time in the United States District Land Office, at Los Angeles, California. "That, at the time of making said application and selection, the Rancho La Liebre, within the limits of which the W. of Section 16, T. 9 N., R. 17 W., S. B. M. was situated, which was the basis of said application and selection in finding second above, had been finally surveyed and located by the proper authorities of the United States; and said lands were, at the time of said application and selection, actually lost to the State of California as school lands by reason of such final survey. "That said defendant, George W. Frasher, was a duly qualified pre-emption settler, and fully entitled to the privileges of the pre-emption laws of the United States, and settled upon said tract of land claimed by him, as above found, in good faith as such settler, and performed thereon all acts required by said pre-emption laws to entitle a person to preempt public land. That on the eighth day of June, 1876, the defendant applied to the Register and Receiver of the United States District Land Office, at Los Angeles, Cal., to file his declaratory statement in due form upon said land, as required by the laws of the United States. That, at the time of making said application, the defendant was living on said land with his family, and had made valuable improvements thereon. That on said eighth day of June, 1876, said defendant did tender and deposit his declaratory statement, in due form, with the Register and Receiver of the proper United States District Land Office, together with all legal fees therefor. "That afterwards-to wit, on or about the eighteenth day of December, 1876-said defendant made the requisite and usual proofs before the Register and Receiver of said United States District Land Office of his qualifications and his settlement, and his improvements on said tract of land, and tendered the same in writing, and deposited the same with said Register and Receiver; and at the same time tendered the full government price therefor, with all legal fees and commissions, and requested that he be permitted to enter said land, at said Land Office, under said pre-emption laws; and that said Register and Receiver refused to approve said claim of the defendant, and refused to permit him to enter said lands under said pre-emption laws, and refused to receive the purchase price tendered, and still so refuses. "That said defendant duly appealed from said action of the Register and Receiver, and that said claim is now pending before the United States General Land Office. "That on the day of, 1879, said defendant duly applied to the proper authorities of the State of California to purchase said land from the State, and that said application is now pending and undetermined." I agree with the Court below in its conclusions of law as follows: "That none of said lands thus included within the boundaries or exterior limits of the private grant-to wit, the Rancho Sausal Redondo-were public lands within the meaning of the acts of Congress granting lands to the State of California as school lands or as State indemnity lands, until the said claim covering them was finally decided to be invalid, and all of such lands were thus excluded from any mode of acquirement. They were not in a condition to be applied for or acquired by individuals, or selected by the State; and that the attempt of the Surveyor-General to remove the reservation, and to extend the public survey over said lands, and the filing of township plats including the same in 1868, was without authority of the law, and was wholly void. The evidence does not warrant the conclusion that the survey of the Rancho Sausal Redondo, in 1868, was made by Deputy Hansen under the eighth section of the Act of Congress, 1866. On the contrary, the evidence shows that said survey was not made under said Act, or by authority thereof. "That the defendant is in such privity with the United States, the paramount source of title, as enables him to attack the patent issued to plaintiff's grantors by the State for the land in controversy, and upon which plaintiff rests his title in an action at law or equity. "That the selection of said land was void as having been made without authority of law, and being void, the State had no title which it could convey to plaintiff's grantor; that said land was not intended to be granted by any law of Congress, and the listing of said lands to the State by the Commissioner of the General Land Office was null and void, and the patents from the State for said lands are void, and the plaintiff has no title to said land, or any part thereof. "That an invalid State selection is no bar to the rights of a pre-emption or homestead settler, and that the tender of proof and offer of payment by the defendant for said land placed him in the same relation as if the defendant had been permitted by the Land Office to do what in this respect was offered to be done." The judgment of the Courts below in favor of defendants, and the orders denying motion for new trial, should be affirmed. Myrick, J. APPEALS DEPARTMENT No. 2. [Filed January 6, 1881.] H. MARBURY, RESPONDENT, VS. JOSE DOLORES RUIZ ET AL., APPELLANTS. ERROR IN REFUSING TO STRIKE OUT PORTIONS OF PLEADINGS-How TO BE PRESENTED. Error in refusing a motion to strike out portions of a pleading should be presented by bill of exceptions; and if not so presented, it will not be noticed by the Appellate Court. ERROR IN OVERRULING DEMURRER NOT NOTICED ON APPEAL FROM ORDER REFUSING NEW TRIAL. In a foreclosure action, where there was an appeal from an order overruling an intervenor's motion for a new trial, but no appeal from the judgment: Held, that alleged error in overruling intervenor's demurrer to the complaint and in overruling intervenors demurrer to plaintiff's answer to the intervention could not be noticed by the Appellate Court. Appeal from the District Court of the Seventeenth Judicial District, Los Angeles County. F. P. Ramirez, H. T. Hazard and H. K. S. O'Melveney, for appellants. Barclay & Wilson and Bicknell & White, for respondent. THORNTON, J., delivered the opinon of the Court: This action was brought to foreclose a mortgage. The plainliff sues as the assignee of the note and mortgage sued on. The mortgagor, Jose Dolores Ruiz, together with Dolores S. de Abila and B. D. Hoffman, were made defendants. One Salvadora Ruiz, by leave of the Court, filed a complaint in intervention, in which she alleged that she was, at the time that the mortgage in suit was executed, and for some years prior thereto, the wife of the above-named mortgagor, and that when the said mortgage was executed, the property conveyed in mortgage was the homestead of herself and her husband; that said property, before the date of execution of the mortgage aforesaid, and up to the time that the complaint was filed, had been, and was, the residence of herself and her said husband. The plaintiff answered the complaint of the intervenor, and denied that the premises mortgaged were the homestead of intervenor and husband, and averred that though the premises had been selected and recorded as a homestead, at a date prior to the execution of the mortgage, that they had been abandoned prior to the date just referred to. The cause came on for trial, and a decree was rendered The in for plaintiff, foreclosing the mortgage in question. tervenor moved for a new trial, which was denied, and from the order denying her motion she appealed to the Court. It is argued on behalf of appellant that the evidence is insufficient the justify the decision of the Court. We have examined the evidence as set forth in the statement, and are of opinion that it sustains the decision made by the Court. It is said that the Court erred in refusing to strike out on motion of intervenor portions of the answer of the plaintiff to the complaint of the intervenor. If the Court committed any error in this regard, it should have been presented by a bill of exceptions. It is not so presented, and therefore it cannot be noticed on this appeal. The Court did not err in refusing to find as requested. Inasmuch as there is no appeal from the judgment, we cannot notice the alleged error of the Court upon the demurrer of intervenor to the complaint of plaintiff, and the demurrer by the same party to the answer of plaintiff to the complaint in intervention. But, could we notice them, we do not find that the Court erred in its rulings in regard to them. The order denying the intervenor's motion for a new trial was properly made and is affirmed. We concur: Sharpstein, J., Myrick, J. IN BANK. [Filed January 14, 1881.] THE PEOPLE, RESPONDENT, VS. AH CHOY AND JIM FOO, APPELLANTS. CRIMINAL LAW-NO APPEAL BY DEFENDANT FROM ORDER GRANTING HIM A NEW TRIAL. Where a defendant in a criminal case appealed from an order of a Superior Court granting him a new trial: Held, that the Penal Code did not authorize such an appeal. Appeal from the Superior Court of San Joaquin County. McStay & Swinnerton and W. M. Gibson, for appellants. A. L. Hart, Attorney-General, for respondent. By the COURT: The Attorney-General moves to dismiss the appeal taken by the defendant from an order of the Superior Court granting him a new trial. No such appeal is authorized by the Penal Code. Appeal dismissed. IN BANK. [Filed January 4, 1881.] EX PARTE WILLIAM CLARKE, ON HABEAS CORPUS. SARY. CRIMINAL LAW-CHANGE OF ATTORNEY-FORMAL SUBSTITUTION NOT NECESThe provisions of Sections 284 and 285 of the Code of Civil Procedure, in relation to change and substitution of attorneys, have no application to criminal cases; consequently a notice of appeal in a criminal case may be signed by any attorney authorized by defendant to take an appeal. Petition for writ of habeas corpus. McKissach & Rankin, for petitioner. MORRISON, C. J., delivered the opinion of the Court: The petitioner has been brought before us on a writ of habeas corpus, and his petition for a discharge having been denied, he now applies for admission to bail. The application is opposed on behalf of the People, on the ground that no appeal has been taken in the case. The petitioner was tried and convicted in the Superior Court of Monterey County of the crime of libel. On the trial of the case, T. Beeman, Esq., appeared as counsel for defendant, and the notice of appeal is signed by Charles W. Quilby, Esq. It was admitted on the hearing of this application that the person by whom the notice of appeal was signed was an attorney of the Court, and was authorized by the defendant to take the appeal. It is claimed, however, that no change of attorney was made in conformity to Sections 284 and 285 of the Code of Civil Procedure, and therefore, it is argued, that the notice of appeal should be disregarded. In our opinion the sections above referred to have no application to criminal cases, in which the defendant has a right to defend in person and with counsel. (Art. 1, Sec. 13, Constitution.) Section 283 of the same Code provides that an attorney and counselor shall have authority "to bind his client in any of the steps of an action or proceeding by his agreement filed with the Clerk or entered upon the minutes of the Court." It will not be pretended for a moment that this section has any application in a criminal case, for in all cases of felony the defendant must appear and plead in person. In our opinion the notice of appeal was sufficient, and, indeed, |