33 Cal. 318 | Cal. | 1867
The plaintiff having obtained his alleged interest in the Independent Tunnel Company’s claim by purchase, which purchase was evidenced by a deed or bill of sale, was bound to produce his deed or bill of sale for the purpose of proving his title—that being the best evidence—or prove its loss for the purpose of laying a foundation for the introduction of secondary evidence as to its contents. (Patterson v. Keystone Mining Company, 30 Cal. 365.) The evidence of the loss was insufficient. It showed that in all probability the bill of sale was left in the plaintiff’s store at Yorkville at the time the plaintiff sold out and delivered possession of the store and its contents to his nephew. His nephew, at the time of the trial, was in the county and in reach of the process of the Court, yet he was neither called as a witness as to what had become of the bill of sale, nor does it appear that he was ever questioned by the plaintiff touching the missing document. It is true that the plaintiff searched the store about a year after the nephew took possession, but that was not sufficient. Under, the circumstances detailed by the plaintiff, which are very similar to those presented in the case just cited, inquiry should have been made of the nephew for the missing document in order to sufficiently establish its loss. It does not appear that any search was made for the purpose of this trial.
In view of the fact that the plaintiff acquired his interest
The Court did not err in excluding the record from the Court of A. B. Scott, Justice of the Peace for Township No. 5, as evidence of the defendant’s title. While the statute, in cases where two or more persons are associated in any business and transact such business under a common name, allows suit to be brought against them by such company name, it does not allow suit to be brought against them by a company name which is not the name under which they transact their business. The statute is in derogation of the common law, and must be strictly construed.’ As appears upon the face of the record, the action was commenced, not against the Independent Tunnel Company, but against the Independent Com
Hor did the Court err in excluding the judgment, the Constable’s deed to Garrison, and the assignment of the Constable’s deed by Garrison to the defendant, when offered as tending to show color of title under the statute in relation to adverse possession. The instrument from Garrison to the defendant was not a deed of the mining claim, but merely an assignment of “his right, title and interest in and to ” the Constable’s deed, and not to the land therein described. Title passes by deed and not by an assignment of the deed to the assignee. Whether, had Garrison conveyed to the defendant, the judgment and Constable’s deed in connection with such conveyance would have been admissible as showing color of title in aid of the defendant’s plea of the Statute of
Judgment reversed and a new trial ordered.