Pacific Coast Law Journal.

VOL. 2.

OCTOBER 19, 1878.

Current Topics.

No. 8.

THE Supreme Court is now holding its session at Los Angeles. We have made all necessary arrangements for an early procurement and publication of the decisions rendered while holding that term.

WE have given much of our space this week to the publication of the recent decision by Judge SAWYER, of the U. S. Circuit Court, in the case of French vs. Edwards. The case is a very important one and will be found interesting and valuable.

IN Thompson vs. Boyle (18 Alb. L. J. 290), it was recently held by the Supreme Court of Pennsylvania that the value of the services of a lawyer in a given case may be shown by the testimony of lawyers as to the value of services of counsel, under circumstances of general similarity to those under which the services in question were rendered.

IN People ex rel. Murray vs. Justices of Special Sessions (New York Court of Appeals), it was recently decided that "the trial by jury in all cases in which it has been heretofore used shall remain inviolate forever," does not apply to petty offenses triable before a Court of Special Sessions.

Relator, who was tried before a police justice in New York City for an assault and battery, elected to be tried by the Special Sessions; gave bail to appear at such court for trial; appeared, and was tried by the court without a jury without objection, and was convicted. Held: (1) that relator had not a right to a jury trial which could not be waived; (2) that by giving bail the court did not lose jurisdiction; and (3) that his trial and conviction were not error.

Supreme Court of California.

JULY TERM.

[No. 5,587.]

[Filed October 5, 1878.]

SNOW, APPELLANT, vs. KIMMER, RESPONDENT.

CONTRACTS IN VIOLATION OF THE PRE-EMPTION LAWS VOID.-Where an answer, in defense of an action for trespass, avers that the defendants were in possession by virtue of a verbal agreement between the plaintiff and the defendants, that the defendants would make no opposition to the plaintiff pre-empting the land in dispute, the plaintiff agreeing to immediately convey said land to defendants for mining purposes, he retaining title for agricultural purposes; and that under said agreement the defendants had permitted the plaintiff to pre-empt the Held: that such an agreement is in violation of the pre-emption laws of the United States, and constitutes no defense to the action.

same.

Appeal from Eleventh District Court, El Dorado County. This decision was made upon a rehearing. A former decision was rendered affirming the judgment of the court below, on the grounds of adverse possession in the defendant, the action being brought in trespass. (P. C. L. J., Vol. 1, page 94.) In their petition for rehearing, the appellant asks the court to consider their demurrer to portions of the defendant's answer, claiming that the same should have been sustained because the agreement therein alleged was in violation of the pre-emption laws of the United States, Section 2262. Said section requires a pre-emptor, before being allowed to enter lands in dispute, to make affidavit that he had not, directly or indirectly, made any agreement or contract with any person by which the title he might acquire should inure, in whole or in part, to the benefit of any person except himself; and that any grant made by him prior to the affidavit, except to a bona fide purchaser for valuable consideration, shall be void.

The portion of the answer demurred to and considered by the appellate court was in words to this effect: That the

plaintiff, being desirous of pre-empting a forty-acre tract of land for agricultural purposes, and knowing he could not do so without opposition from the defendants, he entered into a verbal contract whereby the plaintiff agreed that if they (the defendants) would not oppose him, and permit him to get a patent from the United States for the same, he would immediately, on receiving such patent, convey to said defendants all the gravel, or bottom, of said tract for mining purposes. And the defendants aver that they did not oppose said plaintiff in procuring such patent, but permitted him to apply for and procure the same. And the defendants, believing the plaintiff would act in good faith under said agreement, have held possession of said tract under said agreement ever since, and incurred great expense in tunneling the same, etc.

Charles F. Irwin, for appellant.

George G. Blanchard, for respondent.

PER CURIAM.

That portion of the answer which was demurred to, presents no defense to the action. The agreement therein set up was in violation of the pre-emption laws of the United States, and was therefore illegal and void. The demurrer ought to have been sustained.

Judgment reversed and cause remanded, with an order to the court below to sustain the demurrer.

[No. 10,359.]

[Filed October 5, 1878.]

PEOPLE EX REL. SMITH vs. KEYSER.

CRIMINAL LAW-BILL OF EXCEPTIONS-WHEN MAY BE SETTLED.-A defendant may appeal from a judgment without having made a motion for new trial, and on the appeal may rely upon any of the grounds mentioned in Section 1170 of the Penal Code; and in such case, he must have a bill of exceptions settled, as provided in Section 1171. The defendant may, instead of appealing from the judgment, move for a new trial on any of the grounds mentioned in Section

1181; and if the motion is denied, may present the draft of a bill of exceptions, and have the same settled, as provided in Section 1174. It is not provided in the Code, that the motion for a new trial must be heard upon a bill or bills of exception. After the denial of the motion, the defendant may present the draft of a bill, and it may contain any of the grounds relied upon for a new trial.

Appeal from

District Court,

The facts appear in the opinion.

PER CURIAM.

County.

In the action of The People vs. Smith, the verdict was rendered on the 23d day of December, 1877, and a motion for a new trial was made by the defendant on the 18th day of January, 1878, and on that day the motion was denied. On the same day the court ordered that forty days be allowed “in which to file bill of exceptions;" and on or about the first day of March, 1878, the Judge of the court ordered that the time be extended to and including the 18th day of March, 1878, within which to present the bill of exceptions. On the last named day the draft of a bill of exceptions was, upon notice to the District Attorney, presented to the Judge for settlement, but the court refused to settle the same, on the ground that it should have been presented within the time allowed by the Penal Code, after the trial.

We are of the opinion that the bill of exceptions ought to have been settled by the Judge. The defendant may appeal from the judgment, without having made a motion for a new trial; and on the appeal he may rely upon any of the grounds of exception mentioned in Section 1170 of the Penal Code, and in such case he must have a bill of exceptions, settled as provided in Section 1171. The defendant may, instead of appealing from the judgment, move for a new trial on any or all the grounds mentioned in Section 1181; and, if the motion be denied, may present the draft of a bill of exceptions, and have the same settled as provided in Section 1174. It is not provided in the Code that the motion for a new trial must be heard upon a bill or bills of exception; and, although it may not be deemed improper practice to present, on the hearing of the motion, bills of exception covering all the grounds of the motion, except that of newly discovered

evidence, yet it is unnecessary to do so, and the motion may be heard without any bill of exception. After the denial of the motion, the defendant may present the draft of a bill, and it may contain any of the grounds upon which the defendant relied for a new trial; and it should contain, also, so much of the evidence, proceedings, and decisions as may be necessary to explain such ground, and no more. If, for instance, one ground of the motion be, that the court erred in the decision of a question of law, and the particular alleged error relied upon be the exclusion of certain testimony, the bill should set out the offered testimony, its exclusion, and the exception to the decision, and so much of the testimony and proceedings in the case as may be necessary in order to give point to the exception. An exception to such alleged error, and all the matters required to be stated, in order that a review of the error may be had, may be set forth in a bill of exceptions to the order denying the motion for a new trial. And the same is true of the other grounds of the motion.

It appears, by the petition, that the time for presentation of the draft of the bill of exceptions to the order denying the new trial in the case above mentioned, had been duly extended by the court or the Judge, up to the time when it was presented for settlement.

Mandate ordered.

[No. 6,123.]

[Filed October 1, 1878.]

MEROUX, APPELLANT, VS. WEBER, RESPONDENT.

JURISDICTION OF DISTRICT COURTS.-The District Court has jurisdiction to render a decree enforcing a vendor's lien, and its jurisdiction is not dependent upon the question whether all those who might have been bound by the decree were parties to the action.

IDEM. So where a decree was made by a District Court enforcing a vendor's lien for balance of purchase money due from a deceased person, and there being no administration on the estate of said deceased, and the minor heirs having been made parties defendant, and appearing by guardian ad litem, such decree is valid, and the said minors are bound by it. Such a decree does not operate to deprive the Probate Court of the power to subject the property to administration in the usual manner, as belonging to the estate of said deceased.