Elliott v. Ivers. what is sought, or uniting with the defendant, or demanding something adversely to both. The respondents do not occupy any of these positions. Clarke & Wells, for Respondents. I. Under our statute, only one suit can be maintained to enforce contemporaneous liens on the same property, and hence, after such suit has been commenced, the arbitrary action on the part of one or more of the lien holders cannot defeat or impair the rights of the others. II. The giving of notice by the party commencing the action is in no wise any part of the commencement of the suit. It is his duty to do it, that others having liens may know of the action and come in; but if they come in upon actual, and not constructive, notice, they are in upon right and the object is accomplished. III. No order of Court was necessary in order that the respondents might appear in the action. They were not "intervenors" in the sense in which that term is used in our Practice Act. They came in as lien holders under the statute of 1861, and not as permissive intervenors under the code. By the Court, WHITMAN, J.: John O'Connell and Philip Splain commenced an action under the statute to foreclose a mechanics' lien against William Ivers, joining Lewis Cook as party defendant having an interest in the property sought to be held. Issue was joined Oct. 4th, 1869. On the twentieth of the same month, the parties above designated as lien claimants filed petitions of intervention, Petty & Doane appearing in one and Elliott in the other. To the former, a general answer was filed; to the latter, a demurrer: both on the second of November, 1869. It does not appear affirmatively from the transcript that this demurrer was ever disposed of, but no objection is made on that ground. On the eighteenth of March, 1870, the case was called for trial, when, in the matter of O'Connell and Splain, the following notice was given by their attorney: "The clerk will enter dismissal in the above-entitled action, the same having been settled." An Elliott v. Ivers. order of dismissal was thereon entered; whereupon the defendants objected to proceeding with the matters of the petitioners, because the original suit had been dismissed, and because no notice to lien claimants had been filed. The objection was overruled, trial had, whereat, as is shown by the transcript, all the allegations of the petitioners were proven, and they had judgment and decree as prayed. The first assignment of error is based upon the action of the Court, as just stated, in proceeding to try the issues between the petitioners and Ivers & Cook. The statute undoubtedly contemplates a formal suit, a publication of notice, an appearance upon the part of lien claimants other than those commencing the suit, and a disposition of the entire matter of liens against the property affected, in one proceeding. Any person prejudiced by any error in the proceedings may undoubtedly object thereto. Do the appellants occupy such position? The suit was regularly commenced. So far as appears by the transcript, no notice was published; the statute does not require one to be filed, but its object was accomplished, and from the action of the Court, presumptively, all other lien claimants appeared. The manner of their appearance was more formal than requisite under the statutory provision; but the appellants could not be injured thereby, and the manner is certainly proper, though perhaps not necessary. (Mars v. Mackey, 14 Cal. 127.) So soon as these parties had appeared, the Court had jurisdiction of the subject matter, the parties and the whole thereof, and could not thereafter be divested of such jurisdiction by any action of the original plaintiffs. They had the right to retire from the contest, but they could not withdraw the subject matter so far as it concerned others who had become legally actors thereabout; nor could they compel the withdrawal of parties not in privity with them or their individual claims. So the Court properly proceeded with the investigation of the case, and as has been said, was and is fully sustained in its findings and decree by the proofs. This disposes of the remaining assignments, which assert absence or failure of proof upon certain points as against the evidence of the record. The judgment of the District Court is affirmed. Sacramento and Meredith Mining Company v. Showers. SACRAMENTO AND MEREDITH MINING COMPANY, APPELLANT, v. JAMES SHOWERS et als., RESPONDENTS. NEW TRIALS NOT MATTERS OF DISCRETION. The granting or refusing a new trial is not a matter of mere discretion. "TREATING THE JURY" CAUSE OF REVERSAL. Where, during the progress of a trial and before retiring to deliberate, and while under charge of an officer for the purpose of viewing the ground in controversy, the jury went into a saloon and drank liquor at the expense of the prevailing party: Held, that the verdict and judgment thereon should be set aside. WHAT TAMPERING WITH JURY AVOIDS VERDICT. The rule, that a verdict in favor of a party who treats or entertains the jury will be set aside, applies to any treating of any of the jury at any time after they are sworn and before they agree upon their verdict, whether once or several times, by design or inadvertently, in the presence of the officer or in his absence, and whether it might be called for or uncalled for by the proprieties of life. APPEAL from the District Court of the First Judicial District, Storey County. The plaintiff, a corporation, organized under the laws of California, commenced this action in February, 1870, against James Showers, O. C. Steel, B. F. Kenny and Goodwin Jones, to recover possession of a portion of the "Hearst and Meredith Ledge," and the "Sacramento Ledge," at Virginia City, upon which they were alleged to have intruded; for damages in the sum of $600 on account of such intrusion, and for an injunction to prevent interference with the property. Defendants denied all the allegations of the complaint, and also set up ownership in themselves. Sunderland, Wood & Deal, and Williams & Bixler, for Appellant. The verdict should be set aside for irregularity of the proceedings of defendants, and for the misconduct of the juror, L. Sperling. (Johnsen v. Root, 2 Fish C. C. R. 291; Henry v. Ricketts, 1 Cranch C. C. R. 545; Harrison v. Rowan, 4 Wash. C. C. R. 32; Thompson's Case, 8 Grat. 660; 2 Sumner, 19; 1 Cush. 63; 2 McLean, 35; Leighton v. Sargent, 31 W. H. 11; For. 137; 7 Cowan, 562; 13 Conn. 445; Purinton v. Humphreys, 6 Green Sacramento and Meredith Mining Company v. Showers. leaf; Wilson v. Abrahams, 1 Hill, 211; Commonwealth v. Roby, 12 Pick. 519.) R. S. Mesick and J. Seeley, for Respondents. Whatever may be thought of the decisions referred to by plaintiff as authority for reversing a judgment because the jury had partaken of liquor during the trial, none of them have any direct application to the present case. They refer to instances where the jury were permitted or induced in some manner to indulge in the liquor after they had left the bar and retired to their room to deliberate as to their verdict. It is necessary, under the authority of recent decisions, for the party claiming a reversal to show that the jury, by the use of liquor, had become incapable of proper deliberation, or that the civilities and attentions of the party to the action furnishing the refreshments were of such an unusual character, or were tendered under such circumstances, as to produce in the mind of the Court the belief that they had operated unjustly and prejudicially to the party against whom the verdict was rendered. (Phillipsburg Bank v. Fulmer, 2 Vroom [N. J.] 52; 27 United States Digest, 456, Sec. 13; Commonwealth v. Roby, 12 Pick. 519; Richardson v. Jones and Denton, 1 Nev. 405.) By the Court, GARBER, J.: Ejectment for a mining claim. The testimony was conflicting. Defendants having obtained a verdict, the plaintiff moved for a new trial, on the ground, among others, of misconduct of some of the jury and of the prevailing party. The motion was overruled, and from the order denying it and the judgment on the verdict, this appeal is taken. The motion was supported by affidavits on behalf of the plaintiff, showing that during the time the action was on trial and before the jury retired to deliberate, the jurors, while under charge of an officer for the purpose of viewing the ground, went into a saloon and there drank liquors at the expense of the defendant Showers; that one of the jurors offered to pay for the drinks, but was not allowed to do so by Showers, who volunteered to pay for them; that during the noon recess on the last day of the trial, one Apple Sacramento and Meredith Mining Company v. Showers. ton, who had previously been seen in company with Showers, went into a store where Sperling, one of the jurors, was employed; that he was followed into the store by one of the affiants, Handley; that when Handley entered the store, Sperling, who was alone in the front room, came toward the front portion of the store where Handley was, and at that time Handley saw Appleton writing at a desk in the back room; that soon afterward Appleton came out of the back room and Sperling turned and met him about the center of the front room, when Appleton held up a piece of paper before Sperling, who seemed to read it; that a brief conversation took place, and Appleton then left and passed down the street until he approached a building against which Showers was leaning; that as Appleton drew near, Showers left the place where he had been standing and met Appleton about the middle of the street; that they then started up the street, walking closely together and conversing, and were soon joined by Steele, another of the defendants, and the three passed up the street talking amongst themselves out of the hearing of others, Showers exhibiting signs of pleasure; that Handley was in the habit of making the store his place of spending his leisure hours, but had never before seen Appleton there. The only counter affidavits are those of Showers and Appleton. Showers deposes that the jury entered the saloon after examining the ground, of their own motion; and after having entered it, the officer in charge asked them to drink; that some of the jurors took beer and some cigars; that none drank more than once, and then nothing strong, and none were affected by the liquor; that after drinking, and while the jurors were leaving the saloon, he, Showers, proposed to the officer to pay for the drinks and cigars, and thereupon did pay for some of them, a member of the jury paying for the residue; that he had no further or other connection with the matter set forth in plaintiffs' affidavits so far as the same relate to the drinking of the jury at said saloon. Appleton deposes that he is acquainted with Sperling; that at no time during the trial, or while Sperling was acting as a juror in this cause, or between the impanneling of the jury and the rendition of the verdict, did he have any conversation with or hold any |