course, and sometimes another. Either course may be adopted, and either course will avail.

Ib.

10. It is within the discretion of the Court, after hearing the affidavits, to require the oral examination of the parties, if they are present at the trial, in relation to the facts and circumstances detailed by them. Ib.

11. 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.

12. The opinion of witnesses are generally admissible only when they relate to matters of science or art, or to skill in some particular profession or business. Hastings v. Steamer U. S., 341.

13. Where, in an action to recover damages occasioned to the plaintiff from his detention by the defendants, a witness was permitted to give his estimate of the value of the plaintiff's services per day, which he placed as high as one hundred dollars, and stated, as ground for his opinion, that the plaintiff was a speculator, possessed of large property, money invested in stocks, rents, and other sources of income, and frequently made from one to five hundred dollars per day: Held, that the testimony was inadmissible. Ib.

14. In an action for damages for the diversion of water from the plaintiffs' ditch, the defendants' denied the diversion, and alleged that the water used by them was used by agreement between the Volcano Water Company and themselves, and the water came from the reservoir of the Volcano Water Company. On the trial, after the plaintiffs had introduced in evidence the judgment wherein the right to the use of the water had been adjudged between the plaintiffs and the Volcano Water Company, and offered to prove by oral testimony that the water used by defendants is the same water that was in controversy in that suit: Held, that such evidence was proper, and should have been admitted, as there was no other means than by parol of establishing this fact. Walsh v. Harris, 391.

15. Parol proof of the existence of a debt intended to be secured by mortgage is admissible. Shaver v. Bear River and Auburn Water and Mining Co., 396.

16. If the mortgage was void, this fact does not invalidate the debt intended to be secured by mortgage. Ib.

17. It has been held that the declarations of a tenant in possession of land, those declarations being made at the time of possession, may sometimes be given in evidence as a part of the res geste to qualify the possession, the possession being the transaction which the declarations illustrate. But in order, and prior to the introduction of these declarations, it must be proved that the tenant was in possession at the time the proposed declarations were made. Ellis v. Janes et als., 456.

EXECUTION.

See CONVEYANCE, 14; COUNTY INDEBTEDNESS, 3, 4; UNDERTAKING ON APPEAL, 1.

1. The issuing and levy of an execution before the lien of the judgment upon which the execution issued expires, will not operate to prolong the lien of the judgment beyond the time limited in section 204 of the Code. Isaac v. Swift, 71.

2. The levy and sale must both be made within the period of two years limited by statute. Ib.

3. It required express words of the statute to create the lien, and it equally requires express words to continue it beyond the time specified. Ib.

4. An order of Court made staying all proceedings against a petitioner under the Insolvent Law for a discharge from his debts pending his petition, would not prevent the issuance of an execution on a judgment rendered against the petitioner, and a sale of property under the same, within the time limited for the lien of said judgment. Ib.

5. A mandamus will not lie against the clerk of the District Court to compel him to issue execution. Goodwin v. Glazer, 333.

6. Where an execution on a judgment for the recovery of money is not stayed by the undertaking on appeal required by statute for that purpose, a sale may be made on the execution, and the rights of purchasers are in no respect affected by the subsequent reversal of the judgment. Farmer v. Rogers, 335.

7. Where the execution-debtor owns property jointly with another, a sheriff, who has such execution, has the right to levy on such property, and take it into possession, for the purpose of subjecting it to sale. Waldman v. Broder et al., 378.

8. An execution must be warranted by the judgment. If it exceeds the judgment, it has no validity. Davis v. Robinson, 411.

9. Where a clerk of the District Court improperly refuses to issue execution on a judgment rendered in a Court of which he is clerk, on the ground that the judgment has been attached at the suit of another party, a bill in equity can not be sustained to release the attachment and compel the clerk to issue the execution, as the injured party has his remedy at law by an action on the official bond of the clerk. Miller v. Sanderson, 489.

FORCIBLE AND UNLAWFUL ENTRY AND DETAINER.

1. In an action for a forcible and unlawful entry and detainer of a mine, against a corporation and C. and V., the jury returned a verdict of guilty as to C. and V., and not guilty as to the corporation: Held, that such verdict is conclusive that the plaintiff was peaceably in actual possession of the premises at the time of the entry; that unlawful and forcible entry on his possession was made by the defendants C. and V.; and that the corporation did not participate in the trespass. Fremont v. Crippen, 211.

2. The peaceable and actual possession of the plaintiff is incompatible with the lawful possession of another, and such a verdict is conclusive against the possession of the corporation. Ib.

3. Where a writ of restitution has been awarded in such a case, and the sheriff refuses to execute the same, on the ground that the mine is in the possession of certain persons not parties to the suit, who claim to hold under the corporation, the Court will award a peremptory mandamus against the sheriff to compel him to execute the writ. Ib.

4. An action of forcible entry and detainer will not lie against a party claiming a right to land, who is not in the actual possession. Preston v. Kehoe, 445.

FORECLOSURE.

See MORTGAGE; PARTIES TO ACTION, 1, 2, 6.

FRAUDS AND STATUTE OF FRAUDS.

See ARREST; CONVEYANCE, 7; MORTGAGE, 12.

1. If a party, by ante-dating a promissory note, and making it draw interest from date, secures to himself a certain sum of money, not justly due to him for any past or present consideration, he takes that much from the other creditors, and they are just as much injured as if that amount had been included as a part of the principal sum itself. McKenty v. Gladwin, Hugg & Co., 227.

2. The Statute of Frauds makes every bond, or other evidence of debt, given with intent to hinder, delay, or defraud creditors, void. Ib.

3. If a part of the sum, secured to be paid by the promissory note, whether principal or interest, is illegal, the note must defraud creditors, if enforced, and is, therefore, void, under the positive provisions of the statute. Ib.

4. Where a note is ante-dated for the purpose of making it draw interest, for which there is no consideration, it is void as to creditors. Ib.

5. F. sold and delivered to V. P. certain goods, the possession of which V. P. retained for two or three days, when he leased the premises in which the goods were, and delivered the goods to F., his vendor, and one M., who after carrying on the business in connection with F. for a few days, retired, leaving F. in the exclusive possession of the property, which possession continued until the goods were seized by L., as constable, under an execution against F.: Held, that the sale of the goods to V. P. was void as to creditors, and the goods were subject to the execution against F. Van Pelt v. Littler, 394.

6. In the fall of 1856, L. rented of W. a portion of his brick-yard, for the purpose of making bricks. L. subsequently made a kiln of bricks, and left them in W.'s charge and possession, for him to sell for L.'s benefit. In January, 1857, L. made and delivered a bill of sale of the bricks to R., and informed W. of the same, but there was no change of possession under the bill of sale. S., the defendant, as constable, seized the bricks under a process against L., and sold them as the property of L.: Held, that L.'s sale to R. was a fraud as against the creditors of L., and that defendant was justifiable in taking the bricks and selling the same. Richards v. Schroder, 431. 7. Where the defendant was indebted in the sum of $1000, which he secured by a mortgage on his homestead, and some time afterwards became insolvent, and after several attachments had been issued in suits against him, and levied on his store, he took money which he had and paid off the debt secured by the mortgage: Held, that the payment was not an act to hinder, delay, and defraud his creditors. Randall v. Buffington and Wife, 491.

8. K. and S. were the owners of a mule team, which they used in hauling quartz-rock to their quartz-mill-the team was driven by one L., an employee. K. and S. sold the team to H., executing a bill of sale, and delivering the team by the discharge of L., the driver, who was immediately employed by H., and saying to H. "there is the team." K. and S. then hired of H. the team at $8 per day, and put it in the same business of hauling quartz-rock as before, and with L., the same driver. Team was kept and fed at K. and S.'s stable, as before the sale: Held, that there was no such actual and continued change in the possession of the property, under H.'s purchase, as to take the case out of the operation of the Statute of Frauds. Hurlburd v. Bogardus, 518.

FREEHOLD AND FIXTURES.

1. The general rule of law is, that whatever is once annexed to the freehold becomes parcel thereof, and passes with the conveyance of the estate.

Though the rule has been in modern times greatly relaxed, as between landlord and tenant, in relation to the things affixed for the purposes of trade and manufacture, and also in relation to articles put up for ornament or domestic use, it remains in full force as between vendor and vendee. Sands et al. v. Pfeiffer et al., 258.

2. As a general thing, a tenant may remove what he has added, when he can do so without injury to the estate, unless it has become, by its manner of addition, an integral part of the original premises; but as against a vendor, all fixtures pass to his vendee, even though erected for the purposes of trade and manufacture, unless specially reserved in the conveyance. Ib.

3. The engine and boilers, etc., used in a flour-mill, being permanently fastened to the mill, which had its foundation in the ground: Held, to be fixtures covered by a mortgage upon the premises, though put up after the execution of the mortgage, and held to pass to the purchaser of the mortgaged premises under a decree of foreclosure. Ib.

4. A mortgagor, after a sale of the mortgaged premises under a decree in a suit to foreclose the mortgage, has the right to the use and possession of the mortgaged premises until the execution of the sheriff's deed, but he possesses no right to despoil the property of its fixtures. The deed of the sheriff takes effect by relation at the date of the mortgage, and passes fixtures subsequently annexed by the mortgagor. Ib.

5. By the wrongful severance from the premises, the fixtures become personal property, for the recovery of which an action of replevin will lie by the purchaser after he obtains the sheriff's deed. Ib.

6. The remedy by injunction to restrain the removal of fixtures, under section 261 of the Practice Act, is only preventive; it is not exclusive of any other remedy. Ib.

7. D. purchased a lot of land at sheriff's sale on execution, and entered into possession and erected certain buildings thereon. On the 25th day of May, 1858, D. removed the buildings. On the same day the buildings were removed, the defendants in execution sold the premises to T., and a day or two after, T. redeemed the lot from the sale, and then brought suit against D. to recover the value of the buildings: Held, that as there was no evidence that the buildings were attached to the soil, T. can not recover. Tyler v. Decker et als., 435.

GAMING.

1. A check given for a gaming debt is void in the hands of all persons except a bona fide holder without notice. Fuller v. Hutchings et al., 523.

GAUGER.

1. The intention of the Legislature to create the office of gauger by the act of May 3, 1852, entitled "An Act to provide for the Appointment of a Gauger for the Port of San Francisco," is too clear to admit of doubt. The People ex rel. Attorney-General v. Addison, 1.

2. The office having been created, must be presumed to be continuing, unless limited by the terms of the act, or by the nature of the duties to be performed. Ib.

3. There is nothing temporary in the duties of the office. Nor is there anything in the language of the act limiting the duration of the office. Ib.

4. The period of two years, mentioned in the first section, limits only the term of the officer and not the duration of the office. Ib.

7

5. Where the appointment to an office is vested in the Governor, with the advice and consent of the Senate, and the term of the incumbent expires during the recess of the Senate, the Governor has the right to fill such vacancy, and his appointment vests in the appointee the right to hold and discharge the duties of such office for the full term, subject only to be defeated by the non-concurrence of the Senate. Ib.

GRANT.

See U. S. LAND COMMISSION.

1. On the 18th of June, 1841, Juan B. Alvarado, then Governor of California, issued a grant of a tract of land designated as New Helvetia, comprising eleven square leagues within certain specified boundaries, to John A. Sutter, for himself and colonists, subject to the approval or disapproval of the Supreme Government and the Departmental Junta, and upon certain conditions: Held, first, that the grant was a conveyance of the land in full property, subject to be defeated by the subsequent action of the Supreme Government and Departmental Assembly; second, that the clauses in the grant against the obstruction of the highways and the navigation of the streams, were reservations in favor of the public; third, that the condition as to maintenance of the Indians of the different tribes in their possessions, and the conditions of cultivation and occupancy of the land with families, attached to the grant by force of the regulations of November 21st, 1828, were conditions subsequent which did not prevent the estate from becoming vested eo instante with the delivery of the grant, and for a non-compliance with which the estate could only be divested by the action of the government; and, fourth, that the approval of the Supreme Government and Departmental Assembly was not a condition precedent to the vesting of the title. Ferris v. Coover-Ferris v. Chapman et al., 589.

2. The authority to make grants of land was lodged solely in the Governor. It was not shared by him with the Departmental Assembly. That body possessed no power to make any grant. Its power was restricted to approval or disapproval of the grant made. After its action, whether of approval or disapproval, it became the duty of the Governor to forward the necessary documents, with the report of the Territorial Deputation, to the Supreme Government. Until the approval of the Supreme Government, the grant was subject to be defeated. With such approval, it was discharged of the defeasance, and became definitively, that is, finally, valid. Ib.

3. It was the duty of the Governor, and not of the grantee, to submit the grant to the Departmental Assembly, and afterwards, with its report, to the Supreme Government. The neglect or refusal of the Governor to make such submission, could not impair the estate of the grantee in the land. It only operated as a suspension of the definitive validity of the grant. Once exercised, the power of the Governor over the land granted ceased. He could not recall or revoke the grant; nor, by any action or neglect, divest the estate granted. Ib.

4. The title to the land passed to Sutter by his grant; an estate vested in him, subject to be defeated by the action of the Mexican Government by direct rejection, or, in case of non-compliance with its conditions, by proceedings to that end. But, until one or the other of these proceedings had taken place, the title continued in Sutter unimpaired. Neither of these proceedings were had under the Mexican Government, and, at the date of the cession of California to the United States, his title remained in full force. Ib. 5. The title to Sutter was in no respect impaired by the treaty of cession. By the law of nations, independent of treaty stipulations, the inhabitants of a ceded territory retain all rights of property; and, by the stipulations of the