5244- Reese vs. Corcoran —Judgment and order denying a new trial reversed, and cause remanded for a new trial. Remittitur forthwith.

5741-Green vs. Grouard-Appeal dismissed.

5208- Cardinell vs. Bennett - Judgment and order reversed, and cause remanded.

5342-In the matter of the estate of Kate Cunningham, deceased. Order affirmed.

Laidlaw vs. French et al-On reading and filing the affidavit of S. H. Henry, ordered that the appellants have three days additional time to prepare, serve, and file the transcript herein.

5407—Lamdin vs. Harrison-Judgment and order affirmed. Remittitur

forthwith.

5413-Parshall vs. Sumner-Judgment reversed and cause remanded, with directions to set aside the service of the summons.

5424-Regan vs. Adams-Judgment and order affirmed.

5385-Estate of Mary Cunningham, deceased—Judgment and order reversed and cause remanded for a new trial.

5441-Bridgford vs. Scroggins-Judgment reversed and cause remanded, with directions to the Court below to render judgment for the plaintiff according to the prayer of the complaint.

5443-People vs. Edward Martin-Order affirmed.

5445- Marquard vs. Wheeler Judgment and order denying a new trial reversed, and cause remanded for a new trial.

WEDNESDAY, October 31st.

5040-Tully vs. Tranor et al-On motion of Harrison for respondent and filing of a petition for rehearing, ordered that a stay of proceedings be granted until the same is determined.

5401-Shafter vs. Evans-Continued for the term, in accordance with stipulation on file.

5401— Weed vs. Maynard-Judgment reversed and cause remanded, with directions to enter judgment in accordance with the prayer of the petition. Remittitur forthwith.

5025—Brooks vs. Carpentier—On motion of Irving for appellant, and filing of petition for rehearing, ordered that a stay of proceedings be granted herein until the same is determined.

FORCIBLE DETAINER--SUMMARY REMEDY.-One who seeks the summary remedy allowel by the statute must bring himself clearly within its terms.

-

THE NOTICE MUST BE IN THE ALTERNATIVE. In an action of forcible detainer the notice must require a performance of conditions, or covenants, or the possession of the property.

*

By the Court.

*

The action is forcible detainer, brought upon the third subdivision of section 1161 of the Code of Civil Procedure, which reads as follows: "A tenant of real property, for a term less than life, is guilty of an unlawful detainer : * 3. When he continues in possession, in person or by sub-tenants, after a neglect or failure to perform other conditions or covenants of the lease or averment under which the property is held than the one for the payment of rent; and three days' notice, in writing, requiring the performance of such conditions or covenants, or the possession of the property, shall have been served upon him, and, if there be a sub-tenant in actual occupation of the premises, also upon such sub-tenant. Within three days after the service of the notice, the tenant, or any sub-tenant in actual occupation of the premises, or any mortgagee of the term, or other person interested in the continuance, may perform the conditions or covenants of the lease, or pay the stipulated rent, as the case may be, and thereby save the lease from forfeiture. A tenant may take proceedings similar to those prescribed in this chapter, to obtain possession of the premises let to an under- tenant, in case of his unlawful detention of the premises underlet to him."

The alleged breach of contract is the assignment of the lease without the written consent of the lessor, as required by the terms of the instrument. One who seeks the summary remedy allowed by the statute must bring himself clearly within its terms.

No notice in the alternative requiring the lessee to perform, within three days, any condition or covenant, or to surrender the possession of the property,

was alleged or proven. The only notice was one declaring the lease forfeited because of non-performance of covenants other than the non-payment of rent, and demanding possession of the demised premises forthwith. The notice given is not as the statute prescribes, and can not be held to be sufficient to authorize the commencement of this action.

It is claimed, however, by plaintiff, that inasmuch as the covenant not to assign was one which could not have been performed after breach thereof, he was released from giving the notice required by the Code as a prerequisite to the commencement of the present suit. But whether the breach did or did not operate a forfeiture, which would justify ejectment, an action in the present form in the County Court can be maintained only upon a refusal to perform a covenant which can be performed after breach, and the notice contemplated by the statute.

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

"The contractor or his assigns" are the only persons authorized to sue. (Act 1871-2, § 812, p. 8.) The complaint failed to state that the plaintiff occupied either of these relations to the proceedings, and the case is not distinguishable in principle from that of People vs. Doe, 48 Cal. 560.

Judgment and order denying a new trial reversed and cause remauded, with directions to the court below to sustain the demurrer to the complaint.

[No. 5525.]

[Filed November 2, 1877.]

SWEENY vs. MAYNARD, AUDITOR.

MANDAMUS.-The judgment in mandamus, proceedings should be, awarding the writ, and not a personal judgment.

By the Court.

The court below stated, in its conclusions of law, “that the said plaintiffs are entitled to have their said claim allowed by said defendant for the said sum," etc. The proceeding is mandamus, and we think the conclusion reached by the court correct in point of law. But the clerk, it seems, instead of entering the appropriate judgment, entered a personal judgment against the appellant for the sum found due the plaintiff. The judginent is, therefore, reversed, and the case remanded, with directions to enter the appropriate judgment awarding the writ.

Remittitur fort with.

[5539.]

[Filed November 3, 1877.]

PLATH vs. KITZMULLER.

(In this case the court say the findings do not support the judgment.) By the Court.

The action is to recover the purchase-price of "an undivided one half interest in all the personal and real property of 'Plath & Kitzmuller." "

The personal property consisted of carriages and buggies and other stock in trade of the firm, including moneys due the firm, and interest in a lot on Wildey street. The interest in the lot was a contract for its purchase, made by the firm, and to the effect that the lot was to be conveyed by its owner to the firm upon payment of all the purchase-money-part of the purchase-money remaining still unpaid, at the time of the sale, from Plath to Kitzmuller, upon which the complaint here counts.

The plaintiff recovered judgment in the court below, the finding being that plaintiff, in pursuance of an agreement to sell, offered and tendered to defendant a written bill of sale of all his interest in the firm property. Assuming, i favor of plaintiff, that the mere tender, without the acceptance, would support an action of this charater, the finding is attacked, upon the motion for a new trial, on the ground that the evidence is insufficient to justify it.

Upon looking into the record we are unable to discover any evidence in support of the finding, or tending to show an offer upon the part of the plaintiff to convey the interest in the real estate referred to.

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

[No. 5374.]

[Filed November 6, 1877.]

BRADY vs. FEISEL.

RESOLUTION OF INTENTION-STREET ASSESSMENTS -SCALED PROPOSALS.-The notice inviting sealed proposals was "for grading "the street; it also stated that the street was to be re-graded. Held, that the notice was not vitiated.

By the Court.

The resolution of intention was to grade the street. The notice inviting sealed proposals was "for grading" the street, and referred to the resolution No. 9,772. As explanatory, the notice inviting sealed proposals also informed bidders that the street mentioned was to be " re-graded." This was nothing more than to say that the street to be graded had once before been graded, and that it had become necessary to do the work over again. We see nothing in this which vitiates the notice of sealed proposals.

Judgment reversed and cause remanded, with directions to render judgment for the plaintiff upon the findings. Remittitur forthwith.

[No. 5499.]

[Filed November 6, 1877.]

LUEDEKE vs. LIVINGSTON.

[This case announces no legal principle. The judgment is reversed upon a consideration of the facts.]

By the Court.

After a careful examination of the evidence, we are of opinion that it was insufficient to justify the verdict, and that a new trial should have been granted on this ground. The defendant admits his liability to pay for what are termed the "buff plans," and the evidence tends to show that these were drawn up with his authority. But there was no evidence tending to show that for these the plaintiff was entitled to recover any sum near the amount of the verdict, and it is quite evident that in making up the verdict the jury must have included what they estimated as a reasonable compensation for what are termed the "white plans and specifications," being those for the stone house. But after a careful scrutiny of the evidence, we fail to find any which tends to show that these were drawn up with the authority of the defendant, or that he in any manner ratified or accepted them after they were prepared.

Judgment and order reversed and cause remanded for a new trial. Remittitur forthwith.

[No. 5387.]

[Filed Oct. 25, 1877.]

SWIFT vs. CANAVAN.

(This case is sent back to the court below to find upon the material issues.) The affirmative matter set up in the answers of the defendants, if true, constituted a valid defense to the action, and it was the duty of the Court below to find upon the issues thus presented. Among these issues was the question whether, at the time of the alleged grievances, and before and after that time, the city and county of San Francisco was the owner, and seized and possessed of the locus in quo, and whether the plaintiff and his family occupied the premises by the permission of and as the servants and employés of said city and county, and not otherwise. On these material issues the findings are silent, and, until they were disposed of, no judgment could be properly announced.

The judgment is, therefore, reversed, and the cause remanded, with an order to the Court below, on the testimony taken on the trial, or, if further testimony be required, then, upon the evidence already in, and such other as may be adduced, to find upon all the affirmative matters set up in the answers, and if such matter shall be found to be true, to enter a judgment for the defendants.