level. There is neither superiority nor inferiority in their relations to each other. There is neither the right to command or prohibit, nor the duty to obey. And it would be inconsistent with the relations which they hold towards each other that one should attempt to supervise or direct or restrain the action of another by the writ of mandamus, or by the writ of prohibition. If, therefore, this court does not possess the power to issue the writ of mandamus to a district court, no tribunal exists or can be created by the legislature, by which such power may be exercised; and the existence of it in this court is, consequently, not only compatible with the organization of the judiciary of the state, but without it the system would be imperfect beyond any remedy except a change in the constitution.

The question, which we have thus briefly considered, was not discussed at the bar, and we have not had the benefit of the learning of counsel, but it is necessary that it should be settled; and we have determined that the power does exist in this court to issue writs of mandamus to the district courts.

The power existing, the next point for consideration is, whether the papers before us present a proper case for the exercise of that power. This involves two questions: 1. As to the validity of the order; and, 2. As to the appropriateness of the remedy by mandamus.

1. Was the order properly made, and a valid determination of the court, which ought not to be disturbed? It does not appear that it was made as a punishment for contempt, and if it were interded as such it could not be supported. The thirteenth section of the act organizing the district courts prescribes fine and imprisonment as a punishment for contempt, and this express provision must be taken as exclusive of all other modes of punishment. Viewed as an adjudication for a contempt, the order is invalid, for inflicting a punishment different from that warranted by the statute, the same as it would have been had it imposed a heavier fine or sentenced to a longer imprisonment than the statute authorizes. Besides, it is not usual for a court to interpose by a proceeding for contempt against an attorney for any act independent of his profession; and it appears both from the order itself and from the affidavits, that the offenses charged against these parties were not connected with their professional employment as attorneys. The order should, therefore, be regarded as the exercise of a power inherent in every court, which has the authority to admit attorneys to practice, of striking their names from the rolls, or, as the order expresses it, of expelling

them from the bar, whenever they are guilty of such conduct, either in or out of their profession, as shows them to be unfit persons to practice it. But where an attorney is proceeded against with this object, he is entitled to have notice of the charges against him, and an opportunity to make his defense. This is not only the dictate of natural justice, and the uniformı practice in such cases, but it has been carried into an express adjudication in Ex parte Heyfron, 7 How. (Miss.) 127. In the case at bar, no notice of the charges upon which the order was made was given; no opportunity for explanation, apology, or defense was afforded; the judgment of the court was ex parte, and condemned the defendants without a hearing. It is barely necessary to add, that a judgment thus rendered, partaking so strongly of the nature of a criminal proceeding, and so serious in its consequences, can not be supported.

2. Is the proceeding by mandamus the proper means by which the error may be rectified? According to the passage above cited from Blackstone's Commentaries, this writ is used as an instrument to restrain the excesses of inferior tribunals, and obviate their denial of justice; and the commentator, in enumerating the cases in which it may be issued, says (3 Com. 110) that "it lies to compel the admission or restoration of the party applying to any office or franchise of a public nature, whether spiritual or temporal; to academical degrees; to the use of a meetinghouse, etc.; for the production, inspection, or delivery of public books and papers; for the surrender of the regalia of a corporation; to oblige bodies corporate to affix their common seal; to compel the holding of a court; and for an infinite number of other purposes which it is impossible to recite minutely.” From the general nature and character of the writ, and the specification of the cases in which it lies, as thus laid down, it would seem not to be extending it beyond its appropriate office to apply it in the present case. But it will not lie if the applicants have another specific and adequate legal remedy, nor if the effect of it would be to interfere with the exercise of the discretionary powers of the court. That there is no other specific and adequate legal remedy is too apparent to admit of controversy, or to require any further consideration here. Would the issuing of it interfere with the discretionary power of the court? We think not. An attorney, by his admission as such, acquires rights of which he can not be deprived at the discretion of a court, any more than a physician of the practice of his profession, a mechanic of the exercise of his trade, or a merchant

of the pursuit of his commercial vocation. It is true, that, being officers of the court, attorneys are in many respects subject to the orders of the court, but these orders must be the result of sound and legal and not of arbitrary and uncontrolled discretion. A mandamus to the district court to vacate this order would not be an interference with the discretionary powers of that court.

A similar case has been before the supreme court of New York, and decided. In The People v. The Judges of Delaware Co., 1 Johns. Cas. 181, a mandamus was issued to the court of common pleas, commanding them to restore an attorney who had been removed by them. A peremptory mandamus will, therefore, issue in this case to vacate the order in question, and to reinstate the applicants as attorneys and members of the bar of the eighth judicial district. An alternative mandamus, in the first instance, we do not deem necessary. Notice of this application having been given, and copies of the papers served, the court may award either an alternative or peremptory mandamus, according to the nature and exigency of the case; and in both these respects we think it proper that a peremptory writ should go in the first instance.

Ordered accordingly.

POWER OF COURTS OF VARIOUS STATES TO ISSUE MANDAMUS TO INFERIOR COURTS: People v. Pearson, 33 Am. Dec. 445; Drexel v. Man, 40 Id. 573; Ex parte Trapnall, 42 Id. 676; St. Louis Court v. Sparks, 45 Id. 355. In Hawkins v. Governor, 33 Id. 346, it was said that the power of the supreme court of Arkansas to issue a writ of mandamus depended exclusively on the express language of the constitution. Mandamus will not issue in the first instance to clerks of the district courts; application must first be made to such courts: Cowell v. Buckelew, 14 Cal. 642, citing the principal case.

RIGHTS OF ATTORNEY DISBARRED.-See note to Clark v. People, 12 Am. Dec. 186, citing the principal case. A proceeding to disbar an attorney par takes of the nature of a criminal proceeding: Peyton's Appeal, 12 Kan. 405; Fletcher v. Daingerfield, 20 Cal. 430, both citing the principal case. No punishment can be inflicted upon an attorney, if the proceeding is merely for contempt, except fine and imprisonment: Peyton's Appeal, supra; see Clark v. People, supra. Before judgment disbarring an attorney can be rendered, he should have notice of the grounds of complaint against him, and opportunity of explanation and defense: Ex parte Robinson, 19 Wall. 513; Peyton's Appeal, supra; Fletcher v. Daingerfield, 20 Cal. 430, all citing the principal case. MANDAMUS IS THE PROPER REMEDY TO REINSTATE an endowed minister wrongfully dispossessed: Runkel v. Winemiller, 1 Am. Dec. 411; or to restore the clerk of a court ousted from office by the illegal appointment of an other: Dew v. Judges, 3 Id. 639; or to restore an attorney disbarred by an inferior court, when such court had no jurisdiction of the matter, or the judgment was irregular or improper: Ex parte Bradley, 7 Wall. 379; Case of Lowenthal, 61 Cal. 126, both citing the principal case; and see State v. Dunn,

12 Am. Dec. 25, and note. The writ does not lie against legislative bodies: Mayor v. Morgan, 18 Id. 232.

PEREMPTORY OR ALTERNATIVE WRIT, when ISSUED: People v. Pearson, 33 Am. Dec. 445; Board of Police v. Grant, 47 Id. 102.

THE PRINCIPAL CASE IS ALSO CITED in White v. Lighthall, 1 Cal. 348, as correctly laying down the extent of the jurisdiction of the supreme court of California; see also Cowell v. Buckelew, 14 Id. 642, supra. In People ex rel. Field v. Turner, 1 Id. 153, the principal case was approved as regards the power of the supreme court to issue a writ of mandamus to a district court, but held that where an attorney was ordered to be imprisoned and fined for contempt, no facts being set forth upon which the order was based, certiorari to remove the proceedings to the supreme court for review is the proper remedy, and not mandamus to vacate the order. The argument in support of the constitutionality of the power to issue writs of certiorari proceeds pari passu with that in support of the power to issue writs of mandamus: People ex rel. Field v. Turner, Id. 156. See the case cited as giving a construction to the clause in the old constitution of California, in reference to the jurisdiction of the supreme court to issue writs of habeas corpus, etc., in Hyatt v. Allen, 54 Id. 355, in construing a similar clause in the new constitution. The jurisdiction of a court to punish and imprison a person for contempt is reviewable by the supreme court on habeas corpus: Ex parte Hollis, 59 Id. 408. An order of a court adjudging a party guilty of contempt must show on its face the facts upon which the exercise of the power is based: Ex parte Walker, 25 Ala. 88. The language of the principal case in regard to the power to strike the name of an attorney from the rolls, as being inherent in every court having authority to admit attorneys, is cited with approval in Baker v. Commonwealth, 10 Bush. 598.

MATEER V. BROWN.

[1 CALIFORNIA, 221.]

COMPULSORY NONSUIT MAY BE DIRECTED BY COURT.

MOTION FOR NONSUIT ON ONE GROUND IS IMPLIED WAIVER OF OTHERS; and different position can not be assumed on appeal from that taken in the court below.

NONSUIT WILL BE GRANTED if evidence given by plaintiff would not authorize jury to find a verdict for him; or if the court would set it aside, if so found, as contrary to the evidence.

DECLARATIONS OF AGENT INADMISSIBLE AS PART OF RES GESTE AGAINST PRINCIPAL, when not made by agent in discharge of duties as such. INNKEEPER, LIKE COMMON CARRIER, IS INSURER OF PROPERTY OF GUEST COMMITTED TO HIS CARE, and is bound to keep the same safe from burglars and robbers without, as well as thieves within his house; but this liability extends only to things properly pertaining to guest in that relation.

ACTION to recover five thousand five hundred dollars' worth of gold-dust, claimed to have been lost in the defendant's inn, while the plaintiff was staying there as a guest. The opinion states the facts.

Calhoun Benham, for the plaintiff.

Parburt, for the defendant.

By Court, BENNETT, J. It was decided, at he last term in the case of Ringgold v. Haven & Livingston, 1 Cal. 108, that the power of compulsory nonsuit exists. We think the rule convenient, reasonable, and well supported by authority, and we shall adhere to it. On the trial of this cause, after the plaintiff had closed his evidence, the defendant moved for a nonsuit, "on the ground that the plaintiff had not proved by competent testimony the loss of any property of definite value." This being the only position taken in support of the motion, unless that be tenable, the nonsuit was properly refused, notwithstanding there may have been other good and sufficient reasons, for which, if urged at the proper time, it might have been demanded. A party making his motion on one ground, thereby impliedly waives all others. He can not avail himself of a different position, on appeal, from that which he assumed in the court below. This doctrine is well established, and is necessary to be sustained, in order that the plaintiff may not be misled in the course of the trial, and in the settlement of his bill of exceptions in case the nonsuit should be ordered.

The general rule by which courts should be guided in determining whether a nonsuit, when applied for, should be ordered, is, that if the evidence given by the plaintiff would not authorize a jury to find a verdict for him, or if the court would set it aside, if so found, as contrary to evidence, in such case it is the duty of the court to nonsuit the plaintiff: Rich v. Penfield, 1 Wend. 386; Demyer v. Souzer, 6 Id. 436; Ringgold v. Haven & Livingston, 1 Cal. 108.

Let us apply these rules to the case before us. We must, however, first remark, that the question of admissibility of the evidence objected to, is one with which, in determining the point now under consideration, we have nothing to do. Assuming, then, that the evidence was admissible for the purpose of affecting the defendant, was it of such weight that a jury might legally and properly infer from it that the plaintiff had "lost any property of a definite value "?

Dexter, one of the witnesses for the plaintiff, testified that Higgins, the barkeeper of the defendant, stated in a conversation between them, "that the plaintiff had made his pile," and that on opening a closet and raising a bundle, he said "it was the plaintiff's, and that it was about six thousand dollars." If