In June, 1871, the administrator, in an action in the Fourth District Court, (which the defendants defended for plaintiff) recovered judgment against plaintiff for $2,457.62. Appeal was taken on this, and the judgment affirmed, so plaintiff was compelled to pay, and did pay, in full, $3,000. For this amount, plaintiff in the present action asks judgment, with interest. Action brought July 29, 1875. At trial, plaintiff put in evidence, a copy of the written agreement, purporting to give the "material part. Defendants demurred, on the ground of ambiguity, as the whole of the agreement was not given. Demurrer sustained, with 10 days for plaintifi to amend, which was not done, and judgment given for defendant. From this, appeal was taken on January 4, 1877. And now, there being “no appearance of appellant, the judgment is affirmed." M. A. Wheaton, attorney for plaintiff and appellant. J. M. Seawell, attorney for defendant and respondent. [No. 3025. Decided August 13, 1878.] B. S. BROOKS, Plaintiff and Respondent. vs. R. S. CARPENTIER, et al., Def'ts. and App'ts. Appeal from Fifteenth District Court, San Francisco. DWINELLE, Judge. Action to Recover an Assigned Contingent Share in a Sobrante Rancho, for professional services rendered. STATEMENT OF THE CASE. A Sobrante Rancho (after the Ranchos San Antonio, San Pablo, Pinole, Murango and Valencia should be finally located) was granted to Juan Jose and Victor Castro. They sold same to John B. Frisbee and Ramon DeZaldo; and they, holding in fee, made a contract with Horace Hawes,-now dead, to act for them before the Board of U. S. Land Commissioners, in the survey and confirmation of their claim, for which he was to receive three per cent. of the land when finally determined. He did so act, and got the title. Hawes sold a half of his claim to plaintiff. The land had not yet been surveyed, because the San Antonio had not, which was first necessary. But the rancho in question probably amounted to about 35,000 or 40,000 acres, though not yet segregated from the surrounding ranchos. Hawes sold the other half of his claim to Frisbee, one of the fee owners, but it is claimed that Frisbee (also DeZaldo) has now no interest in the land, having sold it to various parties, i. e., R. S. and H. W. Carpenpentier. Edson Adams and John H. Saunders, also defendants here. Defendants now threaten to sell, hence pluintiff asks for decree of relief, and judg ment (for 3 two-hundredths share of the said rancho). Defendants, Frisbee and DeZaldo, demur, on the ground of the action being barred by Sec. 19, of an Act defining the time of the commencement of civil actions. The other defendants also demur, on various grounds, and all are overruled, with 10 days to answer. No answer being made, judgment was given for plaintiff, with costs. But, it appearing that after the sale to R. S. and H. W. Carpentier, enough land was still left to satisfy plaintiffs' claim, the judgment was not given as against them. Defendant, Edson Adams, moved to vacate the judgment, charging collusion between the plaintiff and the two Carpentiers, in releasing them from the judgment. Motion denied. A motion was made by plaintiff to adjudge Adams guilty of contempt in not obeying the judgment, and it was so ordered, with coufinement in the County jail. Appeal taken by Adams from the order denying motion to vacate the judgment. There being now "no appearance for appellant, the judgment and order is affirmed." B. S. Brooks, in propria persona, attorney for plaintiff and respondent. H. W. Carpentier, defendants. W. H. Patterson, attorney for Frisbee and DeZaldo, Defendants. H. P. Irving and Edward F. Head, attorneys for appellant, Edson Adams. THE ELLIS TIDE LAND GRANT. VS. THE "VAN NESS ORDINANCE." The decision rendered on July 29th, last, by Justice Field, of the Supreme Court, sitting in civil cases in the U. S. Circuit Court, is important, as affecting the title to the lands known as the "Ellis Tide Lands," and also the boundaries of the Pueblo grant to the city of San Francisco. The decision was given orally, the Judge stating his views at length, and observing that he would, at a future day, file an opinion embodying their substance. A day was fixed for counsel to prepare the findings, but the case was soon afterward settled, and the suit dismissed by stipulation of the parties. U. S. LAND DECISIONS. The parties were C. C. Tripp, vs. F. S. Spring, and the issue the possession of a part of the Block Nunber 60, bounded by Mis- WASHINGTON, August 15.-In the case of sion, Howard, 17th and 18th streets. The Hans Hagland vs. the Northern Pacific plaintiff is a citizen of Illinois, and derives Railroad Company, the Secretary of the Inhis title from the conveyance to George W. Ellis, by the State Board of Tide and Land terior has decided that the grant of the Commissioners, in November, 1875. The Northern Pacific Railroad Company attaches defendant is a citizen of California, and to land acquired under the Sisseton and claims under conveyance from parties who acquired title under the ordinance known as Wahpeton treaty outside of the reservation, the "Van Ness Ordinance," and the subse- they having been acquired prior to the defiquent confirmatory legislation thereto. It is nite location of the road, and that is settlefelt to be a test case upon which numerous ment of claims upon the granted section other cases of like bearing may be determined. It was tried by the court, without were excluded by the sixth section of the jury, by stipulation of the parties. The Act of July 2, 1864, making the grant to plea of the plaintiff was that they were the Company. The decision determines the either tide lands of the Bay of San Francisco, right to a large tract of land in Dakota. and hence their title vested in the State as a The Hagland settlement on these lands was in violation of law and treaty obligations, the Indian title not having been extinguished at the time of settlement thereon, and the withdrawal of the Company having preceded the extinguishment of the Indian title. sovereign or that they were, upon her admission, salt marsh lands, which at once passed to the State under the "Swamp Land" Act of Congress of September 28, 1850, and in either case were conveyed by the State to Ellis, and their deed was made prima facie evidence of title. QUESTION OF OFFSET. But, Pueblo rights attached to the city upon the cession of the country from Mexico, which were entitled to a precedence, over all others subsequently acquired, and A Judicial Opinion of Special Interest to were confirmed by later legislation. conclusion is that these premises are a part of the tract confirmed to the city by the decree of the U. S. Circuit Court, entered May 18. 1865. The And that became final by the Act of Congress of March 8, 1866, and which was followed by a dismissal of the appeal to the Supreme Court. The defendant, having shown that his grantors were in peaceable, actual possession of the land at the time the "Van Ness Ordinance" took effect, and on the passage of the confirmatory Act of the State Legislature, and had made valuable improvements upon it, had thus acquired the city's title, and so brought himself in connection with a superior title to that of the plaintiff. Hence judgment must be entered in 'his favor. And it was added that no patent of the United States which may be hereafter issued to the city from the Land Department, can either add to or take from the title already vested in the city, or those claiming under it, as the confirmatory Act of Congress will control any patent the Department may issue. Stock Operators. The following decision rendered Monday, Aug. 19th, by Judge T. W. Freelon, of the Municipal Court of Appeals, will be read with interest by business men and stock operators in particular : In the case of A. F. Benjamin vs. Charles Aitken, argument was concluded on Saturday night. The argument had occupied three entire sessions of the Court, on account of the importance of the questions involved to the brokers generally, so far as the decisions of this Court go, and also because many of the questions involved in that case were involved in twelve or fourteen suits already before the Court. The facts of the case, in short, so far as necessary for the decision of this case, are, that Benrimo and Aitken were members of the Nevada Stock Exchange; that, as such, they had dealings with each other as principals; that, as one of the results of these dealings, Benrimo be and without consider came indebted to the defendant Aitken in a purpose. Cook tried to set them off, but large sum of money, for which he gave his Benrimo declined to allow a set-off, upon notes, payable at 60 and 90 days. After the ground that Cook's notes were not then this, and while the notes were still due and owned by him. It was claimed that by this not paid, Aitken bought of Benrimo 300 transfer of the notes Aitken lost the ownershares of Imperial, buyer ten. At the expi-ship of them, so that he could not set them ration of the ten days Benrimo offered the off against the indebtedness of Benrimo. shares to Aitken, and demanded payment; Aitken and Cook both swore that the ownAitken told him that he desired to set off ership had never changed, and the facts Benrimo's note against the price of the stock. show that the notes were transferred for the Benrimo then, for the first time, informed single purpose, him that he was not dealing for himself, that ation, of allowing Cook to use them if he the shares belonged to Mr. Smiley, showed could; if not, to return them to the defendhim the shares with Smiley's tag on, and re- ant. After Cook had failed to use them, he fused to allow the set-off. The shares were notified the defendant that he had so failed, sold by Benrimo, in the Board, according to and he was at liberty at any moment to have what was claimed was the custom of the taken the notes back. In point of fact, unBoard, at a loss of $117.50. Benrimo as- der this transaction, both as to the question signed the claim to Benjamin, who brought of fact and as to the question of law, teh Aitker suit for that amount, which is the suit now ownership never had changed. at bar. It was claimed on the part of the could, at any moment, from the time the plaintiff that, Benrimo being a broker, de- notes were first put into Cook's hands, fendant was bound to take notice, from the without consideration, until the time when fact of his employment, that he was not do- these suits were commenced, have reclaimed ing business for himself, but was doing busi- the notes. ness as an agent. There is some conflict o in the possession of Aitken at the time he It is not neces- offered them as an offset, and were his propauthority upon that point. sary, however, to decide it, because the facts erty beyond doubt at that time. Such beof this case are that before that time Benri- ing the facts, the Court finds that the notes mo and Aitken had been doing business to were a legal offset, and that Benjamin, the gether of this same kind, as principals. And assignee, stands in no better position than the proof shows that, in point of fact, defend- Benrimo, the assignor, and that judgment ant supposed that he was dealing with Ben- should be for defendant.-Bulletin. rimo as principal in this transaction. But the fact that they had been dealing together before as principals makes it unnecessary to decide whether or not a stranger dealing with a broker is bound to take notice that the broker is not acting for himself. It seems that one Cook was indebted to Benrimo. Benrimo held his notes. Cook was a friend of the defendant Aitken; and the defendant, at the request of Mr. Cook, handed him these notes for the purpose of setting them off, in Cook's hands, against the They indebtedness of Cook to Benrimo. that special were given to Cook for The notes were, as proof shows, JULY TERM,, 1878. APPEALS DISMISSED. costs. No. 6112.-Jannsens vs. Hill, et al,-On motion of Bishop for respondent, -Counsel for appellant not objecting. No. 6113.-Gonzales vs. Hill, et al,-Same as above. No. 5819.-S. F. Savings Union vs. JohnOn motion of Fox for appellant. 8011, July 9th.-No. 10,346.-Feople vs. Gibbs,Stricken from Calendar, on motion of Attorney General. 15th.-No. 6171.-Estate of James Holbert, deceased,-On motion of Elliot for respondent. CAUSES CONTINUED. July 10th.-No. 5411.-Felton vs. Robinson,--To October term at Los Angeles. 11th.-No. 5964.-Hidden vs. Jordan, et al, -For the term--by stipulation. 15th. No. 6162.- Cadd vs. Clark,--To October term at Los Angeles-by stipulation on file. No. 5884.-City of Stockton vs. Reed, et Aug. 5th.-No. 6067.-People vs. Gardner,al,-By consent;-cause settled. 17th.-No. 6174.-Cal. M'fg. Co. vs. Graham, On motion of Thompson for respondent. No. 6037.-Estate of Jas. Holbert, deceased,-Argued by Budd for respondent and Elliott for appellant. 24th.-No. 4970.-Lyons vs. Beale, et al, For.want of prosecution. 29th.—No. 6192.-Gordon vs. Splivalo,— On motion of Sawyer for respondent. Aug. 5th.-No. 6202.-Duane vs. City and Co. S. F.,-On motion of W. C. Burnett for respondent. No. 6153.-Treadwell vs. Stiger,-On motion of J. M. Seawell for resp's. No. 5576.-Stoddart vs. Burge,-As to the "Order denying defendant's motion to vacate and set aside an order dismissing defendant's cross complaint, directing judgment, etc." As to judgment, --denied. 7th.-No. 5657.-Bianchi, et al, vs. Hood, -By stipulations on file. No. 5927.-Petersen et al, vs. Evans, et al, -Without costs, by stipulations on file. 12th. No. 5830.-Prescott vs. Salthouse, (See opinion in RECORD NO. 19 and 20.) 13th.-No. 4631.-Hart, et al., vs. Finnegan,-For want of prosecution, 19th.-No. 6212.-Lothian & Co. vs. Coller, et al.,-On motion of Wilson for respondent. 21st. No. 6087.--Helm vs. Underhill,Without costs, on motion of Gunnison. 22d. No. 6214.-Crant vs. Burr, et al.,On motion of Cowles and Drown for resp. To November term-on motion of Harri son. 21st.-No. 5683-5694.-Curry vs. Alvarado,-Till Sept. 24th-by stipulation on file. PETITIONS FOR REHEARING. July 31st.-No. 5423.-Monterey and Salinas Valley R. R. Co. vs. Hildreth. (Re ported in RECORD No. 17.)-On motion of William Matthews. Stay of proceedings granted. Aug. 6th.-No._5191.-Keller vs. Lewis.— (Reported in RECORD No. 17,)---On motion of Glassell, Chapman and Smiths,-Stay of proceedings granted. Aug. 21st.-No. 6041.-Reynolds vs. Groneville,-(Reported in RECORD No. 21,)-On motion of Armstrong-stay of proceedings granted. ADMITTED TO PRACTICE. July 8th.-H. T. Hazard,-On motion of J. J. Williams, and evidence of admission, to all the courts of Michigan. S. C. Scheeline,--On motion of S. Rosenbaum, and license from Supreme Court of New York. 11th.-Wm. .D. Storey,-On motion_of John C. Hall, and license from the Supreme Court of New York. 15th. Lewis H. Redfield,-On motion of Hon. John C. Burch, and license from the Supreme Court of New York. Aug. 9th-R. B. Treat,-On motion of E. G. Stetson, and license from Supreme Court of New York. 12th. Jere. S. Black,-On motion of S. O. Houghton, and evidence of admission to the Supreme Court of the United States, 15th. Charles M. Keinston,-On motino of T. K. Wilson, and license from Supreme Court of New York. Vol. I. SATURDAY, AUGUST 31, 1878. REMOVAL OF THE 23d DIST. COURT. A LEGAL POINT INVOLVED. Judge Thornton, of the Twenty-third District Court, called the attention of attorneys, yesterday morning, to the instruction of the Supervisors to remove the Court to rooms in the New City Hall, and questioned the power of the Municipal Fathers to do anything of the kind. He referred to the Act of the Legislature creating the Twentythird District Court, which he thought prevented the Board of Supervisors assigning a room in which business shall be transacted just where they please. He thought it would be a violation of the Constiution creating District Courts. If, said the Judge, it should turn out to be the case that teh removal of the Court out of its District by the Board of Supervisors was in violation of the Cotstitution, it would cause great inconvenience to the members of the Bar, and inflict much injury upon litigants, the parties most deeply interested. Under the decision of the Supreme Court in ex parte Wall and Houghton No. 22. vs. Austin, the fact of the Court being held out of its District would render its judg. ment of no effect; nor would the Court have the power to compel the attendance of witnesses and jurors. He suggested that members if the Bar assist him in having the matter brought before the Supreme Court, and passed upon, if possible, before the 30th of September, which is the date fixed for the removal of the Court, either by mandamus or in some other way. In conclusion, the Judge stated that if the law removing his Court-room to the New City Hall is oonstitutional, he would obey it without hesitation, although the room which has beeu assigned for his use is a most disagreeable one, and into which the sun never pene trates. Morning Call. A CURIOUS DECISION. There was a bit of grim humor in a certain judicial decision of Judge Kent. I think the court was in session at Bangor. The case was the State versus Thomas Cowdry. Said Thomas Cowdrey was accused of having committed burglary, and a bill had been found by the grand jury. Upon trial it appeared that Cowdry had been employed with a gang of lumbermen up the Penobscot river, where he had cut his way through a tent belonging to another party, and stolen certain articles of clothing, together with a sum of mouey. It was brought out by evidence that the tent in question was of firm rubber cloth, and much more comfortable than the common log huts. In the rear part of this tent had been a chest, the location of which the prisoner had carefully noted, and on a certain night, while he thought the inmates slept, he cut his way through the fabric and committed the theft. A young man of the. |