property, thus securing a sufficient income for the county, while property within the county was relieved of its just proportion of State taxation. If such evil exists, it is not the duty of the Court to suggest a remedy. The problem to be solved is to create some check upon undervaluations, and to remove from Assessors the temptation to make them. Perhaps the object sought may be accomplished by narrowing the limitation of the percentage of taxation for county purposes, or by changes in the criminal law or a more strict enforcement of criminal enactments. The mode of compelling proper valuations is to be discovered and established by a Legislature composed of practical statesmen, who shall give their personal attention to the subject. The end can never be gained by an attempt to force into operation the unconstitutional provisions of law contained in the Political Code, provisions which do not guarantee the equality and uniformity from which, it is alleged, the County Assessors and Boards of Supervisors have departed. The petition for rehearing is denied. Mr. Justice CROCKETT, and Mr. Justice RHODES, dissented. INDEX. ACCOUNTS. 1. SETTLEMENT OF ACCOUNTS.- When a party who has had dealings with another for a long time, on a trial for the settlement of their accounts, claims commissions on certain drafts, and it appears that after the drafts were drawn, he rendered an account in which he made no charge for the commissions, and it also appears that he did not include the commissions in a bill of particulars rendered after the action was commenced, the referee or court may exclude the commissions. Pratalonge V. Larco, 878. ADMINISTRATOR. Bee EJECTMENT, 6, 7, 8. AGENT. Bee CONTRACTS, 6. ALCALDES' GRANTS. 1. ALCALDE'S GRANTS IN SAN FRANCISCO.- Book A of original grants, in the custody of the Recorder of San Francisco, is admissible in evidence when introduced to prove that other grants were made than those found in Blotter B." Sill v. Reese, 294. 44 & BLOTTER B OF ALCALDE'S GRANTS.—The fact that "Blotter B," so called, in the possession of the Recorder of San Francisco, shows a certain number of lots granted by the Alcalde in a particular year, does not raise the presumption that he did not grant other lots during the same year. Id. DESCRIPTION IN A GRANT BY AN ALCALDE.—A grant by an Alcalde, of a lot in a pueblo, "twenty-five yards in front by fifty in depth, and bounded southeast by Chalpa Garcia's house and lot," was valid, and conveyed ownership to a definite tract of land, if Chaipa Garcia occupied a lot in the pueblo, and a lot twenty-five by forty yards could be located immediately to the northwest of hers. Halloway v. Galliao, 474. 4. IDEM. An entry subsequently made by the Alcalde, in his book of records, immediately below the grant, in these words, "the above is located fronting twenty-five varas on Market Place, and forty varas fronting on San Carlos street, does not affect the grant, and may be disregarded. It does not grant any land, but undertakes to locate a lot already granted and definitely described. Id. [675] 5. GRANT BY AN ALCALDE.-When an Alcalde granted a lot by a description sufficient to pass the title, his jurisdiction over the subject matter ended. Bee EVIDENCE, 16, 18, 19, 31. ALTERATION IN DOCUMENTS. See EVIDENCE, 34; CONTRACTS, 6. AMENDMENTS. 1. AMENDMENT TO ANSWER.-There is no error in refusing to allow an answer to be amended, when the amendment is unnecessary, and the defendant can introduce all his evidence under the original answer. Ferrer v. Home Mutual Insurance Co., 416. See PLEADINGS, 18. APPEAL 1. APPEAL FROM THE JUDGMENT.-An appeal from the judgment must be taken within one year after the rendition of the judgment. Smith v. Christian, 18. 2. APPEAL FROM ORDER SUSTAINING DEMURRER.-If a demurrer to an indictment interposed, on the ground that the indictment does not charge a felony but a simple assault, and it is sustained as to the felony, leaving the case for trial as to the assault, the order sustaining it is not a final Judgment from which an appeal will lie. People v. Martin, 112. 3. SETTLING OF STATEMENT AFTER AN APPEAL. When a certificate of the Judge, settling a statement made after appeal from the judgment, is cancelled by the Judge, after the transcript on appeal from the judgment has been filed in the Supreme Court, the respondent is not entitled to have the appeal dismissed, but the appellant is entitled to have the appeal retained until he can procure the statement to be settled and certified. Flynn v. Cottle, 526. 4. DISMISSAL OF APPEAL.-A defendant who appeared separately in an action in which there were several defendants, and who was not served with notice of appeal, or made a party to any proceedings subsequent to the Judgment, cannot move to dismiss an appeal taken by one of the other defendants. Blanc v. Rodgers, 606. 5. DAMAGES FOR FRIVOLOUS APPEAL.-When an appeal is frivolous, and taken apparently for delay, the Court will impose damages on affirming the judgment. Kincaid v. Johnson, 618. See CONTEMPT, 1, 2, 3; PRACTICE, 13, 14; JUSTICES OF THE PEACE, &. APPEARANCE. See SUMMONS, 1. APPURTENANCES. 1. APPURTENANCES OF A MINING CLAIM.—If a mining company owns a mining claim, and buys a water ditch, "and the water rights thereto appertain ing," this purchase does not, of itself, constitute the ditch and water rights appurtenances of the mining claim. Quirk v. Falk, 453. ITEM.-If there is a ditch leading out of a creek, and a mining company cwns the ditch, and also owns a mining claim, and uses a portion of the waters of the creek in working its claim, it does not follow that the ditch is an appurtenance of the mining claim. Id. 8. PROOF OF WHAT IS AN APPURTENANCE.-The one who asserts that a ditch and its water rights are appurtenant to a mining claim, has cast on him the burden of proving that such is the fact. Id. ▲ IDEM. The party who buys a mining claim and its appurtenances, and who asserts that a ditch and its water rights passed to him by the conveyance, as appurtenances to the claim, must, in order to hold them as such, prove that they were appurtenances. Id. ASSESSMENTS. 1. "TAX' " AND "ASSESSMENT."-The fact that a statute designates as a "tax" that which in its elements is an assessment," does not make it a "tax." The question whether it is a "tax ог assessment" must be decided by the nature of the imposition. Doyle v. Austin, 354. 66 2. WHAT IS AN ASSESSMENT.—If a street is opened in a city, and to pay for the land taken, and the damages to improvements thereon or adjacent thereto, and injured thereby, and all other expenses, bonds are issued; and to pay the same and the interest thereon, an annual per-centage is directed to be levied on the lots benefited thereby, which per-centage is upon the enhanced value of the lots, as fixed by a board of public works, this imposition is an assessment and not a tax. Id. 8. IDEM.-In such case the interest to accrue on the bonds, and the discount suffered in converting them into cash, are incidental expenses, and the property benefited is only charged with the cost of the improvement. Id. 4. STATUTE IMPOSING AN ASSESSMENT.—When a statute for opening a street in a city provides that, to pay the damages and expenses incurred thereby, an assessment shall be levied on the lots benefited "according to the enhanced value of the respective parcels of lands as fixed" in a report of a Board of Public Works, the assessment must be limited to the increased value of each lot caused by the improvement, and must not include the value of the lot without the improvement. Id. 5. EXEMPTION OF PUBLIC PROPERTY FROM ASSESSMENT.-When, to pay the expenses of opening a street in a city, an assessment is imposed on the lots to be benefited thereby, in proportion to the benefits accruing to each, the exemption from the assessment, of lots belonging to the United States, to this State, and to the city, does not render the statute void, or the assessment illegal. Id. 6. COMMISSIONERS TO ASSESS SWAMP LAND.-When an Act, appointing Commissioners to assess swamp lands, provide that they shall jointly view and assess upon each acre a tax proportionate to the whole expense, all the Commissioners must be present both in viewing and assessing the land; and if only a quorum are present, the assessment is void, even if See STREET ASSESSMENTS and CONSTITUTIONAL LAW, 1, 8. ATTACHMENTS. 1. DIF SOLUTION OF ATTACHMENT LIEN.-The death of a defendant after the ATTORNEY AT LAW. 1. ORDER APPOINTING ATTORNEY FOR ABSENT DEFENDANT.-An order ap- 2. PROCEEDINGS AGAINST ABSENT DEFENDANT.-In proceeding against an ab- 8. APPOINTMENT OF ATTORNEY BY THE COURT. Whether a judgment rendered See PRACTICE, 20. ATTORNEY IN FACT. See POWER OF ATTORNEY. ATTORNEY-GENERAL. Bee CONSTITUTIONAL LAW, 7. AUDITOR. Bee COUNTY AUDITOR. BAR. 1. FORMER JUDGMENT AS A BAR.-A nonsuit suffered for any cause is not a 2. WHEN JUDGMENT OF DISMISSAL IS A BAR.-A judgment of dismissal, ren- See ESTOPPEL. |