1. TheCourt below had full authority upon principle, and express power by statute, to order a special jury to be summoned. (Wood's Digest, Tit. Jurors, 512, Sec. 16.) Every intendment is in favor of the regularity of the proceedings of the Court below. (Grewell v. Henderson , 7 Cal. 290.) The appointment of an Elisor was proper. (Wilson v. Roach , 4 Cal. 360; Wood's Digest, 684, Sec. 57.)
2. The Sheriff should have proceeded by garnishment, if it be held that the interest attached was not capable of manual delivery. (Wood's Digest, 183, Sec. 125, Subdiv. 4; Secs. 126, 127.) But if the interest was capable of manual delivery, then the appellant was bound by the statute to take the whole into his custody, and make delivery to the purchaser. (Wood's Digest, 183, Sec. 125, Subdiv. 2; Id. 197, Sec. 227.) The wheat being in the straw, was not divisible, nor susceptible of exact ascertainment.
The declaration of the officer at the time of sale, restrictive of the amount of the interest sold, amounts to nothing; he should do his legal duty and the law presumes he did it, and that was to deliver the whole wheat to the purchaser, in order to effect a manual delivery of the undividedportion sold, and to hold, if he saw fit, the purchaser, responsible to him (the officer) for the share not sold.
3. As to the Court's refusal to give the instructions asked, there was no error, for there was some evidence of both immediate delivery and continued and actual change of possession; and, therefore, the refusal was proper. Besides, the change of possession was clearly proven by the immediate abandonment of the premises by Andeque on the day of his sale.
4. As to the last instruction asked, it was hypothetical, irrelevant to the proofs, and assumptive of facts not in evidence. (Thorne v. Cal. Stage Co. 6 Cal. 232; People v. Henley , 8 Id. 390; Branger v. Chevalier , 9 Id. 353; Wood's Digest, 107, Sec. 23.)
JUDGES: Baldwin, J. delivered the opinion of the Court. Cope, J. concurring.
OPINION
BALDWIN, Judge
This action was trespass against the defendant as Sheriff, for seizing and taking away certain grain, the property of plaintiff.
1. The first error assigned is that the Court below ordered a special jury to be summoned, instead of trying the case by the regular panel. But there is nothing in this objection. The Sheriff being the party interested, there was an obvious propriety, if the plaintiff insisted on it, in trying the case by a jury, in the selection of which, he had no agency. The statute, (Stat. 1852, 107,) seems to leave the ordering of a trial jury to the discretion of the Court, to be governed by its sense of the necessity of so doing. We do not see any abuse of this discretion in this instance. There being no Coroner, the appointment of an Elisor to perform this service was proper.
2. The Court did not err in refusing to instruct the jury that there was no evidence that the sale from Victor Andeque to the plaintiff was accompanied by an immediate delivery of the property, and followed by an actual and continued change of possession thereof. We think the Court would have invaded the province of the jury in giving this charge. There was evidence tending to show that the property in dispute was grown upon the land of plaintiff, and in his possession; that Andeque was only on the land for the purpose of raising and harvesting the crop; that the grain was cut and stacked on the premises; that Pacheco was entitled to one-third by the terms of the contract; that Andeque sold to the plaintiff and delivered possession, and then abandoned the premises, the plaintiff residing thereon; and after the sale, Andeque took no further control, and had nothing further to do on the premises or with the crop, and that the plaintiff assumed the dominion and control of the grain, as he then had of the land on which it grew and was stacked.
Under these circumstances, the plaintiff was not bound to abandon his premises, or carry the grain beyond them, in order to perfect his title as against the creditors of his vendor.
3. Nor did the Court err in refusing the other instruction, which was, that if there was a particular partnership between Andeque and plaintiff in wheat-raising, to end when Andeque had sacked the grain, then a sale before such sacking, and while Andeque (the vendor) had the right to the land where the grain was, could not be a valid transfer and sale if the grain still remained on the land leased, and was not removed to other land or to the actual possession of the plaintiff.
Several objections occur to this instruction. It assumes that there was a leasing of the land, which does not appear in the contract; it assumes that this lease continued, or was to continue, so as to give possession to Andeque of the land, and of that portion of the land on which the grain was stacked; and it ignores the possession by the plaintiff of the premises, and his acts of control and dominion; and, besides, it contravenes the proposition as to the necessity of any other possession than that taken by the plaintiff.
4. We think there was no error as to the rule of damages. If the plaintiff was entitled to recover, he was entitled to the value of all the grain taken, and we understand the instruction as given on the hypothesis of his right, as claimed.
The evidence does not warrant us in holding that the damages were excessive.
Judgment affirmed.