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Chas B. Younger and F. Adams, attorney for plaintiff and appellant.

J. H. Logan, attorney for defendant and respondent.

OPINION BY THE COURT.

There is no finding from which it can be seen at what precise time the claim of Elliott became due. This was necessary in order to determine whether the presentation of the claim-made on the 17th of September, 1875-was within the time required by the statute. (Code of Civil Procedure, section 1493). Order affirmed. Remittitur forthwith.

[No. 5852.]

[Filed April 20, 1878.]

PHIPPS vs. HARLAN.

Appeal from Twentieth District Court, San Benito County, D. BELDEN, Judge.

AFFIRMATIVE DEFENSE-FINDINGS.-Watson, one of the defendants, having set up a separate and affirmative defense, upon which no finding was made:-Held, that an additional finding should be made on that point,upon which to proceed to judgment.

STATEMENT OF FACTS.

Isaac Phipps died intestate on May 10, 1872, his only heirs being Sarah Jane Harlan, (wife of E. Harlan, defendant), and the plaintiff, Edward L. Phipps, grandson, a minor, being son of Lemon W. Phipps deceased. Harlan became administrator July 2, 1872, with bonds for $23,000, with five sureties-Job. Malsbury $3000, Wm. T. Brown $5000, Chas. D. Fowler $7000, S. S. Swop $3000, and Stephen Watson $5000. On November 3, 1876, Harlan's final account was allowed, showing $8,551.32, of which 84.276.66 was due plaintiff, and that for $2,000 of this amount Thos. H. Swain his guardian received a house and lots in Hollister for the use of plaintiff;-and that Harlan pay the balance due plaintiff, in gold coin, $2,275.66, and to S. J. Harlan the other half, $4,275.66 in gold coin. This action is brought to recover the said $2,275.66, as never having been paid. All the defendants demur, which is overruled. All answer April 5, 1877, and deny the bond, or the appointment of Swain as guardian of plaintiff-amended answer April 6, 1877, all except Watson deny the same. Separate answer by Watson, claims he was discharged June 21, 1873, from the bond, and a supplemental bond filed, with new sureties --Cause tried May 18, 1877-Jury waived-and judgment for plaintiff for the $2,275.66 and interest-amount $2,398. 23—and costs $21.25. Motion for new trial by defendants:-Overruled August 6, 1877. Appeal September 12, 1877 from the judgment and order by both sets of defendants.

E. W. McGraw and J. J. May, attorneys for plaintiff and respondent.
W. S. McPheeters and Jas. F. Breen, attorneys for defendants and appellan ta
J. J. Harris, for S. F. Watson, defendant and appellant.

OPINION BY THE COURT.

Judgment and order denying a new trial affirmed as to the defendants Harlan, Malsbury, Brown, Fowler and Swope. Remittitur forthwith.

The judgment as to the defendant, Watson, reversed for want of a finding upon the affirmative defense set up in his answer, and as to him the cause is remanded with directions to make an additional finding upon the said affirmative defense and thereupon to proceed to judgment as to the said defendant Watson. Remittitur forthwith.

[No. 10,336.]

[Filed April 22, 1878.]

PEOPLE vs. GREEN.

Appeal from the County Court of San Joaquin County, W. S. BUCKLEY, Judge.

WITNESS-ERRONEOUS PROCEEDING.-The court directed a witness to accompany the Jury, under charge of the Sheriff, and show them the place where the offense was committed, and where the different parties stood during its occurrence:-Held that this was erroneous, -not only being opposed to the letter of the code,---but subversive of the principle which gives to a defendant the privilege of being confronted by the witness against him in all evidence given.

STATEMENT OF FACTS.

Wm. Green, with three others, was indicted by the Grand Jury of San Joaquin County, on November 21, 1877, for Robbery and Felony, for taking $3, in silver coin from James Burnet, in a saloon,-taking it from his pocket--for which they were arrested by two policemen on the spot-and convicted of larceny in the Police Court. Trial under the indictment set December 8th, resulting in a verdict of guilty, time for sentence on 15th, continued to 17th, for argument on motion for arrest of judgment-when E. T. Stone, acting Judge amended the conviction to robbery and prior conviction for larceny, and sen. tenced him to State Prison for life. Before sentence had been pronounced, defendant moved for a new trial on the ground (among others) that Jury received evidence out of Court other than that resulting from a view of the premises;in other words, that one of the witnesses, Jos. L. Nye, one of the officers who made the arrest, had accompanied the jury in viewing the premises, by order of the Judge, to which defendant's counsel took exception (The testimony of this witness in connection with the visit of the jury to the premises is fully given in the opinion).—Motion for new trial denied, and an appeal taken on February 8,1878 from that order-and claiming that whatever force was shown or used was done in a quarrel, and not in a conspiracy.

J. A. Hosmer and J. A. Campbell, attorneys for people and respondent.

W. Minta, Jas. H. Budd, Wm. H. Gibson, and S. L. Terry, attorneys for dedefendant and appellant.

OPINION BY THE COURT.

On cross-examination, the witness Nye stated that he and Collins during all the times that the occurrences he testified to were going on, were in a yard back of the saloon, and the back room was between them and the front room where the bar was. That the partition, over which he couldn't see ran between the front and back room, and the door in this partition was closed. That the only way he could see what took place in the front room was by looking through an opening in the partition at the end of the coanter, about four feet by two over the ice chest, which was the same height as the counter They standing at a door leading from the back room to the yard, about sixteen feet from the ice chest.

This testimony was given in answer to questions asked by the defendant's counsel for the avowed purpose of showing that it was impossible for the witness to have seen what took place in the bar-room while the witness was at the back door.

Mr. Campbell, for the prosecution asked the Court to send the jury in charge of the witness Nye, to see the Independent saloon, and that Mr. Nye should show the jury the relative positions of these parties.

Mr. Terry, for defendant, objected to Nye making any explanation to the jury out of Court.

The Court said: He (Nye) may go and show them (jury) where he stood, and where the parties stood, but not any further.

To Mr. Nye Mr. Nye, you will go with the jury aud show them the position that you occupied during the transaction, and where the other parties were and where Officer Collins was, and they can judge for themselves after that. There are not to be any explanations or comments made, except to show the jury where these parties were at the time the thing occurred.

Mr. Sheriff, you will take charge of the jury.

Mr. Terry, defendant's counsel, excepted to the order of the Court.

The jury went to view the premises in charge of the Sheriff, who was first sworn as required by law. This proceeding was erroneous. Section 1119 of the Penal Code provides: "When, in the opinion of the Court, it is proper that the jury should view the place in which the offense is charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted in a body, in the custody of the Sheriff. to the place, which must be shown to them by a person appointed by the Conrt for that purpose; and

the Sheriff must be sworn to suffer no person to speak or communicate with the jury, nor to do so himself, on any subject connected with the trial, and to return them into Court without unnecessary delay or at a specified time."

The action of the Court was not only opposed to the letter of the Code, but also to the purpose of the oath required to be administered to the officer who conducts the jury to the place mentioned in the order, and to the principle which gives to a defendant the privilege of being confronted by the witness against him.

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

[No. 5931.]

[Filed April 22, 1878.]

KELLEY vs. MCKIBBEN.

REPLEVIN-FINDINGS.-In an action of replevin. if the findings are indefinite as to the articles of property claimed; and if a reference to the complaint does not render them clear and intelligible, a judgment based thereon is uncertain and invalid.

AMENDED COMPLAINT.-When the original complaint does not contain full data for reference by the findings, it may be proved that the amended complaint was intended to be referred to.

Appeal from Fourth District Court, San Francisco County. R. F. MORRISON, Judge.

STATEMENT OF FACTS.

Wm. McKibben, defendant, acting as Sheriff, seized certain household goods on December 18, 1875, at No. 205 Taylor street, to satisfy a judgment of one O'Brien against a Mrs. Morgan. Luke C. Kelly, plaintiff, claimed to own the goods,--valued them at $1,000,-and brought action for their recovery and damages $500. Defendant demurred that the complaint was ambiguous,- did not sufficiently describe the property.--Complaint was then amended, -more fully specifying the property, and demurrer withdrawn.---Defendant's answer claimed official duty, denied it being the plaintiff's property, and was only worth $350. Case tried December 18, 1876, without jury, and the findings were for plaintiff, (except certain articles) and the goods worth $699,-and costs of recovery $150; and $94.70 costs of court. Judgment for those amounts, or a return of the goods and costs.- Defendant moved to retax the costs, which was dismissed,-upon which he appealed from the judgment and order;-making points that decree should have been for possession of goods, and not return—and that damages and interest are illegal in action of replevin. Daniel T. Sullivan, attorney for plaintiff and respondent. Mogan & Sullivan, attorney for defendant and appellant.

OPINION BY THE COURT.

The Judgment recites that the case having been submitted for decision, the Court delivers its findings and decision in writing, which is filed, and orders that judgment be entered in accordance therewith. It then proceeds as follows: "Wherefore, by reason of the law and the finding aforesaid, it is ordered, adjudged and decreed that Luke C. Kelley, plaintiff, do have and recover from William McKibben, defendant, judgment for the return of said property mentioned therein, or if such return cannot be had, then for damages," etc.

The most favorable view for the plaintiff is that ths property "mentioned therein" is the property mentiored in the findings, mentioned in the recitals by which the judgment is preceded. Upon reference to the findings, however, it appears that no property is actually mentioned there except certain property of which the plaintiff is found not to be the owner. The property which is found to belong to plaintiff is not mentioned at all in the finding, but is stated therein to be the property "mentioned in the complaint." Upon looking into the complaint, no intelligible description of the property is found there.

It may be proved that the reference to the complaint is mistaken and that the amended complaint is really intended. But this will be found not to relieve the difficulty. for though the amended complaint contains an enumeration of the articles of personal property sued for, it is manifest from the findings already referred to, that several of them are found not to be the property of the plaintiff, and yet the excepted articles cannot be selected with any degree of certainty from the list enumerated in the amended complaint.

In short, the judgment is uncertain in itself, and the reference by which it is attempted to be supported does not make it certain.

The conclusion to which we have arrived upon this point, renders the decision of the question upon the taxation of costs below, unnecessary.

Judgment reversed and cause remanded.

Neither Mr. Justice McKinstry nor Mr. Justice Rhodes expressed an opinion.

A petition for rehearing was filed May 6th, by the respondent, on the ground that the amended complaint became the complaint; and a stay of proceedings is granted.

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