JUSTICES' COURTS. 1. JUSTICE'S COURT OF SAN JOSE--CRIMINAL JURISDICTION OF.-The justice's court of the city of San Jose, organized under the charter of 1874, has jurisdiction to try and determine a criminal action for one of the public offenses enumerated in section 115 of the code of civil procedure, charged to have been committed within the corporate limits of said city, until the organization of the police court for said city, and the election of the police judge thereof, under the general law of April 1st, 1880, relative to courts of justice. In re Carrillo. Cal. 104 2. JUSTICES OF THE PEACE-TERM OF OFFICE OF-ELECTION.-The act of 1880, amending section 110 of the code of civil procedure, fixing the term of office of justices of the peace at two years from the first day of January next succeeding their election, is constitutional. Such officers are to be elected in the year 1884. Bailey v. Supervisors of San Joaquin County. Cal. 185. See CERTIORARI, 2, 5, 7. LABORER. See CHINESE RESTRICTION ACT, 1, 7–9, 11. 12. LANDLORD AND TENANT. 1. LANDLORD AND TENANT-HOLDING OVER-NOTICE TO INCREASE RENT.-A tenant of demised premises, holding over after the expiration of his term, is presumed in law to hold over as tenant at the same rent he had previously paid, if no new agree. ment is made. But if he has notice from the landlord that if he retains possession he must pay a higher rent, specified as to amount at the time, he must be deemed to assent to pay such increased rent. Reitteman v. Brandenburg. Col. 246. See LEASE. LARCENY. J. LARCENY INFORMATION-ALLEGATION OF OWNERSHIP.-An information for larceny which alleges that "the property taken was the personal property in the possession of Frederick Schwartz, and that the same was taken from the person and against the will of him, the said Schwartz," sufficiently describes the ownership of the property. People v. Hicks. Cal. 420. 2. LARCENY-Value of PropERTY, HOW STATED-INFORMATION.-An information for larceny need not allege that the value of the property stolen was "in current coin of the United States." People v. Righetti. Col. 606. 3. LARCENY IN SECOND DEGREE-PETIT LARCENY-VERDICT.-A verdict finding the defendant guilty of larceny in the "second degree," is equivalent, under section 486 of the penal code, to a verdict for petit larceny. Id. 4. PETIT LARCENY-PUNISHMENT FOR-FINE AND IMPRISONMENT.-A judgment upon a conviction for petit larceny may provide for a punishment by fine or imprisment, or both. If both are ordered, the judgment may direct that the defendant be further imprisoned until such fine be paid, in conformity with section 1205 of the penal code. Id. 5. LARCENY EVIDENCE OF SIMILAR OFFENSE NOT ADMISSIBLE.-On a trial for larceny, evidence tending to show that the defendant had in his possession property taken by other thefts at the same time, is inadmissible. People v. Cunningham. Cal. 506. 6. SHORT-HAND REPORTER'S NOTES ON TESTIMONY TAKEN ON PRELIMINARY EXAMINATION.-On such trial the reporter's notes in short-hand of the testimony of a witness taken on the preliminary examination of the defendant, are not admissible, although the witness may have died before the trial, and the 'correctness of such notes are proved by the reporter. Id. 7. WRONGFUL APPROPRIATION OF WATER-COMPLAINT FOR, WHEN SUFFICIENT.-A complaint whieh avers that the defendant, "with intent to injure and defraud, etc., without knowledge of the owners, and with intent to evade payment for the water taken thereby, made connections and maintained the same with certain mains and service-pipes of the Spring Valley Water Works, for the purpose of taking water therefrom for the supply of certain tanks and water-works kept and maintained" by the defendant, sufficiently charges the offense created by section 499 of the penal code. Ex parte Helbing. Cal. 687. LEASE. 1. LESSOR AND LESSEE-ABANDONMENT OF LEASE-RECOVERY OF AMOUNT.-A lessee, 214. - The 2. LEASE · CONTRACT IN WRITING - ALTERATION OF BY PAROL AGREEMENT. 4. THE ASSIGNMENT OF THE TERM BY THE LESSEE CREATES A PRIVITY OF ESTATE be- 5. COVENANTS TO PAY RENT AND TAXES LIABILITY OF ASSIGNEE OF LESSEE.-Cove- 6. THE JUDGMENT AWARDED THE PLAINTIFFS affirmed after a construction of the cove- See LANDLORD AND TENANT. LICENSE. See NUISANCE, 9. LIENS. See ASSIGNMENT, 2; ATTACHMENT, 2; MECHANICS' LIENS; MORTGAGE; REDEMPTION, 1, LIFE INSURANCE. See INSURANCE, 7, 8. LOAN. See CORPORATIONS, 1; STATUTE OF LIMITATIONS, 9. LOCATION. See MINES AND MINING, 4-9; PUBLIC LANDS, 1-6. LODE. See MINES AND MINING. MAINTENANCE. See ASSIGNMent, 6. MALICE. See EVIDENCE, 7; MALICIOUS PROSECUTION; MURDER AND MANSLAUGHTER, 1 MALICIOUS PROSECUTION. 1. MALICIOUS PROSECUTION-PROBABLE CAUSE-QUESTION FOR COURT.-In an action 2. THE SAME-MEASURE OF DAMAGES -- REASONABLE EXPENSES.-In such action the plaintiff, if successful, is not entitled to recover all that he paid out and expended in the defense of the former suit, but only so much thereof as was reasonably laid out and expended. Id. 3. ACTION FOR MALICIOUS PROSECUTION OF CIVIL ACTION.-In this state an action can be maintained for the malicious prosecution of a civil action in which no process other than the summons was issued. Id. 4. MALICIOUS PROSECUTION MEASURE OF DAMAGES-DAMAGES AS PUNISHMENT.--Damages in an action for malicious prosecution are limited to such an amount as will compensate the plaintiff for his pecuniary loss, for injury to his person, and for his mental and physical suffering. Damages as a punishment to the defendant are not allowable. Murphy v. Hobbs. Col. 653. 5. THE SAME-ACTUAL AND IMPLIED MALICE-PROBABLE CAUSE-WANT OF.-In such action malice may be implied from a want of probable cause. Probable cause is such a state of facts known to and influencing the prosecutor, as would lead a man of ordinary caution and prudence, acting conscientiously, impartially, reasonably, and without prejudice, upon facts within his knowledge, to believe or entertain an honest and strong suspicion that the person accused is guilty. If probable cause for the arrest exists the prosecutor is not liable, although he may have been influenced by improper motives. If a want of probable cause appears, evidence of the acts and conduct of the prosecutor, showing actual malice, is admissible, for the purpose of enhancing the compensatory damages. Id. MANSLAUGHTER, See MURDER AND MANSLAUGHTER, MARRIAGE CONTRACT. See ABATEMENT, 1. MARRIED WOMEN. 1. MARRIED WOMAN, WHEN MAY SUE ALONE-DESERTION.-A married woman may sue alone to recover for personal injuries sustained by her through the negligence of the defendants, when she is living separate and apart from her husband, by reason of his desertion of her. Andrews v. Runyon et al.__Cal. 81. 2. DESERTION-OFFER TO RETURN AND REFUSAL-HUSBAND AND WIFE.-A wife's desertion of her husband is cured if she, before the expiration of the statutory period required to make the desertion a cause of divorce, and when in the vicinity of her husband's home, offered to go back and resume the performance of her marital duties, and he refuses to receive her. Under such circumstances an actual physical return is not necessary. From the date of his refusal the husband is deemed to have deserted the wife. Id. See HUSBAND AND WIFE. MASTER AND SERVANT. 1. MASTER AND SERVANT-RIGHTS OF SERVANT DISCHARGED BEFORE END OF TERM.A servant who is employed for a definite period and discharged before the expiration thereof, without fault on his part, may either treat the contract as rescinded, and at once bring an action for the value of the services rendered; or he may treat the contract as continuing, and sue for a breach thereof, and recover his probable damages occasioned by the breach; or, in some cases, he may defer suit until the end of the term, and sue for the actual damage he has sustained, which, however, can in no case exceed the wages for the entire term. Saxonia M. and R. Co. v. Cook. Cal. 453. 2. THE SAME-MEASURE OF DAMAGES WHEN SERVANT MUST SECURE OTHER LABOR. — The measure of damages in the latter class of cases is not the amount of wages stipulated in the contract for the entire term, but the actual loss, to be established by proof, although the amount of the agreed wages may be taken as the measure of damages prima facie, or in the absence of any other showing. The servant cannot recover the wages accruing for the balance of the term as a matter of course. is bound to use reasonable efforts to secure labor elsewhere. If he has secured labor elsewhere, or by reasonable diligence might have done so, the amount received, He or that might have been received, for such labor, must be deducted from the amount of the damage occasioned by the breach of contract of employment. The burden of showing that such other labor was or might have been obtained, is on the defendant. Id. 3. THE SAME-BREACH OF CONTRACT -HOW ALLEGED-WRONGFUL DISCHARGE-In an action to recover damages for breach of a contract, by the terms of which the defendant agreed to employ the plaintiff for a certain term, and at stipulated wages, an averment that the defendant neglects and refuses to keep and perform its said agreement, to the damage of the plaintiff," is not a sufficient allegation of the breach of contract. If the breach consisted in a wrongful discharge of the plaintiff before the end of the term of employment, such wrongful discharge, as a breach of the contract, should be averred as the fact constituting the cause of action. Id. See CORPORATIONS, 9, 10; NEGLIGENCE, 3, 8, 9. MEASURE OF DAMAGES. See CONTRACT, 1, 3;-EJECTMENT, 1; Fraud, 5; MALICIOUS PROSECUTION, 2, 4; MASTER AND SERVANT; NUISANCE, 10, 11; SALE, 1; TELEGRAPH COMPANIES, 1, 2; WARRANTY, 1. MECHANICS' LIENS 1. MINING CLAIM, DEFINITION OF-MECHANIC'S LIEN.-A "mining claim," as the term is used in the statutes of the United States, is that portion of a vein or lode and of the adjoining surface, or of the surface and subjacent material, to which a claimant has acquired the right of possession by virtue of a compliance with the laws of the United States and the local rules and customs of miners. Independent of acts of congress, providing a mode for the acquisition of title to the mineral lands of the United States, the term "mining claim" has always been applied to a portion of such lands to which the right of exclusive possession and enjoyment, by a private person or persons, has been asserted by actual occupation, or by compliance with local mining laws, or rules, usages or customs. It is not applicable to land, the title to which is held under a Spanish or Mexican grant, although such land is mineral in character, consequently a statute, creating a mechanic's lien, under certain circumstances, on "mining claims," is not applicable to mineral land held under a Spanish or Mexican grant. Williams v. Santa Clara M. Co. Cal. 616. 2. MORTGAGE-MECHANIC'S LIEN, PRIORITY OF.-The lien of a recorded mortgage or of a deed of trust given as security for a debt takes priority over a subsequent mechanic's lien, under section 1186 of the code of civil procedure. Id. 3. NOTICE NOT TO BE RESPONSIBLE FOR IMPROVEMENT.-Section 1192 of the code of civil procedure requiring the "owner or person having or claiming an interest" in lands on which an improvement is erected, within three days after he has obtained knowledge of the intended improvement, to give notice that he will not be responsible for the same, and providing that, in default of such notice, his interest shall be subject to the lien for such improvement, filed in accordance with the provisions of the code, does not apply to nor affect the interest of a prior mortgagee under a recorded mortgage. Id. MEXICAN GRANT. See PUBLIC LANDS, 3, 4, 6. MEXICAN LAW. See ESTATES OF DECEASED PERSONS, 1. MINES AND MINING. 1. PATENT OF MINERAL LANDS FROM THE UNITED STATES-RIGHTS OF PATENTEE— INTERFERENCE BY A STRANGER.-Where defendants have obtained a patent of mineral land from the United States government, after all the preliminary steps required by statute had been duly taken, including the sixty days' publication of notice, and where no adverse claim was filed by the complainants during such publication, but after the publication of notice had been completed, the complainants objected before the local land office, and before the general land department, to defendants' right to a patent, and after hearings on said objections the defendants, title was sustained and a patent issued to them. Held, that the complainants, not being connected with nor having any interest in the title, cannot object to the patent on the ground of any alleged wrong which the patentees may have perpetrated against the government. Wright et al v. Dubois et al. (U. S. Cir. Ct.) Col. 153. 2 THE SAME.--The government, as a land-owner, offers its lands for sale upon certain prescribed conditions, compliance with which is a matter of settlement between the owner and purchaser alone, and with which no stranger to the title can complain. Publication of notice is a process bringing all adverse claimants into court, and if no adverse claims are presented, it is conclusively presumed that none exist, and that no third parties have any rights or equities in the lands. Thereafter the only right or privilege remaining to any third parties is that of protest or objection, filed with the land department and cognizable only there; if sustained by the department, the proceedings had by the applicant are set aside; if overruled, the protestant or objector is without further right or remedy. Id. 3. LODE SITUATE WITHIN PLACER MINE-RIGHT TO POSSESSION OF.-As against a mere intruder, the grantees under a placer patent are entitled to the possession of a lode situated within the placer grant, although at the time of the application for such patent the applicants knew of the existence of such lode. Iron Silver M. Co. v. Reynolds et al. (U. S. Cir. Ct.) Col. 449. 4. MINING LAWS-LOCATION OF PLACER CLAIM--STATUTES AFFECTING.-The provisions of section 2324 of the United States revised statutes, requiring a mining loca tion to be distinctly marked on the ground so that its boundaries may be readily traced, that a record of the claim should be made, and that annual work to the value of one hundred dollars should be done thereon, apply both to placer and to lode locations. A state statute or a rule of miners which attempts to dispense with such requirements is void. Sweet v. Ronk et al. Col. 116. 5. POSSESSION OF CLAIM-SUBSEQUENT LOCATION.-Mere possession of a mining claim, without a valid location, is not sufficient to hold such claim as against a subsequent location made in accordance with law. Id. 6. LOCATION OF MINE-CERTIFICATE OF REQUISITES AND FUNCTIONS OF.-The location certificate of a mine differs from ordinary documentary muniments of title in that it is not a title, nor proof of title, nor does it constitute or of itself establish the possessory right of a claimant to which it relates. It is purely a creature of statute; its purpose and functions are two-fold; when duly recorded it becomes notice to the world of the facts therein set forth, namely, a description of the premises claimed, and by whom and when located, in order to secure the discoverer or claimant against others seeking to locate the same ground, and is thus constructive notice of the claimant's possession. In addition the filing of such certificate is one of the statutory steps requisite to constitute a perfected mining location. Stepy et al. v. Stark et al. Col. 663. 7. THE SAME-LOCATION, HOW MADE-CONTENTS OF CERTIFICATE.-In order to perfect a location of a quartz mine, four steps are necessary. First, the sinking of a discovery shaft upon the lode ten feet in depth, or deeper if necessary to disclose mineral in place; Second, the posting of a notice at the place of discovery, giving the name of the lode, the name of the locator and the date of discovery; Third, marking the surface boundaries of the claim by posts in the manner pointed out by statute; Fourth, making and recording a location certificate containing the name and description of the lode, the name of the locator and the date of the location. The statute does not require such certificate to contain a statement that the discovery shaft has been sunk the requisite depth nor that the discovery notice has been posted or bound ary marked. Id. 8. THE SAME-PROOF OF LOCATION-ORIGINAL AND AMENDED CERTIFICATE.-When the right of possession is founded upon an alleged compliance with the law relating to a valid location, all the necessary steps therefor, aside from the making and recording of the locating certificate, must, when contested, be established by proof outside of such certificate. The record of such certificate is proof of its own performance, and is prima facie evidence of all which the statute requires it to contain, and which are therein sufficiently set forth; and when the certificate for any reason is deemed void, it is admissible in evidence, in a contest affecting the location, in connection with a valid amended certificate correcting the defects of the original. Id. 9. THE SAME-EFFECT OF AMENDED CERTIFICATE EVIDENCE OF.-Such amended certificate, under the statute, cannot create a right of possession or location in the premises claimed under the first location, which did not exist prior to the filing of such ad |