Upon this question he announced that he "would go to the biggest verdict." Suppose the defendant had conceded its liability, and the sole question for the jury was to ascertain the amount of damages the defendant should pay; would this juror have been accepted by the court, even in the absence of a challenge? or, if challenged, would the court have hesitated to sustain it? Yet the defendant was as much entitled to an impartial jury upon this branch of the case as the other, and should not be compelled to submit its case to a juror who, before he heard the evidence, declared that, if the plaintiff should be entitled to recover, he "would go to the biggest verdict."

Respondent contends, however, that the evidence heard upon the trial of this challenge was conflicting, and that, therefore, the finding of the court cannot be disturbed. The only evidence heard upon the trial of the challenge was the testimony of the juror. As to whether the juror was biased in favor of the plaintiff, there was not even the shadow of a conflict or contradiction; and the only controversy was as to whether, notwithstanding his bias, he could impartially try the case,-a matter about which the juror could only express an opinion, and which could not be affected by its expression. The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to a trial by jury guarantied by the constitution. Upon this proposition all the authorities agree. As was said by Sir Edward Coke (1 Coke, 157b) in discussing the right of trial by jury, under the head of "Propter affectum," "For all which the rule of law is that he must stand indifferent as he stands unsworn." The rule excluding jurors for actual bias in civil cases must not be confounded with the rule stated in section 1076 of the Penal Code in relation to opinions founded or based "upon public rumor, statements in public journals, or common notoriety," and which permits the acceptance of the juror "provided it appears to the court upon his declaration, under oath or otherwise, that he can and will, notwithstanding such an opinion, act impartially and fairly upon the matters to be submitted to him." This is the only important statutory exception to the common-law rule excluding jurors upon the ground of actual bias, and was enacted because of apparent necessity.

Appellant contends that the court erred in admitting certain evidence as to the profits plaintiff was realizing from his business at the time of the accident, and in giving to the jury certain instructions on that subject. The complaint, after alleging the cause and manner of the accident, and the character of the injuries received, alleged that thereby he had suffered damage in the sum of $10,000. The complaint then proceeded as follows: "(7) That plaintiff has been for a period of three months confined and sick, owing to said injuries, and has been compelled to employ nurses and physicians during all of said time, and

up to the date hereof, to his damage in the sum of six hundred dollars. (8) That plaintiff has been unable to attend to his business on account of said injury, and has been compelled thereby to hire said business and work done during all of the time since said accident, to his damage in the sum of two hundred and thirty dollars, and will be compelled to hire said work done in the future,"-and prays judgment for $10,830. The accident occurred on March 31, 1895. It appeared from the testimony of the plaintiff, without objection, that at the date of the accident he was engaged in the restaurant business on Pine street, between Montgomery and Kearny streets, with his partner, Jules Semeria, each having an équal share in the business; that plaintiff was the chief cook, and that Semeria attended to the other part of the business; that after the accident he could not work, because he could not use his arm. The plaintiff was then asked by his counsel: "What was the income you were making from your business in March, 1895?" Defendant objected on the ground that it was not an element of damage, and therefore immaterial and irrelevant. The objection was overruled, and an exception reserved. The witness answered, "About two hundred dollars per month," and explained that that was his share of the profits after all expenses were paid. Jules Semeria, plaintiff's partner, called by plaintiff, was asked, in chief: "Can you state what the net proceeds of this business were, on the average, for some months prior to this accident?" Defendant objected that the question was immaterial and irrelevant, and not authorized by any allegation in the complaint. The court overruled the objection and defendant excepted. The witness answered that it was, on an average, $400 per month. These rulings were erroneous. Waiving the question whether, in some possible case, the profits of the plaintiff's business may be shown to be an element in the computation of damages in actions of this character, when properly pleaded, it must be clear, as a general proposition, that such profits cannot be looked to in estimating the plaintiff's damages. A business such as that conducted by the plaintiff and his partner includes capital as well as the services of other people, as shown by the evidence, and may be conducted without the personal attention or services of either or both of the owners. The complaint alleged that plaintiff was compelled to hire another to take his place and do his work, and alleged his damage because thereof to be $230; and that covered all the time from the date of the accident to the filing of his complaint. What he paid represented the value of his time. There is no allegation that the business suffered, or was otherwise less profitable, because of his inability to do the work he had formerly done. The authorities are not agreed as to the extent to which the evidence may go, in the absence of allegations as to special damages sustained by the plaintiff; but I know of no exception to the rule

that where the plaintiff has specially alleged a particular damage resulting from the injury, and the amount of such damage, he is concluded by his allegation, and, having alleged the value of his time as the basis of estimating his pecuniary loss, he cannot give evidence of the net profits resulting from the business in which he was engaged. There are many cases in which it has been held that, without a special averment, the plaintiff may show that he was incapacitated from attending to "his business," or "his ordinary business," but that such evidence was admissible because it tended to show the serious character of the injury, and not for the purpose of showing special damage. Neither in Treadwell v. Whittier, 80 Cal. 574, 22 Pac. 266, nor in Curtiss v. Railroad Co., 20 Barb. 282, cited in the former case, did the instructions commented upon touch upon the question of the loss of profits or the extent of profits resulting from plaintiff's business; nor was that question discussed by the court in either case, although "loss of time" was considered. In Silsby v. Car Co., 95 Mich. 209, 54 N. W. 761, it was claimed that the court below "erred in permitting the plaintiff to show, as an element of damage, that he had been obliged to close his shop, and further to show what the profits of his shop had been in the past." It was held that this was error. The court said: "The declaration did not count specially upon this alleged loss of profits, and the case falls within Joslin v. Ice Co., 50 Mich. 516, 15 N. W. 887. Furthermore, the loss of profits in conducting a business involving the labor of others is not a necessary consequence of personal injury to the plaintiff. The extent of his recovery upon this ground would be what his services were worth in the conduct of such a business as he was engaged in," citing 3 Suth. Dam. 268; Marks v. Railroad Co., 14 Daly, 61; Masterton v. Village of Mt. Vernon, 58 N. Y. 391; Johnson v. Railway Co., 52 Hun, 111, 4 N. Y. Supp. 848; Bierbach v. Rubber Co., 54 Wis. 208, 11 N. W. 559. Neither in the offer or admission of this evidence, nor in the instructions to the jury, was there any limitation upon the effect of this evidence; and we must therefore assume that it was considered by the jury in estimating the damages awarded to the plaintiff.

In this connection we would refer to instruction No. 15, in which the jury were told that in estimating the damages to be assessed, while they could not take into account the wealth or poverty of the plaintiff, they could take into account the character and extent of the business in which he was engaged, together with the incapacity caused by the injury to transact such business. Under the allegations of special damage set out in the complaint this instruction was misleading and erroneous, for reasons hereinbefore stated.

Some other exceptions to rulings upon questions of evidence were reserved by the defendant, but as they do not go to any vital point, and may not be presented upon another

TUFFREE et ux. v. STEARNS RANCHOS CO. (L. A. 387.)

(Supreme Court of California. April 14, 1899.) ABATEMENT-TRANSFER OF INTEREST-DEATH-APPEAL-REVIEW.

1. Code Civ. Proc. 385, provides that an action does not abate by the death of a party, or by the transfer of an interest therein, and that in the case of a transfer of interest the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted. Held that, where a person to whom one of several defendants in an action to quiet title has transferred his interest, though he has actual knowledge of the suit, does not have himself made a defendant until after an appeal from a judgment has been decided on the merits and the case remitted for entry of judgment in accordance with such decision, he is bound by the judgment so entered, and cannot have it amended as to his interest on the ground that his vendor having died after the judg ment appealed from was rendered, but before notice of appeal was served, due service of such notice having been accepted by a firm of attorneys for all defendants, the supreme court obtained no jurisdiction as to the interest that had been transferred.

2. Where a judgment has been entered in the lower court in accordance with directions in a mandate of the supreme court, a purchaser of the land involved, who has been substituted as defendant, may appeal from the judgment, and by bill of exceptions bring before the court the merits of the appeal.

GAROUTTE, J. Moses Hopkins, claiming to own an interest in a tract of land, was joined with others as a party defendant in an action to quiet title. Bicknell & White appeared as attorneys for all the defendants. During the litigation, and five years prior to judgment, Hopkins transferred his interest in the property to the Stearns Ranchos Company. After judgment, and prior to an appeal therefrom by plaintiffs, Hopkins died. Thereafter Bicknell & White accepted notice of appeal in behalf of all the defendants, and the case

was heard and decided in this court upon its merits. Upon the return of the remittitur to the lower court a judgment was entered in accordance with the directions therein contained. Whereupon the Stearns Ranchos Company, by E. W. McGraw, its attorney, having had itself substituted as a party defendant, moved to amend the judgment as to the interest represented under the name of Moses Hopkins, upon the ground that this court failed to obtain jurisdiction over the Hopkins interest in the realty by reason of the fact of his death at the time the notice of appeal was served upon Bicknell & White. No substitution of any party defendant in lieu of Hopkins was ever made until the substitution of the Ranchos Company, as stated. The present appeal is now prosecuted from the order of the trial court refusing to amend the judgment as prayed for. The Northam interest in the real estate involved in this litigation stands generally in the same position as the Hopkins interest, at least as far as the law involved is concerned; and we refrain from setting out the facts as to that interest for this reason.

#

Section 385 of the Code of Civil Procedure reads: "An action or proceeding does not abate by the death or any disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of any other transfer of interest the action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding." This provision of the law was construed in Walker v. Felt, 54 Cal. 386, where the court said: "Section 385 of the Code of Civil Procedure provides that in case of any transfer of interest the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action. Under that section it was the right of the successors in interest in this case to prosecute this action in one of these forms. The party who had transferred his interest devested himself of any power to control the action. He could not dismiss it, because his successors had a right to have it continued. The validity of the order of dismissal in this case rests solely upon the consent of the original plaintiff, given ten years after he had transferred his interest in the action. As he had no right to interfere with the action, the court, on being advised of that, should have vacated the order based upon it." In Malone v. Mining Co., 93 Cal. 384, 28 Pac. 1063, this court said: "Under this section, if property is conveyed during the pendency of litigation in regard to it, the grantee may thereafter continue to prosecute or defend the case in the name of his grantor, or may cause himself to be substituted in his place." In Plummer v. Brown, 64 Cal. 430, 1 Pac. 704, it is declared: "After transferring his entire interest in the subject of the controversy, the de

fendant was only nominally a party to the action. The real parties in interest were his grantees. The entry of his default affected them, not him."

It is quite apparent from these authorities that the statute contemplates the prosecution or defense of the action by the transferee of the interest sold; and he may prosecuute or defend in his own name by obtaining an order of substitution, or he may prosecute or defend in the name of the original party. That the legislature has the power to say that an action may be prosecuted or defended in the name of one not the real party in interest, we have no doubt. Hopkins, at the time of his death, having no interest in the property, his executor or administrator was not a proper party to be substituted as defendant. It therefore follows that the action either should have continued in his name, or his vendee should have been substituted. Yet the statute and

the cases cited plainly say that the vendee has the right to exercise the option of substitution, or continue the litigation in the name of the original party. If the original party is a mere nominal party, and the vendee is the real party in interest,-if the nominal party has no right to conduct the litigation upon any particular lines as against the wishes of the real party in interest; if the real party in interest, the vendee, has the control of the litigation, and this is decided by the cases cited from the reports of this state,then it would seem to be wholly immaterial whether the original party to the action lives or dies. For the purposes of the litigation he is a mere dummy anyhow,-a John Doe alias; at least, this must be true aside from any question of costs, and, as to those matters, certainly the real defendant has no reason to complain. Possibly the opposing party, for reasons readily perceptible, might be desirous of having the real party in interest substituted as a party to the record; but if such party is willing to have matters stand statu quo, and the real party in interest is content to have matters proceed upon the old lines, we see no legal bar to the practice. The real plaintiff or defendant simply uses the name of another in the further prosecution or defense of the action. The Stearns Ranchos Company, the vendee of Hopkins, knew all about the pending litigation. A lis pendens was filed. Actual notice of the litigation was before it. By affidavit it is admitted that it had "casual notice" of the appeal to this court. The attorney of the company was E. W. McGraw, who was also a director of the corporation. He is now the attorney representing the corporation defendant upon this appeal. Prior to the first judg ment in the trial court he assisted in the taking of depositions to be used upon that trial, representing some of the defendants. He filed a petition for rehearing in this court, signing himself as counsel for the defendants. The Ranchos Company was the owner of the interests of all the defendants before the final judgment was rendered in the trial court, and

it is quite apparent that it knew all about this litigation from start to finish, at least as to all material and substantial matters. Under these conditions, this conduct upon the part of the Ranchos Company can only mean that it defended this action in the name of Hopkins from the time it became his vendee, and it should not now be heard to the contrary. Knowing that Bicknell & White were appearing at all times and upon all occasions for all the defendants, we are confirmed in the belief that these attorneys, as to the question now before us, were representing the Ranchos Company in this litigation. In representing Hopkins they were but representing the company. The Ranchos Company, in matters material to the appeal, was a party to the action under the name of Hopkins, and, of necessity, Hopkins' death was wholly an immaterial matter as in any way changing the aspect or situation of the litigation. Pedlar v. Stroud, 116 Cal. 462, 48 Pac. 371, and cases akin to it, do not bear upon the proposition here under consideration.

2. Defendant appeals from the judgment rendered by the trial court in conformity with the directions of this court. It is now claimed upon the part of respondents that upon such an appeal the only question which may be heard is, has the trial court entered judg ment in accordance with this court's mandate? Defendant has also appealed from an order denying his motion for a new trial. This motion was made after the judgment was entered in the trial court in accordance with this court's direction. It is insisted by respondent that there is no such practice as taking an appeal from an order denying a motion for a new trial under those circumstances. Brady v. Feisel, 54 Cal. 180, supports this contention; but, in view of the fact that the appeal from the judgment raises substantially all the questions which might be brought here upon appeal from an order denying a motion for a new trial, we pass without consideration the soundness of the doctrine laid down in Brady v. Feisel. In Klauber v. Car Co., 98 Cal. 107, 32 Pac. 876, this question as to the right of appeal from a judgment such as is presented in the case before us was given careful consideration, and the reasons for the conclusion there arrived at are set forth in full. These reasons are persuasive and most convincing. Upon the doctrine of that case it must be held that in the present case the Stearns Ranchos Company had the right to appeal from the judgment here attacked, and bring before this court the merits of such an appeal by way of a bill of exceptions. In Randall v. Duff, 107 Cal. 36, 40 Pac. 20, it was said that an appeal to this court from a judgment rendered by a trial court in conformity with the directions of the appellate court was allowable in order that it might be determined whether or not the lower court had entered the judgment ordered. Such is undoubtedly the law; but that case cannot be held to limit the doctrine declared in Klauber v. Car Co.

The single point made by appellant upon the appeal, aside from an unimportant ruling upon the admission of certain evidence, relates to the insufficiency of the evidence to support the findings of fact. We have examined with care the evidence bearing upon the particular findings to which appellant's specifications have been addressed. In all material parts we are satisfied, from an examination of the record, that the evidence is sufficient to support the findings of fact. We see no substantial merit in the appeal from the order refusing to correct the file marks upon the court's decree. For the foregoing reasons the respective orders refusing to amend the judgment and correct the file marks are affirmed. The judgment and order denying a new trial are also affirmed.

We concur: HARRISON, J.; VAN DYKE, J.; MCFARLAND, J.; HENSHAW, J.

(124 Cal. 331)

OWEN v. POMONA LAND & WATER CO. (L. A. 637.)

(Supreme Court of California. April 27, 1899.) APPEAL STAY OF EXECUTION-BOND-SUFFICIENCY -VENDOR AND PURCHASER.

1. Proceedings on a judgment are stayed by the filing of a sufficient undertaking on appeal from an order denying a new trial.

2. A judgment in favor of a vendee of land, who rescinds his contract, that he recover the amounts paid on the price, and the value of his improvements, and declaring such sum to be a lien on the land, which is ordered sold, and the proceeds applied to payment of the amount found due, the clerk being directed to docket a judgment for the deficiency, is not a judgment directing payment of money within Code Civ. Proc. § 942, providing that an appea! from such a judgment should not stay execution unless appellant execute a bond in double the amount named in the order, so that proceedings are stayed by filing the ordinary undertaking without an additional stay bond.

3. Code Civ. Proc. § 945, providing that, to secure a stay of proceedings on a judgment directing the sale of real property, appellant must execute a bond for damages by waste, and for the value of the use of the property pending appeal, does not apply where a vendee of land in possession rescinds and recovers judgment for the amounts paid on the price, and for the value of his improvements, for which amounts the land is directed to be sold.

In bank. Appeal from superior court, San Bernardino county.

Action by John A. Owen against the Pomona Land & Water Company. From a decree for plaintiff, and from an order denying a new trial, defendant appealed, pending which plaintiff issued execution, and sold the property designated in the decree. Defendant moves to set set aside the sale and quash the execution. Granted.

John S. Chapman and A. P. Nichols, for appellant. Otis & Gregg and John A. Owen, for respondent.

BEATTY, C. J. This is an action by the vendee against his vendor to recover moneys paid in pursuance of a contract for the

sale of land and certain shares of water stock, and for damages. The plaintiff took possession of the land at the date of the contract, and has ever since retained possession. By the judgment of the superior court it was decreed that the contract had been rightfully rescinded by plaintiff, that it should be annulled, and that plaintiff should have judgment for the amount of his payments under the contract and the value of his improvements on the land, in all about $8,000. This sum was declared to be a lien upon the land described in the contract and upon the water stock. By further provisions of the decree the land and stock were ordered to be sold, and the proceeds, after payment of costs and ex.penses, applied to the payment of the amount found due to the plaintiff. In case of deficiency the clerk was directed to docket a judgment for the unpaid balance. In respect to all these provisions the decree follows very closely and exactly the terms of the ordinary decree in cases of foreclosure of mortgages. In due time the defendant appealed from this judgment, and subsequently took a separate appeal from an order denying its motion for a new trial. Each appeal was regularly perfected by the filing of a proper undertaking in the sum of $300, but no separate undertaking to stay the proceedings was given on either appeal. Subsequently the appeal from the judgment was dismissed for failure to file the transcript in time, but the appeal from the order is still pending. After the entry of the order of dismissal of the appeal from the judgment, but before the issuance of the remittitur, the plaintiff took out an execution or order of sale under which the sheriff sold the property described in the decree, the plaintiff becoming the purchaser. The appellant now moves to vacate and set aside said sale and to quash the execution upon the ground that they were in violation of the right to a stay of proceedings secured by the appeals from the judgment and order denying a new trial.

No question is made as to the power and duty of this court to grant the relief sought by the motion if all proceedings on the judgment were stayed by the appeal from the order denying a new trial. Boob v. Hall, 105 Cal. 413, 38 Pac. 977; Hill v. Finnigan, 54 Cal. 493; Kreling v. Kreling, 116 Cal. 458, 48 Pac. 383; Brown v. Rouse, 115 Cal. 619, 47 Pac. 601; Williams v. Borgwardt, 115 Cal. 617, 47 Pac. 594; Swasey v. Adair, 88 Cal. 203, 26 Pac. 83; Hubbard v. Bank, 120 Cal. 632, 52 Pac. 1070. But the respondent contends, in the first place, that neither the appeal from the judgment nor the appeal from the order operated as a stay, because there was no stay bond, and, if this point is ruled against him, he further contends that it was only the appeal from the judgment that would have stayed execution, and, since that appeal was dismissed before the execution was taken out, the fact that the remittitur had not been issued upon the order of dismissal amounts at

most to an irregularity in the proceeding, and is not a sufficient ground for setting aside the sale.

It will not be necessary to consider the second branch of this proposition further than to say that it is now the settled law of this state that proceedings on the judgment can be, and are, stayed by the filing of a sufficient undertaking on appeal from an order denying a new trial. Fulton v. Hanna, 40 Cal. 280; Tompkins v. Montgomery, 116 Cal. 123, 47 Pac. 1006.

The only question, therefore, left for determination is whether the ordinary undertaking on appeal in the sum of $300 was sufficient to stay proceedings on this judgment. If this is not one of the cases provided for in sections 942, 943, 944, or 945 of the Code of Civil Procedure, the $300 bond was all that was required to stay proceedings. Id. § 949. But respondent claims that the judgment here is one which "directs the payment of money," within the meaning of section 942 of the Code of Civil Procedure, and that there should have been an undertaking in twice the amount found due from defendant. This claim is based upon the following language in the first part of the judgment: "That said plaintiff do have and recover of said defendant, Pomona Land and Water Company, the amount of the several sums of money hereinafter named," etc. This language, considered by itself, certainly does sustain the contention of the respondent. But it cannot be taken by itself, disconnected with other parts of the decree; and, when the whole decree is read together, it is found to be in substance an ordinary decree of foreclosure, in which certain property is ordered sold, and its proceeds applied upon an ascertained debt, the balance remaining due, if any, to be docketed as a personal judgment. The provision for the sale of the property and the application of the proceeds is not merely a cumulative remedy given for the enforcement of an ordinary money judgment. It is a part, and an essential part, of the only procedure for the enforcement of the judgment, and no execution could have issued against other property than that mentioned in the decree until it had been sold, its proceeds applied, and the deficiency ascertained. It is not necessary to decide whether the superior court could have rendered a personal judgment in this case for the full amount found due the plaintiff,-a judgment enforceable by an ordinary execution against the goods of defendant, and could, at the same time, have decreed the enforcement of a specific lien upon the property described in the contract of sale. It is sufficient to say that, on a proper construction of the decree, nothing of the kind was attempted. This being so, the case cannot be distinguished from a number of other cases in which it has been held by this court that the provisions of section 942 of the Code of Civil Procedure did not apply. Kreling v. Kreling, 116 Cal. 460, 48 Pac. 383, Painter v. Painter, 98 Cal. 626, 33 Pac. 483;