DIGEST OF CASES

REPORTED IN VOLUMES 1, 2, 3, 4.

ABANDONMENT.

See HOMESTEAD, 9-12; LEASE, 1; WATER RIGHTS.

ABATEMENT.

1. ABATEMENT--DIVORCE-FRAUDULENT MARRIAGE CONTRACT.-A suit in equity by one party to a marriage contract in writing, alleged to have been entered into in pursuance of section 75 of the civil code of California, to annul the contract as fraudulent, and for an injunction, is for a different cause from one by the other party to the contract, for a divorce arising upon the same alleged marriage contract; and a suit for the latter object pending in one court will not abate a suit of the former character subsequently brought in another court. Sharon v. Hill (J. S. Cir. Ct., Cal.), IV, 199.

2. ABATEMENT-DIFFERENT JURISDICTIONS.-The state and United States courts are courts of different jurisdictions, and a suit pending in a state court will not abate a suit subsequently brought in a United States court for the same cause. Id. See CORPORATIONS, 50; NUISANCE, 16, 20-22, 26.

ABSENT WITNESSES.

See CONTINUANCE.

ACCESSARY AFTER THE FACT.

See MURDER AND MANSLAUGHTER, 13.

ACCOMPLICE.

SAL LAW AND PRACTICE, 23, 25; MURDER AND MANSLAUGHTER, 83, 84.

ACCORD AND SATISFACTION.

FOR THE PURCHASE AND SALE OF A CERTAIN AMOUNT OF LUMBER, an accord of a previous agreement for the same purpose, which renber to be of good quality, will be construed in accordance with the tending the making of the previous agreement, so as to require the to be of good quality. Cary v. McIntyre (Col.), II, 117.

CH ACCORD AGREEMENT MAY BE WAIVED by the party in whose on was made, to the extent, at least, of preventing the party ling the agreement, and declaring it a nullity. Id.

ENT IS BINDING upon the party who signs the same, although it other party. Id.

765

4. FAILURE TO PERFORM AN AGREEMENT FOR AN ACCORD can not, be taken advantage of by the party through whose fault such failure was occasioned. Tucker v. Edwards (Col.), II, 400.

See ACCOUNTING, 3; PLEADING AND PRACTICE, 29, 30.

ACCOUNT.

See ACCOUNTING; HUSBAND AND WIFE, 13; PAYMENT, 2.

ACCOUNTING.

1. DISSOLUTION OF PARTNERSHIP-ACCOUNTING-SettlemeNT BY PARTNERS.-In an action to dissolve a partnership, and for a settlement of its affairs, the account must generally be taken from the beginning to the end of the partnership. But if there has been a partial settlement between the partners themselves, that fact may be proved in the action; and, if proved, the settlement will be considered valid as between the partners themselves, unless it is assailed on the ground of mistake, error, or fraud. If there is no valid objection to the settlement, it is conclusive upon the parties as far as it goes, and leaves open only the unsettled portions of the account. Stretch v. Talmadge (Cal.), III, 579.

2. ASSUMPSIT-WORK AND LABOR-AVOIDING Settlement.—In an assumpsit for work and labor, the plaintiff can not avoid a settlement of the account between himself and the defendant, for mistakes or errors in items thereof. Such avoidance can only be had in an action to set aside the settlement. Roach v. Gilmer et al. (Utah), III, 258.

3. SETTLEMENT OF ACCOUNT-ACCEPTANCE BY CREDITOR.-A payment made and accepted as an adjustment of an unsettled or unliquidated demand will operate as a satisfaction, although shown to be much less than the creditor was entitled to receive, and would have received, had he brought an action. The fact that the creditor dissented at the time of the settlement can make no difference, if he finally accepted the debtor's offer, and agreed to the settlement. Id.

4. VERDICT AGAINST EVIDENCE-WORK AND LABOR.-A verdict for the plaintiff, in an action for work and labor, will be held unsupported by the evidence, when the same is largely in excess of the amount prayed for, and when no allowance is made for undisputed payments by the defendant. Id.

5. ACCOUNTING BETWEEN PARTNERS-PRESENTATION OF CLAIM.-In an action of accounting 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 life-time, notwithstanding the claim for the sum so drawn has never been presented to the administratrix of the deceased partner for allowance and approval. Manuel, Adm'x, v. Escolle (Cal.), II, 375.

6. 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 can not, 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 warranty or of deceit. Black et al. v. Merrill (Cal.), II, 137.

See ESTATES OF DECEASED PERSONS, 5, 7, 14, 15; FRAUD, 9; GUARDIAN AND Ward, 4, 6, 7; PARTNERSHIP, 14, 15.

ACCOUNT STATED.

1. UPON AN ACCOUNT STATED THE LAW IMPLIES A VALUABLE CONSIDERATION, and it is not necessary to inquire into the nature of items of the original account. Proof of a settlement and stated account between the parties makes out a prima facie case for the plaintiff. Orr v. Hopkins (N. M.), I, 157.

2. PROMISSORY NOTE IS THE MOST SATISFACTORY EVIDENCE of a settlement between the parties thereto, and may be received in evidence in support of the common count upon an account stated. Id.

3. ACCOUNT STATED, WHAT CONSTITUTES.—In an action on an account stated against the three defendants as partners, in which the defendant H. alone appeared and answered, it appeared on the trial, after evidence showing that the defendants B. and M. originally composed the firm, under the name of B. & M., and that the defendant H. subsequently became a partner, and the firm name was, therefore,

changed to B., M. & Co.; that the plaintiff sent by mail, from Stockton, his place of residence, a copy of an account, inclosed in an envelope and properly directed to the defendant II. at Frisco, his residence and post-office address. This account was headed "B. & M., in acct. with L. Benites," and contained a large number of items running through several years, only one of which was charged to the firm of B., M. & Co., and showed a balance of $1,663.70 due to the plaintiff. No letter or other writing accompanied it explaining it, or why it was sent to the defendant H., nor demanding payment. There was no evidence whatever showing the distance between Stockton and Frisco, nor the time required for transportation of the mail between those places, nor the number or frequency of mail communication between them, nor the length of time which had elapsed after the mailing of said account to the defendant H. before the commencement of this action; nor did it appear when this action was commenced. There was evidence that the defendant H. received the account. Held, that no account stated between the parties was shown, and a ruling on the trial refusing to admit a copy of such account in evidence against the defendants was not error. Benites v. Bicknell et al. (Utah), II, 359.

4. THE SAME-EFFECT OF AN ACCOUNT STATED. -When the parties to an account have examined it, and have expressly agreed upon a certain sum of money as the balance justly due thereon from one party to the other, then such account has become an account stated, and an action upon it is not founded upon the original items, but upon the balance ascertained by the mutual accounting of the parties. Id. 5. 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 satisfied with it as presented, and the presumption is so strong that a suit can be maintained upon the account as an account stated without proof other than that the account 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 my mail. Id. 6. 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.

ACKNOWLEDGMENT OF DEED.

See DEED, 17. 19; MARRIED WOMEN, 5; MORTGage, 43.

ACQUIESCENCE,

1. DELAY AS EVIDENCE OF ACQUIESCENCE.-How far delay may be evidence of acquiesence must depend upon the circumstances of each case. In the present case, the complainant is entitled to the benefit of the conduct of the community, and this conduct shows a constant opposition on their part to the acts of defendants during the whole period of their hydraulic mining operations, since the injury became material. Acquiescence in a certain amount of nuisance is not acquiescence in a similar nuisance which is constantly increasing in magnitude, and in its destructive effects. For the same reasons, the delay or lapse of time in bringing this suit does not constitute laches. Woodruff v. North Bloomfield G. M. Co. (U. S. Cir. Ct., Cal.), I, 183. 2. BOUNDARY LINE-ACQUIESCENCE IN AND DISPUTE AS TO.-The fact that two adjoining proprietors verbally agreed upon, and for a long space of time mutually acquiesced in, a boundary line between their respective premises, will not prevent them or their grantees from subsequently disputing the correctness of the same, unless it further appears that, at the time of such agreement, the boundary line was doubtful, uncertain, or in dispute. Lennox v. Hendricks (Or.), III, 563.

See ADVERSE POSSESSION, 6; BANKS, 2; LACHES, 1; NUISANCE, 8; OREGON DONATION ACT, 2; SPECIFIC PERFORMANCE, 8; WATER RIGHTS, 15.

ADMINISTRATORS.

See EXECUTORS AND ADMINISTRATORS.

ADMIRALTY.

1. 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.), II, 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 "union jack.” Id.

66

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 "extraordinary danger and risk." The C. D. Bryant (U. S. Dist. Ct., Or.), II,

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 Commercial Co. v. The Barkentine C. L. Taylor. The Barkentine C. L. Taylor v. Puge! Sound Commercial Co. (Wash.), II, 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. (Wash.), II, 51.

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 considered 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. AN 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.), II, 557.

11. LETTERS DISMISSORY OF ADMIRALTY CAUSE.-The allowance of an appeal in admiralty, and the granting of time by the lower court in which to perfect the same, is a sufficient letters dismissory of the cause.

Id.

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. Id.

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 intervention of such monition. Id.

15. MARITIME CONTRACT-COMPLETED VESSEL.-Whether a contract for putting machinery 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 machinery 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.