Opinion of the Court.

The property sued for was a horse, eight hogs, one cow, and twenty-five tons of barley. The barley was raised on the plaintiff's farm.

The plaintiff had judgment, and the defendant appealed. The other facts are stated in the opinion.

W. L. Dudley and J. H. Budd, for Appellant,

Byers & Elliott, for Respondent.

By the COURT:

This is an action of replevin, to recover certain personal property, or the value thereof, alleged to have been converted to his own use by the defendant. At the time of the alleged conversion, the plaintiff was a married woman, and the property was her separate property. The husband of the plaintiff sold the property to the defendant, but the plaintiff did not join in the sale or in anywise consent to it.

The only point presented by the appellant is the refusal of the Court to give to the jury an instruction in these words:

"Fourth-If the jury believe from the evidence that the defendant purchased in good faith from the husband of plaintiff the barley sued for, and the same was delivered to defendant under such purchase, then the jury cannot find for plaintiff as to such barley."

Section six of the Act defining the rights of husband and wife provides that the "husband shall have the management and control of the separate property of the wife during the continuance of the marriage," but it also provides that the "personal property of the wife shall not be sold, assigned, or transferred, unless both husband and wife join in the sale, assignment, or transfer thereof, except property which she is

VOL. XLVL-6

Statement of Facts.

or may be authorized by law to sell, assign, or transfer as a femme sole."

It is clear that under this statute the defendant could not acquire a title to the plaintiff's property by the purchase from the husband alone. The right to manage and control does not carry with it the right to sell. Judgment and order affirmed.

[No. 3,655.]

HENRY W. KEISKER v. S. B. AYRES.

DISMISSAL OF ACTION.- If the defendant in an action gives the plaintiff notice that he will take his deposition, and procures and serves a subpoena for him to appear and give his deposition, and the plaintiff, without good reason, fails to obey the subpoena, the Court may, on motion of the defendant, dismiss the action.

FAILURE TO OBEY SUBPOENA. If a subpœna issued by a Notary for a witness to appear before him and give his deposition, fails to specify the precise locality where the Notary will take the deposition, the witness will not be excused for non-attendance, if he is not misled thereby.

APPEAL from the District Court, Fifteenth Judicial District, City and County of San Francisco.

The plaintiff brought this action to recover possession of a patent issued by the United States for a quarter section of land. The defendant was Register of the United States Land Office, at Marysville, California. In his answer, he alleged that the plaintiff entered the land for which the patent was issued as a preëmptor, and, before making the entry, took the required oath "that he had never had the benefit of any right of preemption in this State." That representations had been made by affidavit to the Cominissioner of the General Land Office, at Washington, that the plaintiff had before enjoyed the benefit of the right of preemption in this State, and that he had, by means of false

Argument for Appellant.

swearing, made the entry for which the patent was issued, and that the Commissioner had directed the defendant to retain the patent until the matter was investigated.

The defendant served notice on the plaintiff's attorney that he would take the plaintiff's deposition before E. L. Brown, a Notary Public at Davisville, Yolo County, at the office of said Notary, in Davisville, Yolo County, on the 12th day of March, 1872, commencing at eleven a. M. of that day. The subpoena directed the plaintiff to appear be fore "the undersigned, a Notary in and for Yolo County," etc., without giving the place. The Court below, when the case was called for trial, on motion of the defendant, dismissed the action. The defendant moved to vacate the judgment and grant a new trial. The statement was settled August 1st, 1872. The motion was denied, and the defendant appealed from the order and judgment.

The other facts are stated in the opinion.

Rogers & Newman, for Appellant.

Section four hundred and two of the late Practice Act, under which these proceedings were had, declares that " а subpoena may require * the attendance of a person to whom it is directed, at a particular time and place."

*

Section four hundred and three of the Practice Act declares who may issue a subpoena, and the power to punish for contempt upon failure to attend. But it is clear that, before such contempt could be committed, the "particular time and place" of attendance should be designated in the subpoena, as the above section (four hundred and two) declares should be the case.

The action of the Court below was based upon section four hundred and nine of the Practice Act, which existed before the Code took effect. The appellant respectfully contends that that section only justifies the Court "issuing" the subpoena disobeyed, if such could be construed to exist, in

Opinion of the Court.

punishing the refractory party, by striking out his complaint, or answer, and not in doing so, when the subpoena was issued by a mere Notary Public, as in this case.

L. D. Latimer, for Respondent.

By the COURT:

We think there was no error in striking out the plaintiff's complaint by reason of his failure to attend and give his deposition when summoned to do so by the defendant. It is clear that he was not misled or left in ignorance as to the place at which the deposition was to be taken, because of the omission in the subpana to specify the precise locality. He states in his affidavit that he went to the office of the Notary at the time appointed and remained "several minutes." It is clear, therefore, that he was not ignorant of the place, and that he understood the subpoena as requiring him to appear before the Notary at his office, which was the place designated in the notice served on his attorney. And it is equally apparent that if he went to the office of the Notary, at or about the appointed time, he left again immediately, for the purpose of evading the taking of his deposition. But the weight of the testimony tended strongly to show that he was not there at all at the time he states. When the motion to strike out the complaint was made, he was represented by his attorney, then present in Court, who resisted the motion, and made no objection for want of notice, and if the plaintiff was entitled to be served personally with a notice of the motion, he has not been deprived of a full opportunity to be heard on its merits. On his motion to vacate the order striking out the complaint, he made as full a showing as he could have made on the original motion, and has not been deprived of an opportunity to be fully heard on its merits.

Judgment and order affirmed.

Statement of Facts.

[No. 8,340.]

CALIFORNIA PACIFIC RAILROAD COMPANY v. R. B. ARMSTRONG ET AL.

LAND CONDEMNED FOR RAILROAD PURPOSES.- If a railroad company, under proceedings for condemnation, enters on the land under an order of the County Judge, and constructs its road across a tract of land in such manner that it is imbedded in the soil and becomes a part of the realty, and if the proceedings are dismissed and new proceedings for the condemnation of the land are commenced, the owner is not entitled to have the value of the tles and iron constituting the track included in his damages upon the final condemnation. ASSESSMENT OF BENEFITS IN TAKING LAND FOR A RAILROAD. If a part of a tract of land is taken for a railroad, and that part of the tract not taken is enhanced in value by the construction of the railroad, but receives no special benefits over other lands in the vicinity, and this enhancement in value is common to the contiguous lands, it is a benefit which is to be deducted from the injury caused to that part of the tract not taken.

APPEAL from the District Court of the Seventh Judicial District, County of Solano.

The plaintiff was a corporation organized to construct a railroad from the Straits of Carquinez, below Vallejo, in the County of Solano, to Sacramento and Marysville. In 1868 the plaintiff commenced proceedings to condemn land for its track in Solano County, in which a large number of land owners were defendants, and among the number, John and Alphonia Adamson, the then owners of the tract of land belonging to the defendant when the present proceedings were commenced. For some reason, the Adamsons were not served with process, and a judgment was entered in said proceedings as to the other lands, but none as to the land of the Adamsons, who afterwards sold to the defendant here. Before the commencement of this action, the former action was dismissed as to the Adamsons. Prior to the commencement of this proceeding, the plaintiff, without the consent of the Adamsons, laid its track across the land, and the Admsons afterwards sold to this defendant. This action was