SEC. 44. Where, under said act, two persons signed a confession of judgment against themselves and two others: Held, that the judgment entered thereon being void as to those not signing, was equally so as to those signing, and that the authority being to enter a judgment against four, no judgment thereunder could be entered against a less number. 20 Cal. 681.

Costs Taxed.

SEC. 45. When the prevailing party is entitled to costs by this chapter, the justice shall add their amount to the verdict; or, in case of a failure of the plaintiff to recover or in case of a dismissal of the action, shall enter up judgment in favor of the defendant for the amount of such costs. Pr. Act, 598; Gen. Laws, 5529.

SEC. 46. Taxing the costs is a judicial act; therefore, where a justice entered the verdict in his docket immediately upon its being rendered but omitted to complete the taxation of costs until eight days afterwards, it was held that the judgment was erroneous. 3 Denio, 72.

Interest on.

SEC. 47. In a judgment in a suit on a note bearing interest, the interest is to be computed and made part of the judgment and the judgment to bear the agreed interest. 6 Cal. 155.

SEC. 48. In a judgment in a suit on a note bearing an agreed amount of interest, the interest is to be computed and made a part of the judgment and the judgment should bear the agreed interest. 9 Cal. 294.

Lien of By Justice.

SEC. 49. No judgment rendered by a justice of the peace shall create any lien upon any lands of the defendant, unless a transcript of such judgment, certified by the justice, be filed and recorded in the office of the recorder. When such transcript is to be filed in any other county that that in which the justice resides, such transcript shall be accompanied with the certificate of the county clerk as to the official character of the justice. When so filed and recorded in the office of the recorder for any county, such judgment

shall constitute a lien upon and bind the lands and tenements of the judgment-debtor situated in the county where such transcript may be filed and recorded in favor of such judgment-creditor, as if such judgment had been rendered in the district court of such county. Pr. Act, 599; Gen. Laws, 5530.

SECTION 1. A person who enters into possession of land under another cannot question the title of him under whom he holds. Pierce vs. Minturn, 1 Cal. 470. A tenant cannot dispute his landlord's title, nor can he set up against his landlord an outstanding title without first surrendering possession. Tewksberry vs. Magraff, 33 Cal. 237. Nor can he deny the title of the vendor of the landlord. McKune vs. Montgomery, 9 Cal. 575. And if a person acquires possession of land from a tenant with the full knowledge of the tenancy he cannot deny the landlord's title. Anderson vs. Parker, 6 Cal. 197.

SEC. 2. Tenant cannot Destroy his Tenancy.-The tenant cannot, by submitting to being wrongfully turned out of possession under a writ which did not run against him and then attorning to the plaintiff in the writ, prevent his first landlord from recovering possession against him for nonpayment of rent. 31 Cal. 333.

SEC. 3. Although, as a general rule, a tenant cannot dispute his landlord's title, he may show that it has terminated or that his attornment was made under mistake of fact or by fraud. 8 Cal. 592.

SEC. 4. If the tenant is evicted by a wrong-doer the landlord is not bound to indemnify him. 23 Cal. 227.

Eviction of Tenant.

SEC. 5. Title Paramount.-If the tenant is evicted by title paramount, and the landlord defends the action and after the eviction appeals, the taking of the appeal does not restore the relation of landlord and tenant which has been destroyed by the eviction, so as to enable the landlord to commence an action against the tenant for holding over, if such action is commenced before a reversal of the judgment. 34 Cal. 265.

SEC. 6. If a party hold a lease from one of two tenants in common for certain premises, and the other tenant in common afterwards takes possession of a part of the common property, the lessee has no remedy against him, and will be entitled to an abatement pro tanto in his rents. Evidence tending to show that the defendant was kept out of possession of part of the leased premises by a tenant in common of the lessor or his agent, should have been admitted. 1 Nev. 434.

SEC. 7. It has been decided that the entry of a landlord upon his tenant's premises without his consent during the lease and reletting them, was a discharge of the tenant from his covenants, except as to such part of the rent as had accrued at the time of re-entry, which the landlord is entitled to recover: Held, that the above exception is in abrogation of one of the plainest principles of law, and if the case were new the court would overrule it. 2 Cal. 374.

Rents, Payment of.

SEC. 8. The right to recover rents and profits for use and occupation is founded alone on contract. 3 Cal. 373. SEC. 9. To enable a party to recover rent, eo nomine, he must show that the defendant's possession was by virtue of some express or implied agreement, and no action will lie where the possession was adverse or tortious, for such possession excludes all idea of contract. Thus, assumpsit will not lie to recover rent for premises the possession of which the plaintiff had previously recovered by ejectment against the defendant. 5 Cal. 223.

SEC. 10. A clause in a lease exempting the tenant from liability to restore the house in case it should be destroyed

by fire, does not relieve him from paying rent in case of such destruction. 4 Cal. 340.

SEC. 11. A person who, after the commencement of an action to foreclose a mortgage, acquires possession of the premises from one of the defendants and continues to occupy after a sale under the decree of foreclosure, is a "tenant in possession," and liable as such to the purchaser for the rents and profits accruing between the sale and the execution of the sheriff's deed. 21 Cal. 135.

SEC. 12. Where a lease contained the usual covenants for payment of rent and re-entry for non-payment, and provided for the appraisement of improvements erected by the lessee, and payment of their value by the lessor at the expiration of the term, and the lessor re-entered for non-payment of rent: Held, that the lessee could not maintain an action upon being evicted for the value of his improvements. If the lessee has any remedy he must wait until the time expires which the contract has fixed. He cannot by his own default change, in his own favor, the terms of the contract and fix upon the lessor a contract he never made. 11 Cal. 302, 303.

Fixtures, Entitled to.

SEC. 13. A fixture is an article of a personal nature affixed or annexed to the freehold; that is, fastened to or connected with it; mere juxtaposition or the laying of an object, however heavy, on the freehold does not amount to annexation. A fixture may exist on public land. The title to the land, whatever it is, carries with it the title to the structures annexed to the soil. 14 Cal. 64.

SEC. 14. Tenants have a right to remove buildings erected by them at any time before the expiration of their leases, but not after a forfeiture or re-entry for covenant broken. 8 Cal. 36.

SEC. 15. The rule in reference to fixtures is applied with different degrees of strictness as between different parties. A tenant who puts up machinery for a mill in a house leased, and fastens it by bolts, screws, etc., to the house, has the right to remove it. But as between vendor and vendee the machinery would be considered as part of the realty. 9 Cal. 121, 122.

SEC. 16. Where a tenant had erected a barn on pattens and blocks of timber lying on the ground, but not fixed in or to the ground, it was held he might take them away at the end of his term. The general rule is, that to constitute an article a fixture-i. e., a part of the realty-it must be actually annexed thereto, and, e converso, whatever is so annexed becomes part of the realty, and the person who was the owner of it when a chattel loses his property in it. 14 Cal. 65.

SEC. 17. Where a landlord agreed to allow his tenant a reasonable time, after the expiration of his lease, to remove his buildings, and the tenant surrendered or forfeited his lease before the expiration thereof, the intention of the parties must be confined to its legal expiration and not to the wrongful act of the lessee in terminating it, and the lessee can claim no right under the contract. 8 Cal. 36.

SEC. 18. The rule of law in regard to fixtures, as between landlord and tenant, may be summed up as follows: The tenant may, at any time before his term of tenancy expires, sever and take from the freehold all such fixtures of a chattel nature as he has himself erected upon it, either for the purpose of ornament, domestic convenience or to carry on a trade: provided, always, that the removal can be effected without material injury to the freehold. Merritt vs. Judd, 14 Cal. 59. There have been upon this subject frequent adjudications, which may serve to throw some light on the relative rights of landlord and tenant. They, however, embrace only a few conditions of things compared with the many that may exist. It is admitted that tenants may remove baker's ovens, salt-pans, carding machines, cider mills and furnaces, steam engines, soap boilers, vats and copper stills, mill stones, Dutch barns standing on a foundation of brick-work set in the ground; a varnish-house built upon a similar foundation, with a chimney, and a ball-room erected by the lessee of an inn, resting upon stone posts slightly imbedded in the soil, and also things ornamental or for domestic convenience, as furnaces, stoves, cupboards and shelves, bells and bell-pulls, gas fixtures, pier and chimneyglasses, although attached to the wall with screws; marble chimney-pieces, grates, window-blinds and curtains. The