should be made upon the United States attorney; service upon his assistant is not sufficient. Bennett v. United States (Wash.), II, 213.

47. APPEAL UNDERTAKING STAY OF EXECUTION.-An undertaking on appeal to stay execution may be filed at any time after the appeal is taken, and before the execution is satisfied. Mansfield v. Stern (Cal.), IV, 141.

48. APPEAL-CERTIFICATE OF DEPOSIT IN LIEU OF APPEAL UNDERTAKING.-The statutory requirement that to render an appeal effectual, the appellant may, instead of giving an undertaking with sureties, deposit money equal in amount to the sum named in the undertaking, is substantially complied with by leaving with the clerk a certificate of deposit, payable to his order, for the requisite amount. Alt v. California Fig Syrup Co. (Nev.), IV, 255.

49. APPELLATE JURISDICTION OF SUPREME COURT-PROCEDURE ON APPEALS.—The supreme court can not decline to take cognizance of a matter clearly within its jurisdiction, because the mode of procedure applicable to it has not been regulated by statute, written rule, or precedent. In such case it is its duty to create a precedent, and it may adopt or ratify the practice resorted to on the first occasion when the exigencies of a cause require a reasonable and unprecedented practice to be resorted to. People v. Jordan (Cal.), IV, S5.

50. THE SAME-APPEALS IN MISDEMEANORS-PROCEDURE.—The supreme court has jurisdiction to entertain appeals in cases of misdemeanors prosecuted by indictment or information; and, as the legislature has failed to prescribe the mode of procedure on such appeals, to provide therefor by rule, and, in the absence of a previous rule, to sanction a mode of procedure adopted on a particular occasion. The practice pursued in taking the present appeal is adopted, and hereafter appeals in criminal actions prosecuted by indictment or information amounting to misdemeanors only, will be sustained, from the judgments and orders mentioned in chapter 1 of title 9 of part 2 of the penal code, when the appeal is taken in the manner therein prescribed. Id.

51. NOTICE OF APPEAL, FORM OF.-A notice of appeal which plainly indicates the particular order appealed from is sufficient in form. Id.

52. JUDGMENT on Demurrer TO INDICTMENT, ENTRY OF-NOTICE OF APPEAL.-The penal code does not provide for any entry of judgment on a demurrer to an indictment other than the entry of the order upon the minutes. The order in the minutes is the judgment. A judgment that such demurrer be “sustained" is a substantial compliance with section 1007 of the penal code, and is in effect a judg ment that the demurrer be allowed. An appeal from such judgment is not rendered ineffectual because, in the notice of appeal, the judgment specifically described is called an "order." Id.

53. TRANSCRIPT ON APPEAL-ATTACK ON, IN SUPREME COURT.-The verity of a fact stated in the transcript on appeal can not be attacked by affidavits in the supreme court. People v. Jordan (Cal.), IV, 138.

4. THE HEARING.

54. 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 evidence, nor will a decree entered thereon be reversed, unless error affirmatively appears. O'Leary v. Fargher (Or.), III, 333.

55. 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.

56. REPORT OF REFEREE AND DECREE MODIFIED after a review of the evidence. Id. 57. IN THE ABSENCE OF A BILL OF EXCEPTIONS IN THE RECORD, the appellate court will not notice alleged irregularities occurring at the trial. Newby v. Rowland (Or.), I, 521. 58. ERRORS IN THE CHARGE TO THE JURY CAN NOT BE MADE AVAILABLE ON APPEAL, unless they are material, or calculated to mislead the jury, or to produce a wrong result. Martin v. Hill (Utah), I, 629.

59. ERRORS ASSIGNED FOR REFUSING TO GIVE CERTAIN INSTRUCTIONS ASKED FOR, and in the form of the judgment, can not be considered by the appellate court unless the transcript contain all of the instructions given, and a copy of the judgment. Tucker v. Parks (Col.), I, 264.

60. OBJECTIONS TO A COMPLAINT OTHER THAN THAT IT DOES NOT STATE FACTS SUFFICIENT to constitute a cause of action must be made in the court below to entitle them to consideration in the appellate court. Id.

61. 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.), II, 320.

62. 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.), II, 53.

63. 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.), II, 40.

64. REVIEW OF EVIDENCE ON APPEAL.-On an appeal from the judgment only the court can not inquire whether the verdict 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), II, 809.

65. 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 outside the roll can be considered. The mode of presenting questions not arising on the judgment roll for review on appeal is by statement or bill of exceptions. Jones v. St. John Irrigating Co. (Idaho), II, 183.

66. ON APPEAL THIS COURT CAN ONLY NOTICE THE ERRORS COMMITTED AGAINST THE APPELLANT, not those committed against the successful party. Id.

67. ERRORS IN THE ADMISSION OR REJECTION OF TESTIMONY, or in the giving or refusal of instructions, can not be considered on appeal when no exceptions were taken during the trial. Ralph et al. v. Weary et al. (Col.), II, 324.

68. WAIVER OF APPEAL.-Matters may occur subsequent to the judgment which operate to waive the right of a party to have the judgment reviewed on appeal or writ of error. When such matters appear of record, the objection to the appeal may be raised by a motion to dismiss; but where they do not so appear the objection must be raised by a plea in bar of the proceedings in error. The supreme court has jurisdiction to institute the necessary inquiry whether the matters alleged to constitute the waiver have in fact occurred. Atkinson v. Tabor (Cal.), II, 105. 69. ERRORS OF LAW OCCURRING ON TRIAL MUST BE SPECIFIED.-Errors of law alleged to have occurred on the trial will not be considered on appeal unless the same are specified in the statement of the case. Carter v. Allen et al. (Cal.), IV, 385. 70. MOTION MADE AFTER JUDGMENT-APPEAL FROM ORDER-IDENTIFICATION OF PAPERS.-Copies of papers used on a motion made after judgment will not be considered on appeal, although contained in the transcript, unless the same are identified by the certificate of the judge, or otherwise, as having been used or considered on the hearing. Peltret v. Frank (Cal.), IV, 221.

71. 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.), III, 325.

5. THE RELIEF GRANTED.

72. JUDGMENT APPEALED FROM MAY BE AFFIRMED IF THE APPELLANT fails to file any points and authorities, as required by the rules of the supreme court. Robinson v. Longley (Nev.) I, 306.

73. APPEAL FROM JUDGMENT-NOTICE OF APPEAL, SERVICE OF-JURISDICTION OF SUPREME COURT OVER APPEAL.-The supreme court has no power to hear an appeal from a judgment unless the appellant has served a notice of appeal on all the adverse parties whose rights may be affected by a reversal of the judgment; or where the appeal is from a part of the judgment, by a reversal of the part appealed from. But a modification of a judgment may be had on an appeal from the whole judgment, although some of the adverse parties have not been served with notice of appeal; provided such modification can not affect the rights of the parties not served with notice. Williams v. Santa Clara M. Co. of Baltimore et al. (Cal.), IV, 616. 74. THE SAME MODIFICATION OF JUDGMENT.-On an appeal from a judgment as an entirety, the power of the supreme court is not limited to an affirmance or reversal of the judgment as a whole. It may modify the judgment when a modification is appropriate and necessary to a correct determination of the rights of the parties. Id.

6. DISMISSAL OF.

75. NO JUDGMENT ROLL IS PROVIDED FOR BY THE PROCEDURE IN CALIFORNIA UNTIL FINAL JUDGMENT has been entered, and consequently an appeal from an interlocutory judgment in partition will not be dismissed because the entire judgment roll has not been brought up. Emeric v. Alvarado (Cal.), I, 708.

76. AN APPEAL FROM AN ORDER DENYING A MOTION FOR A NEW TRIAL, when an interlocutory judgment has been rendered and entered in an action for partition, must be brought up by a statement, or bill of exceptions, or affidavits, as in other cases where a motion for a new trial is made and denied. Id.

77. AN UNDERTAKING ON APPEAL CAN NOT BE DISPENSED WITH IN AN APPEAL by a collector of taxes from a judgment against him, in an action to recover delinquent taxes. If such undertaking be not filed as required by statute, the appeal will be dismissed. Crismon, Collector etc., v. Bingham Canyon & Camp Floyd R. R. Co. (Utah), I, 697.

78. AN APPEAL WILL BE DISMISSED WHERE NO TRANSCRIPT IS FILED in accordance with the rules and practice of the supreme court. Estate of Curtis (Cal.), I, 467. 79. 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. can not 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. Barnett v. Fifth District Court (Nev.), II, 630.

It

80. 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 can not 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), II, 446.

81. 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.), II, 414.

82. 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 8 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. 83. 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.

84. AN APPEAL BY THE PEOPLE FROM A JUDGMENT OR ORDER SUSTAINING A DEMURRER 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.) II, 133.

85. 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.), II, 60. 86. 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.) II, 290.

87. AN APPEAL WILL NOT BE DISMISSED FOR FORMAL DEFECTS IN 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.), II, 209,

88. 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.

89. 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 inexcusable laches in not having filed the transcript sooner. Crawford et al. v. Haller (Wash.), II, 210.

90. 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.), III, 61.

91. 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.), III, 87.

92. 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.), III, 194.

93. CRIMINAL LAW-NOTICE OF APPEAL MUST BE SERVED ON CLERK.-An appeal in a criminal case will be dismissed if the appellant fails to serve a notice of appeal upon the clerk of the court in which the judgment was rendered, in the manner required by the statute. A notice directed to and served upon the attorney for the respondent, and filed with the clerk, is not sufficient. Territory v. Hanna (Mont.), IV, 470.

94. THE SAME TIME FOR FILING TRANSCRIPT.-After an appeal has been properly taken, a failure to file the transcript within the time required by statute is not fatal to the jurisdiction of the appellate court. Such statutory requirement is directory, and not mandatory. Id.

95. WHERE THE TRANSCRIPT ON APPEAL CONTAINS NO INDEX, as required by the rule, the appeal may be dismissed. Donohoe v. Mariposa L. and M. Co. et al. (Cal.), IV, 192. 96. APPEAL-MOTION FOR NEW TRIAL-SERVICE OF PROPOSED STATEMENT.-An appeal from an order denying a new trial will not be dismissed merely because the proposed statement, on which the motion for a new trial was based, was not served upon one of the adverse parties. Dore v. Dougherty et al. (Cal.), IV, 420. See ADMIRALTY, 7-14, 28; AMENDMENTS, 1, 2; ARREST AND BAIL, 8, 9; ATTACHMENT, 23; BILL OF EXCEPTIONS, 4-9; BILL OF PARTICULARS; CERTIORARI, 5, 6, 12, 13, 15; CONTEMPT, 7, 11; Costs, 6-10; CRIMINAL LAW AND PRACTICE, 46–55; DEMURRER, 17; ESTATES OF DECEASED PERSONS, 2, 13; EVIDENCE, 18, 19; EXECUTORS AND ADMINISTRATORS, 13; FINDINGS, 4, 33; FORCIBLE ENTRY AND DETAINER, 6; FUGITIVES FROM JUSTICE, 9, 10; HABEAS CORPUS, 3; INJUNCTION, 21; JUDGMENT, 1, 2, 4, 18, 35; JURY AND JURORS, S; JUSTICES' COURTS, 6; MORTGAGE, 21; NEW TRIAL, 12; PLEADING AND PRACTICE, 43, 49; RECEIVERS, 1; REMOVAL OF CAUSES, 15; SupPLEMENTAL PROCEEDINGS, 6; TOLL ROADS, 1.

APPEARANCE BY ATTORNEY.

See CANCELLATION, 2,

APPROPRIATION OF WATER.

See PARTIES, 12; WATER RIGHTS, 2.

ARBITRATION AND AWARD.

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 v. Treadway (Cal.), III, 574.

2. AWARD OF ARBITRATORS WILL NOT BE SET ASIDE FOR THE FAILURE of One of the arbitrators to inspect the subject-matter of the controversy, in company with his associates. Such inspection, if no testimony is taken, or points involved in the litigation decided, does not constitute a hearing., Glass-Pendery Consolidated Mining Co. v. Meyer Mining Co. (Col.), I, 290.

3. OBJECTIONS TO ALL IRREGULARITIES IN THE PROCEEDINGS OF ARBITRATORS, which are not jurisdictional, must be seasonably made, in order to render them available; and if a party to an arbitration, knowing of an irregularity in the proceedings, remains silent, and permits the investigation to proceed, in order to avail himself of all chances of an award in his favor, he can not afterwards question the validity of an award unfavorable to him.

Id.

4. ARBITRATION PEOCEEDINGS VOID FOR WANT OF JURISDICTION IS A MERE NULLITY, and the defects which make it void are incapable of being waived. Id. 5. FAILURE OF ONE OF SEVERAL ARBITRATORS TO BE PRESENT AT A MEETING of his associates is not a jurisdictional defect, and may be waived by the parties to the arbitration. Such waiver takes place by proceeding with the business of the meeting without interposing any objection to the absence of the said arbitrator. Id. 6. FAILURE OF ARBITRATORS TO EXAMINE CERTAIN BOOKS, as required by the articles of submission, is immaterial, where by stipulation of counsel a complete statement of all that such books contained was used by the arbitrators instead of the books. Id. 7. REFUSAL OF ARBITRATORS TO EXAMINE A WITNESS OFFERED IN BEHALF OF THE UNSUCCESSFUL PARTY will not warrant setting aside the award, unless the record shows that the facts which the witness could have testified to would have been material or pertinent. Id.

8. PARTIES AGAINST WHOM AN AWARD IS MADE, Under SEVERAL SEPARATE AND DISTINCT submissions to arbitration, are not estopped for disputing the validity of such award as to costs, which were jointly awarded against them, either by consenting to a common trial or by paying the separate sums awarded as damages. Springer v. Schutz (Cal.), I, 349.

9. THE ASSIGNEES OF PORTIONS OF AN AWARD MAY MAINTAIN A SUIT IN EQUITY to recover the amount of their respective assignments from the person against whom the award was made. Bett et al. v. Poppleton (Or.), II, 191.

10. AWARD WILL NOT BE SET ASIDE BECAUSE CERTAIN ITEMS WERE CONSIDERED by the arbitrators which were not included within the terms of the written submission, when the party against whom the award was made consented to such action on the part of the arbitrators, especially if he subsequently promised to perform the award. Id. 11. AN AWARD WHICH DOES NOT DETERMINE EVERY MATTER SUBMITTED is not binding. But a subsequent ratification takes away all objection on this ground, and a promise to perform the award is such ratification. Id.

See CONTRACTS, 16.

ARRAIGNMENT.

See CRIMINAL LAW AND PRACTICE, 30.

ARREST AND BAIL.

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 judgment. Ex parte Bergman (Nev.) III, 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 process 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 disposing of his property with intent to defraud his creditor under a judgment in an action for tort. Id.

DIGEST I-IV. 2.