The record-union., 1896-10-15
SUPREME COURT DECISIONS.
SYALLABI.
IS. f., No. 6S4-In Bank-Filed Octo
ber 8, 1860

SYALLABI.
Is. f., No. 6S4-In Bank-Filed Octo-
ber 8, 1860
Mcdonald, petitioner; Hinton, re-
spondent- Mandate. Denied
Whether a Registrar, in filing or re-
fusing to file a proffered certificate of
nomination by convention, acts min
isterially or judicially, he cannot be
commanded by mandamus to do an
act which the law does not require him
to do.
Sections 11S6-1 of the Political Code
contemplate that a political party
which at the last election polled at
least ) per cent. of the entire vote cast
be represented by only one convention
Therefore, when each of two or more
bodies of voters claims to be the con-
vention contemplated by the code the
Registrar must determine-in the nrst
instance at least-Which one of the bod
les was IAN organized assembiage OF
delegates representing" the particular
political party named.
S. F., No. 321-Department One-f1leo
October 10. 1860
Charles Fortain, appellant; Jullus
Smith ct al, respondents Action TO re-
strain and enjoin defendants from
maintaining a ferry. Order dlssolvlng
the injunction reversed.
Section 2S53 Of the Political Code
grants no privileges or imanunltles
Which upon the same terms shall not
be granted to all citizens; nor is II IN
any sense special law, but is general
and operates alike upon all standing IN
the same relation thereto. Nor are
the privileges it authorizes in any way
obnoxious 70 the spirit or intent OF the
Constitution or laws, or open to the
objection of authorizing monopones. II
is not, therefore, in contraventlon OF
Article l., Section u, and Article w.,
Section %, Liber 10 and % of the Con-
stitution of this State.
A tenant in common, and in sole
possession of the property, has right
to maintain an action to defend Such
property from injury or destruction.
He need not show sole ownership.
(S F., No. 416-Department One-Filed
October TO- 1860
Santa Cruz Butchers Union, re-
spondent l. X. L. Lime Company, ap-
pellant. Recovery for goods sold and
delivered. Reversed.
1t is necessary for plaintiff first
establish the fact of agency before the
declarations of such agent are admissi-
BILE in evidence to bind the defendant.
(Sac., No. 113-Department One-Ffled
October 10, 1860
Peter A. Jurgenson, appellant; X.
DilIer, respondent. Action to enforce
an alleged lien for labor on mining
claims. Affirmed.
The presumption that every contrac-
tor, sub-contractor, architect, builder.
or other person having charge of any
mining shall be held to be the agent
Of the owner for the purposes OF Sec.
1888, G. G. p, may be repelled by evil
dence to the contrary.
Drifting in a tunnel is not synony-
nous with running tunnel, and Is
not the construction, alteration or re
pair of any building or improvement on
or in a mine-the knowledge of which
must be brought home to the owner be-
fore any duty becomes incumbent upon
him under Sec. 1892, c. G. P.
1t is equitable to require the owner
who sees going forward an unauthor-
lied building or other beneficial I'M
provement upon his property to give -
therefor; but this consideration fails
when the work consists in a subtractive
process-the removal of the very cor
pus Of the property.
(Sac. No. 114-Department One-Ffled
October 10, 1860
Chaplin. appellant; Wilcox, Auditor,
etc, respondent. Mandate to compel
nd N a
plaintiff for mileage as Supervisor.
Affirmed.
| Subdivision IL of Sec. 204 of the
County Government Act Of 1893 must
| be construed so as to mean that the
| S4O0 compensate allowed to members
| Of the Board of Supervisors includes
| beth per diem and mileage; that is to
| say, no member can draw more than
| that amount for all services in any one
year, both as per diem and mileage.
| The Legislature says this compensa-
| ton shall not 'fn the aggregate" ex-
| ceed S4O0; and that the term "aggre-
gate implies a plurality of units
| whose total amount it represents.
| q. A, 9o-Department Two-Filed Oc-
tober 10, 1860
| j. w. RitZman. appellant; +. e
| Burnham, respondent. Conversion OF
| livestock. Affirmed.
| The complaint stated no cause of ac-
ton. The conversion averred was sim
ply the sale by the Constable under eX-
| ecution duly issued upon Judgment
rected in the complaint, plaintiff claim
| ing that this was a conversion on the
ground that the judgment against him
was void. Such an averment does not
| show cause Of action for conversion
| The proceeding for a transfer Of 9
| cause from a State to a Federal court is
| not a proceeding for a change of venue
| and the effect Of filing the affidavit and
| b. ma is declared by the law of Con
| g,eSs.
| (Sac, No. 14i-Department Two-FileC
October II, 1866
| Susan b. Elmore, administrators, re-
| spondent: James G.. Elmore appellant
Accounting and for conveyance. Re
| versed.
| A judgment rendered upon cause ot
action not set up in the complaint and
not warranted by the averments of the
complaint, cannot be sustained either
upon principle or authority
If after a motion for a pon-suit fol
! want of testimony upon any materia