whether the offense is burglary in the first or second degree is imposed on the Court or jury, as the plea may be "guilty" or "not guilty."

Inasmuch as the indictment, to cover both degrees, must not specify that the entry was either by day or night, it follows that the averment must be general without speeification, and such averment must be construed as charging an entry both in the night and day time. Thus construed, whether the court or jury find defendant guilty of burglary in the first or second degree, he will be found guilty of an offense charged in the indictment.

It follows that the court below erred in pronouncing judgment without first fixing the degree.

Prior to the amendments to the Penal Code above referred to it happened, perhaps, that those guilty of the less offense, but indicted for the greater, escaped punishment by reason of the evidence leaving a "reasonable doubt" that the crime was committed in the "night-time," within the meaning of the statute. It may have been one or the main purpose of the amendments to prevent such failure or delay in the administration of justice. The construction we have given the law will carry that purpose into effect.

The judgment is reversed and the cause remanded, with directions to the County Court to determine the degree of defendant's guilt, as required by section 1192 of the Penal Code, and thereupon to pronounce sentence.

LAND SURVEYS- DEEDS

[No. 5688.]

[Filed December 6, 1877.]

PERRY vs. RICHARDS.

MAPS.-When a map is referred to in a deed and is identified, it is to be considered as a part of the deed, and in ascertaining the true lines or positions, reference should be had rather to stakes or monuments located by the map than to running courses and distances from an initial point.

By the Court.

The deed from the town of Santa Barbara to Carillo-from whom plaintiff deraigns-described the premises conveyed as a piece of land, within the limits of the town, "known and described on the official map of said town as Block No. 6, and containing 150 yards square." It was competent, by parol evidende, to identify the map referred to, and, when identified, it was the duty of the Court to treat it as constituting a portion of the deed. The map made by Wackenreuder had already been declared by ordinance of the city to be the "official map," and even if another map had been referred to as the official map, in conveyances made by the town previous to that declaration, there can be no doubt that, in deeds made after the passage of the ordinance, the words referred to in the map are declared to be official by the ordinance.

The Wackenreuder map having been identified as the map referred to, that map is found to be entitled on its face a map of the town "as laid out by Sauls berry Haley." These words are the equivalent of "as surveyed by Haley," and include a reference to the monuments erected by Haley. Thus the deed is to be construed as referring to the monuments, and if the evidence estab

lished the points where the monuments had been erected by Haley, such points should have controlled in determining the location of Block 6. The Court below ignored the evidence tending to show the location of the Haley stakes, and decided the case on the theory that the demanded premises were to be ascertained by running the courses and distances from the initial point of Haley's survey, without regard to the monuments by him erected. This was a violation of the well-known principles applicable to the mode of ascertaining the true position of lands described in deeds of conveyance.

Judgment and order reversed, and cause remanded for a new trial.

[No. 5584.]

[Filed November 30, 1877.]

BROWN vs. RICE.

DISTRICT COURT JURISDICTION-TOLLS.-Plaintiff sued defendant in the District Court to recover a sum less than $300, claimed as an illegal collection of tolls, inasmuch as the toll-gatherer collected a larger amount than the rates fixed by the Board of Supervisors. Defendant demurred to the jurisdiction of the Court.

The Court below overruled the demurrer. Held, error; that the suit did not involve the legality of a toll, but was instituted to recover an overcharge by the toll-gatherer which was an act of extortion, for which suit could be brought in a court having jurisdiction, and that the sum involved was less than three hundred dollars.

By the Court.

It did not involve the

The District Court had no jurisdiction of this case. legality of a toll within the meaning of Art. 6, Sec. 6, of the Constitution. It is not pretended that the rates of toll as fixed by the Board of Supervisors were illegal in any respect. The demand and recovery by the toll-gatherer of a larger amount than that fixed by the Board was not a collection of tolls, but an act of extortion, for which the statute prescribes certain penalties and consequences. The party aggrieved may sue for and recover the penalty in the proper court, but the jurisdiction of the court must be determined-as in the case of other money demand-by the amount claimed. The amount claimed was less than three hundred dollars.

Judgment reversed and cause remanded, with directions to sustain demurrer. Remittitur forthwith.

The demurrer should have been sustained on the ground that there was no redress in point of law. Buchanan vs. Story, 46 Cal. 595.

Judgment and order reversed and cause remanded, with directions to sustain the demurrer to the complaint.

EXECUTION

[No. 5594.]

[Filed December 5, 1877.]

GLASSCOCK vs. ASHMAN ET AL.

FAILURE TO RETURN - DAMAGES-FINDINGS. This suit was brought to recover actual damages alleged to have been sustained by the failure to return the execution. The averment was denied and the Court below failed to find whether or not such damages were sustained; plaintiff now claims that inasmuch as the Court found that the executions were in the hands of the Sheriff, he was entitled to recover prima facie the amount of the execution as damages. Heed, that such did not amount to a finding that damages were sustained, as the evidence for defendants might have overcome the presumption thus raised.

In the complaint the plaintiff alleges that he has sustained actual damages (in addition to the statutory penalty) by reason of the failure of the Sheriff to return the executions. This averment is denied by the answer, and the court below did not find whether such damages were or were not sustained, or, if sustained, in what amount. This was a failure to find on a material issue made by the pleadings.

It is claimed by the plaintiff that, inasmuch as the court found that the executions were in the hands of the Sheriff, and were not returned, plaintiff was entitled to recover, prima facie, the amount of the executions as actual damages. But it is manifest that the finding of a probative fact which might tend to prove, or which, prima facie, did prove a certain amount of damages, is not a finding that damages were sustained, since, for aught that appears in the findings (the evidence not being before us), the evidence of defendants might have entirely overcome the presumption created by the executions.

In the absence of a finding upon the issue referred to, the judgment must be set aside and the cause remanded, with directions to the District Court, upon the evidence already taken, and upon such other evidence as may be adduced by the parties, to find upon that issue, and thereupon to enter judgment. It is so ordered.

[No. 10,314.]

[Filed November 23, 1877.]

EX PARTE CAHILL ON HABEAS CORPUS.

CRIMINAL LAW-HABEAS CORPUS-DISMISSAL OF A CHARGE BY COUNTY COURT NO BAR TO ANOTHER PROSECUTION.-The prisoner was charged with an offense amounting to a felony, and the County Court ordered a dismissal of the charge. He was subsequently held to answer before a committing magistrate for the same offense. Upon hearing the petition on habeas corpus, the Court held that the dismissal is no bar to another prosecution for the same offense, and remanded the prisoner to the custody of the Sheriff.

By the Court.

1. The order of dismissal of the charge made in the County Court did not operate a bar to another prosecution for the same offense, and would not have so operated, even if the case had not been subsequently resubmitted by that court to the Grand Jury-for the offense with which the prisoner is charged is not a mere misdemeanor, but a felony. Penal Code, § 1387.

2. No bar to another prosecution having occurred, and the prisoner being at large without bail, in consequence of the order of the County Court discharging him from custody, it was competent for any committing magistrate of the proper county to examine the charge made against him, and if, upon such examination, he appeared to be guilty, to hold him to answer. As observed already, the dismissal of the charge in the County Court did not bar another prosecution for the alleged offense; and although it be true, as claimed by the counsel for the prisoner, that the preliminary examination of the prisoner before a 'committing magistrate is not "prosecution" in a strict sense, and within the express definition of the Penal Code, it is nevertheless a proceeding ancillary and looking to a prosecution, and without which a prosecution would ordinarily be utterly ineffectual to subserve the ends of justice.

The prisoner must, therefore, be remanded to the custody of the Sheriff of the county of San Joaquin, and it is so ordered.

United States Supreme Court.

MCHENRY ET AL., PLAINTIFFS IN ERROR, VS. LA SOCIETE FRANCAISE.

JURISDICTION OF STATE COURTS AS TO MORTGAGE MADE BY BANKRUPT.

The creditor of a bankrupt whose debt was secured by mortgage proved the sante against the estate. HELD, that the jurisdiction of the State courts for the purpose of foreclosing the mortgage was not, as to the bankrupt and his wife, divested by the bankruptcy proceedings, but the creditor might foreclose in such courts with the leave of the bankruptcy court and the consent of the assignee.

In error to the Supreme Court of the State of California. The action was brought by La Societe Francaise, D'Epargnes et de Prevoyance Mutuelle, against John McHenry and wife, and others. The necessary facts appear in the opinion. The judgment below was in favor of plaintiff.

Mr. Chief-Justice WAITE delivered the opinion of the court.

In Claflin vs. Houseman, 93 U. S. 130, we decided that, under the law as it stood previous to the adoption of the Revised Statutes, the courts of the United States did not have exclusive jurisdiction of suits for the settlement of conflicting claims to property belonging to the estate of a bankrupt, and that an assignee in bankruptcy might sue in a State court to collect the assets. In Mays vs. Fritton, 20 Wall. 414, we also held that if an assignee in bankruptcy submitted himself to the jurisdiction of a State court in a suit affecting the estate which was pending when the proceedings in bankruptcy were commenced, he was bound by any judgment that might be rendered. And in Eyster vs. Gaff, 91 U. S. 525, Mr. Justice Miller, speaking for the court, said: "The debtor of a bankrupt, or the man who contests the right to real or personal property with him, loses none of his rights by the bankruptcy of his adversary. The same

courts remain open to him in such contests, and the statute has not divested those courts of jurisdiction in such actions. If it has for certain classes of actions conferred jurisdiction for the benefit of the assignee in the Circuit and District courts of the United States, it is concurrent and does not divest that of the State courts."

The principles upon which those cases rest are decisive of this. The complainant, having a debt against the bankrupt secured by mortgage, proved the claim against the estate. This, under section 20 of the bankrupt law (14 Stat. 526; Rev. Stat., § 5075), admitted the complainant, as a creditor of the general estate only for the balance of the debt after deducting the value of the mortgaged property, to be ascertained by agreement, sale, or in such other manner as the bankrupt court might direct. The assignee is not required to take measures for the sale of mortgaged property unless its value is greater than the incumbrance. His duties relate chiefly to unsecured creditors, and he need not trouble himself about incumbered property, unless something may be realized out of it on their account, or unless it becomes necessary to do so in order to ascertain the rights of the secured creditor in the general estate. If he does, and it becomes necessary to adjust the liens before his sale, he ruling in Claflin vs. Houseman, institute the necessary proceedings for that purpose in the courts of the United States, or of the State, as he chooses. If he does not, and the secured creditor wishes to make his security available, the creditor must act, and, having obtained leave of the bankrupt court to bring his action for that purpose, he may proceed in the State court, if the assignee does not object, or in the courts of the United States, at his election. Here the necessary leave to sue was obtained before the decree was rendered, and the assignee, instead of objecting to the jurisdiction of the State court, consented to that mode of proceeding. The bankrupt and his wife alone objected, but as to them, as we held in Eyster vs. Gaff, the jurisdiction of the State court was not divested by the proceedings in bankruptcy.

The judgment is affirmed.

may,

under the

PHOENIX INSURANCE COMPANY vs. PECHNER.

REMOVAL OF CAUSES FROM STATE TO FEDERAL COURT.

A petition for the removal of a cause from a State to the Federal Court, under the Act of 1789, must expressly state that the parties were citizens of the respective States at the time the suit was commenced.

In error to the Court of Appeals of New York. The decision of the Court of Appeals is reported 65 N. Y. 195.

Mr. Chief-Justice WAITE delivered the opinion of the Court.

On the 1st of June, 1867, Pechner, the defendant in error, sued the Phoenix Insurance Company, plaintiff in error, a Connecticut corporation, in the Supreme Court of Chemung County, in the State of New York, upon a policy of insurance. On the 8th of July, in the same year, and at the time of entering its appearance, the company presented to the court a petition, accompanied by the nec