Opinion of the Court-Currey, J.

cles of abuse and slander against the defendants, which had been spread broadcast over Butte County to such an extent that the citizens thereof had unanimously become biased and prejudiced against the defendants, and therefore were not qualified to give the defendants a fair trial. The allegation of the defendants respecting the bias and prejudice of the Judge and the Sheriff and his deputies, and the people of the county against them, was, as appears from the defendants' affidavit, upon information which they deposed they believed to be true. This application was denied by the Court.

In respect to the bias and prejudice of the Judge, which the defendants deposed to exist, as informed by their counsel, the *cases of People v. Williams (24 Cal. 33) [495] and People v. Mahoney (18 Cal. 185) are decisive, and adverse to defendants' position.

103-3

The charge made by the defendants that the Sheriff and his deputies were biased and prejudiced against them and had expressed opinions of their guilt, is made upon information derived from their counsel. If the charge was admitted to be true, we are not satisfied, notwithstanding the impropriety of those officers indulging in the expression of opinions which might contribute to defeat the due administration of justice, that it would be a good and sufficient ground to authorize the Court to change the place of trial. But the charge cannot be regarded as sustained. The affidavit pointed to the source of the defendants' information, which was conveniently accessible. In such cases the party relying upon facts and circumstances of which he is in-. formed and which he believes, should produce from the source or sources of his information, when he can conveniently do so, evidence of their truth. A rule requiring less than this would be attended with great inconvenience and operate in many instances to defeat the ends of justice.

The defendant's affidavit does not establish the fact that the people of the county of Butte were so prejudiced against him as to become disqualified to act as jurors in this case. The statement in this respect was upon his infor

Opinion of the Court-Currey, J.

mation and belief, which, standing alone, no Court in the exercise of a proper discretion could regard of sufficient probative force to authorize a change of the place of trial.

III. In the general charge of the Court to the jury, it is stated that the evidence in the case is mostly of a circumstantial nature. The defendants' counsel seems to have so considered it, and afterwards requested the Court to instruct the jury in these words: "In the application of circumstantial evidence the utmost caution should be used; it is always insufficient to convict or warrant a verdict, when assuming all to be proved which the evidence tends to

prove, some other hypothesis may still be true." [496] *The rule on the point to which this requested in

struction seems to have been directed, is that where a criminal charge is to be proved by circumstantial evidence, the proof ought to be consistent with the prisoner's guilt, but inconsistent with every other rational conclusion. (1 Greenl. Ev., Sec. 34.) The instruction requested is obscure, if not without any definite meaning whatever. The hypothesis supposed to be found in the sentence as the antithesis of the words "other hypothesis" is indefinite, and quite too obscure to serve as a guide to a jury in such cases. If the requested instruction was intended to inculcate the rule above stated, then the hypothesis to which it was sought to refer the proof should have been qualified as reasonable and consistent with such proof. In our judgment the Court properly refused to give to the jury this requested instruction.

IV. The defendant assigns as error that the instructions of the Court to the jury were not in writing. That they were not in writing this Court is, in effect, asked to presume, because it does not appear that they were in writing. But as we held in People v. Chung Lit (17 Cal. 322), and in People v. Garcia (25 Cal. 531), we hold in this case, that in the absence of evidence to the contrary, the presumption is that the instructions of the Court to the jury were in writing. If the Court erred in this respect, it was the business of the defendant to show it. It will not be presumed.

Opinion of the Court-Sawyer, J.

We have examined the several points which the defendants' counsel have deemed of sufficient importance to present for consideration, and are of the opinion the judgment should be affirmed.

Judgment affirmed.

Mr. Justice SHAFTER and Mr. Justice RHODES expressed no opinion.

*W. H. STONE ET AL. v. BUNKER HILL COP- [497] PER, GOLD AND SILVER MINING CO.

COURT COMMISSIONER.-A Court Commissioner has no jurisdiction to hear a motion or make any order in reference to the dissolution of an injunction, unless the motion is referred to him by the Court.

Query 2-Can an appeal be taken from an order of a Court Commissioner dissolving an injunction, without first applying to the District Court to correct the error?

APPEAL from the District Court, Eleventh Judicial District, El Dorado County.

The defendant was a corporation organized for mining purposes in El Dorado County, having its place of business at the Penobscot House, in said county.

The plaintiffs, who were stockholders in the corporation, commenced the action to enjoin the corporation from removing its place of business to San Francisco.

A preliminary injunction was granted. The defendants gave notice that they would move the Court Commissioner of El Dorado County for a dissolution of the injunction. The injunction was dissolved. The plaintiffs appealed from the order dissolving the injunction.

S. & G. E. Williams, for Appellants.

Blanchard & Hornblower, for Respondent.

By the Court, SAWYER, J.:

The only point made by the appellant is, that the Court Commissioner had no jurisdiction to dissolve the injunc

Argument for Appellant.

tion. The powers of Court Commissioners are prescribed by the Act of 1863, "concerning the Courts of justice of this State, and judicial officers." (Stat. 1863, 338, Sec. 40.) This was a contested motion brought before the Commissioner on notice, and not "referred to him by the Court for determination." We think the Commissioner had no jurisdiction to hear the motion, or make the order with[498] out a reference by the Court in pursuance of the second clause of section forty. No question is made

as to the regularity of the appeal without first applying to the District Court to rectify the action of its subordinate officer.

Order reversed.

CHARLES COMBS v. ANDREW JELLY.

CERTIFICATE OF PURCHASE OF SEMINARY LAND.-An unintentional mistake or misrepresentation in an affidavit made by an applicant to purchase land of this State as a portion of the seventy-two sections granted by Congress to this State for a seminary of learning, does not render the certificate of purchase void, so that it may be attacked collaterally by one who brings an action against the purchaser to recover possession of the same, and does not connect himself with the title of the Government. WHEN STATE CERTIFICATE OF PURCHASE VOID.--The question discussed in the opinion whether a certificate of purchase of land, being a contract between the Government and the purchaser, will be declared void for fraud, unless under similar circumstances a contract between two private persons would be held void.

CAN STATE LAND CERTIFICATE BE ATTACKED COLLATERALLY.--Question discussed in opinion whether a State certificate of purchase of land, if not absolutely void, may be attacked collaterally.

STATE CERTIFICATE OF PURCHASE OF LAND.--A certificate of purchase of land from the State, is prima facie evidence of legal title in the purchaser.

APPEAL from the District Court, Second Judicial District, Tehama County.

The facts are stated in the opinion of the Court.

George Cadwalader, for Appellant, argued that the defendant could not be treated as the trustee of the plaintiff for one-half the land in an action at law. He also contended that the defendant could never be treated as the

Opinion of the Court-Rhodes, J.

trustee of the plaintiff, unless he could force the plaintiff to pay one-half the cost of procuring the title, and cited Flagg v. Mann (2 Sum. 487). He also contended that a purchase of public land never inured to the benefit of a person other than the purchaser, unless there was an express contract to that effect, and cited Bryant v. Hendricks (5 Clarke, Iowa, 257).

W. S. Long, for Respondent.

*By the Court, RHODES, J.:

[499]

It appears in this case that on the 24th of March, 1862, the plaintiff commenced an action against Elijah Shepherdson and M. D. Shepherdson to recover a certain sum of money, and on that day caused an attachment to be issued and levied upon the premises in controversy. Judgment was afterwards entered, execution was issued, the premises were sold and conveyed by the Sheriff to the plaintiff, the deed being executed September 12, 1863. In 1858 Elijah Shepherdson and M. D. Shepherdson were in possession of the premises, and so remained up to September, 1861, when M. D. Shepherdson left the premises. On the 25th of February, 1862, Elijah Shepherdson sold and conveyed the premises to the defendant. The conveyance purports to be executed by E. and M. D. Shepherdson, but was in fact executed only by Elijah Shepherdson. On the 8th of December, 1863, the defendant made an application to the State Locating Agent to locate the premises as a portion of the lands to which the State was entitled under the grant of seventy-two sections of land by Congress to the State for a State Seminary. Such proceedings were thereupon had that the location was made, and was approved by the proper officers on the part of the State and by the Register and Receiver of the United States Land Office at Marysville; and on the 5th of October, 1863, the Register of the State Land Office issued to the defendant a certificate of purchase.

The plaintiff sued in ejectment to recover the possession