Pacific Coast Law Journal.

VOL. 1.

JUNE 8, 1878.

No. 15.

Current Topics.

A QUESTION involving the construction of Section 1469 of the Code of Civil Procedure arose in the matter of the Estate of Christina Feyhl, decided during the April term of the Supreme Court.

Christina Feyhl and G. A. Feyhl were husband and wife and had two children. They were afterward divorced and the care and custody of the children were given to the husband. Said Christina died leaving a small estate which was set aside by the Probate Court to the said children. Curtis & Clunie, judgment creditors of the deceased, contested the petition to set aside the estate to the children, and appealed from the order. Judgment affirmed.

It will be observed that all the decisions with a few exceptions of the Supreme Court, in reversal of the judgment of the court below have been written, thus narrowing the unwritten opinions that are of any special or peculiar interest to quite a small number.

We are examining them, however, and such as may be worthy of notice will be given.

We would be glad to have any subscriber direct us to any case that may have passed under their observation involving questions of interest, and we will note them.

IN White vs. University of California, the Secretary of the Interior holds that in the selection of land in California in view of school sections claimed to have been lost in place, the State Locating Agent, State Surveyor-General and Local

Land Officers, must certify that their respective records do not show that a former selection has been made by the State for the same land claimed to have been lost, prior to July 23, 1866, and that to the best of their knowledge and belief no such selection has been made. That the warrants issued under the State law of May 3, 1852, for 320 acres each, of the 500,000 acre grant under the Congressional Act of April 4, 1841, disposed of that portion of the said government grant covered thereby. The provisions of the State law of April 23, 1858, regulating the disposal of the unsold portions of said 500,000 acre grant, are not applicable to parties who have purchased said warrants under the 4th section of the Act of April 23, 1858, but 320 acres of land can be located for any one person. An attempted location in excess of that amount by an agent is illegal and void.

THE new rules of the Supreme Court adopted April 29, 1878, and to take effect July 8, 1878, have just been issued. We will procure and forward a copy to any subscriber desiring it.

WE call attention to our abstract of all the laws of a general nature passed by the last Legislature, and a table of Sections of the Political Code which have been added or amended.

In this connection we acknowledge the favor extended by the Hon. F. J. French in furnishing us the signatures as soon as issued from the press.

In this issue will be found the case of Edwards vs. Kearzy. The court discuss the federal question in this case, and conclude that State exemption laws, so far as they affect contracts made before their enactment, impair the obligation of contracts and violate the Federal Constitution, and are therefore void.

This opinion seems to be in opposition to the decisions by the State Courts, and therefore will prove to be very important.

Supreme Court of California.

APRIL TERM, 1878.

[No. 5,943.]

[Filed May 13, 1878.]

SANTA CRUZ RAILROAD CO., APPELLANT,

VS.

SCHWARTZ, RESPONDENT.

CONTRACTS.-Where a party subscribed a "prospectus" of a railroad company for shares of capital stock, contemplating an organization only after securing subscriptions for one hundred and fifty thousand dollars, a subsequent organization effected without his consent, when subscriptions for only one hundred and thirty thousand dollars had been obtained, operates to release him from further liability.

Appeal from the Twentieth Judicial District.

This is an action to recover the sum of $500 alleged to be due upon the defendant's liability for an unpaid assessment on his subscription for 5 shares, $100 each, of the capital stock of the plaintiff. In May, 1873, a written prospectus was circulated setting forth the purpose of organizing and constructing a railroad in Santa Cruz County, and defendant subscribed this prospectus and agreed to take 5 shares of the capital stock, which was before the incorporation or organization of said company. This "prospectus" set forth, among other things, that as soon as subscriptions to the amount of $150,000 were secured, the company shall be organized and the construction of the road commenced.

The findings of the court below show that at the date of the organization, not more than $130,000 of subscriptions to the capital stock had been secured, and gave judgment for the defendant. The defendant refused to take any part in the organization.

Chas. B. Younger, for appellant.

Craig & Kittredge, for respondent.

PER CURIAM.

The "prospectus" to which the signature of the defendant was obtained contemplated an organization of the proposed corporation only after securing subscriptions for one hundred and fifty thousand dollars. The organization was, however, subsequently, and without the consent of the defendant, effected when subscriptions for only one hundred and thirty thousand dollars had been obtained. This was a clear departure from the scheme set forth in the "prospectus" to which the defendant had become a party, and it operated to release the defendant, at his option, from proceeding further in the business. Judgment affirmed.

[No. 5,942.]

[Filed May 13, 1878.]

SANTA CRUZ RAILROAD CO. vs. TOWNE.

The facts of this case are precisely those of the case of Santa Cruz Railroad Company vs. Schwartz, just decided, and, upon the authority of that case, the judgment rendered for the defendant below must be affirmed. So ordered.

Supreme Court of the United States,

OCTOBER TERM, 1877.

EDWARDS vs. KEARZY.

1. NORTH CAROLINA EXEMPTION LAW UNCONSTITUTIONAL.-The Act of the Legislature of North Carolina, passed August 22, 1868, exempting personal property and the homestead of a debtor from sale under execution: Held, unconstitutional and void as to debts contracted before its passage.

2. THE REMEDY SUBSISTING IN A STATE when and where a contract is made, and is to be performed, is a part of its obligation, and any subsequent law of the State which so affects that remedy as substantially to impair and lessen the value of the contract is forbidden by the Constitution, and is therefore void.

In error to the Supreme Court of North Carolina. The facts appear in the opinion.

Mr. Justice SWAYNE delivered the opinion of the court.

The Constitution of North Carolina, of 1868, took effect on the 24th of April in that year. Sections 1 and 2 of Article X, declare that personal property of any resident of the State, of the value of five hundred dollars, to be selected by such resident, shall be exempt from sale under execution or other final process issued for the collection of any debt; and that every homestead and the buildings used therewith, not exceeding in value one thousand dollars, to be selected by the owner, or in lieu thereof, at the option of the owner, any lot in a city, town, or village, with the buildings used thereon, owned and occupied by any resident of the State, and not exceeding in value one thousand dollars, shall be exempt in like manner from sale for the collection of any debt under final process.

On the 22d of August, 1868, the Legislature passed an act which prescribed the mode of laying off the homestead, and setting off the personal property so exempted by the Constitution. On the 7th of April, 1869, another act was passed, which repealed the prior act, and prescribed a different mode of doing what the prior act provided for. This latter act has not been repealed or modified.

Three several judgments were recovered against the defendant in error-one on the 15th of December, 1868, upon a bond dated the 25th of September, 1865; another on the 10th of October, 1868, upon a bond dated February 27, 1866; and the third on the 7th of January, 1868, for a debt due prior to that time. Two of these judgments were docketed, and became liens upon the premises in controversy on the 16th of December, 1868. The other one was docketed and became such lien on the 18th of January, 1869. When the debts were contracted for which the judgments were rendered, the exemption laws in force were the acts of January 1, 1854, and of February 16, 1859. The first-named act exempted certain enumerated articles of inconsiderable value, and "such other property as the freeholders appointed for