The New York herald., 1876-07-08


ants both include the land in controversy. The ques-
ton, therefore, Tor consideration which OF the TWO
lowing syllabus will furnish the proper answer
TO this question and cover all the poin's IN
volved: In action OF ejectment IN California
where both parties assert title to the prenises-the
plaintiff under concess ol the former government
confirmed by The tribunals OF the United States. and
approved survey under The of Congress OF June
IA, 1860. and the defendant under "a patent OF The
United States issued upon similar confirmed conces-
sion--the inquiry of the Court must extend to the
character OF the gnal concessions ascertain which
OF she titles The better right To the PREMISES
and II these do not furnish the means Tor setting the
controversy reference be had the proceedings
before the tribunals and officers of the United States by
which the claims OF the parties wore determined
where the original concessions In such cases were
without specific boundaries being floating grants Tor
quantity, the one first locaed 10y approved survey
appropriated the land embraced by the survey.
Tho obJect OF the proceeding before the tribunals OF
the United States Tor the approval OF survey OF
confirmed claim to land IN CaiIorna under Mexican
or spanish grant pursuant 10 tho act oil Congress OF
June IA, 1860 was to insure conformity OF the survey
with the decree OF confirmation and not to settle any
question of title against other claimants The APP
prova OF the Court establishes fact that the survey
was N conformity with the decree OF confirmation, or,
II the decree was for quantity only that the survey
authorized by IT, and Is concu. i've as To The oca-
ton OF the land against all floating grants not previously
located. Affirmed
Mr.. Justice + cid delivered the opinion
PRINCIPAL AND NEUTRALITY-SUSPICIOUS. OF THE LAT
rER-now QUALIFIED WHEN OFFERED AS AGAINST
No 81. Tho First Unitarian Society of Chicago,
plaintiff IN error, II. Floyd Faulkner and George X
District OF Illinois. Services rendered by The
plaintiffs, as architects IN making plnns and designs
and furnishing DRAWN specifications and estimat
for the church cdcc OF their religious society An
nexed to the declaration Is bill OF particulars setting
For services architects making designs,
plans drawings and specifications and csti-
! mates tor church building with basement, TO
For second design aud drawings, showing the
elevation Of the church building. with chapel IN
rear aud tower between the church and chapel
Fo- modification of the above design, with chapel
IN rear and tower at angle oil church to cost
For design of church with basement, but WITHOUT
tower, to cost $40 600. O..................... 400
| Total. 81, $50
Due service was made and the defendants appeared
pleaded that they had never promised IN manner and
form alleged in the declaration. Issue beng joined
the parties went TO trial and the verdict Tor the
plaintiffs in the sum OF 80, S62 80 part OF which was
subsequently reunited, amt Judgment rendered tor
the plaintiffs IN the sum OF $4,000 Exceptions were
duly fled by the defendants To tue ruling and nsiruc
OF the Court and they sued oat The present writ
OF error. Enough appears IN The transcript TO show
that the plaintiffs partners. seek ing employment
architects, and that the hrm represented IN all
| the negotiations reported in the bill Of exceptions by
! the junior member OF the firm. Testimony was given
bv him the trial NJ prove that the plaintiffs
the request OF the defendants had submitted plans
to the latter Tor a church edicc. competition with
other architects for the exami nation and choice Of
those CONF lg the defendant corporation Evidence
was also offered by the plaintiffs, consisting OF tue tes
! timony OF the same witness tending to prove convcr.
\
OF the action OF the plaintiffs consequence thereof,
and they also offered mis- testimony evidence tend
ing TO show statements ana admissions purporting
to have been made by the pastor IN relation to the
employment OF the plaintiffs by the defcndant,
chtccts at special meeting OF tho church, all OF
which the defendants objected, because no evidence
had been gwen tending show that the pastor was
any sense the agent OF the defendants that he had
any authority to act for them relation to the
| ployment of the plaintiffs architects. Responsive
To that objection the plaintiffs stated 10 the Court that
they expected prove that the pastor acted their
behalf the agent Of the society and that the society
acquiesced IN his acts and upon that understanding
the objection 0verruled the Court remarking hat
tho testimony would become material IL the plaintiffs
should subsequently, give evidence prove the agency
OF the pastor at the time the interview with the
business partner OF the plaintiffs when the plans
submitted modined, and also AT the socat meeting
OF the society. when certain members OF the Building
| Committee and many members of the society were
prcseut Exceptions were taken by the defendants
| to the rulings of the Court in admitting
these several declarations and admissions, but the
bill oil exceptions shows to the satisfaction Of the Court
that the ovldcncc admitted subject 10 the cOnd.
that the plaintiffs hould subsequently prove that
the party who made the declarations the agent
the society. No such evidence aitcrward intro
duced by the plaintiffs, but the bill Of except Ons also
shows that the attention Of the Court again
called The subject, and that the submit ed
to the jury the hypothesis that 1t proved
that the plaintiffs the architects the
II s said that the declaration OF the pastor
competent evidence unless II was proved that he was
tie agent OF the society and that the declaration and
admissions made respect TO matters within the
scope OF his agency but 1t was not absolutely necessary
that the PROOF agency should be first introduced.
While such the rule aud the better practice In ex-
ceptional when the ends o. justice require IT, is
competent for the presiding Judge TO relax the rule
and allow the evidence to be given by either party
such order in the exercise Of sound discretion he
may direct. Affirmed
| Mr. Justice Clifford delivered tho opinion.