Baldwin, J.and Cope, J. concurring.
In June, 1850, the Court of Sessions of the county of San Francisco issued a certificate over the signatures of its Judges to one Gillespie, to the effect that there was due to him from the county on the first of July, 1851, the sum of $1000, as the consideration of certain premises purchased for the use of the county, and necessary for its purposes, by order of the Court, under authority of law, and by virtue of a contract between him and the Court; the said sum to bear interest after maturity, at the rate of three per cent, a month, payable semi-annually; and the county to have the privilege of paying the principal at any time before maturity, upon fourteen days’ notice to Gillespie or to his assigns. The certificate was transferred to the plaintiff, and upon it, in March, 1854, he brought suit in the District Court of the Seventh Judicial District against the Board of Supervisors of San Francisco county; caused the summons, with a copy of the complaint, to be served upon its chairman ; and in April following recovered judgment by default *58for the amount claimed. It is upon this judgment that the present action is based. To the introduction of its record objection was made upon several grounds; and among others, upon the ground that the judgment against the Board of Supervisors was not a judgment against the county of San Francisco. The Court sustained the objection and excluded the record, and no other evidence being offered, gave judgment for the defendant. The ruling in this respect constitutes the alleged error for which a reversal is sought.
We.are of opinion that the ruling was correct. The Board of Supervisors was a body clothed with certain limited powers for the management of the affairs of the county, and could only be subjected to process in ordinary common law actions, for claims against the county, in virtue of express provisions of law. We say ordinary common law actions to distinguish its liability, in this particular, from the liability to which all inferior bodies, exercising powers for public purposes, are subject, independent' of statute. All such bodies, without any special legislative provision by the general law, are subject, with certain exceptions, to the process -of mandamus, to enforce the performance of the duties devolved upon them, and to the writ of certiorari, for the review of their acts, when partaking of a judicial character, and. in other ways are within the control of judicial proceedings. But the liability of such bodies to be sued in their official character, in ordinary common law actions, for claims against the public, county or village they represent, is of a very different character, and can only arise from express statutory provision. There was no such provision with reference to the Board of Supervisors of San Francisco county at the time the judgment of the plaintiff was rendered. The Act of 1851, creating the Board, did, it is true, authorize it to “ sue and defend on behalf of the county ; ” but these terms did not authorize it to bring suits on behalf of the county in its own name ; and if they did confer such authority, the inference of counsel does not follow, that the Board was liable to be sued to the same extent that it could sue. The Board was a body acting for the county, empowered to make orders concerning “ the corporate property of the county,” and to conduct legal proceedings, whenever they became necessary, in the name of the county. Its position was, in some *59respects, like that of an agent holding a power of attorney, “ to sue and defend on behalf of his principal.” The case of Hunsacker v. Borden (5 Cal. 288) is not in conflict with this view. That case only decided, and that, too, incidentally, that a county could not “ sue or be sued, except when specially permitted by statute.” But even if 'we admit the power of the Board to institute legal proceedings in its own name, the inference of counsel does not follow, as we have observed. Liability to suit has no necessary connection with ability to sue. The State can sue in all cases, but she is only subject to be sued in the instances specially provided by law. Nor does the power to defend on behalf of the county justify the conclusion that the Board could be sued directly for a claim against the county. In a variety of ways the Board might have been required to defend for the protection of the property or interests of the county, without appearing in its own name ; as, for instance, in actions of ejectment brought against tenants of the county properly. In the case of Burgoyne v. The Supervisors of San Francisco, (5 Cal. 9) the question of the right to sue the Board directly for a claim against the county was not raised ; and the decision was on the authority of the Court of Sessions to make the purchase, for which the evidences of liability involved were issued.
Our-conclusion is, that the judgment against the Board was not evidence of any claim against the county, and that the ruling of the Court in excluding the record was correct.
Judgment affirmed.