adena, forming a part thereof, and without any allegation of assignment, indorsement, or other transfer to plaintiff-fails to state a cause of action in favor of the plaintiff.

Judgment reversed and cause remanded, with directions to the court below to sustain the demurrer, with leave to the plaintiff to amend the complaint if so advised.

Harrison, J., and Garoutte, J., concurred.

Hearing in Bank denied.

INDEX.

(681)

INDEX.

ABATEMENT. See Pleading, 3, 5-6.

ACCOUNTING.

1. EQUITY-ACCOUNTING AGAINST MORTGAGEE-DECREE OF FORECLOSURE
NOT PRAYED for JurisdicTION TO AWARD FULL RELIEF.-Where
the plaintiff sued in equity for an accounting by the defendant as
mortgagee in possession of a dairy business, under a bill of sale
made as security for debt, and alleged the receipt of profits in ex-
cess of the debt, and prayed for the accounting and for judgment
for the excess, and for a reconveyance of the property, and the de-
fendant took issue upon the averments of the complaint, alleged an
absolute purchase, and merely prayed that he be dismissed with
costs, the court of equity, upon such accounting, had jurisdiction to
administer full relief, and do complete justice between the parties,
so as to prevent further litigation between them. Where the court
found that the transaction was a mortgage, and that the plaintiff
was indebted to the defendant, it had jurisdiction to render an af-
firmative judgment in his favor, and to order the sale of the prop-
erty, to pay such debt, though not prayed for. (Vierra v. Fontes,
126.)

2. ESTOPPEL OF PLAINTIFF-RESULT OF ACCOUNTING.-The plaintiff,
having brought the defendant into the court to compel an account-
ing, is in no position to complain of the result of the accounting.
(Id.)

See Arbitration and Award, 3, 4; Corporations, 5-10; Estate of
Deceased Persons, 8, 11, 13; Guardian and Ward, 3, 4; Mort-
gage, 15, 18.

ACCOUNT STATED.

1. IMPLIED PROMISE-WRITTEN CONTRACT-STATUTE OF LIMITATIONS.
-An account stated in writing does not, by mere acquiescence of the
debtor therein, raising an implied promise to pay the amourt, be-
come a contract in writing by the debtor within the statute of limi-
tations. (National Cycle Manufacturing Company v. San Diego
Cycle Company, 335.)

2. ACCOUNT STATED NOT SHOWN-DISTINCT DEBTS OF INDIVIDUALS AND
COPARTNERSHIP-SETTLEMENT BETWEEN DEFENDANTS-TRANSFER OF
ASSETS.-Where an individual defendant and a copartnership de-
fendant had separate dealings with the plaintiff and owed him dis-

ACCOUNT STATED (Continued).

tinct debts, and upon settlement of the copartnership of which the individual debtor was a member, he turned over to his copartner, a corporation defendant, all of the partnership assets, and certain individual assets, and they adjusted between them the total amount due to the plaintiff, and the corporation, without assuming his individual liability, agreed to pay to the plaintiff the proceeds of the assets when collected, the rendition of the individual and copartnership accounts, in a statement delivered to the corporation defendant, did not, by failure of the corporation to object thereto, constitute it an account stated in favor of the plaintiff against the corporation, nor render it personally liable to pay the individual debt. (Id.)

ACKNOWLEDGMENT.

1. MORTGAGE LIMITED POWER OF JUSTICE OF THE PEACE-RECORDCONSTRUCTIVE NOTICE NOT GIVEN.-A justice of the peace has no power to take an acknowledgment outside of the county which limits his territorial jurisdiction; and the acknowledgment of a mortgage taken by a justice of the peace of the proper county, but having its venue laid in another county, and purporting to I certify that it was taken before him at his office in such other county, and that the certificate was there made, shows on its face that the acknowledgment was taken outside of his territorial jurisdiction. The record of such mortgage in the county where the prop erty was situated, and in which such justice in fact had jurisdiction, will not impart constructive notice of the mortgage. (Middlecoff v. Hemstreet, 173.)

2. PURPOSE OF VENUE OF CERTIFICATE.-The purpose of the venue of an official certificate is to show that the official act is done within the territorial jurisdiction of the officer. (Id.)

3. CERTIFICATE OF JUSTICE OF ANOTHER COUNTY-CERTIFICATE OF COUNTY CLERK.-Where a certificate of acknowledgment is taken before the justice of the peace of another county, it must be accompanied by the certificate of the county clerk of that county, as required by section 1194 of the Civil Code, to entitle the instrument to record.

(Id.)

4. WORDS PARTLY PRINTED AND PARTLY WRITTEN-EFFECT OF RECORD. -The general rule that, where words are party printed and partly written, the written words will control inconsistent printed words, can have no application to the question of constructive notice by the record of a mortgage, the record of the certificate of acknowledgment of which cannot show that the certificate was partly printed and partly written. (Id.)

ADVERSE POSSESSION. See Estates of Deceased Persons, 24.

AGENCY. See Brokers; Contracts, 10; Corporations, 3.