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crew had been awake, however, and had witnessed the proceedings, but had held his peace at the time for fear that Cowdry, who had the name of being a bad man, would kill him. This witness, in court, described the whole thing, and no amount of badgering on the part of the counsel for the defence could shake him. In answer to the question of how much of the defendant's body was at any time within the tent, he said that he could swear that he saw Cowdry's right arm and right shoulder, and the whole of his head inside the tent. So much was proved beyond a doubt.

But the counsel for Cowdry, a lawyer from down the river, named Lascom, spread

himself.

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And the Judge sentenced the arm, the shoulder and the head of said Thomas Cowdry, to imprisonment at hard labor in the State's Prison, for the term of two years. The prisoner might do with the remainder of his body what he pleased.

well, and can vouch for his love of the humorous, though I do not, of course, dare assert that my informant has not stretched the scene a very little.-S. C., Junior, in N Y. Ledger.

The story was told to me by an old resi "My client is accused of having feloni-dent of Bangor for a fact. I knew Judge ously broken his way into and entered the dwelling of a certain individual. Never mind what further is charged against him. Did he enter-bodily enter—this dwelling? It is ridiculaus to say so. A witness says he put in an arm, and, perhaps, his head. What do we mean by entering a place? Must not the feet stand within it?"

And so the blustering pleader went on. He had never, in the whole course of his life, heard anything so utterly ridiculous given in seeming seriousness, as this charge. He put it directly to the court if a man could be said to have entered a dwelling when, in reality, he only looked in-when only his head was in, and an arm to steady him, perhaps. Could he have entered a dwelling when by far the larger part of his body, with all the organs of locomotion, were all the while out of doors? And if not, then the indictment fell to the ground; for it charged that his client actually entered the said dwelling. For the honor of the Pine Tree State for the credit of justice everywherehe hoped the court would rule against any such monstrous perversion of fact.

In his charge to the jury, Judge Kent, with a grim smile, alluded to the plea of the prisoner's counsel, and instructed them that,

Liability of the Separate Estate of A De

ceased Person on A Joint Mortgage. The Hibernia Savings and Loan Society sought to foreclose a mortgage executed by Mary Jane Madden, since deceased, and her husband, to secure notes given by the latter, by proceedings against the executors of her separate estate, in the Probate Court. The application to sell the mortgaged property was resisted on the ground that this was not a debt outstanding against the decedent within the meaning of Section 1536 of the Code of Civil Procedure. In his decision upon the question Judge Myrick said :

"It is true that this may not be, in a technical sense, a debt of the decedent; but it is, by the contract, a debt for the payment of which a specific portion of her real estate is liable. Is it not, within the meaning of the Code, a debt outstanding against her? In the meaning of the Code, the words "against the decedent" are the same as if the words were "against the property of the decedent.”

The Supreme Court, in Harp vs. Calihan (46 | amount of sales, public or private, made by Cal., 231) says, in referring to the presenta- him, unless by virtue of a previous agreetion of a similar case, that the policy which ment in writing between him and the owner dictated the provision requiring claims against or consignee. Every auctioneer who violates the estate to be presented within a fixed pe- this section, in addition to the criminal penriod, was intended to expedite the settlement alty, forfeits to the party aggrieved $250, of the estate, and to enable the Adminis- and must refund the excess of charge." By trator and the Probate Court to ascertain the Penal Code a violation of the above is speedily, and with certainty, what debts were to be provided for, what sales of property would be necessary, and when the estate would be ready for distribution.'

"If, after such a claim has been made, it cannot be paid by the executor, how is the settlement of the estate expedited? The executor would simply have to fold his hands and wait the foreclosure by the creditors, which might be deferred to within a day of four years, at a rate of interest ruinous to the interest of the estate in the mortgaged property; whereas by selling and forcing the creditor to take his money something might be saved. If it is not a 'debt outstanding against the decedent,' the executor could not pay it, even if he had plenty of other resources. Let a decree be made overruling the objections, and that a sale de had."

AUCTIONEER'S COMMISSION.-A man named Willard was arrested on a charge of assault with a deadly weapon upon Joseph Spear, the auctioneer. He claimed that Mr. Spear charged him too much for selling certain goods, and during the dispute which arose when he wished to settle the bill, drew a revolver. The transaction about which the trouble arose was the disposal by auction of one bookcase and bedroom set, which brought $179.50, and for selling which Mr. Spear charged $22.25. This, Willard has made the basis of a complaint against Mr. Spear, charging him with a misdemeanor in charging more than one per cent. on the transaction. Section 3309 of the Political Code

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constituted a misdemeanor. It is said that auctioneers have been accustomed to charge eight, nine and ten per cent. on sales, being ignorant of the law, and the disposal of this case will consequently be of great interest to them.

Executors Responsible to the Probate Court In the matter of the estate of R. D. Taylor, the Supreme Court lately decided upon a writ of certiorari, relevant to R. S. Smith, one of the executors, that the Probate Court has a right to order an executor or adminis trator into custody for contempt in not obeying the orders of the Court. Upon the filing of the remittitur, R. S. Smith and William Smith, the executors, were both placed in custody, and they remained in custody of the Sheriff for several days. The matter has now been satisfactorily arranged by payment of the money ordered to be paid, and both have been released. The Probate Court is thus affirmed to be the supreme executor of estates, and it is the first time that it has.

THE MONETARY CONFERENCE.--Paris, August 20th.-Following are the propositions submitted to the Monetary Conference by the United States delegates, now under discussion:-First-It is the opinion of this Assembly that it is not desirable that silver be excluded from free coinage in Europe and the United States. On the contrary, this Assembly believes it desirable that the unrestricted coinage of silver and its use as money of unlimited legal tender should be ticable, and restored where they have ceased retained where they expand, as far as practo exist. Second-The use of both gold and silver as unlimited legal tender money may be safely adopted-first, by equalizing them at a relation fixed by international agreement, and, second, by granting to each metal, at the relation fixed, the equal terms of coinage, making no discrimination between them.

TULARE VALLEY SWAMP LAND.

End of a Tedious Legal Controversy — The Lands Described to the Montgomer♥ Pai

ent Awarded by the Twelfth District Court to those who Have Been in Posses

sion for the Past Ten Years.

A case has been on trial for over two weeks in the Twelfth District Court which presents one

phase of what has caused bitter litigation in the Courts of Fresno county and this city, and many Legislative contests, and which is of great interest to many people in the upper part of the San Joaquin Valley. The title of the case is, the People upon the relation of Jonn L. Love, Attorney General, vs. John Center et al., and is to set aside a patent issued in 1867 for 89,120 acres of land in Fresno and Kern counties.

The facts of the case are these: It seems that in 1857 the Legislature made a grant to W. F Montgomery and four others of one-half of a tract of swamp lands in the San Joaquin Valley, upon condon thar in five years they should reclaim the whole tract and dig navigable canals extending from Kern Jake to the waters of the San Joaquin river. Montgomery and bis associates made deeds to Polhemus, Jones and others, who undertook to do the work, but after a while abandoned it

and P. G. Galpin appear for those claiming under the firs deeds executed by Montgomery and ris associates.

The argument to the case was closed yesterday, and Judge Daingerfield rendered judgment:rom the bench, giving the lands described in the Montgomery patent to the actual occupants, who have Deen in possession for ten years, and have improved the same.

In speaking of the effect of the Act of 1879, udder which the trial was had, the Court decide 1 that all the rights which Dy one had as agaiost the state were such as the State specially granted to those who bold regular conveyances from be grantees under the so-called Moutgoměry tile. That the statute of limitations could only be invoked where possession would have barred an act on ag-lost the state.

That the defendants had fully paid toe value of the laud in improve u's under the act of 1879, and that all except Eilen Green hd regular conveyances from ne grantees of Montgomery and others, the original pareulees.

The law question a- to the validity of the Montgomery patent having been decided in favor of the Stare some days ago, this case possessed very Hule loterest, the only question left being worther the claimants had spent one dollar an acre fu the improvement of the land.

The case occupied a good deal of time, owing to the Dumber of claimants proving up their rights, but really involved very few new or IDteres fog legal propositions. Daily Bulletin, August 28th.

be Levied.

In 1862 the Legislature passed another Act, renewing the grant upon the same conditions to Montromery and others. Montgomery then made second deeds to other parties who undertook to How the Tax on National Banks must comply with the conditions of the grant. In 1863 the Legislature released the grantees from the obligation to dig the canals, but still required that the whole tract should be reclaimed. Parties holding under the second deeds from Montgomery and his associates reclaimed a little of the land, and managed in some way to get a patent from the State for 89.120 acres in 1867.

Tuese parties then made deeds to numerous persons of all the land covered by the patent, who supposed they were getting a good title. Part of the town of Bakersfield is nutit on the land, and the settlers and claimants have expenced over $1,000,000 in permanent improve. ments upon different portions of the land covered by the patent,

In 1875, parties who held under the first deeds executed by Montgomery began to stir up a claim to the land, and about the same time Haggiù and Carr cast louging eyes upon fertile felis Included in the tract, and a day or two before Attorney General Love went out of office this suit was brought to set aside the paten', Haggin and Carr having meanwhile caused applications to be filled, to purchase this land from the state at ene dollar per acre

Last winter the Legislature passed an act giving the settlers who claimed under Moutgomery, the right, lu case the Court saoula bold the Dafent void, to come in and prove that they bought in good faith, also to prove their possession, their improvements and payment of taxes, api get a new patent. The Court has decided the patent to be void, but has also decided that the Berlers who have purchased in good faith are entiled to new patents.

Messrs. Stewart and Grearhouse appear for plaintiffs, who are supposed to be the People. Warren Oney, Houghton & Stetson, L S. Cutter and others appear for the settlers. J. T. Boyd

WASHINGTON, August 28d.-The following explains itself:

To Hon. B. Hawley, Acting Secretary of the Tream ury-SIR: In compliance with request, I have compared the second 11em of section 34 8. Revised Starutes, imposing a tax upon capital employe in the business of banking beyond the average amount invested in United States ponds, with Revised Statutes, section 5214, hich requires every association named in that chapter entitled national banks to pay duty semi-annually on the amount invested in United States bonds, with a average amount of its capital stock bevond the view to determine whether the amount so IDvested is to be ascertained by taking the price paid on the market value of these bonds, as is deue by the Commissioner of Internal Revenue under the first cired section, or by looking Guly at their face value-the mernod ad pted by the Treasurer of the United States under the last named section. The certainty aud uniformtry particularly desirable in fixing a basis for taxa

on, as well as common usage iu speaking of the amount invested in auy enterprise according to par value of the shares owned, disregarding biokerage paid and accrued interest or earnines, indicate that it is or ly the principal sums, cayable at the maturity of the bonds, which are proper ones to enter into the computation of the amounts invested in them under the section of the Revised Statutes to which you have reterred me. CHAS. Devens, Attorney-General.

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of July 19th) was made because parties wanted me to pay more than was justly due them, and, therefore, I went and made this conveyance of this piece of land to Mr. Lorenzena, to save it from being taken from me to satisfy an unjust debt." Again (fol. 83) he testified as follows: "I executed this deed (the deed of August 2d) because I was afraid they would attach the property. I executed it for the purpose of saving him for the payment of the money I owed him, (Lorenzana,)

Appeal from the Seventeenth District Court, Los and the land." Angeles County.

DENSON, acting Judge.

DEED FOR LAND, INTENDED AS A MORTGAGE-WHEN VALID. In a deed mace for the purpose of de fraudin, bindering or delaying creditors, the granter cannot be eeved against its operation. While subject to the attack of creditors, as to him it is valid.

STATEMENT OF FACTS.

This action is brought for reconveyance of mort gaged premises.

George C. Gibbs, Court Commissioner and referee in the case, finds that on July 6, 1875, Ramon Ybarra borrowed of defendant, J. C. Lorenzana, $500, and gave note, secured by mortgage, for payment, in one year from date, with interest at one and one-half per cent per month.

The premises mortgaged were the Ybarra vine. yard lot No. 4, City of Los Angeles. On July 19, 1876, plaintiff executed to defendent, a deed of the premises, and the mortgage was cancelled, but no defeasance in writing was made, and no money passed between the parties. The money loaned by the defendant was that of his wife Casaria V. de Lorenzana, and he acted as her agent in the loan matter.

On August 2, 1876, plaintiff executed to defend ant another deed, for the purpose of correcting the description of the premises; and on August 22. 1877, defendant, J. C. Lorenzana, conveyed the premises to said C. V. de Lorenzana, who took with a full knowledge of the loan, and the note and mortgage as security therefor. Further, that the first deed was in fact a mortgage, given for the continuing of the loan, and since its execution, premises and received rents therefor.

Amount received to January, 1878, is $375, and had paid during the time, street assessments and taxes, $78.18 for the years 1876-7; and a judgment against plaintiff of $191.19, it being a lien on the premises, at the time of the giving of the deed, by plaintiff. On August 10, 1877, plaintiff offered to pay the original note and interest, demanding a reconveyance.

Upon these findings of the referee, the court held that the plaintiff is entitled to a reconveyance upon payment of the amount due-after adjusting what had been paid out and received by defendants-balance $512.87 with interest thereonif paid within a specified time. If not so paid, plaintiff is barred of all equity of redemption, and the title of defendant, C. V. de Lorenzana becomes absolute.

From this judgment, appeal was taken by the defendants.

Hartman & Haley, and H. T. Hazard attorneys for plaintiff and respondent. Thom & Ross, attorneys for defendants and appellants.

BY THE COURT.

The findings are attacked on the ground that it appears by the evidence that the plaintiff executed the deeds of July 19th and August 2d respectively, for the purpose of defrauding his creditors. The plaintiff testifying in his own behalf (fol. 81) stated as follows: "The paper (the conveyance

The deed of August 2d was executed for the purpose of correcting a mistake in the description in the boundaries of the land conveyed by the deed of July 19th, and the complaint was filed for the purpose of obtaining a decree, declaring the conveyance of August 2d to have been a mortgage merely, and not an absolute deed, as it purports, on its face, to be.

The answer denied that the deed in question was intended as a mortgage.

The judgment given below was that this deed allowed to redeem it, etc. was a mortgage merely, and that the plaintiff be

tiff himself, when testifying as a witness in the As seeu already, the evidence given by the plaincause, was to the effect that the purpose of the conveyance was not only to secure the defendant Lorenzana in the payment of the debt due to him, but also, to invest him with the legal title in order that the creditors of the grantor, plaintiff here, against the plaintiff. Such a conveyance, while might be hindered in the collection of their debts subject, of course, to the attack of the creditors, is valid as against the grantor. It is a settled prin. ciple of law that the grantor, in a deed made for the purpose of defrayding, hindering or delaying his creditors, cannot be relieved against its operation. As to him it is valid.

The rule in this respect is one common to courts of law and equity, and is expressed in the maxim, "In pari delicto melior est conditio defendentis." (1 Story Eq. Jur., 61.)

Judgment and order denying a new trial reversed, and cause remanded.

[Filed August 26, 1878.]

IN THE MATTER OF

THE ESTATE OF CROSBY.) No. 5990.

Appeal from Probate Court, Santa Clara county. D. S. PAYNE, Probate Judge.

PROBATE PROCEEDINGS-CREDITORS' CLAIMS-SALE OF ᎡᎬᎪᏞ Ꮀ ᏚᎢᎪᎢᎬ, On a petition for the sale of real estate, the heirs may nteet the validity of allowed claims The allowance by the Probate Judge of a judgment as a claim against the estate, isot conclusive cn the heirs. A stranger to a Judgment against a decedent, even though he be the equitable owner there f, is not the proper parts to present the s me for allowance as a claim against the decedent's estate.

STATEMENT OF FACTS.

Sam'l. J. Crosby died intestate, on March 29th, 1859, owning 900 acres of land in Santa Clara county, and an undivided third of the Cuyamaca Rancho in San Diego county, (containing about eight leagues of land,) but no personal property found. On June 29th following, the court granted letters of administration to Edward P. Reed, and he filed on December 29th, an inventory of the land in Santa Clara county, appraised at $2,70; but no mention was made of the interest in the Rancho Cuyamaca, although papers were his hands that would give him full knowledge

it.

Claims against the estate were duly presented, among them one by W. T. Wallace, for $740. On June 28th, Reed filed a report and account; and on July 31st fled his resignation as his final account, which was accepted and allowed on August 11th. On August 25th, 1860, all the lands in Santa Clara county were sold on an order by the 3d District Court to satisfy a judgment of foreclosure of one Elisha Overfelt.

On March 21st, 1861, E. P. Reed obtained a writ of execution from the Third District Court, upon a udgment in favor of Elliott Reed, for the sale of the San Diego property, which Reed bid off, in full satisfaction of the judgment, and obtained a sherift's deed.

Freeman B. Smith, as ubsequently appointed administrator of the estate, filed, on May 2d, 1876, an Inventory and appraisment of the Cuyamaca Ra "ho property, valued at $2000.

Doubt having arisen as to the validity of the execution issued to Reed, an agreed upon case was submitted to the Twentieth District Court, which decided it void, and the judgment not satisfied.

The Probate Court found it necessary to order a sale of the said San Diego property to satisfy the claims allowed of $25,000. From the order of sale 01 November 24th, 1877,-Evelyn C. Crosby, widow, and Samuella Crosby, only child of the deceased; appeal to the Supreme Court.

S. F. Leib, and James H. Birch, Jr., attorneys for heirs and appellants. Houghton and Reynolds, attorneys for respondents.

BY THE COURT.

If the promissory note on which the judgment in favor of Elliott Reet was founded, had not gone into judgment in the lifetime of Crosby, and had remained in the possession of Elliott Reed, without assignment, it could only have been presented for allowance in his name, even though E. P. Reed may have been the equitable owner of it. (Marsh vs. Dooley, April Term, 1877.)

The fact that it had gone into judgment during Crosby's lifetime, cannot vary the principle. It was a judgment in favor of Elliott Reed, and when presented for allowance by E. P. Reed, in his own name and for his own use, it had not been, and the findings show has never been assigned to him. If it be assumed, that in allowing the judgment as a claim against the estate, the Probate Judge must be held to have decided on the evidence before him that the judgment had, in fact, been assigned to E. P. Reed, nevertheless his decision is not conclusive on the heirs. It is well settled in this court, that on a petition for the sale of real estate, the heirs may contest the validity of allowed claims. Beckett vs Se over, 7 Cal., 215. Estite of Schroeder, 46 Cal., 304.

If it be conceded that the allowance is prima facie evidence of the validity of the claim, as against the heir, he is entitled to overcome the prima facie case by proof on the hearing of a petition for the sale of real estate. In this case, the heirs, established affirmatively, that the judgment was never assigned to E. P. Reed; and for the reasons already stated, the claim could not properly be presented and allowed in his name and for his

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This is an action brought on a written contract, made_April 9th, 1877, between the defendant and Wm. T. Chapman, by which defendant, in consideration of $50,000, and an annual payment of fifty dollars per cubic foot per annum, grants to Chapman 200 cubic feet of water per second, to be brought and delivered as required by the defendant, and measured on the land.

By agreement, made May 10th, 1877, between Chapman, and the plaintiff, and the defendant, this water right as to certain lands which Chapman had conveyed to the Bank, was assigned to the

Bank.

Another stipulation was made May 11, 1877, confirming the first agreement to the lands sold the bank and the 85% cubic feet for their irrigation. and rescinding it, as to all others. On October 23, 1877, plaintiff notified defendant to deliver the whole 85% feet. The Canal Company took its water from King's River, and had, as charged, before making this contract, made others, which, with this, more than exhausted its entire capacity. Notwithstanding this, defendant, on December 5th, sold further water rights.

Plaintiff's lands-13,400 acres are very valuable with irrigation, but without are nearly worthless, and they ask an injunction on such further sales of water-which was granted.

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The appeal is taken from an order dissolving an injunction. The complaint does not state a cause of action. It is not alleged that the defendant has broken the contract under which the plaintiff claims the eighty-five and one half cubic feet of water, but only that the defendant is about to enter into other contracts for the delivery of water to other persons, whereby the defendant will have contracted for the delivery of more water in the aggregate than the capacity of its ditch will enable it to supply. But even if this be true in point

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