December, 1872, the City Council of Oakland passed a resolution of intention to improve Broadway Street, between Water Street and Fourteenth Street. This resolution is in the opinion. It was published for the requisite time. On the 23rd of said month, the Council passed an ordinance ordering said work done, and another providing for plans and specifications.

<p>Appeal from the District Court, Third Judicial District, County of Alameda.</p> <p>The plaintiffs alleged in their complaint that they were the owners, as lessees for eight years from the 1st day of February, 1870, of a tract of land in Centreville, Alameda County, containing one hundred and sixty acres, being a portion of the tract of land and marsh connected therewith used by the plaintiffs for the manufacture of salt, bounded on the north by a creek, wall, and ditch, and on the south by a wall and ditch, and on the cast by a creek, wall, ditch, and upland; that they were and had been, since the lease was given, in the exclusive and peaceable possession of the land, and had on it extensive beds for the manufacture of salt from sea-water by evaporation. The complaint was filed May 17th, 1876. The complaint further alleged that the defendant was a corporation organized for building a railroad along the coast where the land lay, and was about to grade the land for the railroad by building an embankment across the salt-beds, and that they would thus destroy the plaintiff’s salt-works by separating the bed into two parts, and preventing the flow of sea-water from one to the other, and that the defendant also threatened to dig up and destroy the salt-bed and works, and permanently appropriate the land. An injunction was asked. On filing the complaint a preliminary injunction was granted. On the 24th of May, 1876, the defendant answered, denying, on information and belief, that the plaintiffs were in possession of or owned the premises as lessees for eight years, and denying, on information and belief, that the plaintiffs had salt - beds on the land, or were manufacturing salt there, and also denying, on information and belief, that it was necessary, in the manufacture of salt, to have several beds, into which the sea-water flowed in succession. The answer then denied that the defendant was about to enter upon or threatened to enter on any premises or land of the plaintiffs, or that it was about to destroy plaintiff’s business. The answer then set up that the premises were the property of the Green Point Dairy and Transportation Company, and that said Company sold to A. E. Davis, in March, 1876, and that the defendant had entered by permission of said Davis, who bought without notice of the plaintiff’s alleged lease. There was also a denial that the lease mentioned in the complaint was a lease of the premises described in the complaint.</p> <p>The defendant moved to dissolve the injunction on the answer, and on affidavits which were filed. The plaintiff filed counter-affidavits. The Court made an order dissolving the injunction in so far as it restrained the defendant from grading its road-bed, and from making the necessary embankments or cuts for the purpose of its road, upon condition, however, that the defendant, in constructing its railroad, provide such culverts as were necessary for a free use of the plaintiff’s salt-beds, ditches, and the water flowing therein, and other property of the plaintiff connected therewith. The plaintiffs appealed from the order.</p>

On and before January 21st, 1875, one P. L. Washburn was the sole agent of the Western Union Telegraph Company at Colusa, Colusa County, California, for the receipt and transmission of dispatches over its telegraph' wires. He was also at the same time agent for Wells, Fargo & Co.’s Express, and had various insurance agencies, and employed in his general business, as his clerk, a young man who went by the name of Charles Crowell.

<p>Appeal from the District Court, Nineteenth Judicial District, City and County of San Francisco.</p> <p>Ejectment to recover Block 592, in the Western Addition to the City and County of San Francisco. The demanded premises were a part of the Pueblo lands which the city held in trust to convey to the persons who were in the bona fide possession of the same on the 8th day of March, 1866. The plaintiff offered to read in evidence a deed from the City of San Francisco to himself, dated April 22nd, 1870, in which facts were recited showing that he was a beneficiary under the act, but did not offer to prove, dehors the deed, the truth of the recitals in the same. The defendant objected to the deed because evidence, dehors the deed, had not been introduced showing the truth of the recitals. The Court overruled the objection. The plaintiff had judgment, and the defendant John Duane appealed. The other facts are stated in the opinion.</p>

<p>Appeal from the Probate Court, County of Santa Clara.</p> <p>The children of Headen contested the widow’s right to the homestead, and both the widow, Henrietta H. Headen, and the children appealed from the decree.</p> <p>Sec. 1265 of the Civil Code, as amended in 1865, provided that the homestead, if declared on community property, should, on the death of either of the spouses, vest in the survivor; but that, in other cases, on the death of the person whose property it was when selected as a homestead, it should go to his or her heirs, subject to the power of the Probate Court to assign the same for a limited period to the family of the decedent.</p> <p>The other facts are stated in the opinion.</p>

Ejectment to recover the west one-half of the northwest one-quarter of section fifteen, township four north, range six east, Mount Diablo meridian. On the 7th day of November, 1873, Elijah S. Ayres made proof as a pre-emptor and payment for the demanded premises, and received from the Receiver the following certificate: “ Pre-emption Act 1841.

Action to obtain a divorce, and for a division of the property. The plaintiff and defendant married in the State of Illinois, in 1843. In 1865, the plaintiff and defendant had acquired, in Illinois, by their labor, several thousand dollars in money, and the defendant came to California and purchased with the same about three thousand acres of land in' Los Angeles County. In 1867, the spouses removed to California with their children.

Action to recover damages for the alleged conversion by the defendant of two thousand five hundred shares of its stock. In November, 1873, E. J. Baldwin acquired, by purchase from the locators, a gold-bearing ledge in San Bernardino County. He and other parties afterward formed the corporation, the defendant here, for the purpose of working the ledge, with a capital stock of sixty thousand shares.

Action commenced by the Attorney-General, on the relation of Y. B. Russell, against the defendant for intruding into and usurping the office of Auditor of the County of Contra Costa. On the 7th day of May, 1873, the Board of Supervisors of Contra Costa County adopted an ordinance consolidating the offices of Recorder and County Auditor, which before that had been separate. The general election in that year was held in September.

Mary F. Haskin and Henry R. Haskin were husband and wife, and owned real estate as community property. On the 4th of March, 1869, she sued him for a divorce and for a division of the community property. John L. Bussche, by leave of the Court, intervened on the ground that the defendant had contracted in writing to sell him a fifty-vara lot on the southwest corner of Polk and Tyler Streets for twelve thousand dollars.

Ejectment to recover possession of a tract of quicksilver mining claims, in Sonoma County. The testimony tended to show that the plaintiff and a number of other persons located the ground for quicksilver mining in 1860, and entered into possession of the same, and performed labor thereon. The plaintiff had acquired the title of the others, and dbmmenced this suit in. October, 1874.

Tuohy owned a flock of 1,583 sheep, and on the 8th day of December, 1873, entered into a contract with Deering by which D. was to take charge of the sheep, and provide them with pasture, and pay taxes on them, and shear them, for the period of two years. When the sheep were sheared, the wool was to be delivered to Tuohy, who was to sell it and pay Deering one-lialf of the proceeds—part pay for his services.

<p>Appeal from the District Court, Tenth Judicial District, County of Colusa.</p> <p>The complaint averred that the plaintiff had been for more than six months in possession of the east half of sec. fifteen, township sixteen north, range two west, Mount Diablo base and meridian, and had growing on it a volunteer crop of wheat and barley, which he and his grantors plowed and sowed in the fall of the years 1874 and 1875; that the defendant, on the 5th day of June, 1876, entered on the land and began harvesting and threatened to harvest and remove the crop and convert it to his own use, and that the defendant was insolvent. The suit was commenced on the last named day.</p> <p>The defendant, in his answer, admitted the plaintiff’s possession and title to the crop on the southeast quarter of the section, but denied his possession of, or title to, the northeast quarter, or the crop thereon. The answer also stated that the land was public land, but did not aver any claim of right as a pre-emptor. On the trial, the evidence on behalf of the plaintiff tended to show that about six years before the commencement of the suit the grantors of the plaintiff entered on the half section and inclosed it with a substantial fence, and that in 1874 one Stewart Harris purchased ,the land and improvements from the persons who thus inclosed it, and that said persons and Harris and his tenants had since been in possession of the land. A short time after purchasing the land Harris leased it to one Cravens, who plowed it and put in a crop of grain. Cravens remained in possession of the land until October, 1875, when Harris leased it to Smith, the plaintiff, and Smith had since cultivated the land. At the time the plaintiff went upon the land there were some forty acres of summer-fallow and about one hundred and twenty acres of volunteer grain on it, which the plaintiff purchased from Cravens when he took his lease. In the winter of 1875 the defendant sowed some grain on the volunteer and summer-fallow. In the summer of 1876 the defendant began to harvest the crop, when this action was commenced.</p> <p>The evidence on behalf of the defendant tended to show that Pleasant West was living on the northeast quarter; that he lived in a cabin built on the land in dispute by the defendant, and helped sow some of the grain.</p> <p>The defendant here offered in evidence a lease of the said northeast one-fourth from him to the witness, dated in December, 1875, at the time the witness went on to the land. The Court, on the objection of the plaintiff, ruled it out. The evidence also tended to show that the defendant sowed and harrowed in grain on the volunteer ground. The evidence of Smith, the defendant, tended to show that on the 2nd day of February, 1875, he took up the northeast one-fourth as Government land, and lived on it until some time in May, and on the 19th of March, 1875, filed in the local land office a declaratory statement as a pre-emptor.</p> <p>li. Thrasher, one of the plaintiff’s witnesses, was asked by the defendant’s counsel, on cross-examination, who had claimed the northeast quarter since March, 1875. The plaintiff objected to the question, and the Court sustained the objection.</p> <p>A. Mead, a witness for the plaintiff, testified on his cross-examination that his brother went on to the land to take up a claim in case it was Government land, and was living there when the defendant came. He was then asked how long his brother lived there, but the Court sustained an objection of the plaintiff to the question.</p> <p>The Court granted the injunction, and the defendant appealed from the judgment, and from an order denying a new trial. The other facts are stated in the opinion.</p>

<p>Appeal from the District Court of the Twenty-second Judicial District, County of Mendocino.</p> <p>J udgment for the plaintiff for $908.57. The defendant undertook to appeal. The other facts are stated in the opinion.</p>

On the 5th day of October, 1869, Thomas O. Larkin, who was the owner of a lot at the southerly corner of Mission and Fremont Streets, City and County of San Francisco, executed to Frank Kennedy a deed of the same to hold it in trust, to receive the rents and profits of the same, and to pay his daughter, Adeline Minnie Larkin, fifty dollars per month out of the same, during her natural life, and providing that should the daughter die before the trustor did, then the amount…

On the 2nd day of March, 1876, the defendants filed in the office of the Clerk of the City and County of San Francisco, articles of incorporation under the name of the “ Pacific Homeopathic Medical Society of the State of California.” On the next day, a certified copy of said articles was filed in the office of the Secretary of State, and. the Secretary issued to the defendants a certificate that a copy of the articles containing the required statement of facts had been…

In 1872, Cephas Kelley and Seraph A., one of the defendants, were husband and wife, and purchased a lot in Oakland in the name of the wife, but paid for it with community funds. In 1873, the plaintiff loaned the husband money, and to secure the same the wife gave him a mortgage on the lot.

The plaintiff was the executrix of the estate of Thomas Sedgwick, Jr., who died in February, 1874. This was an action on two promissory notes given by the defendant to the plaintiff during his lifetime. The defendant offered himself as a witness in his own behalf, in reference to one of the notes. The Court received his testimony subject to an objection interposed by the plaintiff, but on final argument struck it out. The defendant excepted.

Action commenced December 15th, 1875, to recover judgment on a promissory note. The case comes up on the judgment-roll. This shows a service of summons in Alameda County, where the suit was commenced, on the 17th day of December, 1875, a demurrer served and filed on the 27th of the same month, and a default entered on the 17th day of July, 1876. The default recites that the demurrer had been overruled, and the defendant had failed to appear and answer.

<p>Release of Endorser of Hote. —■ Even if a parol agreement to pay an additional rate of interest on a promissory note is not a good consideration for a promise to extend the time for its payment, so as to release an endorser, yet if the holder, without the consent of the endorser, in fact receives an additional sum of money as such interest, which the maker was not hound to pay, as a consideration for a promise to extend the time of payment, the endorser is released.</p>

On the 15th day of January, 1866, one Maurice J. Dooley was the owner of several tracts of land in the County of San Joaquin, aggregating about two thousand acres, and contracted to sell the same to, the plaintiff here for the sum of fourteen thousand dollars, payable, two thousand dollars down, and two thousand dollars yearly thereafter, on the 15th day of April, until the entire sum was paid.

On the 23rd day of March, 1858, Elliott Reed recovered a judgment against Samuel J. Crosby for the sum of two thousand five hundred and eighty-seven dollars and fifty cents, bearing interest at two and one-half per cent, per month, in the District Court of the Third Judicial District, County of Santa Clara.

<p>Appeal from the District Court, Nineteenth Judicial District, ■City and County of San Francisco.</p> <p>Ejectment to recover an undivided one-fourth of a tract of land lying at the southeast corner of Guerrero and Nineteenth streets, San Francisco. Charles McFadden, Sr., was residing on the land with his family in 1854, an<l until he died, in 1858. He left, surviving him, his wife Mary and two children, of whom the plaintiff was one. Patrick McFadden was a brother of Charles, Sr. He rasided in San Francisco, and in October, 1857, one Conrad Neun acquired his title to the demanded premises. He died before the commencement of this action, and the defendant had succeeded to Neun’s title. The defendant recovered judgment, and the plaintiff appealed. The other facts are stated in the opinion.</p>

The complaint averred that the defendants broke down a portion of the inner walls of the plaintiff’s fire-proof brick building at East Oakland, and severed from the same a permanent fixture, to wit, a metallic vault of the value of five thousand dollars. Judgment was asked for that amount. The county was served with process, and judgment was rendered against it by default. The defendant appealed. The other facts are stated in the opinion.

Appeal fiom the District- Court of the Third Judicial District of the State of California, in and for the City of San Francisco. On the 11th day of November, 1874, plaintiff (appellant) A. B. Elliott was a member of the law firm of Bryan, Aude & Elliott, then engaged in the practice of law at Virginia City, and elsewhere in the State of Nevada.

' Anthony Silvey was the husband of the plaintiff Mary A. Silvey and the father of the plaintiffs Lamora and Christopher Silvey and Lilly Allison, and of the defendant Susan M. Hodgdon. The plaintiffs Lamora and Christopher were minors.

On the 24th day of May, 1869, the Board of Supervisors of the City and County of San Francisco passed a resolution of intention to construct a brick sewer, with manhole and cover, on Leavenworth Street, from Geary to O’Farrell Street. The contract was let, and the work performed.

A contest having arisen in the office of the Surveyor-General, between the plaintiff and defendant Brower and the purchasers from Baker, that officer, on the 28th of December, 1875, made an order referring the contest to said Court for trial. The defendants, other than Brower, were the heirs and purchasers from-; Baker.

' Appeal from the District Court,. Seventh Judicial District, County of Sonoma. Action to try the right to purchase the northeast one-quarter •of the southeast one-quarter of section thirty-four, and the northwest one-quarter of the southwest one-quarter of section thirty-five, township thirteen north, range seventeen west, Mount Diablo meridian, lying in Mendocino County. The land was swamp and overflowed. A contest arose in the office of the •Surveyor-General.

The defendant was indicted for arson, alleged to have been committed by setting fire to his own house, on the 30th of March, 1876, while it was occupied by W. A. Townsend, his tenant. The witness Van Burén was a constable, and had acted as a detective, and arrested the defendant for the offense. The building was insured for one thousand dollars at the time it was set on fire. The indictment did not charge that the building was set on fire to obtain the insurance.

<p>Decree of Divorce.—When the Court grants a divorce to the husband on account of the offense of the wife, it cannot require the husband to pay to the wife, after the divorce, out of his separate property, a sum or sums of money for her support.</p>

The demanded premises were at Pigeon Point, in the County of San Mateo. The complaint contained two counts, one averring right of possession in the plaintiff, and ouster on the 27th of September, 1872; while the other placed the date of the ouster on the 2nd day of October, 1872.

Ejectment to recover a lot on the west side of Leavenworth Street, between California and Sacramento Streets, San Francisco. Held: as a conclusion of law, that the payment made by the defendant to the Sheriff, and the arrangement made with him, effected a redemption of the property from the sale under the Tyler judgment and from the McCracken judgment. The other facts are stated in the opinion.

Upon the death of William Stott, a special administrator was appointed, whose accounts were settled on the 12th day of May, 1868, and he had in his hands the sum of nine thousand six hundred and fifty-two dollars and seventy-eight cents. On the same day his letters were vacated, and J. C. Merrill became executor of the estate, and said sum was turned over to him.

Action to recover the possession of one thousand and fifty sheep, or, if delivery could not be had, of their value, and damages.

This was an original application for a writ of mandate to compel the Clerk of Monterey County to correct the records of the Board of Supervisors so as to show the number of votes cast for the applicant as Representative in Congress from the Fourth Congressional District.

The defendants were husband and wife. On the 4th of February, 1875, when the defendant, Mary J., was the wife of one Fogg, she gave the plaintiff the promissory note on which this action was brought.

John C. Beideman died on the 8th day of July, 1865, leaving a will in which he nominated Samuel II. Parker his executor, and by which he directed his executor, within one year after his death, to sell all his real estate, except such portions as were specifically devised.

<p>Appeal from' the District Court, Third Judicial District, City and County of San Francisco.</p> <p>The plaintiff alleged that about the 10th of August, 1870, the defendants Canavan, McLane, and Eastland, by their agents and servants Berry and Hewes, wrongfully broke and entered his close and dwelling-house in San Francisco, near the northwesterly line of Marke't Street, between Jones and Larkin Streets, and with force and arms removed the house from the land, and also destroyed other property of the plaintiff, and that by reason of the premises the plaintiff and his family were deprived of a place of residence. Damages were claimed in the sum of fifty thousand dollars. The defendants, in their answers, set up that the City and County of San Francisco owned and was seized and possessed of a large tract of land known as Yerba Buena Park, on which was situated the close and dwelling-house and property described in the complaint; and that the plaintiff and his family occupied the premises by permission of and as the servants and employees of said city and county; and that on the 4th day of April, 1870, the Legislature of the State of California passed an act to provide for the erection of a City Hall in said city and county on said park, and to authorize the Governor to appoint three persons to serve as a Board of Commissioners for the construction of the hall; and that the Governor, on the 27th of April, 1870, appointed the defendants, Canavan, McLane, and Eastland, such Commissioners; and that the act also authorized the Commissioners to take possession of said park, and to grade the same; and that they notified the defendant to remove his house and property from the premises, but he refused to do so; and that then they, by their servants and employees, the other defendants, removed from the premises the dwelling-house and other property belonging to the plaintiff, which was the trespass complained of. The Court found that on the 10th of August, 1870, the plaintiff, with his family, resided in a two-story house on the premises; and that the premises were enclosed with a picket fence, and were in Yerba Buena Park; and that Canavan, McLane, and Eastland were Commissioners under said act, and notified the plaintiff to vacate the premises, and that he refused to do so; and that defendant Berry then, in obedience to their orders, by means of a steam-paddy, lifted the house, with plaintiff and his wife in it, and removed it into Market Street; and that the defendants then took possession of the premises. Judgment was rendered for the plaintiff for seven hundred and fifty dollars. The defendants appealed from the judgment, and from an order denying a new trial. The other facts are stated in the opinion.</p>

•The defendant Ashman was Sheriff of the County of Fresno, and the other defendants were his bondsmen.

On the 7th day of March, 1872, the Superintendent of Streets in the City and County of San Francisco issued an assessment to cover the sum due on a contract made by him with J. B. Sbarboro for improving Larkin Street, from Tyler to Market Street. The defendants owned a lot which was assessed. On the 80th day of April, 1872, the Superintendent delivered the assessment to the Tax Collector, for collection.

On the 22nd day of June, 1857, the defendant located a school-land warrant on the east half of the northwest one-fourth of section No. 21, township two south, range thirteen west, of San Bernardino meridian, along with other lands. The land had not then been surveyed by the United States. The said Merrill, on the 30th of April, 1868, applied to the Surveyor-General to relocate the warrant on the same land.

<p>Pleading Violation oe Contract.—In an action by a sub-contractor against the contractor and owner, to recover for the value of materials furnished the contractor in the erection of a building, the owner, if he relies for a defense on the fact that the building was not finished by the contractor according to the contract, must plead the same specially in his answer.</p>

Pico and Alvarado claimed the land of the “ cx-Mission of San Jose,” in Alameda County, under an alleged grant from the Government of Mexico, and applied to the Board of Commissioners appointed by the United States for the settlement of private land claims in California, to have it confirmed. The Commissioners confirmed the grant, but an appeal was taken to the District Court of the United States, and in 1859 the grant was by that tribunal rejected.

The complaint, which was filed September 30th, 1875, averred that the plaintiff was, and had been since 1864, the owner and possessor of a mining claim in the Michigan Bluff District, County of Placer, lying in Buchanan Gulch, and that the defendant wrongfully claimed to own it, and had applied to the United States, in the Land Office at Sacramento, to obtain a patent for it, and that his application was now pending, and that the claim was a placer-mining claim, and a part…

The defendant Adams was Sheriff of the City and County of San Francisco. The judgment for the damages was rendered against Robert White alone, and he appealed. When the default was set aside, the Sheriff returned the property to the plaintiff. The other facts are stated in the opinion.

<p>Appeal from the ■ District Court, Nineteenth Judicial District, City and County of San Francisco.</p> <p>The complaint, which was filed on the 7th day of December, 1875, alleged that there was a salt-water creek, into which the tide ebbed and flowed, in Alameda County, between Dunbarton Point and Alviso; and that the creek extended from the Bay of San Francisco to Mayhew’s Landing, a distance of about four miles, and was one hundred and fifty feet in width and seven feet in depth, and was a navigable stream, and had been used as such for upwards of twenty years by vessels of one hundred and ten tons burden and under; and that vessels had been accustomed, during all of said time, to navigate the same to said landing with cargoes of lumber and merchandise, and grain and hay, and other produce of the adjacent country, for the San Francisco market; that the plaintiffs had for ten years owned and occupied “ Mayhew’s Landing,” which consisted of about seven acres of land on which wharves, docks, warehouses, yard-room, etc., were erected; that the plaintiffs were also the owners of a vessel of sixty tons burden, with which, for many years, they had navigated the creek, and Bay of San Francisco, from and to the landing; and that they stored grain in the warehouse, and transported it to market, and conducted the business of keeping a lumber-yard; and that they derived an annual profit of more than five thousand dollars from the business; and that the navigation of the creek was of great importance to the plaintiffs and the farmers adjacent to said landing, and should not be interrupted.</p> <p>That the Santa Clara Valley Bailroad Company was a corporation organized to construct a railroad from Dunbarton Point, on the Bay of San Francisco, by way of Alviso, to San José, and defendant Bartling was its President and General Superintendent, and that the defendants had obstructed the navigation of the creek by driving piles and building a bridge across it, in which they had placed a draw only thirty-six feet in width; that the bridge and draw deflected from a right angle to the current of the stream so that a vessel in passing through would strike against the side, and that the draw should have been fifty feet in width, and that it was a nuisance and a perpetual obstruction to the navigation of the creek, and delayed the plaintiffs in the navigation of their vessel, and that they had sustained fifty dollars damage.</p> <p>There was a prayer for the abatement of the bridge as a nuisance, and that the defendants be enjoined from constructing or maintaining a bridge unless it had a draw fifty feet in width, placed at right angles to the stream. The defendants were defaulted, and judgment was rendered against them according to the prayer of the complaint, and they appealed from the judgment.</p>

• Action to enforce a lien on a lot for the improvement of a street in San Francisco. _ . The assessment levied on the lot included the cost of improving both the roadway and sidewalks. The gross sum was three hundred and twelve dollars and two cents, and of this sum only one hundred and eighty-eight dollars and twenty-three cents was the cost of improving the roadway. The assessment did not separate the cost of the roadway from the sidewalks.

On the 20th day of August, 1855, Carmen Librian de Bernal and José de Jesus Bernal were the owners of the Bernal Pancho, situated in what is now the City and County of San Francisco, and mortgaged to J. Mora Moss a portion thereof. On the 4th day of June, 1857, said Bernals conveyed the rancho to Harvey S. Brown, subject to the mortgage. This was an action of ejectment to recover possession of a portion of the rancho bordering on Islais Creek.

<p>Surplusage nf Verdict to be Disregarded.—If the verdict of a jury goes beyond the issues raised by the pleadings, and passes upon an extraneous fact not embraced therein, it is void pro tanto, and the surplus matter may be disregarded in entering the judgment.</p>

The defendant was indicted for forgery, alleged to have been committed on the 20th day of June, 1874, by forging a bill of sale of a band of sheep. The jury returned a verdict of guilty, and he moved for a new trial for error in the instructions, and appealed from the judgment and from an order denying the same. The record did not contain the testimony.

<p>Objection to Undertaking on Appear.—An objection to the form of the affidavit attached to an undertaking on appeal is not an objection to the sureties, which requires them to justify, and if there is a defect in the affidavit it may be supplied by filing a new undertaking in the Supreme Court, approved by the Chief Justice.</p> <p>Idem.—An objection to the sufficiency of sureties in an undertaking on appeal does not entitle the respondent to a dismissal of the appeal if the sureties fail to justify, provided the appellant files an undertaking in the Supreme Court approved by the Chief Justice.</p>

<p>Action against a Bankrupt while Proceedings are Pending.—If a debtor has been declared a bankrupt under the provisions of the act of Congress, a creditor, whose claim has been proved before the Commissioner in Bankruptcy, cannot commence an action against him to recover judgment on the claim before'the proceedings in bankruptcy have been determined, without permission of the Court in which the bankruptcy proceedings are pending.</p>

<p>Assault with Deadly Weapon.—An averment in an indictment that the defendant was armed with a deadly weapon and made an assault, is not an averment that the assault was made with a deadly weapon, and will not support a judgment as for a felonious assault.</p>

<p>Bubglary.—By the Penal Code, as amended in 1876, burglary committed in the night-time is burglary in the first degree, and burglary committed in the day-time is burglary in the second degree. An indictment should therefore charge burglary generally, and leave the degree to be determined by the verdict if the plea is not guilty, and by the Court if the plea is guilty.</p> <p>Duty ob Court on Plea ob Guilty.—If the defendant pleads guilty to an indictment which charges an ofíense which is divided into degrees, the Court, before passing sentence, must ascertain the degree.</p>

<p>Appeal from the District Court, Tenth Judicial District, County of Colusa.</p> <p>Colusa was an incorporated town, and its Board of Trustees had adopted the following ordinance: “ It shall be unlawful for any horses, mule, ass, sheep, goat, swine, or horned cattle to run at large in any of the streets, alleys, or public grounds within the incorporate limits of the Town of Colusa.” The Marshal of the town was by the ordinance authorized to “ arrest all stock found at large ” in violation of the ordinance. On the 29th of November, 1875, he seized a band of sheep belonging to the plaintiff, as running at large, in violation of the ordinance.</p> <p>This action was brought to recover possession of the sheep or their value. The Court rendered judgment in favor, of the defendant. The plaintiff appealed. The other facts are stated in the opinion.</p>

<p>Inspection of Papers Offered in Evidence.—If a witness is called to identify papers in order to lay the foundation for introducing them in evidence, the opposing counsel is entitled to an inspection of the papers before the close of the testimony, in order to enable him to offer testimony in explanation of the papers, or to disprove their authenticity.</p>

The statutes in force in the City and County of San Francisco in relation to cleaning streets, prior to April 3rd, 1876, empowered the Board of Supervisors to clean said streets, but left the mode and manner to its discretion. On the 3rd of April, 1876, the Legislature passed the following act: “ Sec. 1.

Application to the Supreme Court to be discharged on habeas corpus. On the 6th day of July, 1877, an information was laid before D. Hopkins, a Justice of the Peace at Stockton, San Joaquin County, charging E. N. Cahill with the crime of murder.

<p>Appeal from the Probate Court, City and County of San Erancisco.</p> <p>On the 12th day of July, 1876, H. P. Gallagher filed in said Probate Court the will of Mary Cunningham, deceased, and asked that it be admitted to probate. Patrick Cunningham filed an opposition to the probating of the will. Among the grounds of opposition were these two—that she did not execute the will, and that she signed it under undue influence on the part of Belle Coughlin and said Gallagher, who was named in the will as executor. The case was tried with a Jury, and special issues were submitted. Among the issues were these— “Did the deceased sign the will filed in this Court July 12th, 1876? ” “ Was the execution of that will obtained by undue influence ? ” Contestant introduced evidence to sustain the issues on his part. The Jury answered “ Yes ” to the first issue, and “ No ” to the second. The Court probated the will. The contestant appealed. The other facts are stated in the opinion.</p>

<p>Settlement of Pabtnebsbip Accounts.—A settlement of partnership accounts between the partners can only be made in action in which all the partners are parties.</p> <p>Idem.—If the liability of the defendant to the plaintiff depends on the settlement of the accounts between partners who are not parties to the action, the partners must be made parties before the case can be determined.</p>

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>In the summer of 1875, the plaintiffs, at the request of the Board of Supervisors, furnished the City and County of San Francisco grass seed of the value of four hundred and ninety dollars and fifty-five cents. The claim was presented to the Board of Supervisors for allowance, and was, along with many other claims, each less than five hundred dollars in amount, referred to the Finance and Auditing Committee. The committee reported in favor of allowing all the demands, and on the report the demands were allowed and ordered paid by a unanimous vote. The aggregate of all the claims was several thousand dollars, and they were all allowed at one vote. The defendant, the Auditor, claimed that each demand should have been voted on separately, and that an ordinance should have been passed, and refused to issue the warrant. This was an application for a writ of mandate requiring him to issue the warrant. The defendant appealed. The other facts are stated in the opinion.</p>

<p>Appeal from the County Court, County of Monterey.</p> <p>The defendant was convicted, and appealed from the judgment and from an order denying a new trial. The other facts are stated in the opinion.</p>

<p>Appeal from the County Court, City and County of San Francisco.</p> <p>The plaintiff, on the 31st day of March, 1875, leased to defendant Bert, for the term of five years, the theater on Mission Street known as Wade’s Opera House, the term to commence on the 17th day of January, 1876. Bert, on the 2nd day of August, 1876, sublet to defendant McDonald. The plaintiff served a notice in writing to deliver possession, but did not require a performance of the covenant. The plaintiff recovered judgment, and the defendants appealed. The other facts are stated in the opinion.</p>

The defendant was Marshal of the City of Los Angeles. The complaint alleged that the plaintiff owned a lot in said city, and that the city authorities had levied an assessment of one thousand six hundred and forty-three and twenty-two one-hundredths dollars on it for the construction of the main sewer of the city; and that the assessment was illegal and void, and without authority of law ; and that the Marshal had threatened to sell the lot on the 3rd of April, 1876, by…

<p>Appeal from the District Court, Nineteenth Judicial District, City and County of San Francisco.</p> <p>Wm. H. Carpenter owned the horse “ Chief Crowley,” and on the 7th day of February, 1874, entered into an agreement with the plaintiff, by which the plaintiff was to give him his (Cardinell’s) buggy and two hundred and fifty dollars for the horse, on Monday, the 9th day of February, following. On the 7th, after the agreement had been made with the plaintiff, Carpenter sold the horse to one Bennett for three hundred and fifty dollars, but at the same time informed Bennett of his agreement with the plaintiff. The plaintiff had paid Carpenter _qne dollar when he contracted with him, and on the 9th he called on Carpenter and delivered him his buggy, tendered him two hundred and forty-nine dollars, and demanded “ Chief Crowley.” Failing to obtain the horse, he brought this action to recover “ Chief Crowley,” or his value. The plaintiff recovered judgment, and the defendant appealed.</p>

¡Robert D. Taylor left San Francisco to go to Scotland, and arrived in the City of New York on.the 2nd day of May, 1872, sick. He was an Odd Fellow, and was taken charge of by Jacob S. Michaels, a brother Odd Fellow, and a Deputy Grand Master of the Order, who had him conveyed to the Metropolitan Hotel, where he died on the 4th of the same month. Michaels took care of Taylor while he was sick.

Indictment for assault with intent to commit murder. The defendant was convicted and appealed. The other facts are stated in the opinion.

The plaintiff, in his complaint, averred that on the 22nd day of December, 1874, the Superintendent of Streets in San Francisco issued an assessment to cover the expense of constructing a brick sewer, with man-hole and cover, in Valencia Street, from Eighteenth to Nineteenth, in San Francisco, and that the assessment, to the amount of one thousand eight hundred and forty and seventy-six one-hundredths dollars, was a lien on a lot owned by defendant on said street; and that…

The action was ejectment for a portion of fifty-vara lot No. 871 in San Franóisco. The father of the plaintiffs acquired title to the premises by original grant. He died intestate in 1853, and letters of administration were taken out by his widow, Priscilla. After proper proceedings had in the Probate Court the property was distributed to plaintiffs and their elder brother, the surviving children of the intestate. No partition was ever had.

<p>Publication of Delinquent Tax List.—When a statute requires that the delinquent tax list, together with the time and place of sale of the property for the delinquent tax, shall be published in a paper in the city or county, or in a supplement to such paper, such list, time, and place, if published in a supplement, must be published in one the circulation of which is coextensive, with that of the paper both in and out of the city and county.</p> <p>Defense against a Tax Deed.—If a delinquent tax list, and time and place of sale of property for the delinquent taxes, are not published as required by the Statute of 1859, the defendant may, under said statute, avail himself of the same as a defense in an action of ejectment brought against him by one claiming under a tax deed.</p>

<p>Appeal from the District Court, Fourteenth Judicial District, County of Placer.</p> <p>The Mineral Bar and Iowa Hill Bridge and Boad Company was incorporated to construct a turnpike road, and did construct such road and a bridge, from Iowa Hill, across the North Fork of the American River, to Illinoistown. The Board of Supervisors fixed the rate of toll at one dollar and seventy-five cents for four horses and a loaded wagon. The plaintiff had occasion to travel over the road and across the bridge with such a team, and the toll-gatherer demanded and received four dollars.</p> <p>The Constitution of this State gives the District Court jurisdiction in all cases where the demand, exclusive of interest, amounts to three hundred dollars. Below that sum, justices of the peace have jurisdiction.</p> <p>The Civil Code, sec. 518, provides that every toll-gatherer who demands or receives from any person liable to pay tolls more than he is authorized to collect, for each offense forfeits twenty-five dollars to the person aggrieved. This action was brought to recover the penalty of twenty-five dollars. The Court below rendered judgment for the plaintiff, and the defendant appealed. This is the second appeal. The first is reported in Yol. 51, p. 489.</p>

The answer did not specially plead the Statute of Frauds., The plaintiff had judgment. The defendant moved for a new trial, which was denied, and he appealed. The other facts are stated in the opinion.

The plaintiff brought suit against the defendant Ashman, Sheriff of Tulare County, and the other defendants,as sureties of the defendant Ashman, to recover on their bonds for the penalty of two hundred dollars, imposed by sec. 4179 of the Political Code, for neglect to levy upon property when requested. The cause of action arose out of three judgments obtained in a Justice’s Court, two of which were assigned to plaintiff, the other being in his own name.

Ejectment to recover a lot in San Francisco. The complaint •alleged that the defendants had ousted the plaintiff, and that they were in possession. The answer denied the allegations. The Court rendered judgment for the defendants, and the plaintiff appealed. The other facts are stated in the opinion.

Action of trespass for having removed fence from .and destroyed grain grown on Block No. 6, in the Town of Santa Barbara. The defendant Ames was the Marshal, the defendant Richards was Mayor, and the other defendants were members of the Council of the Town of Santa Barbara.

<p>Appeal from the District Court, Third Judicial District, County of Alameda.</p> <p>Ejectment to recover a tract of land in Alameda County. The plaintiff recovered judgment, and the defendant Lindy appealed. The other facts are stated in the opinion.</p>

<p>Wbit of Attachment.—A writ of attachment will not lie in an action to recover from the defendants money which the plaintiffs entrusted to their clerk, and which the defendants won from him in gambling.</p>

The plaintiff, in her complaint, averred that, on the 23rd day of October, 1872, a suit was pending in the Nineteenth District Court wherein Ida Jenner was plaintiff, and George Stroh was defendant; and that an attachment had been issued in the case, and levied on the property of said Stroh; and that a judgment by default had been entered therein in favor of the plaintiff’; and that, in order to procure the setting aside of the judgment, and the release of the attachment,…

The plaintiff, on the 20th day of December, 1872,- obtained judgment against the defendant, in an action of ejectment, for the recovery of the possession of. a tract of public land, described as the southwest one-quarter of section seventeen, township two south, range thirteen west, San Bernardino meridian, and the defendant was removed from the premises under the judgment..

Ejectment to recover forty acres of land, part of the north-east one-fourth of section sixteen, township two south, range Ho. 13 west, San Bernardino meridian.

<p>Transfer of Stock of Corporation.—If the owners of a mining claim agree to incorporate and. to take stock in the corporation in proportion to the interest of each in the mine, and before the corporation has been created one transfers to a third person shares of stock to be issued as soon as the •corporation is in existence, and gives him a certificate to that effect, the corporation is not bound by the transfer or certificate, and is not obliged to issue the stock to such third person.</p>

Application to the Supreme Court for writ of prohibition. The petitioner Julius Chester was the proprietor and editor of a weekly newspaper published at Bakersfield, Kern County, called the “ Southern Californian and Kern County Weekly Courier,” and on the 22nd day of November, 1877, published an editorial in the paper reflecting on the County Judge for his action-in a case of contempt then pending before him, in which .George V. Smith, an attorney at law, was the party…

The Intervener, Isaac Miller, appeals. The action was brought to decide a contest between adverse applicants in the Surveyor-General’s Office to purchase the same tract of school land included in a sixteenth section. Oakley sues to have his application for the land approved, and to have the certificates of purchase to Stuart and Linebaugh declared null and void.

José Santiago Barton was a resident of the County of Los Angeles, where, on the 22nd day of September, 1876, he died, leaving real estate valued at about $10,000, and an instrument, written and subscribed by himself, as follows: “ WILL. “ January 30th, 1875. “ This is to show that if anything should happen to me, and I should fail suddenly, I, the undersigned, will, after paying all ■debts, all my property to William and Joseph Perdeu, brothers. “ (Signed) Jas.

Both parties appeal—the plaintiff from so much of the decree as refuses an accounting, and the defendants from the rest of it. The complaint alleges that the plaintiff and defendants are tenants in common of a certain quartz claim, described as situated in the County of Butte, and known as the Spring Valley Quartz Mining Claim; that he is the owner in fee of an undivided one-fourth of said claim, and that the defendants held like proportions; that the interests of said Chas.

<p>Pleading—Tenants in Common. — The Government of the United States issued a patent for a Mexican grant to Meyer, Bennitz, Hendy, Glein, and Duncan, jointly. Prior to the issuing of the patent, Meyer and Bennitz conveyed to Bihler; and Glein and Hendy conveyed to Platt. Subsequently Bihler brought suit against Platt, but not against Duncan, to quiet title to a specific part of the grant claimed under a deed from Rufus, the original grantee. The plaintiff alleged in his complaint that he was the owner in fee-simple absolute of the land in controversy. Held, that the legal title conveyed by the patent vested in the five patentees as tenants in common, and that whatever equities the plaintiff had founded on the specific conveyance must be determined in an action with appropriate pleadings, in which all the necessary parties are before the Court.</p>

Defendant appeals. This proceeding is mandamus to compel the Board of Supervisors of the City and County of San Francisco to order a demand of plaintiff: against the City and County of San Francisco, for the sum of two thousand eight hundred and thirty dollars and fifty cents, claimed to have been expended by plaintiff during his term of office as Assessor of said city and county between the 2nd day of December, A. D. 1867, and the 5th day of December, a. d. 1869, the last…

Plaintiff appeals. The complaint in substance alleges that one Richardson, being the owner of certain parcels of land in San Francisco, bargained with the plaintiff for the same, whereby he (Richardson) agreed to sell and plaintiff agreed to buy, for the sum of two hundred thousand dollars.

The action is for the recovery of certain personal property. The defense relies upon attachment proceedings and fraud in plaintiff purchasing the property, for the purpose of hindering and delaying creditors. The opinion states the other facts. Defendant appeals.

In 1874, William McCausland died intestate in the City and County of San Francisco, leaving an estate situated partly in San Francisco and partly in Santa Clara County. Letters of administration were issued by the Probate Court of Santa Clara County to the Public Administrator of that county.

On the 15th day of October, 1868, the defendant located, and, on the 16th day of December, 1868, purchased from the State the north half of section eighteen, township number nine north, range thirty-three west, San Bernardino base and meridian, lying in the County of Santa Barbara, and containing. three hundred and twenty acres. On the day of purchase, the defendant received from the State a certificate of purchase numbered one thousand three hundred and ninety-three.

Defendant appeals. The action is ejectment; both plaintiff and defendant relying on different chains of title traced from the patentees of the Jimeno Rancho. The opinion states the facts.

The action is to recover possession of certain wheat alleged to belong to plaintiff, and wrongfully and unlawfully withheld by defendant. Defendant appeals.

The action was originally brought against the W. P. R. R. Co., the W. P. E. R., the C. P. E. E. Co., and Charles McLaughlin, to foreclose a mechanic’s lien upon a section of the W. P. E. E. Judgment of foreclosure was rendered and the defendants appealed to this Court, where the judgment below was reversed, as will be seen in the report of the case, 44 Cal. 18.

Defendant appeals. . Action brought to recover delinquent taxes.

Defendant appeals. The plaintiff, a boy six years old a,t the time he was injured, sues to recover damages for personal injuries sustained, as alleged, by reason of the negligence of the defendant. He was residing with his parents, whose residence was situated seventeen rods from the place where he received the injuries in question.

Plaintiff appeals. Action to quiet title to certain mining ground. Several grounds of error were relied upon; but as the • opinion goes to only one of them, a further statement is unnecessary.

<p>Application for discharge on habeas corpus.</p>

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

The defendant was indicted for forging the names' of Smith and Harris, School Trustees of the West Point District, County of Calaveras, to an order on the Superintendent of Schools for the payment of money on account of teaching. Smith, one of the Trustees, was called as a witness by the prosecution, and testified that he did not sign his name to the order.

E. G. Feed owned a tract of land in Tehama County, and contracted with James Pierce to farm it, Heed furnishing the land alone, and receiving one-fourth of the crop. Pierce, not having the means to cultivate, entered into a partnership with Clark and Mayhew, they to furnish the materials, and Pierce to do the work, and the three-fourths of the crop belonging to Pierce to he equally divided.

The fraud alleged was this : W. M. Blankenship located and purchased from the State the north half of section sixteen, township twenty-one south, of range twenty-five east, Mount Diablo meridian; and that he also located and purchased from the State the south half of the same section in the name of his wife ; and that the two then deeded it to their son Zachariah, to whom the patent was issued.

Action against the defendant and a tract of land in the May-field School District, County of Santa Clara, to recover a school tax of $387.30 imposed on the land. The Court rendered judgment' against the defendants, and they appealed. The other facts are stated in the opinion.

This was an original application to the Supreme Court for a writ of prohibition to restrain the Board of Supervisors of Santa Barbara County from electing a successor to the petitioner as Sheriff.

Plaintiff appeals. In 1871 the plaintiff purchased and in 1872 he received a patent from the United States for certain improved land, situated in the County of El Dorado. From a time long prior to said purchase plaintiff had resided with his family upon said land, which is especially valuable for a spring of water thereon, appropriated and used by him for irrigating a variety of fruit-trees *and garden vegetables.

<p>Homestead.—To constitute a valid homestead, the homestead claimant must actuaUy reside on the premises when the declaration is filed.</p>

<p>Appeal from the District Court of the Twentieth Judicial District,'County of Monterey.</p> <p>Plaintiff appeals.</p>

<p>Sureties on Guardian’s Bond.—An action will not lie against the sureties on the bond of the guardian of an infant until the account of the guardian has been settled hy the Prohate Court.</p> <p>Accounts or Guardians. — The Probate Court has authority to settle the accounts of the guardian of an infant after his letters are revoked.</p>

Plaintiff applied to the District Court for a writ of mandate compelling the Probate Judge of Placer County to proceed and settle the account of the deceased executor John C. Keenan.The petition for the writ alleged that Rosanna H. Keenan died in 1865, at the County of Sacramento, leaving real property in said county, and also a will devising her property, after paying certain legacies, in equal shares to an adopted minor son and her husband John C. Keenan, who was named in…

<p>Appeal from the District Court of the Twenty-first Judicial District, County of Lassen.</p> <p>Plaintiff appeals.</p> <p>Action brought for diversion of water.</p>

<p>Mortgage.—Where, upon a foreclosure of a mortgage, the mortgagee purchases the land for a sum less than the amount of the judgment, and dockets a judgment for the deficiency, the purchaser from the mortgagor of the land, pending the time for redemption, is entitled as successor in interest to redeem from the mortgagee, without payingthe amount of the deficiency.</p> <p>Redemption.—The former rule, that when real estate which is subject to a judgment-lien is sold on an execution on the judgment, to the judgment-creditor, for a sum less than the whole amount of the judgment, the judgment-creditor continues to be “a creditor having a lien” for the unsatisfied portion of the judgment upon the property sold under the execution, and that neither the judgment-debtor or a redemptioner with a subsequent lien could redeem without paying said judgment, has been changed by the Code of Civil Procedure.</p> <p>Idem.—During the time for redemption the legal title is in the mortgagor, and may be conveyed by him, and the grantee becomes entitled to redeem, without paying to the mortgagee the unsatisfied portion of the judgment under which the property was sold to him, and the judgment for the deficiency is not a lien on the land.</p>

The complaint in substance alleges a partnership; that plaintiff advanced money for the purchase of materials over and above the amount contributed by defendant; that defendant collected sums of money due the firm, and appropriated the same to his own use; then follows a prayer for a dissolution and accounting. The partnership was formed January 24th, 1873; the action was commenced October 6th, 1876.

<p>Appeal from the District Court, Twentieth Judicial District, County of Santa Clara.</p> <p>Plaintiff appeals.</p>

The action was ejectment for an undivided part and interest of, and equal to seven hundred and fifty acres in the Rancho Las Animas.

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

Henry Frey died January 24th, 1874, leaving a will, by which, after the payment of his debts and expenses of administration, he gave one-half of all his property to his wife, Eosine Frey, and the other half to the children of Jacob Frey, his brother, and nominated said Eosine Frey and Jacob Frey executrix and executor.

The defendant, The Clear Lake Water Works, was a corporation, and had commenced the excavation of a ditch from Cache Creek for the irrigation of land in Capay Valley. The defendant Everett owned a tract of over one thousand acres of land in the head of the valley, and was desirous of irrigating the same with water to flow in the ditch.

The action is ejectment. The Court below rendered judgment in favor of the plaintiff, and defendant appeals from the order denying a motion for a new trial and from the judgment. Plaintiff relied upon a conveyance from Gideon Aughinbaugh, dated October 15th, 1855, to one Tinsley, from whom she derived by mesne conveyances.

The action was brought to recover damages for a trespass alleged to have been'committed by the defendants “in tearing down and destroying a large amount of valuable fence, and in trampling down and destroying a large amount of grain.” Richards was the Mayor, Lataillade, Rynerson, and Pierce were members of the Common Council, and Ames was City Marshal of the City of Santa Barbara.