—Cope, J. concurring.

Rehearing denied. It is scarcely necessary to notice the hyper-criticism of the petition upon the language of the opinion—“ the discretion of the Court below cannot be reviewed in its refusal to set aside the judgment for the cause assigned—the absence of the attorney at the time of trial.” This language was not designed to assert the doctrine that this Court did not possess the power to review the action of the Court below on such applications, but merely that the facts of this case did not warrant such interference. The meaning of the statement is, that this Court cannot, in consistency with the rules of law in such cases, interpose—not because we have no jurisdiction of such matters, but because the matter invoked is improper, and therefore not warranted by law, under the facts of the case. To hold that an attorney can go off when he knows his case is set for a particular day, to try a case in another and distant Court, without making some arrangement in respect to the first case, or for having it attended to, and then claim to set aside a judgment obtained against him in the first suit, because of his absence, would lead to consequences too apparent to require illustration.

The second point insisted upon was fully considered, and we had not, nor have we now, the slightest doubt as to the true intent and meaning of the stipulation.

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.