the defendants, because the evidence shows that plaintiff held the older and superior title-or, in other words, that the finding or decision was contrary to the evidence, because the evidence showed that the plaintiff held the older and superior title - it has no proper place in a statement on appeal. A statement on appeal and a bill of exceptions are substantially the same-they differing only in respect to the time and manner of settlement, and in some particulars in form-and their purpose is the same, and that is, to present for review questions of law. The question whether the evidence is sufficient to sustain the verdict, finding or decision, can be presented only on motion for a new trial. It cannot be presented by means of a statement on appeal. It is proper here to advert again to the first three grounds of the statement on appeal. Counsel for plaintiff have discussed under one of these grounds-perhaps the fifth, but they do not designate which-the effect of the evidence admitted in the cause for the purpose of showing that the plaintiff held the title to the premises. This practice is inadmissible. It has already been stated that the question does not arise upon the fifth ground; and it is perfectly clear that it does not arise upon either of the first three grounds. The question of the admissibility of evidence is quite different from the question of its value, weight or effect. In a contest for the possession of lands, a party who offers a deed, asserting that he claims under it-if the deed be not void on its face, or if it do not appear there from that it does not relate to the land in controversy—is entitled to have it admitted in evidence. Perhaps other grounds for its exclusion, than those stated, may be found, but it is beyond all question, that it should not be excluded, because the adverse party has adduced in evidence a deed, which, as he claims, shows a better title in himself. This would appear obvious; for the relative value and effect of the deeds could not be determined until they had been submitted to the Court or jury for consideration. The question whether the survey, confirmation of the survey, or the patent of the Jimeno rancho was admissible in evidence, does not involve the Opinion of Crockett, J., concurring. question as to the value or effect of either of those documents, when compared with the survey and confirmation of the survey of the Colus rancho. The latter question did not arise in the Court below on the objection to the admission of those documents, and cannot be considered here, in reviewing the action in that respect of that Court. Were it permissible to disregard the recognized rules of practice, and, under the objections to the admission of evidence, to determine the effect of such evidence to determine whether the evidence sustains the decision then a motion for a new trial, in order to have the question of fact reviewed, would be useless, and the unbroken current of decisions in this State, on that point, is wrong. The evident purpose of the plaintiff, on this appeal, is to defeat the Jimeno patent, by showing the prior grants to Jimeno, exceeding eleven leagues of land, and to overcome the effect of the decree confirming the survey of the Jimeno rancho, as declared on the former appeal. The first point has already been sufficiently noticed. Had the record been so prepared as to present the second point, the Court would not be at liberty to re-open the discussion, and again pass on the point. The decision of that question on the former appeal reported in 38 Cal. 60-became the law of the case, and this Court, no more than the District Court, would be justified in disregarding it. Judgment affirmed. Mr. Justice TEMPLE, being disqualified, did not sit in this case. Opinion of CROCKETT, J., concurring: On the former appeal in this case (38 Cal. 60), I was of opinion that, on the facts as then presented, the plaintiff had the better title, and was entitled to recover. Subsequent reflection has strengthened my conviction in the correctness of the views expressed in my dissenting opinion. But a majority of the Court arrived at a different conclusion, and, as the case was then presented, held that the defendant had the better title; and, on well settled principles Opinion of Crockett, J., concurring. this decision, whether right or wrong, became the law of the case in all its subsequent stages. The first subject of inquiry, therefore, is whether the case, as made on the second. trial, was materially different from that decided on the former appeal, for it is evident the former decision must control, unless the case, as now presented, is materially different from that on the former appeal. After a careful examination of the record, I discover only two particulars in which the case, as now made, differs from that on the former appeal. On the first trial the patent for the "Jimeno Rancho" was not put in evidence, but in lieu thereof it was admitted that a patent had issued. On the last trial, however, the patent itself was produced in evidence, from an inspection of which it appears to contain as part thereof, a copy of the official survey on which the patent is founded, and on the plat of said survey there is delineated by dotted lines a tract representing the "Colus Rancho," confirmed to Semple, so far as the same conflicts with the survey of the "Jimeno Rancho." On the next succeeding page of the patent is found a memorandum by the Commissioner of the General Land Office, to the effect that the survey of the "Jimeno Rancho" embraces a portion of the survey made for the "Colus Rancho, confirmed to C. D. Semple, as shown by dotted lines in the foregoing, said Colus covering part of Jimeno, as particularly indicated on the annexed diagram by a yellow shade." Then follows the diagram referred to, showing the survey of the Colus Rancho and its interference with the Jimeno survey. There is nothing in the granting words of the patent, nor in any other portion of it except that already referred to, to indicate that so much of the Colus survey, as interferes with the Jimeno survey, was intended to be excepted from the operation of the patent. * * * Including the interference between the two surveys, the patent embraces precisely the quantity which was confirmed to the patentee; and, of course, if the interference be excluded, the quantity embraced in the patent would, to that extent, be less than the quantity confirmed. The plaintiff, however, insists that the dotted lines on the plat of the sur Opinion of Crockett, J., concurring. vey, with the explanatory memorandum of the Commissioner of the General Land Office, accompanied by a diagram of the official survey of the Colus Rancho, make it apparent that it was intended to except from the operation of the patent the land included in the Colus survey. He maintained that the memorandum of the Commissioner could not, reasonably, have been inserted in the patent for any other purpose than to show that it was not intended to embrace the Colus survey. In support of this view he refers to several adjudicated cases, and particularly to the case of Lafayette's heirs v. Kenton (18 Howard, 197). But an examination of the case shows that the patent, on its face, expressly excepted in that case certain lands designated on the diagram annexed to the patent, and all the cases cited were of a similar character. If the patent in the case at bar, had, in terms or by necessary implication, contained a similar reservation of the Colus ranch, these authorities would have been decisive of the question, if any authority had been needed on so plain a proposition. But in this case there is no reservation either in terms or by necessary implication, and whatever may have been the purpose of the Commissioner in inserting his memorandum in the patent, it cannot be allowed to control the granting words of that instrument, which expressly convey to the patentee all the lands within the exterior limits of the Jimeno survey. If it had been intended to exclude the interference from the patent, the deficiency thus created would, doubtless, have been cured by including a like quantity at some other place within the exterior limits of the grant, in order that the patent might conform to the decree of confirmation in respect to quantity. I am, therefore, of opinion that the patent was properly admitted in evidence, and that it does not show on its face that any part of the Colus ranch was excepted from its operation. The only other new proof offered by the plaintiff, on the second trial, was evidence tending to show that prior grants had been made by the Mexican Government to Jimeno; but I think this proof was clearly inadmissible for the reasons stated in the opinion of the Chief Justice. I therefore concur in affirming the judgment. INDEX. -- ABANDONMENT. 1. ABANDONMENT LOSS OF PRESUMPTIVE TITLE BY.-A title presumptively 2. IDEM. To constitute an abandonment, there must be a concurrence of the - 8. IDEM INTENTION.—The intention to abandon is not necessarily infer- ACCESSORY BEFORE THE FACT. See CRIMINAL PRACTICE, 3. ACCESSORY AFTER THE FACT. See CRIMINAL LAW, 5. ACCIDENT. 1. UNAVOIDABLE ACCIDENT.- The ignition of combustible substance lying along ACTION TO REVIEW JUDGMENT. See PLEADING, 2, 3. ACTION FOR MEDICAL SERVICES. 1. ACTION FOR MEDICAL SERVICES.—A physician employed to attend a patient |