Pacific Coast Law Journal. VOL. 2. FEBRUARY 15, 1879. No. 25. SEND your numbers and $1.25, and we will return the volume bound in law sheep, free of charge for postage. For city subscribers, we will bind the volume at $1 each. Send the twenty-five numbers already furnished you, and we will add the Supplement and Index. No charge for missing numbers. Current Topics. MRS. CLARA S. FOLTZ has been admitted to practice in the Fourth District Court. She has been refused admission to the Hastings Law Department of the University of California, and is now asking for a writ of mandamus to compel the officers of that institution to admit her. THE article on the Judiciary in our number of February 1, 1879, has made its impression on the members of the Convention, and there promises to be quite a modification of the proposed plan. That the plan is open to criticism can not be doubted, yet all must agree that some change must be made in the present system. This change, however, need not be so radical as to introduce an entirely new system, but extend only to increase the facilities for the dispatch of business. THIS number completes the present volume of the JOURNAL, with the exception of the index number of next week. The JOURNAL contains all the decisions of the Supreme Court of this State rendered since the ending of our last volume. Our supplement to be issued next week contains such of the unwritten opinions of the court as we have been able to satisfactorily prepare, with a view that they may prove valu able, and not as so much trash with which the volume would be encumbered. The JOURNAL contains, in addition, all the important decisions of the United States Circuit and District Courts for the district, and the decisions of the present term of the Supreme Court of the United States applicable to the Coast, and many other decisions of value to the profession, besides the discussion of leading topics. We are assured that we have entirely pleased our subscribers, and that we may expect a continuance of their patronage. THE Supreme Court of the United States have just reversed and remanded the case of the United States vs. Central Pacific Railroad Company, in error to the Circuit Court of the United States, District of California. The case involves the same questions disposed of in the United States vs. Union Pacific Railroad Company, of which the following is a syllabus: 1. The Act of Congress, passed July 1, 1862, to aid in the construction of a railroad to the Pacific Ocean, after granting certain lands and a loan of Government bonds, to be received by the Union Pacific and other railroad companies from time to time as successive sections of road should be completed, required the companies to perform all Government transportation of mails, troops, etc., and to credit the compensation therefor on the Government loan; and then added that "after the road is completed, until said bonds and interest are paid, at least five per cent. of the net earnings of said road shall also be annually applied to the payment thereof :" Held, that the road was completed for the purpose of this payment to begin, when reported by the company to be completed, and accepted by the President of the United States for the purpose of issuing the Government bonds, though the acceptance was provisional, and security was required that all deficiencies in construction should be supplied. 2. The company having duly presented its road as completed, and having obtained the subsidy, and agreed that certain security should be retained by the Government for the ultimate completion of defective parts, was held to be estopped from denying that the road was completed. 3. The "earnings" of the road include all the receipts arising from the company's operations as a railroad company, but not its receipts from the public lands granted, nor fictitious receipts for the transportation of its own property. "Net earnings," within the meaning of the law, are ascertained by deducting from gross earnings all ordinary expenses of organization and of operating the road, and expenditures bona fide made in improvements, and paid out of earnings and not by the issue of bonds or stock, but not deducting interest paid on any of the bonded debt of the company. 4. The Government bonds issued to the company were declared to be a first lien on the road and property. The Act of 1864 authorized the company to issue an equal amount of first mortgage bonds, to have priority over the Government bonds: Held, that this priority authorized the payment of the interest accruing on these first mortgage bonds out of the net earnings of the road in preference to the five per centum payable to the Government, which is only demandable out of the excess in each year. The Circuit Court held that the road was not completed until October 1, 1874. The Supreme Court fixes the time July 16, 1869, and that the road is chargeable with the net earnings from that date. Supreme Court of California. [No. 6,156.] [Filed November 25, 1878.] YOUNGLOVE, RESPONDENT, Vs. FITHIAN, APPELLANT. Where there is a substantial conflict of testimony appearing in the record, the judgment will not be disturbed by the appellate court. Appeal from Eleventh District Court, Amador County. Farley & Porter, for respondent. H. A. Carter, A. C. Brown, and Tubbs & Cole, for appellant. PER CURIAM. There is in the bill of exceptions no specification pointing to the deficiency of evidence now claimed by appellant; and if there had been, there is a substantial conflict in respect to the point appearing in the record. The appeal is without merit. Judgment affirmed with 10 per cent. damages. Remittitur forthwith. [No. 6,225.] [Filed November 25, 1878.] LINDEN GRAVEL MINING CO., APPELLANT, VS. SHEPLER, RESPONDENT. 1. The summons must be issued within one year after the complaint is filed. (C. C. P. 406.) 2. An appearance by defendant to make a motion to dismiss, is not a general appearance, which waives his right to make the motion. Appeal from Eleventh District Court, El Dorado County. Chas. F. Irwin, for appellant. W. W. Likens, for respondent. PER CURIAM. 1. The court properly dismissed the action, inasmuch as summons was not issued within one year after the complaint was filed. (C. C. P., Sec. 406.) 2. The appearance of defendant for "the motion only" to dismiss, was not a general appearance, which waived his right to make the motion. Judgment affirmed. Remittitur forthwith. [No. 6,453.] [Filed February 5, 1879.] WELLS, FARGO & CO., APPELLANT, VS. COLEMAN ET ALS. (Bank Commissioners), RESPONDENTS. Appeal from Twelfth District Court, city and county of San Francisco. The petition for injunction alleges-That defendants, for more than three months past, have been Bank Commissioners, appointed under act, etc., entitled "An act creating a Board of Bank Commissioners, and prescribing their duties and powers," approved March 30, 1878. That plaintiff is a corporation, having a capital stock and shareholders, and doing business in said city and county of San Francisco, which business consists of discounting bills and promissory notes, and buying, selling, drawing, and dealing in bills of exchange and other negotiable securities, and receiving money on general deposit, upon which no interest is allowed, and which money is mingled and blended with the moneys of plaintiff; but that plaintiff is not, and never has been, doing business for the accumulation and investment, or for the accumulation or for the investment of funds and savings, or funds or savings; and is not, and never has been, a trust company, receiving any valuable thing in trust, or money on special deposit; and that plaintiff is not a person publicly receiving, and has not received publicly, money on deposit for safe keeping. That on the 25th of July, 1878, the said Bank Commissioners duly issued to plaintiff a license in due form (being the form prescribed by them), authorizing plaintiff to use the name and transact its business as a banking company, as aforesaid, for a period of one year from said last-mentioned date. That on January 6, 1879, the defendants, claiming to act as such Bank Commissioners, visited the plaintiff and demanded of plaintiff that it permit them as such Bank Commissioners to make, |