Volume 8 — California Reports

This was an information in the nature of a quo warranto to try the title to the office of resident-physician of the insane asylum of California. The relator claims the office by an election by the Legislature on the thirteenth of March, 1857. The defendant claims title to the office by virtue of an appointment made by the Governor on the twenty-ninth of April, 1856, for the period of two years from the date of said appointment.

This is an appeal taken by the defendant from a judgment rendered against him in the Court below, in an action brought by the sheriff of San Joaquin county, against defendant under the two hundred and twenty-fourth and two hundred and twenty-fifth sections of the Practice Act, to recover the sum of six hundred and seventy-five dollars—a loss alleged to have been sustained by reason of defendant refusing to pay the amount bid by him for certain property in the city of…

Paul B. Anthony filed a bill in the Court below, for the purpose of perpetually enjoining all proceedings on a judgment recovered against him in the District Court of the Sixth Judicial District, by the defendant; alleging that he had no notice thereof, ®tc. Defendant demurred to the bill, which was sustained, and final judgment entered for defendant, from which, plaintiff took this appeal.

Appear from the Superior Court of the City of San Francisco. Samuel P. Goodale brought this action to recover of the defendant, as sheriff, one hundred and fourteen barrels of sugar, or their value. The defendant justified the taking, under execution process, against one George Frank.

<p>Appeal from the District Court of the Eleventh Judicial District, County of Yolo.</p> <p>The State of California, on the twenty-eighth of December, 1854, recovered judgment in the Court below against Alex. Chisholm and his sureties, Van Arnam, Tufts, Myriclc, and "Webb, for the sum of one thousand nine hundred and ninety-two dollars and fifty-nine cents. On the twenty-seventh of March, 1855, A. Chisholm, A. 3. Chisholm, and 0. Chisholm, mortgaged a farm in Yolo county to the State of California, for the purpose of securing the payment of the judgment aforesaid. This was an action to foreclose the mortgage, to which the defendants answered, and on the trial thereof proved that between the time of the execution of the mortgage and the commencement of this suit, the State, as plaintiff, had collected, by means of a levy under ' the judgment on the property of A. Chisholm and a sale thereunder, the sum of two hundred and ninety-nine dollars, and that between the same periods of time the State, as plaintiff, caused another writ of execution to issue from the judgment, and to be levied upon property of Van Arnam, of the value of eighteen hundred dollars, which said property was, subsequent to said levy, released therefrom, in the language of the agreed statement, “by the operation of the statute releasing said John Van Arnam from all liability upon the said judgment and upon the order of this Court” (the Court below.) The statute releasing John Van Arnam was passed in the year 1856. The Court below-rendered a judgment of foreclosure in favor of plaintiff, from which the defendants appealed.</p>

The facts involved in this appeal are sufficiently explained in the opinion of the Court, taken in connection with those stated in the former report of this case, to be found in 7 Cal., 282.

<p>Where a motion is made in the County Court to dismiss an appeal, on the ground that . the undertaking filed is insufficient, and before the determination .thereof the other party offers to amend his undertaking: Held, that it is error to refuse to allow him so to do.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>The defendant Johnson filed his complaint in the Fourth District Court, to enforce the specific performance of an agreement executed by defendant John H. Riekett, for the conveyance of land. The suit was defended by Riekett, and a decree rendered, requiring the conveyance to be executed. Before the execution of the deed, Riekett and wife filed their complaint in the Superior Court, alleging a right of homestead in the premises, and fraud in obtaining the agreement, and praying for an injunction, restraining the execution of the decree of the Fourth District Court. The injunction was granted, and the defendants appealed from the order.</p>

The record in this case shows that some time in 1850, Whipley, and several others, leased a house and lot from the defendants; that after the plaintiff had entered into possession, he obtained permission from Dewey, one of the defendants, to erect two small wooden tenements upon the lot, with the privilege of removing them.

The respondent was, in January, 1856, appointed clerk in the office of Secretary of State, which position he still holds. At the time of his appointment, his salary was fixed by law at two hundred and seventy dollars per month, which sum he continued to receive up to the thirty-first of March, 1857.

The defendant, A. A. Cohen, demurred to the following indictment against him, which being overruled, the defendant appealed from the order overruling the demurrer. “ The grand jurors within and for the body of the county of San Francisco, and State of California, now here in the Court of Sessions within and for the the said county, duly empanneled and sworn at the February Term of said Court, began and holden at the city of San Francisco, county and State aforesaid, on the…

This case is sufficiently stated in the opinion of the Court, except that the Court below held the insolvency proceedings a bar to this suit, and rendered judgment for defendants. Plaintiffs moved for a new trial, which being denied, they appealed.

Frank sued the defendant in the Court below, and on the trial thereof, based his case on the following promissory note: “ On demand, I promise to pay Mayer Schultz or his agent, H. L. Kohn, one thousand dollars, with interest at the rate of three per cent, per month.

<p>Secondary evidence of the contents of a deed or grant is admissible where the possession of the original is traced to the possession of a party not in the State.</p> <p>The order in which testimony shall be admitted, is within the discretionary powers of the Court before whom the case is tried.</p>

<p>One joint-tenant or tenant-in-common of a chattel, cannot dispose of anything more than his own interest therein.</p>

This is an appeal from an order of the District Court of the Seventh Judicial District, overruling a motion to quash an execution, and discharge a levy. The plaintiff recovered a judgment against the County of Contra Costa, in March, 1856, and in January, 1857, sued out an execution and caused a levy to be made on the court-house, and also on the revenues of the county in the hands of the treasurer.

Note ware, recorder of El Dorado county, presented an affidavit to the hoard of supervisors in that county, stating that, for a long period of time, he had performed the duty of auditor faithfully, in drawing warrants upon the county treasurer, and prayed therein that he be allowed compensation therefor.

This was an action to foreclose a mortgage executed by Gr. J. Hubert Sanders to plaintiff, to which his wife was made a party defendant, who, in her answer, set up as matter in abatement the death of her husband on the high seas. The remainder of this case is sufficiently stated, in the opinion of the Court. Judgment for defendant, and plaintiff appealed.

John Revalk was married in September, 1854, and he and his wife resided upon the premises in controversy, from that time until her death, in October, 1856. He owned the premises before marriage, and on the eleventh day of December, 1854, he alone executed to defendants Kraemer and Eisenhardt, a mortgage upon the homestead for four thousand dollars.

The defendant, John Revalk, on the eleventh day of December, 1854, alone executed a mortgage to the plaintiffs, Kraemer and Eisenhardt, to secure the payment of a promissory note, of. four thousand dollars. Before, and at the time of the execution of the mortgage, Bevalk and wife resided upon the premises.

John Bevalk, one of the defendants, was the owner of certain premises, and while thus the owner, was married in September, 1854. He and his wife resided upon the premises from the time of their marriage until her death. On the eleventh of December, 1854, John Bevalk, alone, executed a mortgage to defendants, Kraemer and Eisenhardt, for four thousand dollars.

This was an action of ejectment. The defendant admits all the substantial allegations of the complaint, but claims title by virtue of a purchase at a constable’s sale, upon execution issued by a justice of the peace, against the plaintiff, for the sum of three hundred and eighteen dollars.

Appear from the District Court of the Fifth Judicial District, County of Amador. On re-hearing. Parke and Struck, the plaintiffs in the Court below, brought this action to recover from defendant the use of the waters of the middle fork of Jackson creek, and for damages, alleging a priority of right thereto. The answer of defendant denied plaintiffs’ priority, and claimed an exclusive right to the use of the waters of that stream.

The plaintiffs bought forty-five barrels of whisky of Messrs. Lowe, Ebbetts & Co., who were commission merchants, and sometimes received goods on storage.

<p>Appeal from the District Court of the Eleventh Judicial District, County of El Dorado.</p> <p>Peeny sued Daly, in the Court below, on a debt created on the seventeenth of October, 1854, and alleged that the defendant, on the eighth day of May, 1855, was discharged from the operation of this particular debt, under the Insolvent Law; but that after-wards, to wit, upon the--day of June, 1855, the defendant, in consideration of the original indebtedness, promised and agreed to pay plaintiff the amount of his debt. The case was tried before the Court below, sitting as a jury, who found, as facts, “the existence of the indebtedness,” as alleged by plaintiff; the discharge of the defendant therefrom, under the Insolvent Law, and his subsequent “ express verbal promise to pay the debt,” on which finding, judgment was rendered for plaintiff, from which this appeal was had.</p>

<p>^Appeal from the District Court of the Twelfth Judicial District, County of San Francisco.</p> <p>This was a hill brought for the foreclosure of various mortgages, on the homestead of .the defendants, Delaney and wife.</p> <p>The decree in the Court below, in favor of plaintiff and the other incumbrancers, from which this appeal is taken, by Delaney and wife, was based upon mortgages that were respectively acknowledged in the following manner, and before the various officers certifying to them :</p> <p>State of California, ) County of San Francisco, j "</p> <p>On the eighteenth day of December, 1854, before me, R. H. Waller, recorder of the city of San Francisco, personally came Matthew Delaney, and Mary, his wife, known to me to be the persons described in, and who executed the within mortgage, and severally acknowledged that they executed the same freely, and voluntarily, for the uses and purposes therein mentioned. And the said Mary, on a private examination by me, after being made acquainted with the contents, out of the presence of her husband, and out of his hearing, acknowledged that she executed the same freely, and without compulsion, fear, or undue influence from her husband, and that she did not wish to retract the execution of the same.</p> <p>Griven under my hand, at the city of San Francisco, the day ;g,nd year aforesaid.</p> <p>R. H. Waller, City Recorder.</p> <p>State of California, 1 County of San Francisco, j '</p> <p>On this seventh day of April, 1853, before me, came Matthew Delaney, and Mary, his wife, to me known to be the individuals described in, and who executed the within instrument, and acknowledged that they executed the same of their own free act and deed, and for the purposes therein mentioned. And the said Mary, after being informed of the contents, on a private examination by me, separate and apart from, and out of the hearing of her said husband, acknowledged that she executed the same freely, and without fear or compulsion of or from her husband, or other undue influence from him, and that she did not wish to retract the execution thereof.</p> <p>In witness whereof, I have hereunto set my hand and seal, the day and year just above mentioned.</p> <p>[l. s.] H. L. Dodge, Motary Public.</p> <p>State of California, ) County of San Francisco, j</p> <p>Qn this ninth day of January, 1855, before me, Gr. J. Hubert Sanders, a notary public in and for said county, duly commissioned and sworn, dwelling in the city of San Francisco, personally appeared Matthew Delaney, and Mary, his wife, known to me to be the individuals described in, and who executed the annexed instrument, and acknowledged that they executed the same freely and voluntarily, for the uses and purposes therein mentioned. And the said Mary Delaney, having been first by me made acquainted with the contents of said instrument, acknowledged to me, on examination had separate and apart from, and without the hearing of, her husband, that she executed the same freely, and without fear or compulsion, or influence of her husband, and that she did not wish to retract the execution of the same.</p> <p>Witess my hand and official seal.</p> <p>[l. s.] G-. J. Hubert Sanders, Hotary Public.</p>

Tabitha Belden commenced this action against defendant to recover the sum of eight hundred and ninety-five dollars and interest, which she alleged that she had been induced by the false and fraudulent representations of defendant, to the effect that he was a man of extensive business relations, etc., to place in his hands, to be invested by him for her, so that it would produce her the sum of three per cent, per month, which said money he had afterwards given his note to her…

<p>Appeal from the District Court of the Tenth Judicial District, County of Sutter.</p>

F. Moore, the defendant, was convicted of the crime of murder in the first degree, committed on one Alexander McCIanahan, on the twenty-first of February, 1857, and sentenced to be executed. The remainder of the case is sufficiently stated in the opinion of the Court. Defendant appealed.

This was an action in the Court below, brought by W. H. Palmer, as the assignee of one R. B. Smith, against the defendant, as the administrator of William H. Tripp, deceased, to enforce a contract of the following kind, to wit: Mowry W. Smith being indebted to R. B. Smith, and unable to pay him in money, proposed to convey to him a farm, in Sonoma county, in payment of the debt, or as security therefor.

Benham, the relator, having transcribed the records of Ynba county, in conformity with a law passed, authorizing the same, and, providing away of payment therefor, presented his claim to the supervisors, who audited and allowed the same, and directed the treasurer to pay the amount thereof, in cash.

.. Messrs. Carsen & Vance drew their order upon Messrs. Simp-son & Jackson. ' “Messrs.

<p>Appear from the District Court of the Fifth Judicial District, County of San Joaquin.</p> <p>This was an action against the defendant Webster, as sheriff, of San Joaquin county, to recover damages for an alleged unlawful seizure of certain personal property, which the plaintiff claimed by purchase from one Hiram Dennis. The sheriff justified the taking by setting forth that the property attached belonged to Dennis, and that the sale to plaintiff was fraudulent and void, and that A. FT. Fisher & Co., as the creditors of Dennis, had placed in his hands attachment process, by virtue of which he had levied upon the property. On the trial of the cause, defendant introduced in evidence a copy of the record in the attachment suit, and a note, as the basis of said' suit, which read as follows:</p> <p>$708 17. Stockton, January 22,1855.</p> <p>One day after date, we, jointly and severally, promise to pay Messrs. A. FT. Fisher & Co., or order, the sum of seven hundred and eight 17-100 dollars, for value received, with interest monthly at the rate of five per centum per month, until final payment.</p> <p>Benjamin G. Weir, Hiram Dennis.</p> <p>The evidence showed that the note was delivered by the makers thereof, with the rate of interest in blank, and that while in the possession of the holders, the blank had been filled by the insertion of the word “five.” Hiram Dennis having been called as a witness for plaintiff; on his cross-examination, counsel for defence asked him the following question, to which plaintiff objected, and the Court sustained the objection, under the exception of defendant:</p> <p>“ Did you not, about the latter part of February or March, 1855, state to Robert Weir that you had fixed your property so that your creditors could not get it ?”</p> <p>Defendant then called Robert Weir, and asked him if he had not had a conversation with Hiram Dennis, in which Dennis had stated that he had fixed his property so that his creditors could not get it ? The Court refused to permit the witness to answer, and defendant excepted.</p> <p>The Court, among others, gave the following instructions to the jury, under the exception of defendant’s counsel:</p> <p>“ If the jury believe, from the evidence, that the note on which said judgment was obtained bore no rate of interest at the time it was signed by Dennis, and delivered to the holders, but that it was afterwards filled up with the word ‘five,’ so as to make it draw interest at five per cent, per month, and that such alteration was made without the knowledge or consent of Dennis, that said alteration vitiated the note, and rendered it incompetent evidence, to show that Fisher & Co. were creditors of Dennis.”</p> <p>Judgment for plaintiff. Defendant appealed.</p>

This was a suit to recover compensation for professional services. The defendant Dickson did. business under the style of Dickson, De Wolf & Co., and employed the late firm of Burritt & Gorham, as attorneys at law. Dickson was also the administrator of one Murray, deceased, and a portion of the professional services were rendered for him as such.

The plaintiff, as the administrator of James Daigh, deceased, brought the suit for the purpose of his setting aside a certain conveyance made by his his intestate to the defendants on the twelfth of September, one thousand eight hundred and fifty-five, of certain premises, of the value of eight thousand dollars, and as grounds therefor, alleged that James Daigh was, at the time of said conveyance, and at the time of his death, indebted to various persons, in the sum of…

This was an action by the plaintiff, Bryan, against D. M. Berry, John H. Berry, and James H. Gordon, on a joint and several promissory note. Judgment was rendered there’on, on the tenth day of January, 1856, against all the defendants, jointly, for thirty-eight hundred dollars, and costs. A notice of a motion for a new trial, on behalf of D. M. Berry, was given, on the twenty-sixth day of January, a. d. 1856, and sustained by the Court.

This was an action for damages and a perpetual injunction on the part of the Union Water Company against Woods and wife, and Andrew Jamieson, for the diversion of water claimed by plaintiff. The defendants Woods disclaimed, while the defendant Jamieson justified, bis right to the water.

This was a suit in equity to enforce the performance of a trust, created in the following manner: One Sehoyer was the owner . of a claim of eight thousand four hundred dollars, for rent of the marine hospital in San Francisco, to become due from the State of California. He assigns five thousand four hundred dollars thereof to one Moses j Moses assigns his claim to plaintiffs.

Writ of Error to the District Court of the Fourth Judicial District. Lynch and others filed their bill of intervention in the Court below, claiming that they were judgment-creditors of Adams & Co., and seeking to have the funds in the hands of the receiver applied to the payment of the debts.

This is an action brought by the appellant against the respondents, as administrator and administratrix of the estate of G-. C. McMickle, deceased, on three promissory notes made and delivered by McMickle, in his lifetime, to Bagley & Sinton, and by them assigned to Bagley. The notes ail date the twenty-third of March, 1851, and all bear interest at five per cent, per month, from date.

Mary Welch brought this action of ejectment to recover possession of the undivided one-half of lots one hundred and forty and one hundred and forty-one, in the city of San Francisco, and for three thousand dollars damages, alleging that she was the owner of the undivided one-half thereof in common, and not jointly. The answer of the defendants consisted of— 1. A general denial. 2. Statute of Limitations. 3. The Settlers’ Act of 1856. 4. Outstanding title in Limantour. 5.

The facts of this case are sufficiently stated in the opinion of the Court, with the exception of the third instruction given to the jury, under the exception of plaintiff's counsel, which was as follows: “ The circumstance of Ealkman & Co.'s insolvency, even if they knew their situation at the time of the purchases, would not, of itself, show that the purchases were fraudulent; for a party doing a large business, although the balance is against him, may honestly believe he…

<p>Appeal from the District Court of the Fourth Judicial District.</p> <p>The facts of this case are fully stated in the opinion of the Court.</p>

B. Davidson, the plaintiff in the Court below, as the assignee of W. R. Gorham, sheriff of San Francisco, brought this action against A. G. Dallas, E. R. Falkner, and Bernard Peyton, on a bond for one hundred thousand dollars, given by them to W. R. Gorham, under the following circumstances: 1.

Theodore Payne, as plaintiff, brought this action iu the Court below, against John Bensley, on his promissory note, made payable to one Atwill, and by Atwill assigned to him.

This was a bill in equity filled in the Fourth Judicial District, setting forth the circumstances under which the defendant Hibbard had obtained a judgment in ejectment in the District Court of the Third Judicial District, against the plaintiffs in this suit, and praying, among other things, that the defendant Hibbard, and his co-defendant Emeric, (who, it was charged, was interested in that judgment,) be required, under the pain of a perpetual injunction, restraining them…

Plaintiff filed his bill for tho purpose of foreclosing a mortgage, executed by defendant Vance., The facts of the case as developed by a special verdict, are as follows: That on the fourth day of January, 1855, the defendant gave a mortgage on a lot in San Francisco, to secure the payment of the sum of three thousand dollars.

The plaintiffs in this case averred that their grantors, in March, 1852, posted a notice on North Slate Creek, claiming the waters thereof, and of all the ravines that might be crossed by their contemplated ditch, from that point to G-ibsónville. That surveys were made, and the ditch dug, by which the waters of the north branch of Slate Creek, and also of Third Ravine, had been appropriated.

One of the defendants in this case, A. L. Teschiera, having purchased certain premises, in the city of San Francisco, from John H. Still, and afterwards having discovered that Still’s wife set up a claim of homestead therein, attempted to purchase her interest therein, without success. A second negotiation was opened, by one Charles R. Saunders, ostensibly in his own name, hut in fact for Teschiera, who agreed to furnish the money, and did do so.

<p>Appeal from the Court of Sessions of San Joaquin County.</p> <p>This was an indictment and conviction for the crime of perjury. The defendant executed his promissory note to one Michael O’Hear for five hundred dollars, upon which suit was brought in the Fifth District Court, and a copy of the note was set out in the complaint. In his answer, which .was verified, the defendant stated that the note set out in the complaint was not his note—that the defendant admitted that about the date of the note sued on, he made a note for five hundred dollars to the plaintiff, but that note the defendant was confident, and so charged the truth to he, was not “ for value received,’’ and so the defendant denied the note set out in the complaint of the plaintiff. The defendant demurred to the indictment, which was overruled by the Court, a trial and conviction had, and defendant appealed to this Court.</p>

<p>Appeal from the District Court of the Sixth Judicial District.</p> <p>Winans & Hyer, in the Court below, sued Hardenbergh & Henarie on their promissory note. The defence, on the part of Hardenbergh, the only defendant who answered, was that the note had been given by his co-defendant, Henarie, after the dissolution of the copartnership. On the trial, the plaintiffs deeming the execution of the note admitted, introduced it in evidence, and after proving the amount of interest that had accrued thereon, rested their case. Whereupon defendants’ counsel moved the Court to instruct the jury as in case of nonsuit. This motion was overruled. The defendant Hardenbergh then called Henarie as a witness, who testified that the firm of Hardenbergh & Henarie had never been formally dissolved, and that the note was given for a firm-debt due plaintiffs.</p> <p>Judgment for plaintiffs. Defendants moved for a new trial, which being denied, they appealed.</p>

This was an action of ejectment, brought to recover a-lot in San Francisco, situated within the line of what is known as beach and water lot property.

<p>The Legislature has not the power to impair or take away the appellate jurisdiction of this Court, but it has the power to prescribe the mode in which appeals may be taken.</p> <p>In all cases whe?e an appeal is given by the statute, that remedy is exclusive and must he pursued.</p> <p>A writ of error will only lie in cases where no appeal is given by the act of our Legislature.</p> <p>This Court has the power, under its rules, to reinstate cases which have been dimissed at a previous term.</p> <p>A motion for such relief will only be entertained upon a proper showing, and after due notice to respondent.</p>

Edward McCalla, Thomas McCalla, and W. H. Bullion, were indicted for the murder of one Bond. On being arraigned, they elected to he tried jointly.

<p>Where the sheriff, as ex officio tax-collector, received taxes, and afterwards, on being sued therefor, denied the right of the county to recover the same from him, because the same had been illegally levied by the Court of Sessions : Held, that although the Court of Sessions had no power to levy taxes, yet the defendant, being the agent or trustee of the county, was estopped from denying the right of the county to recover. Under the act of April, 1854, counties have the right of prosecuting and defending actions in the same manner as individuals.</p>

This was a suit brought by Alvin Adams against I. C. Woods and D. H. Haskell,, for a dissolution of partnership, and has been before this Court in various phases, as will be seen by reference to the fifth, sixth and seventh California «Reports. The present appeal is taken in the matter of the petition of Edward Stanly to the Court below for the appointment of a referee, before wBom his account might be presented for adjustment and allowance.

<p>Appeal from the County Court of Tuolumne, County.</p>

' The complaint alleges that the plaintiffs were the owners, and in the possession of certain mining-claims, situated in Volcano Canon, over which the waters of said canon naturally flowed, and that they were entitled to have the waters of said canon flow as they naturally did, but that defendants diverted them to the injury of plaintiffs.

This is an action to recover a sum due on two promissory notes; the plaintiff sets out the notes, and also sets out an agreement entered into with defendants, in which it is stated that the notes were given in payment of a certain saloon; that there were debts against the premises sold, to the amount of fifteen hundred dollars, which plaintiff agreed to pay and discharge, and it was stipulated that the notes were to be deposited with a third party, as security for the…

Defendant, who was sheriff ofSan Francisco,under an execution, against one Sharp, seized on certain goods which were claimed by plaintiff under a purchase from Sharp. This action was instituted for the recovery of the value of the goods, and the question submitted to the jury was as to the bona fides of the sale from Sharp to plaintiff.

The parties to this action, are incorporated companies for mining and other purposes. Each company is the owner of a dam and ditch, by means of which, the waters of Bear River are diverted from the natural channel of the stream, and sold and used for mining purposes, and by defendants for the additional purpose of propelling a saw-mill.

The plaintiffs in this case were the owners of two water-ditches, leading the waters of Indian Canon to various mining localities, that were constructed in 1852.

<p>A justice of the peace cannot make a summons returnable in eleven days after service. * ~ — Where a defendant appears for the purpose of taking advantage of irregular summons by a motion to dismiss, it does not amount to a waiver of his rights so as to cure the defect.</p> <p>Nor does he waive his rights by answering after moving to dismiss, and motion overruled.</p>

<p>Transcripts used on appeal to this Court must show that an undertaking has been filed in due time; and that a notice of the appeal has been duly served upon the other side.</p>

<p>Appeal from the District Court of the Fifth Judicial District, County of Tuolumne.</p> <p>Indictment and trial for murder, and conviction in the second degree. At the trial, the counsel of defendant asked the Court to give the jury the following instruction in writing:</p> <p>“ If the defendant was in imminent danger of great bodily injury from the deceased at the time of the killing, then they are to find him not guilty.”</p> <p>Which instruction the Court gave, with this verbal qualification :</p> <p>“ That the jury must take into consideration the intent of the defendant in going to the place of the alleged killing.”</p> <p>The defendant’s counsel excepted to the giving of the instruction as modified, and assigns two grounds of objection:</p> <p>1. That the instruction, as qualified, is too broad when considered with reference to the testimony.</p> <p>2. That the qualification should have been given in writing.</p> <p>The substantial facts of the case, concisely stated, were these :</p> <p>There was a dispute existing between William S. Stone and defendant Payne, about a tract of land. The defendant had placed some posts upon the tract with a view to the construction of a fence. On the Friday before the killing, which occurred on the Monday following, a suit had been tried, and the case appealed. Stone and the deceased, J. H. Vaughn, who was employed by Stone, wore engaged in hauling away the post to keep Payne from doing it, and had removed two loads , the posts to Stone’s corral. Payne, with a hand in employ by the name of Rowe, went to the place where the were posited, and Payne proposed to Stone to let the posts remain until the lawsuit was determined, and forbid him from moving them. Stone replied he would move them. Payne then told him he must abide the consequences, and Stone replied he did not care what he said. Payne was armed with a single-barreled shot gun, which he carried under his right arm, with the barrel resting on his left, and with the muzzle in the direction of Stone. Vaughn was armed with a pistol, which he carried in a belt around his body. Stone then changed his position, and said to Vaughn “ give me that,” and Vaughn stepped around and said, “never mind.” Vaughn then said "Stone, put on the posts; Payne, put up that gun,” and drew his pistol, when Payne fired and killed Vaughn.</p> <p>Defendant appealed.</p>

Montrose brought this action against Conner, to recover a claim against him for work and labor on the premises, in San Francisco, for which he had filed a notice of lien, in the office of the county recorder, and made H. R. Payson a party defendant, as a purchaser of the property from Conner’s grantee, subsequent to the completion of the work performed by him.

<p>A motion to dismiss appeal, on the ground that the transcript was not filed within the time required by the third, rule of this Court, is too late after the case has been submitted.</p> <p>The homestead right is nob affected by the foreclosure of a mortgage signed by the husband alone.</p> <p>The homestead right cannot be tried on a motion to set aside a sale under the mortgage. The husband and wife should have filed a cross bill in the foreclosure suit, or brought an ejectment-suit for the property.</p> <p>The homestead right cannot be individually asserted 5 both parties must join.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>The complaint alleges that the defendant is indebted to the plaintiff in the sum of eighty-six hundred and six dollars and sixty-seven cents, on a certain acceptance, or instrument, in writing, as follows:</p> <p>“$8,606 67. San Francisco, Jan. 31st, 1854.</p> <p>“ Please pay to my own order the sum of eight thousand six hundred and six dollars and sixty-seven cents, for value received, the same to be paid out of the appropriation,- as soon as made, for the extra- work done to the United States Marine Hospital building in this city, a statement of which has been made out and regularly forwarded by the proper authorities to the Secretary of the Treasury of the United States, to be laid before Congress at the present session ; this sum being in full of settlement this day made, for the furnishing and laying the brick in said building, agreeably to the terms of the contract between C. Homer and myself. Geo. D. Eagle.</p> <p>“ To C. Homer, Esq., San Francisco.”</p> <p>On the face of which is written as follows, in the handwriting of defendant: .“ Accepted, C. Homer " And avers that the appropriation has been made, and the amount paid to the defendant, out of which the above draft was to have been paid, but that the defendant refused to pay, etc., and claims legal interest from the-day of-, 1855, the time of such appropriation and payment.</p> <p>On the fifth of July, an answer was filed for defendant, denying generally all the allegations of the complaint, and claiming judgment against the plaintiff for two thousand dollars, for goods sold and delivered, and on an account stated.</p> <p>The casé came on for trial on the eighteenth July, and the acceptance written across the face of the writing declared upon, being admitted to be the handwriting of the defendant, the evdence showed:</p> <p>That in November, 1851, the defendant contracted with the United States to erect the marine hospital in San Francisco, and complete it in one year, for one hundred and forty thousand dollars ; that he was not furnished with a site until December, 1852, more than a year after, and has preferred a-claim for damages in consequence, which is now pending, for upwards of forty thousand dollars; that there were two or three supplemental contracts; that the original contract provided that the walls were to be built hollow, and the last supplemental contract provided that they should be built solid, and that the defendant should be paid fifty-five dollars per thousand bricks, for all the extra brick-work required in consequence; but that he should wait for payment until Congress made an appropriation therefor; that for this extra brick-work, and other extra work performed about the building, the defendant made out a statement claiming about sixty thousand dollars, which has been forwarded to the Secretary of the Treasury, who has laid it before Congress for action; that the defendant has received the whole amount heretofore appropriated by Congress, on account of the building, and at various times during the progress of the work received sums of money on account of extra work, such as digging a well, laying drains, and grading, etc., amounting to some forty thousand dollars in all; but that he has not received any money on account of the two claims referred to, that no appropriation has been made by Congress therefor, and he is now in Washington urging the allowance of those claims. That an examination of the building had been made by Z. B. Tower, a captain and brevet-major in the United States army, under instructions from the Secretary of the Treasury of the United States, and the said Tower had reported that in his opinion Mr. Homer had been paid all that the work and materials in "the building were worth; that his examination was ex parte, and no one was present on behalf of Mr. Homer, and that all his information as to payments to Mr. Homer, had been derived from papers forwarded to him by the Secretary of the Treasury at Washington. That the defendant had sold to plaintiff a lot of piles, for which the plaintiff was to pay two thousand dollars, but the witness was of the impression that the amount was to be credited on the instrument now in suit.</p> <p>The defendant moved for a nonsuit, which was refused.</p> <p>The Court charged the jury that it was for them to say whether the time when the note was to become due had arrived, and how much was due, to which the defendant excepted.</p> <p>The jury found a verdict for plaintiff for six thousand six hundred and six dollars and sixty-seven cents.</p> <p>A motion was made for a new trial, and overruled by the Court. Defendant appeals.</p>

<p>Appeal from the County Court of Nevada County.</p> <p>Indictment for robbery.</p> <p>On the trial of this cause, one R. R. Craig, who was being examined upon his voir dire, touching his qualification as a juror, answered that he had formed and expressed an opinion as to the guilt or innocence of the prisoner, and that he then believed the prisoner to be guilty of the offence charged; that this opinion was formed from rumor, on the supposition that the rumor was true, and that testimony would alter or remove it; that he thought he could try the case without bias or prejudice, but it would require proof to change the opinion then existing in his mind.</p> <p>The defendant challenged the juror for cause; the challenge was denied, and defendant excepted.</p> <p>The defendant was convicted, and sentenced to ten years’ confinement in the state prison, from which judgment he took this appeal.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>The defendant Steelman, on the twelfth day of .June, one thousand eight hundred and fifty-four, executed to William B. Swain his promissory note for one thousand two hundred and fifty dollars, and, to secure the payment of the same, executed to Swain a mortgage, upon the schooner Falmouth. The mortgage was duly recorded in the records of mortgages, in the custom-house, at San Francisco, and the note and mortgage were afterwards, on the thirtieth day of April, one thousand eight hundro'd and fifty-five, assigned by Swain to the plaintiff. The schooner was permitted, by the holder of the note and'mortgage, to remain in the possession of Steelman, who sold his interest in the vessel to the defendant Lawrence, on the sixth of December, one thousand eight hundred and fifty-five. The plaintiff brought his action to foreclose his mortgage, and defendant Lawrence was made a party, as claiming an interest in the mortgaged property. Lawrence demurred, and answered at the same time; the demurrer was overruled, a trial had upon the merits, when judgment was rendered for plaintiff against Steelman, and a decree entered that the vessel be,sold, and the defendant Lawrence appealed to this Court.</p> <p>There was testimony which ^ satisfied the Chancellor that the defendant Lawrence had purchased the interest of Steelman, in the vessel, subject to the mortgage, which he expressly promised to pay.</p>

<p>Appeal from the District Court of the Sixth Judicial District.</p> <p>The plaintiff filed his petition, setting forth that he was elected sheriff of Sacramento county, at the general election, 1857, and having duly qualified, he entered upon the discharge of the duties of the office, October 5th, 1857, and claiming that, as such sheriff, he is by law entitled to the collection of the taxes levied in the county, but that the defendant, the late sheriff of the county, refuses to deliver to the plaintiff, the assessment-roll. The petition prays for a mandamus, to compel the defendant to deliver to plaintiff the assessment-roll. The defendant demurred to the petition. The demurrer was sustained, and the plaintiff's petition dismissed.</p> <p>Plaintiff appealed.</p>

The plaintiff, a citizen and tax-payer of Sutter County, filed his bill, praying for an injunction restraining the supervisors from erecting buildings for county purposes in Yuba city, to which place the county seat had been ordered to be moved from Uicolaus, by a vote of the citizens of the county, at an election upon the question of the removal of the county seat, under the provisions of the act of 1856, conferring the necessary authority therefor.

<p>Where a claim to a tract of land, under a Mexican grant, somewhere within a certain larger tract, .was ascertained, and the land segregated by a survey, under a decree of confirmation by the U. S. Supreme Court: Held, that tho land became immediately taxable, and that an assessment thereof will be presumed to have been made after the survey, where the time allowed by law for the assessment extended to a day four days after the survey.</p> <p>The acts of the officer making the assessment must be presumed to be in conformity with law, until the contrary is shown.</p>

<p>An instruction asked for is properly refused when there is no evidence on the question of fact embraced in it.</p> <p>On a trial for murder, weakness of mind, fear, and excitement, of the defendant, produced by the violence of the deceased, will not justify the homicide.</p> <p>Nor is an assault and the infliction of great bodily harm upon the defendant by the deceased, a justification, unless it appear that it was necessary to take the life of the deceased to prevent such bodily harm.</p> <p>The impression of the defendant at the time of the killing, that a great bodily harm was about to be inflicted upon him by the deceased, cannot be submitted to the jury as a justification, if they believe such an impression existed in the defendant's mind.</p> <p>The impression must have been produced by circumstances sufficient to excite the fears of a reasonable person.</p> <p>If the attempt to inflict bodily injury be made with a deadly weapon, then the reasonable fear and actual belief would justify the killing; but when the attempt does not constitute felony, there must exist the absolute necessity of taking life to prevent the bodily harm, in order to excuse the killing.</p> <p>Where equivalent instructions are given and refused, the Court should place its refusal on the ground that equivalent instructions were given. Unless this is done in the presence of the jury, they may be misled by the refusal.</p>

It is alleged in the complaint that the plaintiff is an incorporated ditch company, and for several years past lias conveyed water by means of a ditch from the Stanislaus River, into French Gulch, and down said Gulch, for sale to others to be used for mining purposes, and by that means had acquired a prior right to the enjoyment and use of the water) and that being so in the peaceable possession and use of the water flowing in said ditch and gulch, the defendants diverted…

<p>A party entering into the possession of the land of another, and in subordination to his title, is estopped from denying his grantor’s title.</p> <p>When a purchaser of land does not obtain the title which the deed purported to convey, and the covenants embrace, and he goes into and retains possession under the deed; gmd the failure of the title goes to the entire consideration paid, or to be paid, for the land, then he must seek his remedy by a recision of the contract, alleging a paramount title in another, and offering to re-deliver possession, and account for the rents and profits.</p> <p>The vendor’s lien on the land conveyed is not lost by his taking the notes of the purchaser for the purchase-money. And the lien equally exists, whether the instrument amounts to a conveyance, or merely to an executory contract. ,</p> <p>In a bill in equity to enforce the lien, it is not necessary to allege the issuance of execution, under a judgment at law, previously obtained by the vendor against the purchaser for the amount due, and return of nulla bona to sustain the allegation of insolvency.</p> <p>Return of nulla bona on an execution is only one mode of proving insolvency. Any other competent proof would be sufficient.</p> <p>Where a vendor of land has taken the notes of the purchaser in payment, and brings his action thereon at law, he should, in that action, if at all, unite his equitable claim for a foreclosure of his lien—the same tribunal administering both law and equity.</p> <p>But in a case where the party brought his separate actions, first at law on the notes, and then 'in equity for a foreclosure, before the adoption of this rule: Held, that he be allowed both his legal and equitable remedies, on payment of the costs of the latter suit.</p> <p>And if the defendant has a legal offset to the notes: Held, that he may plead it in the latter suit.</p> <p>The objection that the proceedings may become too complex by permitting different questions of law and equity to be settled in one suit, is not sufficiently strong to overcome the plain provisions of the statute, and the substantial dictates of justice.</p>

<p>Appeal from the District. Court of the Fourteenth Judicial District, County of Nevada.</p> <p>This was an application on behalf of the relator, for a writ of mandamus, directed to the defendant, sheriff of Nevada county, commanding him "to execute a conveyance of land to the relator.</p> <p>The petition sets forth that the relator in the month of June, 1856, purchased certain land in Nevada county, at a foreclosure sale, under a decree of Court duly entered, and that the sheriff executed a certificate to the relator; that before the expiration of the six months allowed for redemption of the property, the sheriff died; a sheriff was appointed in his place, who was in office when the time of redemption expired; and subsequently the defendant was elected sheriff, and now holds the office; to both of whom, relator has applied for a deed of the land so sold, and both of whom have refused so to do.</p> <p>The facts stated in the petition are admitted by the defendant, who interposed a demurrer, upon which a judgment pro forma was entered, and the case appealed, by stipulation, without notice or bond; both parties desiring the.decision, of this Court upon the question.</p>

This was a petition in the Court below for a writ of mandamus upon the Comptroller, Secretary of State, and Treasurer, to compel them to examine, settle, audit, and allow the claim of the petitioner, Thomas F. W. Price, under the provisions of a bill which passed both houses of the Legislature, and was presented to the Govérnor on April 3d, 1856, and which is claimed to have become a law by .not havings‘been returned by the Governor within ten days thereafter, the…

This was an amicable suit, to determine the right of possession to the steam-tug Mary Anne. On the third of -November, 1854, the Humboldt Lumber Manufacturing Company, mortgaged the vessel to-A. S. Tobias, the vessel being left in the possession of the company.

The defendant, A. F. Demint, was indicted for an assault, with intent to commit a rape. On the trial, the Court charged the jury orally, without the consent of parties. The jury found a verdict of guilty. Motion for new trial made and overruled, and prisoner sentenced to one year’s imprisonment, from which he appealed.

The plaintiff alleges in his complaint, that he loaned the defendant the sum of five thousand dollars, for the period of six months, at the monthly interest of three percent. That to secure the payment, he took from the defendant at the same time, a deed for certain premises in fee-simple. That the deed, though absolute on its face, was intended as a mortgage, and then prays the Court for judgment, and for a sale of the premises.

The prisoner was indicted by the grand jury of the county of Sierra, for the crime of murder, alleged to have been committed upon Robert Moffat, in September, 1855. The grand jury was composed of twenty-three persons, and nine of them chailenged for cause by the prisoner, and the challenge sustained, and the nine jurors thus challenged, were ordered by the Court of Sessions not to be present in the grand jury room, during the investigation of the case of the prisoner.

The defendants, a corporation for mining purposes, constructed a ditch in 1851, taking water from the Volcano Canon. In 1852, the plaintiffs, or those under whom they claim, constructed their ditch, tapping the same stream at a point a short distance below.

<p>There is no necessity'of a finding as to a fact admitted by the pleadings. A finding is only required when the allegation of a material fact in the complaint is controverted by the answer, so as to raise an issue.</p> <p>The finding of a Court, like a special verdict of a jury, must, taken in connection with the pleadings, support the judgment.</p>

This is an action upon an undertaking given by the defendants, under section one hundred and two of the Practice Act, to authorize the sheriff to take possession of certain personal property claimed in a replevin-suit brought by the defendant Atwood, against the plaintiff. In the replevin-suit the plaintiff was non-suited, and judgment for the return of the property and costs was entered. The value of the property taken was not assessed by the jury.

In January, 1853, the plaintiffs, who are residents of Hew York, consigned certain goods to the defendant, who is a resident of this State, with instructions that the same should not bo sold at less than invoice prices. The goods were received by the defendant at San Francisco, June 20, 1853, and were sold the same day, but no account of sales was ever rendered to the plaintiffs.

This was a bill to quiet the title to two lots in the city of Marysville. The facts, so far as necessary to illustrate the points determined, were substantially these: On the twenty-second of April, 1850, Charlee Covillaud, J. M. Ramirez, John Sampson, R. B. .Buchanan, and S. U. Swezy, conveyed the lots, with others, by deed absolute, to Joseph W. Finley, for a certain consideration thereafter to be paid.

In June, 1856, the defendants Laird and Chambers contracted with their co-defendants, Moore and Foss, the latter being architects, of reputed skill and experience, for the construction of a dam, forty feet in height, on Deer Creek, at a point several miles above the city of Nevada.

<p>The statute concerning forcible entry and unlawful detainer must be strictly construed.</p> <p>A mere scrambling or interrupted possession is not sufficient to maintain the action, but it must be actual, peaceable, and exclusive.</p> <p>This action can only be maintained by the person ousted j his grantee cannot maintain the action.</p>

<p>Special issues, framed by the Court according to the established rules of chancery practice, may be tried by a jury in equity cases.</p> <p>Where Gr. & Co., concealing their insolvency, obtained an extension from their creditor B., and before the maturity of the notes, B. apprehending that Gr. & Co. would fail before their paper became due, and that the other creditors of Gr. & Co. would exhaust their assets by attachment—obtained, by an arrangement with Gr. & Co., an ante-dated note for the amount due him at the date thereof by Gr. & Co., on which suit was commenced by attachment, and a levy made upon the property of G. & Co.: Held, that B/s attachment and claim was valid against subsequent attaehing-ereditors, the case not being one citbir of actual or constructive fraud.</p> <p>Giving a promissory note, payable at a future time for a pre-existing debt, does not discharge it. Its only effect is to suspend the right of recovery until the maturity of the note.</p>

<p>Appeal from the Probate Court of Yuba County.</p> <p>The deceased, Robert B. Buchanan, died in June, 1855, leaving property, real and personal; some of the real estate having been acquired before, and a portion after, -April, 1850. The property, both real and personal, was acquired during marriage. At the time of his death, ho left a widow, but no children. A posthumous child of the deceased was born in January, 1856. The deceased left a will, by which he bequeathed a portion of his property to his wife, and the remainder to his relations. Ho provision was made in reference to the posthumous child. The widow refused to take the legacy under the will, but claimed, before the Probate Court, one-half the community property, after the payment of the testator's debts. The Court made a decree allowing her one-half the property acquired after the seventeenth of April, 1850, but held the property acquired previous to that time, as subject to the disposition of the husband.</p> <p>The decree further allowed the child the one-half of the real property left by the deceased, after paying the debts of the estate. It further ordered that the debts be paid out of the separate property, (that acquired by deceased before April seventeenth, 1850;) and, inasmuch as the executor had paid a large sum from the proceeds of the common property, for debts and expenses of the estate, it further ordered a sale of the separate property, (reserving the homestead to the widow,) and that out of the proceeds of the sale, he pay the sum before so expended out of the proceeds of the common property, to the widow and child in equal portions, and out of the balance, that ho pay the legacies made by the will.</p> <p>The widow, and the guardian of the child, appealed from those portions of tho decree deciding any portion of the estate to be the separate property of the deceased, and ordering a sale thereof, and appropriation of proceeds.</p>

<p>Appeal from the District Court of the Third Judicial District, County of Alameda.</p> <p>Appeal from an order overruling a motion for a new trial.</p>

<p>On rehearing. The report of this case will be found on page one hundred and sixty-five of this volume.</p>

In February, 1852, McKeever and Nickerson obtained judgment before a justice of the peace against White and Revere; and on the third day of April, 1857, the defendant, Clark, acting as a justice of the peace, and as the successor of the justice before whom the judgment was had,Issued an execution upon the judgment, which was levied by the defendant Yischerj as sheriff, upon the property of plaintiff, one of the defendants in the execution.

Seventh Judicial District, County of Napa. This was an action of trover, to recover of the defendants, Stark, as sheriff, and Haile, as execution-creditor, the value of two buggies, which the plaintiff alleged had been wrongfully seized and converted, etc. The defendants justified the taking of the buggies, under an execution, in favor of defendant Haile, and against one Edward H. Cage, alleging that they were the property of Cage, and not of the plaintiff.

<p>Application for a mandamus, to the County Judge of San Francisco County.</p>

<p>Appeal from the Court of Sessions of the County of El Dorado.</p> <p>Indictment, trial, and conviction, for burglary. The indictment charges the defendant with feloniously and burglariously breaking and entering, in the night-time, the dwelling-house of one George S. Vaughn, with intent the goods of the said Vaughn in the said dwelling-house then and there being, feloniously and burglariously to steal, take, and carry away, without specifying the value of the goods intended to be stolen. The indictment then continues in the same count to charge the prisoner with stealing certain specified articles in the house, of the value of forty dollars. The counsel for the prisoner moved in arrest of judgment, upon the ground that the offence of burglary was not charged in the indictment, which motion was overruled by the Court, and the defendant appealed. '</p>

This was a bill in equity, filed in the Twelfth District Court, to restrain the proceedings of the Circuit Court of the United State, in the case of Peter Smith v. Thorn and others. The defendants demurred to the complaint; the District Court sustained the demurrer, and the plaintiffs appealed.

In this case, the plaintiff obtained judgment by default, in the Court below, October 15,1856. On the eleventh of ¡November following, being at a subsequent term of the Court, the judgment was set aside, on motion of defendant. Plaintiff appealed.

In the month of December, 1849, the French ship Java arrived at the port of San Francisco, under the command of Capt. Devaulx, consigned to the defendants. The vessel was seized by the collector of the port, and detained some six months, when she was released. The defendants sold the cargo before the ninth day of July, 1850, and on that day were indebted to Messrs.

<p>Appeal from the Court of Sessions of Stanislaus County;</p> <p>The*defendant was indicted for an assault with intent to commit murder, and was convicted and sentenced for an assault with an intent to commit bodily injury. The bill of exceptions contains only a small portion of the testimony, and none of the instructions given by the Court. On the trial, the prosecutor, Daniel Perrigru, was examined as a witness, and upon cross-examination, the prisoner’s counsel asked the witness, “if he did not buy a pistol, a few days previous to the assault, to use upon the person of Shea, the defendant?” The witness at first answered that Re “ bought the pistol to defend himself and sister.” The question was repeated, and the witness required to answer, “yes,” or “no,” and he then answered, “yes,I did.” The district-attorney then asked the witness to state the reasons therefor, and the witness stated that “ from what his sister had told him what Shea said, (the sister being the wife of Shea, the defendant,) induced him to purchase the pistol to use against Shea".” The defendant’s counsel objected to the testimony, on the ground of its being hearsay, but the Court overruled the objection, and the prisoner excepted. A motion for a new trial was made and overruled, and the defendant appealed.</p> <p>The jury found defendant guilty of an assault with intent to commit bodily injury, and the Court sentenced him to ten months' imprisonment. Defendant appealed.</p>

<p>The confirmation of the title of the city of San Francisco, by the Board of United States Land Commissioners, and the dismissal of the appeal by the Attorney-General, have settled that no title to lands, within the limits of that city, can hereafter bo acquired from the United States.</p> <p>It follows, that any title accruing to individuals, since July 7, 1846, must have been derived from the local authorities of the city.</p> <p>The regulation forbidding grants to be made within two hundred varas of the water-line of the bay, had reference only to a portion of the present city front.</p>

<p>Pending proceedings for a dissolution between partners, and until a dissolution is finally declared, and a receiver appointed to make a pro rata distribution among creditors, the latter are not prevented from resorting to adverso proceedings; and when a creditor does so, he may gain a preference over other creditors.</p> <p>Therefore a debtor of the partnership is justified in payment to the sheriff, on an execution held by such a creditor.</p> <p>Prom tho same principle it follows, that the debtor has a right to purchase cross-demands against the partnership, and to set them up as a defence to the debt due by him to the partnership.</p>

The plaintiff was employed as a teacher in the common schools of San Francisco, and made out her accounts for salary for the months of May and June, 1856, which were duly audited and allowed, under the provisions of the law as then existing.

<p>The drawing of a pistol on another, .accompanied hy a threat to use it, unless the other immediately leave the spot, is an assault, although the pistol is not pointed at the person threatened.</p> <p>The drawing the weapon, accompanied "by a threat to use, is sufficient to justify the jury in finding an intent to commit a bodily injury.</p>

This was an action commenced in the Superior Court of the city of San Francisco, and transferred to the Court below,.under the provisions of the act to abolish the Superior Court. The action is brought by the plaintiffs; R. A. Swain and B. W. McDonald, against James Braves, Milo Hoadley, and Wm. H. Rhodes, upon the following appeal-bond, which is annexed to their complaint : appeal-bond.

This is an action on a bail-bond, executed by the defendants, as sureties forgone Pitiover. The plaintiff obtained a judgment against Pinover. There was no surrender of defendant, nor any execution issued within ten days after judgment. After the expiration of ten days, an execution was issued against the body of Pinover, and placed in the hands of the sheriff. On the same day, Pinover called on the sheriff, and offered to surrender himself in discharge of his sureties.

<p>Appeal'from the District Court of the Seventh Judicial District, County of Solano.</p> <p>This was an action to recover the value of five-hundred sacks of barley, alleged to belong to the plaintiff, and converted to his own use by the defendant. The facts were substantially these: One Haggett grew this, with other barley, upon his farm, and sold the same to plaintiff on, the twenty-fith of August, 1856. The sacks were marked “ V.," were counted, separated from other sacks of barley, and placed in a position by themselves in Haggett’s corrall, which was used by H. as a storehouse for his grain. The plaintiff at the same time employed one Chase to take care of the grain for five dollars per month. Chase was about the corral and looked after the barley for some two to four weeks, when he left and went to work at another place some eight or ten miles distant. On the fifteenth or sixteenth of October, 1856, Haggett delivered at Wing’s storehouse five hundred and ninety-five sacks of barley, including the five hundred sacks sold plaintiff. Haggett took a warehouse-receipt for the entire lot of five hundred and ninety-five sacks, and. some time afterwards sold the barley to defendant, who then took a warehouse-receipt in his own name. The barley remained in the warehouse until the middle of February, 1857, when it was removed by defendant. Chase, the agent of plaintiff, saw Haggett when hauling away the last load of the barley, and about one week afterwards, also saw the sacks marked “ V.” at the warehouse. A verdict and judgment were had for the plaintiff, and defendant appealed.</p> <p>On the trial, the defendant’s counsel asked the Court to charge the jury, “If there was a sale from Haggett to Yance, then the sale was fraudulent and void as to defendant as a purchaser, unless the delivery was immediate upon the sale and followed by an actual and continued change of possession.”</p> <p>This the Court refused, and. defendant excepted. The Court then, of its own motion, instructed the jury as follows, under the exception of defendant:</p> <p>“That the first thing the jury were to ascertain and determine was the fact, whether or not Haggett sold and delivered the barley to Yance. That if for a valuable consideration the grain was sold to Yance, the sacks separated, counted, and piled up by themselves, there was a sufficient delivery as between Haggett" atid Yance to pass the title to Yance. That upon the question of delivery as between Yance and the creditors or subsequent purchasers of Haggett, and also as to there being a continued change of possession, these were matters of fact for them to pass upon, since they were to determine the fraudulent intent. If they found there was not an actual delivery and continued change, the sale was made by the law itself fraudulent and void as to subsequent purchasers in good faith; that the question was rather what was the motive of Yance than what Avas the motive of his vendor. If Yance bought in good faith and had no knowledge of the purpose of the vendor, the sale Avas good, though Haggett might have intended to defraud subsequent purchasers.”</p> <p>The Court further instructed the jury, under the exception of defendant’s counsel:</p> <p>“ That the question whether or not the barley was delivered by Haggett to Yance, was a question for the jury to decide. ¡But if there Avas such a delivery by Haggett to Yance, and such a taking of the possession by Vance a.s a man would ordinarily take of such property sold to him, then the title to the grain passed to .Vance; and if purchased by Vance in good , faith, then he could not be deprived of his right to it by a subsequent taking of it by Haggett unless he consented or connived at such taking. That the question was not whether Haggett acted in bad faith, but whether the sale from Haggett to Vance '•was to be considered fraudulent and void as to Boynton as a subsequent purchaser, because of any fraudulent intent on the part of Vance—that if Vance became the owner of the grain by purchase from Haggett, and continued in possession until it was taken away by Haggett against his consent, he could not bo deprived of his right to the grain by the subsequent sale and delivery of it by Hagg'ett to Boynton.”</p>

This was an action to recover certain premises in the city of San Francisco, in which both parties claimed under David A. Cheever.

<p>Where an attachment was issued on a complaint, which was a printed form, with the blanks filled up by the clerk, at the request of plaintiff, but no named signed to it till next day, and after other attachments on the same property, when it was signed by the clerk, with the name of plaintiff's attorney: Held, that the action of the clerk, though not correct, was only an irregularity, and the complaint was not void.</p> <p>In a contest between the attaehing-creditors, all the equities are in favor of the most diligent, and an irregularity cannot be taken advantage of by a stranger, to the action in which it occurs.</p> <p>An attorney in fact, who is not an attorney at law, cannot sign his name to a complaint for his principal, as “plaintiff's attorney," and an action so commenced, is void, as instituted without authority, and by an entire stranger to the plaintiff.</p> <p>The application of an attaching-creditor, to compel the sheriff to pay over the proceeds of goods attached, there being conflicting claims between several attaehing-creditors, may be made by motion. If notice of the motion is not given, by the party moving, to the other attaehing-creditors, it is the duty of the sheriff to do so, if he wishes the decision to bind them.</p>

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>Potter, the plaintiff, sued the defendants for the possession of certain premises in San Francisco, alleging that Carney & Carson entered under a lease from him, and that Carson, in fraud of his rights, had conveyed to his co-defendants one-half of the prerpises. The plaintiff also alleged, generally, that he was the owner of the premises, and entitléd to the possession.</p> <p>The Court below submitted two issues to the jury :</p> <p>1. Whether Carson & Carney had executed the lease.</p> <p>2. Whether plaintiff had prior possession.</p> <p>The evidence as to the execution of the lease was conflicting, and as to prior possession, it was hearsay. No objection was taken to its introduction.</p> <p>The jury found the following verdict:</p> <p>“We, the jury, find for the plaintiff, from the evidence before us as to priority of possession, and that the lot is worth over two hundred dollars.”</p> <p>On this verdict the plaintiff had judgment. Defendants failed in the motion for a new trial, and then appealed.</p>

<p>In an action against a partnership, and in order to prove that one of the defendants was a a partner, it is incompetent to ask a witness, whether, from what he saw* while working for the firm, and from the acts of the particular defendant during that time, he was a partner. It does not amount even to evidence of common report.</p> <p>Common report can only be admissible, to prove a partnership; first, in corroboration, and, second, to prove knowledge of it, on the part of the plaintiff. \</p> <p>Defect of proof may be cured by testimony introduced by the adverse party.</p> <p>A deposition of one of the defendants, introduced by plaintiff, on trial, may be introduced by the defendants on a new trial.</p> <p>The party who calls on an adverse party to testify, makes him a witness, and waives his incompetency to be heard for himself or for his co-defendant, or co-plaintiff.</p>

The plaintiff filed his bill against George T. Marye and Wm. Smith, to foreclosure a mortgage made by G. T. Marye and J. Caleb Smith, now deceased. The complaint alleges that William Smith is the heir of J. Caleb Smith, and asks for an order of service of summons by publication upon him, which was granted, and service so made. Judgment by default was entered in favor of plaintiff Defendants appealed.

This was an action of ejectment brought by the plaintiff, W. L. Henderson, to secure the possession of a tract of land in Santa Clara county.

This was an action upon a contract made by the defendant, being the owner of or interested in certain steamboats, with Bichard Chenery, also the owner of steamboats, whereby the defendant, in consideration of fifteen thousand dollars to be paid by Chenery, covenanted that he would not “ run, or suffer to be run, or employed, the steamer West Point, or other steamer ” in which he was interested, to navigate certain waters of this State at any time within three years fróm the…

In November, 1847, Charles Dorente died, seized in fee of lot Ho. 196, in the city of San Francisco, leaving a widow and two infant heirs, Albert Dórente and Augustus Dórente. In June, 1849, the widow intermarried with J. Hawes Davis; and in August, 1853, Davis and wife mortgaged an undivided interest of the lot to A. A. Cohen. On the first of December, 1854, Davis, in his own name, leased a portion of the lot to the defendant for the term of six years.

<p>Appeal from the District Court of the Fourteenth Judicial District, County of Sierra.</p> <p>This was a suit in equity, for the purpose of enforcing a lien which the plaintiff claimed on the one-twenty-fourth interest of the defendant in the Oregon Mining Company. The facts are as follows:</p> <p>Ames and Buss, then owning one-twelfth interest in said company, made a verbal agreement with plaintiff Jenkins, to work their interest in said company, for which Jenkins was to have five dollars per day, to be paid him as it was taken from the claims.</p> <p>Plaintiff went to work under this, contract, and labored for a long period, sometimes representing his employers’ interest at the meetings of the company, and drawing a part of the dividends, which were much less than five dollars pier day.</p> <p>While plaintiff was at work, Buss, owning one-twenty-fourth interest, sold it, and the defendant became invested with the interest of Buss, without notice of plaintiff’s contract. The Court below decided that plaintiff’s possession was notice to defendant, and rendered a decree in favor of plaintiff. Defendant moved for a re-hearing, which being denied, he appiealed.</p>

This was an action for the value of one thousand three hundred and forty barrels of Gallego flour, and three hundred and twenty-four barrels of Ifaxall flour, of the value of twenty thousand dollars, alleged in the complaint to be unlawfully detained by the defendants. The only question in the case, is as to the Gallego flour.

In December, 1853, Hussey, Bond & Hale sold to Barker & Paddock a large quantity of flour, in store at the warehouse of Tilden & Little. A portion of the purchase-money was paid in hand, and the remainder was to be paid at stated periods, with the understanding that Barker & Paddock might withdraw any portion of the flour, from time to time, by paying the full price for the portion withdrawn.

This was an action to recover the value of thirteen mules and six horses, attached by defendant, sheriff of Sutter county, as the property of one Ford. The defendant denied that the property belonged to the plaintiff, and also justified under the attachment.

Appear from the District Court of the Eleventh Judicial District, County of Placer.

The complaint in this action alleges the possession, in January, 1856, by the defendant, of eleven thousand one hundred and fifty-six dollars, collected by him, “ as the agent, or attorney in fact, of the plaintiff,” and his embezzlement and conversion of the money to his own use, and prays that he may be adjudged guilty of fraud, and for judgment for the amount and interest, and execution against his person and property.

of the First Judicial District, County of Los Angeles. This is an action of assumpsit upon a promissory note executed by Carpenter, as principal, and Pico, as surety. On the last day of grace, during the afternoon, some hours previous to sunset, the note was presented by a notary public, at the request of the plaintiffs, to Carpenter, for payment, which was refused.