affirmed or reversed, simply ordered the defendant to answer and proceed to the trial of an action wherein there stood, unreversed, a judgment against the plaintiff. The petitioner has never pleaded to the jurisdiction of the Superior Court, or in any form objected that the Court had no power to make the order compelling it to answer. Doubtless, when petitioner shall (avoiding a general appearance to the merits) object in the Superior Court to its order, that Court will refrain from further proceedings, except to set aside the order made in excess of its jurisdiction, and to enter judgment affirming or reversing the judgment of the Justice of the Peace. Writ denied and proceedings dismissed. IN BANK. | Filed January 26, 1882.] No. 6907. EMERIC vs. ALVARADO ET AL. By the COURT: The submission of this cause heretofore made having been vacated that further discussion may be had by briefs of counsel, the attention of counsel is called to the following questions, on which they are directed to file briefs: 1st. Are the facts found which render the assessments invalid in the findings of facts in regard thereto, numbered 27, 28, 29, 30, 31, 32? 2d. Should not such fact be found? 3d. Why did not the Justices' Court have jurisdiction of the cases mentioned in the findings of fact 31 and 32? 4th. Should not the substance of the papers or documents in regard to such judgment in said such Courts have been found as facts? 5th. Is not a judgment of a District Court, in actions to recover delinquent taxes for the amount of $300 and upwards, when not reversed, conclusive on the point that the assessment for taxes was properly and legally made? 6th. Is not the same true of a Justice's Court, when the suit is to recover delinquent taxes for an amount not exceeding $300, and the legality of the taxes is not involved? 7th. Is the order appointing a Receiver in this cause an appealable order? May it not be treated as an injunction order, and as such appealable? 8th. Is the said order appointing a Receiver erroneous ? 9th. Does not the fact stated in the bill of exceptions, on page 1502 of the transcript, that no service of summons was made on the infants there mentioned, render the decree appealed from erroneous? 10th. Should not such infants have been made parties to the action by order and process served on them? 11th. What is the meaning and proper construction of Section 766 of the Code of Civil Procedure, as to the binding force of the interlocutory judgment on the infants above referred to? 12th. Is the provision of Section 766 of the Code of Civil Procedure in relation to the binding character of the judgment constitutional, if construed to mean that a judgment in partition is conclusive on persons, including infants, who are known, claiming under parties who have died before final judgment, when such persons have not been made parties to the action? Is such a decree in partition, affecting the rights of such persons, due process of law? Counsel are at liberty, if they choose, to discuss further any other question in the cause. In arguing the foregoing questions, counsel are directed to refer to and point out all the testimony in the case bearing on the points discussed, referring to the bill of exceptions by folio and page of transcript, where such testimony is to be found. DEPARTMENT No. 1. [Filed January 19, 1882.] HUMPHREYS, RESPONDENT, VS. HARKEY, APPELLANT. FINDING-SALE. The Court found that the sale was followed by an immediate delivery and an actual and continued change of possession: Held, the evidence supported the finding. Appeal from Superior Court, Sutter County. L. J. Ashford, for appellant. Stabler & Bayne, for respondent. By the COURT: We cannot say that the evidence is insufficient to sustain the findings of the Court below, that the sale of the property in controversy was followed by an immediate delivery and an actual and continued change of possession. Judgment and order affirmed. IN BANK. [Filed December 29, 1881.] EX PARTE HOPE ON HABEAS CORPUS. ATTEMPT TO COMMIT BURGLARY-PUNISHMENT-PENAL CODE. The crime of attempting to commit burglary in the first degree, is punishable under Subdivision 1 of Section 664 of the Penal Code. In effect, the Legislature has said that (in the absence of another express provision) every person who is convicted of an attempt to commit an offense, which offense when completed is punishable by imprisonment in the State Prison for a term less than five years, but which cannot exceed or extend to that period, is punishable by imprisonment in the county jail for not more than one year; and that every person who is convicted of an attempt to commit an offense, which offense when completed is punishable by imprisonment in the State Prison for five years, or more, is punishable by imprisonment in the State Prison for a term not exceeding one half the longest term of imprisonment prescribed upon a conviction of the offense so attempted. Foote and Coogan, for petitioner. D. L. Smoot, contra. Ross, J., delivered the opinion of the Court. The prisoner was convicted of the crime of attempting to commit burglary in the first degree, and was subsequently sentenced to imprisonment in the State Prison for the term of seven and a half years-being one-half of the longest term of imprisonment prescribed for a conviction of the offense so attempted. He seeks to be discharged from imprisonment on habeas corpus, upon the ground that the offense of which he was convicted is punishable under Subdivision 2 instead of Subivision 1 of Section 664 of the Penal Code. That section, so far as necessary to be considered, is as follows: "Every person who attempts to commit any crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempts, as follows: "1. If the offense so attempted is punishable by imprisonment in the State Prison for five years, or more, or by imprisonment in a county jail, the person guilty of such attempt is punishable by imprisonment in the State Prison, or in a county jail, as the case may be, for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction of the offense so attempted. "2. If the offense so attempted is punishable by imprisonment in the State Prison for any term less than five years, the person guilty of such attempt is punishable by imprisonment in the county jail for not more than one year.' In making this enactment the Legislature was obviously classifying the punishment to be imposed on those convicted of attempts to commit certain crimes. The first class (provided for in Subdivision 1) embraces those cases where the offense attempted is punishable in the State Prison for five years, or more, or by imprisonment in a county jail, and the second class (provided for in Subdivision 2) embraces those cases where the offense attempted is punishable by imprisonment in the State Prison for any term less than five years. In effect, as we construe the statute, the Legislature has said that (in the absence of another express provision) every person who is convicted of an attempt to commit an offense, which offense when completed is punishable by imprisonment in the State Prison for a term less than five years, but which cannot exceed or extend to that period, is punishable by imprisonment in the county jail for not more than one year; and that every person who is convicted of an attempt to commit an offense, which offense when completed is punishable by imprisonment in the State Prison for five years, or more, is punishable by imprisonment in the State Prison for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction of the offense so attempted. It results that the case of petitioner comes within the provisions of Subdivision 1 of Section 664; for he was convicted of an attempt to commit burglary of the first degree, and burglary of the first degree is punishable by imprisonment in the State Prison for a time which may extend to fifteen years. Burglary of the second degree is punishable by imprisonment in the State Prison for not more than five years. The Legislature evidently deemed the one a more heinous crime than the other, for the reason, doubtless, that one is committed in the night-time and the other in the day-time. And since, in fixing the maximum punishment of the complete offense, the Legislature has prescribed three times as much in the one case as in the other, it is unreasonable to suppose that it intended to prescribe the same punishment for an attempt to commit the one as for an attempt to commit the other, which would be the result of the construction contended for by the petitioner. At all events, the language employed does not, in our opinion, admit of that construc tion. Writ dismissed and prisoner remanded. We concur: Morrison, C. J., Myrick, J., McKinstry, J., Sharpstein, J., Thornton, J. DEPARTMENT No. 2. [Filed December 30, 1881.] EMERSON, APPELLANT, VS. WEEKS, RESPONDENT. PRACTICE-NONSUIT-CUTTING TIMBER-CONTRACT. The action was to recover the value of timber cut by defendant from plaintiff's land, under an agreement between the parties that defendant would pay therefor whatever it was reasonably worth. The complaint also averred that defendant cut and removed timber of the value of $3,600, for which he had not paid, etc. Upon the opening statement of counsel the above facts (with other matters not affecting the cause of action) were detailed, and the Court nonsuited the plaintiff. Held, error. It is the better practice "not to nonsuit on an opening statement unless it is clearly made, and it is plainly évident therefrom that no case can be made out. It is much better to permit the plainiiff to put in his testimony, and that the motion should be then made." Appeal from Superior Court, Santa Clara County.. THORNTON, J., delivered the opinion of the Court: On the trial of this cause the plaintiff was nonsuited on the opening statement of his counsel. The action was brought as shown by the complaint to recover for timber cut by defendant from plaintiff's land, situated in the county of San Mateo, under an agreement made between the parties to this action, the defendant agreeing to pay therefor whatever it was reasonably worth. It is averred that defendant under such agreement on the fifteenth of July, 1877, entered on said land and cut and removed therefrom 1,200,000 feet of timber then growing thereon; that the timber so cut and removed was worth $3 per thousand feet and of the aggregate value of $3,600; that defendant has not paid the same or any part of it, though often requested so to do, and refuses to pay it or any part of it, and that the said sum is owing and unpaid from defendant to plaintiff. When the counsel for plaintiff made his opening statement a long colloquy ensued between the counsel and the Court. The statement was not made in the clearest manner, but from it, as made, it can be readily perceived that defendant agreed to pay the plaintiff for whatever timber was cut and removed by him from the tract of land, what it was reasonably worth; that he had cut and removed a large amount of timber which was of value, and that he had not paid for it. In making his statement, the counsel introduced several matters not affect |