Gregory v. Higgins and Mann.

menced an action upon contract against the same defendant to recover the sum of $800, and sued out a writ of attachment, which the sheriff on the same day served upon Marshall, with a notice of attachment similar to the one given in the first suit, and received from the garnishee a memorandum to the effect that he held in his hands upwards of $1000, belonging to the defendant, and for which the defendant held his note, due and payable on the 1st of January, 1857; and, further, that he retained the money, subject to the first attachment. The respondent, upon leave of the Court, then intervened in the suit, contesting by such intervention the claim of the plaintiff, by virtue of his attachment, to the moneys in the hands of the garnishee. The Court rendered judgment for the amount claimed against the defendant, and subsequently decided that the plaintiff acquired no right to the funds by virtue of his attachment, and ordered that they be subjected to the attachment of the intervenor. From this order the appeal is taken.

The only question presented for consideration, respects the effect of the notice of garnishment served in the suit of the plaintiff. The indebtedness of the garnishee was upon a promissory note, which did not mature for several months thereafter. From the very nature of a promissory note, it is evident that, before its maturity, the indebtedness of the maker thereon can not be the subject of attachment. His obligation is not to the payee named in the note, but to the holder, whoever he may be. From its negotiability, it may often pass into the possession of parties entire strangers to the maker, and even if held by the defendant at the time of garnishment, it does not follow that it would be in his hands at its maturity, and, if transferred before maturity to a bona fide holder, it could be enforced, even if paid upon the attachment. (McMillan v. Richards, 9 Cal., 418; Sheets v. Culver, 14 La., 452.)

It follows, that the notice served upon Marshall, previous to the maturity of his note, did not operate as a garnishment of the amount in his hands. Nor would the notice, served subsequent to the maturity, have any greater effect unless the note was, at the time, in the possession of the defendant, from whom its delivery could be enforced on its payment upon the attachment. It is not clear, from the record, that the note was not transferred by the defendant previous to its maturity. It is unnecessary, however, to decide upon the evidence in this particular. It is sufficient to dispose of the appeal, that the appellant has no right to this money by virtue of his notice of garnishment. Whether payment can be adjudged against the garnishee upon the attachment of the intervenor, is not a question before

us.

Appeal dismissed.

Hastings v. Steamer Uncle Sam.

HASTINGS v. THE STEAMER UNCLE SAM.

If any errors intervened on the trial of a cause, an order of the Court below, granting a new trial, ought not to be disturbed.

The opinions of witnesses are generally admissible only when they relate to matters of science or art, or to skill in some particular profession or business.

Where, in an action to recover damages occasioned to the plaintiff from his detention by the defendants, a witness was permitted to give his estimate of the value of the plaintiff's services per day, which he placed as high as one hundred dollars, and stated, as ground for his opinion, that the plaintiff was a speculator, possessed of large property, money invested in stocks, rents, and other sources of income, and frequently made from one to five hundred dollars per day: Held, that the testimony was inadmissible.

APPEAL from the District Court of the Seventh Judicial District, County of Solano.

The facts sufficiently appear in the opinion of the Court.

S. Heydenfeldt for Appellant.

Delos Lake for Respondent.

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

This is an action to recover damages for breach of an alleged contract, made by the owners of the steamer Uncle Sam, to transport the plaintiff and his family from San Francisco to New York by the way of Nicaragua. The breach averred is that the defendants, instead of making the transportation by way of Nicaragua, conveyed the plaintiff and his family to the Isthmus of Panama, where they suffered from the diseases of the climate, and were subjected to various expenses, and detained sixteen days. The plaintiff obtained judgment for the sum of $2800, which the Court, on motion, set aside, and granted a new trial. From the order for a new trial the appeal is taken.

The only question for consideration is, whether the granting of the order for a new trial was such an abuse of discretion as to justify the interference of this Court. (Drake v. Palmer, 2 Cal., 177; Spect v. Hoyt, 3 Cal., 413.) If any errors intervened on the trial, the order ought not to be disturbed. Several are alleged by the respondent, but it is sufficient to notice only one. To arrive at the damages sustained by the plaintiff by reason of his detention on the Isthmus, the witness Hubbs was permitted, against the objection of the defendants, to give his estimate of the value of the plaintiff's services per day. These the witness placed as high as one hundred dollars; and, as ground for his opinion, stated that the plaintiff was a speculator, possessed of a large property, money invested in stocks, rents, and other

Butler v. King.

sources of income, and frequently made from one to five hundred dollars a day. The witness was unable to state the value of the plaintiff's services in any other capacity or employment.

This testimony was clearly improper. The opinions of witnesses are generally admissible only when they relate to matters of science, or art, or to skill in some particular profession or business. The estimate of the witness Hubbs was but his judgment from facts, and could not be substituted for that of the jury.

In Lincoln v. the Saratoga and Schenectady Railroad Company, (23 Wend., 425,) the plaintiff was detained some months from his business by the injury he received through the carelessness of the agents of the defendants, and several witnesses, after stating the character of his business, were permitted to give their opinions as to the amount of damages which he must have sustained in consequence of this detention. The plaintiff obtained judgment, but it was reversed on appeal, and the Court, per Nelson, C. J., said:

"Where men of science or skill have been allowed to express their opinion, upon a given or admitted state of facts, if of equal standing and intelligence, there may be expected something like a general concurrence. I do not mean that the result would always follow with mathematical certainty, but deductions from the facts, by the application of their superior skill and knowledge in the matter, is supposed, by the law, to lead to a degree of certainty that may be safely relied on; otherwise the result would be worthless. In the case before us, no such accuracy is attainable, or can be predicated from the facts on which the opinions are expressed. There may be a tolerable conjecture of the amount of damage, and merchants in the same line of business with the plaintiff, and residing in his vicinity, might carry it nearer to the truth than others; but their opinions can rise no higher than mere conjecture."

Order affirmed.

BUTLER v. KING.

Amendments should be readily allowed whenever they will tend to the furtherance of justice, and the greatest liberality in this respect should be extended to pleadings in Justices' Courts.

APPEAL from the County Court of Amador County.

This action is upon a contract for beef furnished the defendant. The complaint alleges that the beef was furnished to the defendant, but does not allege that it was furnished "at his request."

O'Brien v. Shaw's Flat and Tuolumne Canal Co.

The plaintiff recovered judgment in the Justice's Court, and the defendant appealed to the County Court, where he moved to dismiss the case, on the ground that the complaint does not set forth any cause of action. The plaintiff thereupon moved for leave to amend his complaint. The County Court denied the motion of the plaintiff to amend, and granted the motion of the defendant, and dismissed the case.

From the judgment of dismissal, the plaintiff appealed.
W. W. Cope for Appellant.

G. W. Seaton for Respondent.

FIELD, J., delivered the opinion of the Court―TERRY, C. J., and BALDWIN, J., concurring.

The County Court erred in refusing to allow the plaintiff to amend his complaint, and in dismissing the suit. Amendments should be readily allowed whenever they will tend to the furtherance of justice, and the greatest liberality in this respect should be extended to pleadings in Justices' Courts. Judgment reversed, and cause remanded.

O'BRIEN v. SHAW'S FLAT AND TUOLUMNE CANAL CO.

Where, in an action against an incorporated company, the return of the sheriff showed that he had served the summons in the action "upon James Street, one of the proprietors of the company:" Held, that it was not sufficient evidence of service to give the Court jurisdiction, it not appearing that Street was president, or head of the corporation, or secretary, cashier, or managing agent thereof.

APPEAL from the District Court of the Fifth Judicial District, County of Tuolumne.

H. P. Barber for Appellant.

L. Quint for Respondent.

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

The defendants are an incorporated company, and the judgment in the present case was taken by default. The return of the sheriff shows that he served the summons "upon James Street, one of the proprietors of the company." This is not suf ficient evidence of service to give the Court jurisdiction. It does not appear that Street was "president, or head of the cor

People v. Supervisors of Marin County.

poration, or secretary, cashier, or managing agent thereof." The summons might, with as much propriety, have been served upon any other stranger. (Practice Act, § 29; Aikin v. The Quartz Rock Mariposa Gold Mining Company, 6 Cal., 186.)

Judgment reversed.

THE PEOPLE ex rel. DE FRIES v. THE SUPERVISORS OF MARIN COUNTY.

The provision of the statute organizing boards of supervisors, which empowers them to "require new bonds of any county or township officer, with additional securities whenever they deem the same necessary," does not leave the exercise of the power to their arbitrary discretion. By the terms "whenever they deem the same necessary,' is meant whenever their judgment pronounces, after an examination of the facts of the case, that there is a necessity for further security.

In determining upon the sufficiency of the bond of an officer, and whether the officer, by his failure to comply with the requisition of the supervisors to file a new bond, has vacated his office, the supervisors exercise powers of a judicial character. An order of the supervisors, requiring a new bond of an officer, should specify the ground upon which the order is made; and where the supervisors of Marin county made an order as follows: "Ordered, by the board of supervisors, that John De Fries, constable of San Rafael township, file another bond, with two or more sufficient sureties, within fifteen days:" Held, that the order was fatally defective.

The power to declare an office vacant is vested, under the statute, where the duty to approve of the bond of the officer is lodged. That duty is imposed upon the County Judge, and not the supervisors; and where the supervisors of Marin county declared the office of constable vacant, because the constable failed to comply with their order to file a new bond: Held, that they exceeded their jurisdiction.

The District Judge has power to issue writs of certiorari, and to hear them on their return, at chambers.

No undertaking on appeal is necessary when the appeal is taken by the county. The board of supervisors represent the county in legal proceedings.

APPEAL from the District Court of the Seventh Judicial District, County of Marin.

The facts of the case sufficiently appear in the opinion of the Court.

Attorney-General for Appellants.

Walter Skidmore for Respondent.

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

At the general election in September of the year 1857, the relator was elected constable for the township of San Rafael, in the county of Marin, and in October following he gave the bond required by statute, and entered upon the duties of his office.