Volume 6 — California Reports

This was an action brought on a promissory note, of which the following is a copy: $5,000 00. San Francisco, Aug. 5th, 1854. On the fifth day of January, 1855, the Eureka Flour Mills Company promises to pay to the order of R. Chenery Five Thousand Dollars, for value received, with interest of three per cent, per month. The property of the Company only is pledged for the payment of this note, without recourse in any event to the private assets of the stockholders.

<p>The Act of May 3d, 1852, providing for the disposal of 500,000 acres of land granted by Congress to this State, is not in conflict with the Act of Congress of 1841, providing for their location after they are surveyed.</p> <p>The State has the most perfect right to determine what shall constitute evidences of title, as between her own citizens, to all lands within her boundaries, and Congress has no power to interfere therein.</p>

The plaintiffs brought their action on a promissory note made by the defendant by C. S. Potter, his attorney, under a general power of attorney to transact all of Defendant’s business, authorizing the sale of real estate and the borrowing of money thereon, and empowering the attorney to execute good and sufficient deeds, mortgages, bills, bonds, notes, etc. There is a power of substitution, except as to selling or mortgaging real estate.

Writ or Error to the District Court of the Ninth Judicial District, County of Tuba.

<p>Appeal from the District Court of the Third Judicial District, County of Santa Cruz.</p> <p>The plaintiff filed his bill of foreclosure. On the trial the plaintiff read in evidence the note and mortgage. The defence set up is that the note sued on .is not the note, to secure which the mortgage was given. In support of this, the deposition of the defendant Hill, the mortgagor, taken on behalf of his co-defendant, Carr, the subsequent purchaser of the land, was read in evidence. The deposition was taken apparently on notice, at least no exception on that ground is taken to it, but the plaintiff was not represented at the taking of the deposition, and the witness was not subjected to any cross-examination. Other exceptions were taken to the admission of the deposition which are not passed upon by the Court. The substance of the deposition appears in the comments upon it in the opinion of the Court.</p> <p>Judgment was rendered for defendant in the Court below. Plaintiff appealed.</p>

This action was brought for $3,150 damages for breach of a contract made by plaintiff and defendants, by which plaintiff was to deliver a thousand logs (of which the plaintiff delivered five hundred) at defendants’ saw-mill, and for which the latter were to pay a fixed price, and for hindering the plaintiff from fully performing his part of the contract- - the amount claimed being $6,400, the contract price, less an admitted payment.

<p>Appeal from the County Court of Nevada County.</p> <p>The plaintiffs brought their action in a Justice’s Court to recover possession of a mining claim, and for damages for injuries done thereto by defendants. The defendants answered, and on trial moved to dismiss the action, for the reason that two causes of action were improperly united. The Justice overruled the motion. The jury found a verdict for defendants, and judgment was entered accordingly, from which plaintiffs appealed to the County Court. There the motion to dismiss was renewed and granted, and the action dismissed. Plaintiffs appealed.</p>

On March 12th, 1855, the plaintiff, Ellen R. Robb, filed a bill of divorce against her husband, John S. Robb, and claiming certain property as conveyed to her by deed of gift during coverture, as well as her share of the common property. Service of process was had on defendant in San Francisco on the next day.

<p>An indictment charging a felony, and setting forth that the defendant was an accessory before the fact, is good under the Statute, by which no distinction exists between a principal and an accessory before the fact.</p>

The plaintiff brought his action on a tripartite agreement (not under seal) dated Nov. 22, 1853, between Wm. A. Richardson of the first part, Chas. S. Compton and D. Davidson (the defendants) of the second part, and Wm.

The record discloses that on the 13th of March, 1855, the plaintiff, and David Mitchell, as master, entered into a charter party, by whicfi Mitchell chartered to the plaintiff the ship Don Juan, for a voyage from “ San Francisco to Acapulco, there to lbad such pearl shell and Brazil wood as the charterer may have ready; thence to proceed to Salado, there to complete a full cargo of Brazil wood, and proceed therewith to Valparaiso.” Among other things, it was stipulated that…

<p>Attendance upon any Court as a witness, juror, or party, only exempts the person so in attendance from arrest in a civil action, but not from obeying any ordinary process of a Court.</p>

The plaintiffs filed their bill in chancery claiming a discovery and praying for a decree quieting plaintiff’s title to a portion of a certain tract of land in Solano county, known as “ Suisun,” and restoring plaintiffs to the possession thereof, against the defendants and some three hundred other persons, who are alleged to be trespassers on said land, though the extent of the possession of each is unknown to plaintiffs.

The plaintiff filed his bill for an injunction against the defendant, to enjoin his collecting, by sale, as “ late sheriff and ex officio tax collector,” the State and county taxes assessed on plaintiff’s property in San Francisco for the fiscal year 1855-6. The grounds of the application appear in the opinion of the Court. It is admitted that the defendant’s election, as sheriff, was after the passage of the act making the sheriff tax collector.

<p>Where the goods of a third party are mixed with the property, o.r in the apparent possession of, the judgment debtor, the sheriff is not liable for levying on them as the property of the debtor, unless there has been notice and demand of the goods by the owner, and a delay or refusal to deliver.</p> <p>Where no such notice or demand was proved, it was error to charge the jury “that the sheriff was a trespasser, and that they were to find the value of the goods.”</p>

<p>The statute making the possessory rights of settlers on public lands for agricultural or grazing purposes yield to the rights of miners, has legalized what would otherwise be a trespass, and the Act cannot be extended by implication to a class of cases not especially provided for.</p> <p>A miner has no right to dig or work within the enclosure surrounding a dwelling house, corral, and other improvements of another.</p>

<p>Appeal from the District Court of the Third Judicial District, County of Alameda.</p> <p>Action of ejectment. The complaint alleges “ that until wrongfully ousted by the defendant,” the plaintiff and his predecessors in interest were in possession, and that plaintiff is still entitled to possession of the land in controversy, and that defendant is wrongfully and unlawfully in possession and unjustly withholds the same from plaintiff, etc.</p> <p>On filing affidavits of plaintiff and his counsel that they both reside in the county and that no answer or demurrer had been served on either of them within the required time, default was entered, and on motion of, plaintiff’s attorney final judgment was rendered for plaintiff. Defendant’s attorney moved at the next term of the Court to set aside the default on his affidavit that he had filed an answer within the required time, but had not served a copy on defendant as required by the recent amendment to the Practice Act, being ignorant thereof. That the answer was filed after the commencement of the term at which judgment was entered, and that deponent had been informed by the Court that no causes would be tried at that term, in which issue had been joined after the first day of term; and that deponent left the Court in that belief; and that defendant has a good defence on the merits. The District Court overruled the motion, and defendant appealed.</p>

The plaintiif recovered judgment against the defendant, of which judgment Thomas (x. Richards became the owner, and caused an execation to be issued to the sheriff of Marin County, who levied on and sold certain lands of defendant in that county, the defendant having sufficient personal property to satisfy the execution. The levy was made February 20th, 1855, and the sale took place March 12th, 1855. The lands were sold in gross under direction of defendant.

<p>Appeal from the District Court of the Tenth Judicial District, County of Yuba.</p> <p>The plaintiff brought his action April 8th, 1854, to recover one half of the amount due by plaintiff and defendant, on a note by them jointly made as co-partners to S. J. Field, and paid by plaintiff. The note was executed October 30th, 1850; $35 was afterwards paid on it by defendant, and subsequently $800 was paid from the proceeds of the joint property of plaintiff and defendant, originally mortgaged to Field to secure the note, the mortgage being “ satisfied and discharged ” by Field to effect the sale.</p> <p>The residue of the principal and interest due on the note to April 10th, ’52, was paid by plaintiff alone, by a settlement of accounts made on that day between plaintiff and Field, Field at that time owing the plaintiff money for services previously performed.</p> <p>The defendant, in his answer, sets up the discharge of the mortgage as a discharge of the debt, and denies his obligation to contribute to its payment; he also pleads the Statute of Limitations, alleging that more than two years had elapsed between the payments made by plaintiff to Field and the commencement of this action.</p> <p>On the trial the Court below refused the instructions asked for by plaintiff and set forth in the opinion of this Court, and the jury, under the instructions of the Court, found a verdict for defendant, on which judgment was entered accordingly, from which plaintiff appeals.</p>

<p>Where a party changes his attorneys in an action, and there is no regular substitution of attorneys as pointed out by statute, notices may be served on the attorney of record.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>This was an action to recover the value of plaintiff's services as attorney in the case of Brown v. Vidal, as laid in the complaint. On the trial, the plaintiff was allowed to prove his services in protecting the defendant’s interest in the same property, in a subsequent suit, between Newland, the receiver appointed in the first suit, and one Keane, who has since purchased the property, and now intervenes in this action to protect the property from an attachment levied herein before his purchase. Vidal, the defendant, makes no defence, and the action is defended by the intervenor, who objected to the introduction of the above testimony, and excepted to the order overruling his objection. Newland, who testified that he was not an attorney at law, but had acted as attorney for several parties during the period. 1849-50, when the plaintiff’s services were rendered, and was conversant with attorneys’ fees at that time, was allowed to prove the value of plaintiff’s services, along with other witnesses who were attorneys; his estimate being the highest of all. The intervenor objected to the witness as incompetent; but the objection was overruled, and his evidence admitted under intervenor’s exception. Judgment was -rendered for plaintiff. Intervenor moved for a new trial, which was overruled, and intervenor appealed.</p>

This was an action on a bail bond. The defendants demurred and answered, demurrer being overruled. The record shows that the plaintiffs sued out a writ of arrest against H. Gilbert, in an action brought against him, and in which the complaint alleged indebtedness, but not fraud.

<p>Appeal from the District Court of the Fifth Judicial District, County of San Joaquin.</p> <p>The plaintiff filed his verified hill to foreclose a mortgage upon a certain ranch in San Joaquin County, on the 2d day of January, 1855, against Edward Masterson, and Mary Ann, his wife.</p> <p>The answer, which was not verified, sets up in defence that subsequent to the maturity of the mortgage debt, the plaintiff and defendants entered into an agreement, by which the defendants assigned to the plaintiff the rents of the mortgaged premises, until full payment of the debt and interest, and the plaintiff agreed to extend the time of payment one year, to-wit, till October 5th, 1855, and that said plaintiff had proceeded to collect the same, but had not credited defendants therewith. On the day of trial, the plaintiff moved to strike out the answer as not verified, which motion the Court overruled and allowed the defendants to verify the answer, to which the plaintiff excepted.</p> <p>The cause was tried before a jury, and the defendants offered in evidence an agreement in writing, dated two months after the maturity of the debt, and about three months before the commencement of this action, by which the defendant Edward Masterson assigned to plaintiff the rents, etc., of the mortgaged premises until full payment of the debt and interest, and the plaintiff acknowledged the receipt from Masterson of an order on the lessee of the mortgaged premises for the amount of the debt and interest to be paid in quarterly payments, to be endorsed when collected on a copy of a mortgage held by plaintiff, which should be delivered to Masterson when the last payment was made. To the introduction of this agreement plaintiff objected. The objection was overruled and the agreement was read in evidence, subject to plaintiff's exception. The jury found a verdict for defendants, and judgment was entered accordingly. Plaintiff appealed.</p>

<p>Appeal from the County Court of Sacramento County.</p> <p>This was an. action of forcible entry and unlawful detainer, commenced in a Justice’s Court and appealed to the County Court. The complaint avers the value of the monthly rent of the lot to be $400, and prays generally for treble damages, but does not refer to the statute. On the first trial before the County Court, the jury found a verdict for the defendants. On motion of plaintiff, a new trial was granted, on which the jury found for the plaintiff, and assessed the damages, which were trebled by the Court, making the sum of $12,150. Defendants moved in arrest of judgment, and for a new trial, which motions were overruled, and defendants appealed.</p> <p>The testimony shows that the defendants were in possession of the lot in question, from June 1st, 1851, to November 2d, 1852, when the buildings thereon were destroyed by fire; that immediately after the fire, the plaintiffs entered on the lot and built a canvas house on the rear portion of the lot, and rented the front portion of the lot to one Ormsby, who agreed to erect valuable improvements. Ormsby partially erected them, but, fearing difficulty, obtained a cancellation of his lease, and moved away the buildings he had erected, on the 17th of November. On the same day, the defendants entered on the front of the lot and erected a store without disturbing the canvas house in the rear ¡ and have since continued to use and rent the store. The workmen employed by defendants testify that there was no opposition to their entry made at the time they commenced the erection of the store. The plaintiff was present after the commencement and during the erection of the building, and notified defendants that he would hold them responsible as trespassers. The defendants were assisted by a number of workmen. One of the defendants, who directed the work, was armed, though he made no attempt to use a weapon, but said that if plaintiff interfered serious would be the consequences, that he was ready for him and had the “tools.”</p>

<p>The objection to the want of verification of a complaint, where verification is required by statute, must be taken either before answer or with the answer.</p> <p>Where a complaint, though defective, states facts sufficient to constitute a cause of action, the objections to it should be taken by demurrer.</p>

The plaintiffs, Adams, Welch & Co., brought this action against Win, R. Gorham, the Sheriff of San Francisco county, and Tilden & Little, warehouse men, for the specific recovery of one hundred and sixty-two barrels of Gallego flour, and damages for detention. Gorham answered, justifying the seizure under a writ of replevin in the suit of Barker & Paddock against Tilden & Little, for two thousand and fifty-four barrels of flour.

The record shows that Hiram Poole, thg husband of the plaintiff, on the 15th Sept., 1853, conveyed the homestead to the defendant for §3,500, by a deed in which his wife did not join, though it was made with her knowledge. Poole the next day left the country.

The plaintiffs brought their action for damages for trespass on a mining claim. The jury found a verdict for plaintiffs for $500. The defendants moved for a new trial on the ground, among others, of error in law occurring at the trial and excepted to by defendants, which appears in the opinion of the Court. The motion was granted, and plaintiffs appealed.

<p>Appeal from the District Court of the Sixth Judicial District.</p> <p>There is but one question raised in this case, which is fully stated in the opinion of the Court.</p>

This action was brought in the name of the People on the relation of the Attorney General, to recover the sum of $7895.

This was an information, in the nature of a quo warranto, to try the title to the office of County Clerk of Alameda county. The facts, as appearing in the statement, are fully set forth in the opinion of the Court. Judgment was given in the Court below in favor of the respondent Church, from which the relator appealed.

<p>Cases of Insolvency under the Act of 1.852, are special cases within the meaning of the Constitution.</p> <p>The Legislature in conferring jurisdiction in these cases, on both the District and the County Courts, acted in the exercise of a legitimate power, and these Courts have concurrent jurisdiction.</p>

The plaintiff filed his complaint against the defendant, as Sheriff of San Joaquin County, for trespass in seizing certain goods of plaintiff. A demurrer and answer being filed, the plaintiff filed an amended complaint, declaring against the defendant by name, and not as sheriff, to which the defendant plead the general issue.

Appear from the District Court of the Tenth Judicial District, County of Nevada. On the trial of this cause, the defendant, a corporation, introduced three witnesses, who testified on their voir dire that they were members of the corporation in 1852, when the liabilities were incurred on which this action is brought, but had sold out more than a year before the bringing of this suit, and since then had no interest therein.

<p>An officer will not "be presumed to have exceeded his authority, especially the officer of a foreign Government.</p> <p>Prima facie, the Governor of California under the Mexican dominion had the power to make a grant of Mission lands to an individual, and a demurrer to a complaint setting forth such a grant, on the ground of want of authority in the Governor, is not sustainable.</p>

<p>In an action against the endorser of a note, where demand and notice are not averred, hut where it is averred that the maker paid the endorser the value of the note, and that the endorser agreed to pay it, the maker of the note is not a competent witness to prove those facts.</p>

<p>An order setting aside the report of a referee appointed to take an account is merely interlocutory, and is not the subject of appeal before final judgment or decree.</p>

<p>Appeal from the District Court of the Eighth Judicial District, county of Siskiyou.</p> <p>Action for the usurpation of the office of Sheriff of Siskiyou. The agreed statement shows that at an election held on the first Monday of May, 1852,' in pursuance of an Act to establish the county of Siskiyou, approved March 22d, 1852, C. McDermit was elected sheriff of the county, and was duly qualified and assumed the office May 12th, 1852. That at a general election held September 7th, 1853, the defendant Colton was elected sheriff, and that he filed his bond and was duly qualified on the 20th of September; but that McDermit retained the office till May 12th, 1854, when Colton assumed it. That at a general election held September 5th, 1855, the relator Fair was elected sheriff, and was duly qualified on the 25th of September, and claimed to be entitled to the office from the first Monday of October following, and made formal demand for delivery of the office November 5th, 1855, which was refused, the defendant claiming to be entitled to the office till May 12th, 1856. Judgment was entered in the District Court for the defendant. Plaintiff appealed.</p>

The plaintiffs filed their bill of foreclosure of a mortgage made by defendants to F. W. Page, and by him assigned to plaintiffs, May 3d, 1855.

The plaintiff brought his action in September, 1854, on an appeal bond filed in the case of M. T. O’Connor v. John Stack et al., by the defendants.

This was an appeal taken from an order granting an injunction in the District Court, made by the County Judge of Nevada County, enjoining the defendants and their agents, etc., from interfering with the plaintiffs’ dam or water privileges. The injunction was granted on the return of an order to show cause, and after examination of witnesses on the part of defendants and plaintiffs, and argument of counsel.

<p>Where suits have been commenced before a magistrate against the drawers of prizes in a lottery, to forfeit the prizes drawn to the State, under the statute, a hill for an injunction against the owner of the lottery, to restrain him from disposing of the prizes until the decision of those suits, will properly lie in the District Court.</p> <p>The prizes are forfeited as soon as drawn, and before they are delivered.</p>

<p>Appeal from the District Court of the Seventh Judicial District, County of Contra Costa.</p> <p>This was an application for a mandamus to compel Smith, the sheriff, to make a deed for land bought by the petitioner, Williams, at an execution sale, under three executions issued on three judgments, one in favor of Williams, another in favor of one Hook, and the third in favor of one Swain; the petitioner having tendered the sheriff his fees but demanding that the purchase money should be credited on his judgment. On the trial of the right of the petitioner to the writ before the Court, it appeared that there was a question whether the lien of petitioner’s judgment was prior to the attachments of the two other judgment creditors, which the Court decided in favor of the petitioner, and gave judgment that the mandamus issue to the sheriff, who appealed.</p>

This was an information in the nature of a quo warranto, against defendant, Samuel A. Phoenix, for the usurpation of the office of sheriff of Amador county. The record shows that one Wm. A. Phoenix was elected sheriff of that county in July, 1854, and continued to hold it until his death, on August 12th, 1855; that L. G-. Lyon was then the coroner of the county, having been elected for the same term with Wm.

The complaint sets forth that the plaintiff was duly appointed and qualified as a Pilot for the Port of San Francisco, on June 17th, 1854.

The defendant was indicted for the crime of murder, in shooting one “ Greek George In the Court of Sessions the defendant challenged two of the grand jurors for cause. Both were examined on oath and averred that they were naturalized citizens, but could not produce their naturalization papers to the Court.

The plaintiffs filed their verified bill, to foreclose a mortgage made by one Lyman Mowry deceased, setting forth that the estate of Mowry is largely insolvent, and that the mortgaged premises are insufficient to pay the mortgage debt, and that Mowry had sold the land, subject to the mortgage to the defendant Ide, the other defendants being subsequent incumbrancers.

The plaintiff brought his action to abate a nuisance, and for damages. The jury .found a verdict for the plaintiff, and assessed the damages at one dollar. The Court entered up judgment for plaintiff, with costs, amounting to $206 75, from which the defendant appealed.

The record shows that Woods, the assignor of the plaintiff, made a contract with the defendants as agents of A. B. Thompson, for the purchase of four hundred and fifty steers and three thousand head of sheep, to be delivered by Thompson on an agreed notice; and Woods, by its terms, at the time of its execution paid $3,862 50, on account of the contract, which sum was to bear interest at the rate of five per cent, per month until the complete performance of the contract, when…

The defendants, the Natoma Water and Mining Co., commenced a canal, in 1852, to conduct water from a point on the South Fork of the American River, about twenty miles above Alder Creek, to supply the miners above and below that creek. In September, 1853, they purchased a dam, constructed a few months prior, on Alder Creek, and turned their water into the bed of the creek, above the dam. They had flumes, conducting the water from the dam to points lower down.

The plaintiffs brought their action of assumpsit for work and labor done, and material furnished in the erection of a brick house for defendants in the city of Sacramento. The defendant, in his answer, sets up a written contract for the erection of the building in a good and workmanlike manner, by the terms of which, the building was to be finished by the 20th of August, 1852, except the iron doors and window blinds, which were to be furnished when they arrived from New York.

<p>Certiorari to the District Court of the Fourth Judicial District.</p> <p>The action in which this proceeding was had, was instituted by Alvin Adams, of the house of Adams & Co., on the 23d February, 1855, against his copartners, for a dissolution of the copartnership, and a settlement of the copartnership affairs. The complaint prayed for a receiver, and A. A. Cohen was appointed, by consent of parties, plaintiff and defendants.</p> <p>An assignment, in fact, was made by all the parties, members of the firm, to A. A. Cohen as receiver.</p> <p>Afterwards, and within ten days, Adams, Haskell & Woods, comprising all the parties to this suit, applied to the same Court, as bankrupts, and asked the Court to administer their estate, under the bankrupt law. The application was entertained by the Court, and the Court proceeded to administer the estate of the parties as bankrupts.</p> <p>Cohen was again made assignee for the benefit of creditors—by assignment in fact.</p> <p>Cohen, Roman and Jones were appointed, by election of creditors, under the statute, assignees in bankruptcy. Cohen applied to the Court for instructions as receiver, and was directed to pay over to the assignees, and advised that his receivership terminated, by force and operation of statute, giving to the assignees charge and control of the estate.</p> <p>Cohen delivered over assets, and took receipt of assignees. Cohen having paid over, presented his accounts and vouchers, and was discharged by the Court.</p> <p>During the receivership of Cohen, and before the assignment in bankruptcy, attachments beyond the value of estate were served on Cohen : upon the appointment of assignees, attachments were served upon them, also more than equal to the value of assets. The receiver and assignees deposited with Messrs. Palmer, Cook & Co.; attachments were also served on them. The order discharging Cohen was set aside by the Court. Cohen being temporarily absent from the State, and having left the settlement of his accounts as receiver in the hands of counsel, was removed from the receivership, and H. M. Naglee appointed.</p> <p>Naglee demanded assets from Roman, Cohen and J ones, and the demand not being complied with, an order to show cause was obtained and served on Roman and Jones. Cohen had not yet returned.</p> <p>Roman and Jones show cause and set up : 1. Their appointment as assignees. 2. The delivery of assets to them from the receiver, under order of Court. 3. The abandonment of this proceeding by proceedings in bankruptcy. 4. The attachments as stated, and their acknowledgments of the assets in their returns to the attachments. 5. The recovery of judgment by attaching creditors, and the institution of suit by attaching judgment creditors, against these parties, to account, and for a distribution of assets. 6. An interlocutory decree in the creditors’ suit, which is charged as operating a stay of all other proceedings. 7. That this suit of Alvin Adams was instituted to hinder and delay creditors, and therefore void as to creditors. 8. That the proceedings in bankruptcy being an abandonment of the copartnership suit, it could not be revived to the prejudice of creditors. 9. That the assignment of Adams, Haskell and Wood to Cohen, in fact, was good as against them, and that they cannot come in and avoid it.</p> <p>Cohen, upon his return, being served with a copy of the rule, made his separate answer, setting up all the foregoing reasons, and in addition thereto, that the moneys, etc., he, with his co-assignees, had deposited with Palmer, Cook & Co., and the immediate custody of the other things—books, papers, etc.—he had entrusted to Edward J ones, one of said assignees; that on account of attachments, and for other causes, said Palmer, Cook & Co. and said Jones refused to deliver said, moneys or assets, and that he could not obtain their possession, or comply with such order of the Court, if made.</p> <p>Upon the coming in of these answers, showing cause against the rule, the order was made absolute, and upon a non-compliance therewith, judgment in contempt was entered up, assessing a fine of §500 on each party, and ordering their imprisonment until the order was complied with.</p> <p>From this order, on the rendition thereof, Roman, Cohen and Jones took an appeal. The bond given was the statutory one for costs, but did not operate a stay of proceedings.</p> <p>The Court below, refusing to approve a bond, or fix an amount, to afford the parties a stay of proceedings, the writ of certiorari was sued out.</p>

The plaintiff received from C. J. Hutchinson a bill of sale for 250 head of cattle, November 30th, 1853. It appears from the testimony, and is admitted, that the bill of sale, though absolute on its face, was intended only as a mortgage to secure certain sums paid and to be paid by Chenery for Hutchinson.

This was an action of ejectment for a fifty vara lot, on the corner of Beale and Harrison streets, San Francisco. The plaintiff derived title from the Commissioners of the Funded Debt of the city of San Francisco.

The defendant being indebted to the plaintiffs for advances made at different times, and being threatened with a suit, executed, by his attorneys in fact, the following note, to the form of which no objection is made : “ §25,089 11.

<p>An appeal from a judgment suspends the lien, which is merely an incident; and the statutatory limitation of the lien commences to run only from the date of the remittitur from the appellate Court.</p>

The plaintiff, Abigail J. Bennett, brought this action against the defendant for unlawfully taking the sum of $2,196 37 in coin, the separate property of plaintiff, from the possession of her agent, who had collected it upon foreclosure of a mortgage made by one John Coe to the husband of plaintiff, and assigned to plaintiff before her marriage.

Action by a judgment creditor of Page, Bacon & Co., after return of nulla bona on execution, to set aside an assignment made by the members of that firm to John Parrott and Henry M. Naglee, in trust for the security of themselves and others, who had guarantied the payment of about $400,000 of the indebtedness of that firm, to such creditors as would surrender their credits and take in exchange time certificates, under which the sums due would be payable in four equal…

<p>The District Court has the power to impose terms to the granting of new trials in proper cases.</p> <p>"Where a party complies with the terms imposed, and avails himself of the advantage of the order, he cannot afterward question its correctness.</p>

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

The plaintiff, a tax-payer of the city of San Francisco, filed his hill for an injunction to restrain the defendant, as City Treasurer, from paying any warrant drawn under an Ordinance passed January 17th, 1856, instructing the City Comptroller to draw his warrant on the City Treasurer in favor of R. C. Page, Clerk of the Board of Assistant Aldermen, for the sum of one thousand dollars, for salary as said Clerk. The grounds taken appear fully in the opinion of the Court.

Writ or Error to the District Court of the Fourteenth Judicial District, County of Nevada. Proceeding, in the nature of a quo warranto, on the relation of J. R McConnell, Attorney General, against the town of Nevada, for the usurpation of the franchises and privileges of a corporation. The defence sets up that the defendant was duly incorporated by the County Court, in pursuance of the provisions of the Act of March 27, 1850.

The plaintiff brought his action to recover possession of a certain piece of land, alleging that he was in the peaceable and quiet possession thereof, when defendants unlawfully entered, etc. It appeared by the evidence offered by the plaintiff on the trial, that one J. W. Walker, and other parties in partnership with him, had erected improvements of the value of $1,000 on a portion of the tract sometime in 1851, which they sold to the plaintiff in October, 1852, who, by his…

<p>Appeal from the District Court of the Eleventh Judicial District, County of Placer.</p> <p>0</p> <p>This was an action to recover possession of a mining claim, and for an injunction restraining the defendants from taking gold therefrom.</p> <p>In the answer, the defendants set up, among other defences, that they obtained judgment and writ of restitution of said premises against the plaintiffs, in an action of forcible entry and detainer, and also that the plaintiffs are foreigners, and have not paid for or obtained a license, as required by law.</p> <p>On the cause being called for trial, the Court, on motion of plaintiffs, struck out both of these defences—defendants excepting.</p> <p>Judgment was rendered for plaintiffs, and defendants appealed.</p>

This was an action brought to compel the sale of a certain lot in San Francisco, and a division of the proceeds between the plaintiff and the defendant Endicott. It appears from the evidence, that in 1849 the defendant, James B. Endicott, consigned certain merchandise to the plaintiff, T. W. Osborne, with authority to dispose of the same, and invest the proceeds in such manner as the plaintiff might see fit for the joint account of the plaintiff and Endicott.

<p>An order refusing a change of venue on the application of defendant in a criminal prosecution, will only be reviewed in cases of gross abuse of discretion.</p>

Appear from the District Court of the Seventh Judicial District, County of Contra Costa. The opinion of the Court discloses the facts and the points made by appellant, except the third point, which was an objection to the interest due being made part of the judgment, and made to draw interest as a part of it.

<p>Appeal from the District Court of the Sixth Judicial District.</p> <p>Action against the defendant, Sheriff of Sacramento Co., for refusing to attach and safely keep certain personal property as the property of H&rdenbergh & Henarie, attachment debtors named in the writ.</p> <p>The answer, among other defences, avers that previous to the issuance of the plaintiff's attachment, the attachment debtors, Hardenbergh & Henarie, had made a bona fide conveyance of the property to J. B. Bidleman, subject to certain prior attachments.</p> <p>It does not set up however that after the issuance of plaintiff's attachment, Bidleman claimed the property, and that the defendant as sheriff summoned a sheriff’s jury to try the right of property, and that they found a verdict in favor of Bidleman.</p> <p>On the trial, however, the Court allowed the defendant to introduce evidence of the claim, trial of right of property, and verdict, to the introduction of which testimony the plaintiff objected, on the ground that it was irrelevant.</p>

<p>Tho fact that a will was begun on one day and finished several days afterwards, the delay being for the purpose of procuring a competent person to direct the manner of ' drawing it, it seems is no ground for invalidating a will under the Mexican law.</p> <p>The strictness of the rules of the civil law, requiring five, or at least three witnesses to a will, was relaxed expressly in favor of remote districts.</p> <p>By the customs of California, under the Mexican rule, which have the force of law, two witnesses were sufficient to a will.</p> <p>It seems 'that there never was a Probate Court in California, prior to the organization of the State, and that probate of a will was unknown.</p> <p>A will takes effect on proof of its execution, in the absence of a statute requiring it to be probated.</p> <p>After twenty years' acquiescence in the terms of a will, an heir should not be allowed to dispute his own acts, or to contest the will on abstract points of law, which had never any force in California.</p>

Action of forcible entry. The prayer of the complaint is for restitution, and that defendants may be punished by payment of proper fine, and costs, and damages sustained by plaintiff. The jury rendered a verdict for plaintiff, for $275, which was trebled by the Court. Defendant appealed.

<p>Appeal from the District Court of the Fourth Judicial District.</p> <p>Action for damages for cutting down growing trees. The opinion of the Court discloses the error upon which the judgment of the Court below is reversed.</p>

<p>Where a mining company, not incorporate, forms a trading partnership with an individual under a firm name, each member of the mining company is a member of the firm.</p> <p>Where one of the mining company acted as salesman of the firm, it cannot be pretended that he was a dormant partner, whose acts would not bind the firm.</p>

<p>Objection to the misjoinder of parties and of cause of action, should be taken by demurrer or answer, and this not having been done, they are deemed waived.</p>

<p>Appeal from the District Court of the Tenth Judicial District, County of Yuba.</p> <p>This was an action to foreclose a mortgage, made by the defendant,» Pixley, alone, in September, 1854, on a certain lot in Marysville; and making prior and subsequent encumbrancers parties. The finding of the referee appointed in this case, which is confirmed by the Court, shows that the defendant, S. Pixley, and one Teed, purchased the lot, of which the mortgaged premises form a part, in 1853, and that defendant, S. Pixley, and his wife, resided on the premises thus held in joint tenancy till May, 1854, when the building was destroyed by fire; that in July, 1854, Pixley and Teed made partition of the lot, by which the mortgaged premises were conveyed to Pixley; that at the same time, Pixley contracted for the erection of a brick building, which was erected and used for stores, oifices, etc.; that Pixley and his wife did not reside on the premises from that time until November, 1854, when they occupied some rooms in the second story of the building, before which time the liens of the various encumbrancers in dispute had attached. The Court decreed a foreclosure, and the payment of the lions from the proceeds. Defendants, Pixley and wife, appealed. Before appeal taken, the sheriff, under an order of sale issued under the decree, had sold the premises, and distributed the proceeds according to the terms of the deree.</p>

<p>Appeal from the District Court of the Third Judicial District, County of Santa Clara.</p> <p>There is but one point in the case, which is fully stated in the opinion of the Court.</p>

<p>Appeal from, the District Court of the Eleventh Judicial District, County of Placer.</p> <p>This was an action brought by one ditch company against another, to determine the right to the use of water and for damages, and to obtain a perpetual injunction.</p> <p>The complaint alleges that the plaintiffs have been, since December, 1853, the owners of a ditch known as “ Priest & Co.’s Ditch,” leading from a point on the north bank of a stream known as North Shirt Tail Canon; that said ditch not being of sufficient capacity, they took occarsion to enlarge it, in December, 1853, and completed the enlargement • in September, 1854, to a capacity of 1584 inches of water; that their ditch was the first constructed leading from said stream, and that they are entitled, as first appropriators, to its waters to the extent of the capacity of their ditch ; that the defendants, subsequently to the enlargment of plaintiffs’ ditch, constructed a ditch leading from a point about two miles above the head of plaintiffs’ ditch, thereby diverting the waters naturally flowing through said stream, and diminishing the amount of water to which plaintiffs were entitled.</p> <p>The answer avers, that defendants’ ditch was located,' surveyed, and commenced in April, 1854, and before the enlargement of plaintiffs’ ditch, which, before its enlargement, they aver had a capacity of only 200 inches of water; and they deny that plaintiffs are entitled to any more, and deny that defendants’ ditch has diverted the water so as to cause a diminution of that quantity.</p> <p>After the defendants had rested their case, the Court allowed the plaintiffs to call a witness to prove that after the defendants had completed their ditch and the plaintiffs had completed their enlargement, the defendants constructed a ditch to the head of their first ditch from a point on the south branch of said stream above plaintiff’s ditch, and above the junction, by means of which they emptied the waters of the south branch into the north branch above defendants’ original dam, and from that point carried the waters through their old ditch to the diggings below. The defendants objected to the introduction of this testimony, on the ground that it was not offered hy way of rebuttal, and that it was not admissible under the pleadings.</p> <p>The jury found a verdict that the plaintiffs were entitled to 250 inches of water, from the north branch of the north fork of the canon, and to all the water of the south branch.</p> <p>Judgment accordingly. Defendants appealed.</p>

• Appeal from the Superior Court of the City of San Francisco. The plaintiff brought his action to recover thirty acres of land, forming a part of the tract known as the “ Protrovo,” and proved a possession in 1852 or 1853. The defendants, Treat & Dyson, proved that they were in possession of the whole tract in 1849 or 1850, and had it enclosed with a wall, and used it for a pasture. Neither party asserted title.

The plaintiff obtained a decree of foreclosure by default against Smith, as mortgagor, and other defendants as subsequent encumbrancers. The defendants, Gilmore and others, encumbrancers, moved the Court to open the default on an affidavit that they had a substantial defence to the action, but not excusing their failure to answer. The Court overruled the motion, and defendants appealed.

Action for rents and profits brought on the appeal bond given by the defendant, in an action brought by the plaintiff for restitution of the premises, before a justice of the peace. The finding of the Court below establishes that the appeal, taken from the judgment for restitution entered by the justice, was dismissed by consent of the parties plaintiff and defendant, pending its appeal, and before final judgment on appeal, and before the commencement of this action.

the First Judicial District, County of Los Angeles. The plaintiff, Abel Stearns, brought his action against the defendants Jose Antonio Aguirre-and Santiago E. Arguello jointly, upon a joint and several promissory note. Service of process was had on both the defendants. Arguello made default, and Aguirre answered.

Action on the following promissory note : “$1200. For value received we promise to pay John J. Armstong, the sum of twelve hundred dollars, one year after date, but if said sum is not then paid, the same is to be paid at the expiration of two years after date, with interest at the rate of seven per cent, per year for the ' last year only. “ Silver Mountain Valley, Cal., Feb. 15th, 1853. “ J. Linzee, Alvinza Hayward, “ Oscar L. Chamberlin, Russell Walcott.” The complaint…

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

<p>An injunction will not lio to restrain the collection of a judgment against the plaintiff, on the ground that the judgment was for a balance of purchase money of land under covenant for a good title, while in fact the grantor had no title, as long as the purchaser against whom the judgment was taken, and who seeks to enjoin it, remains in possession.</p> <p>The fact that suit in ejectment has been commenced against the judgment debtor by the real owner, does not entitle him to enjoin the judgment. He can only avail himself of the covenants of his grantor when he has been evicted, unless he offers to surrender the land to his grantor.</p> <p>Neither does the allegation that the purchaser (plaintiff in equity,) has put valuable improvements on the land, and that he has paid a portion of the purchase money, and that his grantor and judgment creditor is insolvent and without visible property, take the case out of the rule. ^</p>

<p>In an action for unlawfully holding over after the expiration of the tenant’s term, three days notice is all that is required.</p>

<p>Appeal from the District Court of the Twelfth Judicial District.</p> <p>The plaintiff sues on a contract for lighting the city of San Francisco with gas, executed on the part of the city by committees of both boards of aldermen, under the authority of ordinance No. 249. The ordinance authorizes the contract, “subject to confirmation by the Common Council for the city.” The contract was confirmed by a joint resolution of the Common Council. The defence set up is, that the contract ought to have been confirmed by ordinance, and that the claim of the plaintiff had been presented to the board of examiners appointed by the city, in pursuance of the act of May 7, 1855, and had been rejected by said board. The case was referred, and the referee found the above facts, among others, not necessary to the decision of the Court. The Court below rendered judgment for defendant. Plaintiff appealed.</p>

Action of trespass, and application for a perpetual injunction. The jury found a verdict for the plaintiff and assessed the damages at one dollar. The Court rendered judgment for plaintiff, and granted a perpetual injunction. The defendants moved for a new trial, which was overruled, and defendants appealed. Two exceptions were taken by the defendants on trial. The first was to an order excluding the testimony of 0.

<p>Under our statute, an execution affects property only from the time of the levy.</p> <p>Service of a copy of execution, and notice of garnishment upon a third party, constitutes no lien on property of the debtor in his hands capable of manual delivery.</p> <p>Statutory penalties against a sheriff are only recoverable when, by the return of the sheriff, he admits the collection of the money, and refuses to pay it over, and not where his failure to pay over arises from his inability to decide between conflicting claims of different execution creditors.</p>

Action of ejectment and for damages, etc. The opinion of the Court contains a statement of nearly all the facts of the case. The evidence of the death of Cameron Anderson, the ancestor of the plaintiff, was hearsay evidence, derived from the family of the deceased, and proof of the fact that they went into mourning for him.

The defendant was indicted for murder. On his trial he was convicted of manslaughter, from which sentence he appealed. The errors assigned appear in the opinion of the Court.

On the trial of defendant under an indictment for murder, he offered in evidence the deposition of one Swigert, taken before the Recorder of Sacramento City on his preliminary examination.

The appellant was indicted for the murder of J. P. Beatty. The evidence showed that the name of the deceased was J. T. Beatty. The defendant asked the Court to instruct the jury that unless the real name of the deceased was J. P. Beatty, or that he commonly went by that name, they must acquit the prisoner, although the jury might he satisfied that he was guilty of the murder of another named person.

The appeal in this case was taken by the defendant, who was tried on an indictment for murder. There is but one error assigned, which is stated in the opinion of the Court.

<p>Appeal from the District Court of the Fourteenth Judicial District, County of Plumas.</p> <p>The defendant was tried and convicted of murder, on the following indictment:</p> <p>“ Jacinto Aro is accused by this indictment of the crime of murder, a felony committed as follows: the said Jacinto Aro did, on or about the second day of November, A. D. 1854, and before the. finding of this indictment, at or near a place formerly known as the Rock River House, in said county of Plumas, with a Colt’s pistol and dirk-knife, willfully, feloniously, and with malice aforethought, kill, murder, and do to death, one (name unknown,) a Chinaman, against the form of the statute made and provided, and against the peace and dignity of the State of California.”</p> <p>Defendant appealed.</p>

<p>A master is bound to use reasonable care and diligence to prevent accident or injury to his servant, in the course of his employment; and if he fails to do so, he will be held responsible for the damages.</p>

The defendant was indicted for murder, under the name of Stewart Kelly, by the grand jury of El Dorado county. On his arraignment he declared his true name to be William Stewart Kelly, which name was ordered to be inserted in the record.

<p>Appeal from the District Court of the Eleventh Judicial District, County of Yolo.</p> <p>The facts and errors assigned are generally stated in the opinion of the Court. The evidence shows that the prisoner, having a verbal dispute with his partner, the latter, in answer to an abusive epithet applied to him by the prisoner, replied, “ I am as white as you are,” or similar words ■, whereupon the prisoner seized a knife and stabbed him, inflicting three severe wounds, of which he died in a few minutes. The defence does not in any way contradict the evidence, but proves that after the killing, the prisoner had a slight cut or bruise on his right hand, and also proves by a number of witnesses, prisoner’s character for peace and quietness to be good.</p> <p>The sixth instruction asked by defendant, and refused by the Court, was: “ If the jury believe the defendant guilty of murder or manslaughter, but have a doubt as to which offence he is guilty, they should find him guilty of the less offence, and if the jury believe the offence is not murder, and have any reasonable doubt as to whether it is manslaughter or justifiable homicide, it is their duty to find a verdict of not guilty.”</p>

<p>On a trial for rape, where the prosecutrix is the only witness, evidence that she had committed acts of lewdness with other men is admissible, as tending to disprove the allegation of force and total absence of assent on her part.</p> <p>It seems that proof of particular acts of lewdness should bo admitted in preference to general reputation, which may be good or bad, either deservedly or undeservedly.</p> <p>If these particular instances of lewdness are admissible, it is immaterial by whom they are proved, and it is unnecessary to question the prosecutrix as to them; they are introduced not so much to impeach her testimony as to do away with the presumption of the greatest reluctance and resistance on her part.</p> <p>In such cases, the facts that there was no outcry, though aid was at hand and the prosecutrix knew it; that there was no immediate disclosure; that there was no indication of violence on her person, and that the act was committed at a time and under circumstances calculated to raise a doubt as to tho employment of force, are put as strong circumstances of defence, not as conclusive, but as throwing doubt upon the assumption that there was a real absence of assent.</p> <p>2R> case of this class of prosecutions should ever go to the jury on the sole testimony of the prosecutrix, unsustained by facts and circumstances corroborating it, without the Court warning them of the danger of a conviction on such testimony.</p>

<p>Appeal from the District Court of the Twelfth Judicial District.</p> <p>This was a bill to foreclose a mortgage made to plaintiff by Constant A. Duprey. William Fogarty is made a defendant as claiming a lien on the property.</p> <p>On trial, Fogarty offered in evidence a mortgage made to him in 1854, and recorded May 23d, 1854, while plaintiff’s mortgage was executed and recorded April 9th, 1855. The plaintiff objected to its introduction, on the ground of its defective certificate of acknowledgment, which objection was sustained by the Court, on the ground that the record of the mortgage imparted no notice to plaintiff. The certificate is copied in full in the opinion of the Court.</p> <p>Decree was entered for plaintiff against all the defendants. Defendant Fogarty appealed.</p>

The plaintiff brings his action against the defendant as administrator of the estate of A. Frierson deceased, to foreclose a vendor’s lien for the sum of $2,000 and interest on a promissory note of Frierson, given in part payment of the purchase money of certain lots in the city of Sacramento, and prays that said lots be sold, and the proceeds be applied to the payment thereof.

<p>Appeal from the District Court of the Fifth Judicial District, County of Amador.</p> <p>The appellant was convicted of murder in the Court below. On the trial, one of the jurors, on his examination as to bias and qualification, said, “ I have not formed or expressed an unqualified opinion or belief as to the guilt or innocence of the defendant; but I have expressed an opinion in this case as to the guilt or innocence of the prisoner. My opinion was formed upon what I had heard. At the time I expressed it, I expressed no qualification whatever. The opinion I expressed depended on the truth or falsity of what I.had heard. I had never heard any evidence in the case, and nothing but report.”</p> <p>The defendant challenged the juror; the Court overruled the challenge, the defendant excepting.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>The plaintiff brought his action for $20,000 damages for the breaking of plaintiff’s legs caused by the overturning of one of defendants’ stages, in which plaintiff was a passenger, by the careless and negligent conduct of the driver employed by the defendants.</p> <p>The jury, on the trial in the Court below, found a verdict for the plaintiff for $5,000.</p> <p>The defendants moved for a new trial on the grounds stated in the opinion of the Court, which was denied by the Court below, and defendant appealed. In support of the grounds of surprise and newly discovered testimony, the defendants refer to the evidence of one Rossiter, a witness for plaintiff. He testified that the driver was driving too fast for the condition of the roads; denies any knowledge that plaintiff had his leg hanging outside of the coach, or, having ever made any statement to that effect, on which point the evidence on trial was conflicting. The defendants filed the affidavit of one Benton, averring that on the same day of the accident Rossiter had made such statements to him, exonerating the driver.</p> <p>In support of the ground taken of misconduct of the jury, defendants file the affidavit of one of their counsel, setting forth that during a recess taken, pending the trial, one of the jury addressed the affiant and said that there was no use in the lawyers occupying so much time examining witnesses and trying to humbug the jury, and that the one who made the shortest speech would get a verdict. As to the amount of damages given, the plaintiff proved that he had been receiving a salary of $200 per month; that he had been laid up several months, and would probably be laid up for life, one leg being made shorter than the other, though there was some doubt raised by the evidence, whether the injury was not aggravated by injudicious treatment.</p>

<p>Appeal from the District Court of the Fourteenth Judicial District, County of Nevada.</p> <p>The plaintiffs filed their bill for an injunction upon the defendant, Sheriff of Nevada County, enjoining him from proceeding to make a levy under an execution issued out of the Twelfth District Court, under a judgment entered against plaintiffs and in favor of Leopold King. The bill sets forth that, being in embarrassed circumstances, the plaintiffs, in February, 1855, applied for the petition for a discharge under the insolvent law, in the District Court of the district in which they resided; that accompanying their petition was a schedule of their debts, losses and assets, duly verified before the clerk of the District Court; that the*amount due to King was included in their schedule ; that due notice to creditors was given, and no one opposing, and the requirements of the law being fully pursued, the plaintiffs obtained their discharge on April 10th, 1855, under a decree of the Court, from which no appeal was ever taken; that plaintiffs had since, by the kindness of friends, been enabled to start again in business on a new credit, and that King had caused the execution above mentioned, attested May 7th, 1856, to issue, and had placed it in defendant’s hands, requiring him to satisfy it.</p> <p>The defendant demurred to the bill or complaint, on the ground that it did not state facts sufficient to constitute a cause of action, in that it appeared therein, that the schedule in insolvency was sworn to before the clerk instead of the District Judge. The Court below overruled the demurrer and granted a perpetual injunction. Defendant appealed.</p>

<p>Appeal from the District Court of the Eleventh Judicial District, County of Placer.</p> <p>Action for damages against the California Stage Company, for injuries received by plaintiff, caused by the overturning of a stage of defendants, by reason of the carelessness and unskillfulness of the driver employed by them. The complaint alleges a contract by the defendants as common carriers, to carry plaintiff with due care from Auburn to the Franklin House, in said county, for the sum of one dollar, paid by defendant. The evidence to the contract is stated in the opinion of the Court. The injury done to plaintiff was proved, and that it resulted from the overturning of the coach while going rapidly down hill. The defendants proposed the following questions to a surgeon called by them as a witness: “Do you know the general reputation of Dr.-, (the physician who attended the plaintiff,) as a surgeon and physician ? Have you individually any knowledge of his reputation as a physician V’ Both these questions were objected to by plaintiff’s counsel, and ruled out by the Court.</p> <p>The instruction given to the jury, and excepted to by defendants’ counsel, was this: “ The defendants were bound to furnish good coaches and harness, careful drivers and proper horses, and if the injuries shall by the testimony be shown in this case to have resulted from the want of any of these requisites, the jury must find for plaintiff.”</p> <p>The jury found a verdict for plaintiff for $5,000. The defendants moved for a new trial on the ground of errors of law, etc., and of excessive damages. The Court granted the motion, unless the plaintiff agreed to reduce the verdict to $3,000, in which case the motion was overruled. The plaintiff filed his consent, and judgment was entered accordingly.</p> <p>Defendants appealed.</p>

This was a proceeding of remonstrance, filed Oct. 20th, 1855, by the widow of Joshua Holden, deceased, against the granting of the petition of the administrator of the estate, to sell a certain lot known as one half of the Exchange Lot, being a part of No. 82, in the city of Sonora.

<p>An indictment for arson, charging that the accused “ did on a certain day bum, or cause to be burned, a certain dwelling house,” is bad, because the charge is laid in the alternative, whereas it should be special.</p> <p>An indictment should set forth the facts and circumstances of the alleged offence, so that the accused may be prepared for his defence.</p>

Bill to enjoin a judgment confessed by defendant Daly, to defendants Douglass & Co. It is admitted that Douglass & Co. were bona ficle creditors of Daly, in the amount of the judgment, and were ignorant of any fraud in the entering of the judgment, but that Daly, knowing that the plaintiff, also his creditor, was about to issue an attachment, and being in failing circumstances, confessed the judgment, and caused an execution to issue and levy to be made, without the…

<p>A party cannot be imprisoned under a judgment, in a civil action, for assault and battery.</p> <p>The seventy-third section of the Practice Act is in violation of Art. I, ¡í 15 of the Constitution.</p> <p>A judgment for damages for an assault and battery is as much a debt, as though recovered in an action of assumpsit.</p> <p>No person can be imprisoned for debt, under the Constitution, except in cases of fraud. An assault and battery is not a case of fraud, within the meaning of the Constitution.</p>

<p>Appeal from the District Court of the Sixth Judicial District.</p> <p>This was an action to recover possession of a tract of land in Sacramento County, and damages for the detention thereof. The only questions raised are as to plaintiffs’ right to recover damages, and defendants’ right to offset the value of Ms improvements. The facts relating to these points are fully stated in the opinion of the Court.</p> <p>The verdict of the juiy was for plaintiff for restitution of the premises, and for $1,200 damages. Defendants’ motion for a new trial was overruled, and judgment entered in accordance with the verdict. Defendant appealed.</p>

<p>A trustee cannot purchase nor deal with the subject of the trust, nor purchase debts to he paid out of the trust fund, nor place himself in a position antagonistic to the trust.</p> <p>The purchase, by a trustee, of a debt, to be paid out of the trust fund, and causing an action to be brought and judgment obtained thereon in the name of another, if not a fraud iu fact, was a violation of his duties as a trustee, and it makes no difference in this respect whether his trust is created by deed or mortgage, or whether the same was void or noti</p> <p>Having accepted the trust and received the rents of the property, the trustee cannot dispute its validity, particularly for hiS own benefit.</p> <p>A judgment so obtained by a trustee, is void in law and a nullity, and may be enjoined at the instance of the party executing the deed of trust to secure the payment of his debts out of the fund.</p>

<p>Appeal from the County Court of the County of San Francisco.</p> <p>The Court below dismissed the appeal of this cause from the Justice’s Court, on the ground that notice of appeal must he served on the adverse party, and that service on his attorney in the case was insufficient.</p>

<p>In a criminal trial it is error for the Court to charge the jury orally without the consent of the parties.</p> <p>Section first of the Act of 1855, amendatory to the Act regulating criminal proceedings, is mandatory and not directory.</p>

Action by the assignees of an account of balance due, and for foreclosure of a mechanics’ lien therefor. Complaint filed November 10th, 1855. The errors assigned, are fully stated in the opinion of the Court. Judgment for plaintiff in the Court below. Defendant appealed.

<p>Appeal from the District Court of the Fifth Judicial District, County of Calaveras.</p> <p>The defendant was indicted for murder. On the cause being called for trial, the defendant moved for a continuance, on the ground of the absence of a material witness. The affidavit on which tho motion is based sets' forth what the said witness would testily, and it is admitted that the evidence is material for the defence. The Court overruled the motion, on the district attorney’s admission that the witness would testify as alleged in the affidavit, subject to contradiction by other evidence, and on his consent that the affidavit might be used in evidence on the trial. T.o this ruling defendant filed his hill of exceptions, and, being convicted on the trial, appealed.</p>

Appeal .from bhe District Court of the Twelfth Judicial District. This was an action of ejectment brought by the plaintiffs, who are non-resident aliens, residents of the Hanseatic Town of Lubeck. The agreed statement shows that plaintiffs claim the land as the heirs of Henry Hyer, a native of Lubeck, but a resident of the city of San Francisco, where he died in 1853, seized of the land in question, intestate, leaving the plaintiffs as his lawful heirs.

This was an action on a contract between the plaintiffs, Drs. Price and Proctor, and the County of Sacramento, for the care of, and medical attendance on the indigent sick of the county.

This was an action brought in the name of the people of the State, by the Attorney General, to recover the sum of $8,550, being a loss on a re-sale of the interest of the State in certain water lots in the city of San Francisco, originally bid off by defendant at the sale thereof, December 28th, 1858, but for which he refused to pay, by reason whereof they were re-sold, as prescribed by law, at a loss.

The complaint in this case alleges that on the 21st of February, 1854, defendant, being the owner of certain steamboats, entered into a contract with one Richard Chenery, also the owner of boats, whereby, in consideration of the sum of $15,000, to be paid by Chenery, defendant covenanted that he would not permit any boat in which he was interested to navigate certain waters of this State at any time within three years from the date of the contract, and if he failed to comply…

This was an action of ejectment, brought December, 1854, against E. Bates and Thomas McCartney, for certain land, consisting of about* three hundred and twenty acres, near the Cosumnes river, and forming a part of a tract of five square leagues, granted by the Mexican Government to Jared Sheldon, the intestate of plaintiff.

Appear from the District Court of the Tenth Judicial District, County of Sutter. This is an appeal from an order of the Court below, dissolving an injunction, which had been granted on plaintiffs’ application, to enjoin the defendant, as sheriff, from collecting taxes on lands of plaintiffs.

Action on a promissory note. The defendant’s answer, filed May 5th, 1854, admits the execution of the note, and avers that it was given for the plaintiff's interest in land held jointly by the parties; it also avers that plaintiff and defendant were jointly interested in cattle purchased by them as partners and brought across the plains by plaintiff; that plaintiff had deceived defendant and pretended that one half of the cattle brought across by him belonged to other…

The plaintiffs brought an action of assumpsit against the defendants, Adams & Parrish, and sued out a writ of attachment. ' Defendants gave bond and released the property. Plaintiffs obtained judgment against defendants in the Court below, December 23d, 1853, which was the same day docketed.

This was an application for a mandamus to the county treasurer to pay the plaintiff a warrant on the treasurer, dated October 1, 1855, for salary of the plaintiff as county judge for the month of September, 1855. The application was made on an agreed statement in the Court below.

<p>Appeal from the District Court of the Ninth Judicial District, County of Shasta.</p> <p>This was an action of assumpsit., to recover §290, loaned by J. M. Rhodes, banker, to defendant, December 20, 1854, the debt being assigned by J. M. Rhodes to plaintiff. The defendant plead a part payment of $160 on June 15,1855. The record establishes the following facts: The defendant, on June 15, 1855, (being Sunday,) paid over the counter of the bank to Wm. Hanford, a clerk in the employ of Rhodes, $180, to be placed to his credit with the bank, but at the same time, at Hanford’s request, loaned the latter $20 of it. The next day, Hanford asked defendant to loan him the whole amount till after the election, to which defendant assented, and Hanford accordingly drew the whole sum out at various times.</p> <p>No credit was entered to defendant’s account on the books of the bank, the defendant not having any regular account there, and such credits being habitually only made on tickets, except with regular customers who had accounts in the books. Hanford had nothing to do with the books of the bank.</p> <p>Afterwards defendant was asked, by the book-keeper of the bank, if it was right that Hanford should use the money, and he replied that he would make it right with Hanford. The defendant paid $131 into Court before the trial, and obtained an order that no costs should be allowed plaintiff, if he failed to recover judgment for-over that amount. The Court below gave judgment for the whole amount, and ordered the execution to be credited with the money paid into Court. Defendant appealed. ,</p>

<p>A board of supervisors has no power to set apart a portion of the revenue of the county, as a fund for current expenses.</p> <p>The Act creating the office of county treasurer, provides that warrants drawn on the treasury shall be paid in the order of their registry, and this order of payment cannot be changed by the supervisors.</p>

<p>In an action for damages, where the jury found a verdict for plaintiif for $50, and costs, Held, that judgment could not be entered for costs in favor of plaintiff.</p> <p>The plaintiff can only he allowed costs when he recovers §200 in an action for money or damages. Costs axe incident to the judgment, and cannot he given by the jury by way of damages.</p>

Action on a promissory note against several defendants. Some of the defendants plead a discharge in insolvency, and on the trial offered in evidence their discharge as insolvent debtors.

<p>A justice of the peace may refuse to send up the transcript of a cause tried before him, until his fees are paid by appellant; but, if he sends it up without receiving his fees, the fact that they are not paid is no ground for dismissing the appeal.</p>

This was an information in the nature of a quo loarranto, filed by the Attorney General, on the relation of Samuel Langdon against Robert K. Reid, to try the title of the latter to the office of resident physici m of the State Insane Asylum.

This was .an application by Joseph W. Finlay for a peremptory mandamus, directed to W. C. Jewett, commanding him to surrender to Finlay, as his successor in office, his record and official papers as a notary public.

The plaintiff filed his bill February 6th, 1855, to enjoin all proceedings under a judgment obtained by A. Sunol, one of the defendants against the plaintiff and J. De Toro, the other defendant, in 1851, in the Court below.

The following facts are admitted for the purposes of the opinion: The plaintiffs brought their action, and recovered judgment in the Court below against the defendant, Levy and others. A writ of attachment was issued at the time of bringing the action, September 15, 1853, and duly served on one Nathan, for whom Levy was erecting a house, which was not then completed.

<p>A conveyance of “ the following described property, situate, lying and being in the city of Sacramento and State of California, consisting of two thousand two hundred town lots, be the same more or less, said lots being bounded according to the original plat* or plan of said city,” is void, on account of a patent ambiguity which cannot bej cured by parol evidence. ‘</p> <p>Where the same deed contains a covenant that, in case the grantees therein named shall pay a certain sum of money before a certain day, “then this instrument is to take effect as a full and complete conveyance in fee of all and singular the lands, tenements, hereditaments, appurtenances and real estate in the State of California, belonging to, or in which the said party of the first part, his heirs, executors, administrators or assigns, is or are in any way entitled or interested,” Held that the payment of the purchase money was a condition precedent to the vesting of the legal estate; that it was the event which cast the title, and not the deed; and the rational intention, gathered from the terms of the instrument, is, that the grantor only bound himself to convey upon the payment of the purchase money.</p> <p>Where the plaintiff in ejectment claimed under a subsequent deed from the grantor in the above instrument, and the defendants held under the grantees named therein, Held that the record of said instrument, in the county recorder’s office, made June 20, 1850, imparted no notice to the plaintiff, who purchased July 9, 1855; the registration of executory contracts not being authorized or made notice by statute.</p> <p>The intention of the Recording Act of this State was to protect the purchaser of the legal title against latent equities, or mere executory agreements, and to abolish the presumption of notice, arising from possession.</p>

The alleged excess of jurisdiction, upon which this writ was sued out, was an order made in the Court below, committing A. A. Cohen for contempt in refusing to pay over the sum of ten thousand dollars to Henry M. Naglee, (the receiver appointed by the Court in this action,) in compliance with a previous order to that effect, directed to Richard Roman, Edward Jones, and A. A. Cohen, former custodians of the fund, as assignees in insolvency of Adams & Co. Against the granting…

This was a writ of Habeas Corpus, issued on ttie petition of A. A. Cohen, to the Sheriff of San Francisco county, commanding him to bring before the Court the body of A. A. Cohen, and to show cause why the latter was detained in custody. The facts appearing by the return to the writ, are set forth in the opinion of the Court.

The complaint sets forth that the plaintiff is the duly constituted Roman Catholic priest and pastor of the Mission and Church of Santa Clara, and that under the rules and discipline of the Roman Catholic Church, he has the administration of the temporalities of the said church and mission, and is entitled to the possession of its real and personal estate; that the defendant has unlawfully entered upon and taken possession of a certain tract of land in said county, belonging…

This was an action brought by Benjamin Davidson against William R. Gorham, for unlawfully seizing and detaining the steam-tug Underwriter from the plaintiff, who alleges himself to be the owner and entitled to the possession of said vessel.

This cause was before the Supreme Court in 1853, when the decree entered in the Court below was reversed, and it was ordered that the plaintiff be allowed to amend his bill, or file a supplemental bill, on the ground that he was entitled to relief upon his proofs, although they did not sustain the allegations of the bill. The case is fully reported in 3 Cal., 75.

<p>On the trial of an issue of fact, involving the validity of a will, a subscribing witness thereto is not rendered incompetent as a witness, by holding lands devised therein, in trust for a devisee, and without having any interest himself therein.</p> <p>And where such trustee had executed a covenant of warranty to a purchaser of a portion of such lands, but was fully indemnified against loss thereby, by the cestui que trust, and also held what he thought a sufficient portion of the purchase money so received, as further indemnity, he is a competent witness.</p> <p>"Where the deed to the trustee, and his covenant of warranty, were given in evidence to support the objection to his competency, by wjiich it appeared that the land was conveyed to him absolutely, and that he had conveyed apart, with covenant of warranty, but it appeared from his examination on his voir dire that the trust existed by parol, and that he really had no interest therein, and was indemnified against loss by his warranty, Held, that the question as to the admissibility of such parol evidence to contradict or vary the terms of the instrument under seal, could only properly arise in a suit between the trustee and the cestui que trust, upon a denial of the trust by the grantee, and that for the purposes of the examination, the evidence on the voir dire is admissible.</p> <p>Where a bill alleges a parol trust, it seems that it must be denied: And a general demurrer will not lie.</p>

<p>Wagers are recoverable in this State as at common law, except such as are prohibited bylaw, or are against public policy, or calculated to affect the interest, character, or feelings of third parties.</p> <p>In a case arising for the first time in this State, the common law rule of that case will not be disregarded, and a new rule created, merely because the English Judges have frequently regretted the adoption of the rule.</p> <p>Such a course would be a usurpation of power by the judiciary.</p>

<p>Where the Legislature appointed a board of examiners, consisting of three executive State officers, to perform the duty of auditing certain accounts, which theretofore had been performed by the Comptroller of State, but which is not prescribed by the Constition as the peculiar duty of that officer, Held, that the act is valid and binding, the power of the Legislature being supreme, except where expressly restricted.</p> <p>All the duties or powers of any of the departments, not disposed of or distributed to particular officers of that department, are left to the disposal of the Legislature.</p>

This was an action brought by the plaintiffs, owners of the ship “ American, to recover, among other things, from the defendant, charterer of that ship for a voyage from Cardiff, Wales, to San Francisco, the sum of $2190, being the amount of premium paid by plaintiffs for insurance on freight, effected by them, and which, as they aver, the defendant neglected to effect, as bound to do under the following clause of the charter party, entered into between the parties at…

The plaintiffs, George Pen. Johnston, for himself, and as trustee of Mary E. H. Gwin, and Charles W. Cook, executed an indenture of lease with Benjamin A. Barney, of a ranch in San Francisco county, held by the lessors as tenants in common, and a sale of the live stock thereon, in which Barney covenanted to pay a rent of 1500 per month for the ranch, and the sum of 131,000 for the stock, payable in instalments.

The plaintiffs, attaching creditors of Lewis Morris, filed a bill against him with Joseph Dannenberg and W. Thornburg, the sheriff of Yuba County, praying for a perpetual injunction restraining the defendants from proceeding to sell on execution certain property of Morris, under a judgment for $10,080, and costs, obtained by Dannenberg against Morris, a few days before the filing of the bill.

<p>Appeal from the District Coujrt of the Sixth Judicial District.</p> <p>This was an action of ejectment for certain town lots in the city of Sacramento. The complaint was filed October 17th, 1855.</p> <p>The defence set up was that the defendants had been in the actual and peaceable possession of the land adversely to the plaintiff, for over five years next preceding the commencement of this action.</p> <p>The plaintiff put in evidence the grant from the Mexican Government to John A. Sutter, for eleven leagues of land, known as the New Helvetia grant, and regular mesne conveyances to plaintiff. He also proved that in 1849, Sutter had under enclosure a portion of the land claimed by him under his grant, including the lots in dispute in this action. The defendants proved that they, and those under whom they claimed, had been in actual possession of the lots in controversy, since early in 1850.</p> <p>The grant to Sutter, dated June 18th, 1841, was made on certain terms and conditions not necessary to be recited in this case, as it ap-</p> <p>pears to have been introduced only to qualify his possession.</p> <p>On the trial, the Court, at the request of the defendant, charged the jury, that “ if it is shown by the evidence that the defendants and those under whom they claim, have held possession of the property in dispute adversely to plaintiff, for a period of five years before the commencement of this action, the jury should find a verdict for defendants.” To this instruction, among others, the plaintiff excepted, and the appeal seems to have been made on this question alone, there being no bill of exceptions or assignment of errors in the record.</p> <p>The jury found a verdict for the defendants. Plaintiff moved for a new trial, which was denied, and plaintiff appealed.</p>

<p>Where goods are in the possession of a factor, whose usual business it is to buy and sell goods on his own account, and who is clothed with the external evidences of ownership of the particular goods, such apparent ownership gives him the power to sell or pledge.</p> <p>The rule as to the lack of power in factors to pledge, applies only to technical factors, whose notorious employment is to sell goods of others, consigned to thorn for that purpose.</p>

The plaintiff filed his bill of foreclosure against H. W. Halleck, A. C. Peachy and P. W. Van Winkle, executors, etc., of J. L. Folsom, deceased, and others, to foreclose a mortgage made by J. L. Folsom.

<p>Where A authorizes B to sign his name as surety to a noto, and B signs A's name with his own, as joint and several makers of the note, B is not liable.</p> <p>An authority to do a particular act must be exercised in the manner designated, or it is not obligatory.</p> <p>It is not material on what part of a note a secondary promissor places his name; if the character of his liability is made to appear, his rights are the same as those of an endorser.</p>

This was an action on the case to recover $2000 damages for wrongfully suing out an injunction in an action in which final judgment was entered against the plaintiff in that action, defendant herein. It is not averred in the complaint that the injunction was sued out through malice or without probable cause.

<p>The assignor of a demand for money loaned or advanced at various times on an open account, the return of "which depends on future conditions, is not a competent "witness for the plaintiff, in an action by the assignee to recover the amount.</p> <p>Such a claim cannot be called a liquidated demand, as it lacks the necessary quality of specific recognition or express promise to pay.</p>

<p>A mortgagee in possession has a legal title against the whole world, subject to the rights of the mortgagor; therefore, where he mortgaged the property, and subsequently erected a building on it—for the cost of which a mechanics' lien was filed—the holder of the lien cannot object to the legality of the mortgages, in the face of which he contracted.</p> <p>It is not the province of the mechanics in such a case to determine the legality of the recorded title, but having contracted with notice of the encumbrances, they are postponed till the encumbrances are first paid.</p>

<p>In. a capital case, where a juror on his examination on his voir dire by defendant, stated that he had formed and expressed an unqualified opinion, etc., the defendant should have challenged him for cause; but where he did not challenge him, but passed him to the prosecution for examination, on which the juror stated that his opinion was formed by reading the newspapers, whereupon the prosecution accepted the juror, and the defence desired to question juror further for cause, which was denied, but a peremptory challenge allowed, Held not to be error.</p> <p>Even if not in strict conformity with the statute, the Court below must of necessity be vested with a reasonable discretion in determining the preliminaries of a criminal trial.</p> <p>On a trial for murder, evidence of a difficulty between the prisoner and othor persons connected with the deceased on the same day, prior to the killing, and at which the deceased was not present, is admissible for the purpose of showing a conspiracy upon the part of the prisoner and others against the deceased and others, and of connecting the two difficulties together.</p> <p>If the Court below believed the connection between the two acts established, the testimony should have been allowed to go to the jury; otherwise excluded.</p> <p>"Where the evidence showed that the prisoner commenced the affray in which he took the life of the deceased, Held that the instruction asked for by defendant, “ that if v defendant had reason to believe and did believe that he was in great danger of losing his life, and under that belief killed the deceased, he was justified,” was properly refused.</p> <p>So, also, as to the instruction asked for, “that if the jury have a reasonable doubt r/whether the killing was in the heat of passion, created by great provocation, etc., or f in self defence, they should acquit;” because as the presumption of guilt arises from pj; the killing, and the onus probandi is on the defendant, the guilt cannot be disproved I ■ by a doubt, but by preponderance of testimony.</p> <p>I A, citizen of this State who has resided in the county fourteen days, and then been absent for some months from the State with the intention of returning to reside in the county, and has j:eturned and resided some fourteen days in the county, is a competent juror, his residence dating from his first residence and not from his return. Affidavits to the incompetency of a juror must be embodied in a bill of exceptions, or they will not be examined by the appellate Court.</p> <p>A party who accepts a juror, knowing him to be disqualified, is estopped from after-wards availing himself of such disqualification.</p>

<p>Appeal from the District Court of the Twelfth Judicial District.</p> <p>The plaintiffs filed their hill against the executors of Joseph L. Folsom, deceased, to foreclose a mortgage made by Folsom in his lifetime. The bill avers that the claim had been presented to the executors, and had been allowed by them and by the Probate J udge. The defendants demurred to the bill. The demurrer was overruled, and no answer being filed by the defendants, the case was referred to a referee to compute the amount due, and take proof of the facts averred in the complaint. Upon the report of the referee, a judgment and decree of foreclosure were entered, as prayed for in the complaint. Defendants appealed.</p>

<p>Appeal from the County Court of the County of Nevada.</p> <p>This was an action instituted before a justice of the peace for the recovery of a mining claim, and for $500 damages. The defendants recovered judgment, and plaintiff appealed to the County Court. On the case being called for trial in that Court, the plaintiff moved tp be allowed to amend his complaint by striking out the prayer for damages. This motion, being opposed on the part of defendants, was overruled by the Court.</p> <p>On the trial, the plaintiff offered to call W. C. Crossette as a witness, to prove the loss of the record of the mining laws of 1851 of the district in which the claim in dispute was situated. The defendant objected to the introduction of the witness for that purpose, on the ground that he was a large stockholder in the corporation plaintiff, which was admitted to he the fact. The Court below sustained the objection, and refused to allow the examination of the witness. The plaintiff then offered to call Crossette to prove a certain book of records of the mining claims of the locality, accompanied by an affidavit of Crossette that he was the only person who could prove the same, which was also refused by the Court.</p> <p>A judgment of non-suit was entered on motion of defendants, in the Court below, and plaintiff appealed.</p>

<p>Appeal from the District Court of the Tenth Judicial District, County of Yuba.</p> <p>Action of ejectment and for an injunction to stay waste. Judgment was entered in the Court below for plaintiff, on default of defendants. One of the defendants was sued as James Cox. The return on the summons shows service on John Cox; and judgment was entered against J. Cox. The Defendants moved on affidavits, in the Court below, to set aside the default, which motion was overruled, and defendants appealed.</p>

The agreed statement of the case shows that the plaintiff obtained judgment against the defendant, Michael Jordan, on which execution issued to the sheriff, who levied on the interest of the defendant in a certain lot in the city of San Francisco, which had been purchased several years before in the names of the defendant and Judith his wife, and Anna H. Jordan, their infant child ; that about a year before the rendition of the judgment, Michael Jordan had made a deed of…

This was an application by Artemesia Pyatt and others, heirs-at-law of Hiram Smith, deceased, in the Court below, for an order on Israel Brockman, to show cause why he should not pay over to the petitioners the sum of $3,552 29, placed in his hands by the Court a year before, to keep safely for Hiram Smith, Jr., a non-resident minor heir-at-law of the intestate, that being his share of the estate, under an order providing, that if the said Hiram Smith, Jr., did not appear…

<p>Appeal from the District Court of the Twelfth Judicial District.</p> <p>The plaintiff, a judgment creditor of Andrew Randall, filed his bill in equity against Randall and Robert McMillan, praying for an injunction restraining the latter from all proceedings under a judgment confessed by Randall in favor of McMillan. The Court below granted an order to show cause, but on its return denied the injunction. The defendant, McMillan, filed an answer, averring that the judgment was confessed iu his favor by Randall upon an actual bona fide debt. The Court below entered judgment for defendant, dismissing plaintiff’s bill. Plaintiff appealed.</p> <p>By the record, it appears that the question of fraud is waived, the allegations of the answer being admitted, and the appellant relying upon the failure to set forth, in the confession of judgment, the facts and circumstances upon which the debt arose, for which judgment is confessed.</p> <p>The recital of the confession of judgment are that the indebtedness arose upon a promissory note made by Randall to McMillan, “ said promissory note being now due and unpaid,” and further stating that “ the sum, by me above confessed, is justly due to said Robert McMillan, in pursuance of the facts above set forth.”</p>

<p>Fines properly imposed in the Court of a Mayor or Recorder of a, city, or before any municipal officer of a corporation, must bo paid into the treasury of the city or other corporation.</p> <p>There is no statute which alters the rule as to the City of Sacramento.</p>

The plaintiff filed his bill against the Bear River and Auburn Water and Mining Company, and S. W. Lovell, 0.

<p>Appeal from the District Court of the Fifth Judicial District, County of Tuolumne.</p> <p>This was an action brought April 28, 1856, by Wm. Nelson against George Nelson and William Peachy administrator of William J. Nelson, on a judgment obtained by the plaintiff in the State of Vermont against George Nelson and William J. Nelson, in June, 1847. The defendants plead the Statute of Limitations of the State of Vermont, as also that of this State.</p> <p>The case was tried on an agreed statement of facts, by which the facts averred in the complaint are admitted, and by which it further appears that William J. Nelson came to California in 1851, and resided here till his death in October, 1855; and “that he was the owner of known attachable property from the time he left the State of Vermont till the date of his death, which he left, and which remained in Vermont from the time he left till his death.”</p> <p>The Court below rendered judgment for plaintiff. Defendants appealed.</p>

<p>Appeal from the County Court of Mariposa County.</p> <p>Action for restitution of a mining claim and for damages, appealed from a Justice’s Court.</p> <p>On the trial, the Court below, on the request of defendants, gave, among others, the following instructions : “ First, that if the jury believe, from the evidence, that the claim in controversy, through plaintiff’s neglect or abandonment, was forfeited by the mining law governing it at the time of defendants taking possession, they must find for the defendants.” * * * “ Third, if the jury shall believe, from the testimony, that the mining claim in controversy was, at the commencement of this suit, and is at the present time, of more value than two hundred dollars, their verdict should be for the defendants; because justices of the peace have no jurisdiction to try the right to a mining claim when its value exceeds the value of two hundred dollars.”</p> <p>Neither the complaint. nor answer avers any value of the mining claim, nor is any question of jurisdiction raised by the pleadings, though the record shows that the defendants moved in the Justice's Court to , dismiss the action on the ground that the value of the claim in dispute was $1000, which they were ready to verify. The jury rendered a verdict for defendants. Plaintiff moved for a new trial, which was denied, and judgment entered for defendants for $218 70 costs in Justice’s Court and County Court. Plaintiff appealed.</p>

<p>Appeal from the District Court of the Fourth Judicial District.</p> <p>This was an action against J, H. Baine and Silas H. Collins, on the following promissory note:</p> <p>“ $1650. San Francisco, Dec. 21, 1854.</p> <p>Ninety days after date, I promise to pay R. H. Vance or order, sixteen hundred and fifty dollars, with interest, at the rate of three per cent, per month until paid, for value received. Josiah Baine.</p> <p>“ Attest: W. E. R. Hanscom.”</p> <p>Which note is endorsed:</p> <p>“ Holden on the within note without demand or notice.</p> <p>“S. H. Collins.</p> <p>“Attest: W. E. R. Hanscom.”</p> <p>It is admitted that judgment had been entered by default against Baine on the note. Collins answered, denying that he agreed to be holden on said note without demand and without notice, as alleged in the complaint.</p> <p>On the trial the plaintiff put in evidence the certificate of the notary protesting the note, which sets forth that the note was protested March 24, 1855, and that notice of protest was served on the endorsers March 26th, 1855, through the post office, to their address in San Francisco) in which city it was proved that the note was held for payment, and protested. The introduction of the certificate was objected to by defendant’s counsel, and excluded by the Court, the plaintiff excepting. The plaintiff then called Hanscom as a witness, who testified that he wrote the body of the note and endorsement; that Collins signed the endorsement as written out, containing the words “ without demand or notice.”</p> <p>The defendant, Collins, called Baine as a witness, to whom the plaintiff objected on the ground that he was a party to the record as co-defendant with Collins, and' that he was interested in the event of the action. The objections were overruled by the Court, and Baine testified that when Collins signed the note, the words “ without demand or notice,” were not written therein.</p> <p>The plaintiff’s counsel then asked the Court to charge the jury,</p> <p>“ 1. That if Collins promised cfriginally, or acknowledged himself holden on said note for payment thereof to the plaintiff, that in such case defendant is liable if he signed his name to the words “ holden on the within note.”</p> <p>“ 2. That a party defendant is not a competent witness for his co-defendant.”</p> <p>These instructions were refused by the Court, who charged the jury that Collins was liable if he signed the endorsement as it appeared, but that if it had been altered without his knowledge since he signed it, by the insertion of the words “ without demand or notice,” he was not liable, and that this was the principal question for the jury to decide.</p> <p>The jury found a verdict for defendant Collins.</p> <p>Plaintiff moved for a new trial, which was overruled, and plaintiff appealed.</p>

This was an appeal taken from an order granting a change of the place of trial of this action, to the District Court for the county of Contra Costa.

<p>The appointment by the county judges of two counties, of commissioners to ascertain and settle the proportionate amount of indebtedness to be assumed by each, under a law authorizing such an appointment on the division of said counties, is the proper exercise of functions incident to their judicial position.</p> <p>Such an appointment is no more objectionable, than the appointment of an arbitrator or referee.</p> <p>A mandamus to a board of supervisors to issue a warrant for a specified sum, is irregular; it should direct them to audit the account, and issue warrants accordingly.</p>

<p>A river beyond the ebb and flow of the tide may be navigable, when it has sufficient depth and width to float a vessel used in the transportation of freight or passengers ; and this has been extended to its capacity to float rafts of lumber.</p> <p>To go beyond this and declare a stream navigable which can float a log, would be to turn a rule intended for the benefit of the public, into an instrument of serious detriment to individuals, if not of actual private oppression.</p> <p>The only other instance in which a stream is navigable, is when it is so declared by statute, and when so declared navigable to a certain point, by implication it is declared non-navigable above that point.</p>

Action to try the right to a mining claim in a Justice’s Court. The answer of defendant avers that the value of the mining claim in dispute is $300, and that the justice has no jurisdiction to try the cause. On the trial, in the County Court, the defendant moved to dismiss the action for want of jurisdiction, on the ground that the property in dispute was real property, which motion was overruled.

<p>The granting an injunction by a county judge on a bill filed in the District Court, is auxiliary to the action of that Court, and has the same force and effect, for all intents and purposes, as if it were the direct act of the latter.</p> <p>Such an order may therefore be appealed from, in the same manner as if made by the District Court.</p> <p>Where the answer to a bill for an injunction denies all the equity, if any, of the bill, a preliminary injunction should not be granted.</p>

This was a bill filed in the Court below by the appellants, asking to have a certain agreement, entered into between the plaintiffs and defendant, reformed, on the ground of mistake and fraud.

<p>In an action of assumpsit against a firm, where the answer of one of the defendants denies that he was a member of the firm, it is error to admit in evidence, as against that defendant, a letter admitting the indebtedness, signed in the firm name, without proof that defendant wrote the letter, or authorized it to be written.</p> <p>Partnership must be proved, like any other fact, and cannot be established by mere surmise or inuendo.</p>

The original complaint in this action having been demurred to, the plaintiffs filed an amended complaint, in which they set forth “ that they, the said plaintiffs before and at the time of the committing of the several wrongs and grievances by the said defendants as hereinafter stated, together with one A. P. Usher, who has since sold and transferred his interest therein and in the cause of action hereinafter stated, and the damages arising therefrom, to the said plaintiffs,…

<p>A sale by a sheriff, under execution, of a house claimed as a homestead by the defendant in execution, and ascertained by appraisement to be worth over §5,000, should not be made until an exact appraisement of the value of the premises is obtained, so that the sheriff can convey a definite fractional undivided interest therein.</p> <p>It follows that a deed of the premises claimed as a homestead, given by the sheriff to the purchaser at the execution sale, for the excess of value of the premises over §5,000, conveys an undefined and uncertain interest, upon which the purchaser cannot maintain an action for possession and mesne profits.</p> <p>The question as to whether buildings used for hotels, stores, etc., are susceptible of dedication for homestead purposes, is reserved.</p>

<p>The admission of secondary evidence of a paper alleged to have been lost, is only allowable on proof of a bona fide, diligent search, unsuccessfully made for it in the place where it was most likely to be found, and that the party has exhausted in a reasonable degree all the sources of information and means of discovery naturally suggested by the nature of the case, and accessible to the party.</p> <p>Mere evidence of search is not sufficient, for the search may not have been diligent. Evidence that the library and papers of the party were destroyed by fire, except a few papers, accompanied by evidence of search for the particular paper, is insufficient, for the paper in question may be one of those saved from the fire.</p>

Appear from the District Court of the Twelth Judicial District. Plaintiff brought his action against the steam-tug under the 317th section of the Practice Act, claiming damages under the following state of facts, as proved on trial. The Humboldt Lumber Manufacturing Co. appeared and defended as owners of defendant: Defendant is a steam-tug owned by the Humboldt Lumber Manufaeturing Company.

<p>Appeal from the Superior Court of the city of San Francisco.</p> <p>This was an action by Paul Tissot and Natividad Haro, his wife, on a promissory note made by defendant to the wife during her marriage with her present husband.</p> <p>The defence set up is, that the defendant had purchased an interest in a tract of land known as the “ Protrero,” from Julius K. Rose, who had purchased of Natividad Haro. That at the time of Rose’s purchase, the title papers to the land had been lost, and the title was of no great value. That subsequently the original grant and other muniments of title were discovered, and it became certain that the grant would be confirmed, whereupon Natividad represented to defendant that the deed from her had been procured by fraud, and that she had received no consideration therefor, and that she had, and intended to assert, a claim to the land. That Rose was then absent from the State, and the defendant being influenced by the representations of Natividad, paid her $1250 in cash, and gave the note sued on, in consideration for a new deed, executed by Natividad. That subsequently defendant had discovered that the representations of Natividad were false and fraudulent, and that she had received and used the money paid by Rose for his deed, which was at that time fully equal to the value of the title to the land.</p> <p>On the trial, the defendant moved for a continuance, which was overruled. The jury found a verdict for plaintiff. Defendant moved for a new trial, on the ground of accident and surprise, etc., newly discovered evidence, etc., and insufficiency of the evidence to justify the verdict, etc., which was overruled, and defendant appealed.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>This was an action on a promissory note secured by a mechanics’ lien, making other encumbrancers parties, and praying for a foreclosure of the lien. The plaintiff 'sues as endorser of the note. Judgment by default was entered against defendant Dawes; the other defendants, subsequent encumbrancers, defended the action to contest the priority of plaintiff’s lien. On the trial, plaintiff called as a witness-Howard, of the firm of Howard & Wilbur, the payees and endorsers of the note, who stated on voir dire that he had received notice of protest and had not been released.by the plaintiffs. The defendants objected to the witness on the ground that he was directly interested in establishing the plaintiff’s lien on the property, and thereby bettering his own condition as endorser. The Court overruled the objection, and the witness was allowed to give testimony tending to establish plaintiff’s lien—the questions in this case being upon the priority of the plaintiff’s lien over the mortgage of some of the defendants. The jury found a special verdict, establishing the allegations of the complaint, and a decree was entered accordingly. The record shows that an order was made striking from the files a statement of defendants for a new trial, though it does not disclose that the motion was made and overruled.</p>

<p>Appeal from the District Court of the Fourth Judicial District.</p> <p>This was a proceeding upon the petition of intervention of Richard Roman, Edward Jones and A. A. Cohen, in this cause, setting forth that the petitioners had been duly appointed the assignees in insolvency of the defendant Woods, and had received from him a surrender of a large amount of property belonging to the firm of Adams & Co., whereof the plaintiff Adams, and the defendants Haskell & Woods were members, and had retained the custody and charge of said property, until by an order of the Court below, of January 30th, 1856, they paid over, or secured to the receiver appointed by the Court in this action, the sum of $150,783 82, and other property forming part of said assets, under a reservation in said order of all just claims and liens in favor of the petitioners on or against said fund.</p> <p>The petition further represents that the petitioners had been subjected to heavy expenses, and had made large disbursements in the protection of said fund, while in their hands, and had rendered and performed important services in that behalf, of which they render an account in a schedule annexed to their petition, the sum total amounting to $41,591 80.</p> <p>Upon this petition, the Court below made an order appointing a referee, and directing him to “ ascertain and report the amount of disbursements and expenses made with or under the direction and authority of this Court, by said Cohen, Roman and Jones, prior to the order heretofore made upon them to pay over said funds to H. M. Naglee, receiver.”</p> <p>In pursuance of this order, the referee reported the amount of three thousand dollars paid to William Duer, 0. T. Emmet and William Q-. Wood, referees, per order of Judge Lake, being the first three items of the schedule annexed to the petition of the intervenors, as being “ the amount paid with or under the direction and authority of the Court.”</p> <p>The Court below entered an order confirming the report of the referee, and directing the receiver to pay the amount allowed by the referee to the intervenors, from which order the intervenors appealed.</p> <p>The connection of the intervenors with this case will be found fully set forth in the former report of this ease, the record of which is made, by stipulation, a part of this.</p>

• The defendant was tried and convicted of an assault with intent to ravish. It is admitted that there are sufficient errors to warrant a reversal, if the bill of exceptions, which was not signed until more than ten days after the trial, can be considered by this Court. •

The.plaintiff filed his bill of foreclosure against J. N. Olney, J. B. Roberts, J. E. Brown, and Rebecca F. Gregory. The bill sets. forth the following averments : That on September 1st, 1853, the defendant, Olney, made two promissory notes of even tenor and date, to W. C. Jewett, for $2,000 each, payable in one year, with interest at one per cent, per month, and to secure the same, executed a mortgage on certain property in San Francisco.

<p>Where a simple contract creditor filed a bill against the assignee of his debtor, not attacking the assignment, and merely praying for a distribution; and the plaintiff subsequently filed a supplemental bill, setting forth that in the meantime he had become a judgment creditor, and attacking the assignment for fraud, since discovered, and praying that it be set aside, and that the moneys in the hands of the assignee be appropriated to plaintiff’s judgment z Held, that it is no objection to the supplemental- bill that it prays for a different relief, and fails to bring in all the other creditors, who are alleged by the defence to be entitled to a ratable distribution.</p> <p>The gravamen of both bills is the indebtedness, and every supplemental bill is enlarged or altered by every additional and pertinent fact, and the plaintiff has the right to attack the assignment for fraud discovered since filing his original bill.</p> <p>¡Nor, having discovered the fraud by his superior diligence, is the plaintiff compelled to bring in the other creditors to share its fruits.</p> <p>Nor is it necessary, in order to grant the relief sought, and to set aside the assignment, that the assignee should have been a party to the fraud.</p> <p>And if the assignee, though innocent of the fraud, has, by a misplaced confidence, allowed his assignor to be his agent for the sale of the property assigned and pocket the proceeds, he is liable; if he acted in complicity with the fraud, he is, of course, liable.</p>

<p>Where an original instrument, proved to be lost, has been recorded, it is error to admit parol evidence of its contents, unless the failure to produce the record is accounted for.</p>

This was an action for unlawfully taking and detaining 1664 barrels of flour belonging to plaintiff, of which 1340 barrels were Gallego flour, and 324 barrels were Haxall. The action was brought against A. H. Barker and 1ST. C. Paddock, and the members of the firm of Tilden & Little. The suit was discontinued as to the latter. Barker and Paddock plead the general issue. The agreed statement discloses the following facts: Prior to February 8th, 1854, Messrs.

<p>Appeal from the District Court of the Sixth Judicial District.</p> <p>This was an action against the defendants, Catherine McGarvey and Margaret McKeon on a note alleged to have been made by them jointly, as sole traders, under the Act of 1852, and also to foreclose a mortgage made by them in the same capacity, to secure the note. The complaint joins the husbands of the above-named defendants as parties defendant.</p> <p>The defendants demurred to the complaint for a defect of parties, and specified the joinder of the two husbands as defendants, as ground of demurrer.</p> <p>The Court below overruled the demurrer, and the defendants failing to answer, judgment and decree of foreclosure was entered against them by default. Defendants appealed.</p>

This was a bill in equity filed in the Court below by the Attorney General, against J. Neely Johnson, Governor of the State of California, John A. Brewster, Surveyor General, and David E. Douglass, Secretary of State, a board of commissioners by virtue of an Act of the Legislature, entitled “An Act to provide for tbe survey and construction of a wagon road to the Sierra Nevada mountains,” to enjoin said commissioners from entering into any contract for the construction of…

<p>When one partner sues for an injury to the partnership property, and makes his co-parfcner a defendant for want of his consent to join as plaintiff, the recovery must be entire for the whole injury.</p> <p>The law will not tolerate a division of a joint right of action into several actions.</p> <p>In such a case the partner recovering is liable to account to his co-partner defendant; and the latter being immediately interested in the event of the suit, is not, therefore, a competent witness for the plaintiff.</p> <p>Qucere—Whether such non-joinder of parties plaintiff is permissible.</p>

<p>Appear from the District Court of the Fifth Judicial District, County of San Joaquin.</p> <p>This was an information in the nature of a quo warranto, to try the title of the incumbents to the office of Trustees of the State Insane Asylum.</p> <p>It is admitted that the incumbents were elected trustees by the Legislature in 1854, with the exception of some members appointed by the board to fill vacancies, as provided in the statute. That the Legislature in 1856, failed to elect their successors, although the term had expired for which they were appointed; whereupon the Governor, after the adjournment of the Legislature, appointed other persons to the office, who are claimed, by the information, to be entitled thereto. The Court below entered judgment for defendants, from which an appeal was taken on behalf of the people.</p>

This was an action brought before a justice of the peace to determine the right to a mining claim, and carried by appeal to the County Court. In the Court below, the defendant asked for an instruction, which was given, subject to a qualification as set forth in the opinion of the Court. The jury found a verdict for plaintiff, and judgment was en- . tered accordingly. Defendant appealed.

This was an action for damages for unlawfully taking and converting plaintiff’s goods, brought against E. P. Seymour, an attaching creditor of plaintiff’s vendor, and E. Barry, the constable levying the attachment.

The plaintiff recovered judgment by default against the defendants, H. F. Cutter & Co. on a promissory note.

This was an action of ejectment for a lot of land in the city of San Francisco, being part of fifty-vara lot 162. Both plaintiffs and defendants claimed title to the lot under distinct Alcalde grants. That of plaintiffs’ grantor, Pell, was made in 1847, and that of defendants’ grantor, Bee, in 1843. It was contended, however, on the part of the plaintiff, that the defendants' grantor had abandoned and forfeited the lot.

This was an action brought against the City of San Francisco, for damages for injuries sustained by plaintiff in falling into the excavation caused by grading Clay street, near Powell, in the city of San Francisco.

The plaintiff filed a bill in equity against the county of San Francisco, to enforce a specific performance of the following contract, as set forth in the bill: The Court of Sessions of San Francisco county, acting under the provisions of the Act of April 11th, 1850, purchased, June 20th, 1850, of Edmund Laffan, D. W. Coit and J. W. Morse, a certain lot of land on the west side of Brenham Place, in the city of San Francisco, for a county-building site, for which they agreed…

<p>Warehousemen who give their receipt for goods on storage, are estopped from setting up a want of segregation of the goods receipted for from other goods, in an action against them by the holder of the receipt, for a conversion of the goods by a seizure in an action against a vendor of the plaintiff.</p> <p>And this, although the warehousemen are the attaching creditors, and although the sheriff making the seizure was not liable, by reason of their being no segregation.</p>

The prisoner, Jeptha R. March, was indicted by the grand jury of Colusi county for the murder of Hamilton Timmons, and was convicted of the crime. He took an appeal to this Court, and the judgment of the Court below was reversed, and a new trial ordered on the ground of error in the ruling of the Court below upon an objection to a juror.

This was an action of trespass, quare clausum fregit, instituted by plaintiffs to recover damages for injuries committed by defendants in a certain close of plaintiffs, used as a saw-mill yard, situated on the south branch of the Middle Fork of the Yuba River, in Sierra county. There is a prayer for an injunction contained in the complaint—which, however, is not considered in the appeal.

<p>It is no ground for the exclusion of a deposition, that it was noticed to be taken before the County Judge, but was taken before the County Clerk.</p> <p>Notice of time and place having been given, it is a matter of small importance who took the deposition, particularly in view of the inconvenience and delay which would result from a different rule.</p> <p>A certificate to a deposition must state that the deposition was read to the witness before signing; it must set forth an actual compliance with all the requirements of the statute.</p> <p>The admission of hearsay testimony to a fact admitted by both parties, is not error.</p> <p>In an action of assumpsit for goods sold and delivered, the plaintiff cannot recover for goods alleged to have been delivered to a third party and charged to defendant's account.</p> <p>If the parties were tenants in common, and the defendant §old the chattels held in common, and appropria ted the proceeds to his own use, the remedy of the plaintiff is in ¡ trover, or by an action for money, had and received ; and an action for goods, wares ; and merchandise, sold and delivered, will ñot~entitle him to a judgment.</p>

The defendant, was indicted for an assault with intent to commit murder. The jury brought in a verdict of assault with intent to do bodily injury. The Court below thereupon sentenced the prisoner to one year’s imprisonment, and to pay a fine of $3,000 and the costs of prosecution. Defendant appealed.

<p>As a husband and wife may, by joining in a conveyance, destroy a homestead right already acquired, by selling- the whole, so they may equally destroy it by selling an undivided portion of it.</p> <p>It seems that a covenant by the husband to convey an undivided interest in the land, executed before any residence of his family on the premises, sustained by a deed made by the husband alone after the residence of his family and that of his covenantee on •the premises, prevents the homstead right from attaching; and that a mortgage, executed by the husband alone after the residence of the two families on the land, but before the deed was executed by the husband to his co-tenant, will be maintained against the claim of homestead.</p>

The plaintiffs filed their bill, May 11th, 1855, to compel a specific performance by defendants of a bond in the penal sum of eight hundred dollars, given by defendants to plaintiffs, December 28th, 1850, conditioned as follows: “ The conditions of the above obligation are such, that whereas, the above boundeu (defendants) have this day bargained and sold unto the said (plaintiffs) a certain section of land,” in Yuba County, giving the description thereof, “for the…

<p>Appeal from the District Court of the Third Judicial District. County of Santa Clara.</p> <p>The plaintiff filed his bill for a settlement and account against J. W. Redman and G. E. Brittain, setting forth in his complaint a contract of partnership, made between the parties in the State of Missouri, to the performance of the conditions of which the parties bind themselves in the penal sum of $50,000, and which recites that the plaintiff had made a certain advance of money for the outfit of defendants to enable them to come to California, in consideration of which the plaintiff was to have one-third of the profits arising from all the labors, speculations, and undertakings of the defendants for two years, the defendants agreeing to devote their labor and attention for that time to the co-partnership ad-adventure, and the defendant Redman agreeing to refund one-third of the outfit.</p> <p>The bill sets forth that the defendants have acquired property, both real and personal, during said partnership, and also since its expiration, by using the proceeds of the property acquired during its existence j and prays for an account, and for judgment for the amount found due.</p> <p>Redman demurred to the complaint as not setting forth any cause of action, there not appearing therein that any co-partnership existed between the parties, and also for a misjoinder of cause of action.</p> <p>The Court below sustained the demurrer, and entered judgment dismissing plaintiff’s bill. Plaintiff appealed.</p>

<p>Appeal from the District Court of the Fifth Judicial District, County of San Joaquin.</p> <p>This was an action against Hiram Dennis, on the following promissory note:</p> <p>“$708 17.</p> <p>“ Stockton, January 22d, 1855.</p> <p>“ One day after date, we jointly and severally promise to pay Messrs. A. N. Fisher & Co.,-or order, the sum of seven hundred and eight dollars and seventeen cents, for value received, with interest monthly at the rate of five per cent, per month, until final payment.</p> <p>“Benjamin G-. Weir, “Hiram Dennis.”</p> <p>The action is brought by the payees of the note. The defendant plead non est factum. On the trial the defendant proved that when he signed the note the word “ five ” was not written in the note, the rate of interest being left in blank.</p> <p>The Court below, at the request of the plaintiffs, gave the following instruction to the jury: “that if they believe from the evidence that the note sued on was signed and delivered just as it is now, save a blank where the word “ five ” is written for the amount of the interest, then it was an unlimited letter of credit, and the plaintiff was authorized to fill it up for an indefinite amount: unless the jury shall further believe, from the evidence, that the authority was in fact limited, and if they shall so believe, the note is invalid for the excess and good for the remainder.” To which instruction defendant excepted.</p> <p>The defendant then asked for the following instruction : “ that if they believed from the evidence that at the time Dennis signed the note, no rate of interest was expressed therein, and that after it was signed and delivered to plaintiffs, it was filled up with the word “ five,” so as to draw interest at the rate of five per cent, per month; and that such alteration was made without the knowledge or consent of Dennis, the defendant, that such alteration vitiated the entire note, and the defendant was entitled to a verdict.”</p> <p>Which instruction was refused by the Court, the defendant excepting. The jury found a verdict for plaintiffs for the amount of the note and interest at the rate of five per cent per month.</p> <p>Motion for a new trial was made and overruled, and judgment entered for plaintiffs on the verdict. Defendant appealed.</p>

This was an action to recover possession of two rooms in a building in Marysville.

<p>XJnder the provision of the Constitution, giving to the Legislature the power “to establish such municipal and other inferior Courts as may be deemed necessary,” the Courts thus created could only be of inferior, limited, and special jurisdiction.</p> <p>The Superior Court of the city of San Francisco, which was created under the power so given, is a municipal Court, whose jurisdiction must necessarily be confined to the municipal territory; and the Act giving it the power to extend its jurisdiction, so as . to let its process run beyond its territory, is invalid.</p>

This was an action brought by the plaintiffs, the owners of a regularly licensed bridge, held since 1850, across the American river, at about the termination of Eighteenth street, Sacramento City, (known as Lisle’s Bridge,) praying for an injunction, restraining the defendants from running a ferry within one mile of plaintiffs’ bridge, and for damages for having so run said ferry.

This was an action on two promissory notes. The defendant plead his discharge in insolvency. The case was tried by the Court, a jury being waived.

This was an action against P. W. Van Winkle, H. W. Halleek and A. C. Peachy, for the rent of certain premises leased by plaintiffs to John Middleton, the lease being by him assigned to Henry Haight, by whom it was assigned to J. L. Folsom; the defendants being appointed executors of the latter shortly after his death, and having held the premises as such executors for the time for which the rent is sought to be recovered.

This was an action against L. A. Franklin and A. Dyer to recover the sum of $5,000, the value of certain goods consigned to them by plaintiff to be sold on commission, and which the complaint alleges they have sold, and for the proceeds of which they have failed to account.

The plaintiff filed his bill of foreclosure against the defendant, A. C. Latson, making E. Townsend, Joseph Winans and John Gr. Hyer defendants, 'as claiming some interest in the mortgaged property, adverse to the plaintiff.

The plaintiff filed his bill, September 22d, 1855, for a specific performance, against C. Covillaud and others, on a contract to convey to him certain lots in the city of Marysville. The contract sets forth the payment of $325, and the receipt of plaintiff’s note for $325, “payable at four months’ daté,” and is dated February 18th, 1850.

<p>The will of a testator, dying before the organization of the State government, did not require to be probated under the then existing laws.</p> <p>Our Statute of Wills not only fails to require the probate of wills executed before its passage, but it must, from its terms, be concluded that the Legislature actually intended to exclude such wills from the operation of the statute altogether, leaving their validity to depend upon the laws under which they were made, and not disturbing rights which had grown up under the former system.</p> <p>A will only becomes executed upon the death of the testator, and therefore this construction does not affect wills made before the passage of the statute, where the testator did not die till after its passage.</p> <p>The Probate Court is an inferior Court, and therefore cannot take jurisdiction or administer remedies other than those given in, and in the manner prescribed by, the statute.</p>

<p>Appeal from the District Court of the Twelfth Judicial District.</p> <p>Cary, the respondent, was the owner and holder of a mortgage on certain real estate in the city of San Francisco, embracing several lots, executed by Tice alone, without his wife, which was sought to be foreclosed, when, by leave of Court, Tice and wife intervened for a homestead in a part of the mortgaged premises. The decision of the Court below was against the claimants of the homestead, and they appeal to this Court to reverse the judgment.</p> <p>The facts are agreed upon by counsel, and the question involved is purely a question of law. The facts are as follows:</p> <p>Tice was a married man when he came to California, in 1849, where he has resided ever since. He left his wife in New York. On the 24th of August, 1854, he executed the mortgage set forth in the complaint, to secure the sum of $20,000 to the plaintiff. He had made arrangements to have his wife come to California the preceding June, at which time she was ready and waiting to come, staying temporarily at her brother’s, in Peekskill, and had been waiting and expecting to come for several month previously, but, owing to accidents unnecessary to mention, was prevented from coming, and did not arrive here until January,, after the mortgage was executed.</p> <p>Tice purchased the mortgaged premises in 1851, and entered upon them at that time, and occupied the same as his home until his wife arrived, and after her arrival, until this action was brought. Said premises comprised all the real estate Tice owned or possessed in this State.</p> <p>The cause was tried by the judge, without a jury, and decided against the homestead claim, on the ground that the wife was not actually living in this State when the mortgage was executed by the husband.</p> <p>Tice and.his wife appealed.</p>

The plaintiff brought his action against the defendant as administrator of the estate of J. Beckett, deceased, to recover an amount alleged to be due by Beckett to plaintiff, as partners in the “Diana Saloon,” which the complaint alleges to have been kept by them for the purposes of gaming, and selling liquors, cigars, etc. The defendant failing to answer, judgment by default was entered against him, from which he appealed.

This was an action against the defendant Randall, a notary public, and his sureties on his official bond, for damages for neglect of an official duty. The case was tried before the Court, a jury being waived, and the finding of the Court below establishes the following facts : The plaintiff was the holder and owner of a promissory note by endorsement. On the day of its maturity the plaintiff gave the note to the defendant, Randall, for protest.

The defendant was indicted and convicted of grand larceny. On the trial, and before argument, the Court announced that it would limit the arguments of the counsel for the prosecution, in his opening and closing, to three-quarters of an hour, and that for the defence to half an hour—which rule was enforced, under the exception of defendant, who appeals, assigning this as error.

The defendant was indicted for the crime of murder, charged to have been committed March 22, 1856. The case was tried September 8, 1856. The jury found a verdict of guilty of murder in the second degree. Defendant moved for a new trial, which was overruled, and defendant appealed.

<p>Appeal from the District Court of the Sixth Judicial District.</p> <p>Fitch and Hawley were trespassers in possession of certain land which was taken by the Sacramento Valley Railroad Company, in the manner prescribed by law, and the damages assessed. At that time Grover, the owner of the land, had an action for its recovery against F. and H. pending in the Courts. Grover, and Fitch and Hawley, each filed their claims before the commissioners to the damages. The company paid the money into Court, where it still remains. Grover subsequently recovered possession of the land, under a decree of Court, and it passed by conveyance to Rooney and Riley.</p> <p>An order to show cause was granted, on the petition of the latter, upon the receiver in whose hands the money was placed by the Court, and upon Fitch and Hawley, why the damages should not be paid to the petitioners. The damages assessed are partly for injury to crops, and general damage, and partly for the value of the land and the cost of additional fences, rendered necessary by the construction of the road, which have not yet been put up.</p> <p>On the hearing, the Court below awarded to Fitch and Hawley the damages for injury to crops, and general damage, and awarded to Grover, or his assigns, the damages assessed for the value of the land and for cost of fences to be put up. Fitch and Hawley appealed.</p>

<p>An answer which denies generally all the allegations of the complaint, is equivalent to the general issue at common law, and ought not to be struck out as sham or frivolous.</p> <p>Under it, payment or failure of consideration may be proved, and it admits nothing but the execution of the instrument declared on.</p> <p>By verification of the complaint the plaintiff can prevent the defendant from interposing a general denial in suits on promissory notes or bills of exchange, by requiring a sworn answer.</p>

This was an action against George M. Hanson, John C. Fall, and Samuel L. Dewey, administrator of the estate of B. B. Dewey, deceased, on an undertaking on appeal executed by G. M. Hanson, John C. Fall and B. B. Dewey. The complaint alleges the prosecution of the appeal in the action in which the bond was given, and final judgment against the appellant therein. It also avers the subsequent death of B. B. Dewey and the appointment of S. L. Dewey as his administrator.

The plaintiffs brought their action for damages for injuries occurring to certain cases of cigars, pledged to defendants as security for a loan, by the negligence of defendants in storing the same. The facts of the case are as follows : |v The plaintiff pledged to defendants a lot of cigars to secure certain notes.

This was an action of ejectment transferred from the District Court of the Eleventh Judicial District, county of El Dorado. It was brought tare-cover possession of about twelve acres of land in that county, being part of a tract of one hundred and sixty acres taken up by plaintiff in 1850. The plaintiff relies solely upon his prior possession.

<p>Where the right of a holder of county scrip to payment thereof had become fixed by presentation, there being money for such payment then in the treasury, a subsequent Act of the Legislature cannot intervene to divest rights already acquired.</p> <p>While the Legislature has power to direct in what manner county revenues shall be disposed of, still they cannot divest a right of a party which is complete, vested, and determined.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>This was an action on an undertaking given to release property from attachment. The complaint alleges the execution and delivery of the undertaking by the defendants in a certain action, and has annexed a copy of the undertaking, in which the “ relief from attachment ” is stated as a consideration of the bond. The complaint alleges final judgment for plaintiff in the attachment suit, but does not aver that the goods attached were released on the execution and delivery of the bond.</p> <p>The defendants demurred to the complaint on the ground, among others, that it failed to allege the release of the goods attached on execution and delivery of the bond. The demurrer was overruled, and the defendants failing to answer, judgment was entered for plaintiff. Defendants appealed.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>This was an action against A. T. McClure, Smyth Clark and William Andrews, on the official bond of McClure, as administrator of the estate of Henry C. G-illis.</p> <p>The complaint alleges that the plaintiff had a claim for 1831 against the estate of G-illis; that he presented his claim, and the same was allowed by the administrator and the Probate Judge; that subsequently “ the said A. T. McClure filed a petition in the said Probate Court, praying that the said Court would authorize him to pay the claims duly presented against said estate; that said Court, on the 4th December, 1854, made an order or decree whereby said administrator was authorized to pay all the claims duly presented and approved, and amongst the said claim of the plaintiff hereinthat the plaintiff had demanded the payment thereof from said administrator, which had been by him refused; that said administrator had in his hands sufficient money to pay all the claims presented and allowed against said estate, and that the time for presenting claims against the estate had expired.</p> <p>The defendant, Andrews, demurred to the complaint, as not stating facts sufficient to constitute a cause of action, specifying, among other grounds of demurrer, that the judgment of the Probate Court was not set forth in the complaint, nor the facts stated which are necessary to give that Court jurisdiction. The Court below overruled the demurrer. The defendants answered, and the cause being tried by the Court, a j udgment was- entered for plaintiff. Defendants appealed.</p>

<p>Appeal from the Superior Court of the City "of San Francisco.</p> <p>This was an action of trespass against Payne and Herrick, for seizing eleven hundred and ninety-six quarter sacks of flour, for the value of the flour and for damages. The plaintiff loaned $1,500 to one Chazal, and took the note of the latter for the amount and interest, secured by a chattel mortgage on the flour; for which he received, in his own name, the receipt of Tilden & Little, the warehousemen, with whom it was stored, and who acted as Chazal’s agents in negotiating the loan. The defendants received a similar receipt for three thousand six hundred sacks, as security for a loan made by them to Chazal. The plaintiff demanded of Tilden & Little that his one thousand sacks be segregated from the balance of Chazal’s flour. T. & L. informed him that it would be very inconvenient to make an entire change in the position of the flour, but placed the plaintiff’s name on a separate lot of Chazal’s flour, consisting of eleven hundred and ninety-six sacks. H. W. Beebe succeeded Tilden & Little in the warehouse, and advertised for parties to exchange their warehouse receipts. On discovering that there was a deficiency in the “ Eclipse Mills ” flour, which was the brand of the flour of Chazal, he refused to exchange receipts for that brand, whereupon suits were commenced by several parties. The defendants brought a replevin suit against Beebe for three thousand six hundred quarter sacks of flour, in which the sheriff, by the direction of the attorney of defendants, seized the eleven hundred and ninety-six sacks above referred to, and other flour in the warehouse, and placed a keeper in charge. Shortly after, and on the same day, the coroner claimed the flour, under a writ, in an action brought by Schwabe & Co., against the warehouseman and the sheriff. The sheriff removed about four hundred of the eleven hundred and ninety-six sacks before he was stopped. The coroner seized the remainder; thereby making, with other flour, sufficient to satisfy his writ—leaving the sheriff about eleven hundred and forty-six sacks in all. The value of the flour was proved to be one dollar and fifty cents -per quarter-sack.</p> <p>The Court below charged the jury that a separation and marking of a parcel, of nearly the same quantity, would amount to a segregation; and that, if the sheriff first seized the flour of the plaintiff, the coroner’s taking it out of his hands would not change the liability of the defendants. The Court refused to instruct the jury that, in any event, the plaintiff could only recover one thousand sacks. The jury found a verdict for the plaintiff for $1,500. Motion for a new trial made and overruled, and judgment entered on the verdict. Defendants appealed.</p>

<p>Appeal from the District Court of the Sixth Judicial District.</p> <p>This was an application for a peremptory mandamus upon the defendant, State Comptroller, commanding him to draw his warrants on the State Treasurer for $8,000 in favor of plaintiff, for compensation as Supreme Court Reporter, in pursuance of the provisions of an Act of the Legislature, taking effect March 22d, 1856.</p> <p>The agreed statement shows that the Act referred to was passed by both houses of the Legislature, and was delivered to the Governor at noon, March 11th, 1856j that on the 22d of that month, at two o’clock p. M., the Act was returned by the Governor, without his approval, to the Assembly, where the bill originated, the veto message having been-signed not exceeding fifteen minutes before.</p> <p>A judgment, or order pro forma, denying the application, was by consent entered by the Court below. The petitioner appealed.</p> <p>The only question raised before this Court is, whether the bill was returned by the Governor without his approval in time, or whether the bill had become a law by lapse of time before the veto was sent in to the Legislature.</p>

This was an action against the defendant, sheriff of the county of San Joaquin, for trespass, in seizing four thousand sacks of grain, alleged to be the property of plaintiff and one Sebastian Visher, as tenants in common, the one-half of which had been surrendered to Visher by defendant, before the commencement of this action. The defendant justifies the seizure as made under an attachment issued in an action brought by A. FT.

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>This was an action brought by C. Hopkins against E. L. Beard to recover the sum of $91,467 23, alleged to have been paid by the plaintiff on a note for $63,870, with interest at four per cent, per month, executed by plaintiff and defendant jointly, and secured by a mortgage on joint property, to C. K. Garrison, but for the individual debt of the defendant, and finally paid, on foreclosure, by plaintiff.</p> <p>The issues tried are mostly of fact, and unnecessary to the report of the case.</p> <p>There were put in proof by the plaintiff two instruments executed between the parties to this action. The first is a deed of settlement, executed June 1, 1854, in which the defendant admits that he is indebted to the plaintiff in the sum of $30,000, exclusive of the Garrison debt, which is admitted to be the individual debt of the defendant. The second is a deed from the defendant to the plaintiff, executed at a later hour on the same day, of a portion of the mortgaged premises so jointly owned by them, recognizing the indebtedness of $30,000 recited in the deed of settlement, and providing that nothing in the latter deed contained should be construed against the acknowledgment of that indebtedness.</p> <p>On the trial, the defendant offered to show that the deed of settlement was procured by fraud, and as a predicate, offered in evidence the account on which the settlement was based, which was excluded by the * Court, on the ground that the deed of settlement was conclusive) to which defendant excepted.</p> <p>There was an attempt on trial to connect the two deeds as one transaction, although executed at different times on the same day, and the defendant asked the Court to instruct the jury that the exception of the Garrison debt in the deed of settlement had no tendency to show that such debt was not the consideration of the conveyance by Beard to Hopkins, which was refused by the Court, under the exception of defendant. The jury found a verdict for plaintiff for $151,462. Motion for new trial made and overruled, and judgment entered on the verdict. Defendant appealed.</p>

Henry Gherke, the. administrator of the estate of Augustus Deck, appeals to this Court from an order removing him from the administration of said estate; also, from an order disallowing, on the final settlement of appellant’s accounts, certain sums paid by him on claims against the estate for medical services and attendance on the deceased, and a part of appellant’s commissions as administrator, all of which had been formerly allowed by the administrator and the Probate…

<p>Appeal from the District Court of the Third Judicial District, County of Alameda.</p> <p>On the trial of this cause, the Court Tbelow excluded an important witness for plaintiff on the objection of defendant to his competency. The plaintiff then moved the Court to discharge the jury, which the Court refused.</p> <p>The plaintiff then moved the Court for leave to suffer a non-suit, which was granted, and the jury discharged; whereupon the plaintiff moved the Court for a new trial, which was denied, and plaintiff appealed.</p>

This was a bill of foreclosure filed against S. L. Burritt, John Vogeley, and others, upon the following state of facts: Burritt mortgaged a certain lot in the city of San Francisco, to the plaintiff, for $10,000, with interest at the rate of two and a half per cent, per month. The mortgage was recorded July 9th, 1853—the same day on which it was executed.

<p>Where an Act by its own terms was not to go into effect till a certain day named, and one of its sections provides for an election on a day prior to the time in which the law was to go into effect, the election so held was a nullity, there being no law then in existence authorizing it.</p>

<p>Appeal from the District Court of the Twelfth Judicial District.</p> <p>This was an action of ejectment to recover possession of a lot in San Francisco, known as fifty vara lot No. 251. The plaintiff claimed title under an alleged alcalde grant to plaintiff.</p> <p>The defendant claimed title under an alcalde grant for the same lot, to J. S. Ruckle, and mesne conveyances from Ruckle to defendant. On the trial the defendant introduced in evidence the book of accounts of the alcalde, for the purpose of proving that the grant to plaintiff had never been called for or issued, although prepared. Defendant proved, by George Hyde, a former alcalde, that the book was the register of accounts between the sindico, or collector and the alcalde, and contained an entry of the fees paid on every grant; that it belonged in the alcalde’s office, the entries being made by the municipal clerk, and that each alcalde transmitted it to his successor. The plaintiff objected to the introduction of this book. The Court overruled the objection, and the book was admitted in evidence, under plaintiff’s exception.</p> <p>The jury found a verdict for defendant. Motion for a new trial made and overruled, and judgment entered on the verdict. Plaintiff appealed.</p>

<p>The Act prescribing the manner of commencing and maintaining suits by or against counties, passed May, 1854, applies as well to claims existing before its passage, as to those which arose afterwards.</p>

The plaintiff filed his bill to quiet title, and for an injunction to restrain the defendant from disposing of certain city lots sold at a constable’s sale, under execution against the city, and bought by the plaintiff from the purchasers at said sale. The defence set up was fraud, and notice thereof to plaintiff. The facts in relation thereto are stated in the opinion of the Court.

<p>The supervisors of a county are a quasi political corporation, and as such the District Courts of this State, by virtue of tbeir general jurisdiction as superior courts, have a supervisory power and control over their proceedings, to the exercise of which appellate power is not necessary.</p> <p>This may be done by mandamus, prohibition or injunction ¡ but their proceedings cannot be reviewed by certiorari.</p> <p>The use of the writ of certiorari is confined by our statute to inferior Courts, and bodies exercising judicial functions.</p> <p>The supervisors, not being judicial officers, nor charged with judicial functions, it results that the writ cannot be properly directed to them.</p>

The plaintiff brought his action against Daniel D. Page and others, constituting the firm of Page, Bacon & Co., for $25,000 damages, for the malicious prosecution and continuation of a civil action against plaintiff, in which defendants caused an attachment to issue, under which plaintiff’s property was siezed and detained for about four months.

<p>When a caso has been once taken to an appellate Court, and its judgment obtained on the points of law involved, such judgment, however erroneous, becomes the law of the case, and cannot, on a second appeal, be altered or changed.</p> <p>And this rule applies not only to questions of law arising in the case, but to questions of jurisdiction.</p> <p>The first point decided by any Court is that the Court has jurisdiction, although it may not be in terms.</p> <p>Otherwise, by the interposition of a new Judge, the law, which has been settled by a majority of the Court for years, might be changed, and a new rule introduced; cases which have been brought to this Court on certiorari, or writs of error, and determined, might be re-opened, and rights that have grown up under them be disturbed.</p> <p>And this evil might extend to practice and pleadings in the Courts below, and the whole administration of justice be thrown into doubt and confusion by every change on the bench.</p>