Battersby v. Abbott

9 Cal. 565

• Court: California Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Terry, C. J., delivered the opinion of the Court—Field, J., and Burnett, J., concurring..

The objections to the statement in this case are not well taken.

The Judge certifies that the statement is substantially correct. This is entirely sufficient. It is not necessary that the testimony should be stated in the precise words of each witness; the substance of the testimony is all that is required to be set out in the statement.

It is no objection to the statement that it does not affirmatively show that the settlement was upon proper notice, or in the presence of both parties. In the absence of evidence to the contrary, the presumption of law is in favor of the regularity of all official acts.

From the statement, as settled, it appears that the Judge instructed the jury “ to find for the defendant, as the plaintiff had failed to prove a redemption.”

This instruction was clearly erroneous. The question of redemption was the main point in issue between the parties. It was a question of fact for the jury, and as the evidence was conflicting, the instruction amounted to a charge on the weight of evidence.

Judgment reversed, and cause remanded.