ent was at the time about 47 or 48 years old, weighed 170 pounds, and was apparently in good health. He testified that after the first blow he was dazed, and did not realize what afterwards happened. The appellant was over 60 years old, weighed 128 pounds, was in bad health, and subject to hemorrhages of the lungs. He testified that he was nervous and excitable; that respondent was "fighting drunk;" that he thought respondent wanted to fight, and, as he (appellant) was too old to fight respondent with his fists, he thought he would pick up something that he could defend himself with.

Whether or not the business and shop of appellant were of such a character as to carry an implied invitation to the public to enter the shop for business purposes need not be determined, for it is clear that respondent did not enter for any purpose of business. He was clearly a trespasser, at least from the moment he commenced to unlawfully and violently manipulate the said machines. The case, then, is within the rule that a man's house is his castle, and that he has the right to defend it against an intruder with all the force reasonably necessary to the defense. Of course, in such a case, a man would be liable for the result of a brutal use of force clearly beyond what the occasion warranted; but, in determining such a question, due allowance should always be made for the difficulty which a reasonable man would have in measuring, under exciting circumstances, the exact amount of force necessary; and it is extremely important that a jury, in passing upon such a case, should not in any way be misled by an instruction of the court.

We think that the jury were misled by instructions 4 and 5 given at request of plaintiff.

In instruction 5 the court told the jury that, "before the defendant would have been authorized to use force to remove plaintiff from his place of business, he should have requested plaintiff to depart, and then," etc. Now, this instruction either assumes that the evidence left some doubt as to whether appellant told respondent to leave before any force was used; or else the jury were given the impression that there should have been a "request" couched in some polite and mildmannered language different from that used by appellant. But there was no conflict at all in the evidence on the point. Respondent himself testified as follows: "While I was in there, Mr. Briggs came in, and ordered me out of the shop;" and then, after some conversation, "he said, 'You get out of here, or I will pound your head with a hammer,' or something of that sort." The jury, therefore, may well have thought that the language used by appellant did not constitute a "request," within the meaning of the said instruction; and it is difficult to perceive what other meaning they could have attached to it; and, indeed, the respondent seems to insist that he was not called upon to leave

because appellant had not requested him in gentler tones to do so. But, whatever might be thought of appellant's language in a school of politeness, it was sufficient in a court of law if it plainly told respondent to go.

*

We think, also, that instruction 4 was erroneous and misleading. By that instruction the jury were told that "if the jury finds from the evidence that the plaintiff, at the time of the injury complained of, was not trying to injure the defendant, or his property, then any force used against plaintiff * was wrongful." From this instruction the jury might well get the impression that if, when the force was used, the respondent was not, at that very moment, engaged in the act of injuring appellant's property, that appellant had no right to use force, and such impression would have been a wrong one. When respondent went into the room, and commenced endangering appellant's property, as above stated, he became a trespasser, and appellant had a right to put him out, and to use sufficient force to do so; and the fact that, at the moment. when the force was used, respondent was not then handling the machines, was of no consequence.

We think, also, that the court erred in a ruling upon the admissibility of evidence in a matter affecting the amount of damages. The respondent introduced as evidence tending to prove the probable future duration of his life certain mortuary tables, which, under the authorities, were admissible for that purpose. The witness who identified the tables was asked by appellant the question, "Can you tell what insurable persons are?" and the objection by respondent that it was not in cross-examination was properly sustained. But we think that the court erred in sustaining the objections of respondent to appellant's question to his own witnesses, as follows: "Do you know his [Townsend's] habits as to sobriety?" The mortuary tables had been introduced by respondent as evidence tending to show what was the probable expectation of life of persons of his age. These tables, as we understand it, are based upon what experience shows to be the average expectation of life of all persons of that age; and therefore, in rebuttal of that evidence, appellant was entitled to prove any fact tending to show that respondent's expectation of life was below such average. We apprehend that an insurance company would not take the same risk upon every man of respondent's age without particular inquiry as to his condition, upon the theory that the average expectation of life of persons of his age was a certain number of years. If we assume that the tables established a prima facie case of respondent's expectation of life, the appellant clearly had the right to overcome that prima facie case by showing facts which lessened that expectation; and the fact that respondent had the habit of drinking liquor to excess, or was

The

a drunkard, was certainly a fact proper to be proved in that connection. It is contended that the question was properly excluded because it did not refer to the time of the alleged injury, which was about two years before the trial; but we see nothing in that Contention. As "habits" are not formed hurriedly, it is probable that the question would have been proper as a preliminary one, even if the inquiry should have been confined to the date of the injury; but we do not see why it should have been so confined. mortuary tables were introduced to show what, at the time they were introduced, that is, at the time of the trial,-respondent's probable expectation of life was; and any fact which, at that time, lessened that expectation, was admissible. Suppose that after the date of the injury respondent had been attacked by some disease which is generally fatal, such as cancer or consumption; would not that fact have been admissible in evidence? We see no other points necessary to be specially noticed. The judgment and order appealed from are reversed, and the cause remanded for a new trial.

1. A client cannot recover of his attorney damages on account of negligence, in the absence of any injury to the client caused by such negligence.

2. In an action by an attorney to recover for professional services, defendant claimed damages for incompetency and negligence, and there was evidence that he employed plaintiff to prosecute certain actions to judgment for a fixed sum in each case, and that plaintiff was discharged before judgment for negligence and incompetency, in failing to file lis pendens in two foreclosure suits. Held, that evidence that plaintiff explained to defendant the effect of filing and failure to file such notices, and the probable expense, and that defendant said he did not want to spend the money for filing them, was admissible.

3. In such case it is not error to exclude evidence that part of the property covered by one of the mortgages plaintiff was employed to foreclose was conveyed by the mortgagor before, but the deeds were not recorded until after, the foreclosure suit was commenced, where it appears that the remaining property sold for enough to satisfy defendant's judgment.

4. Where part of the services for which plaintiff seeks to recover consisted in examining the title to a lot, it is error to exclude evidence that, through the advice of plaintiff that the title was clear, defendant purchased the lot, and was afterwards compelled to redeem it from a prior tax lien.

5. It is not unprofessional conduct on the part of an attorney to bring an action on a just claim against a nonresident, and serve summons by publication, when employed to do so, with the hope that possibly the defendant therein will pay the judgment obtained, on its being sent to the place where he resides, though

such attorney knows such action cannot be maintained, for want of jurisdiction.

6. But if the attorney advised his client in such case, that the service by publication was good, and a valid judgment could be ob tained, such attorney cannot recover for serv ices rendered therein.

7. Where an attorney renders services in various matters, and the client makes a partial payment "on account of fees for legal serv ices," the attorney cannot credit the money on certain items of his account, so as to place them beyond controversy.

Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; J. W. McKinley, Judge.

Action by A. G. Hinckley against August Krug on an account for professional services rendered by plaintiff, as an attorney, for defendant. From a judgment entered on the verdict of a jury in favor of plaintiff, and from an order denying his motion for a new Reversed. trial, defendant appeals.

Lacey & Trask and D. K. Trask, for appellant. A. G. Hinckley and Calvin Edgerton, for respondent.

TEMPLE, C. This appeal was taken by the defendant from the judgment, and from the order refusing a new trial. It is an action to recover $675 for services as attorney at law, alleged to have been rendered defendant "between the 1st day of June, 1889, and the 1st day of June, 1891, in prosecuting and defending suits, and for like services, at his request, in drawing, copying, and engrossing of divers conveyances, deeds, and other paper writings, and for divers journeys and other attendances," etc. The defense consists of a general denial and of six counterclaims for damages alleged to have been caused by the negligence and incompetency of plaintiff as attorney, and of a demand for $125, money due from plaintiff to defendant. The case was tried with the aid of a jury, which rendered a general verdict against defendant for $325. The defendant not only attempted to recoup damages resulting from alleged uegligence and incompetency of the plaintiff, but he claimed at the trial that such negligence and incompetency justified defendant in discharging plaintiff as his attorney, and that he was compelled to and did discharge him before the services were completed, and, further, that plaintiff had contracted to perform the services for a stipulated compensation for the entire services. Upon this point the court properly instructed the jury that under such circumstances, the contract being an entirety, plaintiff could not recover for his services. It is important to bear in mind, therefore, that the question of negligence is presented in two ways: First, on a claim to recover damages, and as a justification for the discharge of plaintiff as his attorney before the completion of the stipulated service. An action could not be maintained on account of tne negligence or incompetency unless injury had resulted to the client, but the same negli

that we could levy upon, no attachment proceedings could be brought. I advised Mr. Krug against bringing the Thacker suits. I told him he could not recover anything on any judgment he might obtain. But, as he insisted on bringing the suit, I did the best I could. The object of the suit was not to recover any property, but was for a bluff,-to bulldoze, embarrass, and confound those defendants,-and the publication of summons in that case was not for the purpose of getting service on the parties." And again: "I made as much fun of it at the time as I could; tried to persuade him from it, saying that I didn't believe that it would have any effect whatever." Now, disregarding the motives stated by the witness, what was there in this that could "bulldoze" or confound the defendants? The action was believed to have been upon a just demand,-a fact contrary to the first assumption in the instruction asked. There was a possibility that the defendants would appear, and perhaps other suppositions might be made which would justify the proceeding. But, even if it were thought possible that, upon sending such a judgment to Seattle, defendants might pay it, it being a just demand, and no deceit being practiced, I see nothing unprofessional about it.

Defendant also asked another instruction which the court refused to give, and such ruling is also assigned as error. It was as follows: "The court instructs you that the attempted service of summons on the defendants by publication, where defendants reside out of the state, and when no property is brought within the jurisdiction of the court by attachment or otherwise, or when the action is not brought to determine the status of a person, is ineffectual, and judgment thereunder is void; and if you find from the evidence that the plaintiff attempted to serve said defendants in said Thacker suit by publication, and brought no property under the jurisdiction of the court thereby, and if you believe from the evidence that plaintiff advised defendant that such service was good, you must find against the plaintiff on his demand in said Thacker suit." I think this instruction should have been given. It is true an attorney is not always liable for mistakes, but here the plaintiff admits that he knew a judgment, under the circumstances assumed, would be invalid. The witnesses differ as to the facts, but the defendant had a right to have an instruction based upon the supposition that the jury would adopt his testimony. Plaintiff's counsel says they are not seeking to recover compensation for this service. But I think they are. It is clearly included in the complaint, and is found in the bill of particulars furnished by plaintiff. It is there marked "Paid."

It seems defendant made a payment of $125 generally "on account of fees for legal seryices."

Plaintiff, in his bill of particulars, appears to have credited this upon certain

items. He could not do this, and thus re tain the money, and place those items beyond controversy. Besides, defendant claims to recover this money on a counterclaim. It would be a matter in controversy, even if in no other way. I think the judgment and order should be reversed, and a new trial had.

We concur: SEARLS, C.; BELCHER, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed, and a new trial ordered.

(102 Cal. 675) (No. 14,

ROBINSON v. THORNTON et al. 819.) (Supreme Court of California. Aug. 31, 1893.) EJECTMENT-DEFENSES-OUTSTANDING TITLE. 1. After foreclosure sale, but before execution of sheriff's deed, the mortgagor's interest in the land was attached. Judgment was not rendered till nine years later, and the land was sold a year after that. Four months after attachment, the judgment debtor, being still in possession, deeded the land to defendant, who thereupon took and kept possession, and paid taxes regularly thereafter. Held, that defendant could plead adverse possession running from the time he took possession, against plaintiff claiming under the sale in the attachment suit. This defense was not in effect a plea of outstanding title under the foreclosure sale, within the rule that in ejectment for lands purchased on execution against a debtor in possession when the lien attached defendant and his vendees cannot show that he had no title, or that the true title is outstanding.

2. Plaintiff could not introduce a deed from the assignee of the purchaser on the foreclosure sale, executed after this suit was begun, on the ground that defendant had put the foreclosure in evidence as an outstanding title. There was no issue of outstanding title, and the foreclosure was only introduced to show that the lien on which plaintiff's title was based had been extinguished.

McFarland and Garoutte, JJ., dissenting.

In bank. Appeal from superior court, San Mateo county; John Reynolds, Judge. Ejectment by C. P. Robinson against R. S. Thornton and Hannah Green. Judgment for plaintiff. Defendants appeal. Reversed.

Edward F. Fitzpatrick, (Fox, Kellogg & Gray, of counsel,) for appellants. T. M. Osmont and D. M. Delmas, for respondent.

HARRISON, J. Ejectment for land in San Mateo county. A certificate of purchase for the lands involved herein was issued to Benjamin S. Green by the register and receiver of the land office of the United States March 5, 1863, and a patent therefor was issued to him August 1, 1871. April 21, 1869, Green and wife mortgaged the land to C. C. Wilson and J. P. Jourdon, and in an action for the foreclosure of this mortgage, commenced September 6, 1870, a judgment was rendered under which the land was sold January 2, 1872, and on the same day the sheriff's certificate therefor filed in