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time allowed for filing the bond; and an order suD-
sequently made, with a direction that it be entered
as of an earlier date, is unavailing. In re Sker-
rett's Estate. (Cal.) 22 P. 85.

23. Code Civil Proc. Cal. § 954, provides that, if
an appellant fails to furnish the requisite papers,
the appeal may be dismissed; but no appeal can be
dismissed for insufficiency of the undertaking
thereon, if a good and sufficient undertaking, ap-
proved by a justice of a supreme court, be filed in
the supreme court before the hearing on motion to
dismiss. On an appeal from a judgment and order
denying a new trial, the appeal-bond specified the
judgment alone. After the time allowed by stat-
ute for giving the bond in the court a quo, he filed
in the supreme court a bond on appeal from the
order, approved by the chief justice. Held, that
the statute only authorizes a new bond when the
one filed is insufficient, and that the appeal from
the order should be dismissed. Following Associ-
ates v. Wilkins, 12 P. 799. - Schurtz v. Romer,
(Cal.) 22 P. 657.

24. On an appeal from the judgment of a justice
of the peace in an action to recover the possession
of a mining claim, an undertaking given in accord-
ance with Code Or. § 2182, for an amount sufficient
to compensate the plaintiff for its use pending ap-
peal, and for costs and disbursements, is sufficient,
not only for a stay of proceedings on the judgment,
but for an appeal as well.-Bilyeu v. Smith, (Or.)

22 P. 1073.

Parties.

III. PRACTICE.

25. The stockholders of an insolvent mutual in
surance company may join in an appeal from an
adjudication on their claims for moneys paid by
them as stockholders on matured policies.-In re
California Mut. Life Ins. Co., (Cal.) 22 P. 869.

26. On an appeal by material-men from a judg.
ment denying a lien, it appeared that a subcon-
tractor, against whom a personal judgment had
been had in the same action, in favor of the ma-
terial-men, and from which no appeal had been
taken, had died since the rendering of the judg
ment. Held, that it was not necessary that he
should be represented, as his interests were in no
way involved in the appeal.-Davies-Henderson
Lumber Co. v. Gottschalk, (Cal.) 22 P. 860.
Briefs.

27. Where no brief is filed by appellant, calling
attention to an error in the judgment roll, no error
will be presumed.-Stuefen v. Jefferis, (Mont.) 22
P. 152.

28. Under general rule 26 of the supreme court
of Colorado, where neither party has filed briefs
within the time agreed upon by stipulations in the
cause, the appeal will be dismissed.-Owen v. Go-
ing, (Colo.) 22 P. 768.

Record.

29. Notice of intention to move for a new trial
need not be made part of the record on appeal.
Pico v. Cohn, 20 P. 708.-Scott v. Wood, (Cal.) 22
P. 871.

30. When a case made has been materially
changed long after it was settled and signed by the
judge, and attested and filed by the clerk of the
district court, and its verity thereby destroyed, it
is not entitled to consideration in a proceeding n
error.-Hill v. First Nat. Bank. (Kan.) 22 P. 324.

31. An order fixing the time when a case made
shall be settled and signed should be observed;
but, notwithstanding such an order may have been
disregarded, it is within the power of the court
or judge to thereafter, and upon reasonable notice,
settle and sign the case.-Hill v. First Nat. Bank.
(Kan.) 22 P. 324.

32. Though the opinion of the court below, in
overruling a motion for new trial, may be cited in
argument on appeal, and may be regarded by the
appellate court in arriving at a decision, it forms
no part of the record, and may be stricken out.-
White v. Merrill, (Cal.) 22 P. 1129.

33. Where counsel stipulate that all deposi-
tions on file may be "read and referred to on the
hearing of defendant's motion for a new trial
herein as part of the foregoing statement," and

3

that the same "shall be printed in the transcript
on appeal," and "form a part of the statement,
strict compliance with the requirements of statute
as to the manner of making them parts of such
statement is waived. Sharon v. Sharon, (Cal.) 23
P. 26.

31. An order not contained in the transcript,
but which, with leave of the supreme court, has
been entered nunc pro tune and certified up.
forms part of the record.-Lee Chuck v. Quan Wo
Chong Co., (Cal.) 22 P. 594.

35. Depositions on file may be made part of
the statement, by calling for them by the words
"Hero insert" at the proper place; and when the
transcript is made up they should be copied in
full, where called for.-Sharon v. Sharon, (Cal.)
22 P. 26.

36. Where an exhibit is omitted from the state-
ment, and no objection is made, and the attorneys
for respondent indorse on the statement, The
foregoing statement agreed to by us," and the
same is thereupon signed by the judge, the objec
tion that such exhibits have been omitted is
waived, and such omission presents no cause in
the supreme court for striking out the statement,
or any part of it.-Sharon v. Sharon, (Cal.) 22
P. 26.

37. Code Civil Proc. Cal. §§ 659, 660, provide that
the application for a new trial shall be heard at the
earliest practicable period after the bill of excep-
tions or statement is filed, and that the statement
must be filed with the clerk. Held, that the clerk's
certificate, showing that the statement was not
filed before the motion for a new trial was sub-
mitted, is conclusive in the appellate court, appel-
lant's affidavit to the contrary notwithstanding.-
Mills v. Dearborn, (Cal.) 22 P. 1114.

38. Respondent is not estopped from denying
that the statement was filed by a stipulation made
by him before the time for filing that it had been
served in time, and was correct, and might be pre-
sented to the court for settlement without further
notice.-Mills v. Dearborn, (Cal.) 22 P. 1114.

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41. An exception to an instruction, where the
exception is only to a part of the instruction, must
specify the particular portion of the instruction ex-
cepted to; otherwise, it will not be considered.-
Langford v. Jones, (Or.) 22 P. 1064.

42. Intermediate, non-appealable orders cannot
be reviewed on an appeal from the judgment,
where no bill of exceptions has been filed.—Gilman
v. Bootz, (Cal.) 22 P. 255.

a

43. A bill of exceptions, filed in an appeal from
appeal from a judgment in the same case.-Goy-
non-appealable order, cannot be considered in an
hinech v. Goyhinech. (Cal.) 22 P. 175.

44. Affidavits, read on a motion for a new trial
on the ground of newly-discovered evidence, which
are not incorporated in the bill of exceptions, but
merely marked by the clerk as having been used
on the hearing, form no part of the record.-Von
Glahn v. Brennan, (Cal.) 22 P. 596.

going statement on motion for a new trial has
45. The certificate of the judge that "the fore-
been settled and allowed by me" includes and au-
thenticates such exhibits, as a part of such state-
ment, although the certificate is attached to the
body of the statement and precedes the exhibits.-
Sharon v. Sharon, (Cal.) 22 P. 26.

46. Where such exhibits appear to have been
included in the statement, in the manner above
stated, the fact that some of them have been
omitted from the transcript is not ground for
striking out the whole statement. The remedy of
the respondent is to suggest a diminution of the
record, and have them brought up.-Sharon v.
Sharon, (Cal.) 22 P. 26.

47. A recital of an instruction alleged to have
been given, in the specification of errors, is not
sufficient to make the instruction part of the rec-
ord, which should be done by bill of exceptions.-
Goldman v. Bashore, (Cal.) 22 P. 82.

48. When a party takes a case by petition in er-
ror from a judgment of a justice's court to the
district court, the bill of exceptions should set out
all the pleadings filed in justice's court.-Winter
v. Shutter, (Kan.) 22 P. 564.

49. Where the bill of exceptions in such a case
sets forth the original answer in full, and also that
amendments have been allowed thereto, but such
amendments are not shown, it is error to reverse a
judgment in favor of defendants because a tender
was alleged in the original answer.-Winter v.
Shutter, (Kan.) 22 P. 564.

Exhibits.

50. Where certain exhibits, claimed to have

been used in evidence, are referred to in the body
of the statement on motion for new trial, as,
"Plaintiff's Exhibit, No.-, [giving the number,
see end of statement," and such exhibits are set
out in an appendix to such statement, properly
numbered, preceded by the recital, "The following
are the exhibits offered and read in evidence on
behalf of the plaintiff, and mentioned in the fore-
going statement," they are sufficiently identified
and incorporated in, and made a part of, such
statement.-Sharon v. Sharon, (Cal.) 22 P. 26.

Evidence.

51. The objection that the verdict is not justi
filed by the evidence cannot be considered on ap
peal, where the testimony is not embodied in the
record.-Territory v. Roberts, (Mont.) 22 P. 132.

52. The action of the trial court in overruling an
objection to evidence cannot be reviewed when the
evidence is not before the appellate court; and the
case will not be reversed when it appears that the
jury were instructed not to consider the evidence,
unless it is shown that the substantial rights of
defendants were affected by its admission.-People
v. Olsen, (Cal.) 22 P. 125.

53. Where an appellant relies for a reversal of
the judgment of the court below upon the insuffi-
ciency of the testimony to sustain the judgment,
the supreme court will not review and look into
the same, unless the record discloses affirmatively
that the bill of exceptions contains a statement of
all the testimony adduced on the trial of the cause.
-Atterberry v. Portland & W. V. Ry. Co., (Or.)

22 P. 527.

54. In order to have the question of whether
the evidence supports the findings and judgment
examined, the case made should show that it con-
tains all the evidence. A statement to that effect
in the certificate of the district judge settling the
case is insufficient. Eddy v. Weaver, 37 Kan. 540,
15 P. 492.—Hill v. First Nat. Bank, (Kan.) 22 P. 324.
55. Where a case made recites that the same
contains a substantial synopsis of the evidence on-
ly, and it is claimed that the evidence does not sus-
tain the findings of fact as found by the court,
the record is insufficient to have the evidence re-
viewed.-Barker v. Barker, (Kan.) 22 P. 1000.

56. The supreme court will not examine 26 ac-
count-books, covering 12 years, and involving large
amounts, submitted to show that the evidence does
not support the finding of the trial court, where the
evidence contained in the record amply supports
such finding, although the statement submitted
contains an agreement by all the parties that such
books may be used by either party without further
identification, and that inaccuracies in said
ment are to be corrected according to such books.
-Adams v. Lambard, (Cal.) 22 P. 180.

Certificate of judge.

58. Under Comp. St. Mont. subd. 3, § 298, requir-
ing a statement on a motion for a new trial to be
signed by the judge, "with his certificate to the ef-
fect that the same is allowed, "a statement on mo-
tion for a new trial to which no such certificate is
attached will be disregarded on appeal.-Scherrer
v. Hale, (Mont.) 22 P. 151.

59. An order denying a motion for a new trial
cannot be considered on appeal where the alleged
statement of the record has not been signed by the
judge of the trial court, and where the notice of
appeal fails to direct attention of the adverse party
to the fact that the order will be the subject of re-
view on appeal.-Stuefen v. Jefferis, (Mont.) 22 P.
Rehearing.

152.

60. By virtue of its appellate jurisdiction, con-
ferred on it by Const. Cal. art. 6, § 4, the supreme
court has the inherent power, independent of legis-
lative enactment, to grant a rehearing in cases on
appeal until a remittitur is regularly issued; and as
section 2 of the same article provides that a major-
ity, consisting of four justices, may decide any
matter within the jurisdiction of the court, Code
Civil Proc. § 45, which provides that, where there
has been no decision in one of the departments, an
order granting a rehearing after a judgment in
bank "shall be made in writing, signed by five jus-
tices, "is unconstitutional.-In re Jessup's Estate,
(Cal.) 22 P. 1028.

61. The division of the supreme court into two
departments made it necessary, in order to prevent
should be deemed conclusive only in case a rehear-
conflicting decisions, that department decisions
ing in bank should not be ordered; and therefore
Const. Cal. art. 6, § 2, providing for the rehearing
of department decisions, does not by necessary im-
plication prohibit rehearings after judgments ren-
dered by the court in bank.-In re Jessup's Estate,
(Cal.) 22 P. 1028.

Appeals from inferior courts.

62. A cause was tried before a justice of the
peace on the 28th day of May, 1886, and judgment
rendered for plaintiff on that day. The transcript
of the justice failed to show that any appeal was
taken by the defendant, or that any appeal-bond
was presented, approved, or filed. The justice, in
transmitting the transcript to the clerk of the dis-
trict court, included among the papers sent up an
appeal-bond, which purported to have been ap-
proved by him in time, but the bond recited a judg
ment rendered May 31, 1886. Held, that the dis-
trict court, upon the motion of the plaintiff, should
have dismissed the appeal.-Shuster v. Overturf,
(Kan.) 22 P. 718.

Stay of proceedings.

63. An application by one of the respondents
for a modification as to her of an order staying all
proceedings on the judgment pending appeal, will
not be allowed where the consideration of such
motion presents an important issue of fact, and in-
volves a question of law upon the construction of
a provision of a will, even if the right to grant
such modifying order were unquestioned.-Born
v. Horstmann, (Cal.) 22 P. 169.

Supersedeas bond.

64. Where appellants are not required to do
anything by the judgment, the filing of the stat-
utory undertaking on appeal ipso facto operates as
a supersedeas, staying all proceedings on the judg-
ment.-Born v. Horstmann, (Cal.) 22 P. 169.

65. Under Code Civil Proc. Cal. §§ 941-945, pro-
state-viding for undertakings on appeal in certain cases,
and section 946, providing that, whenever an ap
peal is perfected as provided in the foregoing sec-
tions, proceedings shall be stayed, the giving of a
bond at the proper time and in due form will have
that effect, without reference to the sufficiency or
insufficiency of the sureties.-Lee Chuck v. Quan
Vo Chong Co., (Cal.) 22 P. 594.

57. The certificate of a trial judge which simply
recites that the affidavits of certain persons were
used and considered, but fails to show that the af-
fidavits set out in the transcript on appeal from an
order after judgment are the same or true copies
of the ones used on the hearing, is insufficient, and
the appeal should be dismissed.-Somers v. Som-
ers, (Cal.) 22 P. 967.

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appears, the order will not be disturbed on appeal.
-Coburn v. Ames, (Cal.) 22 P. 174.

67. Where a cause has once been reviewed in the
supreme court on error, and the judgment of the
lower court modified, and the cause remanded, in
the subsequent proceedings in said cause, the for-
mer decision of this court will not be reviewed,
but it is final and conclusive. -Norton v. Huntoon,
(Kan.) 22 P. 565.

68. On an appeal from a judgment and an order
denying a new trial, the fact that the court refused
to order the sheriff to amend his return to a writ
of attachment issued in the case cannot be consid-

ered, as the attachment papers in no way affect the
validity of the judgment or the order appealed
from. Hermon v. Paris, (Cal.) 22 P. 971.

69. Where the record does not show any final
disposition of the case, and the only allegation in
the petition in error is "that the district court
erred in overruling the motion of the defendant
below to quash the summons and dismiss the ac-
tion," there is nothing for the court to review.
Simpson v. Stein, (Kan.) 22 P. 1020.

70. Where respondents filed a motion to dis-
miss an appeal, on the ground of an alleged de-
fect in the undertaking, and the certificate of the
clerk of the circuit court to the transcript showed
that an undertaking had been given, with a surety
named therein, and that the undertaking was giv-
en for an appeal, and for a stay of proceedings also,
as provided by Code Or. subd. 1, § 514, and there
was no authenticated proof as to the terms and con-
ditions of the undertaking, the motion will not be
considered.-Bilyeu v. Smith, (Or.) 22 P. 1073.

71. An order striking out a portion of the an-
swer, alleged as error and referred to in the state-
ment on motion for a new trial as "an error of law
occurring at the trial," which appears to have been
made before the trial, is an error involving discre-
tion, and cannot be considered on the motion for a
new trial, but is reviewable only on appeal from
the judgment.-Scherrer v. Hale, (Mont.) 22 P. 151.

72. An order allowing some and rejecting other
items of an administrator's account, and reserving
others for further consideration, is not a judgment
which, under Code Civil Proc. Cal. § 577, is the final
determination of the rights of the parties; and
hence section 939, providing that an exception, on
the ground that a decision is not supported by the
evidence, will not be reviewed on appeal from a
final judgment unless the appeal is taken from the
rendition of the judgment, does not apply. Re-
versing 20 P. 712.-In re Rose's Estate, (Čal.) 22
P. 86.

73. When the law governing a case has been
once ueclared by the opinion of an appellate court
on a direct appeal or writ of error, such opinion,
on the retrial of the same case upon the same state
of facts, is higher authority than stare decisis; it
is res judicata, so far as the particular action is
concerned-Lee v. Stahl, (Colo.) 22 P. 436.

74. Where, on appeal from the judgment in an
action for the diversion of a stream, the only ques-
tion involved was the admissibility of evidence to
show a prior appropriation by defendant below
plaintiff's dam, a statement in the opinion of the
court, that a prior judgment precluded defendant
from claiming any right to a certain number of
inches of said stream at the point of plaintiff's
diversion, "or at any point above," is merely
obiter, and not conclusive, as "the law of the
case, on a second appeal.-Wixson v. Devine,
(Cal.) 22 P. 224.

Objections not raised below.

75. An objection to the taxation of costs will
not be considered, on appeal, where no motion was
made to retax, and no exception reserved below. -
Muir v. Meredith, (Cal.) 22 P. 1050.

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sought to be elicited by it.-Houghton v. Clarke,
(Cal.) 22 P. 288.

78. Where an appeal is taken from a judgment
for want of findings, and the record discloses no
findings, but also fails to show that they were not
waived, waiver will be presumed, and the judg
ment will be affirmed.-Goyhinech v. Goyhi
(Cal.) 22 P. 175.

Rulings on evidence.

79. The refusal of a court to allow a question to
be answered by a witness will not be considered
on appeal, where there is nothing in the record to
show what the proposed testimony was.-Marshall
v. Hancock, (Cal.) 22 P. 61.

80. Where the bill of exceptions does not con-
tain all the evidence, it cannot be said that the
court erred in allowing a witness to testify that an
instrument purporting to be a deed was a mort-
gage.-Brown v. Casey, (Cal.) 22 P. 257.

81. The exclusion of apparently irrelevant ques-
tions is not error where the bill of exceptions do s
not show that they were introductory to material
and relevant facts.-State v. Lewis, (Nev.) 22 P.
241.

Weight of evidence.

2. The granting of a new trial for insufficiency
of evidence will not be disturbed except for £
abuse of discretion.-Grigsby v. Schwarz, (Cal.) 22
P. 1041.

83. The appellate court will only consider, as
respects the findings, whether the facts found jus
tify the conclusions of law drawn therefrom, unless
it is made to appear from a statement of excep
tions that the evidence upon which the findings of
fact were made was not, as a matter of law, sui-
cient to support the same.-Hicklin v. McClear,
(Or.) 22 P. 1057.

84. Where the evidence is conflicting, the order
of the trial court granting a new trial on the ground
that the evidence is insufficient to justify the ver
dict, will not be disturbed.-White v. Merrill, (Cal.)
22 P. 1129.

85. In an action for injuries to a stock of goods,
where plaintiff's witnesses, who have had experi-
ence with such goods, and took a general survey of
the stock after the injury, estimate the damages
at from $15,000 to $22,500, and defendant's expert
witness estimates them at from $1,500 to $3,000, and
the only estimate below $1,500 is that of defendant
himself, who places them at $25, but who saw the
goods a few minutes only, an order setting aside
a verdict for $100 for plaintiffs will be sustained.-
Landsman v. Thompson, (Mont.) 22 P. 1148.

86. Plaintiff was injured while digging a trench
by the fall of a part of the wall of an entry in the coal
mine of defendant company. All the evidence, ex-
cept that of plaintiff, went to show that there was no
negligence in the original construction of the en-
try, and that the accident was caused by digging
the ditch too close to the posts supporting the entry.
Plaintiff did not see the supporting posts until after
he was injured. Held, that a verdict based upon
a finding that the accident was not due to the dig-
ging of the trench, but that defendant was guilty
of slight negligence in the construction of the en-
try, could not be sustained.--Rodgers Coal Co. v.
Morgan, (Kan.) 22 P. 579.

87. Where the findings of the jury are favorable
to the defendants, and are based wholly upon dep-
ositions.-one witness deposing to statements
which, if true, would be sufficient to justify findings
for the plaintiffs, and another denying them suo
stantially and fully, a judgment for defendants
will not be disturbed by this court for the reason
that the jury erred in their findings.-Chase v.
Bonham, (Kan.) 22 P. 575.

88. A finding by the trial court of an ultimate fact
does not preclude the supreme court from review.
show such ultimate fact, where the finding thereof
recites that it appears "by the acts, facts, and mat-
ters above found. "-People v. Reed, (Cal.) 22 P.

76. A ruling of the trial court denying a motioning on appeal the sufficiency of the facts found to
for judgment on the pleadings will not be reviewed,
unless an exception was duly saved.-Robbins v.
Butler, (Colo.) 22 P. 803.

Presumptions.

77. An excluded question will be presumed to be
immaterial, unless the contrary appears from the
question itself, or from an offer to prove the facts

474.

Harmless error.

89. The admission, on second trial, of evidence
concerning matters not discreditable to defendant,

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414.

92. The exclusion of certain questions is harm-
less error, when anything advantageous to the
party asking them that could have been answered
to them was brought out in other parts of the wit-
ness' testimony.-State v. Lewis, (Nev.) 22 P. 241.
93. Denial of plaintiff's motion to disregard de-
fendant's statement, served on his motion for a
new trial after judgment for plaintiff, is not prej-
udicial to the latter, as his objections to the state-
ment can be considered on the hearing of defend-
ant's motion.-Arnold v. City of San Jose, (Cal.)
22 P. 878.

94. Where a demurrer to the plaintiff's evidence
was overruled, when, owing to the omission of some
testimony, it should have been sustained, but
afterwards defendant introduced evidence which
supplied the omission, and upon all the evidence
introduced at the trial the judgment was properly
given for the plaintiff, the error became immate-
rial.-Goddard v. Donaha, (Kan.) 22 P. 708.

95. In an action for goods sold, in which defend-
ant files a set-off for damages sustained by plain-
tiff's refusal to accept wood purchased of defend-
ant, it is harmless error, if error at all, to refuse
to allow defendant to testify as to the price for
which she afterwards sold the wood, when she has
already stated the amount of her loss, and that the
sum was the difference between the contract price
and the sum for which she was obliged to sell the
wood.-Goldman v. Bashore, (Cal.) 22 P. 82.
Objections waived.

96. Where a party in a civil action requests the
court to instruct as to the measure of damages, and
the court gives the instruction prayed for, and the
jury in their special findings show that the verdict
embraces only such damages as are included in the
instruction requested, such party cannot complain
that the instruction is erroneous.-Chicago, K. &
W. R. Co. v. Watkins, (Kan.) 22 P. 985.

97. Where the motion for a new trial states only
that "the verdict is not sustained by sufficient evi-
dence, and that it was procured by the fraud of the
prevailing party," the errors in the instructions, if
any, must be considered as having been waived.-
Leavenworth, N. & S. Ry. Co. v. Whitaker, (Kan.)

22 P. 733.

98. Where a complaint is framed with a view to
alternative relief, and upon the trial in this court
the plaintiff presents only one aspect of his case,
the other will be treated as waived, and will not be
passed upon or considered.-Wood v. Rayburn,
(Or.) 22 P. 521.

99. Where two appeals are taken in the same
case,-one from the judgment, and the other from
the order denying a new trial,-a judgment of the
supreme court on appeal from the judgment, which
has not been acted on by the court below, or the
parties, does not become the law of the case, so far
as to affect the right or power of the supreme
court to determine all questions presented on the
appeal from the order denying a new trial to the
extent of modifying the former decision.-Sharon
V. Sharon, (Cal.) 22 P. 26.

Two appeals.

V. DECISION.

100. Where there are two such appeals, the whole
case is under the control of the supreme court un-
til the whole is disposed of and the cause remand-
ed for further proceedings in the court below.
-Sharon v. Sharon, (Cal.) 22 P. 26.

101. Under Code Colo. $ 80, (Gen. St. 1883,) which
declares that the allegations of a pleading shall be

liberally construed, with a view to substantial jus-
tice, a judgment will not be disturbed on the
ground that it is not warranted by the pleadings,
where a former decision clearly implies that the
pleadings afford no obstacle thereto, and the case
is remanded merely to permit the introduction of
evidence on the undetermined issues.-Schiffer v.
Adams, (Colo.) 22 P. 964.
Affirmance.

102. If the action of the court below is well taken
on any ground, this court will affirm the ruling,
without regard to the reasons which the court may
have assigned therefor.-Wakeham v. Barker,
(Cal.) 22 P. 1131.

103. Pending ejectment, a receiver was appoint-
ed to take charge of the property and collect wharf-
age therefrom. Plaintiff recovered the land, but
not the wharf attached, and the court ordered that
the money collected by the receiver be paid to
plaintiff. This order being reversed on appeal, the
lower court, after hearing the evidence, inade an
order for an equal division of the wharfage, and
that plaintiff pay the money into court. Held that,
as the evidence showed that defendant was enti-
tled to at least one-half the wharfage, the order
would be affirmed.-Coburn v. Ames, (Cal.) 22 P.
174.
Modification.

104. The supreme court can, after an order dis-
missing an appeal, and after a remittitur is sent to
the court below, modify the order of dismissal so
as to read "without prejudice. "-Romine v. Cralle,
(Cal.) 22 P. 296.
Reversal.

105. Where a judgment is right upon the facts
found, the appellate court will not reverse it for
an erroneous statement of the principles of law in
volved.-Quinn v. Quinn, (Cal.) 22 P. 264.

106. When the special findings of a jury are in
conflict with the general verdict, and inconsist
ent with each other, and are so uncertain and in-
complete that the appellate court cannot render
judgment on them, the judgment rendered by the
trial court will be reversed, and the cause remand-
ed for further proceedings.-Atchison, T. & S. F.
R. Co. v. Woodcock, (Kan.) 22 P. 421.
Dismissal.

107. An appeal will be dismissed for want of
prosecution, where briefs are tendered to the clerk
for filing two years after the time fixed by stipu-
lation has expired, and it does not appear that ap-
pellees were served with notice of such tender.-
Denver & R. G. R. Co. v. Wilford, (Colo.) 22 P. 897.

108. The dismissal of an appeal on the ground
that no judgment had been entered on the findings
complained of is no bar to an appeal when the rec-
ord is properly made up.-In re Rose's Estate,
(Cal.) 22 P. 86.

VI. LIABILITIES ON APPEAL-BONDS.
Extent of liability.

109. When a judgment appealed to the supreme
court has been affirmed, the sureties on the ap
peal-bond are liable thereon in a sum not exceed-
ing its penalty, to the extent of their principal's
liability by virtue of the judgment.-Johnson v.
McMillan, (Colo.) 22 P. 769.
Defenses.

110. It is no defense that another bond was exe-
cuted to secure to the clerk of the appellate court
his fees, where the plaintiffs, the former appellees,
were not parties to such bond, and it did not se-
heimer v. Crow, (Colo.) 22 P. 779.
cure to them all costs they might incur.-Thal-

111. Where an appellant has failed to perfect his
appeal by filing a transcript of the record within
the time required by law, his sureties are still lia-
ble on the appeal-bond, whether a motion to dismiss
the appeal be made and allowed or not.-Thalhei-
mer v. Crow, (Colo.) 22 P. 779.
Action on bond.

112. In an action on an appeal-bond, the complaint
is sufficient where it sets out the bond, and alleges
affirmation of the judgment appealed from, and

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1. Submission in arbitration, which contains no
stipulation that it may be made an order of court,
may be revoked under Code Civil Proc. § 1283, pro-
viding that, "if the submission is not made an or-
der of the court, it may be revoked at any time be-
fore the award is made."-Sindlinger v. Kerkow,
(Cal.) 22 P. 932.

2. Under a submission of all questions in dif-
ference between the parties concerning the busi-
ness of brick-making, in which they had been en-
gaged as partners, so that all rights of action
arising therefrom may be conclusively settled, the
arbitrators can determine what amount of the un-
collected assets is due to each party.-Simons v.
Mills, (Cal.) 22 P. 25.

Validity of proceedings.

3. It is no objection to an award that the arbi-
trators took advice relative to the questions before
them, if they decided on their own judgment.-
Simons v. Mills, (Cal.) 22 P. 25.

Information.

ARSON.

1. An information, under section 57 of the
Crimes Act Kan., which charges that "one D. M. J.
did then and there unlawfully, feloniously, burn a
barn, the property of Geo. L. Painter, then and
there situate, with intent to defraud the insurers
of said barn, to-wit, the German Insurance Com-
pany of Freeport, Illinois, and the Fireman's Fund
Insurance Company of San Francisco, California,"
is sufficient, after a verdict of guilty, to support
sentence against a motion in arrest of judgment,
although the information does not contain the fol-
lowing words of the statute, "which shall at the
time be insured against loss or damage by fire. "-
State v. Jessup, (Kan.) 22 P. 627.
Evidence.

2. The trial judge is not bound to stop proceed-
ings in order to try an experiment in open court
as to the length of time it would take a candle
to burn down to the point of those discovered in
defendant's saloon after the fire; but, he may ad-
mit proof of such an experiment.-People v. Se-
vine, (Cal.) 22 P. 969.

3. Evidence showing the amount of defend
ant's loss, and the value of stock remaining, as as-
certained in the course of an adjustment of the loss,
in the presence and with the assistance of defend-
ant, is admissible on the question of motive.-Peo-
ple v. Sevine, (Cal.) 22 P. 969.

4. On a trial for arson, it appeared that the fire
started at about 1 o'clock at night in a saloon of
defendant, who was not doing a prosperous busi-
nexs. His fixtures were insured for $2,500, and
a few days before the fire he had tried to sell

them at auction, but had failed to receive a bid
of $2,000 for them. The proprietor of the build-
ing testified that defendant had said, if he could
not sell for $1,600, he would have to sell out to the
insurance company. The fire was discovered be-
hind the bar, which was found to be all ablaze, and
the room stifling with the smell of coal oil. Refuse
matter, saturated with coal oil, was found near the
fire, and the walls, counters, and floor were in a
like condition. A small piece of candle was found
burning under the counter, with some of the ref-
use near it, while two other small pieces were
found under the counter, not burning. The resu.t
of an experiment was given in evidence, which
demonstrated that it took an hour and 42 minutes
to burn a candle down to the point to which these
had burned. Held sufficient to warrant a convic-
tion, though defendant's evidence was to the effect
that after closing his saloon, about 11 o'clock, he
went home, where he remained until notified of the
fire.-People v. Sevine, (Cal.) 22 P. 969.

ASSAULT AND BATTERY.
With intent to kill, see Homicide, 11, 12.
Information.

1. An information charging that defendant, at
a time and place named therein, "did commit an
assault with a deadly weapon, to-wit, a revolver,
upon the person of one N.," sufficiently describes
the weapon and charges the felonious intent, with-
in Pen. Code Cal. § 245, providing for the punish-
ment of "every person who commits an assault
upon the person of another with a deadly weapon
or instrument, or by any means or force likely to
produce great bodily injury. "-People v. Saver-
cool, (Cal.) 22 P. 856.

2. Pen. Code Cal. § 245, provides that "every
person who commits an assault upon the person of
another with a deadly weapon or instrument, or by
any means or force likely to produce great bolily
injury, is punishable, "etc. Aninformation charged
that defendant, "with a deadly weapon, namely,
a knife, which he, the said F., in his hand then
and there had and held, upon the person of one C.,
there being, did willfully, unlawfully, and felo
niously commit an assault, contrary to the form,
force, and effect of the statute." Held, that the
information was not defective as failing to allege
that defendant assaulted a human being, or as fail-
ing to allege intent or present ability to commit
the assault.-People v. Forney, (Cal.) 22 P. 481.

Assessment.

For public improvements, see Municipal Corpora-
tions, 20-27.
Of taxes, see Taxation, 1, 2.

Assignment.

See Assignment for Benefit of Creditors.
Of location certificate, see Public Lands, 24, 25.
mortgages, see Chattel Mortgages, 5.
ASSIGNMENT FOR BENEFIT
OF CREDITORS.

See, also, Bankruptcy; Insolvency.
Dealings with assignee's agent, see Principal and
Agent, 11.
Bond.

When an assignee fails to give bond as re-
quired by Civil Code Cal. § 3467, the assignor can-
not annul the assignment, but may have the as-
signee removed.-Bryant v. Langford, (Cal.) 22 P.

219.

When lies.

ASSUMPSIT.

1. In an action for work done for defendants
in digging a well, where the complaint contains
the quantum meruit count, it is error for the
court to take the case from the jury, and dismiss
the suit, on the theory that the suit was on a con-

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