7. This rule admits of no exception upon the ground of necessity or misfor-
tune, or it would introduce uncertainty and complexity, and lead the Courts
into profitiess investigations. The pecuniary condition of the party is diffi-
cult of proof, and will not be inquired into; nor will the rule be relaxed to
meet the hardships of a particular case. Ib.
8. Where the facts show that the delay of the visitor was unavoidable, the fact
of his engaging in labor, in order to support himself during his necessary
detention, does not divest his rights under the law of comity. Ib.
STATEMENT.
See CRIMINAL Law, 15, 16.
1. When it appears from the bill of exceptions signed by the Judge that the
motion for a new trial was heard on statement, counter-statement, and affi-
davits, it cannot be objected that the statement was not settled. Williams
et al. v. Gregory et al., 76.
2. Where a party appears and argues a motion for a new trial, he cannot after-
ward object that the statement was not agreed to by him, and that it was
not settled by the Judge. Dickinson v. Van Horn, 207.
3. In a statement for a new trial the evidence may be simply referred to, and
need not be set out in the statement itself. Ib.
4. It is not so in a statement on appeal, in which the evidence, if relied upon,
must be set out. Ib.
5. Where the evidence is not set out in a statement on appeal, this Court will
presume that the Court below had good reason for granting a new trial. Ib.
6. A failure to file a statement, setting forth the grounds upon which a party
intends to rely, on motion for a new trial, operates as a waiver of the right
to the motion. Wing v. Owens, 247.
7. Where amendments are made to a statement on appeal, a fair copy of the
statement so amended should be made. Otherwise, the Supreme Court will
not look into it. Marlow v. Marsh, 259.
8. Where there are amendments to a proposed statement on appeal, the draft
proposed and the amendments allowed should be incorporated into one
document, as in their separate form they cannot be regarded as any part of
the record. People v. Edwards et al., 286.
9. A Judge can revoke his certificate to a settled statement on appeal, during
the term at which the judgment was rendered; but after the term has ex-
pired it cannot be done. Branger and Driard v. Chevalier, 351.
10. While the term lasts the Court has power to amend the record. After the
term has passed, the record cannot be amended unless there is something in
the record to amend by. The settled statement, until certified, is not
record. Ib.
11. Where the Judge of the Superior Court certified to an engrossed statement,
and subsequently revoked his certificate and ordered the statement to be
made conformable to the latter settlement, which order was not entered on
record; and the Judge of the Fourth District Court, to which the cause was
transferred, ordered that the order of revocation and amendment be entered
nunc pro tunc, there being no record evidence on which to base such an
order: Held, to be error. Ib.
12. Where the statement embodied in the record was filed on the motion for a
new trial, the Supreme Court will only examine the action of the Court be-
low in denying the motion. Meerholez v. Sessions, 277.
13. Instruments are sometimes admissible for one purpose and inadmissible for
another; and, when objected to, the grounds of the objection should be
stated, and in preparing the record for appeal, so much of the evidence
should be incorporated as may be necessary to indicate the pertinency and
materiality of the objections taken; otherwise they cannot be regarded.
Provost v. Piper et al., 552.
14. A statement on appeal is sufficient when the Judge certifies that it is substan-
tially correct. It is not necessary that the testimony should be stated in the
precise words of each witness. Battersby v. Abbott, 565.
15. It is no objection that the statement does not affirmatively show that the
settlement was upon proper notice, or in the presence of both parties. In
the absence of evidence to the contrary, the presumption of law is in favor
of the regularity of all official acts. Ib.
STATUTE OF FRAUDS.
See VENDOR AND VENDEE, 1.
1. Where a defendant entered into a contract with a builder for the construc-
tion of a brick house, and the builder applied to the plaintiffs, who were
proprietors of a brickyard, for the sale of the necessary brick, and the de-
fendant said to the proprietors, to induce the sale, that he would become
responsible for all the brick furnished his building, and whatever contract
or agreement was made with the builder he would see carried out, or would
pay for the brick if the builder did not: Held, that the promise of the de-
fendant was within the Statute of Frauds. Clay et al. v. Walton, 328.
2. Such a promise is conditional, and dependent upon the default of another.
If there is any doubt as to its import, the Court will look to all the circum-
stances of the case to ascertain the intention of the parties. Ib.
3. Wherever the leading object of the promiser is not to become surety or guar-
antor of another, but to subserve some interest of his own, his promise is
not within the Statute, although the effect of the promise may be to pay the
debt, or discharge the obligation of another. Ib.
4. But the mere fact that the debt guarantied was for brick to be used in the
building of the guarantor, does not show such an object in the promise of
the guarantor. Ib.
5. The interest which a promiser has in the performance of a contract by
another, or the benefit which he may derive thereby, cannot determine his
liability. That liability arises from the character of the promise; and the
interest in the principal contract, and the benefit to be derived from it, be-
come matters of consideration only as they may serve to determine that char-
acter. Ib.
6. The change of possession of the property sold, must be continued. The
Statute does not fix any limits when this change may cease, and if Courts
could put limits to it, they could do away with the clear language of the
law. Bacon v. Scannell, 271.
STATUTE OF LIMITATIONS.
See PLEADING, 14, 15, 16.
1. A part payment made before a contract has expired by limitation, is insuffi-
cient to take the case out of the Statute. Fairbanks et al. v. Dawson et
al., 89.
2. The object of the Statute was to substitute a written contract for that which
might be implied from admissions, and to avoid the mischief arising from
parol testimony to prove either an express promise, or facts from which a
promise would follow as a legal and logical result. Ib.
See ACTION, AND PARTIES TO, 2, 3.
1. Steamboat and railroad companies, in propelling boats on the river, and
cars on the railroad, must provide all reasonable precaution, to protect the
property of others, and they must also be properly used. Carelessness in
either particular, resulting to the injury of an innocent party, will make the
company liable. They are bound to temper their care according to the cir-
cumstances of the danger. Gerkee v. Cal. Steam Navigation Company, 251.
2. What facts and circumstances constitute evidence of carelessness, is a ques-
tion of law for the Court to determine. But what particular weight the jury
should give to these facts and circumstances, is a matter for the jury. Ib.
See PUBLICATION OF SUMMONS; ATTACHMENT, 5.
See CONSTITUTIONAL LAW, 10 to 38, inclusive.
1. Whether the Superior Court of the city of San Francisco had jurisdiction
to render a judgment over two hundred dollars, is no longer an open ques-
tion: Held, that it had such jurisdiction, on the principle of stare decisis.
Curtis v. Richards & Vantine, 33.
SUPREME COURT.
See VERDICT, 1.
1. The Supreme Court will not disturb the findings of a Court or jury on ac-
count of conflicting evidence. Scannell v. Strahle, 177.
2. This Court will not hear any
objections to an order entered in the Court be-
low, by consent of parties. Meerholez v. Sessions, 277.
See PROMISSORY NOTE, 1, 8, 9, 10; SHERIFFS, 8, 9.
1. The sureties upon the official bond of an officer are only responsible for the
official acts, and not for private debts. Hill v. Kemble et al., 71.
SWAMP AND OVERFLOWED LANDS.
1. This State has the right to dispose of the swamp and overflowed lands
granted to her by the Act of Congress of September 28, 1850, prior to the
issuing of a patent from the United States, so as to convey to the patentes
a present title as against a trespasser. Owens v. Jackson, 322.
2. The language of the Act of Congress conveyed to the State a present interest
in the lands. The description of "swamp and overflowed lands" is
sufficient to give the State a present prima facie right. Ib.
3. The patent is a matter of evidence and description by metes and bounds, and
its office is to make the description of the land definite and conclusive, as
between the United States and the State. Ib.
4. Immediately upon the passage of the Act of Congress of September 28, 1850,
this State became the owner, with absolute power of disposition, of all the
swamp lands within her limits which had not been disposed of. Summers v.
Dickinson et al., 554.
5. The title of the State in no way depends upon a patent. The Act itself
operated as a conveyance. Ib.
6. The Governor, in issuing a patent to an individual, of such lands, acts as the
agent of the State, under powers conferred by Statute, and his authority
extends only to such lands as were granted to the State by the Act of
Congress. Ib.
7. A patent from the Governor, purporting to convey the lands of the State,
can have no validity unless expressly authorized by law. Ib.
8. Such a patent is prima facie evidence of title in the grantee, as the law
presumes in favor of the acts of all public officers. Ib.
TAX COLLECTOR.
See SHERIFFS, 4, 5, 6.
See SHERIFF'S SALES; REDEMPTION, 4, 7, 8; SWAMP AND OVERFLOWED LANDS;
1. An action for a false and fraudulent representation as to the naked fact of
title in the vendor of real estate cannot be maintained by the purchaser,
who has taken possession of the premises sold, under a conveyance with
express covenants. Peabody v. Phelps, 213.
2. All previous representations pending the negotiation for the purchase are
merged in the conveyance. The instrument contains the final agreement of
the parties, and by it, in the absence of fraud, their rights and liabilities are
to be determined. Ib.
3. If a party takes a conveyance without covenants, he is without remedy in
case of failure of title; if he takes a conveyance with covenants, his remedy,
upon failure of title, is confined to them. Ib.
See NEW TRIAL, 10; REFEREE; WITNESS, 3, 4, 5.
1. A was indebted upon a note and mortgage to B, in the sum of $40,000. B
assigned the note and mortgage to C, and received from him his notes in
lieu thereof. Afterward, A mortgaged to C, together with other property,
the property previously mortgaged to B, subject to first mortgage, for which
C was to advance to A, from time to time, sums of money not to exceed
$12,000, to enable A to pay his debts. By this mortgage C was authorized
to receive the rents of the mortgaged premises, and apply them to the pay-
ment of the $12,000 and interest, and in case the rents should not be suffi-
cient for that purpose, and A should not pay within two months after
request, then C was to sell, and, out of proceeds, pay the amount and interest
so advanced. C, at various times, advanced to A nearly $12,000, and col-
lected rents to the amount of $28,000. Subsequently C died, and then his
executor collected the rents: Held, in an action by A against C's adminis-
trator, that C acted in the purchase of the note and mortgage of B as an
agent of A, and that A was entitled to the trust fund. Gunter, Executrix,
v. Janes, Guardian, 643.
2. If the plaintiff allege an express trust, it is incumbent upon him to prove it
as alleged; but such a trust may be proved by circumstances, and to ascer-
tain the intention of the parties, the Court will consider the then existing
circumstances. Ib.
3. A mortgagee, who is also a trustee, is as strictly bound to execute his trust
faithfully as he would be were he not a creditor, but acting for the benefit
of another cestui que trust. Ib.
4. A party seeking to enforce a trust against the administrator of a trustee, is
compelled, from the complex nature of the cause, to ask relief in a Court of
Equity. The claimant of specific property is not a creditor within the
meaning of the Probate Law, and therefore he is not bound to present his
claim to the administrator.
5. PER BURNETT, J., on rehearing.-A trustee cannot, by mingling trust moneys
with other funds, change his character from that of trustee to that of mere
debtor. Ib.
6. The act of either the trustee or cestui que trust, without the consent of the
other, should not be permitted to change the relation or capacity of the
parties. Ib.
7. If the trustee does a wrongful act, then he by the act consents to be treated
as a trespasser or debtor, at the option of the cestui que trust. Ib.
8. A trustee should never be permitted to defeat the rights of the cestui que
trust, so long as it is in the power of a Court of Equity to enforce them. Ib.
9. When trustees act with good faith, in the management of the trust property,
and without selfish motives, they are entitled to be treated by a Court of
Equity with liberality and indulgence, and, especially, when they act under
the advice of counsel. Ellig v. Naglee and Sharp, Trustees, 683.
10. Very supine negligence, or willful default, will render them liable; but to
make them liable for mere errors of judgment, would tend to discourage
good and prudent men from undertaking the trust. Ib.
11. Delay, on their part, in bringing suit to recover the rents of the trust estate,
if subsequently approved by the cestui que trusts, will excuse them. Ib.
12. Money advanced by the trustees to the cestui que trusts, with the understand-
ing that the same should be repaid out of the rents of the trust property, is
a lien only upon the net incoming rents, and not a lien upon the trust pro-
perty. Ib.
13. The same is true respecting the charges for legal services of one of the
trustees in the management of the trust property. The rents must be ap-
plied to the payment of such allowances until they are liquidated. Ib.
See DISTRICT COURT, 3; PLEADING, 4, 11, 28, 29.
1. An undertaking on an appeal is an independent contract on the part of the
sureties, in which it is not necessary that the appellant should unite. Cur-
tis v. Richards & Vantine, 33.
2. The objection that an undertaking on appeal was not signed by the principal,
has been decided by this Court in the case of Curtis v. Richards & Vantine,
January Term, 1858. Tissot and Wife v. Darling et al., 278.
3. It is the duty of a justice of the peace, when an appeal bond is presented
to him for his approval, to act promptly. If he receives the bond without
objection, it will be too late to disapprove it the next day. People ex rel. v.
Harris, 571.
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