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SATURDAY, SEPTEMBER 21, 1878.

Vol. I.

Legal Notes.

AN IMPORTANT LEGAL POINT.

No. 25.

September 9, 1876, asking damages, and an in-
Junction against further cutting timber, etc.

A jury was waived, and also findings, and the Court gave judgment in favor of the bank, and against the defendant.

Defendant moved for a new trial, with a state

A Man's Home Alienated While He is in an ment of the case, claiming that the decree on

Insane Asylum.

A case has just been appealed to the Supreme Court from San Joaquin county, which presents a very interesting and important legal point, although it may not reach a decision for some months to come. According to the statement or a gentleman conversant with the case, Robert W, Spencer of San Joaquin county on September 17, 1862, borrowed of Walter K. Dell $283, giving his promissory note due in 12 months, with interest at the rare of 2 per cent per month, and as security gave a mortgage on his homestead-160 acres of land-in that county, which he held by a patent from the United States.

In 1863 Spencer became insane and was confined in the state Insane Asylum at Stockton, where he remained until 1875 (about 18 years.) On September 23d, 1867, Dell obtained a judgment for the debt of $727 49, principal and interest, and a decree of foreclosure and sale of the premises. By an action in the Fifth District Court he procured the appointment, by the Court, of G. A. Shurtleff, an officer of the Asylum, as guardian ad litem for Spencer, there never having been a general guardian appointed.

This guardian was servei with a summons and copy of the complaint, but Spencer only with the summons. No appearance was made in defense, and the judgment was obtained by default, and Dell bought in the land for $855; and after the expiration of six months (time of redemption) procured a Sheriff's deed, which was recorded August

8. 1868.

Walter K. Dell then sold the land to Lewis R. Dell, and they both afterward made a joint deed to third parties, who deeded it in trust with other lands to Chas. H. Swift and Wm. P. Coleman, for a loan of $6,000 from the Sacramento Savings Bank; and these trustees on March 11, 1873, deeded to the bank, for default in paying the loan, which has since held the title.

Spencer was discharged from the Asylum in 1875 as cured, and went home to his land, and went to work upon it, cutting wood, etc. Whereupon the bank brought an action of ejectment on

which the land was first fold was vold, the Court

never acquiring jurisdiction of the person of the defendant Spencer, in that suit. The motion was denied, and the defendant appealed on August 14, 1878, from the order of denial, and the judgment. The decision is awaited with much interest, as a determination of the point whether a man can be sold out of his home while insane, and without having a hearing in court in defense, at least by a proper guardian of his person and estate.

A PECULIAR WILL.-The will of AllanT. Wilson, sent from San Mateo to this city yesterday to be recorded, bequeaths one-half of testator's estate, valued at $85,608 43, to bis wife, and the remaining half to his young son, John Ward Wilson, subject to the following conditions: If he dies childless, the property shall go to the Orphan Asylum which has been longest established and in which no person in authority is a Roman Catholic. He is empowered to give his mother $500 per year for her support, contriving, however, that she shall not give any money, not even to the extent of one dollar, to any Catholic

priest, church or society. If the son attains the age of ten years, and then uses tobacco, alcohol, wine, beer, or under as beverages he shall forfeit all rights under the will, or pass a month, and live on nothing but bread and water, and each time he commits the offense the penance must be repeated. If after 18 years of age he shall drink or smoke he shall forfeit his estate, or, instead. work steadily for a year as a common farm laborer, and save one-half or his wages, and he shall so labor as to earn at least, twc-thirds of the wages farm laborers generally receive. If he becomes a Catholic, or after being 18 years he shall give any money whatever to a Catholic priest, or even layman, he shall forfeit his estate. The will adds that he may give small sums, not exceeding $5 each, to really destitute person, without asking any extensive inquiries as to whether he is a Catholic or not.-Daily Bulletin, Sept. 18th

any petition for the rehearing that may be filed shall have been denied, of which denial I

THE PROTESTED TAX MONEY. The bupervisoral Finance Committee Re-feel no doubt, the Fifteenth District Court will port-Opinion of City and County Attorney

Burnett.

At the meeting of the Board of Supervisors last evening, Mr. Smith, when the report of the F-I

nance Committee was called for, said that at a previous meeting of the Committee Mr. Austin had told him that the money was safe. After the decision of the Supreme Court the City and County Attorney had told him that twenty-five days were allowed in which a rehearing could be asked, and that nothing could be done until after that time. After this time has expired, there will probably be decisions in favor of the city in the mandamus cases. Soon after Mr. Austin's death, he had called on Mr. Austin's relatives with reference to this money, but had found that they knew nothing of it. They said that Mr. Austin had no assets, and that there would be nothing. He then saw the City and County Attorney, but that gentleman did not alter his position. Mr. Burnett said that a demand would have to be made upon Austin's executors, and that the city would not have any interest in any property until after the decision of the Supreme Court.

Mr. Smith presented the following petition of the City and County Attorney in this matter: "I have the honor to acknowledge the receipt of your communication of this date, asking whether in the present status of the protested tax cases there is any action which can be taken by the Board of Supervisors or its Finance Committee which can or will facilitate the collection of the amount due the city. In reply, I beg to state that pursuant to a resolution of the honorable the Board of Supervisors, passed some time since. two proceedings to procure suits of mandate in the name of the State for the State's portion, and one in the name of the city and county of San Francisco, for its portion of the protest moneys, were commenced in the Supreme Court, ard briefs having been fled therein, were argued and submitted some time since, toge her with six protest cases. Four of the protest tax cases were decided on the sd instant. Two of the appealed protest cases and the two mandamus proceedings are unde. cided, and still under advisement in the Supreme Court. The four cases above mentioned were decided virtually in favor of the State and city; but the plaintiffs therein, who were the payers under protest, have until and including the 28th instant to ale petitions for a rehear ing, pursuant to the rules of the Supreme Court. At the end of that period, or as soon as

probably pass upon our mo'ions for new trial in the eighty-nine cases therein pending, and those cases will probably be dismissed at once. Until after the happening of the events supposed, know of nothing that can be done that will factiitate the collection of the moneys. Having resorted to the highest Court in the State for power, we must await its final action. Final disposition will, in all probability; he made within a very short time, of the causes mentioned above, and by that time will, of course, be appointed a legal rep resentative, with whom the city can deal directly and properly in regard to the moneys."

Mr. Gibbs introduced the following, which was adopted:

Resolv d, That the Finance Committee be and are hereby instructed to investigate as to the whereabouts of the moreys paid under protest as State, city and county taxes, and held by the late Alexander Austin, and to that end to send for such persons and papers as may in their judgment be necessary to ascertain as to the disposition of said money 8.

Mr. Smith said that an investigation could be made.

Mr. Danforth knew that the public was anxious to have the cases pressed, but the Finance Committee could do nothing for a little while.

Mr. Gibbs thought that the Committee ought to trace the money, if possible, and find where it was.-Daily Bulletin, 17th inst.

Ometal inquiry by the Finance Committee of the Board of Supervisorn-How it Drawn from the Bank of California-ToLimony of Louis MoLane, Nenator bharoo, Thomas Brown, Joseph AuNİN and Others.

Tuesday afternoon there was a meeting of the F nance Committee for the purpose of making some inquiries as to the whereabouts of the protested taxes received by the late Alexander Austin, when Tax Collector, and now due the city. Louis McLane, Presi dent of the Nevada Bank, and Jennings s. Cox, Mr. Austin's partner, were summoned to appear before the Board, and were present. The meeting was held in pursuance of the resolution passed in the Board of Supervisors Monday evenLog.

LOUIS M'LANE'S TESTIMONY,

Louis McLane was Arst examined by the Committee, and said: "Mr. Austin had a small account at the bank from October, 1875, to september, 1876. It did not exceed, It was

the aggregate, $40,000.

private account. No Dioney came from the Bank of California on Austin's account. With regard to money deposited to the account of J. M. Walker & Co., you would have to ask them where the money came from. I could not say whether or not this tax money was included in the money deposited by Walker & Co. The depositor alone has the knowledge as to where the money comes from. I could only give Walker & Co.'s accounts by order of Court and in open Court. If they had deposited $60,000, we should not be able to tell where it came from.

Mr. Smith-If we could and that money had been drawn trom the Bank of California, could we obtain tags in your bank, if they were there, that would show the transfer of this money? Mr. McLane-Perhaps you could.

SENATOR SHARON'S TESTIMONY. Senator William Sharon was next called, and said: I bave never made an examination of the affairs of the Bank of California, and I could not state whether or not Mr.

Austin had money there. I did not pay

to Mr. Aus in any money after the failure of the bank, and nothing passed through me. My information on this subject would be of no use to you. Nothing was ever paid to Austin by me.

THE DROBASHO'S BROTHER'S TESTIMONY. Joseph Austin, brother of the lare Alexander Austio, testified that he did not know anything about this money. Nothing had been left by his brother, and he had been told nothing regarding the protested tax.

Walker & Co.

TESTIMONY OF ONE OF ME, AUSPUN'S PARTNERS,

JENNINGS 8. COX.

Jennings 8. Cox, a member of the firm of J. M. Walker & Co., testined that Austin became a member of the arm October 27, 1876. Austin was credited with $35,000 for his Board sear, and the next day put in $10,000. It was agreed by the arm that each partner could make deposits with the firm, and draw interest on them while there. Austin deposited $14,000 in December, 1875; $50,000 in April, $50,000 in May and $101,500 in July. His total deposits aggregated $267,138 76. He drew out $903,550 11. There was an agreement that the members of the arm should charge themselves with guaranteed losses by reason of inadequateness of margins, Austin's share amounted to $46,984 58. His individual losses were $69,780 51. The statement of Mr. Austin's account with the firm is as follows: Oredits.

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TESTIMONY OF THOMAS BROWN, CASHIER OF THE LOSS on individual stock account....... 69,750 51

BANK OF CALIFORNIA.

The testimony of Thomas Brown, Cashier of the Bank of California, showed that Austin held, at the time of the failure of the bank, certificates of deposit amounting to $355,000, issued by W. O. Ralston. These certificates were paid as follows: A certificate for $80,000 was paid in coin October 9, 1875. A certificate for $75,000 was paid December 6th, by two other certificates, one for $50,000 and one for $25,000. The former was taken up December 16th by two certiacates, one for $20,000 and one for $80,000, the latter of which was paid the same day, the former being paid January 10th, 1876. One was paid in coin and one in a draft on the Nevada Bank. The check was deposited by J. M. Walker &Co. April sist, 1876, a certificate for $50,000 was paid by check on the bank to the order of Alexander Austin, endorsed by him and by J. M. Walker & Co., and stamped by the Nevada Bank. May 3d another certificate for $50,000 was paid in the same way, and on July 29th two certificates for $50,000 each were also paid in the same way, the checks being endorsed by Austin and J. M.

Total..........

.$890,286 90 Ausrin examined and accepted his accounts long before he died. The money was considered to belong to Austin individually, and an agreement was made to pay it over when he should need it. It was not known as protested taxes. Austin drew his money out at various times, but the other partners do not know what was done with it. They thought that he must be depositing it somewhere. Austin drew out $909,551 on checks.

TESTIMONY OF THE HEAD OF THE FIRM. J. M. Walker, another partner in the firm, said that he did not know where the money was. It bad always been a mystery to him what Austin did with the money after drawing it. He had never talked to Austin with regard to his privare affairs. When a member of the firm paid in money above the $50,000 required as capital, it was understood that it was on his individual ache W88 allowed interest. Jt count, and on call all the time. was At one time that Austin, when witness thought he

was withdrawing the money, was settling up with the city. Each member of the arm was allowed to draw $300 per month for personal expenses. Witness did not know that Mr. Austin had speculated outside, or that he had lost money other than was shown in the accounts of the firm. He had taken Mr. Austin to task for bringing in the name of the firm when he was before the Finance Committee, and had been told that the reporters had misrepresented him. Mr. Walker thought that Mr. Austin bad not been in his right mind for six months.-Daily Bulletin. September 18th

A NOVEL LAWSUIT.-The Civil Tribunal of the Seine has just had before it an action brought by Madame Quentin-Proffit against the Prince and Princess Galitzin, to recover 6.000 francs for services rendered. The plaintiff is a matrimonial agent, and about three years ago the Princess, at the recommendation of a friend, applied to her to find a suitable partner for her EOD, who desired to get married. After lengtheaed negotiations a lady was found, and an interview arranged, but the affair was eventually broken off. Madame Quentin-Proffit then sent in her bill, thus composed: Carriages, 432 francs; cost of toilettes, 1,000 francs; money expended, correspondence, etc., 150 francs; bonorarium, 4,418 francs; total 6,000 francs. The court appeared to think the charge high for the services rendered, and awarded 500 frames only.

IMPORTANT:-THE NEW TIMBER LAND

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On January 30, 1877, by stipulation, five days further time was granted to answer, the last day of the time falling on Sunday. On the next day, Monday, about 2 o'clock P. x., upon application of plaintiff to the court, judgment was rendered by default.

Upon an affidavit of merits, by defendant and his counsel, accompanied by his verified answer,

the court issued an order to show cause why the default and judgment should not be set asidePlaintiff objected on two grounds; 1st, That while when the time allowed by law expires on Sunday, the party is entitled to the whole of the following Monday, yet this rule does not apply where the time is fixed by stipulation. (Kilgour vs. Giles, 6 Gill & Johns, 268. Pierpoint vs. Grahám, 4 Wash.. C. C. R., 241. Cent'l Bank vs. Alden, 41 How., P. R., 102. Tidd's Practice, 474.) [The counsel claimed that the above "show the general rule," but that the question is one of statutory construction, and not of authority.] 2d, That, as the stipulation was not filled with the clerk of the court, the party giv. ing it may disregard it, and it becomes null and vold. (Code C. P., Bec. 283. Merritt vs. Wilcox, July term, 1877. Borkheim vs. N. B. & M. I. Co.'

LAW. On another page we print, the new Circular of instructions to the Registers and Receivers of the United States District Land Offices in California, Nevada, Oregon, and Washington Territory,-for the carry-38 Cal., 628. Smith vs. Pollock, 2 Cal., 94.) The deing out of the New Timber Land Law of June 3rd 1878:-together with the proper forms, and affidavits, in full.

Also, an extract from the U. S. Revised Statutes, defining Perjury and its penalty in that connection.

We published the Act itself in full text, in RECORD No. 15, of July 6th,-which we can furnish to any who desire, for future reference.

fendant claimed the rule as well settled in all matters of practice that, where the last day falls on Sunday, it is excluded from computation. (Bissell vs. Bissell, 11 Barb., 97. National Bank vs. Wil

lams, 46 Mo., 17. Salter vs. Burt, 20 Wend., 205, Sec. 12, C. C. P.)

To the second objection defendant cited Watson v8. 8. F. & O. R. R. Co., 41 Cal. Swift vs. Canovan, 47 Thompson, 86. In New York an order opening a default is not appealable, upon the ground that it is discretionary and does not affect any substantial rights. Ramsay vs. Gould, 4 Lans., 478. Her

man vs. Sawyer, 48 Cal., 562.

ten agreement with one T. R. Hutchinson, (the as

Whereupon plaintiff appealed from order open- signor of these plaintiffs,) defendants signing ing the default.

Greene & Pillsbury, Attorneys for plaintiff and appellant. McAllister & Bergin, Attorneys for defendant and respondent.

Order affirmed. Remittitur forthwith.

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On October 21, 1875, the Superintendent of Public Streets in San Francisco, in pursuance of a resolution of the Board of Supervisors, made an assessment on lot No. 4, (per diagram) on Elm Ave. belonging to defendant, for $145.20, to cover exexpense of work done by Thomas Byrne, under contract for re-grading Elm Ave. against said lot. Afterward Thomas Byrne assigned all his interest in the contract to the plaintiff, Toblemann, who prays judgment for the amount. Demurrer of defendant overruled, and answer made that the Board of Supervisors had no jurisdiction to order the work, and could not acquire jurisdiction until the street had first been graded.

Cause tried without a jury, and judgment rendered for plaintiff for $145.20 and interest. Defendant filled bill of exceptions on appeal, to which plaintiff objected, on the ground that the court could not settle a bill of exceptions more than 30 days after an appeal from the judgment, and 40 days after its entry. No authorities cited on the appeal.

J. C. Bates, attorney for plaintiff and respond. ent. D.H. Whittemore, attorney for defendant and appellant.

Judgment reversed, and cause remanded.

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CONTRACT-BREACH OF WARRANTY.

STATEMENT OF CASE.

their firm name-in which, in consideration of the payment of $100 down by Hutchinson, they bargained to him their clip of wool for the spring of 1872-2,000 fleeces, more or less-for the price of 46 cents per pound, to be delivered before the first of August, 1872. The agreement contained the following: "They (deft's) also warrant said wool to be in good order and condition, well tied and honestly packed, free from sticks, stones, straw, earth, burs or any foreign matter."

Plaintiff elaimed a breach of this warranty in the contract in that the wool, when delivered, contained a quantity of wild carrot seed, com monly called "beggar's lice," so much as to deteriorate its market value from 5 to 7 cents per pound, and that plaintiff thereby sustained damage in the sum of $943 90, and asks judgment for that amount.

Defendants denied each allegation, and for a separate defense, showed that the before named Hutchinson brought an action in this court on December 18, 1872, before a jury, which gave a verdict for these defendants. A demurrer to this sep.

arate defense was sustained.

An instruction was given by the court to the jury, to the effect that if they believed the testimony of the witnesses, Powell & Rodgers, their verdict should be for defendants. Judgment was rendered for defendants; motion for a new trial made and denied, and the plaintiffs appealed from the judgment and the order denying motion for a new trial; and claim that the instruction of the court was erroneous, as it was, in fact, telling them that one fact must be presumed from the existence of another-which had been condemned by this court in McNeil vs. Barney, 51 Cal., 693, and People vs. Walden, Id. 568.

Latimer, Morrow, & Proffatt, attorneys for plain. diff and appellant. J. E. McElrath, attorney for defendants and respondents. Judgment and order reversed.

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Plaintiff brought action for $663 63, as due him from defendant, and obtained a judgment there

On March 26, 1872, the defendants made a writ- for. Afterwards, at a sale under a decree of fore

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