INDEX.

(795)

INDEX.

ABANDONMENT. See Criminal Law, 14, 15.

ABATEMENT. See Corporations, 5.

ACCOMPLICE. See Criminal Law, 34, 132.

ACCOUNT.

ACCOUNT ASSUMPTION BY ANOTHER INSUFFICIENCY OF EVIDENCE TO
SHOW. In an action to recover on an account for goods sold to
a third party, it being contended that the defendant assumed the
obligation, the evidence is insufficient to sustain a finding in favor
of the plaintiff, where it consisted solely of a letter written by the
secretary of the company to the plaintiff, stating in substance that
defendant would be glad to settle its general account with plain-
tiff, after the allowance of a certain credit, and, referring to the
particular account sued on, saying that the difficulty with it was in
the agency agreement between plaintiff and the original debtor, out
of which the account grew, but that defendant was attending to the
obligations of the latter company and expected to take care of this
one, the letter indicating, however, some controversy between the
parties and a difference of understanding regarding the agency con-
(Guernsey v. Johnson Organ and Piano Mfg. Co., 699.)

tract.

ADULTERY. See Criminal Law, 16-25.

ADVERSE POSSESSION.

1. VOID DEED FROM HUSBAND TO WIFE.-The rule that a married
woman not living separate and apart from her husband and having
no claim in her own right to land cannot acquire title to it as her
separate estate by adverse possession, is applicable to a case where
the wife claims separate ownership under a void deed from the
husband. (Wills v. E. K. Wood L. & M. Co., 97.)

2. RIGHT OF WAY ADVERSE USER CONTINUOUS USE.-While a
right of way may be acquired by adverse possession, where it is so
asserted the party claiming it must prove its continuous and unin-
terrupted use. (Lapique v. Morrison, 136.)

3. TITLE OF UNITED STATES AND STATE UNAFFECTED BY.-Title by
adverse possession cannot be asserted as against the ownership of
the United States or of the state in lands which have not been
patented. (Id.)

4. HOLDERS OF ALCALDE DEEDS TO BEACH AND WATER LOTS-TITLE BY
ADVERSE POSSESSION.-Title by adverse possession to beach and

ADVERSE POSSESSION (Continued).

water lots of the city and county of San Francisco cannot be ac-
quired by holders of alcalde deeds and their successors in interest, as
against the purchasers of the reversionary interests of the state
therein, as the possession of such holders and that of their successors

is under the state grant of the leasehold interest.
Land Co. v. All Persons, 743.)

AFFIDAVIT OF MERITS. See Place of Trial, 7.

AGENCY.

(Potrero Nuevo

CONTRACT AGENCY FOR SALE OF GRAIN BAGS-RECOVERY OF COMMISSIONS-PERFORMANCE OF AGREEMENTS-SUFFICIENCY OF EVIDENCE.In this action to recover certain commissions alleged by the plaintiff to be due him from the defendant under certain oral contracts, by which the latter agreed to constitute the former its agent for the sale of grain bags, it is held that the trial court did not abuse its discretion in setting aside its decision in favor of the plaintiff and granting the defendant a new trial, in view of the infirmities of the proof and of the entire evidence as to whether the plaintiff had sufficiently performed his part of the agreements as to keeping the defendant informed as to the conditions and doings of the market in grain bags, and to furnish defendant with confidential information, which plaintiff was not to furnish other persons in the same line of business, and to inform defendant of the prices at which bags were offered and quoted to plaintiff in order to give the defendant the first opportunity to sell and to give said defendant the preference in all sales. (Mills v. George A. Moore & Co., 405.)

See Broker; Fraud, 7-9; Mechanics' Liens; Negligence, 18, 19. ALTERATION OF INSTRUMENTS. See Place of Trial, 5-8.

AMENDMENT. See Pleading, 5, 6.

APPEAL.

1. ACTION UPON UNDERTAKING ON APPEAL STAY OF EXECUTION OF ORDER APPOINTING RECEIVER-AFFIRMANCE OF ORDER-RES ADJUDICATA. In an action brought against the sureties upon an undertaking given to stay the execution of an order appointing a receiver pending an appeal therefrom, the affirmance of the order on appeal is res adjudicata as to the authority of the court to appoint the receiver. (Borges v. Hillman, 144.)

2. PLEADING PROPER PARTY PLAINTIFF.-The plaintiff in the main action, and not the receiver, is the proper party to maintain the action upon the undertaking. (Id.)

3. TIME OF COMMENCEMENT OF ACTION.-An action upon such an undertaking is prematurely brought where at the time of its commencement the judgment in the main action has not become final

APPEAL (Continued).

by reason of the fact that the time to appeal therefrom has not expired. (Id.)

4. RECOVERY UPON UNDERTAKING-COSTS ON APPEAL.-The fact that in such an action the plaintiff seeks relief for only the damage alleged to have been suffered by him from the moneys which came into the hands of the defendant in the main action pending the appeal from the order appointing the receiver, does not prevent him from maintaining an action in the proper forum upon the undertaking, in so far as it obligates the sureties to reimburse him for the costs on the appeal from the order appointing the receiver. (Id.)

5. CONSTRUCTION OF UNDERTAKING. The provision in such an undertaking, so far as it relates to the possession of the land involved and the collection of the rents, issues and profits thereof by the defendant, pending the decision on the appeal from the order appointing a receiver, "that if the said appellant does not make such payment within thirty days after the filing of the remittitur from the supreme court of the state of California, to which said appeal is taken, judgment may be entered upon the motion of the respondents, and in their favor, against the undersigned sureties for the said amount of said judgment, together with interest which may be due thereon, and the damages and costs which may be awarded against the appellant on appeal," means, in the absence of any pending appeal the disallowance of which by the appellate court would result in a judgment for any amount of money, that the sureties would not only guarantee the payment of the costs on the appeal from the order, but that, if a final judgment on the merits was eventually obtained by the plaintiff, they would indemnify him against any damage which might result to him by reason of the fact that, pending the determination of the appeal from the order, the defendant was permitted to remain in possession of the property and to collect and retain the rent thereof. (Id.)

6. ORDER DISMISSING ACTION AS TO CERTAIN DEFENDANTS-DISMISSAL OF APPEAL.-An appeal from a judgment dismissing an amended complaint in intervention as to certain defendants, but leaving the question undetermined as to other defendants, should be dismissed, as the order of dismissal is not a final judgment and determination of the action. (Dabney Oil Co. v. Providence Oil Co. of Arizona, 251.)

7. FAILURE TO FILE BRIEF-DISMISSAL.-Where the respondent on an appeal neither files his brief nor appears at the oral argument, although served with a notice that appellant would move for a reversal of the order appealed from without consideration of the cause upon its merits, upon this ground, the order appealed from I will be reversed. (Bullock v. Bullock, 463.)

8. UNDERTAKING ON APPEAL - STAY OF EXECUTION

- LIABILITY OF

SURETY. The liability of a surety on an undertaking on appeal