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Opinions in cal Volume 21

Norton, J. concurring. A rehearing was granted in this case for the purpose of considering more fully the matters relied upon by way of defense. After giving these matters the consideration which then importance deserves, we see no reason for a conclusion different from that previously attained. The action is upon four promissory notes, and it is alleged in defense, that before the action was comm...
Views: 3
Cope, J. and Norton, J. concurring. This is an action for the foreclosure of a mortgage executed on .the twenty-seventh of February, 1856, by David C, Broderick, late *29of the city of San Francisco, upon certain real property situated within' that city, to secure his promissory note of the same date for ten thousand dollars, payable in twelve months, with interest. Broderick died on the sixteenth...
Views: 7
Cope, J. concurring. The first objection urged in this case is to the ruling of the Court below in allowing the Alcalde grant to be read in evidence, without proof of the order of the Town Council directing the sale which is recited in the grant. The Alcalde states in the grant that he makes it by virtue of the authority in him vested, and in pursuance of the order of the Town Council. If the Alca...
Views: 7
Cope, J. concurring. This case differs in only one particular from that of E. A. White against the same defendants, which is decided at the same time with this. On the trial of this action, the defendants offered to read in evidence a certified copy of a record of a deed of the premises in question, executed by these plaintiffs as executors to E. A. White, for the purpose, apparently, of showing a...
Views: 0
Field, C. J. and Norton, J. concurring. This is an action on a promissory note in the following form: “ Three months after date the Ocean Mining Company promise to pay W. G. Bright or order one thousand dollars, for value received, with interest at the rate of two per cent, per month.” The note is signed, “ James Harter, Trustee, S. N. Stranahan,” both of whom are made defendants, and charged as m...
Views: 4
Cope, J. and Horton, J. concurring. This is an action to recover of the defendant the sum of $7,890, being the amount of certain proceeds received by him from an interest in a quartz vein belonging to the plaintiff. The interest constituted the separate property of the plaintiff, who is a married woman, and the proceeds were received by the defendant previous to her marriage. The complaint is spec...
Views: 4
Field, C. J. and Cope, J. concurring. This is an action of ejectment, in which the plaintiff claims title through a decree of foreclosure of a mortgage claimed to have been executed by one McMillan and his wife upon the premises in question. The defendant claims under a lease from McMillan and wife. On the trial, the plaintiff offered in evidence the record of the foreclosure proceedings, to which...
Views: 5
Field, C. J. and Norton, J. concurring. This is an action of forcible entry and detainer. The necessary facts are alleged in the complaint and found by the Court, and the judgment is in accordance with the pleadings and finding. It is objected that the Court erred in awarding as damages the value of the rents and profits, such value not being stated in the complaint. We are of opinion that no erro...
Views: 3
Cope, J. and Norton, J. concurring. This is a suit on the equity side of the Court to set aside a salé of certain real property, made under execution issued upon a judgment against the city of San Francisco. The facts of the case, so far as they are material for the determination of the appeal, are as follows: In January, 1856, James Haslett recovered a judgment in the late Superior Court against ...
Views: 4
Field, C. J. and Cope, J. concurring. *67This is an action of ejectment, brought to recover certain premises which are a part of a tract of land called the San Pablo Rancho. The defendant claims to be the owner of the undivided one-twenty-fourth part of the rancho. After setting up this title and denying the plaintiff’s asserted title, the defendant for a second answer sets up, as an equitable def...
Views: 6
Norton, J. concurring. The proceedings in this case were had during the existence of the statute requiring a replication to new matter set up in the answer. The action is based in part upon a promissory note, and the question is, whether a plea of payment is new matter in the sense of the statute. Hew matter is that which admits the facts alleged as the grounds of relief, but avoids them by introd...
Views: 9
Norton, J. concurring. The judgment on the demurrer in this case is reversed and the cause remanded upon the authority of Fallon v. Butler, decided at the present term. So far as the enforcement of the mortgage is concerned, the District Court had jurisdiction of the action; but no judgment can be entered up for any deficiency which may remain after the application of the proceeds of the sale—the ...
Views: 0
Field, C. J. and Norton, J. concurring. This is an action upon seven promissory notes of which the plaintiff claims to be the holder by assignment. Six of these notes, payable to different parties, were assigned to one of the makers, and by him to the plaintiff. The first assignment was before and the second after maturity, and the question arises as to the effect of these assignments. It is conte...
Views: 5
Field, C. J. concurring. The only question in this case is whether the machinery mentioned in the pleadings was intended to be and was used as a part of the building of the sugar refinery. If so, the price stipulated to be paid for It constituted a lien, within the meaning of the statute. It is argued, that parol proof of this intended use or purpose cannot *86be introduced in aid of the written c...
Views: 5
Cope, J. and Norton, J. concurring. The plaintiff sold to the defendant Lies certain real estate, and took from him a mortgage to secure the payment of $4,000 of the purchase money. Lies sold the property to one Lefevre, subject to the mortgage, and subsequently received back a conveyance of a portion of the premises. Lefevre died soon afterwards, and the defendant De la G-uerra is the executor of...
Views: 4
Field, C. J. and Norton, J. concurring. This is an action to compel the defendant to convey to the plaintiff a tract of land in the county of Solano. As we understand the case, the plaintiff employed the defendant to purchase the land for him, advancing a portion of the purchase money, and agreeing with the defendant as to the payment of the balance. The defendant paid upon the purchase, in additi...
Views: 9
Norton, J. concurring. It is impossible to perceive, from the facts disclosed by the transcript before us, what effect, if any, the quitclaim deed of the mortgagee had upon the rights of Middlemiss. It was executed during the pendency of the action for the foreclosure of the mortgage, and if available for any purpose it should have been in some form presented to the consideration of the Court befo...
Views: 2
Norton, J. concurring. The respondents purchased of one of the defendants after the commencement of the action, and with notice of its pendency. They occupy, therefore, the precise position of their grantor. In other respects the case is covered by the decision in Montgomery v. Middlemiss—recently rendered. Upon that authority the order of the District Court must be reversed, and that Court direct...
Views: 2
Field, C. J. and Cope, J. concurring. This is an application for a mandamus to compel the defendant to execute a conveyance of certain property sold by him as Sheriff, etc. The application is contested upon the ground that the property has been redeemed, and the question is, whether the persons claiming to have redeemed it are redemptioners within the meaning of the statute ? The sale was made und...
Views: 4
Field, C. J. and Cope, J. concurring. The plaintiff in this action seeks to recover compensation from the county of Yuba for the damage which he sustained by reason . of the unskillful treatment he received from the Resident Physician, and the insufficient and unwholesome food and other necessaries sup- 6 plied him while in the County Hospital as an indigent sick person. A demurrer to the complain...
Views: 11
Field, C. J. and Norton, J. concurring. This is an action to recover of the defendant his proportion of an assessment levied to defray the expenses of work done on a street crossing in the city of San Francisco. The suit was brought under the fifty-ninth section of the Consolidation Act, and the first point made is, that in 1861, and prior to the commencement of the suit, this section was repealed...
Views: 3
Field, C. J. and Norton, J. concurring. This is an action to recover the sum of $1,200 for the use and occupation of certain premises in the city of San Francisco. The complaint sets up an agreement to pay a monthly rent of three hundred dollars for the. use of the premises, and the question is whether this agreement has been proved. It appears that the *122defendant had been occupying the premise...
Views: 1
Field, C. J. and Norton, J. concurring. This is an action upon two accounts, one in favor of Taaffe, McCahill & Co., and the other in favor of Canfield, Pierson & Co., for goods, wares, and merchandise sold and delivered. The plaintiff sues as assignee of these accounts, and the defendant sets up in defense a composition between him and the assignors of the plaintiff, by which it was agreed that u...
Views: 7
Field, C. J. and Norton, J. concurring. This is an appeal from an order quashing a writ of scire facias issued by the District Court for Alameda County, to revive a judgment. The writ recites that the judgment is unsatisfied, and requires the defendants to appear and show cause why the plaintiff should not have execution, etc. The relief sought by the writ is amply provided for by the Practice Act...
Views: 4
Field, C. J. and Norton, J. concurring. The Scott River Water and Mining Company executed to the plaintiff a mortgage upon certain ditch property in the county of Siskiyou. The mortgage debt not being paid, a suit was brought, and a decree obtained under which the property was sold—the plaintiffs becoming the purchasers, and receiving the usual certificate of sale, and at the expiration of six mon...
Views: 0
Cope, J. and Norton, J. concurring. To the complaint in this case, which is an action of ejectment, a demurrer was interposed on several grounds, and among others, for alleged insufficiency of the description of the premises; and on this ground the demurrer was sustained. The plaintiff declining to amend the complaint, final judgment was entered for the defendant. The premises are situated in Cont...
Views: 2
Norton, J. concurring. The complaint alleges that in 1853 the plaintiff conveyed to the defendant a tract of land in the county of Solano, taking a bond for the payment of the purchase money. The bond is set out in full, and is conditioned for the payment of the money within one year from the date thereof, and indorsed upon it is a memorandum, as follows: “ Received on the foregoing bond the sum o...
Views: 5
Field, C. J. and Cope, J. concurring. By the terns of the deed, the §14,000 were to be paid when the action of Rico should be finally decided in favor of the defendants (the plaintiffs in this action) as against all claims made by said Rico. The terms of the contract executed simultaneously with the deed are in effect the same. The stipulation is, not that all claim of Rico was to be finally adjud...
Views: 6
Cope, J. concurring. This is an appeal from an order directing the receiver to “ distribute of the funds in Ms hands, under and in the order mentioned in the decree heretofore made in this cause, the sum of $5,000 to the parties entitled to the same.” This order is not a special proceeding within the purview of the first subdivision of section three hundred and tMrty-six of the Practice Act. It do...
Views: 0
Cope, J. concurring. The plaintiffs having obtained a judgment in the District Court for Sacramento County, and more than one year having elapsed, the defendant, on a representation that the District Court had exceeded its jurisdiction by rendering a judgment against him without having acquired jurisdiction of his person, and that the time allowed by statute for an appeal had expired, procured a w...
Views: 13
Field, C. J. concurring. The facts in this case which will determine our judgment are, in substance, as follows: The Sheriff of San Francisco County, D. Scannell, under various attachments and executions, sold certain property of the firm of Gladwin, Hugg & Co. The sale was conducted by Cobb as auctioneer, and he deposited the proceeds, as was his custom on other sales made for the Sheriff, with h...
Views: 0
Norton, J. concurring. The doctrine that a vendor of real property, after an absolute conveyance, retains an equitable lien for the unpaid purchase money, prevails in England and in nearly all the States of the Union. The difference of opinion in the numerous cases upon the subject in the Courts of this country relates principally to the character of the lien, and to the question whether it passes...
Views: 8
Field, C. J. and Norton, J. concurring. Covillaud and Eye purchased of one Burlingame a lot with the improvements thereon in the city of Marysville, and as a part of the consideration assumed the payment of a mortgage upon the property, in favor of the plaintiff, for the sum of §6,000. Eye conveyed his interest in the property to Covillaud, and the latter arranged with the plaintiff for a release ...
Views: 7
Field, C. J. and Cope, J. concurring. The deed, under which the plaintiffs claim title to the premises which they ask to have partitioned, conveys the undivided half of *199the tract of land called the Rancho of San Lorenzo. It also contains a provision that the grantees shall have a right to an immediate partition, and may divide the premises by a line running east and west or north and south, an...
Views: 0
Cope, J. concurring. In this State, by statute, tenants in common can unite in an action for the possession of real property. (Laws of 1857, ch. 68.) And executors and administrators can maintain such actions in all cases where their testators or intestates could have maintained them, until the administration of the estates they represent is *209closed, or the property is distributed under decree ...
Views: 3
Field, C. J. concurring. It was not error to deny the motion for nonsuit. The answer did not deny the sale of the cattle at an agreed price, which is the cause of action set forth in the complaint. A denial of the indebtedness, without a denial of the facts which show the existence of the indebtedness, is but a denial of a conclusion of law, and raises no issue. But the denial of the indebtedness ...
Views: 1
Cope, J. and Norton, J. concurring. This is an action of ejectment to recover the possession of certain premises situated in the counties of San Francisco and San Mateo. The plaintiff deraigns his title from the Mexican Government through a grant issued by Alvarado, Governor of California, to Jacob P. Leese in July, 1841. This grant was presented to the *221Board of Land Commissioners for confirma...
Views: 8
Field, C. J. concurring. On the trial of this action the Court gave the following charge to the jury: “ The sale relied upon by the plaintiff, Hickman, of a portion of the property in controversy from N. J. Farrens to him took place in Oregon, and without the jurisdiction of the State of California, and, therefore, the said sale cannot be attacked by the defendant in this cause for an actual or le...
Views: 6
Norton, J. concurring. This case is covered by the decision recently rendered in Baum v. Grigsby. The plaintiff seeks to enforce a vendor’s lien upon the premises described in the complaint as assignee of a portion of the unpaid purchase money. Such lien, as we have held in the decision mentioned, is not a specific absolute charge upon the property, but only an equitable right of the vendor to res...
Views: 2
Field, C. J. and Norton, J. concurring. In April, 1860, the defendant executed to the plaintiff and one Berring a lease of certain premises in the city of San Francisco, for one year, commencing on the first of August. Berring assigned his interest to the plaintiff, and at the proper time the plaintiff tendered the rent and demanded possession of the premises, but was prevented from entering by on...
Views: 10
Field, C. J. and Norton, J. concurring. This is an action upon an undertaking on appeal from a judgment of foreclosure. The undertaking provides, among other things, that if the judgment be affirmed the appellant shall pay the value of the use and occupation of the premises from the time of the appeal. Proceedings upon the judgment were stayed until the appeal was determined, and the question is, ...
Views: 2
Cope, J. concurring. This bill was filed to restrain the defendants from building and setting up a free bridge over the Feather River, at or near Marysville. The ground of complaint is, that the plaintiffs are the owners and possessors of a licensed toll-bridge near by. The plaintiffs aver that the franchise was acquired in 1852 by the plaintiff Hanson ; that since the acquiring of the franchise t...
Views: 6
Field, C. J. and Cope, J. concurring. The complaint in this action sets forth that the plaintiff has taken the requisite steps to acquire the right of way for its road over certain premises therein described under the Act of Congress of August, 1852, which gives such right over the public lands; that the premises are public lands, unsurveyed and not held for public use by erections or improvements...
Views: 6
Field, C. J. and Cope, J. concurring. The affidavit of the accused, that he cannot have an impartial trial in the county where he is indicted, is not alone sufficient to authorize a change of the place of trial. The fact that thirty or forty persons, upon being solicited, have contributed small sums to defray the cost of employing a lawyer to assist the prosecuting attorney, does not show the exis...
Views: 6
Field, C. J. and Cope, J. concurring. This is an action of ejectment, in which the summons was served on the defendant Quigley, but not on the defendant Rigney—Quigley having suffered a default, judgment was entered against both defendants. Rigney then moved the Court to set aside the judgment, which motion was granted. The plaintiff appeals, and insists that Rigney could only ask to have the judg...
Views: 4
Field, C. J. and Norton, J. concurring. *279This is a suit upon an undertaking executed by the defendants in pursuance of section ene hundred and two of the Practice Act. The only description of the undertaking in the complaint is, that it corresponds with the provisions of that section, and it is objected that in this respect the complaint is defective. It is claimed that the material portions of...
Views: 6
Field, C. J. concurring. *286This is a case arising under the provisions of the Civil Practice Act relative to interventions. 'On the tenth of January, 1861, the plaintiff commenced his action, and caused an attachment to be levied upon the property of Ihmels & Co. On the same day Eggers & Co. commenced an action against the same defendants, and caused an attachment to be levied upon the same prop...
Views: 3
Cope, J. and Norton, J. concurring. This is an action for the possession of certain real estate situated within the city of San Francisco. The plaintiff bases his right to recover upon title as evidenced by the possession in 1850 and 1851 of one Mondolet, through whom he claims. The defendants rely upon two tax deeds, one executed by the Treasurer of the county of San Francisco in March, 1851, and...
Views: 5
Cope, J. and Norton, J. concurring. The motion to open the default entered against the defendants, David and Dennis Mahoney, and to allow them to answer to the complaint, was properly denied. Then* default was entered in *308November, 1854, and the motion was made in September, 1861— nearly seven years afterwards. The delay in the motion is attempted to be explained by the existence of an alleged ...
Views: 3
Field, C. J. and Norton, J. concurring. This is an action under the thirteenth section of the Forcible Entry and Unlawful Detainer Act. The complaint alleges that the defendant is a tenant of the plaintiff, and that he unlawfully detains the demised premises, setting forth facts showing a wrongful holding over. The answer admits that a tenancy once existed between the parties, but alleges that it ...
Views: 6
Norton, J. concurring. It appears from the recitals of the submission entered into between the parties, that in December, 1858, the defendant purchased of Henry Blair, one of the plaintiffs, certain real estate situated in the county of Sacramento, and gave Ms promissory note for the purchase money; that in July, 1859, the defendant sold and conveyed a portion of the premises to James Blair, the o...
Views: 2
Cope, J. and Norton, J. concurring. This is an action of ejectment for the recovery of certain real estate situated in the city of San Francisco. The premises constitute a portion of the municipal lands of the old pueblo. The plaintiffs rely upon the prior possession in 1849 and 1850 of one Thomas White, through whom they claim. The defendant rests his defense upon a grant issued by a Justice of t...
Views: 5
Field, C. J. and Cope, J. concurring. This is an action to recover the possession of real estate. The plaintiffs and defendants both claim under A. M. Jackson, the latter under a mortgage sale and the former under a deed. In 1850, May 15th, Jackson executed a mortgage to one McKinney, with a power to sell on default in payment of the mortgage debt. Acting under this power McKinney sold the propert...
Views: 1
Cope, J. concurring. In Doll v. Meador (16 Cal. 296) we had occasion to consider the effect of the eighth section of the Act of Congress of September, 1841, by which 500,000 acres of land were donated to several States, designated by name in its first section, and the same quantity to each new State which should be thereafter admitted into the Union. The language of the section with reference to t...
Views: 4
Cope, J. and Norton, J. concurring. The statute regulating proceedings in criminal cases provides that when the jury do not agree, after a case has been submitted to them, without retiring for deliberation, one or more officers shall be sworn “ to keep them together in some private and convenient place, and not to permit any person to speak to them, nor to speak to them themselves, unless it be to...
Views: 15
Norton, J. concurring. This is an action to quiet the title to certain real estate in the city of Sacramento. The complaint alleges that the defendant is in possession as the tenant of the plaintiff, but disclaims the tenancy, and sets up an adverse title in himself. The judgment enjoins the defendant from asserting his title, and establishes that of the plaintiff. We are of opinion that the judgm...
Views: 3
Cope, J. concurring. t The indictment in this case is for the offense of robbery, but in the statement of facts constituting the offense there is a fatal defect. The statement contains no allegation as to the ownership of the property of which the party named was robbed, or that it did not belong to the defendant. It is not necessary that the property should belong to the party from whose possessi...
Views: 5
Cope, J. concurring. This is an action to recover the possession of certain real property situated within the city of San Francisco. The plaintiff is the widow of William Hart, late of said city, and claims the premises under two deeds executed to her during her coverture. If those deeds conveyed the premises by way of gift, she took them as her separate property, and is entitled to maintain the p...
Views: 6
Field, C. J. and Norton, J. concurring. This is an action to recover a balance alleged to be due on an account for goods, wares, and merchandise. The plaintiff obtained a judgment upon the pleadings, and the only question is as to the sufficiency of the answer. The answer admits that the indebtedness once existed, but avers that certain promissory notes, signed by the defendants and indorsed *350b...
Views: 8
Cope, J. and Norton, J. concurring. This is one of the numerous cases which have grown out of the attempted sale by the authorities of the city of San Francisco, in December, 1853, of the property known as the City Slip Property. The general facts in all of them upon which the liability of the city is asserted, lie within a narrow compass; but the defenses interposed have varied with the different...
Views: 5
Cope, J. and Norton, J. concurring. The dying declarations of the deceased were admitted in evidence against the defendant without objection. These declarations relate to the cause of the homicide, and the circumstances attending it. After the prosecution had closed the defendant offered to prove that on his examination before the committing magistrate the deceased had testified to facts directly ...
Views: 10
Field, C. J. and Cope, J. concurring. The appropriation of the water of a stream in order to apply it to some useful purpose secures a right which cannot be infringed upon by a subsequent appropriation of the water by others. But in the case of Maeris v. Bicknell (7 Cal. 261) it was decided that diverting the water from its natural channel for the purpose of drainage simply is not an appropriation...
Views: 3
Cope, J. concurring. The indictment in this case is fatally defective in the statement of the facts constituting the offense charged. Robbery is defined by the statute to be “ the felonious and violent taking of money, goods, or other valuable thing from the person of another by force or intimidation.” The indictment does not allege the taking in the present case from the person of another, but on...
Views: 1
Norton, J. concurring. The defendant, being indebted to the plaintiff, drew a bill of exchange in his favor, upon a third person for a part of the amount. The bill was drawn on the fifteenth of October, 1861, and was payable on the twenty-third of the same month, but has not been presented for payment. The plaintiff sues upon the original indebted-mess,, and the defendant relies upon the bill as a...
Views: 2
Norton, J. and Cope, J. concurring. The deed to Hibberd purports to be executed on the first of June, 1850, by “ John A. Clark, by his attorney, Henry Sparks.” The certificate of acknowledgment annexed is as follows: *391“ California, San Francisco, ss : On this first day of June, in the year of our Lord one thousand eight hundred and fifty, personally appeared before me, John A. Clark, to me know...
Views: 3
Cope, J. and Norton, J. concurring. The plaintiff deraigns title through a deed of the Sheriff executed to him upon a sale of the premises in controversy under a decree in a mortgage case. The sale was made on the fifth of October, 1861, and the deed was executed on the twenty-fifth of March following— which was after the lapse of six lunar months, but within six calendar months. The statute allow...
Views: 7
Field, C. J. and Norton, J. concurring. The appeal in this case is from a judgment in ejectment, and from an order refusing a new trial. The motion for a new trial was based upon a statement of the evidence, and upon an affidavit alleging surprise on account of the introduction of certain testimony. The affidavit was made by the attorney who tried the case, and sets forth that, from information de...
Views: 0
Cope, J. concurring. The indictment in this case is for the crime of murder. Two objections are urged to its sufficiency: first, that it designates the crime as murder in the first degree; and second, that it does not charge the commission of the offense with “ malice aforethought.” The first objection is answered by the case of People v. Dolan (9 Cal. 576). The second objection is met by the fact...
Views: 4
Field, C. J. and Norton, J. concurring. This is an action to compel the defendant to convey to the plaintiff a tract of land in the county of Solano. The action is based upon *410a bond given in 1850, by which the defendant bound himself, in consideration of one dollar, and of certain services to be rendered by the plaintiff, to convey to him the land. It appears that the defendant and one Vaca we...
Views: 8
Cope, J. and Norton, J. concurring. It is stated by the appellant’s counsel that the only ground upon which the Court below based its action in granting the new trial, was a supposed error in its refusing to allow a peremptory challenge to a juror after he had been accepted, though not sworn. We do not doubt that such was the fact, but the record does not show this, and by its contents we must be ...
Views: 2
Field, C. J. and Cope, J. concurring. Carlos Oliverez is imprisoned in the jail of the county of San Francisco, under a sentence pronounced by the Court of Sessions of that county, on the ninth day of December, 1862, and claims his release upon an allegation that at the time said sentence was pronounced there was no such tribunal as the Court of Sessions existing in said county. In support of this...
Views: 5
Cope, J. concurring. It is difficult to perceive upon what ground the order staying proceedings in this action can rest, except the bare possibility that the officers of the General Land Office at Washington may come to a different conclusion from that of the authorities of the State as to the validity of the location of the school warrant upon which the patent to Doll was issued. But even if such...
Views: 2
Norton, J. concurring. This is an action brought by the plaintiff’s intestate, Comstock, to recover a tract of land in the county of San Joaquin. A judgment was recovered by Comstock, who died soon afterwards, and Hestres, the administrator of his estate, was substituted as plaintiff. On the trial Comstock relied upon prior possession, and the defendants contend that the evidence upon the subject ...
Views: 1
Norton, J. concurring. The judgment in this case must be reversed for irregularity in the proceedings. When the judgment was entered there was a demurrer on file which had not been disposed of. Two of the defendants demurred separately, and the record shows that but one of the demurrers was acted upon. The other was filed after a default had been taken, but the attorneys for the plaintiffs accepte...
Views: 3
J. and Norton, J. concurring. The plaintiff in this action seeks to recover damages against the county of San Joaquin, for injuries alleged to have been sustained by him in consequence of the want of proper repairs to a bridge on a public highway of the county. The complaint alleges, substantially, that it was the duty of the county to keep the bridge in question in proper repair and condition; th...
Views: 3
Field, C. J. and Cope, J. concurring. This is an action to recover the amount of a promissory note, and to foreclose a mortgage given as security. The complaint alleges that the defendant, Fulton, being indebted to Redick McKee in the sum of $3,000, made a promissory note for that sum, dated July 3d, 1856, and payable to said McKee, or order, six months from date, and delivered the same to the sai...
Views: 7
Field, C. J. and Cope, J. concurring. This is an action in the nature of a bill in equity to set aside a judgment recovered by Pacheco against Hunsacker, who, as Sheriff, seized and sold certain personal property of Pacheco under an •execution in favor of Dutil against Andegue. Dutil claims the right to maintain this action, on the ground that he indemnified the Sheriff against damages for taking ...
Views: 0
Field, C. J. and Cope, J. concurring. This is an action of ejectment in which the plaintiff deraigns a title by a grant from the Pueblo of San Francisco and sundry mesne conveyances to one Sarah Boston, and by a deed from her and her husband, dated June 3d, 1854, to David Calderwood, and by sundry mesne conveyances from Calderwood to the plaintiff. The defendants claim title under a deed from said...
Views: 3
Cope, J. concurring. This is an appeal from an order granting and an order refusing to dissolve an injunction by which the defendants are restrained from using the name of “ What Cheer House ” as the title or name of a hotel in the city of San Francisco. Woodward, being the lessee of a lot of land, erected upon it a building, which he occupied as a hotel, and to which he gave the name of the “ Wha...
Views: 3
Cope, J. and Norton, J. concurring. The plaintiff avers in his complaint that in January, 1859, he was the owner and entitled to the possession of the premises in controversy, and in support of this averment proved on the trial that the parties through whom he traces title, in September, 1855, inclosed the premises with a brush fence from two to three feet in tight. No proof was offered that the p...
Views: 3
Cope, J. concurring. This case was before the Court at the April Term of 1857, and the facts upon which the decision then rendered was based are given either in the statement of the Reporter or the opinion of the Chief Justice, found in 7 Cal. 527. Some other material facts are disclosed by the record, to which no reference is made, either by counsel in their briefs, or by the Chief Justice in his...
Views: 7
Field, C. J. and Norton, J. concurring. This is an action to foreclose a mortgage executed by the defendant, White, upon certain real estate in the county of Santa Cruz. There are several defendants, and among them is one Eugene Kelley, who claims the premises under a conveyance from White, and relies upon the Statute of Limitations as a bar to the foreclosure. The mortgage debt became due on the ...
Views: 5
Cope, J. and Norton, J. concurring. The Court below appears to have treated this action as brought under the statute to quiet the title of the plaintiffs to a tract of land situated in Monterey County, and to have ordered its dismissal on the ground that the plaintiffs were not in possession of the premises at its commencement. Such possession of the plaintiffs was essential to maintain an action ...
Views: 7
Field, C. J. concurring. The defendant moves to reinstate the appeal in this case, which was dismissed for failure to prosecute. The plaintiff shows, in opposition to the motion, that in fact no appeal has been taken, as the sureties upon the undertaking were excepted to, and justified before a County Judge of a county different from that in which the judgment was rendered. This we regard as a val...
Views: 1
Cope, J. and Norton, J. concurring. These two actions turn upon the same question, and by stipulation of the parties have been presented and argued together. The first is a bill in equity to subject the property held by the defendant to certain trusts in his hands, and to compel the execution to the plaintiff of a deed of an undivided interest therein. The second is an action of ejectment, to whic...
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Field, C. J. and Norton, J. concurring. This is an appeal from a conviction upon an indictment for murder. On the trial of the case the defendant offered to show that when the homicide was committed he was so drunk as to be incapable of distinguishing between right and wrong. The Court excluded the evidence, holding that drunkenness, whatever its effect may have been upon the mental condition of t...
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Field, C. J. and Norton, J. concurring. This case was before us at the April Term, 1862, on appeal from a judgment in favor of the defendants. The judgment was reversed, and the cause remanded for a new trial, and the present appeal is from a judgment in favor of the plaintiff. The plaintiff is a mining corporation, and the facts, as elicited at the trial, are not materially different from those s...
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Cope, J. and Norton, J. concurring. This is an action of ejectment to recover the possession of a tract of land known by the name of the “ Rancho Laguna de la Merced,” situated partly in the county of San Francisco and partly in the county of San Mateo. The plaintiff deraigns his title from the former Mexican Government through a grant issued by the Governor of California to one Galindo in Septemb...
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Cope, J. and Norton, J. concurring. The bond executed by Hartley and others embraces several distinct obligations. The principal and each of the sureties bind themselves in certain sums designated; and as we read the instru*589ment, not jointly and severally, but only jointly. The term “ severally,” as used in the instrument, applies only to the different sums which the parties respectively specif...
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Cope, J. concurring. Upon the foreclosure of the mortgage in this case the plaintiffs were entitled to a decree for the sale of all the rights and interests of the mortgagor. But inasmuch as some of the defendants, so far as the property situated on the corner of Battery and Vallejo streets is concerned, claim adversely to the mortgagor under paramount title from the Mexican Government, confirmed ...
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Cope, J. concurring. We have carefully considered the objections taken by the defendants to the complaints in these cases, and are of opinion that they are untenable. The brief of the counsel of the plaintiff satisfactorily answers them. The Reporter will give a full synopsis of the briefs of the learned counsel in the report of the cases. The judgment is reversed, and the cause remanded for furth...
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Cope, J. and Norton, J. concurring specially. The action of ejectment must be brought against the actual occupant of the premises, if there be one. (Garner v. Marshall, 9 Cal. 268.) If such occupant be a tenant of another, the landlord may appear and defend in his name, or be substituted in his place. But such appearance or substitution should be entered of record, and only allowed upon notice to ...
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Field, C. J. concurring. The plaintiff sues on behalf of himself and others, residents and property holders of the city of Oakland, to set aside certain conveyances operating as a cloud upon the title to the tract of land occupied by the city, and to obtain an injunction, etc. The Court below entered a judgment declaring the conveyances fraudulent and void, and enjoining the defendants from future...
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C. J. concurring. This is an action to recover possession of a mining claim in the county of Calaveras. The appeal is from a judgment of nonsuit, and the only question is whether the nonsuit was properly granted. It was granted on the ground of a misjoinder of parties, there being as to some of the parties plaintiff no evidence of any interest in the subject matter of the suit. By the forty-fifth ...
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Field, C. J. concurring. We do not see how the verdict in this case can be sustained. The question, as between the plaintiff and Jackson, is whether the latter is responsible for the grain stored in the warehouse of himself and McComb on account of the former. Jackson and McComb were partners, and the grain was stored in the regular course of their business, and receipts were given for it in their...
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Cope, J. and Norton, J. concurring. By an act of the Legislature, passed May 4th, 1852, the town *663of Oakland was created a municipal corporation, the corporate powers being vested in a Board of Trustees, consisting of five members, to be elected on the second Monday of May of each year. By the third section of the act the Trustees were clothed with certain powers in relation to wharves, piers, ...
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Cope, J. and Norton, J. concurring. *695On the nineteenth of April, 1856, the Legislature passed an act for the government of the City and County of San Francisco, commonly known as the “ Consolidation Act.” Its first section provides that the City of San Francisco shall continue a corporation by the name of the City and County of San Francisco, and possess the same rights and be subject to the sa...
Views: 7

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