Volume 53 — California Reports

The plaintiff, on May 10th, 1876, filed a complaint, alleging that on the 28th of April, 1876, John Temple, a minor of the age of twenty years, the son of the plaintiff, was the owner of ninety head of cattle, of the value of S3,000, and that the plaintiff then had the property in her possession, “ as the mother of said John Temple, taking care of the same for said John.” That at the same time and place, one Lucinda Temple, a daughter of said plaintiff, a minor of the age of…

The action was trover for the value of eighty-eight thousand two hundred pounds of wheat and thirty thousand pounds of barley. The answer denied the conversion.

<p>Appeal from the District Court of the Fifth Judicial District, San Joaquin County.</p> <p>[For the report of a former appeal in this case, see 45 Cal. 680.]</p> <p>The action was commenced December 10th, 1870, to recover possession of a turnpike road-bed, for fifty dollars damages in the withholding thereof, and for seven thousand dollars damages for waste and injury thereto. The portion of the turnpike road-bed in controversy was within the corporate limits of Stockton, being that part of the road on Weber Avenue, between Aurora and East Streets, two thousand two hundred and eighty feet in length. It was constructed in 1868, by authority of the Board of Supervisors, and tolls were collected until August, 1869, when the collecting of tolls was discontinued. In November, 1870, the Common Council granted to the defendant the privilege of building its railroad along the central line of the avenue, and the road was built soon afterward. The avenue is one hundred and ten feet wide, and the defendant’s track is eight feet wide. When the gravel road was constructed, the land in controversy was not within the city limits, but in 1870 an act of the Legislature enlarged the limits so as to include it.</p> <p>At the trial, the plaintiff did not prove any damage except a slight diminution of tolls. The jury returned a verdict for five thousand five hundred dollars. The defendant moved for a new trial, which was denied, and it appealed.</p>

' Appeal from the District Court of the Fourth Judicial District, San Francisco. The action was replevin for household furniture. An amended complaint was filed, containing a list of the articles sued for. The findings recite that, on the 22nd of November, 1875, the plaintiff was the owner of the articles mentioned in the complaint, “ except the following articles therein enumerated, to wit: ” (naming them).

The action .was brought to foreclose a mortgage, and the defendant Spence, who claimed title adversely to the plaintiff, was impleaded with the mortgagee, defendant Minor. Judgment was rendered against both defendants, and they appealed.

The plaintiff brought this action as the ward of one Temple against the defendant and others to recover upon the bond for the failure of Temple to account for various sums of money received as guardian of plaintiff. The complaint was subsequently amended so as to proceed against Temple alone, but did not allege that any effort had been made to compel an accounting in the Probate Court. The defendant filed a general demurrer, which was overruled.

<p>Appeal from the District Court of the Eighteenth Judicial District, San Bernardino County.</p> <p>The plaintiff, as the lessee of certain agricultural lands, brought this action, alleging in his complaint that he had a leasehold estate for four years ; that Little Creek flows through the premises ; that the defendants adversely claim some interest in the premises and in the use and flow of the water; that such interests were without foundation in law; and he prayed that the Court so decree. The defendants had judgment of nonsuit, and the plaintiff appealed.</p>

<p>Appeal from the Probate Court of Los Angeles County.</p> <p>The decedent, Jeff. White, died testate April 12th, 1877, naming in his will Kate M. Bachman as sole executrix, without bonds. Upon the petition óf Virginia R. Green, who was interested in the estate, alleging youth, inexperience, and irresponsibility of the executrix, the Probate Court made an order August 13th, 1877, revoking the letters testamentary previously granted, and suspending the powers of the executrix until after a hearing of the application for an order requiring bonds to be given.</p> <p>From this order the executrix appealed.</p>

The action was replevin for lumber drifted down the Mokelumne River, by plaintiff’s assignor. The answer was a general denial. At the trial, it appeared that the lumber lodged on defendant’s land, and he hauled it to his dwelling-house, where he split it up for cordwood. The defendant admitted lie had not been damaged by the lumber. After the plaintiff had introduced his evidence, the defendant moved for a nonsuit, which was granted.

The action was replevin for lumber lodged upon the land of the defendant, and the facts are analogous to those in Flanders v. D. J. Loche, (ante, p. 20) except that the defendant claimed damages in the sum of one hundred dollars, and the plaintiff requested that appraisers be appointed ; when the defendant replied, “ No; I have set the damage myself, and I will not let the lumber go until I get it.” A nonsuit was granted, and the plaintiff appealed.

<p>Appeal from the District Court of the Fifteenth Judicial District, Contra Costa County.</p> <p>The action was brought in a Justice’s Court to «recover two hundred and ninety-nine dollars damages for removing a fence, of which the plaintiff was the owner, (so he alleged) from land alleged to be in possession of plaintiff. The defendant answered, setting up title to the land, and under sec. 838 Code of Civil Procedure the action was transferred to the District Court, where it was tried without a jury, and the plaintiff had judgment in the sum of one hundred and seventeen dollars “ in gold coin.” The defendant appealed.</p>

The plaintiffs, as tenants in common with the defendants, commenced these proceedings for the partition of their interests • in the property known as the “ Connor Ditch,” a water ditch used for mining. They asked for a sale and a division of the proceeds, as the property was not capable of division in any other way. The defendants answered, raising various issues as to the interests and rights of the respective parties.

<p>Appeal from the District Court of the Ninth Judicial District, Siskiyou County.</p> <p>The action was for divorce, by the wife against the husband. The complaint assigned three grounds—willful desertion for four years; cruel and inhuman treatment, in the clandestine removal of the plaintiff’s children from plaintiff in Siskiyou County, of this State, to Jackson County, Oregon—thereby causing plaintiff great mental suffering; and willful neglect to provide for the support of the plaintiff. The answer denied all the allegations of the complaint.</p> <p>The evidence adduced at the trial showed that the parties had lived separate for four years—the plaintiff at the home of her parents ; that the .defendant had at various intervals contributed one hundred and fifty-three dollars in money and other supplies from the store for the support of the plaintiff; that the plaintiff had never applied for anything further; that the defendant had removed the "children to the Ashland Academy, Oregon, in order to send them to school; that he had removed them on Saturday, and informed the plaintiff on the following Monday where they were; that the plaintiff was greatly afflicted in mind by the loss of the children, and succeeded in recovering two of them; and that the defendant was somewhat intemperate and addicted to gambling.</p> <p>The defendant moved for a nonsuit, which was denied. He declined to offer any evidence, and a decree of divorce was rendered. The defendant appealed from the judgment and from the order overruling the motion for a nonsuit.</p>

The action was brought to recover six hundred and forty-three dollars, as balance due upon stock transactions in September, 1874. The answer admitted the transactions, but set up a counter-claim, and pleaded payment in full upon an accounting and settlement. The Court found that in December, 1874, the defendant had settled with one Morgan, then the attorney of plaintiff, paying three hundred and eleven dollars in full of all demands.

This was a proceeding for the condemnation of land for school purposes. Judgment was rendered for the defendant, and the plaintiffs appealed. The other facts are stated in the opinion.

<p>Appeal from the District Court of the Thirteenth Judicial District, Fresno County.</p> <p>This was an action to establish a trust estate in land, and was commenced before the amendment to sec. 581, which took effect April 26th, 1878. The defendants answered, filing cross-complaints, in which they asked for affirmative relief in having their title quieted. ’ Before the trial, upon the application of the plaintiffs, the Clerk entered judgment of dismissal. Subsequently, upon the motion of the defendants, the Court made an order vacating the judgment of dismissal, and from that order the plaintiffs appealed.</p>

<p>Negligence—Testimony of Experts.—When, the facts from -which negligence is sought to he inferred are within the experience of all men of common education, the jury must determine the question of negligence without the aid of experts.</p>

<p>Appeal from the District Court of the Twelfth Judicial District, San Francisco.</p> <p>This case was before the Supreme Court upon a former appeal, which is reported in 38 Cal. 24. The action was brought in April, 1867, to recover money alleged to be due upon two promissory notes. Judgment was rendered for the plaintiff in February, 1875, and the defendant moved for a new trial, which was granted. The plaintiff appealed. The eleventh assignment of error, referred to in the opinion, is as follows: “ That the judgment should be set aside and a new trial granted because no findings were filed (and the same were not waived) before the entry of judgment.”</p> <p>In deciding the motion for a new trial the Court below used the following language:</p> <p>“ In this case it appears from the statement on appeal that there were no findings filed and that they were not waived. If this fact appeared by bill of exceptions there can be no doubt, under the recent decisions of the Supreme Court, but there would be such error as would reverse the judgment. I can see no difference in principle between a bill of exceptions and a motion for a new trial, as to this error in a trial. The findings are never filed until after a trial, and an assignment of error is practically therefore a bill of exceptions as to such an error.”</p>

The action was brought to recover damages for injuries to the plaintiff while in the service of the defendant as longshoreman, in loading the ship Western Shore with wheat. The plaintiff was employed in taking sacks of wheat from a table in the hold of the vessel and in stowing them away in various parts of the hold. The sacks were slid down a chute to the table, and it appears in evidence that the chute was so steep as to give the sacks great velocity.

The action was brought to quiet title, and the complaint was in the.usual form. The-answer contained a general denial and other allegations, concluding with a prayer that a conveyance be decreed from the plaintiffs to defendant, and for general relief. The decree was rendered for the plaintiffs. The defendant asked for a new trial, which was denied, and he appealed.

<p>Appeal from the District Court of the Seventeenth Judicial District, Los Angeles County.</p> <p>The action was to quiet title. The facts are stated in the opinion.</p>

The action was ejectment for one-third of a fifty-vara lot in San Francisco, and was commenced May 17th, 1871. The defendant pleaded the Statute of Limitations, deraigning title from E. J. Baldwin, by a deed dated May 9th, 1862, and claiming continuous adverse possession for more than five years thereafter. The plaintiff deraigned title from A. Wolf, by deed of May 7th, 1871.

The action was brought to collect a street assessment levied by the Board of Supervisors in March, 1873, under a “resolution of intention ” describing the work as follows: “ That the roadway of Eighth Street, from Folsom to Harrison Streets, be paved with cobble-stones; that cross-walks and curbs be furnished and laid thereon where necessary; that sidewalks be constructed thereon where not already constructed, and that the sidewalks be reconstructed where necessary.” This…

The action was brought to enforce the terms of a contract for the purchase of land, made by the defendant Jones, with the plaintiff.

<p>Appeal from the District Court of the Thirteenth Judicial District, Fresno County.</p> <p>The action was replevin for three hundred and forty-five head of cattle belonging to the plaintiffs. The defendant justified the detention of the cattle by virtue of certain proceedings in the Justice’s Court, under the Act of February 4th, 1874, x (Stats. 1873-4, p. 50) “to protect agriculture, and to prevent trespassing of animals on private property' in the counties of Fresno, Tulare,” etc. He offered in evidence against the plaintiffs’ objections the record in the Justice’s Court, and it was admitted. Judgment was rendered for‘the defendant, and the plaintiffs appealed.</p>

<p>Street Assessment — Sufficiency of Notice.—The erroneous use of the word “regraded” instead of “graded,” in the notice inviting sealed proposals for the grading of a street, does not vitiate the notice.</p>

<p>Appeal from the District Court of the Nineteenth Judicial District, City and County of San Francisco.</p> <p>The plaintiff put a witness on the stand to prove the demand, and he testified as follows:</p> <p>“Question. Did you see anybody on lot two or three? Answer. No, sir; not that I remember. Q. Are you sure? A. Tes, sir; pretty sure; there might have been—way back— probably; there might have been a house way back on the rear, or something; there was none in front for one hundred and fifty or two hundred feet. Q. Did you look to see whether there was one there or not? A. I could not judge very well, according to this diagram—such a distance; there might have been on the rear—right on the edge of the lot. Q. This is a very large lot—two—isn’t it? A. Yes, sir. Q. In what tone of voice did you make that demand? A. Well, I just said the amount due on lot two. Q. What tone of voice— how loud did you speak ? A. I spoke so anybody could hear me. Q. How loud ? A. I would go on the lot and say, I demand so much money. Q. About that tone of voice? A. Yes, sir. Q. When you said, I demand so much money, did you name the amount of money you then demanded ? A. Yes, sir. Q. Did you read from the assessment ? A. Yes, sir; I took it from the assessment. I made demand on lot two, on the edge of the lot near Kearny Street.”</p> <p>The Court rendered judgment of nonsuit, and the plaintiff appealed.</p>

Action to recover a street assessment. Relative to the description of the property the Court found as follows: That on the 17th day of May, A. D. 1871, the Superintendent of Streets, Highways, and Squares of the City and County of San Francisco, State of California, did, in his official capacity, and not otherwise, issue an assessment to cover the expenses of the work hereinafter mentioned.

<p>Statute op Ebauds.—A parol contract to answer for the debt of another is void.</p>

<p>Appeal from the District Court of the Thirteenth Judicial District, County of Tulare.</p> <p>The case was tried by the Court with a jury, and the verdict was for the defendant. Judgment was rendered accordingly. The plaintiff moved for a new trial, which was denied, and he appealed. The other facts are stated by the Court.</p>

<p>¡Negligence—Pboxbiate Cause.—In actions for negligence the damages to be recovered are only those of which the negligent act is the proximate cause.</p> <p>Cohtbadictoby Instbuctions.—Where contradictory instructions are submitted to a jury, error in one instruction will not be held to be cured by the other instruction, as it is impossible to determine on which of them the jury-acted.</p>

<p>Appeal from the County Court of San Joaquin County.</p> <p>The defendant was indicted for the crime of robbery committed from the person of George Kimble. At the trial, Kimble testified that while he was carrying a washboard in his hands through a street in Stockton, he was knocked down by one Meehan. Kimble immediately shouted “Police,” when a person standing near whom he recognized as the defendant said, “ Hit him again.” Kimble became insensible; and when he recovered, his purse, containing one hundred and thirty-five dollars, was gone. There was evidence that Kimble was intoxicated ; that he was not struck; that Meehan seized the washboard and snatched the purse from Kimble’s pocket at the same instant, and that it was some time afterwards that he discovered his loss and was accosted by the defendant.</p> <p>The defendant asked the Court to instruct the jury as stated in the opinion, but the instruction was refused. He was convicted of robbery, moved for a new trial, which was denied, and appealed.</p>

. The defendant was tried and convicted of the crime of robbery. He moved for a new trial, which was denied, and he appealed. The other facts are stated by the Court.

<p>Rape.—Force is a necessary element in the crime of rape. The employment of arts and devices, without violence, by which the moral nature of a female is corrupted so that she is no longer able to resist the temptation to yield to sexual desire is not sufficient to constitute rape.</p> <p>Sake—Seduction.—The testimony of medical experts in a trial for rape, as to the effect of indecent liberties upon the mind of the female, is inadmissible. Such acts are to be classed under the head of solicitation, and distinguish the crime of seduction from that of rape.</p>

<p>Deveeuakt in a CrcnnxAii Case as a "Witness.—The failure of a defendant in a criminal case to become a witness in his own behalf is not to be considered by the jury as a circumstance tending to establish gnilt, and it is error to permit counsel so to argue against the objections of defendant’s counsel.</p>

<p>Evidence Contbadicting Witness.—A witness cannot be cross-examined as to any fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting him by other evidence if he should deny it, thereby to discredit his testimony.</p> <p>Same.—If a question is put to a witness which is collateral or irrelevant, his answer cannot be contradicted by the party who asked the question, but is conclusive against him.</p>

<p>Appeal from the District Court of the Tenth Judicial District, Colusa County.</p> <p>The defendant was tried and convicted of the crime of murder, whereupon he appealed. The other facts are stated in the opinion. ■ •</p>

The defendant was tried for the crime of robbery. At the . trial the Court permitted the District Attorney, for the purpose of impeaching the veracity of a witness who had testified in behalf of the defendant, to ask. the question as stated in the opinion of the Court. The defendant was convicted, and appealed.

■ Appeal from the District Court of the Thirteenth Judicial District, Merced County. The action was brought to recover the value of goods sold and delivered. The defendant Samuel Scott was served with a copy of the summons and complaint within the county, April 25th, 1877, but informed his counsel that the service was on the 26th. No answer having been filed within the ten days, default was entered May 7th, 1877.

The complaint was as follows: “ [Title of Court and Cause.] “ The plaintiffs in the above entitled cause complain of the defendant, Samuel Scott, and allege and show: “ That the plaintiffs were partners doing business as merchants in Merced, Merced County, California, under the name and firm style of Simon, Jacobs & Co.; that the defendant is justly indebted to the plaintiffs in the sum of one thousand and sixty-six dollars and two cents, with legal interest thereon from the…

<p>Leen of Subsequent Judgment—Homestead.—Where a mortgagor filed a homestead subsequent to a second mortgage, and both mortgages were foreclosed, the first mortgage and part of the second being paid, and judgment for the deficiency due the second mortgagee being docketed: held, that the lien of the docketed deficiency was superseded by the homestead.</p> <p>Idem-Redemption.—In such a case, the second mortgagee could not redeem from the purchaser at the mortgage sale.</p> <p>Tender of Redemption Money.—The tender of the redemption money extinguishes the purchaser’s lien, and is equivalent to payment.</p>

<p>Street Assessments kmor to the Act oe April 4th, 1870.—The Act of April 4th, 1870, relative to street assessments in San Francisco, does not apply to contracts made previous to the passage of that act, nor to the remedies for their enforcement.</p>

<p>Street Assessment in Stockton.—Under the Act of March 27th, 1872, “ to reincorporate the City of Stockton,” notices inviting sealed proposals to do street work must refer to a diagram and specifications of the proposed work.</p>

<p>Estates of Decedents—Defective Findings.—In. an'action to recover a disallowed claim against an estate, which was not presented within ten months after the notice to creditors, the findings must show when the claim became due.</p>

<p>Street Assessment in Stockton.—The adoption of a resolution by the City Council of Stockton, directing the publication of advertisements inviting proposals for street work, to be done “in accordance with the plans and specifications therefor now on file in the office of the City Clerk,” is equivalent to the adoption of such plans and specifications, and is tantamount to a prior direction to the City Surveyor to make a survey, diagram, estimates, and specifications.</p>

The action was brought to recover from the defendant Harlan, as principal, and from the other defendants as sureties upon an administrator’s bond. Defendant Watson answered separately, and set up the defense that prior to the breach out of which the plaintiff’s cause of action arose he had filed his petition and obtained an order releasing him as bondsman. The findings are silent upon this issue.

<p>Appeal from the District Court of the Twentieth Judicial District, San Benito County.</p> <p>The action was brought to recover a fee of one thousand two hundred dollars for professional services as attorneys. The answer denied the indebtedness, alleged a special contract, under which the plaintiffs were employed at a per diem, and set up a counter-claim for money lent. The plaintiffs in their reply denied all these allegations. The findings were as follows:</p> <p>“Fihdihgs.—This cause was, by consent of both parties, tried before the Court without a jury. From the testimony adduced, I find the facts as follows:</p> <p>“ 1st. The plaintiffs are attorneys at law, and during a portion of the year 1870 were practicing as copartners at the County * of San Benito, in the State of California.</p> <p>“ 2nd. While so engaged, the defendant employed plaintiffs to attend to certain legal matters in which he was then interested, to wit: to prosecute an action of ejectment in the District Court of San Benito County, and also to attend to certain proceedings in the Probate Court of San Francisco, wherein said defendant was interested in the estate of one A. G. Smith, deceased.</p> <p>“ 3rd. The ejectment suit was not prosecuted by plaintiffs to final judgment, but before the trial of this case they withdrew from said case as attorneys of record, and other attorneys were substituted. In the proceeding in the Probate Court, they attended'to the interest of the defendant until a final distribution was had, the defendant realizing from said estate about the sum of twenty-five hundred dollars.</p> <p>“4th. There was no special contract as to what should be paid to plaintiffs for their services in the probate proceedings. In attendance to the same, one member of plaintiff’s firm twice visited San Francisco.</p> <p>“The plaintiff’s services in said probate proceedings were reasonably worth four hundred dollars; no part of the same has been paid by defendant.</p> <p>“ Conclusion of Law.—That plaintiffs are entitled to judgment against said defendant for the sum of four hundred dollars and costs of suit. Judgment accordingly.</p> <p>“ May 5th, 1877. D. Belden,</p> <p>“ [Endorsed] Filed June 4th, 1877. District Judge.”</p> <p>Judgment was rendered accordingly, and the defendant appealed June 28th, 1877. Subsequently—August 6th, 1877— upon motion of plaintiffs, additional findings were filed, and the defendant appealed from the order granting the motion to amend the findings.</p>

The defendant applied to purchase the land in controversy June 12th, 1868; his application was affirmed January 20th, 1878; a certificate of purchase was issued to him March 14th, 1878, the usual payment being made by him, and on the 15th of March, 1875, he paid the full purchase price to the Treasurer of Los Angeles County, and forwarding his certificate of purchase to the Surveyor General, demanded a patent.

<p>Damages fob Wrongful Seizure of Property.—The measure of damages for the wrongful seizure and detention of property hy attachment is the market value of the use of the property during the time of the detention, not its value to the plaintiff.</p> <p>Counter-claim.—In the case stated, it was error to require proof of special agreement for pasturage on land not leased to defendant.</p>

The action was brought to foreclose a mortgage given to secure the payment of a promissory note executed by the defendant, as follows: “15,000.

<p>Appeal from the District Court of the Sixth Judicial District, Sacramento County.</p> <p>The action was brought to recover damages to plaintiff’s farming" lands, caused by the debris from the defendant’s hydraulic mining operations. The defendant, a corporation, was engaged in hydraulic mining from 1871 to 1877. A large stream of water was used by the defendant night and day to wash down the gravel banks of the mining ground, and the tailings were carried off by means of flumes down a hill, flowing upon the plaintiff’s lands and covering up valuable portions thereof with stones, gravel, and mud, to a depth of several feet, thereby rendering it unfit for agriculture. The plaintiff’s land, before he acquired it, had been subdivided into several parcels or “ranches,” all of which was "known as the Clark Ranch. The original complaint, filed March 30th, 1875, did not include the Clark Ranch in the description of the land injured by the debris. An amended complaint was filed January 3rd, 1877, including the Clark Ranch, and counting on damages for injuries committed three years prior to the filing of the original complaint. To this amendment the defendants pleaded the three years Statute of Limitations, (Code of Civil Procedure, sec. 338, sub. 2) and at the trial the Court was requested by'the defendant to give the instruction quoted in the-opinion, but refused. The jury returned a verdict for the plaintiff in the sum of four thousand dollars, and judgment having been rendered accordingly, the defendant appealed.</p>

This action was brought to recover an assessment of five hundred dollars upon five shares of the plaintiff’s capital stock. The plaintiff is a railroad corporation, organized in June, 1873, with a capital stock of one million dollars, divided into ten thousand shares, for the purpose of building a narrow-gauge railroad through Santa Cruz County, along the sea-coast.

<p>Appeal from the District Court of the Seventeenth Judicial District, County of Los Angeles.</p> <p>The complaint alleges that on March 25th, 1872, the plaintiff being seized in fee and possessed of the Rancho Topango Malibu, agreed, in writing, to sell the same to the defendant Carrie for the sum of thirty-five thousand dollars, of which she agreed to pay one-third upon delivery of the agreement, and the balance on or before the 26th day of June, 1872, with interest on the deferred payment at the rate of ten per cent, per annum; that the said defendant paid eleven thousand six hundred and sixty-six dollars and sixty cents, in accordance with the agreement, and thereafter failed and refused to pay any portion of the balance; that the defendant Carrie S. Lewis, with her sons, moved upon and took possession of said Rancho, and resided there for about the space of sixty days; that she then abandoned said lands and returned to the City of Cleveland, State of Ohio ; that she wholly quit and abandoned said lands, and also said contract; that said contract still remains in her hands, and that the record thereof, unsatisfied and uncanceled, remains in the Recorder’s Office, and operates as a cloud upon plaintiff’s title, and that he is unable to sell the said lands by reason of said cloud, to his great damage. The complaint sets out the contract in full, including the following clause: “ In the event of a failure to comply with the terms hereof by the said party of the second part, the said party of the first part shall be released from all obligations in law or equity to convey said property, and said party of the second part shall forfeit all right thereto, and the said party of the first part on receiving said payment, at the time and in the manner above mentioned, agrees to execute and deliver to the said party of the second part, or to her assigns, a good and sufficient deed, in form to be a bargain and sale deed, and to give her the United States patent therefor when issued, and it is understood that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators, and assigns of the respective parties.” The prayer of the complaint was that the plaintiff’s title be quieted as against the defendants, that' they be forever barred from asserting any claim under the said agreement, and that the money already paid by the defendants be declared forfeited.</p> <p>The defendants answered, alleging that they were husband and wife; that they were residents of Ohio; that the husband had sent the wife to California to purchase a farm for the children, giving her specific instructions not to purchase any land of which the title was in any way in dispute; that the wife had made the purchase from the plaintiff upon his representation that the title was perfect, and the possession should be undisturbed ; that soon after entering into possession, she was annoyed by various parties claiming adversely, and the plaintiff had never been able to give a perfect title, nor to secure the defendants in the quiet possession of the property. They' asked that the contract be rescinded, and that the plaintiff he required to return the eleven thousand six hundred and sixty-six dollars and sixty cents, with interest.</p> <p>At the trial it appeared that the rancho, which contained thirteen thousand three hundred and thirty-five and seventy one-hundredths acres, was a tract originally granted by José Joaquin Arrellaga, Governor of California, to José Bartolomé Tapia, in 1804; that at the time of the sale to defendants, the heirs of Tapia were in possession, claiming two-thirds of it, and a suit was subsequently brought by the plaintiff to eject them, which action was pending before the Supreme Court at the time of the trial. It appeared, also, that the property had advanced in value to about sixty thousand dollars; that the defendants had tried to sell, but could not do so because of the trouble about the title; that the defendant Carrie had occupied the premises only a few months, when she had returned to her husband in Ohio.</p> <p>The Court found that the statements in the complaint were true, and thereupon issued a .decree in accordance with the prayer of the complaint. Soon after the entry of the decree, the appeal in the case of Keller v. Tapia was decided in favor of the plaintiff, thus perfecting his title to the whole rancho. Thereafter the defendants filed a motion stating the fact, and asking that the decree be modified so as to allow them to pay the balance due under the contract with plaintiff, and take the land. The motion was denied. They then moved for a new trial, which was refused, whereupon they appealed.</p>

<p>Impeaching Witness.—If a question is put to a witness which is collateral or irrelevant to the issue, his answer cannot he contradicted, hy the party who asked the question, hut is conclusive against him.</p>

<p>Promissory Note—Contemporaneous Agreement as a Defense.—Where, in an action upon a promissory note which was dated November 20th, 1876, and upon its face matured six months after date, the answer alleged that the note was given in payment of a balance of the purchase price of a business sold by the plaintiff to the defendants, and that at the time of 'the making of the note the parties agreed in writing that the payment covered by the note (without mentioning the note) should not bear interest for the first six months, nor be due in fact until eighteen months after date: held, that the defense was valid.</p>

<p>Corporation—Preliminary Subscription.—The signing of an agreement to take stock in a railroad corporation before the incorporation thereof, does not constitute the subscriber a stockholder in the sense to make him liable for assessments subsequently levied.</p> <p>The Articles oe Incorporation of a railroad corporation must fully set forth the amounts subscribed, and by whom. The liability of stockholders at the date of the filing is limited to those named in the articles, and to the amounts therein mentioned. 1</p>

Ejectment commenced September 18th, 1876, for fifty-six acres of land near the City of Stockton. The land was sold by the defendant, Weber, January 21st, 1854, to Eustache Meroux, father of the plaintiff, who paid part of the purchase-price and gave his note for the balance due. Meroux died February 10th, 1858, intestate, leaving a widow and two sons—the plaintiff, Avho was then three years old, and a brother aged five years. There was no administration of the estate.

The complaint alleges that the plaintiffs and defendant M. H. Crafts are, and since May 1st, 1853, have been, the owners of a certain water ditch and water rights, extending from the south bank of Mill Creek, through plaintiffs’ farms, and that they have the exclusive right to divert .water from said Mill Creek for agricultural and irrigating purposes; that the defendant M. H. Crafts owns the right to use the whole of the water from three P. M. to nine P. M. of Tuesday and…

The action was brought to recover damages .alleged to have been caused to the plaintiff’s lands by the trespass of cattle belonging to the defendants and under their control. It appeared at the trial that at one time the plaintiff took up fifty-five head of defendants’ cattle, and confined them in his corral until, in compliance with a demand in writing, he was paid the twenty cents per head and other damages allowed by the Trespass Ldw.

<p>Criminal Law—Definition of Poison.—The word “poison,” as used in sec. 216 of the Penal Code, means any substance which, when applied to the body externally, or in any way introduced into the system, without acting mechanically, but by its own inherent qualities, is capable of destroying life.</p> <p>Same—Noxious or Destructive Substance or. Liquid.—The words “ other noxious or destructive substance or liquid,” as used in the same section, include substances which act upon the system mechanically, so as to destroy life.</p>

<p>Insufficient Location of Mining Claim:. —The posting of a notice upon a tree at each end of a mining claim is not a sufficient compliance with sec. 2324 of the Devised Statutes of the United States, which requires the location to ho “ distinctly marked on the ground so that its boundaries can he readily traced.”</p>

The action was for money had and received, and was brought to recover back three hundred and fifty-one dollars paid under protest to the defendant, who was the Tax Collector of the City and County of San Francisco, as taxes on certain real estate owned by the plaintiff, levied for State, City and County purposes for the fiscal year 1872-3.

<p>Practice in Criminal Cases—Extending Time for Piling Bill of Exceptions.—It is within the power of the Court to extend the time for presentation of the draft of a hill of exceptions to-an order on motion for a new trial.</p> <p>Idem—Appeal from Judgment.—Upon an appeal from the judgment without having made a motion for anew trial, the defendant may rely upon any of the grounds of exception mentioned in sec. 1170 of the Penal Code, and in such case he must have a hill of exceptions settled as provided in sec. 1171.</p> <p>Idem—Appeal from Order Denting New Trial. — Instead of appealing from the judgment, the defendant may move for a new trial on any or all the grounds mentioned in see. 1181 of the Penal Code, and if the motion he denied, may present the draft of a hill of exceptions, and have the same settled as provided in sec. 1174.</p> <p>Idem—Bill of Exceptions on Motion for New Trial.—A motion for a new trial may he heard without any hill of exceptions.</p> <p>Idem—What the Bill of Exceptions Should Contain.—After the denial of a motion for a new trial, the defendant may present the draft of a hill of exceptions containing any of the grounds relied on for a new trial. It should contain also so much of the evidence, proceedings, and decisions as may he necessary to explain such ground, and no more.</p>

<p>Bueglaet—Eelonious Intent—Peivt.—Parnell informed the Sheriff that Collins had requested him to enter a house in the night time, and steal therefrom a sum of money which he knew to be concealed there, the money to be divided between them. By advice of the Sheriff, Parnell agreed to do so, for the purpose of entrapping Collins, and accordingly entered the house, secured the money, marked it so that it could be identified, and after delivering it to Collins gave a signal, when the Sheriff arrested Collins with the money in his possession. Held, that, inasmuch as Parnell alone entered the building, and did so without felonious intent, there was no burglary committed, and therefore Collins could not have been privy to a burglary.</p>

Action for damages alleged to have been caused by defendant in maliciously suing out an injunction. The defendant was the owner of a tract of land adjoining the town of San Eafael, known as the “Picnic Valley Tract.” The tract was laid out into small lots suitable for homesteads. The plaintiffs for many years maintained a large slaughter-house, with cattle-pens, hog-pens, and sheep-pens, upon a lot within the corporate limits of San Eafael.

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

<p>Pbobate—Settlement of Account.—Where it appears that, by reason ot irregularities in the proceedings, parties in interest have not been heard in the settlement of the annual account of an administrator, the cause will be remanded for further proceedings.</p>

Action to declare a deed to a lot in Los Angeles á mortgage. In 1875, the plaintiff borrowed five hundred dollars of defendant, Juan C. Lorenzana, and gave a mortgage upon the premises in controversy as security. A year afterwards, when the debt became due, the defendant demanded a deed absolute, which should nevertheless operate as a mortgage, and the plaintiff conveyed to him accordingly.

<p>Appeal from the District Court of the Nineteenth Judicial District, City and County of San Francisco.</p> <p>The defendants were the members of the State Harbor Commission.</p> <p>The case was submitted upon an agreed statement of facts, which appear sufficiently in the opinion of the Court.</p> <p>The writ was granted, and the defendants appealed.</p>

The plaintiff owned thirteen thousand four hundred acres of land in Kern County, where the defendant owned a water-ditch, and was engaged in supplying water to farmers for irrigating purposes. The plaintiff’s lands, without water for irrigation, would' not produce crops, and could be supplied only by the defendant.

Original application for a writ of certiorari to review proceedings of the Probate Court of the City and County of San Francisco, in punishing the relator for contempt. The relator was one of the executors of the last will of E. D. Taylor, deceased, who was a resident of San Francisco, but died in Hew York May 4th, 1872.

<p>Eminent Domain.—Sec. 1284 O. O. P. unconstitutional.—The undertaking of sureties upon a hond to answer for damages that may he awarded for the taking of private property for a public use is not “just compensation ” within the meaning of the Constitution, art. 1, sec. 8. Sec. 1254 of the Code of Civil Procedure is unconstitutional.</p> <p>Pleading—Common-Law Obligation.—To enable a party to recover upon, an undertaking to answer for damages, all the material facts constituting the cause of action must be stated in the complaint.</p>

<p>Appeal from the District Court of the Twentieth Judicial District, Santa Clara County.</p> <p>The action was ejectment, and the plaintiff had judgment, from which the defendant appealed.</p>

• Appeal from the District Court of the Fifth Judicial District, Stanislaus County. Application for a writ of mandamus to compel Thomas W. Lane, as Sheriff, to execute to the plaintiff a deed of conveyance to certain real property. Thomas W. Lane was Sheriff of Stanislaus County from March, 1868, to March, 1870.

<p>Possession of Mining Claim—Findings.—To support a decree granting title based on actual possession of mining ground, the findings must show that the party has had possession of a definite part of the ground.</p> <p>Ineffectual Location of Mining Claim.—The placing of a monument in the center of a mining claim upon a mineral vein,and posting a notice thereon stating that the “ undersigned claims seven hundred and fifty feet easterly and seven hundred and fifty feet westerly therefrom, together with three hundred feet on each side of the vein, with all its dips, spurs, and angles,” giving the name of the lode and district, is not a sufficient compliance with the Act of Congress of May 10th, 1872, which requires locators of mining claims to distinctly mark their locations on the ground, so that the boundaries can be readily traced.</p>

<p>Attorney at Law—Order Associating Counsel.—An order of Court asso- . dating a new attorney with other attorneys in a case is not authorized by the Code of Civil Procedure, but provision is made for the substitution of an attorney after notice to the adverse party.</p>

The defendants demurred, and the demurrer having been sustained, the plaintiff appealed. The facts are stated in the opinion.

<p>Appeal from, the District Court of the Sixth Judicial District, Sacramento County.</p> <p>The plaintiff obtained a decree for the sale of certain lands, deeded to plaintiff’s assignor, in trust, as security for money borrowed. The trustees, Samuel Poorman and H. G. Smith, were appointed commissioners, and were ordered to sell the land, upon due notice of time and terms of sale; to execute a deed to the purchaser, vesting him with the title in fee, and giving him the right to the immediate possession and to a writ of assistance. The commissioners subsequently reported having complied with the decree, having sold the land November 8th, 1877; and thereupon the Court made an order approving and confirming their proceedings. The purchaser, McKee, demanded possession of the land from the defendant, and being refused, he applied for a writ of assistance, which was granted November 24th, 1877. The defendant appealed from the order granting the writ.</p>

Action to quiet title. The defendants asserted title under a decree and order of sale for taxes levied in 1872, and a deed executed in pursuance of a sale for State and county taxes for 1873-4, and under a certificate of sale for such taxes levied in .1875-6. At the trial, the defendants offered in evidence the decree in the tax suit.

This was a contest in an action of ejectment between two patents from the United States to the City of Los Angeles for pueblo lands. On the 9th of August, 1866, a document purporting to he a patent from the Government to the City of Los Angeles for its pueblo lands was made out in due form, but was silent as to the publication of the survey, and thut document was duly recorded, but never issued from the General Land Office.

In 1868, Charlotte II. Morgan died intestate, leaving real and personal property in Sacramento County of the Aralue of about nine thousand dollars. She left three heirs—two nieces and a grandniece, all of Avhom were married women. The petitioner, E. J. Croly, was intimately acquainted with the deceased, having occupied a room in her house for about ^even years previous to her death, and she always advised with him in her business' transactions.

The plaintiff filed his complaint February 3rd, 1877, to quiet title to a tract of land. In March, 1878, the defendant, by his attorney, moved to dismiss the case, on the ground that no summons had been issued within the time required by law. The motion was signed: “ W. W. Likens, Attorney for Defendant for this motion only.” The. motion was granted, and the plaintiff appealed.

<p>Betting at Fabo.—Sec. 330 of the Penal Code, which provides a punishment for conducting the game of faro, does not apply to those who merely het at the game. One who hets at the game is not accessory to the crime of gaining.</p>

<p>Appeal from the District Court of the Eighteenth Judicial District, San Diego County. -</p> <p>The plaintiff, as a tax payer, broúght this action to enjoin the defendants, as Trustees of the City of San Diego, and as the holders of certain bonds, from circulating such bonds, on the ground that they were unlawfully issued.</p> <p>In 1873, a “ Citizens’ Committee of Forty,” of the City of San Diego, acting on behalf of the citizens, made a contract with Col. Tilomas A. Scott, agreeing that in consideration of the construction of the Texas and Pacific Railway within the time fixed by its charter the City of San Diogo should procure the right of way through the county for the road, depot, grants for the same, together with the franchise and property interests of the San Diego and Southern Pacific and Atlantic Railroad Company. This contract was subsequently ratified by a vote of the citizens. To enable the city to carry out the agreement, Charter Ordinances No. 7 and 8 were passed, as stated in the opinion. The Legislature subsequently passed an act, (approved February 24th, 1874—see Statutes 1873-4, p. 156) “To legalize certain bonds of the City of San Diego, and to provide for the payment of the interest thereon and for the redemption thereof,” limiting the sum to one hundred and fifty thousand dollars. In October, 1875, a petition signed by A. E. Horton and other citizens was filed with the Board of Trustees, representing that certain unfriendly legislation was contemplated by Congress, and recommending that, in order to defeat such adverse legislation and to protect the interests of the city, the defendant, Ealsenheld, be sent as an agent to Washington, “to represent the interests of the city in this railroad matter; and for his services and expenses that you appropriate and deliver to him the sum of four thousand dollars in City Railroad Bonds.” The bonds in controversy were issued in compliance with this petition, and without passing any resolution for the purpose.</p> <p>Judgment was rendered in favor of the plaintiff, and the defendants appealed.</p>

<p>Appeal from the District Court of the Sixteenth Judicial District, Kern County.</p> <p>The plaintiff filed his petition averring that he had presented to the defendant, as County Treasurer, a county warrant, regularly issued, and demanded payment thereof; hut the defendant, though having funds for that purpose, refused to pay the warrant. ^ He asked for a mandamus requiring the defendant to pay the warrant. The defendant appeared, and moved for a change of venue, on the ground that the Judge was interested, having formerly held similar warrants. The motion was denied, and judgment was subsequently given ordering a peremptory writ of mandate upon the pleadings. The defendant paid the warrant in obedience to the writ, and the Sheriff made his return accordingly. The defendant then appealed from the final judgment, and from the order denying his motion for a change of venue.</p>

<p>Judgment by Default—Authority of Clerk.—Id an action ior the recovery of a district school tax the summons must contain a notice that “unless the defendant appears and answers, the plaintiff will apply to the Court for the relief demanded.” The Clerk is not authorized to enter a default in such an action. He is limited in this respect to actions in contracts for the recovery of money or damages. In all other cases application for judgment must he made to the Court.</p>

<p>Appeal from the District Court of the Eighteenth Judicial District, San Bernardino County.</p> <p>This was an action against the defendants as sureties upon an ' undertaking in an attachment suit brought by one Leahy against the plaintiff. In that suit Leahy attached two thousand dollars in money in bank belonging to the plaintiff herein, and detained it for fifty days, when judgment was rendered against Leahy and in favor of Jackson for costs. The complaint in this action alleged the foregoing facts, and added the following:</p> <p>“ That at the time of the issuing of said attachment this plaintiff was engaged as a trader in sheep, buying the same in San Bernardino County, State of California, and driving them to the Territory of Utah.</p> <p>“ That in conducting said business it was necessary to have on hand at all times large sums of money for the care and defraying the expenses of keeping and driving said sheep to Utah Territory; and plaintiff then had in his possession and belonging to him, which he had purchased for the purpose of driving to Utah Territory, six thousand sheep, and had on hand, deposited in the Bank of San Bernardino, in the Town and County of San Bernardino, State of California, two thousand dollars, which he intended for use in defraying expenses of driving the said sis: thousand head of sheep already purchased to the Territory of Utah, and for the purchase of other sheep, to be driven along at the same time and with the said six thousand head already purchased.</p> <p>“ That said Sheriff, pursuant to said attachment, levied upon said two thousand dollars in said bank, and kent this nlaintiff out of possession or control of the same for the space of fifty days, whereby plaintiff was subjected to great inconvenience and expense to raise money to defray the expense of keeping and caring for the said six thousand sheep already purchased, to wit, the sum of four hundred dollars, and plaintiff was deprived of an opportunity to make a profitable purchase of sheep with a portion of said money so attached, whereby he lost and was damaged in the further sum of four hundred dollars.</p> <p>“ That by reason of said attachment the plaintiff was subjected to great loss of time, to wit, fifty days, and that said time was reasonably worth five hundred dollars, and plaintiff was damaged in that amount by reason of his said loss of time, in consequence of said attachment.</p> <p>“ That plaintiff was damaged by reason of said attachment proceedings in the sum of three hundred dollars for personal expenses, expended necessarily and actually while detained in consequence of said attachment of his said two thousand dollars.</p> <p>“ That plaintiff was damaged in the further sum of one hundred and seventy-five dollars—cash expended actually and necessarily as attorney’s fees, in consequence of said attachment of his said two thousand dollars by said David Leahy.</p> <p>“ That plaintiff has been damaged in the further sum of fifteen dollars, in consequence of depreciation in the gold coin value of the said two thousand dollars attached as aforesaid.”</p> <p>The defendants filed a general demurrer, which was overruled and he answered. At the beginning of the trial, upon motion of the defendants, the Court struck out the foregoing paragraphs as irrelevant and redundant, the plaintiff excepting. The case was then dismissed for want of jurisdiction, the sum sued for being less than three hundred dollars. The defendants appealed.</p>

In 1873, Albert Rogers was elected Administrator of San Bernardino County, and A. Parks, A. Rosseau, M. Katz, and C. F. Roe became sureties on his official bond. Among the estates that came into his official custody as Administrator was that of Aveline.

The action was replevin, and the Sheriff justified under a writ of attachment, in the suit of Ratriclc v. Horton. At the trial, the defendant offered in evidence the papers in that suit. Judgment was rendered for the defendant, and the plaintiff appealed. The other facts are stated in the opinion.

<p>Water-Rights—Construction of Decree.—The clause of a decree enjoining the defendants ‘1 from in any manner interfering with the waters of sai d springs so as to prevent the same, or any part thereof, from flowing into Lytle Creek,” only applies to defined streams, and does not restrain him from availing himself of percolations upon his own land, even though he might thereby diminish the water which would otherwise issue from the springs.</p>

<p>Iztoictmeíít—Ekroueous Dtstbuctioit. — Where a party is indicted for an assault with an intent to commit murder, it is error to instruct the jury that if they find a verdict of guilty they must convict the defendant of the offense charged in the indictment.</p>

Action by second mortgagee to foreclose property of a bankrupt, and thus assert his claim against the first lien-holder. The facts are stated in the opinion.

From December, 1872, until August, 1873, defendants acted as the brokers of plaintiff, buying and selling for him shares of mining stock, receiving the dividends and paying assessments thereon. In July, 1873, the defendants, as such brokers, had in their possession, belonging to plaintiff, certain shares of the capital stock of divers mining corporations.

<p>Appeal from the District Court of the Nineteenth Judicial District, City and County'of San Francisco.</p> <p>Antonio Spinetti, as guardian of the estate of Carlotta Camajano, a minor, sued Giacomo Brignardello and Augustus D. Splivalo,' sureties upon the bond of N. Larco, administrator of the estate of Andrew Camajano, deceased, to recover two thousand eight hundred and fifty-nine dollars and twenty-six cents, due from him as administrator of his decedent. A demurrer was overruled, and defendants filed an answer.</p> <p>After the answer was filed, a stipulation was entered into by' which it was agreed that the case should be continued for a cer-' tain time, and the sum admitted to be due should be paid in certain installments with ten per cent, interest. This stipulation was also made: “ If the defendant shall neglect for one day, without any demand being made, to make any payment as aforesaid, upon proof to the Court by affidavit of such neglect, it is stipulated that judgment may be entered for the whole of said sum of money as aforesaid, and interest and costs.” Upon an affidavit of the guardian to the effect that none other than one payment and the sum of two hundred dollars was paid, leaving still due the sum of two thousand seven hundred dollars, judgment was rendered for the plaintiff, and defendants appealed.</p>

<p>Labcem" ov Hakk. Check.—A was instructed hy a hank to purchase silver for its account; and in order to provide him with funds to purchase the silver—he having none in the hank—the hank certified and delivered to him a check drawn hy him on the hank. The silver was not purchased for the hank, hut A used the check for his own purposes. Held, that if A took the custody of the certified check with the intention of stealing it, he was guilty of the larceny of the check.</p> <p>Same—Ownership oe Check.—In such case the check did not become the property of A, hut remained the property of the hank.</p>

<p>Appeal from the District Court of the Fifteenth Judicial District, City and County of San Francisco. • •1</p> <p>The facts appear in the opinion.</p>

This was an original application to the Supreme Court for a writ of prohibition to prevent proceedings by the respondent as Tax Collector in selling property assessed under the Act of March 23rd, 1876, “An Act to authorize the widening of Dupont Street, in the City and County of San Francisco.” The Board of Commissioners provided for in the Act had reported the benefits to adjacent property which would result from the widening of the street at seven hundred and ninety-seven…

The actions, which were consolidated a,s s'tated in the opinion, were brought to establish and foreclose mechanics’ liens upon the property of the defendants for work done during the years 1877—8. The plaintiff had judgment, and the defendant J. D. B. Cook appealed. The other facts are stated in the opinion.

The facts alleged in the complaint were substantially as follows : The defendants are a commercial firm doing business in San Francisco under the name of Goldstein, Sellers & Go. On January 10th, 1871, the Golden Gate Sugar Refinery was a corporation, organized and acting under the laws of this State, then owning certain property described in the complaint. The property thus described constituted its entire assets.

<p>Deficient Findings.—When the Court below has filed findings, but has failed to find upon a material issue raised by the pleadings, the judgment will be reversed.</p>

<p>Bankruptcy—Bill of Exceptions. — The adjudication of the bankruptcy of a party is not an issuable fact to be determined by the findings—a jury being waived—and where such a plea has been interposed, the party presenting it to the Supreme Court on appeal must embody it in a bill of exceptions.</p> <p>Same.—An application to stay proceedings on the ground that the applicant has been adjudged a bankrupt is a motion, and evidence given by him in support of the motion cannot be considered on appeal unless contained in a bill of exceptions.</p>

<p>Verdict against Evidence.—Where the plaintiff in ejectment for a mining claim, on cross-examination, admitted that he had not worked the claim for several years, but had during that time followed mining in Mexico: held, that the testimony established abandonment, and the verdict for plaintiff was against the evidence.</p>

<p>Failure of Consideration—Attachment upon Implied Contract .—"Where a sum of money has been paid upon a consideration which has entirely failed, the law implies a promise to refund it. In such a case there is an implied contract for the direct payment of money, and an attachment will lie.</p>

Plaintiffs claimed that in 1862 they were the owners of certain “ outside lands ” in San Francisco. In that year a corporation was organized, to continue for the term of two years, a Board of Trustees being duly appointed, with Isaac Bowell as President, and Edward Flanagan as Secretary.

The complaint alleges that certain proceedings were had which resulted in a judgment, in his favor against the defendant for the recovery of two thousand eight hundred and four dollars; that an execution issued and the Sheriff levied upon a certain lot of land; that plaintiff was the highest bidder at the sale thereof, bidding the sum of fifteen hundred dollars, which sum was credited on the execution.

<p>Lands—Boundaby Lines of Township. —The south and west boundary lines of the south half of the southwest quarter of section thirty-one of a “township” surveyed by the United States are coincident with the south and west lines of that township.</p> <p>Same—Evidence of Monument.—Evidence having been given tending to prove the southwest coiner of the township by locating the corner post as fixed by the United States Surveyor, such evidence is not overcome by testimony to the effect that, according to the field notes of a subsequent survey of the section, the post should have been placed elsewhere; nor does such testimony tend to prove that the post was not really the monument of the United States Surveyor, or that the monument had been removed from the point where it had been originally placed by the United States Surveyor.</p> <p>Same—Field Notes of Survey.—The monument placed at the township corner of the survey in the field would control the calls of the field notes of the same survey; a fortiori, it controls the field notes of a subsequent survey of one of the sections.</p>

<p>Specific Performance—Sufficiency of Complaint.—In the absence of a special demurrer on the ground of ambiguity, if it appear from the general framework of the complaint that the action is for specific performance, it will be so considered, though the complaint be obnoxious to criticism for want of perspicuity.</p> <p>Power of Attorney to Sell Land in 1867.—Under the statutes of- this State, in force in the year 1867, a power of attorney for the sale and eonveyanee of land, which was not under seal, did not authorize the attorney to convey the legal title, but was sufficient to enable him to enter into a valid contract of sale.</p> <p>Equity—Deed Treated as Contract of Sale.—In such a case, if the attorney enter into a contract of sale, and in the name of his principal execute to the purchaser a deed absolute in form, though inoperative to pass the légal title, it will be treated in a Court of Equity as a valid contract of sale, entitling the purchaser to a conveyance of the legal title; and if the purchaser by a conveyance absolute in form convey his interest in the premises to a third person, the conveyance will be deemed in a Court of Equity an assignment of the contract of sale.</p> <p>Df.livery of Power of Attorney Executed in Mexico.—If a power of attorney for the sale and conveyance of land in this State, executed in the Republic of Mexico, be written by the Notary in his official book kept for that purpose according to the usage prevailing in that country, and if the instrument so written in the official book be duly signed, acknowledged, and certified as required by the laws of this State, and if the Notary thereupon deliver to the attorney a certified copy of the original, these facts will constitute sufficient evidence of delivery.</p> <p>Married Woman in 1867—Power of Attorney to Seed Land.—Under the laws of this State, in force in the year 1867, a married woman could not execute a valid power of attorney to sell or convey her separate real estate, situate in this State, unless her husband united in the execution of it.</p> <p>Construction of Findings.—BeZd, that from the findings in this case it sufficiently appears that the plaintiff paid to Aguayo the five thousand dollars stipulated to he p>aid as the consideration for the conveyance from the latter to the former, as averred in the complaint, and that the plaintiff succeeded to the rights acquired by Aguayo under the conveyance of January 2nd, 1867.</p> <p>Decree for Rental Value of Land.—On the facts found, the Court below would have been justified in decreeing to the plaintiff the rental value of the land from the commencement of the action.</p> <p>Demand for Conveyance.—The commencement of this action was a sufficient demand for a conveyance, and from that time the plaintiff is entitled to rents and profits.</p>

<p>Appeal from the District Court of the Sixth Judicial District, County of Sacramento.</p> <p>Eeclamation District Number One Hundred and Eight was formed by the Board of Supervisors of Yolo County on the 28th of September, 1870. On the same day it elected trustees and adopted a code of “ by-laws,” the seventh section of which declared that “the trustees shall allow no indebtedness to accrue in excess of the assessment levied.” The complaint charged that this District was so formed as to include Eeclamation Districts Ninety, Ninety-one, Ninety-two, and Ninety-four in Colusa County. A plan for the works of reclamation of District One Hundred and Eight consisted of a levee on the banks of the Sacramento Eiver—from a point known as Sycamore Slough, in Colusa County, extending to Knight’s Landing, in Yolo County —the cost of which was estimated at one hundred and forty thousand dollars. This was spent, and thé District was run in debt one hundred and ninety-two thousand and forty-six dollars.</p> <p>The Trustees of District One Hundred and Eight certified that over two dollars per acre had been expended in the District, and thereby obtained from the State a title to several thousand acres of land. The complaint alleged, among other things, that the Supervisors of Yolo County allowed this District to be formed without an inquiry whether the lands therein were susceptible of reclamation, and without inquiry into the character of the land, or as to whether the petitioners held a majority of the acreage, which it avers they did not. It also averred that the State owned lands in the District. The relief prayed, looked to declaring the District to have been formed illegally; but if lawfully formed, then to settle its business and close it up—restoring to the State the lands which had been taken away from it by means of the false certificate of the Trustees that two dollars per acre had been expended in attempting to reclaim them; this expenditure was charged to be illegal under the by-laws; but, if legal, the law under which it was executed was a fraud upon the trust upon which the State received the lands from the United States, as declared by this Court in Kimball v. The Reclamation Kind Commissioners, 45 Cal. 344. There was a demurrer interposed to the complaint, which was overruled. Thereupon defendants answered. Subsequently a trial occurred with a judgment for defendants. Á motion for a new trial was , made, which being denied, this appeal was taken.</p> <p>The other facts are stated in the opinion.</p>

<p>Appeal from the District Court of the Fifth Judicial District, County of San Joaquin.</p> <p>Eeplevin for two mares, a buggy, harness, and pole, taken by defendant March 6th, 1877.</p> <p>The opinion states the material facts.</p> <p>The plaintiff had judgment, and defendant appealed.</p>

The defendant was indicted for the murder of one William Page, and convicted of murder in the second degree. The appeal from the order denying a new trial having been dismissed at the argument of the cause, the case was considered upon the judgment roll. The material facts appear in the opinion.

H. S. Daniels, executor of the estate of John B. Clark, deceased, petitioned the Probate Court for the settlement of his account and distribution of the estate. The devisees, through their attorney, excepted to the settlement of the account. The petition of the executor alleged that since July, 1866, he had not kept any separate account of the moneys of the estate, but had mingled them with his own; and during said time had used some or the greater part in his own business.

<p>Erroneous Instruction—Good Character as Evidence of Intent.—In a prosecution for murder, where there was evidence tending to show the previous good reputation of the defendant as a quiet and peaceable citizen, an instruction to the jury in the following words, given on the request of the prosecution, was erroneous, viz: “Ho inference can be drawn by a jury of the intention which induced the commission of the offense, from the previous character of the prisoner. His intention can only be determined by his acts. The law will imply a malicious intention.”</p>

<p>Judgment as Evidence in Ejectment.—In an action for the partition of a rancho, certain of the defendants alleged in their answer that they were the owners in fee of the whole rancho, and the Court having found that allegation to he true, rendered judgment accordingly in favor of those defendants. In an action of ejectment for a parcel of the lands of the rancho, brought by one of the defendants in the partition suit, and against persons who were parties to that action, or claimed title under them, the judgment in that action is admissible in evidence to prove title in the plaintiff in the action of ejectment, and is conclusive upon that issue in respect to the title held or claimed by the parties to that action at the time of its commencement.</p>

The plaintiff, as administratrix of her deceased husband, Eulogio de Celis, and successor of the former administrator, Eulogio F. de Celis, brought this action against the defendant for breach of trust as attorney of her predecessor in the sale of certain property belonging to the estate.

December 17th, 1868, Walter Burke executed a mortgage on real estate, to secure the payment to plaintiff of thirty:six installment notes, each of which, in consecutive numerical order, was payable on the 17th of each succeeding month, from and including the 17th of January, 1869, unless default was made in any one payment, when all of them thereby became due and payable at plaintiff’s option. Interest, counsel fees, and other incidentals, were also provided for.

<p>Yoluktaby Payment ob Tax.—The payment to a Tax Collector of the amount of a tax, made before the tax was returned delinquent, was voluntary, although accompanied by a protest in form, and the amount so paid cannot be recovered back.</p>

Action brought to recover money paid for taxes under protest.

- Original application for mandamus directing the defendants to proceed to act upon appointments made by the Mayor, Auditor, and District Attorney respectively, of Commissioners, in supposed condemnation proceedings under the Act of March 27 th, 1876, “to authorize the City and County of San Francisco to provide and maintain public water works for said City and County, and to condemn and purchase private property for that purpose.” The Feather River Water Company, by its…

<p>Construction or Statutes — Costs in Tax Suit. — Where an action was brought for less than ten dollars tax, under the Act of March 28tli, 1874, “levying a tax for State purposes for the twenty-fourth and twenty-fifth fiscal years, and to provide for the enforcement thereof,” and final judgment was entered therein prior to the passage of the Act of March 15th, 1876, “ to regulate proceedings for the collection of taxes, and to prevent oppressive costs,” the defendant is not entitled to have the judgment satisfied or the action dismissed, on payment into Court of the amount sued for without costs.</p>

<p>Certiorari upon the Application of a Tax Paver.—A citizen and tax payer of a county may apply for certiorari, to annul an order or resolution of the Board of Supervisors, made in excess of the jurisdiction of the Board when exercising judicial functions.</p> <p>County Printing—Power of Board of Supervisors to Contract.—The Board of Supervisors of a county has no power to contract for any of the county printing, without the ten days’ public notice that such contract will he let to the lowest bidder which is required by sec. 4047 of the Political Code.</p>

The action was brought to quiet the title to a certain lot in San Francisco. The complaint averred ownership in fee and possession in the plaintiff, and also alleged that the property was conveyed to the plaintiff by the defendant and her deceased husband.

The action is to recover possession of personal property or its value. Defendant Gentry moved for a nonsuit, and pending the argument on the motion, plaintiff asked and obtained leave to amend her complaint by making Lena Bobson a party defendant. As to defendant Gentry, the nonsuit was granted, and subsequently a motion to dismiss as to Lena Bobson was granted.

<p>Appeal from the District Court of the Fifth Judicial District, Stanislaus County.</p> <p>Replevin for two hundred and thirteen sacks of barley, a threshing machine, one hundred tons of hay, and sixteen mules. The defendant justified under a writ of attachment in the case of A. O. Paulsell v. J. D. Watson, in which Paulsell obtained judgment. The Court found that the defendant, as Sheriff, had seized the property in the said suit; that the plaintiff is the son of the J. D. Watson, defendant in the attachment suit; that all the property had been sold or given by J. D. Watson to his son, the plaintiff, in 1871 and 1873, but there was no delivery of possession until September, 1876; that it was attached in October, 1876, and at that time all of the property except two hundred and thirteen sacks of barley and three mules was in the possession of the plaintiff in this action; and that Paulsell was a bona fide creditor at the time of the levy and long prior thereto. J udgment was rendered for the plaintiff, except as to the barley and the three mules. The Court held that the rest of the property was not subject to attachment, for the reason that the delivery made in 1876 related back to the sale in 1873, and thus took the transfer out of the operation of sec. 3440 of the Civil Code. The defendant appealed.</p>

Action to abate a nuisance caused by the erection of a fence in the highway in front of plaintiff’s property, and for damages. The only allegation of damage is that referred to in the opinion. Plaintiff had judgment, and defendants appealed.

<p>Appeal from the District Court of the Seventeenth Judicial District, County of Los Angeles.</p> <p>The plaintiff had judgment, and the defendant appealed. The facts are stated in the opinion.</p>

<p>Application for mandamus to compel the respondent, as District Judge, to settle a hill of exceptions.</p> <p>The facts are stated in People v. Sprague, post, p. 491,</p>

Action- on a street assessment. The plaintiff had judgment, and defendant Porter appealed. The facts are stated in the opinion.

Petitioner having been held to bail by the Municipal Criminal Court of San Francisco in the sum of one hundred and twelve thousand dollars on ten indictments for felonies—being for forgery, grand larceny, and embezzlement, the sums alleged to have been stolen, etc., aggregating one hundred and twelve thousand dollars—prayed this Court that the amount of bail be reduced to fifty thousand dollars.

The petitioner was indicted by the Grand Jury of Stanislaus County for the offense of exhibiting a deadly weapon in a rude, angry, and threatening manner—a misdemeanor; was tried, convicted, and sentenced by the County Court of that County; and this is a proceeding by habeas corpus to discharge him from custody; he claiming that the County Court had no jurisdiction over such an offense, but that such jurisdiction was exclusive in Justices of the Peace.

<p>Burglary—Intent.—In a prosecution for burglary, the intent with which the defendant entered the building is a question of fact for the jury.</p> <p>Same—Intent inferred from Circumstances .—If a person enters an inhabited building through a window, clandestinely, at a late hour of night, after the lights have been extinguished, the jury will be justified from these circumstances in finding that the entry was with the intent to commit larceny.</p> <p>Same—Immaterial Testimony.—The testimony of a woman sleeping in the building, who had no previous knowledge of the defendant, that she believed tiie entry was made for the purpose of having sexual intercourse with her, if admissible as evidence, could not be held to establish the intent of defendant conclusively. It was for the jury to determine the intent.</p>

The complaint was as follows: “ The plaintiff, complaining of the above named defendants, alleges: “1. That said defendants are, and have been for more than three months last past, the Bank Commissioners appointed and acting as such under the act of the Legislature of the State of California, entitled “ An Act creating a Board of Bank Commissioners, and prescribing their duties and powers,” and approved March 30th, 1878. “ 2.

The defendant was indicted for the crime of assault with intent to commit murder, and found guilty as charged in the indictment. The appeal is from the judgment. The facts are stated in the opinion.

The defendant was convicted of murder, and, judgment having been rendered, appealed. His counsel did not prepare and present the draft of a bill of exceptions, with notice to the District Attorney, as required by sec. 1171 of the Penal Code, and the Court refused for that reason to settle the bill of exceptions. He gave no notice to the District Attorney. The second bill of exceptions alluded to in the opinion was a full copy of the Reporter’s notes.

<p>Legitimate Cboss-Examination.—A. witness having testified that he managed certain property as the agent of the plaintiff, his wife—the property having been attached at the suit of Newman, as the property of the witness—was asked on cross-examination: “ What was the understanding between yourself and Newman relative to attaching these cattle, just previous to the commencement of the attachment suit?” Held, that the question was legitimate cross-examination.</p> <p>Husband Witness against Wife.—A party, by the examination of her husband as a witness on her behalf, waives her objection to his examination by the opposite party upon any of the issues in the action.</p>

<p>Appeal from the County Court of Placer County.</p> <p>Defendant appealed. The facts are stated in the opinion.</p>

The plaintiff was the owner of certain shares of the capital stock of the defendant, and caused them to be transferred on the books of defendant to the name of “ M, Trustee.” M afterwards endorsed the certificates in blank, and delivered them to plaintiff.

<p>Appeal from the District Court of the Thirteenth Judicial District, County of Mariposa.</p> <p>Bill to obtain an injunction restraining a Constable’s sale of personal property on execution. The Court overruled a general demurrer to the bill, and denied a motion to dissolve the injunction granted in pursuance of the prayer of the bill. Defendant appealed. The other facts are stated in the opinion.</p>

Suit in ejectment. Defendants answered, denying all the allegations in the complaint, and set up certain facts upon which they asked to have the title of plaintiff adjudged void. The plaintiff demurred to the cross-complaint; the demurrer was overruled, and judgment was rendered for the defendants. The plaintiff appealed. The other facts are stated in the opinion.

<p>Appeal from the District Court of the Fifth Judicial District, County of San Joaquin. The plaintiff appealed. The facts sufficiently appear in the opinion of the Court.</p>

The action was commenced in 1872, at which time the de- • fendants were using East Street, in San Francisco, for storage of lumber; and. the action is to abate the nuisance caused thereby. At the trial the plaintiff introduced the following evidence : Brigadier-General S. W. ICearny’s grant; the plan or map of San Francisco, compiled by Wm.

<p>Appeal from the District Court of the Twelfth Judicial District, City and County of San Francisco.</p> <p>The plaintiffs alleged that their father, J. Willard Barker, died in the City and County of San Francisco, State of California, on or about the 10th day of' September, A. d. 1856, being a resident of said city and county at the time of his death, and leaving both real and personal property therein. That on the 21st day of June, A. D. 1858, upon the petition of Helen M. Stanford, then Helen M. Barker, one of the defendants herein, and after due proceeding had and notice given, the Probate Court of the City and County of San Francisco made an order appointing said Helen administratrix, with the will annexed, of J. Willard Barker, deceased, and directing that letters of administration, with the will annexed, issue to her upon her giving the bond, according to lawj for the faithful execution of the duties of the trust as such administratrix, in the sum of ten thousand five hundred dollars, and upon taking the oath as required by law. That on the 1st day of July, A. D. 1858, Helen filed with the Clerk of the Probate Court her bond in the sum of ten thousand five hundred dollars, with J. W. Cudworth, H. G. Avery, and A. Chabot, the other defendants herein, sureties, and the same was duly approved by the Judge of said Court, and afterwards the said Helen duly qualified, received her letters, and entered upon the duties of the trust as administratrix.</p> <p>That under the provisions of the will of J. Willard Barker, deceased, and in due course of administration, the plaintiffs became entitled to a certain portion of the estate of the deceased, and on the 8th day of December, a. D. 1875, the Probate Court of the City and County of San Francisco made an order requiring and directing the said Helen M. Stanford, as administratrix of the estate, to pay forthwith to the plaintiffs the sum of nine hundred and ninety-six and forty-two one hundredths dollars in gold coin, together with 'interest thereon at the rate of seven per cent, per annum, in like gold coin, from the 11th day of J uly, 1859. That said Helen M. Stanford has neglected apd failed to pay the plaintiffs the said sum of nine hundred and ninety-six and forty-two one-hundredths dollars and interest as hereinbefore stated, or any part thereof.</p> <p>The defendant Josiah Stanford is the husband of Helen M. Stanford, having married her since her appointment as such administratrix. The plaintiffs pray judgment against the defendants, and each of them, for the sum of nine hundred and ninety-six and forty-two one-hundredths dollars, and interest thereon from the 11th day of J uly, A. D. 1859, at the rate of seven per cent, per annum, until paid, and costs.</p> <p>The condition of the obligation was as follows: “ That whereas, the said Helen M. Barker has been appointed to be administratrix, de bonis non, of the estate of J. Willard Barker, with the will annexed, by the Probate Judge of the City and County of San Francisco, this 21st day of June, 1858; now therefore, if the said Helen M. Barker shall faithfully execute the duties of her trust according to law, then this obligation to be void; otherwise to remain in full force and effect.”</p> <p>The material portion of the order of July 11th, 1859, is as follows, to wit: “ That the balance of the funds of this estate, being the sum of one thousand four hundred and ninety-four and sixty-five one-hundredths dollars, remain in the hands of said administratrix until the further order of this Court, to be held and managed by her in trust, in pursuance of the provisions of the will of deceased, for the children of deceased.”</p> <p>The sureties had judgment, and the plaintiffs appeal.</p>

The • complaint alleged that John and Ellen Barlew were husband and wife; that Ellen executed and delivered to plaintiff a promissory note February 3rd, 1877, to secure which a certain mortgage was made by her on said day. This action was brought to foreclose the mortgage. Hannah Jansen was made a party, as claiming an interest in the mortgaged premises. The facts are fully set forth in the opinion. The plaintiff had judgment, and the defendants appealed.

February 19th, 1859, the plaintiffs entered into a lease for the term of ten years and six months, running from March 1st, 1859, with Shiels, the assignor of defendants. The lease contained a covenant that the lessee would pay the rent, “ together with all taxes, rates, or assessments which may at any time during said term be levied or assessed upon the premises leased or the improvements thereon.” The lease expired on the 1st day of September, 1869.

<p>Corporation — Relation between Directors and Stockholders.—The directors of a corporation act in a fiduciary capacity, and are trustees of the stockholders.</p> <p>Same—Equity Forbids Extra Profit.—Courts of Equity will not permit them, in the exercise of their duties as directors, to make a profit for themselves to the exclusion of the other stockholders,</p> <p>Illegal Profit of Director.—Where a director of a bank loaned the moneys of the bank, and took from the borrowers a note, running to the bank, for the principal sum loaned, at a rate of interest therein stipulated, but at the same time, and as part of the same transaction, made an agreement with the borrowers that they should permit him to participate with them in the profits of a purchase and sale of certain lands: held, that the Director could not be permitted to retain for himself the profits thus contracted for, but must surrender them to the bank to be participated in by all the stockholders.</p>

Action to quiet title to the waters of the Los Angeles Diver. The defendants set up title, and pleaded in bar a former recovery. The facts fully appear in the opinion of Mr. Justice Decodes. The defendants had judgment and the plaintiff appealed.

<p>Appeal from the District Court of the Twentieth Judicial District, County of Santa Clara.</p> <p>Action to recover an amount alleged to be due for street car license, under an ordinance referred to in the complaint as follows:</p> <p>“ That on the 4tli day of October, A. D. 1875, the Mayor and Common Council of the City of San J osé passed and approved an ordinance entitled “ An Ordinance concerning Street Eailroads and Street Cars,” which said ordinance is in the words and figures following, to wit:</p> <p>ORDINANCE CONCERNING- STREET RAILROADS AND STREET</p> <p>CARS.</p> <p>“ Be it ordained by the Mayor and Common Council of the City of San José, as follows :</p> <p>“ 1. That any person, persons, or corporation, owning, managing, or controlling any street railroad within the limits of the City of San José, who shall run or propel any car, or who shall cause or permit any car or cars to be run or propelled over or upon any such street railroad within the limits of said city, shall pay to said city an annual license of twenty dollars ($20) in gold coin upon and for each and every car so run or propelled upon or over any such street railroad within said city; provided, that when any street railroad connects the City of San José with any other city or town in the County of Santa Clara, only one-half of the sum hereinbefore named shall be collected from or paid annually by the person or persons owning or controlling such street railroad so connecting said City of San José with any other city or towns.</p> <p>“ 2. Any person or persons violating or causing the violation of any of the provisions of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof before any competent Court shall be fined in a sum not exceeding- one hundred dollars ($100).</p> <p>“ 3. This ordinance shall be in force from and after the 4th day of October, A. d. 1875.</p> <p>“ B. D. Murphy,</p> <p>“ Mayor of San José.</p> <p>“ Approved and passed this 4th day of October, 1875.</p> <p>“ W. 2sT. Castle.</p> <p>“ City Clerk.”</p> <p>The defendant had judgment, and the plaintiff appealed.</p>

The action was brought for the purpose of reforming the Notary’s certificate of acknowledgment annexed to the deed of Foley and wife to Brannan and others, which this Court held to be invalid in the cases of Ewald v. Corbett, 32 Cal. 493, and McLaren v. Benton et al. 31 Cal. 29; 43 Cal. 472, 473.

The action was brought to foreclose a mortgage given to secure the payment of a promissory note, in terms as follows: “$45,000. Los Angeles, March 29th, 1877. “ Three years after date, without grace, for value received, we, or either of us, promise to pay to James Stevens or order the sum of forty-five thousand dollars in gold coin of the United States, with interest thereon in like gold coin from date until paid, at the rate of one and one-eighth (1¿) per cent, per month.

The defendant was indicted with several others for the murder of Thomas Wallace More. The deceased claimed the title to a large tract of land upon which the defendants were living under a claim of title adverse to him. There was evidence showing a bitter state of feeling on the part of the defendants towards the deceased, growing out of long and vexatious litigation, together with efforts on his part to eject the defendants.

This was an original proceeding in the Supreme Court.to review the action of the Judge of the Fifteenth Judicial District, appointing a Receiver of the effects of the plaintiff corporation, a savings and loan society. The facts are fully stated by the Chief Justice in delivering the opinion of the Court.

The proceeding below was a petition for a writ of assistance. M. J. Newmark filed an affidavit to the effect that on September 10th, 1875, F. P. F. Temple was the owner of Temple Block; that to secure an indebtedness to one Alexander Weill, he (Temple) mortgaged the block, and the mortgage was subsequently duly foreclosed.

Injunction. In March, 1879, the Stein Canal Company and twenty-seven other parties—nine of whom were canal companies —commenced this suit, alleging substantially that the canal companies were respectively the owners of certain canals, and also of certain water rights in and to the waters' flowing in Kern River; that Myers and the other natural persons who were joined as plaintiffs had contracts with the canal companies, and rights under such contracts to the use of the water…

<p>Change of Tente in Ghiminah Cases.—The requisites of affidavits in support of an application to change the place of trial of a criminal action, on the ground that a fair and impartial trial cannot be had in the county where the indictment is pending, pointed out.</p> <p>Same—Decision of Court.—Though the statute (Penal Code, sec. 1035) requires that the Court must be “ satisfied ” of the truth of the representation of the prisoner, the granting or refusing of the application is not a matter of mere discretion; the decision must find warrant in the facts disclosed by the record.</p> <p>Same.—An order refusing to change the place of trial reversed under the circumstances appearing in this case, no counter affidavits having been filed.</p>

<p>Licenses nr San Francisco.—The Act of March 30th, 1872, to increase and facilitate the collection of licenses in San Francisco, was not repealed or abrogated by the Codes.</p> <p>Same—Political Code.—The provision of sec. 3363 of the Political Code, to the effect that all moneys collected for licenses under the provisions of that chapter shall be paid into the general fund of the county, is applicable to the City and County of San Francisco.</p> <p>Same—Act or March 27th, 1878.—The Act of March ,27th, 1878, to facilitate and equalize the collection of licenses in the City and County of San Francisco, regulates the rates of license to be collected by the city and county, and is a valid exercise of powers by the Legislature.</p>

The defendant was convicted of the murder of one Jack Lett. Judgment having been rendered, the defendant appealed. The other facts are- stated in the opinion.

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

The complaint alleged that for more than seven years the plaintiff had been the owner and in possession of a tract of land situated in Santa Clara County, State of California, now known as Hale’s Branch; that the westerly line of the ranch crosses a high, narrow ridge of land, and just inside the line on the land and on the ridge there had always been, up to October 30th, 1875, a living, flowing, natural spring of water; that the waters that flowed therefrom had always,…

The action was ejectment for two one hundred-vara lots, in block thirty-three of the South Beach and Water property in San Francisco. The land is in Mission Bay, and between high and low water mark.

<p>Installment Sales—Default in Payment.—When a contract for the sale of chattels, upon the payment of the purchase money by installments, provides that the purchaser shall have the right to the use and possession of the chattels until default he made in the payment of the installments, but that if such default’be made, the owner may at once resume the possession of the property; if such default he made, the right of the owner to resume the possession is not lost or waived by a subsequent receipt of a part of the installment.</p> <p>Tender must be Pleaded.—Evidence of a tender made after the commencement of tlio action, of the amount of the purchase-money then due, is not admissible unless it is pleaded.</p>

<p>Appeal from the County Court of Los Angeles County.</p> <p>The defendant was convicted of an assault with intent to commit rape, and he appealed.</p>

The defendant was convicted of the crime of murder, an accomplice being an important witness at the trial. He appealed. The other facts are sufficiently stated in the opinion.

The defendant was convicted of murder, and appealed from the judgment and from an order made denying his motion for a new trial. The other facts are stated in the opinion.

The defendant was tried as one of the conspirators, with F. A. Sprague and others, in the murder of T. W. More. He was convicted, and a new trial having been denied, he appealed. The other facts áre stated in the opinion.

The action was brought pursuant to the provisions of the Act of March 1st, 1876, “to establish water rates in the City and County of San Francisco,” (Stats. 1875-6, p. 82) and the Act amendatory thereof and supplementary thereto, approved April 3rd, 1876, (Stats. 1875-6, p. 760) to recover a penalty of five hundred dollars, for the collection of a charge of eight dollars per month from H. M. Heineman, who, under the regulations made in accordance with the acts referred to,…

<p>Erroneous Charge to the Jury nt Ceiminax, Case.—In the trial of a criminal cause, if there he a substantial conflict in the evidence as to a material fact, and if in its charge to the jury the Court assumes the fact as proved, it is error.</p>

<p>Appeal from the District Court of the Fifteenth Judicial District, San Francisco.</p> <p>The defendant was convicted of murder, and moved for a new trial which was denied, whereupon he appealed. The other facts are stated in the opinion.</p>

<p>Indictment for Making Eadse Entry in Corporate Books.—An indictment under sec. 563 of the Penal Code against the agent of a corporation, for having made a false entry in the corporate books, should specify the particular entry complained of, and should at least state the substance of it, according to its legal effect. An averment that the defendant made a false entry in the books, “ by which false entry it appears that the cash on hand at the commencement of business on that day” was a specified sum, is insufficient.</p>

Action by sureties upon an appeal bond. The complaint contains two counts—one upon the bond, and the other for money paid, laid out, and expended to and for the use or benefit of defendant. Judgment was rendered for plaintiffs, and the defendant appealed. The other facts are stated in the opinion.

Action to have a street contract decreed to be void. Judgment was rendered for the plaintiffs, and defendants appealed. The other facts are stated in the opinion.

<p>Appeal from the District Court of the Nineteenth Judicial District, San Francisco,</p> <p>The action was brought to recover premiums alleged to be due the plaintiffs, as agents of certain insurance companies, upon policies of insurance issued to sundry persons at the request of the defendant, acting as the agent for such persons. •• Judgment was rendered for the plaintiffs, and the defendant appealed.</p>

<p>Appeal from the District Court of the Third Judicial District.</p> <p>Judgment was rendered for the plaintiff, and the defendant appealed. The other facts are stated in the opinion.</p>

The defendant was convicted of arson, and moved for a new trial, which was denied, whereupon he appealed from the judgment and from the order denying his motion for a new trial.’

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

The defendant was convicted of an assault with an intent to commit rape. He appealed from the judgment and from an order denying a new trial. The other facts are stated in the opinion.

The defendant was convicted of the crime of murder. He moved for a new trial, which was denied, and he then appealed from the judgment and from the order denying the new trial. The other facts are stated in the opinion.

<p>Appeal from the District Court of the Tenth Judicial District, Yuba County.</p> <p>The action was originally commenced in March, 1859, by James Haworth, against the defendants, composing the banking firm of Page, Bacon & Co., to recover two thousand nine hundred and fourteen dollars and forty-seven cents, alleged to he due upon certain certificates of deposit. In November, 1859, there was a service of summons by publication, purporting to be a service upon all the defendants, including H. D. Bacon, who was represented in the affidavit to be a resident of St. Louis, Missouri. Bacon returned to the State in November, 1865. Belcher was substituted as plaintiff June 18th, 1874, and on the same day judgment of default was rendered against all the defendants for nine thousand six hundred and sixteen dollars and costs. In the judgment it is recited and found as a fact that the summons, with a certified copy of the complaint, had been duly served on the defendant Bacon.</p> <p>In July, 1875—the year for the talcing of an appeal having expired—an execution was issued to the Sheriff of San Joaquin County, and levied upon the property of defendant Bacon. Thereupon Bacon obtained from the District Court of Yuba County an order on the plaintiff to show cause why the execution should not be returned, and the writ and all proceedings under it quashed, and for a perpetual stay thereof, and for other relief. The matter was heard upon the files and records in the case, and the affidavits presented. The Court, upon the authority of Hahn v. Hetty, 34 Cal. 405, presumed a legal service on Bacon, , and denied the relief sought. Bacon then appealed.</p>

Fraser et al., which had been appealed from the Justice’s Court to the County Court, and transferred to the Municipal Court of Appeals. The writ was not directed to the Court, but “ to Thomas W. Freelon, Judge of the Municipal Court of Appeals,” etc., and the return was signed by said Freelon as Judge of the Court, and was not signed by the Clerk of the Court. Upon hearing the cause, the District Court affirmed the judgment of the Municipal Court of Appeals.

The defendant was indicted, as stated in the opinion, and demurred to the indictment. The demurrer was overruled, and he was tried and convicted. Judgment having been rendered against him, he appealed. The other facts are stated in the opinion.

<p>Binding not Supported by the Evidence.—The Court found that the defendant assigned certain certificates of purchase for State land with intent to defeat the plaintiffs mortgage security: held, that urider the circumstances of the case the finding was- not supported by the evidence.—[Reporter..]</p> <p>Junior Mortgagees of Land Held by State Certificates of Purchase. The holder of State certificates of purchase for lands gave a mortgage of the lands to secure a debt, and subsequently assigned the certificates to his brother, and gave a second mortgage aá security for another loan. The second mortgage was recorded, hut the assignment and the first mortgage were not. The brother died, leaving heirs, and the first mortgage was subsequently foreclosed without making the heirs or legal representatives of John McTucker parties defendant, the mortgagee purchasing at the sale and taking the Sheriff’s deed, no redemption having been made. The heirs surrendered the certificates to the State, and received the patent: held, that the foreclosure and sale had the same effect upon the title as though the heirs had been parties to the foreclosure proceedings, and the heirs must seek their relief as junior mortgagees, or for expenditures in perfecting the title.—[Reporter.]</p>

<p>Trespass—Erroneous Judgment Modified.—Where, in an action for damages to real property hy trespass and for an injunction, the judgment was that the plaintiffs were and had been the owners of tile land, and were entitled to the possession thereof, and also for damages, an injunction, and for costs: held, that so much of the judgment as declared the plaintiffs to have been the owners or entitled to the possession of the real estate was erroneous, and the same should he struck out.—[Reporter.]</p>

The action was brought to recover damages alleged to have been caused by the defendants in negligently driving a buggy along the Alameda avenue, and against a buggy occupied by the plaintiff, in consequence of which the plaintiff was thrown out and injured. The complaint counted against both defendants, and did not allege them to be husband and wife. Judgment •was rendered for the plaintiff in the sum of five thousand dollars, and against both defendants. The defendant Wm.

<p>Appeal from the District Court of the Sixth Judicial District, Sacramento County.</p> <p>The action was brought to quiet title to a lot in Sacramento, which was part of the undistributed estate of Eosanna Keenan, one Bronner being the administrator with the will annexed. Judgment was rendered for defendants, and plaintiff appealed.</p>

The action was brought by the plaintiffs, as trustees, to foreclose a deed of trust made to them by Campbell & Welton, proprietors of the property known as the Blue Ridge Flume and Lumber Company, consisting of nine thousand one hundred and sixty acres of timber lands, with three steam saw-mills, fully equipped for making lumber; forty-four miles of flume for transporting the lumber from the mills to the Sacramento River, together with certain water rights and rights of way…

<p>Hearsay Evidence.—"Where a party has "been named in a complaint as a party defendant but not served, Ms testimony as to the admissions of other defendants who have been served is hearsay and inadmissible.—[Reporter.]</p>

<p>Attorney and Client.—An attorney has no authority, by virtue of his employment as such, to instruct a Sheriff to conduct a business, such as a restaurant, upon which an attachment has been levied, and thereby bind his client for the expenses incurred.—[Reporter.]</p>

The action was ejectment, and the plaintiff relied upon a tax deed and certificate of sale, from which it appeared that the assessment had not been made to the owners nor to unknown owners, but to “ D. B. Matlock, and to all owners and claimants known and unknown.” Judgment was rendered for the plaintiffs, and the defendant appealed.

<p>Landlord and Tenant—Verbal Agreement fob Written Lease.—If there be a verbal agreement for a written lease for a term of one year, to commence in futuro, and if the lessor refuse to make a verbal lease, andethe contract was for a written lease only, and was so understood by the parties, the contract was not a leas e in presentí, but only an agreement for a written lease in futuro, and the proposed lessee acquired thereby no estate in the premises as lessee.</p> <p>Same—Query as to ■ the Possession—In such a case, if the terms of the agreement are explicit and free from ambiguity, and from them it clearly appears that it was not intended to be a verbal lease in presentí, but only a contract for a written lease in futuro, effect will be given to the agreement according to its terms; and if, immediately after the verbal agreement is entered into, and in the expectation that the written lease will be thereafter executed, the proposed lessor, in advance of the commencement of the term, permits the proposed lessee to take lumber into the building for the purpose, of fitting it. up as a store, whether the entry for that purpose will vest the proposed lessee with the possession of the building-query ? o</p> <p>Saids—Effect of Delivery of Possession.—But if, by his entry under these circumstances, the proposed lessee be deemed to have acquired the possession of the building, such delivery of possession cannot be invoked to overthrow the agreement, and to convert it into a lease in presentí.</p> <p>Re-entry of Lessor.—If the proposed lessor afterwards refuse to execute the written lease, and if the license to enter thereupon be revoked, and if the proposed lessor afterwards peaceably re-enter, his entry is lawful.</p> <p>General Rule as to Executory License.—The general rule applicable to license in respect to real property is, that an executory license is revocable at the will of the licensor, even though the licensee has expended money on the faith of the license, and that, too, without refunding the money-expended.</p> <p>Executed on Partially Executed License. — An executed or partially-executed license excuses the licensee from liability for acts done in pursuance thereof, before revocation. But if the license be only partly executed, ho further acts can be done under it after revocation.</p> <p>When Forcible Entry will not Lie.—If a person be in the unlawful but peaceable occupation of the real property of another, and if the true owner, peaceably and without force, violence, or threats, regains the possession, and thereafter excludes the late occupant by force from the possession, the latter cannot maintain an action for a forcible entry or a forcible detainer.</p>

<p>Assessment of Migratory Stock—Demand for Statement as to Removad. Under the Act of March 16th, 1874, “to regulate the assessment of migratory stock,” the Assessor must, when he makes the assessment, demand a statement from the owner of migratory stock as to whether the stock will he removed from the county during the year; and unless such demand he made, the duty of making the statement is not Imposed upon the owner, whether at the time of making the assessment he shall have decided to remove the stock, or shall subsequently decide to do so.—[Reporter.]</p>

<p>Appeal from the District Court of the Fifth Judicial District, San Joaquin County.</p> <p>The action was brought to foreclose a mortgage made by the defendant and George Kroeckel to plaintiff, September 2nd, 1875, to secure the payment of a joint indebtedness of three thousand dollars and interest. The land (three hundred and twenty acres in San Joaquin County) was purchased by the defendant and Kroeckel in 1871, from one Tarr, for eight thousand dollars. One-half of the purchase-money was paid in cash at the time, each contributing one-half thereof, and the payment of the remainder was secured by a mortgage given by them to Tarr, who executed a deed to them. In 1873, Muller went on the land to farm it, under a verbal agreement between him and Kroeckel that Muller should have the support of himself and farnily from the proceeds of the land, and thereafter the net proceeds of the grain raised on the land should be applied toward the payment of the mortgage debt. Muller farmed the land under this agreement, and on the 2nd day of September, 1875, all the interest then due on the mortgage debt, and one thousand dollars of the principal having been paid from the net proceeds pursuant to the joint agreement, and Tarr wishing the balance of the purchase-money, three thousand dollars, Muller and Kroeckel borrowed from the plaintiff three thousand dollars, and therewith paid and satisfied the mortgage to Tarr, and to secure the payment of said three thousand dollars, they made to plaintiff their joint note and the mortgage on which this action was brought.</p> <p>Before the giving of the mortgage sought to be foreclosed in this action, Kroeckel, on the 28th of February, 1874, made to plaintiff a note for four thousand dollars (ICroeckel’s individual debt) and a mortgage on his undivided one-half of the land to secure the payment of the same. In September, 1876, this note became due, and an action to foreclose was commenced, during the pendency of which, November 9th, 1876, Kroeckel being insolvent, and acting upon the advice of the defendant, conveyed his one-half interest in the land to the plaintiff for a sufficient consideration to pay his indebtedness to the plaintiff, except as to the three-thousand-dollar note of September 2nd, 1875. Kroeckel was insolvent at the time, and remained so until he died, in August, 1877. The defendant continued to farm the land under his parol agreement with Kroeckel, and on November 9th, 1876, when the conveyance to plaintiff was made by Kroeckel. there were two hundred and sixty acres of the land sowed to grain. A parol agreement was then made between the plaintiff and the defendant, under which the defendant remained on the farm and delivered to the plaintiff one-eighth of the grain raised on the land during the season of 1876-7. There was evidence, also, that at the same time, in consideration of this favorable arrangement, the defendant agreed verbally to be responsible for the payment of the whole sum to become due upon the three-thousand-dollar note. When the note became due, the defendant tendered the plaintiff one thousand six hundred and eighty dollars—one-half the amount thereof, principal and interest—and demanded the canceling of the note and mortgage. The plaintiff refused to accept the money upon such terms, claiming that the defendant had agreed to pay the whole, and that his half of the land should be subject to the mortgage therefor. The defendant refused to pay more than the sum tendered, and this action was brought to recover the full amount due upon the note and mortgage, and to enforce the mortgage lien thereof. Judgment was rendered for the plaintiff, and the defendant appealed.</p>

<p>Appeal from the District Court of the Third Judicial District, San Francisco.</p> <p>Judgment was rendered for the plaintiffs, and the defendant appealed. The facts are stated in the opinion.</p>

<p>Appeal from the District Court of the Fourth Judicial District, San Francisco.</p> <p>Judgment was rendered for the plaintiff, and the defendant appealed. The facts are stated in the opinion.</p>

The defendant was indicted for the crime of murder, and was tried, the jury returning a verdict of “ guilty as charged in the indictment.” The defendant moved for a new trial, which was granted. At the second trial he presented the plea of former jeopardy, and in support of it offered in evidence the record of the first trial. The evidence was rejected. He was then tried and convicted of murder in the second degree. A new trial having been denied him, he appealed.

The action was brought to enforce a street assessment lien for grading Broadway Street, from Franklin to Gough. The original assessment contained the following diagram: As recorded, the diagram omitted the arrow showing the direction of Franklin Street. In all other respects it was the same. Judgment was rendered for. the plaintiff, and the defendants appealed.

<p>Conversion of Property by Injunction—Erroneous Instruction.—L, as tenant of B, placed certain fixtures upon the real estate of B, and B subsequently sued out an injunction to prevent L from removing the fixtures. Upon a showing by L the injunction was dissolved, and thereafter L sued B for damages caused by the injunction. At the trial the Court instructed the jury that the mere issuance and service of the injunction was a conversion of the fixtures by B: held, that the instruction was erroneous.—[Beporter.]</p>

<p>Appeal from the District Court of the Third Judicial District, San Francisco.</p> <p>The action was brought to annul the defendant’s franchise, and to dissolve the corporation.</p> <p>The complaint alleges that in September, 1861, H. F. Allen, C. W. Lander, Levi Stevens, Judah Baker, Jr., J. M. Johnson, and C. C. Baker formed a corporation called the “Pittsburg Coal Mining Company,” for the purpose, as declared in its articles, of mining for coal in Contra Costa County. That for the conduct of their business it became desirable to have a railroad running from the mines to the San Joaquin River, through the Rancho Los Medaños, a distance of about five miles, in order to transport their coal to a convenient place of shipment. In order to avail themselves of the power of eminent domain, the same parties, with a few others who were also stockholders in the said coal company, formed another corporation, designating it “ The Pittsburg Railroad Company,” and declared, in their articles of incorporation, that the purpose of the new corporation was to transport freight and passengers, intending it to be understood that the proposed railway was to be for the public use and benefit. Subsequently, by the usual judicial proceedings, they procured the condemnation of sufficient land of the Rancho Los Medaños, which was the private property of the relator, Robinson, for the purpose of the railway. The railway was then constructed, and has since been continuously in operation, but has been exclusively engaged in carrying coal from the mines of the Pittsburg Coal Company, having no cars for passengers, or for the convenience of the public in any way, and no freight cars except those designed for carrying coal.</p> <p>The defendant demurred that the complaint did not state a cause of action, and also upon special grounds. The demurrer was sustained and the plaintiffs appealed.</p>

On the 3rd day of September, 1877, at a general election held, William Mitchell was elected Tax Collector of the City and County of San Francisco, and thereafter qualified, and on the first… Held: William Mitchell was elected Tax Collector of the City and County of San Francisco, and thereafter qualified, and on the first Monday of December, 1877, entered into possession of said office, and to hold for the term of two years. On the 9th day of July, 1879, Mitchell died.

<p>Appeal from the District Court of the Fifth Judicial District, San Joaquin County.</p> <p>This action was brought to recover three thousand dollars damages, alleged to have been done to the plaintiffs growing crops by the defendant’s stock. The defendant leased a tract of land to the plaintiff to be sown in grain. The plaintiff was to have three-fourths and the defendant one-fourth of the crop. While the crop was growing, it was damaged by the trespass of stock. The plaintiff obtained a verdict and judgment for one thousand two hundred and thirteen dollars and twenty-four cents. The defendant moved for a new trial, which motion was denied. The defendant appealed.</p>

<p>Decision of Land Department on Question of Pact not Subject to Eeview.—In a contest between two persons claiming the right to enter a tract of land under the pre-emption laws of the United States, the question whether one of the parties continuously resided upon the land from his settlement thereon up to tiie date of the contest, is a question of fact; and the decision of the question by the Land Department is conclusive, and not subject to review by. the Courts.</p> <p>Pindincs.—The Court should find upon all the issues.</p>

<p>Decisions of Land Depabtjient.—The decisions of the Land Department upon questions of fact are not subject to review by the Courts.—[Iir.-POKTEB.]</p> <p>Title Acquieed by Tkustee.—The Land Department having determined that the defendants’ homestead entry, Ho. 301, was valid, and it not being shown that the determination was based upon an erroneous decision of a matter of law, and entry Ho. 304 being prior to the initiation of the plaintiff’s preemption, there is no ground on which the plaintiff can claim that the defendant acquired the title to the land under his homestead entry as his [the plaintiff’s] trustee.</p>

The action was brought to recover the sum of six hundred dollars, the alleged value of thirty head of cattle, which it was claimed belonged to Grill at the time of his death. The complaint contains an allegation that the estate is insolvent, and also that the plaintiff is the widow of deceased, and has two children by deceased, and that the property is required for their support. In all other respects it is framed in the ordinary form of an action of trover.

<p>Husband and Wife—Bequest not a Bab to Right of Homestead. — A bequest by a husband to Ms wife of a sum of money in lieu of a homestead, if not accepted by the wife, will not bar her right to have a homestead set apart as provided by sec. 1405, Code of Civil Procedure.—[Repobteb.]</p> <p>Same—Agreement of Sepabation.— An agreement between husband and wife to live separate and apart from each other, the husband to pay a certain sum annually to the wife, does not bar suchi right.—[Repobteb.]</p>

Action to recover the value of one hundred and ninety-eight hogs sold and delivered. The answer admitted the delivery of one hundred and twenty-eight hogs, but denied that any greater number were delivered.

Action upon a contract—the facts being thus: In May, 1875, E. J. Hildreth and William Helm made their joint and several promissory note to the plaintiff, a banking corporation, for five thousand dollars, payable one day after date. In February, 1876, Hildreth, upon his own petition, was adjudged a bankrupt under the laws of the United States, and his estate passed to an assignee.

<p>Equitable Responsibilits-.—There is no principle of equity which would make a person responsible for a wrong that he has neither done nor threatened to do.</p> <p>Same — Misjoinder as Defendant. — If the acts and threats of a person taken by themselves do not make a case which would support an action against him, his mere joinder in an action as a defendant with others who have severally, and without concert or collusion with him, done similar acts or made similar threats, will not create a liability oh his part.</p> <p>Joinder of Parties for Tort.—The cases governing the joinder of parties considered, and held, that where an action for a tort is brought against several co-defendants, it is essential that the wrong complained of be joint.</p>

The action was brought in accordance with sec. 1838 of the Civil Code, to recover the value of twenty-two thousand two hundred and seventy-five pounds of wool, alleged to have been stored in the defendant’s warehouse at Hollister, and destroyed by fire in January, 1876, through the negligence of the defendant, its agents, servants, and employees.

<p>Service of Complaint.—Where the action was brought against R. W. Spencer, John Doe, and Richard Roe, and Spencer was served with a copy of the summons only: held, that the service'was good, and that he could not remain silent and then claim that the service was void; but should have searched the files of the Clerk’s office for the complaint.—[Reporter.]</p> <p>Service upon Insane Persons.—Where a party was insane and no guardian had been appointed for him, the Practice Act of 1880 required that he should be served personally.—[Reporter.]</p>

The defendant was convicted of murder, and a new trial having been denied him, he appealed.. The other facts sufficiently appear in the opinion.

<p>Right of Subeties to Intervene.—The sureties of a defendant, in an action of replevin, upon an undertaking given to effect a return of the property in controversy to tlio defendant pending the action, have an interest in the action which entitles them to intervene if the defendant is insolvent, and the action is not being defended in good faith.</p> <p>Same—When to be Exebcised.—The right to intervene may he exercised at any time before the trial of the action is commenced—if the complaint in intervention tender only such an issue as is already joined by the answer of the defendant on lile.</p> <p>'Same—Right to Appeal.—Sureties, whose application to intervene in such a case has been denied, may prosecute an appeal to this Court.</p>

<p>County Cleric of San Eranciscq.—The term of office of the County Clerk of the City ancl County of San "Francisco, elected at the September election of the year 1879, commenced on the first Monday of December of that year.</p> <p>Construction of the Hew Constitution.—The Constitution adopted in 1879 did not, proprio vigors, repeal or displace all the statutes of the State theretofore in force, but only such as are inconsistent with those provisions of that Constitution which, do not require legislation to put them in force.— [Reporter.]</p> <p>Same—Terms oe Office.—The “officers” mentioned in sec. 20 of art. 20 of the new Constitution, and the commencement of whose terms are not the subject of legislation, but are fixed by the provisions of the instrument itself, are not the county, township, and municipal officers who are distinctly mentioned in sec. 5 of art. 11, and the duration of whose official terms the Legislature is expressly directed to fix.—[Reporter.]</p>