Perkins v. Thornburgh. 1. The Court did not err in allowing the plaintiff to read a part of defendant's answer in evidence to the jury. Authorities cited by appellant upon this point have no applicability. 2. The motion for a nonsuit was properly denied. There was other evidence beside the answer, showing that defendant took the property described in the complaint. The property taken was in the actual possession of the plaintiff at the time the same was attached. Appellant waived all objections to the ruling of the Court upon motion for a nonsuit, by the introduction of the witness Buckley, who testified that the defendant took the property. Smith v. Compton, 6 Cal. Rep., 24. BURNETT, J., delivered the opinion of the Court-TERRY, C. J., concurring. This was an action to recover the value of certain personal property, seized and sold by the defendant, as sheriff, under an attachment and execution against one Carter. The plaintiff claimed the property before the sale; trial was had before a sheriff's jury, who found against Perkins; afterwards, the defendant sold the property and paid over the proceeds to the attaching-creditor. In the Court below, the plaintiff had judgment, and the defendant appealed. 1. The first point made by the defendant is, that the District Court erred in permitting the plaintiff, against the objection of defendant's counsel, to read a part of a sentence from the answer of defendant. The defendant, in his answer, sets up three separate defences: first, a simple denial of the allegations of the complaint; second, property in Carter, and levy under the attachment; third, trial before a sheriff's jury, and verdict against the claimant. The portion read from defendant's answer was only so much as admitted the taking of the goods by the defendant, as the property of Carter, without reading the other portion of the same sentence, which alleged that they were the property of Carter. It was clear that the reading in evidence of that portion of the answer which set up new affirmative matter, completely overthrew some of the denials contained in the first defence set up. This point clearly involves the question whether, under the Code, a defendant can set up inconsistent defences; and if he can not, whether the plaintiff who fails to make the proper motion, can afterwards treat them as inconsistent, and use the admissions in one portion of the answer to overcome the denials in another. But it is unnecessary to decide these questions, as the fact of the taking was afterwards proven by the witness of defendant in his examination-in-chief. Conceding that the nonsuit was improperly refused at the time, the defend Perkins v. Thornburgh. ant, by his own testimony, cured this error. (Smith v. Compton, 6 Cal. Rep., 24.) 2. The second and most material point made by appellant is, that the Court refused the evidence offered by defendant, to prove that plaintiff claimed the property before a sheriff's jury, and that the verdict was against him. It is insisted that this is a complete justification of the officer, in afterwards selling the goods before any suit was brought by the plaintiff. Section two hundred and eighteen of the Code is as follows: "If the property levied on be claimed by a third person, as his property, the sheriff shall summon from his county six persons, qualified as jurors, between the parties, to try the validity of the claim. He shall also give notice of the claim, and of the time of trial, to the plaintiff, who may appear and contest the claim before the jury. The jury and the witnesses shall be sworn by the sheriff, and if their verdict be in favor of the claimant, the sheriff may relinquish the levy, unless the judgment-creditor give him a sufficient indemnity for proceeding thereon. The fees of the jury, the sheriff, and the witnesses, shall be paid by the claimant, if the verdict be against him; otherwise, by the plaintiff. On the trial, the defendant and the claimant may be examined by the plaintiff as witnesses." The same provision is applicable to seizures under attachment. (Section 131.) It will be seen that the Code itself states the effect of the verdict, if in favor of the claimant. It also states the effect of the verdict, if against the claimant, as to costs. When a statute assumes to specify the effects of a certain provision, we must presume that all the effects intended by the law-maker are stated. (Lee v. Evans, 8 Cal. Rep., 424; Bird v. Dennison, 7 Cal. Rep., 307; Melony v. Whitman, page 38 of this volume.) Under this rule of construction, we can not give to the verdict of a sheriff's jury any other effect than those stated in the Code itself. The weight of the English decisions is against the position contended for by the learned counsel of defendant. The American cases referred to would seem, at first view, to support the defendant's position; but, when examined, they are not in point. The decisions in Illinois were made under a statute which allowed an appeal from the decision of the sheriff's jury to the Circuit Court. (Rev. Statutes of Illinois, 1845, p. 475, § 8.) The statute of Missouri contained a special provision that "if the jury find the goods and chattels to be the property of the defendant in the execution, the verdict, as against the claimant, shall justify the officer in selling such goods and chattels." (Schroeder & Evers v. Clark, 18 Mo. Rep., 185.) The proceeding in Georgia is judicial. The claim is made returnable to Court, which is required "to cause the right of property to be Karth v. Orth. decided on by a jury." (Deloach & Wilcoxson v. Myrick, 6 Geo. Rep., 413.) So, in Ohio, the question is tried before a justice of the peace. (Swan's R. S., 1854, § 426.) We are unable to find. the opinion of Judge Hitchcock, in the case of Patty v. Mansfield, as no reference is made to the volume in which it is contained. Under the provisions of our statute, the proceeding before the sheriff is not judicial. The jury is of the sheriff's own selection. He presides upon the trial, and decides all questions as to admissibility of testimony. It would, therefore, be giving an extraordinary force to the verdict to say, without an express statutory provision, that it protected the officer in selling the property of another party, not a defendant in the execution. Such a power might lead to great oppression. But the law has not left the sheriff without ample means of protection. He presides at the trial before the jury, and hears all the testimony, and he is, therefore, informed of all the facts, and can act advisedly. If he thinks there is any reasonable doubt as to the title of the property, he can resort to the Court for protection. (Bayley v. Bates, 8 Johns. Rep., 188.) Judgment affirmed. [Field, J., having been counsel in the Court below, did not sit in the case.] KARTH v. ORTH. Where there is no statement on appeal, this Court is confined in its examination of the case, to the judgment-roll; and where that is regular, the judgment below will be affirmed. APPEAL from the District Court of the Sixth Judicial District, County of Sacramento. This was an action of ejectment, to recover possession of a tract of land. The case was tried in the Court below, before a jury, who returned a verdict for the plaintiff, and judgment was regularly entered thereon. The defendant moved the Court for a new trial, which was denied. The record embodies no statement on appeal, showing the alleged errors of the Court below. Nor does it appear from the record the grounds upon which the motion for a new trial was denied. J. H. McKune for Appellant. Tuolumne Co. v. Columbia and Stanislaus Co. Clark & Gass for Respondent. BURNETT, J., delivered the opinion of the Court-FIELD, J., concurring. There being, in the record, no statement on appeal, we are confined to the judgment-roll, which being regular, the judgment must be affirmed. TUOLUMNE COUNTY WATER COMPANY v. COLUMBIA AND STANISLAUS WATER COMPANY. A complaint which alleges that the plaintiffs were, on a certain day, the owners and proprietors of a certain valuable water-ditch for the purpose of conveying water, and at which time and place the defendants were also the owners of a certain other waterditch for the purpose aforesaid, and that afterwards, on the same day and year, at etc., aforesaid, the said defendants' ditch was so badly and negligently constructed and managed, and the water therein so negligently and carelessly attended to, that said ditch broke and gave way, and the water therein flowed over and upon the ditch of plaintiffs, greatly damaging and injuring the same, and carrying down therein and thereon great quantities of rock, stone, earth, and rubbish, and breaking said plaintiffs' ditch, and depriving them of the use and profit of the water flowing therein, to said plaintiffs' damage of $3000, and thereof they bring suit, is sufficient. A person who has been a stockholder in an incorporated company, but ceased to be such holder before suit was brought, is a competent witness in an action in the name of such company. APPEAL from the District Court of the Fifth Judicial District, County of Tuolumne. This was an action for damages, caused by the defendants' ditch breaking and overflowing the ditch of plaintiffs. The complaint is as follows: "District Court, Fifth Judicial District-The Tuolumne County Water Company v. The Columbia and Stanislaus R. Water Company-Tuolumne County: ss.-The Tuolumne County River Water Company, plaintiffs, by Henry P. Barber, their attorney, complain of the Columbia and Stanislaus River Water Company, defendants, both plaintiffs and defendants being corporations formed for the supply of water for mining purposes, under the laws of this State: That said plaintiffs heretofore, to wit, on the sixth day of May, A. D. 1857, at the county of Tuolumne, were the owners and proprietors of a certain valuable water-ditch or canal, for the purpose of conveying water; at which time and place said defendants were also the owners and proprietors of a certain other water-ditch and canal for the purpose aforesaid; and said plaintiffs aver that afterwards, to wit, on the same day and year at etc., aforesaid, the said defendants' ditch was so Tuolumne Co. v. Columbia and Stanislaus Co. badly and negligently constructed and managed, and the water therein so negligently and carelessly attended to, that the said ditch broke and gave way, and the water flowing therein, by reason thereof, flowed into, over, and upon the ditch of said plaintiffs, greatly damaging and injuring the same, and carrying down therein and thereon great quantities of rock, stones, earth, and rubbish, and breaking said plaintiffs' ditch, and depriving them of the use, profit, and benefits of the water flowing therein, to said plaintiffs' damages of three thousand dollars, and thereof they bring suit." The answer of defendants was a general denial. On the trial, Thomas P. Morrissey, a witness for the plaintiff, being sworn on his voir dire, testified as follows: "I was ditch-tender for plaintiffs, and a member of the corporation at the time of the breaking of defendants' ditch in May last. I sold out on or about the tenth of June, and before the commencement of this suit, to a former partner who is a stockholder, for three thousand dollars-three shares. I think I have his notes at my cabin. They will become due the last of this month. I have no other security. I have no interest in the event of this suit." Defendants' counsel objected to the witness, on the ground of interest. The Court overruled the same, and defendants then and there excepted. The trial was had before a jury, who returned a verdict for the plaintiffs for the sum of $1,550, and judgment was duly entered thereon. Defendants moved for a new trial, which was denied by the Court, and defendants appealed. J. W. Coffroth for Appellants. 1. The complaint is insufficient to support the judgment, because there is no relief asked. 2. The Court below erred in admitting the witness Morrissey to testify. 3. The damages are excessive. Barber for Respondents. 1. The exception to the witness Morrissey on the ground of interest, was perfectly unfounded.. He was at the time of the break a stockholder in the plaintiffs' corporation, and sold out his stock before suit was brought. He, therefore, had no interest in the event of the suit, and expressly swears he had none. At common law, the interest of a corporator might be transferred the instant before he was called on to testify, and this rendered him a valid witness. Angell & Ames on Corp., 3d ed., |