the Code and its provisions relating to that subject, in such a proceeding, would have to be liberally construed. The Code has established the law of the State respecting that subject. It has provided a remedy and prescribed a course of procedure in cases of forcible entry. And all statutes, laws, or rules on that subject heretofore in force in this State, whether consistent or not with the provisions of the Code on the same subject, are repealed and abrogated. (Code Civ. Proc. § 18.)

It is doubtless the duty of courts, in actions of forcible entry, to construe the provisions of the Code relating to that subject so as to suppress the mischief and advance the remedy, that is, the remedy given by the statute. The legislature has provided a remedy for forcible entry, no matter by whom made. But it has provided only one remedy. Before there was any legislation on the subject a person in the actual rightful or wrongful possession of real estate could maintain trespass against any one, not having a right to enter, for a forcible entry upon it. A person in the wrongful possession could not maintain an action against the owner, having a right to enter, for a forcible entry. But the statute gives a person even in the wrongful possession a right of action, and prescribes its form, against the owner having a right to enter, if he make a forcible entry. Neither expressly nor by necessary implication does the statute give to a person in the wrongful possession the right to maintain any other than the action of forcible entry when such entry is made by the owner, having the right to enter. The legislature has provided a particular remedy for a forcible entry made under such circumstances, but we are unable to see upon what principle it can be held that another and different remedy, and one which did not exist at common law, and is not given by statute, is equally available in such a case.

That the legislature, by giving a person in the wrongful possession of the real estate of another the right to bring an action of forcible entry against him for entering forcibly upon that which he had a right to enter upon, impliedly gives a right to maintain trespass in such a case, is at best a very doubtful implication, and the rules of the common law are not to be changed by doubtful implication. (Wilbur v. Crane, 13 Pick,

As the evidence shows that the premises upon which the alleged trespasses were committed were owned by the defendant, H. W. Gray, and that he was entitled to the immediate possession of the same, and that the plaintiff was in the wrongful possession thereof, the defendants' motion for a new trial should. have been granted on the ground that the evidence was insufficient to justify the verdict. The case was tried upon what we deem to be an erroneous theory, and the errors committed by the court, in the course of the trial, are attributable to that fact. If the theory upon which the case was tried had been the correct one, none of the exceptions could be sustained. It is therefore unnecessary to dwell further upon them.

Judgment and order reversed.

THORNTON, J., and MYRICK, J., concurred.

Hearing in Bank denied.

[Department Two.-July 20, 1883.]

J. S. SHARP, RESPONDENT, v. SPERRY DYE, ADMINISTRATOR, APPELLANT.

LETTERS OF ADMINISTRATION-SEAL OF THE COURT.-It is not necessary or material that the seal of the court to letters of administration should be affixed at the particular place indicated in the form prescribed by section 1362 of the Code of Civil Procedure.

APPEAL from an order of the Superior Court of Sacramento County vacating and setting aside an order granting letters of administration, and directing the issuance of special letters to respondent.

Letters of administration had been issued to the appellant in the matter of the estate of John W. Sharp, deceased, and he had qualified and entered upon the duties of his office. The respondent petitioned the court to revoke the letters issued to appellant, because they were insufficient, irregular, and not in conformity with the requirement of section 1362 of the Code of Civil Procedure and to grant special letters to petitioner.

L. S. Taylor, for Appellant.

Elwood Bruner, for Respondent.

PER CURIAM.-Letters of administration must be signed by the clerk under the seal of the court, and substantially in the following form: State of California, county or city and county of C. D. is hereby appointed administrator of the estate of A. B., deceased, (Seal), witness, G. H., clerk of the Superior Court of the county or city and county of, with the seal thereof affixed the day of, A. D., 18. By order of the court. G. H., Clerk." (Code Civ. Proc. § 1362.)

The document to which our attention is directed is in the form above prescribed, except that the seal is not affixed between the principal and attestation clauses, but is affixed at the bottom of the page which contains said clauses, and to the left of the signature of the clerk to the jurat of the administrator's oath of office. On the argument a paper was exhibited to the court, by consent of counsel on both sides, as a fac-simile of the paper under which appellant claims to have been appointed administrator. It commences: "State of California, county of Sacramento, ss.- Sperry Dye is hereby appointed administrator of the estate of John W. Sharp, deceased." Next follows the attestation clause. Then the oath of office with the jurat, and then the seal of the court affixed to the left of the signature of the clerk.

It is contended by respondent's counsel that these are not "letters of administration," because the seal of the court is not affixed at the place indicated in the form prescribed by the Code above cited. But the Code only requires that they shall be substantially in that form; that is, essentially, by including the material or essential part. And it is not material or essential that the seal should be affixed at the place indicated in the form, unless the fact of a place being so indicated makes the affixing of it at that particular place material or essential. But that would be to so construe the law as to require a literal where it expressly requires only a substantial compliance with the form prescribed. The Civil Code provides that "a corporate or official seal may be affixed to an instrument by a mere impres

sion upon the paper or other material on which such instrument is written." (Civ. Code, § 1628.) It was not necessary to affix a seal of the court to any other matter contained on the sheet or page upon which the letters of administration were written, but it was necessary to affix one to said letters, and we think under the circumstances that the affixing of a seal upon the paper on which said letters were written was a substantial compliance with the law.

Order reversed.

[Department Two.-July 20, 1883.]

GILMAN GORTON, APPELLANT, v. L. FERDINANDO, RESPONDENT.

JURISDICTION OF SUPREME COURT.-An action was brought in a Justice's Court to recover one hundred dollars damage for cutting timber. Both plaintiff and defendant claimed title to the land from which the timber was cut, and thereupon the case was transferred to the Superior Court. There the plaintiff amended his complaint alleging ownership of certain described lands, and demanded two hundred and ninety-nine dollars damages for cutting timber therefrom. To this amended complaint defendant neither demurred nor answered. Judgment by default was entered and an execution issued, and from an order recalling the execution the plaintiff appealed. Held, that it does not appear that the case made by the amended complaint is the case transferred from the Justice's Court, and as it involves no question of title, and the amount in controversy is less than three hundred dollars, neither the judg ment nor any order made after judgment can be reviewed on appeal to the Supreme Court.

APPEAL from an order of the Superior Court of Amador County recalling an execution.

The facts are sufficiently stated in the opinion of the court. A. C. Brown, and John A. Eagon, for Appellant.

Charles R. Gray, for Respondent.

SHARPSTEIN, J.-The appellant commenced an action in a Justice's Court against the respondent for the recovery of one hundred dollars damages, which appellant alleged he had sustained by reason of the respondent's entering upon appellant's land and cutting timber thereon. The respondent in his answer alleged that he was the owner of the premises upon which

appellant alleged that said timber was cut, and thereupon the justice made an order transferring the case to the Superior Court, which permitted appellant to file an amended complaint, in which it was alleged that he was the owner, in the possession and entitled to the possession of certain described land, and that respondent entered upon it at a certain date, and without leave of appellant cut down and converted to his own use one hundred trees, of the value of fifty dollars, standing on said land, and demanded judgment for $299.25. To this complaint respondent neither demurred nor answered, and judgment by default was entered against him for $299.25. Afterwards the court made an order setting aside said judgment, and remanding the case to the Justice's Court, on condition that appellant should serve and file his cost bill, and respondent should pay the costs within twenty days. Afterwards the defendant made a motion, which the court denied, to have the condition of the order relating to the payment of the costs stricken out. At some time between the 14th day of December, 1881, and the 27th of December, 1882, the clerk of said court issued an execution for said costs, which on motion of the defendant was recalled by an order of the court made and entered on the 6th day of January, 1883; and from that order this appeal is taken; and the first question to be determined is whether an appeal will lie in a case like this.

The damages claimed were less than three hundred dollars. The case, as stated in the complaint, does not involve the title. or possession of real estate any more than an action of trespass quare clausum must necessarily involve such title or possession. As before stated, the defendant made no answer to the complaint, and the judgment, exclusive of costs, was for less than three hundred dollars.

It is by no means certain that the cause of action set out in the complaint filed in the Superior Court is the same as that set out in the complaint filed in the Justice's Court. It does not appear that the trespass alleged in the one was the same as that alleged in the other. For anything that appears on the face of said complaints, the premises on which it is alleged a trespass was committed may not be the same. The cause was tried upon the complaint filed in the Superior Court, which took the place