..... ... county, State of ..... .... on ..... acres, at the rate .... I, . . . . . . of ...... County, do hereby apply this day purchased of the Register to purchase the ..... of Section of this office the lot or .. ... of in Township .... of Section No. ......, in Township Range ........, containing No......., of Range No. .. acres, according to the returns of containing the Surveyor General, for which I of ...... dollars and ...... cents have agreed with the Register to per acre, amounting to ...... dolgive at the rate of ..... per acre. lars and .... cents,. for which the I, . . . . . Register of the said .......ha.. ha.. made payLand Office at .., do hereby ment in full as required by law. certify that the lot above described contains ...... acres, as mentioned above, and that the price agreed upon is per acre. No. ...... ..... ......... [FORM NO. 4.] RECEIVER'S OFFICE AT (Date). Received from Register. ......... 18... ..... Now, therefore, be it known that on presentation of this certificate to the Commissioner of the General Land Office, the said.. shall be entitled to receive a patent for the lot above described. ....., Register, REVISED STATUTES OF THE U. S. TITLE LXX.-CRIMES.-CH. 4. SBC. 5392. Every person who, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, of depose, or certify truly, or that any written the sum of testimony, declaration, deposition, or certifi.... cents; cate by him subscribed is true, willfully and contrary to such oath states or subscribes any quarter material matter which he does not believe to of Section No... in Township be true, is guilty of perjury, and shall be punished by a fine of not more than two thousand dollars, and by imprisonment, at hard labor, not more than five years, and shall, moreover, thereafter, be incapable of giving testimony in any court of the United States until such time as the judgment against him is reversed. [See § 1750.] Book Notice. and Review. "LAW OF MECHANICS' LIENS" OF CALIFORNIA -with expanatory remarks. For mechanics, and material men. This accurate, complete, and valuable work, of 32 Pages, has just been handed us by the authors, Messrs York and Clement, of the San Francisco Bar ;-and we can safely recommend it to all who need such a work, as reliable, and with a full supFurnished It is hereby certified that, in pur-ply of the proper forms, for use. suance of law, of by the RECORD OFFICE-price only 50 cents, 10,364-People vs. Fine. 10,865-People vs. Paillips. 6411-Felton et al. vs. Robin von. 6213-Keenan vs. Harper. • WEDNESDAY, OCTOBER 16TH. 5979-McCoy vs. Briant et al. 8990-McCarthy vs. Morse. 6076-Babe vs. Coyne. 6129-Maxey vs. Forster et al. 6135 Harper et al. vs. Rowe et al. THURSDAY, OCTOBER 17TH. 6921-McDonald vs. McFarlan et al. 6224-Figg vs. Price. 4567-MoreL haut et al. vs. Wilson et al. 5953-Boland et al. vs. Grayson et al. 5978-Huston et al. vs. Leach et al. FRIDAY, OCTOBER 18TH. 6976-Miller vs. Curry et al. 6022-Rousseau vs. Halt et al. 6023-Reynolds vs. Hall et al. 6024-Bolen vs. San Gorgonio Fluming Company. 6086-Price vs. Riverside Land and Irrigating Company. MONDAY, OCTOBER 91ST. 6081-Sherwood vs. Meyerstein. 6089-McGinness vs. Bidwell. 698 In the matter of the estate of John B. Avaline, deceased, 6069-Hancock vs. Lopez et al. 6074-Hancock vs. Rocha et al. 6094-Eastman vs. Potrs. 6116-Oulan vs. Quimby. 6.49-Hamilton et al. va. Blanchard. 6143-Thomas vs. Lawlor. THURSDAY, OCTOBER 31ST. 6189-Perry, Woodworth & Co. vs. Heliman. 6190-Canada Life Assurance Co. vs. Freeman. 6204-Stevens vs. de Cardona et al. 6209-De Cota vs. Wolfskill et al. 6219-City of Los Angeles vs. Butler et al. FRIDAY, NOVEMBER 18T. 6242-O'Connor vs. Good et al. 6248-O'Counor va, Hazard et al. 6244-O'Connor vs. Frasher et al. 6245-O'Connor vs. Addis. 6252-Licy Vs. Beaudry, 6254-Newmark & Co. vs. Chapman. 6258-Fletcher vs. Mower. The CALIFORNIA LEGAL RECORD is a full and complete continuance- and the only 6246-in the matter of the estate of William one-of the publication of the California Su Baldwin, deceased. 6247-Jackson vs. Le Bar et al. TUESDAY, OCTOBER 22D. preme Court decisions from the close of the "San Francisco Law Journal," vol. 1., and will contain every decision rendered since the close of that volume, on February 23, 1878, -as rapidly and soon as time and space will permit. There have also been added twelve decisions omitted from that work through the neglect of its former editor. We have nothing further to do with the "Pacific Coast Law Journal," nor has it any connection with us or this office. F. A. SCOFIELD & Co., Publishers and proprietors LEGAL RECORD. 603 WASHINGTON St. (S. W. Corner Montgomery,) Vol. I. SATURDAY, SEPTEMBER 28, 1878. Legal Notes. VOLUME CLOSED. This issue closes our Volume,-(Vol. I. of the "LEGAL RECORD," but completing a full year published from our office, including the San Francisco Law Journal," vol. I., of which the RECORD is the only full and complete continuance, as it contains in a June No. the 12 decisions omitted from the S. F. L. J. by neglect of our former editor and partner). In this volume, since March 30th, we have reported 193 decisions of our Supreme Court, with appropriate Statements of Facts, etc., being every written opinion, and nearly every unwritten decision rendered-and absolutely every one rendered since the commencement of the July term, to date. Also, 26 important land decisions, and much other interesting and valuable current Legal matter, sparing no time, pains or space to render our work a really valuable and indispensable adjunct to the libraries of the Bar and Bench of our State. And we feel that our labor and efforts, although under some discouragements, have been well appreciated and repaid by the warm sympathy and support so generally shown us; and we shall enter on our new volume with far brighter prospects than ever before; and can safely assure our largely increased and extended patronage of a continued increase of the improvements to the RECORD that we have of late initiated. Our Index is being very carefully prepared, and will be issued at once, and forwarded to all subscribers except such as have already sent us their numbers for binding, or may do so before it can reach them. We shall continue, in future, as in the past, to publish :-1st. Every decision of our Supreme Court, as soon as possible after rendition; and then, as much other of the most valuable legal matter accessible, as is possible, including, also, some valuable papers on important legal subjects, contributed expressly to the RECORD; and the most important land decisions, as affecting our State. We shall welcome contributions and sug No. 26, gestions from all quarters, for we fully believe in the mutual benefit principle as applied to a good Legal publication. We shall continue to send to all onr old subscribers, until otherwise arranged for, and shall welcome as many new ones as can come. THE MATTER OF T. WALLACE MORE. We publish in this issue the final decision, (by the Secretary of the Interior,) in the long and fiercely contested case of T. Wallace More, in the matter of the "Sespe Rancho," in Ventura Co. of this State. The recent murder of Mr. More, and the lengthy trial of suspected persons, has become notorious throughout the land; and the manifest disposition of his family to connect it with the long and bitter land contest, renders it quite noted; and the points involved and decided in this their final effort, makes it one of the most interesting as well as important cases regarding Mexican Grants and Titles ever de cided in this State. We have, at some pains, arrived at the proved and accredited facts of the case, and give them in that connection, as fully as our limited space will permit. We notice in a recent number of a prominent Daily of this city, an article headed"LAND PURCHASE."-"One of the Bones of Contention between the late T. Wallace More and his Murderers."--and credited to the "Los Angeles Star"-which, while mainly fair and correct in its statements,—would seem to assume that the settlers, who had so successfully contested More's persistent claims, were an organized band of desperados; and it speaks of R. M. Widney of Los Angeles, as though he was the only attorney who acted for the settlers in the various battles of the "Sespe❞ campaign. From the documents in our hands we find, that while the efforts of the Hon. Mr. Widney were exceedingly able and meritorious, and rightfully won the case in the local Land office, and were well appreciated by his many clients, yet, that he was really only one of three powerful generals on that side of the fight. SUPREME COURT OF CALIFORNIA. JULY TERM, 1878. VB. Defenants and Apppellants. No. 5893. Mr. Jas. F. Stuart, of our city, appears to STOCKTON AND IONE R. R. CO. ET AL., Appeal from Fifth District Court, San Joaquin Mr. Widney's keen and logical brief, filed before the Department, and containing a photographic map of the Rancho, showing all the boundaries of the various claims, must also have borne its full weight in the final decision. The several briefs are before us, as well as a full statement of facts, compiled by Mr. Stuart, embodying translations of all the original records of the Mexican archives, bearing upon the case, and other documents from Washington, from all of which we gather the facts of the case. HASTINGS LAW COLLEGE. APPOINTMENT OF A PROFESSOR OF LEGAL ETHICS. The Directors of the Law Department of the University of California have appointed Rev. William H. Platt to the chair of Legal Ethics of that School. Professor Pomeroy, in making the announcement, congratulated the class upon the appointment, observing that Mr. Platt combined the character of lawyer with that of clergyman; he had been admitted counsellor in the Supreme Court of the United States, and had made the ethical grounds of the law, and the application of the principles of morals to the practice of the law a special study. The Law School was, therefore, fortunate in securing this acquisition to the Faculty. Mr. Platt would deliver a course of lectures upon Ethics, and also on Criminal Law, regularly during the senior year; but, in addition to that, he would, from time to time, lecture on these subjects before the present class. -, Judge CONDEMNATION OF LAND FOR RAILROAD USES-DAM AGES-UNDERTAKING IN SEQURITY-As providea in section 1264, C. C. P.: Held that the said undertaking is void, as to being just compensation for the final taking of the property; and no recovery can be had upon it as an obligation at commen law, it not being alleged that the undertaking was accepted in lieu of final payment, nor that the property was finally taken. And, damages sus tained by preliminary taking not being averred, (and none being mentioned in the undertaking, except in case the land be not finally taken,) cannot be recovered; and no averment of its not being Anally taken to show that any such damage has been sustained. STATEMENT OF FACTS. This is an action on a bond, given under Sec. 1254, C. O. P. in the condemnation of land for the use of the Stockton and Ione R. R. Co. The Company commenced proceedings in such condemnation on June 3, 1875, for certain lands of plaintiff and others, and entered into a contract and bond in writing, with E. S. Holden, W. G. Miller, and Robert K. Reid, as sureties, guaranteeing to the plaintiff any compensation and all damages that might be awarded to him by reason of the taking of the land, not exceeding the sum of $6,500. Under this, the R. R. took possession of the land; and referees, appointed by the court, to assess the value and damages, awarded $900 50 to plaintiff, for which judgment was entered August 26, 1875. That judgment is still in force, and no part has been paid, hence, plaintiff now demands the sum of $1,600 50 as the full amount of the award. Defendants claimed in answer that the Sec. 1,254 is vold, (Davis vs. San L. R. R. Co., 47 Cal., 517. San Mate: W. Co. vs. Sharpstein, 50 Cal., 266,⋅ hence the order of court is also void, (Newell vs Phelps, 3 Seld. 6. Rodman vs. Munson,13 Barb 63,) and also as the object of the bond was to take possession before payment; (Civil Code, Sec. 15981667-1608. Benedict vs. Brady, 2 Cal., 251;) and the title never vested in the R. R. Co., as there was no payment made, nor any final order of condemna. tion. (Code C. P. Sec. 1253. And the defendants, as sureties, were not privies to the action, and hence not bound by the judgment. (Stoops vs. Woods, 45 Cal., 430. Pico vs. Webster, 14 Cal., 203). The cause was tried June 8, 1877, without jury, and judgment given for plaintiff, for $1,081 46. Motion for new trial was denied, whereupon defendant appealed from both the judgment and order. Byers & Elliot, attorneys for plaintiff and respondent. W. S. Montgomery and J. H. Budd, for defendant and appellant. BY THE COURT. The undertaking upon which the action was brought, was given in proceedings instituted by the Railroad Company, for the condemnation of certain tracts of land, one of which was owned by the plaintiff, and was intended as the "security" provided for in Sec. 1254 of the Code of Civil Procedure, upon being authorized by the court, to have the possession and use of the lands during the pendency of the condemnation proceedings, the parties who executed the undertaking thereby promising that the Railroad Company should pay the compensation which might be awarded by reason of the taking of the lands, and all damages which might be sustained by the owner of the lands, if they should not be finally taken by the Railroad Company for public use. It is alleged in the complaint, that upon the filling of the report of the referees, in the condemnation proceedings, the court entered judgment in favor this of Railplaintiff against the road Company, for $900 50, for the value of the land taken, and the damages sustained by reason of the taking of the land, and for $700 for the cost of building fences along the line of the Railroad. The breach alleged is, that no part of the ment has been paid. because such damages are not averred, and for the further reason that the only damages mentioned in the undertaking are such as may be sustained, "if for any cause, the said described property, or any of it, shall not be finally taken" by the Railroad Company; and it is not averred that the property was not so finally taken, nor that by reason thereof, the plaintiff has sustained any damage. Judgment and order reversed, and cause remanded for a new trial. VS. No. 6005. (Filed September 23, 1878.) MANDAMUS-SHERIFF'S RETURN-A Sheriff's return, A writ of mandamus cannot be resorted to tor the compelling of such a deed, where he not only declines to amend, but insists, in his answer, to be correct, in point of fact. The general rule is that should he voluntarily deliver a deed contradicting his return on file. the rights of the grantee would not be affected by the return. STATEMENT OF FACTS. This is a proceeding in mandamus, to compel the defendant, as Ex-Sheriff of Stanislaus county, to execute and deliver to plaintiff a deed for a cerjudg-tain tract of land which had been sold for delin As a statutory obligation, the undertaking is void. It was held in San Mateo Waterworks vs. Sharpstein, 50 Cal., 284, and Sanborn vs. Belden, 51 Cal., 266, that an undertaking of this character did not constitute a "just compensation" in the sense of the Eighth Section of the First Article of the Constitution, for the taking of the property, upon the preliminary order of the court. This. then, being the settled doctrine of the court, it must necessarily be held that the undertaking will not constitute just compensation upon the final taking of the property. Regarding the undertaking as an obligation at common law, no recovery can be had upon it, as the case now stands, for the just compensation to which the plaintiff would be entitled, upon the taking of the property, because it is not alleged that he accepted the undertaking in lieu of the payment to which he is entitled, upon the final taking of the property; nor is it alleged that the property was finally taken, nor is the just compensation to which he is entitled for the preliminary taking, averred. Nor can a recovery be had for the damages sustained by the preliminary taking, quent taxes, and to recite in the deed that the sale was made to him as the bidder who offered to take the least quantity of land and pay the taxes adjudged due, and not as the highest bidder; or in other words, a deed different in character and ef. fect from the tax deed as executed by him heretofore, and delivered to plaintiff; inasmuch as it does not truly recite the acts performed by the said defendant, in pursuance of the judgment and order of sale; for the sale, in fact, was made to the person who was willing to take the smallest quantity of land and pay the tax adjudged. Defendant claims, in answer, that he made a true return. The cause was tried on January 15, 1878, a jury being waived, and the court ordered a peremptory writ of mandamus to defendant to execute the deed prayed for. From this, defendant appealed, and claims that he could not execute the deed commanded, because it would contradict and falsify his return and certificate of the sale. And the Sheriff's return is not traversable and is conclusive as to the manner in which said tax sale was made. (Egery vs. Buchanan 5 Cal., 54. Gregory vs. Ford, 14 |