Provost v. Piper.

the Code that requires any order of Court to authorize a sale. For these reasons, we think the objection not well taken.

The third and last point necessary to be examined is the question, whether the attachment issued in the case of Henry v. Adams & Co., as alleged in the complaint, was a nullity. The twenty-second section of the Practice Act provides that a suit shall be commenced by the filing of a complaint and the issuance of a summons; and the one hundred and twentieth section allows the plaintiff, "at the time of issuing the summons, or at any time afterwards," to have the property of the defendants attached. These provisions must be strictly followed; and the attachment, if issued before the summons, is a nullity. (Ex Parte Cohen, 6 Cal. R., 318.) The issuance of the summons afterwards can not cure that which was void from the beginning. If we regard the attachment as void, there was no lien held by Henry upon the property at the date of the deeds to plaintiffs. The demurrer was to the whole complaint, and should have been sustained as to part, and overruled as to the residue.

It is but just to remark that the bill was framed before the decision in the case of Lee v. Evans, and that consequently many of the authorities referred to by counsel have no application to the case.

The judgment of the Court below is reversed, and the cause remanded, with liberty to the plaintiffs to amend.

TERRY, C. J.-I concur in the judgment on the third point mentioned in the opinion of my associate; upon the other points I express no opinion.

PROVOST v. PIPER et al.

Instruments are sometimes admissible for one purpose and inadmissible for another; and, when objected to, the grounds of the objection should be stated, and in preparing the record for appeal, so much of the evidence should be incorporated as may be necessary to indicate the pertinency and materiality of the objections taken, otherwise they can not be regarded.

APPEAL from the District Court of the Fifth Judicial District, County of Tuolumne.

L. Quint for Appellant.

O. Greenwood for Respondent.

FIELD, J., delivered the opinion of the Court-BURNETT, J., concurring.

Gardner v. Perkins.

The record in this case does not contain sufficient evidence to give point to the objections of the appellant. It does not appear for what purpose the map, deed, and possessory claim, were admitted, or their bearing upon the issue. The map may have been introduced as a diagram, showing the location of the land; in which case it was immaterial whether drawn by the county surveyor or any other person. The deed may have been offered to determine the time the plaintiff's possession commenced, and not for the purpose of deraigning title from the grantors; and, in that view, the defect in the acknowledgment was of no consequence. Its execution may have been proved by other evidence. The possessory claim may have been produced for a similar object; and, in that regard, its want of conformity to the statute could not impair its value as evidence.

Instruments are sometimes admissible for one purpose and inadmissible for another; and, when objected to, the grounds of the objection should be stated, and in preparing the record for appeal, so much of the evidence should be incorporated as may be necessary to indicate the pertinency and materiality of the objections taken; otherwise, they cannot be regarded. Judgment affirmed.

GARDNER et al. v. PERKINS.

Where a motion to dissolve an injunction is made upon bill and answer alone, the general rule is to dissolve the injunction, if the answer denies all the equities of the bill. There are exceptions to the rule, but they depend upon the special circumstances of the particular cases.

APPEAL from the District Court of the Ninth Judicial District, County of Shasta.

James A. McDougall for Appellants.

R. T. Sprague for Respondent.

FIELD, J., delivered the opinion of the Court-BURNETT, J., concurring.

Where the motion is made upon bill and answer alone, the general rule is to dissolve the injunction, if the answer denies all the equities of the bill. (Hoffman v. Livingston, 1 Johns. C., 211; Livingston v. Livingston, 4 Paige, 111.) There are exceptions to the rule, but they depend upon the special circumstances of the particular cases. (Dean v. Coddington, 2 Johns. C.,

Summers v. Dickinson.

202.) There is nothing disclosed in the record which should take the present case from its operation. Judgment affirmed.

SUMMERS v. DICKINSON et al.

Immediately upon the passage of the act of Congress of September 28, 1850, this State became the owner, with absolute power of disposition, of all the swamp lands within her limits which had not been disposed of.

The title of the State in no way depends upon a patent. The act itself operated as a conveyance.

The Governor in issuing a patent to an individual, of such lands, acts as the agent of the State, under powers conferred by statute, and his authority extends only to such lands as were granted to the State by the act of Congress.

A patent from the Governor, purporting to convey the lands of the State, can have no validity unless expressly authorized by law.

Such a patent is prima facie evidence of title in the grantee, as the law presumes in favor of the acts of all public officers.

APPEAL from the District Court of the Thirteenth Judicial District, County of Stanislaus.

This was an action of ejectment for certain land in Stanislaus county. On the trial below, plaintiff offered in evidence a patent from the Governor of California, issued under the act of April, 1855, providing for the sale of swamp and overflowed lands. This evidence was rejected on the ground that no patent was shown to have issued from the United States, conveying such land to the State of California, and a judgment of nonsuit entered, from which plaintiff appealed.

L. Quint for Appellants.

The Court erred in refusing to admit the patent as evidenco of title, for the following reasons:

The act provides that the swamp and overflowed lands belonging to this State should be sold at one dollar per acre, and in the manner prescribed by the act. (See Statutes of 1855, p. 189, §1.) Every provision of said act has been strictly complied with by the appellant.

This State is supreme within its own sphere, as an independent sovereignty, and has the right to determine what shall constitute evidence of title as between her own citizens, to all the lands within her boundary. People v. Coleman et al., 4 Cal. R., 46; Nims v. Johnson et al., 7 Cal. R., 110. This latter decision is conclusive of this case. Thatcher v. Peck, 6 Cranch, 87, 127.

A patent to land shall be presumed to have issued regularly, and, if it be not void on its face, can not be avoided collaterally in

Summers v. Dickinson.

a suit between individuals, unless it issue against the positive. prohibition of a statute. Jackson v. Marsh, 6 Cow. R., 281; People v. Livingston, 8 Barb. R., 253; People v. Muran et al., 5 Denio R., 389; Jackson v. Lawton, 10 Johns. R., 23; Browne v. Calloway, 1 Peters R., 291; 6 ib., 727.

The legal presumption is that the Surveyor, Register, Governor, and Secretary of State, have done their duty in regard to the several acts necessary to be done by them in granting lands. 1 Cow. & Hill's Notes to Philips' Ev., 459; Wallace v. Maxwell, 1 J. J. Marsh. Ky. R., 447, 450; 2 Cow. & Hill's Notes, 270..

Officers authorized to ascertain and certify certain facts, those facts when found and certified to are conclusive. 2 Cow. & Hill's Notes, 247, 270.

No brief on file for Respondent.

TERRY, C. J., delivered the opinion of the Court-FIELD, J., and BURNETT, J., concurring.

The points taken by appellant in his argument, are:

1. The State, by virtue of her sovereignty, is the owner of all the public domain within her jurisdiction, and that her title to the land in question passed to plaintiff by virtue of the patent.

2. The patent is conclusive evidence of everything it purports

to contain.

The question as to the ownership of the public domain within the State is not pertinent to any issue raised by the record.

By the act of Congress "to enable Arkansas and other States to reclaim the overflowed lands within their limits," passed September 28, 1850, all the swamp lands within her limits which had not before been disposed of, were granted to the State of California.

Provision was made in the act for the survey of those lands, and for the issuance of a patent to the State whenever their extent and boundaries were ascertained. But the title of the State in no way depends on the patent. The act itself operated as a

conveyance.

The language of the act is explicit: "the whole of those swamp and overflowed lands, etc., are hereby granted to said State ;” and, immediately upon its passage, the State became the owner of the land, with absolute power of disposition.

The Legislature, by the act of April, 1855, provided for a sale of these lands, and authorized the Governor to issue patents in favor of persons purchasing under the act. In issuing patents, the Governor acted as the agent of the State, under the powers conferred by the statute; his authority extended only to such lands as were granted to the State by the act of September, 1850; and a patent issued by him, for any land not embraced in this grant, would be void, for want of power to convey.

Sweetland v. Hill.

The ancient doctrine, as to the effect of a patent from the Sovereign does not apply to the patent under consideration.

The theory of the common law is, that the King, by virtue of his sovereignty, is the owner of all the lands within the realm; therefore, a grant directly from the King is conclusive evidence of title.

The sovereignty of the State of California is represented by the law-making power; the property of the State can be disposed of only by act of the Legislature; and a patent from the Governor, purporting to convey the lands of the State, can have no validity unless expressly authorized by law.

The patent offered by the plaintiff, purported to convey the land in controversy as a portion of the domain granted to the State by the act of September, 1850; and as the law presumes in favor of the acts of all public officers, it should have been admitted as prima facie evidence of title in the plaintiff, which the defendant might disprove, by showing that the land in question was not included in the act of Congress, or is within the exceptions contained in the eighteenth section of the act of the Legislature of 1855.

Judgment reversed, and cause remanded.

SWEETLAND v. HILL et al.

The removal of an enclosure of land, for the purpose of replacing it with a better one, so far from being evidence of an intention to abandon the premises, is direct evidence of the contrary.

An entry with full notice of plaintiff's rights, during a temporary removal of his enclosure, can not be defended on the ground that the lands were unenclosed.

APPEAL from the District Court of the Fourteenth Judicial District, County of Nevada.

Henry Meredith for Appellant.

Francis J. Dunn for Respondents.

TERRY, C. J., delivered the opinion of the Court—BURNETT, J., concurring.

This was an action of ejectment for lands in Nevada county. The jury returned a verdict for the plaintiff, and a new trial being refused, an appeal is taken.

Upon an examination of the record, we are unable to perceive any error affecting the right of defendants. The testimony as to the acceptance, by one of the defendants, of a deed from the