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MORRISON, C. J. This is an application for discharge on habeas corpus, founded on the following state of facts: On the twenty-fifth day of September, 1883, a complaint was filed before one Emil Nusbaumer, a justice of the peace of Oakland township, charging the petitioner with the crime of murder, and thereupon he was arrested on the following day, and taken before the magistrate issuing the warrant, by whom an order of commitment for examination was made. On the first day of October, 1883, the petitioner was taken before another justice of the peace of the same township, by whom he was examined and committed, but no warrant for his arrest was issued by the latter magistrate.

1. It is claimed, on behalf of the petitioner, that the magistrate who issued the warrant, and he alone, had power to examine the case; that the second magistrate had no jurisdiction over the case; and that all proceedings had before him were therefore void. The reason. why the petitioner was taken before a magistrate other than the one issuing the warrant does not appear, and therefore is simply a matter of conjecture. The following is the provision of the Penal Code bearing upon this subject:

"If the offense charged is a felony, the officer making the arrest must take the defendant before the magistrate who issued the warrant, or some other magistrate of the same county, as provided in section eight hundred and twenty-four." See Penal Code, § 821.

Section 824 of the same Code is as follows:

"If, on the admission of the defendant to bail, the bail is not forthwith given, the officer must take the defendant before the magistrate who issued the warrant, or, in case of his absence or inability to act, before the nearest or most accessible magistrate in the same county, and must at the same time deliver to the magistrate the warrant, with his return thereon indorsed and subscribed by him."

All this was done, and the magistrate before whom the petitioner was taken was, as has already been stated, of the same township and county.

By section 826 of the same Code it is provided that "if the defendant is brought before a magistrate other than the one who issued the warrant, the depositions on which the warrant was granted must be sent to that magistrate, or, if they cannot be procured, the prosecutor and his witnesses must be summoned to give their testimony anew.” It is claimed here that to give the magistrate, before whom the petitioner was examined and held to answer, jurisdiction, it was necessary for a complaint to be made and to have another warrant issued. We do not think so. The second magistrate had jurisdiction in this case without a second warrant of arrest. The defendant was already before him, and he had full power under the provisions of the Code to proceed with, examine the case, and hold the party to answer. We are therefore of the opinion that the petitioner should not be discharged on this ground.

2. In the next place it is contended that there was no commitment in this case. We find the following order:

"It appearing to me that the offense of manslaughter has been committed, and that there is sufficient cause to believe the within-named Edward Moan guilty thereof, I order that he be held to answer to the same, and that he be admitted to bail in the sum of $2,500.

"Dated October 1, 1883.

A. M. CHURCH, Justice of the Peace."

We think that the commitment was sufficient under section 872 of the Penal Code. But even if it were not, it does not follow that the defendant is entitled to a discharge on habeas corpus. The defendant was prosecuted by information in the superior court of Alameda county, and was found guilty of the crime of manslaughter. By section 995 of the Penal Code it is provided that an information must be set aside by the court in two cases only. (1) When, before the filing thereof, the defendant had not been legally committed by a magistrate; and (2) when the information is not signed by the district attorney of the county. By the following section it is provided that if a motion to set aside the information is not made, the defendant is precluded from afterwards taking these objections. When the defendant in this case was arraigned and pleaded not guilty, and did not move to set aside the information, he was thereby precluded from taking the objection that he had not been examined and committed. in the manner required by law.

3. The third ground relied upon by the petitioner is that the charge against him had been presented to the grand jury and the bill dismissed. The contention is that, by virtue of section 942 of the Penal Code, the dismissal of the bill by the grand jury was an end of the prosecution, without an order of the court resubmitting it. By section 1382 of the same Code it is provided that "the court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases: (1) When a person has been held to answer for a public offense, if an indictment is not found or an information filed against him within thirty days thereafter." The information was filed by the district attorney within 30 days after the commitment of the defendant, and we think the district attorney had a right under the statute to file it. The previous action of the grand jury in examining the case, and ignoring the bill, did not take away his statutory right. See Ex parte Clarke, 54 Cal. 415.

4. The last point made is that the information does not charge any offense. We think there is a crime charged in the information, and therefore the point is not well taken.

Our judgment is that the prisoner should be remanded, and the writ dismissed. It is so ordered.

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(65 Cal. 169)

HOWELL v. FOSTER. (No. 9,032.)

Filed April 30, 1884

Where a verified complaint alleges the wrongful attachment of certain property by defendant, and the verified answer admits the attachment, but avers that said property has been replevied by plaintiff, and affirmatively alleges defendant's right to the return of such property, it is error for the trial court to allow an amendment to the complaint striking out the portions thereof which refer to such property, and to strike out the portions of defendant's answer referring thereto, thereby taking from defendant an opportunity to try the question of his right to the return of such property.

Where one man farms land of another, and agrees to give the owner a part of the crop raised, for use of the land, he and the owner, in the absence of stipulation, become tenants in common of the crop raised. But the parties may so agree as to secure to the owner of the land the ownership of the product until the performance of a certain stated condition. In the latter case the tenant has no attachable interest until performance of the condition.

An attaching creditor acquires no greater right in attached property than the defendant had at the time of attachment. If the defendant has lost his power over it, or not yet acquired an interest permitting him to dispose of it, it cannot be attached for his debt.

Department 1.

Appeal from the superior court of Tehama county.

J. F. Allison, for appellant.

Chipman & Garter, for respondent.

Ross, J. The plaintiff brought this action to recover the possession of 4,455 sacks of wheat, 764 sacks of barley, and 230 head of hogs. In his complaint, which was verified, he alleged that he was the owner of the grain and hogs, and that defendant had, without his consent, taken the said property into his possession, and continued to withhold it from the plaintiff. Defendant, who, at the times mentioned in the record, was sheriff of Tehama county, answering the complaint,-the answer being also verified,-denied the ownership by the plaintiff of the property in question, and alleged that the same was owned by the plaintiff and one Mayfield, as tenants in common, and that in his official capacity he (defendant) levied upon and took all of the property into his possession, under and by virtue of two certain writs of attachment duly issued out of the superior court of Tehama county in certain actions against Mayfield. Defendant also alleged in his answer that after his levy, the plaintiff, by virtue of a writ of replevin, took all of the property from his (defendant's) possession, and asked a return thereof to him, to be held subject to the aforesaid writs of attachment. When the case came on for trial, the court below, on motion of the plaintiff, and against the objection and exception of the defendant, allowed the plaintiff to amend his complaint by striking

therefrom all of the allegations in relation to the 230 head of hogs, and also struck out of the defendant's answer all reference thereto. This was done upon the verbal statement of plaintiff's counsel that the defendant had not in fact levied the writs of attachment upon the hogs. But not only did the verified complaint of the plaintiff show that defendant had taken the hogs, but defendant, in his verified answer, alleged that he had levied upon them, and further alleged that subsequently to his levy the plaintiff, by virtue of a writ of replevin, had taken the hogs from his (defendant's) possession. Under such circumstances the court below erred in allowing the amendment to the complaint, and in striking out the portions of the answer referred to; for, if the averments of the answer were true, the effect of the action of the court was to take the hogs from the possession of the defendant and transfer them to the plaintiff without affording the defendant an opportunity to try the question of his right to their return, which he affirmatively alleged. For this error we must reverse the judgment and remand the cause for a new trial; and, as there must be a new trial, it is proper that we should pass upon the other question in the case.

The action of the court below, in the respect already indicated, left the case to be tried only as to the wheat and barley; and it was as to that only that the case was tried. Upon this branch of the case the question is, did Mayfield have an attachable interest in the grain? It was raised by him on land belonging to the plaintiff, under a written instrument by which the plaintiff leased and demised to Mayfield the land for a certain term, with the covenant, among others, on the part of Mayfield, that he would till and cultivate the land in a good farmer-like manner, and, at the proper time, would sow the land to wheat, oats, or barley, or proportions of each; and, at the proper time, would harvest, thresh, clean, and sack the grain, and thereupon deliver all of it to plaintiff, to be held by him as security for all advances made by him to Mayfield, together with interest thereon, at the rate of 1 per cent. per month; "and," proceeds the contract, "such demands being satisfied, the said party of the first part [plaintiff] agrees, that upon said grain being sacked and delivered as aforesaid, he will deliver and transfer to the said party of the second part [Mayfield] his three-fourths of said grain, quality and quantity considered." The instrument contained this further clause:

"And it is mutually covenanted and agreed that until such delivery and transfer by the said party of the first part [plaintiff] all of said grain shall be the property of the said party of the first part, and the said party of the sec ond part [Mayfield] shall have no right to dispose of any portion thereof."

There was also a provision to the effect that the grain should be delivered, after it was sacked, at the nearest depot or warehouse, and that the plaintiff should pay one-fourth of the cost of hauling it and one-fourth of the cost of the sacks used. There is no doubt that

where one man farms land of another, under an agreement by which he is to give the owner a part of the crop raised for its use, he and the owner, in the absence of a stipulation providing otherwise, become tenants in common of the crops raised. But it is just as clear that the agreement between the parties may be so framed as to secure to the owner of the land the ownership of the product until the performance of a certain stated condition. Wentworth v. Miller, 53 Cal. 9; Andrew v. Newcomb, 32 N. Y. 419; Lewis v. Lyman, 22 Pick. 437; Ponder v. Rhea, 32 Ark. 435; Smith v. Atkins, 18 Vt. 461. In the present case, the parties expressly agreed that all of the grain raised on the land by Mayfield should be delivered to the plaintiff, and remain his property, and in no way subject to the disposal of Mayfield until all of such advances as the plaintiff may have made him had been satisfied, and he had thereupon received from the plaintiff his share of the grain, which plaintiff bound himself to deliver. Until all this happened, all of the grain, by the express contract of the parties, was to be and remain the property of the plaintiff, and in no way subject to the disposal of Mayfield. That it was competent for the parties so to provide has already been shown, and having so provided, it results that Mayfield had no attachable interest in the grain at the time of the levy or the writs in question. "It is a fundamental principle," says Drake, Attachm. § 245, "that an attaching creditor can acquire no greater right in attached property than the defendant had at the time of the attachment. If, therefore, the property be in such a situation that the defendant has lost his power over it, or has not yet acquired such interest in or power over it as to permit him to dispose of it adversely to others, it cannot be attached for his debt." See, also, authorities cited in support of the text, and Tuohy v. Wingfield, 52 Cal. 319.

Our conclusion is that the ruling of the court below was right with respect to the grain, but erroneous in regard to the hogs involved in the controversy.

Judgment and order reversed, and cause remanded for a new trial.

We concur: MCKINSTRY, J.; MCKEE, J.

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