People v. Harris.

justice of the peace, to transmit the papers and the copy of proceedings, in the case of Rabe v. Hamilton and others.

It appears that the bond was filed with the justice on the 20th May, 1857, in the sum of two thousand dollars, and the proper affidavit of the two sureties was made before the justice. The bond was not marked "approved" by the justice, but was received by him without objection at the time. On the next day the justice endorsed upon the bond "not approved."

We think the justice should have rejected the bond promptly. Under the circumstances, we must hold that the bond was approved.

The next point made by the defendant is, that his costs were not tendered as required by law. The affidavit of Hamilton states that he was and is ready to pay the justice's fees on appeal, so soon as the papers were ready to transmit to the County Court, and offered to do so within the ten days allowed by law."

The 627th section of the Code requires the justices' fees to be paid before the justice is required to send up the papers. We think this provision applies to appeals from Justices' Courts, in cases of forcible entry and detainer. The sixteenth section of the act (Wood's Digest, 469,) provides that either party "may appeal within ten days, as in other cases tried before justices of the peace;" and the seventeenth section repeals all laws requiring a statement of the case, or evidence, or exceptions to be taken before a justice, in these cases of forcible entry and detainer. It would have been entirely unnecessary to put in this repealing provision, if the provisions of the Practice Act would not otherwise apply to such cases.

The true construction of this act, as to the mode of proceeding, would seem to be this: The case must be governed by the provisions of the act, so far as they go, and as to other matters not embraced by the words of the act, the general rules governing proceedings in these Courts will apply.

An offer to pay, when the papers are made out, is not sufficient to constitute a tender of the fees. The appellant must tender to the justice the amount of his fees, unconditionally. If the justice refuses to state the exact amount, then the appellant should offer to deposit with him such amount as he may demand, as surety for the fees, when ascertained. If an excessive deposit be demanded, the appellant should tender the amount he may judge sufficient; but he must be careful to tender an amount equal to the fees; otherwise his tender will not be good. The justice is not bound first to make out the papers, and then rely upon his fees being afterwards paid. He is not bound to credit the appellant.

In this case, the affidavit did not show a strict compliance with the statute; but we think this was no cause of demurrer. The affidavit was sufficient to authorize the issuing of the alternative

Hayden v. Davis.

writ. The right to the fees is a matter that the justice may waive. The provision was intended for his benefit. (Bray v. Redman, 6 Cal. Rep., 287.) This right he should assert by answer. The objection that the defendant's fees were not paid or tendered, was set up in the answer; but it is only alleged that the fees were not paid or tendered "previous to the time of the service of the alternative writ of mandamus." This allegation was a good excuse for not making out the papers, before the alternative writ was served, but was no justification for refusing to do so after the service; provided the fees were tendered a reasonable time before the answer. The failure of the defendant to state that they were not tendered at any time, either before or since the service of the writ, was fatal to his defence. Had he stated that the fees were not tendered before the service of the writ, but that they had since been paid or tendered, and therefore he had sent up the papers, and the facts had corresponded with the answer, then the Court should have taxed the relator with the costs of the proceeding.

The appeal itself was perfected when the bond was filed and notice given. If the appeal be not prosecuted, the same may be dismissed, after notice in the Appellate Court. ($367.) The provisions of § 627, in reference to the payment of fees, refer to the making out of the papers. The payment or tender of the fees does not strictly constitute a condition of appeal, but a condition precedent to sending up the papers; but this condition may be waived by the justice, or the fees may be paid at any time, so as to bring the case up before the County Court, within the period limited by the rules of that Court. The appeal is taken in ordinary cases, by complying with the provisions of §§ 624, 625, and 628.

Judgment affirmed.

HAYDEN v. DAVIS.

Where the defendant, a master of a vessel, received certain goods of plaintiff, to be delivered at a certain place, which he failed to do, and in the action brought thereupon he offered to prove that the goods belonged to a third party, who had forbidden such delivery, and that plaintiff had obtained possession of the goods by fraud: Held, that he was entitled to prove such facts.

To the general rule that a bailee will not be allowed to set up title in a third party, in an action brought by the bailor, there is an exception in cases where the bailor's possession was obtained by fraud,

APPEAL from the District Court of the Twelfth Judicial District, County of San Francisco.

The facts appear in the opinion of the Court.

Hayden v. Davis.

Shattuck, Bristol, and Spencer, for Appellant.

J. B. Hart for Respondent.

TERRY, C. J., delivered the opinion of the Court-BURNETT, J., and FIELD, J., concurring.

The defendant, who is master of a vessel, received from plaintiff's agent, at Petaluma, certain wheat, to be transmitted to plaintiff at San Francisco.

Defendant failed to deliver the wheat on demand, and plaintiff instituted this action for its recovery.

On the trial, defendant offered to prove by the depositions of several witnesses that the wheat in question was the property of one Edwards; that plaintiff had obtained possession of it by fraud and false representations; and that Edwards, the true owner, had forbidden defendant to deliver it to plaintiff.

The Court held that defendant having received the property from plaintiff could not set up title in a third party to defeat the claim of his bailor, and rejected the evidence of ownership in Edwards.

The general rule is that in an action by the bailor the bailee will not be allowed to set up title in a third party.

There is, however, an exception to this rule in cases where the bailor's possession was obtained by fraud.

In Hendman v. Wilcock, (9 Bingham, 378 N.,) defendant was employed to sell certain goods then in plaintiff's possession.

These goods were claimed by the assignees of a bankrupt, and notice of the claim given to defendant before the sale. The jury found that the possession of plaintiff was obtained by means of a fraudulent collusion with the insolvent, a verdict for defendant was entered, with leave to plaintiff to move for judgment for the amount of sale, if the Court should be of opinion that the defence was not admissible. After argument before the Court of Common Pleas, it was held that the evidence was properly admitted.

The case of King v. Richards, (6 Wheaton, 418,) is directly in point. The defendants were common carriers, and receipted for the goods, to be delivered in Philadelphia, to the order of the assignor of plaintiff. Defendant offered to show that the goods were the property of one Lasala, and that the possession of Hul & Co. had been fraudulently acquired, and that the goods had been delivered to the owner before notice of the assignment of the bill of lading to plaintiff.

This evidence was rejected, and judgment had for plaintiff. On appeal, the judgment was reversed. The Court said: "If the bailee receive the goods from the bailor, innocently, under the impression made by the bailor that he is the owner thereof,

McKune v. Montgomery.

or has the right to dispose of them in the manner he is doing, and therefore promises to return the goods to the bailor, it is very obvious that such a promise ought not to be regarded as binding, because obtained through a false impression made willfully by the bailor; and truth, which lies at the foundation of justice, as well as all moral excellence, would seem to require, in every such case, that the goods should be delivered to the true owner, especially if he demanded the same, instead of the wrongful bailor."

In the same case, (p. 427,) the Court say: "It may be correct enough to hold where the real owner of the property does not appear to assert his right to it, that the carrier or bailee should not be permitted, of his own mere motion, to set up a defence against the bailor, such right for him. But it would be repugnant to every principle of honesty to say that, after the right owner has demanded the goods of the bailee, the latter shall not be permitted, in an action brought against him by the bailor for the goods, to defend against his claim, by showing clearly and conclusively that the plaintiff acquired possession of the goods, either fraudulently, tortiously, or feloniously, without having obtained any right thereto."

The exception to the general rule as to the liability of bailees is recognized in Angell on Carriers, § 336; Story on Bailment, 450; Story on Agency, 217, and is, we think, founded in reason and justice.

A different rule would be productive of great hardship to the bailee in such cases.

"For when the adverse title is made known to the carrier, if he is forbidden to deliver the goods to any other person, he acts at his peril; and if the adverse title is well founded, and he resists it, he is liable to an action for the recovery of the goods by the person setting up such adverse title." (Story on Bailment, 582.

It follows that the evidence of ownership in Edwards was improperly rejected.

Judgment reversed, and cause remanded.

McKUNE v. MONTGOMERY et al.

In an action of ejectment, a tenant can not deny the title of the vendor of his landlord.

APPEAL from the District Court of the Sixth Judicial District, County of Sacramento.

People v. Dolan.

Smith & Hardy for Appellants.

Crocker and Robinson for Respondent.

TERRY, C. J., delivered the opinion of the Court-BURNETT, J., concurring.

This is an action of ejectment for lands in Sacramento county. It appears from the record that defendant Montgomery entered upon the premises in dispute, as the tenant of Caulfield, the vendor of plaintiff, and that defendant Bacon's possession was acquired from Montgomery.

Having entered under Caulfield, the defendants are re not in a position to question his title to the premises. Whether Bacon's entry was before or after his co-defendant had denied his landlord's title, and claimed to hold adversely, is immaterial. Judgment affirmed.

THE PEOPLE v. DOLAN.

An indictment charging "murder in the first degree," is good, as that offence includes murder in the second degree, and manslaughter.

The substantial facts necessary to constitute the crime charged, must appear in the indictment with sufficient certainty to enable the Court to pronounce a proper judgment, and the party to defend against the charge; but they need not be stated with the particularity required at common law.

It is sufficient if a man of ordinary intelligence can understand from the indictment, that, under such circumstances as showed a felonious intent, a mortal wound was inflicted by the defendant upon the deceased, of which wound he died within a year and a day from its infliction.

The absence of the word "deliberate" in such an indictment, where the crime is alleged to have been committed "with malice aforethought," is immaterial, the expressions being synonymous.

It is sufficient if the indictment charge the offence in the language of the statute defining it.

APPEAL from the District Court of the Fifteenth Judicial District, County of Butte.

The defendant was indicted, tried, and convicted of the crime of murder. The material averments in the indictment are as

follows:

"The said John Dolan, on the twenty-fifth day of October, A. D. one thousand eight hundred and fifty-seven, at a place near Evansville, and some two miles therefrom, in the county of Butte aforesaid, and before the finding of this indictment, did willfully, unlawfully, feloniously, and with malice aforethought, shoot, bruise, and wound, one Edward Sharkey, upon the body of the said Edward Sharkey, with a pistol, then and there in the