INDEX.

ACCOUNTING. See Estates of Deceased Persons, 6-11.

ACT OF GOD. See Contract, 6.

ADULTERY. See Divorce, 2, 3.

ADVERSE POSSESSION.

1. QUIETING TITLE-PRESCRIPTION AGAINST CITY AND COUNTY-VAN
NESS ORDINANCE-TRUST NOT SHOWN.-In an action to quiet title
to lands within the limits of the Van Ness ordinance of the city and
county of San Francisco against an individual defendant and such
city and county, where the plaintiff claimed title by prescription,
and the court found adverse possession of the premises by plaintiff
and his predecessors, and payment of all taxes thereon for more
than ten years, and that the land was not reserved under the or-
dinance for any public use or set apart for any municipal purpose,
the plaintiff was entitled to enforce his title by prescription
against the city and county as well as against the individual de-
fendant, in the absence of any averment showing or finding that
there was any previous possession of the property creating a trust
in favor of anyone under the terms of the Van Ness ordinance.
(Orack v. Powelson, 282.)

2. TRUST TO CONVEY IMMATERIAL.-Neither the fact that the land
was held by the city and county under a trust to convey, nor that
the plaintiff might have enforced a deed, if he had proved posses-
sion by himself or by his predecessors in interest under the terms
of the Van Ness ordinance, could defeat the title acquired by
virtue of his ten years' adverse possession, nor justify the court
in refusing to give him judgment against the city. (Id.)

AGENCY.

1. FINDING CONFLICT OF EVIDENCE-LOAN-APPEAL.-The question
whether money sued for was given by the plaintiff to the defendant
as a loan, or for the special purpose for which the defendant used
it as agent for the plaintiff, is for the determination of the trial
court, and its finding will not be disturbed on appeal where the evi-
dence is conflicting. (Johnson v. Bemis, 82.)

2. PURCHASE OF STOCK ON MARGIN-AGENT FOR PURCHASER.-One who
intrusts money to another as his agent to purchase shares of stock
for him on margin for future delivery, which money is so used,

(773)

AGENCY (Continued).

cannot sue the agent for the money, but must look to the party with whom such prohibited contract was made. (Id.)

3. SALE OF REAL PROPERTY-LIMITED POWER OF AGENT-SCOPE OF AUTHORITY. A contract for the sale of real estate made by an agent whose authority was specially conferred in writing to sell lands in parcels of twenty and forty acres each, upon terms specified, agreeing to dispose of a ten-acre tract upon other terms than those specified, was outside of the scope of his authority, and if not sanctioned in any way by the principal, is void as to him. (Davis v. Trachsler, 554.)

4. SALE MADE AFTER CANCELLATION OF AUTHORITY.-A Contract to sell real estate made by the agent after cancellation of his authority as to future contracts without consent is void. (Id.)

5. DUTY OF PURCHASER TO INQUIRE AS TO AUTHORITY OF AGENT.— Where a receipt and contract of sale is made by a person holding himself out to be an agent of the seller, and signed by him as agent, it is incumbent upon the purchaser who thus had actual notice of the agency, to ascertain the scope of the agent's authority, and whether he has the right to make or perform the contract. (Id.)

6. PURCHASER MUST LOOK TO UNAUTHORIZED AGENT.—A purchaser from a professed agent who signed a contract of sale in excess of his authority, without concurrence or fault of the principal, must look to the professed agent alone for the redress of whatever wrong he may have suffered. (Id.)

7. ACTION FOR BREACH OF CONTRACT-EXCHANGE OF LAND-ENCUMBRANCE AGENCY OF BROKER-DECLARATIONS OF AGENT-UNSUPPORTED FINDING.-In an action for breach of a contract to pay off an encumbrance secured by deed of trust of plaintiff's land, alleged to have been exchanged for defendant's land, of which exchange defendant knew nothing until after suit was brought, and the basis for which was an agency for defendant by a real estate broker to effect the exchange, declarations of the broker that he was defendant's agent were inadmissible; and, when admitted over defendant's objection, could not be considered, or support a finding that the contract sued upon was made by defendant. (Pease v. Fink, 371.)

8. RISK OF PROOF OF AGENCY.-One who deals with another upon his statement that he is the agent of a third person, takes upon himself the risk of being able to show that such agency existed; and if, instead of satisfying himself thereof by independent investigation, he accepts such statement, and is deceived, he is the victim of his own credulity. (Id.)

AGENCY (Continued).

9. CERTIFICATE OF TITLE OF DEFENDANT'S LAND FURNISHED BY BROKER.-A certificate of title of defendant's land addressed in the name of the defendant, and furnished to plaintiff by the broker, in the absence of proof that defendant knew thereof or assented thereto, or was in some way connected therewith, was not admissible as tending to show that he was the agent of the defendant, or that plaintiff was justified in believing that he was such agent. (Id.)

10. PRIOR NEGOTIATION BY BROKER-PURCHASE OF LOTS FROM DE FENDANT PROCUREMENT OF BLANK DEED-EXCHANGE NOT AUTHORIZED.—Where the broker, prior to the negotiation for exchange, had negotiated with defendant to purchase a block of lots from him within a year at $75 a lot, with privilege of taking one or more lots when he might dispose of them, the procurement and possession of a deed from the defendant, with a blank space left for the name of the grantee after the negotiations of the broker with plaintiff, which was filled with plaintiff's name when delivered, only tended to show an authorized sale of the lands at the agreed price, and the delivery of the deed to an anticipated purchaser from the broker, and did not tend to show, or to authorize plaintiff to believe, that defendant had authorized the broker to purchase property for him or to exchange his property for that of plaintiff, or to enter into any contract binding him to assume the payment of any obligation of the plaintiff. (Id.)

11. BLANK DEED FROM PLAINTIFF-UNRECORDED DEeds-SubsequENT NEGOTIATION WITH DEFENDANT RATIFICATION NOT SHOWN.Where the plaintiff had delivered a deed to the broker of his own property, with the name of the grantee left unfilled, making it subject to an encumbrance to secure his debt, when defendant's deed was delivered to him and both deeds remained unrecorded, a subsequent negotiation, one year thereafter, between plaintiff, the broker, and the defendant, when the latter knew nothing of the existence of plaintiff's blank deed given to the broker, wherein it was agreed that the unrecorded deed to plaintiff from the defendant should be destroyed in order that defendant might sell all of his lands to a third person, and that defendant should repay to plaintiff the original price for the land deeded to him, which was so paid to plaintiff by defendant, such subsequent negotiation and payment does not tend to show a ratification by defendant of the exchange, or of the representations of an agency therefor, by the broker, of which defendant had no knowledge. (Id.)

See Attorneys at Law; Brokers; Mortgage, 21-25; Promissory
Notes, 6, 7; Sale, 1, 2.

APPEAL

1. APPEAL FROM PORTION OF ORDER.-Under section 940 of the Code of

Civil Procedure, a litigant dissatisfied with a portion of an order has the same right to appeal from a portion of the order that he has to appeal from a portion of a judgment. (Donnelly v. Gray Brothers, 59.)

2. EVIDENCE-VERDICT.-The appellate court, in considering the sufficiency of the evidence to sustain a verdict, will indulge every intendment in support of the verdict by assuming the truth of evidence tending to support it. (Ah Gett v. Carr, 47.)

3. NONPAYMENT.-The evidence reviewed and held sufficient to sustain a finding of nonpayment of the accounts stated sued on. (Id.)

4. FILING UNDERTAKING-FILING ORDER EXTENDING TIME.-An order extending the time within which to file an undertaking on appeal is ineffectual unless the same is filed in the office of the clerk within the time limited by section 940 of the Code of Civil Procedure for filing the undertaking. (Rauer's Law and Collection Co. v. Standley, 44.)

5. VACATING DEFAULT JUDGMENT NOT ENTERED.-An order setting aside a defendant's default which had been entered by the clerk, but upon which no judgment had been entered, is not appealable under section 963 of the Code of Civil Procedure. (Id.)

6. EXAMINATION OF EVIDENCE-APPELLANT MUST POINT OUT PARTICULARS.-The appellate court, in examining the evidence to determine whether it sustains the findings, will confine its examination to those particulars which the appellant points out in his brief or otherwise. (Tait v. McInnes, 155.)

7. ARGUMENT OF COUNSEL-REVIEW.-The appellate court will notice only the assignments of error and specifications of insufficiency of the evidence discussed in the briefs and argument of counsel for appellant. (Hewel v. Hogin, 248.)

8. APPEAL FROM JUDGMENT AND CONDITIONAL ORDER FOR JUDGMENT SINGLE UNDERTAKING.-Upon an appeal from a judgment, and from a conditional order on the same day that judgment be entered for defendant on his payment to the clerk of a specified sum for jury fees, which appellant had declined to pay, but one undertaking on appeal in the sum of $300 is required. (McAulay v. Tahoe Ice Co., 642.)

9. NOTICE OF APPEAL TO SUPREME COURT-IMPROPER UNDERTAKING— MISDESCRIPTION OF COURT-DISMISSAL.-Where the notice of appeal properly designated the supreme court as having sole jurisdiction, since the amount claimed in the complaint of appellant

APPEAL (Continued).

exceeded $2,000, the undertaking on appeal should have conformed thereto; and where it misdescribed this court as the one to which the appeal was taken, as "the appellate court for the third district of the state of California," it was ineffectual for any purpose; and the appeal must be dismissed. (Id.)

10. RIGHT TO SUBSTITUTED UNDERTAKING NOT INVOLVED.-Where no request was made by the appellant for leave to file a substituted undertaking, and none was filed in the supreme court before the hearing of the motion in this court to dismiss the appeal, no question arose upon such hearing as to the right of appellant to have a proper undertaking approved by a justice of the supreme court under section 954 of the Code of Civil Procedure.

(Id.)

See Attachment, 1, 2; Brokers, 5; Costs, 1, 5, 6; Criminal Law, 1, 19; Estates of Deceased Persons, 12-15; Evidence, 2; Execution, 11; New Trial, 4, 5; Pledge, 2.

ASSAULT. See Criminal Law, 13-22.

ASSIGNMENT. See Attorneys at Law, 2; Banks, 4, 5; Landlord and Tenant, 13-15; Mortgage, 2-21.

ATTACHMENT.

1. CONTINUANCE OF LIEN PENDING APPEAL BY PLAINTIFF-PROHIBITION. If the lien of an attachment on real property is continued by an order of the court without legal authority, pending an appeal by the plaintiff from a judgment in favor of the defendant, the remedy of the defendant, by appeal from the order, is neither speedy nor adequate, and as the effect of the order is to impose a continuing restraint on the defendant's right to the free, untrammeled enjoyment of his property, he is entitled to a writ of prohibition restraining the court from continuing the attachment. Under such circumstances the order will not be deemed a completed judicial act. (Primm v. Superior Court of Shasta County, 208.)

2. LIEN MAY BE CONTINUED PENDING APPEAL-DUE PROCESS OF LAW. Sections 553 and 946 of the Code of Civil Procedure, construed together, permit of an attachment being continued in force, pending an appeal by the plaintiff from a judgment in favor of the defendant, upon the plaintiff's perfecting his appeal and filing an undertaking as required by the concluding clause of section 946. This effect of section 946 does not deprive the defendant of his property without due process of law. (Id.)

3. GARNISHMENT-PAYMENT TO SHERIFF.-A garnishee who, upon being served with the garnishment, delivers to the sheriff the money in