evidence could have had no substantial prejudicial effect. It was proven, without contradiction, that Marriott did not have a pistol, or other weapon, upon his person. The fact was established. Not having any pistol to draw, he could not have made the motion with the intent to draw it. There was, therefore, no real danger to Williams, no necessity for him to shoot in self-defense; nothing, at most, but a mere appearance of danger. If the suspicious motion was made, as claimed, it must have been one of those involuntary movements of the arms which many people make in running, which Williams, in his combative mood, mistook for a motion to draw a pistol, or it may have been a pretense of such motion, made by Marriott to intimidate the defendants and prevent their further pursuit or gain time to reach a place of safety. If it was the latter, it would be entirely consistent with the feeling of fear and the desire for protection manifested in the bedroom, and proof of the existence of one would not tend to disprove the other. If it was the mere accidental and unconscious motion made in running, it would have no significance at all with respect to his state of mind, and the proof of the subsequent fear and desire for protection would be proof of an immaterial fact. In either case the evidence objected to could have produced no injury to the defendants' case.

With regard to the blows, inasmuch as the verdict was in favor of Beale, who alone inflicted them, we must assume that the jury held them to be justified, and hence the effect of the evidence of locking the doors on this part of the case was not injurious.

What has been said is also applicable to the objection to the admission of similar evidence, introduced in rebuttal, in connection with proof of declarations by Mrs. Marriott, inconsistent with her testimony as a witness for plaintiff, and nothing further need be said with regard thereto.

The defendants had been acquitted upon a criminal prosecution for the assault upon Marriott. On cross-examination Marriott testified, in answer to the defendants' questions, that he was the prosecuting witness in that case. The court refused to allow proof of the fact of acquittal of the criminal charge. The evidence was pertinent only to show his feeling and bias against the defendants and thereby to impeach his credibility as a witness. Even if we concede that natural chagrin at the

defeat of the criminal prosecution might have added to the intensity of his feeling and that, in general, the proof would be admissible for that purpose solely, it would be harmless error here, where the feeling was freely admitted and was manifest throughout the case, and where the circumstances were such that it would have been inferred by the jury, even if there had been no proof or exhibition of it.

The complaint alleged malice on the part of the defendants and asked exemplary damages. It was therefore proper to allow evidence of the defendants' wealth. (Sloan v. Edwards, 61 Md. 100; Webb v. Gilman, 80 Me. 177, [13 Atl. 688]; Draper v. Baker, 61 Wis. 450, [50 Am. Rep. 143, 21 N. W. 527]; Brown v. Evans, 17 Fed. 912; 3 Cyc. 1095; 2 Am. & Eng. Ency. of Law, 997; 1 Ency. Ev., 1004.) Such evidence is admitted to enable the jury to determine what amount of punishment would be inflicted upon the defendant by compelling him to pay a given sum of money. Hence it is proper to show his wealth at the time of the trial, as was done here, instead of at the time of the injury.

In mitigation of damages the defendants pleaded the publication of the articles above referred to, which, as they allege, were defamatory and gave them just cause for great indignation. The court instructed the jury that these matters could not be considered in reduction of the actual damages accruing from his pain, physical injuries, loss of time and moneys expended, or any other element of actual damages, but only in reduction of, or set-off against, the exemplary damages. That this was a correct exposition of the law is well settled. (Goldsmith v. Joy, 61 Vt. 488, [15 Am. St. Rep. 923, 17 Atl. 1010]; Badostain v. Grazide, 115 Cal. 429, [47 Pac. 118]; Fenelon v. Butts, 53 Wis. 351, [10 N. W. 501]; Corcoran v. Harran, 55 Wis. 122, [12 N. W. 468]; Donnelly v. Harris, 41 Ill. 128.)

The assault and injury to the plaintiff were admitted. The answer that they were inflicted in self-defense was an affirmative defense, which it was necessary for the defendants to establish by a preponderance of the evidence. A person who sues for a personal injury at the hands of another is not bound to prove, in the first instance, that he was not the aggressor and that the defendant did not act in self-defense. He must prove the assault and the injury, if they are denied. In so doing, he may incidentally bring out facts tending to

support a plea of self-defense, and if so the defendant will be entitled to the benefit of such evidence. But the burden of proof to establish the self-defense remains with the defendant. There is no presumption that a bodily injury is justifiable, and the justification must be proven by him who asserts it. The instructions of the court embodying these propositions were properly given. (Sellman v. Wheeler, 95 Md. 751, [54 Atl. 515]; Gizler v. Witzel, 82 Ill. 326; Johnson v. Strong, 22 Ky. Law Rep. 577, [58 S. W. 430]; Phillips v. Mann, 19 Ky. Law Rep. 1705, [44 S. W. 379]; Rhinehart v. Whitehead, 64 Wis. 42, [24 N. W. 401].)

In actions against two or more persons for a single tort, there cannot be two verdicts for different sums against different defendants upon the same trial. There can be but one verdict for a single sum against all who are found guilty of the tort. All who are guilty at all are liable for the whole amount of the actual damages arising from the injury inflicted, irrespective of the degree of culpability. (Huddleson v. Borough, 111 Pa. St. 110, [2 Atl. 200]; McCool v. Mahoney, 54 Cal. 492; Nichols v. Dunphy, 58 Cal. 607; Everrord v. Gabbert, 83 Ind. 492; Carney v. Reed, 11 Ind. 417; Cooley on Torts, p. 136; 1 Sutherland on Damages, sec. 140.) The court did not err in instructing the jury to this effect.

There are some other objections to the charge to the jury and there are other rulings in the admission of evidence which are questioned, but they are all either covered by what we have said or they are too trivial to require notice.

The order is affirmed.

McFarland, J., Lorigan, J., Angellotti, J., and Beatty, C. J., concurred.

Rehearing denied.

[Sac. No. 1461. Department One.-January 23, 1908.]

THOMAS FERGUSON et al., Respondents, v. BASIN CONSOLIDATED MINES (a Corporation), Appellant.

MINING CLAIMS-TRESPASS-BOUNDARY LINE-EVIDENCE-INADMISSIBLE DECLARATIONS OF SUPERINTENDENT OF MINE.-In an action to recover damages for alleged trespass by defendant on plaintiffs' mining claims, and the removal of gold-bearing earth therefrom, where the location of plaintiffs' boundary line is involved, it was error to admit in evidence for the plaintiffs the declarations of the superintendent of defendant's mine, tending to support plaintiffs' contention as to the location of the boundary line, without any showing as to the extent of his authority beyond the mere fact that he was superintendent in charge of defendant's mine.

ID.-FACTS NOT AFFECTING INADMISSIBILITY-INTEREST IN PLAINTIFFS' MINE TRANSFER OF MINE TO DEFENDANT DECLARATIONS AFTER TRANSFER.—The inadmissibility of the declarations of the superintendent of the defendant's mine cannot be affected by the fact that he claimed an interest in plaintiffs' mine adverse to the defendant, nor by the fact that he had conveyed to the defendant the mine worked by it, where the declarations were made after such transfer, and not while he was holding the title transferred. ID. TITLE OF PLAINTIFFS UNDER EXECUTION FROM JUSTICE'S COURTJURISDICTION TO SERVE SUMMONS OUT OF COUNTY-RECITAL IN DOCKET.-Where plaintiffs claimed title to their mine under a sale on execution from a justice's court, and the summons was served out of the county, the recital in the docket of the justice of the return of service of such summons by the sheriff of another county, is no evidence thereof, the justice not being required to recite the service of summons in his docket.

ID.-AFFIRMATIVE SHOWING REQUIRED.-In order to sustain the limited and special jurisdiction of the justice's court to render a judgment by default upon service of a summons out of the county, an affirmative showing must be made that a certificate was attached to the summons by the county clerk that the person issuing it was at its date an acting justice of the peace, and that such summons was properly served.

APPEAL from a judgment of the Superior Court of Placer County. J. E. Prewett, Judge.

The facts are stated in the opinion of the court.

Myrick & Deering, F. P. Tuttle, Henry G. Tandy, and T. W. Hubbard, for Appellant.

John M. Fulweiler and L. L. Chamberlain, for Respondents.

SLOSS, J.-The plaintiffs, claiming to be the owners and entitled to the possession of an undivided three fourths of a placer mining claim in Placer County, brought this action to recover damages from the defendant, which, it is alleged, unlawfully entered upon plaintiffs' ground and took therefrom gold-bearing earth and gravel of the value of five thousand dollars. The complaint asks judgment for three. thousand seven hundred and fifty dollars, three fourths of the value of the earth and gravel so taken. The cause was tried without a jury, and the court, finding in favor of the plaintiffs' ownership as alleged, and that the defendant had entered and taken away earth and gravel of the value of $3,573.83, gave plaintiffs judgment for $2,679.77. The defendant appeals from the judgment and from an order denying its motion for a new trial.

1. The property claimed by plaintiffs is known as the Harkness claim. The defendant was in possession of ground lying to the north of the Harkness claim. Certain ground had been worked by the defendant, and the dispute between the parties was whether this ground lay north or south of the northerly boundary line of the Harkness claim. The contention of the plaintiffs was that their northerly boundary line ran north of the ground worked by the defendant, and that this ground was therefore included within their claim. The plaintiffs, after showing that one Whitney was superintendent of defendant's mine, were allowed to show, over proper objection by the defendant, that Whitney had made statements and admissions tending to support plaintiffs' contention as to the location of the boundary line. This was error. There was no showing of the extent of Whitney's authority beyond the fact that he was in charge of the defendant's property. An agent cannot bind his principal by declarations against the principal's interest, unless the making of such declarations is within the scope of the agent's authority. As superintendent in charge of a mine, Whitney had no authority to make any statements regarding the extent of the ground claimed or owned by his