Volume 7 — California Reports

This was an action of ejectment, to recover possession of certain town lots, in the city of Sacramento. The complaint merely alleges that the grantor of the plaintiff was seized in fee and in possession, of the land, and had conveyed to plaintiff, Billings, and further alleges that defendant is wrongfully in possession, but but does not allege that the title under which he claims is derived from the Spanish or Mexican governments.

This was an action of money had and received, to recover the purchase-money of three hundred kegs of lard. The case, by consent, was tried before the Court, who found the following facts: 1.

Pico and Manso, plaintiffs in the Court below, on the twenty-first of May, 1855, instituted suit against Carillo and Sibrian, for the recovery of a large sum of money. Summons was issued, which, as to the defendant Sibrian, was returned with the following acknowledgment of service: “I hereby waive copy of complaint and summons, and accept service in the County of Contra Costa, this twenty-first day of May, a. n. 1855. his .“Ignacio M Sibrian.” marie.

This was an action against Uicolas Larco, as the guarantor in a charter party. Plaintiff had a verdict for two thousand four hundred and ninety dollars. Defendant moved for a new trial, which being denied, he appealed.

<p>Appeal from an order of the District Court of the Tenth Judicial District, in the County of Yuba, dismissing petition of intervention.</p> <p>Adams & Co., hankers, having a house in Marysville, in Yuba county, failed in February, 1855. At the time of their failure, their agent, in Marysville, deposited, as a general deposit, with Brumagim & Co., the sum of seventy-five thousand dollars belonging to Adams & Co., and which bad been used about their business in said city, the certificates of deposit being taken in the name of Cohen, receiver in the suit of Adams v. Haskell et al. A tax for county purposes was levied on this fund, and payment was demanded, both of Brumagim and the former agent of Adams & Co., who declined to pay it. Many of the creditors of Adams & Co., including the present defendants, having attached the funds in the hands of Brumagim, an action was commenced by the latter firm against Adams & Co., Cohen, receiver, and the attaching creditors, to determine their several rights to the fund, which was paid to a receiver appointed by the Court. In this action, the county of Yuba intervened, claiming a lien on said fund for the amount of taxes assessed against it. Adams & Co., and Cohen, receiver, failed to answer to the petition of intervention, and judgment by default was taken against them. The contest here is between the county of Yuba, intervenor, and certain of the creditors. Judgment was rendered in the Court below, against the intervenor, who appealed.</p>

Covillaud, the plaintiff in the Court below, averred, in his complaint, that on the first day of November, 1850, he was seized and possessed of one undivided fourth interest and estate, as tenant-in-common, with J. M. Ramirez, W. H. Sampson, Chas.

This was an action for the recovery of possession of a mining claim. The only question in the case was, whether the dividing line between the plaintiffs’ and defendants’ claims ran on a course S. 57¿ E., or S. 58 E., from an admitted starting point, the question being whether it ran parallel with the boundary line between the plaintiffs’ claim and the Buckeye claim, the claim adjacent to that of plaintiff on the other side. The evidence on this point was conflicting.

The plaintiff was a purchaser of certain premises at sheriff’s sale. At the time of purchase, the defendant was a tenant of the judgment-debtor, at a monthly rent of one hundred dollars. The defendant had express notice of plaintiff’s purchase, but still paid the rent to the judgment-debtor. The plaintiff sued for the rent before the expiration of the six months allowed for redemption.

<p>A ditch company, who avail themselves of a dry ravine to conduct their water a portion of the distance to their <|am, where they use it, do not abandon the water thus carried by them, and are entitled to the same enjoyment of it as if conducted through an artificial ditch.</p> <p>The natural water in such ravine belongs to the first appropriator thereof, and for either a diversion or appropriation thereof, an action will lie.</p>

The plaintiff filed his bill, praying for an injunction restraining all proceedings upon a judgment obtained against him by the defendant Peabody, and for other equitable relief. The bill sets forth that the case, in which the judgment was obtained, was tried before a referee, who, as it alleges, committed divers errors in the trial thereof.

A judgment entered in vacation is void. Appeal from the District Court of the Seventh Judicial District, County of Solano. In this case, judgment was entered against the defendant by the clerk, on the report of a referee, in vacation. This was the judgment sought to be enjoined in the ease of Phelps v. Peabody, decided at this term. Defendant appealed.

This was an action instituted to recover possession of an undivided one-third of a certain lot of land in San Francisco. Both parties claim title under Louis Lacour; the plaintiff by a deed from Lacour made in 1855; the defendants, under a sheriff’s deed under a judgment obtained against Lacour in 1852—the sheriff’s sale taking place in that year.

<p>The act of April 18, 1856, providing for the erection of a State capítol, at a cost not to exceed $300,000, is unconstitutional and void.</p> <p>The eighth article of the Constitution of this State is an express restriction upon the powers of the Legislature, and there is no power in the judiciary to set it aside, whatever inconvenience may result from a legitimate application of the provision.</p> <p>So far from the necessary and ordinary expenses of the State forming an exception to the restriction, they were evidently among those especially included in it.</p> <p>The power of taxation was given to the Legislature without limit, for all purposes allowed by the Constitution.</p> <p>As to the point raised, that conceding the construction of the Court to be correct, the provision is only advisory, and addressed to the legislative conscience, and not to the judiciary: It seems, that an express restriction upon the powers of the Legislature cannot bo said to be merely advisory.</p> <p>Some of the restrictions upon the powers of the Legislature, are addressed solely to that body, and of which it is the exclusive judge, as the provisions relating to the qualifications, election, and return of its own members.</p> <p>The true rule seems to be this: that when the right to determine the extent and effect of the restriction is either expressly, or by necessary implication, confided to the Legislature, then the judiciary has no right to interfere with the legislative construction.</p> <p>But in all other cases of restriction, it is the right and duty of the Supreme Court to decide the effect and extent of the restriction in the last resort, and the question, whether that right is vested in the Legislature or in the judiciary, must be equally decided by the Supreme Court. a</p> <p>The Constitution is itself a law, and must be construed by some one. The judiciary, from the very nature of its powers, and the means given it by the Constitution, must possess the right to construe the Constitution, in all cases not expressly, or by necessary implication, reserved to the other departments.</p> <p>The Legislature has the actual power to pass any acts it pleases, and the Supreme Court would never interfere to prevent their passage. But when the Legislature transcends its powers, its acts are void, and are not laws.</p> <p>If the Legislature had no right to create a state debt, beyond the limit fixed by the Constitution, it has no right to tax the people to pay a void debt.</p> <p>As to the objection, that to address judicial process to the agents of the State is indirectly to implead the State herself: Held, that under our theory of government, the State has no interest in asking any thing that is not right, nor can she allow her agents to do so. The officer sued is not the State; he is only her servant, and only so in so far as he obeys her laws. The State, or any citizen, has the right to inquire, in the form of a plaintiff, whether an officer obeys or disobeys her laws.</p> <p>In a case where a citizen claims to be injured by an alleged failure of a State officer to do his duty, the State is not a formal party to the record, nor responsible for costs in any event. Nor if the officer has failed to do his duty, can the State be injured by the decision of the Court. Neither can she be injured if the officer does his duty, and is sustained by the Court.</p> <p>The eighth article of the Constitution is mandatory, and not directory, and applies to the current and necessary expenses of government. 0</p> <p>The powers of taxation and appropriation are limited by the eighth article of the Constitution, and cannot be extended to debts contracted in violation thereof.</p> <p>The act of drawing a warrant or paying money out of the treasury, is, in most cases, merely ministerial, and not political, and the officer, in such cases, is amenable to the Courts, and bound by their orders.</p> <p>The Courts cannot interfere with the exercise of the political powers of the Legislature.</p> <p>The power which the judiciary possesses to declare a law unconstitutional, comprehends the necessary authority of carrying its judgments into effect.</p> <p>All debts contracted in violation of the eighth article of the Constitution are void, and the Legislature has no power to levy a tax, or appropriate money for the payment thereof.</p> <p>The claims outstanding, contracted in defiance of the eighth article, can be legalized by being submitted to a vote of the people, in the manner provided by the Constitution, and in no other way. Courts may interfere to prevent the payment of such debts, or the interest thereon, thus unconstitutionally contracted.</p> <p>The case of the People y. Johnson affirmed.</p>

<p>When the plaintiff employs an agent to collect a note due from defendant, and the defendant employs the same agent to collect other notes due him, and apply the same on plaintiff's note, and the agent fails, after collecting money on defendant's account: Held, that unless the appropriation was actually made, the loss occasioned hy the failure of the agent must fall on the defendant.</p>

<p>Where the plaintiff filed his bill to foreclose a mortgage executed by defendants, who admit the demand, but ask that a certain sum be retained in the hands of the Court, to answer a judgment against defendants, to the satisfaction of which they claim that the plaintiff is proportionately liable as a former partner of defendants, although he was not served with process in the case: Held, that it was error to retain such sum in the hands of the Court.</p> <p>Before the liability of plaintiff for contribution is fixed, the defendants must satisfy the judgment, and establish the claim against the plaintiff by action.</p> <p>Those who seek equity should offer to do equity.</p> <p>The fact that plaintiff was about to leave the State, does not alter his liability. The remedy in such case being by ne exeat.</p>

<p>Appeal from the District Court of the Twelfth Judicial District, in the County of San Francisco.</p> <p>Butler, the plaintiff below, set out in his complaint, that at the time, etc., he exercised and carried on the business of a clerk, book-keeper, and accountant, and as such, was employed in various fiduciary capacities for hire and reward, and thereby acguired great gains and profits, etc. That the said defendant, on the fifteenth day of April, 1855, at the city of San Francisco, in a certain discourse which he then and there had, of and concerning the plaintiff, and of and concerning him in his said business and calling as such merchant’s clerk and book-keeper as aforesaid, in the presence and hearing of divers good and worthy citizens of this state, falsely and maliciously spoke and published, etc., certain false, malicious, and defamatory words, in substance charging defendant with saying that Butler, while acting as his clerk, had defrauded him by abstracting his funds, etc.</p> <p>The plaintiff below, had a verdict for five thousand dollars, on which judgment was entered. Defendant moved for a new trial, which being denied, he appealed from the judgment and the order denying a new trial.</p>

<p>Appeal from the District Court of the Twelfth Judicial District, in the County of San Francisco.</p> <p>This was an action for the foreclosure of a mortgage upon certain premises, executed and delivered by Jesse McHenry to the plaintiff, Rix. McHenry, in his defence, set up, that after the execution of the moi’tgage, he applied for the benefit of the insolvent law in the Fourth Judicial District, and that a portion of the mortgaged premises had been set aside by the decree of that Court as his homestead. His wife also filed a petition of intervention, setting forth that she never signed the mortgage, and praying that a part of the premises be set aside to her as a homestead.</p> <p>It appears that defendant McHenry, and his wife, came to this State in 1851, and his wife left this State in March, 1852, on a visit to New Orleans, and returned in June, 1854. During her absence, said defendant purchased the property described in the complaint, and improved a portion of it, with the intention of making such portion his homestead. In September and November, 1853, and in May, 1854, defendant McHenry executed different mortgages upon said premises. The mortgage of plaintiff was executed in May, 1854. Upon the note and mortgage he brought suit in the Twelfth District Court, on the second of June, 1855, making the other two mortgagees parties defendant. On the eighth day of June, the defendant McHenry filed his petition in the Fourth District Court, for a discharge under the act of May 4th, 1852, for the relief of insolvent debtors, and praying the Court to set aside that portion of the mortgaged premises occupied by him and wife as a homestead. On the twenty-first of December, 1855, he filed his answer to the plaintiff’s complaint, in which he set up the proceedings in insolvency, and prayed that the case in the Twelfth District Court, might be certified to the Fourth District Court for further proceedings, and also prayed that a certain portion of the premises be set apart for a homestead. The Twelfth District Court proceeded to final judgment, and McHenry and wife excepted, and appealed to this Court.</p>

<p>Appeal from the District Court of the Twelfth Judicial District, County of San Francisco.</p> <p>Lucas, Turner & Co., the plaintiffs in the Court below, filed a bill against Payne & Dewey and B. F. Moulton, in order to compel Payne & Dewey to perform and execute a trust in favor of complainants, created in the following manner: Benjamin F. Moulton, on the 24th of January, 1854, conveyed to Theodore Payne one of the firm of Payne & Dewey, real estate auctioneers, several parcels of real estate in the city of San Francisco, to be sold by them for and on account of said Moulton; that the value of such real estate was about seventeen thousand dollars; that afterwards the said Moulton drew on Payne & Dewey the following order, which was accepted by them:</p> <p>“ San Francisco, January 24, 1854.</p> <p>“Messrs. Theodore Payne & Go—Will please pay to Lucas, Turner & Co. the proceeds of the sale of certain real estate deeded to you this day to be sold on my account.</p> <p>“ Benj. F. Moulton.”</p> <p>“ Accepted: Theo. Payne & Co.”</p> <p>That at the time of giving the said order, Moulton’s debt to plaintiffs exceeded the sum of sixteen thousand dollars, and the object of this assignment, order, and acceptance, was to secure this debt. That Payne & Dewey re-conveyed to Moulton, without consideration, a portion of the premises of the value of ten thousand dollars, and had sold to other parties various parcels for two thousand six hundred and fifty dollars. Defendants demurred to the complaint on the ground of misjoinder of parties and of causes of action. Demurrer overruled, and defendants answered. In the course of the trial in the Court below, Payne & Dewey called their co-defendant, B. F. Moulton, and offered him as a witness on their behalf; but his testimony was held to be inadmissible. The Court below rendered a decree in favor of plaintiffs and against Payne & Dewey for the amount of their claim against Moulton, from which judgment, and from the order of the Court refusing a new trial, defendants appealed.</p>

This was an information, in the nature of a quo warranto, against the defendant, for usurping the office of captain of police of the city and county of San Francisco.

This was an action, brought by Freeman and others, for the recovery of the possession of a mining claim, before a justice of the peace, who rendered judgment for defendants. Plaintiffs appealed to the County Court, where a trial de novo was had, and judgment entered for the plaintiffs.

It appears from the testimony in this case, that Abell and Stevens purchased a tract of land from one Weber; soon after the purchase, Abel mortgaged all his right, title and interest, in said land to one Humphreys for the sum of eight thousand dollars; after which said Abell, together with Stevens, conveyed two-thirds of the land purchased from Weber, to one Coons, and the remaining one-third, to one Dennison-; the deeds to Dennison and Coons both contain this recital or…

<p>Appeal from the District Court of the Fifth Judicial District, County of Amador.</p> <p>This was an action to recover possession of a tract of land in Amador county, upon which plaintiff had located school-land warrants. It was before this Court in January Term, 1856, and was remanded to the Court below. See 6 Cal., 8.</p> <p>The case was tried before a jury, who found a verdict for plaintiff. Motion for a new trial was made, and overruled, and judgment entered for plaintiff. Defendants appealed.</p> <p>The errors assigned, are so explicitly stated in the opinion of the Court, that no explanation of them is needed, except, perhaps, of the third. The defendants offered to prove, by parol, the pleadings and issues in the case at its first trial, all the records of the Court, except the judgment-hook, having been destroycd by fire. The plaintiff objected to the introduction of such testimony, unless accompanied with a certified copy of the judgment. The objection was sustained under the exception of defendants, wrho could not then produce a copy of the judgment, the judgment-book being at Mokelumne Hill, where the case was first tried, before the formation of Amador county.</p>

This appeal is prosecuted from an order, or judgment, of the District Court of the Ninth Judicial District, dismissing a writ of certiorari, previously issued to the County Judge of Tehama county, commanding him to certify certain proceedings had before him, in a matter involving the granting of a ferry-license.

The defendant was indicted by the grand jury of the county of San Francisco for willfully, etc., appropriating to his own use certain moneys collected by him. as assessor of that county. The defendant moved the Court for a change of venue, and for an order that a commission issue to take the deposition of a witness residing out of the State, The Court refusing to grant either order, the defendant appealed.

The plaintiffs filed their bill for an injunction restraining the defendant from running a ferry within a mile of plaintiffs’ ferry. The facts are the same, as well as the parties, referred to in preceding case of Chard et al. v. Harrison. The Court granted a preliminary injunction, which it after-wards, on the hearing of the case, dissolved. Plaintiffs appealed.

<p>Damages which are professedly laid for the benefit of the public, cannot be recovered in an action brought by a passenger of a stage-coach against the owners thereof, for injuries sustained by reason of the upsetting of the coach.</p> <p>When it appears that the coach at the time of the accident was driven by the servant or agent of the owner, the rule in such cases is that the principal is liable only for simple negligence, and that exemplary damages cannot be imposed upon him.</p>

The plaintiff filed his complaint in the Court below, in the nature of a declaration in trespass vi et armis, and also asking the equitable interposition of the Court by injunction, to restrain further acts of waste and trespass, threatened by the defendants.

The plaintiffs filed their complaint, alleging certain acts of trespass, committed by the defendants, upon the mining-claim of the plaintiffs.

<p>The act of 1855 makes it a misdemeanor to run a ferry for pay, without a license, and provides that no toll-ferry or bridge shall be established within one mile of one regularly established, unless required by public convenience, etc. This does not confer a franchise, upon which, "the owner of an established ferry can maintain a civil action for its infringement.</p> <p>•The remedy, under the statute, is by indictment.</p> <p>The party aggrieved is entitled to.relief in chancery, however.</p> <p>Where a new right is created by statute, the party complaining of its violation is confined to his statutory remedy, so far as the Courts of Common Law are concerned.</p> <p>If,, however, the right existed at common law, the remedy provided by statute is merely cumulative.</p>

The defendant was indicted, and convicted, of the crime of attempting to commit a rape upon a child of the age of four years. The defendant plead not guilty.

While the proceedings in this case were pending in the Court below, the plaintiffs obtained an order granting’an injunction, which was accordingly issued. From this order the defendants appealed to this Court, and gave an undertaking for three hundred dollars. After the appeal was taken, the defendants continued the alleged acts of trespass enjoined by the writ.

<p>Appeal from the District Court of the Fourteenth Judicial District, in the County of Sierra.</p> <p>This was an action by the members of the Bigelow Mining Company against the Cold Spring Mining Company. The first count in the complaint averred that the plaintiffs, being in the quiet possession of certain mining-premises, the defendants, with force and violence, took forcible possession thereof, and extracted therefrom a large amount of gold, to the damage of plaintiffs, in the sum of twenty thousand dollars.</p> <p>2. That the defendants were adverse claimants, and wrongfully withheld possession of a portion of the premises trespassed upon, and engaged in taking therefrom large quantities of gold, etc. That the defendant’s acts were irreparable, and that they were insolvent, and without the interference of the Court, by injunction, the complainants were remediless in the premises, etc.</p> <p>The prayer of the complaint comprehended an injunction to restrain defendants from working the claim during the litigation, the appointment of a receiver to work and control the claim, judgment for damages, and a restitution of a portion of the premises. The demurrer interposed by defendants in the Court below was overruled, and the case tried. Plaintiffs had a verdict for five thousand dollars, and defendants appealed.</p>

<p>Where the complaint in an action on a bill of exchange describes it as payable to the order of A, whereas the bill offered in evidence is drawn payable to B, it is a variance to be taken advantage of by objecting to the evidence, or by a motion of nonsuit.</p> <p>After the motion for a nonsuit, the Court may, upon terms, allow an amendment of the complaint, if it would not operate as a surprise upon the defendant, but if this is not done, the plaintiff cannot recover.</p>

<p>Appeal from the District Court of the Twelfth Judicial District.</p> <p>Application for a mandamus upon the defendant, State Treasurer, to pay, in the order of registration, certain Comptroller’s warrants, issued in payment of labor and material furnished in the erection of the State-prison wall. The Court below denied the application. Plaintiff appealed.</p>

<p>Appeal from the District Court of the Fourteenth Judicial District, in the county of Sierra.</p> <p>This was an action of ejectment, brought to recover the possession of certain mining-claims. By consent of parties, the testimony was taken before a referee, upon which the Court, sitting as a jury, found the facts and conclusions of law, as follows: “ In 1853, the plaintiff in this suit, and one Scanlan, were owners in a mining company, at Chips Flat, Sierra county, known as the Wilkinson Company, Scanlan being the owner of one and one-half shares; and in the month of December, of that year, Scanlan sold his interest to the plaintiff herein, as is alleged, in the bill of sale, for a consideration of eighteen hundred dollars. The sale was made for the purpse of enabling Scanlan to become a witness, in a suit then pending, or about to be brought. Scanlan was at the time indebted to plaintiff, in the sum of fifty to sixty dollars. I find that the sale was not made in good faith, and was without consideration. Subsequent to such sale, Scanlan sold the same interest to other parties, under whom defendants in this suit hold, as innocent purchasers, for a valuable consideration, and they, and those under whom they hold, have been in possession since the spring of 1854. Patrick G-illan appears, at one time, to have paid an assessment on the claim, but whether or not he was ever in possession, I cannot accurately determine. From the above facts, I conclude the defendants are entitled to judgment against plaintiff, for the costs of this suit. Judgment accordingly ordered.”</p> <p>Plaintiff appealed.</p>

On Writ ox Error to the Court of Sessions of Calaveras County. The defendant was convicted of a misdemeanor, under the act of April 17, 1855, entitled an act to suppress gaming.

The defendant was indicted, tried, and convicted, of the crime of murder. On the trial, one of the jurors, being asked if he had such conscientious opinions as would prevent him from finding the defendant guilty, answered that he was opposed to capital punishment on principle. Whereupon the prosecuting attorney challenged the juror, for cause, which challenge was sustained by the Court below, and the juror excluded, under the exception of defendant’s attorney.

This was an action in the Court below against Endicott and his sureties on his bond as sheriff of Nevada county, for refusing to pay over certain moneys collected by him before the expiration of his office.

Arrear from the District Court of the Eighth Judicial District, County of Siskiyou. The facts of this case appear, in the opinion of the Court, with the exception that the relief granted included a dissolution of the copartnership existing between plaintiffs and defendants. Defendants, McDermitt et ah, appealed.

<p>Appeal from the District Court of the Fourteenth Judicial District, County of Sierra.</p> <p>This was an action brought by the plaintiffs, the owners of certain mining-claims on Rabbit Creek, to recover damages for injuries caused to their claims by the flowing back of the water of the stream so as to prevent the tailings of their sluices from being carried off, caused by the erection of a dam by the defendants across the stream, at a point lower down. It appeared on trial, that the plaintiffs were the first locators. The defendants asked Lester, a witness, a question relative to the grade of descent of the river, which was not allowed to be answered, the damages consequent upon the erection of the dam, and the priority of location of the parties, having been established.</p> <p>The second instruction asked for by the plaintiffs, and given by the Court, was as follows:</p> <p>“ If the jury believe, from the testimony, that the plaintiffs, or their predecessors, were first to locate their mining-claims, set forth in the complaint, and that they have not abandoned the same, and that the defendants have built and maintained a dam across Rabbit Creek, below, whereby the plaintiffs are hindered, delayed, and injured in the working and mining of their mining-claims, set forth in their complaint, from April, 1854, to October, 1856 j then, to the extent of that injury, the plaintiffs are entitled to recover, and the jury should so find.”</p> <p>To which instruction defendants excepted.</p> <p>The jury found a verdict for plaintiff!, and judgment was entered accordingly.</p> <p>Defendants appealed.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>The defendants, Pugh and Adams, were partners, and employed plaintiff as a journeyman hatter. The plaintiff alleged in his complaint that he had served the defendants eighteen weeks, and that his services were reasonably worth the sum of fifty dollars per week. The defendant Pugh answered, admitting the services, but insisting that plaintiff was only entitled by the agreement between the parties to thirty dollars per week. The defendant Adams made no answer. On the trial before the Court, setting as a jury, it was proven by plaintiff’s own witnesses, that he was to receive fifty dollars per week, but was only to draw out thirty dollars per week; the other twenty dollars per week to remain in the hands of the firm until the sum of two thousand dollars should be accumulated, when plaintiff was to be received as an equal partner. Before the surplus wages had accumulated to the amount of two thousand dollars, the partnership was dissolved by the mutual consent of defendants. The Court found the performance of the services, and that they were reasonably worth the sum of fifty dollars per week. The defendant Pugh moved for a new trial, which being denied, he appealed to this</p>

This was an action of trespass, against a number of defendants, for breaking plaintiffs’ dam, and destroying plaintiffs’ ditch and flume. The defendants file several answers. That of O'Connell merely denies the trespass. The answer of some of the defendants denies that plaintiffs were the owners of the property.

Action of ejectment to recover possession of fifty vara lot No. 32, in the city of San Francisco. Both parties claim under Domingo Feliz, the original grantee of the land. The plaintiff proved the grant to Feliz in 1843, and a conveyance by Feliz to plaintiff in 1854.

Action of ejectment by the purchaser under foreclosure of one mortgage, brought against the purchaser, under foreclosure of another mortgage by the same party made subsequently. The acknowledgment of the mortgage, under which plaintiff claims, is in these words : “ Personally appeared before me, Edward J. Willis, whose name,” etc., omitting to certify that he was either personally known, or proven to the officer to be the person described in, and who executed the instrument.

The plaintiff and defendant were both attaching creditors of L. Hermann, who had, prior to both attachments, assigned one hundred shares of the American Russian Company to James C. Ward, as security for a loan, and one hundred shares to. George R. Ward, as security for another loan. In both cases, the stock was regularly transferred on the books of the Company, and the mortgagees had full power of attorney to sell, on non-payment of their respective claims.

Writ of Error and Certiorari, from the Court of Sessions in Sutter county. The defendant was convicted in the Court below of the crime of petit larceny and fined the sum of three hundred dollars, from which judgment he sued out first a writ of error, and second, a writ of certiorari.

This was an action against the defendants as co-partners, on a promissory note, that read as follows : “ $1,341 85. New York, May 3,1856. “ Four months after date, we promise to pay, to the order of ourselves, thirteen hundred and forty-one 85-100 dollars, value received, at No. 182 Pearl Street. “A. Van Valkenburgh & Go.” Endorsed “A. Van Valkenburgh & Co.” The complaint did not set out any demand of payment.

<p>The act of 1855, imposing a tax of fifty dollars on every person arriving in this State by</p> <p>sea, who is incompetent to become a citizen, is void.</p> <p>The power of Congress to regulate commerce with foreign nations and among the States,</p> <p>is an exclusive power.</p>

This was an action of ejectment to recover possession of a lot of land in the city of Sacramento. The plaintiff put in as part of his chain of title, a power of attorney, and a subsequent ratification, both of which are set forth in full, in the opinion of the Court, and the force and effect of which constitute the only question in the case.

The return of the officer shows that the prisoner is in custody, by virtue of an order of the Court of the Sixth Judicial District, for refusing to answer certain questions propounded to him as a witness, in a proceeding against Henry Bates, as State Treasurer, to compel the said Bates to file an additional bond of office, as provided by the sixteenth and seventeenth sections of an act concerning the official bonds of officers, passed February 28, 1850.

It appears from the return of the sheriff, that the prisoner was committed by the Court of Sessions of Sacramento county for a contempt of Court, in refusing to answer certain questions propounded to him by the grand jury. It is objected to the warrant of commitment, first. That it does not show that the prisoner was again required by the Court to answer, after refusing to answer before the grand jury. Second. That the questions propounded are not set forth.

<p>; ■ This was an application for a rehearing of an application for discharge of the petitioner on habeas corpus, the petition having, • on the first hearing, been denied. The petitioner was committed for refusing to answer, under order of Court, certain questions .propounded to him by the grand jury, in an examination concerning the disposition of certain moneys taken from the State Treasury.</p> <p>The grounds, taken for the petitioner were that his answer -would disgrace him, and would tend to subject him to punishment for a felony.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>This was action of assumpsit, for goods sold and delivered, and for money loaned. The defence set up was that the credit was not given to the defendant, but to another person. On the trial the plaintiff was allowed to introduce his book of accounts, the only one kept by him, in evidence. The objections taken appear in the opinion of the Court. The Court below gave judgment for the plaintiff. The defendant appealed.</p>

. On the 23d of February, 1855, the plaintiffs, Alvin Adams, I. C. Woods and D. H. Haskell, doing business under the firm name of Adams & Co., failed in business. On the same 23d of February, Adams, one of the partners, filed a bill against Woods and Haskell, the other two partners, averring the existence of a partnership between them, and praying its dissolution.

The plaintiffs, attaching and judgment-creditors of Adams & Co., filed a bill in equity against the defendants, Macy, Low, and Low, and a number of other defendants, praying for a decree setting aside certain conveyances of real property by members of the firm of Adams & Co., to Macy, Low, and Low; the other defendants being alleged to have or claim liens upon the property.

<p>The act to suppress gaming must be construed with the general act concerning criminal proceedings; and where a fine is imposed on a conviction for gaming, the defendant may be imprisoned to enforce its payment. The law does not look to the owners of the house for payment of the fine, as they are only liable where gaming is done with their knowledge.</p> <p>This was an application on habeas corpus for a discharge from imprisonment of the defendant, who was convicted of gambling, and sentenced to a fine of one hundred dollars, and ordered to be imprisoned until the fine was paid.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>This was an action in the Court below for a breach of contract. The plaintiffs, who are fruit dealers in San Francisco, purchased of the defendant, for the sum of four hundred dollars, sixteen-fortieths of the pears growing in a certain orchard. After such sale, the defendant, for the consideration of fifty dollars, executed the following guaranty: “ Having this day sold to Messrs. Nicholas Dabovich & Co., three shares and one-fifth of one share of the pears standing on the trees of the orchard of San Pablo, which orchard is divided into eight shares, I hereby guaranty to Nicholas Dabovich & Co. that the said three shares and one-fifth of one share of said pears will be at his disposal on the trees, free of trouble or annoyance from other parties to him.</p> <p>“San Francisco, June 14th, 1856. Joseph Emeric.”</p> <p>The plaintiffs alleged a demand and refusal to deliver on the part of the defendant. To the complaint there was a demurrer, which was overruled, and judgment for the plaintiffs.</p> <p>Defendant appealed.</p>

The facts in this case, as established by the report of the referee, are as follows: Markwald, Caspari & Co. purchased in Havana an invoice of cigars of J. F. & P. H. Berndes, and directed them to be shipped to Parvenstadt & Schumacker, at New York, directing the Havana house to draw on M. C. & Co.’s agents in London for the price. M., C. & Co. directed the New York house, on receipt of the goods, to re-ship them to San Francisco, paying the necessary duties and charges.

A. A. Selover, on the seventeenth of September, 1855, presented to the Probate Court of the county of San Francisco, a petition, setting forth, among other things: That one James Beckett, at the time of his death, and immediately previous thereto, a resident of the said county of San Francisco, died at the city of Sacramento, on or about the tenth of June, 1854, intestate, leaving a large estate.

<p>Where the defendant, in consideration of the extension, by plaintiffs, of a note held by them against A, executed a guaranty than the same should be paid within a specified time, with increased interest, by the checks of the defendant, and from the proceeds of sales of his own property, and providing that a failure of defendant to comply with his guaranty should operate as a determination of the extension granted to A: Held, that, under the proviso, the plaintiffs must first exhaust their remedy against A, on the original demand, and that then they could compel the guarantor to make good the deficiency.</p>

Suit was brought by plaintiff before a justice of the peace to recover the possession of a horse, and judgment rendered for the plaintiff; execution was issued, and defendant appealed to the County Court. Upon filing the notice and appeal bond, the justice made an order staying the execution. Plaintiff then applied to the County Judge, and obtained a certiorari, upon the ground that the justice had exceeded his jurisdiction in making the order.

This was an action in the Court below for the foreclosure of a mortgage upon certain premises, in the city of San Francisco, executed by defendant, Bunnell. Bunnell answered, and thereon set up that at the date of the execution of the mortgage, he was a married man, and that the mortgaged premises were subject to his homestead right. On the trial of the cause, the Court sent a number of special issues to the jury, who answered them as follows: 1.

This was an action against the Appellant, Kinzer, on a judgment rendered against him, Watson, and one Williams, in the Court of Common Pleas, of Lancaster county, Pennsylvania. The judgment in this case was originally entered on the twenty-fifth of May, 1852. On, the twenty-fourth of September, 1852, the judgment was opened, so to permit the defendants to set up their defense.

<p>Appeal from the County Court of San Francisco.</p> <p>Mary Bennett, at the time administratrix of the deceased, leased certain premises to the defendants, at a certain rent, payable quarterly. The lease was executed in her own name, and did not, upon its face, purport to be executed by her in her capacity as administratrix; but the premises were in fact the property of the estate. Mary Bennett afterwards intermarried with the plaintiff, her letters were revoked, and administration granted to plaintiff. Plaintiff brought suit for rent and obtained judgment by default, and the case was appealed to this Court, and the judgment affirmed at the April Term, 1856. Another suit was afterwards brought for another quarter’s rent, to which defendant, O’Rourke, appeared and pleaded. A trial was had and judgment given for plaintiff, and the case again appealed to this Court, and the judgment was affirmed at the October Term, 1856. Another quarter’s rent becoming due, plaintiff demanded the rent, and the same not being paid, he demanded possession of the premises, which being refused, plaintiff brought suit against defendants, before a justice of the peace, for rent and for unlawfully holding over. The plaintiff obtained judgment for trebled rents and for restitution of the premises, from which judgment defendant O’Rourke, appealed to the County Court of San Francisco. Upon the trial in the County Court, the plaintiff offered in evidence, among other proofs, the lease and certified copies of the records of the Probate Court, to prove the revocation of the letters of Mary Bennett, and the grant of administration to plaintiff, and also a certified copy of the judgment-roll of the last preceding case tried and determined in the Superior Court. The evidence was objected to by the defendant in the County Court, and by the Court excluded from the jury, and plaintiff duly excepted. The County Court having excluded the evidence, gave judgment of nonsuit against the plaintiff, who moved for a new trial, which motion being overruled, the plaintiff appealed to this Court.</p>

Minor S. Martin, the proprietor of a store on the corner of Clay and Kearny streets, in San Francisco, procured an injunction from the Court below against the defendants, proprietors and drivers of cabs, restraining them from using the street in front of his store as a stand for their hacks and cabs. The defendants made a motion to dissolve the injunction, which being denied, they appealed from the order of the Court refusing to dissolve the injunction.

This was an action against the defendants, a wharf company in the city of San Francisco by the plaintiff, as the owner of a horse and cart, for damages sustained by him, while they were engaged in delivering stone ballast to a ship moored at defendants'” wharf.

This was an action brought by the plaintiff, Bliss, against the defendants, for damages sustained by reason of a malicious prosecution. The chief ground of the defence, was that the defendants had acted under the advice of counsel, in preferring a charge of grand larceny, for stealing cattle, against the plaintiff, and causing him to be indicted therefor.

The plaintiffs in this case, creditors of one North, garnisheed the defendants, and under an order of Court, obtained for that purpose, brought this action, alleging that the defendants were indebted to North in the sum of about eleven hundred dollars at the time of the service of their garnishment, and praying judgment against them for the sum of four hundred and twenty-one dollars and seventy-five cents.

In the fall of 1851, certain parties, under whom plaintiffs claim, cut a ditch from a certain ravine in Todd’s Valley, called Main Ravine. In the beginning of 1852, other parties, under whom defendants claim, cut two ditches from the same ravine, and above the ditch of plaintiffs.

This was an action against Flint, the keeper of a warehouse in San Francisco, for the recovery of twenty-five hales of drilling, and damages for its detention. The plaintiff, under the contract set out in the opinion of the Court, gave O. L. North an order on Flint, the warehouseman, in whose warehouse the drills mentioned in the contract were stored, for fifty bales thereof.

The defendant was a corporation with a capital stock of three hundred thousand dollars, divided into shares of one hundred dollars each; certificates of stock were duly issued from time to time; and under the act of April 14th, 1853, the stock was transferable only on the books of the company. The same was required by the by-laws of the company, and stated upon the face of the certificates. In September, 1853, Virginia G-.

<p>Under the charter of the city of San Jose, an ordinance abolishing the office of street commissioner, and substituting fees instead thereof, is legal and binding on the officers.</p>

Appear from the District Court of the Eleventh Judicial District, County of El Dorado. This was a petition for a peremptory mandamus, on the part of the relator, Draper, then one of the supervisors of El Dorado county, against Note ware, then the auditor of said county.

This was an action brought by E. W. Smith, as the guardian ad litem of plaintiff, a minor, against Sullivan, for the rent of certain premises in the city of San Francisco. Judgment in the case was obtained by default. Defendant afterwards, upon affidavits, obtained a rule against the plaintiff to show cause why the default and judgment should not be set aside and defendant permitted to defend.

This was an action to recover from the administrator of Phmnix, deceased, the value of flour taken by the decedent, when acting as the sheriff of Amador county.

The plaintiff was the owner of a house occupied by defendant as his tenant. He was also the owner of a judgment against defendant, obtained before a justice of the peace, for nine hundred and fifty-five dollars, which had been appealed to the County Court. This judgment was for restitution of the premises and for treble damages for holding over.

<p>A ferry-license being a franchise is not the subject of levy and sale under execution. Where the supervisors, in the exercise of their discretion, determined after hearing testimony, that a ferry had not been properly kept, and therefore granted it to another, there is no authority to interfere with their determination; but when they act under mistake of law, and award the license to another supposing that he has succeeded to the rights of the owner of the franchise, the error may be corrected by mandamus, or any other proper proceeding.</p>

This was an appeal, by the plaintiffs below, from an order dissolving an injunction restraining the defendant from digging up or carrying away lime rock, and from cutting down, breaking, wasting, and carrying away any of the redwood timber, or other trees, being on the rancho of Canada del Rincon.

The defendant was indicted, and convicted, in the Court below, of an assault, with the intent to murd,er, one H. Levy, at Wisconsin Hill, in Placer County, by placing, in the night-time, under Levy’s bed-room, a keg containing twenty-five pounds of gunpowder, to which was attached a piece of safety-fuse, ignited at one end, and communicating with the powder. The defendant plead not guilty.

<p>Every intendment is in favor of a judgment of a Court of record, and, until the contrary be made clearly to appear, the Appellate Court is bound to suppose that it was based on proper evidence.</p>

This is an action to quiet title to land. Both parties claim under deeds derived from one Roland G-elston. It appears from the record, that in April, 1852, one Clough, attorney of Gelston, sold a number of lots, including those in controversy, to Reynolds, defendant’s grantor.

<p>• A mere survey and marking lines of a boundary, without an enclosure of the premises, is not a possession in law, unless made so by complying with the statute in reference to the mode of maintaining possessory actions on public lands.</p> <p>The cases of Plume v. Seward, and Murphy v. Wallingford, affirmed.</p> <p>Per Burnett, J.—As to the implied notice arising from the possession of a party under an unregistered deed, it is a question of bad f^ith, and it should be left to the jury whether the subsequent purchaser had actual notice, or such means of notice as to make his negligence a species of fraud.</p> <p>A grantee entering into possession under a deed, thereby acquires no greater possession than his grantor had.</p> <p>The grounds on which registry acts are based, are, that the party who fails to record his deed, places it in the power of his grantor to commit a fraud upon others, and the law holds him responsible, as assisting the fraud.</p> <p>The penalty for failing to record conveyances declared in the statute, must be limited to conveyances as defined by the statute, and cannot, by implication, be extended to instruments for the recording of which it makes no provision.</p>

This was an action on-an arbitration bond. The defence set up, is that the arbitrators, in the matter referred to them, had published their award, in which some of the accounts were left undetermined ; and that, subsequently, the umpire chosen in the case had ascertained and carried the accounts which had been left in blank in the original published award.

Appsal from the District Court of the Thirteenth Judicial District, County of Mariposa. This is an appeal from an order of the Court below, granting an injunction.

On rehearing, the plaintiff, John Andrews, filed his complaint against the Mokelumne Hill Canal and Mining Company, and Allen Cadwallader, setting forth that the plaintiff and Cadwallader had contracted with the Mok.

The plaintiff brought his action for damages to his mining-claim, sustained by reason of the breaking away of a portion of defendants’ ditch, owing to the careless manner of its construction, and the consequent overflowing of plaintiff’s claim. It appeared by the record that plaintiff had located his claim subsequent to the construction of defendants’ ditch.

■ This was an action for damages sustained by plaintiffs, as owners of a mining-ditch, by the construction of another ditch above it, by the defendants, thereby diverting the waters of the stream supplying both ditches. The complaint avers the diversion of the water, alleges the injury, and prays for judgment for damages, and for a perpetual injunction against the defendants.

<p>Where A, a married man, mortgaged the homestead to B, without the concurrence of his wife, and A and his wife subsequently mortgaged to 0; and B and C both foreclosed their mortgages, neither making the other a party; whereupon C Sled a bill against B to set aside the decree of foreclosure of the latter, alleging that the homestead premises did not exceed in value five thousand dollars: Held, that C could urge the same objections to the mortgage of B, that A and his wife could; that B’s decree was a cloud upon the title, and impaired the security, and that 0 was entitled to have it set aside.</p> <p>Any other rule would allow the husband alone the power to obstruct the power of alienation belonging to both husband and wife.</p>

<p>Joint-tenants must join in an action for possession of land jointly held. The failure to do so is fatal to a recovery.</p> <p>The amendatory act of 1855, concerning conveyances, abolishing joint-tenancies, except when expressly declared, can only apply to future, and not to past conveyances.</p> <p>The Legislature is without power to affect past contracts, or to alter or destroy the nature or tenure of estates.</p> <p>The case of Cohas v. Raisin, 3 Cal., 443, affirmed.</p>

The complaint in this case charges that W. W. Wright, deceased, was sheriff, and ex officio tax collector of Nevada county, and that there was in his hands, at the time of his death, certain money belonging to the plaintiff, which had been before that time collected by such sheriff as taxes, under the revenue law of this State; that in November, 1856, defendant was appointed, and entered upon the duties of, administrator of the estate of said Wright, and took into possession…

The defendant D. Samuel commenced suit against defendant Josephson, upon four several promissory notes, due at different times, the last of which was dated May 17th, 1856, and payable six months after date. The suit was commenced on the nineteenth day of November, 1856, and the property of Josephson attached, and judgment subsequently taken against him by default, for the foil amount specified in the notes.

The defendant was indicted on the seventeenth of June, 1856, for the crime of murder, committed on the twenty-second day of March, 1856. He was tried on the thirteenth day of February, and convicted of the crime of manslaughter. Motion being made for arrest of judgment and overruled, defendant was sentenced to eighteen months’ confinement in the state prison, from which judgment this appeal was taken.

<p>Appeal from the District Court of the Sixth Judicial District.</p> <p>The defendant employed one Fragler to furnish materials and build a frame house for three hundred and fifty dollars, and Fragler employed plaintiff as a sub-contractor. After the building was completed, and before the defendant was served with notice of the lien of plaintiff, the defendant paid to Fragler the sum of two hundred dollars, and the remainder of the contract price was garnisheed by certain creditors of Fragler. After this payment and the service of notice of garnishment, but before the expiration of thirty days from the time the building was completed, plaintiff recorded his account, and gave notice thereof to defendant, as required by the third section of the act of April 27, 1855. The defendant appeared in answer to the notice of garnishment, and stated that plaintiff had in the meantime recorded his account, and given notice thereof to him, and asked the justice of the peace to discharge him, which the justice refused to do, but gave judgment against defendant for one hundred and fifty dollars, the remainder of the contract price of the work. The defendant did not appeal from this judgment, but paid the amount, as required by the justice. After this, the plaintiff brought his suit in the District Court to enforce his lien. That Court gave judgment against defendant for one hundred and fifty dollars, and defendant appeals to this Court.</p>

Holland, the plaintiff in the Court helow, brought this action in the form of money had and received, against the city of San Francisco, to recover back the sum of four thousand and seventy-eight dollars, which he had paid defendant on account of certain real estate he had purchased of her at a public sale, on the twenty-sixth of December, 1853.

This was an action to recover for work and labor performed in erecting a house, and to foreclose a mechanic’s lien on the same. Ritter, the present plaintiff, claims, through an assignment, (or pretended assignment,) from Meetier, the mechanic, to whom the money was due. The Court below gave judgment for plaintiff. Defendant appealed.

The plaintiffs levied an execution upon certain goods and chattels, as the property of Pierce and Anderson, and while the property was in the possession of Hill, an officer, the defendant, Waters brought a suit to recover the possession of the same, and executed an undertaking, with the other defendants as sureties, conditioned that the said Waters should prosecute the replevin suit with effect, and make return of the property, if return thereof should be adjudged to said…

This was an action to recover the value of a stock of goods taken by W. W. Wright, defendant’s intestate.

This proceeding was commenced upon the petition of Charles Doane, setting forth various matters, among them, that the County Judge of San Francisco, on the sixth of August, 1856, declared the office of sheriff of the city and county of San Francisco vacant; and that on the seventeenth of July, 1856; the board of supervisors of the said city and county, also declared the said office of sheriff to be vacant, by reason of the failure of the incumbent to file a new bond in…

The defendant was indicted for an assault with a deadly weapon, committed in the city and county of San Francisco, on the person of a Chinaman. On the trial, the only witness examined testified that the offence was committed on the steamer Mew World, while she was about starting or was actually on her voyage from Sacraramento to the city of San Francisco.

<p>Appeal from the District Court of the Fourteenth Judicial District, County of Sierra.</p> <p>The plaintiff recovered judgment in the Court below, on the fourteenth of July, 1856, for a small sum of money. Afterwards, he moved for a new trial, which being granted, the case was retried, and judgment again entered for plaintiff, on the tenth of October, 1856.</p> <p>On the same day, defendant gave notice of appeal from “ the order granting a new trial, and the judgment entered on the tenth of October, 1856.” The record contains a portion of the proceedings of both trials, so intimately connected as to make it impossible to separate one from the other. The statement of the case is neither signed by the Judge, nor agreed upon by the parties; and the points made in this Court by appellant, are confined. to the alleged irregularity of the order granting plaintiff a new trial, and to certain instructions given to the jury at the second trial.</p>

This was an amicable proceeding by the appellants against the defendant, as tax-collector of the county of Sacramento, to compel him to receive the sum of two hundred and ten dollars, in Comptroller’s warrants, in lieu of cash, for the State tax on their property. A rule having been obtained in the Court below, against defendant, to show cause, etc., on the return thereof, it was discharged, and judgment rendered, dismissing the petition, from which this appeal was had.

This was an action in the Court below upon a forfeited recognizance. Alfred Shelly was indicted for manslaughter, and admitted to bail in the sum of twenty-five hundred dollars. On the trial of the cause he failed to appear. The defendants, as sureties upon the undertaking, demurred to the complaint, for the following causes: First, Because the suit was not ordered to be brought.

The defendant was indicted, tried, and convicted, of the crime of perjury. The indictment sets forth the Court, the date, and the action, in and upon which the alleged perjury was committed, as well as the question put to defendant and his alleged perjured answer. It also avers that the question and answer were material andimportantto the ease.

<p>Appeal from the District Court of the Twelfth Judicial District, County of San Francisco.</p> <p>This was an action to recover from Scannell, sheriff of the County of San Francisco, a certain bark Madonna. The testimony shows, that one Conway had instituted suit against the Madonna, to recover damages resulting to his vessel from a collision with the former; that the suit was not commenced by attachment, nor had any attachment issued; that pending this suit, the plaintiffs purchased her, and went into possession; that after the sale to plaintiffs, Conway recovered judgment for the sum of one thousand three hundred and forty-eight dollars, and costs, and caused an execution to issue thereupon, which was levied by defendant upon the vessel, by seizing and taking her into actual possession. It further appeared, that the former owners of the bark had appealed to the Supreme Court from the judgment rendered in favor of Conway, and had filed a bond in the sum of three hundred dollars. The Court below rendered judgment in favor of plaintiff, for the possession of the vessel. Defendant appealed.</p>

<p>An instrument setting forth that A “has this day sold” a piece of land to B, for a sum of money then paid, and a further consideration agreed to be paid; and further providing that, on payment of said further agreed consideration, the said A “ binds himself, his heirs, etc., to make a general warranty-deed of said land free and clear from all persons claiming through or under himHeld, to be an executory contract for a deed, and not a present conveyance.</p> <p>Although the word “ sold” is used, it must be construed with the whole of the instrument to ascertain the intention of the parties. If the parties had considered it a present conveyance, they would hardly have omitted all express words defining the kind of estate intended to be conveyed, whether for years, for life, or in fee simple.</p> <p>The grantor’s relation to the land, in such a case, is an equitable lien upon the purchase-money, holding the legal title as security for the enforcement of the lien.</p> <p>The possession of the grantor is that of a purchaser, which could be only terminated either by legal .proceedings to enforce the lien, or by sale to an innocent purchaser; and such possession, if maintained, would be sufficient notice to put a subsequent purchaser upon inquiry.</p> <p>Where the plaintiff and defendant both derive title to land from the same person, the plaintiff is estopped, by his purchase, from denying the title of their common grantor for the purpose of establishing a title in himself by virtue of location of the land under school-land warrants.</p> <p>And where the plaintiff only proved conveyances from the common grantor, the objection that he established no title in the grantor is cured, if the defendant sets up in defence his own conveyance from the same person, he being then estopped from denying such title.</p> <p>In ejectment, one, or many defendants maybe sued, and they may answer separately, or demand separate verdicts; if they do not, they will be concluded by a general verdict.</p>

<p>It is not good ground for a new trial, that the defendant discovered material testimony at too late a period to produce the same at the trial. It would, however, be good ground on which to base a motion for continuance.</p> <p>A party is bound to know the materiality of testimony, except in the case of surprise at trial.</p>

<p>Appeal from the District Court of the Sixth Judicial District.</p> <p>This was an action by the city of Sacramento against John Kirk, and his sureties, Samuel Norris and John A. Read, for the breach of a contract dated the tenth day of October, 1853, for the erection of water-works in the city of Sacramento. The testimony in the case showed that the contract was entered into on behalf of the city in conformity with an ordinance previously passed, and that the chairman of the committee on contracts and the mayor were therein authorized to sign the same; that P. H. Burnett and Jas. R. Hardenbergh signed the contract on behalf of the city, and that after the execution thereof, it was reported to the common council, and ratified by them; that at this time, P. H. Burnett was chairman of the committee on contracts, and Jas. R. Hardenbergh, mayor.</p> <p>The defence was, that after the signing of the contract, a different one was made in parol, and that under the latter, Kirk had gone on and completed the work in conformity therewith, under the sanction of the authorities of said city, and that the work had been accepted by them. On the trial, counsel for defendant, Norris, askqd a witness, Hardenbergh, the following questions, which the Court refused to permit the witness to answer. To which, the defendant excepted:</p> <p>1. Was the water-works building built at the same place agreed on by yourself and Mr. Burnett, on the part of the city, and Mr. Kirk, the contractor, when the contract was first let out and entered into ?</p> <p>2. Was it built of the size and height as specified in the written agreement ?</p> <p>3. Was the contract mutually altered by yourself, Mr. Burnett, and Mr. Kirk ?</p> <p>4. Did the city afterwards accept the work as now done ?</p> <p>5. Did the city pay (in bonds) for the new work at the same or greater or less price than that originally agreed on ?</p> <p>The Court below refused to allow those to be answered, on the grounds that no change in the original contract could be made by the city, except by ordinance, properly authenticated by the city records; and that if any was so made, it must be proved by the introduction of the ordinance, or city records, authorizing the same.</p> <p>Plaintiff had judgment for three thousand eight hundred and seven dollars and sixty-five cents. Defendants moved for a new trial, which, being denied, they appealed from the order denying the same and the judgment.</p>

<p>Appeal from the District Court of the Sixth Judicial District.</p> <p>The complaint in this ease sets out that in the year 1855, the plaintiff delivered to defendant the sum of nine hundred and forty dollars, to be used by him in the purchase of gold-dust for plaintiff, for a certain commission of five dollars on each one thousand dollars’ worth of gold-dust bought.</p> <p>“ That the said defendant, although often requested, has hitherto failed and neglected to account for and pay over the aforesaid sum of nine hundred and forty dollars, either in money or its equivalent in gold-dust, or any part thereof, except the sum of two hundred dollars, leaving a balance of seven hundred and forty dollars due and unpaid.</p> <p>“ That the time has long since elapsed when the said defendant should have accounted for and paid over the said sum of seven hundred and forty dollars, or its equivalent in gold-dust.”</p> <p>The answer admitted the receipt of the money, and the terms of the agreement, but averred that defendant acted in the premises as the agent of plaintiff. That he had converted a portion of the money into gold-dust, which, with the remainder of the money, had been stolen.</p> <p>That he had used reasonable care, diligence, and skill in the custody and preservation of the same. The answer specifically denied a demand. At the trial, after plaintiff had rested his case the defendant moved for a nonsuit on the ground that no demand was alleged or proved. The Court denied the motion, and afterwards instructed the jury “ that no demand was necessary in this action.”</p> <p>Judgment for plaintiff, and defendant appealed.</p>

On the trial of this ease in the Court below, certain instructions were refused, and certain other instructions given, without exception by either party. The jury having found a verdict for the plaintiff, the defendants then, for the first time, excepted to the action of the Court in refusing and giving the instructions. Motion for new trial was overruled, and judgment entered for plaintiff. Defendants appealed.

The defendant, Strode, made his promissory note, dated November 30, 1853, and payable six months after date, to defendant, E. L. Beard, or order, for one thousand dollars. The note was endorsed in blank by Beard, and passed to Julius 3L Rose, who afterwards passed it to plaintiff.

This was a proceeding in the District Court of the Twelfth Judicial District, under the q>rovisions of the three hundred and tenth, and following sections, of the Practice Act, against the defendant, for unlawfully holding and exercising the office of sheriff, of the County and City of San Francisco.

<p>A judgment "of reversal” in the Supreme Court is not necessarily a bar to further proceedings in the action. The opinion rendered with the judgment is advisory to the Court below; and after the reversal of an erroneous judgment, the parties have the same rights which they had originally.</p> <p>If a judgment is pronounced by a Court having jurisdiction, no matter how irregular it may be, it must stand until set aside or reversed on appeal; but when entered by a mere ministerial officer, without authority of law, it is void.</p> <p>Where two defendants are jointly sued, and service had on both, the clerk of the Court has no authority to enter judgment by default against one, and his act in so doing is without color of law, and void, and may be disregarded or set aside.</p> <p>But where the plaintiff established his right to recover against both defendants, judgment should be entered against them after setting aside the void entry of the clerk.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>The plaintiff, on the thirty-first day of October, 1853, leased of the defendant Battelle, a certain lot in the city of San Francisco, for the term of ten years, commencing the fifteenth day of Movember, 1853, at a monthly rent of three hundred and fifty dollars, payable monthly in advance, with the privilege, on the part of the lessee, to continue the lease, upon the same terms, for five years longer. There is a clause in the lease, that at the expiration of the term, the brick house, then being erected on the premises, should be appraised, and the lessor should take it at two-thirds of its appraised value. There is also a clause in the lease, in these words: “ And it is further agreed and covenanted, by and between the parties hereto, that the brick building, now being erected on the said demised lot of ground, shall always be and remain, as the same is hereby declared to be, mortgaged as security for the payment of the monthly rent herein stipulated.” This instrument was only recorded among “ Leases.” The defendant Battelle, completed the building, and on the seventh day of March, 1855, borrowed of defendant Jenny Tyler, the sum of ten thousand dollars, and mortgaged the lease to her agent for her benefit, who assigned the same to her for the purpose of securing the repayment of the loan. On the twenty-fourth day of January, 1856, the defendant Battelle, assigned. all his interest in the lease to defendant Tyler, who thus became the tenant of plaintiff, and paid him regularly the rents falling due after the assignment of the lease to her. The defendant Battelle failed to pay the rents falling due before the assignment, amounting to the sum of three thousand three hundred and fifty-eight dollars and twenty-five cents. The plaintiff brings this action to foreclose the mortgage upon the building. The defendant Tyler, answered, admitting the due execution of the lease, alleging the loan to Battelle, his mortgage and assignment of the lease to her, and denying that she had any notice that any rents were unpaid, and also denying all priority of lien upon the building. The defendant Battelle (or both) put in a separate answer, denying the right of the plaintiff to bring this action under the covenants of the lease, and alleging that he has no interest in the lease, having assigned the same to defendant Tyler, and objects that he is made a party to the suit. The plaintiff put in a separate demurrer to each of these answers, which were overruled by the Court, and plaintiff appealed to this Court.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>The following findings of the Court below, taken in connection with the facts stated in the opinions of the Court, fully explain the case:</p> <p>1. That for some time past, prior to the first of January, 1856, the husband of the plaintiff was engaged in selling clothing in the city of San Francisco, and was in debt to various persons.</p> <p>2. That by virtue of judgments obtained against the husband, his entire stock was sold at public auction by the sheriff, about the last of December, 1855, to pay said judgments.</p> <p>3. That the plaintiff, on the eighteenth day of January, 1856, in conformity to the statute of California, entitled “Anact to authorize married women to transact business in their own name as sole traders,” passed April 12th, 1852, commenced the business of selling ready-made clothing in the city of San Francisco, in her own name, and on her own account.</p> <p>4. That on the twenty-sixth day of February, 1856, the defendant™ this case, by virtue of an execution in favor of one Carter, and against the husband of plaintiff, did levy upon and seize the property of plaintiff, and sell the same under execution.</p> <p>5. That the goods so seized and sold by the sheriff, were exclusively the property of plaintiff, except six hundred and fifty dollars’ worth, purchased with the money belonging to her husband, and liable for his debts.</p> <p>6. That the amount of goods sold by the sheriff belonging to plaintiff, was of the value of eight hundred and fifty dollars, exclusive of the six hundred and fifty dollars, which was liable for her husband’s debts; and that, by the acts of defendant, she sustained damage to the amount of one hundred and fifty dollars, for which sum, together with the value of the goods belonging to the plaintiff as sole trader, amounting to one thousand dollars, the plaintiff is entitled to judgment against defendant.</p> <p>Judgment being rendered against defendant for one thousand dollars, and his motion for a new trial being denied, this appeal was taken from the judgment.</p>

<p>Appeal from the District Court of the Twelfth Judicial District, County of San Francisco.</p> <p>This was an action of ejectment for the recovery of the possession of fifty-vara lot FTo. 195, in the city of San Francisco. The plaintiffs rely on a conveyance to them in 1854, from Maximo Z. Fernandez, the original grantee of the lot. The defendants, James Lick and Jean Ducau, claim title, each to one-half of the lot, under conveyance by Fernandez to José Jesus Koé, in 1846, and by conveyance from Koe. All the title-deeds of defendants were duly recorded, except the conveyance of Fernandez to Koé, which was as follows:</p> <p>“ Por el presente doy poder amplio y bastante á Don José de Jesus Hoé, para que use ó disponga de mi solar que tengo concedido, como mejor paresca; y para que conste, doy el presente poder, en el punto de Yerba Buena, el día de Octubre, 1846.</p> <p>“ Maximo Z. Fernandez.”</p> <p>Defendants proved that Fernandez had not yet taken his grant from the alcalde’s office, at the date of the above, and that FToé, in pursuance of the above, took the grant from the alcalde’s office, paying the municipal dues thereon, put improvements on the lot, and, subsequently, sold it in his own name to the plaintiffs. Defendants also proved a verbal sale of the lot by Fernandez to Roé, accompanying the above instrument. Defendants also proved a possession of the lot for over five years preceding the commencement of this suit. Both defendants purchased in 1848 and 1849, and Ducau has had possession ever since of the original petition and grant, as well as of the instrument set forth from Fernandez to Noé.</p> <p>The Court below charged the jury, that if, at the time Fernandez executed the deed to plaintiffs, the defendants were in the visible and exclusive possession of the premises in controversy, such possession would be sufficient to put the plaintiffs on inquiry, and charge them with notice of defendants’ rights. The jury found a verdict for defendants, and judgment was entered accordingly. Plaintiffs 'appealed.</p>

<p>Where defendant sold a lot to plaintiff, by deed of bargain and sale, for six thousand dollars, and plaintiff, supposing himself to be the owner thereof, paid taxes thereon, and afterwards discovered that his grantor had previously conveyed the lot; and the Court finds, as a fact, that defendant knew of his prior conveyance, and that the money was fraudulently obtained; the procurement, by defendant, of a full title to the lot, and a tender of conveyance of the same, to plaintiff, will not bar the plaintiff's recovery of the purchase-money, and interest.</p> <p>It is immaterial whether a party, thus misrepresenting a material fact, knew it to be false, or did not know whether it was true or false.</p> <p>Even where there is no intention to deceive, there may be such an amount of gross carelessness as to constitute conclusive evidence of a fraudulent intent.</p> <p>Where a party knowingly misrepresents material facts, the law will not permit him to derive any benefit from the transaction.</p> <p>The injured party may elect to rescind the contract, or proceed upon the covenants of his deed.</p> <p>The objection that there is a defect of parties to the complaint, must be taken by demurrer or answer, or it will be deemed to have been waived; but the defendant may object on the trial, if the proof does not sustain plaintiff's allegations, as to his right of action. *</p>

Plaintiff brought this action in the Court below to recover the sum of two thousand eight hundred and fifty dollars, the alleged value of her labor and services from ¡November 1, 1853, to February 1,1856. This was an action brought to recover compensation for certain services, and the only question presented was whether the services were gratuitous or not.

<p>An appeal will lie to this Court, after final judgment, from an order refusing to discharge an attachment.</p> <p>An order refusing to discharge an attachment cannot be appealed from before final judgment. It is no objection to an undertaking on attachment, that it is made payable to the People</p> <p>of the State of California, instead of the defendant in the suit, as the latter can sue thereon in his own name.</p>

By the. act of the third of May, 1852, the office of gauger of wines and liquors was created, and the term of office fixed at the period of two years, the office to be filled by the appointment of the Governor, by and with the advice of the Senate. From the agreed statement, it appears that on or about the twentieth day of May, 1852, William H. Hoburg was duly appointed, commissioned, and qualified, and was duly re-appointed at the expiration of the first term.

<p>Where a permission to occupy certain lands, for grazing purposes, was granted by the Governor of California, under the crown of Spain, to a Californian, and after the death of the grantee or tenant, his heirs made application to the authorized officers of the Mexican Government, the then sovereign power, for a cession of the same land, setting forth the loss of the original grant of possession, made to their ancestor; upon, which a decree was made, by the Mexican Governor, declaring them to be entitled thereto, and reciting that the Governor had seen the original grant to the ancestor, under which decree a grant, or deed, was made to the heirs: JECeld, that the latter was a recognition of the title in the ancestor, and not an original grant to the heirs. The government, having thus, by a solemn decree, declared that the original title was in the ancestor, is estopped from denying such admission, or re-granting the premises to another.</p> <p>The recitals in the latter grant must he governed by those of the decree, in conformity to which it was issued.</p> <p>Nor is this conclusion altered by the fact that the grant to the heirs contained the usual conditions inserted in all original grants from the Mexican Government.</p> <p>It follows, that where the heirs having made partition, and under the decree the grants were made severally to the heirs ,* that a grant made to the widow of one of the heirs (they having children,) in accordance with the decree, enured to the heirs of her deceased husband by their marriage, and that a sale by her, of the land, was void.</p>

<p>The word “ agent” appended to the signature of the agent, is not mere e< descriptio personen” but is the designation of the capacity in which he acted.</p> <p>Where a bill of exchange was headed with the name of a banking-office, and when paid, was to be charged to that office, and was signed by a person as agent: Seld} that the agent was not personally responsible thereon.</p> <p>An agent cannot delegate discretionary powers, but he may delegate mere mechanical powers or duties.</p>

<p>Appeal from the District Court of the Twelfth Judicial District, City and County of San Francisco.</p> <p>The plaintiff filed a bill in chancery to foreclose a mortgage given to the plaintiff, by description, as receiver, to secure a certificate of deposit for about one hundred thousand dollars. The answer sets out, that a suit is pending in the Fourth District Court, upon a bill filed by Adams and Haskell et al, alleging insolvency, for a dissolution of partnership, the distribution of assets among the creditors, and a receiver. That the said Maglee was appointed, and is receiver; that the certificate of deposit was given for money belonging to Adams & Co., which money is to be distributed to the creditors pro rata; that by an order of the Fourth District Court, the creditors of Adams & Co., were required to file their claims for allowance, within a given time, before a referee appointed by the Court; that the said referee has made his report, and from the report it appears there will be a dividend out of the assets of about ten per cent, to all the creditors; that the defendants, who are copartners, under the firm-name of Palmer, Cook & Co., are creditors of Adams & Co. to the amount of five hundred and sixty thousand dollars, which has been allowed by the referee in his report.</p> <p>The answer further sets up, that Roman, Cohen and Jones, were once assignees of Adams & Co.; that they were in fact custodians of the funds of Adams & Co., appointed by the Court, and in the care of the estate committed to them, they were compelled to expend large sums of money, amounting in the whole to about fifty thousand dollars; that they were compelled to deliver up the custody of the estate to the present receiver, before having their accounts adjusted, or any allowance made them for said expenditures, and not having the means to supply the deficiency created by these expenditures, the amount was advanced by the defendants, who are, therefore, legally and equitably entitled to the amount of said allowance when the same shall be made; that by order of the Judge of the Fourth District Court, a referee has been appointed to inquire into, and report upon, the amount of said claims, and that said reference is now pending.</p> <p>The answer prays an order restraining the receiver from proceeding to a decree of foreclosure, until the several amounts due the defendants are ascertained, so as to be equitably set-off. The Court refused to allow the defendants to prove the facts set up in the answer, to which refusal defendants excepted.</p> <p>A decree of foreclosure was granted in the Court below for the full amount of the certificate of deposit. Defendants moved for a new trial, which being denied, they appealed.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>Plaintiff recovered a judgment against the defendants on the first of May, 1856, and caused an execution to be placed in the hands of the sheriff, who on that day had sufficient property in his hands, consisting of the stock and furniture of the Franklin Restaurant, by'virtue of a writ of attachment in the suit, to satisfy the judgment. The same day the plaintiff stipulated with defendants that if they would pay him two hundred and seventy-eight dollars and eighty-two cents, on the fifth of May the execution should be suspended for one month; and then, if one hundred and twenty-five dollars should be paid, a suspension for another month should be given; and so on, from month to month, until all should be paid; but if defendants failed to make their payments the sheriff should proceed to sell. The property in the meantime to be considered in charge of a mutual friend, as the sheriff’s keeper, and that officer released from its safekeeping, and written orders were given the sheriff in conformity with the above. On the second of July, 1856, the sheriff returned the execution, its time having expired, and on the twenty-eighth of August, an “alias” issued. The monthly payments were punctually paid by the defendants up to the fifth of August, 1856, which stayed the execution until the fifth of September. On the twenty-second day of August, 1856, the same effects were attached by Baker & Corbinier for about six hundred dollars ; on the twenty-sixth of August, the goods were sold for about one thousand four hundred dollars. The sheriff refusing to pay over the money arising from the sale until the rights of plaintiff and Baker & Cordinier were determined, a rule was procured by plaintiff against him to show cause why he should not satisfy his execution against defendants. At the hearing thereof, the Court below decided that plaintiff had lost his priority, and the claim of Baker & Corbinier must first be paid out of the funds arising from the sale. From this order plaintiffs appealed.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>Baker having commenced a suit in equity against Bartol, praying for the appointment of a receiver, and other relief, the Superior Court made an order therein, at the suggestion of Bartol’s counsel, that if Bartol, within five days, filed a bond conditioned to account in the sum of sixteen thousand dollars, the motion for a receiver would be denied. Bartol accordingly filed such bond, signed by himself as principal, and J. L. Riddle and I. Ward Eaton, as sureties, which bond was made payable to the People of the State of California. In this suit, a final decree having been rendered against Bartol for the sum of nineteen thousand nine hundred and twenty-five dollars and sixty-five cents, and two hundred and twenty-three dollars and eighty cents costs, a copy of such decree was served upon the makers of the bond, and payment demanded, which being refused, plaintiff brought this suit thereon. Ward and Riddle denied tneir liability, on the ground that the bond being payable to the State of California, plaintiff had no right to sue thereon, and that the order of the Superior Court, requiring Bartol to file the bond, was void. Judgment was rendered in favor of plaintiff. Defendants moved for a new trial, which being denied, they appealed.</p>

This was an action of replevin, to obtain possession of certain cattle and horses. The defendant justified having taken the property, under a writ of attachment issued out of the Sixth District Court, in an action brought by Samuel Norris against Burtis and Foster, and directed to the defendant as coroner of Tuba county; the sheriff, plaintiff in this action, being alleged to claim some interest in the property.

Nickerson, the plaintiff in the Court below, brought an action against the California Stage Company to recover the possession of a horse of the value of four hundred dollars, and claimed a delivery of the horse at time of commencing suit.

This was an action to recover the amount of a check drawn by defendant on Page, Bacon & Co., the circumstances of which are fully explained by the findings of the Court below, to wit: 1.

Howard & Wilber contracted with defendant, Dawes, to erect a building on a certain lot owned by him, in San Francisco county. Dawes agreed to pay to the contractors certain sums of money during the progress of the building, and at its completion to convey to them a certain other lot of land, described in the contract.

The Sacramento Talley Railroad Company applied to the Court below, under the act of 1853, for the appointment of commissioners to ascertain and assess the damages suffered by defendants by reason of the appropriation of their land necessary for a right of way, and the construction of a railroad thereover.

<p>The act of 1851, creating the board of fund commissioners of San Francisco, was a law authorizing a contract between the city and her creditors, who surrendered the old indebtedness and took a new security, bearing a different rate of interest. This transaction was in the nature of a new contract, and the law authorizing it entered into and became part thereof, and cannot be altered or amended so as to impair or destroy the rights of parties under the contract.</p> <p>The provisions of the Consolidation Act of 1856, requiring that the sinking fund created by the act of 1851 should be first exhausted by the redemption of certificates of stock, before the treasurer should make payment annually of the sum of fifty thousand dollars, set apart by the first act for the paymemfc of interest and for the sinking fund, are unconstitutional.</p>

This action was brought against L. Curtis and Geo. E. Clarke, and separate writs served upon each defendant. After service, and without notice to any one, the name of James M. Curtis, by order of the Court, was substituted for that of L. Curtis, and judgment by default taken to be enforced against the joint property .of James M. Curtis and George E. Clarke, and against the separate property of Clarke.

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>This cause first came before this Court on the appeal of both parties from the decree and portions thereof of the Court below, and was reversed and remanded for farther proceedings at the October Term, 1856, of this Court.</p> <p>The case was then re-tried in the Court below, and a decree identical with the first one rendered, from which the defendants appealed, both parties stipulating that the transcripts of the proceedings at both the trials should be used as the record on the second appeal. Both records, taken together, exhibit the following facts:</p> <p>On the twelfth of September, 1849, Laffan, Coit, and Morse, were the owners of a lot of ground in the city of San Francisco, fronting on Clay street, and lying between Dupont street and Brenham Place. They then entered into a written contract with Adler and Chappelle, by which they sold them a portion of the lot for thirty-three thousand dollars, to be used for the purposes of a theatre; and as to the remaining portion of the lot, it was agreed between the parties—■</p> <p>1. That Laffan, Coit, and Morse, should hold the legal title, and that Adler and Chappelle should improve the property by erecting buildings thereon.</p> <p>2. That it should be regarded as partnership property, the value of the land representing the interest of defendants, and the value of the improvements, the interest of Adler and Chappelle.</p> <p>3. That the buildings should be let, and the net profits divided between the partners, in proportion to their respective interests.</p> <p>4. That the premises should be let as fast as buildings could be erected.</p> <p>5. That part of the premises might" be sold when it could be done to advantage.</p> <p>6. That a treasurer should be appointed to keep the books of the concern, to collect the income and distribute the profits, according to the respective shares of the parties.</p> <p>7. That this arrangement was to continue for the term of three years, the premises then to be divided; or they might be sold, and the proceeds divided; or they might be again leased, for the common benefit of the parties.</p> <p>Subsequently, Henry Gunter, the plaintiff in this suit, became subrogated to all the rights of Adler and Chappelle in the contract, with the exception of the theatre lot.</p> <p>Afterwards, Gunter erected a large iron building on the premises, at a cost of eighty-six thousand dollars, which was after-wards leased to the United States for a post-office, at a monthly rent of seven thousand dollars. In this lease Gunter joined. This house was leased on the first of February, 1850. A portion of the lot not covered by the Portsmouth House was sold by Laffan, Coit, and Morse, to the county, in June, 1850, and another portion was let for the purpose of building Wilson’s Exchange, in September, 1850.</p> <p>Laffan acted as the treasurer and book-keeper of the concern, and collected its revenues.</p> <p>Gunter borrowed a large sum of money of one J. J. Starkey, and in order to secure it executed and delivered to Starkey an instrument in the nature of a deed of trust on his interest in the concern, which authorized Starkey to collect his portion of the rent, and also whatever money might be due him under the contract.</p> <p>Starkey received under the trust upwards of twelve thousand dollars, but before his debt was paid, a judgment was obtained in the Superior Court by Lockwood, Hackett & Judah, for four thousand dollars, against plaintiff Gunter, which judgment, defendant Holmes, as the attorney-at-law of defendant Laffan, purchased for the sum of one thousand dollars, under which he caused the entire interest of Gunter to be sold, Holmes, acting for Laffan, becoming the purchaser thereof. Prior to the sale under this judgment, Starkey, as trustee, filed a bill against Laffan et al., for settlement of the rent account, which case was compromised, and a contract entered into by Starkey, as trustee of Gunter, by which a certain sum was to be paid to Starkey on account of the interest of Gunter, and an interest in the property of two-fifths secured to Gunter. After Holmes bought at the •sale and had obtained the sheriff’s deed of Gunter’s interest, he sold to one S. L. Burritt, the attorney of Starkey’s executor, two-thirds of the interest purchased by him at the sheriff’s sale, which interest was re-sold to Holmes for six thousand dollars in three per cent, scrip, by Burritt. This arrangement between Holmes and Burritt was” known to Gunter, who claimed the benefit thereof, and charged that Burritt acted as his attorney in the matter. Gunter afterwards not being able to procure a settlement with Burritt regarding this six thousand three per cent, scrip, of which he claimed one-half, assigned his claim therefor for a valuable consideration, to Peck & Wilson, who instituted a suit against Burritt therefor, in the Superior Court, which suit is still pending. In this case, Peck and Wilson examined Gunter as a witness, by having his deposition taken, which was afterwards used in the suit.</p> <p>The substance of Gunter’s testimony in this suit was, that he was familiar at the time, with the negotiations between Holmes and Burritt, and that he had acquiesced in the arrangement made by them;, and that he knew of the sale of his interest acquired by Burritt, for the six thousand dollars in scrip, and had agreed with Burritt to take one-half of the same as his part.</p> <p>The decree of the Court below declared the deed from the sheriff to Holmes void, as he was the mere attorney of Laffan in procuring the same; and that as Laffan had money in his hands at the time, sufficient to pay the debt which belonged to Gunter, and that as Laffan’s position was one of trust and confidence, he could not t^ke advantage of his position to sell out his co-tenant or co-partner, and become the purchaser of the same.</p> <p>Also, that the interest of Gunter in the property remained unaffected by the sale; and that an account be taken between the parties on the basis of the original agreement, except that it holds the compromise of Starkey valid up to that point of time.</p> <p>Starkey died, in 1852, but on his death-bed admitted that, by July of that- year, Gunter’s debt to him would be fully paid.</p> <p>Between the interval of the first and second appeal in this case, Henry Gunter died, and his wife, as administratrix, was substituted as plaintiff in this case. On the trial of this case, the deposition of Gunter, taken in the case of Peck & Wilson v. S. L. Burritt, was introduced in evidence by the defence, also the complaint, which was sworn to by Henry Gunter, on behalf of the plaintiffs, Peck & Wilson. There was some evidence going to show that a portion of the money collected by defendants for rent of the premises, was expended by them in the construction or purchase of Wilson’s Exchange, which.the plaintiff claimed the right to follow, and to be entitled to an account of the rents derived from the same. The Court below in its decree, excluded that property, and the rents derived therefrom, from its final decree; and plaintiff’s appeal was confined to such refusal by the Court below. Defendants appealed from the final decree and all the interlocutory proceedings.</p>