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.

6. The federal office of Surveyor-General is a "lucrative office," and the office of Comptroller of State an "office of profit," under the twenty-first section of the fourth article of the Constitution of this State. The People ex rel. Melony v. Whitman, 38.

7. To constitute the "holding" of an office, within the meaning of the Constitution, there must be the concurrence of two wills-that of the appointing power, and that of the person appointed. Ib.

8. As regards the appointing power, the appointment is complete when the commission is duly issued by the President; but the person appointed is required to give bond and take the oath of office before he can possess the office. These acts constitute a condition precedent to the holding the office. Ib.

9. On the 16th day of August, 1857, A received from the President of the United States a commission of Surveyor-General for the State of California. At a general election, held on the third day of September, 1857, A and B were candidates for the office of State Comptroller of the State of California-A received the highest number of votes, but never qualified or claimed the office. On the sixth day of September, 1857, A gave bond and took the oath of office under the commission as Surveyor-General, and on the ninth day of the same month entered upon the duties of such office, and on the 15th notified the President of his acceptance of the same: Held, that A was eligible to the State office when the votes were cast for him, and was duly elected thereto. Ib.

10. The term of the office of Governor is fixed at two years certain, with a contingent extension. When this contingency happens, this extension is as much a part of the entire term as any portion of the two years. Ib.

11. The Constitution itself clearly defines the sense of the phrase "vacancy of the office of Governor," as used in the sixth section, by specifically enumerating in the succeeding section the instances which devolve the duties of the Executive upon the Lieutenant-Governor. Ib.

12. When the Constitution clearly enumerates the events that shall constitute a vacancy in a particular office, we must suppose all other causes of vacancy excluded, especially when this construction can lead to no injurious results.

Ib.

13. The power to declare an office vacant is vested, under the statute, where the duty to approve of the bond of the officer is lodged. That duty is imposed upon the County Judge, and not the supervisors; and where the supervisors of Marin county declared the office of constable vacant, because the constable failed to comply with their order to file a new bond: Held, that they exceeded their jurisdiction. People v. Supervisors of Marin county, 344.

OFFICIAL BONDS.

1. The provision of the statute organizing boards of supervisors, which empowers them to "require new bonds of any county or township officer, with additional securities whenever they deem the same necessary," does not leave the exercise of the power to their arbitrary discretion. By the terms "whenever they deem the same necessary," is meant whenever their judgment pronounces, after an examination of the facts of the case, that there is a necessity for further security. People v. Supervisors of Marin County, 344.

2. In determining upon the sufficiency of the bond of an officer, and whether the officer, by his failure to comply with the requisition of the supervisors to file a new bond, has vacated his office, the supervisors exercise powers of a judicial character. Ib.

3. An order of the supervisors, requiring a new bond of an officer, should specify the ground upon which the order is made; and where the supervisors of Marin county made an order as follows: "Ordered by the board of supervisors, that John De Fries, constable of San Rafael township, fe another bond, with two or more sufficient sureties, within fifteen days:" Held, that the order was fatally defective. Ib.

OVERRULED CASES.

1. Abell v. Calderwood, (4 Cal., 90,) overruled by Arguello v. Edinger, 150. 2. Bryan v. Berry, (6 Cal., 394,) overruled by the case of Aud v. Magruder,

282.

3. Meyer v. Kalkmann, (6 Cal., 582,) overruled by the case of Hickman v. O'Neal, 292.

4. Leese and Vallejo v. Clark, (3 Cal., 17,) overruled by the case of Ferris v. Coover Ferris v. Chapman, 589.

5. Clarkson and Vanderslice v. Hanks, (3 Cal., 47,) overruled by the case of Ferris v. Coover-Ferris v. Chapman, 589.

PARTIES TO ACTION.

See PRACTICE, 13, 23, 40.

1. A person claiming an interest in mortgaged premises, subsequent to the mortgage, is a proper party to the foreclosure-suit, but can not be subjected to the costs of the foreclosure beyond those occasioned by his own separate defence. Luning v. Brady et al., 265.

2. 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 separate 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 further allegations. Moss v. Warner and Wife, 296.

3. Where T. and C. executed a joint lease to L., to certain premises, and it was specified in the lease that $20 rent should be paid to T. and $20 to C.-and on breach of the terms of the lease on the part of the lessee, T. and C., the lessors, brought a joint suit to recover the rent and restitution of the premises: Held, that there was no misjoinder of parties plaintiff. Treat and Flower v. Liddell, 302.

4. Whatever the rule may be under the old system, under our system the right of action is in the party sustaining the injury; for, on a recovery, the other party, if entitled to receive the money at all, and if judgment were had in the name of both, would hold it by right of, and as trustee for, the other; and our Practice Act, for convenience, has given the right to sue, to the party beneficially entitled to the fruits of the action. Summers v. Farish, 347.

5. An administrator is a proper party to a foreclosure-suit. 380.

Carr v. Caldwell,

6. All persons interested in the premises, prior to the suit brought to foreclose a mortgage, or to enforce a mechanic's lien, whether purchasers, heirs, devi

sees, remainder-men, reversioners, or incumbrancers, must be made parties, otherwise their rights will not be effected. Whitney v. Higgins, 547.

7. Persons who acquire interests by conveyance or incumbrance after suit brought, need not be parties. Ib.

PARTNERSHIP AND PARTNERS.

See CONVEYANCE, 10, 11, 12, 13, 14.

1. Where there is nothing in the constitution of a joint-stock-company which regulates the remedies of the shareholders, as between themselves, the general law of partnership must govern them. Bullard v. Kinney et al., 60. 2. Where two shareholders in such company sold to the company goods to a large amount, and afterwards, during the existence of the company, sold their stock to A, and assigned their account for such goods to B, who sued such company on said account by attachment: Held, that such action could not be maintained, there having been no final settlement of the partnership accounts, no balance struck, and no express promise on the part of the individual members to pay their ascertained portion. Ib.

3. The assignees of such account were placed in no better situation by the assignment, to sue, than the assignors before the assignment. Ib.

4. Where a partnership exists between two persons in the purchase of goods, and they subsequently bring suit to recover their value from a trespasser who has seized them: Held, that one partner is competent to execute a release in the name of himself and co-partner. Perlberg et al. v. Gorham, 120.

PLEADINGS.

See PRACTICE.

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. Under section forty-six of the Code there are only two classes of defence allowed. The first consists of a simple denial; and the second, of the allegation of new affirmative matter. And as the Code has abolished all distinctions in the forms of action, and requires only a simple statement of the facts constituting the cause of action or defence, these two classes of defence must be the same in all cases. Piercy v. Sabin et als., 22.

3. The intention of the Code is to adopt the true and just rule that the defendant must either deny the facts as alleged, or confess and avoid them. Ib.

4. Where new matter exists, it must be stated in the answer.

Ib.

5. New matter is that which, under the rules of evidence, the defendant must affirmatively establish. If the onus of proof is thrown upon the defendant, the matter to be proved by him is new matter.

Ib.

6. A defence that concedes that plaintiff once had a good cause of action, but insists that it no longer exists, involves new matter. Ib.

7. The Code makes no distinction between different classes of new matter. All new matter of defence must be stated in the answer. Ib.

8. Two of the leading ends contemplated by the Code are, simplicity and economy. As contributing to the attainment of these ends, it was the intention of the Code to require the pleadings to be so framed as not only to apprise the parties of the facts to be proved by them respectively, but to narrow the proofs on the trial. Ib.

9. A sham answer, is one good in form but false in fact, and not plead in good faith. It sets up new matter which is false. Ib.

10. A complaint which alleges that the plaintiffs were, on a certain day, the owners and proprietors of a certain valuable water-ditch for the purpose of conveying water, and at which time and place the defendants were also the owners of a certain other water-ditch for the purpose aforesaid, and that afterwards, on the same day and year, at etc., aforesaid, the said defendants' ditch was so badly and negligently constructed and managed, and the water therein so negligently and carelessly attended to, that said ditch broke and gave way, and the water therein flowed over and upon the ditch of plaintiffs, greatly damaging and injuring the same, and carrying down therein and thereon great quantities of rock, stone, earth, and rubbish, and break ing said plaintiffs' ditch, and depriving them of the use and profit of the water flowing therein, to said plaintiffs' damage of $3000, and thereof they bring suit, is sufficient. Tuolumne County Water Co. v. Columbia and Stanislaus Water Co., 193.

11. In an action for a trespass upon land, alleged by the complaint to be in the possession of the plaintiff at the time of the unlawful entry thereon by the defendants, it is not a sufficient traverse of the allegation of possession for the defendants to aver, in their answer, that to the best of their information and belief they did not commit the grievance upon any land in the lawful possession of plaintiffs. McCormick et al. v. Bailey, 230.

12. The averment in the complaint, that the plaintiff is the owner of the note and mortgage in suit, is a sufficient answer to a demurrer, on the ground that it does not appear by the complaint that the plaintiff is the holder of the note. Rollins v. Forbes and Wife, 299.

13. The law supposes that every suitor will state his case as strongly as the facts warrant; and hence the rule that a pleading is taken most strongly against the party making it. Green v. Covillaud, 317.

14. It is a cardinal rule in equity, as in all other pleading, that the allegata and probata must agree, and that averments material to the case omitted from the pleading can not be supplied by the evidence. Ib.

15. A count, in the ordinary form of counts in indebitatus assumpsit, for goods sold and delivered, and money paid and expended, is sufficient, under our system of practice. If the allegations are deemed too general, the defendant can apply for and obtain an order upon the plaintiff to furnish a bill of particulars. Freeborn, Goodwin et al. v. Glazer, 337.

16. To a complaint sworn to, on a promissory note payable in a sum certain, "in monthly pro rata instalments, out of the first net proceeds from sale of water," and an allegation that defendants turned off the water from the ditch, the proceeds of the sales of which water were to be applied to the payment of the note, and thereby diminished the quantity, etc.-the defendant answered by admitting the making of the note, but denied, "to the best of his knowledge, information, and belief, all and singular the other allegations in said complaint:" Held, that such answer did not amount to a specific denial of the allegations of the complaint. Stewart v. Street & Co., 372. 17. In an action against the sureties on an injunction-bond, the condition of which is, that the plaintiffs in the suit for whom the sureties undertook, should pay all damages and costs that should be awarded against the plain

tiff by virtue of the issuing of said injunction by any competent Court, and the complaint did not aver that any damages had been awarded: Held, that such complaint is fatally defective. Tarpey v. Shillenberger, 390.

18. In an action for damages for breaking defendants' dam and flooding the plaintiffs' mining-claim, where the complaint is in one count, and charges that "the defendants' said reservoir, by reason of some defect in its construction, insufficiency for the purpose for which it was constructed, or carelessness and mismanagement on the part of the said defendants, broke away," etc.: Held, that the complaint is sufficient. Hoffman v. Tuolumne County Water Company, 413.

19. Whether such negligence arose from the want of care in constructing the dam, or want of care in letting off the water, is not sufficiently material, under our system of pleading, to require separate counts. Ib.

20. Where the plaintiff averred in her complaint, in a suit brought for her distributive share of the estate of an alleged deceased husband, that the deceased made proposals of marriage to her, which she accepted, and consented to live with him as his true and lawful wife; and that, in accordance with his wishes, she thenceforth lived and cohabited with him as his wife, always conducting herself as a true, faithful, and affectionate wife should do: Held, that these were insufficient averments of the existence of a marriage, and that the facts averred were only prima facie evidence of marriage. Letters v. Cady, 533.

21. There are six causes for which a demurrer may be interposed, under section forty of the Code, and unless a ground of demurrer be included under one or more of such causes, it can not be sustained. Hentsch v. Porter, 555.

22. A default admits only the facts alleged in the complaint. Ib.

23. A defective allegation of a fact may be cured by default or verdict; but not so the entire absence of any allegation whatsoever. Ib.

24. The failure of the plaintiff to allege in his complaint in a suit on such claim, its presentation to and rejection by the administrator, is an objection that the complaint does not state facts sufficient to constitute a cause of action. Ib.

25. But the cause of action mentioned in the Code is a present subsisting cause of action, entitling the plaintiff to judgment at the time the action was commenced. Ib.

26. A defect which will defeat the plaintiff's present right to recover, in whole or in part, is a good ground of demurrer. Ib.

POSSESSION.

See ABANDONMENT, 3; BILL OF SALE; CRIMINAL Law, 8, 9; TRESPASS. 1. The actual adverse possession of land by another party, at the time of the conveyance, will be notice to the purchaser, whose grantors only claim by a possession short of the period fixed by the Statute of Limitations. Partridge v. McKinney, 181.

2. Where the whole title of all the parties rests upon possession only, and A sells land to B by a conveyance not recorded, and afterwards, while B is in possession, claiming the entire property as his own, A sells to another party by deed, duly acknowledged and recorded, the second purchaser will be deemed to have purchased with notice, and will not, therefore, be considered a subsequent purchaser in good faith. Ib.

3. In such a case, B will be permitted to show the real state of the case as