20 Cal. 45 | Cal. | 1862
This is an action brought under the act concerning forcible entries and unlawful detainers.
The plaintiff, for the purpose of proving himself in the possession of the premises upon which the forcible entry was claimed to have been made, introduced as a witness the Sheriff of the county, who produced a writ of restitution in a certain action between Charles B. Storer and Henry B. Davis, by which he was commanded to cause Davis to be removed from the premises in question, and Storer to have peaceable restitution of the same, and also his return on the writ, which, so far as respects the point in question, is as follows : “ I hereby certify that I received the within writ on the fourteenth day of March, 1860, and on the twenty-sixth day of Marph I put Charles Storer, by his representative, James Mitchell, in peaceable possession of the within described premises.” This writ and return were read in evidence, and the Sheriff testified that he placed MitcheE in possession as the agent of Storer by the written instructions of the attorney of record of Storer. A witness, Smith, testified: “ I know that the Sheriff put MitcheE in possession of the property.” A witness, Lawson, testified: “ I was working in the field,” (at the time of the aEeged forcible entry) “ by order of MitcheE.” Upon this proof, the question is raised whether MitcheE can maintain this action, or whether it should have been brought by Storer.
Under the proof in this case, therefore, it was error to refuse the first instruction asked by the defendant.
Judgment reversed and cause remanded for a new trial.