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INDEX.

ACCOUNTING. See ESTATES OF DECEASED PERSONS, 4, 12-15; PARTNER.

SHIP.

ACCOUNT STATED. See INSTRUCTIONS.

AFFIDAVIT. See ATTACHMENT.

AGENCY.

1. CORPORATIONS-GENERAL AGENT-OSTENSIBLE AUTHORITY-TERMINA
TION OF AGENCY--NOTICE.-A corporation is bound to persons who deal
with it through one known to have been acting as its general agent, and
ostensibly acting as such when dealt with, although the agency may have
terminated in fact, if such persons had no notice of its termination.—
Swinnerton v. Argonaut Land and Development Company, 375.

2. EVIDENCE--DECLARATIONS OF AGENT-SERVICES OF COUNSEL-CAPAC-
ITY OF EMPLOYMENT. --Although the declarations of an agent are not ad-
missible to prove the fact of agency, or the extent of his authority, yet
his declarations, at the time of employment of the services of counsel,
are admissible to show that counsel were employed on behalf of the
principal, and not for himself in his individual capacity.-Id.
See CONTRACT, 1; LANDLORD AND TENANT, 3.

ALIMONY. See DIVORCE, 7.

APPEAL.

1. REFUSAL TO POSTPONE DISTRIBUTION-NONAPPEALABLE ORDER.-An
order refusing to suspend or postpone a decree of final distribution is
not appealable.-Estate of Burdick, 387.

2. JUDGMENT Denying Probate of WILL-DISMISSAL.-An appeal from a
judgment denying probate to a will which is not taken until more than
sixty days after its entry must be dismissed.-Estate of Calkins, 296.
3. NEW TRIAL - DENIAL OF PROBATE -- SERVICE OF NOTICE ON NONAP-
PEARING HEIRS.-An appeal from an order denying a new trial of a
contest for the probate of a will, taken by the proponent of the will,
will not be dismissed for the failure of the appellant to serve the notice
of appeal on certain heirs at law of the decedent, who did not appear or
become parties to the proceeding in the lower court.-Id.

4. PROOF OF SERVICE OF NOTICE-MOTION TO DISMISS.-Where a motion
is made to dismiss an appeal for failure of the transcript to show a service
of the notice of appeal upon the administrator of the decedent's es-
tate, a supply of proof of such service at the hearing of the motion is

( 697 )

APPEAL (Continued).

sufficient answer to the motion, and the ground of the motion is thereby obviated.-Estate of Stratton, 513.

5. DISMISSAL-FAILURE TO FILE TRANSCRIPT-DISALLOWANCE OF BILL OF EXCEPTIONS.-An appeal will be dismissed for failure of the appellant to file the printed transcript within forty days after the refusal of the superior court to settle or certify any bill of exceptions, which must be regarded, for the purposes of the rule, with the same effect as its settlement.-White v. White, 577.

6. PENDENCY OF MOTION TO DISMISS-EXTENSION OF TIME.-The pendency of a motion to dismiss an appeal does not, of itself, extend the time within which the appellant is required to file his transcript.-Id.

7. BILL OF EXCEPTIONS - FINDINGS-DECREE-NOTICE OF APPEAL-UNDERTAKING.-Neither the findings of fact and conclusions of law, nor the decree entered thereon, nor the notice of appeal, with proof of service, nor the recital that a sufficient undertaking on appeal had been filed with the clerk, can be properly included in a bill of exceptions. Id.

8. DISMISSAL INSUFFICIENT SERVICE OF NOTICE-CODEFENDANTS-PARTNERSHIP CONTRACT.-In an action for breach of a contract alleged to have been executed by the defendants as partners, and which was executed in the firm name by one of the defendants, where recovery was had only against the defendant executing the contract, and a nonsuit was granted as to his codefendants, to which he excepted, upon an appeal taken by him in which he assigns error in the granting of the nonsuit, the codefendants are adverse parties to such appeal, since they would be affected by a reversal of the judgment, and they must be served with the notice of appeal; and, for want of such service, the appeal will be dismissed upon their motion.--Bullock v. Taylor, 147.

9. MOTION BY PERSONS NOT PARTIES TO RECORD WANT OF JURISDIC TION.-When the motion to dismiss the appeal goes to the want of jurisdiction to entertain it, it is not material that the motion is made by persons not parties to the record, upon whom the notice of appeal should have been served, as the court has jurisdiction to dismiss it of its own motion, and the appellant has no right to select his opponents on appeal, where there are several parties adverse to him. — Id.

10. APPEAL FROM ORDER REFUSING TO SET ASIDE JUDGMENT.-Although, as a general rule, an order refusing to vacate a former order is not ap pealable, yet this rule does not apply to an appeal from an order made after judgment refusing to set aside a judgment upon motion, accom panied by a showing, which is the only proper mode of preventing the facts upon which the motion is based, and which would not appear upon an appeal from the judgment-roll; and such order is appealable.-De la Montanya v. De la Montanya, 101.

11. APPEAL FROM JUDGMENT-SUFFICIENCY OF COMPLAINT. —Upon an appeal from the judgment, if the complaint states facts sufficient to constitute a cause of action, any merely defective or imperfect statement of such facts to which no demurrer was interposed will not warrant a reversal of the judgment.-Hughes v. Alsip, 587.

12. DEMURRER TO SPECIAL DEFENSE-APPEAL FROM JUDGMENT - PRESUMPTION.-Where an appellant, appealing from the judgment upon the judgment-roll alone, without setting forth the evidence, seeks to

APPEAL (Continued).

reverse the judgment for error in overruling a demurrer to a special defense set forth in the answer, it will be presumed in favor of the judgment that it did not depend upon that defense, and that no evidence was introduced in support of it; and it devolves upon the appellant to make the contrary appear upon the record.—Brittan v. Oakland Bank of Savings, 1.

13. QUIETING TITLE-FINDINGS

STIPULATED FACTS-GENERAL FINDING -CONCLUSION OF LAW-REVERSAL UPON APPEAL.-A general finding in an action to quiet title, to the effect that plaintiff is the owner and that the claim of the defendant is without right, is a conclusion of law, where all the facts respecting the title are embodied in a stipulation, which the court adopts as a finding; and, in such case, the appellate court may reverse the judgment, and order judgment for the defendant, upon the findings, when the stipulated facts warrant such reversal.— Ions v. Harbison, 260.

14. DISAGREEMENT OF JUDGES-AFFIRMANCE OF JUDGMENT.-Where one of the justices of the supreme court is disqualified and the remaining justices are equally divided in opinion and there is no probability of an immediate change in the personnel of the court, the judgment of the lower court must be affirmed.-Santa Rosa City Railroad v. Central Street Railway Compang, 436.

15. RECORD UPON APPEAL AFFIDAVIT NOT IDENTIFIED. — An affidavit found in the record purporting to supply a question not appearing in the statement on motion for new trial, and filed on the day that the motion for new trial was filed, cannot be considered as any part of the record, where it is not identified as having been read upon the hearing of the motion, and is not embodied in the statement, or contained in any bill of exceptions.-People v. Louie Foo, 17.

16. LAW OF CASE-DEMURRER-TRIAL OF CASE. -A decision rendered upon demurrer to the complaint upon a former appeal is the law of the case upon a second appeal, taken after a trial of the case, where the facts are the same upon both appeals.-Little v. Caldwell, 27. 17. REHEARING IN BANK-MINUTE ORDER - JURISDICTION OF SUPREME COURT--CASE AFFIRMED.-In re Jessup, 81 Cal. 408, affirmed as to the jurisdiction of the supreme court in Bank to grant a rehearing by an order of the court entered upon the minutes.-Austin v. Pulchen, 528. See CRIMINAL LAW, 1, 8, 23; DIVORCE, 6; ESTATES OF DECEASED PERSONS, 4, 8, 9; FINDINGS, 1, 4; INSOLVENCY, 1, 2; MORTGAGE, 15; STARE DECISIS.

ASSAULT. See CRIMINAL LAW, 3.

ASSIGNMENT. See CONTRACT, 1; STREET ASSESSMENT, 3.

ATTACHMENT.

-

1. SUFFICIENCY OF AFFIDAVIT BY RECEIVER STATEMENT OF INDEBTEDNESS-VARIANCE - EXCLUSION OF SETOFFS AND COUNTERCLAIMSCASE AFFIRMED.-The case of O'Conor v. Rourke, 108 Cal. 173, affirmed as to the sufficiency of an affidavit for an attachment by a receiver as respects reference to the title of the action, in the statement of

ATTACHMENT (Continued).

indebtedness to the affiant, as respects the statement of the amount of the indebtedness, and variance thereof from the complaint, and, also, 23 respects the conjunctive exclusion of setoffs and counterclaims.-O'Con or v. Witherby, 38.

2. STATEMENT AS TO ABSENCE OF SECURITY - PLEDGE. A statement in the affidavit for attachment against a resident debtor, in reference to security for the debt, "that the same has not been secured by any mortgage or lien upon real or personal property, or any pledge upon personal property," is not rendered insufficient because the words of the statute, "pledge of personal property," are not used therein, the intention of the affiant being plain, and the declaration that he has no lien upon personal property being à sufficient negative of all possibility of his having any pledge of personal property.-Id.

See LANDLORD AND TENANT, 1; MORTGAGE, 19-21; TRUST, 8.

ATTORNEY AT LAW. See ESTATES OF DECEASED PERSONS, 2, 3; MORTGAGE, 9, 10; PARTNERSHIP.

BAIL. See CRIMINAL LAW, 1-2.

BANKS.

1. PLEDGE-SPECIAL DEPOSIT-INSOLVENCY-PREFERENCE OF PLEDGor.— Where a special deposit of money was made with a bank as a pledge, to secure it from loss for the furnishing of bail, the title to the deposit remains in the pledgor, and, after cessation of the liability to secure which the pledge was given, an action will lie to recover the sum deposited, and in case of insolvency of the bank, the pledgor is not remitted to the rights of a general creditor, but may recover the entire sum deposited out of, the assets of the bank.-Anderson v. The Pacific Bank, 598.

2. WRONGFUL COMMINGLING OF FUNDS - ESTOPPEL.-The bank cannot plead its own wrongdoing to its own advantage; and the fact that moneys specially deposited in the bank by way of pledge were afterward wrongfully commingled and used as funds of the bank, without the knowledge or consent of the pledgor, cannot be urged by the bank in defense as effecting any change in the contractual relations and rights of the parties.Id.

3. FINDING MONEY IN BANK VAULTS. — A finding that the money pledged "went into the bank vaults through the regular chanuel," is not a finding that the special deposit was commingled with other funds, but is to be construed as a finding that the money went into the bank vaults as a special deposit in the regular manner.-Id.

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4. CERTIFICATE OF DEPOSIT RECEIPT.-Where a special certificate was issued to the pledgor upon the making of the deposit, showing on its face that it was "payable only on release of bonds," which the deposit was intended to secure, the certificate is in nature a mere receipt, expressing briefly the contract of pledge; and such certificate does not make the holder a general creditor of the bank. —Id.

5. INTEREST UPON DEPOSIT-DEMAND.-Interest can only be allowed upon

BANKS (Continued).

a special deposit from the date of a wrongful refusal or failure to pay the same upon demand.-Id.

See CORPORATIONS, 9-11.

BARBER SHOPS. See CONSTITUTIONAL LAW, 2.

BILL OF EXCEPTIONS. See APPEAL, 5-7; NEW TRIAL, 2.

BONDS. See CORPORATION, 12; ESTATES OF DECEASED PERSONS, 21.

BOUNDARY.

QUIETING TITLE-DISPUTED BOUNDARY-LOCATION OF HALF-SECTION LINE -EXCESS IN LENGTH OF SECTION-NONSUIT.-In an action to quiet title, where the controversy was as to the location of a half-section line which bounded plaintiff's land upon the north and defendant's land upon the south, and it appeared that there was an excess of 80.50 feet in the length of the section from north to south, and both parties claimed a measurement from the south line of the section, the defendant claiming that the disputed boundary should be located only 2.640, or half of a true section, north of such south line, while plaintiff's proof tended to show that the survey of the section had located the half-section line 35.83 feet further to the north, and there was no proof tending to show that any other survey had been made which located the half-section line: Held, that if the subdivision line in dispute had been run and marked upon the ground, it must be adhered to, and that, in the absence of any survey fixing the line, the law would fix it at the actual center of the section, 42.25 feet north of the line claimed by defendant, and that it was error to grant a nonsuit of the plaintiff upon defendant's motion. - Vaughan v. Knowlton, 151.

See STATUTE OF LIMITATIONS, 1.

BRIBERY. See CRIMINAL LAW, 5, 6.

CERTIORARI. See CONSTITUTIONAL LAW, 1.

CHATTEL MORTGAGE. See MORTGAGE, 16–22.

CITIES. See MUNICIPAL CORPORATIONS.

CLAIM AND DELIVERY. See PLEADING, 2.

CODES.

CONSTRUCTION OF CODES.-The codes are in pari materia, and must be construed as one.-Estate of Burdick, 387.

COMMUNITY PROPERTY.

The legal title to the

INTEREST OF WIFE IN COMMUNITY PROPERTY. community property is in the husband, and the wife has no right or title to any specific property, but only what may remain upon a dissolution of the community, otherwise than by her own death, and this

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