INDEX.

INDEX.

ABANDONMENT. See HOMESTEAD, 1; MINES AND MINING, 4, 5;
PARTNERSHIP, 2.

ACCOUNT. See ESTATES OF DECEASED PERSONS, 6.

ACCOUNTING. See MORTGAGE; PARTNERSHIP, 4-6; TRUST, 2.

ADOPTION.

1. ESTATES OF DECEASED PERSONS-PARTIAL DISTRIBUTION-CONTEST
OF HEIRSHIP-ADOPTION OF ILLEGITIMATE CHILD-JURISDICTION.—
The superior court has jurisdiction, upon petition for the partial dis-
tribution of an estate under sections 1658 and 1659 of the Code of
Civil Procedure, to determine a question of contested heirship or right
to inherit, though the right is claimed by reason of the adoption of
an illegitimate child of the deceased, without a prior determination of
that right under section 1664 of the Code of Civil Procedure. (Fox,
J., holding contra.)-Estate of Jessup, 408.

2. STATEMENT OF COUNSEL-ADMISSION OF PATERNITY.-A statement
of counsel upon the trial of a contest of heirship, to the effect that he
supposed the court would find in favor of the petitioner upon the issue
of paternity, in view of the rulings already made and given, does not
constitute a binding admission of the fact of paternity.-Id.

3. EVIDENCE-PATERNITY-IDENTITY.—When a witness has testified
to the admission of the deceased that he was the father of a boy, and
had shown him the boy, who bore some marks of resemblance to the
petitioner, it is not harmful error to inquire further of the witness
as to the identity of the petitioner with such boy, in reference to
marks of resemblance and reminder, for the purpose merely of proving
such identity.-Id.

4. INTENTIONS OF DECEASED.-Evidence as to the intentions of the de-
ceased toward the mother of his illegitimate child is irrelevant and
incompetent for the purpose of showing adoption of the child, but it
is not prejudicial error to admit such evidence upon the issue of pa-
ternity, though its tendency may be to show that there was no inten-
tion to adopt the child.-Id.

5. LETTERS OF MOTHER OF ILLEGITIMATE CHILD.-The letters from the
mother of an illegitimate child to its nurse are incompetent and in-
admissible for the purpose of proving paternity, but are admissible to
show her acquiescence in the disposition made of the child by the de-
ceased.-Id.

LXXXI. CAL.-42

ADOPTION (Continued).

6. PHOTOGRAPHS.-A photograph of the deceased, taken many years before the trial of the contest as to heirship, is irrelevant and inadmissible. A photograph of the deceased and petitioner, made shortly before the trial by bringing two negatives in juxtaposition, and from them making a third, may perhaps be admissible to show resemblance between the two, as bearing upon the question of paternity, but would be entitled to very little weight in view of frequent marked resemblances between strangers, and great dissimilarity between kindred. - Id.

7. CHRISTENING OF ILLEGITIMATE CHILD.-The deposition of a clergyman as to the christening of an illegitimate child by the family name of the deceased without his presence, at the request of the child's nurse, is not admissible to prove anything binding on the deceased, but is admissible to corroborate, as to the fact of christening, the tes timony of the nurse, who testified that such christening was done at the request of deceased.-Id.

8. CONSTRUCTION OF STATUTES AS TO ADOPTION OF ILLEGITIMATE CHILDREN-RETROSPECTIVE OPERATION.-The statutes of 1850 and 1870, in reference to the adoption of illegitimate children, are to be strictly construed, as being in derogation of the common law; nor can the act of 1870 or the Civil Code be construed as retroactive, so as to give force or effect to acts done or performed before its passage which they would not have had at the time they were done or performed. The code provisions on that subject are to be liberally construed; but liberal construction does not require or authorize the enlargement or restriction of the written law. (WORKS, J., BEATTY, C. J., and PATERSON, J., dissenting, hold that all the provisions of the various statutes should have a strict construction on the single question of paternity, but should all have a liberal construction as to the question of adoption; and that prior acts and conduct, while not retroactively allowed to constitute an adoption under a later statute, should if continuous, be taken into account in determining whether there was an adoption under the later statute, taking into consideration the whole conduct of deceased toward and his treatment of the child.)-Id. 9. CONSTRUCTION OF CODE-RIGHT OF INHERITANCE.-Section 230 of the Civil Code relates only to the legitimizing of minor illegitimate children, and confers a right of inheritance as the result of adoption, while section 1387 of the same code provides for giving illegitimate adults the capacity of inheritance, and forms no limitation upon or qualification of section 230.-Id.

10. PUBLIC ACKNOWLEDGMENT OF ILLEGITIMATE CHILD.-The public ac knowledgment of an illegitimate child required by section 230 of the Civil Code, in order to adopt and legitimize it as the heir of its father, who is unmarried, requires that he should hold the child out to his relatives, friends, acquaintances, and the world, and acknowledge and treat it as his child in such family as he may have, and otherwise treat it as if it were a legitimate child. The evidence in this case held insufficient to establish such acknowledgment or adop tion of the petitioner by the deceased. (WORKS, J., PATERSON, J.,

ADOPTION (Continued).

and BEATTY, C. J., dissenting, hold that the statute is only intended to require certain proof of acknowledgment of the child by a sufficient number of witnesses to establish the fact, and that the child be treated as legitimate for purposes of protection, maintenance, and education; that while the most satisfactory way of establishing the necessary facts is by proof that the claimant has been received into the family and given the family name, this is not necessary where there is sufficient proof of a reason for not having done either, such as appears in this case, and that the evidence is sufficient to establish the petitioner's adoption and right to inherit.)—Id.

ADVERSE POSSESSION. See ESTATES OF DECEASED PERSONS, 3; LANDLORD AND TENANT, 2, 3; TENANTS IN COMMON.

AGENCY.

OSTENSIBLE AGENCY-FROM WHAT ACTS INFERRED.-Where a party relies upon an ostensible agency to sustain an unauthorized pledge, he must give evidence of similar transactions in which the acts of the alleged agent were authorized or ratified. It is not sufficient that there was authority to perform acts of a differert kind.—Robinson v. Nevada Bank of San Francisco, 106.

See NEGLIGENCE, 2.

AGISTMENT. See CRIMINAL LAW, 24.

AMENDMENT. See INTERPLEADER, 1; PARTNERSHIP, 4

APPEAL.

1. DISMISSAL-SUPREME COURT-APPELLATE JURISDICTION-COUNTERCLAIM LESS THAN THREE HUNDRED DOLLARS.-The appellate jurisdiction of the supreme court is in no way dependent upon a counterclaim set up by the defendant, and a motion to dismiss an appeal on the ground that the demand of defendants upon their counterclaim does not amount to the sum of three hundred dollars will be denied. Where the action is brought to recover a money demand exceeding three hundred dollars, the ad damnum clause of the complaint is the test of jurisdiction; and if the amount sued for is large enough to give the superior court jurisdiction, the supreme court has jurisdic tion on appeal, regardless of whether the appeal is taken by the plaintiff or the defendant.-Lord v. Goldberg, 596.

2. CONTEST OF RIGHT OF INHERITANCE-TIME FOR APPEAL.-Under section 1664 of the Code of Civil Procedure, an appeal must be taken from a judgment or order made upon a petition to establish the right of inheritance within sixty days from the date of the entry of the judgment or order, and an appeal from a judgment rendered upon a contest of such right taken more than sixty days after the date of the entry of judgment is too late.-Estate of Grider, 571.