4. Unless the irregularity complained of in the formation of the jury goes to
the merits of the trial, or leads to the inference of improper influence upon
their conduct, their verdict should not be disturbed. Ib.

JUSTICES' COURTS AND JUSTICES OF THE PEACE.

See COUNTY COURT, 1; COURT OF SESSIONS, 1; PRACTICE, 3.

1. The Constitution vests the Legislature with power to confer such jurisdic-
tion on Justices' Courts as are not exclusively vested in other Courts. The
Act conferring criminal jurisdiction on Justices' Courts is constitutional.
People v. Fowler, 85.

2. It is the duty of a justice of the peace, when an appeal bond is presented to
him for his approval, to act promptly. If he receives the bond without ob-
jection, it will be too late to disapprove it the next day. People ex rel. v.
Harris, 571.

3. An offer to pay the justice his costs, on appeal, so soon as the appeal papers
are ready to transmit to the County Court, is not a sufficient tender, under
the Statute. The fees must be tendered unconditionally. Ib.

4. The justice is not bound first to make out the papers, and then rely on his
fees being afterward paid. Ib.

5. Where an alternative mandamus was issued to a justice of the peace to com-
pel him to send up papers on appeal to the County Court, to which he an-
swered that his fees had not been paid or tendered "prior to the service of
the alternate writ:" Held, his answer is no defense to the writ being made
peremptory, as the fees may have been paid since the service of the writ.
Ib.

6. A justice of the peace cannot take and certify the acknowledgment of a
married woman. It must be done by a Justice of the Supreme Court, Judge
of a District Court, County Judge, or notary public. Kendall v. Miller, 591.

LACHES.

See PROMISSORY NOTE, 3.

LAND.

See SWAMP AND OVERFLOWED LANDS; EJECTMENT; LEASE; REDEMPTION;
PARTNERSHIP AND PARTNERS, 7, 8, 9, 10, 14, 15.

1. The removal of an inclosure of land for the purpose of replacing it with a
better one, so far from being evidence of an intention to abandon the pre-
mises, is direct evidence of the contrary. Sweetland v. Hill et al., 556.

2. An entry with full notice of plaintiff's rights, during a temporary removal
of his inclosure, cannot be defended on the ground that the lands were un-
inclosed. Ib.

LANDLORD AND TENANT.

See EJECTMENT, 15.

1. A tenant who puts up machinery for a mill, in a house leased, and fastens
it by bolts, screws, etc., to the house, has the right to remove it; but as be-
tween vendor and vendee, such machinery would be considered as a part of
the realty. McGreary v. Osburn, 119.

LAW AND LAWS.

See RAILROAD, 5.

1. The Court is bound to

take judicial notice of the general laws in force in
this State at the cession of California, which remained unrepealed until the
Act of April 22, 1850. Those laws are not regarded as foreign so as to re-
quire proof of their existence. Wells, Trustee, v. Stout et al. 479.

LEASE.

1. A covenant in a lease to the lessee, "his heirs and assigns," for a term of
eight years, that if the lessor shall sell or dispose of the demised premises
the lessee is to be entitled to the refusal of the same, is a covenant running
with the land. Laffan v. Naglee, 662.

2. Every covenant in the lease relating to the thing demised, attaches to the
land, and runs with it. Ib.

3. The valuable privilege of pre-emption attaches to the entire property, and
is therefore assignable. Ib.

4. A and B entered into an agreement in which it was stipulated that A should
advance $12,000 for the purpose of putting up a brick house on property of
B, held by lease, and B was to convey to A one half interest in the leased
premises; the balance of the costs of the building was to be borne in equal
proportion. When completed, B was to rent the same, and pay over to A
one-half of the rents. Building was erected at a cost of $48,000-$30,000
paid by A, and $18,000 by B,-B conveyed one-half of premises to A: Held,
that A and B were copartners. Ib.

5. And where one of two holders of the leasehold, holding in partnership, pur-
chases the fee in his own name and with his own money, it enures equally
to the benefit of the other, to which he becomes entitled on payment of his
proportion of the purchase money. Ib.

6. And as the relation sustained by the tenant purchasing the fee, to his co-
tenant or partner, is one of confidence, the proof that the latter had waived
his right must be clear, and the burden of proof rests upon the tenant pur-
chasing. Ib.

LIBEL.

1. In an action for an alleged libel, a variance between the date of the libel,
as set forth in the complaint-the twenty-third of June-and the date as
shown in the evidence-the twenty-fourth of June-is not material, unless
the defense is misled by it. Thrall v. Smiley et al., 529.

2. To constitute a justification, in an action for a libel, the answer must aver
the truth of the defamatory matter charged. It is not sufficient to set up
facts which only tend to establish the truth of such matter. Without an
averment of its truth, the fact detailed can only avail in mitigation of
damages. Ib.

LIEN.

See SHERIFF'S SALES, 6: MECHANICS' LIEN; REDEMPTION, 5, 6.

LIMITATION.

See STATUTE OF LIMITATIONS.

LOST INSTRUMENTS.

See EVIDENCE, 1, 2, 3, 4, 5, 6, 7, 8, 9.

MANDAMUS.

1. Where an alternative mandamus was issued to a justice of the peace to
compel him to send up papers on appeal to the County Court, to which he
answered that his fees had not been paid or tendered "prior to the service
of the alternate writ:" Held, his answer is no defense to the writ being
made peremptory, as the fees may have been paid since the service of the
writ. People ex rel. v. Harris, 571.

2. A mandamus will not issue to compel the Court below to enter a decree upon
the report of a referee; the remedy is by appeal. Ludlum v. Fourth District
Court, 7.

3. Quære: Whether a mandamus is the proper remedy where the Court below
refuses to enter a specified judgment, as directed by this Court. Ib.

4. Where an injunction, granted on an ex parte application, was modified on
motion of defendant, without notice to plaintiff, on defendant's giving bond:
Held, that subsequent acts of defendant, in violation of the original injunc-
tion, were not in contempt. The remedy of the plaintiff, if there was error
in the order modifying the injunction, is by appeal, but he cannot have &
mandamus to compel the issuance of attachment for contempt. Fremont v.
Merced Mining Company, 18.

5. In an application for a mandamus to compel a District Judge to sign a bill
of exceptions, which the relator alleges he refuses to do, and where the
District Judge, in his answer, avers that he has signed a true bill of excep-
tions, and that the one presented by relator is not a true bill: Held, that the
relator is not entitled to a jury to try the issue, under section four hundred
and seventy-two of the Practice Act. People ex rel. Galvin v. The Judge of
the Tenth Judicial District, 19.

6. Courts of such extended jurisdiction and grave responsibility must, from the
very nature of the case, be trusted as to the fidelity of their records, and
their decision thereon is final and conclusive.

Ib.

7. Where, pending a motion for a new trial in the District Court, the defendants
violate an injunction previously issued by said District Court, this Court will
issue a mandamus against the Judge of such District Court, to compel him
to issue his attachment for contempt. Ortman v. Dixon, 23.

MARRIED WOMEN.

1. It is not in the power of a Court of Equity to compel a married woman to
correct an insufficient acknowledgment to a deed, for which she and her
husband have received the consideration. Her consent must be perfectly
free. She can make no contract to bind herself, except in the manner
prescribed by law. The provisions of the Statute must be strictly pursued.
Barrett v. Tewksbury et al., 13.

2. In this State, the wife can appear in, and defend an action, separately from
her husband. To enable her to do so she must possess, as defendant, all
the rights of feme sole, and be able to make as binding admissions in
writing, in the action, as other parties. Alderson v. Bell and Wife, 315.
3. In the acknowledgment of a married woman to a deed, there must be a privy
examination. Kendall v. Miller, 591.

4. A justice of the peace cannot take and certify the acknowledgment of a
married woman. It must be done by a Justice of the Supreme Court,
Judge of a District Court, County Judge, or notary public. Ib.

MECHANICS' LIEN.

1. A tenant who puts up machinery for a mill, in a house leased, and fastens it by bolts, screws, etc., to the house, has the right to remove it; but as between vendor and vendee, such machinery would be considered as a part of the realty. McGreary v. Osburn et al., 119.

2. The evident intention of the Act in relation to mechanics' liens, was to give mechanics and artisans a lien for all work done by them, upon any description of property. The first section gives a lien upon the superstructure itself, as distinct from the land; and the fourth section gives a lien also upon the land, when the same is owned by a person who caused the superstructure to be erected. Ib.

3. The object of the Act was to give the mechanic a lien upon whatever interest the person who caused the superstructure had, and which could be sold under execution. Ib.

MEXICAN LAWS.

1. The Court is bound to take judicial notice of the general laws in force in this State at the cession of California, which remained unrepealed until the Act of April 22, 1850. Those laws are not regarded as foreign so as to require proof of their existence. Wells, Trustee, v. Strout et al., 479.

MINES, MINING CLAIMS, AND MINING LAWS.

1. The interest of a miner in his mining claim is property, and may be taken and sold under execution. McKeon v. Bisbee, 137.

2. The pay dirt and tailings of a miner, which are the productions of his labor, are his property. Jones v. Jackson, 237.

3. When a place of deposit for tailings is necessary for the working of a mine, there can be no doubt of the miner's right to appropriate such ground as may be necessary for this purpose; provided he does not interfere with pre-existing rights. His intention to appropriate such ground must be clearly manifested by outward acts. Mere posting notices is not sufficient. He must claim the place of deposit as such or as a mining claim. Ib.

4. To suffer the tailings to flow where they list, without obstructions to confine them within the proper limit, is conclusive evidence of abandonment, unless there is some peculiarity in the locality constituting an exception to this rule. If no artificial obstruction is required to confine them within the proper limits, then none is necessary. Ib.

5. If a miner allows his tailings to mingle with those of other miners, this would not give a stranger a right to the mixed mass. Ib.

6. Where tailings are allowed to flow upon the ground of another, he is entitled to them. Ib.

7. Where the regulations of a mining locality require that every claim shall be worked two days in every ten: Held, that the efforts of the owners of a claim to procure machinery for working the claim, are, by fair intendment, to be considered as work done on the claim. Packer et al. v. Heaton et al., 568.

8. So, also, is working on adjoining land in constructing a drain to enable the owners to work the claim. Ib.

9. In an action by a company of miners to recover possession of a mining claim, and damages for its detention, a person who was a member of the company at the time of the alleged detention, and who, prior to the com

mencement of the suit, in consideration of unpaid assessments, sold his interest to his copartners in the claim, without warranty, is not a competent witness, as he is interested in the damages sought to be recovered. Ib.

10. The mistake of counsel as to the competency of a witness, is no ground for granting a new trial. Ib.

11. One party may locate ground in the mineral districts for fluming purposes, and another party, at the same or a different time, may locate the same ground for mining purposes; the two locations being for different purposes, will not conflict. O'Keiffe v. Cunningham, 589.

12. A party may take up a claim for mining purposes that has been and still is used as a place of deposit for tailings by another; but, in that case, his mining right will be subject to the prior right of deposit. Ib.

13. Where two several mining companies agree upon a boundary line between the claims of the two companies, and, subsequently, other parties purchase the several interests of the two companies, with a knowledge of the boundary line so fixed, both parties are concluded by it, and are estopped from denying the line. McGee et al. v. Stone, 600.

14. The fact that such line was fixed by a mistake as to the true boundaries and corners, makes no difference, as the subsequent purchasers purchased with a view to this line. Ib.

MINOR.

1. The requirement of the Statute being positive that in actions against a minor under the age of fourteen years, personal service of summons must be made, in cases where he resides out of this State, and his residence is known to plaintiff, such residence should be stated in the affidavit for publication. Gray v. Palmer et al., 616.

2. The failure to deposit in the post office a copy of the complaint and summons, directed to such minor, is not cured by the appearance of the mother in her own behalf. Ib.

3. The Court has no right to appoint a guardian ad litem until the infant is properly brought into Court. Ib.

MORTGAGE.

See PARTNERSHIP AND PARTNERS, 5; TRUSTEE, 1.

1. Where A mortgaged a lot of land for five hundred dollars, and afterward conveyed the same to B, a feme sole, in trust for her children, and A then married B, and the two together borrowed an additional sum, and executed a joint mortgage for the whole amount, to the assignee of the first mortgage, and the note for the first debt was surrendered, though the mortgage was not canceled; and the debt was again increased, and the last mortgage canceled, and a new one for the increased amount executed by A and B: Held, that the holder of the last note and mortgage was entitled to a judgment thereon, and to a decree of foreclosure and sale, for the amount of the first note and mortgage. Birrell v. Louis Schie et al., 104.

2. Where a plaintiff in an action to foreclose a mortgage against a party who has died since the service of the summons, and before judgment, asks for a decree of sale of the mortgaged premises, and if the same is not sufficient to discharge the debt, then for a judgment over against the estate, the administrator is a necessary party to the suit. Belloc v. Rogers, Administrator, et al., 123.