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knowledge and consent: Johnson v. Glancy, supra; this was an important element lacking in the principal case; see the citation in Tohler v. Folsom, 1 Cal. 212, where it was held that the delivery of title deeds was equivalent to a delivery of and admission into the possession.

PAYMENT OF PURCHASE PRICE, WHETHER PART PERFORMANCE: Townsend v. Houston, 27 Am. Dec. 732, and note; Johnson v. Glancy, 28 Id. 45.


PARTY SEEKING SPECIFIC PERFORMANCE MUST SEow PERFORMANCE ON HIS Part: Lewis v. Woods, 34 Am. Dec. 10, and cases collected in note.

THE PRINCIPAL CASE IS FURTHER CITED in Ellis v. Jeans, 7 Cal. 416, and Walker v. Sedgwick, 8 Id. 402, to the point that when a party enters into the possession of land, claiming under another, and in subordination to his title, he is estopped from questioning it. A sale of land must be in writing under the Mexican law: Tohler v. Folsom, 1 Id. 210; Hayes v. Bona, 7 Id. 158; and see the dissenting opinion of Burnett, J., in Stafford v. Lick, Id. 490. The principal case was cited in Noe v. Card, 14 Id. 608, in illustrating the difference between a tax for municipal purposes under the Mexican law and the general tax upon the transfer of land.



corpus, strictly appellate; and in exercise of appellate jurisdiction only cen it issue such writs and process, as mandamus, as may be necessary to


ERCISED BY MANDAMUS, when the object and effect of the application is

to bring under review a decision of a district court. ATTORNEY AT LAW PROCEEDED AGAINST WITH OBJECT OF STRIKING HIS

NAME FROM THE ROLL is entitled to have notice of charges against him

and opportunity to make his defense. MANDAMUS IS THE PROPER REMEDY to compel district court to vacate an

order striking the name of an attorney from the roll and to restore the


FIRST INSTANCE, according to the exigencies of the case, when notice of application has been given, and copies of papers served. APPLICATION for writ of mandamus. The facts are stated in the opinion.

Stephen J. Field, on the part of the relators.

By Court, BENNETT, J. Application for a writ of mandamus. At a term of the district court of the eighth judicial district, held in and for the county of Yuba, on the tenth day of June last, the following order was made: “Whereas, Messrs. Field, Goodwin, and Mulford, having set at defiance the authority of

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this court, and having vilified the court, and denounced its proceedings, the said Field, Goodwin, and Mulford are hereby, by order of the court, expelled from the bar of the same."

An application is now made for a writ of mandamus to require the court to vacate the above order, and reinstate the applicants. Copies of the paper upon which the motion is founded, together with notice of the motion, have been duly served upon the judge of the eighth judicial district.

Two questions are presented by this application: 1. Has this court the power to issue a writ of mandamus to the district court ? and, 2. Whether, conceding the existence of the power, the case presented is a proper one for its exercise. First, as to the power.

The seventh section of the act organizing this court declares, that "the court, and each of the justices thereof, shall have power to issue writs of habeas corpus, of mandamus, of injunction, certiorari, supersedeas, and such other writs and process known to the law, as may be necessary in the exercise of their jurisdiction.” This section containing an express delegation of power to issue the writ of mandamus, there can be no question that, so far as statutory authority is concerned, the power resides in the court, to issue such writs in all cases in which they may appear to form the appropriate remedy. The only doubt which can be entertained upon the subject arises under the constitution which creates the court, and from which all its powers must be derived.

The first section of article 6 of the constitution vests the judicial power of the state in the supreme court, in district courts, in county courts, in justices of the peace, and in such municipal and other inferior courts as the legislature may deem necessary. Section 4 of the same article is in the following words: “The supreme court shall have appellate jurisdiction in all cases where the matter in dispute exceeds two hundred dollars, when the legality of any tax, toll, or impost, or municipal fine is in question, and in all criminal cases amounting to felony or questions of law alone. And the said court, and each of the justices thereof, as well as all district and county judges, shall have power to issue writs of habeas corpus, at the instance of any person held in actual custody. They shall also have power to issue all other writs and process necessary to the exercise of their appellate jurisdiction, and shall be conservators of the peace throughout the state."

The subsequent sections of the same article confer upon the district courts and the county courts "original jurisdiction," in law and equity, in all civil cases, and in all criminal cases not otherwise provided for. From the section of the constitution above quoted, in connection with the context, it appears entirely clear, that, with the single exception of proceedings upon writs of habeas corpus, this court has no original jurisdiction, and that the legislature can confer upon it none. It is strictly a revisory tribunal: its jurisdiction is, with the exception above mentioned, exclusively appellate; and in the exercise of that appellate jurisdiction, and of that alone, can it issue such writs and process as may be necessary to render such jurisdiction effectual.

What, then, is the extent of that appellate jurisdiction? In the determination of this question we are fortunate in being furnished with a sure guide by the decisions of the highest tribunal of our country in their interpretation of the constitution of the United States. The judicial power of the United States is vested, by the constitution, in one supreme court, and in such inferior courts as congress may from time to time ordain and establish; and it extends to all cases, in law and equity, arising under the constitution, treaties, and laws of the United States, to all cases affecting ambassadors, other public ministers and consuls, and to a variety of other cases particularly enumerated. It is then declared, by the second section of the third article of the constitution of the United States, that “ in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction. In all the other cases before mentioned the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as congress shall make.” It is thus perceived that, by the constitution of the United States, the supreme court is vested, in some cases with original, in others with appellate, jurisdiction; as, by the constitution of California, this court has, in one class of cases original, and in other cases appellate, jurisdiction. The distinction between these different species of jurisdiction, taken in the one instrument, is substantially the same as the like distinction made by the other; the language used to express this distinction is strongly analogous in both; and thus the judicial interpretation of this portion of the constitution of the United States may be safely relied upon in giving construction to the constitution of our own state.

The leading case in which the section above referred to, of the constitution of the United States, came up before the supreme court, is that of Marbury v. Madison, 1 Cranch, 137. It was there declared to be an essential criterion of appellate jurisdiction, that it revises proceedings already instituted, and does not institute them; and that to enable the court to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or be necessary to enable the court to exercise such jurisdiction; and it was held, in pursuance of these principles, that though the court might, in exercising its appellate jurisdiction, issue a mandamus to other courts, yet to issue such writ to an officer for the delivery of a paper, such as a commission, would be, in effect, the same as to sustain an original action for that paper, and therefore belonged not to appellate but to original jurisdiction; and that, consequently, the authority given by the thirteenth section of the judiciary act of 1789, to issue writs of mandamus to public officers, was not warranted by the constitution. In McCluny v. Silliman, 2 Wheat. 369, the application for a mandamus was refused on the authority of Marbury v. Madison, and the doctrine of the latter case has been adhered to and recognized in subsequent adjudication as the settled law of the court. But, whilst Marbury v. Madison and its kindred cases define the limits beyond which the court can not go, there are, on the other side, several decisions which point out the extent of the powers of the court in the exercise of its proper appellate jurisdiction.

Thus in United States v. Hamilton, 3 Dall. 17; in Buford's Case, 3 Cranch, 448; and in Bollman and Swartwout's Case, 4 Id. 75, the power to issue writs of habeas corpus was declared to belong to the court. Chief Justice Marshall, in delivering the opinion of the court in the case last cited, says: “In the mandamus case, Marbury v. Madison, it was decided that this court would not exercise original jurisdiction, except so far as that jurisdiction was given by the constitution. But so far as that

. case has distinguished between original and appellate jurisdiction, that which the court is now asked to exercise is clearly appellate. It is the revision of a decision of an inferior court, by which a citizen has been committed to jail.” And again, in the same case, he remarks: “The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in ita nature.”

The same court determined in Ex parte Crane, 5 Pet. 189, that it had power to issue a mandamus to a circuit court, commanding the court to sign a bill of exceptions in a case tried there; and in Exc parte Bradstreet, 7 Id. 634, the court below was required, by a like writ, to make up a record and give judgment thereon. In Crane's Case the chief justice says, that “a mandamus to an officer is held to be the exercise of original jurisdiction; but a mandamus to an inferior court of the United States is in the nature of appellate jurisdiction.” The conclusion deducible from the above cases appears to be, that the court will not undertake, in the first instance, to supervise, direct, or control the acts or omissions of a mere ministerial officer; but that, when the object and effect of un application to it is to bring under review the decisions of an inferior court, or to direct its action, or control or annul its excesses, the appellate jurisdiction given by the constitution attaches; and that the court may exercise that appellate jurisdiction in some cases by means of the writ of habeas corpus, and in others by means of the writ of mandamus.

The authorities above cited, by which the appellate jurisdiction of the supreme court of the United States is determined, though not of binding force upon us, are yet strictly in point to show the extent of the like jurisdiction, which this court may, if compatible with the judicial organization of the state, legitimately assume; and which it ought to assume if it would be a result of the denial of the power, to leave the judicial system imperfect, or destroy its harmony, or impair the adaptation of its various parts. That this result would follow a denial of the existence of the power, appears to be an inference fairly deducible from the very nature of the writ of mandamus, which necessarily implies the idea of a superior and an inferior tribunal.

This writ, says Blackstone, 3 Com. 110, “ issues to the judges of

any inferior court, commanding them to do justice according to the powers of their office, whenever the same is delayed. For it is the peculiar business of the court of king's bench to superintend all other inferior tribunals, and therein to enforce the due exercise of those judicial or ministerial powers with which the crown or legislature have invested them; and this, not only by restraining their excesses, but also by quickening their negligence, and obviating their denial of justice.” A mandamus, therefore, implies the power to command and the duty of obedience a relation incompatible with the equality of the tribunal from which the writ issues and the tribunal to which it is directed. But the several district courts of the stato have all the same jurisdiction and powers. They all stand on the same

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