and is the tribunal to which is committed under the County Government Act the jurisdiction to supervise the action of the district attorney in incurring the expense, its determination that it was a proper and necessary expense is conclusive." (Colusa County v. De Jarnatt, 55 Cal. 373, 375; McFarland v. McCowen, 98 Cal. 330, [33 Pac. 113]; McBride v. Newlin, 129 Cal. 36, [61 Pac. 577]; County of Santa Cruz v. McPherson, 133 Cal. 282, [65 Pac. 574]; County of Alameda v. Ebers, 136 Cal. 132, [68 Pac. 475].)

We regard this decision as conclusive of the question here. The district attorney acted under express authority given him by the statute, and the board of supervisors determined that the expense was necessary. We cannot go behind the finding of the supervisors to inquire whether they decided rightly or wrongly. We have nothing before us but the record of official action and the findings of the court. The supervisors might well have concluded that the time of the expert given as a witness was as valuable to him as the time given to his examination of the specimens, and as to this latter item no objection is made. The examination of the specimens submitted to the expert and his conclusion upon such examination would have been of no assistance to the state in the trial of the case without the expert's presence at the trial.

It is suggested in appellant's reply brief that the complaint does not allege that an agreement was made by the district attorney to pay the petitioner for his services in attending as a witness at the trial. There is no direct averment of such agreement, but the claim shows on its face that the expenditure was "authorized and approved by" the district attorney. This was sufficient to meet the objection, for the claim was made part of the complaint.

We do not think that the general law fixing the fees of witnesses is a limitation upon the power given the district attorney and the board of supervisors by the statutes above referred to.

The judgment is affirmed.

Hart, J., and Burnett, J., concurred.

81 Cal. App.-51

MEMORANDUM CASE.

[Crim. No. 349. Third Appellate District.-September 2, 1916.]

THE PEOPLE, Respondent, v. C. H. GISH, Appellant. CRIMINAL LAW.-Appeal dismissed and record stricken from the files.

ATTEMPTED APPEAL from a judgment of the Superior Court of Napa County, and from an order refusing a new trial. Henry C. Gesford, Judge.

The facts are stated in the opinion of the court.

E. S. Bell, for Appellant.

U. S. Webb, Attorney-General, and J. Charles Jones, Depty Attorney-General, for Respondent.

BURNETT, J.-The record in the above-entitled cause has been filed in this court. It contains, however, no notice of appeal either from the judgment or the order denying the motion for a new trial. Neither has there been any appearance of appellant in this court. We may say, though, that we have read the record, and there appears to be no doubt of defendant's guilt or that he had a fair trial.

The purported appeal is dismissed, and the record stricken from the files.

Chipman, P. J., and Hart, J., concurred.

INDEX.

(803)

INDEX.

ABATEMENT. See Husband and Wife, 1, 2.

ACCOMPLICE. See Criminal Law, 6-8.

ACCOUNT STATED.

1. ESSENTIALS OF NEW CONTRACT.-An account stated is a writing
which exhibits the state of account between parties and the balance
owing from one to the other; and when assented to, either expressly
or impliedly, it becomes a new contract. (Fee v. McPhee Company,
295.)

2. ACTION FOR SERVICES-SUPPORT OF FINDINGS.-In this action to re-
cover an alleged balance due for services in superintending the con-
struction of certain buildings for a contracting company, it is held
that the finding that the document upon which the plaintiff relied
as an account stated constituted such an account is supported by
the evidence. (Id.)

3. OPENING OF ACCOUNT-FRAUD OR MISTAKE.-In the absence of al-
legation and proof of fraud or mistake which taints the entire con-
tract, the court will not open and unravel it as if no accounting had
been made, but the settlement will be binding except for the errors
shown.

(Id.)

4. EVIDENCE-PROOF OF OMISSIONS AND ERRORS.-In an action upon
an account stated it is proper to allow evidence of omissions and
errors therein and find in favor of plaintiff in accordance with the
facts. (Id.)

-

-

In an

5. INTEREST- - ALLOWANCE FROM COMMENCEMENT OF ACTION.
action on an account stated, interest is allowable from the date of
the commencement of the action. (Id.)

-

6. SUPERINTENDENCY OF BUILDINGS FOR CORPORATION PERCENTAGE OF
PROFITS STATUS OF PARTIES.-Contracts between a corporation en-
gaged in the general contracting business and an individual who is
to superintend the construction of certain buildings for the former
for a percentage of the "net profits" do not make the relationship
of the parties that of partners. (Id.)

7. CONSTRUCTION OF TERM "NET PROFITS"-EVIDENCE.-Evidence of
similar contracts made between the parties is admissible to assist the
court in interpreting the term "net profits."

ADVERSE POSSESSION.

1. OWNERSHIP OF ADJOINING PATENTED LANDS

(Id.)

INCLOSURE OF BOTH

HOLDINGS-LEASING FOR GRAZING PURPOSES-INSUFFICIENT PROOF