on

presentation of said affidavit, four justices of the court, said November 4th, made the following order: "Upon application of counsel for appellant in the aboveentitled action, and good cause appearing, it is hereby ordered that said appellant may have twenty days further time from this date within which to serve and file its transcript on appeal in said action." On November 23, 1883, appellant, instead of filing a printed transcript, and serving it on respondent, as was clearly contemplated by the order, merely delivered to the clerk of this court one manuscript copy of the transcript, and on November 25th paid to the clerk the amount of money necessary to pay for printing it. (The 24th of November, the last of the twenty days, fell on Sunday.) And appellant now contends that because it had the manuscript transcript on file when the motion to dismiss was made, it is protected against the motion by rules 10 and 3 of this court.

Rule 10 is no doubt somewhat incomplete; but we think that the general understanding has been, that read in connection with other rules on the subject, the proper construction is, that when an appellant chooses to have his transcript printed by the clerk he must furnish it to the clerk soon enough for the latter to have it printed and served within the forty days. But however that may be (and we do not decide the point here), the appellant in the case at bar did not bring himself within rule 10 or any other rule. It did not file or serve either a printed or a manuscript transcript within forty days. It depends entirely upon the grace given it in the order extending the time. But there was no compliance with that order. It gave twenty days in which "to serve and file" the transcript,-which was not done. Moreover, it was made upon an application and affidavit which showed that the manuscript was ready, but that additional time was necessary in order to have it printed; and it was as much an order giving additional time to

serve and file a printed transcript as if the word "printed" had been written in the order itself. The transcript was not "on file" within the meaning of rule 3.

The appeal is dismissed, and the written transcript stricken from the files of the court.

PATERSON, J., Fox, J., SHARPSTEIN, J., THORNnton, J., and BEATTY, C., J., concurred.

Rehearing denied.

INDEX.

INDEX.

ABANDONMENT. See MINES AND MINING, 13; STREETS AND HIGHWAYS, 4.

ABATEMENT.

ANOTHER ACTION PENDING-DISMISSAL OF FORMER ACTION.-A judgment of dismissal of a former action between the same parties, and for the same cause, entered after the trial of the second action has commenced, but before its conclusion, is a good answer to a plea in abatement of the former action.-Moore v. Hopkins, 270.

ACCORD AND SATISFACTION.

UNEXECUTED COMPROMISE-DISCHARGE OF OBLIGATION-PLEADING.— An answer alleging that the plaintiff agreed to take a less sum than is sued for in full payment of the claim, and to extend the time of payment by taking a note payable in six months for the reduced sum, but showing that the agreement was not performed by payment of the money, or execution of the note, discloses no defense. Unless the agreement to accept the smaller sum in discharge of the large was carried out, the obligation to pay the larger sum was not extinguished or discharged, and there was no satisfaction, though there may have been a valid accord.-Holton v. Noble, 7.

ACCOUNTING. See CORPORATION, 1; ESTATES OF DECEASED PERSONS, 1, 5-7, 12-14; PLACE OF TRIAL, 1.

ACKNOWLEDGMENT. See HUSBAND And Wife, 4-6; MARRIAGE, 1.

ADOPTION.

ADOPTION OF CHILDREN-POWER OF LEGISLATURE JUDICIAL POWERCONSTITUTIONAL LAW.-The legislature has full power to regulate the adoption of children and may invest any person, or officer, or court with the power of receiving, witnessing, and declaring the adoption, and prescribe the form of adoption. The matter of adoption belongs to the legislative, and not to the judicial, department of the government; and though the act of passing upon the adoption may be judicial in the sense of being an act of judgment, that does not make it any part of the judicial power spoken of in the constitution, and by it vested in courts. The Civil Code conferring the power of adoption upon the judge as distinguished from the court is constitutional.-Estate of Stevens, 322.