dition of the judgment, that the same is in full force and effect and unreversed, and shows the violation thereof by the defendant. Id.

See ATTORNEYS, 8; FUGITIVES FROM JUSTICE, 1.

CONTINGENT FEE.

See ATTORNEYS, 2-4.

CONTINUANCE.

1. REFUSAL TO ALLOW A CONTINUANCE of a trial is within the discretion of the court. Fleming v. Hawley et al. (Cal.), III, 675.

2. TRIAL OF ACTION CONTINUANCE FOR REASONABLE TIME.-The trial of an action to recover possession of land, claimed by the plaintiff under a United States patent as agricultural land, may be continued for a reasonable time, and until the determination of a suit in the federal courts, in which the plaintiff's title is sought to be impeached for fraud. Rose v. Superior Court of Nevada County (Cal.), III, 680. 3. CONTINUANCE ON ACCOUNT OF THE ABSENCE OF A WITNESS SHOULD BE Refused, unless such attendance can be procured within a reasonable time. People v. Lewis, (Cal.), I, 131.

4. WHERE A MOTION FOR A CONTINUANCE IS MADE ON ACCOUNT OF THE ABSENCE OF A WITNESS, an offer of the adverse party to admit that such witness, if present, would swear to what was stated in the affidavit for a continuance, may be allowed, at the discretion of the court, as well after the court has decided that such evidence is material as when the motion is first made. Alden v. Carpenter (Col.), I, 598. 5. ADMITTING THE TESTIMONY OF AN ABSENT WITNESS IN ORDER TO AVOID A CONTINUANCE is not an admission of the truth of such testimony, nor does such admission preclude the party admitting it from rebutting the same on the trial. Id. 6. IN REVIEWING THE RULING OF THE TRIAL COURT IN REFUSING to grant a prisoner a continuance, so that the testimony of absent witnesses might be produced to prove an alibi, the appellate court is authorized to examine the whole record, as well subsequent to as before such ruling, in order to determine whether there was any abuse of discretion. It may also consider the fact that the defendant did not himself take the stand as a witness, as it is only at his trial and before the facts are passed upon by the jury, that his failure to do so shall not raise any presumption against him, and under such a state of the record it will not be held that there has been an abuse of discretion. Territory v. Kinney (N. M.), I, 801.

CONTRACTS.

1. IMPLIED CONTRACT.-Whenever one person does work or service for another with his consent, and there is no agreement as to compensation, the law implies a contract to pay what the same is reasonably worth; but when the circumstances of the case clearly repel the idea that the work or services were done with the expectation of payment being either made or received, no such contract will be implied. Hughes v. Dundee Mortgage Trust Investment Co. (U. S. Cir. Ct., Or.), III, 544. 2. CASE IN JUDGMENT.-The plaintiff acted as attorney for the defendant and amalgamated corporations engaged in loaning money in Oregon and Washington, under written instructions as to his duties and responsibilities. It was his duty to examine titles to real property offered as security for loans, for which he was permitted to charge the borrowers specific fees; he was also to aid and advise the corporations generally in all matters affecting their interests; but for this service no compensation was expressly provided. The fees received from borrowers were no more than a reasonable compensation for the services rendered them. Under these circumstances the plaintiff acted as the sole and general counsel and adviser of the corporations for some years, without making any charge or rendering any account of his services, or receiving any intimation from the corporations that they did not expect to pay him for them. Upon being sued to recover the reasonable value of these services, the corporations claimed that it was "understood" that the plaintiff was to perform these services gratuitously, or in consideration of the fees received from borrowers. Held (1), That the mere understanding of either party to the contract was no part of it, and did not bind the other; and that there was nothing in the circumstances of the case, or the conduct of the parties, sufficient to prevent or repel the legal implication of a promise by the corporation to pay the plaintiff what his services were reasonably worth; and (2) That the plaintiff, not having kept any account of

his services, and being unable to prove any specific items, ought not to recover more than a reasonable annual retainer therefor. Id.

3. STIPULATIONS NECESSARY TO MAKE A CONTRACT REASONABLE ARE IMPLIED, and need not be alleged in an action to recover for a breach of such contract. Biggerstaff v. Briggs (Čal.), III, 353.

4. WHERE ONE PARTY TO A CONTRACT IS PREVENTED FROM FULLY PERFORMING THE SAME by the fault of the other party, the latter can not take advantage of his own wrong to exempt himself from liability thereunder. Smith v. Roe (Col.), I, 502. 5. CONTRACT, BY THE TERMS OF WHICH ONE PARTY AGREES TO PAY ALL THE EXPENSES, and furnish the skill and labor necessary for obtaining a patent to certain lands from the United States, in consideration of a conveyance of a part of the land so obtained, is valid and binding in the absence of actual or constructive fraud. Gutierrez v. Brinkerhoff (Cal.) I, 127.

6. DEFENDANT'S PREVIOUS CONSENT TO OR SUBSEQUENT RATIFICATION OF certain work done by the plaintiff can not be inferred from the fact that, at the latter's request, he gave them a statement of such work, especially when it appears that the work was originally done against his protest. Tognini v. Hansen (Nev.), I, 146. 7. AN AGREEMENT BY THE TERMS OF WHICH ONE PARTY PROMISES TO CONVEY certain land to the other, in consideration of the latter's performing certain services, conveys no interest, legal or equitable, to such latter unless the services stipulated for are performed. Emeric v. Alvarado (Cal.), I, 708.

8. CONTRACT FOR THE SALE OF SPIRITUOUS LIQUORS, at a certain place, in quantities greater than one gallon, can not be enforced by the vendor, when he has neglected to take out a license for the place at which such sale is to be made. Bach, Messe & Co. v. Smith (Wash.), II, 779.

9. BUILDING CONTRACT-LIABILITY OF CONTRACTOR UNDER.-When

a party contracts to build a house of suitable materials and in a workmanlike manner, and violates his contract, the party injured may either refuse to pay the contract price of the building to the amount to which he is damaged, or he may pay for and take possession of the building, and then sue and recover of the builder the amount of his damages. Such recovery may be had whether the breach of the contract was known at the time of payment or not. Hallack v. Bresnahen (Wy.), II, 60.

10. SUCH PAYMENT IS NOT A WAIVER of the right of action for failure to perform the contract so as to discharge the contractor or his sureties. Id.

11. THERE IS A CONSIDERATION FOR THE CONTRACT contained in the charter incorporating the Northern Pacific Railroad Company, which consideration is found in the public benefits to be derived to the whole people of the United States by reason of the construction of such road. N. P. R. R. Co. v. Carland (Mont.), II, 326.

12. OBLIGATION, MEANING OF. The word " 'obligation," as used in section 1834 of the General Statutes, providing that "all joint obligations and covenants shall hereafter be taken and held to be joint and several obligations and covenants;" and in section 14 of the Code of Civil Procedure, providing that all persons jointly or severally liable upon the same obligation or instrument may, all or any of them, be included in the same action," is confined to contracts in writing, and does not include oral contracts. Exchange Bank of Denver v. Ford (Col.), II, 624.

13. DAMAGES FOR BREACH OF CONTRACT-NEGLIGENCE-PREVENTION OF Loss.

One

who sues to recover damages for injuries in an action arising out of contract or tort cannot recover if the injuries were consequent upon his own negligence which directly contributed to thein. Every one engaged in the performance of a contract is bound to do everything in his power to prevent loss to himself from a breach of the contract by the other party. If he can not prevent it altogether, he must make reasonable exertions to render it as light as possible; and if by his own negligence or willfulness he allows the damages to be unnecessarily enhanced, the increased loss must fall upon him. Winans v. Sierra Lumber Co. (Cal.), IV, 277. 14. PARTIAL BREACH OF CONTRACT - ESTOPPEL-PART PERFORMANCE OF CONTRACT. A party to a contract is not estopped from asserting his claim for a partial breach of the contract by the other party from the fact that at the time when a settlement was had between them for work done under the contract no mention was made of such claim. If the contract was susceptible of more or less performance, and there was a partial breach thereof by one of the parties, the other has the right to continue to carry out the contract, reserving to himself the right to bring action for such damages as he may have sustained by the partial breach. Id.

15. BREACH OF CONTRACT TO MANUFACTURE LUMBER-MEASURE OF DAMAGES.-The plaintiff and defendant entered into a contract whereby the plaintiff agreed to manufacture lumber, and the defendant agreed to purchase all that the plaintiff might manufacture, at a stipulated price, and to furnish him certain machinery for such purpose. The machinery furnished was inadequate, and by reason thereof the plaintiff was unable to manufacture as much lumber as he otherwise would have done. In an action to recover for the breach of such contract, held, that the measure of damages was the contract price for the lumber which the plaintiff was so prevented from manufacturing, less the expense he would have incurred in manufacturing said lumber over and above the amount necessarily expended under the circumstances in manufacturing the amount actually manufactured by him. Id. 16. STIPULATION IN BUILDING CONTRACT FOR ARBITRATION-CONSTRUCTION OF CONTRACT.-A stipulation in a contract for building a railroad, that in case any disputes or differences arise between the company and contractors "as to the construction or meaning of the agreement or specifications, or sufficiency of the performance of any work to be done under it, or price to be paid, the same shall be referred to the chief engineer of the company, who shall consider and decide the same, and his decision shall be final," is valid, and the decision of the engineer on any of such matters is binding on the parties, in the absence of fraud or mistake on the part of such officer. Held, however, that a dispute as to the amount of work done by the con tractor was not included within such stipulation. D. S. P. & P. R. R. v. Riley (Col.), IV, 238.

17. CONSTRUCTION OF CONTRACT SUED ON-BREACH OF CONTRACT.-The plaintiffs and the defendant entered into a contract whereby the latter agreed to sell to the former ice, in such quantities as might be demanded, at a certain price. The plaintiff's agreed not to buy ice from any one else. During the continuance of the contract one of the plaintiffs bought ice from other parties. Held, that the same constituted a breach of the contract, and released the defendant from its obligations under the contract, although the ice was bought by such plaintiff for his individual use. Twomey et al. v. People's Ice Co. (Cal.), IV, 700.

18. CONTRACT-LIABILITY FOR ILLEGAL ACT-INFERENCES OF INTENTION.-A party is not bound for the consequences of an illegal act, from a mere suggestion in a conversation in regard to a matter of contract, unless there can be justly inferred from it an intention on his part to bind himself contractually. Andrews v. Runyon (Cal.), IV, SI. Martin v.

19. JUDGMENT AND ORDER affirmed after construing the contract sued on.

Hill et al. (Cal.), IV, 430.

See ACCORD AND SATISFACTION; ADMIRALTY, 15, 16; ASSIGNMENT, 1; ASSUMPSIT, 1; ATTORNEYS, 2-5; BANKS, 2; BONDS, 3; COMMON CARRIERS, 9; CONSTITUTIONAL LAW, 11; CORPORATIONS, 28, 53; COUNTY PHYSICIAN, 1; GUARANTY; HUSBAND AND WIFE, 2; INSANE PERSONS; LANDLORD AND TENANT, 11; MASTER AND SERVANT; MARRIED WOMEN, 2-6; PLEADING AND PRACTICE, 38.

CONTRIBUTORY NEGLIGENCE.

See NEGLIGENCE; PLEADING AND PRACTICE, 7.

CONVERSION.

1. CLAIM AND DELIVERY-SHERIFF-CONVERSION-JUDGMENT-UNDERTAKING-AFFIDAVIT NONSUIT.—Prior to the commencement of the present action, one Hawley commenced an action against the plaintiff herein, and one Fowler, to recover the identical property described in the complaint herein. In that action, upon proper affidavit, undertaking, and order of the attorney for the plaintiff herein, the present defendant, as sheriff, took said property from the defendants on the twelfth day of November, 1881. On the seventeenth day of the same November (the day after the present action was commenced) the plaintiff herein made affidavit for claim and delivery, and executed bond, which affidavit and bond (together with an order of the attorneys for the plaintiff herein) were delivered to an elisor, appointed by the court, by whom the property was taken from the defendant herein, sheriff as aforesaid. Afterwards, on the twenty-second of November, 1881, defendant gave the undertaking provided for in such case by the code, and demanded a return of the property of the elisor, who on the same day delivered the property to the present defendant, who thereupon delivered the property to Hawley, the plaintiff in the action wherein plaintiff and Fowler were defendants. Afterwards, on the twelfth

day of December, 1881, the plaintiff herein filed an answer in the action, wherein he and the said Fowler were defendants, in which he demanded a return of the property therein and herein sued for. That the action of Hawley v. Fowler and Fleming came on to be tried on the twenty-first day of January, 1882, and at the conclusion of the evidence on the part of the plaintiff therein, the court, on motion of defendants, ordered a judgment of nonsuit in that action, on the ground that plaintiff had not made out a case sufficient to go to a jury, and thereupon a judgment was entered in favor of defendants therein for their costs. Held, that the present defendant did not take the property from the plaintiff wrongfully, but as sheriff, under process which made it his duty to take it; that after the return of the property to him, the defendant simply performed his duty in delivering it to Hawley, and that an independent action could not be maintained against him for its possession or value in case delivery could not be had. Fleming v. Wills (Cal.), III, 159.

2. CONVERSION BY SHERIFF-JUSTIFICATION-PLEADING.-In an action against a sheriff for a conversion, an answer which sets up an attempted justification by virtue of a seizure under a writ of attachment is defective, and should be stricken out, unless it is alleged that the defendants under the attachment were the owners of the property taken, or had some interest therein. Failure to strike out such portion of the answer, when the plaintiff's title is denied and a general verdict is given in favor of the defendant, will not warrant a reversal, unless it affirmatively appears that such verdict was founded upon the attempted plea of justification. Krewson et al. v. Purdom et al. (Or.), III, 85.

6.

3. IN AN ACTION AGAINST A SHERIFF FOR THE CONVERSION OF PROPERTY by reason of a sale under an execution against a third person, where issue is joined as to the ownership of such property at the time of sale, a finding that the plaintiff had sold the property to the execution debtor, and from the date of such purchase until the taking by the sheriff the same has remained in the debtor's possession by virtue of such purchase," responds to the issue of ownership. Hardwick v. Tyrrel (Cal.), I, 345. 4. WHERE GOODS ARE SHIPPED TO A CONSIGNEE IN PURSUANCE OF AN AGREEMENT BETWEEN HIM AND THE SHIPPER that the same are to be sold, and the proceeds applied to the payment of prior advances made by the former to the latter, the title to the goods and the right of possession thereof vest in the consignee upon delivery to the carrier; and an action to recover for a wrongful attachment of such goods while in the hands of the carrier should be brought by the consignee, and not by the consignor. Wetzel v. Power (Mont.), I. 791.

5. ACTION FOR THE CONVERSION OF PERSONAL PROPERTY IS NOT BARRED by the statute of limitations when the evidence fails to show when such statute commenced to run. Whitcomb v. McClintock (Cal.), I, 876.

6. CONVERSION OF HORSE-STATUTE OF LIMITATIONS.-Where a horse is wrongfully converted from its owner and afterwards sold to a bona fide purchaser, who uses it in an open and notorious manner, without attempting to conceal it, the statute of limitations commences to run in favor of such purchaser and against the owner from the time of the purchase, and not from the time when the owner discovers the whereabouts of the horse. Dee v. Hyland et al. (Utah), II, 469.

See ATTACHMENT, 24; HUSBAND AND WIFE, 3; PARTNERSHIP, 14.

1. PRINTED COPY OF TITLE OF BOOK, ETC.-The "printed" copy of the title of a book or other article, required by section 4956 of the revised statutes, to be delivered or mailed to the librarian of congress, may be "printed" with a pen as well as type, with or without the aid of tracing-paper. Chapman v. Ferry (U. S. Cir. Ct., Or.), I, 105.

2. DEPOSIT OF COPIES OF WORK WITH LIBRARIAN.-The copies of a copyright work required by section 4959 of the revised statutes to be deposited with the librarian of congress within ten days after publication may be so deposited after the printing of the work, and before its formal publication. Id.

3. COPYRIGHT OF MAP, INFRINGEMENT OF.-It is difficult to say, in some cases, what constitutes an infringement of the copyright of a map, but where the subsequent

map appears to have been substantially copied from the prior one, without alteration or revision, except in scale and color, there is clearly an infringement which authorizes a court of equity to enjoin the sale of such infringing map and to require the publisher to account for the profits arising from the sale thereof.

CORPORATIONS.

1. NATURE, ORGANIZATION, AND RESIDENCE of.

2. POWERS AND LIABILITIES OF.

3. POWERS AND LIABILITIES OF OFFICERS.

4. STOCK AND STOCKHOLDERS.

5. FORFEITURE OF CORPORATE RIGHTS.

6. ACTIONS BY AND AGAINST.

7. MUNICIPAL CORPORATIONS.

1. NATURE, ORGANIZATION, AND RESIDENCE of.

Id.

1. CERTIFICATE OF INCORPORATION-ATTACK ON.-The corporate existence and validity of the acts of a de facto corporation, whose user is established, can not be attacked collaterally upon the ground that its certificate of incorporation does not contain certain specifications which it was required by statute to contain. City of Denver v. Mullin (Col.), II, 852.

2. RAILROAD, WHAT IS-UNION DEPOT.-A corporation organized for the purpose "of locating, building, owning, and maintaining a union depot for railroads in the city of Denver, and for the location, building, owning, and maintaining of as many lines of railroad from said depot to the exterior boundaries of said city as may be necessary for the accommodation and use of the different railroad companies making said city a point of delivery for freight and passengers," is not an ordinary railroad company within the meaning of the general statutes. People ex rel. Bernard et al. v. Cheeseman et al. (Col.), II, 870.

3. CREATION OF PRIVATE CORPORATION UNDER GENERAL LAW.-A substantial compliance with the provisions of the general law is an essential prerequisite to the creation of a private corporation, and a failure to comply therewith in any material particular is ground for the impeachment of corporate existence in an appropriate proceeding prosecuted by the proper authority. Id.

4. THE SAME-STATEMENT OF TERM OF CORPORATE EXISTENCE.-The statement in the articles of incorporation of a private corporation that the same is to exist for fifty years, is not fatal to the creation of the corporation, although the general law under which it was organized limits the existence of such corporation to twenty years. Id.

5. CERTIFICATE OF ACKNOWLEDGMENT OF INCORPORATION.-Failure of the officer who took the acknowledgment of the articles of incorporation of a company to state in his certificate thereof that the individuals who acknowledged the same were personally known to him, or proven to him to be the persons who executed the same, does not vitiate such certificate. Id.

6. RESIDENCE OF CORPORATION.-Neither the principal place of business of a corporation, nor the place in which its officers reside, is necessarily the place of residence of the corporation. California Southern R. R. Co. v. Southern Pacific R. R. Co. (Cal.), III, 301, 302.

7. THE ADOPTION OF CERTAIN RULES OF BUSINESS BY A CHINESE COMPANY may be inferred from the fact that such rules were printed in a book kept by the company's. agent, and were hung in the company's house. Chong Yow v. 1op Chong (OF), III, 329.

2. POWER AND LIABILITIES OF.

8. A CORPORATION HAS NO POWERS except such as are specially granted, and those that are necessary to carry the same into effect. Salmon River Mining and Smelting Co. v. Cunn (Idaho), III, 70. 9. A CORPORATION ORGANIZED FOR THE PURPOSE OF MINING, SMELTING, AND REFIN ING ORES, and for dealing in mining property, can not become the assignee for a chose in action growing out of the breach of a contract for building a bridge. Id. 10. A CORPORATION CAN NOT APPOINT AN AGENT, nor can it become a cestui que trust, until it has a legal existence. Kelly v. Ruble (Or.), III, 737.

11.

CONVEYANCE-CONSIDERATION-CORPORATION-ULTRA VIRES.-A conveyance by a corporation, in consideration that its grantee would prevent the recovery of or protect it against any personal judgment in an action brought to recover on its contract