The People v. McCauley.

ment we have adopted in this state. Section 377 of the act to regulate proceedings in criminal cases, declares that a challenge for implied bias may be taken, where the person called as a juror has formed or expressed an unqualified opinion or belief that the prisoner is guilty of the offense charged. On the trial of a challenge for implied bias, the court is to determine the law and the fact, and to allow or disallow the challenge. (Sec. 386 of act last cited.) In the present case, the challenge was taken for what is termed in our statute implied bias, and the court, judging of the law and the fact, found that the jurors challenged had not formed or expressed an unqualified opinion or belief of the guilt of the defendant, and we think that the court came to a correct conclusion both as to the law and the fact.

The rule as laid down in our statute has been held to be the true rule in numerous decisions. Thus in The State v. Wil liams (3 Stew. 454) it was held, in a capital case, that it was not ground of challenge of a juror, that he had formed or expressed an opinion, upon common report, of the guilt of the prisoner, if the juror believed that such opinion would have no influence in the formation of his verdict, should the evidence on the trial be different from the report of the facts. To the same effect substantially are the cases of Pollard v. Commonwealth, (5 Rand. 659 ;) Brown's case, (2 Leigh, 769 ;) Spooner v. Commonwealth, (2 Virg. Cas. 375;) Queensberry v. State, (3 Stew. & Port. 308;) Durell v. Mosher, (8 Johns. 445.)

The last objection urged against the legality of the proceedings at the trial, respects the charge of the judge to the jury. Several instructions were given by him, which were excepted to by the defendant's counsel. These instructions are returned on this appeal, but no portion of the testimony given to the jury is returned. The correctness or incorrectness of the charge to the jury cannot be determined, without the court having before it the testimony from which alone can be seen the applicability of the charge. Instructions are always given with reference to the facts proved to the jury, and an instruction that would be perfectly sound in one case, might be unsound in another. The propositions laid down by the court are all cor

The City of San Francisco v. Clark.

rect in certain cases; whether they fitted this case cannot be ascertained from the record. If the appellant desired to show that they were incorrect, he should have spread upon the record the testimony or the facts in relation to which the law was laid down by the court.

In conclusion, we have only to add, that the defendant has been convicted by a jury, and that there is nothing in the record before us to induce the belief that he has not had a fair and impartial trial on the merits, or that he has been deprived of any legal or technical benefit or advantage given to him by law.

The judgment of the district court must be affirmed.

Ordered accordingly.

THE CITY OF SAN FRANCISCO vs. CLARK et al.

Whether driving piles in Front street, in the city of San Francisco, (the street being laid out over the waters of the bay,) is an obstruction to the free use of the street by the public, is a question of fact for the jury; and where that question was not so submitted, a new trial was granted.

The case of Woodworth v. Fulton, (ante, p. 295,) affirmed.

APPEAL from the superior court of the city of San Francisco. The facts are stated in the opinion of the court.

John W. Dwinelle, for The City.

R. Lockwood, for defendants.

By the Court, BENNETT, J. The action was brought for the purpose of perpetually enjoining the defendants from driving piles in a street in the city of San Francisco known as Front street. The defendant, Clark, claims to be the owner of certain

Dwinelle v. Henriquez.

lands bounded on Front street, and was engaged in driving piles for the purpose of making his lot accessible by way of this street, when the injunction was served upon him. It seems to have been conceded, on the argument, that the place where the defendants were driving piles, was a part of Front street, and the only question in the case is, whether the piles were an obstruction to the free use of the street by the public. It is well known as a matter of fact, that Front street, as laid down on the map of the city, lies below low water mark in the bay of San Francisco, and it is equally well known, as a matter of fact, that the ordinary method, if not the only one, of making this street and others similarly situated capable of use, is by driving piles and by planking over them. The defendant was enjoined from doing the very thing, by which alone Front street could be made passable; and how such act could be an obstruction to the street it is difficult to see. But we cannot take judicial notice of the fact, that Front street is laid out over the water, or that driving piles is no obstruction. These are matters which should be submitted to the jury. They were not so submitted, and a new trial should therefore be granted.

The grant which was offered in evidence was properly rejected. It conveyed no right to the defendant. (Woodworth v. Fulton, ante, p. 295.) What effect the late Act of the legislature may have had in confirming this grant is a question which does not arise on this appeal.

New trial granted.

DWINELLE VS. HENRIQUEZ.

Where the evidence given on the trial of a cause is conflicting, and no legal point has been improperly ruled by the court, the verdict of a jury is conclusive. Where a written or printed instrument, as for instance a "card" published in a newspaper, is proposed to be given in evidence, and is rejected by the court, such evidence or the substance of it must be returned with the record, or this court will not attempt to review the decision of the judge at the trial.

A card publiabed in a newspaper by a witness, without the knowledge of either of the parties to the suit is admimble in evidence for no purpose, mies peach the credituity of the witness. Per BrysETT. J.

Where the defendant cals the plaintif as a wress and the latter testfest

matter not responsive to the ingames put to him by the defendant, the defendant may offer himself as a witness on his own beba fin respect to meå ser mater, but his testimony must be limited to an explanation or contraction of such new

matter.

Instructions of the court to the jury mast all be taken together, and if, when the viewed, the case appears to have been fairly presented to the jury, the verdict wil not be disturbed.

A public officer, who stands in the relation of agent of the government or of the publie, is not personally liable upon contracts made by him as such officer and within the scope of his legitimate duties; but the public administrator of the county of San Francisco is not a public officer within the meaning of the rule, and is personally liable upon a contract made in relation to estates upon which he adminis‐ ters, unless the idea of such personal liability be excluded by the contract.

APPEAL from the superior court of the city of San Francisco. The facts of the case are stated in the opinion of the court.

John W. Dwinelle, in person.

is on &am

B. N. Mason, for defendant.

By the Court, BENNETT, J. The action was brought to recover compensation for services rendered by the plaintiff as attorney and counsellor. The defendant was the public administrator of the county of San Francisco, and the services of the plaintiff were concerning an estate, the administration of which had been committed to the defendant as public administrator. The plaintiff proved a written retainer in the following words:— "San Francisco, June 25, 1850.

"To Messrs. J. W. Dwinelle and Nathl. Holland:

"Gentlemen-You are severally requested to examine the "estate of William A. Leidesdorff, deceased, and institute such "proceedings and take such measures as you may deem neces sary and advisable for the due administration of said estate. "Respectfully yours,

"JOSEPH HENRIQUEZ,

"Public Administrator of County

"of San Francisco."

Dwinelle v. Henriquez.

Conflicting evidence was given at the trial upon the question, whether the payment for the plaintiff's services was to depend upon the contingency of his success in the proceedings which he was requested to institute; and, consequently, if no legal point has been improperly ruled against the defendant, the verdict of the jury must be conclusive.

Joseph L. Folsom, a witness on behalf of the defendant, testified that a "card" was written and published by him, with the advice of his attorney, in a newspaper, and it was proposed to give this publication in evidence. The court rejected the evidence, and a point is made by the defendant on this ground. The "card" published by Folsom is not returned, and however erroneous the decision of the court might have been, we cannot review it without having before us the evidence proposed to be given and rejected. At the same time, we entertain no doubt that the decision of the court was correct, for we can conceive of no case in which a card published in a newspaper by a witness, without the knowledge of either of the parties to the suit, could be, under any circumstances, admissible as evidence, unless for the purpose of impeaching the credibility of the witness. This was not the object of offering this card in evidence, and it was properly rejected.

The defendant called the plaintiff as a witness, who, in answer to questions of the defendant, admitted that a certain article in a newspaper showed to the plaintiff, was written by him, and also that his counsel fees and the costs, and a fair allowance to the public administrator were to be assessed upon the estate. The witness then stated that he never said or intended to say in the newspaper article showed to him, that the defendant was not bound to pay him his fees.

The defendant then offered himself as a witness and was sworn, and his counsel offered to prove by him "the whole un"derstanding about the fees." This was objected to by the plaintiff, and the proposed evidence was rejected by the court, and it is now claimed that the decision of the court was erroneous. The argument of the defendant is based upon the assumption, that the statement of the plaintiff that he never