12 Cal. 226 | Cal. | 1859
delivered the opinion of the Court—Field, J., concurring.
One Finney, the vendor of the claim to Rowe, was examined as a witness. It is assigned as error, that he was admitted to testify when he was incompetent. The question before the jury was not as to the original title as it stood before the witness sold, but as to whether the claim belonged to plaintiff, F. M. Rowe, as whose property it was levied on by the officer.
It is true that the witness had not been paid all the purchase money; but this made no difference. This was not an action to try the title ; and if it were, in this state of the question before the jury, the vendor, for all that appeared, was a competent witness.
Another assignment of error is, that no trespass was committed, because the officer found F. M. Rowe, the debtor in attachment and judgment, in possession, and therefore had a right to seize the property. But the very question of fact was, who was in possession ? and the possession of real estate usually follows the ownership. The mere fact that F. M. Rowe was on A. C. Rowe’s ground, is no justification to the officer to go there and dig up the soil, or take the earth or gold taken from the land.
The next error assigned is, that no ouster was made, but merely the rights, title and interest of the judgment debtor attached; but no ouster in this sense is necessary to maintain an action of trespass ; any unlawful entry is enough. And the officer, when he put a Receiver in possession of plaintiff’s property, of asserted through himself or another an unlawful dominion over another’s property, is a trespasser. There is no difference between the officer going, without right, upon the plaintiff’s land, and getting Lyre to seize or take the plaintiff’s gold or earth, and doing it himself.
In both cases, such an act is a trespass and conversion; and all concerned, aiding and abetting, are original trespassers. • It is not the case of a co-tenant paying over money or gold dust to the Sheriff, but
The next objection is, that the damages were excessive. There was some evidence tending to show that in a few weeks the amount coming to the plaintiff’s share was $1,745. The jury might infer that some additional amount was taken out the balance of the time. Besides, there is no specific denial of the amount of damages laid in the complaint, though there is of the alleged causes of damage.
It may well be doubted, indeed, if the answer put in issue any fact except the fact of ownership, and of the levy, etc., as the property of F. M. Rowe.
Some technical exceptions are taken, but they were not made below, and we cannot consider them for the first time here.
The judgment is affirmed.
