months' further time, in case the installments from the shareholders shall not have been received. The obvious meaning of this is, that the directors are to pay in twelve months, in case the subscriptions shall have been received in the interval, but that they shall pay in eighteen months at all events, whether subscriptions shall have been received or not. The advantage or disadvantage of such a contract to the directors is a question for them to consider, and not the court.

PARK, J.—The cases cited only show that instruments made Fayable out of a particular fund are not negotiable, and do not apply to the case before the court. I am clearly of opinion, that upon this agreement the defendants are liable. It is stipulated, indeed, that the £4,500 is to be paid by installments, and that the time of payment is to vary according to circumstances; but no intention is intimated to leave the plaintiffs remediless in case of failure of any subscription fund; the object, on the contrary, of the six months further time must have been to enable the defendants to pay out of their own pockets, in case of the subscriptions failing.

The rest of the court concurring,

Judgment was given for the plaintiffs.

INDEX.

ABANDONMENT-See PARTNERSHIP, 29, 31.

ACCOUNT.

1. Venue. A bill for an account of the produce of an oil well must be
filed in the county where the well is situate. Thompson v. Noble, 137
2. Services of expert accountant.-In a suit for an accounting, an al-
lowance was properly made for a reasonable sum paid by complainant to a
competent accountant for the purpose of arriving at an adjustment, the
services being necessary and of use to all parties and therefore a common
charge on them. Godfrey v. White,
562

3. Accounting, as an incident.-When a proceeding for partition of
realty is had in a court of equity, the court will not only proceed to divide
the land but will, in a proper case, direct an accounting, and do equity
in the case by making parties account for rents, etc. Dall v. Confidence
M. Co.,
214

See Costs, 1; EQUITY, 1; LACHES, 1; PARTITION, 19, 20; PARTNER-

SHIP.

ADMISSIONS.

1. Admissions by corporate officer.-Evidence of declarations of the
president of the company that the cost of repair would not exceed $500
was admissible for the purpose of showing that the parties did not intend
an iron bottom, which would cost several thousand dollars. Ardesco Oil
Co. v. Richardson,
131

2. Presence of officer.-Evidence that the president was present whilst
the repairs were going on, and expressed his satisfaction with them, was
admissible. Id.

3. Eridence-Admissions of agent.-In a suit against copartners for
wages, the declaration of a party in the employ of the defendants as to the
intention of one of the defen lants to pay in a few days is not competent
evidence unless his agency for that purpose is first established. Le Ferre
v. Castagnio,

See PARTNERSHIP, 19; PLEADING, 17; STATUTE OF LIMITATIONS, 3.
ADVERSE CLAIM.

579

1. Statute of Limitations.-The Statute of Limitations of Neva la
constitutes a part of the local laws, by which the right between an appli-
cant for patent and an adverse claimint are to be determined. 420 Min-
ing Co. v. Bullion Mining Co.,

608

See RES ADJUDICATA, 3.

ADVERSE POSSESSION.

1. Adverse possession generates new title.—Adverse possession for the time limited by the Statute of Limitations, not only bars the remedy but extinguishes the right and vests a perfect title in the adverse holder. 420 M. Co. v. Bullion Co.,

See STATUTE OF LIMITATIONS.

AGENT.

609

1. Annual hiring. A written contract by which a party is employed "to act as agent or salesman for stock," etc., of a coal company, to be paid $3.000 in equal quarterly payments," is a hiring for a year. Kirk v. Hartman,

450

2. Agent to purchase may repudiate his agency.--If one who is clearly an agent for another to purchase property, repudiate the agency and act for himself, using his own funds, he can not be declared a trustee for his principal, although the latter may have been misled by the former. First Nat. Bank v. Bissell, 547 See EVIDENCE, 4; PARTNERSHIP, 87, 88; MASTER AND SERVANT, 1. AGRICULTURAL LANDS-See PATENT, 6.

ANNUAL LABOR.

1. Improvements on group of locations constituting one claim.-Improvements on one of a group of locations, constituting a consolidated claim, or work done at a distance from the claim. as in the case of operations to lead water to, or carry tailings from the claim, apply as labor under the mining acts. St. Louis Smelting Co. v. Kemp, APPEAL.

673

1. Jurisdiction on appeal-How determined.-Where a plaintiff appeals against a judgment for the defendant, the jurisdiction of the Supreme Court, as to amount, is determined by the complaint. Where the plaintiff appeals from a judgment in his favor, then it is the difference between the judgment and the sun claimed. Where the defendant appeals from a judgment in his favor, the amount in dispute is the difference between the judgment and the counter-claim. Skillman v. Lach

man,

381

2. Appeal can only be dismissed by appellate court.-The District Court of the United States having granted an appeal to the Supreme Court, his no power to set its order aside. The jurisdiction of the Supreme Court attaches upon the appeal being granted, and only on application to the Supreme Court could the appeal be dismissed. McGarrahan v. New Idria Co.,

ASSESSMENT-See PARTNERSHIP, 84, 85.
ASSIGNMENT.

641

1. Judgment and assignment distinguished.—A judgment is not an assignment. One is the act of the party, the other the act of the law. A judgment by confession can have no tendency to defeat a statute which provides for an equal distribution among all creditors in cases of assign ments, for the statute does not apply to such a case. Breading v. Boggs,

296

2. Assignment of account by partner.-Where a partner can not sue
the company at law, nor maintain attachment, his assignee is in no better
situation than the assignor before the assignment. Bullard v. Kinney,

See PARTIES, 2; PARTNERSHIP, 58.

BILLS AND NOTES.

348

1. Note reciting contract annexed-No contract found.-In an action
on a promissory note, the note purported to be "For value received in
Pennance shares, pursuant to annexed contract." No contract was in fact
annexed. Held, that this special description of the consideration for the
note did not render it incumbent on the plaintiff to put in any contract or
other document besides the note itself, in order to establish his case. For
v. Frith,
277

2. Where the note of the mining firm is sued on, the plaintiff must
prove that the person executing the same had authority to subscribe the
company's name. Skillman v. Lachman,

381

3. Verbal agreement to vary note.-In a suit by one partner upon a
note executed by his copartner the defense was that the plaintiff agreed,
at the time of the making of the note, to provide for and pay one third
thereof, if the company should not be in funds for that purpose when it
became due: Held, that the facts if proved would not constitute a de-
fense; that it would be incompetent for the defendant to vary the terms
of the note, or relieve himself from liability thereon, by evidence of a
verbal agreement made before or at the time of making the instrument.
Crater v. Bininger,

488

4. Request to indorse implied.-The knowledge and acquiescence of a
defendant in the indorsement of its paper by a third party, to the benefit
of defendant's credit, is evidence from which a request to indorse may be
inferred. Flint v. Eureka Co.,
588

See DITCH, 3; PARTNERSHIP, 15, 16, 20, 36, 39, 94.
BOUNDARIES.

1. Boundary along a meandering stream.-Where land adjoining a
creek was described in a patent as bounded on the side of the creek by a
line meandering from a point in its center down the center a certain dis-
tance to a station on the bank, and thence a further distance to another
station, and so on from station to station on the bank, to a point where
the line left the creek. it was held, that the creek constituted the boundary
of the land, and that the courses between the stations only indicated the
general direction of the stream, being points fixed by the surveyor to
enable him to compute the amount lying between the creek and the other
boundaries. Quicksilver Co. v. Hicks,
98

2. A traditional survey agreed at one time to have been made and
supposed to have been at that time made, but never satisfactorily proved
and a subject of continued contention, can not be treated by courts as
binding upon the parties, although they have attempted to fix it by subse-
quent survey. Blewett v. Coleman,
160

COLLIERY-See PARTITION, 11; PARTNERSHIP, 4; RECEIVER, 1.

VOL. XI-45