Swanston v. Sublette. that after title was acquired and possession taken, the lands should not thenceforth be transferred, except by means of a written instrument in due form of law. (Por medio de escritura de venta en la forma legal.) (Sec. 5, of such convention, p. 53, of Ordenanzas de Tierras y Aguas.) We do not doubt that a writing was as necessary for the transfer of lands in Mexico, as it is in the United States. Judgment reversed, with costs. SWANSTON & TAYLOR vs. SUBLETTE et al. A. being indebted to B. delivered to him a quantity of lumber as security for payment of the debt, with the understanding that B. should proceed and sell the lumber, and pay his debt out of the proceeds. The lumber was afterwards levied upon by the defendants under an execution in their favor against A. as his property: Held, that the lumber was not subject to seizure under an execution against A. without payment, in the first place, of his indebtedness to B. Where a case is made under the statute of Feb. 28th, 1850, the court will presume that all the evidence given on the trial of the cause in the court below, is contained therein. APPEAL from the court of First Instance of the district of San Francisco. One Vogan was indebted to the plaintiffs, Swanston & Taylor, in the sum of $6000, and in order to secure that indebtedness, delivered to their possession a quantity of lumber for them to sell and pay their debt out of the proceeds. Burgoyne & Plume, two of the defendants, recovered judgment against Vogan, and directed Sublette, the other defendant, who was sheriff of the court of First Instance, to levy upon the lumber and sell it for the satisfaction of their judgment. This he did. Swanston & Taylor then brought this action against Sublette and Burgoyne and Plume jointly, to recover the value of the lumber. Judgment was rendered in the court below in favor of the defendants, and the plaintiffs appealed. Swanston v. Sublette. Edward Norton, for plaintiff. The lumber was not subject to seizure or levy on execution against Vogan; certainly, not without satisfaction of plaintiff's debt of $6000, which was more than the property was worth. R. A. Lockwood, for defendants. The record does not state that no other evidence was adduced, and the intendment of law is in favor of the judgment. The evidence is conflicting, and in such case a new trial will not be granted. By the Court, HASTINGS, Ch. J. The respondents' counsel relies principally upon the first point made, viz: "The record "does not state that no other evidence was adduced, and the "intendment of law is in favor of the judgment." That such is the law in all courts of this jurisdiction, under the ordinary rules of practice, no one will controvert. But this is a case made under the statute of Feb. 28th, 1850, by the provisions of which we are to presume that all the evidence is embodied in the record, and the question to be settled is, whether the court below erred in finding for the respondents on the testimony. It is urged in respondents' second point, and upon the argument, that the testimony is conflicting, and that in such case a new trial could not be granted. There appears to be no discrepancy in the testimony as to the fact that appellants had the actual possession of the property in question at the time of the levy, and all the witnesses seem to agree that they had either a general or special property in the lumber seized. The court therefore erred in finding for the respondents, and the judgment is reversed, and a new trial awarded. Dalrymple v. Hanson. DALRYMPLE vs. HANSON. The doctrine of Ringgold v. Haven & Livingston, (ante, p. 108,) that it is the duty of the court in a proper case to nonsuit the plaintiff, affirmed. Where there is no evidence to make out a cause of action, the court should nonsuit the plaintiff. APPEAL from the court of First Instance of the district of San Francisco. The facts of the case will be found in the opinion of the court. for plaintiff. John Currey, for defendant. By the Court, BENNETT, J. Appeal from court of First Instance for the district of San Francisco. The complaint alleges that the defendant made a contract with the plaintiff to transport the materials for a house, together with certain boxes of merchandise, consisting of hardware, from Baltimore to San Francisco, on the defendant's ship called the Jane Parker-that the house and merchandise, instead of being put on board the Jane Parker, were shipped on another vessel belonging to the defendant, called the bark Hebe-that the Jane Parker arrived at San Franscisco two months before the Hebe-and that the plaintiff had sustained damage to the amount of twentyfive thousand dollars, by reason of the house and merchandise being of less value at the time of the arrival of the Hebe, than they would have been at the time of the arrival of the Jane Parker. The defendant, in his answer, denies that he undertook to carry the property in question on the Jane Parker, but alleges that it was understood and agreed that it should be shipped on the Hebe. He also alleges that the property was of greater value at the time of the arrival of the Hebe, than such property was worth at the time of the arrival of the Jane Parker. Dalrymple v. Hanson. The case was tried before a jury. Three witnesses were sworn on the part of the plaintiff. One of them, William H. Stump, testified as follows:-" That he knew the parties, and that some"time before the sailing of the ship Jane Parker from Balti"more to San Francisco, the defendant told witness that he was going to take a house for plaintiff from Baltimore to San "Francisco-that plaintiff was not then present on the Jane "Parker-that sometime after, witness saw the materials of a "house on the wharf of the Jane Parker, marked with the "initial letters of the plaintiff's name-that, at that time, the "bark Hebe was lying at the wharf, about one hundred feet "from the Jane Parker-that all he knew about the contract "to take the house on the Jane Parker, was what the defend"ant said to him as before stated-that at the time defendant "told the witness that he was going to take the house as men"tioned, witness knew nothing about the defendant's having "the Пebe." Samuel Stump, on the part of the plaintiff, testified "That he "saw a house, some five or six days before the Jane Parker "sailed, marked with the initials of the plaintiff's name, lying 66 upon the wharf at Baltimore-that the bark Hebe was then "lying about one hundred feet from the Jane Parker-that "the only way he knew the house was plaintiff's was by the "initial letters." One Latimer, on the part of the plaintiff, testified "That "there was but little difference between the price of hardware, "at the time of the arrival of the Jane Parker, and the Hebe's "arrival-that hardware at those dates was dull, and but few "sales were made." The above is all the evidence which the return shows was given, and upon this the plaintiff rested his case. The counsel for the defendant moved for a nonsuit, on the ground that the plaintiff had not proved a sufficient case to go to the jury. The court denied the motion, on the ground that the court could grant a nonsuit in no case whatever. The defendant, then, in addition to other matters, gave in evidence two bills of lading, by which the articles in question Dalrymple v. Hanson. were shipped at Baltimore, on the bark Hebe, and on each of which was endorsed a receipt of the contents by the defendant at San Francisco. There was no claim that the goods were not delivered in good condition. The jury found a verdict for the plaintiff for the sum of $1900. The defendant moved the court below for a new trial, and the court ordered the verdict to be set aside and a new trial granted, unless the plaintiff would consent to a reduction of sixteen hundred dollars from the verdict. The plaintiff consented to this reduction, and the court rendered judgment for $300 and costs. From this judgment the defendant appeals. We have held, at this term of the court, in Ringgold v. Livingston, that if the plaintiff's evidence be insufficient in law to authorize a jury to find a verdict for the plaintiff, or if the court would set aside the verdict, if so found, as contrary to evidence, it is the duty of the court to nonsuit the plaintiff. That rule applies to this case. There is no pretence of any evidence, that the defendant undertook to carry any of the property in question on the Jane Parker, except the house, and all the evidence in relation to the house is the declaration of the defendant, "That he was going to take a house for plaintiff from Baltimore "to San Francisco," and that, sometime after this declaration was made, the materials of a house, marked with the plaintiff's initials, were seen on a wharf at which the Jane Parker and the Hebe were both lying. We do not see how this proves a contract to ship the house on the Jane Parker. The court ought not to have permitted the cause to go to the jury upon such evidence. It should have granted the motion for a nonsuit. Besides, even though the nonsuit were properly refused, the bills of lading completely countervail the force of the plaintiff's evidence. It is impossible to conceive how a jury, not acting under some mistake or misapprehension, and uninfluenced by passion or prejudice, could find for the plaintiff, upon the evidence given, a verdict of one thousand and nine hundred dollars. So manifestly contrary to evidence was their verdict, that the court below was obliged to deduct more than five-sixths from the amount which they found. We must complete the act of |