1

INDEX.

ACCOUNTING. See Assignment, Banks, 4; Estates of Deceased
Persons, 7.

ACQUIESCENCE. See Water and Water Rights, 1, 2.

ADMIRALTY.

1. OWNERSHIP OF

entry of

VESSEL-EVIDENCE-REGISTRY.-The
ownership in the custom-house books of the register or trans-
fer of a vessel is not even prima facie evidence of ownership
against one not claiming to be an owner therein, unless such
entry is shown to have been made by his authority. (Moynihan
v. Drobaz, 212.)

2. LIBEL IN ADMIRALTY-ADJUDICATION OF OWNERSHIP.-A libel of
a vessel in admiralty, where the proceeding is in rem, is only
a conclusive adjudication of ownership as against persons act-
ually interested in the vessel; and no one can be adjudged to
be a part owner of the vessel who has not appeared and asserted
ownership or other interest therein. A copy of the decree in
such a proceeding is not admissible to prove part ownership
in a person not so appearing. (Id.)

3. OWNERSHIP BY CORPORATION-ENFORCEMENT OF LIEN BY PARTNER-
SHIP ADMISSION OF PLEADINGS EVIDENCE-FINDINGS.-In an
action by a partnership firm to enforce a lien upon a vessel al-
leged to be owned by a corporation defendant, if the answer
does not deny the alleged partnership of the plaintiffs, or the
corporate existence of the alleged corporation, evidence that one
of the partners paid, individually, for one share in the corpor-
ation. does not tend to show that the other partner or the
partnership firm was a part owner or in any manner interested
in the vessel; and a finding that the corporation had no cor-
porate existence, being against the admission of the pleadings,
and outside of any issue, must be disregarded. (Id.)

4. ATTACHMENT OF VESSEL STIPULATION- SUFFICIENCY OF UNDER
TAKING ERRONEOUS FINDINGS. Where it was stipulated that
at the commencement of the action to enforce a lien upon the
steamer, for a balance due to the plaintiffs, the vessel was at-
tached under the provisions of the Code of Civil Procedure, in
reference to actions against steamers, vessels, and boats, and
was released upon a bond given by the defendants as therein
required, a finding in regard to the insufficiency of the under-
taking, which is outside of any issue presented in the case,
cannot be considered; and a finding of a conclusion of law that
124 Cal.]
(707)

ADMIRALTY (Continued).

plaintiffs, at the commencement of the action had no lien upon the steamer, is erroneous. (Id.)

ADVERSE POSSESSION. See Bona Fide Purchaser, 4.

AGENCY.

1. COLLECTION OF CLAIM-DELEGATION OF AUTHORITY-INVALID AsSIGNMENT BY ATTORNEY.-An authority given by a bank to its cashier to take all necessary steps that he may deem best for its benefit, in the matter of its claim against another bank, does not empower the cashier to delegate authority to an attorney to assign the claim, nor to substitute the attorney as general agent of the bank in his stead; and his putting the claim in the hands of an attorney, with authority to act as he deemed best, without further consulting the bank, merely makes the attorney a special agent of the bank, with general power to collect the claim in the name of the principal, and does not authorize him to assign the claim to another person for collection by suit against the stockholders of the other bank, and such assignment by the attorney is invalid.

McDonald, 682.)

2. ASSIGNMENT FOR

COLLECTION-DELEGATION

(Dingley v.

OF DISCRETIONARY

POWER.-An assignment of a claim for collection made by an attorney to a third person is an attempted delegation or discretionary power to control the action to collect the claim, as distinguished from power to do a purely mechanical act, and cannot be made, under section 2349 of the Civil Code, unless specially authorized by the principal, or impliedly authorized by imperative necessity, or a proved usage in particular cases, as incident to the power to collect. (Id.)

3. POWER BASED UPON TRUST AND CONFIDENCE-RULE AS TO DELEGATION-EXCEPTIONS.-General power given to an agent which is based upon special confidence in his personal ability and integrity, cannot, as a general rule, be delegated by the agent so as to bind the principal, in the absence of authority, from the principal, express or implied, to make such delegation, and the only exceptions to this rule are those enumerated in section 2349 of the Civil Code.

(Id.)

4. RATIFICATION AFTER SUIT BROUGHT-RIGHTS OF DEFENDANTS NOT AFFECTED. The ratification by the bank of the act of its attorney in assigning the claim for collection, made after the commencement of a suit on the claim by the assignee, can only have effect as between the parties to the assignment, and cannot af fect the rights of the defendants sued to defend the action, upon the ground that the plaintiff had no interest in the claim sued upon when the action was begun. (Id.)

5. PRINCIPAL AND AGENT-OSTENSIBLE AGENCY-BELIEF OF AUTHORITY. He who seeks to charge a principal with the acts of an

AGENCY (Continued).

ostensible agent must himself believe that the agent had authorfty as such from the alleged principal. (Goslinger v. Grang. ers' Bank of California, 225.)

-

6. OSTENSIBLE AGENCY OF PURCHASER FOR MORTGAGEE-GOODS CHARGED TO PURCHASER FINDING. An action for goods sold and delivered cannot be maintained against a mortgagee of the purchaser, on the ground of ostensible agency of the purchaser for the mortgagee, from whom the money was borrowed by the purchaser to carry on the business in relation to which the goods were sold, where it appears that the plaintiff knowing the relations between the purchaser and the mortgagee, charged the goods to the purchaser, and not to the mortgagee. In such case, a finding against the ostensible agency is supported by strong evidence tending to show that plaintiffs did not believe that the goods were purchased for the mortgagee. (Id.)

7. INCIDENTAL BENEFIT TO MORTGAGEE.-The incidental benefit to the mortgagee arising from the delivery to the mortgagee of crops grown and harvested by the purchaser which were the subject of the mortgage, and from the furnishing of the goods to the purchasers, to enable them to grow, mature, and harvest the crops so delivered, though having some weight as evidence, in connection with other circumstances, to show the existence of a contract, express or implied, made by the mortgagee or through his agent to pay for the goods, is not sufficient, standing alone, to base a right of action against the mortgagee for goods sold and delivered. (Id.)

See Assignment; Assignment for Benefit of Creditors, 2;
Banks, 7; Insurance, 6, 9-12; Mortgage, 10; Pledge, 2, 3.

ALIMONY. See Divorce, 3-7, 10, 11, 16-24.

AMENDMENT. See Judgment, 8-12.

APPEAL.

1. DISMISSAL-TIME TO FILE TRANSCRIPT SETTLEMENT OF STATEMENT-PRESUMPTION OF JURISDICTION.-An appellant is entitled to forty days after the settlement of a statement on motion for a new trial in which to file his transcript upon appeal; and upon a motion to dismiss the appeal, it must be presumed that the act of the judge in settling the statement was within his jurisdiction. (Estate of Scott, 671.)

2. REVIEW OF ERROR.-Any error in settling the statement must be considered at the hearing of the appeal, and cannot be reviewed upon a motion to dismiss the appeal. (Id.)

3. APPEAL FROM NEW TRIAL ORDER-DEFECTS IN PROCEEDINGS-NOTICE OF MOTION.-An appeal from an order denying a new trial will not be dismissed for any defect in the proceedings in the superior court leading up to the motion, or on the ground that the court improperly made the order. The failure to serve the