Ladd v. Stevenson.

passer; that the agent of respondents, at the time, represented to appellant that the property belonged to respondents, and was in their possession. The question is not what was the remedy of respondents, nor what ought to be the decision of the court below upon a trial on the merits. If the appellant was in the quiet enjoyment of actual possession, and was forcibly ousted by the respondents, with the aid of illegal interference on the part of judicial officers, he ought to recover the same and hold it until ejected therefrom by due course of law; but if the averments of the answer be true, he was not in such possession, he was a naked intruder, interrupting the respondents in the peaceable possession of their premises, when he was forcibly expelled. As well might it be said that he who forcibly, and with violence, enters a room in the temporary absence of the tenant, can sustain an action for recovery, because he was forcibly ejected therefrom on the return of the tenant.

If the statements of the respondents then be true, the appellant would have no right to recover the possession, obtained through force and violence and by his own tortious acts; and the facts stated by respondents being inconsistent with the truth of the petition, the case is substantially at issue. It was unnecessary for the respondents to admit or deny that part of the complaint in relation to the illegal proceedings of the alcalde. Those proceedings should not have been set forth in the complaint, and should be rejected as surplusage, and if exceptions perform the office of demurrers, the court below should not only have overruled the exceptions in this case, but should have directed appellant to amend his complaint. If there were any rules of practice in this State regulating the forms of proceedings before courts of First Instance it would perhaps be proper to award a repleader; but by the acts of 28th of Febru ary, imperfections, errors and irregularities in pleadings are to be disregarded; and believing that in substance there is an issue before the court below upon the question of peaceable and quiet possession at the time mentioned in the complaint, I think the court below did not err in overruling the exceptions, and that the issue should then have been tried on its merits, not

Loring v. Illsley.

withstanding notice of appeal had been given, and that this court ought not to entertain jurisdiction; the decision of the court below being on a collateral question and not conclusive as to the true points in issue.

LORING, respondent, vs. ILLSLEY, appellant.

It seems that, under the act of February 28th, 1850, this court has no appellate jurisdiction over judgments rendered by courts of First Instance, before the passage of that act, except final judgments.

What is a final, and what an interlocutory judgment or order, considered. Judgment having been obtained against A., who was master and one-third owner of a certain bark, for the sum of $2000, in the court of First Instance, and his interest having been sold and purchased by B. Held, that a further judgment rendered in a subsequent proceeding, ordering that the possession of the bark should be delivered to B. was erroneous. Held, also, that such judgment is a final judgment, over which this court has appellate jurisdiction, under the act of February 28th, 1850.

Where process of a court, as an execution, commanding the sheriff to deliver possession of a chattel, has been finally and completely executed, the power of the sheriff under it, and the authority of the court to enforce it, cease: and a wrong doer, afterwards trespassing upon the person thus put in possession, cannot be deemed guilty of contempt for disobedience to the process of the court. Per BENNETT, J.

The title acquired by a third person, in good faith, under a judgment of the court of First Instance, while such judgment is in force, is protected by sec. 6 of the act of February 28th, 1850, and is not impaired or affected by the reversal of the judg ment by this court.

Whether courts of First Instance have admiralty jurisdiction in proceedings in rem: Query?

Where the master of a vessel was one-third owner, and all his right, title and interest in the vessel had been sold under execution against him; held, that the purchaser of his one-third interest was not entitled to supersede the master in the command of the vessel, nor deprive him of the possession thereof.

The transfer of a minority interest in a vessel by virtue of a sale under execution, does not confer upon the purchaser any more extensive control than the execution debtor himself enjoyed; and, as a general rule, the majority of owners can control not only the employment and destination of a vessel, but also the appointment of a person to take charge of her as master. It does not alter the case, that the debtor was the master of the vessel, for his right to the possession and command is not the subject of sale on execution.

Loring v. Illsley.

THIS was an appeal from a judgment rendered by the court of First Instance for the district of San Francisco. The facts sufficiently appear in the opinion of the court. The cause was argued by

Gregory Yale, for the plaintiff, and

P. A. Morse, for the defendant.

By the Court, BENNETT, J. On the 17th day of December last, Richard S. Slaughter, Francis H. Reynolds, and Nathaniel Dean filed their several bills of complaint before the judge of First Instance of the district of San Francisco to recover damages for certain grievances claimed to have been committed against them respectively, while passengers on board of the bark Ella Frances, on her passage from Panama to San Francisco. After setting forth the cause of action, each of the complaints alleged that Frederick Illsley was part owner and master of the bark, and prayed that he and the other owners, when made known, and the bark itself might be cited to answer unto the complaint, and condemned in solido to pay the damages respectively claimed, and that the bark might be sold to satisfy the same. Summonses were therefore issued in the several suits, commanding Illsley, the master, to appear and answer the complaints. He accordingly did appear by his attorneys, and put in a several plea of the general issue on his own behalf. There was no answer put in on the part of the bark, or of either of the other owners, no process served upon them, no publication of notice requiring them to appear, and no appearance of record on their part. The causes coming on for trial, they were, by consent of parties, all tried together before the same jury, who rendered a verdict in each suit in favor of the plaintiff. Judgments were rendered for each of the plaintiffs against the "bark Ella Frances," &c., and executions upon such judgments respectively issued against the "bark Ella Frances and Illsley, master," under which, according to the return of the sheriff, endorsed on the executions, the "bark Ella Frances" was sold to the plaintiff, VOL. I.

3

Loring v. Illsley.

James L. Loring, who was put in possession of the vessel by the sheriff. Illsley thereupon dispossessed Loring, and has retained possession of the vessel to the present time.

On the 7th day of February last, Loring filed his complaint in the court of First Instance, setting forth his purchase under the executions, the delivery of possession to him, his dispossession by force and violence, and praying restitution. Illsley put in his answer to this complaint and insisted therein, that he was entitled to the possession of the bark as master, and the court, after several continuances, gave judgment against him, and required him to deliver possession to Loring; from which determination an appeal is taken to this court.

By the judgment of the court of First Instance, it is declared "that in the sale of the bark Ella Frances, under the order and "decree of this court and by the sheriff of this court, James L. "Loring the plaintiff in this proceeding purchased all the right, "title, and interest of Frederick Illsley the captain and defen"dant in the proceeding in and to said bark Ella Frances," and that Illsley had and owned at the time of the sale, "one"third part of said bark Ella Frances in his own right." It is also set forth in the judgment that Illsley, as appeared from the register, represented the vessel and the other part owners, and it is adjudged that, in the suits under which the sale took place, he made a defence for the other owners as well as for himself. The record then proceeds as follows:-" The court, therefore, "orders, adjudges and decrees, that from and after said sale, and "by virtue thereof, all the right, title, and interest of the said 66 Captain Frederick Illsley in and to said bark Ella Frances, her tackle, apparel and rigging, including his right to hold the "possession, control and command of the same, passed to and be"came the right of the said James L. Loring." The judgment further orders the sheriff to deliver possession and to summon to his assistance the power of the county for that purpose, unless before the 10th day of March, Illsley should pay to Loring the sum of two thousand dollars, the amount of the purchase money paid by the latter, with interest thereon, at the rate of five per cent. per month from the date of the sale, and also one

66

Loring v. Illsley.

hundred and fifty dollars for the fees of Loring's attorney, together with the costs of this proceeding.

Under this state of facts it is claimed by the counsel for the appellant: First, that the proceedings under which the bark was sold, were in substance suits in personam against Illsley, and not in rem against the vessel, and that no sale could have been made of any interest in the bark beyond the interest of Illsley as part owner. Secondly, that the master of a vessel can be displaced only by the majority of the part owners in a direct action in admiralty for that purpose; and thirdly, that courts of First Instance have no admiralty jurisdiction. The converse of the last two propositions is insisted upon by the counsel for the respondent, and also that the original suits may be regarded as proceedings either in admiralty or at common law, and that in either view they are legal and should be sustained. It is also contended by the counsel for the respondent, that the determination of the court below is not a final judgment from which an appeal can be taken to this court within the provisions of the act of February 28, 1850, regulating appeals; and, secondly, that if it be such a final judgment, the title of Loring to the bark is protected upon the ground of his being a purchaser, in good faith, while the judgments under which he holds were in force.

It becomes necessary, in the first place, to dispose of the question, whether this court can entertain an appeal from such a determination of the court of First Instance as is presented in this case. The act of February 28th provides, that an appeal may be taken from any final judgment of a court of First Instance rendered since the first day of January, A. D. 1847; and if the decision of the court below be a final judgment, an appeal lies— otherwise, not. What, then, is the distinction between an order and a final judgment? The former is a decision made during the progress of the cause, either prior or subsequent to final judg ment, settling some point of practice or some question collateral to the main issue presented by the pleadings, and necessary to be disposed of before such issue can be passed upon by the court, or necessary to be determined in carrying into execution