MORTGAGOR AND MORTGAGEE.

1. MORTGAGEE IN POSSESSION.--A mortgagee in possession is accountable for the actual receipts of the net rents and profits after deducting necessary expenses of managing the property. Hidden v. Jordan, 301.

2. SAME.-Taxes paid, and necessary repairs made by the mortgagee in possession, are included in necessary expenses. ld.

3. SAME.--New and permanent improvements in fences made by a mortgagee in possession, are not necessary expenses for which he can recover, unless the fences were necessary for the protection of the crops. But if the value of the rents and profits are enhanced by the fences made, the mortgagee cannot be charged with such enhanced value unless an allowance is also made for the value of such fence.

Id.

4. SAME.-A mortgagee in possession is not bound to work the land himself if he can rent it for its full value.

Id.

MOTIONS.

See NEW TRIAL, 2.

NEW TRIAL.

1. EFFECT OF MOTION FOR NEW TRIAL ON JUDGMENT.-The pendency of a motion for new trial does not stay proceedings upon the judgment. The party in whose favor the judgment is rendered is entitled immediately to the proper process for its enforcement unless proceedings are stayed by the Court. People v. Loucks, 69.

2. ABANDONMENT OF MOTION FOR NEW TRIAL.-If the statement on motion for a new trial sets forth the grounds of the motion, and the motion is made and submitted, a refusal to argue the motion by the moving party is not an abandonment of the same. Carder v. Baxter, 99.

3. PARTIES TO MOTION FOR NEW TRIAL.-One of several parties against whom a judgment is rendered, who does not join in a motion for a new trial, cannot complain of alleged error in denying a new trial. Calderwood v. Brooks, 151.

4. EVIDENCE OF SERVICE OF A NOTICE.-A statement on the back of a notice of motion for a new trial, signed by the attorney of the moving party, stating that the notice was served at a certain time, is not evidence of such service. Id.

5. NOTICE OF MOTION FOR NEW TRIAL.-Unless the record contains evidence of the service of the notice of motion for a new trial, or it clearly appears from the record that service of the notice was waived, the Court has no jurisdiction of the motion. Id.

6. WAIVER OF SERVICE OF NOTICE.—If the record does not show that the party resisting an application for new trial proposed any amendments to the statement, or participated in its settlement, it will not be presumed that he waived service of notice. Id.

7. JUDGMENT OF Appellate CourT WHEN NO ISSUE IS RAISED.-If the answer does not deny the allegations of the complaint, and plaintiff moves for judgment on the pleadings, and the motion is denied, and on the trial

defendant recovers judgment, on appeal the judgment will be reversed and a new trial awarded, with leave to defendant to amend. More v. Del Valle, 170.

8. WHEN THE VERDICT IS AGAINST EVIDENCE.-In a trial in an action of ejectment upon a question of boundary, the testimony of five unimpeached witnesses stood opposed to the description contained in a deed to which one of the parties was a stranger, the Court found the fact as recited in the deed. Held, that the finding was so far opposed to the evidence as to justify awarding a new trial. Franklin v. Dorland, 175.

9. NEW TRIAL AFTER REVERSAL OF JUDGMENT.-When a judgment is reversed and a new trial granted in general terms, the case goes back for trial upon all the issues of fact raised by the pleadings. Hidden v. Jordan, 301.

10. ORDER GRANTING A NEW TRIAL.-An order vacating a verdict or finding and granting a new trial, necessarily vacates the judgment in the case resting on such verdict or finding. Thompson v. Smith, 527.

11. WHEN NEW TRIAL SHOULD BE GRANTED.-If, on the trial, the Court finds from the evidence all the facts necessary to entitle the plaintiff to recover, and renders a judgment for plaintiff, and, upon a re-examination of the case on motion for a new trial, finds that a fact essential to plaintiff's recovery is not proved, it is the duty of the Court to grant a new trial. Hawkins v. Reichert, 535.

12. FINDING FACTS ON MOTION FOR NEW TRIAL.--The Court, if the evidence is conflicting, may, on a re-examination of the same on motion for a new trial, find the facts differently from what they were found on the trial, and on an appeal from an order granting or refusing a new trial, the latter finding will be conclusive of the facts of the case. Id.

13. ADMISSION OF ERRONEOUS EVIDENCE.-If erroneous evidence is admitted, and the record does not negative the presumption that injury was sustained thereby, the judgment will be reversed. Lally v. Wise, 540. See COSTS, 1; CRIMINAL LAW, 26, 27, 28, 35, 36, 48; PRACTICE, 1.

NOTICES.

See BOND, 3; NEW TRIAL, 4, 5.

OFFICE.

1. SALARY OF AN OFFICE IS INCIDENT TO THE TITLE.-One having the legal right to an office, but not in possession of the same, is entitled to the salary for the term for which he was elected; and the payment of the salary to one in possession of the office without title will not prevent the one having the title from recovering the salary. Dorsey v. Smyth, 24.

2. RECOVERY OF OFFICE OR ITS INCIDENTS.—One claiming by action an office or the incidents to the office, can only recover upon proof of title. Id. 3. SALARY OF AN OFFICE.-The salary annexed to a public office is incident to the title of the office, and not to its occupation and exercise. Stratton v. Oulton, 51.

4. RIGHT OF OFFICER TO HOLD OVER.-The State Librarian holds over his office, after the expiration of his term, and until the election and qualifi

cation of his successor, by title, notwithstanding the law creating the
office contains no provision authorizing him to do so. Id.

5. SAME.-The above rule applies to civil functionaries whose duties consist
in the safe keeping and current management of public property commit-
ted to their care and custody. Id.

6. RIGHT OF INCUMBENT TO HOLD AN OFFICE AFTER EXPIRATION OF HIS TERM.-
The incumbent of an office created by the Legislature, who has been
elected or appointed to the same, notwithstanding the expiration of
the term for which he was elected or appointed, continues to hold the
office until a successor has been duly elected or appointed. People v.
Stratton, 382.

7. VACANCY IN OFFICE.—When a mode of filling a vacancy in an office is pro-
vided by law, other than by the appointment of the Governor, the Gov-
ernor has no power to fill such vacancy by his appointment. Id.

See CONSTITUTIONAL LAW, 2; OFFICER, 1; STIPULATION, 2.

OFFICER.

OFFICER BOUND TO KNOW THE LAW AS TO WHO IS HIS SUCCESSOR.-When
the question as to who is the legal successor of an officer is in litigation
upon a point of law, the officer is bound to know who his successor is,
and if the legal successor qualifies and demands the office, and the in-
cumbent refuses to deliver it up upon the termination of the litigation,
he becomes a trespasser ab initio. Dorsey v. Smyth, 24.

See CONSTITUTIONAL LAW, 4; OFFICE, 4, 5.

OFFICIAL BOND.

See BOND, 1.

ORDERS.

See ANSWER, 1.

OUSTER.

See EJECTMENT, 7, 8, 9; LIMITATIONS, 2.

PARTIES TO ACTION.

PARTIES TO FORECLOSURE OF MORTGAGE.-A party who has no interest in
mortgaged property at the time an action is brought to foreclose the
mortgage, and who buys, pendente lite, and after a lis pendens has been
filed, is not a necessary party to the foreclosure. Horn v. Jones, 194.

See INJUNCTION BOND, 1, 2; JOINDER OF ACTIONS, 1.

PARTITION.

See APPEAL, 2, 3.

PARTNERS.

See TRUSTS, 1.

PATENTS.

See LANDS, 1

PHYSICIANS.

See COUNTY PHYSICIANS, 1.

PLEADINGS.

1. VARIANCE BETWEEN COMPLAINT AND PROOF.-The rule that the allegata
and probata must correspond is not abrogated by the Civil Practice Act.
The plaintiff must prove his contract as alleged in his complaint, or he
is not entitled to recover. Stout v. Coffin, 65.

ALLEGATA AND PROBATA TO CORRESPOND.-If the complaint charges that the
defendant received goods as a common carrier and warehouseman, to be
stored by him, and by the next boat to be by him shipped and carried
and conveyed to the place of destination, and to be by him there safely
delivered to the plaintiffs, proof that defendant received the goods in
his warehouse as bailee, and shipped them according to plaintiffs' direc-
tions, does not entitle plaintiffs to recover.

Id.

3 SAME.--In such case, plaintiffs cannot recover without proof that the de-
fendant contracted to convey the goods. Id.

4 PLEADING SPECIAL DAMAGES.-When damages are special and do not nec-
essarily accrue from the act complained of, the facts out of which they
arise must be specially averred in the complaint or they cannot be re-
covered. Stevenson v. Smith, 102.

COMPLAINT IN AN ACTION BROUGHT BY AN ADMINISTRATOR.-A complaint in
an action brought by an administrator, who has been appointed after the
resignation of a former administrator, is sufficient, if it avers the issue
of letters to the former administrator, that he qualified and entered upon
the discharge of the trust, that he resigned, and his resignation was ac-
cepted by the Probate Court, and that the plaintiff was afterwards ap-
pointed administrator, and qualified, and that letters were issued to him.
Lucas v. Todd, 182.

6. NEW MATTER IN AN ANSWER.-Under the statute the affirmative allegations
of an answer stand controverted by the plaintiff, and the burden is on
the defendant to prove the truth of such allegations. Bryan v. Maume,
238.

7. COMPLAINT IN ACTION TO FORECLOSE MORTGAGE.-In an action on a note,
and to enforce the lien of a mortgage given to secure its payment, where
other parties beside the mortgagor are made defendants on the ground
that they have or claim an interest in the mortgaged property, a general
allegation in the complaint that such parties have or claim to have some
interest in the property is all that is required. Poett v. Stearns, 226.
8. DEMURRER.-If the complaint shows that the plaintiff has a cause of ac-
tion, and that he is entitled to some relief, the question as to what kind
or how much relief shall be granted to him cannot be made on de-
murrer. Id.

9. WHERE A DEFENSE MUST BE SPECIALLY PLEADED.-In an action against a
Sheriff for a violation of his duty in the service of an attachment, if he

relies on matters occurring after its issuance and operating as a dissolution of the same, such matters must be specially pleaded. McComb v. Reed, 281.

10. PLEADINGS IN QUO WARRANTO.-The defendant in an action to try the right to an office may set forth in his answer more than one defense. People v. Stratton, 382.

11. LIABILITY OF A COUNTY FOR MEDICAL CARE OF SICK.-A complaint in an action against a county, to recover for medical care and treatment of sick persons, fails to state a cause of action if it does not aver that the sick persons treated were both indigent and residents of the county. Johnson v. Santa Clara County, 545.

12. AVERMENT OF FACT IN PLEADING.-It is not sufficient to state a material fact in a complaint by way of recital; it should be directly averred. Denver v. Burton, 549.

13. SAME.—A judgment creditor, made such by confession of judgment, who seeks to reach money of the judgment debtor in the hands of junior judgment creditors, upon the ground that he has a prior lien on the same, must aver in his complaint that at the time his judgment was rendered, the amount for which it was rendered was unpaid and due. Id.

14. INSUFFICIENT DENIALS.-Where the pleadings are verified and the complaint contains an allegation that the note in suit was assigned by the payee to the plaintiff for a valuable consideration by an instrument in writing, the fact of the assignment is not put in issue by a denial that the assignment was in writing and for a valuable consideration. Randolph v. Harris, 501.

15. ONE GOOD COUNT IN COMPLAINT SUSTAINS JUDGMENT.-If the complaint contains one good count, and the findings of fact are defective, but the Court below is not asked to find the omitted facts, the judgment will not be disturbed. Lucas v. City of San Francisco, 591.

Per SANDERSON, C. J., CURREY, J., concurring:

16. CONSTRUCTION OF A PLEADING.-The common law rule that a pleading must be taken most strongly against the pleader, where the language used is ambiguous, has no application where the pleader confesses that his pleading is ambiguous, and asks to amend it. Nevada County and Sacramento County Canal Co. v. Kidd, 673.

See ANSWER, 1; COMPLAINT, 1, 2, 3, 4, 5, 6, 7, 8; DAMAGES, 1; EJECTMENT, 16; FRAUDS, STATUTE OF, 2; FORCIBLE ENTRY AND DETAINER, 2, 3, 4, 5, 6; INSURANCE POLICY, 1; JUDGMENT, 7, 11, 12; PROMISSORY NOTE, 1; SPECIFIC CONTRACT ACT, 1; TENDER, 1, 2; TRUSTS, 2.

POSSESSION.

1. POSSESSION OF LAND.-One who receives a deed of land from another who is residing on a portion of it, and claiming to the boundaries described in the deed, and who then enters on the possession of his grantor, is, in contemplation of law, in possession of the whole tract described in the deed. Hoag v. Pierce, 187.