Shay v. Tuolumne Cty. Water Co. , 6 Cal. 73 ( 1856 )

Mr. Chief Justice Murray delivered the opinion of the Court.

Mr. Justice Heydenfeldt and Mr. Justice Terry concurred.

This is an appeal from an order of the Court below granting a new trial.

The suit was brought to recover damages of the company, for flooding the plaintiffs’ claim with water. On the trial of the cause, the Court permitted the plaintiffs to ask one of their witnesses whether individual members of the company had employed him to drive them out of their claims.

This was error; the company was an incorporation and was not bound by the acts or admissions of its members, unless they were acting by its express authority. It is said that this interrogatory was answered in the negative, so that no harm could possibly arise tó the defendants from the question. The record does not contain the answer, and it is but justice to presume that the Court below in view of the whole case, has properly exercised its discretion.

Judgment affirmed, with costs.