owner" in terms, without setting out the facts showing him to be such. poses of an affirmative defense setting up the ele2. A finding that plaintiff's claim is valid disments of defendant's claim, as a subsequent location would be invalid, no matter how correct in form the proceedings. 3. The fact that a notice of location is not re corded is immaterial, in the absence of evidence of a local rule or custom requiring it. Commissioners' decision. In bank. Appeal from superior court, Shasta county; AARON BELL, Judge. Action by John Souter against William W. Maguire and W. B. Espey, to recover possession of a quartz mining claim, with damages, and to restrain defendants from interfering with it. Judgment for plaintiff, and defendants appeal. James E. Isaacs and J. Chadbourne, for appellants. Clay W. Taylor and Edward Sweeny, (McKune & George, of counsel,) for respondent. Let it be admitted that the evidence shows the premises were not used as a dwellingplace at the time the homestead was set apart, and that they were used at the time of the death of the husband of the widow, and ever since had been used, as a store, in part as an office, and in part for storage purposes, and yet it may be that the premises were, as found by the court below, "suitable and proper for a homestead." If the premises, as we must presume them to have been, (there being no evidence to contradict the finding,) were suitable and proper for a homestead, they were properly set apart to the widow. In Re Bowman, 69 Cal. 245, 10 Pac. Rep. 412, which was a case where an insolvent had a homestead set apart to him, under the provisions of section 1465 of the Code of Civil Procedure, the appellate court said: "The appellant contends that the court below erred in so doing, because the premises set apart to the insolvent never constituted his residence. The statute regulating this matter does not require that they should ever have constituted the residence. The finding of the court is that the property set apart is suitable and proper for a homestead, and that was a sufficient basis for the order setting it apart." It would seem, therefore, that a homestead, such as the one here set apart, "may be carved out of any property left by the decedent which is capable of being made a homestead." In re Bowman, supra, citing Estate of Busse, 35 Cal. 310. We do not understand the case of In re Noah, 73 Cal. 590, 15 Pac. Rep. 290, (in which the opinion was written by the learned judge who concurred in what was said in Re Bowman, supra,) to be in conflict with what is here said. It was there decided that premises could be set apart as a homestead if there was a house or "edifice" thereon "which could be used as a dwelling-house," even if not occupied as such at the time the order setting it apart was made. It is there said, also, that it must be property "which could have been selected as a homestead during the continuance of the marriage." But there is nothing in this record to show but what the premises here involved could have been selected as a home-ject that the findings do not dispose of cerstead during the marriage, and could have tain issues raised by the pleadings. But the been used as a dwelling-house. The appel-issue as to abandonment is sufficiently dislant has abandoned all other contentions, except the one discussed above. We advise that the order be affirmed. I concur: BELCHER, C. C. HAYNE, C., took no part in the decision. PER CURIAM. For the reasons given in the foregoing opinion the order is aflirmed. (78 Cal. 543) SOUTER v. MAGUIRE et al. (No. 12,646.) (Supreme Court of California. March 30, 1889.) MINES AND MINING-QUIETING TITLE. 1. In an action to quiet title to a mining claim it is sufficient for laintiff to allege that he is "the HAYNE, C. Action to quiet title to a mining claim, and for an injunction. The trial court gave judgment for the plaintiff, and the defendants appeal. The appellants make a number of points in regard to the pleadings and findings, which are based upon the idea that it is not sufficient in cases of this character for the plaintiff to allege that he is "the owner" of the property, but that he must set out the facts showing him to be such. But ever since the case of Payne v. Treadwell, 16 Cal. 242, it has been held that the ownership is the ultimate fact, and that, as a general rule, it is sufficient to allege it in terms. Garwood v. Hastings, 38 Cal. 217; Ferrer v. Insurance Co., 47 Cal. 431; Miller v. Brigham, 50 Cal. 615. And this is true in actions to quiet title to mining claims. Thompson v. Spray, 72 Cal. 534, 14 Pac. Rep. 182. The findings are more specific than the complaint. They set forth a number of secondary facts, from which it necessarily follows that the plaintiff's allegation as to ownership is true. It is well settled that this is proper. Coveny v. Hale, 49 Cal. 555; Water Co. v. Richardson, 72 Cal. 601, 14 Pac. Rep. 379. The appellants ob posed of by the finding that when the claim was located the plaintiff "took possession of said claim, and constantly and continuously maintained such possession, and performed annually thereon the assessment work and labor required by law, to-wit, $100 per annum for each and every year down to and including the time of the commencement of this action." The affirmative defense, setting up the elements of the defendant's claim, is disposed of by the findings showing that the plaintiff's claim was valid; for if the plaintiff's claim was valid, a subsequent location by another, no matter how correct in form the proceedings may be, is invalid. Belk v. Meagher, 104 U. S. 284. And the issue as to damages is immaterial, because R. M. F. Soto, (Herrman & Soto, of counsel,) for appellant. S. F. Geil and H. V. Morehouse, for respondent. the judgment did not give plaintiff any damages. The pleadings and findings seem to us to be sufficient. The appellants contend, however, that the findings are not supported by the evidence. It is expressly admitted SHARPSTEIN, J. From the 1st day of June, that it must be held that the plaintiff per- 1883, to the 26th day January, 1885, plaintiff formed the required amount of work. The and defendant were partners doing business respects in which it is claimed that the evi- at Salinas city, under the firm name of Jepdence is insufficient are the following: (1) sen & Beck. On the last-mentioned date It is said that there is no evidence that the said partnership was dissolved by mutual plaintiff discovered a vein or lode; but we consent, and an accounting had between the think there was sufficient evidence on this parties of all their partnership dealings and point. (2) It is contended that the plaintiff transactions, and it was agreed between them never put up a notice of location; but we that all the debts owing by the partnership think that the evidence shows that he did. should be equally paid by them, and that all The fact that the notice was not recorded is moneys owing to the partnership should be immaterial, there being no evidence of a lo- paid to and collected by the plaintiff, and by cal rule or custom requiring it to be recorded. [him be applied to the payment of the debts Thompson v. Spray, 72 Cal. 533, 14 Pac. Rep. of the partnership. The partnership at that 182. (3) It is urged that there was no evi- time owed $1,848.73, and there was owing dence that the plaintiff marked off the loca- to it $1,027.97. Of the amount due the firm tion on the ground so that its boundaries plaintiff collected $664.51, and the residue of could readily be traced; but the court finds the debts owing to the firm is worthless, and that he did. And there is evidence that he of no value whatever. Plaintiff has paid all marked the corners of the end lines, and the indebtedness of said firm, which is placed a stake or blazed a tree at each corner $1,154.27 more than the sum realized from of the claim, and in places "brushed out" the debts owing to the firm. Plaintiff claims the lines, so that a person could get through, that one-half of such excess should be paid and placed a notice in the center of the by defendant, who refuses to pay it, although claim, defining its boundaries. This was requested so to do. Wherefore plaintiff brings sufficient under the circumstances. Cross this action, and demands judgment for the Co. v. Europa Co., 15 Nev. 384; Du Prat v. sum of $546.84, together with interest thereJames, 65 Cal. 558, 4 Pac. Rep. 562; Noon-on from the 26th day of March, 1885. The day Co. v. Orient Co., 6 Sawy. 310, 311, 1 Fed. Rep. 522. The other matters do not require special notice. We therefore advise that the judgment and order denying a new trial be affirmed. We concur: BELCHER, C. C.; FOOTE, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment and order denying a new trial are affirmed. (78 Cal. 540) JEPSEN . BECK. (No. 11,904.) (Supreme Court of California. March 30, 1889.) PARTNERSHIP-RIGHTS AND REMEDIES INTER SE. 1. Where, after the dissolution of a partnership, all its available assets were collected and applied to the payment of its debts, and plaintiff, one of the members, paid the balance of the indebtedness of the firm, he could maintain an action against the other member of the firm to charge him with his share of the indebtedness so paid, although no defendant demurred to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled, and the defendant interposed a general denial of all the allegations of the complaint. The issues were tried by a jury, which rendered a verdict in favor of the plaintiff for the amount claimed in his complaint. Defendant moved for a new trial, which was denied, and from the judgment and said order this appeal is taken. Appellant's contention here is that the court erred in overruling the demurrer and in denying a motion for a new trial. The objection urged against the complaint is that it does not show a complete settlement and accounting, and a balance struck between the parties. We think it does show a complete settlement and accounting, but does not show a balance struck between the parties. The rule is well settled that one partner cannot maintain an action against another, to recov 2. Evidence of what an agent of the plaintiff said er an amount claimed by him by reason of to the wife of his copartner, on being sent to have partnership transactions, until there has been the latter sign a notice of dissolution, was inad-a final settlement of the affairs of the concern missible to contradict the plaintiff. balance had been struck between them. Appeal from superior court, Monterey county; J K. ALEXANDER, Judge. Action by J. Jepsen against George P. Beck. The parties had been copartners, and the exclusion of evidence of what Johnson, an agent of the plaintiff, had said to the wife of the defendant, on being sent to have the latter sign a notice of dissolution, was assigned as error. Judgment was given for plaintiff, and defendant appeals. by discharging its liabilities, collecting its assets, and definitely ascertaining the surplus to a share of which he is entitled. Bates, Partn. 849. The reasons for this rule have been variously stated, but this case, as we view it, is not within any of them. The complaint shows that there are no outstanding demands against the partnership, and no outstanding debts to be collected, or that can be collected, so that the judgment to be rendered will be a final settlement between the The evidence introduced by the plaintiff tended to prove all the material allegations of the complaint, and, although that of the defendant tended to disprove some of them, we cannot disturb the order denying the motion for a new trial, on the ground that the evidence is insufficient to justify the verdict. The objection to the question put to Mrs. Beck by defendant's attorney for the purpose of contradicting Jepsen, the plaintiff, as stated by said attorney, was properly sustained. Evidence of what Johnson told her was inadmissible for that purpose. Our conclusion is that the judgment and order should be affirmed. Judgment and order affirmed. partners. Under our system of procedure | various questions which arise out of those the defendant might have had in this action, incidents and consequences. Moreover, alhad he desired, a discovery and accounting, though the Codes define slander as a "false which certainly obviates the principal objec- and unprivileged publication" of certain mattion to the maintenance of such an action in ters, they do not declare what shall constia case like this. The demurrer was properly tute "publication." For the determination overruled. of these questions, therefore, as there are no provisions about them in the Codes,-we must look to the common law, which is the basis of our jurisprudence. Pol. Code, § 4468; Van Maren v. Johnson, 15 Cal. 312. It is admitted to be the settled rule that there can be no publication within the meaning of the law of slander unless the words alleged to be slanderous are spoken to, and in the presence of, a third person; that is, a person other than the one who speaks and the one to whom the words are spoken. A man entirely alone cannot commit slander by talking aloud to himself. And the final question to be solved is whether a wife, when spoken to by her husband in the privacy of home, and not in the presence of others, is a "third person" within the meaning of the law under review, or whether, under those circumstances, there should be applied the doctrine that the husband and wife are, civilly, one person. There is no doubt of the general common-law rule that the civil existence of the wife is merged in that of her husband. Blackstone says that "by marriage the husband and wife are one person in law," and that "the legal existence of the woman is suspended during the marriage, or, at least, is incorporated and consolidated into that of the husband." Volume 1, p. 442. Upon this Estee, Wilson & McCutchen, J. C. Martin, principle of the legal union of husbands and and W. F. Goad, for appellant. W. W. Al-wives most of their rights, duties, and disalen, A. R. Cotton, and W. H. H. Hart, for respondent. We concur: MCFARLAND, J.; THORNTON, J. (78 Cal. 486) SESLER . MONTGOMERY. (No. 11,359.) (Supreme Court of California. March 23, 1889.) SLANDER-PUBLICATION-HUSBAND AND Wife. Words spoken by a husband to a wife, not in the presence of any other person, do not constitute a publication within the meaning of the law of slander. In bank. On rehearing. For former opinion, see 19 Pac. Rep. 686. MCFARLAND, J. Action for slander. Verdict and judgment for plaintiff. Defendant appeals from the judginent and from an order denying a new trial. The evidence shows that the alleged slanderous words were spoken (if at all) in the house of the defendant in a conversation addressed exclusively to his wife; and the question to be determined is this: Did the speaking of the words, under these circumstances, to his wife alone, constitute a "publication" within the meaning of that word as used in the definition of slander? (The plaintiff was eavesdropping, and claims to have heard the alleged slanderous words from a point outside of the door of the room in which defendant and his wife were talking.) The Codes of this state provide how marriages may be entered into and how divorces may be obtained, and they also have certain provisions, different from the rules of the common law, about the property of the spouses, and, to a limited extent, about their power to make contracts, etc. But in the Codes there is no attempt made to change the essential nature of marriage, or to state its manifold incidents and consequences, or to establish new rules for the solution of the bilities depended. They could not be wit- 2. Though the bill of sale was not executed and recorded as required by statute, it was a valid chattel mortgage as between the parties, giving and on his being compelled to pay the costs for defendant a right to take possession of the cattle; which he was security, the legal title to the cattle vested in him, and plaintiff could not thereafter maintain replevin for them. 3. As between the parties to the bill of sale, where no rights of third parties are involved, an objection that it is void for uncertainty in the description of the cattle cannot be sustained, where tiff, and were branded as specified in the bill of the cattle taken by defendant belonged to plainsale. Appeal from district court, Jefferson county. ery of a defamatory manuscript by a husband | avoidance. Held, that on the bill of sale and its to a wife was not a publication. And every consideration being proved, the burden of proof was on plaintiff. sound consideration of public policy, every just regard for the integrity and inviolability of the marriage relation,-the most confidential relation known to the law,-should restrain a court from establishing the exception upon which the judgment in the case at bar rests. When husbands and wives talk to each other alone, the conversation differs but little from the process of talking to one's self, or, as it is sometimes called, "thinking aloud." There is no intention that the conversation shall be repeated to others, and no presumption that it will be. It would be strange, indeed, if a husband or wife could not safely say anything to the other about their neighbors or acquaintances which he or In August, 1884, Robert Standering, apshe would not feel warranted in saying to pellee's intestate, and plaintiff below, comthe world. Such a rule would destroy all op-inenced this action against Peter C. Horn, portunity for confidential conference, advice, the defendant, for the recovery of 25 head of or suggestion. To a curious person asking cattle, alleging in his complaint that he was what had occurred between a husband and the owner, and entitled to the possession wife in the seclusion of their home, the ap- thereof; that defendant had, without his conpropriate answer would be, id est nullum sent, wrongfully taken said property, and tui negotii. It has been held in another had refused to return the same when restate that there was a sufficient publication quested; wherefore plaintiff prayed judgof a libel where a letter was sent to a wife ment for the recovery of the possession of containing defamatory matter about her hus- said cattle, or for the sum of $1,000, the value band; and it is argued that the court making thereof, in case the delivery could not be had, the decision must have held the wife to be a and for damages and costs of suit. The dethird person. Scheneck v. Scheneck, 20 N. fendant, Horn, by his answer, after certain J. Law, 208. Whether or not that decision specific denials of the allegations of the comwas a correct exposition of the law, it is plaint, alleged, among other things, that clear, at least, that another principle was in-plaintiff had bargained and sold to defendant volved. As the court say in that case: "Such said cattle for a valuable consideration, which a communication, made directly to the wife, sale was dependent upon a certain condition is an attempt to poison the fountain of do- of defeasance to the effect that plaintiff should mestic, peace, conjugal affection, and filial pay all the costs in certain suits wherein obligation at their very sources." There the Standering was plaintiff against one John exception which was allowed to the general Carrothers, then depending before C. M. rule was in support of the confidential rela- TAYLOR, Esq., justice of the peace, in which tion of marriage, while in the case at bar the suits defendant, Horn, had become security exception sought to be established would for costs at the instance and request of plainbe destructive of that relation. Our conclu- tiff; that upon the determination of said suits sion is that a communication from a husband plaintiff did not pay said costs, but neglected to a wife, not in the presence of any other and refused so to do, though often requested person, does not constitute a publication by defendant; that defendant then and there within the meaning of the law of slander. became liable to pay, and did pay, said costs, It follows from this conclusion that the judg-amounting to the sum of $53.35, whereby ment in the case at bar was erroneous. said bargain and sale of said cattle became Judgment and order appealed from reversed, and cause remanded. We concur: BEATTY, C. J.; WORKS, J.; SHARPSTEIN, J.; PATERSON, J.; THORNTON, J. (12 Colo. 310) and was absolute; and that thereafter, and on or about June 12, 1884, defendant did gather and take into his possession said cattle; that to give plaintiff full notice, and to close out all equities, if any, plaintiff might have in said cattle, defendant advertised said cattle for sale, giving due notice of the time and place of said sale, and did sell the same at public vendue for the highest and best price that was offered therefor; that at said Sale one Sarah J. Collier became the purchaser, and that after said sale and up to and 1. In an action to recover cattle, defendant plead-at the time of the commencement of this aced a bill of sale from plaintiff to him of the cattle, on a condition of defeasance that plaintiff should pay all costs in certain pending suits for which defendant had become plaintiff's security. Plaintiff's replication denied the giving of the bill of sale, but contained no averment of the payment of the costs referred to therein, nor of anything in HORN v. REITLER. (Supreme Court of Colorado. March 1, 1889.) REPLEVIN - BURDEN OF PROOF - CHATTEL MORT GAGE-BILL OF SALE. tion defendant had possession of said cattle, pasturing the same for said Collier, at her request; that by the sale of said cattle there was realized only enough to repay defendant the costs by him paid in said suits, and the given in suit against J. Carrothers, in justice court, default having been made in the payment thereof, I having been compelled to pay the same. P. C. HORN." The evidence further shows that Horn sold the cattle at about 10 o'clock, June 30th, and that one Collier bought them. (The abbreviation before the name "Collier" looks more like "Mr." than "Mrs.," but might be intended for the latter.) The court directed the jury to return a verdict for the plaintiff on the ground that defendant disclaimed ownership, and that the evidence did not show ownership of the cattle in Sarah J. Collier. M. J. Bartley, for appellant. A. H. De France and Robert E. Foote, for appellee. additional costs and charges of gathering | sale twenty-five (25) head of cattle branded said cattle and ranching the same pending, which I hold under bill of sale from the sale; that before said public sale plaintiff Robert Standering to secure me in his bond, well knew defendant had taken possession of said cattle under said bill of sale, and of the payment of the costs aforesaid by defendant, and had full knowledge of the intended sale at public vendue, and of the time and place thereof; that plaintiff, prior to said sale, well knew that defendant had paid said costs, and the amount thereof, but did not repay, nor offer to repay, the same to defendant. The plaintiff, by his replication, denied that he ever sold or delivered the cattle, or any of them, to defendant; or that he ever gave defendant a bill of sale therefor, either with or without a condition of defeasance; or that defendant had any authority or right whatever to take or sell said cattle, or any of them; or that said Collier was at any time the owner, or that she had any right or interest in said cattle, or any of them. On the trial it was admitted by defendant that Standering was the owner of the cattle at the time of the sale thereof to defendant as alleged in the answer, and that defendant had refused to deliver them to plaintiff on his de-answer; and did Horn acquire rights theremand, as alleged in the complaint. The execution and delivery of a certain bill of sale of the cattle by plaintiff to defendant, and the consideration therefor, substantially as alleged in the answer, were proved without contradiction; said bill of sale being in the words and figures following: "Bailey, Colo., April 11, 1884. I hereby assign, transfer, and sell to P. C. Horn, twenty-five (25) head of cattle branded to secure him for his bond, given for me in my suit against J. Carrothers, in justice's court before C. M. Taylor. If said costs are paid by me this bill of sale shall be void. ROBERT STANDERING. W. W. HOOPER." ELLIOTT, J., (after stating the facts as above.) Under the pleadings and admissions on the trial the material issues to be tried were: Did Standering make a sale of the cattle to Horn, with a condition of defeasance for a valuable consideration, as alleged in his under which had not been divested at the time of the commencement of the action? The proof and introduction of the bill of sale dated April 11, 1884, given by Standering to Horn as security for his giving the bond for costs, substantially sustained the first issue in favor of the defendant. The plaintiff had pleaded nothing in avoidance of this bill of sale. The replication denied the giving of the bill; but it contained no averment of the payment of the costs referred to therein, nor of any other matter in discharge or avoidance thereof; nor did it contain any traverse or avoidance of any other material matter contained in the answer; so that, even if plainConsiderable evidence was introduced tend- tiff might show such matters in evidence ing to show the payment of costs by Horn on without pleading them, the bill of sale and account of the bond given by him for Stand- the consideration therefor being proved, the ering; but there was no evidence tending to burden was upon the plaintiff to show his show that Standering had ever repaid or right to repossess the cattle. The bill of sale offered to repay the same, or that he had ever was in effect a chattel mortgage. Though in any manner procured the release of Horn not executed and recorded as required by from the bond which he had given for his statute, it was nevertheless a valid mortgage (Standering's) benefit. Horn had requested as between the parties; and as soon as Horn Standering to look after the matter of these received it he had a right to take immediate costs, but it was neglected, and Horn was possession of the cattle, and hold them as annoyed, threatened, and sued in consequence security against his liability on his bond. thereof. Horn took the cattle with the Jones, Chat. Mortg. § 1 et seq.; Landon v. knowledge of Standering, and publicly ad- Emmons, 97 Mass. 37. Standering having vertised and sold them, as alleged in his an- neglected for an unreasonable time to pay the swer. The evidence tended to show the post-costs, so that Horn had to pay them to esing of several notices in the immediate cape being pursued on his bond, the legal vicinity of the sale,-one at the school-house, another at the post-office; and that, after the posting of the notices, and before the sale, Standering was conversed with by one of his neighbors about the matter. Defendant offered to show that the notice was as follows, or similar to it: "Notice Mortgagee's Sale. The undersigned will on Monday, June 30, 1884, at ten o'clock A. M., at my place in Deer Creek in Park county, Colo., offer for title to the cattle became vested in Horn, and he had a right to sell them, or to keep them to reimburse himself for all his necessary expenditures on account of the bond: and thereafter a suit in replevin by Standering for the recovery of the cattle could not be maintained. A mortgagor, after condition broken, while the chattels remain in the hands of the mortgagee, may under proper circumstances maintain a bill in equity to redeem or a bill |