that he placed sixty-four bales of wool weighing 22,275 pounds with them for storage on October 31, 1876, upon agreement to pay storage, and it to remain until he chose to ship same away. On January 5, 1876 there were destroyed by fire 20,804 pounds of the wool, and 370 pounds of the remaining 1,471, so damaged as to be worth only three cents per pound. Wool was worth thirteen cents per pound, and whole loss claimed to be $2,741.52. Plaintiff claims that the fire and loss was through negligence of the defendant,-and that he afterward, before commencement of this action, tendered the full amount of storage, and demanded compensation, and has been refused. Defendant demurred to the complaint, as ambiguous, in not stating whether the claim for compensation was as a common carrier, or as a warehouse-man, and not showing how defendant was guilty of negligence. Defendant also demanded a change of venue to San Benito Couuty as the proper County for trial, and for convenience of witnesses; which was at first denied, as the affidavit of defendant was insufficient. A second affidavit was filed, upon which the Court did grant a change of venue, on October 6, 1877. A Bill of exceptions was filed by plaintiff October 10, 1877, and an appeal taken October 22, 1877, from the order granting change of venue. That order now affirmed, Remittitur forthwith. Moore, Laine & Leib, attorneys for plaintiff and appellant. S. F. Lieb, of counsel for appellant, Francis E. Spencer, attorney for defendant; and J. E. Foulds attorney for respondent, and S. W. Sanderson of counsel. [No. 5,623. Decided April 22, 1878.] JOHN ROSENFELD, Plaintiff and Respondent. VS. ALFRED W. REAY, JOSEPH W. REAY, and JOHN Appeal from the Twelfth District Court. San Francisco, FORECLOSURE OF MORTGAGE. STATEMENT OF THE CASE. On May 5, 1874, A. W. Reay gave to John Rosenfeld a promissory note for $5,000, payable two years after date, with interest at 9 per cent. semi-annually, and if not paid when due, to be compounded. Gave a mortgage on property on the N. W. corner of Haight and Buchanan Streets to secure its payment. No interest or principal having been paid, this action is brought, and judgment claimed for amount due, and counsel fees ($350), and a decree for the sale of the premises. A. W. Reay and Jos. W. Reay not appearing, default was entered against them. A. W. Reay demurs; also Joseph W. Reay and John Brickley. Both demurrers overruled, July 14, 1876. John Brickley, in answer, claims that the land mortgaged was owned in fee on December 28, 1869, by J. W. Reay and Edward Roper, and by them conveyed to Louis Schumacher, by a need, absolute on its face, but really as security for certain indebtedness; and Schumacher conveyed same to present plaintiff, to secure his indebtedness to plaintiff; and plaintiff had full notice and knowledge of the nature of the entire transaction. But Brickley avers that the said debt was paid before the commencement of this action. Brickley is a tenant of said Roper, and, as tenant, is entitled to possession of the premises, and that Alfred W. Reay has no title except as from Rosenfeld. Cause heard January 22d, 1877-after default of A. W. and J. W. Reay. No one appeared for Brickley on trial. No jury, and judgment for plaintiff for $5,000, and interest, $1,343, and costs, aggregating $6,346.25, on January 22, 1877. Appeal taken by defendant from the judgment on March 15, 1867. Judgment now affirmed, with 5 per cent damages. Remittitur forthwith. Warren Olney, attorney for plaintiff and respondent. [6009.-Decided May 1, 1878.] BANK OF SAN LUIS OBISPO, Plaintiff and Respondent, VS. CHAS. H. JOHNSON, Defendant and Appellant. Appeal from First District Court, San Louis Obispo Co. FORECLOSURE OF MORTGAGE. STATEMENT OF THE CASE. The defendant, on July 14, 1874, gave his promissory note to plaintiff, for $5,000, due two years after date, with interest at I per cent. per month, payable monthly, or, if not paid, to be compounded at same rate: This was secured by a mortgage on two parcels of land- one of 280 acres, and one of 160 acres in San Luis Obispo County. In case of default of payment of principal or interest the mortgagee to commence proceedings of foreclosure in the usual manner. The interest was paid down to November 1, 1875, and no more; hence plaintiff now brings action for foreclosure and sale of the land, October 5, 1876. Johnson demurred, which was overruled. Defendant failed to appear in time, and default was entered on January 16, 1877; and on January 17, a judgment and decree of foreclosure and sale of the land. A certified copy of the judgment was then procured from the Clerk of the Court, upon which the Sheriff proceeded to sell the land, which was bid off by Ć. H. Phillips, for the Bank, ior the amount of mortgage and costs ($6,188.11), on February 17, 1877, and mortgage satisfied. On September 24, 1877, upon an affidavit of McD. R. Venable, attorney of record for plaintiff, a motion was made to cancel the satisfaction of the mortgage. on the ground of a doubt of the validity of the sale, as being held under a certified copy of the judgment and decree only, and the sale be vacated and set aside, and a new sale be granted under the proper writ, etc.;-which was done October 8, 1877. From this order defendant appealed, November 10, 1877,-and from the judgment of January 17th. Judgment and order now affirmed. Remittitur forthwith. W. J. and E. Graves, J. M. Wilcoxen, attorneys for defendant and appellant. McD. R. Venable, attorney of record for plaintiff; and O. P. Evans, for same as respondent. [No. 5465. Decided April 22, 1878.] A. E. HEAD et al.. Plaintiffs and Respondents, Vs. JNO. C. BELL, Defendant and Appellant. RECOVERY OF RENT ON LEASE. STATEMENT OF THE CASE. Plaintiffs, Addison E. Head and Robt. F. Morrow, on April 23, 1866, leased to defendant, for 10 years, certain premises in San Francisco, at the intersection of Sutter Street with Montgomery and Market Streets, at a monthly rent ot $1,200, to be paid in advance on the first of each month. Failure being made of payment of $900 of the rent for March, 1876, and $1,200 for April, 1876, plaintiffs bring this action to recover said amounts, with respective interest. In answer, defendant claims, in bar and counter claim, that plaintiff closed up an outlet on the roof of the building so leased, in such a way that the rains accumulated on the roof and sagged the same, and leaked through, and spoiled and damaged his upholstery goods, and necessitated repairs to the extent and expense of $12,958, for which he claims judgment. Motion made by plaintiffs to strike out said answer and crosscomplaint, on May 27, 1876, and granted, on September 29, 1876, and judgment for plaintiffs for $2,100, and interest, amounting to $2,214.50, and costs, $121. Defendant appealed October 10, 1876, from the judgment. Judgment affirmed. Remittitur forthwith. S, Hydenfeldt, Jr., attorney fot plaintiff and respondent; Roche & Robinson, attorneys for defendant and appellant. [No. 5782. Decided April 19, 1878.] WM. B. KOLMAN, Plaintiff and Appellant. VS. THOS. HENNESSY, Administrator of the estate of E. W. Emery deceased, Defendant and Respondent. Appeal from Fifth District Court, San Joaquin County,— BOOKER Judge. ACTION by ASSIGNEE to recover moneys borrowed and entrusted. STATEMENT OF THE CASE. E. W. Emery died intestate March 23, 1875. On June 1, 1875, Thomas Hennessy was appointed Administrator of the estate by the Probate Judge of San Joaquin County. An order made by the Probate Court was published, on June 12, 1875, that creditors present claims within ten months from date of publication. Plaintiff claims that on March 23, 1875, -and shortly before his death,-Emery borrowed of A. M. and J, H. Kolman $855, and also received from them $245 more, to pay to one W. B. Johnson. The Kolmans became bankrupt, and M. Coleman, their assignee, sold their assets,including this claim, amounting to $1,102.50, to one Schlamm,-he conveyed the same to E. Schrier, who presented it to Hennessy as Administrator, for payment out of the estate. He rejected the claim, as did also the Probate Judge, when presented for his approval. On September 8, 1875, Shrier brought suit for the claim against the administrator, and was non-suited. In January, 1876, Shrier conveyed the claim to Wm. B. Kolman, who had full knowledge of all the previous proceedings. He presented the same to the Administrator and Probate Judge for approval, and allowance, which both again rejected. When Emery died he held three prommissory notes, pay. able to himself or order,-one signed by Koiman & Son, and four other persons for $700, bearing interest at 2 per cent. per month; the second signed by Kolman & Son, and E. Cannavan Jr., for $100 with interest at 11⁄2 per cent per month; and the third for $200, with interest at 2 per cent. per month,signed by Kolman & Son. On these the defendant as administrator sued for amount of first note, and obtained judgment against two of the obligors, but K. & Son, not being served with process, no judgment was entered as against them. No part of this judgment has been satisfied. Plaintiff brought this action within three months after his. presentation of the claim and its rejection;-which was tried without jury, and judgment rendered against him;-from which he appealed on May 18, 1877. Judgment now affirmed. Remittitur forthwith. J. M. Hogan, J. H. Budd, and Terry, McKnne & Terry, attorneys for plaintiff and appellant. F. T. Baldwin, and Aug. Munter, attorneys for defendant and respondent. Recent U. S. Land Decisions. GEORGE FERGUSON, Plaintiff in Error. VS. CHARLES MCLAUGHLIN. In error to the Supreme Court of the State of California. Mr. Justice Miller delivered the opinion of the Court. |