Vol. II.-No. 7.] SATURDAY, NOVEMBER 16, 1878. Legal Notes. [Whole No. 59. INTERESTING DECISION RELATING TO A QUESTION OF HEALTH. WASHINGTON, November 11th.-The Supreme Court has decided in favor of the village of Hyde Park, near Chicago, in the case between that corporation and the fertilizing establishments known in Chicago as the "Stink Facto STATE JUDICIARY.--We publish this week the report of the Judiciary Committee of the Convention, as presented on the 13th by S. M. Wilson, embodying the proposed article for the new constitution on the judicial sys-ries." The case was created by the village au tem of the State. thorities, who arrested the drivers of the company for carting unsavory refuse through the are In PAYING A WIFE'S BILLS.—The question of village. Following is the decision in full: The plaintiff in error in this cause, the North western exactly how far a man is responsible for Fertilizing Company, was incorporated by goods, etc., furnished by tradesmen to a wife an Act of the Legislature of Illinois, and from whom he is separated, was presented in authorized to establish on ground which is now the suit of Bartlett, Berry, Reed & Co. v. near the limits of Hyde Park, and maintain for Edmund Waring, which was tried before a term of fifty years chemical and other works Judge Daly and a jury in the Common Pleas for the reduction of offal to fertilizing comCourt of New York. The action was brought pounds. The establishment, it is alleged, soon to recover for two dresses and some kid became so offensive as to be a nuisance. 1 1867 the Legislature of Illinois revised the gloves, besides a loan of money, furnished by charter of the village of Hyde Park, and exthe plaintiff to Waring's wife in June and pressly authorized it to abate nuisances which August of 1876. By way of defense, Waring or may be injurious to public health. urged that he had been separated from his accordance with this revised charter, wife, and that he made the latter a sufficient the municipality sought by ordinance allowance to provide for her necessities. to prevent the carrying of offal Judge Daly, in his charge, told the jury that when a tradesman supplies a married woman with goods, with the expectation of having her husband pay the bills, he takes the chance of three things: first, it turning out that these goods are not necessary for her or for her condition in life; or that the husband has supplied her with all the money which is necessary; or that, although the goods are suitable for her condition in life, she has already supplied herself elsewhere with what was necessary. As to the borrowed money, it was a question, he thought, not free from difficulty either by the law of this State or by the law of England. He considered it ought to be left to the jury to say whether a woman, being left without necessary articles by her husband, has not the right to borrow money to procure them. The jury brought in a verdict for the defendant. The through the village, and in 1872 after due notice, proceeded to arrest and fine the Fertilizing Company's employees for viclation thereof. A bill was then filed by the Comany praying for an injunction aud general relief, on the ground that it was protected by its charter from the operation of the municipal ordinance complained of. The Supreme Court of the State, upon appeal, dismissed the bill upon this general statement of facts. plaintiffs in error appealed to the Supreme Court of the United States. This Court holds toat the existence of a nuisance is uncontroverted, and that the police power of the State which belonged to it at the adoption of the Federal Constitution, and which it still possesses, is adequate to give an effectual remedy, since it extends to the entire property and business wirbin its local jurisdiction and regulation, and the abatement of nuisances is one of its ordiuary functions. The decree of the Supreme Court of Illinois is therefore affirmed. Justice Swayne delivered the opinion of the Court. Justice Miller concurred in the judgment, but dissented from the opinion. Justice Strong dissented. Justice Field did not sit at the argument, and took no part in the decision. A DECISION AFFECTING LANDLORDS Following is the full text of County Judge Wright's decision in the case of Corbett et al., vs. Tobin, Davisson, & Co., a synopsis of which was printed Monday, and which relates to a subject of interest to leaseholders: the time of the expiration of the first term provided for in the lease as there was afterwards. But we hear nothing of a reduction of rent until after the expiration of the time when the additional two years commence. It was first reduced to $1,100, and then it was reduced to $1,000; and then this notice to quit. It is now claimed that the parties having paid $1,200 since the time when the lease was to be renewed (if at all), that this of itself was a renewal of the lease, That would be so presumptivoly; but I think it is rebutted in the subsequent conduct of the defendan's by claiming a reduction of rent. Judgment for plaintiff.-[Daily Bulletin, 13th instant. OUTRAGED WOMEN LAWYERS. This is an action for unlawful detainer for holding certain premises on the corner of Sansome and Bush streets. Defendants had a lease for a certain number of years with the privilege of two The following is from the Baltimore Sun, more. At the expiration of the certain number and, if it be a correct statement of the occurof years the defendants remained in possession and paid rent in the same amount as is mentioned rence, displays a proficiency in brutality or in the lease. The authorities are to the effect cowardice, or both, on the part of the honorthat under such circumstances, if this is not ex- able Judge that we would hardly have credplained, that it amounts to a renewal or an exten-ited to the Maryland bar, and most certainly sion of the lease for that time. The question in this case is whether the circumstances have not yet attained in our State. While here rebut that presumption I have concluded that they do. In the first place this was an im portant lease, and it was to expire at a certain time. It would have been a most natural thing for the parties interested in the lease to know whether the two years additional would be taken or not. we are hardly yet prepared to concede woman's highest efficiency and benefit to the race as lying in the line of the legal profession, we yet feel that an application from as able a representative of the sex as Mrs. Lockwood of Washington, or Mrs. Dundore, should be treated with at least decent courtesy and respect from the bench : "The application of Mrs. Belva A. Lockwood, the female lawyer of Washington, for admission to the bar of the Circuit Court of Prince George's County, was decided adversely by Judge Magruder. In the course of his decision he said: 'God has set a bound for woman. Man was created first, and woman after and a part of him. Like the sun and the moon moving in their differ The agent representing the landlord said that he went to the de. fendants and asked them if they intended to extend the lease, and that they said they did not. The defendants, on the contrary, say that no such conversation took place. It is difficult to decide a case where the testimony is as much in conflict as this. Subsequent to that time, a month's rent was paid for the same amount as was provided in the original lease. After that a reduction was asked for by the defendants. I think that is a circumstance which carries the preponderance of the testimony in favor of the understanding, as stated by the plaintiff's agent.ent orbits, the great seas have their bounds, If this lease was renewed for two years, at a monthly rental of $1,200, the defendants had no right to ask a reduction. They say they asked this because property had fallen and other land and the eternal hills and rocks that are set aboye them cannot be removed.' He spoke of Mrs. Lockwood and Mrs. Lavinia C. Dundore, also an attorney, who accompanied her, as two wandering women. He said he prayed God the time would never come when women would be admitted to the bar of Maryland. Upon the conclusion of his decision, Mrs. Lockwood rose to make a remark that the Court had misunderstood the principal point in her brief, when Judge Magruder ordered her to take her seat, saying he would not hear her. Mrs. Lockwood was also told to lords had reduced their rent. If this is a reason for asking for a reduction, its is also a reason to sustain the plaintiff's theory of the case that the defendants did not, in end to renew the lease in consequence of the fall ot rent in that neighborhood. I think that fact is the controlling fact in the case. If there was any asking of reduction of this sort prior to the termination of the first part of the term provided for by the lease, 15 has not been brought in evi-sit down' as she was about to ask the dence. And there might have been just as much reason for asking for a reduction of rent before Court to put the decision in writing. The Plaintiff petitions the court for a writ of certiorari, against defendant, for making an allowance Appeal from Eighteenth District Court, San Ber- to one W. S. Seavy for mileage and fees for the Defendant demurred, and was overruled. In his amended answer he admitted the labor of plaintiff, at the rate alleged, but claimed that on April 15, 1876, he had paid him at Ivanpah, all the wages then due him, by a check on the "Ivanpah Mill and Mining Company" for $381 13, which was accepted by the Company April 22, 1876. And that on August 11, 1876, he again paid plaintiff in full, another check for $192 50, which was also accepted by the Company on August 19, 1876. And that these checks were taken by plaintiff, in full satisfaction of his wages, he agreeing not to hold defendant liable if they were not paid. That the check for $381 13 was not presented for payment at maturity, but that it was assigned on August 17, 1876, to one Oscar Newberg, in whose hands it remained over three months. That the other check for $192 50 was not presented to the Company for payment until several months after maturity, n rdid plaintiff ever return or offer to return the checks to defendant. The court found the claim of plaintiff correct, and that he had only received the $294, and leaving the balance of $546 due. That the checks had been received, but not as payment, to release the defendant-that they were duly presented when due, and that defendant was duly notified of their non-payment. After this, plaintiff refused to work unless seured for his wages, upon which defendant agreed to himself pay all arrearages; and that the said checks were only transferred after dishonor for collateral security, and that defendant induced plaintiff not to sue the Company, until they became insolvent; and that then he, defendant, agreed to become responsible for the balance. Hence the court concluded on July 7, 1877, that plaintiff was entitled to recover the $546 in gold coin with legal interest from November 22, 1876for which judgment was entered-with costs. A new trial was moved by defendant on the ground of newly discovered evidence, etc., which was denied, and appeal taken. Waters & Swing, attorneys for plaintiff and respondent. A. B. Paris, attorney for defendant and appellant. Motion to dismiss the appeal herein, withdrawn, and judgment and order affirmed with ten per cent damages. Remittitur forthwith. arrest, in Alameda county, of one Mary Shaw, charged with arson. Avers that he appeared before the Board at its meeting, when the account was allowed, and opposed the allowance, in that Seavy was not a proper officer to make the arrest and receive the pay, hence that the Board exceeded its authority and jurisdiction therein. That, as there is no appeal from such action under the laws of the State, he asks the writ directing the Board to certify to the court a transcript of its record and proceedings in the matter for review. The court so ordered, returnable July 22, 1878. The Board demurred by the District Attorney, as to the jurisdiction of the court, etc. Said District Attorney gave an opinion, showing that Seavy, being the Marshal of the City of Santa Barbara, was a proper officer to make the arrest, and receive the pay (Cunningham vs. San Joaquin County, 49 Cal,, 323.) A Warrant issuing from a Justice's Court being directed as required by sections 816, 817, 19, Penal Code, to any Sheriff, constable, Marshal or policeman of the county, can be served in another county by written direction of a magistrate of that county, hence the claim and allowance in his opinion was valid. The demurrer was overruled; the case tried June 6, 1878, and decision, that the Board had exceeded its jurisdiction, and decreed a reversal of its proceedings, and that plaintiff recover costs, $35 65. The defendant appealed September 3, 1878, from the judgment, and order overruling the de properly described as "9,000 acres of land, known as the Sespe Grant," and valued at $81,000,largely in excess of its true valuation. Plaintiff went before the Board of Equalization and verified its excess of valuation and assessment, but was refused any relief; but the property was afterward advertised in the delinquent tax list for $1,377 taxes with costs claimed thereon, and with threats to sell the same on February 28, 1878. Six days before this time plaintiff duly protested against the sale, specifying the part of tax, and the grounds why invalid, but the threat of sale still continuing, plaintiff paid to defendant under protest, on the day for sale, $1,445 gold coin, with costs of collection. For a second cause of action plaintiff alleges the purchase by him of the Mexical grant of "Sespe," (6 square leagues) but only 2 square leagues being coflrmed to him, and to the remaining 4 leagues he had no right or claim only as a preferred purchaser under act of Congress "to quiet land titles in California," and his application for such purchase was still pending. in the United States Land Office. And numerous persons had settled upon various parts of said 4 leagues, who disputed his right as such preferred purchaser, and which was in litigation-pending which, the whole had been assessed to plaintiff as a "claim," etc., and valued at $22,000, and a tax of $377 40 levied thereon, much in excess of other lands in the county. The tracts held and claimed by said pre-emptors had been assessed to them, at various rates, part of which had paid the tax so levied, and part had not. Plaintiff had protested against all this to the Board, but got no relief, and the same was also advertised for sale for the $377 40 and costs. Plaintiff then duly protested as in the first instance, and finally paid under protest $395, gold coin. Hence asks judgment against defendant for the total $1,840 and costs of suit. Defendant demurred that plaintiff's further remedy was by mandate of the District or Supreme Court, and that his greviances had become res adjudicata, the Board having decided adversely to him. The demurrer was sustained, and appeal taken by plaintiff. McNulta & Starke, attorneys for plaintiff and appellant. Granger & Williams, for defendant and respondent. No appearance for appellant, and appeal from the order sustaining demurrer dismissed, and judgment affirmed, whole as equal partners, and so continued till February 13, 1874, under the firm name of Buell & Carty, (it being fully agreed and understood that all rents for the rancho and cattle was a debt of the firm, and not of plaintiff individually) when the partnership was dissolved by mutual consent, plaintiff agreeing to deliver over to defendant all property of the firm, and also a note for $300, which he held against defendant, who, in consideration, agreed to settle all debts of the firm, including the rent due to R. T. Buell for ranch and cows, as one of said debts, although the amount of such rent was then unascertained, and so continued for six months. Defendant failed to settle said debt, and on November 16, 1876, R. T. Buell commenced suit against plaintiff and defendant personally to recover $4,800 for rent of premises and use of cattle, basing action on the lease to which defendant was not, while plaintiff was a party; and on February 12, 1878, obtained judgment against plaintiff for that amount and costs, $43 40, defendant H. P. Buell being dismissed from the action as not being a party to the lease, because no assignment of interest in it had been made to him in writing. Plaintiff Carty, having performed fully his part of the agreement of February 13, 1874, notified defenant Buell on April 16, 1878, of the judgment against him (Carty), and requested him to pay it, which he failed and refused to do, hence plaintiff now claims judgment for damages in $4,843 4C and costs. Defendant demurred, which was sustained, and plaintiff declining to amend, the case was dismissed at his costs; from which order plaintiff appealed. W. C. Stratton, attorney for plaintiff and appellant. W. H. Webb, attorney for defendant and respondent. No appearance for respondent, and judgment reversed with direction to overrule the demurrer to the complaint." Plaintiffs Ann Livermore and Edwin A. Livermore claim possession, as tenants in common with defendants Solomon Jewett, Philo D. Jewett and Charles A. Livermore, of section 31 of town 30 south range 28 east, in Kern county: That Ann is owner of an undivided five twenty-sevenths, and Edwin, of an undivided two twenty-sevenths each of said real estate, both by inheritance. The defendants have also an estate in the same as follows: Solomon, and Philo D. Jewett, each an undivided nine twenty-sevenths, and Charles A. Livermore an undivided two twenty-sevenths, all by inheritance. Plaintiffs pray for partition of the property provided it can be made without great prejudice to the same and the parties, and that it be sold and the proceeds be duly apportioned. Defendants deny all the aforesaid, except that their interest is of inheritance; and they claim ownership and possession in common by undivided moieties, for 9 years previous to the bringing of this action. That their title is derived by purchase from Thomas Baker and Harvey S. Brown, by deed dated December 23, 1867, and they deriving from W. F. Montgomery, Joseph Montgomery, A. J. Downer, F. W. Sampson, Tulare Land Company, and R. W. Hent, all dated prior to October 27, 1864, and their title being a grant from the State of California by patent issued November 11, 1867:-Said section 31, with other lands, being deeded by quit claim by said Baker and Brown to Solomon Jewett, Elijah Livermore, and Julius Chester. son, bearing date of April 16, 1872, respectively, and cause remanded for a new trial." No. 6151, Ann Livermore, et al., plaintiffs and respondents, vs. C. C. Webb, et al., defendants and respondents; and Green, Jackson & Green, de1878. fendants and appellants, also decided October 24, The points and authorities cited being identical, the same order was made as in No. 6138. P. T. Colby, and V. A. Gregg, attorneys for plaintiffs and respondents. Stetson & Houghton, attor Prior to his death, September 9, 1870, Elijah Livermore conveyed his interest to Horatio P. Livermore, and other parties than plaintiff Ann Liver-neys for Webb, defendant and respondent. C. A more, which are to his children and defendants unknown. Charles A. Livermore, infant, and child of Elijah, deceased, claims by the will, an undivided two twenty-sevenths interest adverse to defendants and all the world. Wilson, attorney for C. A. Livermore, defendant Plaintiff Ann Livermore, is widow of Elijah, and bearing date April 16, 1872, respectively, and cause Edwin A. and Charles A. his children. Defendants claim that none of them have any just claim on the lands in consequence of the above conveyance; and that the claims of H. P. Livermore et al. are barred by sections 318 and 319 of C. C. P., and ask that they be decreed void, and defendants title be quieted, as against all parties. Charles A.Livermore,defendant, by his guardian Charles R. Story, admits ownership and possession of plaintiffs, as tenants in common, and that, besides his claim through said Baker and Brown, grantors of all parties, he also claims by virtue of a judgment rendered in the case of Charles A. Livermore vs. Solomon Jewett et al. in this court; and he also prays a partifion, and sale, and appɔrtionment. Unwritten Decision. (Decided October 30, 1878.) ANDREW J. PHELPS, Administrator of the Estate of EUGENE A. PHELPS, dec'd., Plaintiffs and Respondents, VS. BENJAMIN AVISE, Df't and App't. Angeles County. SEPULVEDA, Judge. No. 5972. A jury being waived, the court found that plain- Appeal from the Seventeenth District Court, Los tiffs were tenants in common with defendants, as claimed, and a decree of partition and sale was entered accordingly; and in pursuance of an interlocutory decree, Walter James as referee, made due partition of the property apportioned in accordance with their respective interests. Defendants Solomon and Philo D. Jewett moved to set aside the interlocutory decree, findings and judgment, which was denied on March 14, 1878, and from which order and judgment they appealed. P. T. Colby, ano V. A. Gregg, attorneys for plaintiffs and respondents. S. L. Cutter, attorneys for defendants and appellants. "Judgment reversed for want of a finding upon the defense of the statute of limitation, and cause remanded for a new trial." No 6181, with same parties, plaintiffs and defendants, as the preceding case, and also decided October 24, 1878. The pleadings, exhibits, finding and judgment of the court are identical with, and the testimony not materially varying from that of No. 6073. Same attorneys for plaintiffs and defendants. Judgment reversed, and cause remanded, because of the pendency of the appeal from the interlocutory decree in Livermore vs. Jewett, No. 6073. No. 6138, Ann Livermore, et al., plaintiffs and respondents, vs. C. C. Webb, et al., defendants and appellants, also decided October 24, 1878, is a correlative case with the two preceding ones, and the main facts are as before given in No. 6073. C. C. Webb, one of the defendants, takes a separate appeal. Samuel L, Cutler Geo. E Otis, P. T. Colby, and V. A. Gregg, attorneys for plaintiffs and respondents. Stetson and Houghton, attorneys for defendants and appellants. A STATE PATENT GOOD AGAINST A SUBSEQUENT PREEMPTION CLAIMANT-SELECTION OF LIEU LANDS. STATEMENT OF CASE. In ejectment, on the issues joined, the court found that a patent to the lands in question was issued to plaintiffs intestate, by the State of California, in 1873, on an application to purchase, made March 14, 1868, under the provisions of an act entitled "An Act to provide for the sale of certain lands belonging to the State," approved April 27, 1863; that said lands were selected in lieu of other lands within the exterior boundaries of the Mexican grant "San Juan Cajon de Santa Ana," which at the time had not been surveyed; that said lands were suspended by the Surveyor-General April 24, 1868, and restored until the 23d of February, 1869; that the township plat, including said lands, was filed in the United States Land Office for the District in which they are situated, January 7, 1868, and that their listing over to the State was approved by the Secretary of the Interior April 2, 1870; that said lands were located April 22, 1868, and that their listing over to the State was in consequence thereof; that the defendant settled said lands in good faith on the 18th of April, 1876, and on the 20th of April, 1876, offered to file his declaratory statement, therefor, in the proper United States Land Office; that he has made his home on said lands ever since his said settlement, and has applied to enter the same, tendering proof and payment, and that his claim is now pending before the United States Land Department, on appeal. Whereupon said District Court rendered judgment for plaintiff which, on appeal to the Supreme Court, was affirmed. Thom and Ross, attorneys for defendant and reJudgment reversed for error in the admission spondent. Barclay and Wilson, and Gou'd and in evidence of the deeds of Mrs. Lucy G. Jack-Blanchard, attorneys for defendant and appellant. |