Appeal from the County Court of Alameda.

Forcible entry and detainer for three hundred acres of land. The answer justifies the entry under an execution or writ of possession issued out of the Circuit Court of the United States for the District of California, in an action wherein one Clement Boyreau was plaintiff, and Robert Campbell, James Kennedy—plaintiff here—and others, were defendants.

The answer avers that William Kennedy, the other defendant, was living on the land, and holding under James Kennedy at the time the ejectment suit was commenced, judgment rendered, and writ of possession executed ; that Hamer and Gran Lees, the defendants, entered as tenants under said Boyreau (or his agent) after said writ was executed. In the Justice’s Court plaintiff had judgment for the land, and for $4,461.75 damages and one hundred and eighteen dollars and thirty cents costs. A writ of restitution was issued, and the plaintiff put in possession. Subsequently, defendants gave a bond in the penal sum of $4,000, signed by Lees, one of the defendants, and two sureties, conditioned to pay “ all the costs of such appeal, and abide the orders the Court may make therein, and pay all rents and other damages justly accruing during the pendency of such appeal.” The bond was indorsed: "I approve of the sureties on the within bond, and this bond as sufficient. Asa Walker, Justice Peace. Filed January 10th, 1861. Asa Walker, J. P.”

Plaintiffs moved the County Court to dismiss the appeal, on the grounds : 1st, that the sureties on the bond had not justified by making the affidavit required by law ; 2d, that the bond is not in double the amount of the judgment. Motion overruled.

The ease having been tried, and the verdict being for defendants, the Court rendered the following judgment, to wit: "That the judgment of the Court below be and the same is hereby reversed ; and it appearing to the Court, from the record of the Court below, that the defendants have been dispossessed, it is further ordered and adjudged that said defendants be restored to the possession of the land and premises described in the complaint,” etc.

The evidence as to defendant Gran Lees, mentioned under head three of the opinion of this Court, was so slight as not to require statement; amounting to little more than that some time during the year 1860, he was seen by a witness burning off stubble on the land, and claimed to have rented a portion from Hamer.

The facts connected with the execution of the writ of possession, relied on by defendants in addition to those stated in the opinion, are: that in January, 1856, Clement Boyreau brought ejectment in the U. S. Circuit Court for California against Robert Campbell, James Kennedy—one of the plaintiffs here—and thirty-six others, for “ all the undivided half of an undivided eighteenth part of that certain tract of land,” etc., giving the boundaries of a tract embracing 5,000 or 6,000 acres. Answers were filed, the cause tried, and in January, 1857, the Court filed its findings, setting forth that defendants occupy portions of said land in severalty, in separate and distinct parcels, according to a map, made part of the findings, and concluding as follows: “ from the facts aforesaid, the Court concludes that plaintiff is entitled in fee to one equal thirty-sixth part, undivided, of the lands and tenements described in the complaint ; ” and in pursuance of the finding, judgment was rendered that “ said Clement Boyreau, plaintiff herein, do recover against the defendants respectively possession of said share or estate of and in the respective and several parcels of land indicated and described in and by said map (which is referred to as a part hereof) as occupied respectively by them, the defendants, as aforesaid; and that each of said defendants, as to the residue of the tenements described in the complaint, not shown by said map to be occupied by him, whereof he is acquitted, go hence without day.” This judgment was affirmed by the Supreme Court of the United States; and upon filing the remittitur in the County Court, that Court proceeded, on motion of plaintiff and ex parte to enter up another judgment in favor of Boyreau and against defendants— the counsel apparently supposing such course to be necessary or proper. This second judgment recites the remittitur, awards judgment for costs, and then proceeds : “ It is considered, adjudged and decreed, that said plaintiff, Clement Boyreau, do have and recover of the defendants ” (naming them) “ the land and premises described in the complaint heretofore filed herein, in accordance with the original judgment rendered herein, with the sum of,” etc.

Subsequently a motion was made, on the part of defendants, to strike out from the records of the Court this last named judgment.

In deciding this motion, the Court on the fourth of February, 1860, “ ordered that the original judgment entered in this case be enforced, and not the new judgment filed herein,” &c.

On the thirtieth of November, 1859, an execution and writ of possession was issued out of said Court, reciting and purporting to be founded on the judgment entered on the ninth of November, 1859.

This execution does not describe the land as it was described in the judgment of January 23th, 1857 ; nor as it was described in the ex parte judgment of November 9th, 1859; nor as it was described in the complaint in the cause; does not command the delivery of the thirty-sixth part, but the whole of a large tract embracing several thousand acres. Nor does the writ describe the particular parcel recovered as against Kennedy ; nor is the map, which was made part of the judgment, referred to in the writ.

Under this writ, the U. S. Marshal put Ward in possession, as stated in the opinion of the Court. Plaintiffs contend: 1st, that the writ was no justification to the officer, nor to defendants here, because purporting to be issued upon a judgment which had been virtually set aside—to wit: the second judgment entered upon filing the remittitur; and 2d, that the writ did not authorize the Marshal to eject Kennedy, because it did not describe his portion of the land, and because there is no evidence to show that the tract in controversy here was included within the limits of the land described in the writ.

The trial was by jury, and the questions in the case arise upon instructions given and excepted to, and instructions refused under exceptions.

The Court gave the following instructions, to which plaintiffs excepted :

2. If the jury believe that the Deputy Marshal, John Williams, entered upon the land specified in the complaint by virtue of a writ of restitution issued out of the Circuit Court of the United States for the District of California, in the action of Clement Boyreau v. Robert Campbell, James Kennedy et al., and that said James Kennedy was defendant therein, and William Kennedy at the time of said entry was in possession of said lands under or for said James Kennedy, or had entered into possession thereof after the commencement of said suit of Boyreau v. Campbell et al., and with knowledge thereof, then the Court charges you, as matter of law, that said Williams was justified in making said entry, and was justified in using all the force that was necessary to accomplish the purposes of said writ, and had authority to eject plaintiffs and put Boyreau, or any one for him, in possession of said lands.

3. The judgment and writ of restitution issued in said suit of Boyreau v. Campbell et al. justified the Deputy U. S. Marshal in entering upon the premises in dispute, with or without force, and all who are privy to said entry are in like manner justified, and cannot be held liable for a forcible entry upon said premises; and the Court further charges you, that the effect to be given to said judgment and writ is a question of law for the Court to pass upon, and not a question of fact to be considered by the jury.

4. That the plaintiffs in this suit cannot attack the said judgment for irregularity, but the same is conclusive against all parties to it, and those who entered upon the land under them, or entered upon said land with knowledge of the pendency of said suit.

5. That even if the said judgment of the U. S. Circuit Court adjudged that Clement Boyreau was entitled to restitution of only one thirty-sixth of the premises sued for, yet as against defendants therein, he could be let into possession of the whole tract under the writ, because the judgment was against defendants, not as cotenants, but as trespassers without title.

6. If you are satisfied from the evidence that the Deputy Marshal in making the entry used no more force than was necessary in order to execute his writ, then the writ was a justification to him, and to the plaintiff or his agents whom he placed in possession; and the Court cannot look back of the writ to determine the regularity or validity of the judgment upon which it was issued.

Plaintiffs asked, in substance, the following instructions, which were refused:

1. If the plaintiffs were in possession, and were put out by Ward and Williams, or by either of them, then your next inquiry is, whether the -defendants entered under Ward ; and if they did so enter, then they are chargeable as successors in the trespass of Ward; or in other words, if Ward was guilty of an unlawful or forcible entry, then any person entering under him is to be held guilty of the same trespass.

2. The execution given in evidence by the defendants is not shown to have been founded on any valid judgment rendered by the Court from which it issued. The Court charges you as a matter of law, that when the Circuit Court of the United States had entered a final judgment in the action of Boyreau v. Campbell et al., on the twenty-ninth of January, 1857, that the power of the Court, so far as the entry of final judgment was concerned, became exhausted and at an end, and that after the return of the case from the United States Supreme Court, the Circuit Court had no power when the defendants were not before the Court to enter any other or further judgment.

3. The judgment rendered on the ninth day of November, 1859, in said Circuit Court, is void.

4. The execution issued upon that judgment, although it might protect the Marshal, is void and of no effect to protect the plaintiff in the judgment, or his agents, or any person claiming under him.

5. A valid execution could only have been issued on the first judgment rendered on the twenty-ninth of January, 1857.

6. The judgment of January 29th, 1857, was for one equal thirty-sixth part of the premises or land recovered, and on such a judgment an execution could not legally be issued to put the plaintiff in possession of the whole land.

7. An execution for the thirty-sixth part of the land would only have authorized the placing of plaintiff in possession of the thirty-sixth part in common with the defendants named therein, but would not authorize the removal of the defendants from the premises.

8. An execution must be warranted by the judgment. If it exceed the judgment it has no validity.

9. The land described in the execution is not described in the judgment. No judgment, so far as is shown, was rendered for the recovery of the land described in the execution. The judgment appears to be a recovery against the several defendants according to a map or plat made a part of the record. The map referred to is not shown in the record. Without this map it cannot be known or be made to appear what land was recovered against James. Kennedy,

10. The judgment does not show that this very land in controversy was recovered against James Kennedy in said action in the United States Circuit Court.

11. If from the evidence it does not appear that the very land in controversy was recovered by the judgment against James Kennedy, then the defendant has failed to justify under said judgment. This is a fact to be made out by defendant, and if he has failed in this, he has failed to make any defense under said judgment.

Verdict “ not guilty.” Judgment for defendants for costs, with restitution of the premises.

The present action was brought just before the expiration of a year from the execution of the writ of possession in the ejectment suit in the United States Court.

Plaintiffs appeal.