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In vol. 51 Cal., page 186, is found a case entitled as above. The judgment therein was reversed and the court below directed to render judgment for one of the plaintiffs, Harry H. Burton.

Upon the remittitur being filed below, the court entered judgment in favor of H. H. B. for the possession of an undivided one-third of the premises.

Subsequently counsel for H. H. B. moved the court below to amend the judgment by inserting recovery of the whole instead of one-third of the demanded premises. The court denied the motion, and plaintiff took this appeal.

Appellant argued that as Harry H. Burton was a tenant in common he was entitled to possession of the whole tract as against every person other than his co-tenants, and that the decision in vol. 51 of the reports did not interfere with the rule.

Appellant also argued that the directions contained in the case in 51 Cal. were in effect that plaintiff, Harry H. Burton, should recover the whole.

Respondent argued that the decision in 51 Cal. (above referred to), was an adjudication, that by reason of the infancy of H. H. B. his rights were not barred by the Statute of Limitations, but that as to his co-tenants they had no standing in court, and that whatever title they may have had, the defendant's title, by virtue of the Statute of Limitations, was the better one, and they succeed as tenants in common with H. H. B.; that in such a case the rule that one tenant in common may recover the whole had no application. Williams vs. Sutton, 43 Cal. 73, and Arrington vs. Liscomb, 34 Cal. 370, were cited for respondent.

The judgment was affirmed.
Volney E. Howard & Son, for appellant.
Glassell, Chapman & Smith, for respondent.

No. 5,616.–GLIDDEN ET AL VS. ROBINSON. Pleading-Foreign Judgment. The action was brought on a judgment rendered in the State of New York; judgment was given for the plaintiffs, and defendant appealed. Appellant claimed that one of the plaintiffs in the New York judgment being since deceased there was no sufficient allegation of jurisdiction in the Probate Court here as to his representations.

Judgment affirmed.
O'Connor & Pardow and Gould, for appellant.
Gray & Haven, for respondent.

No. 5,614.-BAKER vs. AVISE. Action of Ejectment.—The defendant claiming that plaintiff was estopped by a former judgment, the court below gave judgment for defendant.

The case was affirmed.
Brunson, Eastman & Graves, for appellant.
Glassell, Chapman & Smith, for respondent.

No. 5,445.–MARQUARD vs. WHEELER.

Rehearing Denied.—The rule laid down in the opinion formerly delivered, to the effect that in the case stated the addition of “gold coin” to a verdict is surplusage, and that the court cannot reject such verdict and send the jurors out to find a new one, adhered to.

Geo. N. Williams, for appellant.
S. V. Smith, for respondent.

Recent Decisions.


Thayer vs. City of Boston.-Was an action decided recently in the Supreme Court of Massachusetts. The plaintiff had for many years been an inhabitant of Boston, had lived there in his own dwelling-house with his family, and paid taxes, and had an office for business. On account of the increase of taxation in 1870, he removed to the town of Lancaster, where he already had a summer residence, and thereafter remained there some months each year with his family, claiming to reside there, paying taxes, voting and holding office there. He, however, spent several months each year in Boston, which continued to be the principal place of his social and domestic life, and the place where the most of his family expenditures were made. In an action to recover back a tax for personal property, assessed upon and collected from him by the city of Boston, in 1876, held, that the question whether he was an inhabitant at that time of Boston or not, for the purposes of taxation, was for the jury.

While the choice of the tax-payer as between two places of residence is an element to be considered in determining his domicile, a choice in favor of one place will not control a preponderance of evidence in favor of another. In all disputed cases it is the duty of the court to submit each case to the jury, with instructions adapted to its peculiar aspects.


A late English decision on the same point is in substance as follows: In determining the question of a man's domicile, it is material to consider where his wife and family have their permanent residence. An intention expressed but not executed can not countervail existing facts. A testator, a native of Scotland, acquired a domicile in New South Wales, where he was possessed of a station called W., at which he,

for some time, resided. The portion of New South Wales in which W. was situated was afterward separated from the rest and made into an independent colony under the name of Queensland. Shortly before the separation the testator had ceased to reside permanently at W., and handed over the management of the station to his partner; but he was still part owner of the station, and frequently visited it, and had expressed an intention to reside there at a future time, and to be buried there. He was a member of the Legislative Assembly of Queensland, and took an active part in the political business of the colony, but had no permanent residence there. His wife and family lived at a house which he had built in New South Wales. He died suddenly while on a visit to the station at W., and was buried there. Held (affirming the judgment of the court below): that the testator was domiciled in New South Wales, not in Queensland. Privy Council, January 23, 1878. Platt vs. Allorney-General of New South Wales, 38 L. T. Rep. (N. S.) 74.


The Supreme Court of Pennsylvania has just passed upon two important points affecting the negotiability of promissory notes. A statute of Pennsylvania required that every note given for the right to make or sell a patented invention should contain the words, “given for a patent right," and made such note subject in the hands of any holder to the same defenses as if in the hands of the original holder, and provided a penalty for a violation of its requirements. It was held not in conflict with the provisions of the U. S. Constitution (Art. 1, % 8) as to patent rights.

But a note given for a patent right and not marked in accordance with the statute would be freed from the equities between the original parties in the hands of a bona fide holder for value and without notice.



The Michigan Supreme Court has passed upon a vexed question of law, holding that the grantee in a warranty deed, who has never been in possession actively or constructively, cannot maintain an action on the covenant on the ground that he has been evicted.

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Partiesin action relating to Corporations Stockholders.— Where any fraud has been perpetrated by the directors of a corporation, by which the property or interest of the stockholders is affected, the stockholders can come in as parties, and ask that their property shall be relieved from the effect of such fraud; but the question is raised whether they can so come in in a suit where there will be nothing left for the stockholders, U. S. Cir. Ct., Indiana, March 18, 1878. Bayliss vs. Lafayette, Muncie, etc., R. R. Co. (Ch. Leg. News.)

Bankruptcy-of Corporation-Duties of Directors.-1. The bankruptcy of a corporation does not put an end to the corporate existence, nor vacate the office of its directors. 2. After a chartered bank has been adjudicated a bankrupt, a member of its last active board of directors (the board in existence when the failure occurred and the act of bankruptcy was committed) cannot buy up claims against it at a discount, and entitle himself to credit therefor at full face value in settlement with creditors, on his personal liability as a stockholder. At least, this cannot be done so as to defeat the suit of a creditor who commenced his action before the bought up claims were actually applied in the extinguishment of the stockholder's personal liability, and while the stockholder held them, as transferee, open against the bank, he not having surrendered or canceled them until after the action was brought. Sup. Ct., Georgia, Feb. 19, 1878. Holland vs. Heyman.

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