Ludlum v. Fourth District Court.

Court has passed, in accordance with the general rule estab lished by the authorities. Fowler v. Price, 2 Cal., 165; People v. Bell, 4 Cal., 177; People v. Olds, 3 Cal., 167.

It is not the proper remedy, when an inferior Court refuses to enter a judgment for costs. Peralta v. Adams, 2 Cal., 596. In Russell v. Elliott, 2 Cal., 246, this Court directed the District Court, by mandamus, to enter a judgment on a referee's report, upon the ground that the defendant, who applied, was without any other remedy.

Mandamus is a prerogative writ, and not a writ of right. Tapping, 58, (orig. p., 5;) Ex parte Fleming, 4 Hill, 583.

Mandamus not granted, where there is an adequate remedy. Ex parte Lynch, 2 Hill, 45. Nor where writ of error, appeal, or certiorari will lie. People v. Collins, 19 Wend., 60. A proper case for a writ of error, and not of mandamus. People v. Judges of Oneida, 21 Wend., 22. Nor to avoid the effects of a final judgment. State v. Bowan, 6 Ala., 511. Nor even though there be no other remedy, and a party has to seek redress by application to the Legislature for relief. Fowle v. State, 3 Ha., 207.

Affidavit on which the alternate mandamus was granted, not to be used upon the return, except to show the nature of the application. 7 Wend., 474.

When Courts commit manifest error, or are guilty of an abuse of power, an action for damages will lie-they being answerable only. Criminaliter, People v. Collins, 19 Wend., 56.

Where a discretion is vested in an inferior tribunal, a mandamus will not lie. It is proper, only where some legal right has been refused or violated, and there is no other appropriate legal remedy. People v. Superior Court, N. Y., 5, Wend., 122, 125.

There can be, in the nature of things, no rule by which discretion can be precisely measured. People v. Collins, 19 Wend., 60; People v. Judges of Oneida, 18 Wend., 75; Ex parte Benson, 7 Cow., 362; Ex parte Nelson, 1 Cow., 422; 1 Denio, 679; Estrandier's Case; People v. Judges of Duchess, 20 Wend., 659; Ex parte Ostrander, 1 Denio, 682; Elkins v. Atheam, 2 Denio, 192; Redding v. Commonwealth, 1 Jones, 200; Ex parte Hoyt, 13 Pet., 291; 10 Texas, 263; 6 Eng. Law and Eq., 373; 12 Barb., 117; 15 Ala., 740.

BURNETT, J., delivered the opinion of the Court-TERRY, C. J., and FIELD, J., concurring.

This was an application for a mandamus to compel the District Court for the Fourth Judicial District, to enter a decree, directing the receiver appointed in the case of Adams v. Woods & Haskell, to pay the amount of the claim of petitioner, as allowed by the report of the referee. The material facts of the case are fully

L

Barrett v. Tewksbury.

stated in our opinion, delivered at the present term, in the matter of the intervention of T. A. Lynch and others.

From the facts stated, it will be seen that the truth of the allegations contained in the bill of intervention had to be determined by the judgment of the Court below; and that, for this reason, the case was remanded for further proceedings. Had this Court directed the Court below to enter a specified judgment, the case would have presented a different aspect. Upon whatever ground the Court below bases its decision, refusing the relief prayed for by the bill of intervention, it is only error, and the remedy is by appeal. Had that Court refused to confirm the report of the referee, the only remedy would have been by appeal. The judgment of this Court, at the July term, 1857,

was not that the intervenors were then entitled to the relief demanded, but only that they were so entitled upon proof of their allegations. The District Court had, therefore, to exercise its discretion in granting or withholding the relief asked by the intervenors. The case made does not justify the remedy sought by mandamus, conceding that such a remedy is proper in a case where this Court directs the Court below to enter a specified judgment, and that Court refuses to do so. But whether mandamus would be the proper remedy in this latter case, we do not now decide.

The application must be denied.

BARRETT v. TEWKSBURY et al.

It is not in the power of a Court of Equity to compel a married woman to correct an insufficient acknowledgment to a deed, for which she and her husband have received the consideration. Her consent must be perfectly free. She can make no contract to bind herself, except in the manner prescribed by law. The provisions of the statute must be strictly pursued.

APPEAL from the District Court of the Fourth Judicial District.

The facts of this case appear in the opinion of the Court.

William H. Clark for Appellant.

1. There is no evidence of any agreement, by parol or otherwise, on the part of the wife of the appellant, and no competent and sufficient evidence establishing any such agreement on the part of the husband of appellant.

2. The contract or agreement set up, being for the conveyance of land, is within the Statute of Frauds of this State, and not being in writing must be void. The evidence is not sufficient to bring the contract within any of the exceptional cases of the

Barrett v. Tewksbury.

statute. Comp. Laws, chap. 47, §§ 6-8, p. 200; 2 Story's Eq. Jur., § 764, p. 81; § 766, p. 86.

3. An agreement of the wife, either with or without the assent of the husband, for the sale of her real estate, is absolutely void at law, and the Courts of Equity never enforce such a contract as against her. 2 Kent's Com., p. 156 (168.) Thayer v. Gould 1 Atkyn's R. 617; Woden v. Morris & Wife, 2 Green Ch. R., 65; Butter v. Buckingham, 5 Day's R., 492; Watrass v. Chalker, Conn. R., 224; Martin v. Devilly, 6 Ward, 9; Rowe v. Khole, 4 Cal. R., 285; Sempers & Cranner v. Ellen Sloan, Cal. R., 457.

4. The wife of appellant signed and delivered the deed prepared and furnished by the respondents, with which they expressed themselves satisfied; there being no misrepresentation. or deceit, on the part of appellant, and it being purely a mistake in law, and not as to facts on the part of the appellant, equity can afford no relief. Story's Eq. Jur., §§ 110, 111, 137, and notes. Shortwell v. Murray, 1 John's Ch. R., 512; Lyon v. Richmond, 2 Johns. Ch. R., 51-60; Stows v. Barker, 6 Johns. Ch. R., 169; Dupre v. Thompson, 4 Barb S. C. R.; Langley v. Brown, 2 Atkyn's R., 202.

5. The decree cannot well be complied with, is no relief, and leaves everything, so far as title is concerned, in statu quo. The husband cannot now join or give his assent, so as to restore the old deed, and make that deed effectual under the statute concerning husband and wife. Helen Poole v. Francis Gerrard, Cal. R., Jany. T., 1856, p. 104.

From the nature of things, the husband of himself is not capa. ble of making or bettering a title to the appellant, and equity will only decree a performance of what is capable of being performed. His signature or attempt to join now might throw a cloud on the wife's title which should not be encouraged, as married women and their rights to their separate property are peculiarly a subject of protection in an Equity Court.

6. In case of sale or contract for sale by husband of wife's land, equity can afford no remedy by decree against the husband, because his imprisonment on the decree would tend to force a conveyance from the wife, through sympathy, and could be effectual in no other way, and the wife's conveyance should be purely voluntary and unconstrained. Emery v. Ware, 8 Vesey Jr., 505, 16 Vesey Jr., 367; Howell v. George, 1 Madd. 9; Opinion of Sir Thomas Plummer, Davis v. Jones, 4 Bos. & Pull, 267; Frederick v. Coxwell, 3 Y. & Jerv., 514; Jane Hunter, 1 Edward, 1; Weed v. Terry, 2 Douglass, 344; Eddington v. Harper, 3 J. J. Marshall, 360; 2 Kent's Com., 7 Ed., 157 (169); 2 Strong's Eq. Jur., § 731 to 736, and notes; 1 Sugd. on Powers, 7 Ed., 269 to 271, (231 to 233.)

John McHenry for Respondent. No brief on file.

Phelan v. Supervisors of San Francisco.

BURNETT, J., delivered the opinion of the Court-TERRY, C. J., concurring.

The defendant, Emily S. Tewksbury, was the owner of certain premises in the city of San Francisco, as her separate property. A sale of this property was negotiated by her husband with James Barrett, one of the plaintiffs. A warranty-deed, from Mrs. T. to Mrs. B., was drawn up by an attorney, and executed and acknowledged by Mrs. T. This deed was satisfactory to James Barrett and Jacob M. Tewksbury, who were in the office when it was drawn. All parties supposed the deed sufficient. The acknowledgment was not in the form required by statute. The purchase-money, three thousand dollars, was paid; afterwards, the defect was discovered, and defendant, Jacob M. Tewksbury, repeatedly promised to execute, with his wife, a quit-claim-deed, but as often deferred it, and finally refused. This bill was then filed to compel him to join in the separate deed of his wife, under date of June 21st, 1852. The Court below decreed that defendant, Jacob M. Tewksbury, join in the execution of the deed of Emily S. Tewksbury, and duly acknowledge the same before a proper officer. From this decree the defendants appealed.

The deed, not being properly acknowledged, is insufficient. It is not in the power of a Court of Equity to compel a married woman to correct an insufficient acknowledgment. Her consent must be perfectly free. She can make no contract to bind her, except in the manner prescribed by the law. The provisions of the statute must be strictly pursued. She must be examined separate and apart from her husband. Whether the husband must join in the deed, we do not now determine.

If we had the power to enforce mere moral obligations, we should compel the defendants to execute and deliver a good deed. It is a hard and unconscionable case; but we can give no relief.

The decree of the Court below is reversed, and the bill of plaintiffs dismissed.

PHELAN v. SUPERVISORS OF SAN FRANCISCO.

After reversal of an erroneous judgment, the parties in the Court below have the same rights which they originally had.

Therefore, when a final judgment on demurrer to the complaint sustaining the demurrer, was reversed, the plaintiff had the right to amend, on application to the Court below.

MOTION to amend the judgment nunc pro tunc.

Jo. G. Baldwin for Plaintiff.

People v. Ah Ti.

BURNETT, J., delivered the opinion of the Court-TERRY, C. J., concurring.

This case was decided at the October Term, 1856, and the judgment of the Court below simply reversed. We are now asked to amend the judgment, nunc pro tune, by ordering the case to be remanded, with leave to the plaintiff to amend his complaint.

In the case of Stearns v. Aquirre and others, April Term, 1857, we held that a simple judgment of reversal was not necessarily a bar, but that "after the reversal of an erroneous judgment the parties in the Court below have the same right that they originally had."

In this case the defendants demurred to the complaint, which demurrer was overruled, and the defendants refusing to answer, judgment final was taken against them. Upon appeal to this Court the judgment of the Court below was reversed. The effect of this reversal was simply to leave the parties where they stood before the judgment. If the plaintiff wished to amend his complaint, he could have applied to the Court below for leave to do so, in the same way that he could have done had that Court sustained the demurrer. The decision of this Court went only to the merits of the case as it was stated upon the face of the complaint. If a different case could be made out by the plaintiff, he should have applied for leave to amend. As to whether, under the circumstances, it be now too late to make such application in the Court below, we cannot, under this motion, determine. We cannot amend the judgment, for the reason that it does not require it.

THE PEOPLE v. AH TI.

The Appellate Court will not disturb a verdict when the testimony is conflicting, or when the credibility of witnesses must be passed upon.

APPEAL from the Court of Sessions of Nevada County.

The facts of this case appear in the opinion of the Court.

Belden & Yant for Appellant.

The principle that verdicts may be set aside in both civil and criminal cases, as against the evidence, is already well established, and we have, therefore, only to show that the case at bar comes within the rule prescribed by this Court. White v. Prader, Oct. T., 1856; Patten v. Seale, Oct. T., 1857; Patten v. Corney, Oct. T., 1857; The People v. Benson, July T.,

1856.