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legal obligation," as said by the court in Smith v. Allen, 5 Allen, 458, "accompany such an agreement. The law enforces its performance by affording an effectual remedy against the party who shall, without legal excuse, fail to fulfill it. But a contract of this kind is nɔt to be regarded as a valuable consideration merely because damages commensurate with the injury may be recovered of the party who inexcusably refuses to fulfill it. It is peculiar in its character, and has other effects and consequences attending it. It essentially changes the rights, duties, and privileges of the parties. They cannot, while it exists, without a violation of good faith, as well as of the material obligations to which it subjects them, negotiate a contract for such an alliance with any other person. A woman who has voluntarily made such an agreement cannot without indelicacy, and so not without exposing herself to unfavorable observation, and to some loss of public favor and respect, seek elsewhere, except for good and substantial reasons, withdrawing from the engagement by which she has bound herself, for preferment in marriage; and thus her promise and agreement to marry a particular person essentially change her condition in life. They materially affect not only her opportunities but her right to attempt in that way to improve them. A legal contract and promise made in good faith to marry another must, therefore, like an actual marriage, be deemed to be a valuable consideration for the conveyance of an estate."

Judgment reversed and cause remanded, with directions to the court below to overrule the demurrer to the amended complaint, with leave to the defendant to answer.

We concur:

MCKINSTRY, J.; McKEE, J.

(65 Cal. 174)

PEOPLE V. MESS. (No. 10,937.)

Filed April 30, 1884.

An order of court fixing the time of sentence, after conviction of felony, is not an appealable order, and an exception taken to such order, because it provided for a sentence before the time provided by law, is not reviewable in the supreme court.

Department 1. Appeal from the superior court of the city and county of San Francisco.

Clara S. Foltz, for appellant.

The Attorney General, for respondent.

Ross, J. A verdict finding the defendant guilty of the crime of forgery was returned and entered in the superior court of the city

and county of San Franciso on the twenty-fifth day of October, 1883. The court thereupon appointed October 27, 1883, as the time for pro- · rouncing the sentence of the law, and on the said twenty-seventh day of October sentenced the defendant to imprisonment in the state. prison at San Quentin for the term of seven years. It is claimed by counsel for appellant that the sentence so imposed was contrary to law, in that two days had not elapsed between the rendition of the verdict and the pronouncing of sentence.

Section 1191 of the Penal Code reads:

"After a plea or verdict of guilty, or after a verdict against the defendant on the plea of a former conviction or acquittal, if the judgment be not arrested or a new trial granted, the court must appoint a time for pronouncing judgment, which, in cases of felony, must be at least two days after the verdict, 'f the court intend to remain in session so long; but if not, then at as remote a time as can reasonably be allowed."

The intention of the "court" is known to the judge only, and there is no mode by which we can say he did not intend to remain in session "so long." It is, perhaps, for this reason that no exception is allowed by statute to the order fixing the time for sentence. Penal Code, §§ 1172, 1173. No such exception being allowed, the order is not reviewable here. It should be added, however, that there was no objection on the part of the defendant to the shortness of time, when, on the twenty-fifth of October, the court below appointed the twentyseventh for pronouncing sentence; nor was there any such objection made when on the day appointed the defendant was called for sentence. Had defendant made it appear to the court that the time appointed was less than two days after the rendition of the verdict, and the court intended to remain in session so long, the time for pronouncing sentence would doubtless have been fixed at least two days after the rendition of the verdict.

Our conclusion is that the judgment of October 27, 1883, is a valid judgment, and that the defendant is legally in custody under it. It results that the proceedings subsequently taken in the superior court, looking to a resentence of the defendant, were void.

Judgment of October 27, 1883, affirmed, and judgment of November 13, 1883, reversed.

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

CRUZ v. COUNTY OF LOS ANGELES. (No. 9,246.)

Filed April, 1884.

The validity of the county government act of the state of California, passed March, 1883, affirmed, on the authority of Logan v. Solano Co., ante, 463,

In bank. Appeal from the superior court of Los Angeles county. The facts of this case and questions involved are precisely similar to those in the case of Logan v. Solano Co., ante, 463.

S. M. White, for appellant.

Smith, Brown & Hutton, for respondent.

BY THE COURT. On the authority of Logan v. Solano Co., ante, 463, the judgment is affirmed.

I dissent: THORNTON, J.

(2 Cal. Unrep. 301)

ROYON v. GUILLEE and others. (No. 8,275.)

Filed April 30, 1884.

In an action of ejectment, where the plaintiff gives in evidence a judgment roll showing a judgment in his favor and against defendants, an execution duly issued thereon, a sale of the demanded premises to plaintiff, an attachment and sheriff's return showing a levy which has never been released, and evidence of possession subsequent to the levy and prior to the judgment in the first suit, and defendants offer no evidence, a finding thereon for the plaintiff is amply supported by the evidence, and judgment must be affirmed.

Department 2. Appeal from the superior court of Alameda county.

Wm. M. Pierson, for appellants.

R. M. Swain, for respondent.

BY THE COURT. In this action (ejectment) the complaint is in the usual form, and the answer denies that the plaintiff was seized in fee or in any other estate, or entitled to the possession of the premi ses; or that the defendants wrongfully withhold the possession from him, or that he was damaged in any sum whatever thereby. On the trial the plaintiff introduced in evidence the judgment roll, showing a judgment in favor of plaintiff aud against defendants Nicholas and

Louise Aimee Guillee, an execution duly issued thereon, a sale of the demanded premises to plaintiff, also a writ of attachment, and the sheriff's return showing a levy thereunder on March 19, 1877, which was never released. It was then shown that subsequent to the levy of the attachment and prior to the judgment in the first suit, defendants were in possession of the demanded premises. Defendants offered no evidence. The findings which were in favor of plaintiff are attacked on the ground of insufficiency of the evidence to support them. We think they are amply supported by the evidence, and as this is the only ground relied on for a reversal of the judgment it must be affirmed.

Judgment and order affirmed.

(65 Cal. 154)

Ex parte KELLY. (No. 10,973.)

Filed April 28, 1884.

Where a person is convicted of battery before a justice of the peace, and a fine is imposed as punishment, with a substituted imprisonment therefor in case of nonpayment, the statute does not authorize such justice to direct that such prisoner, while so imprisoned, shall perform labor in the streets or other public works. Such judgment, being a unit, is void if any portion of it is without jurisdiction, and will entitle defendant to a discharge on habeas corpus. The supreme court cannot exscind the void portion from the judgment and order what remains to be carried into execution.

In bank. Application for a writ of habeas corpus.

J. F. Godfrey, for petitioner.

S. M. White, contra.

THORNTON, J. Application for writ of habeas corpus. The petitioner was accused and convicted of a battery, and the court rendered the following judgment:

"In the Court of the Justice of the Peace for the Township of Los Angeles, in the County of Los Angeles, State of California. R. A. Ling, J. P.

"The People of the State of California to the Sheriff of the County of Los Angeles, greeting:

"Whereas, Jolin Kelly has this day been convicted before me, R. A. Ling, justice of the peace for the township of Los Angeles, county of Los Angeles, and state of California, of the crime of battery, committed in said Los Angeles township, on or about the third day of April, A. D. 1884. And whereas, upon such conviction, I did consider and adjudge that for said offense the said John Kelly be fined in the sum of six hundred and fifty dollars, or be imprisoned in the county jail of said Los Angeles county in the proportion of one day's imprisonment for every dollar of the fine until the fine be satisfied, not exceeding six hundred and fifty days, and the defendant to be discharged on v.3,no.11-43

payment of such portion of said fine not satisfied by imprisonment at rate above specified. And whereas, the said John Kelly, although requested to pay said fine, has not paid the same, these are therefore to command you, the said sheriff, to take and receive the said John Kelly and imprison him in the county jail of Los Angeles county in the proportion of one day's imprisonment for every dollar of the fine until said fine be satisfied, not exceeding 650 days, and the defendant to be discharged on payment of such portion of said fine not satisfied by imprisonment at the rate above prescribed. And the said defendant, while so imprisoned, perform labor on the streets or other public works of the city of Los Angeles.

"Given under my hand at the township of Los Angeles, in the county of Los Angeles, this fourth day of April, A. D. 1884.

"R. A. LING,

"Justice of the Peace in and for Los Angeles township and county, and state of California."

Battery is a misdemeanor, and "is punishable by fine not exceeding $1,000, or by imprisonment in the county jail not exceeding six months, or by both." Penal Code, § 243.

It was manifestly not the intention of the justice of the peace who tried the cause to impose both fine and imprisonment as a penalty. If that had been his intention he would not have provided in the judgment for the discharge of the defendant on payment of the fine, or such portion of it as remained unsatisfied, after crediting the defendant with that portion of the imprisonment suffered, at the rate of one dollar a day.

It was clearly the intent to impose a penalty or a fine, and, in case it was not paid, imprisonment until the fine was satisfied at the rate indicated in the judgment. This is justified by section, 1446 of the Penal Code, which reads as follows: "A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine is satisfied, in the proportion of one day's imprisonment for every dollar of the fine." This section of the statute certainly allowed a substituted mode of paying the fine, and it may well be styled a substituted punishment in case of non-payment, qualified as to payment and discharge of the defendant as in the judgment entered in this case. But this statute nowhere allows any addition to this substituted mode of payment. We look in vain to find any authority in any tribunal, in the Penal Code, or any other Codes, to annex to this substitution of incarceration for coin any other punishment. We find no power in the justice to add, as is done by the judgment, that defendant, while so imprisoned, perform labor on the streets or other public works of the city of Los Angeles. This portion of the judgment is clearly beyond and outside the jurisdiction of the tribunal which rendered it.

Now, the judgment is a unit, and if one portion of it is without the jurisdiction of the justice the judgment is void. We see no authority in this court, on this proceeding, to hold a portion of a judgment surplusage, because not authorized by law, to exscind such portion from the judgment and order what remains to be carried into

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