tempt has been proven.' We are of the opinion that upon the facts in evidence, tested by the rules referred to, the prisoner is guilty as charged in the information."

We advise that the judgment and order be affirmed.

We concur: FOOTE, C.; HAYNE, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(75 Cal. 595)

MOYLE et al. v. LANDERS et al.

(No. 11,906.)

(Supreme Court of California. April 21, 1888.)

APPEAL-REQUISITES-NOTICE-SERVICE ON ATTORNEY-DEATH OF CLIENT. Where the record on appeal shows there were several defendants, all represented by the same attorney of record, and the attorney of record accepted service, for all the defendants, of a notice of appeal, and it appears that one of the defendants died between the date of the judgment and the service of the notice,-a fact unknown to plaintiff or his attorney,-a motion to dismiss the appeal as to the legal representatives of the deceased, on the ground that the service of the notice as to the deceased was void, made by the same attorney who accepted the service, will be denied without prejudice.

In bank. Appeal from superior court, city and county of San Francisco; T. H. RIORDAN, Judge.

Motion to dismiss an appeal.

L. E. Bulkely, for appellants. H. Sieberst, for respondents.

MCFARLAND, J. This case is now before us upon a motion to dismiss the appeal as to the respondent Michael Landers, and his legal representatives. Upon an examination of the papers, we find that there were several defendants in the court below, and that they all appeared by the same attorney of record. Judgment went for defendants; and in due time plaintiffs filed their notice of appeal, and served it on the said attorney of record, who accepted service for all the defendants. As a matter of fact, however, the defendant Michael Landers had died between the entry of the judgment and the service of the notice of appeal; this fact being unknown to plaintiffs or their attorney. And this motion is based on the ground that the service of the notice of appeal was void, because, at the time of the service, the said Landers was dead; and it is made by the same attorney who accepted the service. In such a case this court will not entertain a motion to dismiss the appeal, made by the attorney who accepted service for the dd man. The motion to dismiss

is denied without prejudice.

We concur: SEARLS, C. J.; PATERSON, J.; SHARPSTEIN, J.

(75 Cal. 580)

In re WILSON. (No. 12,496.)

(Supreme Court of California. April 20, 1888.)

1. POOR DEBTORS-EXAMINATION AND DISCHARGE-CONFINEMENT FOR CONTEMPT-FAIL URE TO PAY ALIMONY.

Code Civil Proc. Cal. § 1143 et seq., entitling persons confined in jail under executions issued in civil actions to a hearing as to their property and effects, with reference to a discharge, before the judge of a superior court, extends to a person confined in jail for non-compliance with an order of court for the payment of alimony. 2. SAME-HABEAS CORPUS-ISSUE OF MANDATE.

Where, on an application for mandate on the ground that petitioner had applied to respondent, a judge of the superior court, for an examination under Code Civil Proc. Cal. § 1143, entitling those in jail under execution to an examination as to their property, etc., with reference to a discharge, the answer of respondent denies petitioner's right to such examination under the Code, but avers that he was accorded the examination, and that his discharge was refused on the ground that, in

the judgment of respondent, he was not entitled to it, the case being submitted on the answer as true, though the prisoner is entitled to such examination, the appellate court will not assume that the decision was not on the merits of the evidence in the examination, and the writ will be refused.

In bank. Application for writ of mandate to superior court, Alameda county.

Craig & Meredith, for petitioner. Fred. E. Whitney, for respondent.

MCFARLAND, J. In a certain action for divorce brought against petitioner, William I. Wilson, by his wife, in the superior court of Alameda county, the said court on February 1, 1887, made an order requiring petitioner to pay plaintiff therein $200 per month alimony, and $800 counsel fees. On April 25, 1887, the said court committed petitioner to the custody of the sheriff until said money should be paid, and since that date petitioner has been in jail under said orders. The petition states that on December 8, 1887, the petitioner, after due notice, applied to the respondent, Hon. NOBLE HAMILTON, judge of the superior court of said county, to be discharged, under sections 1143 et seq., Code Civil Proc.; and that the respondent refused, and still refuses, to allow petitioner "to be examined, or to take the oath prescribed by, or in any manner to receive any of the benefits or privileges provided for by, said sections of said Code." The answer of respondent first sets forth that petitioner “was not confined in jail on an execution issued on a judgment rendered in a civil action;" that he was so confined by virtue of "a commitment for contempt of court," and that he "was not, and still is not, entitled to be examined, or to be discharged from custody, under the provisions of said sections" of the Code. If these were the only statements contained in the answer, it would be clear that respondent refused to allow petitioner to be examined, and to consider his application to be discharged, on the ground that his case did not come within the provisions of said sections of the Code. But the respondent in his answer denies that he refused to hear petitioner's application for discharge, and, "on the contrary, alleges that defendant, as superior judge of Alameda county, did, on the 8th day of December, 1887, hear the said application of said William I. Wilson, and all evidence, matters, and things produced in behalf of said application, and then and there listened patiently to the argument of counsel for said William I. Wilson," etc.; and "that afterwards, on the 9th day of January, 1888, defendant rendered his decision, and denied the application of said William I. Wilson for discharge," on the ground that "he was not, in the judgment of defendant, entitled thereto." It is probable that the respondent refused to discharge the petitioner, and to consider the merits of the case, upon the ground that, having been committed for contempt, he could not under any circumstances be discharged under the sections of the Code referred to. But as the case was submitted on the answer taken as true, and as it avers that respondent did hear the application, "and all evidence, matters, and things produced in behalf of said application," and denied the discharge because the petitioner "was not in the judgment of respondent entitled thereto, we cannot take the fact to be that respondent refused to act in the premises, or to hear and determine the application. The writ of mandate must, therefore, be dismissed.

As, however, the petitioner may make another application for discharge before the respondent, or some other superior judge, and may renew it every 10 days, it may be well here to correct an error into which the respondent evidently fell. Section 1143, Code Civil Proc., is as follows: Any person confined in jail on an execution issued on a judgment rendered in a civil action must be discharged therefrom upon the conditions in this chapter specified." The succeeding sections of the chapter provide that such person, upon notice, may apply to a judge of a superior court of the county for his discharge; that the judge must examine him under oath as to his property and effects, and

his ability to pay, etc., and hear such other legal and pertinent evidence as may be produced by him or the creditor; and that if, upon the examination, the judge is satisfied that the prisoner should be discharged, he must, after administering a certain prescribed oath, order his discharge. But in the case at bar the respondent seems to have considered that a person in jail for contempt for non-compliance with a general order for the payment of money to a party to an action is not a person included in said section 1143, and may be confined for a life-time, although his inability to pay be clearly established. There is a well-settled distinction between a civil and a criminal contempt. The former consists, generally, in failing to do something ordered to be done by a court, in a civil action, for the benefit of the opposing party therein; the latter consists in acts of disrespect of the court, such as disorderly or violent conduct in its presence or immediate vicinity, or in the doing of a forbidden act, resistance to process, etc. Rap. Contempt, § 21 et seq.; Phillips v. Welch, 11 Nev. 187; People v. Spalding, 10 Paige, 284. There might be instances, of course, where the character of the contempt would be of diflicult determination, but there is no doubt that in the case before us the failure to comply with an order for the payment of money generally was a civil contempt. And the authorities seem to be clear that in a case of civil contempt, that is, when a defendant in a civil action is ordered by the court to pay money generally to the plaintiff, and is committed until he shall have paid it, the prisoner is in custody as under an execution. It was so held in England under the "Lords Act. Rex v. Stokes, Cowp. 136. In Van Wezel v. Van Wezel, 3 Paige, 43, which, like the case at bar, was contempt for not paying alimony, McCOUN, vice-chancellor, says: "It is, to all intents and purposes, an execution. The order is a judgment rendered in favor of one party against the other for the payment of a sum certain, or which may be reduced to a certainty if it be for costs, by taxation. The object of the precept is to execute the order, to give it effect, and to enforce its performance; and, when the party is imprisoned upon it, he is, within the letter and meaning of the law, imprisoned by virtue of an execution." See, also, People v. Spalding, 10 Paige, 284, 7 Hill, 301; Case of Watson, 3 Lans. 413; People v. Cowles, *43 N. Y. 49; Jackson v. Billings, 1 Caines, 252. We think, therefore, that if the petitioner shall make another application for discharge, under the sections of the Code above mentioned, it will be the duty of the superior judge to whom it shall be made to consider the case as coming within the provisions of those sections; to hear evidence touching his property and effects; to discharge the petitioner if he be satisfied, from the evidence, of his inability to pay; and to remand him, if he be not so satisfied. To hold that the petitioner, though utterly penniless, must suffer a life imprisonment for debt because of the particular form in which the imprisonment was imposed, would be a gross violation of the plain intent of the Code. Writ dismissed.

We concur: SEARLS, C. J.; SHARPSTEIN, J.; PATERSON, J.; THORNTON, J. I concur in the judgment: MCKINSTRY, J.

(75 Cal. 542)

TOY v. SAN FRANCISCO & S. R. R. Co.
(Supreme Court of California. April 20, 1888.)

(No. 9,957.)

APPEAL PRACTICE-PARTIES-CODE CIVIL PROC. CAL. § 940.

Defendant moved to have certain persons substituted as defendants in his stead, and made them parties to such motion. The motion was denied, and judgment entered against defendant. Held that, on appeal from such judgment by defendant, such persons are adverse parties within the meaning of Code Civil Proc. Cal. § 940, providing that notice of appeal shall be served on the adverse party.

Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; JOHN HUNT, Judge.

Assumpsit by George D. Toy against San Francisco & San Rafael Railroad Company. Judgment for plaintiff, and defendant appeals.

Lloyd & Wood, for appellant. Olney, Chickering & Thomas, for appellee. H. A. Powell, for S. H. Harmon.

FOOTE, C. This action was brought to recover a certain sum of money alleged to be due the plaintiff. Before any answer was filed to the complaint, the defendant moved, upon affidavit, that an order of the trial court should be made substituting S. H. Harmon and the Gordon Hardware Company in place of the defendant, and discharge it "from liability to any party, upon its depositing in court the amount claimed in the contract mentioned in the complaint." Upon the hearing of this motion it was refused, and, the defendant failing to answer, judgment by default was given, and made in favor of the plaintiff as prayed for. From that judgment this appeal is taken. It is claimed that the court, upon the proof made, should have substituted S. H. Harmon and the Gordon Hardware Company in place of the defendant; and it is perfectly plain that, if the judgment is reversed, it must be because this substitution was not made; and it must result from such reversal that Harmon and the Gordon Hardware Company will become the defendants in the action, and the present defendant be "discharged from liability to any party." Although not named as parties to the judgment as it stands, Harmon and that company were served with notice of the motion, under the provisions of section 386, Code Civil Proc., and appeared in the court below, and became quasi parties to the action, so far as their rights were affected by the granting or refusal of that motion. The order of the court below absolved them from all connection with the cause from that time, and the effort now is to reverse the action of the trial court in that respect, and to make them parties defendant.

A motion is made to dismiss the appeal because Harmon and the Gordon Hardware Company, nor their attorneys, were not served with notice thereof. And the question to be determined upon that motion is whether or not they are "adverse parties" in the sense in which that term is to be taken under section 940, Code Civil Proc. Harmon and the Gordon Hardware Company, certainly became quasi parties to the action when they were served with notice of the motion to substitute them for the defendant in the court below. By the action of that court their rights were affected and determined. If the contention of the appellant is to prevail, it seems plain to us that quasi parties to the action, whose rights were passed upon in the trial court, will be affected to such an extent as that they will have put upon them as defendants a burden which the court below refused to impose. Therefore, their interests in relation to the subject-matter of the appeal is in conflict with the reversal of the judgment appealed from, and they were entitled to notice of the appeal. Williams v. Mining Ass'n, 66 Cal. 193, 5 Pac. Rep. 85, and cases cited; In re Medbury, 48 Cal. 83. At the appellant's instance they were made parties to the motion to substitute in the court below. By the appeal it is sought to allow the appellants to effect that in the supreme court which was denied them in the trial court, the result of which would be that quasi parties to the action would be concluded of their rights to be heard in the appellate court upon a matter in which they were heard and their rights determined in the lower court. The appeal should be dismissed.

PER CURIAM. For the reasons given in the foregoing opinion the appeal is dismissed.

(75 Cal. 566)

HENDY v. MARCH. (No. 9,714.)

(Supreme Court of California. April 20, 1888.)

1. ACCOUNT STATED-WHAT CONSTITUTES.

Where it appears that an account against defendant has been presented and examined by him, and no objections made thereto for several months, it becomes an account stated.1

2. SAME-MISTAKES-PLEADING.

A party seeking to take advantage of a mistake in an account stated must put such mistake in issue by his pleadings.

3. PARTNERSHIP-WHAT CONSTITUTES-AGREEMENT FOR USE OF SHIP.

Under Civil Code Cal. § 2395, declaring that a partnership is an association of persons for the purpose of carrying on business together, and dividing the profits, two persons having agreed that one should furnish money to keep a ship in repairs, collect the earnings, divide the surplus with the other, and, in case the earnings were not sufficient to pay the advances, such other was to pay a portion of the deficiency, are partners, and the statute of limitations will not commence to run against the party making the advances until the affairs of the firm are closed.2

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; F. W. LAWLER, Judge.

Action on an account stated, by Joshua Hendy against W. F. March. Judgment for plaintiff, and defendant appeals.

J. H. Skirm and John C. Hall, for appellant. W. H. Hart, for respondent.

HAYNE, C. Action on an account stated. The court found that the account was stated as alleged. The defendant contends that the finding is not sustained by the evidence.

There being a substantial conflict, it must be assumed at this stage of the case that the version of the plaintiff's witnesses is the true one. According to them, the account was made up and presented to the defendant, who went over it with the expert, and "made no objections whatever to the account,' from the time it was presented to him in August, 1881, "until after this suit was brought," which was on November 25 of the same year. This was a sufficient acquiescence from which to imply an assent. It seems to be well settled that the assent may be implied. In Terry v. Sickles, 13 Cal. 427, the court, per COPE, J., said: "If the account be sent to the debtor, and he does not object to it within a reasonable time, his acquiescence will be taken as an admission that the account is truly stated." In relation to this subject, Judge Story says: "It is sufficient if it has been examined and accepted by both parties, and this acceptance need not be express, but may be implied from circumstances. Between merchants at home an account which has been presented, and no objection made thereto, after the lapse of several posts is treated, under ordinary circumstances, as being by acquiescence a stated account. Between merchants in different countries a rule founded in similar considerations prevails. If an account has been transmitted from the one to the other, and no objection is made after several opportunities of writing have occurred, it is treated as an acquiescence in the correctness of the account transmitted, and therefore it is deemed a stated account." 1 Eq. Jur. § 526. The same rule is laid down by Greenleaf. 2 Greenl. Ev. § 126. The evidence above referred to brings the case fairly within this rule. And the account was undoubtedly final in character, and showed an indebtedness against defendant of a specific amount, and was sufficient in all respects to serve as the basis of an account stated.

'See, also, as to what constitutes an account stated, Heidenheimer v. Ellis, (Tex.) 3 S. W. Rep. 666; Walker v. Steele, (Colo.) 12 Pac. Rep. 423; Whitehead v. Darling, (Ky.) 5 S. W. Rep. 356; Rehill v. MeTague, (Pa.) 7 Atl. Rep. 224; Rhyne v. Love, (N. C.) 4 S. E. Rep. 536.

See Clift v. Barrow, (N. Y.) 15 N. E. Rep. 327, and note.