Field, C. J. and Cope, J. concurring.
The judgment is affirmed. We think the complaint sufficient within the rules laid down in Payne and Dewey v. Treadwell (16 Cal. 220). The point that the executor could not sue for damages for the trespass, is answered by the statute. (Woods’ Digest, 411, secs. 195, 196.)
2. The stipulation prima facie was sufficient to maintain the action. The effect of it is to admit that the title was in Hetherington before the entry of defendant; that the defendant entered under him; and that she afterwards set up claim to the premises. The effect of these facts, if they had been proved, would be to show title in Hetherington, entry by his consent, and a holding in contravention of the tenancy. It is true that the stipulation adds to the admission of these facts that it is not designed to admit a tenancy; but such is the legal effect of the facts expressly admitted; and the qualifying terms have no effect of excluding the legal conclusions resulting from the admission of specific facts.
3. The discretion of the Court cannot be reviewed in its refusal to set aside the judgment for the cause assigned—the absence of the attorney at the time of the trial.
Judgment affirmed.