3. THE SAME-ACCOUNT STATED BY IMPLICATION.-An account stated may be implied
from circumstances. If an account be presented for payment by one party thereto,
and the other party, upon an examination of it, and after a reasonable time has
elapsed, makes no objection to it, it may be legitimately presumed that he was sat-
isfied with it as presented, and the presumption is so strong that a suit can be main-
tained upon the account as an account stated without proof other than that the ac-
count was presented, with a demand for payment, and that reasonable time and
opportunity have passed since its presentation, for a proper examination of it, and
to make objections to it, if there be any. Such presentation may be by mail.
4. THE SAME BURDEN OF PROOF. The effect of an account stated being to establish
prima facie the accuracy of the balance found due, the burden of proving that an
account is stated or settled rests upon the party making such allegations. Id.
1. ACCOUNTING BETWEEN PARTNERS-PRESENTATION OF CLAIM.-In an action of ac-
counting between a surviving partner and the administratrix of his deceased partner,
the surviving partner is entitled to an allowance for sums drawn by the deceased
partner from the partnership during his lifetime, notwithstanding the claim for the
sum so drawn has never been presented to the administratrix of the deceased partner
for allowance and approval. Manuel, Admr'x, v. Escolle. Cal. 375.
2. IN AN EQUITABLE ACTION TO REOPEN A SETTLEMENT AND SALE MADE BETWEEN
PARTNERS, and for an accounting of the partnership affairs, on the ground of fraud
alleged to have been practiced by the defendant, the court cannot, without setting
aside such sale and making an accounting, render judgment for the plaintiff for a
specific amount, on the ground that the defendant was guilty of a breach of war-
ranty or of deceit. Black et al v. Merrill. Cal. 137.
See ESTATES OF DECEASED PERSONS, 4-7; FRAUD, 3; GUARDIAN AND WARD.
Bee BANKS, 2; OREGON DONATION ACT, 2.
ADMINISTRATOR.
See EXECUTORS AND ADMINISTRATOR.
L OFFER OF PILOT SERVICE BY SIGNAL.-The Pilot Commissioners of Oregon, under
the Pilot Act of 1882, are authorized and required to declare by rule what shall
constitute a valid offer of pilot service on the Columbia River bar pilot grounds, by a
signal addressed to the eye, and in so doing may prescribe the distance within which
such signal must be made from the vessel signaled.—The Ullock, Swietoslawski,
Claimant (U. S. Dist. Ct.), Or. 10.
2. SIGNAL FOR AN OFFER OF PILOT SERVICE.-The statute of the United States does
not prescribe any signal to be used on a pilot boat in making an offer of pilot service,
and the light required by Section 4233 of the Revised Statutes to be carried by a
sailing pilot vessel at night is only used to prevent collision, and incidentally to give
notice of the character of such craft; but the usual signal by which an offer of pilot
service is made is the jack set at the main truck in the day-time, and "flare-ups" at
night, and this jack is usually the ensign of the country in which the service is
offered. In the United States it is a blue flag charged with a star for every State
then in the Union, and called the "urion jack."-Id.
3. THE TERM "STATE" CONSTRUED TO INCLUDE A "TERRITORY."-The term "State,"
in the Act of March 2, 1837, 5 Stat. 153, R. S., Sec. 4236, regulating the taking of
pilots on a water forming the boundary between two States, construed to include an
organized "Territory" of the United States.-Id.
4. SALVAGE BY PILOT.-Under the Oregon Pilot Act of 1882 (Ses. L. 15), a pilot is
bound to render aid to a vessel "in stress of weather or in case of disaster," and he
is not entitled to salvage for such service unless he is thereby involved in “extraor-
dinary danger and risk."-The C. D. Bryant (U. S. Dist. Ct.), Or. 391.
5. CASE IN JUDGMENT.-The libelant, in a smooth sea and calm weather, boarded the
Bryant in a thick fog, while she lay aground at low tide on the outer edge of the
middle sand of the Columbia River, and at the next flood sailed her over into deep
water in the south channel, and after drifting out to sea in the night, brought her
into port the next morning. Held, that the service of the libelant did not involve
any extraordinary danger and risk," and that he was only entitled to a pilot's
compensation therefor.-Id.
6. DAMAGES RESULTING FROM A COLLISION between two vessels, when each is guilty of
contributory fault, must be equally divided between them.-Puget Sound Commer-
cial Co. v. The Barkentine C. L. Taylor. The Barkentine C. L. Taylor v. Puget
Sound Commercial Co. Wash. 787.
7. THE CERTIFICATE OF THE CLERK TO THE RECORD IN AN APPEAL IN ADMIRALTY
should distinctly state that the matter sent up included all the pleadings, proofs,
stipulations, decrees, and also everything filed or done by way of effecting an appeal.
Steamer Zephyr v. Brown et al.
8. THE MANNER OF TAKING AN APPEAL IN ADMIRALTY IS GOVERNED BY THE RULES
of the civil law. Id.
9. AN APPEAL FROM THE DISTRICT COURT IN A CASE IN ADMIRALTY will not be con-
sidered by the Supreme Court unless the same was allowed by the District Judge.
Such appeal must be taken during the term in which the decree appealed from was
rendered, and must be made to the next term of the Supreme Court. Id.
10. APPEAL IN ADMIRALTY, PETITION FOR.-A petition for an appeal in Admiralty
from a definite sentence, or for apostles, is not required to be in writing. Waddell
et al. v. The Steamer Daisy. Wash. 557.
11. LETTERS DISMISSORY OF ADMIRALTY CAUSE.-The allowance of an appeal in ad-
miralty, and the granting of time by the lower court in which to perfect the same,
is a sufficient letters dismissory of the cause.
12. THE FILING OF AN APPELLATORY LIBEL IS UNNECESSARY in this country on an
appeal in admiralty. Id.
13. AN APPEAL IN ADMIRALTY IS SUFFICIENT IN POINT OF TIME when the same was
taken and allowed at the time of sentence, and perfected within the time fixed by
the court.
14. NO MONITION FROM THE APPELLATE COURT is necessary to the perfection of an
appeal in admiralty, when the same is allowed by the lower court without the in-
tervention of such monition.
15. MARITIME CONTRACT, COMPLETED VESSEL.-Whether a contract for putting ma-
chinery into a steamer is a maritime one, so as to be enforceable in admiralty by a
proceeding in rem, depends upon the fact whether the putting in of said machinery
was a necessary part of the construction of said steamer as a completed vessel,
consideration being had to the purposes for which she was intended. If the ma-
chinery were used in such construction, the contract was not a maritime one. Id.
16. THE SAME.-A contract to furnish machinery to a steamer, which exists merely as
an inchoate hull upon the ways, is not a maritime one. Id.
17. PROCEEDINGS IN REM AGAINST VESSEL, POWER OF LEGISLATURE TO AUTHORIZE.
Whether the territorial Legislature has power to authorize a proceeding in rem
against a vessel for materials used in its construction, quære.
However this may
be, it has never sufficiently exercised such power so as to warrant a Court in up-
holding such a proceeding. Id.
18. SUB-CONTRACTOR, LIEN OF ON VESSEL.-Under the lien law of this territory, a
sub-contractor has no lien upon a vessel for materials furnished by him to the con-
tractor, and used in the construction of the vessel. Id.
19. FEES IN ADMIRALTY CASES.-Section 823 et sequitur of the Revised Statutes of the
United States, providing what the per foliam fee shall be in admiralty cases in the
Circuit and District Courts of the United States, apply to such cases in the Terri-
torial Courts. The Territorial Legislature has no power to regulate such fees.
1. TITLE BY ADVERSE POSSESSION CAN NOT BE ACQUIRED by occasionally cutting up
dead timber, felling trees and removing wood from the land. Kimball v. Stormer.
Cal. 371.
2. ADVERSE POSSESSION-COLOR OF TITLE-POSSESSION.-A plaintiff who claims, under
color of title, a larger tract, which includes the land to which the plaintiff has shown
title in fee, cannot establish an adverse possession as to the plaintiff's land, which
has remained vacant and unoccupied, by proving an actual possession of a portion
of the larger tract, when such possession does not extend to any of the land claimed
by the plaintiff. Especially is this the case when it appears that the defendant had
not asserted an absolute and unqualified right to such plaintiff's land for the time
required by the statute of limitations. Id.
24. WHEN THE TRANSCRIPT DOES NOT SHOW THAT THE NOTICE OF APPEAL WAS SERVED
upon the respondent's attorney, the appeal will not be dismissed when it appears
from the certificate of the Clerk of the Court below that such service was made.
Nissen v. Bendixsen. Cal. 290
25. AN APPEAL FROM A JUDGMENT RENDERED IN FAVOR OF THE UNITED STATES can
not be perfected without service of notice upon the United States. Such service
should be made upon the United States Attorney; service upon his assistant is not
sufficient. Bennett v. United States. Wash. 213.
26. AN APPEAL WILL NOT BE DISMISSED FOR FORMAL DEFECTS IN THE NOTICE OF
APPEAL in regard to the title of the court and cause and the particular description
of the judgment appealed from, when the provisions of the statute are substantially
complied with in such respects. Parker et al, v. Denny. Wash. 209.
27. A NOTICE OF APPEAL SHOULD CONTAIN A PARTICULAR DESCRIPTION of every
ruling, order, decree, or decision whereby the appellant has been aggrieved. All
that it is essential for the appellant to say in such regard is, that he has been
aggrieved by the following orders, rulings and decisions, and then enumerate them
severally by descriptions sufficient to identify each. Id.
28. FAILURE TO FILE TRANSCRIPT-DISMISSAL OF APPEAL.-Where the transcript on
appeal was filed less than fifteen days before the commencement of the term, the
appeal will be dismissed unless the appellant shows himself guiltless of inexcusab.e
laches in not having filed the transcript sooner. Crawford et al. v. Haller. Wash.
29. AN APPEAL FROM AN ORDER DENYING A NEW TRIAL, must be taken within sixty
days after the entry thereof.-Brown et al. v. Greene et al. Cal. 828.
30. SERVICE OF NOTICE OF APPEAL-Filing UNDERTAKING.—An undertaking on appeal
must be filed within five days after service of the notice of appeal. When such
service is by mail. the undertaking must be filed within five days after the deposit
of a copy of the notice in the post-office. Section 1013 of the Code of Civil Procedure,
extending the time in which acts may be done, in certain cases, has no application
to such case.-Id.
31. THE SAME THE TRANSCRIPT MUST CONTAIN PROOF of the service of the notice of
appeal upon the opposite party or his attorney.-Id.
32. AN APPEAL IS INEFFECTUAL WHEN THE NOTICE THEREOF is not signed by the at-
torneys of record or by the counsel for the appellant, or when the transcript contains
no proof that such notice was served upon the respondents.-Ellis v. Bennet et al,
Cal. 884.
33. SERVICE OF NOTICE OF APPEAL, PROOF OF. The certificate of the Clerk of the
District Court acknowledging due service of appeal is not sufficient proof of such
service to confer jurisdiction upon the Supreme Court. After rendition of judgment
the proof of such service may be shown by affidavit, when the validity of such judg
ment is attacked in a collateral action.—Blinn v. Crosby et al. Wosh. 796.
34. AN UNDERTAKING ON APPEAL MUST BE FILED WITHIN TEN DAYS from the time of
the service of the notice of appeal. If filed on the eleventh day, the appeal will be
dismissed.-Northern Pacific Terminal Co. v. Lowenberg et al. Or. 823.
35. THE ASSIGNment of ErrorS IN A NOTICE OF APPEAL must be specific. It is not
sufficient to state generally, that the errors relied on consisted in admitting or ex-
cluding testimony as shown by the bill of exceptions.-Id.
36. ASSIGNMENTS OF ERROR.-The Court will not review points nor consider questions
not clearly covered by the assignments of error on the record. -Kiskadden v. Allen,
Col. 320.
37. PRACTICE OF ASSIGNING MORE ERRORS than are necessary to present the points
relied on, strongly condemned.—Brewster, Receiver, etc., v. Baxter. Wash. 791.
38. AN OBJECTION TO A JUDGMENT, that it is inconsistent with the pleadings, may be
considered by the appellate Court without producing the evidence.—Seattle and
Walla Walla R. R. Co. v. Ah Kowe et al. Wash. 53.
39. APPELLATE COURT WILL NOT REVIEW THE FACTS OF A CASE for the purpose of
determining whether the findings are supported by the evidence, unless the same
are brought up on a statement of the case after a motion for a new trial. Beck v.
Truckee Lodge No. 14. Nev. 40.
40. REVIEW OF EVIDENCE ON APPEAL.-On an appeal from the judgment only, the
Court cannot inquire whether the verdist is supported by the evidence; this can be
done only upon an appeal from the order denying a new trial.-The People, etc., v.
Pierson. Idaho, 809.
41. ON APPEAL FROM A JUDGMENT, WITHOUT A STATEMENT OR BILL OF EXCEPTIONS,
nothing belongs to the record except the judgment roll, and no question arising out-
filed with the clerk of the board of county commissioners. Rupert v. County Com-
missioners of Alturas County. Idaho, 15.
10. THE BOARD OF COUNTY COMMISSIONERS IS NOT A COURT; it has no judicial func-
tions or power, and can not be vested therewith. Id.
11. MATTERS DECIDED BY THE DISTRICT COURT ON APPEAL FROM THE ORDERS OF THE
BOARD OF COUNTY COMMISSIONERS can only be brought to the supreme court for
review by writ of error.
12. NO APPEAL LIES FROM AN ORDER IN A CRIMINAL ACTION DISMISSING THE SAME
for want of prosecution. Such attempted appeal may be either dismissed or stricken
from the calendar. People v. Hollis. Cal. 71.
13. NO APPEAL LIES, IN A PROSECUTION FOR Murder, FROM AN ORDER DENYING A
MOTION in arrest of judgment, or from a judgment entered upon a plea of former
conviction. People v. Majors. Cal. 287.
14. MOTION FOR NEW TRIAL APPEAL FROM ORDER DENYING.-A motion for a new
trial can not be made in a prosecution for murder after a verdict in favor of the
people rendered upon a plea of former conviction, and consequently no appeal lies
from an order denying the same. Id.
15. THE SUPREME COURT HAS NO JURISDICTION OF AN APPEAL FROM A JUDGMENT of
the Superior Court affirming a judgment of the Police Court adjudging the defend-
ant guilty of a misdemeanor, and imposing on it a fine of fifty dollars. People, etc.,
v. Meiggs Wharf Company. Cal. 287.
16. APPEAL FROM JUSTICE'S COURT-EFFECT OF DISMISSAL-DAMAGES FOR FRIVOLOUS
APPEALS.-The dismissal of an appeal from the Justice's Court divests the District
Court of authority to proceed further, except to include costs on the dismissal. It
cannot impose damages for frivolous appeals, nor directly, and without trial, reverse
or affirm judgments brought by appeal from the Justice's Court. State ex rel. Bar-
nett v. Fifth District Court. Nev. 630.
17. APPEAL FROM JUSTICE'S COURT, DISMISSAL OF.-An appeal from a Justice's Court
to the District Court is perfected by the appellant's filing and serving his notice of
appeal, filing the necessary undertaking, and making payment of the costs in the
Justice's Court, and the cost of the transcript on appeal. The payment of a deposit
for costs in the District Court is not required by statute, and cannot be required by
a rule of the District Court. The dismissal of such an appeal for failure to make
such deposit is error. Wescoat v. Eccles. Utah, 446.
18. APPEAL FROM JUSTICE'S COURT-JURISDICTION OF.-The Supreme Court has no ju-
risdiction of an appeal from a judgment of the Superior Court, affirming a judgment
of the Justice's Court, in an action brought to recover one hundred and eighty dol-
lars, with interest and costs. Hackley v. Craig. Cal. 375.
19. DISMISSING APPEAL-AFFIDAVIT OF SERVICE OF NOTICE OF APPEAL.-On a motion
in the Supreme Court to dismiss an appeal on the ground that no notice of appeal
has been served, an affidavit of service, filed by the appellants in the District Court
on the same day the notice of motion to dismiss was filed in the Supreme Court,
may be considered on the argument of the motion to dismiss, whenever the Supreme
Court would, upon application, have allowed the appellants to furnish such proof.
Elder v. Frevert. Nev. 414.
20. THE SAME CONTENTS OF SUCH AFFIDAVIT.-The affidavit so presented alleged a
service of the notice upon respondent's attorney, at a time when he was absent from
his office and had no clerk therein, or other person in charge upon whom service
could be made, “by leaving a copy thereof in a conspicuous place in the office of
said attorney, between the hours of S A. M. and 6 P. M." Held, that an affidavit of
service thus repeating the exact language of the statute is insufficient; that whether
the place where the notice is left is conspicuous is a fact to be judicially determined
by the court, and not by the affiant. The affidavit should set forth the probative
facts touching the place where the paper was left, so that the ultimate fact, whether
such place was conspicuous, may be inferred therefrom by the court. Id.
21. THE SAME LEAVE TO AMEND.-As this question had never before been decided by
the court, and as the service might be a surprise upon the appellants, and might
possibly deprive them of a substantial right, leave to amend the affidavit of service
should be given them. Id.
22. AN APPEAL BY THE PEOPLE FROM A JUDGMENT OR ORDER SUSTAINING A DEMUREER
to an indictment will be dismissed where there is a prior appeal by the people from
the same judgment or order. People v. Jordan. Cal. 133.
23. WRIT OF ERROR MAY BE DISMISSED WHERE NO ABSTRACT OF THE RECORD IS FILED
as required by the rules of the Supreme Court. Hallack et al. v. Bresnahen. Wy.
ASSIGNMENT FOR BENEFIT OF CREDITORS.
1. AN ASSIGNEE FOR THE BENEFIT OF CREDITORS ACQUIRES ONLY SUCH RIGHTS in the
property assigned as his assignor had at the date of the assignment. Gammons v.
Holman. Or. 822.
2. A PAROL TRANSFER OF GOODS TO ARRIVE, AS SECURITY FOR A PRE-EXISTING IN-
DEBTEDNESS and for advances subsequently to be made, is valid as against the
assignee for the benefit of the creditors of the transferor, although actual possession
of such goods is not obtained by the pledgee until after the assignment for the benefit
of creditors. Gammons, Assignee, etc., v. Holman et al. Or. 822.
3. THE SURVIVING PARTNER OF AN INSOLVENT FIRM CAN NOT ASSIGN THE PARTNER-
SHIP assets for the benefit of preferred partnership creditors. If he does so, the
validity of such assignment may be questioned in a legal action by a firm creditor
without first resorting to an equitable action to cancel and set aside the same. Sal-
isbury v. Ellison. Col. 102, 612.
i. ATTACHMENT LAW-AMENDMENT OF 1881.-The fourteenth subdivision of section one
of the Attachment Act, as amended in 1881, providing that “in all actions brought
upon overdue promissory notes, bills of exchange, other written instruments for the
direct payment of money, and upon book accounts, the creditor may have a writ of
attachment issue upon complying with the provisions of this section," creates a new
and distinct ground of attachment, additional to the twelve others enumerated in
such act. Simmons v. California Powder Company. Col. 517; Kellerman v. Cres-
cent Milling, etc., Co. Col. 520.
2. SHERIFF'S FEES FOR KEEPING ATTACHED PROPERTY, ALLOWANCE OF.-Where prop-
erty has been attached by a Sheriff, at the instance of the plaintiff, in an action
which is afterward dismissed, the Sheriff is entitled to a reasonable compensation as
fees for his expenses in maintaining a keeper in charge of the property attached.
Such fees may be taxed as costs against the plaintiff. To determine the amount of
his fees, there being no statute regulating the same, the Sheriff should present his
bill to the court or judge, and procure an order allowing the same, or so much there-
of as may be proper. The party against whom such allowance is made may, upon
motion to retax, procure a rehearing and re-examination. The clerk has no power
to make such allowance. If, however, he does so, and his action is affirmed by
the court on a motion to retax, such irregularity furnishes no ground for a reversal.
City Bank of Leadville v. Tucker, Sheriff, etc. Col. 402.
3. ATTACHMENT-EXEMPTION, CLAIM OF HOW MADE.-No form is prescribed for mak-
ing a claim of exemption by a defendant whose property has been attached in an
action in the Justice's Court. He may make the same orally, and without notice to
the plaintiff. The notice referred to in Section 12 of the Attachment Act of 1879
applies to the cases of claimants to the property attached, other than the defendant.
Bassett v. Inman. Col. 534.
4. THE SAME-WAIVER OF EXEMPTION.-A defendant does not waive the right of
claiming property as exempt from attachment, by first traversing the attachment
upon other grounds. Id.
5. THE SAME COUNTY COURT-JURISDICTION TO DISSOLVE AN ATTACHMENT.-Upon
an appeal from the Justice's Court, the County Court has jurisdiction to dissolve an
attachment on the ground that the property attached is exempt. Id.
6. THE SAME REVIEW OF ORDER DISSOLVING ATTACHMENT.-The appellate court wil
not review an order dissolving an attachment for a ground not raised in the court
below. Id.
7. ATTACHMENT PROCEEDINGS, TRIAL OF ISSUES ON.-Under the Statutes of this Ter-
ritory attachment proceedings are auxiliary to actions at law, but each is character-
ized by separate pleadings and a distinct practice. If on the trial of the issues
alleged in the affidavit for an attachment a verdict is rendered for the defendant,
the attachment is dissolved, but the action at law proceeds to final judgment, when
the same is founded upon a matured demand. Where, however, the statute author-
izes an attachment on demands not due, but fails to describe the mode of procedure
to be followed in such cases, this Court has authority to provide by rule what the
practice shall be, so as to give effect to such attachment. Staab et al. v. Hersch.
N. M. 425.
8. IN ATTACHMENT PROCEEDINGS ON DEMANDS NOT DUE, the only consistent mode of
procedure is to treat such proceedings as separate and distinct from the action at
law, and to go no further than to create an attachment lien in advance of the com-
|