Pacheco v. Hunsacker

Citations

• 14 Cal. 120

Syllabus

<p>In trespass against a Sheriff, the Court below, on plaintiff’s motion, may order a special jury to try the ease, instead of the regular panel. The Sheriff, being interested, ought not to summon a jury. And, there being no Coroner, an Elisor may be appointed to summon the jury.</p> <p>The statute, (Wood’s Digest, Tit. Jurors, 512,) vests the ordering of a trial jury in the discretion of the Court.</p> <p>Action against Sheriff for seizing plaintiff’s wheat, as the property of one Andeque. Evidence tending to show that the wheat was grown on the land of plaintiff, and in his possession; that A. was on the land only to raise and harvest the crop; that the grain was cut and stacked on the premises; that plaintiff was entitled to one-third by the contract between him and A.; that A. sold to plaintiff and delivered possession, and then abandoned the premises, plaintiff residing thereon. A. took no further control of premises or crops, and plaintiff assumed entire dominion of both. Held, that plaintiff was not bound to abandon his premises, or carry the grain beyond them, to protect his title against creditors of-A.; that there was no error in refusing- to instruct the jury, that there was no evidence that the sale from A. to plaintiff was accompanied by an immediate delivery of the property, and followed by an actual and continued change of possession thereof.</p> <p>Nor was there error in the refusal to instruct the jury, that, if there was a particular partnership between A. and plaintiff in wheat-raising, to end when A. had sacked the grain, then a sale before sacking, and while A. had the right to the land where the grain was, could be no valid transfer and sale, unless the grain were removed to other land, or to the actual possession of the plaintiff.</p> <p>Such instruction assumes, that the law requires a possession different from that of plaintiff; and, further, that there was alease of the land, to continue so as to give A. possession of that portion where the