SHARPSTEIN, J.:

If there is evidence sufficient to justify the findings that Llewellyn Kidder executed a conveyance of the demanded premises to Mary, his wife, and that she accepted said conveyance; and that at the time of the execution and delivery thereof said Llewellyn Kidder understood the nature, force and effect of said act, and that said act was not the result of his insane delusion, the judgment of the Court below must be affirmed. The fact that the deed was found among the papers of the grantee after her death is some evidence, at least, that it had been delivered to and accepted by her. So that evidence which only tended to prove that it had not been de livered to or accepted by her, would simply raise a conflict in the testimony. But there was evidence independently of the fact of possession which tended to prove that she did accept the deed.

As to the mental condition of the grantor at the time he executed the deed, there is clearly a conflict in the evidence, and we think that the Court was justified in finding as it dil upon that issue.

We do not think that the Court erred in overruling the cbjection to the testimony of Mr. Houghton. It tended to prove a motive for the making of the deed, and was admissible under the issues being tried.

No question concerning the will of Mrs. Kidder was involved in this case, and it was not error to exclude evidence as to its existence or destruction.

We do not think that the Court erred in admitting the testimony of the witness Jesse Kidder as to what Mrs. Mary Kidder said concerning the deed when she had it in her hands, in the presence of the witness. Upon the question of acceptance it might have an important bearing. We can not conceive why evidence of the acts and declarations of the grantee in regard to the deed while it was in her actual possession would not be admissible upon the question of her acceptance of it; or why evidence of the declaration as well as of the acts were not admissible.

We are unable to discover any principle upon which evidence of the declarations of Mary Kidder as to what was

done or said by her husband some time after the execution of the deed was admissible. Upon the question of his sanity at the time of the execution of the deed evidence of what he said and did afterwards was admissible. But we know of no rule by which a witness could be allowed to testify to what somebody else said about the acts or conduct of the person alleged to have been insane. Suppose that it could have been shown that Mrs. Kidder communicated to some one that at some time after the execution of the deed her husband acted like an insane person, could it have any bearing upon the issue of sanity unless it tended to prove that he was either. sane or insane? And for the purpose of proving that he was or was not, it was clearly inadmissible. It is sometimes important to prove that a certain declaration was made without regard to its truth or falsity. But that is not this case. Here it was only important to show what were the acts and conduct of the person alleged to have been insane. It was not in any sense important to show what Mrs. Kidder, who had not been and could not be called as a witness, had said they were.

Judgment affirmed.

MORRISON, C. J., and SHARPSTEIN and THORNTON, JJ., concurred.

[No. 8,390.- Department Two.]
May 9, 1882.

FARMER SANBORN v. SUPERIOR COURT OF CONTRA COSTA COUNTY.

JURISDICTION OF JUSTICE'S COURT AND OF SUPREME COURT ON APPEAL ACTION FOR THE CONVERSION OF PERSONAL PROPERTY. - CONSTUTIONAL LAW. In an action in a Justice's Court for the conversion of personal property the complaint alleged the property to be of the value of two hundred and fifty dollars, and that plaintiff had sustained damages in the further amount of fifty dollars; and demanded judgment for two hundred and ninety-nine dollars and costs. Judgment was entered accordingly, and the defendant, after having appealed to the Superior Court, applled to this Court for a writ of prohibition.

Held: The Justice's Court had jurisdiction were it otherwise, and the Superlor Court would have jurisdiction of the appeal.

APPLICATION for a writ of prohibition to the Superior Court of Contra Costa County.

G. W. Laughn, for Plaintiff.

No appearance for Defendant.

THORNTON, J.:

This is an application for a writ of prohibition made on the following state of facts: On the twelfth of September, 1881, J. Cottrell commenced an action against the petitioner, Farmer Sanborn, in a Justice's Court of Contra Costa County to recover damages for the conversion of personal property. The property is alleged in the complaint to be of the value of two hundred and fifty dollars, and the further allegation is made that the plaintiff has sustained damages to the amount of fifty dollars. The applicant states further in his petition as follows: "And without waiving any part of the amount so claimed, the plaintiff prayed judgment for the sum of two hundred and ninety-nine dollars damages and for costs." In this action defendant demurred and objected to the jurisdiction of the Court. The demurrer was overruled, and the Court on a trial subsequently had rendered judgment for plaintiff for two hundred and ninety-nine dollars damages and for costs. The petitioner then appealed to the above mentioned Superior Court on both questions of law and fact. In this Court the same objection was made by petitioner, which was overruled, and the cause was afterwards set down for trial. The application is here made to restrain the Superior Court from proceeding to try the cause or to take any steps in it.

The application is novel and singular. The party appealing asks that a Court shall be restrained from trying the appeal which he prosecutes. The novel status is presented of a party invoking by his own act the jurisdiction of a Court, and then denying it and asking that it be restrained from exercising it. Such contradictory positions with reference to the same matter, sometimes called "blowing hot and cold," do not commend petitioner's application. (See Broom's Leg. Maxims 169.) It seems to us that the appellee would have a right to

have the appeal determined and final judgment entered either for or against him. But waiving this, we see nothing in the objection. It seems to us clear that the Justice's Court had jurisdiction; and if it did not, the Superior Court certainly had to determine the appeal. If the judgment of the Justice's Court was void for want of jurisdiction, still the Superior Court had jurisdiction on appeal.

That the Justice's Court had jurisdiction appears from Section 112 of the Code of Civil Procedure (See Act of April 1, 1880, Amendments of C. C. P. for 1880, 35), passed to carry out the provisions of Sec. 11 of Art. vi, of the Constitution. The statute does not trench upon the jurisdiction of the Superior Court (see Sec. 5 of Art. 6 of Constitution), as regards the amount determinative of jurisdiction of the Court last named. The demand here is the amount for which judgment is asked, viz., two hundred and ninety-nine dollars, or the ad damnum clause (Solomon v. Reese, 34 Cal. 33; Maxfield v. Johnson, 30 id. 545; Skillman v. Lachman, 23 id. 198), and the value of the property in controversy is two hundred and fifty dollars. Adopting either criterion of jurisdiction, the amount named in the ad damnum clause or the value of the property, the Justice's Court possessed jurisdiction.

It is said that the plaintiff did not waive any part of his claim, which amounted to three hundred dollars. But he did waive it by asking judgment for two hundred and ninety-nine dollars. Such a prayer for judgment was intended to be a waiver and should be so construed.

We are of opinion that the Justice's Court had jurisdiction; but whether it had jurisdiction or not, the Superior Court had jurisdiction of the appeal, and it follows that the petitioner is not entitled to the writ.

The application should therefore be denied, and it is so ordered.

MORRISON, C. J., and SHARPSTEIN, J., concurred.

[No. 8,241.-Department One.]

May 12, 1882.

LUTHER C. TIBBETS ET AL. v. THOMAS BLADE.

ACTION FOR PUBLIC NUISANCE — JUDGMENT ON THE PLEADINGS.- Appeal from a judgment for the defendant in an action for damages for a public nuisance committed by obstructing a highway, and from an order denying a motion made by the plaintiff after judgment to set aside the judgment and enter judgment in his favor on the pleadings.

Held: The motion was irregular and was properly denied; and if a like notice had been made at the commencement of the action, it should have been denied, because all the material allegations of the complaint are denied in the answer.

ID. EVIDENCE

EJECTMENT. Even if the action could be construed as in ejectment for the premises alleged to have been intruded upon by the defendant, evidence as to the intrusion was properly excluded in the absence of evidence of seisin or possession by plaintiff.

ID. COMPLAINT. But the complaint clearly shows that the action is to recover damages for a public nuisance and is defective in not alleging special damages to the plaintiff.

APPEAL from & judgment for the defendant and from an order rendered after judgment in the Superior Court of San Bernardino County. ROLFE, J.

The complaint was as follows:

Plaintiffs complain and allege that a short time anterior to the twelfth day of March, 1879, they were the owners and possessors of the one quarter section, west one half of southwest one quarter of section thirty-four, township two, south range five west, containing eighty acres of land.

That plaintiffs appropriated over twenty-five feet on the west side of said land, running the entire distance of half a mile towards a public road called Magnolia avenue, running north and south, and plaintiffs set thereon a row of pepper and eucalyptus trees eight feet apart, two thirds the entire distance in a straight line, on said avenue.

That on the twelfth day of March, 1879, plaintiff sold and deeded to one Elvira D. Bartlett part of said described land, commencing at a point on said avenue leading from Riverside. to Temescal, thirty rods and twelve feet from the northwest corner of the Government survey of said lot of land, and run