INDEX. ACCOUNTING. 1. ACTION FOR ACCOUNTING-BUSINESS TRANSACTIONS-PARTNERSHIP-IMMATERIAL VARIANCE.-In an action for an accounting of business transactions where each party asks for an accounting against the others of the business transactions set forth in the complaint, a judgment upon the accounting will not be reversed because it seems to contemplate that the relation between the parties was that of partnership, while the complaint states some facts inconsistent with the theory of partnership, if the evidence and the history of the trial does not appear in the record.-Houghton v. Trumbo, 239. 2. FINDINGS-STIPULATION-WAIVER.-Where findings are made upon an interlocutory decree for an accounting, and it is stipulated by the parties that findings other than those filed upon the rendition of the interlocutory decree are waived, it cannot be objected upon appeal that the findings are not full enough.-Id. See ESTATES OF DECEASED PERSONS, 4. ACCOUNT STATED. 1. AN ACCOUNT STATED is a document-a writing-which exhibits the state of accounts between parties, and the balance owing from one to the other.-Coffee v. Williams, 550. 2. NEW CONTRACT-CAUSE OF ACTION UPON BALANCE AGREED.-When an account stated is assented to, either expressly or impliedly, it becomes a new contract, and an action upon it is not founded upon the original items, but upon the balance agreed to by the parties.Id. 8. MEMORANDUM-FINAL SETTLEMENT.-An account stated in order to constitute a contract, should appear to be something more than a mere memorandum, and should show upon its face with clearness and certainty that it was intended to be a final settlement up to date.-Id. 4. DEFECTIVE OF ACCOUNT MEMORANDUM-EVIDENCE-DISPROOF STATED PLEADING.-Where the account sued upon is a defective memorandum of account, without dates, or any balance struck or stated, and the answer denies that any account was stated, the court should allow great latitude in introducing evidence to disprove it; and the rule that where there is an account stated the parties cannot go back and attack the original items of the account, unless upon proper averment of fraud or mistake, does not apply where the main issue is whether there was such an account.-Id. 5 ADMISSIBILITY OF EVIDENCE-NATURE OF PARTNERSHIP BUSINESSCHARACTER OF ITEMS-ISSUE AS TO ACCOUNT STATED.—In an ac ACCOUNT STATED (Continued). tion between partners involving an issue of fact as to whether an account was stated between them, evidence touching the nature of the partnership business of plaintiff and defendant, and the character of certain items put in and omitted in the alleged account, is admissible upon the question whether or not there was an account stated between the parties.-Id. 6. COPY OF STATED ACCOUNT.-Where a stated account is sued upon, the defendant is entitled to a copy of the alleged stated account, though the plaintiff need not furnish the original items of the open account upon which the alleged account was based.-Id. ACKNOWLEDGMENT. See ESTOPPEL. ADULTERY. See CRIMINAL Law, 18. ADVERSE POSSESSION. See EJECTMENT, 2. AGENCY. ACTION BY AGENT IN HIS OWN NAME-DEFENSES.-Where an agent sues in his own name, the defendant may avail himself of all defenses which would be good as against either the principal or agent. -Bliss v. Sneath, 43. See BROKERS; CORPORATIONS, 32; DEED, 3-5; EVIDENCE, 11, 12. ALLEYWAY. See EASEMENT. APPEAL. 1. ESTATES OF DECEASED PERSONS-ORDER FOR PAYMENT OF FAMILY ALLOWANCE-EFFECT OF APPEAL-STAY OF PROCEEDINGS.-An appeal from an order directing an administrator to pay to the widow of the deceased a certain sum as accrued and unpaid family allowance operates as a supersedeas, and stays all further proceedings in the court in the particular matter involved in the order appealed from.-Ruggles v. Superior Court, 125. 2. JURISDICTION OF SUPERIOR COURT-CONTEMPT-PROCEEDINGS-PROHIBITION. Upon an appeal which stays proceedings the subject matter is removed from the jurisdiction of the lower court until the appeal has been determined; and the superior court has no jurisdiction pending an appeal from an order directing the administrator to pay a certain sum of money upon a family allowance to punish the administrator for contempt in not obeying the order, and the supreme court will issue a writ of prohibition to prevent such proceedings, as being in excess of the jurisdiction of the superior court.-Id. 3. EFFECTIVENESS OF APPEAL-JURISDICTION TO DETERMINE WHETHER ORDER IS APPEALABLE.-Where an appeal from an order has been taken to the superior court, and that court has refused to dismiss it without prejudice, its determination is as effectual for the purposes of the case as if determined for all purposes; and the question whether the order appealed from shall be ultimately held appealable or not, is one that properly arises upon determination of the appeal pending in the supreme court, and cannot be con APPEAL (Continued). sidered upon an application to prohibit the superior court from proceeding to enforce its order, upon the ground that the order is not appealable.—Id. 4. SERVICE OF NOTICE-ADVERSE PARTIES-DISMISSAL.-A notice of appeal must be served on every adverse party interested in the judgment, and who would be affected by its reversal, and if not so served, the appeal must be dismissed.-Lancaster v. Maxwell, 67. 5. FORECLOSURE OF MECHANICS' LIENS-PARTIES-APPEAL BY OWNER-CONTRACTOR AN ADVERSE PARTY.-In an action to foreclose mechanics' liens, where judgment was rendered for the sale of the property, and that a judgment for the deficiency be docketed against the contractor, if the owner of the building appeals from the judgment, the contractor is an adverse party, who would be affected by its reversal, and must be served with the notice of appeal. Id. 6. ERRORS CURED BY VERDICT-WAIVER.-Where there is no objection to the pleadings, or to the sufficiency of the evidence to support the findings, which are full and explicit upon all the material issues, all errors and omissions are cured by verdict, and waived, and cannot be urged upon appeal for the first time.-Treanor v. Houghton, 53. 7. DEFINITION-PRESUMPTION OMISSION SUPPLIED AT TRIAL.-The expression "cured by verdict," signifies that the court will, after a verdict, presume or intend that the particular thing which appears to be defectively or imperfectly stated or omitted in the pleadings was duly proven at the trial; and where in an action tried by the court it appears affirmatively by the record that what was omitted in the complaint was supplied without objection at the trial and found by the court, objection to the sufficiency of the complaint is waived.-Id. 8. APPEAL FROM JUDGMENT JUDGMENT-ROLL-REPORT OF REFEREE -It is only the finding of a referee upon the whole issue that must stand as the finding of the court, and form part of the judgmentroll; and a report of testimony made under a first order of reference which does not contain findings of fact does not constitute a part of the judgment-roll, and cannot be considered upon an appeal taken upon the judgment-roll alone.-Faulkner v. Hendy, 15. 9. INSTRUCTIONS NOT EXCEPTED TO-LAW OF CASE-REVIEW OF EVIDENCE. Where no exceptions are taken to the charge of the court to the jury, the charge becomes the law of the case upon appeal in the consideration of the sufficiency of the evidence to support the verdict.-Lynn v. Southern Pacific Company, 7. 10. PRESUMPTION UPON APPEAL-APPLICABILITY OF INSTRUCTIONS TO EVIDENCE-VERDICT NOT AGAINST LAW-INSUFFICIENCY OF EVIDENCE. All presumptions upon appeal are in favor of the verdict, and if the court's charge to the jury includes instructions of law sufficient to support it, when applied to the evidence found in the record, the verdict must be upheld as not against law, even though there be no sufficient evidence to support the verdict upon some other theory of the case covered by other instructions of the court.-Id. 11. REVIEW OF INSTRUCTIONS.-Where the court, upon its own motion, instructed the jury upon the issues made in the case it is not error to refuse instructions asked which were covered by those given; and, |