that his neighbor will make a negligent use of his:" 1Thomp. Neg., 168; see, also, Fero v. Buffalo R. R. Co., 22 N. Y., 209, and Jefferis v. Phil. W. and B. R., 3 Houst., 447. 2. There was evidence to sustain the findings of negligence on the part of defendant and as to the amount of damages. 3. Evidence to prove that some of the goods injured were on the roof of the house, was introduced by plaintiff, without objection. The variance between the averment and the proof as to the location of the goods was not material: C. C. P., 470. And, no objection having been made to the evidence when offered, nor any motion made to strike out the testimony, the point as to variance cannot be taken here: Kiler v. Kimball, 10 Cal., 267; Owen v. Frink, 24 Id., 171; Boyce v. California Stage Company, 25 Id., 460; Bell v. Knowles, 45 Id., 192, Brady v. Reese, 51 Id., 477. 4. It is urged, the finding that the goods destroyed were stored in the building is not sustained by the evidence, which shows that some of such goods were on the roof of the building. But the material fact that the goods were on the premises of plaintiffs was alleged and found. Judgment and order affirmed. MCKEE, J., and Ross, J., concurred. No. 10,992. PEOPLE v. SOTO. Department One. Filed September 24, 1884. DISCHARGE OF JURY ON LEGAL HOLIDAY-CONSTRUCTION OF CONSTITUTION.-Section 5, Article VI, of the constitution does not prohibit all business in the superior court on a legal holiday or non-judicial day, except the issuing of injunctions and writ of prohibition. Such section is prohibitory of legislation establishing terms of court during which only judicial business can be transacted, but leaves the legislature at liberty to allow or disallow the transaction of all or any class of judicial business upon legal holidays. Under section 134 of the code of civil procedure, and section 1142 of the penal code, a jury may be discharged on the twenty-second of February. INSTRUCTIONS GIVEN IN ABSENCE OF DEFENDANT.-Giving instructions to the jury, in a prosecution for murder, in the absence of the defendant, will not warrant a reversal, if subsequently, and while the defendant is present, the court directs the jury to disregard his former instructions, and then instructs them to the same effect as previously. APPEAL from a judgment of the superior court for Monterey county, and from an order denying the defendant a new trial. The opinion states the facts. R. M. F. Soto, for the appellant. Attorney-General, for the respondent. MCKINSTRY, J. To an information charging him with the crime of murder defendant pleaded not guilty and once in jeopardy. The verdict was against him as to both pleas. At a former trial, the jury having been instructed on the twentyfirst of February, 1884, the court became satisfied on the next daythe twenty-second of February-that there was no reasonable probability the jury could agree upon a verdict, and they were accord ingly discharged. The twenty-second day of February was a holiday: C. C. P., 10, 133, 134. A jury may be discharged on the twenty-second day of February unless the constitution prohibits it: C. C. P., 134; penal c., 1, 142. It is insisted by counsel for appellant that section 5 of article vi of the constitution prohibits all business in the superior courts on a legal holiday or non-judicial day, except the issuing of injunctions and writs of prohibition. The section of the constitution does not in terms prohibit any legal business on holidays. The last clause expressly declares that injunctions and prohibitions may be issued on such days. The phrase "they"-the superior courts-"shall always be open (legal holidays and non-judicial days excepted)," is prohibitory of legislation establishing terms of court, during which only judicial business can be transacted, but leaves the legislature at liberty to allow or disallow the transaction of all or any class of judicial business on legal holidays. The jury were justified in finding against defendant upon his plea of former jeopardy. After the jury had retired to deliberate upon their verdict, they returned and asked for further instructions, and, defendant being absent, the court re-read to the jury a portion of the previously given written instructions. After the jury had again retired they were brought into court by order of the judge, who then directed them, in the presence of defendant, to disregard what he had read to them while defendant was absent, and proceeded to read again that which he had read when they came in the first time. It is contended that the error of the court was not and could not be rendered innoxious by the repetition of the reading in the presence of the defendant. Why not? It may be conceded that it can not be supposed the jurymen-in obedience to the admonition of the court-could entirely exclude from their minds the instructions. given them while defendant was out of the court-room, bat inasmuch as it was their duty to bear in mind precisely the same instructions given while defendant was in the court-room, it is manifest no injury could have been done defendant by reason of that which occurred while he was absent. The judgment is sufficient in form. Ross, J., and MCKEE, J., concurred. No. 8,357. MCKAY v. RILEY ET AL. Department One. Filed September 26, 1884. CONTRACT OF SALE-BREACH OF MEASURE OF DAMAGES.-In an action by a vendee to recover for the breach of a contract of sale, where the articles contracted to be sold had no market value, the measure of damages is the actual loss sustained by the vendee by reason of his not receiving an advance or profit through agreements which he himself had made in reliance upon the fulfillment of his vendor's contract. OBJECTION TO EVIDENCE-CANNOT BE MADE IN SUPREME COURT FOR FIRST TIME.-An objection to evidence cannot be made in the supreme court for the first time, which might have been removed by the party offering it had the objection been made in the lower court. APPEAL from a judgment of the superior court, entered in favor of the plaintiff, and from an order denying the defendant a new trial. The opinion states the facts. M. B. Harrison, for the appellants. C. E. Boyce, for the respondent. MCKINSTRY, J. 1. There was evidence to sustain the findings as to the existence of a partnership between the defendants. 2. There was evidence tending to prove that no considerable quantity of the pipe, the subject of the contract sued on herein, was in other hands than those of defendants. If the jury were satisfied there was no market value for the articles they were justified in allowing plaintiff, as damages, the amount he lost by reason of his not being able to perform his agreement to deliver the pipe to third persons at an advanced price. Ordinarily the rule of damages in actions. like the present is the difference between the price agreed to be paid and the market value, because the vendee can obtain the article contracted for at the market price. When, however, the circumstances are such that the vendee cannot thus supply himself, the rule does not apply for the reason of it ceases: Bank v. Reese, 2 Casey, 143. In such case the true measure of damages is the actual loss sustained by the vendee by reason of his not receiving an advance or profit through agreements which he himself had made in reliance upon the fulfillment of his vendor's contract: McHose v. Fulmer, 73 Penn., 367. 3. The record does not show any material variance between the allegations of the complaint and the testimony or findings. 4. Appellant contends that the judgment must be reversed because the plaintiff having attempted to prove an agreement between himself and Williams, Dimond & Co., for the sale of the flues or pipe which defendants had alleged to sell to him, showed that the price to be paid by Williams, Dimond & Co., was more than two hundred dollars, but failed to show either that any part of the purchase price was paid to him, or that the agreement was evidenced by a memorandum in writing. But even if it be conceded that the want of a writing can be objected to for the first time in this court, no objection was taken in the court below that plaintiff failed to prove that he received any portion of the price to be paid by Williams, Dimond & Co. It is well settled here that an objection to evidence cannot be made here for the first time which might have been removed by the opposite party had it been taken in the lower court. Besides, the evidence tended to prove that plaintiff could have sold to Williams, Dimond & Co., at an advanced price, just as evidence of a market price would have proved that plaintiff could have sold for the market price. It cannot be assumed on the mere suggestion of defendants that if plaintiff had received the pipe from them he would have failed to deliver it to his vendees or that the latter would have refused to pay to plaintiff part or the whole of the price by them to be paid. Judgment and order affirmed. MCKEE, J., and Ross, J., concurred. It is evident that such a method, or rather absence of method, in construing the code, as last described, must inevitably work a serious injury to the jurisprudence of the state, to the administration of justice, to the rights of suitors, and the entire people of California. If it should become apparent that the courts are guided by no fixed system of interpretation, but are proceeding, as it were, in a haphazard course, that without any rule they construe one section in the loosest and most liberal manner, as though common law doctrines alone governed us, and another section in the most strict and literal manner, as though no common law doctrines had ever existed, and still another section in a moderate manner, by combining and comparing the original common law doctrine with the language of the text, and the like, then no member of the bar, however intelligent and learned, would be able to advise his clients, with any reasonable degree of certainty, as to their rights and liabilities arising under sections which had not yet been judicially interpreted, and their meaning completely determined. The utmost that any lawyer could do, would be to guess, to speculate, to suggest possibilities, or perhaps probabilities. Even now the ablest lawyer constantly encounters uncertainties in advising upon the meaning and effect of particular sections and clauses of the civil code, and upon the rights and liabilities arising therefrom; but this uncertainty would be increased tenfold by the condition which I am supposing. Indeed, the administration of justice, and the enforcement of civil rights, by means of litigations, would be turned very much, as to their practical results, into a mere game of chance. Furthermore, if the work of interpretation should go on, in this manner, for a number of years, until the whole, or even a considerable portion, of the civil code had thus been judicially construed, the resulting mass of actual rules would be inconsistent, incoherent, and even contradictory. All symmetry and homogeneity would have disappeared from the jurisprudence of the state. The law would be in such a condition as to imperatively demand a complete reconstruction; either an entire abrogation of the code, with all its superstruction of judicial interpretation and a return to the common law, or else the enactment of a new, more elaborate, and more nearly perfect code. Dr. Johnson has described the evil effects resulting from such an uncertain condition of the law, in strong and forcible language, which well deserves quotation. He says:' "The advantage which humanity derives from law is this: that the law gives every man a rule of action, and prescribes a mode of conduct which shall entitle him to the support and protection of society. That the law may be a rule of action, it is necessary that it be known; it is necessary that it be permanent and stable. The law is the measure of civil right; but if the measure be changeable and unknown, the extent of the thing measured can never be settled. To permit a law to be modified at discretion, is to leave the community without law. It is to withdraw the direction of that public wisdom, by which the deficiencies of private understanding are to be supplied. It is to suffer the rash and ignorant to act at discretion, and then to depend for the legality of that action on the sentence of the judge. He that is thus governed lives not by law, but by opinion; not by a certain rule, to which he can apply his intention before he acts, but by an uncertain and variable opinion, which he can never know but after he has committed the act on which that opinion shall be passed. He lives by a law (if a law it be), which he can never know before he has offended it. To this case may be justly applied that important principle, misera est servitus ubi jus est aut ancognitum aut vagum.2 1 Boswell's Life of Johnson, vol. 3, p. 314. (Bohn's Ed.) 2 Two additional examples of the uncertainty of the civil code were overlooked in the former articles; and as they are such striking illustrations of my remarks I shall insert them here, although out of their proper connection. In defining marriage the civil code says: "§ 55. Consent alone will not constitute marriage; it must be followed by a solemnization, or by a mutual assumption of marital rights, duties or obligations." That is, in order to constitute a valid marriage, where there is no solemnization before a clergyman, or magistrate, but only a consent (written or verbal) to be husband and wife, this consent must be followed by "a mutual assumption of marital rights, duties, or obligations." What is the meaning of this strange phrase? The law, as previously settled in this state, and as settled throughout the country, is, that a consent or agreement of the two parties to be husband and wife, followed by "consummation" or "cohabitation," was sufficient without anything else to constitute a valid marriage. The "consummation" or "cohabitation," here meant, in plain English, simply sexual intercourse, copulation, nothing more nor less. That is not only shown by numerous decisions; but it is most clearly and unmistakably expressed in the familiar maxim, "marriage is contracted per verba in praesenti cum copula;" while the conveise of this rule was also generally settled that a marriage was not contracted per verba in futuro cum copula. The doctrine was thus firmly established that a mutual consent, without any form or solemnization, accompanied or followed by sexual intercourse, copulation, constituted a valid marriage. No "habit" and "repute," no holding each other out to the world as husband and wife, no living together as husband and wife, were necessary in addition. In fact, in the greatest number of the decided cases which have held the parties to be in reality married in pursuance of this doctrine, the pa.ties had never acknowledged the marriage openly; had never held each other out to the world, nor had lived as husband and wife; but on the contrary had lived apparently in a state of concubinage as man and mistress. Is the phrase "mutual assumption of marital rights, duties and obligations," intended as a delicate euphemism for copulation," and as meaning the same thing? and is the common law rule thus left unchanged? Or, on the other hand, does this phrase mean something more than, something in addition to, copulation? and is the common law doctrine thus altered? The phrase is absolutely unknown to the law, and is so vague and indefinite that no one could even guess its meaning without the help of judicial interpretation. Does it mean that the two spouses must openly live as husband and wife, must hold each other out to the world as |