VOL. I.

MARCH 23, 1878.

Current Topics.

No. 4

THE Governor on March 21st signed bills to amend section 415 of the Penal Code, relating to riotous conduct in public assemblages; and to provide for the appointment by the Governor of a Reporter of the Decisions of the Supreme Court.

SENATOR PIERSON introduced a bill modifying Judicial Districts in San Francisco. The bill makes the court-room of the New City Hall portions of each Judicial District of San Francisco. The rules were suspended and the bill passed.

THE Supreme Court, in a recent case in New York, decided a somewhat new question in foreclosure. It appears that Thomas Murphy, ex-Collector of the Port, on the 13th of February, 1872, gave a mortgage for $2,940, payable in five years, upon property for the purchase money. On the 20th of the following August Mr. Murphy conveyed these premises to exJudge Wm. Fullerton, the latter assuming the mortgage. Wm. Devlin, assignee of the mortgage, brought suit April 21st, 1877, to foreclose it, claiming judgment against Mr. Fullerton for any deficiency there might be upon the foreclosure sale. Mr. Fullerton, by deed, dated April 5th, 1877, acknowledged and delivered on June 16th following, two months after the foreclosure was begun, reconveyed these with other premises to Mr. Murphy, who had meantime become insolvent, the latter assuming and agreeing to pay the mortgages and releasing and discharging Mr. Fullerton. On the trial in the Supreme Court Special term, before Judge Van Vorst, Mr. Fullerton,

who alone defended, testified that is was part of the terms and conditions upon which he became purchaser of the lands covered by the mortgage, with others, that his grantor, Murphy, would at any time thereafter accept a reconveyance of the lands, and reimburse him for what he had paid out, and reinstate him as he was at first. In the event of a reconveyance he was to get back principal and interest on all he should pay as consideration, and all disbursements, including the taxes and assessments, and he was to be released from all obligations he should assume. Mr. Murphy, who was called as a witness on the other side, corroborated Mr. Fullerton, at least to the extent that he would take back the premises whenever Mr. Fullerton got tired of it. Judge Van Vorst, in his decision, holds that the reconveyance by Murphy released Fullerton from any obligation in respect to the mortgage. The agreement between Murphy and Fullerton, though verbal, being contemporaneous with the deed, and in part performed at the time, by the making and acceptance of the original conveyance, and the reconveyance being made and received in further performance of it, was not invalid, so far as third parties were concerned. The question of the validity of the agreement, and whether or not it should be carried out, rested with Fullerton and Murphy exclusively. Whether is was void for indefiniteness as to time or because not reduced to writing, was for the determination of Murphy. He only could object that a delay of five years in making the reconveyance was unreasonable, and it was not for others who were neither parties nor privies to the agreement to complain. Judgment was, therefore, given relieving defendant from liability.

IN two cases-Davis vs. Russell and Hagar vs. Spectin the Supreme Court of this State-opinions have just been filed. In Davis vs. Russell, Davis, the owner of a lot of wheat, deposited it in the warehouse of Russell, and took a warehouse receipt in usual form, then indorsed the same in blank and delivered it to Barney. Barney transferred it to the Bank of Stockton, who transferred it to one not a party to this action, and Russell afterward delivered the

wheat to holder of receipt. Davis claims not to have sold the wheat with the transfer of the receipt and demands its return, and the Court below sustains the demand. This is reversed,

and held that Barney's transfer of the receipt to the bank was for a valuable consideration, and hence the holders of the receipt were not liable to plaintiff for return of wheat or value: -in other words, that the warehouse receipt was a negotiable instrument and regarded as on the same footing with a bill of lading. Harr vs. Baker, 8 Cal., 613.

In Hagar vs. Spect, the Court discusses the doctrine of estoppel in pais and construction of deeds. Both opinions will appear in full in our next issue.

THE Constitutional Convention is now a fixed fact. The Senate and the Assembly both adopted the report of the Joint Committee. In the Senate the report was agreed to without debate. In the Assembly there was considerable disscussion. The changes made in the bill on the recommendation of the Joint Committee are that the Convention meets on Saturday, the 28th of September, instead of the third Monday in September, and of the delegates at large from the four Congressional districts, the eight having a plurality in each Congressional district are to be declared elected. This was done to insure that of the 32 delegates at large eight should represent each of the Senatorial districts. Otherwise if the plurality were confined to the whole State, it might happen that more than eight residing in one Congressional district might receive the largest number of votes, because the people vote for the whole 32 of the delegates at large. This proposition gave rise to considerable debate in the Assembly, Hugg protesting against it. He, however, was somewhat molified by the fact that the Convention was to be the judge of the qualifications of its own members, and he thought the Convention would right any wrong that might occur from this provision. The bill as it now stands provides for the election of 152 delegates, 110 by the respective Senatorial districts, and 32 at large; the delegates to receive a per diem of $10 for 100 days and mileage such as is allowed members of the legislature; the election for delegates

will take place in June; the Convention meets September 28th, and the Constitution will be submitted for ratification or rejection by the people in May of next year.

ASSEMBLYMAN SWIFT has introduced, by request, a bill to amend sections 276 and 281 of the Code of Civil Procedure with respect to attorneys and counsellors at law. Section 276 is amended so as to read: "Every applicant for admission as an attorney or counsellor must produce satisfactory testimonials of good moral character, and undergo a strict examination in open Court as to his qualifications by the Justices of the Supreme Court."

Section 280 is amended so as to read: "The Clerk of the Supreme Court shall keep a roll of attorneys and counsellors admitted to practice, which roll must be signed by the person admitted before he receive his license."

Section 281 is amended to read: "If any person shall practice law in any court without having received a license as attorney and counsellor from the Supreme Court of the State, he is guilty of contempt of court, and shall not maintain an action for the recovery of any compensation for such services, and any party paying such person any compensation for such services may maintain an action and recover a judgment against such person in three times the amount of any sum thus paid." The act is to take effect from and after its passage. Referred to the Judiciary Committee.

Swift also introduced a bill (by request) adding a new section to the Penal Code to read as follows:

"Section 1,178. Every person who in any manner advertises himself as an attorney and counsellor at law without first having a license as such attorney and counsellor from the Supreme Court of the State is guilty of a misdemeanor."

The act to take effect from and after its passage.

Senator Haymond also yesterday introduced a bill concerning the admission of attorneys. This is the re-introduction of a bill which was introduced in the Assembly earlier in the session and defeated, providing for written examinations of applicants for admission as attorneys.

Supreme Court of California.

[January Term, 1877.]

[No. 4514.]

[Filed March 29, 1878.]

BIHLER VS. PLATT.

TENANTS IN COMMON-PATENTS-PRACTICE AND PLEADING. The plaintiff brought this suit to quiet title, and derived title from Meyer & Bennitz; and defendant from Hendy & Glein. Prior to the deeds to plaintiff and defendant the title to the land in controversy had been confirmed and patented to Meyer, Bennitz, Hendy, Glein and Duncan. Plaintiff also claimed through one Rufus who had a Mexican grant, and alleged in his complaint that he was the owner in fee simple, absolute, and had been in actual possession for more than fifteen years. Held, that he was only a tenant in common with the defendant, and that if any equities existed in his favor growing out of the deed of Rufus, they must be determined in some action with appropriate pleadings and all necessary parties. (Duncan was not a party to this action.) PER CURIAM.

The action was commenced before the Codes took effect, and its object is to quiet the plaintiff's title to a parcel of land included in the "Rancho de Herman," which was granted by the Mexican Government to one Rufus, and the title to which has been finally confirmed and patented to Meyer, Bennitz, Hendy, Glein and Duncan, as the successors in interest of Rufus. The petition for confirmation was filed in 1852, in the names of Meyer, Bennitz, Hendy, Glein and Duncan, to whom the patent subsequently issued and the plaintiff derains his title. under Meyer and Bennitz, and the defendant Platt under Glein and Hendy, all subsequently to the filing of the petition for confirmation. The complaint avers that at the time of the commencement of the action, the plaintiff was the owner in fee simple absolute, and in the quiet and peaceable possession of the land described in the complaint, and that he and his grantors had been in the actual quiet, adverse and peaceable