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Pacific Coast Law Journal.

VOL. 1.

APRIL 27, 1878.

No. 9.

Current Topics.

UNLAWFUL DETAINER AMENDMENTS, CODE C. Pro. % 1161.Two acts amending Section 1161 of the Code of Civil Procedure of this State were passed by the late Legislature. The first case in which the practitioner is called upon to act, in unlawful detainer, will probably be the occasion of some hesitation as to the exact status of the law on this subject as it now stands amended. The amendments will be found noted on page 179, post.

It would seem that both acts or amendments are in force, being the law of the land, and not being contradictory in any way; the most that can be said is that they are cumulative remedies. The one applies to a certain given state of facts covering the ground of the old law, as between landlord and tenant, and further providing that where covenants are broken and cannot afterward be performed, notice in writing need not be given-in all other cases requiring the notice as of old.

The other contains all the provisions of the first, and further provides that the successor in estate of the landlord shall have equal remedies with the original landlord; that is, modifying the common law rule that the conventional relation of landlord and tenant must exist in order to entitle the former to the summary remedy afforded by these enactments.

This act further affords a summary remedy against a tenant or subtenant assigning or subletting contrary to the covenants of the lease; again modifying the rule laid down under the common law, that such covenants only meant that the original tenant continued liable for rent, and could sublet or underlet notwithstanding covenants to the contrary.

The landlord may proceed under the one act, the subtenant or successor in interest of the landlord under the other, as the case may be, under a given state of facts. These amendments are to be construed as remedies afforded for different states of facts.

The case of The Mahoney Mining Company vs. Samuel Bennett was decided on the 22d instant by Judge Lorenzo Sawyer, in the United States Circuit Court. The action is a contest between rival sets of stockholders, acting through their respective boards of directors, for the control of the mine. One board, representing as it is claimed a minority of the stock, and foreseeing the probability of the other board taking its place about the 1st of June, 1877, passed a resolution to lease the mine to Bennett for three years, with an option to purchase during the term at the price of $250,000, and in pursuance of the resolution the lease was executed. This was a bill in chancery to set aside the lease and obtain an injunction.

The only question considered by the court was the bona fide character of the lease. The court found that one principal and avowed object of the lease was to keep the control from passing to the majority of the stockholders in case they should elect a new board at the meeting soon to be held; that Bennett was not the real lessee, but a mere instrument in the hands of the minority stockholders; and that he was a man not likely to take such a lease, having no sufficient means for such an undertaking, and not possessing experience in mining

Upon this state of facts the court decided that the lease was made for an unlawful purpose-for the purpose of taking the mine out of the control of those who were to succeed in the management, and retaining it under the direction of a minority of the stockholders.

The court ordered a decree to be entered, canceling the lease in pursuance of the prayer of the bill, and making the preliminary injunction issued perpetual.

The defendant has given notice of appeal.

McAllister & Bergin, and Stewart, Van Clief & Herrin appeared for the complainant, and G. F. & W. H. Sharp, for the defendant.

The United States Circuit Court upon a writ of error has affirmed the judgment of the District Court in the case of Dickinson vs. Adams to the effect as follows: To entitle an assignee to recover of the vendee goods sold on the eve of bankruptcy, it must be shown not only that the bankrupt intended to dispose of his property in fraud of the act, but that the defendant knew such to be his intention, and guiltily combined and colluded with him to carry it into effect.

The original opinion of Judge Hoffman will be found reported in full in 4 Sawyer (Ninth Circuit), 257.

A LEADING CASE, as we believe, will be that of the Estate of McCausland, deceased, just decided by the Supreme Court and opinion filed on the 20th instant. The contest arose in the Probate Court of Santa Clara County upon the application of Annie F. McCausland, claiming to be the widow, for a family allowance. The application was opposed by the heirs, on the grounds that the petitioner was never married to deceased; that her child was not the lawful issue of herself and deceased, and that her real name was Annie Forrester. A ceremonial marriage was not sought to be established at the trial, but the applicant claimed a marriage by repute and cohabitation and a contract per verba de futuro cum copula. As this appears to be the first application of that doctrine of the Scotch law in this State, and as there have of late, in the lower courts, arisen several cases involving the point, the estate of McCausland may be said to possess peculiar interest.

The court also in the same case passes upon the right of the petitioner to testify. It was contended that the application being "a claim or demand against the estate,” the petitioner was excluded from being a witness. The court held that a family allowance petition is not an action or proceeding against an executor and that the applicant could testify. The case in its various phases was ably presented. We shall give a full report in our next issue.

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[Filed April 19, 1878.] JAMES ET AL., APPELLANTS, vs. CENTER ET AL., RESPONDENTS.

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DISMISSAL.-Judgment of dismissal may be entered by the clerk notwith standing

cross complaint filed by defendant. C.C. P. $ 581 construed. APPEAL. -An order vacating judgment of dismissal is appealable.

This action was brought to establish a trust. The defendants answered and filed cross complaints for quieting their title, which were duly answered by the plaintiffs. Before the trial the clerk, upon the application of the plaintiffs, entered a judgment dismissing the action. Defendants thereupon gave notice of a motion to vacate the judgment of dismissal and restore the cause to the calendar. This motion to vacate was subsequently abandoned, and instead an order to show cause was obtained. Upon the hearing the court below vacated the judgment of dismissal, from which order, being a special order, made after final judgment, the plaintiffs took an appeal.

Stetson & Houghton for appellants, McAllister & Bergin, being of counsel, argued that the dismissal was proper under C. C. P. 581; that the defendants' pleading was a cross complaint and not a counter claim; and that upon a dismissal of the action the cross complaint and all go together, as parts of one action.

Philip G. Galpin for respondents. The conditions affixed by C.C.P. 581, to dismissal, involve the exercise of judicial power in deciding whether a pleading is a counter claim or a cross complaint. The entry by the clerk, a ministerial officer, of such a judgment is an illegal act, citing Stearns vs. Aguierre, 7 Cal. 449; Kelly vs. Austin, 17 Cal. 565; People vs. Loewy, 29 Cal. 265. He further contended that the cross complaints contained counter claims.

* (But see the amendment in effect April 26, 1878, providing for dismissal by the plaintiff" if a counter claim has not been made, or affirmative relief wught by the cross complaint ur answer."-EDITOR. )

PER CURIAM.

The judgment of dismissal in form, entered by the clerk, was properly entered, inasmuch as no counter claim had been made (C. C. P. & 581.)

The matters set forth in the cross bills, so called, did not constitute a counter claim, because not arising out of the transaction set forth in the complaint and not connected with the subject of the action, (C. C. P. & 438, Sub. 1.)

The order appealed from was an order made after judgment, and therefore the subject of appeal.

The order setting aside the judgment was erroneous, because the plaintiff had the right to dismiss the action in the absence of a counter claim.

Order reversed.

[No. 5,785.)

[Filed February 19, 1878.]

REIDY ET AL., RESPONDENTS, vs. SCOTT, APPELLANT.

DEFAULT.-Where defendant erroneously believed he was served on the 26th of April,

but in fact was served on the 25th and was one day too late with his answerHeld, upon an affidavit of merits and the answer filed showing a legal defense,

the default should be set aside. This case distinguished from People vs. Rains, 23 Cal. 129.

Samuel Scott was served by the sheriff in Merced County with a copy of summons and complaint, on the 25th of April, 1877. On the 7th of May, 1877, judgment by default was entered.

Defendant gave notice on July 7th, 1877, of motion to vacate the judgment, and filed his affidavit showing that he believed the summons was served on the 26th of April; that

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