Satterlee v. Bliss

36 Cal. 489 | Cal. | 1869

By the Court, Sawyer, C. J. :

This is an action to recover land in San Francisco. Both parties rely on prior possession in themselves and their grantors, and on title claimed to have been derived under the Van Hess Ordinance.

There is nothing in appellants’ first point. The deed from Satterlee to Reese was certainly admissible, and the deed from Stevenson to Howard ivas referred to in that deed, and was only put in evidence as explanatory of it.

The defendants were strangers to the deed from Stevenson to Reese, and were not precluded from showing the purpose for which it was executed. (1 Greenl. Ev., Sec. 279; Franklin v. Dorland, 28 Cal. 178.) But the refusal to permit the defendants to show that it was a deed in partition is wholly immaterial. The operation of the deed, and the several other deeds from the parties claimed to be the tenants in common, was to vest in Beese all the interest of those parties, whatever it was, in the land in controversy. The rights of Beese in the latter tract were precisely the same as they would have been had the object expressly appeared to have been a partition.

The next point is, that the papers in the matter of Beese’s estate were improperly admitted for want of the proper stamp on the probate of the will. The clause of Schedule “B” of Stamp Duties involved is as follows: “Probate of wills, or letters of administration, when the estate and effects for and in respect of which such probate or letters of administration are applied for shall be sworn or declared not to exceed the value of two thousand five hundred dollars, fifty cents.”

It is unnecessary, in the view we take of the point in respect to the stamping of such documents, to ascertain with exactness the sense in which the phrase “probate of wills” is employed in the Act. The evident purpose of the Act is, to impose stamp duties upon estates of deceased persons, upon which letters testamentary or of administration shall be granted. It is not a tax upon either class of documents as such, as is evident from the fact that the duty varies with the value of the estate. It can make no substantial difference in the result whether the stamp is affixed to the will, upon its being admitted to probate, or to the certificate of proof thereof attached, or to .the letters testamentary, as they are parts of one judicial proceeding; and the object of the Act—revenue—is attained, if either document is duly stamped. We concur with the Court below in holding that the presumption, when the question arises in a collateral proceeding, is, that the Probate Court passed upon the question of the value of the estate on evidence, and that the District Court has no power to review the action of the Probate Court. The sufficiency of the stamp could not be tested by the evidence of the value of the estate, produced when the letters were offered in evidence in another proceeding. Were the rule otherwise, the validity of proceedings for the settlement of the estates of deceased persons, and of rights acquired through such proceedings, would be dependent upon the contingency that another Court, in which the proceedings were offered in evidence, would make the same estimate as the Probate Court did of the value of the -estate, based upon evidence, which, from its nature, must be conjectural and fluctuating.

Another point is, that the testimony of Pierson was inadmissible, on the ground that the matters to which he testified came to his knowledge through the relationship of client and attorney, and were within the rule protecting privileged communications. It is not clear that his testimony goes beyond stating by whom he was employed, and testimony to that extent, at least, is admissible. (Chirac v. Rheinicker, 11 Wheat. 280; 1 Greenl. Ev., Sec. 245; Gower v. Emery, 18 Maine, 82; Brown v. Payson, 6 N. H. 448; Beckwith v. Benner, 6 Car. & P. 681.) But concede that it did, this was not the ground of objection in the Court below. The objection and motion to strike out there were on the ground that it was “ irrelevant and immaterial.” The testimony was certainly relevant and material, and it is too late to raise, for the first time, the objection on the ground of privilege. The same point is made with reference to the witness Tompkins. In Chirac v. Bheinicker, supra, the question objected to on the-ground that it sought a disclosure of matters coming to the knowledge of witness in professional confidence, was: “Were you retained at anytime as attorney or counsel to conduct the ejectment suit above mentioned, on the part of the defendant, for his benefit, as landlord of those premises ? ” The Court held that part of the question, “«s landlord of those premises,” (the italics are the Court’s,) objectionable. The Court say: “ It seeks a disclosure of the title and claim set tip by Rheinicker to his counsel for the purpose of conducting the defense of the suit.” Ro remark is made on that clause of the question, “for his benefit.” This case carries the rule as far as any that has been called to our attention, and is contrary to the rule as stated in the text by Greenleaf in his work on Evidence, (1 Greenl. Ev., Sec. 245,) and as held in Beckwith v. Benner, 6 Car. & P. 681. Certainly so, unless the Court considered it proper to ask the witness whether he .was employed by Rheinicker to defend the suit “for his benefit.” The inference is, that to this extent the question was thought proper. The rule, as stated by Green-leaf in the section cited, is that “the attorney may be compelled to disclose the character in which the client employed him, whether that of executor or trustee, or on his private account, in order to Id in the confessions of the real party in interest.” And the question held proper in Beckwith v. Benner, supra, was, “Did the defendants, as executors of Mrs. Barber, employ Benner to act for them as their attorney ?” In Levy v. Pope, Moody & Mal. 410, it was held that the attorney conducting a cause in Court may be called as a witness by the opposite side and asked who employs him, “ in order to show the real party, and so let in his acts and declarations.” (6 N. H. 449; 1 Greenl. Ev., Sec. 245.) These authorities establish the rule that the attorney may be compelled to disclose the character in which the client employed him; and even Chirac v. Rheinicker goes so far as to recognize the propriety of the disclosure that the client employed the attorney to prosecute or defend for his own benefit, and it must be, in the language of Greenleaf, “in order to let in the confession of the real party in interest.” The distinction between the rule as thus established and that which forbids the addition of the clause that Rheinicker defended “as landlord of the premises,” certainly seems thin. It is further to be observed that, as this rule has a tendency to prevent the full disclosure of the truth, it ought to be strictly construed. (Foster v. Hill, 12 Pick. 97; Gower v. Emery, 18 Maine, 82.)

In view of this rule of construction, and of the rule established by the authorities cited, let us examine the testimony of Tompkins. If there is anything in the testimony of Tompkins that looks toward a violation of the rulo, it is found in the following passage, the first clause of which, at least, seems to have been volunteered, with no special notice taken of it at the time or subsequently by counsel; “I may also state that I considered that the Mahoneys had rights at the time, and I considered that Bliss had rights at the time. I think I have known David Mahoney about eight years—it may be less. I have never known about his business intimately; I know that he had been doing butchering, that is, slaughter house business; I do not know that I have ever talked with him about his business. Prior to my becoming attorney for Mahoney, I do not know anything in relation to his claiming the land in controversy in this suit.” If there is anything embraced in this passage improperly admitted under the rule, we are unable to perceive it; and the rule is to be strictly and not liberally construed. The first clause is a volunteer opinion, not objected to at the time, that Mahoney had rights. It states no fact whatever communicated to him by Mahoney, upon which the opinion was based. Admit that Mahoney had rights at the time, it only goes to the extent of showing that he was the client, acting for his own benefit, and this, we have seen, is admissible, even under the ease of Chirac v. Bheinicker. There is no statement whatever indicating the character of those rights. Besides, at the same time, he expresses an. equally unqualified opinion that Bliss also had rights, which is the important question in this suit, and so far the testimony is more in favor of than against appellants. We do not perceive that the clause, “I know that he had been doing butchering, that is, slaughter house business,” affects the question. Besides, it does not appear that he acquired this knowledge through any confidential communication. Knowledge acquired during the time he is attorney is not privileged, unless it is acquired in the course and for the purposes of his employment. He says: I do not know that I ewer talked with him about his business.” He could not, therefore, have well got this knowledge of the business in the course of his confidential employment. The only remaining clause is that “prior to becoming Mahoney’s attorney, I do not know anything in relation to his claiming the land in controversy in this suit.” He does not say that he knoAvs anything of his claim now, or, if so, what he knows. Admit that, inferentially, he is regarded as saying that Mahoney did set up some sort of claim to the land, without saying what its character was, this, still, only shows that he was a client, prosecuting a suit, in some way, for his own benefit, without disclosing his title or in any respect the nature of his claim, and is admissible under the rule, as most strictly limited. There is nothing else in Tompkins’ testimony tending in the remotest degree to indicate any confidential communication, or going in that direction, beyond showing who employed Tompkins—who his client Avas.

But there is another view fatal to the point. There was no objection or exception taken to any part of the testimony that can possibly be claimed to be objectionable in such manner as to be available. Witness testified: “I am an attorney; I have been practicing in this city and county several years; I know David Mahoney, George D. Bliss, and John O’Connell, defendants in this suit.” Defendants’ counsel objected to this testimony, as immaterial and irrelevant, and as requiring of the witness what he knows by no means except through his professional relation with his client. The Court overruled the objection. Defendants’ counsel duly excepted. So says the record. There is no other objection of exception stated in the record. What was it that the Court ruled upon? We have given all that the witness had then stated, and no further question appears to have been then asked. It had not even appeared that the relation of client and attorney had existed. And counsel “objected to this testimony.” The Court certainly ruled on the matter before it, and nothing more. The several pages of testimony subsequently given was not before it, either by the statement of the witness, or by a question propounded to the witness, or by any offer to prove it, or in any shape whatever. Neither the Court nor defendants could possibly have anticipated what the witness was about to state, or what the plaintiff desired to prove, and the Court was not in a position to rule upon it, or the defendants’ counsel to object to it. Nor does the objection and exception purport to extend to, or the Court to rule on testimony to be afterward given, but to the testimony already before the Court. Nothing had been stated or offered at the time of the objection and ruling from which it could have been guessed, even, that the relation of attorney and client had ever existed between the Mahoneys and Tompkins, or that the testimony to be given would have any connection with that relation. There was nothing before the Court, at the time, upon which it could have made any other ruling than it did. It was, therefore, correct at the time the ruling was made, and the propriety of the ruling could not be changed by any subsequent testimony that was offered or introduced without farther objection. If the plaintiff" at any subsequent stage of the examination offered any improper testimony, the time to object was when it was offered, and the matter was before the Court. After this ruling the witness gave testimony covering two printed pages, not a word of which can be construed to be inadmissible under the rule relating to privileged communications before the passage before quoted and commented on occurs, and no objection was made to any of it as it was presented to the Court, or at any time afterward. If the objection, at the time, and in the form in which it was made, could be regarded as extending to the whole testimony of this witness subsequently given—and we have seen that it cannot—such a mode of taking objections and exceptions, covering all that a witness may subsequently say, whether proper or improper, without knowing what is expected to be proved by him, would be intolerable. The party offering evidence is entitled to have the particular portion of evidence objected to pointed out, and the specific ground of the objection stated, in order that he may obviate the objection or waive the testimony, if he is unwilling to take the risk of Tor. When a witness takes the stand the opposite party might just as well say: I object to all the testimony this witness is going to give, except to the overruling of the objection, then go through a. long examination without farther-objection, and if it should turn out that a few lines of it are-improper testimony, claim that the judgment should be reversed on that ground. If exceptions like the one in question could be regarded on appeals, there would be but little chance for obtaining verdicts which could be held.

There was no error in excluding the testimony of defendant Bliss. A party, by the express provisions of the statute, is not permitted to testify “ where the adverse. party, or the party for whose immediate benefit the action is prosecuted or defended, is the representative of a deceased person, when the facts to be proved transpired before the death of such deceased person.” (Prac. Act, Sec. 893.) The statute covers all cases coming within its general terms, .and makes no distinctions depending on privity or connection between the-parties. Satterlee was the administrator and representative of Reese, deceased, and the matters to which defendant Bliss, was offered as a witness transpired before the death of Reese. There is nothing to take the case out of the statute, as construed in Davis v. Davis, 26 Cal. 32, and Kisling v. Shaw, 33 Cal. 446.

There was no error in denying defendants’ motion for á nonsuit. If the fence built in 1860 was, as some of the witnesses say, constructed of posts and boards, and three boards or two boards and a cap high, we cannot say that it was not a substantial fence, and that this, in connection with the house subsequently built by Ensign within the inclosure, and the occupancy of the same for the purpose of maintaining the possession and exercising .control and dominion over the land thus inclosed and claimed, did not constitute an actual possession within the meaning of the Van Hess Ordinance. The testimony of the witnesses tends to show that this was, for that day and location, an unusually substantial fence. Whether the fence was maintained and kept in repair till the erection and occupation of the house and premises by Ensign, and the possession thenceforth continued till the entry of the defendants, was a question for the jury. The testimony was undoubtedly conflicting, but there was enough to require the submission of the questions of fact to the jury. The law of the case arising under the Van Hess Ordinance was stated in the charge with unusual accuracy, clearness, and precision.

Again, upon the testimony there was ample cause for submitting the case to the jury upon another ground, having no relation to the point last discussed. It appears that these defendants were before turned out of possession under the writ issued in the case of Reese v. Mahoney et al., and after-wards re-entered; that about the time of the issuing of the writ in that case, they received a conveyance of the premises from the Mahoneys; and in connection with this testimony there was other testimony tending strongly to show that at the time of the commencement of the suit of Reese v. Mahoney et al. these defendants were on the premises with the Mahoneys in the character of servants, employés, and subor-. dinates of the Mahoneys only; and the testimony on this point is of such a character that, if the jury had specifically so found the fact to be, we could not disturb the verdict. There is testimony to the contrary, it is true, tending to show that they were there on their own account, claiming in their own right; but it must be confessed, that, if such was really the state of the case, this testimony is not so clear in favor of the defendants as we should expect to find it. If they were there in their own right for a long time doing a very extensive wholesale butchering business on their own account, it would seem that the means of proving the fact beyond the possibility of doubt must be in their power. They would certainly be in a better position to establish this hypothesis than the plaintiff:' the contrary one. But, however this may be, the evidence is such that, had the jury found either way on this point, under the long established rule of appellate Courts upon the subject of conflicting testimony, we could not have disturbed the verdict. If, then, these defendants were on the land at the time of the commencement of the suit of Reese v. Mahoney, merely in the character of servants, employés, and subordinates of the Mahoneys, having no other interest in their own right, their acts in such character were the acts of their masters and employers, and not their own, and they were properly turned out under the writ; and no subsequent entry under the Mahoneys, or in collusion with them, or under the title determined in that action, would be available to protect them. If the jury should find against the defendants on these points, and that they had no other right or title, such finding would be conclusive against them. In this aspect of the case, therefore, without any reference to title under the Van Hess Ordinance, the testimony was such as to require a submission of the case to the jury.

The judgment in the case of Reese v. Mahoney et al. is binding and conclusive upon the Mahoneys, and all parties standing in privity with them, and estops them from denying that Reese was entitled, as against them, to the possession of the premises at the time of the rendition of the judgment. (Caperton v. Schmidt, 26 Cal. 491; Marshall v. Shafter, 32 Cal. 176.) Privies, within the meaning of the rule, are those who entered under, or acquired an interest in, the premises from or through, or entered without title in collusion with the Mahoneys subsequent to the commencement of the action. The deed from the Mahoneys to the defendants, made since the commencement of the action of Reese v. Mahoney, establishes such privity, and authorized the introduction of the judgment roll in that action by way of estoppel as against the title so acquired. There was testimony, also, as we have before seen, tending strongly to show, that at the time of the commencement of that action the defendants were actually on the land, in employment as servants, employés, and subordinates of the Mahoneys, and not in their own right. If they were there in the employment of the Mahoneys in the character of agents, servants, employes, etc., only, then their acts of possession were the acts of their principals, masters, and employers, the Mahoneys, and the possession acquired and maintained thereby, was also the possession of the Mahoneys and not their own, and the judgment was conclusive upon them, and they were legally and properly turned out under the writ, and the record upon the state of the evidence was also admissible with respect to this point. The present defendants were not parties to the former suit, and they are not estopped by the judgment in that action with respect to any title not then in issue and determined. If, then, they were in fact in the actual possession, not as servants, employes, subordinates, or agents of the Mahoneys, but in their own right, claiming adverse to the Mahoneys, or by title derived from the Mahoneys prior to the commencement of the suit, such claim or title was not affected by the said judgment, nor is any title acquired from any source since the commencement of that action not derived through the Mahoneys, nor, if derived through the Mahoneys themselves, if it came to the Mahoneys subsequent to the rendition of said judgment. For no such claim or title was in issue or determined in said action. The judgment in the case of Reese v. Mahoney is conclusive, however, upon the title derived through the deed in evidence from the Mahoneys; and the defendants, standing in privity with the Mahoneys, are estopped by the judgment as to that title. This title, therefore, constitutes no defense in this action. But they are entitled to avail themselves of any other title not determined in that action.

In the charge given by the Court, of its own motion, the following passage occurs: “If you are satisfied from the evidence that the defendants Bliss and O’Connell, or any of the defendants in this action, were, at the time of the commencement of this action (Reese v. Mahoney) in the Twelfth Judicial District, in the possession of the property in controversy, under David and Dennis Mahoney, as tenants by their permission, independent of 'any other right or title, or procurement, then the defendants in this action, or such of them as so occupied, are estopped from setting up any claim to the premises in controversy, except such as they have subsequently acquired.” This passage, as a legal proposition, is undoubtedly erroneous, and if it could have affected the verdict, the judgment would have to be reversed on this ground. The principle announced in this passage is directly in conflict with that stated in the very next, which reads: “But if you find that David and Dennis Mahoney, or either of them, or any other person, had the title to the premises before the commencement of such action, and conveyed the title to the defendants, or either of them, prior to the commencement of such action, then and in that case the judgment would not be a bar against the defendants, who received such conveyance, nor would it be an estoppel as against any title by them subseqúently acquired.” This is correct. The only title in issue was that which was in the Mahoneys at the time, not a title which they once had and conveyed to somebody else before the commencement of the action. The title of Bliss and McConnell, no matter from whom derived, could not be tried and determined in an action to which they were not parties. They are entitled to be heard. They must have their day in Court. They might make a better defense than the parties from whom they derived title would be inclined to do after they ceased to have any interest in the matter. But whether they could or not, their right could not be determined in an action to which they were not parties. Their title would not be in issue. They are not in privity with the defendants in the action with respect to that suit. If, however, they enter, or take title from the defendants in a suit after action brought, they take with notice and succeed to the perils of the action, whatever they may be. They stand in privity with the defendants with respect to the action, and can acquire no greater rights or better position than the parties had whose interest they acquired. This is plain with reference to the grantee of the entire estate—the fee. But a lessee or tenant to the extent of his estate—that is to say, so far as his term acquired before suit brought is involved—stands in just as strong a position as the grantee of the fee. He does not, it is true, hold the entire estate. He, however, holds an estate in his own right, carved out of the larger. He has an estate which he holds in his own right against the lessor, although under him, and all the world, which can no more be cut off, abridged, limited or affected by the lessor, or anybody else, than an estate in fee. The quantity of his estate is less, but it is the same in quality, and, to the extent of the interest held, is as independent and absolute before the law as an estate in fee. There is, in the case of a lease, an estate for years with remainder in the lessor. In an action against the lessor to which the lessee is not a party, only the right of the lessor is in issue, and can only extend to the remainder. The right or estate of the lessee is not in issue, for, on that he is entitled to be heard. His rights, acquired prior to suit brought, are adverse to the lessor, and they can no more be affected in an action to which he is a stranger, than if his estate was larger. He might make a better defense than the party under whom he claims could, or would do. At all events lie is entitled to be heard in his own behalf. If it were otherwise, parties holding long and valuable leases, of which the lessors were anxious to get rid, might by collusive suits brought by strangers against the lessors, be deprived of their estates. It is very clear, then, that the portion of the charge to the jury, which states that if the defendants were in possession as tenants of the Mahoneys, before the commencement of the suit of Reese v. Mahoney, they are estopped by the judgment from setting up any claim except such as they had subsequently acquired, as a legal proposition cannot be maintained. For if they were tenants of the Mahoneys at the time of the commencement of the suit, they had an estate in their own right, of which they could not be deprived by any action, or failure to act, of the Mahoneys, and which could not be affected in a suit to which they were not themselves parties. Such estate had already passed from the Mahoneys, and was not in them during the pendency of the action, and could not, therefore, be in issue.

This error having been committed, it becomes necessary to ascertain whether it could have in any way affected the judgment unfavorably to appellants. If not, then it is without consequence, and is no ground for disturbing the verdict and judgment. We have carefully read the whole record of upwards of sixteen hundred printed folios from beginningto end, without finding any evidence tending to prove that the defendants, either before or since the commencement of the action of Reese v. Mahoney et al., held, or claimed to hold, as tenants of the Mahoneys. Such a position is not in any sense the theory of the defense. They set up no such claim in their pleadings, and, so far as the record shows, made no such claim at the trial; and they, in fact, make none now. In their answer, they first deny generally the allegations of the complaint, then, in various forms, set up the Statute of Limitations; and then, in a separate answer, affirmatively allege seizin in fee in themselves, and not a tenancy under the Mahoneys. The claim on the part of the plaintiff was, and the testimony tended strongly to prove, that the defendants in the casé of Reese v. Mahoney et al., were the parties, and the only parties in possession at the time of the commencement of that action, and that all other parties on the premises, including the present defendants, were subordinate to the Mahoneys, in their employment in the capacity of servants, employés, etc., and not as tenants or as parties having any interest of their own. On the part of the defendants, the claim was, and the evidence tended to show, that they were there not as servants and employés of the Mahoneys, but in their own right, claiming for themselves, and having no connection whatever with the Mahoneys. There was no claim on their part that they were there as tenants of the Mahoneys, and we find no testimony tending in any degree to show that condition of things. Appellants’ counsel do not point out any such testimony, or now claim, in their briefs, that there was any, or that they ever pretended to occupy such position. Indeed, they could not, with any appearance of sincerity, make any such claim, on the record as now presented. They say the instruction was erroneous as a legal proposition, which is true, and in their brief in reply they say, not that there was any claim or evidence to which the instruction was applicable, but that it is not for the jury “to determine that instructions are material or immaterial; ” that they are bound to “ apply all instructions given to the evidence in the case,” and that if any are erroneous, there must be a new trial. But we have held a great many times that we will not reverse a judgment for an error which, we can see from the record, could not possibly have injuriously affected the appellant. How, we have seen that there is no evidence upon which the jury could possibly have found that the defendants were in possession as tenants of the Mahoneys at the time of the commencement of the former suit, and that such was not the theory of defendants’ case. If the jury had so found, it would have been without evidence to support the finding, and the finding could not be permitted to stand. The worst that can be said is, that the erroneous part of the charge withdrew from the jury a hypothesis which had nothing in the case to support it, and which the defendants were not entitled to have considered at all. This error in no respect affected any of the questions presented by the issues and evidence, and the jury were still necessarily required to pass upon all the questions of fact really in the case. It follows, therefore, that the fact upon which the erroneous part of the charge would have operated against the defendants was not, and could not have been, before the jury. The charge, so far as this point is concerned, was wholly abstract. An abstract charge may sometimes be injurious, but it could not be to these appellants, under the conditions shown by the record in this case.

It has been suggested, also, that if defendants were tenants of the Mahoneys at the commencement of the former action, this portion of the charge, because of that relation, would preclude them from relying in this action on any independent adverse title of their own, even if it was better - than that of either party to the former action, and that the charge is objectionable on this ground. But this suggestion arises from overlooking the clause, “independent of any other right, or title, or procurement.” That is to say, if they were tenants of the Mahoneys, not dependent upon any other right or title, or, in other words, not claiming ■ under any other right or title. The meaning clearly is, that if the defendants were there claiming solely as tenants of the Mahoneys, then they were estopped, etc. It does not say, however, that they would be estopped by the judgment if they claimed in their own right in some other character or under some other title. This portion of the charge was not directed to other claims, but was carefully confined to a claim as tenants. The clause cited, therefore, is an important qualification, which fully covers the supposed objection, and there is no error in this particular.

The only other point made in appellants’ briefs, is, the general one, covering a number of instructions, that the Court erred in not granting the several instructions asked by defendants, stating that they “were correct and pertinent,” and this is all there is said about them.

. Without taking any more trouble to discuss the points than counsel have, we think they were properly refused. Some are plainly not pertinent, and others, at least, require qualification. In the brief in reply, however, appellants’ counsel do make some attempt to maintain the correctness of the first instruction asked by them, and refused by the Court. But it is perfectly clear that this instruction could not have been properly given in view of the evidence. It entirely ignores the hypothesis as to the defendants being on the land with the Mahoneys, as their servants, at the time of the commencement of the suit of JReese v. Mahoney, and as to their acquiring possession and an interest' in privity with the Mahoneys pendente lite, without any other claim or title. On this hypothesis there was no necessity for suing them, for they would be concluded by the judgment, and have to go out under the writ in that action. An instruction which does not take this element into account could not be correct in view of the evidence.

There was nothing in the charge of the Court, or instructions given, extending the estoppel of the judgment in Reese v. Mahoney to any title or right disclosed by the evidence, not determined by that action, or withdrawing from the consideration of the jury any right or title, which the evidence tended to show, held by defendants in their own right, at the time of the commencement of the suit of Reese v. Mahoney, or any right or title subsequently acquired, not concluded by that action.

Respondent presents certain instructions having an important bearing on the rights of the parties, which are shown by affidavit to have been given to the jury at the request of appellants’ counsel, but which were never introduced into the statement on motion for new trial, and moves for an order directing the said instructions to be added to the statement. We have often held that it is no part of the province of this Court to amend the records of the Court below. The record in this Court is a transcript of the record of the Court below, and we decide the case upon the same record considered by the Court below. The Court below decided the motion for new trial upon the statement as it is now presented. If we should amend the statement by adding these instructions, we-should decide it upon a different record, and we should not, be reviewing the action of the Court below, but act upon another and different case. If we could amend- the statement in this particular, we could in any other. But we have no means of correcting the records of other Courts. We have no authority to say what their records are or shall be. We can only act upon a transcript of the record as it exists in the lower Court, duly authenticated in the mode prescribed by law. This we have repeatedly held. (Bonds v. Hickman, 29 Cal. 461; Boston v. Haynes, 31 Cal. 107; Buck-man v. Whitney, 24 Cal. 267; Buckman v. Whitney, 28 Cal. 555.)

In making up a statement on .motion for new trial, the respondent should see that everything favorable to his side, bearing upon the points specified, is supplied by amendment if omitted by the party proposing the statement. And it sometimes happens that instructions given, upon which no question arises, are important as obviating the objections taken in respect to others specified as grounds of error in the statement. In such case it is important to the party interested to see that they are introduced into the statement.

We find nothing in the record to justify a reversal of the judgment in this case.

Judgment and order denying a new trial affirmed.

Mr. Justice Rhodes expressed no opinion.