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VOL. I.

MAY 11, 1878.

No. 7.

Legal Notes.

THE SUPREME COURT AT LOS ANGELES.-The October term of the Supreme Court,-(the first term under the new law) will be held at Los Angeles, to open the second Monday of October (14th), and Clerk D. B. Woolf, Esq., starts for that city to-morrow to make the proper arrangements for court room, etc. That term will be followed by the November term at Sacramento,-but meantime the July term (the last under the old law) will meet in San Francisco on the second Monday in July, (8th) at which time the NEW RULES go into effect. See last cover page of the RECORD, No. 6, 7, etc.

CHINESE NATURALIZATION.--Owing to the great number of Supreme Court decisons still ahead, we feel obliged to omit from this number the opinion recently rendered by Judge Sawyer of this U. S. Circuit, on the important question of Chinese naturalization. The decision is based upon the point that the Mongolian race, cannot be considered "White persons" in the general acceptation of the term, and that Congress in its debates upon revising the U. S. Statutes so declared its construction;-and in not being "white persons," or of "African descent," they are fully debarred. We anticipate, the carrying of the case to the U. S. Supreme Court for a final decision-meantime the decision has been pretty generally published in the papers.

A NOVEL POINT OF LAW.-A case involving a novel point of law was decided by the County Court of San Joaquin County on the 4th inst. The facts of the case were these: A jury in a civil case while out deliberating was taken by the Sheriff to a restaurant to eat. As the county had refused to pay for feeding juries in civil cases, the Sheriff told the restaurant keeper to collect from the jurors, of this, however

the jurors had no knowledge. E. T. Lake, one of the jurors, refused to pay for his meal, and was sued by the restaurant keepers, Mittrovich & M Sclaerandi, No express promise to pay was proved. The Court held that, under the circumstances of the case, the law would not imply a promise, on the part of the defendant, to pay for what he ate, and gave judgment in his favor.

RAIL ROAD "PRO RATA CASE."-An important decision was rendered on May 8th, in the U. S. Circuit Court at Omaha, by Judge Dundy in the somewhat noted case of the Kansas Pacific and Denver Pacific vs. the Union Pacific Railway. After the declination of Judge Dillon to decide the case and turning it over to Judge Dundy, the Kansas Pacific, one of the plaintiffs, moved an order to dismiss the case,-which order the defendant, the Union Pacific, moved to vacate, and it was so decided,-not to dismiss. The judge then decided, on merits; that the Denver was a branch of the U. P., and that the rate charged by the U. P. for west of Cheyenne might be determined by the increased cost of construction and operation on that part of the road;-which in effect defeats the claim of the Kansas to the mileage pro-rata,and entitling the U.P. to a greater than one half share of the through rate per mile.

PERSONAL. Our friend,, R. M. SWAIN, Esq., of Napa City, showed his genial countenance at the RECORD office on Wednesday. He still continues to counsel the "Public Administrator" in his administration of post mortem justice and "effects."

COLES BASHFORD, at whose election as Governor of Wisconsin in 1856, the famous school-land-steal ring of that State under Barstow was scotched.-and to whom we had the honor and pleasure of paying his official salary, during 1857-recently died at Prescott, Arizona-having honorably filled the position of delegate to Congress, as well as the secretaryship of that territory. He was a native of New York State, where he received his legal education.

Supreme Court of California.
[April Term, 1878.]

[No. 5993.]

[Filed April 22, 1878.]

ALLEN vs. TIFFANY AND MOTT.

Appeal from Seventeenth District Court,-Los Angeles Co. SEPULVEDA, Judge; and DENSON, acting Judge.

GUARDIAN'S ACCOUNTS JURISDICTION.-A guardian's settlement of accounts with his ward should not of itself constitute a discharge from his trust; but is subject to the approval of the Probate Judge.

The Probate Judge has exclusive jurisdiction of all such accounts. The ward may apply for a citation compelling the guardian to settle accounts before the Judge, but cannot bring suit in the District Court for a supposed balance.

STATEMENT OF FACTS.

On May 22, 1872, F. P. F. Temple was appointed by the Probate Court of Los Angeles County, guardian of the plaintiff, Rosina Allen, and gave bonds in $13,000, with Geo. H. Tifany and Stephen H. Mott as sureties, and he so acted until November, 1875, when plaintiff became of age. During that time Temple had received a large amount of money for plaintiff, and had bought in her behalf, a piece of land of W. H. Steel for $2,500, but had taken the deed in his own name and held it in trust, as security for advances to plaintiff;-while plaintiff had been in full possession of the land, and expended $5000 upon it for improvements.

On January 13, 1876, Temple made an assignment to Freeman and Spence for the benefit of his creditors,--which caused a cloud upon plaintiff's title to the land, and on July 10, 1876, Geo. E. Long became his assignee in bankruptcy.-No settlement had been made by Temple with the Probate Court on plaintiff's account, and on November 25, 1876, plaintiff brought an action against Temple and the two sureties for an unpaid balance of $669.54 and interest. The two sureties demurred, and on motion of plaintiff their names were stricken out, and a judgment obtained against Temple for the amount and costs $55.20. That judgment never having been paid, the plaintiff now brings action, against the defendants, Tiffany and Mott, (as sureties on the bond), for its recovery, and damages, interest, and expenses to the amount of $1,824.84, and to confirm to her the title to the said land free from shadow by the said assignment. The defendants demurred that the Court had no jurisdiction while the account was pending and unsettled in the Probate Court. -Demurrer overruled.-In answer they denied all liability until such settlement of the Probate account. Plaintiff demurred to this answer which was sustained. Judgment given for plaintiff, for the confirmation of the deed, and the recovery of $938.89, resulting from the former judgment. Defendants ap-.

pealed January 24, 1878, from the judgment, and made point] that the matter should have been settled in Probate Court, which had exclusive power over guardians and wards and their accounts.

Thos. H. Smith, and E. M. Ross, attorney for plaintiff and respondent.
Bicknell & White, attorney for defendant and appellant.

OPINION BY THE COURT.

Section 1754 of the Code of Civil Procedure provides that certain conditions shall form part of the bond of a guardian appointed by the Probate Judge "without being expressed therein."

Among these are those mentioned in the third subdivision of the section, which reads sa follows:

"3. To render an account, on oath, of the property, estate and moneys of the ward in his hands, and all proceeds or interest derived therefrom, and of the management and disposition of the same, within three months after his appointment, and at such other time as the Court directs, and at the expiration of his trust to settle his accounts with the Probate Judge, or with the ward if he be of full age, or his legal representatives, and to pay over and deliver all the estate, monies and effects remaining in his hands or due from him on such settlement, to the person who is lawfully entitled thereto."

The purpose of the provisions of the Code is that the Probate Judge shall retain the supervision and direction of the guardian and of his management of the person and estate of the ward, until discharged by the appointing power,

Within a reasonable time after the ward arrives at full age, the statute provides that the guardian may settle his accounts with the ward; but considering the previous relations of the parties, it is not to be supposed that it was the intention that such settlement should of itself constitute a discharge, or that it should not be subject to the approval or disapproval of the Probate Judge, prior to the discharge by him. The Probate Judge has exclusive jurisdiction to determine the state of accounts between the guardian and ward. The ward may agree upon a settlement with the guardian, subject to the approval of the Probate Judge, or may apply for a citation compelling the guardian to settle his accounts before the Probate Judge. But to hold that prior to such accounting before the Probate Judge, or to his order approving the settlement in pais, the ward may bring suit in the District Court for a supposed balance, would destroy the symmetry and efficiency of the system furnished by our law for the appointment and conduct of guardians of infants.

It appears on the face of the complaint that plaintiff made no attempt to compel an accounting in the Probate Court before bringing the present action. The demurrer to the complaint should therefore have been sustained.

Judgment reversed and cause remanded, with directions to sustain defendant's demurrer to plaintiff's complaint.

[No. 5827.]

[Filed April 22, 1878.]

ELLIOTT vs. PECK, ADMINISTRATRIX. Appeal from the Twentieth District Court, Santa Cruz Co. D. BELDEN, Judge.

PROBATE PROCEEDINGS-CREDITOR'S CLAIM.--The findings should specify the time when the creditor's claim became due, in order to determine if its presentation was in time.-(Sec. 1493, C. C. P.)

STATEMENT OF FACTS.

In this case Wm. Elliott, plaintiff, brought action to recover from Maria A. Peck, administratrix of the estate of Henry W. Peck deceased, $3,285.00 being the proceeds of an undivided interest in two certain Quicksilver mines in San Luis Obispo County, which they had owned and worked together previous. ly to August 28, 1872,-which mining claims had not then any recognized market value. On that date, a meeting of the owners of the mine was proposed, to settle their accounts, and arrange for further development, or safe. Elliott's health being bad, and the two being intimate personal friends, Elliott made deeds to Peck of his interests in the mines, to enable Peck to manage affairs for him. The deeds were on quit claim forms with an expressed money consideration, and were absolute on their face, but no valuable consideration was paid nor agreed to be paid. After this Peck took possession, and management of the claims. On September 14, 1873 Peck died intestate, having made no disposition of the mining claims. On October 19, 1874, his widow, Maria A. Peck, was appointed administratrix of the estate. The inventory of the 'estate included these claims as belonging to it. On October 30, 1874 notice was given to creditors, and on September 17, 1875 Elliott presented his claim for $3,285, as purchase price of said claims, which the administratrix disallowed. In June, 1875, and before Elliott presented his claim, the administra trix sold (under order of Probate Court) the mining claims, which had been conveyed by Elliott for $6,575. On September 26, 1875, the proceeds of the estate were distributed including the proceeds of the mines. After such distribution, on November 8, upon application of Elliott, this distribution was vacated and set aside. Trial June 21, 1876-Jury waived. Judgment for plaintiff for $3,103, and costs 64.40, entered September 11, 1876. Motion by defendant for new trial December 18, 1876-from which plaintiff appeals. August 2, 1877.

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