R. and B. stood by and abetted, W. having been convicted: Held, that the record of W.'s conviction was inadmissable in evidence on B.'s trial for any purpose. Ib.

6. The fact of W.'s conviction was immaterial to the guilt of B., and such evidence could only tend to prejudice the minds of the jury. Ib.

7. If A goes to the house of B, who has taken possession of his land and built a house thereon, for the purpose of forcibly putting him out and tearing down the house, it is an unlawful act; and if A kills B in pursuing that purpose, it is murder or manslaughter, according to the facts of the case. People v. Honshell, 83.

8. The defendant being on trial for the crime of manslaughter, in killing John M. Vance, (who had entered upon the premises of defendant, and commenced the erection of a house thereon, and in the attempt of defendant to remove Vance a fight ensued, in which Vance was killed,) offered to introduce in evidence a deed of the land from one Crostly to defendant and his partner, and also to prove that Crostly had possession of the land eight months prior to date of the deed, and that defendant went into possession under the deed, and had held possession eight months previous to Vance's entry: Held, that such proof was not admissible. Ib.

9. Defendant had no lawful right to turn Vance off by force, conceding that he had the legal title to the land. Ib.

10. Where the evidence showed that the prisoner went to the house of the deceased for the purpose of forcibly removing him from land claimed by the prisoner, and a fight ensued between them, which resulted in the death of the deceased: Held, that the instruction asked for on trial by the defendant, "that if the jury believe, from the evidence, that the defendant fired the fatal shot at the time, and had reasonable cause to believe, his life was in danger, they must find a verdict of not guilty," was properly refused. Ib. 11. It was not error in the Court below to give the following instruction: "It was no justification for the defendant to say that the land, on which Vance (deceased) was building a house, was his, or that he had some claim to it." This instruction could not prejudice the jury against defendant, or injure him, conceding that it was unnecessary. Ib.

12. The rule is well settled, that the reputation of the deceased can not be given in evidence, unless, at the least, the circumstances of the case raise a doubt in regard to the question whether the prisoner acted in self-defence. It is no excuse for a murder that the person murdered was a.bad man; but it has been held that the reputation of the deceased may sometimes be given in proof to show that the defendant was justified in believing himself in danger, when the circumstances of the contest are equivocal. But the record must show this state of case. People v. Murray, 309.

13. It is not necessary to a conviction, under an indictment for forging an order for the delivery of goods, that the order should be signed in the name of a party having goods in the possession of the drawee. People v. Way, 336. 14. Where the defendants were sureties in a recognizance for the appearance of one H., who was charged with the crime of receiving two mules, alleged to have been stolen, and in a suit on such recognizance against the sureties, the Court found that an indictment was found by the grand jury, at a subsequent term to the date of the recognizance, "entitled an indictment against H. for receiving stolen goods:" Held, that it does not follow, from this general description of the indictment, that it was for the same crime mentioned in the recognizance. People v. Hunter and Davis, 502.

CUSTOMS.

See WILLS, 2, 3; CONTRACTS, 1.

DAMAGES.

See CLERK OF DISTRICT COURT, 1, 2.

1. Where a mortgaged debt has been lost by gross negligence of the notary, the measure of the damages is the amount of the debt and interest to be secured by the mortgage. Fogarty v. Finlay, 239.

2. Plaintiffs purchased of defendant F. the bark "Chase," paid a portion of the purchase-money, and entered into possession; at the time of sale, the vessel was sailing under a coasting-license issued to F., but was registered in the name of a third person. F. agreed to deliver to plaintiffs, within twenty days, a good and sufficient title and register of the bark, and, as security for the performance of this agreement, executed a bond in the penal sum of $2,000. F. failed to deliver the title and register at the time agreed on, or at any time, by reason of which failure the plaintiff was restricted in the lawful and usual use and employment of the vessel: Held, that the sum specified in the bond should be considered as liquidated damages. Fisk v. Fowler, 512.

DEBTOR AND CREDITOR.

See CONVEYANCE, 7; SAN FRANCISCO, 2, 3, 5.

1. An assignment, in the sense of the statute, must embrace a trust for others than the assignee. Without the creation of such trust, the conveyance directly to the creditor, with authority to him to sell the property transferred, and to apply the proceeds in discharge of the indebtedness to himself and the liabilities he has incurred, is only a mortgage, whatever its form, and is not within the letter or spirit of the statute. Dana v. Stanfords et al., 269. 2. In such cases, the assignee acquires only a specific lien upon the property. The trust which results in favor of the assignor, arises from the nature of the transaction, as one of security. Such trust results in all cases of mortgages, but is not the object of their execution. Ib.

3. From the power which a man possesses over his own property, it follows that he can dispose of it in any manner he may see fit, which does not contravene the general policy of the law. That policy restricts the power of disposition, so as to prevent the withdrawal of the property from the claims of his creditors. It is no part of such policy to inhibit its application to the payment of one debt rather than another. Ib.

4. A conveyance giving a preference, is not fraudulent, though the debtor be insolvent, and the creditor be aware at the time that it will have the effect of defeating the collection of other debts. To avoid the conveyance, there must be a real design on the part of the debtor to prevent the application of his property, in whole or in part, to the satisfaction of his debts. A creditor violates no rule of law when he takes payment or security for his demand, though others are thereby deprived of all means of satisfaction of their own equally meritorious claims. Ib.

5. Where a debtor, who was at the time insolvent, executed a mortgage of all his property and effects to certain specified creditors, to secure his indebtedness to them, and to protect them from liabilities incurred by their endorsement of his paper: Held, that the mortgage was not an assignment either within the letter or spirit of the thirty-ninth section of the "Act for the relief of Insoivent Debtors and protection of Creditors," and did not create a trust for the use of the mortgagor, prohibited by the Statute of Frauds. Ib.

6. There is no rule of law which prevents a debtor, in insolvent circumstances, from the application of his property to the payment of one debt rather than another. Randall v. Buffington and Wife, 491.

DEED.

See ACKNOWLEDGMENT TO DEED, 1, 2, 3; CONVEYANCE;

POWER OF ATTORNEY, 1, 3.

1. The first step in the construction of a deed, is to ascertain the understanding and intention of the parties at the time of contracting. Brannan v. Mesick et al., 95.

2. To arrive at this intention, the situation of the parties, and the subjectmatter at the time of contracting, should be considered; the whole deed should be taken together, and, if possible, effect should be given to all its parts, although the immediate object of inquiry be the meaning of an isolated clause.

Ib.

3. Oral evidence is sometimes admissible to explain, but not to contradict or vary the terms of a written contract; thus, if the words of a contract be ambiguous, its meaning may be gathered from cotemporaneous facts which intrinsic testimony establishes. Ib.

4. If, when the intention is thus ascertained, it is found that the words will fairly bear a construction which makes them express this intention, then the words will be so construed, and the contract, with this interpretation, enforced as the contract of the parties. Ib.

5. The distinction between patent and latent ambiguities, is now regarded as intended to enable the Court to distinguish between cases curable and those of incurable uncertainty. Ib.

6. A executed to B, C, D, and E, an instrument which commences in the ordinary form of a deed of bargain and sale, purporting to convey to them, in consideration of $125,000, the property therein described, with a general warranty of title against the claims of all persons; this clause then followed by a power of attorney authorizing the grantees to take possession, sell, and convey, or lease the property, in the name of the grantor, and to receive the purchase-money and rents, and that grantor would not sell, lease, or authorize any other person to sell or lease the premises, or revoke the power given, unless the grantors neglected to pay the said sum of $125,000, in instalments, specified therein, with a covenant that if said amount was paid at the time specified, the instrument should take effect as a full and complete conveyance in fee of the property; and also a covenant, that if grantor should fail to fulfill his covenants, the instrument should take effect as a conveyance: Held, that such instrument was intended as a conveyance upon condition precedent, and that grantees could acquire no title under it until the condition was performed, and when so performed, the title vests in the grantees without any further act on the part of the grantor. Ib.

7. Such condition precedent must be strictly and punctually performed before the estate can vest or be enlarged. Ib.

8. The registration of such instrument is sufficient to put a subsequent purchaser on inquiry as to the performance of the conditions. Ib.

9. Until the payments are made, the title is in the grantor, and would pass to a subsequent purchaser after the time fixed for the payments. Ib.

10. Where, to a certificate of proof, by a subscribing witness, of the execution of a deed, the witness adds his signature, and the officer adds the usual jurat to an affidavit, such additions do not vitiate the certificate, if without them it shows a substantial compliance with the requirements of the statute. The signature of the witness and the jurat may be rejected as surplusage. Whitney v. Arnold, 531.

11. Where W., in consideration of $1500, made a deed to B. to an undivided interest in certain mining-claims, with the following condition of payment:

"The said J. Beem, of the second part, shall pay to the said Emmons White, of the first part, all the dividend that shall at any and all times be declared to one-twelfth of said claims; also, all the proceeds of his wages due him for labor in said claims, after receiving ten dollars per week for his own support, until the amount paid shall equal the sum of fifteen hundred dollars, with interest, mentioned above-then this bill of sale shall be given unto the said J. Beem by him who may have it in possession, thereby giving unto the said J. Beem full possession and control of said property mentioned in this bill of sale:" Held, that B was bound to contribute his labor on the claims until his labor (less ten dollars per week reserved) and the proceeds of the claim equaled the price to be paid: Further held, that the deed was but an escrow in the hands of McKusick, and B was entitled to nothing more than a delivery of it, and was only entitled to this on a strict compliance with the stipulations of the contract on his part. Beem v. McKusick, 538.

12. By the doctrine of the common law, a party claiming under a tax-deed, must show that all the requirements of the law, from the first to the last, have been complied with. Though the statute has altered the rule, and made the deed prima facie evidence of the conveyance of all the title of the delinquent, it does not dispense with the necessity of the officer reciting in the deed the authority under which he acted. The deed has no validity as an independent conveyance. It depends upon the statute, and if, by any of its recitals, it appears that any material requisition of the law has been omitted, the deed is void. Ferris v. Coover, 589.

DISTRICT COURTS.

1. The District Judge has power to issue writs of certiorari, and to hear them on their return, at chambers. People v. Supervisors Marin County, 344.

2. The jurisdiction of the Fourth District Court, in the county of San Francisco, continues the same as it was previous to the creation of the Twelfth Judicial District. The jurisdiction of the Fourth District Court and of the Twelfth District Court, within the limits of the city of San Francisco, is equally extensive, and proceedings may be commenced in either Court, at the option of the suitor. Slade v. His Creditors, 483.

3. Where an insolvent, in his petition to the District Judge of the Fourth Judicial District, stated that he was "a resident of the city of San Francisco :" Held, that the averment was sufficient that his residence was within the Fourth Judicial District. Ib.

4. The District Court, by virtue of its common-law powers alone, derives its power to try issues of fact, and that Court, as a Court of Law, has no jurisdiction over probate matters. Its jurisdiction over matters of account and the like, is derived from its grant of equitable power in the Constitution, and in that respect it has only concurrent jurisdiction with the Probate Court. Pond v. Pond, 495.

5. Issues of fact are sent from the Probate Court to the District Court, not as from an inferior to a superior tribunal, but for the sake of convenience, because the Probate Court has not the machinery of jury trial and its incidents. But it was never intended to transfer any portion of the jurisdiction of Probate Courts to the District Courts. Nor was it designed, by the Act of 1855, directing these issues, to make the judgments of the District Courts binding upon the Courts of Probate. Ib.

DITCH-OWNERS, THEIR RIGHTS, ETC.

See WATER-RIGHTS.

1. The law will not presume an abandonment of property in a dam and ditch for mining purposes, from the lapse of time. Partridge v. McKinney, 181.

2. Where parties have appropriated the prior right to the use of the water of a stream, by the commencement and partial completion of a ditch and flume, they have the right to use so much of the waters of the stream as are necessary to preserve their flume from injury, while in the process of construction. Weaver v. Conger, 233.

3. This Court will require a case of very palpable mistake or error to be made out, before it will overrule the verdict of the jury on issue of fact joined in an action for the diversion of water. Brown v. Smith, 508.

4. In an action for diverting water from the plaintiff's ditch, and where both parties claimed, in part, the waters of the same stream: Held, that the following instruction was properly given by the Court to the jury: "That defendant is not liable for any deficiency of water in plaintiff's ditch, unless he was diverting from Rabbit Creek more water than he was entitled to at the precise time that such deficiency existed." Ib.

5. So, where the Court instructed the jury that if they believed that defendant's ditch was so filled with tailings during the period of the alleged injury, that it was incapable of diverting the waters of the creek, then plaintiff can not recover. Ib.

6. The owner of a ditch is bound to use that degree of care and caution in its construction and management, to prevent injury to others, which ordinarily prudent men use in like instances, when the risk is their own. Wolf v. St. Louis Water Co., 541.

7. The question of negligence in the management of such property, and the degree of it, must necessarily depend, in a great measure, upon the surrounding facts, such as the existence and exposure of property below the dam, and the like; for what, under one state of facts, would be prudence, might, under a different condition of things, be gross, or even criminal negligence. Ib.

DIVORCE.

1. Where, in a suit for divorce brought by the wife, she charged in her complaint that adultery had been committed by her husband whilst she was living with him, "at the city of San Francisco, at divers times, with persons to the plaintiff unknown ;" and adultery committed since she ceased to live with him, "at the said city of San Francisco, with divers other persons, whose names are to the plaintiff unknown:" Held, that the complaint was demurrable, but that the defendant, by failing to demur, waived the objection, so far as the want of specification of the acts constituting the charge is concerned. The statute has not altered any of the ordinary rules of pleading for cases of divorce, except that nothing can be taken by admission or default. The object of this exception is to prevent collusion between the parties; and when this is accomplished, the ordinary rules apply. Conant v. Conant, 249.

2. The charge of adultery should be stated with reasonable certainty as to time and place, so as to enable the defendant to prepare to meet it on the trial. Ib.

3. The doctrine of recrimination, or compensatio criminum, applicable in suits for divorce, and the several offences which, by the statute, constitute grounds of divorce, are pleadable in bar to such suits, the one to the other, within the principle of the doctrine. Ib.

4. To be an absolute bar, the conduct of the plaintiff must be such as to constitute a proper basis for judicial decree against her, had suit been instituted by the defendant. Ib.