[No. 5494.]

GLASSCOCK vs. ASHMAN ET AL.

SHERIFF LIABILITY OF SURETY ON OFFICIAL BOND. - A surety on the official bond of a Sheriff is not liable for the penalty affixed by the statute; only actual damages sustained can be recovered against them.

SECTIONS 4179 and 4180 OF THE POLITICAL CODE.-Cited.

By the Court.

It is not necessary to determine whether, under the complaint, a judgment Could properly have been rendered against the defendant, Ashman, for the statutory penalty. Nor is it necessary to determine whether the Court erred in rejecting testimony with respect to the payment of plaintiff's judgment. It would seem very clear that if the offer had been to prove that the payment was made prior to the commencement of the action, or if the defendants had obtained leave to file a supplementary answer, averring the payment after the suit was commenced, the evidence would have been admissible.

It is enough for the decision of this case to say that the $200 penalty could not be enforced against the sureties. Sections 4179 and 4180 of the Political Code do not make the sureties liable, in terms, and the liability for more, or other, than actual damages sustained can not be considered as assumed by the sureties, by their contract, as fixed by the language of the official bond of the Sheriff. The intention of the Legislature is rendered the more apparent by referring to section 8 of the Act of 1851, "concerning Sheriffs," which declares that for a neglect to levy, when requested, the Sheriff shall be liable “ official bond." The omission of these words in the subsequent acts has the effect to relieve the sureties from a liability for the penalty which the present law imposes only on the officer.

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

on his

[No 5037.]

MCLAUGHLIN vs. FOWLER.

PETITION FOR REHEARING-MUST NOT CONTAIN NEW GROUNDS.-The proper dispatch of the business of the court requires that counsel should state the grounds on which they rely in their briefs, and not reserve other points to be set up in a petition for a rehearing after a decision of the case.

By the Court.

In the appellant's points and printed argument he stated as follows: "The whole controversy was and is, whether the lands within the exterior limits of the Moquelumnes Grant were reserved." The case has been heard and determined here against him on that question. In the petition for rehearing an attempt is made to withdraw this statement, and put the case on an entirely new ground. This practice cannot be permitted. As we said in Dougherty vs. Henarie, 49 Cal. 686, "The proper dispatch of the business of the Court requires that counsel should state the grounds on which they rely in their briefs, and not reserve other points to be set up in a petition for rehearing after a decision of the case."

Rehearing denied.

[No. 5538.]

BRANDT vs. WHEATON.

October Term.

LAND POSSESSION-ONE IN POSSESSION PRESUMED TO BE THE OWNER AS AGAINST A TRES PASSER-WHAT RIGHTS CAN BE CLAIMED UNDER A DECREE BASED UPON POSSESSION ONLY.-As against a mere trespasser one in possession of a portion of the public lands will be presumed to be the owner, notwithstanding the court has judicial notice that he is not the owner; but it would be carrying the presumption too far to say that one in possession who has not acquired the fee from the Government is entitled to a decree the effect of which is to prohibit a third person from obtaining title by purchase or by appropriate proceedings under the statutes of the United States. By the Court.

In the briefs of appellant and respondent this is called "an action to quiet title." It is a suit under section 738 of the Code of Civil Procedure, and the complaint is to be treated as a bill in equity. The general verdict of the jury, therefore, is to be disregarded. If this were the only question to be considered the cause would be remanded to the court below to find the facts. But the case made by plaintiff simply shows that he is in possession.

As against a mere trespasser, one in possession of a portion of the public lands will be presumed to be the owner, notwithstanding the circumstance that the court has judicial notice that he is not the owner, but that the Government is. This rule has been maintained from motives of public policy, and to secure the quiet enjoyment of possessions which are intrusions upon the United States alone.

But it would be carrying a presumption against the fact to an absurdity to say that one in possession, who has not acquired the fee from the Government the true owner-is entitled to a decree, the practical effect of which is to prohibit a third person from obtaining title by purchase, or by appropri ate proceedings under statutes of the United States. The respective claims of conflicting claimants may be asserted in the appropriate tribunals established by the Government for that purpose. A decree here in favor of plaint

iff would have no effect, by way of inducement, to the officers of the Land Department of the United States, to issue the patent to plaintiff, and if we had the power, it would be an ill-advised employment of equity jurisdiction to prevent the defendant from proceeding with his application, or, worse still, to decide in advance that he had no right on which to base his application. Judgment and order reversed and cause remanded for a new trial.

Recent Decisions.

SUPREME COURT OF THE UNITED STATES.

October Term, 1876.

NEGLIGENCE CAUSING FIRE-PROXIMATE AND REMOTE Cause.

1. ACTION FOR DAMAGES FOR NEGLIGENCE-QUESTION OF TITLE, WHEN IMMATERIAL.-The plaintiff sued the defendants for the value of a saw-mill and a quantity of lumber burned by a fire, alleged to have been set by the negligence of the defendants. Both the plaintiff and defendants claimed title to the ground on which the mill and lumber stood, both claiming under a common source of title, and it was admitted that the plaintiff's claim was made in good faith. Held, that the question of title was immaterial. Even if the plaintiff should be evicted, he would, under the local statute (Code, of Iowa, §§ 1976-1981), be entitled to value of the improvements made in good faith.

2. SAME TESTIMONY OF EXPERTS.-In a case where fire is shown to have been communicated from one building to another, in determining whether the former fire was the proximate cause of the latter, the testimony of insurance men, as experts, to the effect that, owing to the distance between the two buildings, the former would not, in fixing the rate of insurance, be considered an exposure of the latter, will not be heard.

3. PROXIMATE AND REMOTE CAUSE.-QUESTION FOR JURY.-What is the proximate cause of an injury is, in general, not a question of science or legal knowledge, but a question of fact for a jury. [Denying Webb vs. Rome, etc., R. Co., 49 N. Y. 420, and Penn. R. Co. vs. Hope, 80 Penn. St. 373.]

Mr. Justice STRONG delivered the opinion of the court.

This was an action to recover compensation for the destruction by fire of the plaintiff's saw-mill and a quantity of lumber, situated and lying in the State of Iowa and on the banks of the river Mississippi. That the property was destroyed by fire was uncontroverted. From the bill of exceptions it appears that the "plaintiff alleged the fire was negligently communicated from the defendant's steamboat Jennie Brown to an elevator built of pine lumber and one hundred and twenty feet high, owned by the defendants, and standing on the bank of the river, and from the elevator to the plaintiff's sawmill and lumber piles, while an unusually strong wind was blowing from the elevator toward the mill and lumber. On the trial it was admitted that the defendants owned the steamboat and elevator; that the mill was five hundred and eighty-eight feet from the elevator, and that the nearest of the plaintiff's piles of lumber was three hundred and eighty-eight feet distant from it. It was also admitted that there was conflict between the parties plaintiff and defendant respecting the ownership of the land where the mill stood and where the lumber was piled, both claiming under a common source of title. The plaintiff had built the mill, and he was in the occupation of it, believing he had a right to be there."

Such having been the admissions, the court refused to allow the parties to try the title to the land upon which the mill and lumber had been placed, proof of title being in the opinion of the court immaterial. To this ruling the defendants excepted, and it is the first error they have assigned. We are unable to perceive any reason why the proof offered was not, as the Circuit Court held it to be, perfectly immaterial to the issue between the parties. By the law of the State of Iowa, "where an occupant of land has color of title thereto, and in good faith has made any valuable improvements thereon, and is afterward, in a proper action, found not to be the rightful owner thereof," he is entitled to payment or credit for the value of his improvements. (Code of Iowa, sections 1976, 1977, 1978, 1979, 1980, and 1981.) The effect of this statute is to make such an occupant practically the owner of his improvements, even though he be not the owner of the land on which they have been made. If, therefore, the title to the land had been shown to be in the defendants, the proof would not have affected the right of the plaintiff to recover compensation for willful or negligent destruction of the buildings and lumber. Nor could it have changed the degree of prudence and care which the defendants were bound to exercise in order to guard against injury to that property. The plaintiff is not to be regarded as a mere trespasser, wantonly thrusting himself or his property in the way of danger, a trespasser to whom the defendants owed a less degree of caution than would have been due if he had been the undisputed owner of the fee simple of the land on which the mill stood. We can not admit that the defendants owed no duty to the plaintiff even if he was occupy. ing their land without their consent. An attempt was made during the argument to maintain that they had been found by the jury guilty only of an act of omission, and it was insisted that such an act would not give a right of action to the plaintiff if he was wrongfully in possession of their land. Neither the fact asserted nor the inference drawn from it can be conceded. The verdict of the jury was: 1st, that the elevator was burned from the steamer Jennie Brown; 2d, that such burning was caused by not using ordinary care and prudence in not landing at the elevator, under circumstances existing at that particular time; and 3d, that the burning of the mill and lumber was the unavoidable consequence of the burning of the elevator. The only reasonable construction of the verdict is that the fault of the defendants, in other words, their want of ordinary care and prudence, consisted in landing the steamer at the elevator, in the circumstances then existing, when a gale of wind was blowing toward it, when the elevator was so combustible and so tall. If this is not the meaning of the verdict, no act of negligence, of want of care, or of fault has been found. And this is one of the faults charged in the declaration. It averred that while the wind was blowing a gale from the steamboat toward and in the direction of the elevator, the defendants carelessly and negligently allowed, permitted, and counselled (or, as stated in another count, "directed") the steamboat to approach and lie alongside of or in close proximity to the said elevator. This is something more than non-feasance; it is positive action, the result, the consequence, or outworking, as the jury have found it, of the want of such care should have been exercised.

It has been further argued in support of this assignment of error that the proffered proof of title should have been admitted because it tended to show

contributory negligence on the part of the plaintiff. But we can not understand how it could have had any such tendency. Whether the mill stood on defendant's land, or on other land equally distant from the steamer and elevator, and in the same direction, its exposure to the fire is equally the same.

A second exception taken in the court below, and here insisted upon, is that the court refused to permit the defendants to prove by witnesses who were experts, experienced in the business of fire insurance, and accustomed by their profession to estimating and calculating the hazard and exposures to fire from one building to another, and to fixing rates of insurance, that owing to the distance between the elevator and the mill, and the distance between the elevator and the lumber piles, the elevator would not be considered as an exposure to the mill or lumber, and would not be considered in fixing a rate thereon, or in measuring the hazard of mill or lumber.

This exception is quite unsustainable. The subject of proposed inquiry was a matter of common observation, upon which the lay or uneducated mind is capable of forming a judgment. In regard to such matters experts are not permitted to state their conclusions. In questions of science their opinions are received, for in such questions scientific men have superior knowledge and generally think alike. Not so in matters of common knowledge. Thus it has been held that an expert can not be asked whether the time during which a railroad train stopped was sufficient to enable the passengers to get off (Keller vs. R. R. Co., 2 Abbott, New York App., 480), or whether it was prudent to blow a whistle at a particular time. (Hill vs. R. R. Co., 55 Maine, 438.) Nor can a person conversant with real estate be asked respecting the peculiar liability of unoccupied buildings to fire. (Muloy vs. Ins. Co., 2 Gray, 541.) In Durell vs. Bederly, Chief-Justice Gibbs said: "The opinion of the underwriters on the materiality of facts, and the effect they would have had upon the premium, is not admissible in evidence. (Powell's Ev., 4 Ed., 103.) And in Campbell vs. Richards, 5 Barn. & Adol., 846, Lord Denman said : "Witnesses are not receivable to state their views on matters of legal or moral obligation, nor on the manner in which others would probably be influenced if the parties had acted in one way rather than in another." See, also, Lord Mansfield's opinion in Carter vs. Boehm, 3 Burrows, 1905, 1913, 1914, and Norman vs. Higgins, 107 Mass., 494, in which it was ruled that in an action for kindling a fire on the defendant's land so negligently that it spread to the plaintiff's. land and burned his timber, the opinion of a person experienced in clearing land by fire, that there was no probability that a fire, set under the circumstances described by the witness, would have spread to the plaintiff's land, was admissible.

The next exception is to the refusal of the court to instruct the jury as requested, that "if they believed the sparks from the Jennie Brown set fire to the elevator through the negligence of the defendants, and the distance of the elevator from the nearest lumber pile was three hundred and eighty-eight feet, and from the mill five hundred and twenty-eight feet, then the proximate cause of the burning of the mill and lumber was the burning of the elevator, and the injury was too remote from the negligence to afford a ground for a recovery." This proposition the court declined to affirm, and in lieu thereof