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duced, evidence resulting from a comparison of it with other proved or admitted writings is not regarded as evidence of the most satisfactory character, and by some courts is entirely excluded. It would be adding vastly to the danger of such evidence to permit evidence to be given from a comparison of genuine writings with a press copy of the writing whose genuineness is disputed. Indeed, in this very case the expert, on cross-examination, testified that "it would be very dangerous to decide on a press copy for sure."

The action here being on the equity side of the court, the verdict of the jury was but advisory, and, until the findings of the jury were adopted by the court, there was no decision, and therefore nothing upon which to base a motion for a new trial. For this reason the notice given by the plaintiff, April 9, 1881, was premature and ineffectual, and was therefore properly abandoned. Bates v. Gage, 49 Cal. 128.

Within proper time after the decision of the court, a notice of motion for a new trial, in due form, was given, which was followed, within the time duly extended for that purpose, by a statement on motion for new trial, and a bill of exceptions. The fact that the statement and bill of exceptions were incorporated in one paper, does not render either invalid. Being prepared within due time, and being properly settled by the judge, these papers may be as well considered when presented together as when separately presented.

Judgment and order reversed, and cause remanded for a new trial.

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TRESCONY V. BRANDENSTEIN and others. (No. 8,537.)

Filed March 19, 1885.

1. TRESPASS-LIABILITY FOR TRESPASS BY CATTLE.

Every wrongful entry upon lands in the occupation or possession of the owner constitutes a trespass, and the owner may maintain an action for damages therefor. If the entry be made by cattle belonging to the wrong-doer, he is liable therefor in an ordinary action of trespass, and the right of the owner of the land to maintain such action is not taken away by the California statute of February 4, 1874, giving a remedy by process in rem against the cattle themselves.

2. SAME-STATUTE OF LIMITATIONS.

An action for trespass to real property may be brought within three years after the cause of action accrued. Code Civil Proc. Cal. § 328.

Department 1. Appeal from the superior court of the county of Monterey.

S. F. Geil and H. V. Morehouse, for appellant.

J. M. Swinnerton, for respondents.

MCKEE, J. The court below sustained a demurrer to the complaint

in this action. Plaintiff declined to amend. A final judgment was thereupon entered, from which he has appealed, and the sole question presented on the appeal is whether the complaint sufficiently states a cause of action.

The statement of facts in the complaint shows that the plaintiff, on and prior to the first of January, 1881, was the owner, entitled to possession, and in the possession, of certain lands, situate in the county of Monterey, on which there was growing and standing a large amount of "grass, pasturage, and feed," of the value of $3,000, said lands being separated from the land of defendants by a division fence; and that the defendants on the first of January, 1881, "wrongfully and unlawfully entered" upon the plaintiff's lands, and from thence until November, 1881, depastured the same with 500 head of cattle and 10 head of horses, to the plaintiff's damage.

Those facts were sufficient to constitute a cause of action. It is elementary law that every wrongful entry upon lands in the occupation or possession of the owner constitutes a trespass, for which the owner may maintain an action for damages; and if the entry be made by animals belonging to the wrong-doer he is responsible for their trespass. Such an action must, of course, be brought within statutory time. But in this case the wrongs are alleged to have been committed in the year 1881. The complaint was filed in 1882, and section 328, Code Civil Proc., declares that an action for trespass to real property may be brought within three years after the cause of action accrued. The cause of action stated in the complaint was, therefore, not barred by the statute of limitations.

But the chief ground of demurrer is that, by virtue of a statute, approved February 4, 1874, entitled "An act to protect agriculture, and to prevent the trespassing of animals upon private property in the counties of Fresno, Tulare, Kern, Ventura, Santa Barbara, San Luis Obispo, and Monterey," the plaintiff had the right to "take up" cattle trespassing upon his land, and hold them, subject to the provisions of that law, and that his only remedy was to institute proceedings under that law against the cattle themselves and their owners.

But the fact of taking the cattle damage feasant was not alleged in the complaint, nor did it otherwise appear there. The complaint was not framed with reference to the statute, nor was the action founded upon it; therefore defendants could not, by a demurrer to what appears on the face of the complaint, invoke the statute against the complaint. Besides, the statute which gives a remedy by process in rem against the cattle themselves, does not take away the remedy to recover damages from their owner for wrongs done by them where they were not distrained damage feasant. And if there be anything which that statute bound the plaintiff to do in connection with his lands, upon which the alleged trespasses were committed, and he left it undone, it might be that the defendants could avail themselves of it as a defense to the action. Section 433, Code Civil Proc. But

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they could not avail of it as ground of demurrer to a complaint in which no such facts are alleged.

Judgment reversed, and cause remanded for further proceedings; and the court below is directed to overrule the demurrer.

We concur:

Ross, J.; McKINSTRY, J.

(66 Cal. 517)

HEALY v. O'BRIEN. (No. 8,938.)

Filed March 19, 1885.

EJECTMENT-DEED ABSOLUTE IN FORM AS MORTGAGE-FORM OF JUDGMENT. Where, in an action of ejectment on a deed absolute in form, the answer sets up, and the court finds, that such deed was in effect a mortgage, given by the defendant as security for a debt due plaintiff, the judgment should provide that in case of the non-payment of the mortgage debt by defendant, within a time fixed, the property should be sold, and the proceeds applied to the payment

thereof.

Department 1. Appeal from the superior court of the city and county of San Francisco.

George D. Shadburne, for appellants.

James I. Boland, for respondent.

Ross, J. The action is ejectment, based on a deed from the owners of the property absolute in form. The answer of the defendants, who are husband and wife, denies the alleged ownership of the plaintiff, and then sets up that, although absolute in form, the deed was given only as security for certain moneys to be and which were advanced by the plaintiff to the defendant, Matthias O'Brien; states the terms of the agreement under which the moneys were so advanced; alleges the willingness and readiness of the defendants to carry out the contract; and prays, among other things, that the deed be decreed a mortgage, and for such other and further relief as to the court seems proper. After trial, the court below found that the deed was given as security only for certain moneys to be advanced to and for the use and benefit of the defendants, and which moneys were so advanced by the plaintiff, and amounted to the sum of $3,000; which sum is and has been, according to the findings, due and owing from defendants to plaintiff, with interest thereon at the rate of 10 per cent. per annum from the first day of February, 1879. The decree of the court below is to the effect that upon the payment to the plaintiff by the defendants of the said sum of money and interest within three months after the entry of the decree, plaintiff execute to defendants a good and sufficient deed to the property, and that in the event defendants neglect or refuse to make the payment within the time designated, "then and in that event the affirmative relief demanded by said defendants be denied, and that their bill asking for the same be dismissed."

Neither party is satisfied with the decree as entered, and it is quite clear that it is not the proper decree. For the plaintiff, who is the respondent here, it is claimed that the decree should be modified by directing that it provide that on failure of the defendants to pay the money within the time specified, a writ of possession issue to put the plaintiff in possession of the property. But a little reflection will show that position to be untenable. If the deed had been what it purported to be, a deed absolute from the owners of the property, the legal title would, of course, have passed to the plaintiff, and the judgment would have been that the plaintiff recover possession of the property from the defendants. But when the court found that the deed was given only as security for money loaned, it found in effect that it was but a mortgage, and that it did not pass the legal title to the plaintiff. Taylor v. McCain, 2 PAC. REP. 399. If, therefore, defendants had rested only on their denial of the plaintiff's alleged ownership of the property, judgment must have passed for the defendants. But they went further and filed what was treated by the parties and the court below as a bill to redeem. We are, therefore, not only justified in treating the pleading in the same way, but do so the more readily because, under any other view, the defendants might escape the payment of the money which they clearly and admittedly owe the plaintiff by reason of the statute of limitations having run against an action by the plaintiff for the foreclosure of the mortgage. Treating the defendants' answer, as the court below did, as a bill to redeem, the court properly designated a time within which, if the defendants paid the money, they should be entitled to a deed from the plaintiff; but instead of providing that in default of such payment "the affirmative relief demanded by said defendants be denied, and that their bill asking the same be dismissed," should have provided for a sale of the mortgaged premises to pay the mortgage debt. No costs on this appeal will be recovered by either party.

Order denying new trial affirmed, and cause remanded, with directions to the court below to modify the judgment in accordance with the views here expressed.

We concur: MCKEE, J.; McKINSTRY, J.

(66 Cal. 520)

COONEY V. FURLONG and others. (No. 8,966.)

Filed March 19, 1885.

NEW TRIAL-NOTICE OF MOTION-WAIVER.

Where a party seeking a new trial designates in the notice of motion therefor that the motion will be based on all the causes specified in the statute (Code Civil Proc. Cal. § 657) upon a statement of the case, and fails thereafter to file such statement within the time required by law, such failure amounts to a waiver of the right to move for a new trial, though an amended notice designating that the motion would be made for the same causes, upon the minutes of the court, was filed more than 70 days after the verdict of the jury.

Department 1. Appeal from the superior court of the city and county of San Francisco.

Mich. Cooney, for appellant.

Eugene N. Denprey, for respondent.

MCKEE, J. This is an appeal from an order granting a new trial. Unless such an order has been made upon some legal proposition, which may be considered in itself, a stronger showing is required to justify this court in interfering with it than with an order refusing a new trial. Mehan v. Chicago, R. I. & P. R. Co. 55 Iowa, 308; S. C.

7 N. W. Rep. 613.

In the order appealed from no reasons are stated why, or upon what proceeding, a new trial was granted. The record, however, shows that "the motion was heard and submitted by the defendant upon the minutes of the court only; no statement, bill of exceptions, or affidavits being by him filed or proposed." But the notice of the motion, which was filed within statutory time after the verdict of the jury, designated that the motion would be made for all the causes specified in section 657, Code Civil Proc., upon a statement of the case. This notice was filed and served on the seventeenth of March, 1882; and, having given it, the moving party was bound to prepare and serve his proposed statement within the time allowed by law for that purpose. Subdivision 3 of section 659 declares:

"If the motion is to be made upon a statement of the case, the moving party must, within ten days after service of the notice, or such further time as the court in which the action is pending, or the judge thereof, may allow, prepare a draft of the statement, and serve the same, or a copy thereof, upon the adverse party."

This the moving party did not do. He took no steps for enlarging the time for filing such a statement, and he suffered the statutory time to elapse without filing it. As, therefore, there was no application for an extension of time to file a statement, and no statement was, in fact, ever filed, the right to move for a new trial was waived and became lost. Campbell v. Jones, 41 Cal. 515; Thompson v. Lynch, 43 Cal. 482; Stoyell v. Cole, 19 Cal. 602.

But it is claimed that the right was not lost, because the original

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