Opinion of the Court.

was waived, (Munch v. Williamson, 24 Cal. 167; Bear River v. Bolles, Id. 354; Flateau v. Lubeck, Id. 364.) The following indorsement appears upon the notice of the defendant's motion for a new trial. "Service admitted of the within notice, November 17th, 1863, served D. Calderwood, November 17th, 1863, by sending notice in envelope (paying postage) directed to D. Calderwood, San Francisco. M. H. Furman." The notice was signed by "W. H. Furman, attorney for the defendant." The indorsement affords no evidence of the service, for it is not an admission by the plaintiff of service, and the service by mail is not verified by the certificate of an officer authorized to make service, nor by the affidavit of any person. Service upon a party may be personal, or by leaving the notice at his residence, or by mail if his residence is not known. (Prac. Act, Sec. 520.) It does not appear that the plaintiff's residence was unknown, and therefore the service by mail did not constitute a legal service.

It does not appear, either expressly or by implication, that service of the notice was waived. It appears, from a notice signed by the plaintiff, attached to the statement on motion for a new trial, that he offered to return the statement to the defendant's attorney, for the reason, among others, that the notice of the motion had not been served on him, and it does not appear that the plaintiff proposed any amendments to, or participated in the settlement of the statement. The minutes of the Court show that the plaintiff moved to strike out the motion for a new trial, and the statement. Under these circumstances he cannot be deemed to have waived the service of the notice of the motion.

The notice of the motion not having been served, the Court below had no jurisdiction of the motion; and the statement on the motion, including the grounds properly resting upon the statement for their support, must be disregarded by this Court on appeal. This leaves the case to stand upon the judgment roll, and we can notice only the errors appearing therein.

The defendant, among his points, assigns for error the order

Opinion of the Court.

striking out a part of the answer of Brooks. We cannot find in the transcript a motion to strike out any part of the answer; the record fails to disclose what portion was stricken out; and it does not appear that the defendant took an exception to the order striking out a part of the answer; and we are therefore unable to understand why counsel should have presented the point.

The further points are made that the Court erred in overruling the defendant's exceptions for the want of a finding, and his motion to modify the same, and in ordering judgment without filing any findings. It appears from a paper copied into the transcript, but which forms no part of the judgment roll, or a statement or bill of exceptions, that the defendant, thirteen days after the Court ordered judgment for the plaintiff, and three days after the entry of judgment, excepted to the entry of the judgment for the reason that no findings of fact and conclusions of law were filed. But we find no motion that the Court amend the findings, nor any exception of the defendant to the refusal of the Court to file findings after objections made, as prescribed by the Act of 1861, to regulate appeals (Statutes 1861, p. 589); and the transcript shows that subsequently to the defendant's objections for the want of a finding, the Court filed its findings of fact and conclusions of law, and thus obviated the objection made. The points seem not only not well taken, but destitute of all support.

The only question in the case presenting any difficulty is whether the findings of fact support the judgment. It appears by the findings that the action of Edmond Brooks v. Ross et al., in which Calderwood and R. C. Brooks were also defendants, was commenced March 14th, 1861, and judgment therein against R. C. Brooks, but not against Calderwood — the action having been dismissed as to him- was rendered November 12th, 1862, and on the 8th day of May, 1863, R. C. Brooks was dia possessed by virtue of the writ issued upon the judgment. This action was commenced in April, 1863, and it is found that R. (. Brooks entered under a written lease, dated November 13th 1861, for the term of one year, and that he and the other

Opinion of the Court.

defendants were in possession at the commencement of this action. It is argued that the proceedings, judgment and writ in the case of Brooks v. Ross, and the fact that under the writ R. C. Brooks was evicted from the premises, prove that the title of Edmond Brooks is paramount to that of Calderwood. The judgment roll in that case which is inserted in the statement in this case cannot be looked into to determine the question, for the reasons already given, but we are confined to the findings. It is not stated in the findings that the title of Edmond Brooks was superior to that of Calderwood, nor that he had the right of possession as against Calderwood, nor what was the right or title of Edmond Brooks upon which he recovered the possession, nor that any right or title of, or derived from, Calderwood, was in issue in that action. It is not to be presumed that Calderwood's title was in issue, for the reason, if for none other, that at the commencement of that action no privity between him and R. C. Brooks appears, but it is found that Brooks entered as his tenant after the commencement of the action. The recovery in ejectment by the plaintiff is evidence that at the commencement of the action the plaintiff was entitled to the possession as against the defendant, but in order to constitute it evidence against a third person, not claiming under the defendant, it must be shown that the third person bore such a relation to the defendant's title, that it was his duty to have defended the action, upon the requisite notice thereof being given, and that he had a proper opportunity to make a defense founded upon his title. The findings do not show any privity between Calderwood and R. C. Brooks at or before the commencement of the action of Brooks v. Ross, and the judgment is not evidence of title in Edmond Brooks paramount to that of Calderwood. It appears from the findings that R. C. Brooks entered as Calderwood's tenant for one year, that the year had expired, and that the tenant had forfeited his lease before the commencement of this action. The plaintiff was thereupon entitled to recover the possession of the leased premises. The forfeiture was not waived, as the defendant argues, in consequence of the tenant's holding over and no

Statement of Facts.

notice to quit being given, for the mere holding over would not entitle him to notice to quit, nor would it amount to a waiver of the forfeiture, unless the holding over was under such circumstances that the Court would be justified in find ing that a new term had been created between the parties. This matter is set at rest by the fact that the Court has not found that a further term, commencing at or after the expiration of the year, was created. In our opinion the finding supports the judgment.

Judgment affirmed.

JOHN ECHOLS v. C. D. CHENEY.

DEED BY AN ATTORNEY IN FACT.-A deed made by an attorney in fact, in which he names himself as the attorney in fact for his principal as the party of the first part, and to which he signs his own name opposite the seal, as the attorney in fact of his principal, does not convey the title or interest of the principal in the land therein described, either under the Mexican or common law. The words "attorney," etc., are merely descriptio persona, and the mere fact that the party of the first part is the attorney does not make the deed a deed of the principal.

APPEAL from the District Court, Third Judicial District, County of Santa Clara.

The following is the deed under which respondent claimed title:

This indenture, made the second day of November, in the year of our Lord one thousand eight hundred and forty-nine, between Henry P. Chase, attorney for Henry L. Sheldon, of the Sandwich Islands, in the Pacific Ocean, of the first part, and Richard M. Harmer, of the Pueblo de San José, of the second part, witnesseth: That the said party of the first part, in consideration of the sum of three hundred dollars, in hand duly paid, hath sold and by these presents doth grant and convey unto the said party of the second part, his heirs and assigns forever, all that certain piece or parcel of land lying and being in the Pueblo de San José, and known to be lot number eight, (8,) in block number three, (3,) and range

Statement of Facts.

four, (4,) north of the base line, containing fifty varas square, according to the survey of said city, said lot being the corner of Fourth and St. John's streets, together with all and singular the rights, privileges and appurtenances thereunto belonging, or in anywise appertaining; to have and to hold the same unto the said party of the second part, his heirs and assigns, forever.

In witness whereof, I have hereunto set my hand and seal the day and year first above written. [SEAL.]

HENRY P. CHASE.

Attorney for Henry L. Sheldon.

The other facts are stated in the opinion of the Court.

S. O. Houghton, for Appellant.

The deed is an indenture made "between Henry P. Chase, attorney for Henry L. Sheldon, of the first part," etc.; "and Richard M. Harmer," etc., "of the second part," whereby the said party of the first part, that is to say, Henry P. Chase, "grants and conveys unto the said party of the second part" the premises in question, and concludes as follows:

"In testimony whereof, I have hereunto set my hand and seal," etc.

[SEAL.]

"HENRY P. CHASE, "Attorney for Henry L. Sheldon."

The party of the first part is Henry P. Chase, and the deed conveys the title of the party of the first part, and does not purport to convey anything more. The concluding clause runs thus: "In witness whereof, I," that is to say, Henry P. Chase, the said party of the first part, "have hereunto set my hand and seal, the day and year first above written;" then follows the signature of Henry P. Chase and his seal, under which it written, "Attorney for Henry L. Sheldon.'

The conveyance is not made in the name of Sheldon, nor is Sheldon named therein as a party thereto. It is not therefore the deed of Sheldon, and did not convey his title to the prem