INDEX.

ACQUITTAL.

See FORMER ACQUITTAL.

ACTION.

1. MINOR-SUIT PROPERLY BROUGHT IN NAME OF GUARDIAN.-When this action was commenced, W. C. Ricord, to whom the cause of action stated in the complaint belonged, was a minor: Held, that the suit was therefore properly brought in the name of E. E. Ricord, his mother and guardian. Ricord v. Central Pacific R. R. Co., 167.

2. IDEM-ATTAINING MAJORITY BEFORE TRIAL.-At the time of the trial the minor had attained his majority, and upon his motion he was joined with his mother as a party plaintiff: Held, error; that it would have been proper to substitute him as the sole plaintiff in her place, but having no joint interest in the cause of action, they could not be united as plaintiffs. Id.

1-12.) 195.

Intent and motive of defendant may be shown in an action for libel, to repel malice and to mitigate exemplary damages. (See Libel, 6.) 195. Action for libel-What may be shown. (See Libel, Injuries to growing crops-Land must be inclosed. (See Land, 1.) 259. Judgment of dismissal, when no summons has been served, should be without prejudice. (See Judgment, 1.) 302.

District attorney can not extend time for payment of penalties in an action for delinquent taxes. (See District Attorney, 1.) 308.

Interest, to be recovered, must be inserted in the judgment. (See Interest, 1.) 313.

Interest is allowed in actions ex delicto. (See Interest, 2.) 313.

Action upon judgment--Necessity for. (See Judgment, 2, 3.) 313.

A delinquent list is not essential to the right of action for taxes. (See Taxes, 6.) 384.

Act to protect wages of laborer-Time for commencement of action upon disputed claim. (See Statutes, 5.) 395.

Claim and delivery of personal property-Owner of land entitled to wood cut thereon. (See Claim and Delivery, 1.) 401.

Action on promissory note-Averment of lawful holder immaterial. (See Pleadings, 4.) 452.

When case may be set for trial. (See Trial, 1.) 452.

ADMISSION.

Admission by counsel for the state that the facts stated in defendant's

affidavit for continuance are true-When defendant is not benefited by
the admission. (See Continuance, 1.) 347.

AFFIDAVIT.

Change of venue-Discretion of court. (See Venue, 1.) 346.

Affidavit for continuance by defendant admitted to be true-When defendant
is not benefited by admission. (See Continuance, 1.) 347.

AGENT.

Purchasers of stock dealing with stockbrokers as agents of Wells, Fargo &
Co.-Transaction construed as a contract, not a loan. (See Evidence, 6, 7.)

276.

AGREEMENT.

Conditional agreement-Vendor's lien. (See Vendor's Lien, 1.) 444.

APPEAL.

1. JUDGMENT FOR DELINQUENT TAXES MUST INCLUDE PENALTY-RIGHT OF
STATE TO APPEAL. -The district attorney and state officers consented to
the entry of a judgment for delinquent taxes without including the pen-
alty: Held, that as no consent could be given to the entry of the judg-
ment, an appeal lies in favor of the state, from the judgment.
State v.
California M. Co., 234.

2. APPEAL-How TAKEN.-In order to take and perfect an appeal, the ap-
pellant should first file his notice of appeal, next serve it, and, within
five days of the filing of the notice, file an undertaking on appeal. Reese
G. & S. M. Co. v. Rye Patch Co., 341.

3. IDEM.-Held, upon a review of the facts, that appellant was not excused
for failing to follow the rule above prescribed. Id.

4. RECORD ON APPEAL-AFFIDAVITS NOT PART OF THE RECORD WILL NOT BE
CONSIDERED.-Affidavits, suggesting misstatements in the original record,
and unfairness on the part of the counsel for the state, copied into the
transcript, but not forming a part of the record, will not be considered.
State v. McLane, 346.

5. APPEAL FROM JUDGMENT-SUFFICIENCY OF EVIDENCE NOT CONSIDERED.—
Where the appeal is from the judgment alone, the question of the suffi-
ciency of the evidence to sustain the findings will not be considered.
State v. Northern Belle M. & M. Co., 384.

6. MISTAKE IN FAVOR OF APPELLANT. —An appellant can not complain of a
mistake in his own favor, as to the amount of interest due on a note.
Allen v. Reilly, 452.

Motion to redeliver possession of property, made before appeal is perfected,
denied. (See Motion, 1.) 143.

Errors against respondent will not be considered.

(See Error, 2.) 215.

Objections not made in court below will not be considered on appeal.

(See

Objection, 2.) 346.

1.) 426.

Authenticated statement where no amendments are filed. (See Statement,

Statement must be filed in statutory time. (See Statement, 2.) 426.

ASSAULT.

Assault with intent to kill-Instruction. (See Criminal Law, 2.) 33.

ASSAYS.

Assays of rock, taken after a mining claim is located, are competent evidence
to prove existence of mineral vein. (See Mining Claim, 5.) 384.

ASSESSMENT.

Second assessment valid. (See Taxes, 7.) 384.

Assessment-Time for completing it directory. (See Taxes, 8.) 384.

ASSESSOR.

Second assessment valid. (See Taxes, 7.) 384.

Time for completing assessment directory. (See Taxes, 8.) 384.

ASSIGNMENT.

A common law assignment for the benefit of creditors is valid. (See Bank-
ruptcy, 2, 3.) 265.

Consent of creditors is a valid consideration for assignment. (See Bankruptcy
4.) 265.

ATTACHMENT.

1. PERSONAL PROPERTY-LIEN OF ATTACHMENT-WHEN SUPERIOR TO LIEN OF
CHATTEL MORTGAGE-MORTGAGEE ACCEPTING TRUST AS KEEPER.-L.,
being indebted to D. and M., executed to D. a bill of sale of certain per-
sonal property, and agreed that he should have possession of the prop-
erty until the indebtedness to D. and M. was paid. Subsequently, one
W. brought suit against L. and attached the property, it then being, as
claimed by W., in the possession of L. The sheriff appointed D, as
keeper. The property was afterwards taken to the ranch of M. by order
of L., and thereafter D. conveyed his interest in the property and bill
of sale to M. There was no proof that D. ever returned the property to
the sheriff, or that he was ever released or discharged as keeper: Held,
that W.'s rights as an attaching creditor, if his attachment lien was
valid, were superior to the rights of D. as a mortgagee, or of M. as a sub-
sequent purchaser. Moresi v. Swift, 215.
2. VALIDITY OF UNDERTAKING FOR ATTACHMENT-CAN NOT BE RAISED COL-
LATERALLY.—An objection to the validity of an attachment upon the
ground that the affidavit and undertaking were defective, can not be
raised by a third party in a collateral proceeding. Id.

3. ATTACHMENT LIEN-FAILURE OF OFFICER TO KEEP POSSESSION.-The court
instructed the jury, in effect, that they could find a verdict in favor of
the subsequent purchaser, under assignment of the chattel mortgage,
upon the ground that the attachment lien, although valid, and creating
prior rights in favor of the attaching creditor, was subsequently lost by
reason of the sheriff's failure to retain the possession, custody, and con-
trol of the property: Held, that upon the facts of this case, the instruc-
tions were calculated to mislead the jury, and were erroneous. (Hawley,
J., dissenting.) Id.

4. FINDINGS SUSTAINED BY THE EVIDENCE.-Upon a review of the evidence:
Held, sufficient to sustain the findings of the court, that the property
mentioned was attached by the sheriff and taken into his possession and
so kept until the undertaking sued on was delivered. Lightle v. Bern-
ing, 389.

5. RELEASE OF ATTACHED PROPERTY-SUFFICIENT CONSIDERATION FOR UN-
DERTAKING.—The release of property from an attachment constitutes a
sufficient consideration for the undertaking. Id.

Mortgagee accepting trust as keeper--When estopped from denying validity
of attachment lien. (See Estoppel, 2.) 215.

Constructive possession of personal property, under attachment, is sufficient.
(See Possession, 4.) 215.

Undertaking to release property from attachment need not express a consid-
eration. (See Undertaking, 2.) 389.

ATTORNEY.

ATTORNEY-AT-LAW-MOTION TO STRIKE NAME FROM ROLL-COURT OF
RECORD.-Held, that the statute authorizing the court to remove an at-
torney who has been convicted of a felony or misdemeanor, and that
"the record of his conviction shall be conclusive evidence," contemplates
a conviction in a court of record; that the docket of a justice of the
peace is not conclusive. In re Granger, 55.

Advice of counsel-Probable cause for criminal prosecution. (See Malicious
Prosecution, 2, 3.) 168.

Argument of counsel in criminal cases.
Consent of attorneys to a judgment for

is void. (See Taxes, 5.) 234.

(See Criminal Law, 10.) 188.
delinquent taxes without the penalty,

Attorneys for state have no authority to extend time for payment of penal-
ties due, in a suit for delinquent taxes. (See District Attorney, 1.)
308.

BANKRUPTCY.

1. NATIONAL BANKRUPT LAW SUSPENDS STATE STATUTE.-The national bank-
rupt law suspended the statute of this state, relating to insolvent debtors.
Sadler v. Immel, 265.

2. COMMON LAW ASSIGNMENT.-The mere existence of the bankrupt law does
not, ipso facto, render a common law assignment void. Id.

3. IDEM ASSIGNMENT VALID.--An assignment fairly made for the benefit of
all the creditors, is valid, if no proceedings in bankruptcy were instituted
within six months from the date of the assignment. Id.

4. CONSENT OF CREDITORS.-The assent of creditors, representing debts equal
to the value of the property assigned, is a valid consideration. If their
debts are of less amount than the property, it gives the assignees a right
to retain property to the amount of their debts. Id.

5. FINDINGS OF FACT-WHEN WILL BE PRESUMED.-Where there is no ex-
press finding that the amount of the debts of the assenting creditors:
Held, that it will be presumed in support of the judgment, in the absence
of any finding to the contrary, that creditors having debts equal to the
value of the assigned property did come in and consent. Id.

BILL OF EXCEPTIONS.

1. ORDER CONTINUING MATTERS IN COURT.-Held, that the general order of
the court continuing "all matters in court not disposed of until the next
term,” did not extend the time for settling and signing a bill of excep-
tions.
Burns v. Rodefer, 59.

2. BILL OF EXCEPTIONS-WHEN MUST BE SETTLED AND SIGNED.-Under the
statute (Civ. Prac. Act, sec. 190, et seq.), a bill of exceptions, in order to