Action to recover $725 damages for the destruction of thirty-five young cattle. Defendant's corral-about an acre of land-was situated upon the border of the Pacific Ocean, in Marin County, bounded on three sides by a fence, and upon the other side by a bluff forty feet high over the ocean beach. Defendant, wishing to drive up from pasture about 250 head of his own cattle, found intermixed a number of the plaintiff's. For the purpose of separating them he drove the whole into the corral, the separation to be made the following day. During the night, by reason of some unexplained cause, eighty head went over the bluff and were killed, including twenty-nine head belonging to plaintiff. There was no other corral on the tract.

Upon the trial the defendant was allowed to introduce, against plaintiff's objection, several witnesses to testify as to their opinion concerning the safety of the corral.

The court below (Temple, J.) was of opinion that there was negligence in leaving the cattle over night without a guard, but that the negligence was in a degree less than gross negligence, and a jury having been waived, rendered judgment for defendant.

From an order denying a new trial, the plaintiff appealed. J. McM. Shafter, for appellant.

T. H. Hanson, for respondent.

PER CURIAM.

The ultimate question in issue at the trial was whether it was actionable negligence in the testator of these respondents to cause the cattle of the plaintiff to be driven into the corral, under the circumstances alleged. When those circumstances were established by proof, the ultimate fact of negligence on the one hand, or ordinary care upon the other, was a matter to be inferred by the jury. The ultimate fact of negligence in such a case is not one to be established by the mere opinion of witnesses called to testify. The evidence of experts is not admissible. A clear expression of this principle is found in New England Glass Company vs. Lovell (7 Cush. R. 321), where Chief Justice Shaw observes as fol

lows: "In applying circumstantial evidence which does not go directly to the fact in issue, but to facts from which the fact in issue is to be inferred, the jury have two distinct duties to perform: First, to ascertain the truth of the fact to which the evidence goes, and thence to infer the truth of the fact in issue. This inference depends upon experience. When this experience is of such a nature that it may be presumed to be within the common experience of all men of common education, moving in the ordinary walks of life, there is no room for the evidence of opinion; it is for the jury to draw the inference."

These views were subsequently adopted and applied in the case of White vs. Ballou (8 Allen R. 408), where the general question was one of negligence in kindling a fire under certain circumstances appearing in proof.

For these reasons we are of opinion that the evidence of the witness Parsons and others, testifying to their opinion of the safety of the corral, was inadmissible, and should have been excluded.

Judgment and order denying a new trial reversed, and cause remanded for a new trial.

[No. 5,606.]

[Filed, April 22, 1878.]

CHRISTIE, RESPONDENT, Vs. CHRISTIE, APPELLANT.

DIVORCE - EVIDENCE.-Example of evidence held insufficient to support a decree of divorce on the grounds of desertion, cruelty, and neglect to provide. PRACTICE-APPEAL. - Appellant having offered no evidence in his defense at the trial, took an appeal from the order denying a nonsuit, and an appeal, also, from the judgment. The plaintiff's evidence was held, on appeal, insufficient to support the judgment. Held: "The appeal from the order overruling the motion for a nonsuit is dismissed, the judgment is reversed, and the cause remanded."

From the Ninth Judicial District, Siskiyou County.

The complaint for divorce alleges marriage, residence, and assigns as grounds: Willful desertion for four years; cruel and inhuman treatment by reason of clandestine removal of children to Oregon, causing plaintiff great mental suffering; and lastly, willful neglect.

Defendant denied all the above allegations, and alleged that his business called him to reside at Sawyer's Bar where he requested plaintiff to come, but she refused, and continued to reside at Fort Jones; that he removed the children to Oregon for the purpose of educating them at the Ashland Academy.

The evidence adduced for the plaintiff showed a separation of the parties during four years; that plaintiff was supported partly by her parents and partly by her own exertions; that she had received from defendant by the hands of third persons at various intervals the sums of $20, $10, $48 and $75; also procured some store supplies on defendant's account never applied to defendant for support, because had heard that he made the remark that he would not support her as long as she lived in her mother's house, and also because she could support herself. Defendant provided some clothing for the children and paid schooling for a short time. He removed the three children on Saturday, and wrote to plaintiff on Monday informing her where they were. Plaintiff was greatly afflicted in mind and unfitted for business by the loss of her children, and succeeded in recovering two of them from Ashland. She further testified to his threats of whipping her, and to his intemperate and gambling habits.

A motion for a judgment of nonsuit being denied, the defendant declined to offer testimony, and the court below rendered a decree of divorce. From the order denying a nonsuit, as also from the decree, the defendant appealed.

C. Edgerton and J. L. Murphy, for appellant.

E. H. Autenrieth and J. Berry, for respondent.

PER CURIAM.

The complaint for a divorce proceeds upon three grounds: First, willful desertion; second, extreme cruelty; third, willful neglect. The allegations of the complaint are denied by the answer. The cause was tried before the court. No evidence was offered by the defendant. The court below found all the issues for the plaintiff.

We have carefully examined the evidence sent up in the

record, and we think that it utterly fails to establish either of the grounds set forth in the complaint as grounds of di

vorce.

The appeal from the order overruling the motion for a nonsuit is dismissed, the judgment is reversed, and the cause remanded.

[No. 5,687.]

[Filed April 22, 1878.]

LIVINGSTON, RESPONDENT, vs. MORGAN, APPELLANT. JURISDICTION OF JUSTICES' COURT.-An action for trespass on real property, in removing fences, is within the jurisdiction of a Justice of the Peace, where the gravamen of the action is plaintiff's possession of the land, and the damages sued for are less than three hundred dollars. Pollock vs. Cummings (38 Cal. 683) cited.

JUDGMENT GOLD COIN.-In an action upon a tort, a judgment in gold coin is irregular, and the judgment will be modified upon appeal.

From the Fifteenth Judicial District, Contra Costa County. This action was commenced in a Justices' Court to recover $299 damages for defendant's taking and carrying away a fence from land averred to be in possession of plaintiff. Defendant in his answer, demurrer being overruled, set up title to the land, and under Code of Civil Procedure, 2 838, the action was transferred to the District Court. The complaint after alleging possession of the land, the ownership of the fence, the trespass, breaking down fence, destruction of crops, etc., prayed for a gold coin judgment. In the Justices' Court the defendant demurred to the jurisdiction of the subject

matter.

The case was tried before the District Court without a jury, and judgment rendered in favor of the plaintiff for $117 in gold coin and costs taxed at $103. The defendant appealed on the judgment roll.

Eli R. Chase, for appellant, assigned two errors: First, the overruling of defendant's demurrer; and secondly, the "gold coin" judgment. On the point of jurisdiction raised by the demurrer counsel argued: "Take the case at bar, suppose the plaintiff had alleged in this form: 'That on or about the 1st of May the plaintiff was in possession of the following described tract of land, situate, etc., and certain fences

were then and there standing and being thereon, etc.' These allegations would have brought the case within the jurisdiction of the Justices' Court, under the rule laid down in Pollock vs. Cummings (38 Cal. 684). Then if defendant had admitted the plaintiff's possession, but showed the possession to be wrongful or himself to be the rightful possessor or owner, the case would have come under Section 838, and the Justice having had original jurisdiction would have been ousted of jurisdiction by the answer. But if the Justice had not original jurisdiction the answer and transfer does not confer jurisdiction on the District Court." He contended that this was a District Court action erroneously brought in a Justices' Court, and its transfer to the District Court could not repair the defect.

H. Mills and J. P. Jones, for respondent.

PER CURIAM.

The only respect in which this case is claimed by appellant to differ from that of Pollock vs. Cummings (38 Cal. R., 683), is in the fact that the complaint here alleges that the plaintiff was the owner of the fences standing upon the land mentioned therein. But this averment added nothing to the complaint or to the cause of action therein set forth, and the gravamen of which was the fact of possession of the land by the plaintiff when the alleged trespasses were committed by the defendant.

The averment as to ownership of fences might be stricken out, and the cause of action and proof which might have been adduced in its support, would be precisely the same.

We think, therefore, upon the views stated in the case referred to, the Justice must be held to have had jurisdiction of the action before its transfer to the court below.

2. But the judgment for gold coin can not be supported, and it must be modified accordingly.

The judgment of the court below is therefore modified by striking therefrom the words "in gold coin of the United States," and the cause remanded with directions to make such modification; the appellant not to recover of the respondent any costs occasioned by this appeal.