appellant denied, and the issue thus made was passed upon by the jury adversely to appellant.

The case comes here upon exceptions to rulings of the court upon the admissibility of evidence, and to instructions to the jury given and refused. These exceptions are numerous, and no one is more entitled to special notice than either of the others. They involve no particular principle of law or rule of practice, and are of no general importance. We think, therefore, that no useful purpose would be served by noticing in detail each individual exception, and it is sufficient to say that in our opinion no material error can be found in the rulings of the court, and that the instructions fairly presented the issue to the jury. When the case was here before, this court held that "where a partnership agreement provides that an existing individual debt of one of the partners shall be assumed and paid by the firm, either of the partners has authority to execute the note of the firm to secure the payment of such indebtedness." (Randall v. Hunter, 66 Cal. 512.)

Judgment and order denying a new trial affirmed.

MCKINSTRY, J., and TEMPLE, J., concurred.

[No. 11270. Department Two.-May 23, 1888.] MAGGIE G. McDONALD, RESPONDENT, v. DANIEL SWETT, APPELLANT.

PRACTICE WANT OF PROSECUTION-DELAY IN SERVING SUMMONS-DISCRETION. The refusal to dismiss an action for want of prosecution, on the ground that the plaintiff had neglected to serve the summons for a period of twenty-one months after its issuance, is not an abuse of discretion.

ID.-MOTION TO DISMISS-EXTENSION OF TIME TO ANSWER.-A motion by the defendant to dismiss the action does not extend the time to answer; and a refusal to set aside a default entered pending such a motion is not an abuse of discretion.

LXXVI. CAL.-17

ID. AMENDMEnt of NAME OF DEFENDANT-DEFAULT.-Where a defendant whose true name is "Swett" is sued by the name of "Sweet," it is not error, after the entry of his default, to allow the complaint to be amended by inserting his true name, and thereupon to enter judgment against him. ID.-APPEAL-JUDGMENT BY DEFAULT.-On an appeal from a judgment by default not taken within sixty days after its entry, nothing can be reviewed except what appears on the judgment roll.

APPEAL from a judgment of the Superior Court of Alameda County.

The facts are stated in the opinion of the court.

E. A. & G. E. Lawrence, for Appellant.

J. E. McElrath, for Respondent.

SHARPSTEIN, J.-This is an appeal from the final judgment entered against Daniel Swett, the Appellant. facts are as follows:

The

Plaintiff filed her complaint to quiet title to certain property in Oakland against Walter S. Hobbs, Daniel Sweet, John Doe, and Richard Roe, on the 4th of September, 1882, and on the same day summons issued, and on the twenty-first day of July, 1884, they were served on Daniel Swett.

On the 13th of August, 1884, appellant served a notice of motion to dismiss the action as to him for want of

prosecution for the 19th. At plaintiff's attorney's request the motion was continued by stipulation until the 28th of August, 1884. On the twenty-third day of August, 1884, plaintiff's attorney had the clerk enter the default of Daniel Swett. On the twenty-eighth day of August, 1884, appellant's motion to dismiss the action as to him was heard and denied, and appellant excepted; a stay of ten days was granted. And on the twentyeighth day of August, 1884, appellant served a notice of motion for September 3, 1884, to vacate the default entered against him, the same was heard on the 3d of September, and denied, and an exception was taken.

Plaintiff's counsel then asked the court to amend the complaint by changing the name of Daniel Sweet into Daniel Swett, and to enter judgment against Daniel Swett; appellant's attorneys objected; the court granted the motion and appellant excepted. Appellant prepared bills of exceptions to the several matters, and they were duly certified and filed.

1. We cannot hold that the court abused its discretion in overruling the motion to dismiss the action for want of prosecution, and therefore cannot reverse the judgment on that ground. (Grigsby v. Napa Co., 36 Cal. 585; 95 Am. Dec. 213.)

2. It was not sufficient ground for setting aside the default that it was entered pending the hearing of the motion to dismiss, and we cannot hold that the facts presented to the court below were of such a character as to make the denial of the motion to set it aside an abse of discretion. The motion to dismiss the action did not extend the time to answer. (Shinn v. Cummins, 65 Cal. 97.)

3.

It was not error to allow the name of the defendant to be corrected. (Brock v. Martinovich, 55 Cal. 516.)

The appeal herein was taken more than sixty days after the entry of the judgment; and we held in Savings and Loan Society v. Meeks, 66 Cal. 371, that nothing could be reviewed on an appeal from a judgment by default not taken within sixty days after the entry thereof, except what appeared on the judgment roll.

We have, however, in this case reviewed the orders excepted to, and fail to find that any error was committed for which the judgment should be disturbed.

Judgment affirmed.

MCFARLAND, J., and THORNTON, J., concurred.

[No. 11100.

Department Two.-May 25, 1888.]

GRIFFETH & DALZEL, RESPONDENTS, v. H. BROWN,

APPELLANT.

ESTOPPEL IN PAIS-NECESSARY ELEMENTS OF

INSTRUCTIONS.-An in

struction purporting to state the law upon the subject of estoppel in pais is erroneous, if it omits the element that the party against whom the estoppel is invoked made the declaration or did the act upon which the estoppel is sought to be based, either with the express intention to deceive, or with such careless and culpable negligence as to amount to constructive fraud. And the error is not remedied by the fact that in another and distinct instruction the rule was stated with more accuracy.

APPEAL from a judgment of the Superior Court of San Benito County, and from an order refusing a new trail.

The facts are stated in the opinion of the court.

McCroskey & Hudner, for Appellant.

The instruction upon the subject of estoppel in pais was erroneous. (Biddle Boggs v. Merced Mining Co., 14 Cal. 279; Lux v. Haggin, 69 Cal. 255.)

Montgomery & Scott, and N. C. Briggs, for Respondents.

MCFARLAND, J.-This is an action to action to recover five

hundred sacks of wheat, or the value thereof.

The ver

diet and judgment were for plaintiffs, and defendant appealed.

The action arose out of those prolific sources of litigation,-leases of agricultural land, cropping contracts, and mortgages of growing crops.

About the 1st of November, 1883, the defendant Brown, being the owner of a certain tract of land, made a verbal contract (the terms of which are in dispute) about said land with one Manuel Smith. Under this contract (whatever it was) Smith cultivated the land and put in a crop of wheat. On February 19, 1884,

Smith mortgaged his growing crop to plaintiffs to secure future advances. Under the terms of the mortgage plaintiffs were authorized to take possession of the grain and harvest, thrash and sack it, which they did. They gave defendant one fourth of the grain, and piled the other three fourths in one corner of the premises, from which defendant took the five hundred sacks sued for, claiming it to be his property.

Plaintiffs' theory (supported by some evidence) was, that the verbal contract between Brown and Smith, made in November, 1883, was simply a lease,-Smith to pay as rent one fourth of the crop, and the stubble and straw to go also to Brown. But Brown introduced a written instrument signed by himself and Smith, dated November 3, 1883, but shown to have been executed after plaintiff's mortgage, which was a cropping contract, by the terms of which Brown was to be and remain the owner of all the wheat raised, not only until Smith should have delivered him one fourth of the wheat raised, but until he should have delivered to him also an additional amount of the wheat sufficient to pay, at market price, the sum of $576.22, and interest, which Smith owed him for certain horses and farming implements. And defendant's theory (supported also by some evidence) was, that the written cropping contract was the same as the original verbal contract made in November, 1883, and was a mere reduction of the latter to writing. So that the jury may have found in favor of either party as to the real character of the original verbal contract.

But plaintiffs also introduced evidence tending to show that when Smith came to them for advances they went to defendant Brown and inquired of him what the contract was between him and Smith, and told him that Smith wanted them to make him advances; and that Brown said, as Smith had before told them, that he (Brown) was to receive one fourth of the wheat, and the