interference with the action of the jury, whether arising from the hostility of personal enemies or popular prejudice. If such protection be not afforded, suspicions are excited and confidence in the justice of their decision is destroyed. It would seem therefore but reasonable, where an irregularity has been committed, which may have affected the jury, that the Government, seeking to uphold their action, should be called upon to show that no injury to the prisoner has followed from the irregularity complained of. If this can be shown, their verdict will not be disturbed-for the end which the law contemplated by its provisions has been attained In the present case the irregularity consisted in the unauthorized separation of the jury, after retiring to deliberate upon their verdict. The prisoner, in his affidavit, upon which the motion for a new trial was based, alleges the separation, and the fact is not controverted, nor is any explanation of it attempted by the State. The District Attorney appears to have considered it incumbent upon the prisoner to show affirmatively injury to him-*self resulting from [340] the separation, or at least reason to suspect such injury. There are authorities which support this view. Such are the cases cited from the New York Courts. But there are authorities of equal weight the other way, and the latter, we think, are supported by better reasons. In Commonwealth v. McCaul, (Va. Cases, 305,) the General Court of Virginia held that the separation of itself vitiated the verdict, although it affirmatively appeared in that case that no improper influences had been brought to bear upon the jury. "From the mode," said the Court, "in which collusion and tampering is generally carried on, such circumstance is generally known to no person except the one tampering and the person tampered with, or the persons between whom a conversation may be held which might, influence the verdict. If you question either of these persons on the subject, he must criminate or declare himself innocent, and you lay before him an inducement not to give correct testimony." And after observing that the ancient rule, that the jury should on no occasion separate, had been relaxed only in cases of imperious or unavoidable necessity, the Court continued: "But by allowing that a jury may separate without necessity, and that their

verdict shall stand, unless the party accused, who in these cases is in the custody of the law, can show that the jury not only have separated, but that they or a member of it, has also been tampered with, or held communication on the subject, this great barrier against oppression may gradually be sapped and undermined, and the bulwark cannot long remain. Such a precedent would be productive of evils incalculable, and too great for the Court by its decision to allow a door to be opened for them."

This case, so far as it holds that separation alone vitiates the verdict in a criminal case, even when shown to have produced no injurious consequences, has been generally condemned, but in other respects has been followed in several of the States. In McLain v. The State, 10 Yerger, 242, the Court said: "The affidavits, which are uncontradicted, show conclusively that several of the jury repeatedly separated from the others, without the care of the officer appointed by the Court to attend them, and were absent for the space of fifteen or twenty minutes-long enough to have been tampered with,

if there had been any disposition to do so. It is [341] *not necessary for the prisoner to prove that they were, during their absence, subjected to improper influences from others; it is sufficient if they might have been. There would be no safety in a different rule of practice, for it would be almost impossible ever to bring direct proof of the fact that it was done." (See also Riley v. The State, 9 Humph. 654; McCann v. The State, 9 Smedes & Marsh. 465.)

In the case of The State v. Prescott, 7 N. H. 287, the Supreme Court of New Hampshire, after an extended consideration of the authorities, held that the burden of proof lay upon the Government to show that the prisoner had not suffered any injury by reason of the separation of the jury, and that in the absence of such proof he was entitled to the benefit of the presumption that the irregularity had been prejudicial to him. "The prisoner," said the Court, "is in such case entitled, as a matter of right, to require, in the first instance, a compliance with the ordinary forms provided by the law to secure to him a fair and impartial trial; and if the guards provided for his security are neglected or disregarded. he is at least entitled to require, at the hands of the Govern

ment, satisfactory evidence that he has not received detriment by reason of such neglect, and is not to be put to show, affirmatively, that such departure from the customary mode of trial has been the probable cause of his conviction. The shield which the law has provided would fall far short of affording him the protection intended, if it might be thrown aside at pleasure, and he have no right to complain unless he could prove that the want of it had been actually prejudicial to his case; a matter which it might in many cases be very difficult to prove, notwithstanding such was the fact. He has the right, therefore, to call upon the officers of the Government in such case, before they demand judgment, to show that the irregularity in the trial has not been the means of injustice in the verdict."

In the several cases from which we have thus cited the separation occurred before the jury had retired to deliberate upon their verdict, but the reasons advanced apply with equal force to separations afterwards.

In addition to their unauthorized separation, the defendant also alleged misconduct of the jury as [342] ground for a new trial. It appears from the record that while the jury had the case under consideration, and before they had agreed upon a verdict, they were taken by the officer who had them in charge to a hotel opposite the room in which they were deliberating to get their dinner, and while there the proprietor of the hotel spoke to some of the jurors and told them to convict the defendant. The affidavit upon which the new trial was asked states that the proprietor had a conversation with one or more of the jurymen, but we regard the language used as a mere passing remark of the proprietor. If, indeed, there was a conversation—that is, if language was used by both parties, or if used by one was listened to by the other-then there was such misconduct as to authorize, for that reason, the annulling of the verdict. But as a passing remark of the proprietor it did not, however improper, constitute misconduct of the jury. For making it the proprietor not only merited the reprimand of the Court, but should have been severely punished as for a contempt. The fact that the jury were exposed to remarks of this character sufficiently shows the impropriety of taking them

to the hotel, where they were liable to come in contact with strangers, and the wisdom of the provision requiring the officer to keep them together in some private place. Judgment reversed, and cause remanded for a new trial.

VAN WINKLE v. HINCKLE.

ACTION TO QUIET TITLE CANNOT BE MAINTAINED AGAINST TENANT.-An action cannot be maintained under the two hundred and fifty-fourth section of the Practice Act, by a landlord against his tenant in possession for the purpose of determining the validity of an adverse title set up by the tenant. ACTION AGAINST WHOM IT LIES.-The section of the statute above referred to must be construed as giving a remedy only against parties who are in a position to assert their rights, and not against those who are barred by a temporary estoppel as to the right asserted on the other side.

RENUNCIATION OF TENANCY.-If a tenant renounce the tenancy in favor of an adverse title the landlord may elect to consider himself ousted and maintain ejectment, but he cannot claim possession through the tenant and at the same time bring an action against him to determine the title.

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*APPEAL from the Sixth Judicial District.

The facts are stated in the opinion of the Court.

J. B. Harmon, for Appellant, cited: Practice Act, sec. 254; Ritchie v. Dorland, 6 Cal. 33; Story's Eq. Jur., secs. 852-856.

J. W. Winans, for Respondent.

Plaintiff avers in his complaint, that he is in possession; that appellant whom he sues is his tenant, by a specific contract of lease, and that, notwithstanding the allegation thereof, appellant bought an outstanding claim of title which she sets up adversely. This brings respondent's case directly within the purview of section two hundred and fifty-four of the Practice Act. (Curtis v. Sutter, 15 Cal. 259; Pixley v. Huggins, Id. 133, 134;) in which latter case the Court clearly and fully determines in what cases an action can be brought

1 Commented on in Lyle v. Rollins, 25 Cal. 438; and cited in Pralus v. Jefferson G. & S. M. Co., 34 Cal. 559. See Rico v. Spence, post 504, note 1.

to remove a cloud upon a title, and the present action is within the rule as there laid down. (See, also, opinion of Chancellor Kent in Trustees of Huntington v. Nicall, 3 Johns. 590, 591; Cupps v. Irwin, 2 Blackf. 112; Douglass v. Scott, 5 Hammond, Ohio, 195; Norton v. Beaver, Id. 178; Douglass v. McCoy, Id. 522.)

COPE, J. delivered the opinion of the Court-NORTON, J. concurring.

This is an action to quiet the title to certain real estate in the city of Sacramento. The complaint alleges that the defendant is in possession as the tenant of the plaintiff, but disclaims the tenancy, and sets up an adverse title in himself. The judgment enjoins the defendant from asserting his title, and establishes that of the plaintiff.

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We are of opinion that the judgment is erroneous, and that the action cannot be maintained. The statute provides that "an action may be brought by any person in possession, by himself or his tenant, of real property, against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse claim, estate, or interest." (Prac. Act, sec. 254.) Taken literally, this provision is broad enough, perhaps, to authorize an action *against the tenant himself, but there are conclusive reasons why it should not be so construed as to give it that effect. It is a rule of public policy that a tenant cannot dispute the title of his landlord, and it is not to be supposed that the intention was to interfere with this rule, or furnish the means of depriving the tenant of a right which, as tenant, he is precluded from defending. A tenant may acquire an adverse title, but he cannot use it against the landlord so long as the tenancy continues; and unless we are to admit an exception in this respect the effect of the action would be to cut him off without an opportunity to be heard. We do not regard the statute as intending either of these results, but as giving a remedy against parties who are in a position to assert their rights, and are not bound by a temporary estoppel as to the right asserted on the other side. If a tenant renounce the tenancy in favor of an adverse title, the landlord may elect to consider himself ousted, and main