treaty of Guadalupe Hidalgo, those citizens of the Mexican Republic, in the territories ceded, who elected to become citizens of the United States, are protected in the enjoyment of their property. Ib.

6. Quære. Whether any right of defeasance or forfeiture, which may have existed in the Mexican Government, in respect to the grant to Sutter, ever passed to the United States, and whether the grant did not, by operation of the treaty of cession, become discharged of all conditions. Ib.

7. Under the former government, Sutter was entitled to the possession of the land under his grant. To avoid a denouncement and a possible forfeiture of his estate, he was required to occupy and cultivate the land, and its possession was his right, which could have been enforced. It was a right to the use and enjoyment of property, and as such was guarantied by the stipulations of the treaty. It accompanied his grant, and, like any other right of property, may be enforced in our Courts. The action of ejectment will lie directly upon the grant to recover the land, or any portion thereof, embraced within its boundaries. Ib.

8. Leese and Vallejo v. Clark, and Vanderslice v. Hanks, (reported in 3 Cal. Rep. 17, 47,) are overruled. Ib.

9. If the grant to Sutter contains more than eleven leagues of land, until the surplus is legally determined by a survey and measurement by the officers of the government, no individual can complain. The government alone can determine and set apart the surplus; and, until its action in the matter, the right of the grantee remains good to the possession of the entire tract within the designated boundaries. Ib.

10. Whether the premises in controversy in this suit, are included within the grant, is a question of fact, to be submitted to the jury. Ib.

11. Where there is a conflict between the boundaries of a grant of land, as designated in the grant by parallels of latitude, and as designated by a map referred to in the grant, parol evidence is admissible in explanation of the boundaries, and to fix the location of the land granted. Ib.

12. A map, referred to in a grant for the purpose of identifying the land, is to be regarded as a part of the grant itself, as much so as if incorporated into it. Ib.

13. If, taking the grant and map together, any portion of the description must be rejected, reference will be had to the circumstances under which the grant was made, and the intentions of the parties, and parol evidence is admissible in such case for that purpose. That portion will be rejected, and that construction adopted, which will give effect to the intentions of the parties. Ib.

14. The rules adopted in the construction of boundaries, are those which will best enable the Courts to ascertain the intention of the parties. Preference is given to monuments, because they are least liable to mistakes; and the degree of importance given to natural or artificial monuments, courses, and distances, is just in proportion to the liability of parties to err in reference to them. But they do not occupy an inflexible position in regard to each other. It may sometimes happen, in case of a clear mistake, that an inferior means of location will control a higher. Ib.

15. An instruction to the jury that they must take the grant and map together, and if they believe the land in controversy within the grant, as explained by the map, they will find for the plaintiff, held to be correct. Ib.

GUARANTY.

See PROMISSORY NOTE, 7, 8, 9.

1. Where the holder of a note, after its maturity, obtained from a stranger to

the note a guaranty of its payment within sixty days: Held, that there was no presumption of law that the guaranty was taken for the benefit of the maker, or that it extended to him the time of payment. Williams v. Covilland et al., 419.

2. Such a guaranty is an independent contract, which does not suspend any right of action of the holder of the note against its maker. Ib.

HARBOR DUES.

1. Vessels plying between San Francisco and Sacramento, and San Francisco and Stockton, are liable to the payment of harbor dues to the city and county of San Francisco. San Francisco v. Cal. St. Nav. Co., 504.

HOMESTEAD.

1. A complaint against a sheriff and his sureties for selling, under execution, the homestead of plaintiffs, which sets out that the sheriff was in possession of a certain execution against plaintiff, J. Kendall, and, under color of said execution, wrongfully and illegally entered upon and sold certain property, the homestead of plaintiffs, and averring damages in the sum of two thousand dollars, the value of the property, is insufficient, as the same does not state facts sufficient to constitute a cause of action. Kendall and Wife v. Clark, (Sheriff,) et als., 17.

2. No damage has or can result from such a sale. If the property sold was a homestead, the sheriff's deed conveyed nothing. The purchaser at such sale could acquire no right to the property, nor could the plaintiff suffer any injury. Ib.

3. The fact that both husband and wife were anxious to sell their homestead, and the husband had made repeated efforts for that purpose, but failed because a satisfactory price could not be obtained, does not show an intention to abandon the homestead as such. Dunn v. Tozer, 167.

4. Where property has been dedicated as a homestead, the husband and wife become joint owners thereof, with the right of survivorship, and their declarations of intention to sell and remove from the premises will not constitute an abandonment. Ib.

5. Nor will the declarations of the husband bind the wife. The act of the wife in going with her husband to reside upon another place, will in no way affect her right. Ib.

6. The only way in which the right of the wife to the homestead can be extinguished, is by a joint deed executed by both husband and wife, and properly acknowledged. Ib.

7. The right of homestead having once attached, and not having been alienated, a deed from the sheriff, under an execution against the husband, would be a cloud upon the title, and prevent the free alienation of the property by the husband and wife. Ib.

8. In an action by the wife against the husband, for a divorce, the defendant can not have a portion of the homestead set apart to him, where it is not shown that the property claimed as a homestead has been at any time during the existence of the marriage the residence of the family. Elmore v. Elmore, 224.

9. The wife is a proper party defendant in a suit to foreclose a mortgage executed upon premises claimed as a homestead. If not made such a party, she may intervene, or, by permission of the Court, be allowed to file a sepa

rate answer, the plaintiff having the liberty to amend his complaint if any
matters are set up in the answer which he might wish to anticipate by fur-
ther allegations. Moss v. Warner and Wife, 296.

10. The residence of the husband, with his family, upon the premises, impresses
upon them the character of homestead. Ib.

11. The Homestead Act operates upon property acquired previous to its passage,
as well as upon that subsequently acquired. Ib.

12. The voluntary removal of the husband, with his family, is not, of itself,
evidence of abandonment of the place as a homestead; much less so a
removal under apprehensions for the safety of his family. Ib.

13. Where a mortgage upon a homestead is executed by the husband, without
the wife joining in the execution, it has no validity as a lien upon
the pre-
mises to the exemption of $5000. Ib.

14. Where commissioners were appointed by the Court to select and set apart
as the homestead a portion of the tract of land mortgaged, such portion
to be of the value of $5000, in form as compact as possible, including the
place where the dwelling-house is situated, and to report their action to the
Court, and the commissioners, acting under oath, made the selection, and
their report was approved: Held, that the proceeding was proper. Ib.
15. 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 mortgage: Held, that the payment was not an act to hinder, delay,
and defraud his creditors. Randall v. Buffington and Wife, 491.

16. The removal of the lien from the homestead was but the consequence of an
act lawful in itself. Ib.

HUSBAND AND WIFE,

See HOMESTEAD; MARRIED WOMEN.

1. A sheriff may be enjoined from selling real property belonging to the wife,
under an execution against the husband. Alverson v. Jones and Bogardus, 9.

2. Such a sale would be a cloud upon the wife's title to the property, as the
deed of the sheriff would convey to the purchaser a prima facie title, which
she would have to overcome by proof. Ib.

3. The right of the wife to acquire property by purchase, during the marriage,
can only exist as an exception to the general rule as laid down by the "Act
defining the rights of Husband and Wife." Ib.

4. This exception exists in the case of a sole trader, under the "Act to author-
ize Married Women to transact business in their own name as sole traders."
Ib.

5. In order to entitle a surviving husband or wife to the whole common pro-
perty, it must be affirmatively shown that there are no descendants of the
deceased. Cummings v. Chevrier, No. 1, 519.

INDICTMENT.

1. An indictment found by the grand jury of the county of Sacramento, on the
sixth day of May, 1858, is good, as such jury was properly empanneled as
of the county of Sacramento. The People v. Mullins, 20.

2. An indictment which substantially pursues the form laid down in the stat-
ute, is sufficient. People v. Rodriguez, 50.

3. Accessories may, by the act of this State, be indicted and tried with the principal, or separately, and either may be convicted or acquitted without reference to the previous conviction or acquittal of the other. The People v. Bearss, 68.

4. In an indictment for murder, it is not necessary that the indictment should specifically aver that the killing "was willful, deliberate, and premeditated." It is sufficient, to charge the crime in the words of the statute. People v. Murray, 309.

5. An indictment for murder, which describes the weapon used, by which death was produced, as a "loaded pistol," is sufficient, though it omits to state the manner in which the weapon was charged. People v. Choiser, 310.

6. Where an indictment charged the defendants with the crime of murder, committed by them, at a designated place and upon a designated day, by "shooting and wounding" the deceased through the body, with a leaden bullet, discharged from a rifle, of which wound the deceased "then and there died:" Held, that is was not necessary to state in the indictment on what part of the body of the deceased the wound was inflicted, and that the indictment contained a sufficient statement that the wound was mortal. People v. Judd, 313.

7. 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.

INJUNCTION.

1. A sheriff may be enjoined from selling real property belonging to the wife, under an execution against the husband. Alverson v. Jones et al., 9.

2. 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. Sands v. Pfeiffer and Schleischer, 258.

3. No particular form is necessary for a writ of injunction; the substantial thing is an authentic notification to the defendants, of the mandate of the Judge, which they must then, at their peril, obey. Summers v. Farish,

347.

4. An injunction-bond, though given to all the obligees by name, and using no words directly expressing a several obligation, yet necessarily creates a several liability-the design of it being to secure each and all of the obligees from damage or injury. Ib.

5. A. leased furniture to B.; during the lease, F. bought the furniture of A., B. remaining in possession and acknowledging F.'s title. I., sheriff, having an execution in favor of R., and against A., levied on the furniture as the property of A. F. thereupon filed his bill to enjoin the sale: Held, that the remedy by injunction is proper, as it is the only speedy, adequate, and unembarrassed remedy the lessor has to vindicate his rights. Ford v. Rigby and Irwin, 449.

6. Where the complaint and evidence show that a defendant is in possession of a tract of land, and claiming and holding under an adverse title, and the weight of evidence is in favor of his title, an injunction will not be granted,

on the application of a party claiming title to the land, to prevent the defendant from cutting timber thereon. Smith v. Wilson, 528.

INSOLVENCY AND INSOLVENT DEBTORS.

1. 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. Isaac v. Swift, 71.

2. A decree of discharge, under the Insolvent Act, from the payment of a note secured by mortgage, does not release the lien of the mortgage; it only operates to limit the recovery of the mortgagee to the proceeds of the mortgaged premises. Luning v. Brady et al., 265.

3. The object of the thirty-ninth section of the "Act for the relief of Insolvent Debtors and protection of Creditors," which provides that no assignment of any insolvent debtor, otherwise than as provided in that act, shall be legal or binding upon creditors, was to do away with all voluntary assignments by a debtor in failing circumstances, for the benefit of his creditors. Dana v. Stanfords et al., 269.

4. It was never intended to prevent an insolvent debtor from transferring his property directly to his creditor, either absolutely in payment of his debts, or as security by way of mortgage. Ib.

5. 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.

6. 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 Insolvent Debtors and protection of Creditors," and did not create a trust for the use of the mortgagor, prohibited by the Statute of Frauds. Ib.

7. On a petition for a discharge from the debts of the petitioner, under the Insolvent Act, it is unnecessary for the petitioner to allege that his debts were created in this State. The Courts do not owe their jurisdiction, in insolvency cases, to an averment in the petition that the debts of the insolvent arose in this State. Sharp v. His Creditors, 418.

8. A defective statement in the schedule of an insolvent, of certain promissory notes which constitute a portion of his debts and liabilities, does not invalidate the entire proceedings. If the statute, as to the particularity with which debts and liabilities are required to be set forth by the insolvent, is not substantially complied with, a creditor can not be prejudiced by the decree of discharge in any suit which he may institute to enforce his claim. Slade v. His Creditors, 483.

9. 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.