tract to pay for the services. Angulo vs. Sunol, 14 Cal.

402.

SEC. 31. For domestic services rendered in such case by the wife of one partner, all living in the same house, the law does not imply a contract to pay for the service. 14 Cal. 402.

SEC. 32. The presumption that the person enjoyed the benefit of services, is bound to pay therefor what they are reasonably worth, may be rebutted by proof of a special agreement to pay a fixed amount, or in a particular manner, or by proof that the services were intended to be gratuitous. In an action for personal services, defendants asked an instruction to the effect, that if the plaintiff served the defendant upon an understanding that he was to have only his living-board, washing, lodging, etc.-as a compensation, and that he had received these, then defendant should recover, which instruction the court refused: Held, that the instruction was proper, and that for the error in refusing it the judgment for plaintiff must be reversed. Moulin vs. Columbet, 22 Cal. 508.

Damages.

SEC. 33. Where one is employed by another under a contract, at a stated salary, payable monthly or at a stated time, to act as his clerk, or transact business for him, and the employé neglects the business, the employer is not precluded from maintaining an action for damages for this neglect, by payment in full of the employé's wages, or by allowing the employé to sue and recover judgment, by refraining from interposing any counter claim for a breach of the employé's contract. Stoddard vs. Treadwell, 26 Cal. 294.

SEC. 34. Where the defendants, partners, employed plaintiff, on an agreement that a portion of his wages should be retained by defendants until a certain sum had accumulated, when plaintiff should be admitted as a partner; and defendants subsequently, but before the sum had accumulated, dissolved partnership: Held, that the defendants, by their acts having violated the special contract by dissolving their copartnership, the plaintiff was at liberty to sue on the special contract for damages, or declare for the value of his work and labor. Adams vs. Pugh, 7 Cal. 150.

SECTION 1. Abatement, Plea of, in Justices' Courts.-The pleas in abatement in justices' courts are usually to the jurisdiction, or that the defendants are not set forth by their proper names, or that the process which has been issued has not been issued and served as the statute directs. In deciding upon such pleas as these, if the facts constituting the plea in abatement be found true, the plea should be admitted by the justice. The opposite course would only subject the parties to costs, and determine nothing; for by certiorari the proceedings would be taken to a higher court, and on proof of any of the allegations made, the proceedings would be set aside.

SEC. 2. Abatement in Pleading.-Abatement in pleading is the overthrow of an action in consequence of some error committed in bringing or conducting it, when the plaintiff is not forever barred from bringing another action. 1 Chit. Pl. 434, 445.

Jurisdiction.

SEC. 3. When to the Jurisdiction.-Jurisdiction is a power constitutionally conferred upon a judge or magistrate to take cognizance of and decide causes according to law, and to carry his sentence into execution. Bouv. Law Dict. When therefore the power is wanting, either as it relates to the subject matter of the action or the remedy sought, the plea in abatement applies. Nor can the absence of jurisdiction be remedied by agreement; it is the law which gives it, and not the consent of parties. 1 Const. R. 478. Where there is an entire want of jurisdiction of the subject matter in the court, it is never too late to object to the jurisdiction. 1 Ash. 168; 2 Cow. Treat. 668.

Another Action Pending.

SEC. 4. Another Action Pending.-A plea to abate an action by reason of another action pending is not good, unless it show that the pending action was brought for the same cause as the one in which the plea is interposed. Calaveras Co. vs. Brockway, 30 Cal. 325.

SEC. 5. The Parties Must be the Same.-An action cannot be abated by a former action pending for the same cause unless the parties are the same. 30 Cal. 325.

SEC. 6. Pendency of Prior Action.-To support a plea in abatement founded on the pendency of a prior action, it is necessary to show that process was issued in such action. Prim vs. Gray, 10 Cal. 522.

SEC. 7. The Pendency of One Suit may be Pleaded in Abatement of Another.-A defendant cannot be harassed with several suits for the same matter at the same time. In such a case, the pendency of one suit may be plead in abatement of the other. Seligman vs. Kalkman, 8 Cal. 216.

SEC. 8. When the Former Case is Defective.-A plea in abatement of a former suit pending is no bar to an action when the complaint in that case is so defective that a judgment rendered thereon would be a nullity. nolds vs. Harris, 9 Cal. 341.

Rey

SEC. 9. What must be Shown in an Answer in Abatement. -In an action to recover land, an answer of another action pending, for the same cause, must show that the same title, the same injury and the same subject matter, are in controversy in both actions. Larco vs. Clements, 36 Cal. 132.

SEC. 10. Answers must be Strictly Construed.-Answers in abatement of an action are to be strictly construed. 36 Cal. 132.

SEC. 11. Judgment on Issue in Abatement.—If an answer in abatement is found true, the judgment should not be in bar, but that the suit abate. 36 Cal. 132.

Misnomer.

SEC. 12. Misnomer.-The misnomer of one of two defendants, when sued as a firm, as to his christian name, if material at all, must be taken advantage of by a plea in abatement. 8 W. & S. 485.

SEC. 13. A Misnomer of Plaintiff A Corporation.-A misnomer of the plaintiff in an action by a corporation, must be taken advantage of by a plea in abatement. 2 W. & S. 156.

SEC. 14. An Initial Letter between the Christian and Surname is no part of the Name.-An initial letter, between the christian and surname of the party, is no part of the name, and the omission of it is not a misnomer or a variance. W. & S. 329.

Misjoinder and Nonjoinder.

4

SEC. 15. Misjoinder of Parties.-An answer will not be treated as a plea in abatement for a misjoinder of parties defendant, after the testimony has disclosed a proper cause of action against them. Warner vs. Wilson, 4 Cal. 313;

Dunn vs. Tozer, 10 Cal. 170.

SEC. 16. Where Part Owner Brings an Action.-Where a part owner brings an action in form ex delicto, and the objection is not made by plea in abatement, the other part owner may afterwards sue alone. Whitney vs. Stark, 8

Cal. 516.

Death, Abatement by.

SEC. 17. An action shall not abate by death or other disability of a person, or by transfer of any interest therein, if the cause of action survive or continue. In case of the death or other disability of the party the court, on motion, may allow the action to be continued by or against his representatives or successor in interest. In case of any other transfer of interest the action may be continued in the name of the original party; or, the court may allow the person to whom the transfer is made to be substituted in the action. Practice Act, Sec. 16.

CHAPTER XX.

ABANDONMENT.

What Constitutes.

SECTION 1. Abandonment is the relinquishment of property by the possessor or owner, of all right, title and interest, by him held thereto, and they belong to the first occupant or possessor thereafter. Bouv. Inst. 195.

SEC. 2. To entitle the finder or subsequent possessor to such property the former owner must have wholly abandoned his title thereto, and even the acquisition by him who finds such property does not make it his, unless he takes possession of it by some outward act signifying an intention to possess it. The necessity of this outward act is founded on the principle that a will or intention cannot have legal effect without an outward act declaring that intention; and, on the other hand, no man can be said to have the dominion over a thing which he has no intention of possessing as his. Therefore, a man cannot deprive others of taking possession of vacant property by merely considering it as his without actually appropriating it to himself. The outward act or possession need not be manual; for any kind of possession, as simply having the custody of it, is in general a sufficient appropriation. The exceptions to the above rule are usually created by statute. Bouv. Inst. 195. See MINES AND MINING CLAIMS, Ch. LXVI.

CHAPTER XXI.

ACKNOWLEDGMENTS.

SECTION 1. Acknowledgments of the execution of any instrument whereby any real estate is conveyed or may be affected, is provided for by the following enactments:

Section 1. Section four of an act entitled an act concerning conveyances, passed April sixteenth, eighteen hundred and fifty, is hereby amended so as to read as follows: Sec. 4. The proof or acknowledgment of every instrument whereby any real estate is conveyed or may be affected, shall be taken by some one of the following officers:

1st. If acknowledged or proved within this state, by some judge or clerk of a court having a seal, or some notary public or county recorder, or by a justice of the peace of the proper county where the conveyance is executed, and to be recorded only in such county.

2d. If acknowledged or proved without the state, and within any state or territory in the United States, by some