a conversation with plaintiff soon after purchasing, from which it appeared plaintiff
knew of his purchase: Hell, that defendant entered in possession of the premises
under a claim of title, exclusive of other right, founded upon & written instrument,
purporting to convey the property, and that such conveyance gave him color of title
to the premises. That the testimony was sufficient to warrant the jury in finding,
as a matter of fact, that defendant had held the land adversely to plaintiff for more
than five years next before the commencement of this action. Id.

5. STATUTE OF LIMITATIONS-TITLE ACQUIRED FROM UNITED STATES GOVERNMENT.-The
statute of limitations does not commence to run against a title, founded upon a
certificate of purchase from the state of swamp and overflowed lands, until the same
have been certified to the state by the United States government.

6. RIGHTS OF ENTRY.-Where a person out of possession has two separate rights of entry,
the loss of one by lapse of time, does not impair the other, and if such person acquires
a second right he is allowed a new period in which to pursue his remedy, although
he has neglected the first. Id.

AFFIDAVIT.

See ATTACHMENT, 6; CONTINUANCE, 1, 3; NEW TRIAL, 13.

AGENT.

See PRINCIPAL AND AGENT.

AGISTMENT.

1. CONTRACT OF AGISTMENT-CONDITION THAT LAND IS FIT FOR GRAZING.-The plain-
tiff and defendants entered into an agreement whereby the former undertook to agist
and pasture the defendants' cattle; the defendant agreed to pasture on the land all
the cattle it was capable of grazing, and in no case less than three thousand head, and
to herd them at their own cost, and pay the plaintiff one dollar for each head of
cattle so pastured: Held, that the condition of defendants' agreement was that the
land should be capable of grazing" the cattle; that if not capable of grazing three
thousand head of cattle the defendant was not liable to pay the full price for pas
turage. Williams v. Miller et al. Cal., 540.

ALIENS.

SEE MINES AND MINING, 17.

ALIMONY.

See APPEAL, 2, 3, 16.

AMBIGUITY.

See DEMURRER, 2.

AMENDMENT.

1. AMENDMENT OF RECORD AFTER TERM.-A court has power, after the adjournment
of the term, to amend the record, so as to show that a party appeared by attorney
upon the hearing of a motion. Carter v. Koshland. Or., 353.

2. JUDGMENT AMENDMENT AFTER AFFIRMANCE.—Where a judgment is affirmed by the
supreme court, and the remittitur filed in the court below, a motion by the appel
lants, in the lower court, to amend the judgment in material particulars, is properly
denied, when such questions could have been presented to the supreme court on the
former appeal. Parker v. Bernal et al. Cal., 316.

3. STATUTE OF LIMITATIONS-PLEA OF AMENDMENT SETTING UP.-The plea of the stat
ute of limitations is not favored by the courts; and generally, where a party omits
to plead the statute, and goes to trial without doing so, although the claim proved
against him is clearly barred on its face, he will be deemed to have elected to stand
upon the other defenses, and will not be permitted to amend by adding the plea.
Morton v. Bartning. Cal., 570.

4. THE SAME WHEN AMENDMENT SHOULD BE ALLOWED.-But where a complaint to
recover on an alleged written promise is, during the trial, amended so as to allege a

verbal promise, the defendant has a right to amend his answer by setting up the statute of limitations. In such case his application to amend is not addressed to the discretion of the court. Such defense may then be pleaded to the plaintiff's entire cause of action.

Id.

See JUDGMENT, 1; NEW TRIAL, 10; PARTIES, 2.

ANSWER.

See DEMURRER, 3–5.

APPEAL.

1. NEW TRIAL ON CONTEST OF WILL-ORDER ON IS APPEALABLE.-An order denying a motion for new trial, in a contest for the probate of a will, is an appealable order, under sections 1,714, 1,717, and 963 of the code of civil procedure. Estate of Doyle. Cal., 315.

2. APPEAL FROM ORDER AWARDING ALIMONY-AMOUNT OF UNDERTAKING.-On an appeal from an order awarding a designated sum as counsel fees, and alimony, at a specified rate to be paid monthly, an undertaking to stay exccution is sufficient, under section 942 of the code of civil procedure, if it be in double the amount of the lump sums and double the amount of the monthly payments for the period of three years. Sharon v. Sharon. Cal., 351.

3. NOTICE OF-ORDER FOR ALIMONY-SEVERAL APPEALS IN SAME NOTICE.-A notice of appeal from an order directing the payment of alimony and counsel fees, in an action to establish a marriage and for a divorce, is not insufficient because notice of appeal from a judgment between the same parties and in the same case is embraced in the same paper, nor because the appellant, as a measure of precaution, has inserted in the notice a paragraph to the effect that on the appeal from the judgment the supreme court would be asked to review and set aside the order directing the payment of alimony. Such paragraph is surplusage and without injury. Sharon v. Sharon. Cal., 634.

4. SEVERAL UNDERTAKINGS MAY BE EMBODIED IN SAME INSTRUMENT.—-Where there are several appeals in the same transcript there should be an undertaking on appeal for each one of the appeals, and each appeal should be united in the undertaking. In such case, the undertakings on each appeal may be contained in the same instrument, if the objects for which they are executed can be clearly distinguished. Id. 5. ONE UNDERTAKING ON APPEAL FROM JUDGMENT AND ORDER DENYING NEW TRIAL. The only exception to the rule that on each appeal there should be a three-hundred dollar undertaking is where there is, in the same notice and transcript, an appeal from the judgment with an appeal from an order denying a new trial. In such case one undertaking on appeal is held sufficient, in consequence of the long and well-settled practice, which the supreme court declines to disturb. Id.

6. SEVERAL NOTICES IN SAME INSTRUMENT.-Several notices of appeal may be contained in the same instrument, if such appeals are distinctly designated. Id.

7. ONE TRANSCRIPT FOR SEVERAL APPEALS.-Where there are several appeals, one transcript is sufficient for all, if the record upon which each appeal is to be heard is as clearly distinct as if set forth in separate transcripts for each. Id.

8. UNDERTAKING ON APPEAL-POWER OF COURT TO ENTER JUDGMENT AGAINST SURETY. Where a person signs an undertaking on appeal he makes himself a party to the proceeding, and the court thereby acquires such jurisdiction over him in the case that, by force of the statute, it can enter a judgment against him. To warrant the exercise of such power all the conditions necessary for its existence, under the law of its creation, must have arisen. But a mere informality in the undertaking will not destroy the power if it can be discovered therefrom what the surety has undertaken to do. Drouilhat v. Schmidt et al. Or., 653.

9. UNDERTAKING MUST BE EXECUTED BY APPELLANT.-The provision of the statute requiring the appellant, on appeal from the justice's court, to give an undertaking, with one or more sureties," must be construed as intending such undertaking to be executed by the appellant. If not, the conditions of the statutory undertaking are not complied with, and the court has no power to render judgment against a surety thereon. Id.

10. FAILURE OF SURFTY TO QUALIFY.-The fact that a surety on such undertaking neglects to make the requisite affidavit, showing that he was qualified to become such surety, cannot be taken advantage of by him to defeat his liability on the undertaking. Id.

11. UNDERTAKING MUST BE FILED AFTER SERVICE OF NOTICE.-Under section 940 of
the code of civil procedure, an appeal is ineffectual if the undertaking thereon be
tiled before the service of the notice of appeal. Little v. Jacks. Cal., 432.

12. APPEAL FROM ORDER-BILL OF EXCEPTIONS CANNOT CONTRADICT RECORD.-An order
appealed from, is a part of the record; and to it alone can the supreme court look
for information as to what was ordered by the lower court. Such order cannot be
contradicted by anything contained in a bill of exceptions. Kirkpatrick v. Wheeler.
Col., 258.

13. THE SAME-UNDERTAKING MUST DESCRIBE ORDER.-An undertaking on an appeal
from an order, which does not correctly describe the order, as it is incorporated in
the record, is insufficient to perfect the appeal. Id.

14. APPEALS UNDER ACT OF 1885-BOND, WHEN REQUIRED-DUTY OF TRIAL COURT
AS TO APPEALS.-Under the act of 1885, Sess. Laws, 350, regulating appeals to the
supreme court, no bond is required in taking an appeal unless a stay of the judginent
or order appealed from is desired; and neither the trial court nor judge has any fune-
tion to perform in connection with the appeal, except when called upon by either
party litigant to fix the amount of the bond for the stay of proceedings. The pro-
vision authorizing the judge under such circumstances to fix the bond is directory,
and not mandatory. Daniels v. Miller, Clerk of District Court. Col., 594.
15. THE SAME TRIAL COURT CANNOT DETERMINE APPEALABILITY OF ORDER.-Under
such statute the trial court or judge has no authority to determine, for the purpose of
preventing an appeal, that a given judgment or order rendered or made by such court
or judge is not appealable. The power to determine whether an appeal will lie from
a given order or decree is vested solely in the supreme court. Id.
16. THE SAME-ORDER FOR ALIMONY-STAY OF PENDING APPEAL-APPROVAL OF BOND
BY CLERK-MANDAMUS.-One against whom an order for the payment of alimony
and counsel fees has been rendered has the right, under such statute, to have the
execution thereof stayed, pending an appeal therefrom, upon filing a stay bond. It is
not necessary to the approval of such bond, or to its efficacy in operating as a stay,
that the amount thereof should have been first fixed by the trial judge; and the
action of such judge, in refusing to fix the amount of such bond for the reason, as
expressed by him, that no appeal could be taken from the order, will not authorize
the clerk of the district court to withhold his approval of said bond. If the clerk
refuses his approval for such reason, he may be compelled by mandamus to give his
approval. Id.

17. PROCEDURE ON APPEAL-PRESENT AND FORMER STATUTE.-The distinctions and dif-
ferences between the procedure on appeal under such statute, and that under the
former statute, pointed out and discussed. Id.

J8. APPEALS UNDER ACT OF 1885-TRANSCRIPT, WHAT TO CONTAIN--AUTHENTICATION
OF.-In an appeal, in an action at law, taken under the act of 1885, the papers re-
quired to be embodied in the transcript, by section 9, are copies of the order or judg-
ment appealed from or the part thereof mentioned in the notice, a copy of the notice
of appeal, and a copy of the appeal bond if any be filed. The appellant may also
order into the transcript other matters; but such extra matters will not be considered
by the supreme court unless also included in the abstracts. The cost thereof will in
no event be taxed to the appellee; nor will the attempt to incorporate the same be
accepted as a ground for extending the time fixed by statute for filing the transcript.
Such transcript should be certified by the clerk, under the seal of the court, in the
same manner as transcripts in cases upon error. South Boulder Ditch etc. Co. v.
Community Ditch etc. Co. Col., 573.

19. PROPOSED RECORD MUST CONTAIN PLEADINGS. An appeal will be dismissed
if the appellant fails to serve on the attorney of the appellee a copy of the pro-
posed record containing the pleadings and proceedings in the case. Gonzales v.
Atchison, Topeka, and Santa Fé R. R. Co. Ń. M., 732.

20. VARIANCE BETWEEN PLEADINGS AND PROOFS-OBJECTION CANNOT BE FIRST RAISED
ON APPEAL.-Where the complaint states a cause of action in the nature of an indeli-
tatus as-umpsit, and the answer denies the indebtedness for the cause alleged, “* or
otherwise," the defendant cannot for the first time in the supreme court, raise the
question of variance between the pleadings and the proofs, when no such question
was raised in the lower court. King v. De Coursey. Col., 697.

21. STATEMENT ON APPEAL-DEEDS NEED NOT BE COPIED IN EXTENSO.-Deeds and other
muniments of title need not be copied in extenso in a statement on appeal. A brief
statement of their substance is sufficient when no point is made on the construction
of the language used therein. Albion Coa. M. Co. v. Richmond M. Co. Nev., 100.

22. SERVICE OF NOTICE OF APPEAL-WHAT SUFFICIENT.--Where the attorney of the
respondent refuses to receive a copy of a notice of appeal, it is a sufficient service if the
person making the same, in the presence of such attorney, and in his office, places the
the copy on a table in front of the attorney and leaves it there. Nathan. Sutphen.

Cal., 539.

23. FILING TRANSCRIPT-EXTENSION OF TIME FOR, BY STIPULATION-DISMISSAL OF
APPEAL.-Failure to file the transcript within the time prescribed by the rules of the
supreme court, will not warrant a dismissal of the appeal, if, at the time of the
motion to dismiss, the appellant offers to file it, and it appears that the parties had,
by a stipulation not filed, extended the time for filing to a date beyond the hearing
of the motion. Poupion v. Muzio. Cal., 486.

24. APPEAL HELD WITHOUT MERIT. Easterby v. City of Napa. Cal., 241.

See CRIMINAL LAW, 6, 7; EMINENT_DOMAIN, 2, 15; JUSTICE'S COURT, 2, 6-10; NEW
TRIAL, 11-13.

ARGUMENT.

1. ARGUMENT OF COUNSEL MAY BE LIMITED.--Under section 194 of the civil code, the
trial court has power to limit the time in which counsel can address the jury to less
than two hours. Hurst v. Burnside. Or., 446.

ARRAIGNMENT.

See CRIMINAL LAW, 14

ARREST.

1. UNITED STATES MARSHAL-DEFENDANT DESCRIBED BY FICTITIOUS NAME-ARREST.
A United States marshal is justified in making the arrest of a defendant, within his
territory, who is described in the warrant by a fictitious name. The marshal assumes
only the risk in execution of such a warrant, of arresting the right person. Williams
v. Tidball et al. Ariz., 1.

2. THE SAME-UNITED STATES COMMISSIONER MAY ISSUE WARRANT FOR OFFENSE COM-
MITTED OUT OF DISTRICT.-Such marshal is protected and justified in making an
arrest by virtue of a warrant issued by a United States commissioner, although the
latter did not reside in the judicial district where it was alleged on the face of the
warrant and complaint the offense was committed. Id.

ASSAULT.

1. ASSAULTING OFFICER OF PENITENTIARY-INDICTMENT.-Under section 677 of the
criminal code, an indictment against a convict for assaulting an officer of the peni-
tentiary with a deadly weapon must allege that the defendant knew the person
assaulted to be an officer. State v. Smith. Or., 520.

2. ASSAULT WITH INTENT TO COMMIT MURDER-ALLEGATIONS OF INFORMATION-
MALICE. An information for the crime of assault with intent to commit murder,
which alleges that the defendant committed the act "willfully and with malice afore-
thought" need not aver that the act was done unlawfully. The allegation of malice
implies the unlawfulness of the assault. People v. Ah Toon. Cal., 760.

ASSESSMENT.

See CORPORATIONS, 6; TAXATION.

ASSIGNMENT.

-

1. ASSIGNMENT OF CLAIM-ACTION BY ATTORNEY-CRIMINAL INTENT NOT PRESUMED.-
In an action by an attorney, on an assigned claim, in the absence of any pleading on
the subject and of evidence showing that the assignment was taken with the intent
to bring suit, the court will not presume, from the fact that he is an attorney and has
brought suit, that he took the assignment with the criminal intent specified in sec.
tion 161 of the penal code. Bulkeley v. Bank of California. Cal., 212.

2. ORDER ON DEBTOR-ASSIGNMENT OF DEBT PRO TANTO-FRAUD ON CREDITORS. —Orders
drawn in favor of a third person by a creditor on his debtor, and accepted by the
latter, operate as an assignment of so much of the debt as is represented by them.

Such assignee thereupon becomes a creditor of the debtor, and, as such, may attack a subsequent conveyance by the latter, under section 3439 of the civil code, on the ground of fraud against creditors. Hobart v. Tyrrell. Cal., 155.

See CONSIDERATION, 4; INSOLVENCY, 1; MORTGAGE, 4; WAREHOUSEMEN, 1.

ASSIGNMENT FOR BENEFIT OF CREDITORS.

1. ASSIGNMENT FOR BENEFIT OF CREDITORS-FRAUD-SETTING ASIDE.-Ordinary contract creditors, who have not reduced their claims to judgment, or proved them under the insolvency act, cannot have a general assignment for the benefit of creditors set aside on the ground that the same is fraudulent as to creditors. Dawson v. Downing et al. Or., 437.

2. ASSIGNMENT FOR BENEFIT OF CREDITORS-CHANGE OF POSSESSION-LIEN OF ATTACH ING CREDITOR WITHOUT NOTICE.--Under section 1523 of the general statutes an assignment of personal property for the benefit of creditors, unless accompanied by an actual and continued change of possession, does not pass the title to the assignee, as against a bona fide creditor without notice of the assignment. If, therefore, a creditor, without notice, levies an attachment or execution upon the property, before the assignee has secured possession thereof, he obtains a lien, to which the title of the assignee is subject. Ray v. Raynolds. Col., 614.

See PARTNERSHIP, 3.

ATTACHMENT.

1. ATTACHMENT PROCEEDINGS ARE STATUTORY, and unless the statute is strictly pursued, no right is acquired under them. Schneider v. Sears. Or., 440.

2. ATTACHMENT OF PERSONAL PROPERTY HOW MADE.-Under section 147 of the civil code, personal property capable of manual delivery to the sheriff and not in the possession of a third person, is attached by taking it into custody; other personal property by leaving a certified copy of the writ and a notice specifying the property attached. As to such latter property, it is not sufficient to merely post a copy of the attachment on the property claimed. Id.

3. THE SAME-EXPENSES OF SHERIFF IN KEEPING PROPERTY.-A sheriff is entitled to be paid for the necessary expenses incurred by him in taking care of and preserving property attached. The reasonableness of such charges should be determined by the court. Id.

4. THE SAME-PROCEEDING TO TRY RIGHT TO PROPERTY ATTACHED.-In a proceeding to try the right of property, taken under attachment, under section 258 of the civil code, the costs and disbursements must be paid by the party against whom the verdict is given, or, if no verdict be given, then by the party who withdrew his claim, or directed the property to be discharged. The costs and disbursements in such proceeding have no connection with the costs and disbursements in the attachment suit. Id.

5. ATTACHMENT CANNOT BE ISSUED ON ADMINISTRATOR'S BOND-INSTRUMENT FOR DIRECT PAYMENT DEFINED.-An administrator's bond, given under section 152 of the act relating to wills, is not an instrument for the direct payment of money, within the meaning of section 95, subdivision 14, of the code, regulating the attachments, and no attachment can be issued in an action founded on such bond. A "direct payment," is one which is absolute and unconditional as to time, amount, and the persons by and to whom it is to be made, and a written instrument which provides for such payment is one which expressed those terms fully. People, for the Use of Bates et al v. Boylan et al. (U. S. Cir. Ct. ). Col., 401.

6. IRREGULARITY IN AFFIDAVIT, DOES NOT INVALIDATE.-An irregularity in an affidavit for an attachment, in failing to contain a statement that the payment of the contract sued upon was not secured by any mortgage or lien upon any real or personal property, or if it was so secured, that the security had become valueless, without any act of the plaintiff or the person to whom such security had been given, does not render the attachment void, so that it can be collaterally attacked by a stranger, but merely voidable at the instance of the attachment debtor. Scrivner et al v. Dietz et al. Cal., 163.

7. PRIORITY OF LIEN-MAY BE LOST BY ACTS OF LIENOR.--A prior lien gives a prior claim, which is entitled to prior satisfaction out of the subject it binds, unless the lien be intrinsically defective, or be displaced by some act of the party holding it which shall postpone him in a court of law or equity to a subsequent lien claimant.