Ellis v. Eastman

By the Court, Sanderson, J.: We think that counsel upon both sides misapprehend the true relation which the Act of the 25th of March, 1858 (Statutes, p. 84) bears to the case. That Act is not a public Act, of which Courts are bound to take notice, but a private statute, which the plaintiff, if she wished to found her title upon it, was bound to offer in evidence.

The deed from the Commissioners of the Sinking Fund conveyed no title to Buckley, for they had no title to convey. (Smith v. Morse, 2 Cal. 524; Heydenfeldt v. Hitchcock, 15 Cal. 514; The People ex rel. The Board of State Harbor Commissioners v. The Broadway Wharf Company, 31 Cal. 33.) If anything passed to Buckley it was by virtue of the Act of the 25th of March, 1858, confirming the sale and deed of the Commissioners of the Sinking Fund. Hence that Act is the foundation of the plaintiff’s title and performs precisely the same office which the deed of the Commissioners would have performed without it, had they, at the time, been vested with the title. Its relation to the case is therefore that of evidence, and not that of a public Act of the Legislature; and not having been introduced in evidence, the Court below should have disregarded it for all the purposes of the trial.

It is claimed on the part of the respondent that there is nothing in the record which shows that the Court below founded its decision in any respect upon the Act; but we think we are fully sustained by the record in holding that the Court attached much importance to it, if it was not> in fact, which is more than probable, made the turning point. In any event it is quite clear that the case was not tried upon the true theory, and that the ends of justice will be subserved by a new trial.

Judgment reversed and a new trial ordered.