The record-union., 1892-03-11
TWO DECISIONS.
A Solano County Case involving Sew.
eral Thousand Dollars.
Action Was Commenced Too Late for
Relief-Ineffectual Appeal OF
q Murderer.

decision in the Office of Deputy Clerk
Govan, in the case of Clausen zap
pellant) VS.. Meister ct al, on appeal from
Solano County. The court below sus-
tanned the demurrer to the complaint in
this action, and thereupon rendered judg-
ment in favor Of defendants. The plain
tiff appealed, and the question for decis-
lon was whether the ruling of the court
| upon the demurrer was correct.
The material facts shown by the COM
plant are:
On March l, 1882, plaintiff was induced
| by representations of the defendant,
Frederick Meister, to the effect that she
was the owner of a certain unincumbered
piece of land in Solano County, to loan
her $1,000 upon her note secured by a
mortgage upon said land. 1t was further
alleged that these representations were
false and made in the presence and with
the approval of the other defendants;
that the land was at that time part OF the
| estate of one Millard Meister deceased,
and was not only subject TO prior mort
gage of 81, 800. but also to the payment of
the debts of said estate; and the said
| Frederica MeiSter was entitled to only
One-fourth thereof and the other defend
AT the date of the execution of plain
tiff S note and mortgage Frederica Meis-
ter was eXecutriX of the estate, and there
had been presented and approved as a
claim against the estate a note held by
Margaret Bolle, for the sum OF 81 coo and
interest, and the defendant, FREDERICK
MeiSter as eXecutriX of the estate, paid
that claim with the money loaned her by
plainGf.
1t is further alleged that the plaintiff
| did not discover the fraud practiced upon
him, in inducing him to make the loan
upon the security of the note and mort
gage Of defendant Frederica Meister, un-
I'll within three years before the COM
mencement Of this action. The plaintiff
stated that the note and mortgage as set
forth were worthless, and offered the
same to the court for cancellation
The action was commenced more than
four years after the maturity of plaintiffs IS
note, and the relief demanded in the COM
| plant is for Judgment against the defend
ant for the sum Of $4,000 with interest
thereon from the first day Of September
1888, and that the mortgage as set forth be
! cancelled.
| The defendant demurred upon the
ground, among others. that the action is
/ barred by Section 357 of the Code of Civil
1 Procedure, which provides that an action
| upon contract founded on written in
/
within four years after the cause of action
accrues. The demurrer was properly
sustained.
The real cause of action was for the re-
coVery OF the money loaned by plaintiff,
and the time allowed by the statute within
which to commence action cannot be ex-
! tended by alleging the discovery within
three years OF facts which in equity en-
titled him to look for its payment to
other security.
! The judgment is affirmed.
A MURDER CASE AFFIRMED.
! The court also filed its decision in the
case of the People VS.. Elisha Cowgill (ap-
| pellant). The appellant was convicted OF
murder in the second degree, and ap-
pealed from the Judgment and from an or
| der denying a new trial. One of the points
made for reversal relates to a ruling made
! by the trial court with respect to the ad-
instability OF certain evidence; and the
! other relates TO instructions given and re-
| fused.
| 1t appears from the statement that at a
certain stage in the trial the appellant, ''in
| the absence of the jury" offered to intro
duce before the jury certain witnesses to
| prove his acquaintance with the defend
ant and that he had known him init
mately for many years; that each of them
! is we'll acquainted with his reputation for
| truth and honesty. The court objected
refusing to permit the jury to hear the
witnesses, and appellant excepted.
! The points made with respect to in
| structions to the jury all relate TO in
structions asked by defendant and re-
! fused or modified by the court The
| court, in its general charge, had already
said all that was proper to be said on the
subject, in this language: eff the evil
! dence shows that the defendant and the
deceased were warm personal this
fact may be considered by you, in con-
| nection with the other evidence i'll the
case, in deliberating on your verdict
| 'But," says the Supreme Court, courts
are to instruct only as TO matters Of law;
and tits difficult to see how the questions
as to whether man is less likely to muir
| der his friend than his enemy, or whether,
on the other hand, It is more reprehensi-
! bic to murder a friend than an enemy,
ETC., are questions of law. We have ex-
amined the evidence and find that it jus-
tilted the verdict. and there are no rea-
sons for disturbing the judgment The
judgment is affirmed"