common carrier. The answer sets up a special contract, limiting its liability. I think this plea was necessary, and that the demurrer was improperly sustained. Had the demurrer been overruled, the law would have permitted proof of gross negligence as though it had been pleaded by a replication, and, in case such gross negligence had been shown, in my opinion the plaintiff would have been entitled to recover.

Henshaw, J., concurred.

INDEX.

INDEX.

AGENCY.

-

1. CONTRACTS-CHARTER OF BARGES FOR USE OF DREDGE COMPANY
EXECUTION BY PRESIDENT-COPARTNERSHIP-PAROL EVIDENCE.-
Where one the members of a copartnership doing business under
a corporate name having his surname in its title, chartered barges
expressly for the use of the copartnership, and designated himself
in the charter and in the signature thereof as president of such
company, the evidences upon the face of the charter that it was
designed to be the contract of the copartnership, if not sufficiently
clear of themselves to prove it as matter of law, are, at least, suffi-
cient to warrant parol evidence to show that the company was
bound by the terms of the contract as principal. (Southern Pa-
cific Company v. Von Schmidt Dredge Company, 367.)

2. PRINCIPAL AND AGENT-DESIGNATION OF AGENCY IN WRITTEN CON-
TRACT-EVIDENCE-DISTINCTION ABOLISHED.-The distinction at
common law between sealed and unsealed instruments, as to the
effect of words of agency appended to the name of the contracting
party in the body and signature of the contract, is abolished in this
state, and the rule as to simple contracts is applicable, that words
of agency employed in the written contract are to be regarded, not
as descriptive merely, but as importing character and capacity;
and, where the reading of the contract, however inartificially it may
be drawn, discloses that it is executed for or on behalf of a principal
or even leaves the matter in doubt, parol evidence may be used to
determine whose contract it is, and this even in cases where the
instrument is sufficiently clear in its terms to bind the agent per-
sonally. (Id.)

1. APPEALS IN SPECIAL CASES-CONSTITUTIONAL LAW-JUDICIAL CON-
STRUCTION OF FORMER CONSTITUTION- RE-ENACTMENT ACQUIES-
CENCE. The former constitution having been judicially construed
to empower the legislature to provide for appeals to the supreme
court in special civil proceedings of a summary character, its lan-
guage, re-enacted in the present constitution, will be concluded to
have been adopted with the interpretation and construction which
the courts had enunciated; and where the construction of the pres-
ent constitution has been fixed by long acquiescence and sanction
both of the legislature and of the courts in favor of the right of
appeal in special cases, it cannot be open for decision to the con-
trary as a new question. (Morton v. Broderick, 474.)

APPEAL (Continued).

2. JUDGMENT REMOVING BOARD OF SUPERVISORS EFFECT OF APPEAL-— SUSPENSION OF JUDGMENT-RESTORATION OF LEGAL RIGHT.—Ân appeal to the supreme court from a judgment removing a board of supervisors for neglect to fix water rates at the required time ipso facto operates as a supersedeas, and suspends the effect of the judgment, so as to restore the board to its right to continue in office until the final determination of the appeal. (Id.)

3. APPOINTMENT AND QUALIFICATION OF NEW BOARD IMMATERIALRIGHT OF INCUMBENCY OF APPEALING BOARD.-The fact that a new board of supervisors was appointed, qualified, and met and organized after the announcement of the decision, and before the entry of judgment removing the board of supervisors, and the taking of an appeal therefrom, is immaterial, and cannot affect the legal right of the appealing board to retain the incumbency of the office, where it appears that on the day of the entry of the judgment of removal it immediately perfected an appeal, and continued thereafter to act as a board of supervisors. (Id.)

4. ORDER REFUSING ΤΟ STRIKE OUT COST BILL-UNAUTHORIZED STAY BOND-IMPROPER JUDGMENT UPON MOTION AGAINST SURETIES. An order denying defendant's motion to strike out plaintiff's cost bill is not an "order directing the payment of money" within the purview of section 942 of the Code of Civil Procedure; and a bond executed in double the amount of the cost bill upon appeal from such order by the defendant, has no statutory authority, and cannot operate to stay execution; and the plaintiff is not entitled to judg ment against the sureties thereon, upon motion, that being a summary remedy created by the statute, and applicable only to undertakings allowed by it. (Reay v. Butler, 113.)

5. STIPULATION FOR JUDGMENT UPON MOTION.-A stipulation inserted in such bond agreeing that judgment might be entered against the sureties upon motion, being required by the statute, in case of an effective stay bond, cannot operate to make the bond which is ineffectual as a stay, because made in a case not provided by statute, effective to bind the sureties to summary judgment against themselves. (Id.)

6. FAILURE TO FILE TRANSCRIPT-UNSETTLED BILL OF EXCEPTIONS -NEGLECT OF APPELLANT-DISMISSAL.-It is the duty of a party seeking to avail himself of a bill of exceptions, for the purpose of review upon appeal, to take whatever steps may be necessary to procure its settlement; and since the judge who tried the case is not required and cannot be compelled to settle the bill, after his term of office has expired, it is necessary to apply to this court for an order directing its settlement; and where no steps are taken within a reasonable time to secure the settlement of the bill of exceptions, the appeal will be dismissed upon motion of the respondent for failure to file the transcript within the time limited therefor. (Estate of Depeaux, 522.)

7. JUDGMENT-FINDINGS-PRESUMPTION OF WAIVER.-On an appeal from the judgment on the judgment-roll alone, all intendments are in its favor, and error must be affirmatively shown; and where the record is silent upon the subject, a waiver of findings will be