Volume 9 — California Reports

This was an action of ejectment, to recover the possession of premisos, and damages for the detention of the same. The complaint contains two counts. The first sets up title and right of* possession in plaintiff, by virtue of deeds of conveyance, from Downer and G-arlow, who were, oh the thirtieth day of July, 1855, seized and possessed of the premises in controversy.

Application por a Mandamus. The plaintiff, Anthony Ludlum, was one of the intervenors, with Thomas A. Lynch and others, in the ease of Alvin Adams v. Woods & Haskell, and held a lien against the estate of Adams & Co.; by attachment, judgment, and execution. The intervenors in that case based their right upon two grounds: first, fraud on the part of the copartners, in bringing the suit; and second, priority by virtue of intervenor’s attachment.

<p>It is not in the power of a Court of Equity to compel a married woman to correct an insufficient acknowledgment to a deed, for which she and her husband hare received the consideration. Her consent must be perfectly free. She can make no contract to bind herself, except in the manner prescribed by law. The provisions of the statute must be strictly pursued.</p>

<p>After reversal of an erroneous judgment, the parties in the Court helow have the same rights which they originally had.</p> <p>Therefore, when «a final judgment on demurrer to the complaint sustaining the demurrer, was reversed, the plaintiff had the right to «amend, on application to the Court below.</p>

<p>The Appellate Court will not disturb a verdict when the testimony is conflicting, or when the credibility of witnesses must be passed upon.</p>

<p>Where a party appealed from a Justice’s Court to a County Court, and the justice neglected to send up with the record the notice of appeal: Held, that it was error to refuse to allow appellant the opportunity of moving to compel the justice to send it up, by peremptorily dismissing the appeal.</p>

Mandamus. Application to this Court for a mandamus to compel the District Court to.issue an attachment for contempt. The facts appear in the opinion of the Court.

Mandamus. This was an application to this Court for a writ of mandamus, against the Judge of the Tenth Judicial District, to compel him to sign a bill of exceptions.

<p>Where a promissory note is signed hy two persons in the same manner, with nothing on the face of the note to show that one was merely a surety, he cannot set up in defence that he was such, and that the plaintiff had not sued in due time, and had given no notice of demand and protest.</p>

Mandamus. This was an application to this Court for a writ of mandamus against William T. Barbour, Judge of the Tenth Judicial District, to compel him as such Judge, to issue his writ of attachment against the defendants, for contempt in disobeying an injunction issued by said District Court. This is an agreed case.

The facts in this ease are the same as those in the case of Adams v. Woods & Haskell, decided at the July Term, 1857, of this Court. (7 Cal. R.) By stipulation of counsel, the record in that case is made a part of the statement in this.

William Wallace was indicted and tried for the crime of murder.

The complaint in this ease alleges that, on the fifteenth day of January, one thousand eight hundred and fifty-six, the plaintiff obtained a judgment in the Superior Court of San Francisco, against David Seannell, sheriff, for the sum of two thousand three hundred and forty-five dollars; that Seannell appealed from said judgment to the Supreme Court, and that Richards & Van-tine executed, on behalf of said Seannell, on the eighth day of March, one thousand eight hundred…

<p>$or the points decided in this case, see the case of Joseph Woods v. The City of San ¡Francisco, 4 Cal. ¡R., 190.</p>

<p>Appeal from the County Court of Siskiyou County.</p> <p>Samuel Hunt petitioned the County Court of Siskiyou county for a discharge from his debts, under the Insolvent Law, and in his petition states his liabilities to amount to one thousand dollars, and his assets to three thousand five hundred dollars. Pier-son and Hulbert, creditors named in petitioner’s schedule, filed their opposition to the discharge of the petitioner from his debts, on the ground that the facts set up in the petition did not constitute and make petitioner an insolvent debtor. The Court below sustained the objection of the creditors, and refused to discharge the petitioner. Petitioner appealed.</p> <p>No briefs on file.</p>

This was an action commenced in a Justice’s Court to recover Ahe possession of a quartz mining-claim.

<p>The object of the law, requiring the record of entry on lands under school-land warrants, was to give notice to subsequent locators and settlers, and a failure to record it in the proper office will not make the location and entry void, as to a subsequent locator with actual notice.</p> <p>This provision is like that of the act concerning conveyances, which requires the record of certain instruments, A party cannot forfeit his rights by a mistake which injures no one. A party cannot complain that he was injured, by a failure to record in the proper office, when he knew the fact without the record.</p>

<p>It is unnecessary, in an indictment for murder, to state the degree of the offence.</p> <p>Under our statute, the essential averments of an indictment should be the same as at common law; every averment that is substantially necessary for the information of the defendant, so that he may know the particular circumstances of the charge alleged against him, and how to defend himself, is still necessary.</p> <p>It must be alleged that the wound was mortal, and that the party died of the wound.</p>

<p>Appeal from the District Court of the Seventh Judicial District, Contra Costa County.</p> <p>The facts appear in the opinion of the Court.</p>

Tbis was an action to recover damages for the diversion of water from the ditch of plaintiffs, and to enjoin defendants from the continuation thereof.

<p>The debts of a partnership must he discharged from the joint-property, before any portion of it can he applied to the individual debts of the partners.</p> <p>The fact that a partner's interest is mortgaged for his individual debt, for the purchase-money of his share in the partnership, is immaterial. He can only mortgage that which he has, viz.: a share subject to partnership debts.</p>

<p>A party failing to give notice, in time, of his intention to move for a new trial, or to file his statement in time, waives his right to move for a new trial.</p>

<p>Appeal from the District Court of the Eleventh Judicial District, County of Placer.</p> <p>The facts of this case appear in the opinion of the Court.</p>

<p>Appeal from the District Court of the Eleventh Judicial District, County of Placer.</p> <p>This was an action on the official bond of constable George Haycock, to recover the sum of $428, alleged to have been collected by said Haycock, on two several executions.</p> <p>In the month of July, 1855, Haycock, as constable, received an execution issued out of Justice Sibley’s Court, in favor of plaintiff, Hill, against Newman and others, for the sum of-dollars, upon which execution Haycock collected the sum of $217. Sometime in the same month, Hill recovered a judgment in said Justice's Court, against McAllister, for $185. No execution was issued on this judgment. Subsequently Haycock purchased of McAllister a mining-claim, and paid for the same by satisfying this judgment. Hill assented to this arrangement, and agreed to look to Haycock for the amount of the judgment.</p> <p>The money on the Newman execution was put in Haycock’s safe; Hill was notified of its collection, and that the money was ready for him. Hill said that he had no use for it, and that if Haycock wished to use it he could do so. Haycock afterwards used the money. Three or four months after this Hill called on Haycock for the money, and, he not being able to pay it, it was agreed that Haycock should pay interest on the amount, at the rate of two per cent, per month. Haycock paid $50 of the amount, to Hill’s attorney. Judgment was rendered in favor of defendants, from which plaintiff appealed.</p>

<p>Appeal from the District Court of the Sixth Judicial District, Sacramento County.</p> <p>This suit was brought to recover the sum of $1,150, for services of plaintiff, as an architect, in superintending the erection of a building for defendants.</p> <p>The defendants, among other things, allege, that on the first day of August, 1855, they contracted with plaintiff, Chesley, and Leavitt, to erect said building, and that on November 29th of the same year they had a final settlement with said firm, and paid them in full. The case was tried before a jury, and verdict and judgment for plaintiff for $750. At the close of the evidence, defendants asked the Court to instruct the jury “ that if they believe, from the evidence, that plaintiff was a joint-contractor with Chesley and Leavitt, for the erection of the building, then it would be against public policy that plaintiff should be the sperintendent of the same building, and any contract for such superintendence, if proved, was void/' which instruction the Court refused to give, and defendants excepted and appealed to this Court.</p>

This is an action of replevin, to recover household furniture. The facts are as follows : Defendant, Green, on the fifteenth day of June, 1855, executed and delivered to the plaintiff an absolute bill of sale of certain household furniture, of the value of $500. The property, at the time of the execution of the bill of sale, was not delivered, but permitted to remain in a house occupied by Green, he exercising acts of ownership over the same.

<p>On motion for a new trial, the filing of a counter-statement is a waiver of objections to want of notice of the intention to move for a new trial.</p> <p>When it appears from the bill of exceptions signed by the judges, that the motion for a new trial was heard on statement, counter-statement, and affidavits, it cannot be objected that the statement was not settled.</p>

<p>District Courts have no power to restrain the execution of the judgments or orders of Courts of co-ordinate jurisdiction.</p> <p>All proceedings to enjoin judgments must issue from the Court having the control of such judgments.</p>

<p>Where A received an assignment of stock in a corporation, and the stock was subsequently attached under a judgment against the vendor, and afterwards the stock was regularly transferred to A, who then obtained an assignment of the judgment under which the stock was attached: Held, that the assignment of the judgment at once merged the lien in the higher right, and that A, as regarded third parties, became the absolute owner of the stock.</p>

<p>Whatever provision of a statute substantially defeats the end contemplated by the parties in making a contract, must impair its obligation. As the law enters into the contract and forms a part of it, the obligation of such a contract must depend upon the law existing at the time the contract was made. The contract being then complete and operative, the Legislature cannot, by a subsequent act, impair its obligation by requiring the performance of other conditions not required by the law of the contract, itself.</p> <p>The power to impose conditions after the contract is once complete and perfect, is nothing but the power to impair its obligation, and this the Constitution has prohibited.</p> <p>The provisions of the act of April twenty-seventh, one thousand eight hundred and fifty-five, requiring all persons holding certain warrants upon the treasurer of Calaveras county, to present the same for registry before a certain day or be for ever barred from enforcing the payment thereof, are therefore unconstitutional.</p>

<p>Certiorari to the Court of Sessions of Placer County.</p> <p>The facts of this case appear in the opinion of the Court.</p>

<p>A part payment made before a contract has expired by limitation, is insufficient to take the case out of the statute.</p> <p>The object of the statute was to substitute a written contract for that which might be implied from admissions, and to avoid the mischief arising from parol testimony to prove either an express promise, or facts from which a promise would follow as a legal and logical result.</p>

<p>Appeal from the District Court of the Fourteenth Judicial District, County of Sierra.</p> <p>This was a motion by plaintiff, as constable, made on notice, under the two hundred and twenty-fourth section of the Practice Act, for judgment of $650, against defendant Fisk, as defaulting bidder at a constable’s sale, of property under execution. The only defence relied upon by defendant was, the illegality of the officer’s notice of the sale of the property.</p>

This action was brought to recover $870, wages due from appellant to plaintiff, Adelaide Elizabeth, before her marriage with plaintiff, Honoré Escolle. Defendant, in his answer, alleges, that he took Adelaide, when only twelve years of age, into his family, at the request of her mother, to raise; and that he supported, clothed, and protected her, until her marriage with plaintiff.

<p>In an action to foreclose a mortgage against a husband, where the defendant sets up the right of homestead, the Court should order the wife of defendant to be brought in as a party, as no decision upon the question of homestead can be conclusive, either upon the husband or the wife, unless both are parties.</p>

<p>Appeal from the District Court of the First Judicial District, County of Los Angeles.</p> <p>The facts necessary to understand the points decided, appear in the opinion of the Court.</p>

<p>Appeal from the District Court of the Fifth Judicial District, County of Tuolumne.</p> <p>The facts upon which the decision in this case is based, appear in the opinion of the Court.</p>

<p>Where A mortgaged a lot of land for five hundred dollars, and afterwards conveyed the same to B, a feme sole, in trust for her children, and A then married B, and the two together "borrowed an additional sum, and executed a joint-mortgage for the whole amount, to the assignee of the first mortgage, and the note for the first debt was surrendered, though the mortgage was not canceled ¡ and the debt was again increased, and the last mortgage canceled, and a new one for the increased amount executed by A and B : Reid, that the holder of the last note and mortgage was entitled to a judgment thereon, and to a decree of foreclosure and sale, for the amount of the first note and mortgage.</p>

<p>Au appeal will lie from a judgment or order putting a party in contempt.</p> <p>The provision of the Practice Act authorizing judgment, personal and final, against an absent defendant, for whom the Court has appointed an attorney, with privilege to the defendant to come in and deny in six months, is not in vioalation of the Constitution of the United States or of this State.</p>

<p>Appeal from the District Court of the Twelfth Judicial District, City and County of San Francisco.</p> <p>The facts of this case appear in the opinion of the Court.</p>

<p>Ifc'is no error for the Court in a criminal case to set a day for pronouncing sentence, in the absence of the prisoner. It is only requisite that he should be present when the sentence is pronounced.</p> <p>The reading of the statute law and decisions of the Supreme Court to the jury, without exceptions taken, is no ground of error.</p>

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

Appjeal from the District Court of the Twelfth Judicial District, County of San Francisco. This was an action to enforce a mechanic’s lien. The facts appear in the opinion of the Court.

<p>Appeal from the District Court of the Fourth Judicial District, County of San Francisco.</p> <p>The facts appear in the opinion of the Court.</p>

This action was brought against the defendants, as administrators of John Marsh, deceased, for the recovery of a judgment against said estate, for the sum of $1,052.

<p>The interest of a miner in his mining-claim is property, and may be taken and sold under execution.</p>

<p>Where the parties entered into a submission to arbitration, in which it was stipulated</p> <p>that the award he entered as the judgment of the County Court: Held, that it was void in toto, that Court having no jurisdiction over the suhject-matter of the award. The Court having no jurisdiction, the arbitrators could have none; nor could they have common law powers, when appointed in the mode provided by statute.</p>

Habeas Corpus. Charles A. Stovall, a citizen of the State of Mississippi, petitioned this Court for a writ of habeas corpus, for the recovery of his slave, Archy. The writ was issued, and on the return thereof, the following argument of counsel, and decision of the Court was made. The facts appear in the opinion of the Court.

This was a motion to set aside the submission of the case' to this Court, and also the record filed herein. The facts appear in the opinion of the Court.

This was an action of trespass to recover damages for injuries done by defendants, by cutting away a dam, ditch, and flume, constructed for mining purposes, and the property of plaintiffs.

<p>Appeal from the District Court of the Fifteenth Judicial District, County of Trinity. »</p>

<p>The Supreme Court will not disturb the' findings of a Court or jury on account of conflicting evidence.</p>

<p>A sale of property, under an order of the Probate Court, is a judicial act, and therefore not within the Statute of Frauds.</p> <p>A substitution of one bidder for another, at executor’s sale, who fails to comply with the terms of sale, cannot effect the validity of the sale. The order directing the sale and the order confirming it, give vitality to the purchase.</p> <p>A purchaser at executor’s sale, under an order of the Prohate Court, cannot refuse to pay the purchase-money on the ground that the notice of sale stated a good title, and that the title was not good. The sale was stated in the notice as a probate sale, the bidder knew its character, the effect of the deed, and is bound to examine the title for himself. In these sales, caveat enptor is the rule.</p> <p>Where the terms of the sale were, one-half of the purchase-money cash, and the remainder in ninety days, with interest from date of sale, at the rate of one per cent, per month, and the purchaser elected to pay the whole amount down; Held, that the purchaser is entitled to a reduction for the interest on one-half of the purchase-money.</p>

This was an action to recover of the defendants, as executors of Joseph L. Folsom, deceased, the sum of $22,084, for extra services rendered by plaintiff for Folsom in his lifetime. Plaintiff was employed by Folsom sometime in the year 1852, as collector of rents of Folsom’s estate, for which service he received $250 per month. He continued in that capacity until July, 1854, receiving said monthly salary.

<p>The special acfe of the Legislature, approved April 4, 1857, fixing the compensation of the county clerk of the county of Placer at $3,000, was intended in lieu of‘all fees for services rendered the county.</p>

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

<p>Where a party appears and argues a motion for a new trial, he cannot afterwards ohject that the statement was not agreed to by him, and that it was not settled by the Judge.</p> <p>In a statement for a new trial the evidence may be simply referred to, and need not be set out in the statement itself.</p> <p>It is not so in a statement on appeal, in which the evidence, if relied upon, must be set out.</p> <p>Where the evidence is not set out in a statement on appeal, this Court will presume that the Court below had good reason for granting a new trial.</p> <p>The County Court has a right to grant a new trial.</p>

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

This was an action brought to recover the sum of $4,500, with interest, the purchase-money for a lot of ground in the city of Benicia, on the ground of false and fraudulent representation as to the fact of title in the vendor at the time of sale. The facts are as follows: In October, 1849, the defendant sold and conveyed to the plaintiff the lot of land for $4,500.

<p>Appeal from the Court of Sessions of Tuba County.</p> <p>The facts appear in the opinion of the Court.</p>

The defendant was indicted for the crime of grand larceny. The allegation in the indictment is as follows : “ The said Jacob Winkler, on the — day of-, a. d., 1857, and before the finding of this indictment, in the county aforesaid, one cow, of the value to wit: of $100; one cow, of the value to wit: of$80; and one steer, of the value to wit: $25, and all of the value of over $50, to wit: $205, of the property of E. J. Howard, then and there being found, feloniously did…

<p>L. advanced to H. $476, and received from H., for collection, an order for the amount upon a party indebted to him. The order not being collected, L. returned it to H. and took H.'s note for the amount advanced. In a suit on the note H. set up as a defence, laches on the part of L., in not presenting the order, by means of which the debt was lost: Held} that if there were any laches, they were waived by the execution of the note.</p>

This was an action of trespass to recover damages for cutting and breaking dam of plaintiffs,' erected below a tunnel mining-claim, for the purpose of collecting tailings wasted from said claim, and also for washing away tailings, destroying sluice-boxes, etc. Complainant prays for damages, and also for an injunction enjoining and restraining defendants from taking or interfering with the tailings flowing down the ravine from the tunnel mining-claim known as the Monte Cristo…

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

<p>Appeal from the District Court of the Seventh Judicial District, County of Solano.</p>

This action was brought against Asa Ellis, and Elbridge Ross, and A. D. Stewart, his sureties on an undertaking on appeal to the Supreme Court.

<p>Appeal from the Court of Sessions of the County of San Francisco.</p>

<p>The declaration of the master of a steamboat, whilst running the river, respecting fire communicating from the chimneys of the boat to the crops of grain on the banks of the river, by which the crop was consumed, are admissible to establish the liability of the owners, in an action against them to recover damages for the destruction of the crop.</p> <p>Steamboat and railroad companies, in propelling boats on the river, and cars on the railroad, must provide all reasonable precaution, to protect the property of others, and they must also be properly used. Carelessness in either particular, resulting to the injury of an innocent party, will make the company liable. They are bound to temper their care according to the circumstances of the danger.</p> <p>What, facts and circumstances constitute evidence of carelessness, is a question of law for the Court to determine. But what particular weight the jury should give to these facts and circumstances, is a matter for the jury.</p>

<p>Appeal from the District Court of the Fourteenth Judicial District, County of Hevada. ° »</p>

<p>Where the defendant was indicted for the crime of an ((assault with a deadly weapon with the intent to inflict great bodily injury,” and the jury found him “ guilty of an assault with a deadly weaponMeld, that it was error in the Court, to sentence the prisoner to two years in the State Prison.</p>

This was an action originally commenced in a Justice’s Court to recover the sum of one hundred and eighty-four dollars, ballance alleged to be due on an order given by Samuel C. Willse, and directed to the defendant Haines, and payable to plaintiff Bassett, for the sum of two hundred and six dollars and fifty cents.

<p>Appeal from the District Court of the Fourteenth Judicial District, County of Nevada.</p> <p>• The facts of this case appear in the opinion of the Court.</p>

In 1851, the plaintiff Bacon, and E. L. Boardman, commenced business in the city of San Francisco, as hardware merchants, under the style of Boardman, Bacon & Co. The business was continued until the twenty-fourth day of May, 1856, at which time the partnership was dissolved, and Bacon went out of the business. From this time to the twenty-first of June, 1856, the business was carried on by Boardman, he having exclusive possession of the goods and business.

<p>Appeal from the District Court of the Fifth Judicial District, County of Amador.</p> <p>The defendant and one William Leversage, were indicted for the crime of murder. The allegation in the indictment of the offence is as follows:</p> <p>“ The said William Leversage and Samuel Steventon, on the thirtieth day of November, a. d. 1857, at the county of Amador and State of California, in and upon one Abraham Hostetter, feloniously, willfully, and of their malice aforethought, did make an assault, and did then and there feloniously, willfully, and of their malice aforethought, cut, stab, and wound him, the said Abraham Hostetter; and did then and there give him, the said Abraham Hostetter, one mortal wound, of which said mortal wound the said Abraham Hostetter afterwards, on the thirtieth day of ¡November, a. b. 1857, did die. So the grand jurors aforesaid, upon their oaths, do say that William Leversage and Samuel Steventon, on the thirtieth day of ¡November, a. d. 1857, at the county of Amador and State of California, feloniously, willfully, and of their malice aforethought, did kill and murder the said Abraham Hostetter,” etc.</p> <p>To this indictment the defendant Steventon, by his counsel, demurred on the following grounds:</p> <p>1. It does not substantially conform to the requirements of sections two hundred and thirty-seven and two hundred and thirty-eight of the Act to Regulate Proceedings in Criminal Cases.</p> <p>2. The indictment is not direct and certain, as regards the circumstances of the offence charged.</p> <p>3. The facts stated do not constitute a public offence.</p> <p>The demurrer was overruled, and the defendant, Steventon, tried and found guilty of murder in the first degree, and judgment was entered accordingly. Steventon’s counsel then moved in arrest of judgment, which motion was also denied. Thereupon the defendant appealed to this Court.</p>

<p>A. kept a ferry across the Sacramento River under a license which had expired. Having lost his boat, he contracted with B. to furnish, rig, and run another, under the license to A., which he was to renew, until the profits should repay B/s advances, with interest. A. neglected to renew his license. B., after waiting four months, applied for and obtained a license in his own name, and ran a ferry under the same. A. brought suit against B. for an accounting and return of ferry. Meld, that A. had failed to carry out his agreement, and could not recover.</p>

<p>Appeal from the District Court of the Twelfth Judicial District, County of San Francisco.</p>

Appeal froto, the District Court of the Twelfth Judicial District, County of San Francisco. This was an action instituted by plaintiffs against William A. Darling and P. Warren Van Winkle, sureties in an undertaking on appeal, to recover the amount of the judgment from which the appeal was taken.

<p>Where there are amendments to a proposed statement on appeal, the draft proposed, and the amendments allowed, should be incorporated into one document, as in their separate form they cannot be regarded as any part of the record.</p> <p>2io averment of notice to the defendant is requisite in the complaint where the matters assigned as breaches lie as much in the knowledge of the one party as of the other.</p> <p>The defect in the approval of a sheriff’s bond cannot be set up as a defence in an action on said bond against the sureties. The object of the law in requiring the approval, is to insure greater security to the public, and it does not lie in the obligors to object that their bond was accepted without proper examination into its sufficiency by the officers of the law.</p> <p>The offices of sheriff and tax-collector are as distinct as though filled by different persons. The duties and obligations of the one are entirely independent of the duties and obligations of the other. They are not so blended that the bond executed for the faithful performance of the duties appertaining to the one would embrace, in the absence of the statute, the obligations belonging to the other.</p> <p>The eighth section of the Act Concerning Official Bonds, which provides that every such bond shall be obligatory upon the principal and sureties therein, for the faithful discharge of all duties which may be required of the officer by any law enacted subsequently, applies only to the duties properly appertaining to his office as such, and not to new duties belonging to a distinct office, with the execution of which he may he charged.</p> <p>The duties of sheriff, as such, are moro or less connected with the administration of justice ; they have no relation to the collection of the revenue.</p> <p>The Revenue Act of 2854 made the sheriff ex officio tax-collector, and provided that he should he liable on his bond for the discharge of his duties in the collection of taxes. "No other bond is required by law of the sheriff, except when he acts as collector of foreign miners’ licenses: Held, that the bond in suit, entered into in 1856, must be deemed to have been executed in view of the provisions of the Revenue Act, and that all delinquencies in the collection of taxes, except foreign miners’ licenses, are covered by the bond.</p> <p>The defects in official bonds, which are cured upon their suggestion in the complaint, in an action upon such bonds, under the eleventh section of the “ Act concerning the Official Bonds of Officers,” are omissions which, but for the statute, would operate to discharge the obligors.</p> <p>Where the obligors, in a sheriff’s bond, bind themselves, jointly and severally, in specific sums designated, they may all he joined in the same action, but separate judgments are required.</p>

<p>A executed a note and mortgage to B. Subsequently, A and B entered into partnership in the livery business. A was to furnish the stable, hay, and grain, and board B, and B was to attend the stable, the profits to bo equally divided, and the share of A was to be applied in discharge of the note. B received the sum of $396, A's share of the profits of the business, and then, after maturity, assigned the note and mortgage to C. 0 brought suit against A for the whole amount. A plead payment and set-off: Held, that A was entitled to the credit of the payment.</p> <p>In a judgment in a suit on a note bearing an agreed amount of interest, the interest is to be computed and made a part of the judgment, and the judgment should bear the agreed interest.</p>

The defendant was indicted and convicted of the crime of murder, in the second degree. After the defendant was arraigned and plead, Ms counsel moved the Court for a change of- venue. This motion was based on the ground that a fair and impartial trial could not be had in the county, owing to the prejudice and feeling existing against the defendant, and was supported by a number of affidavits. The motion was argued, and taken under advisement by the Court.

Charles M. Peterson was indicted by the grand jury of the County of San Francisco, for converting to his own use certain coin and gold-dust, the property of John A. Clary.

This was an action of ejectment brought against Alfred Bell, to recover possession of a house and lot in the city of Placerville. Plaintiff purchased the premises under an order of sale, issued on a judgment of foreclosure of mortgage against Bell and wife, and in favor of himself. A sheriff’s deed was duly executed and delivered by the sheriff to the plaintiff. The mortgage foreclosed was executed by both Bell and his wife.

<p>This State has the right to dispose of the swjnnp and overflowed lands granted to her hy the act of Congress, of September 28, 1859, prior to the issuing of a patent from the United States, so as to convey to the patentee a present title as against a trespasser. The language of the act of Congress conveyed to the State a present interest in the lands. The description of "Swamp and Overflowed Lands” is sufficient to give the State a present prima facie right.</p> <p>The patent is a matter of evidence and description by metes and bounds, and its office is to make the description of the land definite and conclusive, as between the United States and the State.</p>

<p>Appeal from the District Court of the Fifteenth J udieial District, County of Butte.</p> <p>This was a proceeding against the defendant, to recover possession of the office of county auditor of the county of Butte.</p> <p>The defendant was the duly elected and qualified county cleric of the county of Butte, and, by virtue of his office, claimed and exercised the duties of county auditor. The relator, John F. Kimmel, was the duly elected ■ and qualified county recorder of said county, and, by virtue of his office, claimed that he alone, as such recorder, had the right to exercise and discharge the duties of said office of county auditor.</p> <p>Plaintiff had judgment in the Court below, and defendant appealed.</p>

<p>Appeal from the District Court of the Fourth Judicial District, County of San Francisco.</p> <p>The defendant, Garrison, on or about the 19th day of October, 1854, commenced suit in the Twelfth District Court, against Elias L. Beard and others, for the purpose of foreclosing a mortgage made by said Beard and one Hopkins to the said Garrison, on certain property of Beard and Hopkins in the city of San Francisco. Samuel M. Bowman was made a party defendant in said action, on the ground that he was a judgment-creditor of said Beard’s to the amount of $2,514 60, and that such judgment was a lien upon the mortgaged premises. Bowman filed his answer, setting up various grounds of defence. Subsequently, Joseph B. Crockett, acting as the attorney of Garrison, agreed with Bowman to pay him $1,250 if he would sign certain stipulations expediting the trial of the case, waiving a jury, and also waiving the defence set up in his answer. Bowman did sign the stipulation to that effect, and. afterwards, Garrison ratified the agreement and promised Bowman to pay the amount.</p> <p>On the 6th day of May, 1856, Bowman assigned the demand to the plaintiff by an instrument in writing attached to the complaint in this cause.</p> <p>On the trial, the plaintiff offered as a witness, the assignor, Bowman. Defendant objected to the witness on the ground of incompetency, as being the assignor. The objection was sustained by the Court, and Bowman was not allowed to testify. To which ruling of the Court plaintiff excepted. Defendant had judgment. Plaintiff moved for a new trial, which was denied, and plaintiff appealed to this Court.</p>

This was an action commenced by J. P. Clay and William Templeton, copartners in business, against the defendant, to recover the sum of $2,366 10, for bricks alleged to have been sold and delivered to defendant.

This was a bill in equity praying certain set-offs against a promissory noto, and that the note be delivered up to the plaintiff, and for judgment against defendants for amount of dividends collected on certain stock deposited as collateral security for the payment of said note, and also for an injunction restraining the transfer of the note, etc. Plaintiff, G-.

<p>Ho eviction is necessary to enable a vendee to recover back the purchase-money of real estate, where the sale was void under the Statute of Frauds.</p> <p>Where a party contracts orally for the purchase of a house and lot, and furniture therein, and enters into the possession under such oral agreement, and the vendor subsequently fails to make a conveyance, the vendee has the right to quit the premises, and return the personal property.</p> <p>A plea of a former suit pending is no bar to an action where the complaint in the former suit is so defective that a judgment rendered thereon would be a nullity.</p> <p>This Court does not deem it necessary to decide whether, in all cases, where a judgment is based upon a complaint which does not state facts sufficient to constitute a cause of action, the judgment itself may be treated as a nullity.</p>

Akpsal from the District Court of the Sixth Judicial District, County of Sacramento. This was an application to the Court below for a writ of mandamus against the defendant, to compel him, as State Treasurer, to pay certain warrants drawn by the Comptroller, prior to the first day of January, 1857, for the payment of portions of the salaries of District Judges, accruing in 1856. An order to show cause why the writ should not be issued, was made against the defendant.

<p>Motion to set aside the submission of the case to this Court on the record.</p> <p>This case was tried in the Court below, and the statement settled by the referee appointed by the Court for that purpose, and the statement, as settled, ordered to be engrossed. When engrossed by the attorney of appellant, it was certified to be correct by the Judge of the Superior Court, and filed with the clerk. The counsel for respondent afterwards moved the Court to strike the engrossed statement from the record, for the reason that it was untrue, and-contained matters not included in the settled statement. On the hearing of the motion, the Judge revoked his certificate to the engrossed statement, and ordered that the statement should be made conformable to the settled statement. This order was not entered in the record, nor is it certain that it was in writing; but if in writing, it was lost or mislaid. The Judge of the Fourth District Court, after the cases pending in the Superior Court had been transferred to that Court under the provisions of the act of the Legislature, made an order directing the order made by the Judge of the Superior Court, revoking his certificate to the correctness of the statement, to be entered nunc pro tunc.</p>

This was a bill in equity filed by the plaintiffs against the defendant for the purpose of having an account stated, signed by the plaintiffs and defendants, set aside on the ground of fraudulent concealment of facts and misrepresentations on the part of the defendant.

<p>Aeeeae from the District Court of the Twelfth Judicial District, County of San Francisco.</p> <p>A statement of the facts appears in the opinion of the Court.</p>

Appeals from, the District Courts of the Seventh and Twelfth .Judicial Districts, Counties of Marin and San Francisco, 'These three cases were argued together, as they all grew out ■of the same transaction. The first of the actions was ejectment, brought by plaintiff against defendants, to recover a tract of land in Marin county, tried before the District Court without a jury.

<p>As a general rule in criminal cases, this Court will not review, on appeal, an order refusing a new trial moved for on the ground that the verdict is against the evidence, unless the record contains a statement setting forth all the material portions of the testimony.</p> <p>But when the record states that it gives “in substance all that was proven on the part of the State,” it is sufficient. The facts, as proved, being given, there is no necessity of setting forth the testimony.</p>

<p>Appeal from-the District Court of the-Tenth Judicial District* County of Yuba. ■- -- '■■ ■ ></p> <p>The facts appear in the opinion of the Court.- -1</p>

■ .This was a bill in chancery brought to rescind a contract, on the ground of fraud.- To the bill a demurrer was interposed on the ground that the action was barred by the Statute of Limitation. The Court below sustained the demurrer and dismissed the bill; and from its ruling the plaintiff appealed.

. Appeal' from, the ¡District Court of the Twelfth, judicial-J)istript, Qourity of-San Fran Cisco. '' . ■ G This is an action of ejectment) to, recpver a lot situated in the-., city'of'San Francisco. It appears, from the record, that, if had-; deus' M. IjéaVenworth occupied the premises from some time in ; 1849 until March, 1850, when he conveyed theny to;Mitchell.

This action was commenced on the fourth of April, 1855, by the appellant, against the respondents, on three promissory notes m¡i ie and delivered by G. 0. McMickle, deceased, to Ragley and Sinton, and by them assigned to Bagley. On the death of Mc-Miukle, the claim, duly verified, was presented to the administrators of his estate, and rejected, and suit brought within three months thereafter. The answer contains five different defences: 1. A general denial. 2.

This was an action of assumpsit. The complaint contains two counts: The first, to recover twenty-six thousand dollars, or thereabouts, for gas furnished for lighting the streets of San Francisco, under a contract between the city and James Donahue & Co., which was assigned to the plaintiff. This contract was before the Supremo Court, and affirmed in the case of the San Francisco Gas Company v. The City, 6 Cal. R., 190. On this count no question is now made.

The defendant obtained judgment in the Court below, and the plaintiff appealed. The facts appear in the opinion of the Court.

<p>Appeal from the District Court of the Twelfth Judicial District, County of San Francisco.</p> <p>This action was brought on four several promissory notes, executed by the defendant. The notes are payable to the “ order of E. Judson,” but are described in the schedule of debts and liabilities, annexed to the defendant’s petition in insolvency, as drawn in “ favor of Mr. Farnum,” without further particulars. On the trial, evidence was introduced, tending to prove the delivery of the notes to Farnum, as agent of the plaintiff, and ignorance of the real creditor, by the defendant, when the notes were executed, and when his petition in insolvency was presented. The Court instructed the jury, that by reason of the misdescription of the notes, and want of specification of the name of the real creditor, the proceedings in insolvency constituted no bar to the action, even if they believed the defendant did not know, at the time of their execution, and on the presentation of his petition, that the plaintiff was the real creditor; and this instruction the plaintiff assigns as error.</p>

This is a suit in equity, to enforce the covenants of a deed of separation, entered into between William Stout and his wife, Mary Stout, through the intervention of a trustee. The deed was executed by the husband and wife at San José, on the 16th of February, 1850, in the presence of several witnesses, of whom the defendant, Jacob W. Stout, was one. The parties had previously agreed upon Talbot H. Green as trustee, and he had consented. to accept the trust.

<p>Appeal from the District Court of the Twelfth Judicial District, County of San Francisco.</p> <p>This was an action on a promissory note. The complaint alleges the copartnership of the defendants, and the execution by them, of the two notes in suit. The answer of the defendant, Thomas, denies the copartnership at the date of the notes, and any authority in his co-defendant to bind him as partner; but does not deny the execution of the notes by the defendants, or by himself in their name. The other defendant was not served with process and did not appear in the action. The pleadings are verified, and upon them the Court gave judgment for the plaintiff, without the introduction of any testimony.</p>

This was an action instituted against the defendants to recover from them the sum of 6372 46. The action was brought on an undertaking executed by the defendants to release certain property, seized and held by attachment in a certain suit wherein Teal and Post were plaintiffs, and Davidson and Stevens were defendants.

Habeas Corpus. Mewman, the petitioner, was tried, and convicted before a justice of the peace of the city of Sacramento, for a violation of the act of April 10th, 1858, entitled “An Act to provide for the better observance of the Sabbath,” and was sentenced to pay a fine of fifty dollars, and the costs of the prosecution—twenty dollars—or, in default of the payment of such fine and costs, to be imprisoned thirty-five days.

This was an action for damages against the defendants for an alleged libel upon plaintiff, in his profession as a dentist. George W. Smiley, one of the defendants, applied to the plaintiff, Dr. II. II. Thrall, a dentist, to extract for him a tooth, which operation the latter undertook to perform. The tooth was a hack molar, of the lower jaw.

<p>An attachment, issued before the issuance of the summons in the suit, is void, and the subsequent issuance of the summons cannot cure it.</p> <p>Per Burnett, J.—A deed and defeasance, to constitute a mortgage, must he between the same parties.</p> <p>Parol evidence is not admissible to show that a deed, absolute on its face, was intended as a mortgage, except in cases of fraud, accident, or mistake in the creation of the instrument itself.</p> <p>In the absence of a mutuality of obligation, it must appear by apt and express words in the instruments, that it was the intention of the parties that the transaction should amount to a mortgage.</p> <p>The judgment in an attachment-suit need not direct the sale of the property attached, as the law makes it the duty of the sheriff to sell it.</p>

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

<p>Appeal from the District Court of the Ninth Judicial District, County of Shasta.</p>

This was an action of ejectment for certain land in Stanislaus county. On the trial below, plaintiff offered in evidence a patent from the Governor of California, issued under the act of April, 1855, providing for the sale of swamp and overflowed lands. This evidence was rejected on the ground that no patent was shown to have issued from the United States, conveying such land to the State of California, and a judgment of nonsuit entered, from which plaintiff appealed.

<p>The removal of an enolosure of land, for the purpose of replacing it with a better one, so far from being evidence of an intention to abandon the premises, is direct evidence of the contrary.</p> <p>An entry with full notice of plaintiff’s rights, during a temporary removal of bis enclosure, can not be defended on the ground that the lands were unenclosed.</p>

<p>Appeal from the District Court of the Tenth Judicial District, County of Tuba.</p> <p>This action was brought upon the following promissory note :</p> <p>“ $500. Marysville, February 25, 1856.</p> <p>“ On or before the twenty-fifth day of May, a. d. 1856, we promise to pay to Isaac Hartman, or order, for value received, five hundred dollars, with interest at the rate of throe per cent, per month until paid.</p> <p>r0. “J. Burlingame.</p> <p>r0. [Signed] “W. B. Latham, Jr.”</p> <p>Service was had only on Latham. Latham, in his separate answer, denies the indebtedness, and avers that he signed the note as surety for Burlingame, that he received no consideration whatever for which the note was given, and that the plaintiff, at the time of the execution and delivery of the note, knew the same; that plaintiff has wholly failed to demand payment of Burlingame at the time when said note fell due, and that plaintiff has also failed to give this defendant notice of the non-payment of the note.</p> <p>The answer further charges that defendant Latham, after the note fell due, requested plaintiff to bring suit on said note by attachment against defendant Burlingame; that plaintiff neglected to do so ; that Burlingame had property, liable to attachment at the time, sufficient to discharge the note, and that he (Burlingame) was in failing circumstances, and plaintiff was fully informed, and that Burlingame did fail shortly after, and became insolvent.</p> <p>The Court below finds that Latham, though he appears on the note as principal in fact, signed as surety, and that this fact was known to plaintiff. That on the thirteenth of December, some time after the maturity of the note, Latham, fearing that Burlingame was about to become insolvent, called on plaintiff, and requested him to sue on the note, offering to point out property sufficient to satisfy it; but that plaintiff delayed bringing suit till the twenty-sixth of December ,• that between the thirteenth and twenty-sixth of December, Burlingame conveyed property to certain parties for a consideration of $2000, greatly more than the amount of the note; and, from these circumstances, the Court finds that Burlingame was solvent on the thirteenth, and was insolvent on the twenty-sixth, when the suit of plaintiff was instituted.</p> <p>Plaintiff had judgment, and the defendant, Latham, appealed to this Court.</p>

<p>The rule is that when property converted has a fixed value, the measure of damages is that value, with legal interest from the time of its conversion; when the valuó is fluctuating, the plaintiff may recover the highest value at the time of its conversion, or at any time afterwards.</p> <p>An objection to the form of a verdict should be made on motion for a now trial. It is too late to raise it in this Court for the first time.</p>

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

<p>Appeal from the District Court of the Tenth Judicial District, County of Yuba.</p> <p>This was an action of ejectment brought to recover the possession of a tract of land, together with damages for its detention.</p> <p>The defendant claimed title by virtue of a purchase of the premises at sheriff’s sale, under an execution issued upon a judgment against the plaintiff; and on the trial introduced in evidence, in support of his claim, the judgment, execution, and sheriff's deed to him for the premises in question. The plaintiff, to rebut this proof on the part of the defendant, introduced evidence to show that the premises had been redeemed prior to the execution of the deed from the sheriff to the defendant.</p> <p>After the close of the testimony, the Court instructed the jury “ to find for the defendant, as the plaintiff had failed to show any payment in redemption of the premises.” Plaintiff excepted to this instruction. The jury returned a verdict for the defendant, and judgment was entered thereon. Plaintiff appealed.</p> <p>It does not appear affirmatively from the statement on appeal, or the record, that the defendant was notified of the settlement by the Judge of the statement. The Judge’s certificate to the statement is as follows:</p> <p>" I hereby certify that the foregoing statement is substantially correct.</p> <p>(Signed) “ W. T. Barbour, District Judge.”</p>

<p>Where the regulations of a mining locality require that every claim shall be worked two days in every ten: Meld, that the efforts of the owners of a claim to procure machinery for working the claim, are, by fair intendment, to be considered as work done on the claim.</p> <p>So, also, is working on adjoining land in constructing a drain to enable the owners to work the claim.</p> <p>In an action by a company of miners to recover possession of a mining-claim, and damages for its detention, a person who was a member of the company at the time of the alleged detention, and who, prior to the commencement of the suit, in consideration of unpaid assessments, sold his interest to his copartners in the claim, without warranty, is not a competent witness, as he is interested in the damages sought to be recovered.</p> <p>The mistake of counsel as to the competency of a witness, is no ground for granting a new trial.</p>

<p>It is the duty of a justice of the peace, when an appeal-bond is presented to him for his approval, to act promptly. If he receives the bond without objection, it will be too late to disapprove it the next day.</p> <p>An offer to pay the justice his costs, on appeal, so soon as the appeal-papers are ready to transmit to the County Court, is not a sufficient tender, under the statute. The fees must be tendered unconditionally.</p> <p>The justice is not bound first to make out the papers, and then rely on his fees being afterwards paid.</p> <p>Where an alternative mandamus was issued to a justice of the peace to compel him to send up papers on appeal to the County Court, to which he answered that his fees had not been paid or tendered “ prior to the service of the alternate writHeld, his answer is no defence to the writ being made peremptory, as the fees may have been paid since the service of the writ.</p>

<p>Where the defendant, a master of a vessel, received certain goods of plaintiff, to be delivered at a certain place, which he failed to do, and in the action brought thereupon he offered to prove that the goods belonged to a third party, who had forbidden such, delivery, and that plaintiff had obtained possession of the goods by fraud: Heldf that he was entitled to prove such facts.</p> <p>To the general rule that a bailee will not be allowed to set up title in a third party, in an action brought by the bailor, there is an exception in cases where the bailor’s possession was obtained by fraud.</p>

<p>In an action of ejectment, a tenant can not deny the title of the vendor of his landlord»</p>

The defendant was indicted, tried, and convicted of the crime of murder.

This was an action for damages upon a breach of contract on the part of defendant.

This was an action of trespass, brought by the plaintiff against the defendants, for discharging their tailings on the mining-claims of plaintiffs.

<p>Appeal from the District Court of the Fourteenth Judicial District, County of Sierra.</p> <p>A statement of the facts, sufficient to understand the points decided, appears in the opinion of the Court.</p>

<p>In an action in which a homestead right is asserted, in which an issue of fact is made as to the marriage of the parties claiming to be husband and wife, the declarations of the alleged wife to the effect that she is not married, are admissible in evidence.</p> <p>Parol evidence of the contents of a written contract between the alleged husband and wife to live together without marriage is inadmissible, except after due notice to produce the contract, and refusal to do so.</p> <p>But where such evidence is offered simply to prove the fact that a writing was made in reference to the matter in controversy, without stating the contents of the same, it is admissible.</p>

<p>Appeal from tho District Court of the Eighth Judicial District, County of Siskiyou.</p> <p>A statement of the facts appears in the opinion of the Court.</p>

<p>Where two several mining companies agree upon a boundary-line between the claims of the two companies, and, subsequently, other parties purchase the several interests of the two companies, with a knowledge of the boundary-line so fixed, both parties are concluded by it, and are estopped from denying the line.</p> <p>The fact that such line was fixed by a mistake as to the true boundaries and corners, makes no difference, as the subsequent purchasers purchased with a view to this line.</p>

This was a bill in equity to set aside certain assignments of property, and to compel a debtor to apply his property to the payment of plaintiffs’ debt, and also for an injunction.

A motion was made on the part of counsel for respondent Gray, to dismiss this appeal, on the ground that the appeal was not taken in time. The first decree was entered some time in the year 1855, probably in October, but it is not certain, as there is no date to the decree. The actions were consolidated October 24,1855, and the decree seems to have followed directly after the order of consolidation. The second decree was made on the twenty-first day of ¡November, 1856.

<p>An appeal is made by filing and serving the notice of appeal. Both requisites must exist, to complete the appeal.</p> <p>A failure to notify the adverse party is fatal.</p>

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

This was a bill in equity to recover trust funds in the hands o^ the administrator of a trustee. The action was originally brought in the name of Henry Gunter, against William Barber, administrator, with the will annexed of J. J. Starkey, deceased. Subsequent to the rendering the interlocutory decree Gunter died, and the action was revived in the name of the above-named Elizabeth A. Gunter, his widow and executrix.

On the ninth of April, 1847, Susannah Hinkley leased toWard and Smith certain premises in San Francisco, for a term of eight years from date, at a rate of $300 per annum.

This was a suit in equity, to obtain an account from the defendants, as trustees of Mary Ellig and John Ellig, (now deceased,) and also the surrender of the trust estate, and charging the defendants with negligence and mismanagement of the estate, and claiming a judgment for $13,500, rents alleged to have been collected by the trustees, and not paid over, and also praying a restraining order of Court against defendants during litigation, etc. The facts are as follows: John…

This was an action to recover damages for the mal-performance of a contract to transport Mrs. Warner and infant child from San Francisco, via San Juan del Sur, to the city of New York. The complaint alleges a contract on the part of the agents of defendant to convey plaintiff Anne Warner, and her infant child, from San Francisco, in California, via San Juan, in Nicaragua, to Hew York, in consideration of certain money paid by plaintiff.