was filed the presiding judge of the superior court assigned it to department 1 of the said court for trial. The petitioner was afterwards arrested on a bench warrant issued upon the indictment, and was brought into court for arraignment. On his arraignment he challenged the panel and the individual jurors of the grand jury, moved to set aside the indictment returned by it, filed a plea in abatement, and moved to strike the indictment from the files of the court. The challenge, motions, and plea were based upon the grounds of want of jurisdiction, and irregularities and errors in law in the proceedings taken for ordering and impaneling the grand jury. The court disallowed the challenge, denied the motions, decided against the plea in abatement, and required the defendant to plead. He pleaded not guilty, and as the court is about to proceed to try the issues raised by the indictment and plea, the petitioner has applied for a writ of prohibition to restrain the court from proceeding to try him upon the indictment.

The petition contains the same grounds, as a basis for a writ of prohibition, upon which, in the court below, the petitioner challenged the panel and individual jurors of the grand jury. Most of the grounds stated for the purpose are irregularities and errors in law occurring before and after the finding and return of the indictment. But as these are matters which are reviewable and remediable on appeal in the action, they are not grounds for a writ of prohibition. Prohibition lies to arrest the preceedings of a judicial tribunal when they are without or in excess of its jurisdiction, and the writ is issuable only in cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law. Code Civil Proc. §§ 1102, 1103. One of the grounds stated in the petition is that the indictment was found by a body of men styled a "grand jury," that was not in law and fact "a valid and constitutional grand jury." If that be so, the accusatory paper returned by them to the court below as an indictment is worthless and void, (People v. Thurston, 5 Cal. 69,) and the court has no jurisdiction to try the petitioner upon it; for no person can be held to answer for crime unless on information, after examination and commitment by a magistrate or an indictment of a grand jury, and in order that offenses committed in a county may be prosecuted by indictments, the constitution requires that a grand jury shall be drawn at least once a year. Const. § 8, art. 1.

As defined by the Code law of the state, a grand jury is a body of men, 19 in number, returned in pursuance of law from the citizens of a county, or city and county, before a court of competent jurisdiction, impaneled and sworn, according to law, to inquire into public offenses committed or triable within the county, or city and county. Code Civil Proc. § 192. For constituting such a body the legislature has provided that each of the superior courts of the counties of the state, whenever in its judgment the public interest requires it, shall make and file with the county clerk an order directing him to have v.10P.no.4-18

drawn, at the time designated in the order, in the manner prescribed by law, the designated number of names of persons to be summoned as a grand jury, and to certify a list of the names drawn to the sheriff of the county, who shall summon them, according to law, to be and appear before the court at the time designated in the order. Id. §§ 219, 241.

According to the petition, these things were done. On July 8, 1885, an order for a grand jury was made in the superior court of the city and county of San Francisco, and filed with the county clerk. That order was signed: "F. W. LAWLOR, Presiding Judge Superior Court; D. J. ToоHY, Judge of the Superior Court." One o'clock P. M. of the day on which the order was made and filed was the hour designated in the order, as originally made and filed, for the drawing. That day, in department 11 of the superior court, the court opened at 10 o'clock A. M., and upon the opening of the court the clerk read aloud the order, as originally signed, for a grand jury; after which the judge of the court amended the order by changing the hour designated in the order for drawing the jury from 1 o'clock P. M. to 10 A. M. of the day; and upon such change being made on the face of the order, the clerk, in open court, in presence of the judge of the court,—the presiding judge of the departments of the superior court being absent during the proceedings,—did draw from the grand jury box the names of the requisite number of grand jurors, pursuant to the order as amended, and in the manner prescribed by section 219 of the Code of Civil Procedure.

Of the names thus drawn by the officer a certified list was made and delivered to the sheriff, who returned that he had found and summoned 21 of the persons named on the list, to be and appear in department 11 of the superior court, at 10 o'clock A. M., on the tenth day of July, 1885; and at that time the jurors summoned appeared in court. The persons who appeared were summoned by the proper officer, and their names were drawn by a proper officer, in the performance of a ministerial duty required of him by an order of a court of competent jurisdiction. The absence of the presiding judge of the department of the court in which the duty was performed did not invalidate the drawing, nor did the change made by the judge of department 11 in the original order of the hour at which the drawing was to take place divest the court of jurisdiction over the proceeding. The change made, if an irregularity or error in law, was an irregularity which happened, or an error committed, within the jurisdiction of the court, which did not affect the existence of the order under which the clerk acted; and as the order was made and amended within and not without the jurisdiction of the court, it was not void for want of jurisdiction, nor for an excess of jurisdiction. Therefore the names were legally drawn from the grand jury box, and the persons listed and summoned who appeared in court were returned, in pursuance of law, before a court of competent jurisdiction.

But of the persons summoned and who appeared, 13 were excused for cause, and only 6 of the original panel remained. The grand jury was therefore incomplete, and, in order to fill the panel, the judge of the court, by an order entered in the minutes of the court, directed the sheriff to summon 15 persons, from the body of the city and county, to be and appear in department 11 of the superior court on the fourteenth day of July, 1885, to serve as grand jurors. That was done. Under the order the sheriff summoned 15 persons from the body of the city and county, returned their names into court, and the persons who were summoned appeared in court at the hour named in the order. Two of them were excused for cause, and the remaining thirteen, with the six jurors of the original panel, were recognized by the court, and declared to be the grand jury, and as such were impaneled and sworn, and afterwards found and returned into court the indictment against the petitioner.

The petition states that there were, at the time of the proceeding taken for filling the original panel, 135 names in the grand jury box from which a grand jury could and ought to have been drawn, and it is contended that in making the order for summoning the jurors from the body of the city and county the court exceeded its jurisdiction. But the names of a sufficient number of persons to constitute the grand jury having been drawn from the grand jury box, and those persons having been summoned and returned according to law, of whom, for cause, such numbers were excused that there were only present six of the original panel, the court had jurisdiction to fill out the deficiency of the original panel, either by an order for a sufficient number of jurors to be forthwith drawn and summoned to attend the court, or by an order entered in its minutes directing the sheriff forthwith to summon so many good and lawful men of the county, or city and county, to serve as grand jurors, as may be required. Code Civil Proc. §§ 226, 242. There was therefore no excess of jurisdiction in the order made for a special venire for summoning the requisite number of jurors from the body of the county to complete the grand jury, instead of an order for having the number drawn from the grand jury box.

We are of opinion that the court below, in exercising its discretion, ought to have ordered the panel to be filled by requiring the clerk, in open court, and in the presence of the judge, to draw the requisite number of names from the grand jury box instead of requiring the sheriff to summon jurors from the body of the city and county. The former course of proceeding is more consistent with the correct administration of justice. But the course adopted by the court was one authorized by the Code. The persons summoned and in attendance were drawn, summoned, and impaneled under a valid law, and according to its provisions, (People v. McDonell, 47 Cal. 136; People v. Ah Chung, 54 Cal. 398; Leahy v. Southern Pac. R. Co., 3 Pac. Rep. 622;) and as they were qualified to sit as grand jurors, and were rec

ognized by the court and sworn as a grand jury, the indictment found by it against the petitioner is a good indictment.

It follows that the application for a writ of prohibition must be denied. It is so ordered.

MCKINSTRY, SHARPSTEIN, and THORNTON, JJ., concur.

(69 Cal. 129)

MARTIN v. WARD.

(No. 9,262.)

Filed March 23, 1886.

1. EJECTMENT-ADVERSE POSSESSION.

In an action of ejectment a finding that defendant repudiated plaintiff's title, and set up title in himself, only about three years prior to the action, and the fact that defendant had failed to pay the taxes required to make out an adverse possession, are fatal to a claim of adverse possession by defendant. 2. TRIAL-DIRECTING VERDICT-NO CONFLICT IN EVIDENCE.

Where there is no conflict in evidence, the court may properly direct a verdict.

3. APPEAL-ERROR WITHOUT INJURY.

It is no ground for reversal on appeal that errors have been committed in the court below, if such errors inured to the benefit of the appellant.

4. SAME CONFLICTING AND HOSTILE TESTIMONY-PROVINCE OF JURY.

Where the evidence on a trial was radically hostile and conflicting, it is peculiarly within the province of the jury, and the verdict should not be disturbed on appeal.

Commissioners' decision.

Department 2. Appeal from superior court, city and county of San Francisco.

J. N. Thorne, for appellant.

J. L. Murphy, for respondent.

SEARLS, C. This is an action of ejectment to recover a lot of land 25 feet front by 69 feet deep, situated on Douglas street, city and county of San Francisco. The appeal is from a judgment in favor of plaintiff, and from an order denying a new trial. The complaint is in the usual form in ejectment, avers the value of the rents and profits of the demanded premises to be $200, and demands judgment for possession, for $500 damages for withholding possession thereof, and for $200, the value of the rents and profits, and for costs. The complaint is followed by the usual affidavit in verification, but does not appear to have been sworn to, and must be treated as an unverified complaint. The answer contains: (1) A general denial of "each and every allegation in said complaint contained." (2) Sets up that plaintiff's action is barred by sections 318 and 319 of the Code of Civil Procedure of the state of California. (3) A plea of a judgment in favor of defendant, determining the title to the demanded premises in defendant's favor. (4) And for a further and separate defense, and as a cross-complaint, defendant avers, in substance, that in the latter part of 1868, plaintiff being the owner of 75 feet front

by 125 feet deep on Douglas street, in consideration that defendant would build for her, said plaintiff, on said land, a house, agreed to convey to him, the defendant, the northerly one-third, or 25 feet front by 125 feet deep, parcel of said land; that on or about January, 1869, defendant entered into possession of said land so agreed to be conveyed, and has ever since held the exclusive, visible, open, and notorious possession thereof, adverse to all the world claiming title thereto; that the defendant built the house for plaintiff as per the agreement, and that the same was accepted by her; that plaintiff agreed to execute to defendant a deed, but has never done so. Wherefore defendant prays that he be decreed to be the legal owner of the premises, and that plaintiff execute to him a deed, etc.

At the trial it was admitted that the plaintiff was the owner of the land in 1869, at the time of the alleged agreement, and by consent of parties the following special issues were presented to the jury, and answered as herein stated:

"(1) Did the plaintiff, in the latter part of 1868, or the early part of 1869, enter into any agreement with the defendant whereby she promised that she would convey to him the premises on which he now resides, in consideration that he would construct for her, at his own expense, a dwelling-house upon that portion of the premises where she is now residing? Yes. (2) If you find the above in the affirmative, then did the defendant construct a dwellinghouse for the plaintiff upon that portion of the premises where she is now residing at his own expense? No. (3) If you find the above in the negative, then did the plaintiff, in the latter part of 1868, or the early part of 1869, agree with the defendant that if he would pay a certain mortgage then existing upon the premises in controversy to the Hibernia Bank, for about the sum of $300, or refund the amount, she would convey to him the premises upon which he is now residing? Yes. (4) If you find the last above in the affirmative, then did the defendant pay said mortgage or refund the amount thereof to the plaintiff? No. (5) If you find the last above in the affirmative, then did the defendant enter upon said premises in pursuance to said agreement? Yes. (6) If you find that the defendant entered upon the possession of said premises under either of the agreements above mentioned, then has he ever repudiated said agreement, and claimed to hold the premises as his own, prior to the commencement of this litigation? Yes, on or about three years ago.

Upon the coming in of this special verdict the court instructed the jury to find a verdict for the plaintiff for the possession of the demanded premises, and for the rental value thereof, at eight dollars per month, from the date of the filing of the complaint, and thereupon the jury rendered its verdict in favor of the plaintiff as follows: "We, the jury, in the above-entitled cause, do find for the plaintiff, and assess the damages in the sum of $104." To the instruction of the court directing a general verdict counsel for defendant excepted, and the ruling is assigned as error.

At the trial no evidence was offered in support of the plea of a former adjudication and judgment. Title in plaintiff in 1869 was admitted, and the only evidence upon the subject of the value of the rents and profits was that of the defendant, who said: "I suppose the