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It is now insisted that the evidence thus adduced not only warranted, but should have compelled, the granting of the motion. In this behalf the argument of counsel for the defendant and appellant is identical with the argument made against the sufficiency of the evidence to warrant and support the judgment in the case above referred to.

Our conclusion in that case was that the evidence amply supports the judgment, and that being so, the court below was justified upon the same evidence in denying the motion to compel the plaintiff to satisfy the judgment.

The order appealed from is affirmed.

INDEX.

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ABANDONMENT. See Contract, 17; Dedication, 5.

ACCIDENT. See Workmen's Compensation Act, 19, 20.

ACCOMPLICES. See Criminal Law, 47.

ACCOUNT.

1. IMPROPER ITEM-BILL OF PARTICULARS-ADMISSION IN EVIDENCE
WITHOUT OBJECTION.-In an action to recover a balance due on a
mutual, open, and current account, for moneys advanced and loaned,
the defendant cannot complain that he was surprised or misled by
proof that one item of the account was for commissions in consum-
mating an exchange of real property, where a bill of particulars
showing such item was furnished, and the bill admitted in evidence
without objection. (Gallwey v. Castelhun, 589.)

2. ADJUSTMENT OF ITEMS ARISING OUT OF EXCHANGE.-Where parties
to an exchange of property agreed that the rents, taxes, and interest
should be adjusted pro rata as of the date when the transaction was
consummated by the exchange of deeds, there was no account stated
until the adjustment was made, since one of the essentials of such
an account is a previous indebtedness. (Id.)

ACCOUNT STATED. See Account, 2.

ACKNOWLEDGMENT. See Criminal Law, 2; Statute of Limita-
tions, 1.

ACTIONS.

ACTION AGAINST STATE-RECOVERY OF CORPORATION LICENSE TAXES—
CONSENT ESSENTIAL-An action cannot be maintained by the as-
signee of a large number of corporations against the Secretary of
State and state treasurer to recover sums of money paid by the
assignors to the Secretary of State under the provisions of the annual
corporation license tax law, without the consent of the state itself,
since the state is the real party against whom the relief is sought.
(McClellan v. State of California, 605.)

ADVERSE POSSESSION. See Dedication, 5.

AFFIDAVIT. See Estates of Deceased Persons, 5.

AGE. See Criminal Law, 35.

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