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nolds, 3 Cal. 396; Henly v. Hastings, 3 Cal. 341; Adams v. Town, 3 Cal. 247; Crane v. Brannan, 3 Cal. 192; Webb v. Hanson, 3 Cal. 65; Hartman v. Williams, 4 Cal. 254; Harlan v. Smith, April T. 1856; Whipley v. Flower, id; Robb v. Robb, Jan. T. 1856; Mattoon e. Eder, id; Dernist v. Delessert, id; Grewell v. Henderson, 5 Cal. 465; Robinson v. Howard, 5 Cal. 428; Coffinberry v. Horrell, 5 Cal. 493; Walker v. Parker, Oct. T. 1855; Carpentier v. Hark, 5 Cal. 406; Wallace v. Bennett, Jan. T. 1855; Taylor v. Randall, 5 Cal. 79; People v. Talmadge et al. July T. 1856; Pico v. Carillo, Jan. T. 1857; Parke v. Williams, id; Dorente v. Sullivan, id.


243. To exclude a juror under our criminal code, on the ground of implied bias, he must have formed or expressed an unqualified opinion or belief. People v. McCauley, 1 Cal. 379.

244. The testimony of a juror cannot be received to defeat or impeach his own verdict. People v. Baker, 1 Cal. 403; Amsbury v. Dickhouse, 4 Cal. 102.

245. The constitution gives the right of trial by jury in every case, and it cannot be waived by implication. Smith v. Pollock, 2 Cal. 92.

246. A juror must be a resident of the county. People v. Peralta, 4 Cal. 175.

247. The withdrawal of a juror is no ground for reversal. Benedict v. Cozzens, 4 Cal. 381.

248. In chancery cases the parties are not entitled to trial by jury. Walker v. Sedgwick, 5 Cal. 192.

249. A juror not an elector of the county cannot be accepted, as a person has no right to waive any of the constitutional rights provided for his protection. People v. March, July T. 1855.

250. If a juror separates, in a criminal trial, from the balance of the jury, so that he might have been improperly influenced by others, the verdict will be set aside. People v. Backus, 5 Cal. 275.

251. A juror has no right to separate from the others, without permission of the court, even though the defendant's counsel consents. Id.

252. The defendant has a right, before challenging a juror, to question him as to his feelings of bias or prejudice. Id.

253. In chancery cases the parties have no right to demand a trial by jury. Cahoon v. Levy, 5 Cal. 294. 254. In proceeding against a garnishee, the parties are entitled to a jury trial. Id.

255. The qualifications of a juror need not be established by the best evidence. People v. Freeland, Jan. T. 1856.

256. The answer of a juror as to his qualifications is to be taken as prima facie true. Id.

257. His naturalization papers need not be produced to show his citizenship. His own testimony on that point is sufficient. Id.

258. A party who accepts a juror, knowing him to be disqualified, is estopped from afterwards availing himself of such disqualification. People v. Stonecifer, Oct. T. 1856.

259. Charge to jury. People v. McCauley, 1 Cal. 379; Carrington v. P. M. S. S. Co. id. 475.

People v. McCauley, 1 Cal. 379; Kelley r. Cunningham, 1 Cal. 365; Russell v. Elliott, 2 Cal. 245; Sampson v. Shaffer, 3 Cal. 107; Zane v. Crowe, 4 Cal. 112; Morey v. Starbuck, 4 Cal. 274; People v. Stevens, July T. 1855; People v. Keyes, id.


260. The proceedings before a justice must show his jurisdiction over the subject matter-it cannot be inferred. Merryfield v. Batchelder, Jan. T. 1854.

261. No nice strictness of pleading is necessary before justices. Cronise v. Carghill, 4 Cal. 120. 262. A written petition is not necessary in action before justices. The mere filing of an account is sufficient. Warr & Co. r. Carney, July T. 1854.

263. Where the legislature has conferred upon justices jurisdiction of an action to determine the right to mining claims, it has not conferred power to determine conflicting rights to the use of water. Hill v. Newman, 5 Cal. 445.

264. Where a judgment of a justice is for an amount exceeding his jurisdiction, the county court, on appeal, should dismiss the whole case. Ford v. Smith, 5 Cal. 331.

265. Justices of the peace can take no jurisdiction by implication. Vannelten v. Jilson, Jan. T. 1856. 266. The plaintiff may remit his damages where they exceed the jurisdiction of the court, and it is error to refuse it. Grass Valley Q. M. Co. v. Stackhouse, Oct. T. 1856.

267. It is error to refuse to permit the plaintiff to be introduced as a witness to prove the loss of certain mining rules, as a predicate for the introduction of secondary evidence of their contents. Id.

268. The legislature cannot confer on justices of the peace any jurisdiction where the amount in controversy exceeds two hundred dollars. Small r. Gwinn, Oct. T. 1856; Zander v. Coe, 5 Cal. 230.

269. Their jurisdiction in forcible entry and detainer cases arises from the nature of those cases, they being quasi criminal, and coming under the head of special cases, as that term is used in our constitution. The legislature has the right to dispose of the jurisdiction in those cases according to its own wisdom, and that action would be maintainable as well for a mining claim as for any other land where the circumstances would warrant it. Id.

Benedict v. Bray, 2 Cal. 251; Hernandez v. Simon, 4 Cal. 182; Hambly v. Meeker, Oct. T. 1855.


270. The writ of mandamus is a proper remedy to compel the district court to restore an attorney whose name has been stricken from the rolls by order of the court. The People v. Turner, 1 Cal. 143.

271. In a suit for a mandamus against the treasurer, the judgment for costs was reversed, and the judgment for a mandamus affirmed with costs. McDougal v. Roman, 2 Cal. 80.

272. In an application for a mandamus, the statute does not require a replication, except where in the discretion of the court it is necessary to explain or avoid facts set up in defendant's answer. Fowler v. Pierce, 2 Cal. 165.

273. A mandamus may issue to compel the controller of state to account to a member of the legislature for the daily compensation fixed by law. Id.

274. A mandamus lies to compel a judge of the district court to enter judgment on the report of a referee. Russell v. Elliott, 2 Cal. 245.

275. A mandamus is not the proper remedy where an inferior court refuses to enter judgment for costs. The party complaining may appeal or bring his action for costs. Paralta v. Adams, 2 Cal. 594.

276. This writ lies to compel the county clerk to certify to the election of an associate justice of the court of sessions. Gorham v. Campbell, 2 Cal. 135.

277. A writ of mandamus will not lie where there is any other specific, speedy and adequate remedy. The People v. Olds, 3 Cal. 167.

278. The statute of this state is but a reaffirmance of the principles of the common law as regards this writ. Id.

279. Title to an office cannot be tried by this writ. Id.

280. Mandamus will not issue to compel a person, inferior officer, court or corporation, to act in any particular manner where such person, etc. is invested with discretionary power. The People v. Bell, 4 Cal. 177. 281. A complaint in mandamus against the controller is bad if it fails to allege that there is "money not

otherwise appropriated by law," out of which the compensation in question is to be paid. Redding v. Bell, 4 Cal. 333.

282. A party against whom a judgment is sought to be enforced, although not a party to the mandamus, may apply for writ of certiorari. Clay v. Hoagland, 5 Cal. 476.

283. The writ of mandamus can only issue to compel the performance of an act of duty clearly enjoined by law, and in a case where the party has no other plain, speedy and adequate remedy. People v. Draper, Jan. T.


Selkirk v. Sacramento County, 3 Cal. 323; Washington v. Page, 4 Cal. 388; People v. Bell, id. 177; Williams v. Smith, Jan. T. 1856; People v. Draper, Jan. T. 1857; Merced Mining Co. v. Fremont, Jan. 1857; Thomas v. Armstrong, Jan. T. 1857.


284. No particular form of words is necessary to constitute a mortgage, and where two instruments, taken together, described the property and the amount of indebtedness, and conveyed the premises as security for the indebtedness, it is a sufficient mortgage. Woodworth v. Guzman, 1 Cal. 203.

285. A court of equity will, as against the mortgagor, correct a mistake in the description of the mortgaged premises. Id.

286. Where a power of sale is contained in a mortgage, and the mortgagee becomes the purchaser at a sale under such power, the equity of redemption still attaches. Benham v. Rowe, 2 Cal. 387.

287. A mortgage is merely a security for the payment of money, and no breach of the conditions can possibly vest the title in the mortgagee. Godeffroy v. Caldwell, 2 Cal. 489.

288. A sale of real estate under a decree for the foreclosure of a mortgage, is subject to redemption under the two hundred and twenty-ninth section of the practice act. Kent v. Laffan, 2 Cal. 595.

289. A mortgage not recorded is void only as to subsequent purchasers or mortgagees without notice. Rose . Munic, 4 Cal. 173.

290. An unrecorded mortgage is good against a mechanic's lien which attached subsequent to the execution of the mortgage. Id.

291. In a mortgage of the separate property of the wife, if she is not a party to the action for foreclosure, her rights remain unaffected by the decree. Powell v. Ross, 4 Cal. 197.

292. A mortgage follows the transfer of the note it is made to secure, with the full effect of a regular assignment. Ord v. McKee, April T. 1855.

293. A mortgage unsatisfied upon the records, is a subject of sale. 1855.

Jamestown Bridge Co. v. Peters, July T.

294. Our statute forbids a mortgagee from recovering the mortgaged premises, and confines his remedy to a foreclosure. Guy v. Ide, Jan. T. 1856.

Moore v. Reynolds, 1 Cal. 351; Johnson v. Dopkins, 3 Cal. 391; Shafer v. Bear River, A. W. & M. Co. 4 Cal. 294; Cheever v. Fair, 5 Cal. 337; Gorham v. Meyer, id. 322; Davis v. Fleishaker, id. 244; Dillon v. Byrne, id. 455 Guy v. Wood, id. 62; Gronfrier v. Minturn, id. 492; Bennett v. Taylor, id. 502; Sherwood v. Dunbar, Jan. T. 1856; Jones v. Post & Co. id; Spring v. Hill, id; Harlan v. Smith, April T. 1856; Barrailhet v. Battelle, April

T. 1857.


295. Where parties have located a mining claim upon the banks of a stream, and are using the bed of such stream for the purpose of working their claim, any subsequent erection or dam which will turn the water back on such claims, or hinder them from being worked, is an encroachment upon the rights of said parties, and they are entitled to recover damages. Sims v. Smith, Jan. T. 1857.

296. The policy of this state in conferring the privilege of working the mines, equally confers the right to divert the streams from their natural channels. Irwin v. Phillips, 5 Cal. 140.

297. The right of mining can only be exercised on the public lands. Spring Creek Company, 5 Cal. 395. See Water Companies, Corporation.


2. If improper evidence is permitted to be given to the jury, a new trial will be granted, unless such could have had no influence on the verdict. Santillan v. Moses, 1 Cal. 92.

299. Where it is apparent that in case a new trial should be granted the verdict of the jury must be in favor of the plaintiff, a judgment in his favor will not be disturbed. Tohler v. Folsom, 1 Cal. 207.

30. A new trial will be granted where the court below has given an erroneous instruction to the jury. Younge v. P. M. S. S. Co. 1 Cal. 353.

301. The affidavit of a juror, made after verdict, that he had formed and expressed an opinion before the trial, cannot be received on a motion for new trial. People v. Baker, 1 Cal. 403.

302. The affidavits of the witnesses should, if practicable, be procured, setting forth the facts to which they can testify in case a new trial should be granted. Rogers v. Huie, 1 Cal. 429.

303. On a motion for new trial on the ground of newly discovered evidence, the newly discovered evidence must be fully set forth. Perry v. Cockran, 1 Cal. 180; Bartlett v. Hoyden, 3 Cal. 55.

304. After the expiration of the term of the district court it has no power to grant a new trial or set aside a judgment. Baldwin v. Kramer, 2 Cal. 582; People v. Lafarge, 3 Cal. 134.

305. The refusal or granting a new trial will not be disturbed, where the decision of the court is upon bare questions of fact. Speck v. Hoyt, 3 Cal. 413.

306. It is not necessary to dispose of a motion for a new trial at the term at which the case is tried. Survey . Wells, 4 Cal. 106.

307. The court has power to require the remittitur of a portion of the judgment, as terms for refusing a new trial. Benedict v. Cozzens, 4 Cal. 381.

308. A new trial should not be granted for newly discovered evidence, where such evidence is merely cumulative. Dopman v. Gavin, 5 Cal. 342; Live Yankee Co. v. Oregon Co. Jan. T. 1857.

309. It is no argument for a new trial that the court admitted improper evidence, unless it is shown that the same was objected to. Berri v. Fitch, Oct. T. 1856.

310. Surprise at the testimony of the defense, there being but one question involved, is not ground for a new trial on motion of plaintiff. He should have taken nonsuit. Live Yankee Co. v. Oregon Co. Jan. T. 1857.

Gonzalez v. Huntley, 1 Cal. 32; Paine v. P. M. S. S. Co. id. 33; Lawrence v. Collier, id. 37; Payne v. Jacobs, id. 39; Gunter v. Sanchez, id. 45; Johnson v. Pendleton, id. 132; Moore v. Reynolds, id. 351; Snow v. Halstead, id. 359; San Francisco v. Clark, id. 386; Elliott v. Osborne, id. 396; Dennison v. Smith, id. 437; De Briare. Minturn, id. 450; Drake v. Palmer, 2 Cal. 177; Ross v. Austill, id. 183; Hill v. White, id. 306; Cooke v. Stewart, id. 348; Brooks v. Lyon, 3 Cal. 113; Burritt v. Gibson, id. 396; Rich v. Davis, 4 Cal. 22; Grayson v. Guild, id. 122; Zane v. Crow, id. 112; Vermuele v. Shaw, id. 214; Gibriano v. McGill, Oct. T. 1854; Hoyt v. Saunders, 4 Cal. 345; Bryant v. Benicia F. Co. July T. 1855; Knowles v. Calderwood, Oct. 1855; Potter v. Seale, 5 Cal. 410; Lawson v. McGee, Jan. T. 1856; Battelle v. Conner, April T. 1856; Tibbets v. San Francisco, id; Love r. Watt, id; Watson v. McClay, 4 Cal. 288; Brown v. Tolles, April T. 1857.


311. Any person may abate a common nuisance, whether directly injurious to him or not. Gunter v. Geary,

1 Cal. 462.

312. All that part of a bay or river below low water, or low tide, is a public highway, and if any person appropriates it to himself exclusively, it is a detriment to the public. Id.

313. A house on fire and those in its immediate vicinity which serve to communicate the flames, is a nuisance which it is lawful to abate. Surocco v. Geary, 3 Cal. 69.

314. Where a nuisance by overflowing plaintiff's mining claim by means of a dam exists, the decree should order such a reduction of the dam as will prevent the overflow, or if necessary an entire abatement. Ramsay v. Chandler, 3 Cal. 88.

315. Filling up a lot in the bay of San Francisco, thus destroying or impairing the navigation of the bay, is not a nuisance. Eldridge v. Cornell, 4 Cal. 80.

316. The statute does not take away any common law remedy in the abatement of nuisances. Stiles v. Laird,
5 Cal. 120.

Ramsay v. Chandler, 3 Cal. 90; Cunningham v. Breed, 4 Cal. 384; Eberhard v. Tuolumne Water Co. id. 308;
Poinsett v. Taylor, Jan. T. 1856; Drake v. Palmer, 4 Cal. 11.


317. Where a person is in actual possession of an office and exercising the duties as officer de facto, the law presumes prima facie that he is entitled to it. People v. Olds, 3 Cal. 167.

318. At common law, quo warranto was the proper writ to try the title to an office. Id.

319. Our practice act has provided a speedy and adequate remedy at law to try the title to an office. Id.
320. In a proceeding against an officer de facto to compel the delivery of books, etc. of his office, the plaintiff
must show prima facie: 1. That a vacancy existed. 2. That he was elected to fill it. Doane v. Scannell, April

T. 1857.

321. The failure to approve an official bond is not the fault of the officer, it does not release his sureties, nor can it work a forfeiture of his office. People v. Scannell, April T. 1857.

322. An officer already in office is not compelled to sue out a mandamus to compel the action of a board of examiners on new bonds required of officers then in office. He may set up such failure to act in defending his right to the office. Id.

See Office.


323. Pleadings should set forth facts and not merely opinions. Snow v. Halstead, 1 Cal. 359.

324. The answer should set forth the true nature of the defense, and if it does not it cannot be insisted on. Walton . Minturn, 1 Cal. 362. 325. If several causes of action are improperly united in the same action, the objection must be taken either by demurrer or answer, or it will be deemed to have been waived. McCondray v. Simmons, 1 Cal. 393. 326. In a possessory action it is sufficient for the plaintiff to state session of the premises without setting out the evidence of his right. 327. The discovery of a fraud after suit brought, will entitle the include the fraud. Truebody v. Jacobson, 2 Cal. 269.

that he was lawfully entitled to the pos-
Godwin v. Stebbins, 2 Cal. 103.
plaintiff so to shape his action as fully to

328. The act that declares that "there shall be but one form of civil actions," extends only to the form and pleadings, dispensing with technicalities in the statement of the cause of action and defense, without regard to ancient forms. Dewitt v. Hays, 2 Cal. 463.

329. The distinction between law and equity continues as marked as ever, though there is no difference between the form of a bill in chancery and a common law declaration under our system. Id.

330. The general or special denial spoken of in the forty-sixth section of the practice act, is the genera. issue at common law. McLarren v. Spalding, 2 Cal. 510.

331. If the complaint does not show a good cause of action, the judgment will be reversed though no objec tion were taken below. Russell v. Ford, 2 Cal. 86.

332. A party defendant, whose name is unknown, may be sued by any name. Morgan v. Thrift, 2 Cal. 562. 333. A bond executed to defendant by the wrong name, may be described as given to him, and he may show that he was the party intended. Id.

334. A pleading is to be construed most strongly against the party pleading. Thayer v. White, 3 Cal. 228. 335. Objections to a declaration arising from matters of form are not the subject of demurrer. Ottero v. Bullard, 3 Cal. 188.

336. A description of land in a complaint by a certain name, is as good as by metes and bounds, if it can be rendered sufficiently certain by the evidence. Gill v. Castro, 5 Cal. 40.

337. It is not a good plea to allege that the note sued on is the property of another, and not of the plaintiff, without showing a good defense against such alleged owner not existing against plaintiff. Gushee v. Leavitt, 5 Cal. 152.

338. A claim for the possession of real property, with damages for its detention, cannot be joined in the same
complaint with a claim for consequential damages arising from a change of a road. Bowles v. Sacramento
Turnpike Co. 5 Cal. 224.

339. The objection that the complaint is not verified is cured by the answer. Kohlman v. Wright, July T.
340. Any objections to the pleadings, except the single objection, that the complaint does not contain suffi-
cient facts to constitute a cause of action, are cured by default. Id.

341. In pleading judgments of the probate court, it is necessary to set out the facts which give jurisdiction.
Smith v. Andrews, Oct. T. 1856; Wilson v. Dunbar, 4 Cal. 313, modified.

342. An answer that denies specifically all the allegations of the complaint, is equivalent to the general issue at common law; under it payment or failure of consideration may be proved, and it admits nothing but the execution of the instrument declared on. Brooks v. Chilton, Oct. T. 1856.

343. If the plaintiff wishes to prevent the defendant from interposing a general denial in suits upon promissory notes or bills of exchange, he should verify his complaint, which will render a sworn answer necessary. Id. 344. To maintain a bill in chancery in order to reach assets alleged to be fraudulently conveyed, it is necessary that facts and circumstances should be set forth, which will reasonably sustain the bill. Kinder v. Macy,

Jan. T. 1857.

345. A claim for damages for injuries done to plaintiff's possession, cannot be joined to a bill for an injunc tion. McCann v. Sierra Co. Jan. T. 1857.

346. A complaint which joins an action of trespass, quare clausum fregit, ejectment and prayer for relief in chancery is demurrable. Bigelow v. Gove, Jan. T. 1857.

347. A complaint is demurrable where it appears that there are other persons, not made parties, without whom the controversy cannot be settled. Hamlin v. Osborn, Jan. T. 1857.

348. Where plaintiffs bought of defendant a certain share of fruit growing in an orchard, and took a guaranty that share of plaintiffs should be at their disposal, and the plaintiffs brought action alleging a demand and

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refusal to deliver, the complaint was demurrable, as it should have contained an assignment of the breach of the guaranty or contract. Dabovich & Co. v. Emeric, Jan. T. 1857.

349. The objection that there is defect of parties, must be taken by demurrer or answer, but objection that the proof does not sustain the allegations may be taken on trial. Alvarez v. Brannan, April T. 1857. 350. Variance-Baker v. Bartol, Oct. T. 1856; Palmer v. Melvin, id; Farmer v. Cram, Jan. T. 1857. 351. Equity-Keifer v. Gates, Jan. T. 1857.


352. Our practice act has varied but little the substance of the pre-existing remedial law. ding, 2 Cal. 510.

McLaren v. Spal

353. Decisions contravening the plain letter of the statute are not binding as authority. Ingraham v. Gildermeester, 2 Cal. 161.

354. Where the court tries a case without a jury, the proper mode of reserving questions of law is to ask the court to decide them, and note the refusal in a bill of exceptions. Griswold v. Sharpe, 2 Cal. 17.

355. A party is not required to deny the genuineness of an indorsement of a note under oath. Youngs v. Bell, 4 Cal. 201.

356. The objection that notice to quit was not proven, should be made at the trial, and not in the supreme court on appeal. Gill v. Castro, 5 Cal. 40.

357. It is too late to raise the objection that a deed was not executed according to the Mexican law in force at the time, in the supreme court on appeal. 5 Cal. 467.

358. In the allegation that Hull & Co. are indebted, the words "and company" may be treated as surplusage, and the action proceed against Hull alone. Mulliken v. Hull, July T. 1855.

359. Where the original complaint does not charge the defendant with a wrongful conversion, nor that the act was done contrary to the will of the plaintiff, it is a nullity, and cannot be used for any purpose. Poinsett t. Taylor, Oct. T. 1855.

360. Where an offense is created by statute, and a penalty inflicted, it is necessary that the plaintiff should, in general, refer to such statute, but this rule does not apply to the pleadings in justices' courts, which are without regard to form. O'Callaghan v. Booth, Jan. T. 1856.

361. In an action of trespass against a sheriff, it is unnecessary to declare against the defendant as sheriff. Poinsett v. Taylor, Jan. 1856.

362. Under the practice act, where the complaint is verified, the answer should contain a specific denial of each controverted fact, and every material allegation, not denied, is taken as true. Anderson v. Parker, April T. 1856.

363. An action for the foreclosure of a mortgage is not governed by the fifty-sixth section of the practice act. Emeric v. Tams, April T. 1856.

364. Where the court ordered a part of the money collected on a judgment in one suit to be retained by the clerk and applied to the plaintiff's liability to defendant in another suit, it is error. Bell v. Walsh, Jan. T. 1857. 365. Objections to the introduction of evidence must be taken on the trial below, or they cannot be assigned as error on appeal. Covillaud v. Tanner, Jan. T. 1857.

366. Where no motion is made for a new trial, the appellate court cannot examine the evidence, to see whether it warrants the findings. Id.

367. Where answer was filed June sixth, and no effort was made to procure the testimony of a non-resident witness till October following, continance to procure his testimony was properly refused. Molle v. Kohlberg, Jan. T. 1857.

Amendment-Farmer v. Cram, Jan. T. 1857.

See each subject respectively.


368. Error in report of referee must be taken advantage of by written objections to entering judgment or nction for new trial. Porter v. Darling, 2 Cal. 72; Steamer McKim v. Redfern, July T. 1855.

39. The consent of a party to an order of reference must be in writing, or entered on the minutes of the court. Smith t. Pollock, 2 Cal. 92.

30. The statute concerning referees is in aid of the common law remedy by arbitration, and in no respect alters its principles. Tyson . Wells, 2 Cal. 122.

1. The court will not disturb the report of a referee or award of an arbitrator, unless the error complained of appear on the face of the report or award. Id.

An order of reference cannot be made without the consent of both parties. Benham v. Rowe, 2 Cal. 261. 3. A referee has no right to bring in an additional or amended report. Headly v. Reed, 2 Cal. 322.

374. If the report of a referee contains sufficient on which to base a judgment, it is the duty of the court to enter judgment in accordance with the report. Id.

35. An action to recover land and damages for its use, is not such a case as will authorize a reference by the court, without the consent of both parties. Geeseka v. Brannan, 2 Cal. 517.

576. The statute does not require referees to be sworn. Sloan v. Smith, 3 Cal. 406.

377. Judgment is rendered on the report of a referee as a matter of course, and the only mode to take advantage of it is by moving to set aside the judgment. Id.

378. The report of a referee, like the finding of a court, should state the facts found, and the conclusion of law thereupon. Lambert v. Smith, 3 Cal. 408; Tryon v. Stratton, Jan. T. 1856.

39. A reference in which there is no order of court or agreement filed with the clerk, or entered on the minutes, is a voluntary withdrawal of the case from the jurisdiction of the court, by which the court loses all control over the case. Heslep v. San Francisco, 4 Cal. 1.

380. The report of a referee may be set aside on the same grounds as a verdict. McHenry v. Moore, 5 Cal. 90. 31. A trial before a referee should be conducted in the same manner as before a court, and the evidence embodied in a bill of exceptions and certified. Goodrich v. The City of Marysville, 5 Cal. 430.

32 The report of a referee and the award of an arbitrator are essentially the same. Grayson v. Guild, 4 Cal. 122.

383. Trials before a referee are conducted in the same manner as before courts, and exceptions must be taken to the rulings of the referee in the progress of the trial, and embodied in the report of the referee, or made part thereof by being certified by him. Phelps v. Peabody, Jan. T. 1857.

Walton . Minturn, 1 Cal. 362; Smith v. Chichester, id. 409; Riva v. Berryesa, 2 Cal. 195; Muldrow v. Norris, id. 74; Russell v. Elliott, id. 245; Bates v. Vischer, id. 355; Case v. Maxey, July T. 1855; Lawson v. Worms, Oct. T. 1855; Ritchie . Davis, 5 Cal. 453; Johnson r. Dopkins, Jan. T. 1856; Frino v. Graves, id; Heslep v. San Francisco, 4 Cal. 1; Hoyt v. Saunders, id. 345; Peachy v. Ritchie, id. 205.


384. Affidavit on which a motion to change the place of trial is founded, must state the facts and circumstances from which the conclusion that a fair trial cannot be had is deduced. People v. McCauley, 1 Cal. 379. 385. It is insufficient to state that a jury cannot be selected from a certain portion of the county to give the prisoner an impartial trial. People v. Baker, 1 Cal. 403.

386. Granting a change of the place of trial is discretionary with the court, and subject to review only in cases of gross abuse. Sloan v. Smith, 3 Cal. 410; People v. Fisher, April T. 1856.

Toombs v. Randall, 3 Cal. 438; Keyes v. Sandford, Jan. T. 1855; Commisky v. White, id.


387. The finding of a jury or of a court passing on the facts in place of a jury, and deciding upon the weight of testimony, will not be reviewed unless impeached for fraud, misconduct, etc. Payne r. Jacobs, 1 Cal. 39. 388. The finding of a jury on a question of fact, is final and conclusive. Perry r. Cochran, 1 Cal. 150. 389. Improper evidence, though it may have had no influence on the verdict of the jury, will operate a reversal. Mateer v. Brown, 1 Cal. 231.

390. The verdict must be confined to the matters put in issue by the pleadings. Benedict v. Bray, 2 Cal. 251. 391. A verdict will be set aside where the damages are unjustifiable. McDaniel e. Baca, 2 Cal. 326.

392. The court may amend the verdict as to mere formalities. Perkins v. Garrotson, 3 Cal. 137.

393. The court may amend the verdict so as to make it conformable to the pleadings and evidence. Id.

394. The verdict should be recorded as it was rendered. Moody v. McDonald, 4 Cal. 297.

395. A verdict is void where the jury agreed that each member should set down a sum for the damages, that the aggregate amount should be divided by twelve and the quotient should be the verdict. Berryman v. Wilson, Jan. T. 1855; Gill r. Castro, id.

396. Jurors will be allowed to give evidence to substantiate their own verdict. Id.

397. A verdict which exceeds the amount claimed by the plaintiff can be cured by a remittitur of the excess, Butler v. Wright, July T. 1855.

398. A verdict will not be reversed unless impeached for fraud, misconduct or improper influences. Bernard v. Raglan, Jan. T. 1856,

399. The verdict of the jury simply in favor of the recovery of the property sued for does not authorize the court in awarding damages against the defendant. Peck v. Powell, Oct. T. 1856.

400. Excessive damages, in action for assault and battery, will be set aside. White v. Prader, Oct. T. 1856. 401. Exemplary damages-Wadrobe v. California Stage Co., Jan. T. 1857.

402. Where the negligence complained of was that of the agent or servant of defendants, only actual damage can be recovered. Id.

403. Damages cannot be given unless prayed for in the complaint. Miller v. Cleveland, Jan. T. 1857.

404. Setting aside verdict on account of excessive damages-Payne v. P. S. S. Co., 1 Cal. 33.

Johnson v. Pendleton, 1 Cal. 132; Bunting e. Beideman, id. 181; Truebody v. Jacobson, 2 Cal. 269; Vogan v. Barrier, 3 Cal. 186; Barritt v. Gibson, 3 Cal. 396; Acquital v. Crowell, 1 Cal. 191; Whitney v. Flint, Oct. T. 1855; Tohler v. Folsom, 1 Cal. 267; Kelly v. Cunningham, 1 Cal. 365; Ross v. Austill, 1 Cal. 183.


405. The sixth chapter(1) of the practice act, providing for actions against vessels, confers admiralty jurisdic iton upon the district court pro tanto, and the proceedings in such actions must be governed by the principles and forms of admiralty courts, except where otherwise directed by the act. Averill v. The Hartford, 2 Cal. 308. 406. A vessel trading between New York and China, which sailed into the harbor of San Francisco from the ocean, and remained for a few days, is not liable to attachment under the statute authorizing attachments against vessels "used in navigating the waters of this state." Souter v. The Sea Witch, 1 Cal. 162; Tucker v. The Sacramento, id. 403; Ray e. The Henry Harbuk, id. 451.

407. Advanced freight may be recovered back in case of the loss of the ship. Lawson v. Worms, Oct. T. 1856. Loring v. Illsley, 1 Cal. 24; Bailey v. The New World, 2 Cal. 370; White v. Chenery, Oct. T. 1854; Davidson v. Gorham, Oct. T. 1856; White v. The Mary Ann, Oct. T. 1856.




1383. Crime, defined.
1384. Public offenses, how divided; felony, defined;
misdemeanor, defined; no person to be pun-
ished except on conviction; public offenses to
be prosecuted by indictment; exceptions.


1385. Criminal action, defined; how prosecuted; designation of party prosecuted.

1386. Rights of defendant.

1387. Second prosecution for same offense forbidden.
1388. Self crimination.
1389. Mode of conviction.


1390. Resistance to commission of crime, by whom to | 1397. Breach of peace in presence of magistrate.
be made; resistance by party about to be in- 1398. Bond to keep the peace, when forfeited.
jured; other persons may aid.
1399. Bond, when to be prosecuted.

1391. Prevention of offenses by public officers; by other 1400. Evidence of breach of bond.

persons in aid.

1392. Complaint for threatening offense; examination

of complainant, etc; magistrate to issue war-
rant; how warrant to be directed.

1393. Hearing; evidence to be reduced to writing.
1394. When complaint to be dismissed.

1401. No other security to keep the peace to be required.

1402. Police, in cities and towns.

1403. To be ordered to attend public meetings.
1404. When sheriff may command assistance.
1405. Resisters of process to be reported.

1395. Surety to keep the peace when required; amount 1406. Refusing to assist officer, a misdemeanor. of bond.

1396. Commitment on failure of bond; same; discharge

on; bond to be filed.

1407. Governor to order military to aid sheriff in cer

tain cases.

1408. Riotous assembly to be dispersed.

(1) Arts. 1051-1066.

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