Field, C. J. and Norton, J. concurring.

The appeal in this case is from a judgment in ejectment, and from an order refusing a new trial. The motion for a new trial was based upon a statement of the evidence, and upon an affidavit alleging surprise on account of the introduction of certain testimony. The affidavit was made by the attorney who tried the case, and sets forth that, from information derived from his clients, no such testimony was anticipated, and that consequently he was not prepared to meet it. The object of the testimony was to prove prior possession in the plaintiff, and the affidavit states that the facts sworn to did not exist, and that the witness who deposed to them was mistaken. The proposition is, that the introduction of evidence which is untrue, and contradicts a state of facts relied upon as correct, makes out a case of surprise, the party not being prepared with countervailing proofs. There is no doubt that false testimony, given by mistake or otherwise, is sufficient to avoid a verdict or decision *399based upon it, if ordinary prudence has been observed by the losing party. As to what constitutes ordinary prudence in such cases, no rule can be laid down as universally applicable, nor is it necessary to lay down any rule upon the subject as applying in this case. The decision was based upon a finding in favor of the plaintiff upon a paper title, and the point raised is irrelevant and immaterial. The question of possession was not passed upon, and might have been decided either way without changing the result.

The only additional point is that the evidence was not sufficient to justify the findings. The property sued for is a fifty vara lot in the city of San Francisco, and so far as the title is concerned the sufficiency of the evidence is not questioned. The Court finds the possession of the lot in the defendants Hanly, and it is objected that this finding was not authorized by the evidence. The answer admits the possession of the Hanlys to the extent of one-third, “ more or less;" and the witnesses who testified upon the subject stated that they were “ on ” the lot—“ a part of it.” What particular part they were in possession of does not appear; and taking the answer and the evidence together, we think the Court was justified in finding as it did. The defense extended to the entire lot, and the possession being proved as to an indefinite part of it, the natural presumption was that it covered the whole. The object in view is to obtain a reduction in the damages awarded as mesne profits, and it is possible that the liability in that respect might have been limited. In order to limit it, however, the defense should have been framed accordingly, specifying the portion of the lot for which it was intended to defend, and disclaiming as to the balance.

Judgment affirmed.