salvors for salvage, and receiving his due share of the award therefor, less the pay-
ment theretofore made. Id.
ADMISSION TO THE BAR.
See ATTORNEYS, 11.
1. ADVERSE POSSESSION.-The open and exclusive possession of real property for the
purpose to which it is ordinarily fit or adapted, constitutes adverse possession; and
the erection of a fence or other artificial boundary to indicate the limits of such
possession is not essential thereto. Zeilin v. Rogers (U. S. Cir. Ct.) Or. 466.
2. EJECTMENT-ADVERSE POSSESSION-TAXES.-In an action for ejectment, where the
defense relied is a title acquired by adverse possession after the passage of the act of
April 1, 1878, the defendant must rove, and the findings must show, that he or his
grantors have paid all taxes levied and assessed on the land in controversy, whether
the same were assessed to him or to some other person. Proof and a finding that
he paid all taxes assessed to him is not enough.-Ross v. Evans. Cal. 428.
3.-ADVERSE POSSESSION-RENTS AND PROFITS-ACQUIESCENCE. In such action, when
the defendant's possession of the land in dispute was with the consent and acqui-
escence of the plaintiff, under an agreement between the parties, and his claim of
ownership to such land was also acquiesced in, the plaintiff is not entitled to re-
cover for the rents and profits of such land for the time during which he acquiesced
in the possession of the defendant. Id.
4. FINDINGS ADVERSE POSSESSION-EVIDENCE-Finling that the defendant had ac-
quired title to the premises in controversy by adverse possession reviewed, and held
supported by the evidence. Specht, etc. v. Hager et al. Cal. 403, 404.
5. ADVERSE POSSESSION-KNOWLEDGE OF REAL OWNER'S TITLE.-Title to land may be
acquired by adverse possession, although the adverse holder has no knowledge of
the nature of the title of the real owner. Packard v. Johnson. Cal. 763. Packard
v. Moss. Cal. 769.
6. SWAMP LANDS-PURCHASE OF-ADVERSE POSSESSION.-Under the act of 1858, the
purchaser of swamp lands, who had fully paid for the same and complied with all
the terms of his contract, became absolutely enti led to a patent, upon the certifica
tion of such lands to the State, and the neglect of himself or his assignee to obtain
such patent will not prevent the running of the statute of limitations in favor of an
adverse holder from such date. Id.
See ESTATES OF DECEASED PERSONS, 5, 6.
1. APPEAL FROM JUSTICES' COURT-AMENDMENTS-CERTIORARI.-On an appeal from
the justices' court on questions of law and fact, the superior court has jurisdic-
tion to allow an amendment to the pleadings, upon such terms as may be just.
The action of the court in allowing an amendment is not reviewable on certiorari,
even if the same were irregular or erroneous.-Ketchum v. Superior Court of San
Joaquin County. Cal. 490.
See STATUTE OF LIMITATIONS, 2.
See DISMISSAL OF ACTION; PLEADING AND PRACTICE.
1. THE RIGHT OF APPEAL COMMENCES TO RUN FROM THE ACTUAL ENTRY of the judg
ment, and not from the date as of which it was entered nunc pro tunc.-Noce v.
Dareggio. Cal. 491.
2. REPORT OF REFEREE IN EQUITY CASE-EFFECT OF APPEAL.-Whatever effect the
report of a referee in a suit in equity has on the trial in the lower court, it can-
not be treated as a special verdict upon the facts at the trial on appeal. Such report
will not be disturbed on appeal unless in conflict with the preponderance of evi-
dence, nor will a decree entered thereon be reversed unless error affirmatively ap-
pears. O'Leary v. Fargher. Or. 333.
3. AN EQUITY CASE IS TO BE RETRIED IN THE APPELLATE COURT upon every issue,
both of law and fact, not waived in the lower court, without regard to the results
of the previous trial, whether had altogether before the court or partly before a
referee. Id.
4. REPORT OF REFEREE AND DECREE MODIFIED after a review of the evidence. I.
5. NO APPEAL LIES BY AN EXECUTOR, AS SUCH, FROM A DECREE SETTLING and distrib-
uting an estate. Estate of Marrey. Cal. 49.
6. AN ORDER DENYING A MOTION TO SET ASIDE A FINAL ORDER OF CONDEMNATION,
in an action for the condemnation of land, is not appealable. California Southern
R. R. Co. v. Southern Pacific R. R. Co. Cal. 52.
7. SETTING ASIDE JUDGMENT APPEAL FROM ORDER.—The effect of an appeal from an
order setting aside a judgment is not to revive the judgment. The judgment no
longer exists, so far as the assertion of any rights under it is concerned, until it
shall be brought into force again by a reversal of the order setting it aside. Estate
of Crozier, deceased. Cal. 157.
8. DISMISSAL OF APPEAL-FILING TRANSCRIPT.-An appeal will be dismissed when the
transcript is not filed within the time allowed by the court, although filed after the
motion to dismiss was made, if no reason appears why it was not filed before.
Heinlen v. Southern Pacific R. R. Co. Cal. 61.
9. DISMISSAL OF APPEAL-FILING ABSTRACT OF RECORD.-An appeal, after it has been
dismissed for failure of the appellant to file an abstract of the record, as required by
rule 12, will not be reinstated upon a showing that the counsel for the appellant
supposed no abstract was necessary, and that there was an oral agreement between
the counsel for the respective parties dispensing with such abstract. Spencer et al.
v. McMaster. Wy. 87.
10. APPEAL FROM JUSTICES' COURT-UNDERTAKING FOR COSTS.—In an appeal from the
justices' to the superior court an undertaking for the payment of costs on appeal is
required. In the absence of such undertaking the appeal will be dismissed. Groves
v. Superior Court. Cal. 194.
11. THE STATEMENT OF A FACT IN AN OBJECTION MADE AT THE TRIAL is no evidence
of the existence of such fact on the hearing in the appellate court. Chung Yon v.
Hop Chong. Or. 325.
See AMENDMENTS, 1; ATTACHMENT, 4; BILL OF EXCEPTIONS, 1-3; CERTIORARI, 4; CON-
TEMPT, 1; COSTS, 1; CRIMINAL LAW AND PRACTICE, 1-3; DEMURRER, 3; ESTATES
OF DECEASED PERSONS, 1; EVIDENCE, 7, 8; FINDINGS, 1; JUDGMENT, 1; PLEADING
AND PRACTICE, 7; TOLL ROads, 2.
APPEARANCE BY ATTORNEY.
See CANCELLATION, 1.
APPROPRIATION OF WATER.
See WATER RIGHTS, 2.
1. SUBMISSION TO ARBITRATION-ENTRY OF BY CLERK.-A submission to arbitration,
under section 1283 of the code of civil procedure, is invalid, unless a note thereof
is entered by the clerk of the superior court in his register of actions. Kettleman
vs. Treadway. Cal. 574.
1. FRAUD ON CREDITORS-ARREST-TORT.-A defendant, residing in this state, against
whom a personal judgment has been obtained in an action arising from his tort, may
be arrested in a subsequent action on such judgment, for fraudulently removing or
disposing of his property, with the intent to defraud his judgment creditor, although
such acts were committed out of the state and prior to the rendition of the judgment
sued on, if the plaintiff had no knowledge thereof until after the date of such judg-
ment. Ex parte Bergman. Nev. 394.
2. THE SAME-VOLUNTARY SURRENDER-RELEASE-A notice by the plaintiff or his
attorney to the sheriff, to release a defendant against whom a judgment for his
arrest had been rendered, under which he had surrendered himself before any proc-
ess had been issued against him, does not prevent the plaintiff from causing his
subsequent arrest under an execution issued on such judgment. Id.
3. IMPRISONMENT FOR DEBT-CONSTRUCTION OF CONSTITUTION.-Article 1, section 14,
of the constitution, does not prohibit the arrest of a defendant for fraudulently dis-
posing of his property with intent to defraud his creditor under a judgment in an
action for tort. Id.
4. THE SAME COSTS OF SUIT.- A judgment authorizing the arrest of a defendant for
fraudulently disposing of his property with intent to defraud his creditors, may
provide for his detention until the costs of the suit in which such judgment was
rendered have been paid. Id.
5. BAIL WHO MAY ADMIT PRISONER TO.-Under section 1284 of the penal code a
person charged with an offense not punishable with death, cannot be admitted to
bail by a magistrate of any county, except the one in which the warrant was issued
or the arrest was made. Mansir v. Superior Court. Cul. 762.
ASSAULT AND BATTERY.
See KIDNAPPING, 1.
ASSAULT WITH DEADLY WEAPON.
1. ASSAULT WITH A DEADLY WEAPON-VERDICT-INDICTMENT.-Under section 245 of
the penal code, as amended in 1874, in a prosecution for an assault with a deadly
weapon, it is unnecessary to charge in the indictment or for the jury to find that the
assault was made with intent to produce great bodily injury. It is sufficient to fol-
low the language of the statute in charging the offense, and for the jury to find in
the language of the charge. People v. Turner. Cal. 636.
2. THE SAME-INSTRUCTION BY THE COURT.-When on the trial for such an assault,
the fact of shooting by defendant was uncontroverted, being directly proved by
several witnesses, and admitted by the defendant himself when on the stand as a
witness, and the only defense was that the shooting was done in self-defense, and
the law on this subject of justification and excuse, and on the subject of reasonable
doubt, was fully and correctly given to the jury in the instructions of the court,
the refusal of the court to give a further instruction, as follows, was not error:
"You are instructed that before you can find the defendant guilty, you must be
satisfied, to a moral certainty, that the circumstances of the case are not only con-
sistent with the guilt of the defendant, but are entirely inconsistent with any other
reasonable hypothesis that can be decided from the evidence. Id.
3. ASSAULT TO MURDER-VERDICT.-Under an indictment for an assault to murder
with a deadly weapon, a verdict that "we the jury find the defendant guilty of an
assault to murder," is sufficient. People v. McFadden. Cal. 425.
4. WHETHER THE WEAPON USED IN THE ASSAULT WOULD HAVE PRODUCED DEATH
is a question for the jury. Id.
5. JURISDICTION OF SUPERIOR COURTS-ASSAULT WITH DEADLY WEAPON.-Under
article VI, section 5, of the constitution, the superior court has jurisdiction to con-
vict and punish a prisoner for a simple assault, under an information charging him
with an assault with a deadly weapon. In such case the lesser offense is necessarily
Cal. 438.
included with the greater. Ex parte Donahue.
See CORPORATIONS, 3, 4; STREET ASSESSMENT; TAXATION.
See CORPORATIONS, 6; COUNTER-CLAIM, 2; FRAUD, 1; INSOLVENCY, 5; MARRIED WOMEN,
1, 4, 5; MORTGAGE, 3, 4; NEGOTIABLE INSTRUMENTS, 5; PARTNERSHIP, 3-6.
ASSIGNMENT FOR BENEFIT OF CREDITORS.
1. ATTACHING CREDITOR.-The lien of an attachment is sufficient to enable a creditor
to maintain a suit in equity to set aside a fraudulent assignment of the property at-
tached, particularly under section 148 of the Oregon code of civil procedure, which
makes an attaching creditor a bona fide purchaser for a valuable consideration.
Kahn v. Salmon et al. (U. S. Cir. Ct.) Or. 383.
2. ASSIGNEE, POWER OF.-The assignee in a voluntary assignment is the mere instru-
ment of the debtor for the distribution of his property, and unless the power is
conferred upon him specially by statute, he cannot maintain any action or suit con-
cerning the same that the debtor could not, in case no assignment had been
made. Id.
1. ACTION FOR WORK AND LABOR-CONTRACT PRICE-QUANTUM MERUIT. - Where
work, labor and materials are done and furnished in pursuance of a special contract,
and substantially as specified therein, the contractor is entitled to recover on a
quantum meruit the reasonable value of the same, not exceeding the contract price.
Todd v. Huntington. Or. 331.
2. PLEADING-INDEBITATUS ASSUMPSIT-SERVICES.-Both at common law and under the
code a plaintiff may recover the reasonable value of his services, regardless of con-
tract, under a complaint in the nature of an indebitatus assumpsit. Leilensdorfer
et al. v. King, administratrix, etc. Col. 135.
See ACCOUNTING, 2-4; ATTORNEYS, 2-4.
1. ATTACHMENT-AMOUNT OF DEMAND-STATEMENT OF.-The statement of the amount
of the plaintiff's demand in a writ of attachment must be in conformity with the
amount stated in the complaint. Otherwise the attachment proceedings are void.
Bowers v. London Bank of Utah (Limited). Utah, 255.
2. UNDERTAKING ON ATTACHMENT-AMOUNT OF.-The amount of the undertaking to
be given before an attachment is issued is largely discretionary with the clerk.
When this discretion has been exercised within the limits prescribed by the statute,
the writ is properly issued, although the amount of the undertaking is greatly less
than the plaintiff's demand. Id.
3. AFFIDAVIT ON ATTACHMENT STATEMENT OF DEMAND.-An affidavit for an attach-
ment which alleges that the plaintiff's demand is on a contract for the direct pay-
ment of money, with the further allegation of how the debts accrued, sufficiently
specifies the nature of the contract. Id.
4. AN APPEAL LIES FROM AN ORDER REFUSING TO DISSOLVE AN ATTACHMENT. Shep-
pard v. Yocum et al. Or. $3.
5. NO ATTACHMENT CAN BE ISSUED IN AN ACTION TO RECOVER DAMAGES for the
wrongful taking, carrying away and conversion of money. Such action is founded
in tort. Id.
6. ATTACHMENT-DISTRIBUTION OF PROCEEDS.-Under section 116 of the code of civil
procedure, where more than one creditor proceeds against the same debtor by at-
tachment, the proceeds of the property attached must be distributed among such
creditors in proportion to the respective amounts of their several judgments. Dan-
iels et al. v. Lewis et al. Col. 225.
7. THE SAME.—The words "returned to the same term of the court to which they are
returnable," used in such section, should be interpreted to mean and to apply to all
writs of attachment which are in fact returned to, at or during the same term of
court at or during which they may properly be returned after service according to
law. Id.
See ASSIGNMENT FOR BENEFIT OF CREDITORS, 1; CONVERSION, 2; PARTNERSHIP, 1; SUP-
PLEMENTAL PROCEEDINGS; USE AND OCCUPATION, 1.
1. ADMISSION TO THE BAR-APPLICATION THEREFOR-EXAMINING COMMITTEE. —An
application for admission to the bar should be addressed to the examining committee
of the district in which the applicant resides. If the applicant is rejected by such
committee, he cannot apply for examination to any other examining committee. If
such rejection is the result of malice or unfairness on the part of the committee, the
applicant should apply to the supreme court for relief. A certificate of legal
proficiency must be signed by a majority of such committee, after an actual ex-
amination by all or a majority of them. A certificate signed by such majority, after
an ex mination only by one, is insufficient, and a license to practice issued thereon
will be revoked. People, etc. v. Betts. Col. 132.
2. IN DETERMINING THE REASONABLE VALUE OF AN ATTORNEY'S SERVICES, the jury
should consider the character of the litigation in which the same were rendered;
the novelty, difficulty and importance of the questions involved; the value of the
rights or property in controversy; the attorney's position in the case as leading or
assistant counsel, and the degree of responsibility resting upon him; the length of
time necessarily consumed by the trial and other court proceedings; the fact, if it
be a fact, that compensation is wholly contingent upon success, and the manner in
which his duties are performed. The verdict in this case, tested by these consider-
ations, is not excessive. Leitensdorfer v. King. Col. 135.
3. VALUE OF PROFESSIONAL SERVICES-EXPERT TESTIMONY.-In an action to recover
the value of an attorney's professional services, the jury are not bound by the opinion
of experts as to such value, but may use their own knowledge and experience in
determining the value. An instruction that their "finding as to such value should be
a fair and reasonable sum according to the evidence, after considering all the evi-
dence upon the subject, no more and no less," is proper. Id.
4 WHEN AN ATTORNEY'S FEE IS CONTINGENT UPON ULTIMATE SUCCESS in a particular
suit, the question when such ultimate success was obtained is a question of law.
In the present instance such success was obtained upon the entry of the decree in
the circuit court in the suit in which the services sued for were rendered.
See CANCELLATION, 1; CONTRACTS, 2; NEW TRIAL, 2.
BANKS AND BANKING.
See CORPORATION, 11.
BIAS, ACTUAL AND IMPLIED.
See JURY AND JURORS, 1-3.
1. ORDER GRANTING EXECUTION APPEAL-BILL OF EXCEPTIONS -
JUDGE.-An order authorizing the issuance of an execution will not be reviewed on
appeal, when the transcript contains no bill of exceptions nor certificate of the judge
below that the papers contained therein were used on the hearing of the motion.
Weiner et al. v. Korn et al. Cal. 507.
2. BILL OF EXCEPTIONS-NEW TRIAL-CRIMINAL LAW.-In the absence of a bill of ex-
ceptions, the supreme court will not review the action of the trial court, on a
motion for a new trial in a criminal prosecution. People, etc. v. Smith. Utah, 257.
3. MOTION FOR NEW TRIAL-BILL OF EXCEPTIONS-RECORD.-A motion for a new trial
is no part of the record which can be considered on appeal, unless made so by a bill
of exceptions. Chung Yow v. Hop Chong. Or. 325.
1. EXECUTION CREDITOR-PRIORITY-BONA FIDE Purchase-EQUITABLE TITLE.—The
holder of an equitable title t land, who obtained the same from the legal owner in
payment of a pre-existing debt, is not entitled to priority over a subsequent judg
ment creditor of the legal owner, who, without notice, has caused such land to be
levied upon under an execution issued on such judgment. Such execution creditor
is a purchaser in good faith, and for a valuable consideration. Bloomfield v. Huma-
son. Or. 614.
2. SACRAMENTO BONDS-ILLEGAL ISSUE-FUNDING ACT OF 1858.-Bonds issued by the
municipality of Sacramento, under the funding act of April 21, 1558, are valid in
the hands of a bona fide purchaser, although the same were irregularly or fraudu-
lently issued by the agents of such city. Meyer v. Brown. Cal. 760.
See ASSIGNMENT FOR BENEFIT OF CREDITORS; PARTNERSHIP, 5.
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