INDEX.

ACCEPTANCE. See Contracts, 1, 18.

ACCOMPLICE. See Criminal Law, 16.

ACCOUNTING.

1. FRAUD-JURISDICTION-EQUITY.-An action for an accounting lies
within the jurisdiction of equity, among other instances, in cases
of fraud as well as where there is a fiduciary relation between
the parties and the facts are peculiarly within the knowledge of
one; and having once taken jurisdiction, the court will grant fur-
ther relief demanded by the situation and necessary to complete
justice. (Smith v. Blodget, 235.)

2. CONSPIRACY-LIABILITY OF SEVERAL PARTIES.-If through fraud
and conspiracy other defendants assisted one of the defendants in
violating his obligation to his principal by effecting a sale of land
under an option given to plaintiffs, without plaintiffs' knowledge,
and in retaining the proceeds, they, as well as the other defend-
ant, are equally liable for all the consequences of the conspiracy,
regardless of the extent of their participation of the share of the
profits obtained by them. (Id.)

3. VIOLATION OF FIDUCIARY OBLIGATION-LIABILITY OF PARTIES As-
SISTING JUDGMENT.-Where, after the violation of a fiduciary
obligation, an accounting is had and an amount found to be due
from the agent or trustee, judgment for the same amount may
also be rendered against those proven to have fraudulently aided
in the attempt of the fiduciary to obtain secret profits, although
they themselves are not fiduciaries and received no share of the
profits. (Id.)

4. CONFLICTING EVIDENCE-FINDINGS.-Where, although the trial court
might have drawn the inference from the evidence before it
that one of the defendants in such case did not act in conjunc-
tion with the other defendants in the matter, the conclusion
reached was that said defendant was implicated in the conspiracy
and the evidence was conflicting, and it was possible to draw con-
flicting inferences from that part of the evidence which was not
itself conflicting, the conclusion cannot be disturbed on appeal.
(Id.)

See Contracts, 10, 12.

ACCOUNT STATED.

1. WHAT CONSTITUTES.-An account stated is an agreement between both parties that all the items of the account are true, which agreement need not be express but may be implied from circumstances. (Parsons v. Segno, 260.)

2. SUFFICIENCY OF EVIDENCE.-Where the creditor rendered his account to the debtor on a certain date, after which the latter paid several amounts for which the former gave her credit and ten months afterward mailed her another account, the first item of which was the balance shown by the previous statement, to which latter statement of account the debtor made no objection and after the amount claimed to be due was demanded stated she would settle the account and offered to give her note for it, there was an account stated. (Id.)

3. SURCHARGING AND FALSIFYING ACCOUNT · - FRAUD OR MISTAKE PLEADING. In order to surcharge and falsify an account stated on the ground of fraud or mistake, the facts constituting the fraud or mistake must be pleaded, a reopening of the account asked for, and the proof must be confined to the allegations of fraud or mistake. (Id.)

4. VOID CONTRACT-REPUTATION OF CLAIM OF FRAUD.-In an action upon an account stated, where the only assignment of fraud was the alleged inclusion in the account of a demand based upon a void contract for a contingent fee in a divorce suit, but there was evidence from which the court could have found the void contract was repudiated by the parties and a new one entered into in lieu thereof, the claim of fraud is not sustained. (Id.)

ACTIONS.

PLEADING-ACTION FOR RENTS-ISSUE OF TITLE-CHARACTER OF AcTION.-An action for rents and profits of real property where the right to the title is involved is not a transitory action. (State v. Royal Consolidated Min. Co., 343.)

See Tax Sales, 4.

ADMISSIONS. See Pleading, 3.

ADVERSE POSSESSION. See Vendor and Vendee, 2.

AFFIDAVITS. See Insane Persons, 3; Street Law, 4.

AGENCY. See Contracts, 8; Corporations, 12.

ALIENATION OF AFFECTIONS.

1. MARRIAGE EVIDENCE.-In an action by a wife for the alienation of the affections of her husband, a prima facie case of the ex

ALIENATION OF AFFECTIONS (Continued).

istence of the marriage relationship is sufficiently made out by the testimony of the wife as to the marriage and that they had subsequent thereto deported themselves as husband and wife. (Budd v. Morgan, 741.)

2. CONSPIRACY-EVIDENCE-DECLARATIONS.-Where in an action by a wife for the alienation of the affections of her husband the defendant claimed that she was the victim of a conspiracy which had been formed for the purpose of entrapping her into a compromising position with plaintiff's husband, it was reversible error to exclude evidence of declarations made before the consummation of the conspiracy by a deputy constable, employed by plaintiff's attorney to serve process on the defendant, relative to other things he did and was to do, where the evidence established prima facie that he in reality was a member of the alleged conspiracy, rather than an employee thereof, although he was not named as a conspirator in the answer. (Id.)

ALIENS. See Constitutional Law, 1, 3; Taxation, 1; United States Government, 3, 5.

APPEAL.

1. JUDGMENT FINDINGS-PRESUMPTION.-A judgment or decree cannot be reversed for want of a finding, where the answer does not set forth any defense, as error is never presumed, and all intendments are in favor of the judgment. (Estate of Aufret, 34.) 2. PROCEEDING FOR COLLECTION OF INHERITANCE TAX-INHERITANCE TAX ACT.-There is a right to appeal from the decision in a proceeding under the Inheritance Tax Act (Stats. 1913, p. 1078) by the state controller for the determination of liability to taxation under the act. (Chambers v. Hathaway, 104.)

3. QUIETING TITLE-APPEAL BY PART OF DEFENDANTS-REVERSAL OF JUDGMENT - NONAPPEALING DEFENDANTS.-In an action to quiet title in which plaintiff's title is based on a school land certificate and the defendants, who are tenants in common, claim under another certificate, the controversy being as to the validity of the respective certificates, where the lower court held plaintiff's certificate valid giving him judgment, the appellate court has no power in reversing the judgment upon an appeal by part of the defendants only to order a retrial of the issues as to all of the defendants. (Lake v. Superior Court, 116.)

4. RIGHTS OF NONAPPEALING DEFENDANTS-INTERESTS NOT ADVERSE.While the rights of nonappealing defendants in such a case would be affected by a reversal of the entire judgment, their interests were in no sense adverse to the appellants, and their rights would not be affected by a reversal of the judgment as to the appealing

187 Cal.-51

APPEAL (Continued).

defendants, as the rights of the several defendants were separate and distinct.

(Id.)

5. RETRIAL UNDIVIDED INTERESTS.-A retrial of such case

can be

had with relation to the undivided interest claimed by the appealing defendants without in anywise affecting the rights of the plaintiff and nonappealing defendants as determined by the previous judgment. (Id.)

6. REVERSAL-APPLICATION OF ORDER.-The broad expression "the judgment is reversed" will be confined to the issues arising upon the appeal and the parties appealing. (Id.)

7. APPEAL FROM PORTION OF JUDGMENT.-An appeal from a judgment by some of the defendants, although the notice of appeal is general in its terms, is of necessity an appeal from only that portion of the judgment which injuriously affects the appealing defendants, and is thus, in effect, an appeal from a portion of the judgment that is to say, the portion of the judgment adverse to their interests, unless reversal or modification of the whole judgment is essential to protect the interests of the appealing defendants. (Id.)

8. REVIEW OF PART OF JUDGMENT-JURISDICTION.-Upon an appeal from a portion of a judgment only the appellate court has no jurisdiction to review any part of the judgment, except the part to which the appeal is directed, and an order of reversal, although general in terms, will be construed to apply only to the part brought up for review. (Id.)

9. CONFLICTING EVIDENCE-FINDINGS.-Where the evidence is sufficient as a matter of law, and presents a substantial conflict, the findings will not be disturbed on appeal. (McCully v. McArthur, 194.) 10. MOTION TO DISMISS CROSS-COMPLAINT AND SEPARATE DEFENSE—

FAILURE TO OBJECT-WAIVER.-In such case, where no objection was made by plaintiff to the granting of motions by defendant at the close of the trial to dismiss the cross-complaint and separate defense without prejudice, the question cannot be raised for the first time on appeal. (Id.)

11. JUDGMENTS-CONCLUSION OF LAW.-An erroneous conclusion of law does not constitute a cause of reversal if the judgment is right. (McNutt v. City of Los Angeles, 245.)

12. ASSIGNMENTS OF ERROR-INSUFFICIENCY OF.-Assignments of error to findings "on the ground that the court would not allow any evidence on those issues," with a mere reference to the transcript on appeal for certain rulings of the court on the admission and rejection of testimony, but without attempt to print in the briefs those portions of the record, or to show wherein the errors, if any, lie, do not conform to the requirements of section 953c of the Code of Civil Procedure. (Parsons v. Segno, 260.)