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EXAMINATION.

Violation of order for, by debtor.-Where a bankrupt has been ordered to submit himself to further examination, a departure from the district before the time appointed, without examination, is such a violation of the order that no discharge will be granted until it is rectified by submission to such examination. U. S. Dist. Ct., Vermont. In re Kingsley, 16 Nat. Bankr. Reg. 301.

MORTGAGE.

When assignee permitted to redeem in foreclosure suit.—Where the former assignee of the bankrupt, a second mortgagee, was made a party defendant in a suit to foreclose the first mortgage, and died after entry of a decree pro confesso but before final decree, and his successor is not made a party to the suit, a sale will not affect the second mortgage, and the assignee will be permitted to redeem. Sup. Ct., Michigan. Avery, assignee, vs. Ryerson, 16 Nat.

Bankr. Reg. 289.

SURETYSHIP.

Discharge in bankruptcy of sureties on an appeal bond: when it must be pleaded.—In Mississippi a judgment against the sureties on an appeal bond follows upon rendition of a judgment against the principal. Where sureties upon an appeal bond are discharged in bankruptcy pending such appeal, they must plead such discharge before judgment on the appeal, if they desire to avail themselves of it as a defense. Sup. Ct., Mississippi. Jones v. Coker, 16 Nat. Bankr. Reg. 343.

IN Harvey's Reminiscences of Webster, just published, a meeting between Webster and Pinckney is given, in the words of Webster himself. It took place after an argument before the Supreme Court, the first in which Webster had been opposed to Pinckney, and in which the latter had been overbearing and insulting. Says Mr. Webster: "Mr. Pinckney took his whip and gloves and throwing his cloak over his arm began to saunter away. I went up to him and said, very calmly, 'Can I see you alone in one of the lobbies?' He replied, 'Certainly.' I suppose he thought I was going to beg his pardon and ask his assistance. We passed into one of the ante-rooms of the Capitol. I looked into one of the grand jury rooms, rather remote from the main court-room. There was no one in it, and we entered. As we did so I looked in the door and found there was a key in the lock, and, unobserved by him, I turned the key and put it in my pocket. Mr. Pinckney seemed to be waiting with some astonishment. I advanced toward him and said: 'Mr. Pinckney, you grossly insulted me in the court-room this morning, and not for the first time either. In deference to your position, and to the respect in which I hold the court, I did not answer you, as I was tempted to do, on the spot.' He began to parley. I continued: "You know you did; don't add another sin to that; don't deny it; you know you did, and you know it was premeditated. It was deliberate; it was purposely done, and if you deny it you state an untruth. Now,' I went

on, 'I am here to say to you, once for all, that you must ask my pardon, and go into court to-morrow and repeat the apology, or else either you or I will go out of this room in a different condition from that in which we entered it.' I was never more in earnest. He looked at me and saw that my eyes were pretty dark and firm. He began to say something. I interrupted him. 'No explanations,' said I; 'admit the fact and take it back. I do not want another word from you, except that. I will hear no explanations; nothing but that you admit and recall it.' He trembled like an aspen-leaf. He again attempted to explain. Said I: "There is no other course. I have the key in my pocket, and you must apologize or take what I give you.' At that he humbled down, and said to me: 'You are right; I am sorry; I did intend to bluff you; I regret it, and ask your pardon.' 'Enough,' I promptly replied; 'now, one promise before I open the door, and that is that to-morrow morning you will state to the court that you have said things which wounded my feelings, and that you regret it.' Pinckney replied, 'I will do so.' Then I unlocked the door and passed out. The next morning, when the court met, Mr. Pinckney at once rose and stated to the court that a very unpleasant affair had occurred the morning before, as might have been observed by their honors; that his friend, Mr. Webster, had felt grieved at some things which had dropped from his lips; that his zeal for his client might have led him to say some things which he should not have said, and that he was sorry for having thus spoken. From that day, while at the bar, there was no man," said Mr. Webster, "who treated me with so much respect and deference as Mr. William Pinckney."

GEORGE W. RAWSON, Justice of the Supreme Court for the Seventh Judicial District, died at Lyons, N. Y., on the 13th ult. He began his legal studies in the office of Hon. Mark H. Sibley, at Canandaigua, and was admitted to the bar in 1851. In 1855 he was elected Surrogate of Monroe county. In 1864 he was chosen special County Judge, and was twice re-elected. He was elected to the position of Supreme Court Judge in 1876, and entered upon the discharge of its duties at the commencement of last year. The sickness with which he died attacked him while he was holding the Wayne Circuit, on the 12th ult.

IN a case tried in the Circuit Court of the city of Chicago, the other day, after the jury retired, and while the foreman was taking the vote of the jury upon the question whether they should find for the plaintiff or defendant, one of the jurymen said: "I don't know which is the plaintiff and which is the defendant, but I want to vote against the man that has the gold-headed cane; I don't like his looks ;" and he did.

PROFESSOR SAMUEL TYLER, of the law department of the Columbian University, Washington, D. C., died at Georgetown, on the 15th ult. He was known to the profession through several works written or edited by him. These works are a biography of Chief-Justice Taney, a treatise on Partnership, Stephen on Pleading, and Mitford & Tyler's Pleading and Practice in Equity.

San Francisco Ław Journal.

VOL. I.

JANUARY 12, 1878.

No. 20

Current Topics.

In the case of the Estate of Jared Runyon the Supreme Court of our State have just handed down the decision affirming the order of the Probate Court. In this case it appears, from the transcript on file, that Jared Runyon died on the eighteenth day of April, 1876, testate. That on April 10, 1876, Mrs. Runyon filed a declaration of homestead on the separate property of her husband. She alleged in her declaration that she resided with her family on said property, and that it was worth about $25,000. She filed her petition for an order appointing appraisers to set off the homestead on the fifth day of June, 1876. The appraisers reported that the property could not be divided so as to set apart the homestead to the value of $5000 without injury and loss, and advised a sale of the property. The property was sold by order of the court, and on the twenty-sixth day of December, 1876, Mrs. Runyon filed her petition for an order setting aside $5000 out of the proceeds of the sale for the homestead interest. The Probate Court set apart $5000 to her for the term of her natural life. The heirs-at-law and residuary legatees appealed. They urge: First. That the dec laration of homestead was not in compliance with the statute, because it did not state facts showing that the person making it was the head of a family (she only alleged that she resided with her family on the property). Second. That she did not allege that such declaration was for the joint benefit of husband and wife (she only alleged that she intended to comply with the statutes then in force relating to homesteads). It was also claimed by the appellants that if the declaration is valid the Probate Court had no authority to set aside money in lieu of a homestead. That the petition of December 20, 1876, was made after the death of the husband, and therefore the court had no authority to set aside money in lieu of the homestead when it had not been selected during the exist ence of the community.

In the case of Bosquet vs. Crane, decided by our Supreme Court at this (October) term, the issue was, whether or not the plaintiffs were in adverse occupation of certain lands, being a portion of the sixteenth section, when the defendants made application to purchase. The plaintiffs also made application to purchase, after that of defendants was made, and upon a trial to determine the right of purchase and on former appeal, the Supreme Court sent the case back

to the lower court, to find upon the single fact whether or not the plaintiffs were in adverse occupation of said lands at the time when defendants made their application. The court below found the following: "That in the year 1872, from the month of March until August of that year (during which time defendants made application), the plaintiff and one Allen, Bentley and Conkey were engaged in surface gold mining on the land in controversy, but did not reside thereon or have any dwelling or other building on any portiou of said land." The court below gave judgment for the defendants, and plaintiffs appealed. The Supreme Court affirmed the judgment.

JUDGE SEPULVEDA, of the District Court for the Seventeenth Judicial District, county of Los Angeles, lately decided upon the authority of Estate of Scott (reported in S. F. LAW JOURNAL, No. 10), that any use of trust funds was a legal fraud, and the profits arising from their use was recoverable for the benefit of the cestui que trust. The action was by an incorporated bank against one who, at the time of the acts complained of, was one of its Directors and its President. The complaint alleged substantially that, while President of the bank and a Director, the defendant and O. W. Childs, also a Director, made a loan of $15,000 of funds belonging to the bank, and that, in consideration of said loan, the defendant and O. W. Childs were to reeeive the one-third of all the money (after deducting expenses) to be realized from a certain land specution entered into by Lindenfeldt and Melchert, and one third to defendant and O. W. Childs. O. W. Childs assigned all his interest in the matter to plaintiff before the action was commenced. Plaintiff demands judgment against the defendant, requiring him to execute to plaintiff an assignment of all the right, title and interest of defendant in and to all the moneys due or to be due him by the terms of the agreement made with Lindenfeldt and Melchert.

THE case of McGarrahan vs. New Idria Mining Co., in error to the Supreme Court of California, decided by the Supreme Court of the United States a few days ago, is one of considerable interest and importance. The issues of fact in the case were not decided. The court decided the case upon the illegality of the patent. They say that the record kept at the General Land Office at Washington of California confirmed Mexican grants, relied upon by McGarrahan as evidence of his title, does not prove conveyance to him by the United States of the land in controversy. The record of the patent is evidence of the grant, but not the grant itself. As to the provisions of the patent itself, it is said that to be valid it must be signed in the name of the President, either by himself or a duly appointed secretary, sealed with the seal of the General Land Office, and countersigned by the Recorder. Until all these things have been done the United States have not executed a patent for the grant of land. Each and every one of these integral parts of the execution is essential to the perfection of the patent. They are of equal importance under the law, and one can not be dispensed with more than another. Either is directory, but all are mandatory. The question is not what, in the absence of statutory regulations, would constitute a valid patent, but what the statute requires; not what other statutes require, but what this does. This record shows that the instrument was signed in the name of the President, by his secretary, and sealed, but not coun

tersigned by the Recorder.

The place for the signature of this officer is left blank. The claim that the secretary also signed as acting Recorder is not sustained. His signature appears only as Secretary, and there is nothing whatever to indicate that he attempted to act as Recorder. Besides, the law provides that whenever the office of Recorder shall become vacant, or in case of sickness or absence of the Recorder, the duties of his office shall be performed by the principal clerk on private land claims. On the point of the alleged subsequent recognition of the patent, it is said that the law is not satisfied by the simple recognition of the validity of a patent by the officers of the government. To be valid the patent must be actually executed before it can operate as a grant. Every formality of law prescribed for its execution must be complied with. The court being of the opinion that because the record does not show that the patent was countersigned by the Recorder it is not sufficient to prove title in McGarrahan. Other questions raised in the argument are not considered. Affirmed. The Chief Justice delivered the opinion, which was unanimous, except as to Field, who took no part in the decision.

MR. PIERSON has introduced a bill in the Senate to add a new section to the Code of Civil Procedure as follows: "In every action to recover damages for an alleged libel, when the matter complained of is libelous upon its face, the burden of proof is upon the defendant, or defendants, to show, by a fair preponderance of evidence: first, that the matter is true; second, that it was published for good motives—that is, for the public good, and without the admixture of private malice; and third, that it was published for justifiable ends, that is, for ends or purposes in which the community at large, or a considerable portion thereof, were interested.

HON. NATHAN PORTER died at Sacramento on Sunday, January 6th. He was elected to the State Senate from Alameda county last Fall, on the Republican ticket. He was a native of Massachusetts and early acquired the trade of a hatter. He removed, when a young man, to Rhode Island, where he was elected for one or more terms to the Legislature of that State. He came to San Francisco in 1856 and began the practice of law. He was elected twice to the office of District Attorney of this city and county. He was a lawyer of good abilities and a man of unimpeachable character.

THE following are the titles of Assembly bills introduced last week: Assembly Bill No. 106-An Act to amend section 258 of the Code of Civil Procedure of the State of California.

Assembly Bill No. 107-An Act to amend section 259 of the Code of Civil Procedure of the State oi California.

Assembly Bill No. 108-An Act to amend sections 3696, 3756, 3816, 3829, 3866, 3863, and 4083 of the Political Code.

Assembly Bill No. 112-An Act to amend section 571 of the Civil Code. Assembly Bill No. 117-An Act to amend section 1500 of the Code of Civil Procedure.

Assembly Bill No. 118-An Act to amend section 1774 of the Code of Civil Procedure.

Assembly Bill No. 126-An Act to amend section 10,902 of the Code of Civil Procedure, relative to executions from Justices' Courts.

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