erty saved and of that employed in saving it; 2. The degree of peril from which the saved property is delivered; 3. The risk to which the property and person of the salvor is exposed; 4. The severity and duration of his labor; 5. The promptness with which he interposed his services; and 6. The skill, courage, and judgment involved in them. Id.

27. PAYMENT FOR SERVICE-WHEN NOT A BAR TO SUIT FOR SALVAGE.-A payment received by a salvor as for work and labor and use of material, upon the reasonable understanding, on his part, that the other and principal salvors would settle and receive payment on the same basis without a suit for salvage, is no bar to such salvor intervening for his interest in a suit subsequently brought by such other salvors for salvage, and receiving his due share of the award therefor, less the payment theretofore made. Id.

28. OPPOSING APPEALS IN A CASE IN ADMIRALTY DO NOT CREATE TWO CAUSES in the appellate court. After one party has perfected his appeal, an appeal by the opposite party may be perfected by serving and filing in the court below his notice of appeal. Steamer City of Panama v. Phelps (Wash.), I, 848.

ADMISSIONS.

See MURDER AND MANSLAUGHTER, 69, 71, 72.

ADMISSION TO THE BAR.

See ATTORNEYS, 12.

ADVERSE POSSESSION.

1. TITLE BY ADVERSE POSSESSION CAN NOT BE ACQUIRED by occasionally cutting up doad timber, felling trees, and removing wood from the land. Kimball v. Stormer (Cal.), II, 371.

2. ADVERSE POSSESSION-COLOR OF TITLE-POSSESSION.-A plaintiff who claims under color of title a larger tract, which includes the land to which the plaintiff has shown title in fee, can not establish an adverse possession as to the plaintiff's land, which has remained vacant and unoccupied, by proving an actual possession of a portion of the larger tract, when such possession does not extend to any of the land claimed by the plaintiff. Especially is this the case when it appears that the defendant had not asserted an absolute and unqualified right to such plaintiff's land for the time required by the statute of limitations. Id.

3. FINDING AS TO ADVERSE POSSESSION-EJECTMENT.-In an action of ejectment, where the plaintiff alleges title in himself, and the defendant relies upon a title obtained by adverse possession, a finding that the defendant has such title, if sustained by the evidence, is sufficient, without finding upon the question whether the plaintiff had or had not title originally. Id.

4. ADVERSE POSSESSION.-The open an exclusive possession of real property for the purpose to which it is ordinarily fit or adapted constitutes adverse possession; and the erection of a fence or other artificial boundary to indicate the limits of such possession is not essential thereto. Zeilin v. Rogers (U. S. Cir. Ct., Or.), III, 466. 5. EJECTMENT ADVERSE POSSESSION-TAXES.-In an action for ejectment, where the defense relied on is a title acquired by adverse possession after the passage of the act of April 1, 1878, the defendant must prove, and the findings must show, that he or his grantors have paid all taxes levied and assessed on the land in controversy, whether the same were assessed to him or to some other person. Proof, and a finding that he paid all taxes assessed to him, is not enough. Ross v. Evans (Cal.), III, 428.

6. ADVERSE POSSESSION-RENTS AND PROFITS-ACQUIESCENCE.-In such action, when the defendant's possession of the land in dispute was with the consent and acqui escence of the plaintiff, under an agreement between the parties, and his claim of ownership to such land was also acquiesced in, the plaintiff is not entitled to recover for the rents and profits of such land for the time during which he acquiesced in the possession of the defendant. Id.

7. TITLE TO REAL ESTATE CAN NOT BE OBTAINed by Adverse POSSESSION, under section 325 of the code of civil procedure, unless the adverse holder has paid the taxes levied and assessed upon such land during the time of his occupancy. Webb v. Clark (Cal.), I, 861.

8. SUFFICIENCY OF THE EVIDENCE TO SUSTAIN A FINDING that the possession of the defendants was not adverse will not be considered by the appellate court, when such adverse possession could not have continued for a sufficient length of time prior to the commencement of the action to furnish a defense. Emeric v. Alvarado (Cal.), I, 708.

acres

9. ADVERSE POSSESSION.-Defendants have not acquired title by adverse possession to the two tracts of complainant's lands--one of seventy-five acres, the other of fifty s-which have been completely buried by their mining debris. These tracts have not been "protected by a substantial inclosure," or "usually cultivated or improved," by defendants, as required by the code of civil procedure, section 325, in all cases where the adverse possession is "not founded upon a written instrument, judgment, or decree," and there has been no ouster of the complainant by defendants. Woodruff v. North Bloomfield G. M. Co. (U. S. Cir. Ct., Cal.), I, 183. 10. FINDINGS-ADVERSE POSSESSION EVIDENCE.-Finding that the defendant had acquired title to the premises in controversy by adverse possession reviewed, and held supported by the evidence. Specht etc. v. Hager et al. (Cal.), III, 403, 404. 11. ADVERSE POSSESSION-KNOWLEDGE OF REAL OWNER'S TITLE.-Title to land may be acquired by adverse possession, although the adverse holder has no knowledge of the nature of the title of the real owner. Packard v. Johnson (Cal.), III, 763. Packard v. Moss (Cal.), III, 769.

12. SWAMP LANDS-PURCHASE OF-ADVERSE POSSESSION.-Under the act of 1858, the purchaser of swamp lands, who had fully paid for the same and complied with all the terms of his contract, became absolutely entitled to a patent, upon the certification of such lands to the state, and the neglect of himself or his assignee to obtain such patent will not prevent the running of the statute of limitations in favor of an adverse holder from such date.

Id.

See DEDICATION, 7; INFANTS, 1; TENANTS IN COMMON, 2; WATER RIGHTS, 15, 16, 23.

AFFIDAVITS.

See AFFIDAVITS OF MERITS; APPEAL, 34, 53, 76, 81, 83; ATTACHMENT, 7; CERTIORARI, 10; CONTEMPT, 12, 13; JURY AND JURORS, 31; RELEASE, 2; SUMMONS, 19-21.

AFFIDAVIT OF MERITS.

1. AFFIDAVIT OF MERITS, STATEMENT IN.-The statement in an affidavit of merits that the defendant "has fully and fairly stated the case in this action," is equivalent to a statement that he has fully and fairly stated the facts of the said case." Rathgeb v. Tiscornia (Cal.), IV, 375.

See VENUE, 11, 12, 16.

ALIEN.

See ESTATES OF DECEASED PERSONS, 17, 18; MINES AND MINING, 16, 17.

ALIENATION, RESTRAINT OF.
See WILLS, 7.

AMENDMENT.

1. THE POWER OF THE CIRCUIT COURT OVER AMENDMENTS TO PLEADINGS, after a remand from the supreme court, is not affected by the circumstance of an appeal having been taken; and while the supreme court may send a case back for amendment of pleadings and retrial generally, it has no power to prescribe the character of the amendments to be allowed, or the mode of conducting subsequent proceedings. Branson v. Oregonian Railway Co. (Or.), I, 624.

an appeal from

2. APPEAL FROM JUSTICES' COURT-AMENDMENTS-CERTIOKARI.-On the justices' court on questions of law and fact, the superior court has jurisdiction to allow an amendment to the pleadings, upon such terms as may be just. The action of the court in allowing an amendment is not reviewable on certiorari, even if the same were irregular or erroneous. Ketchum v. Superior Court of San Joaquin County (Cal.), III, 490.

3. STRIKING OUT PORTIONS OF COMPLAINT AND ANSWER.--Plaintiff brought this action to recover possession of certain grain and hogs, on the ground, as alleged in his

verified complaint, that the same were his property. The defendant, as sheriff, denied the ownership by the plaintiff, and justified his possession under certain writs of attachment. He alleged that the said property had been taken from him by the plaintiff, after his levy, under a writ of replevin, and asked a return thereof to him, to be held subject to such attachment. On the trial the court, against defendant's objection, on the oral statement of plaintiff's counsel, that the defendant had not levied upon the hogs, permitted the plaintiff to strike out from the complaint all reference to the hogs, and struck out all allegations in regard to the same in defendant's answer. Held, that such action of the court was erroneous; for if the averments of the answer were true, the effect of the amendment would be to take the hogs from the defendant's possession and transfer them to the plaintiff without affording the former an opportunity to try the question of his right to their return. Howell v. Foster, Sheriff, etc. (Cal.), II, 743.

4. REFUSAL, DURING THE TRIAL, OF AN AMENDMENT TO AN ANSWER setting up a new defense is not error when the defendant fails to affirmatively show that he did not know of such defense before. Hallack v. Bresnahan (Wy.), II, 60.

See APPEAL, 12; DEPOSITIONS, 4; FINDINGS, 38; FRAUD, 9; REMOVAL OF Causes, 13; REPLEVIN, 1; SPECIFIC PERFORMANCE, 3; SUPPLEMENTARY PROCEEDINGS, 3; TENANTS IN COMMON, 3; VARIANCE, 1-3.

ANSWER.

See DISMISSAL OF ACTION; PLEADING AND PRACTICE.

APPEAL AND WRIT OF ERROR.

1. IN GENERAL.

2. WHO MAY HAVE.

3. THE RECORD AND PRACTICE.

4. THE HEARING.

5. THE RELIEF GRANTED.

6. DISMISSAL OF

1. IN GENERAL.

1. AN APPEAL WILL NOT LIE FROM A JUDGMENT OF THE DISTRICT COURT IN COMMONLAW ACTIONS or proceedings unless it is expressly allowed by statute. Van Camp v. Commissioners of Custer County (Idaho), II, 18.

2. AN APPEAL IS NOT THE COMMENCEMENT OF A NEW ACTION or proceeding, but a continuation of the same case, action, or proceeding, being only a transfer from one court, tribunal, or body to another for final trial and judgment. Id.

3. THE RIGHT TO APAEAL is statutory and unknown to the common law; it can not be extended to cases not within the statute. General Custer Mining Co. v. Van Camp (Idaho), II, 174.

4. THE BOARD OF COUNTY COMMISSIONERS AND THE BOARD OF EQUALIZATION, although composed of the same persons, are separate and distinct bodies, with different duties and powers. Id.

5. THE RIGHT OF APPEAL GIVEN BY STATUTE FROM ORDERS OF THE BOARD OF COMMISSIGNERS does not imply the right of appeal from orders of the board of equalization. Id.

6. AN APPEAL FROM AN ORDER OF THE BOARD OF COUNTY COMMISSIONERS declaring the result of an election for a county seat may be taken to the district court of said county, and when so taken, the action is commenced when the notice of appeal is filed with the clerk of the board of county commissioners. Rupert v. County Commissioners of Alturas County (Idaho), II, 15.

7. THE BOARD OF COUNTY COMMISSIONERS IS NOT A COURT; it has no judicial functions or power, and can not be vested therewith. Id.

8. MATTERS DECIDED BY THE DISTRICT COURT ON APPEAL FROM THE ORDERS OF THE BOARD OF COUNTY COMMISSIONERS can only be brought to the supreme court for review by writ of error. Id.

9. No APPEAL LIES FROM AN ORDER IN A CRIMINAL ACTION DISMISSING THE SAME for want of prosecution. Such attempted appeal may be either dismissed or stricken from the calendar. People v. Hollis (Cal.), II, 71.

10. NO APPEAL LIES, IN A PROSECUTION FOR MURDER, FROM AN ORDER DENYING A MOTION in arrest of judgment, or from a judgment entered upon a plea of former conviction. People v. Majors (Cal.), II, 287.

11. MOTION FOR NEW TRIAL-APPEAL FROM ORDER DENYING.-A motion for a new trial can not be made in a prosecution for murder after a verdict in favor of the people rendered upon a plea of former conviction, and consequently no appeal lies from an order denying the same. Id.

12. STRIKING COMPLAINT FROM FILES-AMENDMENT-APPEAL.--An order striking a complaint from the files, and overruling a motion to allow it to be amended, is not a final judgment. Such order is not appealable. Owen (a lunatic), by his Committee, v. McCormick (Mont.), IV, 479.

13. AN ORDER STRIKING OUT AN ANSWER IS NOT APPEALABLE.-Beach v. Hodgdon (Cal.), IV, 610.

14. ORDER MADE AFTER REVERSAL OF JUDGMENT NOT APPEALABLE.-An order made in an action after the judgment therein has been reversed in the supreme court, is not appealable as a special order made after final judgment. The effect of such reversal is to place the parties in the lower court in the same position as if the case had never been tried. Sharp v. Miller (Cal.), IV, 384.

15. ORDER APPOINTING RECEIVER-APPEAL DOES NOT LIE FROM.-No appeal lies from an order of the district court appointing a receiver, although such order may command the defendants to refrain from any and all interference with the receiver in the discharge of his duties as such. Stebbins v. Savage et al. (Mont.), IV, 477.

16. SHERIFF APPEALS BY, FROM ORDER APPOINTING RECEIVER.-A sheriff, who has taken possession of property assigned for the benefit of creditors, under attachment issued in favor of one creditor, can not appeal from an order made at the instance of another creditor of the assignor, which requires him to deliver such property to a receiver. If an appeal lies from such order, the proper parties to take the same are the creditors interested. Id.

17. No APPEAL LIES BY AN EXECUTOR, AS SUCH, FROM A DECREE SETTLING and distributing an estate. Estate of Marrey (Cal.), III, 49.

18. AN ORDER DENYING A MOTION TO SET ASIDE A FINAL ORDER OF CONDEMNATION, in an action for the condemnation of land, is not appealable. California Southern R. R. Co., v. Southern Pacific R. R. Co. (Cal.), III, 52.

19. SETTING ASIDE JUDGMENT-APPEAL FROM ORDER.-The effect of an appeal from an order setting aside a judgment is not to revive the judgment. The judgment no longer exists, so far as the assertion of any rights under it is concerned, until it shall be brought into force again by a reversal of the order setting it aside. Estate of Crozier, deceased (Cal.), III, 157.

20. No APPEAL LIES TO THE SUPREME COURT FROM AN ORDER OF THE DISTRICT JUDGE requiring the county assessor of Esmeralda county to file in the district court a statement of taxes, as required by section 6 of the act of March 1, 1883, although such order was made by the court instead of by the judge. Lyon Co. v. Esmeralda Co. (Nev.), I, 395.

21. No APPEAL LIES TO THE SUPREME COURT FROM AN ORDER OF THE DISTRICT COURT setting aside a previous order vacating a judgment. The effect of such order is not to revive or reinstate the judgment. Owen v. Going (Col.), I, 352. 22. THE SUPREME COURT HAS NO JURISDICTION OF AN APPEAL FROM A JUDGMENT of the superior court affirming a judgment of the police court adjudging the defendant guilty of a misdemeanor, and imposing on it a fine of fifty dollars. People etc. v. Meiggs Wharf Company (Cal.), II, 287.

23. APPEAL FROM JUSTICE'S COURT-JURISDICTION OF.-The supreme court has no jurisdiction of an appeal from a judgment of the superior court, affirming a judgment of the justice's court, in an action brought to recover one huudred and eighty dollars, with interest and costs.-Hackley v. Craig (Cal.), II, 375.

24. AN APPEAL LIES TO THE SUPREME COURT from a judgment of the superior court granting or denying an application for a writ of mandamus; and an undertaking in the sum of three hundred dollars, executed and conditioned according to the provisions of section 941 of the code of civil procedure, stays the execution of such judgment pending the appeal. Palache v. Hunt (Cal.), I, 485.

25. APPEAL FROM AN ORDER SETTING APART A HOMESTEAD TO A WIDOW, out of the estate of her deceased husband, must be taken within sixty days after such order was made. Estate of Burton (Cal.), I, 254.

26. APPEAL FROM AN ORDER DENYING A WIDOW'S APPLICATION FOR A HOMESTEAD, to be set apart to her out of the estate of her deceased husband, must be taken within sixty days after the entry of such order. Estate of Harland (Cal.), I, 49. 27. WRIT OF ERROR AND APPEAL.-Whether an error of the county court in denying an appeal can be reviewed on a writ of error to the original judgment, quare. Brandexburg v. Reithman (Col.), II, 774.

28. APPEAL HELD WITHOUT MERIT, AND JUDGMENT AND ORDER AFFIRMED with damages. Hooper v. Powers (Cal.), IV, 525.

2. WHO MAY HAVE.

29. NO ONE CAN SUE OUT AND MAINTAIN A WRIT OF ERROR UNLESS HE IS A PARTY or privy to the record, or is prejudiced by the judgment. Van Camp v. Commissioners of Custer Co. (Idaho), II, 18.

30. COURTS WILL LOOK BEYOND the mere TitLE OF AN ACTION or proceeding for the purpose of determining who are interested and affected as parties. Id.

31. APPEAL FROM JUDGMENT BY PERSON NOT A PARTY.-A person who is not a party nor privy to, nor aggrieved by, a judgment, can not appeal therefrom. Dunphy v. Potrero Co. et al. (Cal.), IV, 526.

32. A PARTY WHO HAS VOLUNTARILY TAKEN ADVANTAGE OF A JUDGMENT rendered at nisi prius can not afterwards prosecute proceedings to reverse it. Atkinson v. Tabor (Cal.), II, 105.

3. THE RECORD AND PRACTICE.

33. ERRORS APPEARING UPON THE FACE OF THE JUDGMENT ROLL may be taken advantage of upon a writ of error, without a bill of exceptions or statement of the case. Van Camp v. Commissioners of Custer Co. (Idaho), II, 18.

34. AN APPEAL TO THE DISTRICT COURT FROM A JUDGMENT OF THE PROBATE COURT can not be perfected unless the proper affidavit of non-vexation and delay is made and filed. Chaves v. Perea (N. M.), I, 807.

35. THE RIGHT OF APPEAL COMMENCES TO RUN FROM THE ACTUAL ENTRY of the judg ment, and not from the date as of which it was entered nunc pro tunc. Noce v. Daveggio (Cal.), III, 491.

36. AN APPEAL FROM AN ORDER DENYING A NEW TRIAL must be taken within sixty days after the entry thereof. Brown et al. v. Greene et al. (Cal.), II., 828.

37. SERVICE OF NOTICE OF APPEAL-FILING UNDERTAKING.—An undertaking on appeal must be filed within five days after service of the notice of appeal. When such service is by mail, the undertaking must be filed within five days after the deposit of a copy of the notice in the post-office. Section 1013 of the code of civil procedure, extending the time in which acts may be done in certain cases, has no application to such case. Id.

38. THE SAME THE TRANSCRIPT MUST CONTAIN PROOF of the service of the notice of appeal upon the opposite party or his attorney. Id.

39. AN APPEAL IS INEFFECTUAL WHEN THE NOTICE THEREOF is not signed by the attorneys of record or by the counsel for the appellant, or when the transcript contains no proof that such notice was served upon the respondents. Ellis v. Bennet et al. (Cal.), II, 884.

40. SERVICE OF NOTICE OF APPEAL, PROOF OF.-The certificate of the clerk of the district court acknowledging due service of appeal is not sufficient proof of such service to confer jurisdiction upon the supreme court. After rendition of judgment the proof of such service may be shown by affidavit, when the validity of such judgment is attacked in a collateral action. Blinn v. Crosby et al. (Wash.), II, 796. 41. AN UNDERTAKING ON APPEAL MUST BE FILED WITHIN TEN DAYS from the time of the service of the notice of appeal. If filed on the eleventh day the appeal will be dismissed. Northern Pacific Terminal Co. v. Lowenberg et al. (Or.), II, 823.

42. THE ASSIGNMENT OF ERRORS IN A NOTICE OF APPEAL must be specific. It is not sufficient to state generally that the errors relied on consisted in admitting or excluding testimony as shown by the bill of exceptions. Id.

43. PRACTICE OF ASSIGNING MORE ERRORS than are necessary to present the points relied on, strongly condemned. Brewster, Receiver, etc., v. Baxter (Wash.), II, 791. 44. AFTER AN APPEAL HAS BEEN PERFECTED THE DISTRICT COURT HAS JURISDICTION to settle and allow the statement on appeal filed in the court below within the time required by statute. James v. Leport (Nev.), II, 44.

45. CERTIFICATE AS TO THE EVIDENCE INTRODUCED AT THE TRIAL.-Where a trial was partly had in the district court, with the aid of the official reporter, and then discontinued on account of the retirement of the judge, and upon a rehearing by his successor the notes of the reporter were used as correctly presenting the evidence, the only certification as to the evidence introduced at the trial required, so as to bring the cause before the supreme court, is the certificate of the judge who tried the cause. Seattle & W. W. R. R. Co. v. Ah Kowe (Wash.), II, 53.

46. AN APPEAL FROM A JUDGMENT RENDERED IN FAVOR OF THE UNITED STATES can not be perfected without service of notice upon the United States. Such service,