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Supreme Court Proceedings.


10,255-People vs. Bolcoff-Judgment affirmed. Remittitur forthwith. 10,274-People vs. Stevens-Judgment reversed and cause remanded for a new trial. Remittitur forthwith.

10,284 People vs. Kerrick - Judgment and order reversed and cause remanded for a new trial. Remittitur forthwith.

10,286-People vs. Feliz-On the authority of People vs. Kerrick, No. 10,284, decided at this term, the judgment and order are reversed, and the cause remanded for a new trial. Remittitur forthwith.

5578-Wetzlar vs. Fitch-Passed, to be taken up at the convenience of counsel, and to be argued with No. 5714, Estate of Keenan, deceased.

5714-Estate of Rosanna H. Keenan, deceased-Passed, to be taken up at the convenience of counsel, to be argued with No. 5578, Wetzlar vs. Fitch. 5244-Reese vs. Corcoran---Motion of Leviston for respondent, that the costs herein be re-taxed by this court; argued, and motion denied.

10,289-People vs. Atherton-Argument concluded by Carey for people, and cause submitted.

10,290-People vs. Tong Fong-Submitted on briefs on file.

10,291-People vs. Bevans-Argued by Alexander for appellant, and Carey for people, and cause submitted.

10,292-People vs. Russell-Passed, to be taken up at the convenience of


10,293-People vs. Gaines-Argued by White for appellant, and Carey for people, and cause submitted.

10,294-People vs. Franklin-Argued by Carey for people, and cause sub


10,299-People vs. Royal-Argued by Southard for appellant, and Henley for people, and cause submitted, with twenty days to each.

5544-Scholl vs. Scholl-On motion of Preston for appellant, and filing of a petition for rehearing, ordered that a stay of proceedings be granted until the same is determined.

10,300-People vs. Jefferson & Jones-Argued by Terry for appellants, and Carey for people, and cause submitted, with five days to each.

10,285-People vs. Hunt-Argued by Davis for appellant, and further argument continued until to-morrow.

10,303-People vs. Fay-Submitted, with ten days to each. 10,304-People vs. Jones-Submitted, with ten days to each.

FRIDAY, November 16th.

10,290-People vs. Tong Fou-Judgment affirmed. Remittitur forthwith. 10,291-People vs. Bevans-Judgment and order reversed, and cause remanded for a new trial. Remittitur forthwith.

10,293-People vs. Gaines-Judgment reversed and cause remanded. 5849-Perkins vs. Center-Appeal dismissed.

10,315-Ex parte Charles J. Frank, on habeas corpus-It is ordered that the return to the writ be made and heard on the third Monday in January next, at 11 o'clock A. M., at the court-room in the city and county of San Francisco, and that, in the meantime, the petitioner be admitted to bail in the sum of one hundred dollars.

5563-Scale vs. Supervisors of City and County of San Francisco-Argument concluded by Burnett for respondents, and Stewart for appellants, and cause submitted.

5559-Babcock et al. vs. Briggs et al.-Argued by Bergin for appellants, and Cope for respondents, and cause submitted.

5584-Brown vs. Rice-Argued by Myres for appellant, and Craig for respondent, and cause submitted.

5658-Clark vs. Jones et al.-Argued by Craig for appellants, and Tuttle and Myres for respondents, and cause submitted.


DECEMBER 15, 1877.

No. 16

Current Topics.

THE case of Van Reynegom, plaintiff in error, vs. Bolton, just decided by the Supreme Court of the United States, is of interest to the people of our State. It was an action of ejectment for lands lying in this State under a Mexican title, as against one claiming to be rightfully in possession under the pre-emption laws of the United States. The court held: "1. Under the Mexican law, when a grant of land is made by the government, a formal delivery of possession to the grantee by a magistrate of the vicinage is essential to the complete investiture of title. This proceeding, called, in the language of the country, the delivery of juridical possession, involves the establishment of the boundaries of the land granted when there is any uncertainty with respect to them. A record of the proceeding is preserved by the magistrate and a copy delivered to the grantee. 2. Unless there is something in the decree of the tribunals of the United States confirming a claim to land under a Mexican grant otherwise limiting the extent or form of the tract, the boundaries thus established should control the officers of the United States in surveying the land. (Graham vs. United States, 4 Wall.; Pico vs. United States, 5 id.) 3. A survey of a claim thus confirmed, made by a Surveyor-General of the United States, is inoperative, if contested, until finally approved by the land department at Washington. 4. Where a quantity of land in California was granted by the Mexican government within boundaries embracing a larger amount, in the possession of which larger amount the grantee was placed, he is entitled to retain possession of the entire tract until the quantity granted is segregated by the officers of the government and set apart to him, and he may maintain ejectment for the entire tract or any portion of it against parties claiming possession under the pre-emption laws of the United States. 5. Lands claimed under Mexican grants in California are excluded from settlement under the pre-emption laws so long as the claims of the grantees remain undetermined by the tribunals and officers of the United States. (Cornwell vs. Culver, 16 Cal. 429; Riley vs. Heisch, 18 id. 198; Mahoney vs. Van Winkle, 21 id. 552.) The defendants below were held to be trespassers and the judgment below was affirmed.

THE Judiciary Committeee of our State Legislature have not reported as to any of the various bills referred to them. Most of the time of the Legislature has been consumed in the discussion and passage of various resolutions concerning the investigation of savings banks, Chinese immigration, land monopolies, etc. We are assured that the different committees are hard at work, and we will soon have much important matter to report to the profession.

THE following bills have been introduced in the Senate and Assembly and referred to the Judiciary Committee. To amend sections 1229 and 1230 of Penal Code; to repeal section 687 Penal Code; to amend section 389 of the Code of Civil Procedure-(provides that in ejectment suits parties interested in the land and not made parties to the suit should not be affected); to amend section 1576 of the Political Code; to amend section 633 of the Code of Civil Procedure, (provides that motions for new trials may be made by consent in any county); to amend sections 90, 91, and 92 of Civil Code (provides that absolute divorce should be granted only for adultery; that divorces from bed and board should be granted for extreme cruelty, habitual intemperance, desertion, neglect to provide, and conviction of felony); to amend section 4024 of the Political Code; to amend section 3888 of the Political Code, allowing payment of taxes in silver to the amount of fifty cents.

To amend section 3617 of the Political Code (relative to assessing growing crops); to repeal certain sections of the Code relating to elections (provides for a reduction of the size of election precincts in San Francisco, and provides for a system of precinct registration); to amend section 113 of the Code of Civil Procedure (changes the time of election of Justices of the Peace); to enact section 3575 of the Political Code; to amend section 1624 of the Civil Code (provides what contracts shall be in writing); to amend section 14, and to re-enact section 15, 16, and 17 of the Civil Code; to amend section 4568 of the Political Code-an Act to protect the rights of married women (provides that the real estate held in community can not be conveyed except by the signatures of both); to add a section to the Penal Code to prevent opium-smoking; to amend sections 667 and 682 of the Code of Civil Procedure (repealing the so-called specific contract law); to repeal section 60 of the Civil Code; to amend section 2834 of the Civil Code (make that section inapplicable to commercial paper); to amend section 1250 of Code of Civil Procedure; to amend section 3471 of the Political Code; to amend the Act regulating fees of office, and to fix the compensation of certain officers in the county of Contra Costa; to amend and repeal certain sections, and to add new sections to the Political Code (reducing the expenses of various State offices).

JUDGE MORRISON, of the Fourth District Court, rendered recently a decision in the case of Payne & Dewey vs. Berry Street Railroad Co., which was before him, on motion to dissolve an injunction prayed out by the plaintiffs prohibiting the construction of the road, on the ground that such railroad was a nuisance. The issue raised was whether or not the Board of Supervisors, which had granted the right of way, had the power to so grant it. It involved a construction of the Consolidation Act. It was urged by the plaintiffs that, under the Consolidation Act, the Board of Supervisors had no power to grant the right of way. The court held that the case did not depend on the provisions of said Act, but that the Act of March 29, 1870, and the amendatory Act of March 23, 1872, did grant such a power, and that, as the said Board had the power to grant the right of way, the court has no power to interfere, even though a wrong might be done plaintiffs by the construction of said road. That, inasmuch as the Board had the power to grant the right of way, there could be no nuisance. This case involved a question of considerable importance to street-railroad owners. We have not ascertained whether or not an appeal has been taken.

We do not publish in this issue the decisions in the cases of Young vs. Hogian and Babcock vs. Briggv, because the facts do not appear in the opinion. Our attorney at Sacramento will send us a statement of the facts, which, with the opinions, will be found in our next issue. We shall endeavor to publish every decision by the Supreme Court of our State, and accompany each with an intelligible statement of facts, thus making the JOURNAL one of the most complete publications of the kind on the coast, and of more value to the profession than the official reports, as they do not contain all the decisions rendered at the term.

IN Charter Oak Life Insurance Co. vs. Rodell, decided by the United States Court at the present term, the court held that in cases of suicide, sanity, and not insanity, is presumable; that the burden of proof is on the plaintiff to show that the deceased was insane, and that the suicidal act alone is not suffi cient to establish insanity. The question often presents itself in insurance cases, and though the rule laid down by the Supreme Court may seem severe, yet it is the only safe one, and does not hinder or embarrass the rights of claimants.

THE counties of Alpine, Amador, Calaveras, Humboldt, Lassen, Marin, Merced, Placer, Sacramento, San Diego, San Joaquin, and Tulare failed to transmit to the Secretary of State an abstract of the vote polled upon the question by calling a convention to revise the Constitution. A motion has been made in the Assembly to compel the clerks of the said counties to transmit abstracts of the vote cast.

THE removal of our publishing house, and the delay attending it, together with that of purchasing and laying our new type, placed us a little behind with the issue of No. 15. Inasmuch as the delay was unavoidable, and we are now better prepared to go even beyond our promises to the profession, we feel our subscribers will overlook the delay.

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A LAWYER went into a barber shop to procure a wig. In taking dimensions of the lawyer's head, the barber exclaimed, Why, how long your head is, sir ?" "Yes," replied the legal gentleman, "we lawyers must have long heads. The barber proceeded about his vocation, but at length exclaimed, "Why, sir, your head is as thick as it is long!" Blackstone winced.

THL New York Times, the other day, said that Howard's Practice Reports, and Howard's United States Reports "were by the same author," which is nearly as bad as Bayard Taylor's speaking of the efforts of the "Quincy statesman " in Teutonic literature, because a Mr. Charles F. Adams was the author of "Leedle Yawcob Strauss."

"ONE book," says Phillip, "well digested, is better than ten hastily slobbered over," and we commend the remark to digest makers.

IN these Murphy times it should not be forgotten that Richard III. was in favor of a prohibitory law: He stopped King Henry's bier.

Supreme Court of California.

[October Term, 1877.]

[No. 5522.]

[Filed December 10, 1877.]


EJECTMENT-INTERVENTION-SECTION 387, CODE OF CIVIL PROCEDURE, Construed.-A third person may intervene and become a party to an action only when he has an interest in the matter in litigation between the plaintiff and defendant and by joining one or the other, or demanding anything adversely to both.

In this case the court waives the important question whether in an action of ejectment a third party may intervene. They only decide that the intervenor has no interest in the matter in litigation between the plaintiff and defendant. The facts appear sufficiently in the opinion.

By the Court.

The action is ejectment for a tract of land containing forty acres, both the plaintiff and defendant claiming title under conveyances from one Rubio; that to the plaintiff being prior in date and first recorded, and including, in addition to the forty acres, a further quantity of twenty acres. The twenty acres are not in controversy between the plaintiff and defendant, the latter asserting no claim of any character thereto. But Rubio filed an intervention setting up title to the twenty acres adversely to the plaintiff, and praying that his title be quieted as against him, and that his deed to the plaintiff be adjudged to be null and void. Waiving the question whether in any case there can be an intervention in an action of ejectment under section 387 of the Code of Civil Procedure, it is quite clear that Rubio does not bring himself within its terms. It provides that any person may intervene "who has an interest in the matter in litigation, in the success of either of the parties, or an interest against both. An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and defendant." The matter in litigation between the plaintiff and defendant was the forty acres, in which Rubio had no interest whatever, and to which he asserts no claim as against either.

It is contended, however, that by reason of the quit-claim deed from Rubio to Gibson, and the covenant executed at the same time, and of the deed from Gibson to the defendant, accompanied by a covenant to him to pay a sum of money if he should be be evicted from said premises by process of law, Rubio had an interest in common with the defendant to defeat a recovery by the plaintiff, and was therefore entitled to intervene. But those conveyances and covenants related only to the forty acres in controversy, and had no relation whatever to the remaining twenty acres claimed by Rubio, and which were not

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