Grady v. Early

18 Cal. 108 | Cal. | 1861

Baldwin, J. delivered the opinion of the Court

Cope, J. concurring.

1. The first objection is to the complaint, because the premises, a mining claim, are not described with sufficient definiteness. The point is not well taken.

2. There is no good objection to the excusing of the juror. The statement by the juror was sufficient to justify the Court in discharging him. The object is to get a fair and impartial trial; and in civil cases we should interfere with great reluctance with the discretion of the Court in excusing a juror when it thought the purposes of justice were to be subserved by excusing him. Except under very peculiar circumstances, it is difficult to see how the erroneous exercise of a mere discretion in excusing a juror in a civil case could operate to the prejudice of a party. We see no error in the ruling in this case.

3. It is not apparent that the witnesses were incompetent. The recovery by the grantee of the witnesses would not necessarily give a right of action to the grantors for damages accruing before the conveyance and recovery. We are not cited to any authority which holds that a recovery in ejectment, even upon the title, affirms the existence of a title in the grantor, and that the record is conclusive or any proof of the grantor’s title. For all that appears, the plaintiff may have rested his recovery upon the mere fact of prior possession, and the legal title may not have been involved in the issue at all. We apprehend that, at the most, the judgment is only conclusive of the title of the plaintiffs, not of his predecessors. There is nothing in the point as to the amendment of the complaint.

Judgment affirmed.