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JUNE 22, & 29, 1878.
Nos. 13, & 14,
DOUBLE NUMBER.--OMITTED DECISIONS.-In this issue (a double nnmber,) we report-as heretofore promised the 12 decisions of our Supreme Court, omited from the "San Francisco Law Journal” vol 1. through neglect of its Editor; which,
the case of "Ex Parte Frank," reported in our last issue, completes our continuance from that volume,---with the exception of a few more of the "Unwritten Opinions” which we shall try to crowd in to our next issue.
STOCKTON, June 24, 1878. MESSRS. SCOFIELD & DRAKE, Gentlemen,- I see you notice in No. 12 of your LEGAL RECORD the conviction of Garnett for selling the same lots twice.
I send you enclosed an item upon the final disposition of the case, which may be interesting to some of your readers.
S. L. TERRY. THE GARNETT CASE.--In No. 12 of the CALIFORNIA LEGAL RECORD mention was made of the trial and conviction of James Garnett for selling land twice. The case was appealed to the Supreme Court, and decided at its July Term, 1868. The appellate Court held that, to constitute the offence of which the defendant was found guilty, an intent to defraud some person was necessary ; that Barrett could not have been defrauded because his deed was on record before the conveyance to Babcock, Muldrow, and Waterhouse was executed, and that the last named parties could not have been defrauded as they were informed by the defendant, before he sold to them, of the previous conveyance to Barrett. The judgment of the lower court was, therefore, reversed. The case is reported in. the 35 volume of California' Reports, page 470.
HASTINGS LAW DEPARTMENT OF THE UNIVERSITY OF CALIFORNIA-All persons who desire to be entered as students of the College, will please address the Dean at once at his office, Court Block, San Francisco. For further information, see the address cf the founder.
S. C. HASTINGS, Dean. C. F. D. HASTINGS, Registrar. Office, Court Block, 636 Clay St. San Francisco.
IS A SERVANT GIRL ENTITLED TO A" CHARACTER?"-Is a servant girl entitled to a "character” from her mistress? The Queen's Bench Division of thc High Court of Justice in Ireland has decided the question in the negative in an action recently brought against a clergyman's wife for “not sustaining a written character.” The “help” gave her mistress a month's notice, and was told she could go at once if she liked. She went away then and there, but returned the next day to ask for a written character. Her former mistress complied with her request, stating that the girl had conducted herself soberly, quietly and honestly for a space of six months and was discharged at her own request. She subsequently applied for another situation, producing the written character. The lady stated she would prefer an interview with her former mistress. The plaintiff then went to the latter, who said : "As I can only speak the truth, you had better rest satisfied with your written testimonial.” The two ladies met, and the plaintiff received a letter to the effect that her character was not satisfactory. The court has decided that the servant may under certain circumstances claim a discharge, but they have no legal right to a character.
THE SECRETARY OF STATE has received from the binder the first 500 volumes of statutes of the last Legislature. He will forward them to those entitled to receive them as soon as possible. SALARIES OF CITY OFFICERS.-In a test case before the
City – a Superior Court at Baltimore, Judge Dobbin decided that the salary of a city official, while in a city's keeping, cannot be attached by a creditor of the officer, nor be diverted from him by any similar legal process.
A SINGULAR QUESTION IN AN ENGLISH COURT.-High Court of Justice, May 31st-Chancery Division-Before Vice Chancellor Sir Richard Malins-In Re Holden's Trust.-- This case arose in circumstances of a peculiar nature. A gentleman named Holden who was Captain of the Great Queensland, a merchant vessel of 1,800 tons register, made his will before leaving England in favor of his wife and children. He sailed for Melbourne in August; 1876, taking with him his wife and only child, a girl four years old, and having on board a crew of 32 men and also 30 passengers. Part of the cargo of the Vessel consisted of 30 tons of gunpowder, and two tons of wood powder, otherwise called patent safefy blasting powder. The vessel was passed on the 12th of August, but she was never after heard of, and an inquiry having been instituted concerning the explosive nature of the cargo, the conclusion come to was that the vessel was blown up by the wood powder igniting and communicating with the gunpowder. A question was now raised as to who was entitled to the property left by Captain Holden, and a petition was presented by his two sisters, who were his next of kin, for payment of the money to them, on the ground that it was impossible to ascertain which of the two--the wife or daughter-had died first. If the wife had survived the daughter, her representatives would have been entitled, but not so if she died before her daughter. Mr. Batten appeared for one of the next of kin of the testator; Mr. Birrell for the other next of kin; Mr. Heath for the owner of the vessel.
The Vice-Chancellor said the report as to the loss of the ship was quite conclusive to his mind that the vessel had been blown up by the ignition of wood powder, and in such circumstances it would be impossible to prove which of the legatees under the will had died first, and therefore, the next of kin of the testator, who were his two sisters, were entitled equally to the property, and an order to that effect would be made.
D. B. WOOLF, CLERK OF THE SUPREME COURT, paid into the State Treasury the sum of $349 50, fees of his office for May.
Supreme Court of California.
(The following 12 cases were omitted from the San Francisco Law Journal, Vol. 1.)
(July Term, 1877.]
KELLER vs. TANSEY
character, are not sufficient grounds for a rehearing; yet, a denial is not to be construed as controlling the final action of the Court below in this
OPINION BY THE COURT. The petition for a rehearing, points out certain mistakes of fact appearing in the opinion delivered in this case, such as designating the appeal as “an appeal from an order denying a preliminary injunction," instead of "an appeal from an order dissolving a preliminary injunction,” etc.
But these, being wholly unimportant in their character, ought not to operate a change in the judgment rendered here.
It is proper to add, however, that the action of this court upon this appeal is not to be considered as directing or controlling the decision of the court below on the final hearing of the cause.
[October Term, 1877.]
GREENE vs. WHIPPLE.
STATEMENT OF FACTS.
Defendant claims adverse possession and occupancy as a home, with fencing, and cultivation, for more than five years, and that plaintiff is debarred by secs. 324 and 325 of C. C. P.
Trial by jury, and verdict for plaintiff, for restitution, and costs $200.60, no November 17, 1875 The claim of plaintiff was that her husband, being the real owner of the land, had in 1862,--13 years before this suit,--made a contract for sale of 25 feet by 100, to defendant for $1000, to be paid in carpenter work, and about one half had been so paid, since which defendant bad refused to pay more, but claimed ownership by undisturbed possession, etc.
But the actual possession by defendant of more than 25 feet not proved.
On Deceinber 16, 1875, defendant moved for a new trial on statement of the case, and motion was granted by Judge Daingerfield.
From this order, granting a new trial, plaintiff appealed March 30, 1876
OPINION BY THE COURT. Taking the whole testimony, or the testimony on the part of the defendant alone, there is no evidence tending to prove that the defendant held possession of the demanded premises adversely to the plaintiff.
In this view of the case it is not necessary to inquire whether the instructions of the Court did or did not declare the law. Order reversed.
Note-A rehearing has since been asked by respondente --Editor.
[No. 5502 ]
ROOT vs. QUINTANA.
E. FAWCETT, Judge CONTRACT-INCOMPETENT PROOF.-In an action to recover from defendant, for
building materials furnished ;-Held, that it was not competent for defendant to prove in answer "that the buildings were not finished by the con. tractor according to the contract," etc.
STATEMENT OF FACTS. As shown by the amended complaint, the “California Bridge and Building Co."-a corporation-contracted with E. Quintana, on May 1st, 1875, to build a certain building in San Luis Obispo, and between July 15 and August 6, 1875, the firm of Root, Neilson, & Co., sold certain building materials (iron castings), to'the Bridge Company as agents of Quintana, to the amount of $501.50 ;r for which this suit is now brought Plaintiffs filed their lien on December 13, 1875, before 30 days after the completion of the building, at which time there was due the Bridge Co. from Quintana over $2,000