M. Clark and the case rested on circumstantial evidence. Motion of defendant for a new trial, and assignment of many errors, which was overruled and sentence of three years in State Prison. On the trial the question was asked of J. M. Clark-among many others "If from general reputation and from his own knowledge he would believe the defendant under oath in a matter where he was interested?" which was objected to, but on which point the appeal now turns. A large mass of testimony was taken. Jackson Hatch, District Attorney, for People. OPINION BY THE COURT. The Court below erred in permitting the question (against the objection of defendant's counsel), "From what you know of his reputation and what you know of him" (the witness sought to be impeached) "would you believe him under oath in a matter in which he is interested?" Assuming that the question was in other respects proper, it is clear that, in so far as it authorized the witness under examination to base belief on his personal knowledge-as distinguished from general reputation-the question was improper. Judgment and order reversed and cause remanded for a new trial. [No. 10,340.] [Filed April 11, 1878.] THE PEOPLE vs. MAGGIE BROWN. On appeal from Sacramento County Court, CLARK, Judge TESTIMONY-IN CRIMINAL CASES.-The failure of a defendant in a criminal case, to become a witness, is not to be considered by a jury as a circumstance tending to prove guilt. (Penal Code, sec. 1323; People vs. Tyler, 36 Cal., 522.) STATEMENT OF FACTS. Defendant was indicted in March, 1877, by the Grand Jury of Sacramento county for grand larceny of $50 money, silver watch $15, and a vest $10-in all $75, on Ira Beardsley. Beardsley drank beer in a saloon from hand of defendant, and became stupified and helpless, and then claims to have been robbed and beaten. Trial by jury, Judge A. C. BROWN, of Amador county, acting at request of Judge CLARK,-found guilty and sentenced to prison for two years. Motion for a new trial overruled, appeal taken-on questions of lawamong them the following: In argument to the jury the District Attorney used this language: "The defendant had it in her power to disprove her con"nection with the larceny by being a witness in her own behalf ;" to which defendant's counsel objected, but Court overruled, and ordered defendant's counsel to take his seat, &c. Chas. T. Jones, District Attorney, for People. I. S. Brown and J. C. Goods, attorneys for defendant. OPINION BY THE COURT. The Court erred in permitting the District Attorney (against the objection of defendant's counsel) to argue that the failure of defendant to become a witness was to be considered by the jury as a circumstance tending to prove her guilt, and in approving of such action of the prosecuting officer. (Penal Code, section 1,323; People vs. Tyler, 36 Cal., 522.) Judgment and order reversed, and cause remanded for a new trial. Remittitur forthwith. [No. 5845.] [Filed April 15, 1878.] THE DELPHI SCHOOL DISTRICT vs. MURRAY. Appealed from the Fifth District Court, San Joaquin county. S. A. BOOKER, Judge. SCHOOL DISTRICT TRUSTEES.-If proved that persons are "acting as trustees" o a school district, a presumption thereby arises that they are officers de jure, though the presumption is disputable by other evidence. PRESUMPTION OF OFFICIAL CHARACTER. -If not so disproved, the presumption will stand for proof that they are de jure trustees:"upon the strong presumption arising from the undisturbed exercise of a pubiic office, that the appointment of it is valid," etc. (Greenleaf, vol. 1, §. §. 91-2. ) STATEMENT OF FACTS. The Delphi School District, by its three trustees, organized and existing since August, 1861, and not owning land for a school site, desires to acquire that heretofore occupied, by condemnation-owned by Murray and wife, -ask the Court for an order adjudging the value and security proper, &c. The defendant denies the organization, and election of the trustees, claims it an un. suitable site, too near his house, an annoyance, &c. Also a mortgage and a homestead declaration on the said land. Offers an acre in either of two other places on his land, and also others offer sites for same. Tried by Court, without jury, and found that the spot was central and suitable, that the acre was worth $70; damages $50-but that no tender had been made by trustees, though they had $2,000 in hand that was applicable, but that they were not de jure trustees. Conclusion of law that plaintiff take nothing, and defendant, Wm. Murray, have his costs, as expended, $29.35. Plaintiff appeals September 10, 1877. Many points are made and authority cited on the appeal, ou both sides. Jas. A. Louttit, attorney for petitioner and appellant. Terry, McKinne & Terry, for defendants and respondents. OPINION BY THE COURT. 1. The proceedings in this case amount to an action brought by Grupe and others, asserting themselves to be trustees for the Delphi School District, who sue in the name of the District, because authorized by the statute to do so. (Pol. Code, §1575.) 2. It is alleged in the complaint that Grupe and the others "are the duly elected, qualified and acting trustees in and for said District;" and this allegation having been denied in the answer, it became the duty of the Court below, sitting without a jury, to find the fact in that respect. This was not done; but instead a finding, so-called, was made in the following words: "That C. Grupe, N. E. Alling and R. P. Nason were acting as trustees for said school district, but there was no sufficient evidence of the election of C. Grupe, R. P. Nason and N. E. Alling or either of them as trustees of the Delphi School District, of the county of San Joaquin, State of California; therefore the Court finds that they were not de jure trustees, and neither of them was a trustee de jure of said school district at the time of the commencement of this action." To find that these persons were "acting as trustees" was merely to embody the evidence or a portion of it adduced at the trial upon the issues just referred to, and to add that "there was no sufficient evidence of the election of Grupe," etc., was merely to remark upon the condition of the case as presented. If it was proven at the trial that Grupe and others were "acting as trustees," a presumption thereby arose that these persons were officers de jure, but this presumption was, of course, disputable in its character, and might have been met and overcome by other evidence. (Code Civ. Pro., $1963. Subdv. 14.) If not so met and overcome the presumption would stand for proof and would support a finding that these persons were de jure trustees. This was the rule at common law, and the statute had wrought no material change in that respect. That direct and primary proof of title to the office is dispensed with in such cases is mentioned by Mr. Greenleaf, as constituting an exception to the general rule excluding secondary evidence, and as proceeding upon "the strong presumption arising from the undisturbed exercise of a public office, that the appointment of it is valid," etc. (Vol. 1, §§ 91-2.) Judgment reversed, and cause remanded. [No. 5837.] [Filed April 15, 1878.] WEILL vs. JONES. Appeal from Seventeenth District Court, Los Angeles County. SEPULVEDA, Judge. RECISION-SPECIFIC PERFORMANCE.-Effect of recission would be to restore the status quo;--the one party becoming entitled to a restoration of the premises;-the other, to a restoration of the monies paid. A stipulation inserted that the party of the first part shall retain the monies paid, entitles the party of the second part to a right to specific performance, that might continue after the expiration of the period named,inexcusable delay occurring. STATEMENT OF FACTS. On February 17, 1875, Alex. Weill entered into an agreement to sell Norman C. Jones certain lands of the Azusa de Duarte Rancho, in Los Angeles county, for $70,000, on which Jones paid $30,000 down, and gave two notes for $17,500 each-one payable in two years, and one in three years-and note for the balance, $5,000, in one year, with interest at ten per cent per annum. A grace or stay of 90 days was allowed on these notes, and Jones took posses sion of the premises. At the same time Jones gave a mortgage on the land for $20,000 to Temple & Workman for one year, and interest at 1 per cent per month, and on June 19, 875, another mortgage to same for $5,000 for one year and same rate of inter est. On the $5,000 note, due February 17, 1876, $300 was paid and no more--leaving due $4,700 and interest. The other two notes were never paid. Meantime Temple & Workman assigned the two mortgages to Milton S. Lath. am to secure moneys due him. Then Temple & Workman assigned certain property to Daniel Freeman and E. E. Spence, including these two mortgages, for the benefit of their creditors. On October 7, 1875, Jones leased a part of said lands to E. W. Galé, P. H. Gale, Alexander C. Gale and Geo. K. Gale, to January 1, 1877. (Another similar agreement had been made on February 1, 1775, for certain other property, and $625 paid, and which land was included in the above named mortgages to Temple & Workman. The plaintiff now demands judgment that, in case the sums of $5,325, principal, and $4,157.50, interest, be not paid, the premises be restored, and previous payments forfeited. The defendant, Latham, as holder of mortgage from Temple & Workman, brings a cross-complaint and makes defense by his attorneys, Winans & Belknap, July 3d, 1876, and avers that the full time had not elapsed for payment so recission could be had. Jones, in defense, alleges false representations in regard to water and irrigation advantages on said lands, on the part of one Meyer, agent for Weill. Freeman & Spence, as assignees for creditors, claim a return of the money paid by Jones to Weill before any recission of the premises. Jones, in a cross-complaint, with many allegations, demands judgmen 1. That the notes be declared fraudulent and void, and be delivered up to him. 2. That he recover the money paid, and interest-and 3. Damages, $40,000.and costs of action, Court gave judgment for plaintiff Weill, on January, 6th, 1877, and entered decree of foreclosure February, 28th, 1877, and costs of action, $166.20. From which Freeman and Spence, and Jones appeal September, 11th, 1877, and urge that the action was premature-the 90 days grace not having expired;---That judgment should have been for recission and not foreclosure,-ie. the restoring of the money and land. Latimer, Morrow & Proffatt, and Brunson, Eastman & Graves, attorneys for appellants Freeman, and Spence ;-Smith & Stephens, for appellant Jones;John Mansfield, for defendants Gales; Winans & Belknap, for defendant Latham. Glassell, Chapman & Smiths, attorneys for respondent. OPINION BY THE COURT. The decision of this case depends upon the construction of a portion of one of the agreements annexed to the complaint, which reads as follows: "If default shall be made in any of the above payments for the space of 90 days after the same shall become due, then it shall be lawful for the party of the first part at his option and discretion, at once to rescind this agreement to convey, and to re-enter upon and re-possess said premises and in such case all payments theretofore made shall be retained by the party of the first part as compensation and liquidated damages for the previous use, enjoyment and occupation of the premises by the party of the second part." The effect of a recission would have been to restore the status quo; the party of the first part would have been entitled to the possession of the premises, the party of the second part to a restoration of the moneys he had paid. It is apparent that the words "to rescind" are not employed in their usual or proper sense, because they are followed by a statement that the party of the first part shall retain the moneys paid. In its legal effect the stipulation is for the benefit of the party of the second part. If the stipulation were not in the agreement, the plaintiff would succeed to the right to re-enter immediately on the failure of the second party to make a payment-subject, of course, to the right of the party of the second part to a specific performance, no inexcusable delay occurring. This right to specific performance might continue after the expiration of the period named, the only effect of the stipulation in respect to that matter being that it constituted an agreement that time should not be considered of the essence of the contract during the 90 days. |