As the statute was at the time (in 1879) the motion was made, a bill of exceptions was not necessary to bring up such papers. (Sec. 951, C. C. P.) In 1874 this section was changed by striking out of the last clause these words: "And of the bill of exceptions relating thereto," and inserting in their place the following: "And of papers used on the hearing in the Court below." With this change in the statute, we cannot see that a bill of exceptions is necessary under the circumstances. There is in the transcript a certificate of the Judge of the Court below, stating what papers were used on the hearing of the motion, and these papers are inserted in the transcript. The statute prescribes no mode by which it shall be made to appear to this Court on appeal what papers were used on the hearing of such a motion as the one before us. Under such circumstances, this Court has the power to prescribe by a rule how such papers can be brought before it on appeal. This it can do in order to make effectual the appeal given by law. As it has such right to make a rule in advance, it has a like power to ratify and adopt the mode followed in this case. We shall consider the papers named in the Judge's certificate as properly before us. The motion referred to was made by all the defendants served but one. No reason is given why he did not, though he had appeared and filed a demurrer, join in the motion. Nor does it anywhere appear in the moving papers that Martin, the defendant who did not join, was not a proper party to the action. As far as we can see, Martin intended in good faith to defend the action, and wished it tried in the County of Santa Clara where it was brought. Under these circumstances all the defendants should have joined in this motion, and as they did not do so, the motion was properly denied. (Fickens vs. Jones, decided in October, 1863, reported in 2 Cal. Dig., by C. H. Parker, Esq., Sec. 29, p. 83; Smiley vs. Hutton, 6 Wend. 508; Legg vs. Dorsheim, 19 Id. 700; Welling vs. Sweet, 1 How. Pr. Rep. 156; Simmons vs. McDougal, 2 Id. 77.) There is nothing said in this opinion contrary to what is ruled in O'Neil vs. O'Neil (opinion filed February 20, 1880.) That case was one of the class of cases mentioned in Section 382 of the Code of Civil Procedure. The case before us does not belong to that class. The order is affirmed. We concur: Sharpstein, J., Myrick, J. STATE TITLE TO LANDS SELECTED IN LIEU OF SCHOOL SECTIONS WITHIN EXTERIOR LIMITS OF UNCONFIRMED MEXICAN GRANTS. Where the Act of Congress of March 1, 1877, confirmed to the State the title, otherwise untransferred, of certain lands selected in lieu of school sections within the exterior limits of unconfirmed Mexican grants; but at the same time provided that such confirmation should not extend to lieu lands in possession of settlers claiming homestead or pre-emption rights, if, within twelve months after the passage of the Act, they should present to the proper Land Office their claims and proofs: Held, that, in default of such presentment of claim and proofs within the twelve months prescribed, notwithstanding the presentation of a previous pre-emption claim which had been refused, a State patent conveyed the title. Appeal from the District Court of the Seventeenth Judicial District, Los Angeles County. W. D. Gould and J. H. Blanchard, for appellants. MCKINSTRY, J., delivered the opinion of the Court: The action is ejectment the plaintiffs claiming title through a patent from the State of California. Defendant Jones is in possession of the land, and claims right thereto as a pre-emption settler. The jury found special facts and a general verdict for defendant Jones. The Court below set aside the general verdict, and gave judgment for plaintiffs upon special findings. The land in lieu of which the land in dispute was applied for by the assignor of plaintiffs, was at the date of the application within the exterior limits of a Mexican grant, the final survey of which has never been confirmed. (Finding No. 10.) The listing of the land in controversy to the State, therefore, did not transfer the title of the United States. The land in lieu of which the land was selected was not lost to the State. (Rosencrans vs. Douglass, 52 Cal. 213.) The first section of the Act of Congress of March 1, 1877, however, provides: "The title to the lands certified to the State of California, known as indemnity school selections, which lands were selected in lieu of the 16th and 36th sections, lying within Mexican grants, of which grants the final survey had not been made at the date of such selection by said State, is hereby confirmed to said State in lieu of the 16th and 36th sections, for which the selections were made." * * * The third section of the same Act provides: "The foregoing confirmation shall not extend to the lands settled upon by any actual settler claiming the right to enter not exceeding the prescribed legal quantity under the homestead or pre-emption laws; provided, that the claim of such settler shall be presented to the Register and Receiver of the District Land Office, together with proper proof of his settlement and residence, within twelve months after the passage of this Act," etc. The only action of defendant after the refusal of his offer and payment in 1872 was limited to an ex parte motion, asking for a hearing in September, 1876. He did not, within a year, nor at any time after the passage of the Act of Congress of March 1, 1877, present his claim or proofs to the District Land officers. Judgment affirmed. We concur: Ross, J., Thornton, J., Sharpstein, J. DEPARTMENT No. 2. [Filed December 13, 1880.] A. MONTGOMERY, RESPONDENT, VS. MICHAEL DONNELLY, APPELLANT. QUESTION AS TO WHETHER TRANSCRIPT SHOWS THAT EVIDENCE OFFERED, AND OBJECTIONS THERETO OVERRULED, WAS INTRODUCED. Where the transcript on appeal from a judgment in ejectment stated that plaintiff on the trial offered certain patents, that defendant objected thereto, that the objection was overruled and defendant excepted; and it was objected on appeal that the record did not show that the protest offered had been read or introduced in evidence: Held, that though there was no direct statement that the patents had been introduced in evidence, the statement of the offer, objection and ruling was to be considered equivalent thereto. Appeal from the District Court of the Tenth Judicial District, Colusa County. J. S. Harrington, for appellant. W. S. Good, for respondent. SHARPSTEIN, J., delivered the opinion of the Court: This is an appeal from a judgment entered in favor of the plaintiff in an action of ejectment, and from an order denying the defendant's motion for a new trial. The complaint is in the ordinary form. The answer denies each and every allegation of the complaint, and alleges that the defendant rightfully occupies the land under a homestead entry of it, for which he holds the receipt of the Receiver of the United States Land Office of the district within which the land is situated. Upon the trial the plaintiff offered the record of a patent of the land from the United States to the State of California, as recorded in the Colusa County Records. The defendant objected, "on the grounds that it is irrelevant and immaterial and incompetent; that there is no authority shown for the recordation of patents from the United States to the State of California in the county wherein the land is located, and that it is not the best evidence." The objection was overruled and the defendant excepted. The plaintiff next offered a patent from the State of California to the plaintiff for the same land, to which defendant objected that it is irrelevant and immaterial, no foundation having been laid for the offer." 66 The objection was overruled and the defendant excepted. The defendant then offered evidence which tended to prove that he had complied with the provisions of the laws of the United States "to secure homesteads to actual settlers on the public domain." The offer was objected to on the ground that the evidence was irrelevant and immaterial, and the objection was sustained. The defendant excepted. If the plaintiff had proved title in himself under a United States patent, the rulings of the Court upon these points were correct. (French vs. Fyan, 3 Otto, 169; Johnson vs. Towsley, 3 Wall. 72; Leese vs. Clark, 18 Cal. 572; Gibson vs. Chauteau, 13 Wall. 102; Miller vs. Dale, 44 Cal. 562; Churchhill vs. Anderson, No. 6883-opinion of this Court, filed September 28, 1880; Doll vs. Meader, 16 Cal. 325.) The counsel for defendant, however, insists that the record does not show that the patents offered in evidence were introduced or read in evidence; and there is no direct statement that they were. As each was offered an objection was interposed and overruled. This we think to be the equivalent of a statement that each was admitted in evidence. A direct statement to that effect would be more satisfactory. But we do not feel called upon to reverse the judgment on that ground, and that is the only ground upon which we could reverse it. Judgment and order affirmed. We concur: Thornton, J., Myrick, J. DEPARTMENT No. 2. [Filed December 14, 1880.] THE PEOPLE, RESPONDENT, VS. MARY WILLIAMS, APPELLANT. CRIMINAL LAW-VERDICT AGAINST EVIDENCE TO BE SET ASIDE. Where a person charged with stealing money from A, was convicted of grand larceny, but the record failed to show that A lost any money, or that defendant, though a bad character and unable to give a consistent account of money found in her possession, took any from A: Held, on appeal, that the judgment should be set aside as against evidence. CRIMINAL LAW--REMARKS OF JUDGE PREJUDICIAL TO ACCUSED. Where, on the trial of a woman for grand larceny from one Taylor, the Judge remarked in the presence of the jury "that while it appears beyond any reasonable doubt at any rate, and perhaps beyond any doubt, that this women had stolen money there, it does not appear that it was Taylor's money," and afterwards the Judge instructed the jury to disregard the remarks, which, he said, he had made under the impression that there was no testimony to show that Taylor had lost any money, and while he expected to advise the jury to acquit; but that subsequent testimony had been introduced as to Taylor's having money at her house at the time of the alleged larceny: Held, very grave error. PROCEEDINGS BY INFORMATION SUSTAINED. Where, after conviction upon information for grand larceny, a motion in arrest of judgment was made on the ground that the Court had no jurisdiction to try the offense without an indictment: Held, properly denied. Appeal from the Superior Court of the City and County of San Francisco. G. E. Harpham, for appellant. A. L. Hart, Attorney-General, for respondent. SHARPSTEIN, J., delivered the opinion of the Court: The appellant was tried, convicted and sentenced upon a charge of having stolen, on the eighteenth of February, 1880, $80 in gold coin belonging to one George Taylor. The evidence introduced tended to establish the following facts: Taylor, who had been a sailor in the United States navy, was discharged and paid off about the fifth of February, 1880, and on the seventeenth of that month he took from his pocket and showed to his comrade, Carr, who had also been discharged and paid off, eight or nine $20 pieces, and said that he intended to send some of it home to his family in Boston. Taylor and Carr came to San Francisco on said last mentioned day, and put up at the American Exchange Hotel, where they remained until the next morning, when they went |