Volume 58 — California Reports

<p>Appeal from a judgment in favor of the defendant, and from an order denying a new trial in the Superior Court of San Diego County. McNealy, J.</p> <p>The case was before the Court on a former appeal, and is reported in 55 Cal. 5.</p>

<p>Mistake—Mobtgage.—In an action to foreclose a mortgage, executed by a husband and wife, upon a portion of the homestead, the Court found that the wife, in executing the mortgage, was made acquainted with the literal contents of the instrument, but did not intend to include a certain portion of the land mortgaged, and did not suppose it was included; that ' her mistake was caused by the misrepresentations of her husband, but that the mortgagee did not know of such misrepresentations, or that her intention was otherwise than as expressed in the instrument. Held, that her mere intention (uncommunicated to the mortgagee either by the writing itself or otherwise) could not control the plain letter of her contract.</p>

<p>Complaint—Pleading—Justice’s Court.—-The complaint in this case (set out below) held to be sufficient.</p> <p>Landlord and Tenant—Estoppel.—The defendant upon the facts found held to be estopped to deny the title of the plaintiff.</p>

Rolfs, J. These are two actions upon the same mortgage, the former to foreclose for interest due January 16, 1880, and the latter for additional interest falling due May 16, 1880

<p>Action to Quiet Title by Trustee—Parties—Demurrer—Corporation Sole.—In an action to quiet title the death of the original plaintiff was suggested pending the action, and immediately thereafter the present plaintiff (as his successor) filed an amended complaint, in the title of which he is styled plaintiff, and the original defendants and others, defendants, the complaint alleging, that the plaintiff is a sole corporation duly created and acting by and under authority of law under the name and style if the Roman Catholic Bishop of Monterey, and that as such Bishop or sole corporation, he is the owner seized in fee of the land in controversy in trust for the use and benefit of the Roman Catholic Church of San Buena Ventura, and that the defendants claim an estate or interest in said land adverse to him. The defendants demurred, on the grounds that the complaint did not state facts sufficient to constitute a cause of action, and that it was ambiguous, unintelligible, and uncertain, and the demurrer having been sustained without leave to amend, judgment was entered in their favor. Held, First—That the defendants having voluntarily demurred to the amended complaint could not now be heard to object that the present plaintiff was not regularly substituted for the original, or that the additional defendants were not regularly made parties to the action. Second—That the complaint showed that the plaintiff had a sufficient interest in the land to enable him to maintain the action. Third—That the objection that it did not appear that the plaintiff had legal capacity to sue could not be availed of upon either of the grounds of demurrer stated in this case. Fourth—That the objection that the land in controversy was greater in quantity than could, under the law, be held by a sole corporation, could not be sustained, as he would at all events have a right to have his title quieted to the amount which the law allowed him to hold; and that it was, therefore, unnecessary to determine whether he could hold the quantity claimed in his complaint.</p> <p>Demurrer—Amendment of Complaint.—Whenever a demurrer to a complaint is sustained on the ground that it does not state a cause of action, without leave to amend, the defendant is entitled to have a final judgment entered in his favor.</p> <p>Surplusage—Motion to Strike out—Practice.—The existence of superfluous matter in a complaint may be remedied by a motion to strike out.</p>

<p>Appeal from a judgment in the Seventeenth District Court, County of Los Angeles, Sepulveda, J., and from an order denying a motion for a new trial in the Superior Court of Los Angeles County by the same Judge.</p> <p>■ A decision in this case was made by Department Two, January 6th, 1881, affirming the order denying a new trial.</p>

<p>Appeal from a judgment for the defendant, and from an order denying a new trial, in the Seventeenth District Court County of Los Angeles. Sepulveda, J.</p> <p>This was an action against the defendant Mellus, as treasurer of the City of Los Angeles, and his sureties, to recover the sum of twenty-three thousand and eighty-three dollars and forty-seven cents, city money, alleged to be in his hands. The complaint, under the provisions of § 963, Pol. Code, contained the following suggestion: “ The plaintiff suggests the following defects in the bond hereinbefore set forth, that is to say: 1. That the said bond is made payable to the State of California, when it should have been to the plaintiff' under its corporate name. 2. That the aggregate amount for which the several sureties on the said bond became and are liable in the sum of seventy-five thousand dollars, and that the aggregate of the security on such bond should have been equivalent to two good and sufficient sureties.” The case was tried by a jury, to whom were submitted certain special issues, but the issue as to the former judgment was not submitted to the jury, but was reserved by the Court (without objection or exception by either party), to be passed upon by it. The jury found upon the special issues submitted, and also found a general verdict in favor of the defendant Thom.' Afterwards the Court filed the findings referred to in the opinion, and rendered judgment for the defendant Thom. A motion for a new trial was made by the plaintiff, but the record of the former action was not contained in the statement, though printed in the transcript.</p>

<p>Former Adjudication—Estoppel—Verdict—Finding—Trial.—A final judgment entered upon a general demurrer to the complaint, is a bar to another action on the same cause.</p>

<p>Appeal from a judgment disbarring the appellant rendered upon the overruling of the demurrer in the Eighteenth District Court, County of San Diego. McNealy, J.</p>

<p>Appeal from a judgment for the plaintiff and from an order denying a new trial in the Superior Court of Los Angeles County. Howard, J.</p> <p>A petition for hearing in Bank was filed in this case after judgment, and denied.</p>

<p>Appeal from a judgment for the plaintiff and from an order denying a new trial in the Seventeenth District Court, County of Los Angeles. Sepulveda, J.</p> <p>A petition for rehearing was filed in this case after judgment, and denied.</p>

<p>Appeal from a judgment on the defendant in the Eighteenth District Court, County of San Diego. McNealy, J.</p> <p>The judgment was on a demurrer to the complaint, which alleged that in an action by the Commercial Bank of San Diego against Wm. S. Gregg et al., the plaintiff and one Luce were made parties defendant, and filed a cross-complaint, setting up a junior mortgage and praying for its foreclosure; that under a decree in that case the land was sold, and the older mortgage satisfied; that the junior mortgage was partly satisfied, and a judgment docketed for the deficiency; that the land was purchased at the sale by the Commercial Bank, the senior mortgagee; that plaintiff had succeeded to the rights of Luce by assignment; that defendant Gerichten had redeemed as redemptioner from the purchaser, and that the plaintiff had offered to redeem from him. The complaint prayed that the defendant Gerichten be compelled to account for rents and profits, and to convey to the plaintiff.</p>

Thornton, J. The proceeding in the Court below was an application for a writ of mandamus to the Board of Supervisors of Los Angeles County to compel them to consider the claim of the petitioner under the act of March 7th, 1878, and to fix the salary of the petitioner as superintendent of irrigation of the said county.

<p>Trust—Dedication to Pubuc Use—Notice of Unrecorded Deed—Action to Recover Read Estate.—The land was dedicated by the city of Los Angeles as a public cemetery, and conveyed to three trustees, but the deed was never recorded. Afterwards the cemetery was discontinued, and some of the bodies removed; but some still remained. Afterwards the City of Los Angeles, for a valuable consideration, made a quitclaim deed for the tract to one S. (referring to the premises as the ten-acre tract formerly dedicated for a public cemetery), and the Legislature, by the act of February 18th, 1872 (Stats. 1871-72, p. 93), legalized, ratified, and confirmed the said deed, and the ordinance under which it was made. In an action to recover the land by the grantees of S. against one of the trustees, and another holding under him, the Court found that the plaintiffs were purchasers under S. for valuable consideration, and at the time of purchasing and recording their deeds did not have actual notice of the trust deed, but did know that the premises had been dedicated and used as a cemetery, and had notice of facts sufficient to put them upon inquiry as to the true state of the title. Held, First—That the City of Los Angeles had power to make the deed to the Trustees. Second—That the deed itself imparted notice of the dedication of the land. And, third—That the deed passed the legal title to the trustees, and the trust was still in force; and that, therefore, the action could not be maintained.</p>

McNealy, J. A petition for hearing in Bank was filed in this case after judgment, and denied.

McNealy, J. This case presents the same facts, and was submitted on the same argument, as the case of Feliz et al. v. The City of Los Angeles, supra. A petition for hearing in Bank was filed in the case after judgment, and denied.

<p>Motion fob, New Tbial—Notice of Filing of Findings—Infant—Gttabdian ad Litem—Lodgment by Consent—Pabtition.—After the Court has passed upon the partition made by the referees and approved it, the guardians of infant parties are authorized to consent to the judgment as entered, and in such case it is not necessary to notify them of the judgment in order to impose upon them the obligation to move for a new trial within ten days after the judgment, if they could under the circumstances prosecute such motion.</p>

Rolfs, J. The following is the instruction referred to in the opinion of the Court: “If the jury believe from the evidence, that a written application was made by the plaintiff’s assignor, James M. Coburn, to the defendant, upon which the said policy was issued, in which application the said James M. Coburn stated that no danger was apprehended by him, by incendiaries, and they find as a matter of fact that at the time of making said application he did apprehend and had…

<p>Appeal from a judgment for the plaintiff in the First District Court, Fawcett, J., and from an order denying a new trial in the Superior Court, County of Ventura. Hines J.</p>

<p>Application for a writ of prohibition.</p>

<p>Appeal from a judgment for the plaintiff in the Eighteenth District Court, County of San Diego. McNealy, J.</p>

<p>Appeal from a judgment for the plaintiff in the Superior Court of San Diego County. McNealy, J.</p>

<p>Jubisdiction OF Supebiob Coubt.—In an action upon separate and distinct promises of several defendants, contained in one instrument, to pay respectively sums less than three hundred dollars. Held, that the Superior Court did not have jurisdiction.</p> <p>Id.—Joindeb of Pasties.—Section 383, Code of Civil Procedure, permits persons, severally liable on the same obligation or instrument, to be joined as defendants in Superior or Justices’ Courts, as the amount involved may give jurisdiction to the one or the other.</p> <p>Id.—Id.—Case Distinguished.—In People v. Love, 25 Cal. 520, each of the defendants, against whom judgment was rendered, was liable in a sum exceeding three hundred dollars.</p>

<p>Appeal from a judgment and from an order denying a new trial, in the Superior Court of Los Angeles County. Hines, J.</p> <p>A petition for hearing in Bank was filed in this case, after judgment, and denied.</p>

<p>Appeal from a judgment and order denying a new trial in the Superior Court of San Diego County. Sepulveda, J.</p> <p>The defendant was convicted of the crime of assault with intent to commit murder.</p>

<p>Indictment—Burglary.—An indictment for burglary which charges that the defendant entered, etc,, with intent to commit a felony, without stating what particular felony, does not state any offense.</p>

<p>Husband and Wife—Common Property—Conveyance in Fraud of Wife —Involuntary Tp-ustee—-Subrogation.—G., the husband of the plaintiff—pending a suit for divorce brought by Mm (wMck was afterwards dismissed)—-made an assignment of certain notes and mortgages, without consideration and upon a secret trust, in favor of himself, with intent to defraud the plaintiff of her right in them. Prior to the assignment the notes and mortgages were redeemed by G-. from a pledge-holder—in whose hands they were—with money of the plaintiff which he had in his possession.</p> <p>Held-. By using the property of the plaintiff to redeem the notes and mortgages, G-. became a trustee for his wife, and she was entitled to be subrogated to the lien of the pledgee.</p> <p>Id.—Id.—Id.—A wife can not maintain an action while the marriage bond exists, to set aside a transfer of the common property, made by the husband for the purpose of defrauding her. (Morrison, 0. J., and Mybick, J., dissenting.)</p> <p>Id.—Id.-—Id.-—Action Quia Timet.—Probably an action would be maintainable by the wife, while the coverture exists, of the character of a bill quia timet, to procure an injunction to restrain the husband from carrying out a threatened fraudulent transfer of such property which would result in loss to her, or to compel the fraudulent donee or grantee, with notice of the fraudulent intent, to give security to satisfy any claim which she may be found to have to it on the settlement of the affairs of the community, when the marriage tie has been dissolved.</p>

<p>Swamp Land—Reclamation District—-Assessment—Construction op Statute.—In an action to enforce an alleged assessment for reclamation purposes made under and pursuant to the provisions of the Political Code in which it appeared that the plaintiff was not originally formed under the provisions of that code nor reorganized thereunder by virtue of § 3478 of the Political Code:</p> <p>Held, that the provisions of the code had no application to the plaintiff, and the assessment based upon them was unauthorized, and void.</p>

<p>Fixtures—Definition — Construction of Deed—Hotel.—The plaintiff contracted to sell the lot, on which was situated the “ Orleans Hotel,” in Sacramento, “and the appurtenances and improvements thereunto belonging”—the contract providing that the plaintiff might “remove from the upper floors of said property his furniture, pictures, and carpets, but that none of the permanent fixtures or appurtenances to said property shall be removed;” and afterwards the plaintiff, by deed, conveyed the lot to defendant, “and the appurtenances and improvements thereunto belonging”—the deed reciting that it was made in pursuance 'of the agree- ' ment, and “subject to the terms, conditions, and reservations in said agreement contained and expressed. ” At the time of the agreement and conveyance, there was attached to the building certain gas fixtures, consisting of chandeliers, globes, brackets, burners, pendants, etc., the kitchen range with the boiler attached, a patent water-filter, tanks, and mosquito-screens. Held, that these passed by the deed.</p> <p>Id.—Id.—Id.—As between vendor and vendee, the rule for determining what is a fixture is always construed strongly against the seller; and whatever is essential for the purposes for which the building is used, will be considered as a fixture, although the connection between them may be such that it may be severed without physical or lasting injury to either. In fact, whatever the vendor has annexed to a building for the more convenient use and improvement of the premises, passes by his deed.</p> <p>Id.—Id.—Id.—Parties themselves may by express agreement fix upon chattels annexed to realty, whatever character they may have agreed upon; and held, that the reservation in the deed in this case fixed upon all the chattels which the plaintiff had annexed to the hotel, and which were necessary to his use and enjoyment, the character of appurtenances and improvements to the hotel.</p>

<p>Taxation or National Bank Shares—Constiutional Law—Submission oe Controversy- without Action.—The plaintiff was owner of certain shares of capital stock of a National Bank upon which a tax for the year 1880 had been assessed, and an agreed case was submitted in the lower Court by her and the defendant, who was Tax Collector (under § 1138, Code Civ. Proc.), in which the question in effect was whether the assessment was valid. ,</p> <p>JETcM: The provision of § 3640 of the Political Code, as amended March 22d, 1880 (under which the assessment was made), so far as it applied to National Banks, was in violation of the restriction imposed by § 5219 of the Revised Statutes of the United States, forbidding the taxation of such shares at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of the State; and the assessment was therefore void.</p>

<p>Appeal from a judgment for the defendant and an order denying a new trial in the Superior Court of Butte County. Hundley, J.</p>

<p>Taxation of Land Purchased from the State—Property—Definition.— The definition in the Constitution and Statutes of property subject to taxation is broad enough to include the possessory right and imperfect interest acquired by a purchaser from the State, prior to payment of the purchase money or patent; and the State is not estopped from assessing the same.</p> <p>Id.—Delinquent List.—Under the Revenue Act of March 28th, 1874, the delinquent list was prima facie evidence of every fact necessary to maintain an action for taxes.</p>

<p>Statute of Limitations—Foreclosure of Mortgage—Parties—Supplemental Complaint—Amended Complaint—Demurrer—Practice.— In an action commenced May 27th, 1878, to foreclose a mortgage, which fell due June 11th, 1874—in which the mortgagor alone was made defendant—judgment was rendered, and the mortgaged premises sold under execution; but afterward, on motion of the plaintiff, the sale and judgment were set aside, and on May 3d, 1880, the plaintiff, by leave of the Court, filed a supplemental complaint, setting up a conveyance of the mortgaged premises to H. and others, by the mortgagor, made and recorded prior to the suit, and making them and a subsequent grantee, parties to the action. Held: By moving in the original action to make the subsequent grantees of the mortgagor parties to the action, the plaintiff followed the course of procedure approved in previous decisions of this Court; but it was too late to resort to a remedy against new parties in aid of a cause of action which, as to them, was barred by the Statute of Limitations; and their demurrer on that ground was rightly sustained.</p> <p>Id.—Id.—Id.—Id.—Id.—Id.—Grantees of a mortgagor, whose deed is recorded, are owners of the estate and necessary parties to an action to foreclose the mortgage, and if they are not made parties until the lapse of time has barred the remedy for the foreclosure of the lien, they have the right, independent of their grantor, to plead the statute in bar of the action against them.</p>

Denson, J. The following is the testimony: I had a subcontract with Jordan and Hunan to furnish iron. Question. How, Guttenberg, state whether you had a conversation with Mr. Jordan at the Arcade Hotel on the evening of the 19th, the day before he went to San Francisco, and before this sale took place under the Brown judgment, and what he said to you.

<p>Appeal from a judgment for the defendant in the Superior Court of Sacramento County. Denson, J.</p> <p>The action was brought to quiet the title of the plaintiff to a right of way.</p>

<p>Appeal from a judgment for the plaintiff, and an order denying a new trial, in the Superior Court of Butte County. Hundley, J.</p>

Hundley, J. The answer contains a series of denials of various allegations in the complaint, and then proceeds as follows: “ Defendants deny that their claim to and estate in the said property is… Held: used, and enjoyed the same, without objection, until the commencement of this action.

<p>Application for a writ of prohibition.</p>

<p>Complaint—Demurrer —Pleading—Parties—Action bt One in Behale op Numerous Parties.—If a plaintiff attempts to sue in behalf of others as well as himself, and does not allege the facts necessary to entitle them to participate in the action, his allegations in this behalf are redundant, and may on motion he stricken out, or their insufficiency may constitute a good ground of objection to any participation in the action by such third parties; but the complaint, if otherwise sufficient, is not open to demurrer on this account.</p> <p>Id.—Parties—Intervention—Action to Quiet Title.—In an action to quiet title, the only question involved is one of title to the land claimed by the plaintiff and the defendants adversely; and the fact that the defendants claim an interest or estate in a larger tract, including the land claimed by the plaintiff, which, if valid, would be equally valid as to land claimed by many other persons, does not constitute a question of such common or general interest to many as will enable one to sue for the benefit of all.</p> <p>Id.—Id.—Id.—The code permits one to sue or defend for the benefit of many persons, only in cases where they are so united in interest with the person who brings the action, or defends against it, as to make them necessary parties under the first clause of § 382, Code Civ. Proc.</p> <p>Id.—Id.—Id.—Even where the complaint is sufficient to show the plaintiff is entitled to sue on behalf of others, and such others might intervene at some stage of the proceedings, it is too late for them to do so after final judgment in favor of the actual plaintiff.</p> <p>Id.—Id.—Id.—Where the recovery is of something in which persons other than the plaintiff are interested with him, the case is different; and ig such case a Court of equity has the power to provide for a distribution of the property recovered among those who are entitled to share in it.</p> <p>Construction of Findings—Sufficiency of Findings.—A finding that all the allegations of the complaint are true, and all the allegations of the answer untrue, is sufficient; nor can the objection be sustained—that it is contradictory—because some of the allegations of the complaint are repeated in the answer. The findings are upon the issues of fact, and must be limited to the conflicting allegations of the pleadings.</p> <p>Patent—Mexican Grant.—The patentees of a Mexican grant can not be permitted while the patent stands, to aver that the complaint comprised other or different lands from those mentioned in the patent.</p> <p>Apfeal—Stipulation—Supreme Court—Practice.—A stipulation that an appeal has been duly perfected is conclusive on this Court, and can not be avoided here on the ground that it was entered into under a mistake of fact.</p>

<p>Appeal from a judgment for the plaintiff and an order refusing to vacate the judgment, in the Superior Court of Sutter County. Keyser, J.</p>

Hundley, J. This is an action to recover damages for trespass upon the lands of the plaintiff, and to obtain an injunction against future trespass.

<p>Action to Recover Personal Property—Justification—Fraud—Answer—Pleading—Burden of Proof—Evidence.—In an action for the recovery of personal property, the defendant in his answer, after denying plaintiff’s ownership, justified the taking under an attachment (followed by a judgment and execution) against one F., the plaintiff’s vendor, who, it was alleged, was at the time of the taking the owner and in possession of the property; and further alleged that the claim of the plaintiff was based upon a pretended transfer of the property to him by F., and that this transfer—as was known to the plaintiff—was made for the purpose of hindering, delaying, and defrauding the creditors of F. The Court did not find upon this last allegation; but, besides finding the other facts alleged in the answer, found that the sale from F. to the plaintiff was not followed by an immediate delivery, or by an actual and continued change of possession; and on appeal it was contended that the issue of fraud tendered by the defense was one of actual and not of constructive fraud; and that there was no finding upon the issue actually tendered, but a finding of a constructive fraud only.</p> <p>Held, that the finding was within the issue made by the plea of justification. When plaintiff showed a bill of sale from F., the defendant, by showing the matters pleaded in justification, put upon the plaintiff the burden of showing an actual delivery and continued change of possession; that he was not required in this defense to plead anything as to the nature or origin of the title of the plaintiff; and that his allegation on this point might be disregarded as surplusage.</p>

Redmond, J. The hill of exceptions contained, among others, the following assignments of errors on the part of the defendant: The Court' erred in the cases of Charles Mayhew, Richard Clamp, and George Anderson, who were naturalized citizens and on the Great Register, wherein it decided that it could go behind the registration of voters, and take evidence as to when and where they were naturalized, and to determine if they were properly on the Great Register.

<p>Appeal from a judgment of conviction and an order refusing to vacate the judgment in the Superior Court of Shasta County. Bell, J.</p>

<p>Perjury—Indictment.—Where the indictment for perjury contains an express averment of the materiality of the oath, the indictment is sufficient unless it affirmatively appears from the other averments that it was immaterial.</p>

<p>Bigamy—Presumption—Evidence—Criminal Law.—In a trial for bigamy, the Court instructed the jury in substance, that in the determination of the issue as to the continued life of the first wife, they might call to their aid the presumption of law in reference to continuance of a fact once shown to exist. Held, to be erroneous.</p> <p>Id.—New Trial—Insufficiency of Evidence.—In a trial for bigamy, the only evidence to show the life of the first wife, was testimony showing ' that she was alive about three years prior to the second marriage. Held, to be insufficient to sustain a verdict of guilty.</p> <p>Information—Demurrer—Criminal Practice.—The objection that an information does not comply with sections 950, 951, and 952 of the Penal Code, should be raised by special demurrer; it can not be done by general demurrer, or by motion in arrest of judgment.</p>

<p>Appeal from a judgment in the Superior Court, City and County of San Francisco. Freelon, J.</p>

<p>Contract for Sale of Vruit—Construction—Partial Delivery—Time of Payment.—The defendant agreed to take and pay for all the fruit raised by the plaintiff at a uniform rate per pound for all fruit raised and delivered at the works of the defendant. As the fruit ripened the plaintiff delivered and the defendant received it under the contract; but the latter refused to pay for the fruit until all was delivered; and thereupon the plaintiff declined to deliver any more, and sued for the value of that delivered.</p> <p>Held, that according to the true construction of the contract, as each lot was ■ delivered and accepted by the defendant, there became due and payable from it to the plaintiff the value thereof at the rate per pound fixed in the contract.</p>

<p>Swamp and Overflowed Land—Definition—Evidence—Survey—Instructions.—In an action of ejectment—the plaintiff deraigning title under a United States patent, and the defendant under a certificate of purchase, as swamp land, from the State—the patent being for the northeast quarter, and the certificate for the south-east quarter of section 6, township 5 north, range 5 east, Mount Diablo meridian; and it being admitted that the defendant was in possession of twenty acres of the land included in the patent, the defendant offered to prove that the land in his possession, and included in the patent, was, on the 28th day of September, 1850, and ever since has been, and still is, swamp and overflowed land, made thereby unfit for cultivation, and was therefore granted to the State by virtue of the swamp land grant of that date, but the offer was rejected by the Court.</p> <p>Held, that unless the twenty acres constituted the greater part of a legal subdivision, according to the Congressional system of surveys, they were not swamp and overflowed lands within the terms and meaning of the act; and that the ruling of the court was sustainable without considering other points of objection, on the ground that defendant did not offer to prove this fact.</p> <p>Held, further, that the Court rightly refused an instruction that the sale of the land by the State, the defendant’s grantor, if made in good faith, was confirmed by § 1 of the Act of Congress of July 23d, 1866, “ To quiet land titles in California,” as the certificate was for the south-east quarter of section 6, which did not include the land in controversy.</p>

<p>Appeal from a judgment for the plaintiff in the Superior Court of Yolo County. Denson, J.</p> <p>After the decision an application for rehearing was made and denied.</p>

Clark, J. The action was brought to obtain a writ of review, bringing up the proceeding of the defendant in which it approved a certain petition for the formation of a swamp land district. It appeared that the petition was heard by the defendant on the 17th day of June, 1879, and was afterwards approved.

<p>Appeal from a judgment for the defendant in the Superior Court of Lassen County. Hendrick, J.</p>

<p>Conversion—Damages—Findings.—In an action to recover damages for the taking of personal property, the Court found as direct and proximate damages that the plaintiff necessarily expended in the pursuit of the property certain sums as fees and necessary traveling expenses of his • counsel, and as wages and traveling expenses of an agent necessarily employed: Ileld, that this finding was not sustained by the evidence.</p>

<p>Appeal from an order of the Superior Court of Tolo County. Bush, J.</p> <p>On the 21st day of August, 1879—after the notice referred to in the opinion—an order was made discharging the insolvent from his debts; and afterwards—June 22d, 1880—upon the application for a distribution of the assets, the Court made the order appealed from, declaring all orders made subsequent to June 23d, 1879—including the order of discharge—void and of no-effect.</p>

<p>Appeal from a judgment of conviction and an order denying a new trial in the Superior Court of Napa County. Wallace, J.</p>

<p>Application for the writ of mandate.</p>

After the decision a petition for rehearing was filed and denied. Appeal from a judgment of eonvietion-and an order denying a new trial in the Superior Court of Colusa County. Hatch, J.

<p>Conveyance in Fraud of Creditors—Findings—Sufficiency of Evidence.—In an action of ejectment by a purchaser of land at an execution sale, in which the defendant relied upon a conveyance from the execution debtor made prior to the suit, the Court below found that the conveyance was in fraud of creditors.</p> <p>Held, that the finding was so far supported by the evidence as to preclude this Court from disturbing the judgment.</p> <p>Homestead—Sufficiency of Declaration.—A declaration of homestead by a married woman (made May 19th, 1875) failed to state that her husband had not made such declaration, and that she therefore made the declaration for their joint benefit, held invalid.</p>

<p>Appeal from a judgment for the plaintiff and an order refusing a new trial in the Sixth District Court, County of Sacramento. Denson, J.</p>

Clough, J. The plaintiff and certain defendants demurred to the answer of the defendant Dorris. The demurrer was sustained, and the defendant Dorris appealed from the judgment entered thereon.

<p>Immaterial Error—Criminal Law.—A judgment in a criminal case will not be reversed for the failure of the Court to inform the defendant that if he intended to challenge an individual juror he must do so before the juror is sworn, if it appears that the defendant was not prejudiced by the omission.</p> <p>Juror—Criminal Practice.—A judgment will not be reversed on the ground that a juror was not on the assessment roll, in a case where the competency of the juror was not objected to when the juror was called.</p> <p>Definition—Penal Code.—The words Penal Code mean the Penal Code of this State.</p> <p>Instruction—Writing.—In giving an instruction in a criminal case, the Court read certain sections of the Penal Code, and designated them by their numbers only. Held, to be compliance with the law requiring instructions to be in writing.</p> <p>Id.—Id.—Sharpstein, J., McKee, J., and McKinstry, J., were of opinion to the contrary.</p>

; and from an order denying a new trial in the Superior Court for said county.

Hatch, J. The defendants demurred to the petition of the plaintiff, and the demurrer was sustained and judgment entered for the defendant.

Denson, J. The evidence in the case was in effect as follows: W. S. Williams, one of the firm plaintiff, after proving the execution of two chattel mortgages by E. S. Johnson (afterwards introduced in evidence), testified as follows: The defendant, Montgomery, requested us to advance to E. S. Johnson the sum of one thousand dollars, in order to enable the said E. S. Johnson to buy out the interest of his brother, John Johnson, in the said growing crop.

<p>Specific Performance—Vendor and Vendee—Incumbrance —Perfect Title—Specific Performance—Judgment.—The defendant agreed to convey to the plaintiff a perfect title to a tract of land upon which there was at the time, a mortgage—which defendant refused to satisfy.</p> <p>Held, in an action for specific performance by the vendee, that he was entitled to the relief prayed in his complaint, viz., “that the defendant cause the said tracts or lots of land to be released from said mortgage, or in default thereof that he secure plaintiff for the payment of the same and execute to plaintiff a sufficient conveyance of the said land with a perfect title thereto.”</p> <p>Id.—Id.—Id,—Id.—In another action upon the same contract by an assignee of the vendor for the purchase money: Held, that a tender of a conveyance by the vendor while the mortgage remained unsatisfied was not a compliance with the contract.</p>

<p>Appeal from a judgment for the defendant in the Fifth Judicial District, County of San Joaquin, Booker, J., and from an order denying a motion for a new trial in the Superior Court of the said County. Buckley, J.</p>

Booker, J. The following are the instructions asked hy the defendants, and refused by the Court, which are referred to in the syllabi, and which are not set out in the opinion: 1.

<p>Appeal by the plaintiffs from an order granting the defendants a new trial in the Superior Court of Alameda County. Crane, J.</p> <p>Action of ejectment. It appeared that the title of the land in controversy was on the 27th of June, 1866, in the defendant Kelton, who on that day filed a declaration of homestead upon the land, which it was admitted had never been abandoned unless by a deed referred to in the transcript as the deed of the two defendants to S. F. Lewis (the plaintiffs’ ancestor). The Court found “ that on the 13th day of February, 1867, the defendants conveyed to S. F. Lewis, deceased, the premises described in plaintiffs’ complaint.”</p>

<p>Joint Promissory Note—Surviving Joint Maker—Judgment—Merger —Release—Estates of Deceased Persons.—In an action against the survivor of two joint makers of a note, the defendant pleaded that the note had been presented to the administratrix of the deceased maker and allowed as a claim against his estate: Held, that the facts pleaded did not constitute a defense.</p>

<p>Appeal from an order granting the plaintiff a new trial in the Superior Court of Alameda County. Crane, J.</p> <p>Petition for hearing in Bank was filed in this case after judgment, and denied.</p>

<p>Foreclosure—Answer—Gross-complaint—Waiver or Service—Practice.—In an action of foreclosure against the mortgagor and another, the latter filed an answer setting up a judgment lien against the mortgagor, and the latter in open Court waived service thereof, and the judgment directed that his claim should be paid out of the surplus funds arising from the sale of the mortgaged premises.</p> <p>Held, upon appeal by the mortgagor, that he treated the pleading as an answer, and went to trial on the theory that it was such, and that it was too late to say that it was a cross-complaint, and that, if it was conceded that it was, the mortgagee waived service.</p>

<p>Expert—Evidence.—Whether one offered as an expert is qualified to speak as such is a fact preliminary to his testifying to be determined by the Court at the trial, and it is error to refer it to the jury.</p>

<p>Disqualification of Judge—Construction of Code.—The provision of § 170, Code of Civil Procedure, “that no Justice, Judge, or Justice of the Peace shall sit or act in any action or proceeding to which he is a party or in which he is interested,” should not receive a technical or strict construction, but rather one that is broad and liberal.</p> <p>Id.—Id.—Injunction.—The prohibition does not extend to eases where the interest is simply in some question or questions of law involved in the controversy, or when it is indirect and remote; but it extends to all cases where the interest of the Judge is a direct and immediate interest in the result of the action. In an action for an injunction, where the „ property of the Judge was equally subject to injury by the acts sought to be enjoined as the property of the plaintiff, and where the injunction sought would equally protect his property: Held, the Judge was disqualified.</p> <p>Id.—Id.—Prohibition.—A writ of prohibition will lie to restrain a Judge from proceeding in an action in which he is disqualified by reason of interest, although the Court over which he presides may have jurisdiction of the cause.</p> <p>Id.—Id.—Id.—Speedy and Adequate Remedy.—Held, that in the case at bar, an appeal would not be a speedy and adequate remedy.</p>

<p>Counterclaim—Answer—Pleading—Dismissal of Action—Res Judicata.—In an action to quiet title, the defendant’s answer set up matters, which if true might have defeated the plaintiffs action, and if properly pleaded might have entitled the defendants to affirmative relief, but which were not pleaded nominally as a counterclaim, but as a defense. In 1865 a motion by the plaintiff to dismiss the complaint was denied on the ground that the answer contained a counterclaim; but in 1876 the motion was renewed and granted. Upon appeal by the defendant from a judgment dismissing the action, Department One affirmed the judgment upon the ground that where matters which are proper matters of defense are pleaded as such they should be regarded only as such, notwithstanding a prayer for affirmative relief at the conclusion of the answer.</p> <p>Held, By the Court in Bank on rehearing, while affirming the principle laid down by the Department, that the order of the Court refusing to dismiss the action was conclusive upon the parties, and the order dismissing it on this account erroneous.</p> <p>Id.—Id.—Id.—As respects cases arising in the future no averment in any answer will he held to constitute a counterclaim unless it is go denominated, and the appropriate relief prayed; wanting these requisites, the pleading will be held to be a defense only.</p>

<p>Appeal from an order in favor of the validity of a will, and from an order denying a new trial in the Probate Court of the City and County of San Francisco. Myrick, J.</p> <p>It appeared from the evidence set out in the bill of exceptions that Mr. Horan, the lawyer who drew the will, after the testator started to write his signature, took hold of his hand, or of the pen in his hand, and held it while he wrote his signature.</p>

<p>Appeal from a judgment for the plaintiff in the Superior Court of the City and County of San Francisco. Lawlob, J.</p>

Belden, J. The notice appearing in the transcript (which is otherwise in accordance with the terms of the deed of trust), referred to the deed as dated “ May 17th, 1878the true date was “ May 17th, 1877.” The Court found that before the day of sale overtures had been made by the plaintiff through her attorneys for a settlement of the claim, but that no agreement had been made for a postponement, and that the defendants’ attorney, in answer to- a telegram from the plaintiff’s…

<p>Appeal from a judgment for the plaintiff, and from an order denying a new trial in the Fourth District Court, City and County of San Francisco. Morrison, J.</p>

Dwinelle, J. Action to quiet title. The plaintiff deraigned title under three swamp land patents, based respectively upon survey Nos. 115, 125, and 433. The description of the land in the first patent (Exhibit B) is as follows: The east half of southeast quarter, section eleven; south half of section twelve, township one south, range three east.

, and from an order dismissing a motion for a new trial in the Superior Court of Alameda County, Crane, J. A petition for hearing in Bank in this case was filed after judgment, and denied. The facts referred to in the opinion of the Court were pleaded both as a defense and a counterclaim. The argument of Appellants’ attorney is covered by their petition for rehearing, and is therefore omitted.

<p>The motion was made on the ground that the remittitur did not conform to the judgment of the Supreme Court.</p>

order to stay proceedings in a suit commenced by a receiver. The motion is made on behalf of the Real Estate Associates, claimed to be a corporation.

<p>Measure of Damages—Fixture—Trespass.—In an action for the removal of a vault, forming part of the realty, from the plaintiff’s premises, the Court found and gave judgment for its market value.</p> <p>Held, That the measure of damages was the value of the article as it was in place as a part of the realty, immediately preceding its removal, and not ■ what it would sell for in open market if removed from the building.</p>

<p>Receiver—Insolvency—Jurisdiction—Certiorari.— On the filing of the petition of an insolvent, the Court made the usual order directing the Sheriff to take charge of the estate, but afterwards and before the appointment of the assignee the Court appointed a receiver, to whom the Sheriff was directed to deliver the property of the petitioner in his hands. Upon the application of an attaching creditor (whose attachment had been put in the hands of the Sheriff prior to the filing of the petition) for a writ of certiorari:</p> <p>Held, That the Court had jurisdiction to make the order.</p> <p>Id.—Id.—Held, further, that the lien of the attachment was not affected by the appointment of a receiver, but if the applicants had any lien, the receiver hel'd the property subject to such lien as fully as did the Sheriff, and that if the property was sold by the receiver the lien would attach to the proceeds.</p>

The affidavit for attachment in this case is in the same form as that commented upon in Wilke v. Cohn, referred to in the opinion.

<p>Certiobabi—Jurisdiction — Contempt—Dormer Adjudication.—Upon a proceeding against a party for contempt, the defense was a former adjudication of the same matter, but the Court adjudged the party guilty.</p> <p>Held, That the defense did not go to the jurisdiction of the Court, and that the ruling could not be reviewed upon certiorari.</p>

Patterson, J. Action upon a promissory note against L. T. Mitchell, J. L. Faulkner, and B. F. Langford. It appeared from the evidence that the last two, though joint makers, signed as sureties for the first.

<p>Specieio Pebfobmance—Vendob and Vendee—Rescission.—Specific performance is a relief which the Court will not give unless in cases where the parties seeking it come as promptly as the nature of the case will permit; accordingly this relief denied in a case where the vendee had failed to pay any part of the purchase money, except a portion of the interest thereon, for a period of over six years from the execution of the contract.</p> <p>Id,—Id.—Id.-—R. purchased land in his own right, taking a deed therefor in his own name, but before purchasing gave H. an agreement to convey the land to him upon the payment of the money which he had paid with interest, within eight months. H. failing to pay within the time, R. returned to him money received on account of purchase, and notified him that the contract was at an end. Held, That the rescission was valid.</p>

<p>Appeal from a judgment and from an order denying a new trial, in the Twelfth District Court, City and County of San Francisco. Daihgerfield, J.</p>

<p>Construction of Mortgage—Exception—Reservation—Declaration of Homestead.—A mortgage excepted and reserved to the mortgagor his homestead right and claim in and to the mortgaged premises, as the same might be appraised and set off to him according to law, etc., but in fact the homestead was invalid, because the declaration did not contain a statement of the estimated actual cash value of the premises.</p> <p>Held, That the intent was that the mortgage should operate only on the excess of the value of the premises over the statutory exemption.</p>

<p>Appeal from a judgment for the plaintiff in the Twentieth District Court, County of Santa Clara, and from an order denying a new trial in the Superior Court of the same county. Belden, J.</p>

<p>Nonsuit—Opening Statement—Contract of Sale—Complaint.—Held, That a nonsuit upon the opening statement of plaintiff’s attorney was erroneously granted.</p> <p>Id.—Id.—It would be much better not to nonsuit on an opening statement, unless it is clearly made and it is plainly evident therefrom that no case can be made out.</p>

Belóen, J. Action of ejectment. After the judgment by default had been entered in favor of the plaintiff, the defendants moved to set aside the default and judgment. The motion was denied, and the defendants appealed.

<p>Action to Construe Will—Jurisdiction of District Court—Equity Jurisdiction—Construction of Constitution.—Section 6, article vi of the Old Constitution conferred upon the District Courts the same jurisdiction in equity as that administered by the High. Court qf Chancery in England; and consequently the former Court had jurisdiction of an action to construe the will of a testator after the same had been admitted to probate.</p> <p>Construction of Will—Bequests—Idem Sonans—Mistake in Spelling—Pro Rata—Definition.—A testator bequeathed to three sisters, of the full blood, one hundred thousand dollars each, and to two sisters of the half blood, fifty thousand dollars each, and to a trustee in trust for three children of a deceased sister of the full blood one hundred and fifty thousand dollars, and after other bequests, bequeathed the residue of his estate to he divided pro rata between his sisters and the children of his deceased sister above mentioned (naming them).</p> <p>Held, That the words “pro rata" were evidently intended to be “pro rata-” and implied that the distribution was to be made in accordance with some rate previously indicated; that the sums mentioned in the first bequests furnished the rate or proportion referred to, and that the residuum should be distributed between the several legatees therein named in the proportion existing between special bequests to them.</p> <p>Id.—Rules of Construction.—Certain rules of construction referred to.</p> <p>Id.—Precedence.—Except for the establishment of general principles very little aid can be procured from adjudged cases in the construction of wills. It seldom happens that two cases can be found precisely alike.</p>

<p>Condition—Performance of Condition in Deed.—D. conveyed to Y. an undivided third of a lot of land, the deed reciting, “ the foregoing conveyance is upon the following conditions, to wit: ‘that the said Y. hereby covenants and agrees to proceed to recover the possession of the above described lot, at his own expense, at a suit at law,’ ” etc., and thereupon Y. employed a competent lawyer, and with him, with the consent of D. and his attorneys, undertook the conduct and control of an action then pending against the parties in the possession of the land. Afterwards, on the motion of D., and against the will of Y. and his attorney, another attorney was substituted in the action, who dismissed the same and commenced another action in which he recovered the land:</p> <p>Held, That, conceding the condition to have been a condition precedent, this action on the part of D. prevented its performance by Y., and therefore excused the non-performance</p>

<p>Appeal from a judgment for the plaintiffs in the Superior Court of the City and County of San Francisco. Hunt, J.</p> <p>An agreed case was submitted to the Court below, in which the question was stated to be whether or not the defendant was required to transfer the stock to plaintiff, and whether it was liable to damages for refusing to do so; and judgment was entered that it should transfer the stock.</p>

<p>Fokeclostoe oe Mortgage—Parties—Homestead.—Q-. mortgaged land to S. for five thousand dollars, and afterwards filed a declaration of homestead on the mortgaged property and other property contiguous thereto (the whole property being of the value of sixteen thousand dollars). Under a judgment in an action of foreclosure, subsequently commenced against G. (his wife not being a party), S. purchased the mortgaged premises and received a deed, and G. delivered possession of the premises to him. In an action of ejectment by G. and wife,</p> <p>Held, That it was clear, upon the face of the declaration of homestead, that it was not intended thereby to assert a title hostile to that held under the mortgage, but one in subordination to it, and that judgment was rightly entered for the defendant.</p>

McMubtby, J. The following finding of the Court will illustrate the points made by Respondent’s counsel: That on April 1st, 1880, the plaintiff bought from the defendants all‘’of the cattle of the kind, brand, and description mentioned in the plaintiff’s complaint and in the defendants’ answer, then running in a band of two hundred and fifty head of cattle belonging to defendants, at the agreed price of twenty-two dollars and fifty cents for the steers, and twenty dollars…

<p>Sheriff—Execution—Counsel Eees—Damages—Conflict of Evidence. , The plaintiff as Sheriff, under an'execution in favor of the defendants, levied on certain personal property; but before the sale S. & Co., and also one S., each claimed the property pursuant to § 689 of the Code of Civil Procedure. Written notice of the latter claim, and also (it was claimed) of the former, was given by plaintiff to the defendant, who delivered to the plaintiff an indemnity bond, against the claim of S., and ordered him to sell. After the sale, S. & Co. sued the plaintiff for the value of the property, which was paid. In an action to recover the amount of the judgment, also one hundred dollars paid as counsel fees, the Court found (among other facts) that the plaintiff notified the defendants of the claim of S. k Co., and was thereupon directed to sell.</p> <p>Held, That upon the former point the evidence was conflicting, and therefore sufficient to sustain the finding; and, held, further, that the plaintiff was entitled to recover not only the amount of the judgment, hut the expenses attending the action which he had to defend.</p>

<p>Action for Rent—Landlord and Tenant—Sufficiency of Evidence.— Held, That the evidence stated in the opinion justified the finding that the relation of landlord and tenant did not .exist between the plaintiff and defendants.</p>

<p>Specific Performance—Parol Contract to Convey Land—Part Performance—Vendor and Vendee—Complaint.—In an action by a vendee for the specific performance of a contract to convey land, the court found a parol contract and gave judgment for the plaintiff.</p> <p>Held, That the complaint was insufficient in not alleging a readiness and willingness on the part of the plaintiff to pay the balance of the purchase price, and that it was also defective in the averments respecting part performance.</p>

<p>Appeal from a judgment for the plaintiff in the Superior Court of Santa Clara County. Spencer, J.</p>

<p>Appeal from a judgment for the defendants and from an order denying a new trial, in the Twentieth District Court, County of Monterey. Belden, J.</p>

<p>Appeal from a judgment of distribution in the Probate Court of the City and County of San Francisco. Myrick, J.</p>

<p>Undertaking ox Appeal—Justice’s Court.—On appeal from a judgment in a Justice’s Court, one of the conditions of the undertaking was, that the appellant would pay all costs recovered against him in the appellate court.</p> <p>Meld, That neither the circumstance that the amount of the bond was more than one hundred dollars, nor the circumstance that it was insufficient in amount to operate a stay of execution, rendered the appeal ineffectual.</p>

<p>Prohibition—Jurisdiction—Preliminary Examination.—Upon an application for a writ of prohibition, to stop the trial of an information against the plaintiff for assault with intent to commit murder, the grounds alleged were, that the magistrate before whom the preliminary examination took place, did not examine on oath or otherwise the prosecutor or any other witness, etc.</p> <p>Held, That-the omissions complained of did not affect the question of jurisdiction, and that therefore prohibition was not the proper remedy.</p>

<p>Contested Flection—Ballot—Misnomer—Vignette—Breakage of Seal of Package.—M. A. Edmonds having received a certificate of election as Superior Judge of San Francisco, his election was contested by C., and upon a recount in the Superior Court, the Court held that the former had a majority of eight votes. Upon appeal the contestant relied upon the following grounds of objection: 1. Five ballots were counted for Edmonds which read “For Judge of the Superior Court, M. A. Edwards. ” 2. That one ballot counted for E. was composed of a half of each of two tickets; the entire ticket of the Republican party, ■ except the vignette, being attached to the vignette of the Democratic party. 3. Another ballot had the words “For President, Hancock and English” written in lead pencil upon its face under the words, at the top of the names, “Eleventh Senatorial District.” A On another ballot the contestant claimed that the name M. A. Edmonds had been erased by a pencil line drawn through it—the respondent claiming that it appeared from the ballot that the pencil line had been rubbed off so as to cancel the erasure. 5. When a package of ballots from one precinct was brought into Court by a deputy clerk to be examined and counted in its turn, the seal was found broken and the strings loose, but there was no evidence that any ballot had been tampered with, and when the package came into the custody of the Court it was properly sealed. 6. Forty-two ballots of the National Greenback Labor party were counted for respondent which differed from the regular ticket of the party in the following particulars, viz.: in the vignette of the ticket were the words “Ninth District,” instead of “Ninth Senatorial District;” and below, the words “For Assemblyman” instead of the words “For Member of the Assembly,” and the words for “Superior Judge,” instead of the words “For Judge of the Superior Court.” 7. From one ballot of the Democratic party as originally printed the name was erased and the name of “ Edmundson” written in its place. Upon the 1st, 2d, and 7th points the Court not being fully in accord expressed no opinion. Upon the other points held as follows, viz.: Upon the 3d, that the ballot was good; upon the 4th, that the question whether or not the attempted erasure had been canceled was a question for the Court below to find, and that, upon an inspection of the ballot, the question was so far doubtful that this Court was not inclined to interfere; upon the 5th, that when the package came to the Court properly sealed, the object of the law requiring it to be sealed was accomplished, and that while in the custody of its officers, in the absence of any proof, the law would not presume an act of bad faith on their part; upon the 6th, that the ballots were good. Judgment was accordingly affirmed.</p>

<p>Appeal from a judgment for the plaintiff, and from an order denying a motion for a new trial in the Third District Court of the City and County of San Francisco. Thornton, J.</p>

<p>Appeal refusing to admit a will to probate in the Superior Court of the City and County of San Francisco. Finn, J.</p>

<p>Conflict of Patents—Mexican Claim—Reserved Land^-Construction of Statute.—The case of Iivff v. Hoyle, 93 U. S. 558, referred to as deciding the principal points of this case.</p> <p>Id,—Id.—Id.—Id.—Conflict of Patents.—A patent of the United States for land to which it has no title conveys none; so held with reference to a patent of the United States, issued after the land was listed to and patented by the State to another.</p> <p>Id.—Id.—Id.—Id.—Id.—Pacific Railroad.—Upon the filing of the plat of the Central Pacific Railroad, only the vacant odd-numbered sections within the twenty miles limit were withdrawn, and the even-numbered sections remained subject to pre-emption and homestead as before.</p> <p>Id.—Id.—Id.—Id.—Id.—Id.—Under the third section of the Act of Congress of July 22d, 1866, the State selections confirmed by the act “ have the same force and effect as the pre-emption rights of a settler on the unsurveyed land.”</p>

<p>Appeal from a judgment for the plaintiff in the Twenty-second District Court, County of Sonoma. Temple, J.</p>

<p>State Lands—Act of March 27th, 1872, fob. the Relief of Purchasers of State Lands—Construction of Statute.—An application to purchase lieu lands was made by 0. September 9th, 1870; and an application to purchase the same land by Myers October 14th, 1871. The application of the latter being approved, he paid the twenty per cent, in interest required by law, and received his certificate December 18th, 1871, and paid in full for the land November 28th, 1877. No further steps were taken by C. after the filing of his application till January 30th, 1877, when he filed his protest against the issuance of any further evidence of title to Myers. On November 4th, 1878, the plaintiff filed an application to purchase the same land, and the case having been referred to the proper court on his demand, and an action commenced by him therein, the Court, upon the above facts, gave judgment in his favor. Upon appeal it was claimed by counsel on both sides that from the time of the passage of the act of April 4th, 1870, amending that of March 28th, 1868, there was "no law under which lieu lands could be disposed of by the State.</p> <p>Held, by the Court (assuming this to be the case) that the application of Meyers was validated by the act of March 27th, 1872, and that he was entitled to purchase the land.</p> <p>Id.—Id.—Id.—The act of March 27th, 1872, for the relief of purchasers of State lands is operative not only upon applications which were defective in form, but upon those which were defective in substance, and the proviso in the act refers only to valid applications.</p>

Payne, J. The material parts of the compromise agreement referred to in the opinion were as follows: “ This agreement, made and entered into this 8th day of January, A. D. 1876, by and between Catherine Dunne, * ® * party of the first part, A. J. Donnelly and E. T. Donnelly, as the executors of the last will of James Dunne, deceased, parties of the second part, and James F. Dunne, * * ® of the third part, witnesseth: Whereas, a settlement and adjustment of the claims of the…

McKee, J. Upon the offering of the resolution referred to in the opinion, the defendants’ attorney objected generally without specifying any grounds, and upon the objection being overruled, excepted, and after the resolution had been read in evidence, added the further objection that it was contrary to public policy for the trustees to pass such a resolution as that in their own favor.

Wheeler, J. This is an action to quiet title, brought upon the patent involved in The United States v. Chapman, 5 Saw. 528, the plaintiff in this having been the defendant in that case.

Bbown, J. The order appealed from was an order in insolvency proceedings setting apart certain real estate to the insolvent as a homestead.

<p>Appeal from a judgment in the Superior Court, City and County of San Francisco. Sullivan, J.</p>

<p>San Francisco—Construction of Statute.—The City and County of San Francisco is a continuation of the municipal corporation known as the City of San Francisco.</p> <p>Id.-—Id.—Municipal Corporations.—Statutes of a general nature do not repeal by implication charters and special acts passed for the benefit of particular municipalities.</p> <p>Held, accordingly, That the act of April 2d, 1866, as amended March 7 th, 1872, fixing the time for holding municipal elections in San Francisco, is not repealed by the amendment of March 7th, 1881, to the Political Code.</p> <p>Id.—Id.—Id.—Amendments to the Political Code do not affect the acts or amendments to the acts enumerated in section 19 of said code.</p> <p>Id.-—Id.—Id.—Constitutional Law.—The Constitution of 1879 does not repeal the said special acts fixing the time for municipal elections in San Francisco.</p> <p>Id.—Id.—Id.—Id.—With the exception of Police Judge, Chief of Police, and Assessor, all of the elective officers of San Francisco must be elected at the time fixed by the acts of April 2d, 1866, and March 30th, 1872. Id.—Id.—Id.—Id.—Ross, J., concurring, was of opinion that the act of May 7th, 1881, can not operate to postpone the elections provided for in the acts of April 2d, 1866, and March 30th, 1872, because such operation would extend the terms of municipal officers, and therein violate section 9, article xi of the Constitution; but that the act of May 7th, 1881, applies to the City and County of San Francisco, and that its operation in providing for a municipal election in 1882 is constitutional and valid.</p> <p>Id.—Id.—Id.—Id.—Myrick, J., and McKee, J., dissenting, were of the opinion that no election could be held in San Francisco until the first Tuesday after the first Monday in November, 1882.</p>

<p>Appeal from a judgment for the plaintiff for a peremptory writ of mandamus against the defendant, and from an order denying a new trial in the Superior Court of Alameda County. Crane, J.</p>

<p>Justices of the Peace—Cities—Constitutional Law—'Elections — ' Local op. Special Laws—General Laws—Definitions.—Bishop v. The Council of the City of Oakland, supra, 572, affirmed.</p> <p>Id.—Id.—Salary of City Justice—Construction of Code.—It is the intention of section 103, though not expressly so stated, that the salaries of city Justices of the Peace shall be paid by the'city for which they are elected, and also that they shall be paid monthly.</p>

Booker, J. Action to establish a trust inland and compelaconveyance by the defendant to the plaintiff. The complaint in effect alleged the following facts: On the 23d day of October, 1873, one A. W. Cox purchased from the State of California the land in controversy, and received a certificate of purchase therefor, and afterwards died.

<p>Application for writ of mandamus.</p>

<p>Street Assessment—Grading—Jurisdiction—Construction oe Statute.—Under section 4 of the act of April 1st, 1872 (Statutes 1871-72, pp. 805, 806), all street works referred to in the act may be ordered by the Board of Supervisors without a petition, except grading, but as to grading a petition is always required, except in the case where the street has been graded, or graded and macadamized, or graded and paved, for the distance of two or more blocks upon each side thereof of any one or more blocks or crossings of a street which is not improved. The proviso “that when one half or more of the grading, etc., of any one street lying between two main street crossings has been already performed, the Board of Supervisors may order the remainder of such grading, etc., notwithstanding the objection of any or all of the property-owners,” does not dispense with the necessity of a petition.</p>

<p>Appeal from a judgment for the defendant in the Twenty-second District Court, County of Marin. Temple, J.</p> <p>A petition for hearing in Bank in this case was filed after judgment, and denied.</p>

<p>Appeal from a judgment for the plaintiff in the Superior Court of the City and County of San Francisco. Cary, J.</p>

Belden, J. The Court found with reference to the levy of the attachment, that under and by virtue of the same, the defendant Thomas Desmond, as Sheriff of the City and County of San Francisco, State of California, levied upon said stock by leaving with the President of said Home Mutual Insurance Company a copy of said attachment commanding him to hold said stock subject to any judgment that said Wilson might recover against said Shartzer in said action instituted by him as…

<p>Appeal from an order quashing an execution in the Superior Court of Santa Clara County. Spencer, J., and Belden, J.</p>

<p>Fraud—Rescission of Contract.—A person desiring to rescind a contract because of fraud, must, so far as his action can do it, restore the parties to their former condition within a reasonable time.</p> <p>Id.—Id.—Reasonable Time.—The defendant purchased of the plaintiff certain stock for the sum of-dollars, and pledged the stock to the plaintiff to secure promissory notes given for the purchase money. The contract was procured by fraudulent representation made by the plaintiff to the defendant with reference to the value of the stock, the falsity of which was discovered by the defendant about the 1st of January, 1873, after paying six hundred dollars of the purchase money. November 13th, 1874, the stock was sold by the plaintiff for nineteen dollars and sixty-cents, and the proceeds applied upon the notes. An action to recover on one of the notes was commenced January 4th, 1876, and the answer filed May 22d, 1876: Held, That the defendant had not sought to rescind within a reasonable time.</p> <p>Construction of Pleading. —A pleading must be taken most strongly against the pleader.</p> <p>Pleading—Want of Consideration.—The defendant pleaded that the note sued upon was obtained by false and fraudulent representations made to to him by the payee, and without consideration therefor.</p> <p>Held, That the latter words did not constitute an independent and separate allegation of facts, the evident meaning being, that the note was without consideration, because of the false and fraudulent representations referred to.</p> <p>Fraud—Rescission of Contract—New Trial—Appeal.—Held, upon reversal on the appeal, that the case'is one in which a new trial should be had if either party desired it.</p>

<p>ppeal from Order—Identification of the Papers Used on the Hearing—Certificate of Clerk—Transcript—Practice.—Upon an appeal from an order,</p> <p>Held, That unless the affidavits, etc., when used on a motion are then indorsed or marked by the clerk, his certificate to the identity of such papers can not be held to be determinative of the fact as against his subsequent statement that he signed the certificate by mistake, and that he did not know, and had no means of knowing, whether the affidavits were or were not used at the hearing of the motion.</p>

<p>Foreclosure of Mortgage—Purchaser from Mortgagor.—0. having a contract to purchase land, assigned it to P., who at the same time executed a mortgage thereon to secure part of the purchase money. P. executed a deed of the premises to W. M., but did not in terms assign the contract, and W. M. assigned all his right, title, and interest in the land to E. M. After this assignment W. M. paid the balance of the purchase money, and at his request, the vendor made a deed of the premises to E. M. In an action to foreclose a mortgage by the assignee of 0.: Held, That the interest of E. M. was subject to the mortgage.</p>

<p>Appeal from a judgment for the defendant in the Twenty-second District Court, County of Marin, and from an order denying a new trial in the Superior Court of the same county. Temple, J.</p>

The action was brought to oust the defendants from the office of member of the board of directors of drainage district number one; to enjoin them letting any contracts as such board, and from levying any tax within said district; and to obtain a decree determining that said district was not legally formed, and was not a drainage district.