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Les diagrammes suivants iilustrant la mAthode. rata ) Glure. 3 1 2 3 1 2 3 4 5 6 ' ^ ■. "' Il^-'WWIIP" •m^mmmm^y^ I REVISED EDITION Pacific Coast COLLECTION LAWS A SUMMARY OF THE LAWS OF CALIFORNIA, NEVADA, OREGON, WASHINGTON TERRITORY, IDAHO, MONTANA, UTAH, WYOMING, ARL20NA AND BRITISH COLUMBIA, IN- CLUDING INSOLVENCY I \WS ; ALSO THE JURISDICTION OF U. S. COURTS WITH THE NAMES OF RELIABLE ATTORNEYS IN THE PRINCIPAL • CITIES AND TOWNS THROUGHOUT THE PACIFIC COAST. BT J. H. JELLETT Attornbt at Law I i SAN FRANCISCO: 1878 \A{a) 3^^ V -: Entered according to Act of Congress In the year 1878, by J. H. JELLETT, In the office of the Librarian of Congress at Washington, D. C. M ■f /Niti.i 'V. Vim III 1 1 ''•^mmmmmm^mmmmmmmmaimmim **' I I lurn w PREFACE. Pacific Coast Collection Laws" is revised wifl • <'oncisely present to those interested thl I ' '^'^ *" States and Territories as they stand '; T ^'^ "^^^^'^ National Bankruptcy Act. tI " o T """^ ^' ^^^ appear therein has also heen car^lly :rd%l!T^^^^^^^^ Pract.., attorneys W kindly assisted in 2^^:^^' DOLPH, BROKAiraH, DOLPH & SxmOK p,„., ^ ^^ Bishop «& Sabin i^oitland, Oregon. Lewis BuRNEs -Eureka, Nevada. Hon. James K. Kennedv."^. ! Walla' Wall7w^^^'^' ^'*^' ^*"^- W. E. CuLLEN ^'' Washington Territory. E. P. Johnson Helena, Montana. Jonas W.Brown ^*^^:^enne, Wyoming. Bush & Wells Victoria, B. C. Prescott, A. T. San Francisco, September, 1878. J- H. JELLETT. :;4165 I CONTENTS. Part I. ATTORNEYS. Part II. JURISDICTION OF U. S. COURTS. ' Page Ohaptje I. Courts and their Jurisdiction 19 Part III. CALIFORNIA. Chapter I. Courts and their Jurisdiction 21 II. Terms of Courts, When and AVhere Held 24 III. Place of Trial of Civil Actions 27 IV. Limitation of Civil Actions 31 V. Parties to Suits— Commencement of Actions .34 VI. Form of Civil Actions — Pleadings 38 VII. Attachments 43 VIII. Claim and Delivery of Personal Property 48 IX. Arrest and Bail 50 X. Injunctions 52 XI. Judgments and Judgment Liens 52 XII. Execution — Sale and Redemption 59 XIII. Proceedings Supplementary to E: :ecution 66 XIV. Costs 68 XV. Appeals in Civil Actions 69 XVL New Trials 74 XVII. Estates of Deceased Persons 75 XVIII. Descents 80 XIX. Liens of Mechanics and others upon Real Property 84 » CONTENTS. 5 Paiib XX , Liens for .Salaries aiui Wages 86 XXI. Ar])itratioiis 88 XXII. Homesteads 89 XXIII. Corporations 90 XXIV. Mode of taking Testimony of Witnesses 92 XXV. Judieial Reoords, How Proved 94 XXVI. Acknowledgments 95 XXVII. Partnerships 99 XXVIII. Married Women 102 XXIX. Minors 104 XXX. Stoppage in transit 105 XXXI. Bills of Lading 105 XXXIL Interest 106 XXXIII. Common Carriers ; 170 XXXIV. Mortgages of Personal Property 107 XXXV. Pledg". 109 XXXVI. Guarantee and Suretyship 110 XXXV^L Sale 113 XXXVIII. Contracts 114 XXXIX. Negotiable Instruments 115 XL. Principal sind Agent 123 XLI. Fraudulent Instruments and Transfers 124 XLII. Assignments for the benefit of Creditors 124 XLIIL Insolvency 126 I Part IV. NEVADA. Chapter 1. Courts —Jurisdiction and Tenns of Courts 141 II. Time allowed to Answer — Service by Publication — Place of Trial 145 III . Limitation of Actions ' 146 IV. Attachments 148 V. Arrest in Civil Actions 149 VI. Judgments and Judgment Liens 150 VII. Executions, Exemptions, Sale and Redemption 150 VIII. Proceedings Supplementary to Execution 152 IX. Security for Costs 153 X. Appeals 153 XI. Estates of Deceased Person.s 154 XII. Homesteads 155 XIII. Of Witnesses and Depositions 156 XIV. Judicial Records, How Proved 159 I > 6 CONTENDS. I'AOK XV, Acknowledgments I(j0 XVI. Affidavits, before whom to be taken 161 XVII. Limited Partnerships 161 XVIII. Married Women 162 XIX. Corporations 162 XX. Chattel Mortgages 163 XXI. Interest and Usury 163 XXII. Promissory Notes and Bills of Excliange 164 XXIII. Mortgages 164 XXIV. Joint Debtors, Reiease of 165 XXV. Insolvent Debtors 165 Part V. OREGON. Chapter I. II. III. IV. V. VI. \il. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI. XVII. XVIII. XIX. XX. XXI. XXII. XXIII. XXIV. XXV. Courts and their Jurisdiction J69 Terms of Courts, When and Where Held 1 70 Commencement of Suits 172 Place of Trial of Civil Actions 173 Limitation of Actions j 73 Attacliments 1 'j5 Arrest in Civil Actions 175 Judgments and Judgment Liens 176 Executions, Exemptions, Sale and Redemption 177 Proceedings Supplementary to Execution 178 Security for Costs lyg Appeals I'jQ Estates of Deceased Persons iso Descent of Real Property igi Descent of Personal Property 132 Homesteads and Dower 133 Depositions j 33 Judicial Records 135 Acknowledgments 135 Limited Partnerships igg Married Women Igy Corporations jgg Chattel . Mortgages igg Interest and Usury jgg Insolvency j go CONTENTS. » < Part VI. IDAHO. Pads Chapter I. Courts, Their Jurisdiction and Terms 191 II. Commencement of Actions ^ 192 III. Place of Trial of Civil Actions 193 IV. Limitations of Civil Actions 194 V. Attachments 196 VI. Arrest in Civil Actions 197 VII. Judgments and Judgment Liens 198 VIII. Executions, Exemptions, Sale and Redemption 199 IX. Proceedings Supplementary to Execution 201 X. Security for Costs 202 XL Appeals in ( Jeneral 202 XII. Homesteads 203 XIII. Estates of Deceased Persons 204 XIV. Depositions 207 XV. Judicial Records .208 XVI. Acknowledgments 208 XVIL Limited Partnerships 209 XVIIL Married Women 210 XIX. Corporations 211 XX. Cliattel Mortgages 212 XXI. Interest and Usury 213 XXIL Affidavits 213 XXIII. Sole Traders 214 XXIV. Insolvent Debtors 216 I Part VII. WYOMING. ^ ''f/t/::?^ '■"■' Chapter I. Courts and their Jurisdiction 221 II. Terms of Courts, When and Where Held 222 III. Commencement of Actions, Time to Answer, Place of Trial. 222 IV. Limitation of Actions 223 V. Attachments 223 VI. Arref't in ( 'ivil Actions 225 VII. Judgment Liens 226 VIII. Executions, Sale, Redemption and Exemptions 226 IX. Proceedings in aid of Executions 227 X. Security for Costs 228 XL Appeals '. 228 8 ' OONTENTH. Paok XII.' Kstates of Doceased Persons 228 XIII. l^cscents and Distrilmtion of Property 229 XIV. Depositions 232 XV. Judiciul lleeords 233 XVI. Acknowledgments 233 XVII. Limited Partnership 234 XVIII. Married Women 236 XIX. Chattel Mortgages 236 XX. Interest and Usury 236 XXI. Assignments 236 Part VIII. MONTANA. CnAFTKR I. Courts, their Jurisdiction and Terms 239 II. Time allowed Defendant to answer— Place of Trial of Civil Actions 240 III. Limitation of Actions 241 IV. Attachments — Arrests in Civil Cases 242 V. Judgment Liens— Executions, Exemptions, Sale UTAH TERRITORY. County. Rbbidknce. Salt Lake.. Box Elder. Namb. Salt Lake City Corinne Lewis Burnes. E. P. Johnson. Part 1. ATTORNEYS. 17 WASHINGTON TERRITORY. County. Rrsidk.nck. Namr. Clarke Vancouver Charles Brown, Collector. Jeflerson P'rt Townsend J. A. Kuhn. Kinff Seattle Leary & McNaught. Jacob Hoover. ■^^'^■•*o ■ ■ • t i Pierce Steilacoom Thuiston Olympia John P. Judson. Walla Walla... Walla Walla... Judge James K. Kennedy. MONTANA TERRITORY. County. Le wis & Clarke Madison Rkbidknck. Helena Virginia City. W. E. CuUen. Theo. Muffly. IDAHO TERRITORY. County; Rkbidknck. Namb. Ada Boise City Idaho City Lewiston Huston & Gray. Jonas W. Brown. Boise Nez Perces J. M. Howe. 18 ATTORNEYS. [Part 1. ARIZONA TERRITORY. COUSTV. Rhsiukmob. Name. Pima Tucson Farley & Pomroy. Rush & Wells. H. N. Alexander. Yavapai Yuma Prescott Yuma WiOMING TERRITORY. County. Hksidknck. Name. Laramie Cheyenne Johnson & Potter. BRITISH COLUMBIA. Namb. Victcria Drake & Jackson. *K^ PART II. JURISDICTION OF UNITED STATES COURTS. CHAPTER I. COURTS AND THEIR JURISDICTION. The Circuit Courts of the United States have jurisdiction — Of all suits of a civil nature at common law or in equity, where the matter in dispute, exclusive of costs, exceeds the sum or value of five hundred dollars, and an alien is a party, or the suit is be- tween a citizen of the State where it is brought and a citizen of another State: Provided, that no Circuit Court shall have cog- nizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such Court to recover the said contents if no assignment had been made, except in case of foreign bills of exchange. In all suits at law or in equity arising under the patent or copy- right laws of the United States. Of all suits by or against any banking association established in the district for which the court is held, under any law provid- ing for national banking associations. Any suit commenced in a State Court, when the amount in dis- pute, exclusive of costs, exceeds the sum or value of five hundred 20 JURISDICTION U. 8. COURTS. [Part 2. dollars, to be made to appear to the satisfaction of said Court, may be removed, for trial, into the Circuit Court for the district where such suit is pending, next to be held after the filing of the petition for such removal, in the cases following: 1. When the suit is against an alien, or is by a citizen of the State wherein it is brought, and against a citizen of another State, on the petition of the defendant. 2. When the suit is against an alien and a citizen of the State where it is brought, or is by a citizen of such State against a citizen of the same and the citizen of another State, it may be so removed, as against said alien or citizen of another State, upon the petition of such defendant. But such removal shall not take away or prejudice the right of the plaintiff to proceed at the same time with the suit in the State Court, as against the other defend- ants. , 3. When a suit is between a citizen of the State in which it is brought and a citizen of another State, it may be removed on the petition of the latter, whether he be plantiff or defendant, if he makes and files in said State Court an affidavit, stating that he has reason to believe, and does believe, that, from prejudice or local influence, he will not be able to obtain justice in such State Court. The District Courts of the United States have jurisdiction — In all suits by or against any association established under any law providing for national banking associations, within the district for which the Court is held. It also has jurisdiction of suits for the collection of the Inter- nal Revenue, and is the Court of Admiralty. i PART III. STATE OF CALIFORNIA. CHAPTER I. COURTS AND THEIR JURISDICTJ- f. The Supreme Court of the State of California has original and appellate jurisdiction. Its original jurisdiction extends— To the issuance of writs of mandamus, certiorari, prohibition, and habeas corpus, and all other writs necessary or proper to the complete exercise of its appellate jurisdiction. Its appellate jurisdiction extends — 1. To all civil actions for relief formerly given in courts of equity. 2. To all civil actions in which the subject of litigation is not capable of pecuniary estimation. 3. To all civil actions in which the subject of litigation is capa- ble of pecuniary estimation, which involve the title or possession of real estate, or the legality of any tax, impost, assessment, toll or municipal fine, or in which the demand exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars. 4. To all special proceedings. 5. To all cases arising in the Probate Courts. 22 CALIFORNIA. [Pai-t 3 District Courts. The jurisdiction of these Courts extends — 1. To all civil actions for relief formerly given in courts of equity. 2. To all civil actions in which the subject of litigation is not capable of pecuniary estimation. 3. To all civil actions (except actions of forcible entry and de- tainer) in which the subject of litigation is capable of pecuniary estimation, which involve the title of possession of real estate, or the legality of any tax, impost, assessment, toll or municipal fine, or in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars. 4. To special proceedings not within the jurisdiction of the County and Probate Courts. , 5. To the issuance of writs of mandamus, certiorari, prohibi- tion, habeas corpus, and all writs necessary to the exercise of its powers. County Courts i Have original and appellate jurisdiction. Their original juris- diction extends — 1. To actions to prevent or abate a nuisance. 2. To actions of forcible entry and detainer. 3. T« proceedings in insolvency. 4. To all special cases or proceedings in which the law, giving the remedy or authorizing the proceedings, confers the jurisdic- tion upon it. 5. To the issuance of writs of habeas corpus, and all writs nec- essary to the exercise of its powers. 6. To inquire, by the intervention of a grand jury, of all public offenses committed, or triable in the county, 7. Their appellate jurisdiction extends to all cases arising in Justices' or Police Courts. Chap. 1. CALIFORNIA. Probate Courts. 98 Probate Courts have jurisdiction. 1. To open and receive proof of last wills and testaments, and to admit them to probate. 2. To grant letters testamentary, of administration and of guardianship, and to revoke the same. 3. To appoint appraisers of estates of deceased persons. 4. To compel executors, administrators and guardians to ren- der accounts. 5. To order the sale of property of estates, or belonging to minors. 6. To ©rder the payment of debts due from estates. 7. To order and regulate all distributions and partitions of property, or estates of deceased persons. 8. To compel the attendance of witnesses, and the production of title deeds, papers, and other property of an estate, or of a minor. 9. To make such orders as may be necessary to the exercise of the powers conferred upon it. 10. To exercise jurisdiction in all matters of probate and guar- dianship. Justices' Courts, The civil jurisdiction of these Courts within their respective townships or cities extends — 1. To an action arising on contract, for the recovery of money only, if the sum claimed, exclusive of interest, does not amount to three hundred dollars. 2. To an action for damages for injury to the person, or for taking or detaining personal property, or for injuring personal property or for an injury to real property, where no issue is raised by the answer involving the plaintiflf's title or possession of the same, if the damages claimed do not amount to three hundred dollars. 3. To all actions for a fine, penalty, or forfeiture, not amount- ing to three hundred dollars, given by statute or the ordinance of an incorporated city or town. 4. To an action upon a bond or undertaking conditioned for ^iJjmjimkmSjSm 24 CALIFORNIA. •" [Part 3. the payment bf money, not amounting to three hundred dollars, though the penalty exceed that sum; the judgment to be given for the sum actually due. When the payments are to be made by installments, an action may be brought for each installment as it falls due. 5. To an action to recover the possession of personal property, when the value of such property does not amount to three hun- dred dollars. 6. To take and enter judgment on the confession of a defend- ant, when the amount confessed, exclusive of interest, does not amount to three hundred dollars. The jurisdiction above does not extend, however — 1. To a civil action in which the title or possession of real prop- erty IS put in issue. 2. Nor to an action or proceeding against ships, vessels, or boats, when the suit or proceeding is for the recovery of seamen's wages for a voyage performed in whole or in part without the waters of ihis State. CHAPTER II. TERMS OF COURTS, WHEN AND WHERE HELD. Supreme Court. There must be six terms in each year for the hearing of causes, to commence on the second Monday of January, April, May, July, October and November. The January and July terms are held at the city of San Francisco. The April and October terms are held at the city of Los Angeles. The May and November terms at the city of Sacramento. Additional terms may be held by order of the Court. Chap. 2.] •^^V'-. •• CALIFORNIA. District Courts. 25 «r C>> There is a District Court in each of the judicial districts, and Court is held at the county seat of each county, as follows: COUNTY. Alameda Alpine Amador Butte Calaveras Colusa Contra Oosta..., Del Norte El Dorado Fresno Humboldt Inyo Kern Klamath Lake. Lassen Los Angeles Marin Mc'ipooa MenOocino Merced Modoc , . Mono Monterey Napa ,.. Nevada Placer Plmuas Sacramento San Benito San Bernardino San Diego San Francisco . - I San Joaquin San Luis Obispo San Mateo Santa Barbara.. .. Santa Clara Santa Cru/ "hasta Sierra Siskiyou DISIBIOT. WHEN HELD. ttd Monday April ; 2d Monday August, December. 1st Monday April, October. 2d Tuesday January, May, September. Ist Monday February, May, November. Ist Tuesday January, May, September. 4tli Monday April ; 'id Monday August ; 1st Monday Deo. 3d Tuesday April, July, November. 2(1 Mondav May, August, Novemoer. 2d Tuesday Maron, June, October, December. 3d Monday February, June, October. 2d Monday March, June, September, December. i Ist Monday May, November, 3d Monday May. November. .' 2d Monday April, July, October. Ist Monday April ; 3d Monday June, November. 3d Monday May, August, November. 1st Monday February, May, August, November. 3d Monday March, July, November, 3d Monday April ; 3d Monday '^ugust ; 2d Monday Dec. 2d Monday April, August, December. 3d Monday March, July, November. , ■ Ist Monday May, August, November. Third Sixteenth Eleventh Second Eleventh Tenth Fifteenth .... Eighth Eleventh Thirteenth... Eighth Sixteenth .... Sixteenth .... Eighth Seventh Twenty-First, Seventeenth. Twenty-Second Thirteenth. . Twenty- Second Thirteenth. . Twenty-Kirst. Sixteenth I bd Monday April, October. Twentieth. Seventh Fourteenth. . . Fourteenth.. . Tw snty-Flrst. Sixth Twentieth Eighteenth,. . Eighteenth... Solano Sonoma. .. . Stanislaus . Sutter Tehama Trinity . . . Tulare Tuolumne Ventura... Yolo Yuba Fifth First Twelfth. . . , First Twentieth Twentieth Ninth Tenth , Ninth 8eve"'.,h Twenty-Second Fifth iTenth 'Second Ninth Thirteenth Fifth First Sixth 3d Monday March, July, November, Ist Monday February, June, October. 2d Monday M'irch, June, September, December. >, Ist Monday February, May. August, November. 2d Monday March ; 1st Monday June, September, Deo. 1st Monday February. April, June, August, Oct., Deo. 1st Monday April, August, December. 2d "" -nday March, June, September, December. 2d Monday January, April, July, October. 3fl D C— 3d Monday April, August, December. 4th— Ist Monday February, May, August. November. lath— Ist Monday Jan., April, July, Oct. 15th— 1st Monday March, June, Sept., Dec. 19th— 2d Monday April. Aug.. Dec. a3d— 3d Monday April, Aug., Dec. 1st Monday February. May, August ;"3d Monday Oct. 2d Monday May, September, January. 2d Monday February ; 4th Monday May, August, Nov. 3d Monday March, July, November. Ist Monday January, May, September, 2d Monday February, June, October 2d Monday March, June, November. i Ist Monday April ; 2d Monday July ; 4th Monday Oct. 3d Monday January, May, September. AtLake City— 2d Monday July. 3d Monday January, May, September. 1st Monday February, May, September. 2d Monday January, April, September. 4th Monday Feb. ; 3d Monday June ; 2d Monday Nov. 1st Monday January, April, July, October. 2d Monday \pril, August, December. 3d Monday January, May, Septfinber. Iht Alonday Msrch, July ; 3(1 Monday November. let Monday March, July, November. ;dant resides. The place of trial may be changed in the following cases : , 1. When it appears to the satisfaction of the justice before whom the action is pending, by affidavit of either party, that such justice is a material witness for either party. 2. When either party makes and files an affidavit that he be- lieves that he cannot have a fair and impartial trial before such justice, by reason of the interest, prejudice, or bias of the justice. 3. When a jury has been demanded, and either party makes and files an affidavit that he cannot have a fair and impartial trial on account of the bias or prejudice of the citizens of the township or city against him. 4. When from any cause the justice is disqualified from acting. 6. When the justice is sick or unable to act. Probate Court. In what county wills must be proved and letters testamentary or of administration granted : 1. In the county of which the deceased was a resident at the time of his death, in whatever place he may have died. 2. In the county in which the deceased may have died, leaving estate therein, he not being a resident of the State. t. In the county in which any part of the estate may be, the deceased having died out of the State and not resident therein at the time of his death. 4. In the county in which any part of the estate may be, the deceased not being a resident of the State, and not leaving estate in the county in which he died. 5. In all other cases, in the county where application for let- ters is first made. Ghap.4.] CALIFORNU. 31 CHAPTER lY. LIMITATION OF CIVIL ACTIONS. The periods prescribed for the commencement of civil actions are as follows : Within Five Y^ars. 1. An action upon a judgment or decree of any Court of the United States or of any State within the United States. 2. An action for mesne profits of real property. Within Four Years. An action upon any contract, obligation, or liability founded upon an instrument in writing executed in this State (promissory notes included). Within Three Years. 1. An action upon a liability created by statute, other than a penalty or forfeiture. 2. An action for trespass upon real property. 3. An action for taking, detaining, or injuring any goods or chattels, including actions for the specific recovery of personal property. 4. An action for relief on the ground of fraud or mistake. In this case the time begins to run from the discovery, by the ag- grieved party, of the facts constituting the fraud or mistake. Within Tivo Years. 1. An action upon a contract, obligation, or hability, not founded upon an instrument of writing, made within or out of this State (accounts included), 2. An action founded upon an instrument of writing executed out of this State (promissory notes included). 3. An action against a sheriff, coroner, or constable, upon a iability incurred by the doing of an act in his official capacity. 32 CALIFORNIA. Parts. and in virtue of his office, or by the omission of an official duty, including the non-payment of money collected upon an execu- tion — except for an escape. 4. An action to recover damages for the death of one caused by the wrongful act or neglect of another. Within One Year. 1. An action upon a statute for a penalty or forfeiture, where the action is given to an individual, or to an individual and the State, except where the statute imposing it prescribes a different limitation. 2. An action for libel, slander, assault, battery, false imprison- ment, or seduction. 3. An action against a sheriff ©r other officer for the escape of a prisoner arrested or imprisoned on civil process. 4. An action against a municipal corporation for damages for injuries to property caused by a mob or riot. Within Si.^ Months. An action against an officer, or officer de facto — 1. To recover any goods, wares, merchandise, or other prop- erty, seized by such officer in his official capacity as tax collector, or to recover the price or value of any goods, wares, merchandise, or otlier personal property so seized, or for damages for the seizure, detention, sale of, or injury to any goods, wares, merchandise, or other personal property seized, or for damages done to any person or property in making any such seizure. 2. To recover stock stild for a delinquent assessment, upon the ground of irregularity in the assessment, or irregularity or defect of the notice of sale, or defect or irregularity in the sale. No Limitation, To actions for the recovery of money or other property depos- ited with any bank, banker, trust company, or savings and loan society. General Provisions. The period of limitation begins to run from the time the cause of action accrues, or in other words, from the time when suit can be brought. Chap. 4.] OAUFORNIA. 8t A partial payment of an amount due under an agreement in writing, (promissory notes included) or under an agreement not in writing, (book accounts included) does not prevent the statute running; but where a balance is due upon a mutual, open, and current account, where there have been reciprocal demands be- tween the parties, the statute begins to run from the last item pioved in the account on either side. If when the cause of action accrues against a person, he is out of the State, the action may be commenced within the time above limited, after his return to the State, and if, after the cause of action accrues, he departs from the State, the time of his absence is not part of the time limited for the commencement of the action. If a person entitled to bring an action be, at the time the cause of action accrues, either within the age of majority, insane, imprisoned on a criminal charge, or in execution under the sen- tence of a Criminal Court for a term less than for life, or a married woman, and her husband be a necessary party with her in commencing such action, the time of such disability is not a part of the time limited. If a person entitled to bring an action die before the expira- tion of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his representatives, after the expiration of that time, and within six months from his death. If a person, against whom an action may be brought, die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his representatives after the expiration of that time, and within one year after the issuing of letters testamentary or of administration. When a person is an alien subject, or citizen of a country at war with the United States, the time of the continuance of the war is not part of the period limited for the commencement of the action. When the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the in- junction or prohibition is not part of the time limited for the commencement of the action. When a cause of action has arisen in another State, or in a 34 CALirORNIA. [Part 3. foreign country, and by the laws thereof an action thereon can not there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this State, except in favor of one who has been a citizen of this State, and who has held the cause of action from the time it accrued. No acknowledgment or promise is sufficient eviden<^e of a new or continuing contract, by which to take the case out of the operation of the statute, unless the same is contained in some writing, signed by the party to be charged thereby. CHAPTER Y. PARTIES TO SUITS— COMMENCEMENT OF ACTIONS. Every action must be prosecuted in the name of the real party in interest, except in the case of an executor, or administrator, or trustee of an express trust (including a person with whom, or in whose name, a contract is made for the benefit of another), or a person expressly authorized by statute, who may sue without joining with him the person or persons for whose benefit the action is brought. • In the case of an assignment of a right to recover money or other personal property by a judicial proceeding, the action by the assignee is without prejudice to any set-off or other defense existing at the time of, or before notice of, the assignment; but this does not apply to a negotiable promissory note or bill of ex- change, transferred, in good faith and upon good consideration, before maturity. Persons severally liable upon the same obligation or instru- ment, including the parties to bills of exchange and promissory notes, and sureties on the same or separate instruments, may all or any of them be included in the same action, at the option of the plaintiff. Chap. 5.] CALIFORNIA. 36 Civil actions in the Courts of this State are commenced by filing a complaint. En the Justices' Courts, by tiling a complaint and issuing a summons thereon, or bj the voluntary appearance and pleading of the parties. The plaintiff may have summons issued any time within one year after the complaint is filed with the clerk or justice. In the District Courts the defendant is allowed ten days after the service of summons and complaint to appear and answer the complaint, where service is made within the county in which the action is brought; twenty days if served out of the county but in the district in which the action is brought, and forty days if served elsewhere. - In the District Courts, the summons and copy of complaint may be served by the sheriff of the county where defendant may ba found, or by any other person over the age of eighteen, not a party to the action. On whom Savimons to be served. 1. If the suit is against a corporation formed under the laws of this State : the president or other head of the corporation, secretary, cashier, or managing agent thereof. 2. If against a foreign corporation, or a non-resident joint- stock company or association, doing business and having a managing or business agent, cashier, or secretary within this State: the agent, cashier, or secretary. 3. If against a minor under the age of fourteen years, residing within this State : such minor personally, and also his father, mother, or guardian; or if there be none within this State j then any person having the care or control of such minor, or with whom he resides, or in wi ose service he is employed. 4. If against a person, residing Within this State, who has been judicially declared to be of unsound mind, or incapable of con- ducting his own affairs, and for whom a guardian has been ap- pointed: such person, and also his guardian. 5 If against a county, city, or town : the president of the board of supervisors, president of the council, or trustees, or other head of the legislative department thereof. 6. In all other cases the defendant must be served personally. 86 CALIFORNIA. [Part 3. Service by Publication, When the person on whom the service is to be made resides out of the State, or has departed from the State, or cannot, after due diligence, be found within the State, or conceals him- self to avoid service, or is a foreign corporation having no man- aging or business agent, cashier, or secretary within the State, and the fact appears by affidavit to the satisfaction of the Court, or a judge thereof, or a county judge, and it also appears by such affidavit, or by the verified complaint on file, that a cause of action exists against the defendant in respect to whom the ser- vice is to be made, or that he is a necessary or proper party to the action, such Court or judge may make an order that the ser- vice be made by the publication of the summons. The order must direct the publication to be made in a news- paper, to be designated as most likely to give notice to the per- son to be served, and for such lenth of time as may be deemed reasonable, at least once a week; but publication against a def- endant residing out of the State, or absent therefrom, must not be less than two months. In case of publication, where the residence of a non-resident or absent defendant is known, the Court or a judge must direct a copy of the summons and com- plaint to be forthwith deposited in the y-ostoffice, directed to the person to be served, at his place of re^iuence. When publica- tion is ordered, pertional service of a copy of the summons and complaint out of the State is equivalent to publication and de- posit in the postoffice. In either case, the service of the sum- mons is complete at the expiration of the time prescribed by the order for publication. Provisions in Justices' Courts. In Justices' Courts, the time for the appearance of the defend- ant must be set forth in the summons, and must be as follows: — 1. Forthwith, if an order of arrest is indorsed upon the sum- mom. 2. In all other cases the summons must contain a direction that the defendant must appear and answer the complaint with- jn five days, if the summons be served in the township in which I Chap. 5. J CALIFORNU. 87 the action in brought; within ten days if served out of the Town- ship, but in the county in which the action is brought and with- in twenty days if served elsewhere. Oil whom summons to be served in Justice Court actions: see rule for service in District Courts . Service by Publication. Rule in District Courts applicable to Justices' Courts. In Justice Court actions the summons cannot be served out of the county of the justice before whom the action is brought, ex- cept when the action is brought upon a joint contract or obliga- tion of two or more persons who reside in ditFerent counties, and the summons has been served upon the defendant resident of the county, in which case the summons may be served upon the other defendants out of the county; and except also when an ac- tion is brought against a party who has contracted to perform an obligation at a particular place, and resides in a different coun- ty, in which case summons may be served in the county where he resides; and ex«ept also, where an action is brought for in- jury to person or property and the defendant resides in a differ- ent county, in which case summons may be served in the county where the defendant resides, The justice may, within a year from the date of filing the com- plaint, issue as many alias summons as may be demanded by the plaintiff. The summons in a Justice Court action may be served by a sheriff or constable of any of the counties of this State, or by any male resident over the age of twenty-one years, not a party to the suit, and within the county where the action is brought, or it may be served by publication. When a summons is issued by a justice of the peace for service out of the county in which it was issued, the summons shall have attached to it a certificate, under seal by the county clerk of such county, to the effect that the person issuing the same was an acting justice of the peace at the date of the summons. 38 CALIFOBNIA. [Part 3. CHAPTER VI. FORM OF CIVIL ACTIONS— PLBADINGS; There is in this State but one form of civil actions for the en- forcement or protection of private rights and the redress or prevention of private wrongs. In such action the party complaining is known as the plaintiff, and the adverse party as the defendant. Pleadings. Pleadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the Court. The only pleadings allowed on the part of the plaintiff are — 1. The complaint. 2. The demurrer to the answer. 8. Demurrer and answer to a cross-complaint. Those allowed on the part of the defendant are — 1. The demurrer to the complaint. 2. The answer. 3. Cross-complaint. A demurrer raises an issue of law. An answer raises an issue of fact. An issue of law is tried by the Court. An issue of iact is tried by a jury, unless a jury trial is waived. The complaint must contain a concise statement, in writing, of the facts constituting the cause of action. In the Justice Court a copy of the account, note, bill, bond, or instrument upon which the action is based, is sufficient. The plaintih may unite several causes of action in the same complaint where they all arise out of — 1. Contracts, express or implied. 2. Claims to recover specific real property, with or without damages for the withholding thereof, or for waste committed thereon, and the rents and profits of the same. Chap. 6.] CALIFORNIA. 89 3. Claims Lo recover specific personal property, with or with- out damages for the withholding thereof. 4. Claims against a trustee by virtue of a contract or by opera- tion of law. 5. Injuries to character. 6. Injuries to person. 7. Injuries to property. The causes of action so united must all beiong to one only of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated. The defendant may demur to the complaint within the time required in the summons to answer, when it appears upon the face thereof, either — 1. That the Court has no jurisdiction of the person of the de- fendant, or the subject of the action; or, 2. That the plaintiff has not legal capacity to sue; or, 3. That there is another actio" pending between the same par- ties for the same cause; or, 4. That there is a defect or misjoinder of parties plaintiff or defendant; or, 5. That several causes of action have been improperly united; or, (?. That the complaint does not state facts sufficient to consti- tute a cause of action; or, 7. That t!i9 complaint is ambiguous, unintelligible, or uncer- tain. Unless the demurrer distinctly sjiecify the grounds upon which any of the objections to the complaint are taken, it may be dis- regarded. The defendant may demur and answer at the same time. The answer of the defendant shall contain — 1. A general or specific denial of the material allegations of the coujplaint controverted by the defendant. 2. A statement of any new matter constituting a defense or counter claim. If the complaint be verified, the denial of each allegation controverted must be specific, and be made positively, or according to the information and belief of the defendant. If the defendant has no information or belief upon the subject suf- ficient to enable him to answer an allegation of the complaint. ' i 40 CALIFORNIA. [Part 3. he may bo state in his answer, and place his denial on that ground. If the complaint be not verified, a general denial is sufl&cient, but only puts in issue the material allegations of the complaint. The counter-claim above mentioned must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action : 1. A cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or con- nected with the subject of the action. 2. In an action arising upon contract; any other cause of action arising upon contract, and existing at the commencement of the action. If the defendant omit to set up a counter-claim arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action, neither he nor his assignee can afterwards maintain an action against the plaintiff therefor. When cross-demands have existed between persons under such circumstances that, if one had brought an action against the other, a counter-claim could have been set up, the two demands shall be deemed compensated, so far as they equal each other, and neither can be deprived of the benefit thereof by the assign- ment or death of the other. The plaintiff may, within the same length of time after the service of the answer as the defendant is allowed to answer after service of summons, demur to the answer of the defendant, or to one or more of the several defenses or counter-claims set up n the answer. The demurrer may be taken upon one or more of the follow- ing grounds : 1. That several causes of counter-claim have been imp. jperly joined. 2. That the answer does not state facts sufficient to constitute a defense or counter claim. 8, That the answer is ambiguous, unintelligible, or uncertain Chap. 6.] CALIFORNIA. 41 Verification op Pleadings. Every pleading- must be subscribed by the party or his attor- ney; and when the complaint is verified, the answer must be verified, unless an admission of the truth of the complaint might subject the party to a criminal prosecution, or unless an officer of the State in his official capacity is defendant. In all cases of the verification of a pleading, the affidavit of the party mvist state that the same is true of his own knowledge, except as to the matters which are therein stated on his information or belief, and as to those matters that he believes it to be true; and where a pleading is verified it must be by the affidavit of a party, un- less the parties are absent from the county where the attorney resides, or from some cause unable to ver'fy it, or the facts are within the knowledge of his attorney or other person verifying the same. When the pleading is verified by the attorney, or any other person except one of the parties, he must set forth in the affidavit the reasons why it is not made by one of the parties. When a corporation is a party the verification can be made by an officer thereof. Provisions in Justices' Courts. Pleadings in Justices' Courts are not required to be in any particular form, but must be such as to enable a person of com- mon understanding to know what is intended. May — except the complaint — be oral or in writing. Not to be verified. If in writing, must be filed with the justice. If oral, an entry of their substance must be made in the docket. The defendant may, at any time before answering, demur to the complaint. The answer may contain a denial of any or all of the material facts stated in the complaint, which the defendant believes to be untrue, and also a statement, in a plain and direct manner, of any other facts constituting a defense or counter claim, upon which an action might be brought by the defendant agaiust the plaintiff in a Justice's Court. 42 CALIFORNIA, [Part 3. If the defendant omit to set up a counter claim in the cases just mentioned, neither he nor his assignee can afterwards main- tain an action against the plaintiff therefor. When the answer contains new matter in avoidance, or con- stituting a defense or a counter claim, the plaintiff may, at any time before the trial, c \irr to the same for insufl&ciency, stat- ing therein the grounds o ' demurrer. The proceedings on demt; ^r are as follows; 1. If the demurrer to the complaint is sustained, the plaintiff may within such time, not exceeding two days, as the Court al- lows, amend his complaint. 2. If the demurrer to the complaint is ovenniled, the defendant may answer forthwith. 3. If the demurrer to an answer is sustained, the defendant mayjamend his answer'within such time, not exceeding two days, as the Court may allow. 4. If the demurrer to an answer is overruled, the action must proceed as if no demurrer had been interposed. Either party may, at any time before the conclusion of the trial, amend any pleading; but if the amendment is made after the issue, and it appears to the satisfaction of the Court, by oath, that an adjournment is necessary to the adverse party in conse- quence of such amendment, an adjournment must be granted. The Court may also, in its discretion, when an aijourument be rendered necessary, require as a condition to the allowance of such amendment, made after issue joineil, the payment of costs to the adverse ])arty, to be fixed by the Court, noc exceeding twenty dollars, ^he Court may also, on such terms as may be just, and on puyn.ent of costs, relieve a party from a judgment by default taken against him hj his mistake, inadvertence, sur- prise, or excusable neglect; but the application for such relief must be made within ten days after the entry of the judgment, and upon an afl&davit showing good cause therefor. When a pleading is amended, the adverse party may answer or demur to it within such time, not ex«!eeding two days, as the Court may allow. Chap. 7.] CALIFORNIA. 43 CHAPTER VII. ATTACHMENTS. ts S he The plaintiff, at the time of issuing the summons, or at any time afterwards, may have the property of the defendant attached as security for the satisfaction of any judgment that may be re- covered, unless the defendant gives security to pay such judg- ment, in the following cases : 1. In an action upon a contract, express or implied, for the direct payment of meney, where the contract is made or is paya- ble in this State and is not secured by any mortgage or lien up- on real or personal property, or any pledge of personal prt »perty ; or if orignally so secured, such security has, without any act of the plaintiflf", or the person to whom the security was given, be- come valueless. 2. In an action upon a contract, express or implied, against a defendant not residing in this State. In Justices' Courts, the writ to attach the property of the de- fendant must be issued at the time of or after issuing summons, and before answer. Before issuing the writ of attachment, the clerk of the Court or justice must require an affidavit by or on behalf of the plaintiff, showing : 1. That the deff ndant is indebted to the plaintiff (specifying the amount of such indebtedness, over and above all legal set- offs or counter-claims) upon a contract, express or implied, for the direct payment of money, and that such contract was made oris ])ayable in this State, and that the payment of the same has not been secured by any mortgage or lien upon real or personal property, or any pledge of personal property; or if orignally so secured, that such security has, without any act of the plaintiff, or the person to whom the security was given, become value- less; or, 2. That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness over and above all legal set- offs, or counter-claims) and that the defendant is a non-resident of the State; and, 44 CALIFORNIA. [Part 3. 3. That the attachment is not sought and the action is not prosecuted to hinder, delay, or defraud any creditor of the de- fendant. The clerk or justice must also require, before issuing the writ, a written undertakinjf on the part of the plaintiff, (in the District Court, in a sum not less that two hundred dollars, and not ex- ceeding the amount claimed by the plaintiff; and in the Justice's Court, in a sum not less than fifty dollars, and not more than three hundred dollars) by two, or more sufficient sureties, to the effect that if the defendant recover judgment, the plaintiff will pay all costs that may be awarded to the defendant, and all dam- ages which he may sustain by reason of the attachment, not ex- ceeding the sum specified in the undertaking. The defendant may except to the sufficiency of the sureties. The writ of attachment in District Court actions must be di- rected to the sheriff of any county in which property of such de- fendant may be; injustice Court actions, to the sheriff of any county in which property of the defendant may be, or to the sheriff or constable in the county where the suit is brought, and must require him to attach and safely keep all the property of the defendant within his county, not exempt from execution^ or so much thereof as may be sufficient to satisfy the plaintiff's demand, the amount of which must be stated in conformity with the complaint, unless the defendant gives him security by the undertaking of at least two sufficent sureties, in an amount sufficient to satisfy such demand besides costs, or in an «mount equal to the value of the property which has been, or is about to be, attached. Several writs may be issued at the same time, to the sheriffs of different counties. The writ of attachment must be executed, without delay, by the sheriff to whom it is directed : 1. Real property, standing upon the records of the county in the name of the defendant, must be attached by filing with the recorder of the county a copy of the writ, together with a de- scription of the property attached, and a notice that it is attach- ed, and by leaving a similar copy of the writ, description and notice with an occupant of the property, if there is one; if not, then by posting the same in a conspicuous place on the proper- ty attached. Chap. 7.] C^IilFORNU. 45 to to by 2. Real property, or an interest therein, belonging to the de- fendant, and held by any other person, or standing on the records of the county in the name of any other person, must be attached by filing with the recorder of the county a copy of the writ, together with a description of the property, and a notice that such real property and any interest of the defendant therein, held by or standing in the name of such other person, (naming him) are attached; and by leaving with the occupant, if any, and with such other person or his agent, if known and with- in the county, or at the residence of either, if within the county, a copy of the writ, with a sumilar description and notice. If their is no occupant of the property, a copy of the writ, together with such description and notice, must be posted in a conspicu- ous place upon the property. The recorder must index such at- tachment when filed, in the names both of the defendant and of the person by whom the property is held, or in whose name it stands on the records. 3. Personal property, capable of manual delivery, must be at- tached by taking it into custody. 4. Stocks or shares, or interest in stocks or shares of any cor- poration or company, must be attached by leaving with the presi- dent or other head of the same, or the secretary, cashier, or other managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the defendant is attached, in pursuance of such writ. 5. Debts and credits, and other personal property not capable of manual delivery, must be attached by leaving with the person owning such debts, or having in his possession, or under his con- trol, such credits and other pergonal property, or with his agent, a copy of the writ, and a notice that the debts owing by him to the defendant or the credits and othei personal property in his possession or under his control, belonging to the defendant, are attached in pursuance of such writ. Upon receving information, in writing, from the plaintift' or his attorney, that any person has in his possession, or under his control, any credits or other personal property belonging to the defendant, or is owing any debt to the defendant, the sherifi* must serve upon such person a copy of the writ, and a notice 46 CALIFORNIA. [Part 3. that such credits or otljer property or debts, as the case may be, are attached in pursuance of such writ. All persons having in their possession, or under their control, any credits or other personal property belonging to the defend- ant, or owing any debts to the defendant at the time of service upon them of a copy of the writ and notice, as above directed, shall be, unless such property be delivered up or transferred, or such debts be paid to the sheriff, liable to the plaintiff for the amount of such credits, property, or debts, until the attachment be discharged, or any judgment recovered by him be satisfied. Any person owing debts to the defendant, or having in his possession, or under his control, any credits or other personal property belonging to the defendant, may be required to attend before the Court or judge, or a referee appointed by the Court or judge, and be examined on oath respecting the same. The defendant may also be required to attend for the purpose of giving information respecting his property, and maybe examined on oath. The Court or judge may, after such examination, order personal property, capable of manual delivery, to be deliv- ered to the sheriff on such terms as may be just, having reference to any liens thereon, or any claims against the same, and a memorandum to be given of all other personal property, con- taining the amount and description thereof. Perishable property attached must be sold by the sheriff; the proceeds, and other property attached, must be retained by him to answer any judgment that may be recovered in the action, unless sooner subjected to execution upon another judgment re- covered previous to the issuing of the attachment. Debts and credits attached nmy be collected by him, if the same can be done without suit. The sheriff's receipt is a sufficient discharge for the amount paid. Whenever property has been taken by an officer under a writ of attachment, and it is made to appear satisfactorily to the Court, or a judge thereof, or a county judge, that the interest of the parties to the action will be subserved by a sale thereof, the Court or a judge may order such property to be sold in the same manner as property is sold under an execution ;nd the proceeds to be deposited in the Court, to abide the judgment in the action. Chap. 7.] CALIFORNIA. 47 the lim tion, t re- and be large writ o the st of reof, n the dthe nt in If any personal property attached be claimed by a third per- son as his property, the sheriff may .suimnjii a jury of six men to try the validity of such claim. Whenever the defendant has appeared in the action, he may, upon reasonable notice to the plaintiff, apply to the Court in which the action is pendinu^, or to the judge thereof, or to a county judge, for an order to discharge the attachment, wholly or in part; and, upon the execution of the undertaking men- tioned hereafter, an order may be made, releasing from the operation of the attachment any or all of the property attached; and all the property so released, and all of the proceeds of the sales thereof , must be delivered to the defendant, upon the justi- fication of the sureties on the undertaking, if required by tae plaintiff. Before making such order, the Court or judge must require an undertaking on behalf of the defendant, by at least two sureties, I'esidents and freeholders, or householders, in the State, to the effect that, in case the plaintiff recover judgment in the action, the defendant will, on demand, re-deliver the attached property so released to the proper officer, to be applied to the payment of the judgment; or, in default thereof, that the de- fendant and sureties will, on demand, pay to the plaintiff the full value of the property released. The Court or judge mak- ing such order may fix the sum for which the undertaking miist be executed, and if necessary, in fixing such sum, to know the value of the property released, the same may be ai)praised by one or more disinterested persons, to be appointed for that pur- pose. The sureties may be required to justify before the Court or judge, and the property cannot be released without their justification, if the same be required. The defendant may also, at any time, either before or after the release of the attached property, or before any attachment shall have been actually levied, apply on motion, upon reasonable notice to the plaintiff, to the Court in which the action is brought, or to the judge thereof, or to a county judge, that the writ of at- tachment be discharged, on the ground that the same was im- properly or irregularly issued. If, upon such application, it satisfactorily appears that the writ of attachment was improperly or irregularly issued, it must be dis- charged. 48 CALIFORNIA. [Part 3. CHAPTPJR VIII. CLAIM AND DELIVERY OF PERSONAL PROPERTY. The plaintiff in an action to recover the possession of personal property may, at the time of issuing the summons, or at iny time before answer, claim the delivery of such property to him. Where a delivery is claimed, an affidavit must be made by the plaintiff, or by some one on his behalf, showing — 1. That the plaintiff is the owner of the property claimed (par- ticulai'ly describing it), or is entitled to the possession thereof. 2. That the property is wrongfully detained by the defendant. 3. The alleged cause of the detention thereof, according to his best knowledge, information, and belief. 4. That it has not been taken for a tax, assessment or fine, pursuant to a statute; or seized under an execution or an attach- ment against the property of the plaintiff; or if so seized, that it is by statute exempt from seizure, 6. The actual value of the property. The plaintiff or his attorney may, thereupon, by an endorse- ment in writing upon the affidavit, require the sheriff of the county where the property claimed may be, to take the same from the defendant. Upon a receipt of the affidavit and notice with a written un- dertaking, executed by two or more sufficient sureties, approved by the sheriff, to the effect that they are bound to the defendant in double the value of the property as stated in the affidavit for the prosecution of the action, for the return of the property to the defendant, if return thereof be adjudged, and for the pay- ment to him of such sum as may from any cause be recovered against the plaintiff, the sheriff must forthwith take the property described in the affidavit, if it be in the possession of tlie de- fendant or his agent, and retain it in his custody. The sheriff must, without delay, serve on the defendant a copy of the affi- davit, notice, and undertaking. Chap. 8.] CALIFORNIA. 49 The defendant may within two days after the service of a copy of the affidavit and undertaking give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fails to do so, he is deemed to have waived all objections to them. When the de- fendant excejDts, the sureties must justify on notice before the judge or county clerk; and the sheriff is responsible for the suf- ficiency of the sureties until the objection to them is either waived or until they justify. At any time before the delivery of the property to the plain- tiff, the defendant may, if he do not except to the sureties of the plaintiff, require the return thereof, upon giving to the sheriff a written undertaking, executed by two or more sufficient sure- ties, to the effect that they are bound in double the value of the property, as stated in the affidavit of the plaintiff, for the deliv- ery thereof to the plaintiff, if such delivery be adjudged; and for the payment to him of such sum as may, for any cause, be re- covered against the defendant. If a return of the property be not so required v^'ithin five days after the taking and service of notice to the defendant, it must be delivered to the plaintiff, un- less claimed by a third party, as hereafter set forth. The de- fendant's sureties, upon notice to the plaintiff of not less than two or more than five days, must justify before a judge or county clerk; and upon such justification, the sheriff must deliver the jDroperty to the defendant. The sheriff is responsible for the de- fendant's sureties until they justify, or until the jus ^c. tion is completed or waived, and may retain the property until that time; if they, or others in their place, fail to justify at the time and place appointed, he must deliver the property to the plain- tiff. If the property taken be claimed by any other person than the defendant or his agent, and such person make affidavit of his ti- tle thereto, or right to the possession thereof, stating the grounds of such title or right, and serve the same upon the sheriff, the sheriff is not bound to keep the property or deliver it to the plaintiff, unless the plaintiff, on demand of him, or his agent, indemnify the sheriff against euch claim, by an undertaking, by two sufficient sureties; and no clrim to such property by any other person than the defendant or his agent is valid against the sheriff, unless so made. 50 CALIFOIINIA. [Part 3. The provisions contained in this chapter are applicable to cases in Justices' Courts, the word "constable" being substituted for "sheriff,'' and "justice" for "judge." CHAPTER IX. AKREST AND BAIL. The defendant may be arrested in a civil action in the following cases : 1. In an action for the recovery of money or damages on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the State, with intent to defraud his creditors. 2. In an action for a fine or penalty, or for money or property embezzled, or fraudulently misapplied, or converted to his own use, by a public officer, or an officer of a corporation, or an at- torney, factor, broker, agent, or clerk, in the course of his em- ployment as such, or by any other person in a fiduciaiy capacity; or for misconduct or neglect in office, or in a professional em- ployment, or for a willful violation of duty. 3. In an action to recover the possession of personal property unjustly detained, when the property or any part thereof has been concealed, removed, or disposed of, to prevent its being found or taken by the sheriff. 4. When the defendant has been guilty of a fraud in contract- ing the debt, or incurring the obligation for which the action ia brought; or in concealing or disposing of the property, for the taking, detention, or conversion of which the action is brought, 5. When the defendant has removed or disposed of his prop- erty, or is about to do so, with intent to defraud his creditors. Chap. 9.] CALIFORNIA. 61 at" ity; [erty has leing i-act- )n i& the ight, )rop- The order of arrest is made upon affidavit of the plaintiff, or some other person, that a sufficient cause of action exist i, and the case is one of those mentioned above. Before making the order of arrest, the judge must require a written undertaking on the part of the plaintiff, with sureties in an amount to be fixed by the judge, which must be at least five hundred dollars, to the effect that the plaintiff will pay all costs which may be adjudged to the defendant, and all damages which he may sustain by reason of the arrest, if the same be wrongful, or without sufficient cause, not exceeding the sum specified in the undertaking. In the Justice's Court, the defendant may be arrested in a civil action, in the following cases: 1. In an action for the recovery of money or damages, on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the State, with intent to defraud his creditors. •2. In an action for a fine or penalty, or for money or property embezzled or fraudulently misapplied, or converted to his own use, by one who received it in a fiduciary capacity. 3. When the defendant has been guilty of a fraud in contract- ing the debt or incurring the obligation for which the action is br ought. 4. When the defe ndant has removed, concealed, or disposed of his property, or is about to do so, with intent to defraud his criditors. No female can be arrested in an action in the Justice's Court Bafore an order of arrest can be made, the party applying must prove to the satisfaction of the justice, by the affidavit of himself, or some other person, the facts upon which the applica- tion is founded, and the plaintiff must execute and deliver to the justice a written undertaking in the sum of three hundred dol- lars, with sufficient sureties, to the effect that the plaintiff will pay all costs that may be adjudged to the defendant, and all danages which he may sustain by reason of the arrest, if the sa ne be wrongful or without sufficient cause, not exceeding the sum specified in the undertaking. 52 CALiFc mix. fPai-t 3. CHAPTER X. INJUNCTIONS. An injunction is a writ or order requiring a person to refrain from a particular act. It may be granted in the following cases : 1. When it appears by the complaint that the plaintiff is enti- tled to the relief demanded, and such relief, or any proof there- of, consists in restraining the comminsion or continuance of the act complained of, either for a limited period or perpetually. 2. \'7hen it aj)j)ears by the complaint or affidavit, that the com- mission or continuance of some act during the litigation would produce waste, great or irreparable injury to the plaintiff'. 3. When it appears, during the litigation, that the defendant is doing or threatens, or is about to do, or is procuring or suf- fering to be done, some act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual. CHAPTER XI. JUDGMENTS AND JUDGMENT LIENS. A judgi)aent is the final determination of the rights of the i)ar- ties in an action or proceeding. A judgment may be given for or against one or more of sev- eral plaintiffs, and for or against one or more of sevei*al defend- ants; and it may, when the justice of the ease requires it, deter- mine the ultimate rights of the parties on each side, as between themselves. Chap. 11. J CALIFORNIA. 1- Ld lit if- its In an action against several defendants, the Court may, in its discretion, render judgment against one or more of them, leav- ing the action to proceed against the others, whenever n several judgment is proper. The relief granted to the plaintifi', if there be no answer, can not exceed that which he shall have demanded in his complaint; but in any other case, the Court may grant him any relief con- sistent with the case made by the complaint and embraced within the issue, An action may be dismissed or a judgment of non-suit entered in the following cases ; 1. By the plaintiff himself , at any time before trial, upon the payment of costs, if a counter-claim has not been made or af- firmative relief sought by the croes-complaint or answer of de- fendant. 2. By either paHy, upon the written consent of the other. 3. By the Coart, when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal. 4. By the Court, whm, upon the trial, and before the final submission of the case, the plaintiff abaxidons it. 5. By the Court, upon motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient case for the jury. In a]' other cases, judgment must be rendered on the merits. Judgment upon Failure i ' Answer. )ar- sev- end- eter- weeu Judgment may be h^d if the defen lant fail to answer or demur to the complaint within the time specified in the summons, or within such further time as may have been granted, as follows: 1, In an action arising upon (contract for the recovery of money or damages only, the clerk, upon application of the plaintiff, must enter the default of the defendant, and immediately there- after enter judgment for the amount sj^ecified in the summons, including ^ae costs, against the defendant, or against one or more of several defendants, when the action is against two or more defendants, jointly or severally liable on a contract, and the sum- mons is served on one or more, and not on all of them, in which case the plaintiff may proceed against th*^ defendants served in the same manner as if they were the only defendants. 64 CALIFORNIA. [Part 3. 2. In other actions, the clerk must enter the default of the de- fendant; and thereafter the plaintiff may apply at the first or any subsequent term of the Court for the relief demanded in the com- plaint. If the taking of an account, or the proof of any fact, is necess, ry to enable the Court to give judgment, or to carry the judgment into effect, the Court may take the account or hear the proof; or may, in its discretion, order a reference for that purpose. And when the action is for damages, in whole or in part, the Court may order the damages to be assessed by a jury: or if, to determine the amount of damages, the examination of a long account be involved, by a reference as above provided. 3. In an action where the service of summons was by publi- cation, the plaintiff, upon the expiration of the time for answer- ing, may, upon proof of the publication, and that no answer has been filed, apply for judgmeat; and the Court mast there- upon require proof to be made of the demand mentioned in the complaint; and if the defendant be not a resident of the State, must require the plaintiff* or his agent to be examined on oath respecting any payments that have been made to the plaintiff, or to any ore for his use, on account of such demand, and may render judgment for the amount which he is entitled to recover. Judgment by Confession. A judgment by confession may be entered without action, either for money due or to become due, or to secure anj' per'on against contingent liability on behalf of the defendant, or both. A statement in writing must be made, signed by the defend- ant and verified by his oath, to the following effect : 1. It must authorize the entry of judgment for a specified sum. 2. If it be for money due, or to become due, it must state concisely the facts out of which it arose, and show that the sum confessed therefor is justly due, or to become due. 3. If it be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts constituting the liability, and show that the sum confessed tlierefor does not exceed the same. Chap. 11.] CALIFORNIA. 65 Judgment on Proceedings Without Action by Submission or a Controversy. Parties to a question in difference, which might be the subject of a civil action, may, without action, agi'ee upon a case con- taiug the facts upon which the controversy depends, and pre- sent a submission of the same to any Court which would have jurisdiction, if an action had been brought; but it must appear by affidavit that the controversy is real, and the proceedings in good faith to determine the rights of the parties. The Court must, thereupon, hear and determine the case, and render judg- ment thereon, as if an action were pending. Judgment after VERincT, led bate *t a ting not When trial by jury has been ha ' I'ltdgment must be entered by the Clerk in conformity to tin diet, within twenty-four hours after the rendition of the verdict, nnle the Court order the case to be reserved for argument for further consideration, or grant a stay of proceedings. Upon the trial of a question of fact by the Court, its decision must be given in writing, and filed with the Clerk, within thirty -days after the cause is submitted for decision. Judgment upon the decision must be entered accordinj^ly. On a judgment for the plaintiff upon an issue of law, Ik ay proceed as in the case of judgment upon failure to annw If judgment be for the defendant upon an issue of law, and the taking of an account or the proof of any fact be necessary to enable the Court to complete the judgment, a reference may be ordered. Proceedings against Joint Debtors. When a judgment is recovered against one or more of several persons, jointly indebted upon an obligation, those who were not originally served with the simimons, and did not appear to the action, may })e summoned to show cause why they should not be bound by the judgment in the same manner as though they had been originally served with the summons. 56 CALIFORNIA. [Part 3. Pbooeedings on Offer of Defendant to Compromise. The defendant may, at any time before the trial or judgment, serve upon the plaintiff an offer to allow judgment to be taken against him for the sum or property, or to the effect therein spe- cified. If the plaintiff accept the offer, and give notice thereof within five days, he may file the offer, with proof of notice of acceptance, and the clerk must thereupon enter judgment ac- cordingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence upon the trial ; and if the plaintiff fail to ol)tain a more favor- able judgment, he cannot recover costs, but must pay the de- fendant's costs from the time of the offer. Gold Coin or Currency Judgment.. In an action on a contract or obligation in writing, for the di- rect payment of money, made payable in a specified kind of money or currency, judgment for the plaintiff, whether it be by default or after verdict, may follow the contract or obligation^ and be made payable in the kind of money or currency specified therein; and in all actions for the recovery of money, if the plaintiff allege in his complaint that the same was understood and agreed by the respective parties to be payable in a specified kind of money or currency, and this fact is admitted by the de- fault of the defendant or established by evidence, the judgment for the plaintiff must be made payable in the kind of money or currency so alleged in the complaint ; and in an action against any person for the recovery of money received 1 such person in a fiduciary capacity, or to the use of another, judgment for the plaintiff must be made payable in the kiim of money or currency so received by such person. Judgment in Replevin. In an action to recover the possession of personal property ,^ judgment for the plaintiff may be for the possession or value thereof, in case a delivery cannot be had, and damages for the Chap. i:.l CALIFORNIA. 57 detention. If the property has been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the de- fendant may be for a return of the property, or the value there- of, in case a return cannot be had, and damages for taking and withholding the same. Judgment Lien. From the time the judgment is docketed it becomes a lien upon all the real property of the judgment debtor, not exempt from execution, in the county, owned by him at the time, or which he may afterwards acquire, until the lien ceases. The lien continues for two years, unless the enforcement of the judgment be stayed on appeal by execution of a sufficient un- dertaking, in which case the lien of the judgment ceases. [See elsewhere, how judgments in Justices' Courts are made a lieu on real property.] A transcript of the original docket, certified by the clerk, may be tiled with the recorder of any other county; and from the time of the filing the judgment becomes a lien upon all the real pro ^) arty of the judgment debtor, not exempt from execution, in such €Ounty, owned by him at the time, or which he may afterwards, and before the lien e\ ires, acquire. The lien con- tinues for two years. tor or ^ty, blue the Provisions in Justices' Courts. Judgment by default. If the defendant fail to appear and answer or demur at the time specified in the summons, then, upon proof of service of the summons, the following proceedings must be had : 1. If the action is based upon a contract, and is for the re- covery of money or damages only, the Court must reader judg- in favor of plaintiff for the sum specified in the summons. 2. In all other actions, the Court must hear the evidence of- fered by the plaintiff, and must render judgment for such a sum (not exceeding the amount stated in the summons) as appears by such evidence to be just. In the following cases the same proceedings must be had, and 58 OALIFORNU. [Part 3. judgment must be rendered in like manner, as if the defendant failed to appear and answer or demur: 1. If the complaint has beei; amended, and the defendant fails to answer it as amended, within the time allowed by the Court. 2. If the demurrer to the complaint is overruled, and the de- fendant fails to answer at once. 3. If the demurrer to the answer is sustained, and the de- fendant fails to amend the answer within the time allowed by the Court. Judgtnentg other than by default. Judgments upon confession may be entered up in any Jus- tice's Court specified in the confession. Judgment that the action be dismissed without prejudice to a new action, may be entered with costs in the following cases: 1. When the plaintiff voluntarily dismisses the action before it is finally submitted. 2. When he fails to appear at the time specified in the sum- mons, or at the time to which the action has been postponed, or within one hour thereafter. 3. When after a demurrer to the complaint has been sus- tained, the plaintiff fails to amend it within the time allowed by the Court. 4. When it is objected at the trial, and appears by the evi- dence, that the action is brought in the wrong county, or town- ship, or city; but if the objection is taken and overruled, it is cause only of reversal on appeal, and does not otherwise invali- date the judgment; if not taken at the trial, it is waived. When a trial by jury has been had, judgment must be entered by the justice, at once, in conformity with the verdict. When the trial is by the Coui't, judgment must be entered at the end of the trial. When the amount found due to either party exceeds the 8um for which the justice is authorized to enter judgment, such party may remit the excess, and judgment may be entered for the residue. If the defendant, at any time before the trial, offer in writing to allow judgment to be taken against hira for a specific sum, Chap. 12.] CALIFORNIA. 59 the plaintiff may immediately have judgment therefor, with the costs then accrued; but if he do not accept such offer before the trial, and fail to recover in the action a sum in excess of the offer, he cannot recover costs, but costs must be adjudged against him, and if he recover, be deducted from his recovery. The offer and failure to accept it cannot be given in evidence, nor affect the recovery otherwise than as to costs. The justice must tax and include in the judgment the costs allowed by law to the prevailing party. An abstract of the judgment may be filed and docketed in the office of the county clerk of the county in which the judgment was rendered, and must be docketed in the judgment docket of the County Court. A judgment rendered in a Justice's Court creates no lien upon any land of the defendant, unless an abstract of the judgment is filed and recorded in the office of the recorder of the county in which the lands are situated; when so filed and recorded, such a judgment is a lion upon the lands of the judgment debtor situated in that county. CHAPTER XII. red at um tity the ing im. EXECUTION— SALE AND REDEMPTION. The party in whose favor judgment is given may at any time, within five years after the entry thereof, have a writ of execu- tion issued for its enforcement — same in Justice Court actions, xhe execution may be made returnable at any time not less than ten nor more than sixty days after its receipt by the sheriff or constable. Executions may at the same time be issued to different coun- ties. In Justices' Courts, the justice before whom the action is brought may issue an execution directed to the sheriff or con- stable of the county in which judgment is obtained; when it is desired to issue execution directed to the sheriff of another 60 CALIFOBMIA. [Part 3. county, it is necessary to file an abstract of the judgment with the county clerk of the county within which the judgment is ob- tained, and have him issue tht execution. Notwithstanding the death of a party after the judgment, ex- ecution thereon may be issued, or it may be enforced as follows: 1. In the case of the death of the judgment creditor, upon the application of his executor «r administrator, or successor in interest. 2. In the case of the judgment debtor, if the judgment be for the recovery of real or personal property, or the enforcement of alien thereon. When any judgment has been rendered for or against the testa- tor or intestate in his lifetime, no execution shall issue thereon after his death, except as above provided. If execution is act- ually levied upon any property of the decedent before his death, the same may be sold for the satisfaction thereof; and the officer making the sale must account to the executor or administrator for any 8uri)lus in his hands. The following property is exempt from execution except upon a judgment recovered for its price, or upon a mortgage thereon: 1. Chairs, tables, desks and books, to the value of two hundred dollars. 2. Necessary household, table and kitchen furniture, including one sewing machine, stoves, stove-pipes and stove furniture, wearing apparel, beds, bedding and bedsteads, hanging pic- tures oil paintings and drawings drawn or painted by any mem- ber of the family, and family portraits, and their necessary frames, and provisions actually provided for individual or family use, sufficient *or three months, and three cows and their suck- ing calves, four hogs with their sucking pigs, and food for such cows and hogs for one month. 3. The farming utensils or implements of husbandry of the judgment debtor; also, two oxen or two horses, or two mules and their harness, one cart or wagon, a^d food for such oxen, horses, or mules for one month; also, all seed grain or vegetables actu- ally provided, reserved or on hand, for the purpose of planting or sowing at any time within the ensuing six months, not ex- ceeding in value the sum of two hundred dollars, and seventy- five bee-hivf s, and one horse and vehicle belonging to any per- Chap. 12. 1 CAUFORNIA. 61 the and •rses, actu- ting ; ex- enty- X>er- son who is maimed or cripple i, and the same is necessary in his business. 4. Tools or implements of a mechanic or artisan, necessary to carry on trade; the notarial seal and records and office furniture of a notary public; the instruments and chest of a surgeon, phy- sician, surveyor and dentist, necessary to the exercise of their profession, with their scientific and professional libraries and necessary office furniture; the professional libraries of attorneys, judges, ministers of the gosj)el, editors, school teachers and mu- sic teachers, and their necessary office fm-niture; also the mu- sical instruments of music teachers actually used by them in giving, instructions, and all the indexes, abstracts, books, papers, maps and office furniture of a searcher of recoi'ds necessary to be used in his profession. 5. The cabin or dwelling of a miner, not exceeding in value the sum of five hundred dollars; also his sluices, pipes, hose, windlass, derrick, cars, pumps, tools, implements and appliances necessary for carrying on any kind of mining operations, not ex- ceeding in value the aggregate sum of five hundred dollars; and two horses, mules or oxen, with their harness; and food for such horses, mules or oxen for one month, when necessary to be used in any whim, windlass, derrick, car, pump or hoisting gear, and also his mining claim actually worked by him, not exceeding in value one thousand dollars. 6. Two oxen, two horses or two mules, and their harness; one cart or wagon, one dray or truck, one coupee, one hack or car- riage for one or two horses, by the use of which a cartman, dray- man, truckman, huckster, peddler, hackman, teamster or other laborer habitually earns his living; and one horse, with vehicle and harness, or other equipments, used by a physician, surgeon, constable or minister of the gospel in the legitimate practice of his profession or business, with food for such oxen, horses or mules for one month. 7. Poultry, not exceeding in value twenty-five dollars. 8. The earnings of the judgment debtor for his personal ser- vices rendered at any time w'^hin thirty days next preceding the levy of execution or levy of attachment, when it appears by the debtor's affidavit or otherwise that such earnings are necessary 62 CALIFORNIA. [Part 3. for the use of his family residing in this State, supported wholly or in part by his labor; but where the debts are incurred by any such person, or his wife or family, for the common necessaries of life, the one half of such earnings above mentioned are, nev- ertheless, subject to execution, garnishment or attachment to satisfy debts so ineun-ed. 9. The shares held by a member of a homestead association duly incorporated, not exceeding in value one thousand dollars, if the person holding the shares is not the owner of a homestead under the law of this State; all the nautical instruments and wear- ing apparel of any master, officer or seaman of any steamer or other vessel. 10. All moneys, benefits, privileges or immunities accruing, or in any manner growing out of any life insurance on the life of the debtor, if the annual premiums paid do not exceed five hundred dollars. 11. All fire engines, hooks and ladders, with the carts, trucks and carriages, hose, buckets, implements, and apparatus thereto appertaining, and all furniture and uniform of any fire company or department organized under any law of this State. 12. AH arms, uniforms and accoutrements required by law to be kept by any person; and also one gun, to be selected by the debtor. 13. All court-houses, jails, public offices and buildings, lots, grounds and personal property, the fixtures, furniture, books, papers, and appurtenances belonging and pertaining to the court-house, jail, and public offices belonging to any county of this State; and all cemeteries, public squares, parks and places, public buildings, town halls, markets, buildings for the use of fire departments and military organizations, and [the lots and grounds thereto belonging and appertaining, owned or held by any town or incoi-porated city, or dedicated by such town or city to health, ornament, or public use, or for the use of any fire or militaiy company organized under the laws of this State. For exemption of homesteads, see "Homesteads." mmmimim m Chap. 12.1 CALIFORNIA. 68 NoTicR OF Sale. Before the sale of property on execution, notice thereof must be given as follows: [Same in Justice Court actions.] 1. In the case of perishable property: by posting written no- tice of the time and place of sale in three public places of the township or city where the sale is to take place, for such time as may be reasonable, consideiing the character and condition of the property. 2. Incase of other personal property: by posting a similar no*^ice in three public places in the township or city wher . the sale is to take place, for not less than five nor more than ten days. 3. In case of real property: by posting a similar notice par- ticularly describing the property, for twenty days, in three pub- lic places of the township or city where the property is situated, and also where the property is to be sold, and publishing a copy thereof once a week for the same period, in some newspaper published in the county, if there be one. Sale of Real Property — When Absolute or Not. Upon a sale of real propeity, the purchaser is substituted to and acquires all the right, title, and interest, and claim of the judgment debtor thereto; and when the estate is less than a leasehold of two years' unexpired term, the sale is absolute. In other cases the property is subject to redemption. Certificate of Sale op Real Estate, by The officer must give the purchaser a cei*tificate of sale, and a duplicate of such certificate must be filed by the officer in the office of the recorder of the county. By Whom Prophrty may be Redeemed, and When. Property sold, subject to redemption, as above provided, or any part sold separately, may be redeemed in the manner here- iimfter provided, by the following persons or their successors in interest: 64 OALIFOHNIA. [Pai-t 3. 1. The judgment debtor, or his succeasor in interest, in the whole or any part of the property. 2. A creditor, having a hen by judgment or mortgage on the property sold, or on some share or part thereof subsequent to that on which the property was sold. The judgment debtor or redemptioner may redeem the prop- erty from the purchaser any time within six months after the sale, on paying the purchaser the amount of the i)urcha8e, with two j)er cent, a month thereon in addition, up to the time of re- demption, together with the amount of any assessment or taxes which the purchaser may have paid thereon after the purchase, and interest on such amount; and if the purchaser be also a creditor, having a prior lien to that of the redemptioner, other than the judgment under which sucli purchase was made, the amount of such lien, with interest. If property be so redeemed by a redemptioner, another re- demptioner may, within sixty days after the last redemption, again redeem it from the last redemptioner, on paying the sum paid on such last redemption, with four per cent, thereon in addition, and the amount of any assessment or taxes which the last redemptioner may have paid thereon after the redemption by him with interest on such amount; and, in addition, the amount of any liens held by said last redemptioner prior to his own, with interest; but the judgment under which the property was sold need not be so paid as a lien. The property may be again, and as often as a redemptioner is so disjiosed, redeemed from any previous redemptioner within sixty days after the last redemption, on paying the sum paid on the last previous re- demption, with fou» per cent, thereon in addition, and the amount of any assessments or taxes which the last previous re- demptioner paid after the redemption by him, with interest thereon; and the amount of any liens, other than the judgment under which the property was sold, held by the last redemp- tioner previous to his own, with interest. Written notice of re- demption must be given to the sheriff, and a duplicate filed with the recorder of the county; and if any taxes or assessments are paid by the redemptioner, or if he has or acquires any lien other than that upon which the redemption was made, notice thereof must in like manner be given to the sheriff, and filed Hiiiiiiiiiiiii Chap. 12] CALIFOHNU. eft with the recorder; and if such notice be not filed, the property may be redeemed without paying such tax, assesHmeut, or lien, If no redemption be made within six mouths after the sale, the purchaser or his assignee is entitled to a conveyance,: or, if so redeemed, whenever sixty days have elapsed, and no other re- demption has been made, and notice thereof given, and the time f jr redemption has expired, the last redemptiouer or his assignee is entitled to a sheriff's deed; but in all cases the judg- ment debtor shall have the entire period of six months from the date of the sale to redeem the property. If the judgment debtor redeem, he must take the same payments as are required to effect a redemption by a redemptioner. If the debtor re- deem, the effect of the sale is terminated, and he is restored to his estate. Upon a redemption by the debtor, the person to whom the paymsnt is made must execute and deliver to him a certificate of redemption, acknowledged or proved before an officer authorized to take acknowledgments of conveyances of real property. Such certificate must be filed and recorded in the office of the recorder of the county in which the j^roperty is situated. Payment may be made to the purchaser or redemptioner, or for him, to the officer who made the sale. A redemptioner must produce to the officer or person from whom he seeks to redeem, and sene with his notice to the sheriff — 1. A copy of the docket of the judgment under which he claims the right to redeem, certified by the clerk of the Court, or of the couaty where the judgment is docketed; or if he re- deem upon a mortgage or other Jien, a note of the record there- of certified by the recorder. 2. A copy of any assignment necessary to establish his claims, verified by the affidavit of himself or of a subscribing witness thereto. 3. An affidavit by himself or his agent, showing the amount then actually due on the lien. Until the expiration of the time allowed for redemption, the Court may restrain the commission of waste on the property. The purchaser from the time of the sale until a redemption, n ' 66 CALIFORNU. [Part 3. and a redemptioner, frou. Ihe time of his redemption until ano- ther redemption, is entitled to receive from the tenant in pos- session the rents of the property sold, or the value of the use and occupation thereof. But when any rents or profits have been received by the judgment creditor or purchaser, or his or their assigns, from the propei-tv thus sold preceding such re- demption, the amounts of such ren s and profits shall be a credit upon the redemption money t( be paid. CHAPTER XIII. PROCEEDINGS SUPPLEMENTARY TO EXECUTION. 4\ When an execution against property of the judgment debtor, or any one of several debtors in the same judgment, isBiTed to the sheriff of the coi.nty where he resides, or if he do not reside in this State, to the sheriflf of tht county where the judgment roll is filed, is returned unsatisfied, m whole or in part, the judg- ment creditor, at any time after such return is made, is entitled to an order from the judge of the Court, or a county judge, re- quiring such judgment debtor to appear and answer concerning his property, before such judge, or u referee appointed by him, at a time and place specified in the ord^r; ]iut no judgment debtor must be required to attend before a judge or referee out of the county in which he resideH. After the issuing of an execution against property, and upon proof by afl&davit of a party or otherwise, to the satisfaction of the Court, or of a judge thereof, or county judge, that any judg- ment debtor has property which he unjustly reuses to apply to- wards the satisfaction of the judgment, such Court or juuj^e may, by an order, require the judgment debtor to appear at a specified time and place before Huch judge, or a referee appointed byhim^ to answri- concerning tUe same; and such proceedings may there- u-.^ Chap. 13.] CALIFORNIA. 67 fpon of idg- to- lifted iiin» liere- iipon be had for the application of the property of the judgment debtor toward the satisfaction of the judgment as are provided upon the return of an execution. Instead of the order requiring the attendance of the judgment debtor, the judge may, upon af- fidavit of the judgment creditor, his agent or attorney, if it appears to him that there is danger of the debtor absconding, order the sheriff to arrest the debtor and bring him before such judge. Upon being brought before the judge, he may be ordered to enter into .'in nndertikijig, with sufficient sdrety, that he will attend from time to time before the judge or referee, as may be directed, durinj,' the pendency of proceedings and until the final termination thei'oof , and will not in the meantime dispose of any portion of his }noperty, not exempt from execution. In default of enter- ing into such undertkaing he may be committed to prison. After the issuing of an execution against property, and be- 'oie its return, any person indebted to the judgment debtor may pay to the sheriff the amount of his debt, or so much thereof as may bo necessary to satisfy the execution ; and the sheriff's re- ceipt is a sufficiant discharge for the amount so paid. After the issuing or return of an execution against property of the judgment debtor, or of any one of several debtors in the same judgment, or upon proof, by affidavit or otherwise, to the satisfaction of the judge, that any person or corporation lias property of such judgment debtor, or is indebted to him in an amount exceeding fifty dollars, the judge may, by an order, re- quire such person or corporation, or any officer or member thereof, to appear at a specified time and place before him, or a referee appointed by hiin, and answer concerning the same. Witnesses may be required to appear and testify before the jud;.::e or referee. The judge or referee may order any property of L judgment debtor, not exempt from execution, in the hands of such debtor or any other person, or d\>e to the judgment debtor, to be applied towards the satisfaction of the judgment. If it appear that a person or corporation, alleged to have property of the judgment debtor, or to be indebted to him, claims an interest in the property adverse to him, or denies the debt, the Court or a judge may authorize, by an order made to that effect, the judgment creditor to institute an action against 68 CALIFORNIA. [Part 3. «uch person or corporation for the recovery of such interest or debt ; and the Court or judge may, by order, forbid a transfer or other disposition of such interest or debt, until an action can be commenced and prosecuted to judgment. If any person, party, or witness disobey an order of the ref- eree, proporly made, in proceedings before him, he may be pun- ished by the Court or judge ordering the reference, for a con- tempt. CHAPTER XIV. COSTS. I The general rule is, that judgment carries costs. When, in an action for the recovery of money only, the de- fendant alleges in his answer that before the commencement of the action he tendered to the plaintiff the full amount to which he was entitled, and thereupon deposits in Court for the plaintiff the amount so tendered, and the allegation be found to be true, the plaintiff cannot recover costs, but must pay costs to the de- fendant. When several actions are brought on one bond, undertaking, promissory note, bill of exchange, or other instrument in writ- ing, cr in any other case for the same cause of action, against several parties who might have been joined as defendants in the same action , no costs can be allowed to the plaintiff in more than one of such actions, which may be at his election, if the i)artie8 proceeded against in the other actions were, at the commencement of the previous action, openly within this State ; but the dis- bursements of the plaintiff must bo allowed to him in each ac- tion. I Chap. 14. CALIFORNIA. 69 SECURinr FOR Costs. When the plaintiff in an action resides out of the State, or is & foreign corporation, security for the costs and charges, which may be awarded against such plaintiff, may be required by the defendant, When required, all proceedings in the action must be stayed until an undertaking, executed by two or more per- sons, is filed with the clerk, to the effect that they will pay such costs and charges as may be awarded against the plaintiff by judgment, or in the progress of the action, not exceeding the sum of three hundred dollars. A new or additional undertaking may be ordered by the Court or judge, upon proof that the original undertaking is insuficient security, and proceedings in the action stayed until such new or additional undertaking is executed and filed. If such security is not given by the plaintiff within thirty days after notice that security is required, the Court or judge may order the action dismissed. CHAPTER XV. APPEALS IN CIVIL ACTIONS. Iking, writ- rainst in the lethan Inrties lenient le diB- k,ch ac- Appeals in General. Within what time appeals inay be taken : 1. From a final judgment iu an action or special proceeding commenced in the Ci?urt in which the same is rendered, within one year after the entry of jurgment. But an exception to the decision or verdict, on the ground that it is not supported by the evidence, cannot be reviewed on an appeal from the judg- ment, unless the appeal is taken within sixty days after the ren- dition of the judgment. i : 70 CALIFORKIA, Part 3. 2. From a judgment rendered on an appeal from an inferior Court, within ninety days after the entry of such judgment. 3. From an order granting or refusing a new trial ; from an order granting or dissolving an injunction ; from an order re- fusing to grant or dissolve an injunction ; from an order dissolv- ing or refusing to dissolve an attachment ; from an order grant- ing or refusing to grant a change of the place of trial ; from any special order made after the final judgment, and from an in- terlocutory judgment in actions for partition of real pn)perty^ within sixty days aftel* the order or interlocutory judgment ib. made and entered in the minutes of the Court, or filed with the clerk. An appeal is taken by filing with the clerk of the Court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party or his attorney. The order of service is immateiial, but the appeal is ineffectual for any purpose unless within five days after service of the notice of appeal, an undertaking be filed, or a deposit of money be made with the clerk, as hereinafter provided, or the under- taking be waived by the adverse party in writing. The undertaking on appeal must be in writing, and must be executed on the part of the appellant by at least two sureties, to the effect that the appellant will pay all damages and costs which may be awarded against him on the appeal, or on a dif- missal thereof, not exceeding three hundred dollars ; or that sum must be deposited with the clerk with whom the judgment or order was entered, to abide the event of the appeal. If the appeal be from a judgment or order directing the payment of money, it does not stay the execution of the judgment or or- der, unless a written undertaking be executed on the part of the appellant, by two or more sureties, to the effect that they are bound in double the amount named in the judgment or order, that if the judgment or order appealed from, or any part there- of, be afl&rmedj or the appeal be dismissed, the appellant will pay the amount directed to be paid by the judgment or order, or the part of such amount as to which the judgment or order is affirmed, if affirmed only in part, and all damages and oostii rt3. Chap. 15.] CALIFORNIA. 7i enor m an Br re- 38olv- rrant- from an in- perty» lent ib- ith the )urt in , notice hereof, torney. ffectual I of the I money under- raust be eties, to id costs >n a dit - or that [idgnient Ipayment Int or or- Irtof the they are )r order, Lrt there- llant will |or order, order is md costH. •which may be awarded against the appellant upon the appeal ; and that if the appellant does not make such payment within thirty days after the filing of the remittitur from the Supreme Court, in the Court from which the appeal is taken, judgment may be entered on motion of the respondent in his favor against the sureties, for such amouni, together with the interest that may be due thereon, and the damages and costs which may be awarded against the appellant upon the appeal. If the judg- ment or order appealed from be for a greater amount than two thousand dollars, and the sureties do not state in their affidavits of justification accompanying the undertaking, that they are each worth the sum specified in the undertaking ; the stipulation may be that the judgment to be entered against the sureties shall be for such amounts only as in their affidavits they may state that they are severally worth, and judgment may be en- tered against the sureties by the Court from which the appeal is taken, pursuant to the stipulations therein designated. When the judgment, or order, appealed from is made payable in a specified kind of money or currency, the judgment entered against the sureties upon the undertaking, must be made paya- ble in the same kind of money or currency. When an appeal is perfected, it stays all further proceedings in the Court below, upon the judgment or order appealed from, or upon the matters embraced therein, and releases from levy property which has been levied upon under execution issued upon such judgment. The adverse party may except to the sufficiency of the sureties to the undertakings on appeal. The foregoing provisions in regard to appeals do not apply to appeals to the County Court, from Justices' or Police Courts. Appeals from District Courts. An appeal may be taken to the Supreme Court from the Dis- trict Courts in the following cases : 1. From a final judgment entered in an action or special proceeding commenced in those Courts, or brought into those Courts from other Courts. 2. From an order granting or refusing a new trial ; from an 72 CALIFORNIA. Parts. order granting or dissolving an injunction ; from an order refus- ing to grant or dissolve an injunction ; from an order dissolving or refusing to dissolve, an attachment ; from an order changing or refusing to change, the place of trial ; from any special order made after final judgment, and from such interlocutory judg- ment in actions for partition as determines the rights and inter- ests of the respectictive parties, and directs partition to be made. Appeals from County Couuts. Afi appeal may be taken to the Supreme Court from the. County Courts in the following cases : 1. From a final judgment in an action of forcible entry and detainer ; in an action to prevent or abate a nuisance ; in a pro- ceeding in insolvency ; and in any special cases and proceed- ings ; and in cases which involve the legality of any tax, impost, assessment, toll, or municipal fine, or in which the demand, ex- clusive of interest, or the value of the property in controversy^ amounts to three hundred dollars. 2. From an order granting or refusing a new trial in the cases herein designated, and from any special order made after final judgment in such cases. Appeals from Probate Courts. An appeal may be taken to the Supreme Court from a judg- ment or orvTior of the Probate Court as follows : 1. Granting, or refusing, or revoking letters testamentary, or of administration, or of guardianship. 2. Admitting, or refusing to admit, a will to probate. 3. Against or in favor of the validity of a will, or revoking^ the probate thereof. 4. Against or in favor of setting apart property, or making, an allowance for a widow or child. 5. Against or in favor of directing the partition sale, or con- veyance of real property. 6. Settling an account of an executor, or administrator, or guardian. •niTvali mnH I H »IIIHIII U(i liwi|| itn Chap. 15. J OALIFORNU. 78 7. Refusing, allowing, or directing the distribution or parti- tion of an estate, or any part thereof, or the payment of a debt, claim, legacy, or distributive share. 8. Granting or overruling a motion for a new trial. 9. Confirming or refusing to confirm a report of an appraiser setting apart the homestead. Appeals from Justiobs' or Police Courts. Any party dissatisfied with a judgment rendered in a civil ac- tion in a Police or Justices' Court may appeal therefrom to the County Court of the county, at any time within thirty days after the rendition of the judgment. Parties appealing on questions of law alone, must prepare a statement for the justice or judge. When the appeal is taken on questions of fact, or questions of both law and fact, no statement need be made, but the action must be tried anew in the County Court. An appeal from a Justice's or Police Court is not effectual for any purpose, unless an undertaking be filed, with two or more sureties, in the sum of one hundred dollars, for the payment of the costs on the appeal ; or if a stay of the proceedings be claimed, in a sum equal to twice the amount of the judgment, including costs, when the judgment is for the payment of money ; or twice the value of the property, including costs, when the judg- ment is for the recovery of specific personal property ; and must be conditioned, when the action is for the recovery of money, that the appellant will pay the amount of the judgment ap- pealed from, and all costs, if the appeal be withdrawn or dis- missed, or the amount of any judgment and all costs that may be recovered against him in the County Court. When the ac- tion is foi the recovery of specific personal property, the iinder- taking must be conditioned that the appellant will pay the judgment and costs appealed from, and obey the order of the Court made therein, if the appeal be withdrawn or dismissed, or any judgment and costs that may be recovered against him in said action in the County Court, and will obey any order made by the Court therein. A deposit of the amount of the judg- ment, including all costs, appealed from, or of the value of the property, including all costs, in actions for the recovery of 74 OALIFOBNU. Part 8. specific personal property, with the justice or judge, is equiva- lent to the filing of the undertaking. The adverse party may except to the sufficiency of the sureties within five days after the filing of the undertaking, and unless they or other sureties jus- tify before the justice or judge before whom the appeal is taken, within five days thereafter, upon notice to the adverse party, to the amounts stated in their affidavits, the appeal must be re- garded as if no such undertaking had been given. On filing the above undertaking, execution must be stayed. For a failure to prosecute an appeal, or unnecessary delay in bringing it to a hearing, the County Court, after notice, may or- der the appeal to be dismissed. CHAPTER XVI. NEW TRIALS. A new trial may be granted for any of the following causes, materially affecting the substantial rights of the party aggrieved. 1. Irregularity in the proceedings of the Court, jury, or ad- verse party, or any order of the Court, or abuse of discretion, by which either party was prevented from having a fair trial. 2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or 8;iecial verdict, or to finding on any question submitted to them by the Court, by a resort to the determination of chance, such mincon- duct may be proved by the affidavit of any one of the jurors. 3. Accident or surprise, which ordinary prudence could not have guarded against. 4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial. , v^v ^^/: Chap. 16.] CALIFOBNU. 75 5. Excessive damages, appearing to have been given jinder the influence of passion or prejudice. '//;,, 6. Insufficiency of the evidence to justify the verdict or otheiK;;y. decision, or that it is against law. \ 7. Error in law occurring at the trial and excepted to by the party making the application. The party intending to move for a new trial must, within ten days after the verdict, if the action were tried by a jury, or after notice of the decision of the Court or referee, if the action were tried without a jury, file with the Clerk and serve upon the ad- verse party a notice of his intention, designating the ground upon which the motion will be made. CHAPTER XVII. ESTATES OF DECEi^SED PERSONS. je, Order of persons entitled to administer : 1. The surviving husband or wife, or some competent person vrhom he or she may request to have appointed. 2. The children. 3. The father or mother. 4. The brothers. 5 . The sisters. 6. The grandchildren. 7. The next of kin entitled to share in the distribution of the estate. 8. The Public Administrator. 9. The creditors. 10. Any person legally competent. Administration may in the discretion of the Court be granted to one or more competent persons, although not entitled to the same, at the wiitten request of the person entitled, filed in the Court. I III 76 CALIFORNU. [Part 3. No person is competent or entitled to serve as administrator who is — Ist. Under the age of majority. 2d. Not a bona fide resident of the State. 3d. Convicted of an infamous crime. 4th. Adjudged by the Court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity. If the deceased was a member of a partnership at the time of his decease, the surviving partner must in no case be appointed administrator of his estate. A man'ied woman must not be appointed administratrix. Letters of administration must be granted to any apphcant, though it appears that there are other persons having better rights to the administration, when such persons fail to appear and claim the issuing of letters to themselves. The administrator must give bonds, with two or more sufficient sureties, to be approved by the probate judge, the penalty to be not less than twice the value of the personal property, and twice the probable value of the annual rents, pro Jits, and issues of the real property; additional bonds may be required, when a sale of real estate is ordered. When a person dies leaving a widow or minor children, until letters are granted and the inventory is returned, they are en- titled to remain in possession^of the homestead, of the wearing apparel of the family, and of all the household furniture of the decedent, and are also entitled to a reasonable provision for their support, to be allowed by the probate judge. The Court or probate judge may set apart for the use of the surviving husband or wife, or the minor children of the deced- ent, all property exempt from execution, including tlie home- stead selected, designated and recorded. If no homestead has been selected, designated and recorded, the judge or the Court must select, designate, set apart and cause to be recorded, a homestead for the use of the persons before named. If the amount set apart be insufficient for the suppoi't of the widow and children, or either, the Probate Court or judge must make such reasonable allowance out of the estate as shall be . Chap. 17. CALIFORNIA. 77 necessary for the maintenance of the family, according to their circuraHtancea, during the progress of the settlement of the estate; which, in case of an insolvent estate, must not be Umger than one year after granting of letters. If on the return of the inventory of the estate of an intestate, it appears that the value of the whole estate does not exceed the sum of fifteen hundred dollars, it must be assigned for the use of the widow and minor child or children, after payment of the expenses of his last illness, funeral charges, and the expenses of the administration. If it appear that the value of the whole estate does not exceed the sum of three thousand dollars, there u ly be a summary ad- ministration of the estate, and an order of distrihntiou at the end of six months after the issuing of letters. Claims against the estate must be presented to the executor or administrator within the time specified in the notice to creditors, requesting them to present their claiiiis; when the value of the estate exceeds ten thousand dollars, the time expressed in the notice must be ten months: when it does not exceed ten thou- sand dollars, four months. If a. claim be not presented within the time limited in the notice, it is barred forever; except where it is made to appear, by the affidavit of the claimant, to the sat- isfaction of the executor or administrator; and the probate judge, that the claimant had no notice, by reason of being out of the State, it may be presented at any time before a decree of dis tribution is entered, A claim for a deficiency remaining unpaid after a sale of property of the estate, mortgaged or pledged, must be presented within one month after such deficiency is as- certained. Every claim which is due when presented to the administrator must be supported by the affidavit of the claimant, or some one in his behalf, that the amount is justly due, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowledge of the claimant or affi- ant. If the claim be not due when presented, or be contingent^ the particulars of such claim must be stated. When the affi- davit is made by a person other than the claimant, he must set forth in the affidavit the reason why it is not made by the claim- 78 CALIFORNIA. [Part 3. «nt. The oath may be taken by any officer authorized to admin- ister oaths. The executor or administrator may also require satisfactory vouchers or proofs to be produced in support of the claim. If the estate be insolvent, no greater rate of interest shall be allowed upon any claim, after the first publication of notice to creditors, than seven per cent. When a claim, accompanied by the affidavit required as afore- said, is presented to the executor or administrator, he must endorse thereon his allowance or rejection, with the day and date thereof. If he allows the claim, it must be presented to the pro- bate judge for his appoval, who must in the same manner, en- dorse upon it his allowance or rejection. If the executor, or ad- iuinistrator, or judge, refuse or neglect to endorse such allc ice or rejection, for ten days after the claim has been preseni him, such refusal or neglect is equivalent to a rejection on the ■*. day; and if the presentation be made by a notary, the certificate of such notary, under seal, is prima facie evidence of such pre- sentation and rejection. If the claim be presented to the execu- tor or administrator before the expiration of the time limited for the presentation of claims, the same is presented in time, though acted upon by the executor or administfiator, and by the judge, after the expiration of such time. If the claim be payable in a particular kind of money or currency, it shall, if al- lowed, be payable only in such money or currency. Every claim allowed by the executor or administrator, and ap- proved by the probate judge, or a copy thereof, must, within thirty days thereafter, be filed in the Probate C< rt leave issue, the whole estate goes to such issue ; and if such issue consists of more than one child living, or one child living, and tlie lawful issue of one or more deceased children, then the estate goes i i equal shares to the children living, or to the child living, hu»i the issue of the deceased child or children by right of representiition. 2. If the decedent leave no issue the estate goes in equal shares to the surviving husband or wife, and to the decedent's father. If there be no father, then one-half goes in equal shares to the brothers and sisters of the decedent, and to t he children of any deceased brother or sister, by right ot represen- tation ; if he leave a mother also, she takes an equal share with the brothers and sisters. If the decedent leave no issue, nor husband nor wife, the estate must go to his father. 3. If there be no issue, nor husband, nor wife, nor fatlier, then in equal shares to the brothers and sisters of thd decedent, and to the children of any deceased brother or sister, by right of represent ition ; if a mother survive, she takes an equal Hhare with the brothers and siste l-s. 4. If tlie decedent leave no issue, nor husband, nor wife, nor father, and no brother nor sister is living at the time of his death, the estate goes to his mother, to the exclusion of the is- sue, if any, of deceased brothers or sisters. 5. If the decedent leave a tiurviving husband or wife, and no issue, and no father, nor mother, nor brother, nor sister, the whole estate goes to tlie surviving husband. 6. If the decedent leave no issue, nor husband, nor wife, flnd no father, nor mother, nor brother,, nor sister, the estate must go to the next of kin, in e(jual degree, exce|jting that when there are two or more collateral kindred in ^^ciual degree, but claiming through different ancestor 'li«>m- who claimed through the nearest ancestors .iiu^t b<' pn .■ id Uj those claim- ing through an ancestor mor(> remote ; however, 7. If the decedent leave several childi'<'n, */r om- child and the issue of one or more children, and nny ttwh numbing child 82 CALIFORNIA. [Part 3. dies under age, and not having been married, all the estate that came to the deceased child by iaheritance from such decedent descends in equal shares to the other children of the same parent, and to the issue of any such other children who are dead, by right of representation. 8. If, at the death of such child, who dies \inder age, not having been manied, all the other children of his parents are also dead, and any of them have left issue, the estate that came to such child, by inheritance from his parent, descends to the issue of all other (rhildren of the same parent ; and if all the is- sue are in the same degree of kindred to the child, they share the estate equally, otherwise they take according to the right of representation. *,). If the decedent leave no husband, wife, or kindred, the estate escheats to the State for the support of common schools. The above provisions, as to the inheritance of the husband and wife from each other, apply only to the separate property of the decedents. Upon the deatli of the wife, the entire (iommanity property, without administration, belongs to the 8«urviving husl)an(l, ex- cept such portion thereof as may Iiave been set apart to her by judicial decree, for her support and maintenan<;e, which portion is subject to her testamentary disposition, and in the absence of such disposition goes to her descendants or heirs, exclusive of her husband. Upon the death of the husband, one-half of the community property goes to the surviving wife, and the other half is subject to the testamentary disposition of tlio husband, and in the ab- sence of such disposition goes to his descendants, ecpially, if such descendants are in the same degree of kindre, Such liens are preferred to any lieu, mortgage or other incum- brance which may have attached subsequent to the time when the building, improvement or structure was commenced, work done, or materials were commenced to be furnished ; also, to any lien, mortgage or other incumbrance, of which the lien- holdor had no notice, and which was unrecorded at the time the building, improvement or structure was commenced, work done, or the materials were commenced to be furnished. Eveiy original contractor, within sixty days after the comple- tion of hiw contract, and every person, save the original con- tractor, claiming the benefit of this chapter, must, within thirty days after the completion of any building, improvement or structure, or after the completion of the alteration or repair thereof, or the perforniauee of any labor in ;i mining claim, rile for record with the irounty recorder of the (iouut}' in which such pro[)erty, or some part thereof, is situated, a claim containing a statement of his demand, after deducting all just credits and offsets, with the name of the owner or reputed owner, if known, and also the name of the person by whom lie was employed, or to whom he furnished the materials, with a statement of the terms, time given, and conditions of his contract, and also a de- scription of the property to be charged witli the lien, sufficieat for identification, which claim must be verified hy the oath i>! himself or of some otlier person. The lien does not bind any building, mining claim, improve- ment or structure, for a longer period than ninety davH after tlie same has been riled, uuIchh proceedings bo commenceil in a proper Court within that time to enforce tlie same ; or if a credit be given, then ninety days after the expiration of such credit ; but no lien ctuitinues in force for a longer time than two years from the time the work is coni\deted, by any agreement to give credit. In evi>vy cas(> in w hich ditlerent Y\v\\» are asserted against any pro|>erty, the ('(»urt in the judgnuMit must ileciare the rank at" ea* li lien or class of liens, which shall be in the following order, vi/. : First, All persons other than the original coutrnclors and sub-contractors. Second, The sub-contractors, Third, The original contractors. And the proceeds of the sale of the prop- erty Miust be applied to each lien or class of liens in the order of mamm 86 CALIFORNIA. [Part, 3. m I its rank ; and whenever, on the sale of the property subject to the lien, there is a deficiency of proceeds, judgment may be docketed for the deficiency. Any number of persons claiming liens may join in the same action, and when separate actions are commenced, the Court may consolidate them. The Court may also allow as part of the costs, the moneys paid for filing and recording the lien, and reasonable attorney's fees in the District and Supreme Courts. Whenever materials shall have been furnished for use in the construction, alteration, oi' re})air of any building or other im- provement, such materials shall not be subject to attachment, execution, or other- legal process, to enforce any debt due by the purchaser of such materials, except a debt due for the pur- chase money thereof, so long as in good faith tlie same are about to be applied to the construction, alteration, or repair of such building, mining claim, or other improvement. In a judgment enforcing a mechanic's lien, a personal judg- ment cannot be rendered against those defendants against whom no personal claim is established. CHAPTER XX. LIENS FOR SALARIES AND WAGES AND OTHER LIENS. In all assignments of property, made by any person to trustees or assignees, on account of the inability of the person, at the time of the assignment, to pay his debts, or in proceedings in insolvency, the wages of the miners, mechanics, salesmen, ser- vants, ( lerks or laborers employed by such person, to the amount of one hundred dollars each, and for services rendered within sixty days previously, arc preferred claims, and must be paid by such trustees or assignees before any other creditor or creditors of the assignor. MMMl Chap. 20.1 CALIFORNIA. 87 ENS. In case of the death of any employer, the wages of each miner, mechanic, salesman, clerk, servant and laborer, for services ren- dered within the sixty days next precaeding the death of the employer, not exceeding one hundred dollars, rank in priority next after the funeral expenses, expenses of the last sickness, the charges and expenses of administering upon the estate, and the allowance to the widow and infant children, anchnust he paid before other claims against the estate of the deceased person. In cases of execution, attachments, and writs of a similar na- ture, issued against any person, except for claims for labor done, any miners, mechanics, salesmen, servants, clerks and laborers, who have claims against the defendant for labor done, may give notice of their claims and the amount thereof, sworn to by the person making the claim, to' the creditor and the officer execut- ing either of such writs, at any time before the actual sale of the projierty levied upon; and unless such claim is disjjuted by the debtor or a creditor, such officer must pay to such person, out of the proceeds of the sale, the amount each is entitled to receive for such services rendered within the sixty days next ])reccding the levy of the writ, not exceeding one hundred dollars. If any or all of the claims so presented, and claiming preference, are disputed by either the debtor or a creditor, the person presenting the same must commence an action within ten days for the re- coveiy thereof, and must prosecute his jiction with due diligence, or be forever barred from any claim of pri(jrity of j)ayment thereof; and the officer shall retain possession of so much of the proceeds of the sale as may be necessary to satisfy such claim, until the determination of suclv action; and in case judgment be hud fcr the claim, or anj' part thereof, carrying costs, the costs taxal)le therein shall likewise be a preferred claim, with the sanje rank as the oriufinal claim. igs in ser- uouut ithin aid by editors Other Liens. One who sells pei-sonal ])ropeity, has a special lien thereon, dei)onclent on possession, for its price, if in his posession, when the price becomes payable. Every person who, while lawfully in possession of an arti- cle of personal projierty, renders any 8en'i''e to the owner 88 CALIFORNIA. [Part 3. thereof by labor or skill employed for the iirotection, improve- ment safekeeping, or carriage thereof, has a special lien there- on, dependent on possession for the compensation, if any, which is due to him from the owner for such service; and livery or boarding or feed-stable proijrietors, and persons pasturing horses and stock, have liens dependent on posession for their compensation in caring for, boarding, or pasturing such horses or stock. Any person who makes, alters, or repairs any article of per- sonal property, at the request of the owner or legal possessor of the property, has a lien on the same for his reasonable charges for work done and materials furnished, and may retain possession of the same until the charges are paid. A factor has a general lien, dependent on possession, for all that is due to him as such, upon all articles at commercial value that are intrusted to him by the same principal. A banker has a general lien, dependent on possession, upon all propei*ty in his hands belonging to a customer, for the bal- ance due to him from such customer in the course of the busi- ness. Hotel men, boarding-house and lodging-house keepers, have a lien on baggage and other property of their guests, depend- ent on possession, for board, lodging, and room rent. CHAPTER XXI. ARBITKATIONS. Persons capable of contracting may submit to arbitration any controversy which might be the subject of a civil action l)e- tween them, except a question of title to real property in fee or for life. The submission to arbitration must be in writing, and may Ije made to one or more persons. Chap. 22. J CALIFORNIA. CHAPTER XXII. HOMESTEADS. any be- The homestead consists of the dwelling-house in which the claimant resides, and the land on which the same is situated, selected as hereinafter provided. It may be used as a place of business, but actual residence is essential. Homesteads may be selected and claimed : 1. Not exceeding five thousand dollars in value, by any head of a family. • 2. Not e.\ceeding one thousand dollars in value by any other person. The phrase " head of a family," includes within its meaning: 1. The husband, when the claimant is a married person. 2. Every peVson who has residing on the premises with him or her, and under his or her care and maintenance, either: (1.) His or her minor child, or the minor child of his or her deceased wife or husband. (2.) A minor brother or sister, or the minor child of a de- ceased brother or sister. (3.) A father, mother, grandfather, or gi'andmother. (4.) The father, mother, grandfather, or grandmother of a de- ceased husband or wife. (5.) An unmarried sister, or any other of the relatives men- tioned who have attained the age of majority, and are unable to support themselves. The declaration of homestead must be executed, acknow- ledged, and duly recorded in the office of the recorder of the county in which the land is situated. From and after the time the declaration is filed for record, the premises therein described constitute a homestead. The homestead is exempt from execution or forced sale, ex- eept in satisfaction of judgments obtained : M IK) CALIFORNIA. [Part 3. 1. Before the declaration of bomeBtead was filed for record, and which constitute liens upon the premises. 2. On debts secured by mechanics', laborers' or vendors' liens upon the premises. 3. On debts secured by mortgages upon the premises, exe- cuted and acknowledged by the husband and wife, or an un- married claimant. 4. On debts secured by mortgages upon the premises, exe- cuted nnd recorded before the declaration of homestead was filed for record. The homestead of a manned person cannot be conveyed or incumbered, unless the instrument is executed and acknow- ledged by both husband and wife. If the homestead exceed in value the amount of the hojuc- stead exemption, the excess may be reaehed on execution, but the property must first be appraised, upon application to the county judge. The homestead may be abanioned by filing in the oflice where the declaration is filed a declaration of abandonment, duly ex- ecuted. CHAPTER XXIII. CORPORATIONS. ' ■■ Corjiorations are either public or private. Public corjiora- tions are formed or organized for the government of a portion of the State; all other corjiorations are private. Private corporations may be formed by the voluntary asso- ciation of any five or more persons. A majority of such per- sons must be residents of this State. They may be formed for any purpose for which individuals may lawfully associate them- selves. • • ' ^: J ., 5 ..C The owners of sliares in a corporation whicli has a capital stock are called stockholders. If a corporation has no capital stock, the corporatoi's and their successors are called members. Chap. 23. J OAUFOBNU. 91 rii- (>U or itnl ital Each stockholder of a corj)oration is individually and pt^rsonally liable for such portions of its debts and liabilities as the amount of stock or shares owned by him boars to the whole of the sub- scribed capital stock or shares of the corporation, and for a like proportion only of each debt or claim against the corporation. Any creditor of the corporation may institute joint or seveml actions against any of its stockholders, for the ])ropoi*tion of his claim payable by each, and in such action the Court must ascer- tain the proportion of the claim or debt for which each defen- dant is liable, and a several judgment must be rendered against each, in conformity therewith. If any stockholder pays his proportion of any debt due from the corporation, incmrred while he was s^ch stockholder, lie is relieved from any further j^ersoual liability for such debt, and if an action has been brought against him ui)on such debt, it shall be dismissed, as to him, upon his paying the costs, or such proportion thereof as may be properly chargeable against him. The liability of each stockholder is determined by the amount of stock or shares owned by him at the time the debt or liability was incurred; and such liability is not released by any subso(iueut transfer of stock. The term stockholder, as used in this section, shall ap- ply not only to such persons as appear by the books of the cor- poration to be such, but also to cverj' equital)le owner of stock, although the same appear on the books in the name of another, and also, to every person who has advanced the installments or purchase-money of stock in the name of a minor, so long as the latter remains a minor, and also, to every guardian, or other trustee, who voluntarily invests any trust funds in the stock. Trust funds in the hands of a guardian, or trustee, shall not be liable under the provisions of this section, by reason of any such iiivestment, nor shall the person for whose benefit the in- vestment is made be responsible in respect to the stock until he becomes competent and able to control the same, but the re- sponsibility of the guardian or trustee making the investment shall continue until that i)eriod. Stock held as collateral secu- rity, or by a trustee, or in any other representative capacity, does not make the holder thereof a stockholder within the meaning of this section, except in the cases above mentioned, so as to charge him with any proportioii of the debts or liabili- % IMAGE EVALUATION TEST TARGET (MTO) 1.0 I.I ■^ 1^ 1112.2 1^ m III 2.0 1.8 1.25 1.4 1.6 = == — . ^ 6" ► V V Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 873-4503 \ ^^ <^ SJ \\ k ». ^ O •V ^ 4rj \ ^ O^ < 92 CALIFORNIA. [Part 3. ties of the corporation ; but the pledgor, or person, or estate represented, is to be deemed the stockholder, as respects such liability. In corporations having no capital stock, each mem- der is individually and personally liable for his proportion of its debts and liabilities, and similar actions may be brought against him, either alone or jointly with other members, to enfarce such liability, as by this section may be brought against one or more stockholdei's, and similar judgments may be rendered. The liability of each stockholder of a corporation formed under the laws of any other State or Territory of the United States, or of any foreign country, and doing business within this State, shall be the same as the liability of a stockholder of a corporation created under the constitution and laws of this State. CHAPTER XXIV. MODE OF TAKING TESTIMONY OF WITNESSES. The testimony of witnesses is taken in three modes, viz : 1. By affidavit. 2. By deposition. 3. By oral examination. An affidavit is a written declaration, under oath, made with- out notice to the adverse party. A deposition is a written declaration, under oath, made upon notice to the adverse party, for the purpose of enabling hi'n to attend and cross-examine. An oral examination is an examination in presence of the jury or tribunal which is to decide the fact, or act upon it ; the testi- mony being heard by the jury or tribunal from the lips of the witness. Depositions must be taken in the form of question and answer, and the words of the witness must be written down, unless the parties agree to a diflferent mode. KM m* Chap. 24. J OALIFOBNIA. 93 e •> Affidavits are used to verify pleadings, or to prove service of papers, and sach like. Testimony of witnesses out of this State may be taken by de- position, at any time after service of summons, or the appear- ance of the defendant. Testimony of witnesses in this State may be taken by deposi- tion, in any action, at any time after the service of the summons, or the appearance of the defendant, in the following cases : 1. When the witness is a party to the action or proceeding, or an officer, or member of a corporation which is a party to the action or proceeding, or a person for whose immediate benefit the action or proceeding is prosecuted or defended, 2. When the witness resides out of the county in which the testimonv is to be used. 3. When a witness is about to leave the county where the ac- tion is to be tried, and will probably continue absent when the testimony is required. 4. When the witness, otherwise liable to attend the trial, is nevertheless too infirm to attend. 5. When the testimony is required upon a motion, or ia any other case where the oral examination of the witness is not re- quired. 6. When the witness is the only one who can establish facts, or a fact material to the issue — provided, that the deposition of such witness shall not be used if his presence can be procured at the time of the trial of the cause. The deposition of a witness out of this State may be taken upon commission issued from the Court, under the seal of the Court, upon an order of the judge or Court, or county judge, on the application of either party, upon five days previous notice to the other. If issued to any place within the United States, it may be directed to a person agreed upon by the parties ; or if they do not agree, to any judge or justice of the peace, or com- missioner, selected by the officer issuing it. If issued to any country out of the United States, it may be directed to a minis- ter, embassador, consul, vice-consul, or consular agent of the United States, in such country, r to any person agreed upon by the parties. 94 CALIFORNIA.. [Part 3. The deposition of a witness in this State may be taken by either party before a judge or officer authorized to administer oaths, on serving upon the adverse party previous notice of the time and place of examination, together with a copy of an affidavit, show- ing that it is a case wherein deposition may be used. Such no- tice must be at least five days, adding also one day for everj- twenty-five miles of the distance of the place of examination from the residence of the person to whom the notice is given, unless, for a cause shown, a judge, by order, prescribe a shorter time. When a shorter time is prescribed, a copy of the order must be served with the notice. CHAPTER XXV. JUDICIAL RECORDS, HOW PROVED. A judicial record is the record or official entry of the preceed- ings in a Court of justice, or of the official act of a judicial offi- cer, in an action or special proceeding. A judicial record of this State, or of the United States, may be proved by the production of the original, or of a copy there- of certified by the clerk or other person having the legal custody thereof. That of a sister State may be proved by the attestation of the clerk and the seal of the Court annexed, if there be a clerk and seal, together with a certificate of the chief judge or presiding magistrat' , that the attestatioi is in due form. A judicial record of a foreign country may be proved by the attestation of the clerk, vsdth the seal of the Court annexed, if there be a clerk and seal, or of the legal keeper of the record, with the seal of his office annexed, if there be a seal, together with a certificate of the chief judge or presiding magistrate, that the person makmg the attestation is the clerk of the Court or the legal keeper of the record ; and in either case, that the sig- nature of such person is genuine, and that the attestation is in Chap. 25.] CALIFORNIA. 95 due form. The signature of the chief judge or presiding mag- istrate must be authenticated by the certificate of the minister or embassador, or a consul, vice-coii'^''l, or consular agent of the United States in such foreign country. A copy of the judicial record of a foreign country is also ad- missible in evidence, upon proof : 1. That the copy oflfered has been compared by the witness with the original, and is an exact transcrii)t of the whole of it ; 2. That such original was in the custody of the clerk of the Court or other legal keeper of the same ; and, 3. That the copy is duly attested by a seal which is proved to be the seal of the Court where the record remains, if it be the record of a Court ; or if there be no such seal, or if it be not a record of a Court, by the signature of the legal keeper of the original. CHAPTER XXVI. ACKNOWLEDGMENTS. The proof or acknowledgment of an instrument may be made at any place within this State, before a justice or clerk of the Supreme Court. The proof or acknowledgment of an instrument may be made iii this State within the city, county or district for which the officer was elected or appointed, before either : 1. A judge or Clerk of a Court of record ; or, 2. A mayor or recorder of a city ; or, 3. A court commissioner ; or, 4. A county recorder ; or, 5. A notary public ; or, 6 A justice of the peace. The proof or acknowledgment of an instrument may be made without this State, but within the United States, and within the jurisdiction of the officer, before either : 1. A justice, judge, or clerk of any Court of record of the United States ; or, 96 CALIFORNIA. [Part 3. 2. A justice, judge, or clerk of any Court of record of any State; or, 3. A commissioner appointed by the Governor of this State for that purpose ; or, 4. A notary public ; or, 5. Any other officer of the State where the acknowledgment is made, authorized by its laws to take such proof or acknowl- edgment. A proof or acknowledgment of an instrument may be made without the United States, before either : A minister, commissioner, or charge d'affaires of the United States, resident and accredited in the country where the proof or acknowledgment is made ; or, 2. A consul, vice-consul, or consular agent of the United States, resident in the country where the proof or acknowledgment is made ; or, 3. A judge of a Court of record of the county where the proof or acknowledgment 18 made; or, 4. Commissioners appointed for such purposes by the gover- nor of the State, pursuant to special statutes; or, 5. A notary public. If any of the above named officers are authorized by law to appoint a deputy, the acknowledgment or proof may be taken by such deputy in the name of his principal. The acknowledgment of an instrument must not be taken, unless the officer taking it knows, ui has satisfactory evidence, on the oath or affirmation of a credible witness, that the person making such acknowledgment is the individual who is described in and who executed the instrument; or if executed by a corpo- ration, that the person making such acknowledgment is the president ox secretaiy of such corporation. The acknowledgment of a married woman to an instrument purporting to le executed by her must not be taken, unless she :s made acquainted by the officer with the contents of the in- strument on an examination without the hearing of her hus- band; nor certified, unless she thereupon acknowledges to the officer that she executed the instrument, and that she does not wish to retract such execution. €hap. 26. CALIFORNIA. 97 General Form of Certificate. State or County of On this day of- } ss. — , in the year , before me, [here insert the name and quality of the officer] personally appeared , known to me [or proved to me on the oath of J to be the person whose name is subscribed to the within instru- ment, and acknowledged to me that he [or they] executed the same. Form of Certificate of Acknowledgment by Married Woman. State of— County of On this- } ss. day of- in the year , before me, [here insert the name and quality of the officer] personally appeared , known to me [or proved to me on the oath of ] to be the person whose name is subscribed to the within instru- ment, described as a mamed woman; and upon an examination without the hearing of her husband, I made her acquainted with the contents of the instrament; and thereupon she ac- knowledged to me that she executed the same, and that she does not wish to retract such execution. le It Form of Certificate of Acknowledgment by a Corporation. State of- CouNTY of On this- } ss. day of- — , in the year , before me [here insert the name and quality of the officer] personally apjieared , known to me [or proved to me on the oath of ] to be the president [or the secretary] of the coi'poration that exe- cuted the written instrument, and acknowledged to me that such corporation executed the same. 98 OALIFOKNIA. [Part 3. Form of Certificate of Acknowledgment by A.ttorney in Fact. State of- County of On this day of- } 88. -, in the year- befor e me [here insert the name and quality of the officer] personally appeared , known to me [or proved to me on the oath of ] to be the person whose name is subscribed to the within instru- ment as the attorney in fact of , and acknowledged to me that he subscribed the name of , thereto, as principal, and his own name as attorney in fact. • Officers must authenticate their certificates by affixing thereto their signatures, followed by the names of their offices; also their seals of office, if by the laws of the State or countrj' where the acknowledgment or proof is taken, or by authority of which they are acting, they are required to have official seals. The certificate of proof or acknowledgment, if made before a justice of the peace, when used in any county other than that in which he resides, must be accompanied by a certificate under the hand and seal of the clerk of the county in which the justice resides, setting forth that such justice, at the time of taking such proof or acknowledgment, was authorized to take the same, and that the clerk is acquainted with his hand-writing, and believes, that the signature to the original certificate is genuine. Chap. 27. CALIFORNIA. 99 11 CHAPTER XXVII. PARTNERSHIPS. Partnership is the association of two or more persons for the purpose of carrying on businecs together, and dividing its profits between them. Every partnership that is not formed in accordance with the law concerning mining or special partnerships, and every special partnership, so far only as the general partners are concerned, is a general partnership. Every general partner is agent for the partnership in the trans- action of its business, and has authority to do whatever is neces- sary to carry on such business in the ordinary manner, and for this purpose may bind his copartners by an agreement in writing. A partner, as such, has not authority to do any of the follow- ing acts, unless his copartners have wholly abandoned the busi- ness to him, or are incapable of acting : 1. To make an assignment of the partnership property or any portion thereof to a creditor, or to a third person in trust, for the benefit of a creditor or of all creditors. 2. To dispose of the good wiU of the business. 3. To dispose of the whole of the partnership property at once, unless it consists entirely of merchandise. 4. To do any act which would make it impossible to carry on the ordinary business of the partnership. 5. To confess a judgment. 6. To submit a partnership claim to arbitration. 7. To do any act which is not necessary to cany on such busi- ness in the ordinaiy manner. Every general partner is liable to third persons for all the obli- gations of the partnership, jointly with his copartners. Any one i)ermitting himself to be represented as a partner, general or special, is liable as such to third persons to whom such representation is communicated, and who, on the faith thereof, give credit to the partnership. 100 CALIFORNIA. [Part 3. The liability of a general partner for the acts of his copartners continiioH, even after a dissolution of the copartnership, in favor of peiHouH who have had dealings with and given credit to the partnership during its existence, until they have had personal notice of the dissolution ; and in favor of other persons until Huch dissolution has been advertised in a newspaper published in every county where the partnership, at the time of its disso- lution, had a place of business, if a newspai)er is there published, to the extent in either case to which such persons part with value in good faith, and in the belief that such jiartner is still a mem- ber of the firm. After the dissolution of a partnership, any general partner may act in liquidation of its affairs, unless th* liquidation is com- mitted, by consent of all the partners, to one or more of them ; and in such case the others have no right to act therein, but their acts are valid in favor of persons parting with value, in good faith, upon credit thereof. A partner authorized to act in liquidation may collect, com- promise, or release any debts due to the partnership, paj' or compromise any claims against it, and disiDose of the partner- ship property ; and he may indorse, in the name of the firm, promissory notes or other obligations held by the partnership, for the purpose of collecting the same ; but he cannot create any new obligation in its name, or revive a debt against the firm by an acknowledgment, when an action theron is barred. Except as hereafter provided, every partnership transacting business in this State under a fictitious name, or a designation not showing the names of the persons interested as partners in such business, must file with the clerk of the county in which its principal place of business -is situated, a certificate stating the names in full of all the members of such partnership and their places of residence, and publish the same once a week for four successive weeks in a newspaper published in the county, if there be one, and if there be none in such county, then in a newspaper published in an adjoining county. A commercial or banking partnership, established and trans acting business in a place without the United States, may, with- out filing the certificate, or making the publication heretofore ^P-u^jS?.". ;t.«rtaMi«aT«nitfK)3 Chap. 27.] CALIFORNIA, 101 ting ,tion '8 in hieh itiug and for inty, in a ran 8 fiih- jfore mentioned, use in this State the pai*tnersliip name used by it there, although it be fictitious, or do not show the names of the persons interested as partners in such business. The certificate filed with the clerk must be signed by the part- ners, and acknowledged before some officer authorized to take the acknowledgment of conveyances of r?al property. Where the partnership is formed after the first of July, eighteen hun- dred and seventy-four, the certificate must be filed and the pub- lication made within one month after the formation of the partnership, or within one month from the time designated in the agreement of its members for the commencement of the partnership. Where the partnership has been formed prior to the first of July, eighteen hundred and seventy-four, the certifi- cate must be filed and the publication made within six months after the first of July aforesaid. On every change in the members of a partnership transacting business in this State under a fictitious name, or a designation which does not show the names of the persons interested as partners in its business, (except in the case of a commercial or banking partnership, established and transacting business in a, place without the United States, as well as in this Stafe) a new certificate must be filed and a- new publication made, as is re- quired on the formation of such partnership. Persons doing business as partners contrary to the aforesaid provisions, shall not maintain any action upon or on account of any contract made or transactions had in their partnership name, in any Court of this State, until they have first filed the certificate and made the publication required. Copies of the entries of a county clerk, when certified by him, and affidavits of publication made by the printer, publisher, or chief dark of a newspaper, are presumptive evidence of the facts therein stated. Special partnerships are formed by filing a certificate witTh the county clerk and recorder, severally signed, stating : 1. The name under which the partnership is to be conducted. 2. The general nature of the business intended to be trans- acted. 3. The names of all the partners, ^nd their residences, speci- fying which are general and which are special partners. 102 CALIFORNIA. [Part 3. 4, The amount of capital which each special partner has con- tributed to the common stock, 5. The periods at which such partnerships shall begin and end. Affidavits must be made and filed, setting forth the amount actually contributed by the special partners. The certificate mentioned must be published in a newspaper in the county, once a week for four successive weeks. The genei'al partners in a special partnership are liable to the same extent as partners in a general partnership. Tiie contri- bution of a special partner to the capital of the firm , and the increase thereof, is liable for its debts, but he is not otherwise liable therefor. CHAPTER XXVIII. MAKBIED WOMEN. All property of the wife owned by her before marriage, and that acquired afterwards by gift, bequest, devise, or descent, with the rents issues, and profits thereof, is her separate property. All propeiiy owned by the husband before marriage, and that acquired afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is his separate property. All other property acquired after marriage, by either husband or wife, or both, is community property. The earnings of the wife are not liable for the debts of the husband. The earnings and accumulations of the wife, and her minor children living with her and in her custody, while she is living separate from her husband, are the separate property of the wife. The separate property of the wife is not liable for the debts of her husband, but is liable for her own debts, contracted be- fore or after marriage. The separate property of the husband is not liable for the debts of the wife contracted before marriage. The property of the community is not liable for the contracts of mm Chap. '28. J CALIFORNIA. 103 the wife made after marriage, unless secured by a pledge or mortgage thereof executed by the husband. The husband has the management and control of the cornmu- nity property, with the like absolute power of disposition (other than ttM^amentary) as he has of his separate estate No estate in dower is allotted to the wife upon the death of her husband. If the husband neglects to make adequate p^'svision for the support of his wife, any other person may, in ^^ jd faith, K'lpply her with artic^'^s necessary for her support, and recover the rea- sonable vaiue thereof from the husband ; except tLat a husband abaVoned by his wife is not liable for her snppoit until she offers to return, unless she was justified, by his misconduct, in abandoning him ; nor is he liable for her support when she is living separate from him, by agreement, unless such support is stipulated in the agreement. A married woman may become a sole trader by the judgment of the County Court of the county in which she has resided for six months next preceding the application. A certified copy of the decree of the Court must be recorded in the office of the recorder of the C9unty where the business is to be carried on. A sole trader is entitled to carry on the business specified, in her own name, and the property, revenues, moneys and credits so by her invested, and the profits thereof, belong exclusively to her, and are not liable for any debts of her husband. The hus- band of a sole trader is not liable for any debts contracted by her in the course of her sole trader's business, unless contracted upon his written consent. 104 CALIFORNIA. [Part 3. CHAPTER XXIX. MINOES. Minors are males under twenty-one years of age, females under eighteen years of age. A minor cannot give a delegation of power, nor, under the age of eighteen, make a contract relating to real property, or any interest^jtherein, or relating to any personal property not in his immediate possession or control. A minor may make any other contract, in the same manner as an adult, subject to his power of disafQrmance. A minor cannot disaffirm a contract, otherwise valid, to pay the reasonable value of things necessaiy for his support, or that of his family, ente^'ed into by him when not under the care of a parent or guardian able to provide for him or them. Nor can a minor disaffirm an obligation, otherwise valid, entered into by him under the express authority or direc- tion of a statute. In all other cases, the contract of a minor, if made whilst he is under the age of eighteen, may be disaffirmed by the minor himself, either before his majority, or within a reason- able time afterwards ; or in case of his death within that period, by his heirs or personal representatives ; and if the contract be made by the minor whilst he is over the age of eighteen, it may be disaffirmed in like manner, upon restoring the consideration to the party from whom it was received, or paying its equivalent. If a parent neglect to provide articles necessary for his child, who is under his charge, according to his circumstances, a third person may in good faith supply such necessaries, and recover the reasonable value thereof from the parent. A minor may enforce his rights by civil action, or other legal proceedings, in the same manner as a person of full age, except that a guardian must conduct the same. Chap. 30.] CALIFOBNU. 105 CHAPTER XXX. STOPPAGE IN TRANSIT. A seller or consignor of property, whose claim for its price or proceeds has not been extinguished, may, upon the insolvency of the buyer or consignee becoming known to him after parting with the property, stop it whil^ on its transit to the buyer or consignee, and resume possession thereof. A person is insol- vent, within the meaning of the above term, when he ceases to pay his debts in the ma: tner usual with persons of his business, or when he declares his inability or unwillingness to do so. The transit of property iS at an end when it comes into the possession of the consignee, or into that of his agent, unless such agent is employed merely to forward the property to the consignee. Stoppage in transit can be eflfected only by notice to the carrier or depositary of the property, or by taking actual possession thereof. Stoppage in transit does not, of itself, rescind a sale, but is a means of enforcing the lien of the seller. A bona fide transfer of a bill of lading defeats the right of stoppage in transit, if such transfer is made before the right of •stoppage has been actually exercised by the cotisignor. td CHAPTER XXXI. BILLS OF LADING. A bill ^f lading is an instrument in writing, signed by a car- rier or his agent, describing the freight so as to identify it, stat- ing the name of the consignor, the terms of the contract for carriage, and agreeing or directing that the freight be dehve)-ed to the order or assigns of a specified person, at a specified place. 106 OALIFOBNIA. [Part 3. The title to the freight which the first holder of a bill of lad- ing had when he received it, passes to every subsequent indorsee thereof, in good faith and for value, in the ordinary course of business, with like effect, and in like manner, as in the case of a bill of exchange. If a bill of lading is made payable to "bearer," it is transferable by delivery. CHAPTER XXXII. INTEREST. Unless there is an express contract in writing fixing a differ- ent rate, interest is payable on all moneys at the rate of seven per cent, per annum, after they become due, on any instrument of writing except a judgment, and on moneys lent or due on any settlement of accounts from the day on which the balance is ascertained, and on moneys received to the use of another, and detained from him. In the computation of interest for a period less than a year, three hundred and sixty days are deemed to constitute a year. Interest is payable on judgments recovered in the Courts of this State at the rate of seven per cent, per annum, and no greater rate; but such interest must not be compounded in any manner or form. Parties may agree in writing for the payment of any rate of interest, and it shall be allowed, according to the terms of the agreement, until the entry of judgment; and they may, in any contract in writing whereby any debt is secured to be paid, agree that if the interest on such debt is not punctually paid, it shall become a part of the principal, and thereafter bear the same rate as the principal debt. Open accounts do not bear interest. Mil Chap. 33.] CALIFORNIA. 107 CHAPTER XXXIII. COMMON CARRIERS. Unless the consignor accompanies the freight, and retains ex- clusive control thereof, an inland common carrier of property is liable, from the time that he accepts until he relieves himself from liability, for the loss or injury thereof, except: 1. An inherent defect, vice, or weakness, or a spontaneous ac- tion of the property itself. 2. The act of a public enemy of the United States, or of this State. 3. The act of the law; or 4. Any irresistible superhuman cause. He is liable, even in the cases above excepted, if his ordinary negligence exposes the property to the cause of the loss. A common carrier is liable for delay only when it is caused by his want of ordinary care and diligence. A marine carrier is liable in like manner as an inland carrier, except for loss or injury caused by the perils of the sea or fire. ' 1 1 CHAPTER XXXIV. MORTGAGES OF PERSONAL PROPERTY. Mortgages may be made upon : 1. Locomotives, engines, and the other rolling stock of a railroad. 2. Steamboat machinery, and machinery used by machinists, foundrymen, and mechanics. 3. Steam engiL 3 and boilers. 4. Mining machinery. 108 CALIFOBNIA.. [Part 3. 6. Printing presses and material. 6. Professional libraries. 7 . Instruments of a surveyor, physician, or dentist. 8. Upholstery and furniture used in hotels, lodging or board- ing houses, when mortgaged to secure the purchase money of the articles mortgaged. 9. Growing crops. 10. Vessels of more than five tons burden. 11. Instruments, negatives, furniture and fixtures of a photo- graphic gallery. 12. The machinery, casks, pipes, tubs and utensils used in the manufacture of virine, fruit brandy, and fruit syrup or sugar. A mortgage of personal property is void as against creditors of the mortgagor, and subsequent purchasers and incumbrancers of the property in good faith and for value, unless — 1. It is accompanied by the affidavit of all the parties thereto that it is made in good faith, and without any design to hinder, delay, or defraud creditors. 2. 11 is acknowledged or proved, certified and recorded. A mortgage of personal property must be recorded in the office of the county recorder of the county in which the mort- gagor resides, and also of the county in which the property mortgaged is situated, or to which it may be removed. A certified copy of a mortgage of personal property once re- corded may be recorded in any other county, and when so re- corded, the record thereof has the same force and efltect as though it was of the original mortgage. When property mortgaged is thereafter by the mortgagor re- moved from the county in which it is situated, it is, except us between the parties to the mortgage, exempt from the operation thereof, unless either : 1. The mortgagee, within thirty days aftei such removal, causes the mortgage to be recorded in the county to which the projierty has been removed ; or, 2. The mortgagee, within thirty days after such removal, takes possession of the property, as prescribed in the next paragraph. If the mortgagor voluntarily removes or permits the removal of the mortgaged property from the county in which it was sit- Chap. 34.] OALIFOBKIA. 109 uated at the time it was mortgaged, the mortgagee may take pos- session and dispose of the property as a pledge for the payment of the debt, though the debt is not due. Personal property mortgaged may be taken under attachment or execution issued at the suit of a creditor. Before the prop- erty is so taken, the oflScer must pay oi' tender to the mortgagee the amount of the mortgage debt and interest, or must deposit the amount thereof with the county clerk or treasurer, payable to the order of the mortgagee. When the property thus taken is sold under process, the officer must apply the proceeds of sale as follows : 1. To the repayment of the sum paid to the mortgagee, with interest from the date of such payment ; and, 2. The balance, if any, in like manner as the proceeds of sales under execution are applied in other cases. A mortgagee of personal property, when the debt to secure which the mortgage was executed becomes due, may foreclose the mortgagor's right of redemption by a sale of the property made in the manner prescribed in the chapter on " pledge," or may proceed by a judicial sale under the direction of a compe- tent Court. CHAPTER XXXV. PLEDGE. A pledge is a deposit of personal property by way of security for the performance of another act. Where a debtor has obtained credit, or an extension of time, by a fraudulent misrepresentation of the value of property pledged by or for him, the creditor may demand a further pledge to correspond with the value represented; and in default thereof may recover his debt immediately, though it be not ac- tually due. When performance of the act for which a pledge is given is ill 110 CALIFORNIA. [Part 3. due, in whole or in part, the pledgee may collect what is due to him by a sale of the propei^ty pledged. Before property pledged can be sold, and after performance of the act for which it is security is due, the pledgee must de- mand performance thereof from the debtor, if the debtor can be found. A pledgee must give actual notice to the pledgor of the time and place at which the property pledged will be sold, at such a reasonable time before the sale as will enable the pledgor to at- tend. The sale by a pledgee of property pledged must be made by public auction, in the manner and upon the notice to the public usual at the place of sale, in respect to auction sales of similar property; and must be for the highest obtainable price. A pledgee cannot sell any evidence of debt pledged to him, except the obligations of governments. States, or corporations; but he may collect the same when due. The pledgor may require the property to be sold when it will bring a sufficient amount to satisfy the claim of the pledge. A pledgee or pledge-holder cannot purchase the property pledged, except by direct dealings with the pledgor. Instead of selling property pledged, as hereinbefore provided, a pledgee may foreclose the right of redemption by a judicial sale, under the directions of a competent Conrt; and in that case may be authorized by the Court to purchase at the sale. CHAPTER XXXVI. GUARANTY AND SURETYSHIP. A guaranty is a promise to answer for the debt, default, or miscarriage of another person. Where a guaranty is entered into at the same time with the original obligation, or with the acceptance of the latter by the guarantee, and forms with that obligation a part of the con- ,S^rt««.ftr^W«*i>r-vi^ Chap. 36.] OALIFORNU. Ill Le le sideration to him, no other consideration need exist. In all other cases there must be a consideration distinct from that of the original obligation. Except as hereinafter described, a guaranty must be in writ- ing, and signed by the guarantor; but the writing need not ex- press a consideration. A promise to answer for the obligation of another, in any of the following cases, is deemed an original obligation of the promisor, and need not be in writing;. 1. Where the promise is made by one who has received pro- perty of another upon an undertaking to apply it pursuant to such promise; or by one who has received a discharge from an obligation in whole or in part, in consideration of such promise. 2. Where the creditor parts with value, or enters into an obli- gation in consideration of the obligation in respect to which the promise is made, in terms or under circumstances such as to ren- der the party making the promise the principal debtor, and the person in whose behalf it is made his surety. 3. Where the promise, being for an antecedent obligation of another, is made upon the consideration that the party receiving it cancels the antecedent obligation, accepting the new promise as a substitute therefor; or upon the consideration that the party receiving it releases the property from a levy, or his per- son from imprisonment, under an execution on a judgment ob- tained upon the antecedent obligation; or upon a consideration beneficial to the promisor, whether moving from either party to the antecedent obligation, or from another person, 4. Where a factor undertakes, for a commission, to sell mer- chandise and guarantee the sale. 5. W^here the holder of an instrument for the payment of monej^ upon which a third person is or may become liable to him, transfers it in payment of a precedent debt of his own, or for a new consideration, and in connection with such transfer enters into a promise respecting such instrument. A guarantor is exonerated, except so far as he may be indem- nified by the principal, if by any act of the creditor without the consent of the guarantor the original obligation of the principal is altered in any respect, or the remedies or rights of the credi- 112 CALIFORNIA. [Part 3. tor against the principal in respect thereto are in any way im- paired or suspended. A surety is one who, at the request of another, and for the purpose of securing to him a benefit, becomes responsible for the performance, by the latter, of some act in favor of a third person, or hypothecates property as security therefor. A surety is exonerated : 1. In like manner with a guarantor. 2. To the extent to which he is prejudiced by any act of the creditor which would naturally prove injurious to the remedies of the surety, or inconsistent with his rights, or which lessens his security ; or, 3. To the extent to which he is prejudiced by an omission of the creditor to do anything, when required by the surety, which it is his duty to do. A surety has all the rights of a guarantor. A surety may require his creditor to proceed against the prin- cipal, or to pursue any other remedy in his power which the surety cannot himself pursue, and which would lighten his bur- den ; and if in such case the creditor neglects to do so, the surety is exonerated to the extent to which he is thereby prejudiced. A surety may compel his principal to perform the obligation when due, A surety, upon satisfying the obligation of the principal, is entitled to enfore every remedy which the creditor then has against the principal, to the extent of reimbursing what he has expended, and also to require all his co-sureties to contribute thereto, without regard to the order of time in which they be- came such. Whenever property of a surety is hypothecated with property of the principal, the surety is entitled to have the property of the principal first applied to the discharge of the obligation. Letter of Credit, A letter of credit is a written instrument, addressed by one person to another, requesting the latter to give credit to the person in whose favor it is drawn. Chap. 36.] CALIFORNIA. 113 The writer of a letter of credit is, upon the default of the debtor, liable to those who gave credit in compliance with its terms. CHAPTER XXXVII. SALE. No sale of personal property, or agreement to buy or sell it, for a price of two hundred dollars or more, is valid, unless : 1. The agreement, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged, or by his agent; or, 2. The buyer accepts and receives part of the thing sold, or when it consists of a thing in action, part of the evidences thereof, or some of them; or, 3. The buyer, at the time of sale, pays a part of the price. The foregoing provisions do not aflfect an agreement to manu- facture a thing from materials furnished by the manufacturer or by another person. No agreement for the sale of real property, or of an interest therein, is valid, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged, or his agent thereunto authorized in writing. If a buyer of personal property does not pay for it according to contract, and it remains in the possession of the seller after payment is due, the seller may rescind the sale, or enforce his lien for the price. In order to make a sale of personal property effectual as against creditors, there must be an immediate, actual, and con- tinued change of possession. w ii ; 1; W £f i'Vi ^ii 114 OAUFORNU. Part 3. CHAPTER XXXVIII. CONTRACTS. A contract is an agreement to do or not to do a certain thing. It is essential to the existence of a contract that there should be: 1. Parties capable of contracting. 2. Their consent. 3. A lawful object. 4. A sufficient cause of consideration. A written instrument is presumptive evidence of considera- tion. Contracts are either express or implied. An express contract is one, the terms of which are stated in words. An implied contract is one, the existence and terms of which are manifested by conduct. The following contracts are invalid, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged, or by his agent : 1. An agreement that by its terms is not to be performed with- in a year from the making thereof. 2. A special promise to answer for the debts, default or mis- carriage of another, except in the case mentioned in Chapter XXXVI. 3. An agreement made upon consideration of marriage, other than a mutual promise to marry. 4. An agreement for the sale of goods, chattels, or thinga in action, at a j)rice not less than two hundred dollars, unless the buyer accept or receive part of such ^oods and chattels, or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase money ; but when a sale is made by auction, an entry by the auctioneer in his sale book, at the time of the sale, of the kind of property sold, the terms of sale, the price, and the names of the purchaser and person on whose account the sale is made, is a sufficient memorandum. Chap. 38.] CALIFORNIA. 116 5 . An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein ; and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent be in writing, subscribed by the party sought to be charged. 6. An agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission. All contracts may be oral, except such as are specially required by statute to be in writing. CHAPTER XXXTX. NEGOTIABLE INSTEUMENTS. A bill of exchange is an instrument negotiable in form, by Avhich one, who is called the drawer requests another, called the drawee, to pay a specified sum of money. A bill of exchange is jDayable : 1. At the place where, by its terms, it is made payable; or, 2. If it specify no place of payment, then at the place to which it is addressed; or, 3. If it is not addressed to any place, then at the place of residence or business of the drawee, or wherever he may be found. If the drawee has no place of business, or if his place of business or residence cannot, with reasonable diligence, be ascertained, presentment for payment is excused, and the bill may be protested for non-payment. Presentment of a bill of exchange for acceptance must be made in the following manner, as nearly as by reasonable dili- gence it is practicable : 1. The bill must be presented by the holder or his agent. 2. It must be presented on a business day, and within reason- able hours. 3. It must be presented to the drawee, or if he be absent from his place of residence or business, to some person having charge thereof, or employed therein; and. 116 CALIFORNIA. [Part 3. 4. The drawee, on such presentment, may postpone his ac- ceptance or refusal until the next day. If the drawee have no place of husiness, or if his place of business or residence can- not, with reasonable diligence, be ascertained, presentment for acceptance is excused, and the bill may be protested for non-uc- ceptance. When a bill of exchange is payable at a specified time iifter sight, the drawer and endorsers are exonerated if it is not jjre- sented for acceptance within ten days after the time which would suflSce, with ordinary diligence, to forward it for acceptance, unless presentment is excused. An acceptance of a bill must be made in writing, and may be made by the acceptor writing his name across the face of the bill, with or without other words. An unconditional promise, in writing, to accept a bill of ex- change, is a sufficient acceptance thereof, in favor of every per- son who upon the faith thei'eof has taken the bill for value or other good consideration. On the dishonor of a bill of exchange by the drawee, and in case of a foreign bill, after it has been duly protested, it may be accepted or paid by any person, for the honor of any party thereto. If a bill of exchange, payable at sight or on demand, without interest, is not duly presented for payment within ten days after the time in which it could, with reasonable diligence, be trans- mitted to the proper place for presentment, the drawer and en- dorsers are exonerated unless such presentment is excused. The presentment of a bill of exchange for acceptance is ex- cused if the drawee has not capacity to accept it. Delay in the presentment of a bill of exchange for acceptance is excused, when caused by circumstances over which the owner has no control. Presentment of a bill of exchange for acceptance or payment, and notice of its dishonor, are excused as to the drawer, if he forbids the drawee to accept, or the acceptor to pay the bill; or if, at the time of drawing, he had no reason to believe that the drawee would accept t)r pay the sanxe. An inland bill of exchange is one drawn and payable within this State. All others are foreign. hy Chap. 39. CALIFORNIA. 117 In Notice of the dishonor of a foreign bill of exchange can be given only by notice of its protest, and the protest must be made by a notary public, if with reasonable diligence one can be obtained; and if not, then by any reputable person, in the presence of two witnesses. Protest for non-acceptance must be made in the city or town in which the bill is presented for ac- ceptance, and a protest for non-payment in the city or jown in which it is presented for payment. One who pays a foreign bill for honor must declare, before payment, in the presence of a person authorized to make pro- test, for whose honor he pays the same, in order to entitle him to reimbursement. Damage on foreign bills of exchange are allowed as herein- after prescribed, as a full comi^ensation for interest accrued be- fore notice of dishonor, re-exchange, expenses, and all other damages, in favor of holders for value only, upon bills of ex- change drawn or negotiated within this State, and protested for non-acceptance or non-payment. Damages are allowed as follows : 1. If drawn upon any person in this State, two dollars upon each one hundred dollars of the principal sum specified in the bill. 2. If drawn upon any person out of this State, but in any other of the States west of the Rocky Mountains, five dollars upon each hundred dollars of the principal sum specified in the bill. 3. If drawn upon any person in any of the United States, east of the Rocky Mountains, ten dollars upon each hundred dollars of the princii)al sum specified in the bill. 4. If drawn upon any person in any place in a foreign country, fifteen dollars upon each hundred dollars of the principal sum specified in the bill. From the time of notice of dishonor and demand of payment, lawful interest must be allowed upon the aggregate amount of the principal sum specified in the bill, and the damages above mentioned. A promissory note is an infilrument negotiable in form, where- by the signer promises to pay a specified sum of money. 118 CALIFORNIA. Part 3. If a promissory note, payable on demand, or at sight, without interest, is not duly presented for payment within six months from its date, the indorsers thereof are exonerated, unless such presentment is excused. Days of grace are not allowed on bills of exchange and prom- issory notes. A check is a bill of exchange drawn upon a bank or banker, or a person described as such upon the face thereof, and paya- ble on demand without interest. A check is subject to all the provisions herein mentioned^con- cerning bills of exchange, except that : 1. The drawer and indorsers are exonerated by delay in pre- sentation only to the extent of the injury they suflfer theieby. 2. An indorsee, after its apparent maturity, but without actual notice of its dishonor, acquires a title equal to that of an indor- see before such period, A negotiable instrument must be made payable in money only, and without any condition not certain of fulfillment. A negotiable instrument may be with or without date, and with or without designation of the time or place of payment. A negotiable instrument may contain a pledge of collateral security, with authority tc 'dispose thereof. A negotiable instrument which does not specify a place of pay- ment is payable at the residence or place of business of the maker, or wherever he may be found. A negotiable instrument, made payable to the order of the maker, or of. a fictitious person, if issued by the maker for a valid consideration, without indorsement, has the same effect against him and all other persons having notice of the facts as if payable to the bearer. An indorsement of a negotiable instrument may be general or special. A general indorsement is one by which no indorsee is named. A special indorsement specifies the indorsee. A negotiable instrument bearing a general indorsement can- not be afterwards specially indorsed; but any lawful holder may turn a general indorsement into a special one, by writing above it a direction for payment to a particular person. Chap. 39.] CAIilFORNU. 119 \o\ or led. can- may ibove A special indorsement may, by express words for that purpose, but not otherwise, be so made as to render the instrument not negotiable. An indorser may qualify his indorsement with the words, "without recourse," or equivalent words; and upon such in- dorsement he is responsible only to the same extent as in the case of a transfer without indorsement. An indorsee in due course is one who, in good faith, in the ordinary course of business, and for value, before its apparent maturity or presumptive dishonor, and without knowledge of its actual dishonor, acquires a negotiable instrument duly indorsed to him, or indorsed generally, or payable to the bearer. An indorsee of a negotiable instrument, in due course, acquires an absolute title thereto, so that it is valid in his hands, notwith- standing any provision of law making it generally void or void- able, and notwithstanding any defect in the title of the jierson from whom he acquired it. The want of consideration for the undertaking of a maker, acceptor, or iudoraer of a negotiable instrument does not exonerate him from liabilitj' thereon to an indorsee in good faith for a cosideration. It is not necessary to make a demand of payment upon the principal debtor in a negotiable instrument in order to charge him; but if the instrument is, by its teniis, payable at a speci- fied place, and he in able and willing to ^liy it there at maturity, such ability an»l wiliiugr ess are equivalent to an offer of pay- ment oil his part. Presentment of a negotiable instrument for payment, when necessary, must be made as follows, as nearly' as by reasonable diligence it is practicable: 1. The instrument must be presented by the holder. 2. The ^^"^vumeut must be presented to the principal debtor, if he can be found at the place where presentment should be made; and if not, then it m.v"u be presented to some other per- son having charge thereof, or employed therein, if one can be found there. 3. An instrument which specifies a place for its payment m^ast be presented there; and if the place specified includes more 120 CAIilFOBNI^. [Part 3. than one house, then at the place of residence or business of the principal debtor, if it can be found therein. 4. An instrument which does not specify a place for its pay- ment must be presented at the place of residence or business of the principal debtor, or wherever he may be found, at the option of the presentor; and 5. The instrument must be presented upon the day of its maturity, or if it be payable on demand, it may be presented on any day. It must be presented within reasonable hours; and if it be payable at a banking house, within the usual banking hours of the vicinity; but by the concent of the person to whom it should be presented, it may be presented at any hour of the day. 6. If the principal debtor have no place of business, or if his place of business or residence cannot, with reasonable diligence, be ascertained, presentment for payment is excused. The apparent maturity of a negotiable instrument, payable at a particular time, is the day on which, by its terms, it becomes due, or when that is a holiday, the next busi?aess day. A bill of exchange, payable at a certain time after sight, which is not accepted within ten days after its date, in addition to the time which would sufl&ce, with ordinary diligence, to forward it for acceptance, is presumed to have been dishonored. The apparent maturity of a bill of exchange, payable at sight or on demand, is : 1. If it bears interest, one year after its date ; or, 2. If it does not bear interest, ten days after its date, in addi- tion to the time which would suffice, with ordinary diligence, to forward ii for acceptance. The apparent maturity of a promissory note, payable at sight or on demand, is : • 1. If it bears interest, one year after its date ; or, 2. If it does not bear interest, six months after its date. When a promissory note is payable at a certain time after sight or demand, such time is to be added to the period above mentioned. A negotiable instrument is dishonered when it is either not paid or not accepted, according to its tenor, on presentation for the purpose, or without presentation when that is excused. Chap. 39.] CAUFOENU. 121 to ter |ve Lot lot Notice of the dishor of a negotiable instrument may be given : 1. By a holder thereof ; or, 2. By any party to the instrument who mi('ht be compelled to pay it to the holder, and who would, upon taking it up, have a right to reimbursement from the party to whom the notice is given. A notice of dishonor may be given in any form which'describes the instrument with reasonable certainty, and substantially in- forms the party receiving it that the instrument has been dis- honored. A notice of dishonor may be given : 1. By delivering it to the j^arty to be charged, personally, at any place ; or, 2. By delivering it to some person of discretion at the place of residence or business of such party, apparently acting for him ; or, 8 By properly folding the notice, directing it to the party to be charged, at his place of residence, according to the best in- formation that the person giving the notice can obtain, deposit- ing it in the post oflS,ce most conveniently accessible from the place where the presentment was made, and paying the postage thereon. In case of the death of a party to whom notice of dishonor should otherwise be given, the notice must be given to one of his personal representatives; or if there are none, then to any member of his family who resided with him at his death; or if there is none, then it must be mailed to his last place oi residence. A notice of dishonor given otherwise than by mail must be given on the day of dishonor, or on the next business day. When given by mail, it must be deposited in the post office in time for the first mail which closes after noon of the first busi- ness day succeeding the dishonor, and which leaves the place where the instrument was dishonored for the place to which the notice should be sent. Every party to a negotiable instrument, receiving notice of its dishonor, has the like time thereafter to give similar notice to prior parties as the original holder had after its dishonor. But this additional time is available only to the particular party en- titled thereto. 122 CAIilPORNIA. [Part 3. >i:\ A notice of the dishonor of a negotiable instrument, if valid in fayor of the party giving) it, inures to the benefit of all other parties thereto whose right to give the like notice has not then been lost. Notice of dishonor is excused : 1. "When the party by whom it should b* given cannot, with reasonable diligence, ascertain either the place of residence or business of the party to be charged; or, 2. When there is no post office communication between the town of the party by whom the notice should be given, and the town in which the place of residence or business of the party to be charged is situated; or, 3. When the party to be charged is the same person who dis- honors the instrument; or, 4. When the netice is waived by the party entitled thereto. Presentment and notice are excused as to any party who in- forms the holder, within ten days before maturity, that the in- strument will be dishonored. If before or after the maturity of an instrument an indorser has received full security for the amount thereof, or the maker has assigned all his estate to him as such security, presentment and notice to him are excused. Delay in presentment, or in giving notice of dishonor, is excused when caused by circumstances which the party delaying could not have avoided by the exercise of reasonable care and dili- gence. A waiver of presentment waives notice of dishonor also; but a waiver of notice does not waive presentment. A waiver of protest on any negotiable instrument, other than a foreign bill of exchange, waives presentment and notice. Chap. 40.] OALIFOBNIA. 123 CHAPTER XL. PiirNCIPAL AND AGENT. An agent is one who represents another, called the principal, in dealings with third persons. Any person having capacity to contract may appoint an agent, and any person may be an agent. An agent for a particular act or transaction is called a special agent. All others are general agents. An agent, unless specially forb? ^den by his principal to do so, can delegate his powers to another person in any of the follow- ing cases, and in no others: 1. When the act to be done is purely mechanical. 2. When it is such as the agent cannot himself, and the sub- agent can, lawftilly perform. 3. When it is the usage of the place to delegate such powers. 4. When such delegation is specially authorized by the prin- cipal. If an agent employs a sub agent without authority, the former is a principal and the latter his agent, and the principal of the foimer has no connection with the latter. A sub-agent, lawfully appointed, represents the principal in like manner with the original agent; and the original agent is not responsible to third persons for the acts of the sub-agent. 124 CALirOBNIA. [Part 3. CHAPTER XLL FRAUDULENT INSTRUMENTS AND TRANSFERS. Every transfer of property or change thereon made, every obligation incuiTed, and every judicial proceeding taken, with intent to delay or defraud any creditor or other person of his demands, is void against all creditors of the debtor and their successors in interest, and against any person upon whom the estate of the debtor devolves, in trust for the benefit of others than the debtor. Every transfer of personal property (other than a thing in action, or a ship or cargo at sea, or in a foreign port, and every lien thereon, other than a mortgage, when allowed by law and a contract of bottomry or respondentia,) is conclusively presumed if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred, to be fraudulent, and therefore void, against those who are his creditors while he remains in posses- sion, and the successors in interest of such creditors, and against any persons on whom the estate devolves in trust for the benefit of others than himself, and against purchasers or incumbrancers in good faith subsequent to the transfer. CHAPTER XLH. ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. An insolvent debtor may, in good faith, execute an assign- ment of property to one or more assignees, in trust for the sat- isfaction of his creditors. Chap. 42.] CALIFORNIA. > 125 An aBsignment for the benefit of creditors is void against any creditor of the assignor, not assenting thereto, in the following cases: *» 1. If it give a preference of one debt, or class of debts, ovejj*- ' > another. 2. If it tend to coerce any creditor to release or compromise his demands. 3. If it provide for the payment of any claim known to the assignor to be false or fraudulent, or for the payment of more upon any claim than is known to be justly due from the as- signor. 4. If it reserve any interest in the assigned property, or in any part thereof, to the assignor, or for his benefit, before all his existing debts are paid. 5. If it confer upon the assignee any power which, if exer- cised, might prevent or delay the immediate conversion of the assigned property to the purposes of the trust. 6. If it exempt him from liability for neglect of duty or mis- conduct. The assignment must be in writing, signed, duly acknow- ledged and recorded. Within twenty days after an assignment is made, an inventory must be filed with the county recorder, duly sworn to. Within thirty days after the date of an assignment, the as- signee must enter into a bond for the faithful discharge of the trust, in a sum to be fixed by the county judge. Property exempt from execution, and insurance upon the life of the assignor, do not pass to the assignee unless specially mentior'^d in the assignment. An assignment executed and recorded cannot afterwards be cancelled or modified by the parties thereto, without the consent of every creditor affected thereby. 1^6 CALIFORNIA. [Part 3. CHAPTER XLIII. INSOLVENCY. VoLimTARY Proceedings — Entitled to Discharge. Every insolvent debtor may be discharged from his debts as hereinafter provided, upon executing an assignment of all his property, real, personal or mixed, for the benefit of all his creditors, and upon compliance with the several provisions of the act; provided, said assignment be made bona fide and with- out fraud. Petition. Such insolvent debtor shall petition the county judge within the place of his domicile, or usual residence, which petition shall briefly state the circumstances which compel him to surrender his property to his creditors, and shall conclude with a prayer to make a cession of his estate, and to be discharged from his debts, in pursuance of the provisions of the act ; provided such insol- vent debtor shall have resided within the county where he files his petition, for at least tix months next preceding the filing of the same. Schedule. The debtor shall annex to said petition his schedule ; that is to say, a summary statement of his affairs, with a list of losses he may have sustained, giving the names of his creditors, if known ; the amount due to each creditor, and the cause and nature of said indebtedness, and when it accrued, aud a state- ment of any existing judgment, mortgage, collateral or other securities for the payment of any such debt ; said schedule shall also contain a full, complete, and perfect inventory of all his property, real, personal and mixed, of all choees in action, debts due, or to become due, and all moneys on hand of such insol- vent ; said schedule shall also contain a full statement of all incumbrances existing upon the property of the insolvent. Chap. 43.] CALIFORNIA. 127 The said debtor shall as nearly as possible estimate the property by him surrendered and set forth in the schedule, at its tnie cash value. Oath to Schedule. The said schedule shall be signed by the debtor, and by him sworn to before the judge having jurisdiction of the failure, in the following words, to wit: " I, (A B), do in the presence of Almighty God truly and solemnly swear, that the schedule now delivered by me, doth contain a full, perfect and true discovery of all the estate, real, personal, and mixed goods and effects, to me in any way belonging; all such debts as are to me owing, or to any person or persons in trust for me, and all securities and contracts whereby any money may hereafter become payable, or any benefit or advantage accrue to me, or to my use, or to any other person or persons in trust for me; that I have no lands, money, stock or estate, reversion or expectancy, besides that set forth in my schedule; that I have in no instance, created or ac- knowledged a debt for a greater sum than I honestly and truly owed; that I have not directly of indirectly sold, or otherwise disposed of in trust, or concealed, any part of my property, ef- fects or contracts; that I have not in any way compounded with my creditors whereby to secure the same, or to receive or to ex- pect any profit or advantage therefrom, or to defraud, or deceive any creditor to whom I am indebted, in any manner whatever,. BO help me God." ' Oeder to Show Cause. The judge receiving such petition, schedule and affidavit, shall make an order requiring all the creditors of such insolvent to show cause, if they can, why an assignment of the insolvent estate should not be made, and he be discharged from his debts. Said schedule being signed and sworn to by the petitioner, the judge shall certify the same, and cause it to be filed in the office of the clerk of the court in the county where the assignment was made, there to remain for the information of the creditors. Homestead. The insolvent debtor, on a surrender of his property, shall include and set forth in his schedule, his whole estate, including 128 OALIFOBMIA. [Part 3. the homestead, if any he has, and all such property as may be by law exempt on execution from seizure and forced sale, and it shall be the duty of the judge having jurisdiction of the fail- ure, to exempt and set apart for the use and benefit of said in- solvent, such real and personal property as he is by law author- ized to retain to his own use, or that of his family. Books. Thft insolvent shall, either before or on the day appointed for the meeting of the creditors, deliver to the court all the com- mercial or other books he may have kept, which books shall be deposited in the clerk's office of said court. Said insolvent shall also deliver to the court at the same time, all vouchers, notes, bonds, bills, securities, or other evidence of debt, in any manner relating to,, or having any bearing upon or connection with the property surrendered by said debtor, and all such papers or secv.ities shall be deposited in the clerk's office of said court, and the clerk shall hand them over, together with the books of the insolvent to the assignees, who may be ap- pointed. Notice to Creditors. The judge granting the order for a meeting of the creditors, shall direct the clerk of the court to issue a notice calling the cred- itors of the insolvent to be and appear upon a specified day, not less than thirty nor more than forty days from the first publica- tion of such notice, before said judge, either in chambers or in open court, as said judge shall order, to show cause why the prayer of the alleged insolvent should not be granted. Said notice shall be published at least once a week for four successive weeks in a newspaper printed in the county in which the appli- cation is made, if there is one ; if there be none so published, then in a newspaper j)ublished in any county adjoining said county. Stay of Proceedings. When issuing the order for the meeting of creditors, the judge shall order that all proceedings against the debtor be stayed ; provided, however, that the said stay of proceedings shall not Chap. 36.1 CALIFORNIA. 129 prevent the judge who shall have granted it, from appointing a receiver to lake possession of all property of the debtor, for the benefit of all his creditors, if one or more of his creditors, his agent, or attorney in fact shall apply for such appointment, and swear that he has reason to believe, and does believe, that the debtor may avail himself of the stay of proceedings, and keep his property from his creditors, if no cause sufficient in the judgment of the Court, shall have been shown, why the debtor should not have the benefit of this act, and shall produce satis- factory proof of the facts on which his affidavit is founded. Meeting of Creditors to Appoint Assignees. At the meeting of creditors, the said creditors after having certified on oath, that their respective claims are legitimate and true, shall proceed to the appointment of one or more assignees, not exceeding three ; in appointing assignees, the opinion of the majority of said creditors, in sums or in claims, shall prevail. At such meeting any creditor may be represented by his duly authorized agent, or attorney in fact. Assignees — Their Duty, Etc. When the assignee or assignees shall have been duly appointed at the meeting of creditors, and the surrender of the propeity shall have been duly accepted of, it shall be the duty of said as- signees to deposit in the clerk's office of the court who shall have issued the order for a call of the creditors, a certified state- ment of the deliberations of said creditors, on the appointment of the said assignees. The judge shall require from the assignees a bond with one or more good and sufficient securities, on which bond the parties therein shall be liable, jointly a) id severally, for the amount thereof, conditioned for the faithful performance of the duties devolving upon said assignees. The amount of such bond shall be determined by the majority of creditor?; should not the creditors so determine, the amount of said bond shall be fixed by the court having jurisdiction of the failure. The assignees shall apply by petition to the court who shall have ordered a meeting of creditors, to be authorized to sell at u 130 CALIFORNIA. [Part 3. public auction and to the best and highest bidder for cash, all the insolvent debtor's property of whatsoever nature or kind ; and said assignees shall give at least twenty days' public notice, in the same manner as notice for a meeting of creditors, of all sales of the property of said insolvent, giving at the same time a full description of the property to be disposed of; provided, however, that if any of the property surrendered be of a perish- able nature, the assignees shall be authorized to sell the same, on giving at least five days' notice of such sale by publi- cation or notice of such sale as in sale on execution. The assignees shall deposit all funds belonging to the failure, in their joint names, bo that nothing can be drawn without the consent of all. Said funds shall remain inviolable, and shall never be loaned, used or mixed with the personal affairs of the assignees; and finally, the said assignees shall make a distribu- tion of the proceeds of the property of the insolvent, agreeably to the dir3ction of the court; said assignees may sue and be sued, either as plaintiffs or defendants, in everything which re- spects the rights and actions, which may belong to the insol- vent, or which may concern the mass of the creditors; all suits brought against the insolvent anterior to hir, -nrrender of prop- erty, before the courts of other counties, siipll be transferred to the court having jurisdiction in the cov a+y in which said in- solvent shall have presented his schedule, i*nd may be continued on motion and notice against his assignees. Dividends. Whenever a dividend shall be declared, the assignees shall make out a statement containing the names of the several creditors, mentioning the sums which are due them respectively; and the said statement shall besides, contain the pro rata sums to be divided among all the creditors. Said assignees shall deposit said statement in the clerk's office of the court, who shall order that notice be given to the creditors in the same manner as for the meeting, that they show cause within fifteen days next following the publication, why the said statement should not be accepted, and the distribution made agreeably to its contents. c e: Ohap. 43.] CALIFORNIA. 131 AcoouNTB OF Assignees. Two or more creditors may at any time make a motion to know if the assignees have funds in their hands, and the said assignees shall be required to present their accounts,^ and if they have funds they shall distribute them wiiliout delay. Discharge of Assignees. Should the assif^uees refuse or neglect to render their accounts as required by the preceding section, or to pay over a dividend, when they shall have, in the opinion of the court, sufficient funds for that purpose in their hands, the court shall immediately discharge such assignees from their trust, and shall have power to appoint others in their place. The assignees ao discharged shall deliver over to those appointed by the court, all the funds, property, books, vouchers and securities belonging to the insolvent, without charging any commission or expenses thereon, and shall also be condemned to jDay to the new assign- ees, for the benefit of the mass of the creditors, twenty per cent, in addition to the amount of funds in their hands. Refusal to Appoint Assignees. If, on the day ai^pointed for the meeting, the creditors, al- though duly summoned, do not attend, or refuse to appoint one or more assignees, it shall be lawful for the judge before whom the said meeting may take place, to authorize the sheriff oi the county to receive the surrender of property offered by the debtor, and to perform in every respect the functions of assignee, and for the faithful performance of said trust, he shall be re- sponsible on his official bond; provided, that if any of the creditors should choose to take that charge, the judge shall ap- point said creditor for that pui-pose, upon said creditor giving bond, with good and sufficient security proportioned to tlie value of the property committed to his charge. Fees op Assignees. The assignees, collectively, shall be entitled to charge and re- ceive for their services, to wit: ten per centum upon a sum not exceeding ten thousand dollars ; eight 2>er centum upon sums 1 ! i 132 CALirORNIA. [Part 3. above ten thousand dollars, and not exceeding thirty thousand dollars; six per centum upon sums above thirty thousand dol- lars, and not exceeding sixty thousand dollars, and four per centum on all sums exceeding sixty thousand dollars; provided, that the said commisions shall be allowed only on such net sums of money as shall actually come to their hands or be distributed by them. The mass of creditors shall in no manner be liable for the fees of counsel of the insolvent debtor in conducting a sur- render of the property. Fraud. That ir. case after the appointment of said assignees, any one or more of the creditors of the insolvent debtor should def m necessary to oppose it, on the ground of some fraud having been committed by the said insolvent debtor, or of the appointment not having been legally made, he shall within ten days next fol- lowing the appointment of said assignees, lay before the cour*. which has already taken cognizance of the case, his ^ylitten opposition, stating specially the several facts of nullity of the said appointment, or of fraud by him alleged agpinst the insol- vent debtor, whereupon, in case of accusation of fraud, after having received the said insolvent debtor's answer, the court shall order a jury to be summoned, of not less than six men, to be summoned in the same manner as juries are summoned in the District Court, for the purpose of deciding on the said accusation. On the day or at the term appointed in such order, or any subsequent day or term, the court shall proceed to hear the proofs and allegations of the parties ; and before any other pro- ceedings be had, shall require proof of the publication of the notice as herein provided. Upon such an accut»ation of fraud, the creditor who shall have brought the same, shall have the right to interrogate the insol- vent debtor on oath, and put to him such written questions, as to the state of* his affairs, and the several transactions in which he may have been engaged anterior to his failure, as he shall 'hink proper; and the insolvent shall answer, in writing, to the said interrogatories, in a pertinent and distinct manner; and every equivocal answer on his part shall be construed against him. Chap. 43.] CALIFORNIA. 13S |ve 5I- las in Ihe ked If the jury summonuil for the purjiose of deciding on the ac- cusation of fraud, brought against such insolvent debtor, declare in their verdict that said insolvent has been guilty of fraud, the said debtor shall forever be deprived of the benefit of the laws passed for the relief of insolvent debtors in this State, If the accusation of fraud brought against the debtor is de- clared to be ill-founded, or if there be no oj^position to the sur- render of his property, and provided said surrender has been made according to the provisions of this act, said debtor shall be released and fully discharged from any and all debts until then contracted, and contracted after the passage of this act, and from every judicial proceeding relative to the same; j)rovi- ded, always, that the release and discharge authorized by this section shall not apply to debts and liabilities not mentioned and set forth in the schedule unless the insolvent shall declare in his petition that it is his desire to be discharged from all his debts and liabilities, and that he has descr'l,ed tliem according to the best of his knowledge and recollection; in which case the discharge and release authorized by this section shall embrace all his debts and liabilities, notwithstanding they may have been imperfectly described, or not described at all. Any insolvent debtor *ho shall be found guilty of fraud as aforesaid, shall foi-ever be deemed incapable of holding any office of trust or profit under the government of this State; shall moreover be liable to be prosecuted and punished as a perjurer, if he should be convicted of having foi-esworn himself in any of tne declarations he may have made agreeably to the ^/I'ovisions of this act, and if convicted of fraud he shall be sen- tenced by the court to suffer imprisonment at hard labor in the State Prison, for a tenn not less than six months, nor more than two years. If the judge before whom the accusation of fraud is brought, or an opposition to the appointment of ausigneea is made, thinks that the interest of the mass of creditors of the insolvent may suffer by a delay of the approval of the appointment of the assignees, it shall be lawful for said judge, all opposition not- withstanding, to approve previously the said appointment, if he finds that it has been made agreeably to law. I 184 CALIFORNIA. [Part 3. 1 That all persons shall be considered as fraudulent bankrupts, who shall be convicted of having concealed their property, with the intention to keep it from their creditors, as also those who shall be convicted of having concealed or altered their books, or papers, with the same intention. That every insolvent debtor shall also be considered as a fraudulent bankrupt who shall be convicted of having passed sham deeds for the purpose of conveying the whole or anj' part of his property and depriving his creditors thereof, or of having knowingly omitted to declare any of his property, rights, or claims in his schedule, or of having purloined his books, or anj- of them, or of having altered, changed, or made them anew, to an intent to defraud his creditors, or of having alienated, mort- gaged or pledged any of his property, or of I'.aving committed any other kind of fraud to the prejudice of his creditors. Certain Debtors Denied the Benefit of the Act. If any debtor shall be convicted of having at any time within three months next preceding his failure, sold, engaged, or mort- gaged any of his. goods and effects, or of having ot^.erwifie assigned, transferred, or disposed of the same, or any pa)t thereof, or confessed judgment in order to give a preference to one or more of his creditors o\ or the others, whereby to receive any advantage in anticipations of his failure, to the prejudice of his creditors, he shall be debarred the benefit of this act. All insolvent debtors owing, or accountable in any maimer for public funds or property of whatever nature or kind; all un- faithful depositaries; all such as refuse or neglect to pay up all funds received by them as bankers, brokers, commi'^sion mer- chants, or for money, goods, or eft'ects, received by them in a fiduciary capacity, sliall T)e denied tlie benefit of this act; pro- vided, that such parties may avail themselves of this act for tlie puri)ose of procuring an equal distribution of their assets among their crerlitors, and for tliat purpose only said act aha.]! apply to estates of such insolvents in tliis section men1 loned ; and provided, furtlier, such debtor may l^e discharged fiom nil debts not named in this section. If, after the presentation of the petition, the insoivent shall sell, or in any manner transfer or assign any of his I Chap. 43.] CALIFORNIA. 185 I property, or collect any debts due him, and shall not give a just and true account of the property so sold or transferred, and the moneys so collected, rnd pay the same over to the assignees within ten days after their appointment, said debtor shall not receive the benefit of this act. Concealing Property. Whenener any insolvent debtor has had the benefit of this act, if thereafter, at any time it is made to appear that he has con- cealed any part of his property or estate, or given a false schedule, or committed any fraud under the provisions of this act, it is hereby declared that he has forfeited all benefit and advantage which he would otherwise have had by virtue of this act, and he cannot avail himself of any of its provisions, in bar to any claim that may be instituted against him. Insolvent to Apply in Person. N > person can apply for, or receive the benefit of this act, ibroutrh an agent or attorney in fact. I u M; hi I kit ms Surrender or Property. t* :A> n id after the surrender of the property of the insolvent debtor, jJl property of such insolvent shall be fully vested in his assignee or assignees, for the benefit of his creditors, and shall not be liable to be seized, attached, taken, or levied on, by virtue of auy execution issued against the property of said insol- vent, and the assignees, who may be appointed, shall take pos- i^ession of, and be entitled to claim and recover all the said ;. j'operty, and to administer, and sell the same, as herein pro- uk^'* Non-Resident Creditors. If there be any creditors residing without the limits of this State, the judge shall appoint an attorney to represent them ; but the fees of said attorney shall in no case be paid by the mass of cred- itors, but shall be levied on the amount of the sums which shall be recovered for the a('('f)unt of such non-resident creditors, at the rate of ten per centum; provided, that in no cas? shall the ■ s 136 CALIFORNIA. [Part 8. whole fees allowed to counsel, appointed on behalf of said creditors, exceed the sum of three hundred and fifty dollars. Where Debtor has no Property. In case the debtor who c ''' ^s for the benefit of this act, should have no property to ii .der to his creditors, or if the appraised value of the property exhibited in his schedule should not amount to more than one third of his debts, in case he should already have received the benefit of this act, during the year next preceding, the judge before whom application is made, shall not admit him to the benefit of this law, unlesa it be proven to the said judge, by affidavit, sworn and subscribed to by two credible and disinterested witnesses, that the debtor has really experienced the losses by him stated, and that the said losses may have reduced him to the situation in which he finds himself; provided, all legal mortgages and liens, bona fide ex- isting on such property at the time of the surrender, as aforesaid, shall remain good and valid, and may be enforced in the same manner as though no such surrender had been made. Assets to be Delivered to Assignee. All the goods, titles and claims which the insolvent debtor shall have declared in his schedule, shall be delivered up to the assignees as soon as they shall have been appointed; and in case the debtor should refuse to deliver up the goods, titles, eflfects, or estates in his possession, the judge shall oblige to thvat deliv- ery, either by orderi g the sheriff to seize the said property, to be by him delivered up to the assignees, or causing the said in- solvent to be imprisoned until the said delivery shall be effected * Assignees to Keep an Account. The assignee or assignees appointed under this act, shall make out a true account of all disbursements made by them in discharge of their duties as assignee or assignees, which shall be verified by the oath of such assignee or assignees, and shall deliver the same to the judge having jurisdiction of the subject matter; and such judge shall in writing certify such part or Chap, 43.] OALIFORNIA. 137 parts of the same as he shall deem to be just and necessarily expended by said assignee or assignees in the discharge of their duty, which amount so allowed shall be paid out of the pro- pel ty of such insolvent debtor. ill I in ill ill pet or CHAPTER XLIV. INSOLVENCY. -,^.;,v..,.^^,'' .■ Involuntary Proceedings. , ^, ■'■Wr:,'};:- '•'Ml T,">'i' A petition may be filed in the County Court of the county in which any person resides or has his place of business, signed by three or more creditors of such person, and verified by at least two of such signers, setting forth that such person is indebted to them respectively, in amounts which must be stated in the petition, and that such person is about to depart from the State wi()h intent to defraud his creditors; or, being absent from the State with such intent, remains absent; or conceals himself to avoid the service of legal process; or conceals, or is removing any of his property to avoid its being attached or taken on legal process; or has made any assignment, gift, sale, conveyance, or transfer of his estate, property, rights, or credits, with intent to delay, defraud, or hinder his creditors; or has been arrested and held in custody by virtue of any civil process of court, founded on any debt or demand, and such process remains of force, and not discharged, by payment or otherwise, for a period of twenty days; or, being insolvent or in contemplation of insolvency, has made any payment, gift, grant, sale, conveyance or trans- fer of money or other property, estate, rights, or cred- its; or has confessed judgment or suflfered or procured his property to be taken on legal process, with intent to give a preference to one or more of his creditors, or with the intent, by such disposition of his property, to delay, defraud, or hinder his creditors ; or has fraudulently stopped 138 CALIFORNU. [Pf-t 3. payment ; or has stopped or suspended, and not resumed pay- ment within a period of forty days, of any commercial paper made or passed in the course of his business ; or, being a bank or banker, broker, or commission merchant, has failed for forty days to pay any moneys deposited with or received by him, for goods or other effects, in a fiduciary capacity, upon demand of payment lawfully made ; or that the property of such person has been attached by a creditor or creditors other than such petitioners, and the attachment has not been released or dis- solved within two months thereafter. The Court shall thereupon issue an order requiring such debtor to show cause, at a time und place to be fixed by said Court, why he should not be ad- judged an insolvent debtor, and the surrender of his estate be made for the benefit of his creditors in the manner required of insolvent debtors. No creditors must sign said petition whose debt or demand is less than two hundred and fifty dollars in gold coin of the United States. A copy of said petition, with a certified copy of the order to show, cause, shall be served on said debtor personally, or left at his last or usual place of abode, at least five days before the time fixed for the hearing ; or, if such debtor cannot be found or his place of residence ascertained, service thereof shall be made by publication in such manner as the Court may direct. At the time fixed for the hearing, or such other time as it may be adjourned to, and upon proof being made to the satisfaction of the Court of such service or publication, the Court shall inquire if the facts set out in said petition are true; and the issues raised thereon may be tried, with or without a jury, as may be agreed upon. If the debtor shall make default, or if it shall be found that the facts set out in said petition are true, the Court shall make an order adjudging that said debtor is, and was at the time of the filing of said petition, insolvent within the true intent and meaning of the acts to which this is supplemental, and shall re- quire said debtor, within such time as may be required, to file in said court a statement of his affairs in the manner and mode re- quired by said acts; and thereupon all proceedings shall be had in said matter in the same manner as if said debtor had volun- tarily filed'his petition. Chap. 36.) CALIFORNIA. 139 If said debtor shall fail to file such statement, the Court shall have the power to punish such debtor as for a contempt, and may order the petitioning creditors to make such statement. If any debtor shall be adjudged insolvent, either under this act or the acts to which it is supplementary, all attachments upon the property of said debtor which were levied at any time within two months before filing the petition are dissolved, and all such property shall vest in the manner and with like effect as pro- vided in said acts, in the assignee or assignees to be appointed in such cases. In all cases under the act the Court shall allow to the petition- ing creditors, out of the estate of the debtor, as preferred claim, all costs and expenses incurred by th?m in that behalf; provided, however, if on the hearing it shall be adjudged that the facts set out in the petition of the creditor are not sustained, the debtor shall recover from such creditors his costs incurred by him, to be recovered in the same manner as on final judg- ment in civil actions. All costs and expenses incurred by an attaching creditor shall be provable and allowed against the estate of the debtor. If any person, being insolvent, or in contemplation of insolv- ency within two months before the filing of a petition by or against him, with a view to give a preference to any creditor or person having a claim against him, or who is under any liability for him, procures any part of his property to be attached, sequesteied, or seized on execution, or makes any payment, pledge, assignment, transfer, or conveyance of any part of his property, either directly or indirectly, absolutely or condition- ally, the person receiving such payment, pledge, assignment, transfer, or conveyance, or to be benefitted thereby, or by such attachment, having reasonable cause to believe that such person is insolvent, and that such attachment, seiziire, payment, pledge, 140 GALIFOBNIA. [Part 3. conveyance, transfer, or assignment is made with a view to pre- vent his property from coming to his assignee in insolvency, or to prevent the same from being distributed ratably among his creditors, or to defeat the object of, or in any way hinder, im- pede, or delay the operation of, or to evade any of the provi- sions of this act, or of the act or acts to which this act is sup- plemental, or of which this act is amendatory, such transfer, payment, conveyance, pledge, or assignment is void, and the assignee may recover the property, or the value thereof, as assets of such insolvent debtor; and if such sale, assignment, transfer, or conveyance is not made in the usual and ordinary course of business of the debtor, the fact shall be prima facie evidence of fraud. PART IV. STATE OF NEVADA. ,,■■$■;,/,■ PREPARED EXPRESSLY FOR THIS WORK BY BISHOP & SABIN, EUREKA, EUKEKA CO., NEV. CHAPTER I. COURTS, JURISDICTION, AND TERMS OF COURTS. United States Courts. United States Circuit Court, Ninth Circuit ; composed of the Districts of California, Nevada and Oregon. Judges — Stephen J. Field, Associate Justice U. S. Supreme Court; Lorenzo Sawyer, Circuit Judge, of San Francisco, California ; District Judge, E. W. Hillyer, of Carson City, Nevada. U. S. Attorney, C. S. Varian, Reno, Nevada ; Marshal, Aug. Ash, Virginia City ; Clerk, T. J. Edwards, Carson City. Terms of U. S. Circuit Court — At Carson City, third Monday in March, auA. first Monday in November of each year. Terms of U. S. District Court — At Carson City, first Mondays in February, May and October. (For the jurisdiction of the United States Courts, see Part II.) 142 NEVADA. (Part 4. State Courts. One Supreme Court, and nine District Courts. The Supreme Court consist of three judges. The oldest in commission acts as chief justice. Judge — Thomas P. Hawley, C. J.; Wm. H. Beatty and O. R. Leonard, Associate Justices. Clerk, Charles F. Bicknall. All reside at Carson City. Regular Terms — First Mondays of January, April, July, and October. The Supreme Court shall have appellate jurisdiction in all cases in equity; also in all cases at law in which is involved the title or right of possession to, or the possession of, real estate or mining claims, or the legality of any tax, impost, assessment, toll, or municipal fine, or in which the demand, (exclusive of in- terest) or the value of the property in controversy, exceeds three hundred dollars; also in all other civil cases not included in the general subdivision of law and equity, and also on questions of law alone, in all criminal cases in which the offense charged amounts to felony. The Court shall also have power to issue writs of mandamus, certiorari, prohibition, quo warranto and habeas corpus, and also all writs necessary or proper to the com- plete exercise of its appellate jurisdiction. Each of the justices shall have power to issue writs of habeas corpus to any part of the State, upon petition by, or on behalf of, any person held in actual custody, and may make such writs returnable before him- self or the Supreme Court, or before any District Court in this State, or before any judge of said Courts. District Courts. Jurisdiction. — The District Courts in the several judicial dis- tricts of this State shall have original jurisdiction in all cases in equity; also in all cases at law which involve the title or the right of possession to, or the possession of, real property or mining claims, or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases in which the demand, (ex- clusive of interest) or the value of the property in controversy, Chap. l.J NEVADA. 143 exceeds three hundred dollars; also in all cases relating to the es- tates of deceased persons, and the persons and estates of minors and insane persons, and of the action of forcible entry and unlawful detainer ; and also in all criminal cases not otherwise provided for by law. They shall also have final appellate jurisdiction in cases arising in Justice's Courts, and such other inferior tribunals as may be established by law. The District Courts, ".iid the judges thereof, shall have power to issue writs of mandamus, injunction, quo warranto, certiorari, and all other writs proper and necessary to the complete exercise of their jurisdiction ; and also have power to issue \^ rits of habeas corpus, on petition by, or on behalf of, any person held in custody in their respective districts. Times for Holding District Courts for 1878. COLNTY. COLNTV 8KAT. 1)I8T. Ist . . . WHKN HELD. , , Storey Virginia City First Monday of January, March, June, and October. Ormsby Carson 2d.... First Monday of February, June, and November. VVa'.!ilioe Heno ••. 2d.... First Monday of January, March, June, and October. First Monday of Shiy and December. „ Oo'iglas Uenoa 2d.... Ljon Dayton 3d.... First Monday of February, May, August and Nove'ber. Huuiboldt .. Winnemucca 4th... First Monday of January, Ajiril, July, and Octet;. • Churchill... Stillwater 5th ... First Monday of May and December. Lander Austin 5th . . First Monday of January, June, and October. First Monday of March August and November. Nve Belmont Eureka 5th... Cth. . Kureku . . ■ • First Monday of March, July, and November. First Monday of January, May, and September. First Monday of January, April, July and October. First Monday of June and December. First Monday of February, June, and October. White Pino.. Hamilton 6th... Liinuolii Pioche 7th .. . Aurora 8th... Blko Elko 9th .. . •t; i lU NEVADA. [Part 4, Terms of Court After First Monday in January, 1879. No. OF DiST. COUNTIBS COMPOBINO DiHT. Tkrms Commrnck. Ist Dist . . . 8torev Countv lat .Monday in January, March, June and October. 'MDist Wa8h«>e, Ormiby and Douipr- In Washoo County: Ist Monday, January, Aiiril und September. In Orinsby County: lat Monday, March, June and November. In Dmiiflas County: Ist Monday, May und December. 3il Dist Lyoii and Esmeralda In Lyon County: l8t Monday, February, July and December. In Esmeralda: 1st Monday, May and October. 4th Dist 2d Monday, February, June and October. 5th Dial.... Lander, Nye and Churchill . . In Lander County: Ist Monday, January, June and October. Nye: Ist Monday, March, Aufjust and November. Churchill: 1st Monday May and December. 6th Dlst.... Eureka, White Pino and Lin- colli In Eureka County: lat Monday February, June and September. In Wh te Pine County: Isi Monday in April and November. In Lincoln County: 1st Monday January and August. 7th Dist. . . . 1 Elko County 3d Monday in February June and October. I . I I I Justices* Courts. Justices of the Peace have jurisdiction in all civil cases when the demand, (exclusive of interest) does not exceed three hundred dollars. Are always open. Chap. 2.] NEVADA. 145 CHAPTER II. TIME ALLOWED TO ANSWER— SERVICE BY PUBLI- CATION— PLACE OF TRIAL. Defendant has ten days to answer summons, exclusive of day of service, from date of service, when served within the county, twenty days when served in the" district but i anotlier county than the one where the action was commenced, and in all other cases forty days, when personal service is had. Service by publication may be had on defendant, upon filing of proper affidavit therefor. Summons to be published once a week for at least one month, against defendants residing in the States of California or Oregon, and the Temtories of Utah and Washington; in all other cases the publication of summons to be for not less than three months. Place of Trial. • ' All actions pertaining to real estate, or to the recovery thereof, or any interest therein, must be commenced in the county wherein the real estate is situated. Transitory actions follow the person. ; ;p ■• Provisions in Justices' Courts. • , x Defendant must be sued in the township in which he lives, unless he is served with summons in the county-seat, or has contracted to perform an obligation at a particular place; in which case he may be sued in the township, city, or precinct where such obligation is to be performed, or in the township in which he resides. Service must be made from one to ten days before return dav of summons. . . ' ^ ' f II ' i ' ' 346 NEVADA. [Part 4. <^;HAPTJiR III. LIMITATION OF ACTIONS. 1^ 1 1' I Civil actions, except for recovery of real property, can only be commenced as follows: Within Six Years — 1. Upon a judgment or decree of any Court of the United States, or of any State or Tenitory within the United States. 2. Upon a contract, obligation, or liability founded upon a written instrument. Within Four Years. — 1. An action on an open account, for goods, wares, and merchandise sold and delivered. 2. An action for any article charged in a store account, time to date from date of last charge, or date of last credit. 3. An action upon a contract, obligation, or liability, not founded upon an instrument in writing. Within Three Years — Upon a liability created by statute, other than a penalty or forfeiture; for trespass upon real prop- erty; for taking, detaining, or injuring any goods or chattels; including actions for the specific recoverj'^ of personal property; for relief on the grourd of fraud; the cause of action not deemed to have accrued until discovery by party aggiieved of facts constituting a fraud. Within Two Years. — Against a sheriff, coroner, or constable, upon the liability incurred by the doing of an act in his official capacity and in virtue of his office, or an omission of an official duty, including non-payment of monej collected upon cxe^^u- tion. Upon statute for a penalty or forfeiture where the action is given to an individual, or to an individual and the State, ex- cept when the statute imposing it fixes a different limitation. For libel, slander, assault, battei'y, or false imprisonment. Upon statute for forfeiture or penalty to the State. Against a sheriff or other officer, for escape of a prisoner arrested or im- prisoned on civil process. In case of mutual accounts, the Cfcag. 3. NEVADA. 147 statute begins to run from date of last entry in account of either party. In all other cases, within four years after cause of action accrued. Contracts entered into prior to March 2, 1877, are controlled by the provisions of the act of 1867, which provides that actions must be commenced : Within Five Years. — Upon a judgment or decree of any Court of the United States, or of any State or Territory within the United States. Within Four Years. — Upon ar.y contract, obligation, or lia- bility, founded upon an instrument in writing. Within Three Years As abuve stated. Within Two Years. — As iibove, and actions on an open ac- count for goods, wares, and merehandise sold and delivered. Also an action for any article charged in a store account. iute, irop- Itels; 3rty; not Id of ible, icial icial kecu- jtiou ex- lition. lent. im- the General Provisions. ' Limitation does not run against a party during absence from State, and if when a cause of action shall accrue against a party, he be out of the S\ate, the action may be commenced within the time limited after his return to the State. The statute does not run against a married woman, or a person under the age of twenty-one years; one insane, or laiprisoned on criminal charge, where term of imprisonment dc ss not extend to life An action upon a judgment, contract, obligation, or liability, for the payment of money or damages obtained, made, executed, or issued out of the State, can only be commenced as follows: 1. Within one year, when prior to the passage of the act, (March 5, 1867) more than two and less than five years have elapsed since the cauyj of action accrued. 2. Within six mouchs, when prior to the passage of the act, more than five years have elapsed since the cause of action ac- crued. 3. Within two years, in all other cases, after the cause of ac- tion accrued; a right of action shall be deemed to have accrued on a judgment at the time of its rendition. 148 NEVADA. [Part 4. When the cause of action has arisen in any other State or Territory of the United States, or in a foreign country, and by the laws thereof an action cannot be maintained against a person by reason of the lapse of time, no action thereon shall be main- tained against him in this State. , No acknowledgment or new promise shall take the case out of the statute, except it be in writing^ signed by the party to be charged. Actions for recoveiy of possession of real estate must be com- menced within five years, except actions for the recovery of min- ing ground, which must be commenced within two years, from time cause of action accrued. CHAPTER IV. ATTACHMENTS. Writ of attachment may be issued with summons, or at any time afterwards: 1. In an action uj)on a contract for the direct payment of money, made, or by the terms thereof, payable in this State, which is not secured by mortgage, lien, or pledge upon real or personal property, situated or being in the State, if so secured, when such security has been rendered nugatory by the act of the defendant. 2. In an action upon a contract against a defendant not resid- ing in this State. Writ to be issued upon filing of an afiidavit to be made by plaintiff, or some one on his behalf, setting forth the statutory grounds for issuance of the writ. Plaintiff must give bond to secure defendant against damage arising from the issuance of the writ, in case the attachment is .dismissed, or the defendant recover in the action. Real and personal property, debts and credits, stocks or shares in anv corporation, may be attached in the manner pointed out by the statute. Chap. 5.] NEVADA. 149 L(i- CHAPTER V. ARREST IN CIVIL ACTIONS. The defendant may be arrested in the following cases : 1. In an action for the recovery of money or damages, on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the State with intent to defraud his creditors, or when the action is for libel or slander. 2. In an action for a fine or penalty, or for money or projDerty embezzled, or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an at- torney, factor, broker, agent, or clerk, in the course of his em- ployment as puch, or by any other person in a fiduci;iry capacity, or for misconduct or neglect in office, or in j essional employ- ment, or for willful violation of duty. 3. In an action to recover the possession of person 1 prop- erty unjustly detained, when the property or any part thereof has been concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff. 4. Wher. the defendant has been guilty of a fraud in contract- ing the debt or incurring the obligation for which the action is brought, or in concealing or disposing of the property, for the taking, detention, or conversion of which the action is brought. 5. When the defendant has removed or disposed of his prop- erty, or is about to do so, with intent to defraud his creditors. The order of an-est is only issued upon filing an affidavit and bond as required by statute — bond to be for a sum not less than four hundred dollars. I is s \ih--'f Ires )Ut 150 NEVADA. [Part 4. ■^ CHAPTER VI. JUDGMENTS AND JUDGMENT LIENS. From time judgment is docketed it becomes a lien upon all real property of the judgment debtor, not exempted from execu- tion in the county, owned by him at the time, or which he may afterwards acquire, until the lien expires. Lien of judgment continues for two years, unless the judgment be previously sat- isfied. Personal property, not exempt from execution, is only held for satisfaction of judgment after levy of execution thereon. i CHAPTER VII. EXECUTIONS, EXEMPTIONS, SALE, AND REDEMP- TION. Execution may issue for the enforcement of a judgment at any time within five years after the entry thereof, and may be issued to the sheriff of any county in the State in proper cases. Exemptions. The following property of the judgment debtor 'h exempt from execution: 1. Chairs, tables, desks, and books to the value of $100. 2. Necessary household furniture, wearing appai 1, beds, bed- ding, provisions, and firewood sufficient for one mouth. 3. Farming uteusilH; also two oxen or two horHcs, or two mules and their harness; two cows, one cart or wagon; and food for such oxen, horses, cows, or mules, for one montli; also all seed grain or vegetables actually provided, reserved, or on hand Chap. 7.1 NEVADA. 151 1- »e« two food L, all luul for the purpose of planting or sowing, at any time within the ensuing six months, not exceeeding in value $400. 4. The tools and implements of a mechanic or artisan neces- sary to carry on his trade; the instniments and chests of a sur- geon, physician, surveyor, and dentist, necessary to the exercise of their profession, with their scientific and professional libraries, and the libraries of an attorney or counsellor, and the libraries of minis ero of the gospel. 5. The cabin or dwelling of a miner, not exceeding in value $500; also all tools and implements necessary for canying on any mining operation not exceeding in value $500; and two horses, mules, or oxen, with their harnesses, and food for the same for one month, when necessary to be used in such mining operations. 6. Two oxen, two horses, or two mules, and their harness, and one cart or wagon, by the use of which a cartman, huckster, peddler, teamster, or other laborer, habitually earns his living; and one horse, with vehicle and harness, or other equipments used by a physician or surgeon or minister of the gospel in mak- ing his professional visits, and food for such oxen, mules, or horses, for one month. 7. One sewing machine, not exceeding in value $150, in actual use by the debtor or his family. 8. All fire engines, hooks and ladders, and .Jl apparatus and furniture belonging to any fire company or department. 9. All arms, uniforms, and accoutrements required by law to be kept by any person. 10. All court houses, jails, public oflBces and buildings, lots, grounds, and personal property; the fixtures, furniture, books, papers, and appurtenances belonging and pertaining to the court house, jail, and public offices belonging to anj' county in this State; and all cemeteries, public squares, parks and places, pub- lic buildings, town halls, public markets, buildings for the use of the fire departments and military organizations, and the lots and grounds thereto belonging and appertaining, owned or held by any town or incorporated city, or dedicated by such town or city to health, ornament, or public use, or for the use of any fire or military company organized under the laws of this State. 162 NEVADA. [Part 4. 11. None of the above articles or species of property are ex- empt from execution issued upon a judgment recovered for its price, or upon a mortgage thereon. 12. The earnings of a judgment debtor arising from his per- sonal services for tae thirty days preceding the making of the order, (in supplemental proceedings) to the extent of fifty dol- lars, are exempt, when it shall be made to appear by the debtor's affidavit, or otherwise, that such earnings are necessary for the use of a family supported wholly or partially by his labor. For homestead exemption, see "Homesteads." Sale. Real property may be sold upon twenty days' notice, given as required by law; and personal property after five days' notice of the time and place of sale, as required by law. Redemption. Real estate sold upon execution or order of sale, upon mort- gage or otherwise, may be redeemed by the judgment debtor, or his successors in interest in the whole or any part of the prop- erty; or by a creditor having a lien by judgment or mortgage upon the property sold, or some share or part thereof subsequent to that upon which the property was sold, within six months from the date of sale. Real property sold foi* taxes is not sub- ject to redemption. Personal property; sold upon execution, is not subject to redemption. CHAPTER VIII. PROCEEDINGS SUPPLEMENTARY TO EXECUTION. Upon return of execution unsatisfied, in whole or in part, issued upoa any judgment, the defendant may be required to appear before the Court, and answer under oath concerning his prop- erty. , Chap. 9.] NEVADA. 153 CHAPTER IX. SECURITY FOR COSTS. When plaintiflF is a non-resident, or is a foreign coporation. security for costs may be required. CHAPTER X. APPEALS. IS jp- An appeal from a judgment rendered in a Justice's Court may be taken to the district court within thirty days after entry of judgment, upon filing a bond with two sufficient sureties for double the amount of judgment and costs, in case stay of execu- tion is demaniled. An appeal may be taken from the District to the Supreme Court : 1. From a final judgment in action or special proceeding com- menced in the Court in which the judgment is rendered, within one year after the rendition of judgment. 2. From an order granting or refusing a new trial, from an order granting or dissolving an injunction, and from an order refusing to grant or dissolve an injunction, and from any special order made after the final judgment, within sixty days after the order is nade and entered in the minutes of the Court. 3. From an interlocutory judgment or order in cases of parti- tion which determines the rights of the several parties, and directs partition, sale, or division to be made, within sixty days after the rendition of the same. In all cases of appeal to the Supreme Court, a bond must be filed in the sum of $300 for i)ayment of costs of appeal ; and in case a stay of execution is demanded, then an additional bond I M 164 NEVADA. [Part 4. must be filed in a sum for double the amount of the judgment and costs. Bonds to be given by appellant, and to be executed by two or more sureties. ' CHAPTER XI. ESTATES OF DECEASED PERSONS. Claims against estates of deceased persons must be presented, proved, and allowed within ten months after the first publication of administrator's or executor's notice to ereditors, excepting claims of persons who are non-residents of the State, who have not had actual notice; they may present their claims at any time before distribution of estate. Claims may be verified by resi- dents before any officer authorized to administer oaths within the State. An affidavit taken before a justice of the peace of any other county in the State except the one where the adminis- trator or executor r asides, must to entitle it to be used or filed, contain a certificate of the clerk of the county where such justice resides, reciting the facts that said justice is duly commis- sioned and acting as such justice of the peace ; that the signature of such justice is genuine, and that full faith and credit are due to all his official acts. Affidavits to correctness of accounts and claims, when made out of the State of Nevada, mu«t to insure their reception, be verified before some judge of a Court having a seal, under the seal thereof, or a commissioner of deeds duly commissioned and qualified, of the State of Nevada, or before a notary public whose official character is duly certified to by the Secretary of State or Territory in which he and the party making proof reside. Time in which the estate must be settled not limited by stat- ute; it is subject to the order of the Court. District Courts have sole jurisdiction of all original proceed- ings in probate matters. Chap. 12.] NEVADA. 155 CHAPTER XII. HOMESTEADS, The homestead of a judgment debtor, consisting of a quantity of land, together with the dwelling-house thereon and its ap- purtenances, not exceeding in value five thousand dollars, to be selected by husband and wife, or either of them, or other head of the family, is exempt from forced sale on execution or other process from any Court. Homesteads are declared as follows: The selection to be made by either the husband or wife, or both of *hem, or other head of a family, declaring their inten- tion in riting to claim the same as a homestead. The same to be duly acknowledged and recorded as conveyances affecting real estate. Declaration of intention to claim and hold a homestead may be made at any time prior to sale on execution or other process, excepting on sale of premises, on foreclosure of mortgage upon the premises executed by husband and wife; or where the judg- ment is for the purchase price of the property claimed as a homestead. This exemption does not extend to any mechanic's, laborer's or vendor's lien upon the premises. The homestead may be abandoned by a declaration in writing, signed and acknowledged by husband and wife, and recorded in the office of the county recorder, in the same manuer as the declaration to claim the same is required to be acknowledged and recorded. On the death of husband or wife, the homestead and other property exempt from sale on execution is required to be set apart by the Court for the benefit of the surviving hus- band or wife, and his or her legitimate children. In cases where homestead property is appraised at a sum ex- ceeding five thousand dollars, the same may be sold, and the sum realized on sale in excess of five thousand dollars and costa pass to judgment creditor. 156 NEVADA. [Part 4. OHAPTER XIII. OF WITNESSES AND DEPOSITIONS. Parties to the action are not excluded from being witnesses upon the ground of interest, except — 1. That no party to an action or proceeding is allowed to testify therein, when the opposite party is the representative of a deceased person, when the facts to be proved transpired be- fore the death of such deceased person. 2. Persons convicted of felony, unless pardoned, or the judg- ment is reversed on appeal, cannot be witnesses. Attorneys or counsellors cannot, except by consent of their client, be examined as to any confidential communications made to them in the course of their professional employment, and the like rule applies to physicians, surgeons, clergymen or priests, with respect to confidential communications made to them in their professional capacity. 4. Husband or wife cannot be witnesses for or against each other, except in actions brought by one against the other. 5. Public ofl&cers cannot be examined as witnesses in reference to communications made to them in official confidence, when the public interest would, by such disclosures, be injured. 6. Laws relative to the attestation of instruments required to be attested are resei-ved from the operation of the statute allow- ing parties in interest to testify. Negroes can testify in all cases where whites are permitted to act as witnesses. The testimony of a witness in this State may be taken in an action at any time after the service of the summons, or the ap- pearance of the defendant; and in a special proceeding, after a question of fact has arisen therein, in the following cases: 1. When the witness is a party to the action or proceeding, or a person for whose immediate benefit the action or proceeding is prosecuted or defended. 2. When the witness resides out of the county in which his testimony is to be used. ■Chap. 18.1 NEVADA. 157 3. When the witness is about to leave the county where the action is to be tried, and will probably continue absent when the testimony is required. 4. When the witness, otherwise liable to attend the trial, is nevertheless too infirm to attend; or resides within the county, but more than fifty miles from the place of trial. The deposition may be taken before any judge, or clerk of a Court, or any justice of the peace or notary public in this State, on servinjf upon the adverse party previous notice of the time and place of the examination, together with a copy of an affida- vit showing that the case is one mentioned as above stated. Such notice shall be at least five days, and in addition one day for every twenty-five miles of the distance of the jilace of ex- amination from the residence of the person upon whom notice is served, unless, for cause shown, a judge, by order, prescribe a shorter time. Either party may attend such examination, and put such questions, direct and cross, as may be proper. The dejiosition, when completed and corrected, shall be signed by the witness and sealed and directed to the clerk of the Court in which the action is pending, or to such person as the parties, in writing, may agree upon, and either delivered by the officer taking the same to the clerk or such person, or transmitted through the mail, or by some safe private opportunity ; and such deposi- tion may be used by either party upon the trial against any party giving or reciving such notice, subject to all legal objections. If the parties attend at the examination, no objection to the form of an interrogatory shall be made at the trial, unless the same was stated at the time of the examination. If the deposition to be taken be by the reason of the absence or intended absence from the county of the witness, or because he is too infirm to attend, proof, hj affidavit or oral testimony, shall be made at the trial that the witness continues absent or infirm, to the best of deponent's knowledge or belief. Depositions thus taken may be also read, in case of the death of the witness. When a deposition has been once taken, it may be read in any stage of the same action or proceeding by either party, and shall then be deemed the evidence of the party reading it. ■;3; 168 NEVADA. [Part 4. I I Depositions Taken Out of the State. The testimony of a witness out of the State may be taken by deposition in an action at any time after the service of the sum- mons, or the appearance of the defendant; and in a special proceeding, at any time after a question of fact has arisen therein. The deposition of a witness out of the State shall be taken upon commission issued from the Court, under the seal of the Court, upon an order of the judge or Court, on the application of either party, upon five days' previous notice to the other. It shall be issued to a person agreed upon by the parties, or if they do not agree, to any judge or justice of the peace selected by the officer granting the commission, or to a commissioner ap- pointed by the governor of this State to take affidavits and depositions in other States or Territories. Such proper interrogatories, direct and cross, as the respective parties may prepare, to be settled, if the parties disagree as to their form, by the judge or officer granting the order for the com- mission, at a day fixed in the order, or at the time of granting the order for commission, may be annexed to the commission; or, when the parties agree to that mode, the examination may be without written interrogatories. The commission shall authorize the commissioner to adminis- ter an oath to the witness, and to take his deposition in answer to the interrogatories, or when the examination is to be vdthout interrogatories in respect to the questions in dispute, and to certify the deposition to the Court, in a sealed envelope directed to the clerk or other person designed or agreed upon, and for- ward to him by mail, or other usual channel of conveyance. t ' Chap. 14.] NEVADA. 159 CHAPTER XIV. JUDICIAL RECORDS, HOW PROVED. A judicial record of this State, or the United States, or any Territory, may be proved by the production of the original, or a copy thereof, certified by the clerk or other person having the legal custody thereof, under the seal of the Court, to be a true copy of such record. The records and judicial proceedings of the Courts of any other State of the United States, or of any Territory, may be jt. roved or admitted in tha Courts of this State, by the attesta- tion of the clerk and seal of the Court annexed, if there be a seal, together with a certificate of the judge, chief justice, or 2)residing magistrate, as the case may be, that the said attesta- tion is in due form. A judicial record of a foreign country may be proved by the pro- duction of a copy thereof, certified by the clerk, with the seal of the Court annexed, if there be a seal, or by the legal keeper of the record, with the seal of his oflSce annexed, if there be a seal, to be a true copy of such record, together with a certificate of a judge of the Court, that the person making the certificate is the clerk of the Court, or the legal keeper of the record, and in either case that the signature is genuine, and the certificate in due form; and, also, together with the certificate of the minister or embassador of the United States, or of a consul of the United States, in such foreign country, that there is such a Court, speci- fying generally' the nature of its jurisdiction, and verifying the signature of the clerk and judge, or other legal keeper of the record. Second. A copy of the judicial record of a foreign countrj- shall also be admissible in evidence upon proof: 1. That the copy offered has been compared by the witness with the original, and is an exact transcript of the whole of it. 2. That such original was in the custody of the clerk of the Court or other legal keeper of the same; and, 160 NEVADA. [Part 4. 3. That the copy is duly atteste- jy a seal, which is proved to be the seal of the Court where the record remains, if it be the record of a Court; or if there be no such seal, or if it be not the record of a Court, by the signatui'e of the legal keeper of the original. CHAPTER XV. ACKNOWLEDGMENTS. ; 'Hi The proof or acknowledgment of every conveyance affecting any real estate shall be taken by some one of the following offi- cers : 1. If acknowledged or proved within this State, by some judge or clerk of a Coiirt having a seal, or some notaiy public, or justice of the peace: provided, when the acknowledgment is taken before a justice of the peace in any other county than that in which the real estate is situated, the same shall be accompanied with the certiticati of the clerk of the District Court of such county, as to the official character of the justice taking the proof or acknowledgment, and th. authenticity of his signature. 2. If acknowledged or proved without this State, but within the United States, shall be taken by some one of the following officers : A judge or clerk of a Court having a seal, or some notary public or justice of the peace, or by any (commissioner :ippointed by the Governor of this State for that purpose : provided, that when the acknowledgment is taken bv a justice of the peace, the same shall be accompanied by the certificate of the clerk of a Court of record of the county having a seal, as to the official character of the justice and the authenticity of his signature. 3. If acknowledged or proved without the United Stati;?, bv some judge or clerk of any Court of any State, Kingdom or Empire having a seal, or by any notary public therein, or by any minister, commissioner, or consul of the United States, appointed to reside '^nerein. 1 Chap. 16.1 NEVADA. . 161 CHAPTER XVI. AFFIDAVITS, BEFORE WHOM TO BE TAKEN. An aflfidavit to be used before any Court, judge, or officer of this State may be taken before any judge or clerk of any Court, or any justice of the pea?e, or notary public in this State. An affidavit taken in another State, or in a Territory of the United States, to be used in this State, shall be taken before a commissioner appointed by the Governor of this State to take affidavits and depositions in such other State or Territory, or before any judge of a Court of record having a seal. An affidavit taken in a foreign country, to be used in this State, shii^' be taken before an embassador, minister, or consul of the United States, or before any judge of a Comt of record having a seal, in such foreign country-. When an affidavit is taken before a judge of a Court in another Stnte, orina Teiritory of the United States, or in a foreign country, the genuineness of the signature of the judge, the ex- istence of Court, and the fact that such judge is a member thereof, shall be certified by the clerk of the Court, under the seal thereof. CHAPTER XVH. LIMITED PARTNERSHIPS. May be formed for the transaction of mercantile, merhanical, mining, or manufacturing business by two or more persons, as provided for by special statute. But nothing contained in the act shall authorize such partnei'ships for the purpose of banking or insurance. In partnersliips of this character there shall be one or more members of the firm to be known as general partners, !»,nd they 1 I 162 NEVADA. [Part 4. are individually liable for the debts of the firm. The special partners are liable for the firm debts to the extent of their in- terest in the fiim property or assets; also to the extent of any sums of money by them received, withdrawn, or divided, with interest thereon from the time they were so withdrawn from the firm. The business of the partnership shall be conducted under a firm name, in which the names of the general partners only shall be inserted, and the general partners only shall transact the business. If the name of any special partner shall be used in said firm with his consent or privity, or if he shall personally make any contract respecting the concerns of the partnership with any person except the general partners, he shall be deemed and treated as a general partner. CHAPTER XVIII. MARRIED WOMEN May become sole traders upon petition, and by order of Dis- trict Court. When they are sole traders, they become liable for debts ir. curred in the conduct of the business authorized to be carried on by them as such. And their separate property, if they have any, is liable for such debts. CHAPTER XIX. CORPORATIONS May be formed for all purposes under general statute. Stockholders are not individually liable for any debt of the corporation. 'I Chap. 20. NEVADA. 168 CHAPTER XX. CHATTEL MORTGAGES. No chattel mortgage upon any personal property shall be yalid for any purpose, except possession of the property mortgaged be given to and continuously retained by the mortgagee, except that growing crops may be mortgaged by the execution, acknowl- ment and record of a mortgage, with delivery of possession. CHAPTER XXI. INTEREST AND USURY. Where there is no express contract in writing, fixing a differ- ent rate of interest, interest shall be allowed at the rate of ten per cent, per annum for all moneys after they become due upon an}' bond, bill, or promissory note, or other instrument in writing, on any judgment recovered before any Court in this State, for money lent, money due on settlement of accounts from the day on which the balance is ascertained, and for money received for the use of another. Parties may agree in writing for the payment of any rate of interest whatever upon money due, or to become due on any contract. Judgments rendered upon contracts shall confoim tliereto, and bear the interest agreed upon^by the parties, which shall be specified in the judgment : prtwi'ded, only the amount of the original claim .r demand shall draw interest after judg- ment. 164 NEVADA. [Part 4. CHAPTER XXII. PROMISSORY NOTES AND BILLS OF EXCHANGE. All notes in writing made and signed by any person, whereby he shall promise to pay to any other person, or to his order, or to the order of any other person, or to the bearer, any sum of money therein mentioned, shall be due and payable as therein expressed, and shall have the same e£fect, and be negotiable in like manner, as inland bills of exchange, according to the cus- tom of merchants. Days of grace are allowed upon bills and promissory notes, where not otherwise expressed. Damages for non-acceptance of bills of exchange upon the usual protest are as follows, when drawn or negotiated in this State : If such bills shall have been drawn upon any person or persons in any of the United States east of the Rocky Mountains, fifteen dollars upon the hundred upon the principal sum specified in such bill. If such bill shall have been drawn upon any person or persons in any part or place in Europe, or in any foreign country, twenty dollars upon the hundred upon the principal sum specified in such bill. OHAPTER XXn, MORTGAGES. A mortgage of real property, whatever its terms, shall not be deemed a conveyance, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale. Ohap. 24. J NEVADA. 165 CHAPTER XXIV. JOINT DEBTORS— RELEASF OF— ACT 1866. Any one of two or more joint debtors, or parties jointly, or jointly and severally, bound by any contract or judgment, may be released from his, her, or its liability upon such contract or judgment by the creditor or creditors, and such release shall not operate, nor be held to operate, in law as a release to the other debtor or debtors upon such contract or judgment, except as to the released debtor's proportion of such liability or debt, estimated upon the basis of the number of such debtors; but such release shall operate only as a release of all liability of such debtor to the creditor in such contract or judgment, and as a credit upon the same of such propoi*tionate sum as herein provided. It shall not be necessary to make the party released, as pro- vided in the foregoing section, a party to any action upon such contract, but the creditor or creditors aforesaid, may pursue the remaining debtors for th« remaining portion of such debt, the same as though no such release had been made. CHAPTER XXV. INSOLVENT DEBTORS— RELIEF OF— ACT OF 1865. )e [re Every insolvent debtor may be discharged from his debts, as provided by the act, upon executing an assignment of all his r«al, personal, or mixed property for the benefit of all of his creditors, provided the assignment be made bona fide and with- out fraud. The District Court alone has jurisdiction in the mat- ter. The insolvent debtor is required to file a petition, in the 166 NEVADA. [Part 4. proper Court, having jurisdiction where he resides, stating briefly the circumstances which compel him to suiTender his property. To the petition shall he annexed a schedule of all the indebtedness, of every kind and nature of the petitioning debtor; and containing also a true and complete list of all prop- erty belonging to him, real, personal, or mixed, and all choaes in action, with the estimated value of the same. The petition must be verified. Upon tiling the petition and schedules, an order is made notifying creditors to appear before the judge, or Court, upon a certain day and show cause why the praytjr of the petition should not be granted. Notice to creditors is rec^uired to be given by publication for not less than thirty days. The creditors, having proved their claims, may choose one or more assignees, not exceeding three. In appointing assignees, the majority of the creditors in sums or in claims shall prevail. The assignees shall give bonds in an amount to be fixed by the creditors, or by the Court. Assignees, under leave of the Court, may sell all of the property, coming to their hands, on twenty days* notice. All funds arising from sale of the debtor's property shall be distributed by the Court. The assignees may sue, and be sued in respect to anything pertaining to the rights and actions of the insolvent. All suits brought against the insolvent anterior to the suxTen- der of his property, in other counties, shall be transferred to the Court having jurisdiction of the failure, and where the insolvent has filed his schedule, and may be continued on notice and motion, against the assignees. When a dividend is declared notice thereof shall \i .i given to creditors. Two or more creditors may demand to know if the assignees have any funds in their hands, and the assignees shall present their accounts and distribute any funds on hand. The assignees may be removed upon cause sliown therefor. In case the oreditorw shall refuse to appoint assignees, and no creditor is willing to accept the trust, the Court slmll direct the sheriff of the county to take charge of the surrendered property. The insolvent debtor may be cited before tlie Court and exam- ined, under cath, in regard to his all'airs. Chap. 25.1 NEVADA. 167 The insolvent debtor may be discharged only from such debts and liabilities as he has set forth in his schedule. In case of fraud on the part of the insolvent debtor, or if he shall be convicted of having, at any time within three months next preceding his failures, sold, engaged, or mortgaged any of his goods and effects, or of having other- wise asHigned, transfeiTcd, or disposed of the same, or any part thereof, or confessed judgment in order to give a preference to one or more of his creditors over others, whereby to receive any advantage in anticipation of his failure, to the prejudice of his creditors, he shall be barred the benefit of the act. If, after the presentation of his petition, the insolvent debtor shall sell, or in any manner transfer, or assign any of his prop- erty, or collect any debts due him, and shall not give a just and tnie account of the property so sold or transferred, and moneys collected, and pay the same over to the assignees within ten days after their uppoinment, he shall be denied the benefit of the act. If at any time, after the debtor may have been discharged, it shall be made to appear that he has concealed any of his prop- erty, or has given a false schedule, or committed any fraud un- der tte act, he shall be deemed to have forfeited all benefit of the act and his discharge shall not be a bar to any claim that may be instituted against him. The insolvent is entitled to the exemptions allowed by law — to be set apart to him by the Court. The application for the benefit of the act must be made by the insolvent in person. The judge may appoint an attorney to rep- resent creditors residing without the limits of the State. Mortgages and liens existing bona fide against the suiTen- dered property, may be enforced in the same manner as though no such surrender had been made. In case an insolvent has once received the benefit of the act, and shall during the succeeding year apply the second time, he shall not be permitted to receive the benefit of the act, except the ap})rairtod value of the propertj^ surrendered exceed one- third of his debts, unless it be proven to the judge, by the affi- davit of at least two credible and disinterested witnesses, that the debtor has really experienced the losses by him stated, and 168 NEVADA. [Part 4. that said losses have reduced him to the condition in his peti- tion stated. The assignees shall make their returns under oath. No assignment of any insolvent debtor, otherwise than is pro- vided in this act, shall be bgal or binding upon creditors. PART V. i STATE OF OREGON, PREPARED EXPRESSLY FOR THIS WORKBYDOLPH, BRONAUGH, DOLPH & SIMON, PORTLAND, OREGON. CHAPTER I. COURTS AND THEIR JURISDICTION. The judicial power of the State is vested in a Supreme Court, Circuit Courts, and County Courts, which are Courts of record. Justices of the peace are invested with limited judicial powers, and Municipal Courts may be created to administer the regula- tions of incorporated towns and cities. The Supreme Court consists of five justices, who are elected by the electors in each district, and who hold their offices for six years. The Supreme Court has jurisdiction only to revise the final decisions of the Circuit Courts. The Circuit Courts are held at least twice in each year, in each county organized for judicial purposes, by one of the justices of the Supreme Court. All judicial power, authority, and jurisdic- tion not vested exclusively in some other Court belongs to the Circuit Courts, and they have appellate jurisdiction and super- 170 oiiEaoii. [Part 5. visory control over the County Courts, and all other inferior Couiis, officers and tribunals. County Courts have jurisdiction, but not exclusive, of actions at law, and all proceedings therein and connected therewith, when the claim or subject of the controversy does not exceed the value of five hundred dollars. Justices' Courts have jurisdiction, but not exclusive, of the following actions : 1. For the recovery of money or damages only, where the amount claimed does not exceed $250. 2. For the recovery of specific personal projierty, when the value of the property claimed and the damages for the detention do not exceed $250. 3. For the recoveiy of a penalty or forfeiture, not exceeding $250. 4. To give judgment without action upon the confession of the defendant. The jurisdiction does not, however, extend to an action in which the title to real property shall come in question, or to an action for false imprisonment, libel, slander, malicious prosecu- tion, criminal conversation, seduction, or upon a promise to marry. CHAPTER II. TERMS OF COURT, WHEN AND WHERE HELD. The following are the times and places of holding Courts, both Federal and State, in the several counties and districts of the State: ' United States Circuit Court, District of Oregon. Regular terms held at Portland, on the second Monday in Aj)ril, and first Monday in October. Judges, Hon. Stephen J. Field, Associate Justice of the Su- preme Court, and Hon. Lorenzo Sawyer, Circuit Judge. Clerk, R. H. Larason. Marshal, A. W. Waters. Chap. 2.] OBEOON. 171 United States District Court, District of Oikgon. Regular terms held at Portland, on the first Monday of March; July and November. Judge, Hon. Matthew P. Deady. Clerk, E. H, Lamson. Marshal, A. W. Waters. U. S. District Attorney, Rufus Mal- lory. Register in Bankruptcy, H. H. Northup. Supreme Court of Oregon. The Supreme Court consists of five judges, all of whom do circuit duty. Chief Justice, Hon. Payne P. Prim. Associate Justi s, Hon. J. F. Watson, Hon. R. P. Boise, Hon. E. D. Shattuck, Hon. L. L. McArthur. Regular terms held at Salem, on the second Monday in De- cember of each year, and special terms held at such other times as the Court appoints. Circuit Courts of the Statf of Oregon. I'orNTIKS. TIMBS OF HOLDING. Bftker First Monday of October and third Monday nf May. Benton Third Monday <>f November and second Moiulay'^V April. Claulcauias Fourth Monday o( April and fourth Monda\ of 8eptenil)€r. Clatsop Second Tuesday of Au)fU8t and fourth Tvicsday of January. Colnnihia Second Monday of April. Coos Fourth Monday of May and second Monday of September. Curry | First Monday of .lunc. Douii^las jThinl Monday of October and second Monday of May. Grant jThird Monday of Septemlicr and first Monday of June. Jackson jScc-tnd Monday of February, June and November. Josephine Fourth Monday of Ajiril and fourth Monday of October. Lake Fourth Monday of June and November Lane iThini Monday of April and first Monilay in November. Linn ISecond Monday in March and fourth Monday in ()ctober. Marion ' Fourth Monday of Feb. , second Monday of June, and third Monday of Oct. Multnomah Second Monday of February, June, and October. Polk Second Monday of May and first Monday of Decendier. Tillamook | Second Monday in .luly. Umatilla Fourth Monday of Octolier and last Monday of April. Union IThini Monday of i >ctober and first Monday of May. Wasco ISecond Monday o t November and third Monday of June. Washinffton .... Fourth Monday of May and first Monday of October. Yamhill I Fourth Monday i>f March and first Momiav of October 172 OBEOON. Terms op the County Courts. [Parts. In the counties of Clackamas, Douglas, Josephine, Curry, Coos, Columbia, Clatsop, Tillamook and Umatilla — on the first Monday of January, April, July and September. In the counties of Grant, Baker, Lane, Wasco and Yamhill — on the first Monday of January, March, May, July, September and November. In the county of Lake — on the first Monday of every alternate month. In the county of Union — on the second Monday of May and the first Monday of January, March, July, September and November. In the counties of Jackson, Linn, Benton, Folk, Marion, Washington and Multnomah — on the first Monday of each month. CHAPTER III. COMMENCEMENT OF SUITS. Actions at law are commenced by filing a complaint with the clerk of the Court. At any time after the ttction is commenced, the plaintiff may ?ause a suiamons to be served on the defendant. The summons must contain the name of the Court in which the complaint is filed, the names of the parties to the action, and the title thereof ; it must be subscribed by the plaintiff or his attorney, and directed to the defendant, and require him to appear and aijswer the complaint, or the plaintiff will take judg- ment for a sum specified therein. If the defendant be served within the county in which the action is commenced, he must appear and answer the complaint within ten days from the date of the service ; but if served in any other county in the State, he must appear and answer the complaint within twenty days from the date of ser- vice. Oliap. 4.] OREOOM. 178 CHAPTER IV. PLACE OF TRIAL OF CIVIL ACTIONS. Actions for the recovery of real property, or aa estate, or in- terest therein, or for injury thereto, and for the recovery of any personal property distrained for any cause, shall be commenced and tried in the county in which the subject of the action, or some part thereof, is situated. In all other cases the action shall be commenced and tried in the county in which the defendants or either of them reside, or may be found at the commencement of the action. If none of the parties reside in this State, the same may be tried in any county which the plaintiff may designate in his complaint. CHAPTER V. LIMITATION OF ACTIONS. The periods prescribed for the commencement oi' actions are as follows: Within Twenty Years.' Actions for the recovery of real property, or for the recovery of the possession thereof. Within Ten Years: Actions upon a j adgment or decree of any Court of the United States, or of any State or Territory within the United States. Actions upon sealed instruments. Within Six Years: An action upon a contract or liability express or implied, ex- cepting those already mentioned. 174 OBEQON. [Part 5. An action upon a liability created by statute, other than a penalty or forfeiture. An action for waste or trespass upon real propeiiy . An action for taking, detaining or injuring personal property, including an action for the specific recovery thereof. Within Three Years: An action against a sheriff, constable or coroner, upon a liability incurred by the doing of an act in his official capacity, or by the omission of an official duty ; but this does not apply to an action for an escape. An action upon a statute for a i)enalty or forfeiture. Within Two Years: An action for libel, slander, assault, battery, or false impris- onment ; for criminal conversation, or for an injury to the person or rights of another not arising on contract. An action upon a statute for a forfeiture jr penalty to the State. Within One Year : An action against a sheriff or other officer for the escape of a pnsouer arrested or imprisoned on civil process. ^ Ti action for any cause not hereinbefore provided for shall be commenced within ten years after the cause of action accrued. HMP BimwKnmun«nK»vcsc9 Chap. 6.] OREGON. •<^'^<;>* 175 CHAPTER VI. rv. M ATTACHMENIH. The plaintiff, at the time of iHHiiinj'' the HummoiiH, or any time afterwards, may have the property of the tlefeiuhmt attached, l)y tiling with the clerk of th<3 Court an undertaking, witJi one or more sureties to the amount for which the plaintiff demands judgment, and not less than $100; and the plaintiff, or some ime in his behalf, making and tiling an affidavit showing: 1. That the defendant is indebted to the plaintiff", (si)ecifying the amount of such indebtedness, over and above uU -legal set- offs or counter-claims) upon a contract, express or implied, for the direct payment of money, and that such contract, was made or is payable in this State, and that the payment of the same has not been secured by any mortgage, lieu, or pledjje upon real or personal property ; or, 2. That the defendant is indebted to the plaintiff, (specifying the amount of such indel)tedness, as near as may be, over and above all legal set-off's or counter-clainn) and that the dofeiulant is a non-resident of the State; and, 3. That the siun for which the attachment is asked is an a(!tual bona tide existing debt, due and owing fi'om the defendant to the plaintiff, and that the attachment is not sought, and the ac- tion prosecuted to hinder, delay or defraud any creditors of the defendant. CHAPTER Vn. ARRESTS IN CIVIL ACTIONS, The defendant may be arrested in the following nal property is exempt from sale under an execution : Books, pictures, and musical instniments, to the value of $75 ; wearing apparel to the value of $100, and if a householder, to the value of $50 for eo-ch member of the family ; tools, implements, apparatus, team, vehicle, harness, or library, when necessary in the occupation or prof ession of a judgment debtor, to the amount of $400 ; if the judgment debtor be a householder, ten sheep with one year's fleece, two cows, five swine, household goods, furniture, and utensils, to the value of $300. No article of property is exempt from execution issued upon a judgment for the purchase price. Upon a sale of real property, when the estate is less than a leasehold of two years' unexpired term, the sale is absolute. In all other cases such property is subject to redemption. The judgment debtor, or his successor in interest, may redeem such property within sixty days from the date of the order con- firming the sale, l)y jtaying the amount of the purchase money, with interest at the rate of two per cent, per montli from the time of sale, together with the amount of taxes the purchaser may have paid thereon. . 178 OREGON. [Part 5. A creditor having a lien by judgment, decree or mortgage, on any portion of the property subsequent in time to that on which the property was sokl, may also redeem. CHAPTER X. PROCEEDINGS SUPPLEMENTARY TO EXECUTION. After the issuing of an execution against property, and upon proof by the affidavit of the plaintift', in the writ or otherwise, to the satisfaction of the Court or judge thereof, that the judg- ment debtor has property liable to execution which he refuses to apply towards the satisfaction of the judgment, such Court or judge may by an order require the judgment debtor to appear and answer under oath concerning the same. If it appear from such examination that the judgment debtor has property liable to execution, the Court or judge shall make an order requiring the judgment debtor to apply the same in satisfaction of the judgment. Disobedience to any such order ma^ be punished as for a contempt. CHAPTER XI. SECURITY FOR COSTS Security for costs can only be required in Justices' Courts. If the plaiittitt' is a non-resident of the county, the justice may require him to gi', e an undertaking with one or more sureties for the costs and dinburHements of the action before issuing the summons nd if at any time before the commencement of "k trial the tleiondant apply tljcofor, the justice must require ; ii plainiitf to give such uuflortaking, Ui)on appliention ot de- Chap. 11]. OREGON. 179 fendant, and in the discretion of the justice, the plaintiff, if a resident of the county, may be required to give an undertaking for costs. The undertaking may be in the following form: "I, A B, or We, A B and C D, undertake to pay E F, the defendant in this action, all costs and disbursements that may be adjudged to him in this action." The sureties must possess the qualifications of bail upon airest, and if required ])j the defendant, must justify in a sum not less than $50. CHAPTER XII. APPEALS. Any party to a judgment or decree, other than a decree or judgment for want of an answer, or by confession, may appeal therefrom. An appeal to the Supreme Court shall l>e taken by serving and tiling a notice of appeal within six months from the entrj' of the judgment or decree appealed from, or to the Circuit Court within tliirty days after such entry, and not otherwise. AppealH from the Circuit Courts are taken to the Supreme Court, and from County Courts and Justices' Courts to the Cir- cuit Coui*t of the countv. Upon an api)eal from the Circuit or County Court, the appel- lant must tile an undertaking, with one or more sureties, to the effect that the appellant will [)ay all damages, costs and dis- bursements which may l>f awardiMl agiiinst him on the appeal; and if the judgment or decree appeah'd from be for tlip re- covery of money or porsi>ual [u-ojuuty, or the value thereof, ten sat- islied. A chiim nut duy or contingent nuist, nevertheless, be presented us any other (.'laim. Until administration has been completed, a < laim against the estate may be presented, allowed and paid out of any assets not otherwise appropriated or liable. Every claim must l)e vorilied by the atJidavit of the claimant, or some one on his behalf, who has i)ersonal knowledge of the facts, to the etVect that the amount claimed is justly due, that no payments have been made tlieriion except as stated, and that there is no just counter-claim to the same. There is no sjiecitied time in which estttte» aie required to be ttettled. Chap. 14.1 OBEOOM. 181 CHAPTER XIV. DESCENT OF HEAL PKOPERTY. Wlien any person (Hew, seizod (if any real property, or any rijjflit thereto, or any interest therein, not liavinpf lawfully de- vised the same, siieii real property descondw, subject to hiw debts, as follows; 1. In ecpial shares to his children and to the issue of any de- ceased child by right of rei)reHentation; and if there bo no child of the intestate living at the time of his death, such real ])r()p- erty descejids to all his other linc^al descendants; and if all such descendiirits are in the same degree of kindred to tiie intestate, they take such real property ecpially; or otherwise, they take according to the right of representation. *2. If the intestate leaves no lineal descendants, sucJi projierty descends to his wife; and if ho leaves no wife, it descends to his father. ;{. If the intestate leaves no lineal descendants, wife nor fathci-, such real property dc^scends in eipxal shares to his l)rothers iind sisters, and to the issue of any deceased brother or sister by right of I'epresentation; but if the intestate leaves a mother also, she takes an ecpial share with yuch brothers and sisters. ■4. If the intestate leaves no lineal descendants, wife, father, brother nor sister living, at his death, such real i)ropi rty de- scends to his mother, to the exclusion of the issue of his de- ceased brothers or sisters. 5. If the intestate leaves no lineal descendants, wife, father, mother, brother nor sister, such real property descends to his next of kin in ecpial degree, excepting that when there are two or more collateral kindred in ('([ual d<'gree, but claiming through dili'crei ancestors, those who claim thi'ough the nearest an- cestor are preferred to those claiming through a more remote ancestor. G. If the intestate leaves one or more children, and the issue 182 OREGON. IPartft. of one or more deceased children, and any of such surviving children shall die under age, without having been married, all such real property that came to such deceased child by inherit- ance from such intestate, descends in equal shares to the other children of the intestate, and to the issue of any other children of such intestate who shall have died, by right of representa- tion; but if all the other children of such intestate are also dead, and any of them shall have left issue, such real property so inherited by such deceased child, descends to all the issue of such other children of the intestate in equal shares, if they are in the same degree of kindred to such deceased child; other- wise, they take by right of representation. 7. If the intestate leaves no lineal descendants or kindred, such real property escheats to the State of Oregon. CHAPTER XV. DESCENT OF PERSONAL PROPERTY. When any person dies possessed of any personal property, not having lawfully bequeathed the same, such personal prop- erty is applied and distributed as follows : 1. If the intestate leaves a widow, she is allowed all her arti- cles of apparel and ornaments, according to the degree and estate of the intestate, and such property and provisions for the use and support of herself and minor children as shall be allowed and ordered. 2. The personal property of the intestate remaining after such allowance is applied to the payment of the debts of the intestate, and the charges and expenses of administration. 3. The residue, if any, of the personal property is distributed among the persons who would be entitled to the real property, except as otherwise provided. 4. If the intestate leaves a husband, such husband is entitled to the wholu of the personal property. Chap. 15.] OREOON. 183 5. If thfi intestate leaves a widow and issue, such widow is entitled to receive one-half of such personal property ; but if there be a widow and no issue, she is entitled to the whole of such personal property. 6. If there be no husband, widow or kindred, the whole escheats to the State. CHAPTER XVI. HOMESTEADS AND I>()\VER. Homesteads. There is no homestead law in this State. DOWEK. The widow of every deceased person is entitled to dower, or the use during her natural life of one-third part of all the lands of which her husband was seized of an estate of inheritance ot any time during the marriage, unless she is lawfully barred thereof. CHAPTER XVri. DEPOSITIONS. led The deposition of a witness out of the State may be taken upon commission issued from the Court, or without commission before a commissioner appointed by the governor of this State to take depositions in other States or countries. The commis- sion may be issued by the (derk of the Court, or the justice in a cause pending in Justice's Court, on the application of either party upon five days' pre « ious notice to the other. It is issued 184 OBEOON. [Parts. to a person agreed upon by the parties, or if they do not agree, to a judge, justice of the peace, notary public, or clerk of a Court selected by the oflBcer issuing it. Such interrogatories, direct and cross, as the parties may prepare may be annexed to the commission. -County. The following form may be used : In the Court of the State of Oregon for- A B, Plaintiff, C D, Defendant. Deposition of E F, a witness on behalf of the in the above entitled action, taken before me, a commissioner named in the attached commission, anda(notai'y public) in an'l for county, State of on the day of 187 at my office at the city of in said county and State, who being first duly sworn in answer to the direct and cross interrogatories attached to said commission in their order, testified as follows : 1. To the first direct interrogatory he answers, etc. When completed, the deposition should be read to the witness, and then subscribed by him. The following form of certificate should be added to the deposition : State of- CoUNTY OF- ss. I.- -a (notary public) in and for said county and State, and commissioner, before whom the foregoing deposition was taken, do hereby certify that the deposition of said witness, E F, was taken before me, at my office in the city of in said county and State, on the day of 18 between the hours of o'clock a. m., and o'clock — M. of said day ; that before proceeding to the examination, the witnet^s was duly sworn to tell the tnith, the whole truth, and nothing but the truth ; that at the same time and place I propounded to said witness the interrogatories attached to said Chap. 17.1 OREQON. 186 commission in their order, and reduced his answers thereto to writing, and that when completed, the deposition was carefully read over by me to said witness, and then by him subscribed. In witness whereof, I have hereunto set my hand and ofiieial seal, this day of 187 . [seal. ] Notary Public, etc. and Commissioner. Endorse upon the envelope the title of the Court and cause, and the words " deposition of " and forward by mail to the officer issuing the commission. CHAPTER XVIII. JUDICIAL RECORD. The judicial record of a sister State is proved by the produc- tion of a copy thereof, certified by the clerk or other person having the legal custody of the record, with the seal of the Court affixed thereto, if there be a seal, together with the certifi- cate of the chief judge, or presiding magistrate, that the certifi- cate is in due form, and made by the clerk or other person hav- ing the legal cubtody of the oiiginal. CHAPTER XIX. L8 3k |n. |h, I lid ACKNOWLEDGMENTS. Deeds may be acknowledged within this State before any judge of the Supreme Court, county judge, justice of the peace, notary public, or clerk of a Court. No acknowledgment of any conveyance having been executed shall be taken by any officer, IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1^ UP 128 P.2 tL n m IIIM 2.0 1.8 1.25 1.4 1.6 ^ (, — ► Photographic Sciences Corporation ,-\ t sj ^\ ^\^ M 23 WEST MAIN STR'iET WEBSTER, N.Y. 14580 (716) 873-4503 6^ ,% o^ *^ 186 OREGON. [Part 5. unless he shall know or have satisfactory evidence that the per- son making such acknowledgment is the individual described in and who executed such conveyance. When a married woman, residing in this State, shall join with her husband in a deed of conveyance of real estate situated within this State, the acknowledgment of the wife shall be taken separately 6,nd apart from her husband, and she shall acknow- ledge that she executed such deed freely and without fear or compulsion from any one. If any deed shall be executed in any other State, Territory, or District of the United States, such deed may be executed and acknowledged according to the laws of such State, Territory, or District, or before any commis- sioner appointed by the governor of this State for such purpose; and unless the acknowledgment be taken before such commis- sioner, such deed shall have attached thereto a certificate of the clerk or oth; .' proper certifying officer of a Court of record of the county or district within which such acknowledgment was taken, under the seal of his office, that the person whose name is subscribed to the certificate of acknowledgment was, at the date thereof, such officer as he is therein represented to be, and that he believes the signature of such person subscribed thereto to be genuine, and that the deed is executed and acknowledged according to the laws of such State, Territory, or District. CHAPTER XX. LIMITED PARTNEESHIPS. Limited partnerships for the transaction of mercantile, mechanical and manufacturing business may be formed in this State. The persons forming such partnership make and severally subscribe and acknowledge a certificate in duplicate, which con- tains t' ^ name assumed by the partnership, the names and re- spective places of residence of all the general and specip' partners, the amount of capital which each special partner contributes, the Chap. 20.]. OREaON. 187 general nature of the business to be transacted, and the time when the partnership is to commence and terminate; one copy of such certificate is filed with the clerk of the county in which the principal place of business of the partnership is to be. A copy of the same is required to be published for four weeks in some weekly newspaper published in the county. The business must be conducted under a name in which the names of the gen- eral partners only shall be inserted, without the addition of the word company, or any other general term. Spe ial partners are not personally liable for any debts of the partnership. During the continuance of any such partnership no part of the capital stock can be withdrawn, nor any division of interests or profits made, so as to reduce such capital stock below the sum stated in the certificate. CHAPTER XXI. MAREIED WOMEN. The constitution of the State provides that the property and pecuniary rights of every married wouian at the time of marriage, or afterwards acquired by gift, devise or inheritance, shall not be subject to the debts or contracts of the husband, and laws shall be passed providing for the registration of personal prop- erty; which has been done. The property, both real and per- sonal, acquired by any married woman during coverture, is free from and not liable for the debts, liabilities or contracts of her husband. '» ^e '. / 188 OREGON. [Part 5. CHAPTER XXII. CORPORATIONS. Corporations are only forme'' under general laws, and cannot be created by special laws. The stockholders of all corporations and joint stock com- paniet are liable for the indobtedness of such corporations to the amount of their stock subscribed and unpaid, and no more. No bank, banking company or moneyed institution can be created under the laws of this State; nor can any bank, com- pany or institution exist in the State with the privilege of mak- ing, issuing, or putting in circulation any bill, check, certificate, promissory note or other paper, or the paper of any bank, com- pany or person, to circulate as money. CHAPTER XXIII. CHATTEL MORTGAGES. Chattel mortgages are valid against third parties when the property is retained in the possession of the mortgagor, pro- vided the mortgage or a copy thereof is filed in the office of the county clerk. Such mortgage, however, ceases to be valid as against creditors and subsequent purchasers, or mortgagors in good faith, after the expiration of one year from the filing of the same, uiJess within thirty d lys preceding the expiration of the year an affidavit, setting forth the interest which the mortgagee has in the property by virtue of such mortgage, is made and annexed to the instrument or copy on file. The eifect of such affidavit does not continue beyond one year, when a similar affidavit must be made. Chap. 24.] OREGON. 189 CHAPTER XXIV. INTEBEST AKD USXJEY. Ten per cent, per annum is the legal rate of interest; but on contracts, interest at the rate of one per cent, per month may be charged by express agrtement of the parties. Usu^ entails the forfeiture of the principal sum, without interest, to the school fund of the county in which the suit is brought. i CHAPTER XXV. INSOLVENCY. There is no insolvent law in this State. PART VI. IDAHO TERRITORY. PREPAEED EXPRESSLY FOR THIS WORK BY JONAS W. BROWN IDAHO CITY. ' CHAPTER I. cduETS, THEIR JUEISDICTION AND TERMS. The judicial power of the Territory is vested in a Supreme Court, three District Courts, Probate Courts for each county and Justices of the Peace. ' ' The Supreme Court Has appellate jurisdiction in all civil cases where the amount in dispute exceeds in value one hundred dollars, and in all criminal cases tned in District Courts. Meets at Boise City annually, on the first Monday of January. District Courts Have original jurisdiction in all civil cases where the amount in dispute exceeds one hundred dollars, and in all criminal cases prosecuted by indictment. Their appellate jurisdiction extends to hearing all cases on appeal from Probate Courts and Justices' 192 IDAHO. [Part 6. Courts. They have exclusive jurisdiction in all equity cases, and in all cases involving the title to real estate. The terms of the District Courts are fixed annually for the several counties by the Supreme Court. The Probate Coubts Have jurisdiction of all probate matters, same as in California. They have also concurrent jurisdiction (by special act of Con- gress) with the District Courts in all civil actions, when the amount in controversy shall not exceed five hundred dollars, exclusive of interest ; and the same rules of practice govern in Probate Courts in civil cases as in the Districts Courts, except in the matter of appeals to the District Court. The terms of the Probate Courts commence on the fourth Monday in each month. Justices' Courts Have jurisdiction in all civil actions where the sum or damages claimed do not exceed one hundred dollars, excepting matters where the boundaries of land are in dispute. These Courts are always open for business. CHAPTER 11. COMMENCEMENT OF ACTIONS. n Civil actions in the District Courts and the Probate Courts shall be commenced by the filing of a complaint with the clerk of the Court in whioh the action is brought : provided, that after the filing of the complaint, a defendant in the action may appear, answer or demur, whether the sumn.ons has been issued or not, and such appearance, answer, or de nurrer be deemed a waiver of summons. The clerk shall endorse on the complaint the day, month and year the same is filed; and at any iime within one year after the filing of the same, the plaintiff liay have a summons issued. I : Chap. 2.] IDAHO. 193 The act defining jnrisdiction of Probate Courts provides that the summons may be issued at any time within six months from the filing of the complaint. In the District Court the defendant must answer in ten days, if served within the county in which the action is brought; in twenty days, if served without the county, but within the judi- cial district in which the action is brought. In all other cases, thirty days. In the Probate Court, answer must be filed in ten days. CHAPTER III. PLACE OF TRIAL OF CIVIL ACTIONS. Actions for the following causes shall be tried in the county in which the subject of the action, or some part thereof, is situ- ated, subject to the power of the Court to change the place of trial: . ' r- 1. For the recovery of real projjerty, or of an estate or in- terest therein, or )or the determination, in any form, of such right or interest, or for injuries to real property. 2. For the partition of real property. 3. For the foreclosure of a mortgage of real property; pro- vided, when such real property is situate partly in one count}' and partly in another, the plaintiff may select either of said counties, and the county so selected shall be the proper county for the trial of such action. Actions for the following causes shall be tried in the county where the cause, or some part thereof, arose; subject to the like power of the Court to change the place of trial : 1. For the recovery of a penalty or forfeiture imjjosed lya statute, except that when it is imposed for an offense committed on a lake, river, or other stream of water situated in two or more counties, the action may be brought in any county bordering on 194 IDAHO. [Part 6. li uch lake, river, or other stream, and opposite the place where the offense was committed. 2. Against a public officer, or person especially appointed to execute his duties, for an act done by him in virtue of his office, or against a person who, by his command, or in his aid, does anything touching the duties of such officer. In all other cases, the action shall be tried in the county in which the defendants, or any of them, may reside at the com- mencement of the action; or if none of the defendants reside in this Territory, or, if residing in this Territory, the county in which they so reside be unknown to the plaintiff, the same may be tried in any county which the plaintiff may designate in his complaint; and if any defendant or defendants may be about to depart from the Territory, such action, may be tried in any county where either of the parties reside or may be found, or service be had; subject, however, to the power of the Court to change the place of trial, as provided in the act. CHAPTER IV. LIMITATIONS OF CIVIL ACTIONS. Six Years: Real estate, including quartz mines or lodes, judgments or de- crees of any Court of the "United States, or of any State or Ter- ritory of the United States. Mve Years: Any contract, obligation, or liability founded upon an instru- ment of writing. Ibur Years: Contract or liability not founded upon an instrument of writing; including accounts. Chap. 4.] IDAHO. 196 Three Years: • • Trespass upon real property, taking detaining or injuring goods or chattels or for the specific recovery of personal property. Belief on ground of fraud. 7\oo Years : Against a sheriff, coroner, or constable upon the liability in- curred by the doing of an act officially, or the omission of an official duty ; for non-payment of money collected on execution ; for libel, slander, assault, battery and false imprisonment. Upon statute forfeiture and against sheriflf or other officer for escape of prisoner aiTested or imprisoned on civil process. One Year : Placer mining claims. e- •u- Qeneral Provisions. An action upon any contract, obligation or liability for the payment of money, founded upon an instrument of writing executed out of this Territory, or any other Territory from which this Territory is in part formed can only be commenced as follows : 1. Within one year, when more than two and less than five years have elapsed since the cause of action accrued. An action upon any judgment, contract, obligation or liability for the imyment of money or damages, obtained, executed, or made out of this Territory, or any other Territory from which this Territory is in part formed, shall only be commenced within three years after the party making such liabilities shall be a resident of this Territory, No acknowledgment of promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of the statute, unless the same be contained in some writing signed by the party to be charged thereby. of 196 IDAHO. [Part 6. CHAPTER V. ATTACHMENTS. The plaintifif, at the time of issuing the summons, or at any time afterward, may have the property of the defendant at- tached as security for the satisfaction of any judgment that may be recovered, unless the defendant give security to pay such judgment, in the following cases : 1. In an action upon a contract, express oi implied, for the direct payment of money, which contract is not secured by a mortgage, lien, or pledge upon real or jiersonat property; or if so secured, that such security has, without any act of the plain- tiff, or the person to whom the security was given, become valueless. 2. In an action upon a contract, express or imj)]ied, against a defendant not residing in this Territory. The Clerk of the Court shall issue the writ of attachment upon receiving an affidavit by or on behalf of the plaintiff, which shall be filed setting forth — 1. That the defendant is indebted to the plaintiff, specifying the amount of such indebtedness over and above all legal set- offs and counter-claims, upon a contract, express or implied, for the direct payment of money; and that the payment of the same has not been secured by any mortgage, lien or pledge upon real or personal -property; or, if so secured, that such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless; or, 2. That the defendant is indebted to* the plaintiff, specifying the amount of the indebtedness as near as may be, over and above all legal set-offs and counter-claims, and that the defend- ant is a non-residont of the Teriitory; and, 3. That the attachment is not sought, and the action is not prosecuted, to hinder, delay, or defraud any creditor or credit- ors of the defendant. Before issuing the writ, the clerk must require a written un- Chap. 5.] IDAHO. 197 dertaking on the part of the plaintiff, in a sum not less than two hundred dollars, and not exceeding the amount claimed by the f' intiff, with sufficient sureties, to the effect that if the defend- ant recover judgment, the plaintiff will pay all costs that he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking, if the attachment be wrongfully is- sued. CHAPTER VI. ARREST IN CIVIL ACTION. ^ The defendant may be an-ested, as hereinafter provided, in the following cases : 1. In an action for the recovery of money or damages on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the Territory, with intent to defraud his creditors; or v/hen the action is for willful injury to person, to character, or to property, knowing the property to belong to another. 2. In an action for a fine or penalty, or on a promise to marry, or for money or property embezzled, or fraudulently applied, or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for misconduct or neglect in office, or in a professional employment, or for a willful violation of duty. 3. In an action to recover the possession of personal property unjustly detained, when the property, or any part thereof, has been concealed, removed, or disposed of, to prevent its being found or taken by the sheriff. 4. When the defendant has been guilty of fraud in contract- ing the debt or incurring the obligation for which the action is broughi, or in concealing or disposing of the property, for the taking, detention, or conversion of which the action is brought. irl M 198 IDAHO. [Part 6. 5. When the defendant has removed or disposed of his prop- erty, or is about to do so, with intent to defraud his creditors. To obtain an order of arrest, it must appear to the judge, by the affidavit of the plaintiff or some other person, that a suffi- cient cause of action exists, and that the case is one of those above mentioned. The affidavit must be positive, or upon infor- mation and belief. Before making an order, the judge must require a written undertaking on the part of plaintiff, with sure- ties in an amount to be fixed by the judge, which must be at least five hundred dollars. CHAPTER VII. JUl^GMENTS AND JUDGMENT LIENS. In an action on a contract or obligation, in writing, for the direct payment of money, made payable in a specified kind of money or currency, judgment for the plaintiff may follow the contract or obligation, and be made payable in the kind of money or currency specified therein. From the time the judgment is docketed it becomes a lien upon all the real property of the judgment debtor, not exempt from execution in the county, owned by him at the time, or which he may afterward.^ acquire, until the lien expires. The lien con- tinues for two years. A transcript of the original docket, certified by the clerk, and filed with the recorder of any otlier county, becomes a lien on the property of the judgment debtor in such county, and con- tinues for two years. A transcript of a judgment of a Probate Court, filed and docketed in the office of the district clerk, becomes a lien upon the real estate of the judgment debtor for two years from date of filing and docketing. A transcript of a judgment of a justice of the peace becomes Chap. 7.1 IDAHO. 199 a lien upon real estate by being filed and recorded in the county recorder's office. By filing and docketing same in district clerk's office, the clerk may issue execution to any other county in the Territory. CHAPTER VIII. EXECUTIONS, EXEIIPTIONS, SALE AND KEDEMP- TION. and A writ of execution to enforce the judgment may be issued at any time within five years after the entry thereof. In all cases other than for the recovery of money, the judgment may be en- forced or carried into execution after the lapse of five years from the date of its entry, by leave of the Court, upon motion or by judgment for that purpose, founded upon supplemental plead- ings. Exemptions from Execution. 1. Chairs, tables, desks and books, to the value of one hun- dred dollars, belonging to the judgment debtor. 2. Necessary household, table and kitchen furniture belong- ing to the judgment debtor, including stove, stovepipe, and stove furniture of whatever kind, wearing apparel, beds, bed- ding and bedsteads, and provisions actually provided for indi- vidual or family use sufficient for three months. 3. The farming utensils or implemen'^s of husbandry of the judgment debtor; also, two oxen, or two horses, or two mules, and their harness; two cows, one cart or wagon, and food for such oxen, horses, cows or mules for three months* also, all seed grain or vegetables actually provided, reserved, or on hand fv r the purpose of i)lauting or sowing at any time within the ensuing six months, not exceeding in value the sum of two hundred dollars; the tools and inplements of a mechanic neces- sary to carry on his trade; the instruments and ehests of a surgeon, physician, surveyor, and dentist necessary to the exer- ..<... ^\v^ %"»; .>,& IDAHO. [Part 6. cise of their profession, with the professional library^ and the law libraries of an attorney and counsellor; also, the wardrobe and books of an actor. 4. The tents and furniture, including a table, camp stools, bed and bedding of a miner; also his rocker, /shovels, spades, wheelbarrows, pumps, and other instruments used in mining, with provisions necessary for his support for three months. 5. Two oxen, two norses, or two mules, and their harness, and one cart or wagon, by the use of which a cartman, team- ster, or other laborer habitually earns his living, and the food for such oxen, horses, or mules, for three months; and a horse used by a physician in making his professional visits. 6. All fire engines, with carts, buckets, hose, and apparatus thereto appertaining, of any fire company or department organ- ized under any law of this Territory. 7. All arms and accoutrements required by law to be kept by any person. 8. All court-houses, jails, public offices and buildings, lots, ground and personal property, the fixtures, furniture, books, papers, and appurtenances belonging to any county in this Territory; and all cemeteries, public squares, parks and public buildings, town halls, markets, buildings appertaining to the fire departments, and the lots and grounds thereto belonging and appertaining, owned or held by any town or incorporated city, or dedicated by such town or city to health, ornament, or public use. No article above mentioned shall be exempt from execution issued upon a judgment recovered for its price, or upon a mort- gage thereon. Sale of Property Under Execdtion, In case of perishable property, by posting written notices of the time and place of sale in three public places of the precinct, for a reasonable time, considering the condition of property. In case of other personal property, by posting similar notices in three public places of the precinct, township or city whei-e the sale is to take place, not less than five, nor more than ten days successively. In case of real property, by posting similar notices, particularly describing the proj)erty, for twenty days Chap. 8]. ID.' HO. 201 successively, in three public places of the precinct, township, or city where the property is situated, and also where the property is to be sold, and publishing a copy thereof once a week for the same period in some newspaper published in the county, if there be one. All sales of property under execution shall be made at auction to the highest bidder, and shall be made between the hours of nine in the morning and five in the afternoon. Redemption. Real estate sold on execution under a judgment, or upon foreclosure of mortgage or mechanic's liens, may be redeemed within six months from the date of the sale, either by the judg- ment debtor or his successor in interest in the whole or any part of the property, or by a creditor having a lien by judgment or mortgage on the property sold, by paying to the purchaser the amount of his purchase with eighteen per cent, thereon in addi- tion. The purchaser is entitled to the rents, issues, and profits. CHAPTER IX. PROCEEDINGS SUPPLEMENTARY TO EXECUTION. After return of execution unsatisfied, the judgment debtor may be required to answer concerning his property. A judgment debtor unjustly refusing to apply property which he has to the satisfaction of a judgment against him, may be required to appear amd answer concerning the same. After the issuing or return of execution, or upon proof by affidavit or otherwise, to the satisfaction of the judge, that any person or corporation has property of judgment debtor, or is indebted to him in an amount exceeding fifty dollars, such person or corporation may be required to appear and answer concerning same. 202 IDAHO. [Part 6. CHAPTER X. SECURITY FOR COSTS. When the plaintiff in an action resides out of the Territory, or is a foreign coporation, security for costs and charges that may be awarded against such plaintiff may be required by the defendant. When required, all proceedings shall be stayed until an undertaking, as required, be filed to pay all costs, not exceeding the sum of three hundred dollars, with two sureties. If such security be not given within thirty days from the service of notice that security is required, the Court may order the action dismissed. CHAPTER XI. APPEALS m GENERAL. An appeal may be taken: 1. From a final judgment in an action or special proceeding, commenced in the Court in which the judgment is rendered, within one year after the eutry of judgment. But an exception to the decision or verdict, on the ground that it is not supported by the evidence, cannot be re- viewed on appeal from the judgment, unless the appeal is taken within sixty days after the rendition of the judgment. 2. From a judgment rendered by a Probate or Justice's Court, within twenty-ons days from the entry of judgment. 3. From an order granting or refusing a new trial; from an order granting or dissolving an injunction; from an order refus- ing to grant or dissolve an injunction; from an order dissolving or r^'us'tUg to dissolve an attachment; from an order granting or refusing to grant a change of the place of trial; from any special order made after final judgment, and from an interlocutory judgment in actions for partition of real property, within thirty days after the order or interlocutory judgment is made and en- tered in the minutes of the Court, or filed with the clerk. Chap, 11.] IDAHO. 208 In the District Court, an undertaking must be filed on the part of the appellant by at least two sureties, to the effect that the appellant will pay all the damages and costs, not exceeding three hundred dollars; or that sum must be deposited with the clerk. If a stay of proceedings is desired, an undertaking in double the amount of the judgment and costs must be filed. In the Probate and Justices' Courts, appeals are allowed in all cases where the demand, exclusive of interest, or the value of the property in controversy amounts to twenty-five dollars. Appeals in Probate and Justices' Courts mast be taken in twenty days from the rendition of the judgment. CHAPTER XII. HOMESTEADS. The homsetead consisting of a quantity of land, together with the dwelling house thereon and its appurtenances, not exceed- ing in value the sum of five thousand dollars, to be selected by the husband and wife, or either of them, or other head of a family, shall not be subject to forced sale in execution, or any final process from any Court. The person or persons claiming a homestead shall do so by written declaration, setting forth that they, or either of them, are married, or if not married, that he or she is the head of a family ; that they or either of them, as the case may be, are, at the time of making such declaration, residing with their family, or with the person under their care and maintenance, on the premises, particularly describing said premises, and it is their intention to use and claim the same as a homestead, which declaration shall be signed by the party making the same, and acknowledged and recorded in the ofl&ce of the county recorder. Such exemption shall not extend to any mechanic's, laborer's or vendor's lien, lawfully obtained, nor to a mortgage or alienation 204 IDAHO. [Part 6. to secure the purchase money or pay the purchase money, if the signature of the wife be obtained to the same, and acknowledged by her btparate and apart from her husband. CHAPTER XIII. ESTATES OF DECEASED PERSONS. Everj executor or administrator shall, immediately after his ap- pointment, cause to be published in some newspaper published in the county — if there be one ; if not, then in such newspaper as may be designated by the Court — a notice to the creditors of the deceased requiring all persons having claims against the deceased to exhibit them, with the necessary vouchers, within ten mi»nths after the first publication of the notice to such executor or administrator, at the place of his residence or trans- action of business, to be specified in the notice. If a claim be not presented within ten months — unless the value of the estate does not exceed fifteen hundred dollars ; in which case notice to creditors shall be given to present their claims within four months — after the first publication of the notice, it shall be barred forever ; provided, if it be not then due, or if it be contingent, it may be presented within ten months after it shall become due or absolute : and provided further, that when it shall be made to appear by the afidavit of the claimant, to the satisfaction of the executor or administrator and the probate judge, that the claimant had no notice, as pro- vided in this act, by reason of absence from this Territory, it may be presented at any time before a decree of distribution is entered. Every claim presented to the administrator shall be supported by the aflfidavit of the claimant that the amount is justly due, that no payments have been made thereon, and that there are no oflf-sets to the same to the knowledge of the claimant or affiant : provided, that when the affidavit is made by any other person Chap. 13.] IDAHO. 205 than the claimant, he shall set forth in the affidavit the reason it is not made by the claimant. The oath may be taken before any officer authorized to administer oaths. (If the claimant is a n(»n-resident, the affidavit must be made before a judge or clerk of a Court having a seal, or a commissioner for Idaho Territory.) The executor or administrator shall also require satisfactory vouchers or proofs to bo produced in support of the claim. The amount of interest shall be computed and included in the statement of the claim, and the rate of interest determined ; provided, that no claim which shall have been due and payable thirty days prior to the death of the deceased shall bear greater interest than ten per cent, per annum from and after the time of issuing letters. When a claim, accompanied by the affidavit required, has been presented to the executor or administrator he shall en- dorse thereon his allowance or rejection, with the day and date thereof. If he allow the claim, it shall be presented to the judge for his approval, who shall in the same manner endorse upon it his allowance or rejection. If the executor or administrator, or the judge, refuse or neglect to endorse such allowance or rejection for ten days after the claim shall have been presented to him, such refusal or neglect shall be deemed a rejection; if allowed and approved, it must be filed in the Probate Court within thirty days. If the claim be founded on a bond, bill, note, or other instru- ment, the original instrument shall be presented, and the allow- ance and approval, or rejection, shall be endorsed thereon or attached thereto. If the claim, or any part thereof, be secured by a mortgage or other lien, such mortgage or evidence of lien shall be at- tached to the claim and tiled therewith, unless the same be re- corded in the office of the recorder of the county in which the land lies; in which case it shall be sufficient to describe the mortgage or lien, and refer to the date, volume and page of its record. In all cases the claimant may withdraw bis claim from file on leaving a certified copy, with a receipt endorsed thereon, by himself or his agent. If the original instrument be lost or de- 206 IDAHO. [Part 6. stroyed, then, in lieu thereof, the claimant shall be required to file his affidavit particularly describing such instrument, and stating the loss or destruction thereof. When a claim is rejected, either by the executor or admin- istrator or probate judge, the holder shall bring suit in the proper Court against the executor or administrator, within three months after the date of its rejection, if it be then due, or with- in three months after it becomes due, otherwise the claim she'' be forever barred. No claim shall be allowed which is larred by the statute ox limitations. The executor, administrator or probate judge may allow a claim in part, and if the claimant fail to recover a greater sum he is allowed no costs. The debts of the estate are paid in the following order: 1. Funeral expenses. 2. The expenses of the last sickness. 3. Debts having preference by the laws of the United States. 4. Judgments rendered against the deceased in his lifetime, and mortgages in the order of their date. 5. All other demands against the estate. The mortgages in preference extend only to the proceeds of the property mortgaged; any deficiency must be classified and paid under the fifth head. Executors and administratois should make a settlement of the estate at the expiration of one year; except where the value of the estate does not exceed fifteen hundred dollars, the Court may order the estate settled in six months. Chap. 14.] IDAHO. 207 CHAPTER XIV. DEPOSITIONS. The deposition of a witness in this Territory, who is a party to the action or proceeding; or who resides out of the county, or is about to leave the county where the action is to be tried; or is too infirm to attend the trial; or when the testimony is required upon a motion, or in any other case where the oral examination of the witness is not required, may be taken by either party, be- fore any judge or clerk, or any justice of the peace, or notary public in this Territory, on serving upon the adverse party pre- vious notice of the time and place of the examination, together with a copy of an affidavit, showing that the case is one of the above mentioned. Such notice shall be at least five days, and in addition one day for every twenty-five miles of the distance of the place of examination from the residence of the person to whom the notice is given, unless a shorter time is prescribed by the judge. The deposition of a witness out of this Territory may be taken upon commission issued from the Court, under the seal of the Court, upon an order of the judge or Court, or probate judge, on the application of either party, upon five days' notice to the other. If issued to any place within the United States, it may be directed to a person agreed upon by the parties, or if they do not agree, to any judge or justice of the peace, or com- missioner seleoted by the officer issuing it. If issued to any country out of the United States, it may be directed to a minister, ambassador, consul, vice consul, or con- sular agent of the United States in such country, or to any per- son agreed on by the parties. The commission shall authorize the commissioner to adminis- ter an oath to witness, and to take his deposition in answer to the interroffatories; or when the examination is to be made with- out inten'ogatories, in respect to the matter in dispute; and to 208 IDAHO. [Part 6. certify the deposition to the Court, in a sealed envelope, directed to the clerk or other person designated or agreed upon, and for- ward to him by mail or other usual channel of conveyance. CHAPTER XV. JUDICIAL RECORDS. A judicial record of this Territory or of the United States may be proved by the production of the origini*! or copy thereof, certified by the clerk, or other person having the legal custody thereof, under the seal of the Court, to be a true copy of such record. The records or judicial proceedings of the Courts of any State of the United States may be proved or admitted in the Courts of this Tei-ritory, by the attestation of the clerk and the seal of the Court annexed, (if there be a seal) together with the certificate of the judge, chief justice or presiding magistrate, as the case may be, that the attestation is in due form. A seal of a Court or public officer, when required may be im- pressed with wax, wafer or any other substance, and then attached to the instrument or document; or it may be impressed on the paper alone. CHAPTER XVI. ACKNOWLEDGMENTS. Acknowledgments are required in all conveyances affecting real estate. The same certificate required as in California. May be taken by: Chap. 16.] IDAHO. 209 1. If acknowledged or proved within this Territory, by some judge or clerk of a Court having a seal, or some notary public, recorder or justice of the peace of the proper county. 2. If acknowledged or proved without this Territory, and within the United States, by some judge or clerk of any Court of the United States, or of any State or Territory having a seal, or by any commissioner appointed by the Governor of this Territory. 3. If acknowledged or proved without the United States, by some judge or clerk of any Court, (having a seal) of any State, Kingdom or Empire, or by a notary public therein, or by any minister, commissioner, or consul of the United States ap- pointed to reside therein. The act concerning conveyances of real estate, or any interest therein, and mortgages, is the same as in California. CHAPTER XVII. LIMITED PARTNEKSHIPS. Limited partnerships for |the transaction of mercantile, me- chanical, mining or manufacturing business may be formed, but not for the purpose of banking or insurance. No such parnership shall be deemed to have been formed until a certificate which shall contain the name or firm under which said partnership is to be conducted, the jiames and respec- tive places of residence of all the general and special partners, distinguishing who are general, and who are special partners, the amount of capital which each special partner has contributed to the capital stock, the general nature of the business to be transacted, the time when the partnership is to commence and terminate, shall be made and severally signed and acknowledged by all the partners, before an oflBcer authorized to take acknowl- ment of deeds, and recorded in the ofl&ce of the recorder of the county in which the principal place of business of the partner- ship is located. If there shall be a place of business in diflferent j210 IDAHO. Part 6.] counties, said certificate shall be recorded in each of such coun- ties; a copy of such certificate shall be published three suc- cessive weeks in the county where the principal place of busi- ness is located. Any false statement in the certificate makes all the partners liable as general partners. The special partners shall not be personally liable for any debts of the partnership, except their names be used in said firm with their consent or privity, or shall personally make any contract respecting the concerns of the partnership with any person except the general partner. CHAPTER XVIII. MARRIED WOMEN. All property, both real and personal, of the wife before mar- riage, and that acquired afterwards, by gift, bequest, devise or descent, is her separate property, and all the husband's is his separate property. All other property acquired after marriage is common property. The wife is required to make, sign, acknowledge, and have re- corded a complete inventory of her separate property, in the ofl&ce of the recorder of the county where the property is situated. The husband has the management and control of the wife's sepa- rate property during marriage, out cannot alienate or create a lien or incumbrance on the same, except by instrument signed and acknowledged by both husband and wife. The District Court may, on application of the wife, appoint a trustee to take charge of and manage her separate property, if the husband mismanages it or commits waste. The husband has entire control of common property and his own separate property, and the rents and profits of all the sepa- rate property of both husband and wife are deemed common property, unless expressly provided in the instrument or devise Chap. 18.] IDAHO. 211 to the contrary. Upon dissolution of the community by death, half of the common property goes to the survivor and half to the descendants, if there are any; if not, all to the survivor. Upon dissolution by decree of Court, the common property must be equally divided, unless the decree is granted on the ground of adultery or extreme cruelty, when the division of the same is left to the discretion of the Court granting the decree. The separate property of the husband is not liable for the debts of the wife contracted before marriage, but the separate property of the wife is liable for all such debts. CHAPTER XIX. CORPORATIONS. U a if is 1- n te There is a general law for the formation of corporations, by which three or more persons may form a coi'poration by filing a certificate in writing with the clerk of the District Court of the district in which the principal place of business of the corpo- ration is intended to be located, and a certified copy of the same, under the hand of the clerk and the seal of the Court, in the office of the Secretary of the Territory. Said certificate must state the corporate name of the company, the object for which it is formed, amount of capital stock, term of existence, (not to exceed fifty years) number of shares, number of trustees and their names who shall manage the concerns of the corpora- tion for the first three months, and principal place of business. The total amount of the debts of the corporation shall not, at any time, exceed the amount of tlie capital stock actually paid in; and in case of any excess, the trustees under whose admin- istration the same may have happened, except those who have caused their dissent therefrom to be entered at large on the minutes of the board of trustees at the time, and except those not present at the time when the same did happen, shall, in their individual and private capacities, be liable jointly and 212 IDAHO. Parte. severally to the said corporation, aiad in the event of its jdisso- lution, to any of the creditors thereof, for the full amount of such excess. Each stockholder shall be individually and personally liable for his proportion of all the debts and liabilities of the corpo- ration, contracted or incurred during the time that he was a stockholder, for the recovery of which joint or several actions may be instituted; and when a judgment in such action shall be recovered against joint stockholders, the Court on the trial thereof shall apportion the amount of the liability of each, and in the execution thereof no stockholder shall be liable beyond hit^^ proportion so ascertained. CHAPTER XX. CHATTEL MORTGAGES May be given upon all kinds of personal property. To be valid against subsequent incumbrancers, or purchasers in good faith, for a valuable consideration, the moi'tgage must show the resi- dence, and the profession, trade or occupation of both the mortgagor and mortgagee, and each of the parties must make affidavit thereto, that the mortgage is made in good faith, and without any design to hinder, delay or defraud creditors. When so made and recorded in the office of the recorder of deeds, such mortgage is good against all persons. Chap. 21.] IDAHO. 218 \ CHAPTER XXI. INTEREST AND USURY. Ten per cent, per annum is the legal rate of interest. Parties may agree in writing for any rate of interest not exceeding two per cent, per month, but any judgment rendered upon such con- tract bears only ten per cent, per annum. The penalty for a greater rate than above specified is three times the amount so paid, and the person receiving a greater rate than two per cent, per month is liable to a fine of three hundred dollars, or six months' imprisonment, or both. Interest does not commence to run on open accounts until a balance is struck and agreed to, or a settlement is had. CHAPTER XXH. AFFIDAVITS. An affidavit to be used before any Court, judge or officer of this Territor}' may be token before any judge or clerk of any Court, or any justice of the peace or notary public in this Ter- ritory. An affidavit taken in another State or Territory of the United States, to be used in this Territory, shall be taken before a com- missioner appointed by the Governor of this Territory to take affidavits and depositions in such other State or Territory, or be- fore the judge of a Court of record having a seal. An affidavit taken in a foreign country, to be used in this Tei'ritory, shall be taken before an ambassador, minister, or consul of the United States, or before any judge of a Court of record having a seal in such foreign country, or before a commissioner of deeds ap- pointed by the governor. : t 214 IDAHO. [Part 6. When an affidavit is taken befoi'e a judge of a Court in an- other State or Territory, or a foreign country, the genuineness of the signature of the judge, the existence of the Court, and the fact that such judge is a member thereof, shall be certified by the clerk of the Court under the seal thereof. CHAPTER XXIII. SOLE TRADERS. i A married woman may become a sole trader by the judgment of the Probate Court of the county in which she has resided for six mouths next preceding the application. A person intending to make application to beo me a sole trader must publish notice of such intention in a newspaper published in the county, or if there be none, then in a newspaper published in an adjoining county, for four successive weeks. The notice must specify the term and the day upon which application will be made, the nature and place of the business proposed to be conducted by her, and the name of her husband. Ten days prior to the day named in the notice, the applicant must file a verified petition, setting foiih : 1. That the application is made in good faith, to enable the applicant to support herself, and others dependent upon her, giving their names and relation. 2. The fact of insufficient support from her husband, and the jauses thereof, if known. 3. Any other grounds for application, which are good causes for a divorce, with the reason why a divorce is not sought; and, 4. The nature of the business proposed to be conducted, and the capital to be invested therein, if any, and the sources from which it is derived. ♦ The applicant may invest in the business proposed to be con- ducted a sum derived from the community property or of the separate pi'oi)erty of the husband, not exceeding five hundred dollars. Chap. 23. J IDAHO. 215 Any creditor of the husband may oppose the application by filing in the Court (prior to the day named in the notice) a written opposition, verified, containing either : 1. A specific denial of the truth of any material allegation of the petition, or setting forth — 2. That the application is made for the purpose of defrauding the opponent ; or, 3. That the application is made to prevent, or will prevent him from collecting his debt. Issues of fact may be tried as in other cases. If the facts found sustain the petition, the Coui't must render judgment, authorizing the applicant to carry on in her own name and on her own account, the business specified in the notice and petition. The sole trader must make and file with the clevk of the Court an affidavit, in the following form : " I, A B, do, in presence of Almighty God, solemnly swear that this application was made in good faith, for the purpose of enabling me to support myself, (and any dependent, such as husband, parent, sister, child, or the like, naming them, if any) and not with any view to defraud, delay or hinder any creditor or creditors of my husband; and t;hat, of the moneys so to be used by me in business, not over five hundred dollars have come, either directly or indirectly from my husband; so help me God." A certified copy of the decr'ie, with this oath endorsed there- on, must be recorded iu the office of the recorder of the county where the business is to be carried on. A married woman who ik adi udged a sole trader is responsible and liable for the maintenance of her minor children. The liusband of a sole trader is not liable for any debt con- tracted by her iu the course of her sole trader's business, un- less contracted upon his written consent. 216 IDAHO. [Part 6. CHAPTER XXIV. INSOLVENT DEBTOES. Every insolvent debtor may be discharged from his debts, upon executing an assignment of all his property, real, personal or mixed, for the benefit of all his creditors; provided, said as- signment shall be made bona fide and without fraud. The District Court only has jurisdiction in insolvent cases. The debtor must petition the judge having jurisdiction within the place of his residence; to his petition mast be annexed his schedule, signed by himself, and by him sworn to before the said judge in the following words, to wit: " I, A B, do, in the presence of Almighty God, truly and sol- emnly swear, that the schedule now delivered by me doth con- tain a full, perfect and true discovery of all the estate, real and personal and mixed, goods and eft'ects to me in any way belong- ing, all such debts as are to me owing, or to any person or per- sons in trust for me, and all securities and contracts, whereby any money may hereafter become payable, or any benefit or ad- vantage accrue to me, or to my use, or to any person or persons in trust for me; that I have no lands, money, stock or estate, re- version or expectancy, besides that set forth in my schedule; that I have, in no instance, created or acknowledged a debt for a greater sura than I honestly and truly owed; that I have not, directly nor indirectly, sold or otherwise disposed of in trust or concealed any part of my property, effects, or contracts; that I have not, in any way, compounded with my creditors, whereby to secure the same, or to receive or to expect any profit or ad- vantage therefrom, or to defraud or deceive any creditor to whom I am indebted in any maimer whatsoever, so help me God." The judge will set apart all real and personal property exempt from exection to the use of the insolvent debtor and his family. The judge receiving said petition, schedule and affidavit, shall make an order requiring all creditors of such insolvent to Chap. .24.1 IDAHO. 217 show cause, if any they have, why an assignment of the insol- vent's estate should not be made and he be discharged from his debts; and shall direct the cleik to issue a notice calling the creditors nf insolvent to be and appear upon a specified day, not less than thirty, nor more than forty days from first publica- tion, before said judge, either at Chambers or in open Court, as such judge shall order, to show cause why the prayer of the insolvent should not be granted. Said notice must be published in the county newspaper, not less than thirty days; if no county paper, then in adjoining county. When issuing order for meeting of creditors, the judge shall order all proceedings against the debtor stayed, except proceed- ings for foreclosure of mortgage or other liens, or of attaching creditors. At the meeting of cred'tors, one or more assignees, not ex- ceeding three, may be aj pointed by a majority, in sums or in claims, of the creditors, who have certified on oath that their claims are legitimate and true. If the creditors fail to meet, or having met, fail to appoint an assignee, the judge shall authorize the sheriff of the county to perform the functions of assignee, unless one of the creditors shall agree to act as assignee; in that case the judge shall ap- point such creditor. All sales of property of an insolvent debtor by the assignee, shall be at public auction to the highest and best bidder for cash, after three weeks' notice in newspaper; provided, if prop- erty is perishable, it may be sold on seven days' notice after the appointment of assignees ; any one of the creditors may oppose it, on the ground of fraud of the insolvent debtor ; or, that assignees were not legally appointed. His written opposition must be filed with the Court within ten days after such appoint- ment ; the facts shall be tried by a jury of not less than six men. If the jury find the insolvent debtor guilty of fraud, he shall forever be deprived of the benefits of the laws passed for the relief of insolvent debtors in this Territory ; shall forever be deemed incapable of holding any office of tmst or profit under the government of this Territory' ; shall morover be liable to be prosecuted and punished as a perjurer, if he should be convicted 218 IDAHO. [Part 6. h of having foresworn himself in any of the declarations he may have made, agreeable to the provisions of this act ; and if con- victed of fraud, he shall be sentenced by the Court to suffer imprisonment, at hard labor, in the Territorial prison, for t, term not less than six months nor more than two years. Fraudulent Bankrupts Are All persons who shall be convicted of having concealed their property, with the intention to keep it from their creditors ; all who shall be convicted of having concealed or altered their books or papers, with the same intention ; all who shall be con- victed of having passed sham deeds for the purpose of convey- ing the whole or any part of his property and depriving his creditors thereof; or of having knowingly omitted to declare any of his property rights or claims in his schedule ; or of hav- ing purloined his books or any of them ; or of having altered, changed or made them anew to an intent to defraud his credi- tors ; or of having alienated, mortgaged or pledged any of his property ; or of having committed any other kind of fraud to the prejudice of his creditors, shall be considered a fraudulent bankrupt. Who Debarred the Benefits of this Act. Any debtor who shall be convicted of having at any time within three months next preceding his failure, sold, engaged or mortgaged any of his goods and effects, or of having other- wise assigned, transferred or disposed of the same or any part thereof, or confessed judgment in order to give a preference to one or more of his creditors over the others, whereby to receive any advantage in anticipation of his failure, to the prejudice of his creditors. All debtors owing or accountable in any manner for public funds or property of whatever nature or kind; all unfaithful depositories; all such as refuse or neglect to pay up all funds received by them as bankers, brokers, commission merchants, or for money, goods or effects received by them in a fiduciary capacity, shall be denied the benefits of this act. If after the presentation of his petition the insolvent shall sell, or in any manner transfer or assign any of his property, or Chap. 24]. IDAHO. 219 collect any debts due him, and shall not give a just and correct account of the property so sold or transferred, and the moneys so collected, and pay the same over to the assignees within ten days of their appointment, said debtor shall not receive the benefit of the act. Whenever any insolvent debtor Las had the benefit of this act, if thereafter, at any time, it is made to appear that he has concealed any part of his property or estate, or given a false schedule, or committed any fraud under the provisions of this act, it is hereby declared that he has forfeited all benefit and advtintage which he would otherwise have had by virtue of this act; and he cannot avail himself of any of its provisions in bar to any claim that may be instituted against him. No person can apply for or receive the benefit of this act through an agent or attorney in fact. An insolvent debtor can only be released and discharged from such debts and liabilities as he shall have set forth and named in his schedule. From and after the surrender of the property of the in- solvent debtor, all property of such insolvent debtor shall be fully vested in his assignee or assignees for the benefit of his creditors, and shall not be liable to be seized, attached, taken or levied upon by virtue of any execution issued against the prop- erty of said insolvent, and the assignees who may be appointed shall take possession of, and be entitled to claim and recover all the said property; and to administer and sell the same as herein provided; subject, however, to the rights of mortgagees, lien holders and prior attaching creditors, whose prior rights shall in no wise, be affected by the provisions of this act. Two or more creditors may, at any time, make a motion to know if the assignees have funds in their hands, and the said assignees shall be required to present their accounts, and if they have funds they shall distribute them without delay. If any creditors reside without the limits of the Territory the judge shall appoint an attorney to represent them; the fees of said attorney shall be paid from the money recovered for such non-residents at the rate of ten per cent. ; provided, in no case shall the fees exceed three hundred and fifty dollars. PART VII WYOMING TERRITORY. PREPARED EXPRESSLY FOR THIS WORK BY E. P. JOHNSON, CHEYENNE. CHAPTER I. COUETS AND THEIE JURISDICTION. The Courts provided for this Territory are a Supreme Court, District Courts, Probate Courts, and Justices of the Peace. The Supreme Courts has no original jurisdiction, except in habeas corpus cases. It exercises an appellate jurisdiction, principally in cases coming up from the District Courts. The District Courts have chancery and common law jurisdic- tion, and jurisdiction in appeals from the Justice and Probate Courts. The Probate Court has no jurisdiction except over probate business proper. The Justices of the Peace have no jurisdiction of any matter in controvery where the title or boundaries of land may be in dis- pute, or where the debt or sum claimed shall exceed one hun- dred dollars. 222 WYOMINQ. [Part 7. CHAPTER II. TERMS OF COURTS, WHEN AND WHERE HELD. The ?Jeri"itory is divided into three judicial districts: Laramie county con; poses the first; Albany and Carbon the second; Sweetwator and Uinta the third. Terms of Coi'vt are held in each, as follows: At Cheyenne, commencing on the fourth Monday of May and first Monday of November of each year. At Laramie, commencing on the first Monday of February and August of each year. At Rawlins, commencing on the first Monday of April and second Monday of September of each year. At Areen River, on the first Monday of May and October of each year. At Evanston, commencing on the first Monday of January and July of each year. CHAPTER HI. COMMENCEMENT OF ACTIONS, TIME TO ANSWER, PLACE OF TRIAL. Actions are commenced by filing in the office of the clerk of the proper Court a petition, and causing a summons thereon to be issued. The summons is returnable on the second Monday after the day of its date, and the answer or demurrer of the de- fendant shall be filed on or before the third Saturday after the return day of the summons. Civil actions must be tried in the county in which they are commenced, unless upon application for a change of venue Ohap. 3.] WVOMIKO. 223 based upon sufficient reasons the Court orders the place of trial to be changed; and in such case, the Court must send the cause to the most convenient county. CHAPTER IV. LIMITATION OF ACTIONS. Actions for the recovery of real property can only be brought within twenty-one years af^er the cause of action shall have ac« crued, except actions of forcible entry and detainer, or forcible and unlawful detention, only of real property, which must be commenced within two years after the cause of action shall have accrued. An action upon a specialty, or any agreement, contract or promise in writing, or on a foreign judgment, must be brought within fifteen years. And actions upon contract not in writing, express or implied, or upon a liability created by statute, must be brought within six years after the cause of action shall have accrued. Causes of action arising out of the Territory against a non- resident are barred one year after the debtor becomes a resi- dent. ! CHAPTER V. ATTACHMENTS. The creditor in a civil action for the recovery of money, may, ot or after the commencement thereof, by filing the necessary affidavit, have an attachment against the property of the debtor, and upon the grounds herein stated : 224 WYOMING. [Part 7. 1. When the debtor, or one of several debtors, is a foreign corporation, or a non-resident of this Territory. 2. Has absconded with the intent to defraud his creditors. 3. Has left the county of his residence to avoid the service of a summons. 4. So conceals himself that a s\immons cannot be served upon him. 5. Is about to remove his i)roperty, or a part thereof, out of the jui'isdiction of the Court, with the intent to defraud his creditors. 6. Is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors. 7. Has property or rights in action'which he conceals. 8. Has assigned, removed, or disposed of, or is about to dis- pose of his property, or a part thereof, with the intent to defraud his creditors. 9. Fraudulently contracted the debt or incurred the obliga- tion for which suit is about to be or has been brought. But an attachment shall not be granted on the ground that the debtor is a foreign corporation, or a non-resident of this Territory, for any other claim than a debt or demand arising upon contract, judgment, or decree. When a foreign corporation or non-i-eBi "lent is defendant, the writ may issue without an undertaking;. In all other cases the writ will not be issued by the clerk oi' ^.he Court until there has been executed and filed in his office an undertaking with sureties approved by him, in double the amount of plain- tiff's claim, to the effect that plaintiff shall pay all damages which defendant may sustain by reason of the attachment, if the writ be wrongfully obtained. id! Chap. 5.] WYOMING. -if CHAPTER VI. 'ip 226 (f AKREST IN CIVIL ACTIONS. No person can be imprisoned for debt in any civil action on mesne or final process, unless in case of fraud. An order for the arrest of the debtor shall be made by the clerk of the Court in which the action is brought, when there is filed in his office an affidavit of the creditor, or his authorized agent or attorney, made before any judge of any Court of the Temtory, or clerk thereof, or justice of the peace, stating the nature of the credit- or's claim, that it is just, and the amount thereof an nearly as may be, and establishing one or more of the following particu- lars: 1. That the debtor has removed, or begun to remove, any of his property out of the jurisdiction of the Court, with intent to defraud his creditors. 2. That he has begun to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors. 3. That he has property or rights of action which he fraudu- lently conceals. 4. That he has assigned, removed, or disposed of, or has begun to dispose of his property, or a part thereof, with intent to de- fraud his creditors. 5. That he fraulently contracted the debt or incurred the ob- ligation for which suit is about to be or has been brought. The affidavit must also contain a statement of the facts claimed to justify the belief in the existence of one or more of the above particulars. The creditor, before the issuing of the order of arrest, must give bond in double the amount of the claim stated in the affidavit. The death of a person under arrest does not satisfy the judgment. 226 WYOMING. [Part 7. CHAPTER Vn. i N JUDGMENT LIENS. A judgment is a lien on the lands and tenements of a judg- ment debtor from the first day of the term at which it is ren- dered; but judgments by confession and judgments rendered at the same term at which the action is commenced bind such lands only from the date of their rendition . If execution is not sued out within five yeai's from the date of th 3 rendition of judgment, such judgment becomes dormant, and ceases to operate as a lien. The judgment may subse- quently be revived, but the lien is not restored, except from the date of revivor. CHAPTER Vni. EXECUTIONS, SALE, REDEMPTION, AND EXEMP- TIONS. IS II Executions are of three kinds: 1. Against the property of the judgment debtor. 2. Against his person. 3. For the delivery of the possession of real property, with damages for withholding the same and costs. The ofiicer having the writ must levy first on the goods and chattels of the debtor, but if no goods be I'ound, he shall en- dorse on the writ " no goods," and forbhwitli levy the writ of execution upon the lands and tenements of the debtor liable to satisfy' the judgment. The officer may sell goods and chattels seined, by first pub- lishing notice of the time and place of sale, I'or a period of ten days. Notice of the sale of lands and tenements must be pub- lished thirty days prior to the sale. Chap. 8.] WYOMINd. 227 There is now in this Territory no statute providing for the redemption of property, either real or personal, sold on execu- tion. The exemptions from levy, or seizure, are a homestead not exceeding in value $1,500, so long as it is actually occupied as such by the debtor and his family, the value to be ascertained by appraisers. So, too, the following personal property, when owned by the head of a family who is residing with the same : Furniture, bed- ding, and provisions, and such other other articles as the debtor may select, not exceeding in value $500. Tliere is also exempt the necessary wearing apparel of every p Jrson, not exceeding in value $50. The tools, team and implements, or stock in trade of any mechanic, miner, or othei' person, used and kept for the purpose of carrying on his trade or business, not exceeding in value $300. Also the library, instruments and implements of any professional man, not exceeding in value $300. There is no exemjjtion in favor of a person not an actual resi- dent of the Territory, nor one about to remove or abscond there- from. And no article of jiroperty is exempt from attachment or sale, upon execution for the purchase money of said article of property. CHAPTER TX. PROCEEDINGS IN AID OF EXECUTIONS. Proceedings in aid of executions may be had, in which the debtor may be examined and compelled to disclose and appro- priate to the payment of the judgment any property which he may have unjustly refused to apply to that purpose. A receiver may be appointed to take and dispose of such prop- erty of the judgment debtor that may be unearthed on examina- tion, either legal or equitable, and rppropriate the proceeds to the payment of the judgment. 228 WYOMING. [Part 7 CHAPTER X. SECURITY FOE COSTS. In all cases in which the plaintiff is a resident of the county in which the action is brought, he must furnish security for costs before commencing such action. Security need not be fur- nished, provided costs are paid as they accrue. CHAPTER XL APPEALS. I In actions at law, final judgments and orders may be reviewed on writ of error, or petition in error sued out a^y time within three yearc after rendition. In chancery cases, review may be had by appeal, if the appeal is perfected within thirty days after the decree complained of. Where the judgment or decree sought to be reviewed is for the payment of money, security must be given in double the amount of the decree or judgment. In other cases the amount of security is fixed by the Court. CHAPTER XII. ESTATES OF DECEASED PERbOKR, Estates of deceased persons are H(3ttled in the Probatt Courts through the usual means of executors and adriiinistrators. Chap. 12.] WYOMING. 229 Claims against the estate must be presented within one year after the granting of letters testamentary or of administration, and if not so presented, are forever barred. Every executor and administrator must exhibit a statement of the accounts of his administration for settlement, with proper vouchers, to the Probate Court, .^t its first term affcer the end of six months from the date of his let*^^ers, and at the corresponding term of Court every six months until administration be completed. CHAPTER XIII. DESCENTS AND DISTEIBUTION OF PROPERTY. ed lin eal for the lint urts 1. Whenever any person having title to any real estate, or property having the nature or legal character of real estate, or pei*sonal estate undisposed or otherwise limited by marriage settlement, shall die intestate as to such estate, it shall descend and be distributed in parcenary to his kindred, male and female, subject to the payment of his debts, ia the following course and ■nanner, namely: If such intestate leave a husband or wife and children, or the descendants of any children, him or her surviv- Ag, on^ ' alf of such estate shall descend to such surviving husband or wife, and the residue thereof to such surviving chil- dren and descendants of children as hereinafter limited; if such intestate leave a husband or wife and no child nor descendants of any child, theu the real and personal estate of such intestate shall descend as follows, to wit: Three-fourths thereof to such surviving husband or wife, and one-fourth thereof to the father and mother of the intestate, or the survivor of them. Provided, That if the estate of such intestate, real and personal, does not exceed in value the sum of ten thousand dollars, then the whole thereof shall descend to and vest in the surviving husband or wife as his or her absolute estate, subject to the payment of debts as aforesaid. Dower and the tenacy by the courtesy are abolishtd, and neither husband nor wife shall have any share in 230 WYOMIKG. [Part 7. I I the estate of the other save as herein provided. Except in cases above enumerated, the estate of any intestate shall descend and be distributed as follows: First, — To his children surviving, and the descendants of his children who are dead, (the descendants collectively taking the share their parent would have taken if living). Second. — If tht ; ^ • • o children nor their descendants, then to his father, mothe., ;hers and sisters, and to the descend- ants of brothers and ^isters who are dead, (the descendants collectively taking the share their parent would have taken if living) in equal parts. Third. — If there be no children nor their descendants, nor father, mother, brothers, sisters, nor descendants of deceased brothers or sisters, nor husband nor Avife living, then to the grandfather, grandmother, uncles, aunts and their descendants, (the descendants taking collectively the share of their imme- diate ancestors) in equal parts. 2. All posthumous childien or descendants of the intestate shall inherit in like manner as if born in the lifetime of the in- testate; but no right of inheritance shall accrue to any person other than the children or descendants of the intestate, unless they are in being, and capable in law of taking as heirs at the time of the intestate's death. 3. Children, and descendants of children of the half-blood, shall inherit the same as children and descendants of the whole blood, but collateral relations of the half-b.ood shall inherit only half the measure of collateral relatives of the whole blood, if there be any of the last named class living. 4. Wher ^ any of the children of the intestate shall have re- ceived in his lifetime any real or personal estate, by way of ad- vancement, and the other lieirs desire it to be charged to him, the probate judge shall cite the parties to appear before him, shall hear proof upon the subject, and shall determine the amount of such advancement or advancements to be thus charged. 5. The maintenance, education or supply of money to a child under the age of majority, without any view to apportion or settlement in life, shall not be deemed an advancement under section four. ! I Chap. 13.] WYOinNG. 231 6. ^he alienage of the descendants shall not invalidate any title to real estate which shall descend from him or her. 7. Illegitimate children shall inherit the same as those born in -wedlock, if the parents subsequently intermarry, and such , children be recognized after such intermarriage by the father to be his. Illegitimate children inherit from the mother, and the mother frojn the children. 8. Divorces of husband and wife shall not affect the right of children personally together, to inherit their property. 9. Probate judges and .idniinistrators of the estates of pei'sons dying intestate within this Territory, shall apportion and distrib- ute estates' of intestates according to this Act. 10. The rule of descent of all property of whatsoever kind or nature, real or personal, of any bastard or illegitimate person, dying intestate in this Territory, and leaving property and effects therein, shall be as follows, to- wit : On the death of any such person intestate, his or her property, estate and effects shall descend to and vest in the widow, or the surviving husband and children, as the property and effects of other persons in like cases. In case of the death of any such illegitimate person leaving no children, or descendants of a child or children, then the whole property and estate, rights, credits and effects shall descend to and vest in the widow or surviving husband. In case of any such illegitimate person leaving no widow, surviving husband, or descendants, then the property and estate of such person shall descend to and vest in the mother and her children, and their descendants ; to the mother one-half, and the other half to be equally divided between her children and their de- scendants, the descendants of a child taking the share of their deceased parent or ancestors. In case of the death of any such illegitimate person leaving no heirs as above provided, then the property and effects, of whatsoever kind or nature, shall pass to and vest in the next of kin to the mother of such illegitimate pei'son, in the same manner as the estate of a legitimate person would, by law, pass to the next of kin. 11. If any decedent leaves a widow residing in this Territory, in all cases she shall be allowed to have and retain as her sole and separate property, one bed and bedding, wearing apparel for herself and family, two cows, her saddle and bridle, one f 232 WYOMING. [Part 7. horse, household furniture for herself and family, ...d also the same amount and species of property, real and personal, as is or may be by law exempt from execution. Said property shall be retained by the widow, and set apart to her by the executor or administrator, and shall in no case be subject to the payment of debts of the deceased, 12. When an inventory shall have been made of the personal estate of any testator or intestate, the widow may relinquish her right to all of the specified articles of property allowed to her by the preceding section; or in case the intestate shall not leave any or all of the articles specified, in either case she shall be entitled to other property, or the value of the same in money; and it shall be the duty of the administrator or Court of probate to al- low the value of the articles specified by law to be set apart to the widow of any intestate, to be allowed her in money, or other personal property, at her election. 13. The right of a widow to her separate property shall in no case be aflfected by her /enouncing, or failing to renounce, the benefit of the provisions made for her in the will of her husband^ or otherwise. CHAPTER XIV. DEPOSITIONS. No person is disqualified as a witness by reason of his interest in the event of suit. Depositions may be taken as soon as a case is commenced, and may be used when the witness does not reside in the county where the action is pending, or is absent therefrom; or when from age or infirmity or imprisonment of the witness he is un- able to attend Court, or is dead; or when in any case oral ex- amination is not required; or in cases of appeals from Justices Courts. They may be taken in or out of the Territory, before a justice Chap. 14.] WYOMING. 233 of the peace, chancellor, or judge of any Court of record, no- tary public, mayor, or chief magistrate of any city or town cor- porate, a commissioner appointed by the Governor of the Terri- tory, or any person authorized by special commission from the Territory. They may be taken in narrative form or by questions and answers, except in chancery cases, in weich they must be taken on interrogatories and cross-interrogatories, settled before is- suing the commission. In law cases they may be taken on notice or commission issued by the clerk of the Court. CHAPTER XV. JUDICIAL RECORDS. The judicial records of another State must be proven in ac- cordance with the provisions of the Act of Congress, except judgments of justices of the peace, whose proceedings may be authenticated by his own certificate, supported by the official certificate of the clerk of any Court of record in the county in which such justice resides, that his signature is genuine, and that he is an acting justice of the peace of that county. CHAPTER XVI. ACKNOWLEDGMENTS. Deeds or mortgages, executed within this Territory, of lands or any interest in lands, shall be executed in the presence of two witnesses, who shall subscribe their names to the same as such; and the person executing such deeds or mortgages may acknowl- edge the execution thereof before any judge or commissioner of a 234 WYOMING. [Part 7. Court of record, or before any notary public or justice of the peace within the Territory ; and the officer taking such acknowledg- ment shall endorse thereon a certificate of the acknowledgment thereof, and the true date of making the same, under his hand, and seal of office if there be one. If any such deed or mortgage shall be executed in any other State, Territory or District of the United States, such deed or mortgage may be executed according to the laws of such State, Territory or District, by any officer authorized by the laws of such State, Territory or District to take the acknowledgment of deeds or mortgages therein, or before any commissioner ap- pointed by the Governor of this Territory for such purposes. In the cases provided for in the last preceding section, unless the acknowledgment be taken before a commissioner appointed by the Governor of this Temtory for that purpose, such deed or mortgage shall have attached thereto a certificate of the clerk or other proper certifying officer of the Court of record of the county or dis'^rict within which such acknowledgment was taken, under the seal of his office, that the person whose name is sub- scribed to the certificate of acknowledgment was, at tbe date thereof, such officer as he is therein represented to be, that he knows the signature of such person subscribed thereto to be genuine, and that the deed or mortgage is executed and acknowl- edged according to the laws of such State, Territory, or District. CHAPTER XVII. LIMITED PARTNERSHIPS. Limited part,nerships may be formed by two or more persons. There may be general partners so-called, and special partners. Parties forming must sign a certificate stating : 1. The name under which it is to be conducted. 2. Nature of business to be transacted. Chap. 17]. WYOMING. 235 3. Names and residences of the parties, specifying which are general and special. 4. Amount of stock each special partner contributes to the common stock. 5. Period of its beginning and ending. The certificate must be acknowledged and recorded in the county clerk's office of the county in which principal business is to be done. Each jDartner must also make an affidavit that the sums stated in the certificate have been actually paid in; the cei*- tificate must be published. The general partners only have authority to transact the business. The general partners are liable to the same extent as general partners in any partnershii?. CHAPTER XVIII. MAREIED WOMEN. Married women retain their property, real and personal, which they had at marriage, or which they acquire thereafter from any person other than their husband, in good faith, as their own, free from the husband's control, and free from lia- bility for his debts. They may bargain, sell and convey person- al property as if they were sole; may make a will, be sued and sue as if they were sole; may carry on any trade or business on their own account. The husband is not liable for the debts of the wife contracted before marriage. When judgment is ren- dered against both for the tort of the wife, the judgment must be satisfied first out ot the property of the wife, if she have any. 236 WYOMING. [Part 7. CHAPTER XIX. CHATTEL MORTGAGES*. Chattel mortgages must be executed in the presence of two witnesses, and acknowledged before some one authorized to take acknowledgment of deeds, and filed in the ofl&ce of the county recorder of the county where the property is; and it then be- comes a lien on the propertj' described therein, and the lif n is good until the debt secured by the mortgage is due, and for two mouths thereafter, unless before expiration of the two months foreclosure proceedihgs be commenced, in which case lien con- tinues until termination of such proceedings; and if it so pro- vide, the property mortgaged may be left in possession of the mortgagor. All goods and chattels may be mortgaged. CHAPTER XX. INTEREST AND USURY. The legal rate of interest is twelve per cent, per annum; but any rate that may be agreed on is legal. Judgments draw twelve per cent, from the date of their rendition. CHAPTER XXI. ASSIGNMENTS. An insolvent debtor may make an assignment and is considered insolvent when unable to pay his debts as they become due. Chap. 21.] WYOMING. 237 An assignment is void against creditor not assenting in follow- ing cases : 1. If it gives preference. 2. If it tends to coerce any creditor to release or compromise his demand. 3. If it provide for the payment of any claim known to be false, or the payment of more upon one claim than is known to be due. • 4. If it reserve to the assignor any interest beforo all debts are paid. 5. If it confer upon assignee any power which, if exercised, might delay the execution of the trust. 6. If it exempt him from liability for neglect or misconduct. The deed must be in writing, signed, sealed, acknowledged, and recorded in the office of the probate judge of the proper county, otherwise it is void against all parties not assenting thereto. The assignor must make and tile an inventory of the estate within twenty days after the assignment. The assignee must, within thirty days after the assignment, enter into bonds to be fixed by the probate judge, conditioned for the faithful accounting of moneys and discharge of the trust. After six months from date of assignment, the assignee may be required to account on petition of any creditor. And the probate judge must, as soon as possible, settle the estate. In all cases where the assignor complies with the provisions of the act, any creditor accepting from the assignee 1 is dividend arising from the property of the assignor, to which lie would be entitled under any assignment made under the act, shall release the assignor from all further liability on the claim or claims on which said payment may be made. fgm-mgffggiKfmmmmmmimM PART VIII. MONTANA TERRITORY. PREPARED EXPRESSLY FOR THIS WORK BY W. E. CULLEN, HELENA. CHAPTER I. COUETS, THEIE JURISDICTION AND TERMS. The Courts of the Territory are a Supreme Court, District Courts, Probate Court, and Justice of the Peace. The Supreme Court has appellate jurisdiction only. The District Courts have original jurisdiction of all civil cases where the amount in controversy exceeds fifty dollars, and of all felonies; also appellate jurisdiction from the Probate and Jus- tices' Courts. The Probate Court, in addition to Probate matters, has juris- diction in civil actions to the amount of five hundred dollars; except where the title or right to the possession of land is in question, and in chancery and divorce cases. The Probate Court also has jurisdiction of such criminal oases arising under the laws of the Territory as do not require the intervention of a grand jury. Justices of the Peace have jurisdiction where the title of land , 1 I i: 240 MONTANA. [Parts. is not in dispute, and where tbe debt or sum claimed does not exceed one hundred dollars. The District Court, -^hen sitting at Helena, Deer Lodge, and Virginia City, ha"? the same juricdiction as the Circuit and Dis- trict Courts oi 4/he United States, and the first six days of each term at said plaees are appropriated to the trial of causes arising under the constitution and laws of the United States. Tebms of Distbict Courts, 1876. COUNTY. COUNTY 8BAT. DIIT. WHIIN IIBI.O. Beaverhead... Deer Lodge. . . Gallatin Jefferson Madi»nn Meaj^'her Meiwoula Lewis & Clark. Bannank Deer Lodge Bozemon Radersburg VirginaCity Diamond City. . . Meissoula Helena. 2d.... 2d. . . . 1st ... 3d.... l8t . . . 8d.... 2d.... 3d.... First Monday in June, second Monday in October. Second Monday in April, flrst &ionday in Septeml>er. First Monday ni May, second Monday in October. First Monday in April, flrst Monday in t.Kiiober. Third Monday in March, third Monday in 8e|>tember. Fourth Monday in May, fourth Monday in October. Fourth Monday in June, ;;Cv,-ond Monday in November. First Monday in March, second Monday in September, and firct Monday in November. Terms of the Supreme Court are held at the capital, Helena, ne cart or wagon, and food for such animals foi three mouths; also all seed grain or vegetables actually reserved for planting or sowing at any time within six months, not exceeding in value the sum of two hundred dollars. To a mechanic or artisan, tools or implements necessary to carrj' on his trade. To a physician, surgeon or dentist, the instruments au« ost necessary to the exercise of his profession, together with his library. To an attorney at law, ov a minister of the Gospel, their libra- ries. To a miner, his cabin, not to exceed in value $500; also his sluices, pipes, liobe, windlasses, derrick, cars, pumps, tools, im- plemeuts and appliances necessary for mining, not exceeding in value in the aggregate the sum of $500; also one horse or mule, or two oxen, and food for the same for three months, and their 244 MONTANA. [Part 8. harness, when necessary to be used for any windlass, derrick or pump. To a cartman, truckster, peddler, teamster or laborer, one horse or mule, or two oxen and their harness, and one cart or wagon, by the use of which such person habitually earns his living; also food for such animals for three months. Also the earnings of the judgment debtor for thirty days* next preceding the levy of execution, when such earnings are necessary for the support of the debtor's family. A homestead not exceeding in value $2500; if agricultural land, not more than eighty acres; if within the limit of a town or city or village, not more than one-fourth of an acre. The sheriff is required to give notice of sale as follows: by post- ing notice of the time and place of such sale in three public places of the township or city where the sale is to take place, for such time as may be reasonable in case of perishable prop- erty; in case of other personal property, not less than five nor more than ten days. In case of real property, by posting a similar notice for twenty days, and publishing a copy thereof once a week for the same period in some newspaper published in the county; if there be one. In all sales of real property, where the estate is greater than the unexpired term of a two years' lease, the- same may be redeemed within six months from such sale, by — first, the judg- ment debtor, second, a creditor having a lien by judgment or mortgage on the property sold, or some part thereof. CHAPTER VI. PROCEEDINGS SUPPLEMENTARY TO EXECUTIONS. When an execution is returned unsatisfied, the judgment cred- itor may compel the debtor to appear before a judge and answer Chap. 6.] MONTANA. 245 concemiiig his property, and upon such hearing witnesses may be examined. If any property is found, the judge may order the same applied on execution. CHAPTER VII. SECURITY FOR COSTS— APPEALS. Security for Costs. Security may be required in all cases where suit is brought by a non-resident ; and where such security is required, all pro- ceedings are stayed, and the action will be dismissed unless an undertaking is filed in such an amount as may be fixed by the Court within thirty days. Appeals. Same as in California. CHAPTER VIII. ESTATES OF DECEASED PERSONS. . The widow or minor children of a deceased person are entitled to remain in possession of the homestead, of all wearing apparel and household furniture of the decedent, and are also entitled to a reasonable i)rovision for their support. The wife and minor children are entitled to the homestead if there be one, and to all personal property of the decedent ex- empt from execution. If upon the return of the inventory it appears that the value of the whole estate does not exceed §1500, it must be assigned for the use of the widow and minor 246 MONTANA. [Part 8. children, after the payment of the expenses of the last illness, funeral charges, and the expense of administration. Every executor or administrator must immediately after his appointment publish a notice to the creditors of the estate re- quiring them to present their claims to him with proper vouch- ers. If the value of the estate exceeds ten thousand dollars, such claims must be presented within ten months; if under that sum, within four months; and unless they are so exhibited within the time aforesaid they are barred. Every claim must be supported by the affidavit of the claimant, or some one in his behalf, setting forth that the claim is justly due, that no pay- ments have been made thereon which are not credited, and that there are no offsets to the same. If the claim is not due when presented, or is contingent, the particulars must be stated. When claims are thus exhibited, the administrator must, within ten days, endorse upon it his allowance or rejection with date thereof. If he allows the claim, it must be presented to the probate judge for his approval, who must in the same manner endorse upon it his allowance or rejection. A failure by either of said officers for a period of ten days to make such endorse- ment is equivalent to a rejection. When a claim has been rejected either by the administrator or probate judge, the holder must bring suit within three months from the date of such rejection, if it be then due, or within two after it becomes due, otherwise the claim is barred. CHAPTER IX. DEPOSITIONS— JUDICIAL RECORDS— ACKNOWLEDG- MENTS. Depositions. Same 1a w as in California, from which our code was taken. Chap. 9.1 MONTANA. Judicial Records 247 Of another State or Territory are proved by the production of exemplified copies. Acknowledgments. Every conveyance affecting real estate must be in writing and acknowledged, or proved and certified. The following is a gen- eral form of acknowledgment, viz : Territory of Montana, County of ss. Be it remembered, that on this day of- -, 187—, per- sonally appeared before the undersigned, a [title of office] within and for the county aforesaid, personally appearing, came to me, personally known to me to be the same person mentioned in and who executed the foregoing instrument, and he acknowl- edged to me that he had so executed the same freely and volun- tarily, and for the uses and purposes therein expressed. Witness my hand, etc. If a married woman is a party, the certificate must state that the officer examined her apart from and without the healing of her husband, and that she then acknowledged that she executed the same freely and voluntarily, without fear of or under coioa- pulsion of her said husband, and that she did not wish to retract the execution of the same. CHAPTER X. LIMITED PARTNERSHIPS May be created by two or more persons who shall be responsi- ble as general partners, and two or more persons who shall con- tribute to the common stock a specific sum in actual cash pay- ments. 248 MONTANA. [Parts. The special partners not to be liable for any debt of tho part- nership. In order to create such partnership it is necessary that a certificate, stating the name of the partnership firm, the place of residence of each of the general and special partners, the amount of the capital which each special partner has con- tributed, the general nature of the business, the time when the partnership is to commence and when it is to terminate, shall be made, acknowledged and recorded in the office of the county recorder of the county in which the principal place of business of the parnership is located. Any false statement in such cer- tificate subjects all parties to liability as general partners. CHAPTER XI. MARRIED WOMEN Are liable on their contracts made for benefit of or with refer- ence to their separate property. They may become sole traders by filing a certificate in the county recorder's office, and conduct business as a.femme sole. CHAPTER XII. CORPORATIONS— CHATTEL MORTGAGES — INTEREST . Corporations. There is no individual liability of stockholders for indebted- ness of a corporation, beyond the amount of the unpaid stock which they hold. Chattel Mortoages. All personal jwoperty may be pledged or mortgaged, and such . Chap. 12. J MONTANA. 249 mortgages must be foreclosed promptly when due. No chattel mortgage can be made for a longer period than twelve months. Interest and Usury. The legal rate of interest is ten per cent., but any rate for which parties may contract is collectable. There is no usury law. CHAPTER XIII. INSOLVENCY. There is no insolvency law in this Territory. ., >p '" P! PART IX. Washington territory. PREPARED EXPRESSLY FOR THIS WORK BY THE HON. JAMES K. KENNEDY, WALLA WALLA. CHAPTER I. COURTS AND THEIR JURISDICTION. The Territory is divided into three judicial districts, each hav- ing a judge, who together compose the Supreme Court. The Supreme Court has appellate jurisdiction only, and causes are removed to it from the District Courts by writs of error or appeals. The several District Courts have general common law and chancery jurisdiction, in all matters where the amount in con- troversy exceeds one hundred dollars. They have also general jurisdiction in causes arising under the laws of the United States, and in admiralty and bankruptcy. There is a Probate Court in each county, holding six terms each per annum, having statutory jmisdiction in all matters pertaining to decedent's estates, and the guardianship and estates of minors and insane persons. They have no common law jurisdiction except such as is strictly necessary to carry out and enforce tht!.t defined by statute. 252 WASHINGTON. [Part 9. Justices of the Peace have jurisdiction coextensive with the limits of their respective counties, over all causes arising on contract for the recovery of money only, when the sum claimed does not exceed one hundred dollars, and in actions for damages for injury to person or property, or for taking or detaining or in- juring personal property, if the damages claimed do not exceed one hundred dollars; also in actions to recover the possession of personal property where the value does not amount to one hun- dred dollars; also in actions on undertakings or bonds, when the penalty or amount claimed does not exceed one hundred dollars; also in actions for the foreclosure of mortgages, or the enforcement of liens on personal property, when the debt se- cured does not exceed one hundred dollars; also in actions for damages for fraud and deceit in the sale, purchase, or exchange of personal property, when the damages claimed do not exceed one hundred dollars; also in actions of forcible entry and de- tainer; also in actions to try the right of possession to mining claims. They may also take and enter judgment on the confes- sion of a defendant, or upon default for a failure to appear or answer. CHAPTER II. TERMS OF COURTS— WHEN AND WHERE HELD. The Supreme Court holds one term in each year, at Olympia. commencing on the second Monday of July. The District Court of the first judicial district, Hon. S. C. Wingard, judge, is held for the county of Walla Walla at Walla Walla City, on the first Monday of May and fourth Monday of November; for the county of Yakima, at Yakima City, on the first Monday of October of each year; for the county of Whit-' man, at Colfax, on the first Monday of June of each year; for the county of Columbia, at Dayton, on the third Monday of June and second Monday of December; for Stevens county, at Fort Colville, on the second Monday of August. The District Court of the second judicial district, Hon. R. S. Chap. 2.] V* lSHINGTON. 258 Green, judge, is held for the counties of Klickitat, Skamania and Clark, at Vancouver, on tiio third Monday of March and third Monday of October of each year; for the countieH of Cow- litz and Wahkiakum, at Kalama, on the first Monday in Janu- ary and the fourth Monday in June; for the counties of Thur- ston, Lewis, Mason and Chehalis, at Olympia, on the first Mon- day in A])ril and first Monday in December; for the county of Pacific, t?,t Oysterville, on the second Monday of August. The District Court of the third judicial district, Hon. J. R. Lewis, C. J., judge, is held for the county of Pierce, at Steila- coom, on the second Monday of January and first Monday of August; for the counties of King and Kitsap, at Seattle, on the fourth Monday of January and third Monday of August; for the counties of Jefferson, Island, San Juan and Clallam, at Port Townsend, on the fourth Monday of February and fourth Monday of September. The District Court for Whatcom county is held at La Conner, on the first Tuesday of June and the first Tuesday of December. In addition to the above terms of Court, prescribed by Act of the Legislative Assembly, power is given to the judges of each district to appoint, by rule from time to time, two special terms in each year, at which to transact all business, except trials by jury, and the hearing causes on their merits. Terms of the Probate Courts are held at the county seat of each county on the fourth Mondays of January, March, May, July, September and November of each year. Justices' Courts are always open for the transaction of busi- ness. CHAPTER III. at S. COMMENCEMENT OF SUITS— TIME ALLOWED TO ANSWER. Actions in the District Courts are commenced by filing the com- plaint with the clerk, and the issuing a summons thereon at any 254 WASHINGTON. [Part 9. time within one year of B' h filing The defendant is required to answer the complaint as follows : if served within the county where the action is brought, twenty days ; if served out of the county but in the district in which the action is brought, thirty days ; if served in any other district, forty days ; if served by publication, within sixty days from the date of the summons. If the defendant fails to appear and answer according to the requirements of the summons, the pi intifF is entitled to have the default entered, and judgaient for the amount specitJed in the summons, or for the relief prayed for in the complaint. The complaint and all subsequent proceedings m an action, except a demurrer, must be verified by the party, (his agent or attorney, in the county where the action is brought) to the effect that he believes it to be true. All common law forms of plead- ings, and all distinctions between law and equity as to form, are abolished, and the code system adopted. In Probate Court, most of the business can be commenced, preliminary orders granted, and writs issued by the judi^e in vacation. Orders or decrees for the sale of real estate, the net- tlement of estates, and discharge of executors, administrators, or guardians, and fina) orders and decrees generally, must be heard and decided in cerm time. Actions are commenced in Justices' Courts by filing with the justice a complaint or account, verified by the party, his agent or attorney, to the eiiect that he believes it to be true, and thd issuance of a summons or notice theroon. The summons or notice is returnable in not less than six, nor more than twenty days, from the filing the complamt. Chap. 4.] WASHINGTON. I 255 CHAPTER IV. PLACE OF TRIAL OF CIVIL ACTIONS. Actions for the recovery of the possession of, or for the fore- closure of a mortgage on, or in any wise affecting the title to real property, and all questions involving the right or title to per- sonal property, oi* for the detention or injury to such property, shall be brought in the county in which the subject of the action or some part thereof is situated. Actions for a penalty or forfeiture imposed by statute, or against public officers, shall be tried in the corinty or district where the cause of action or some part thereof arose. Actions against corporations may be brought in any county \vliere the corporation has an office for the transaction of busi- ness, or any person resides upon whom process against such corporation may be served. In all other cases the action shall be commenced end tried in the district embracing the county in which the defendants or either of them reside, or may be served with process; or if none of them reside in ♦he Tenitory, the same may be tried in any district or county which the plaintift" may designate in his complaint. CHAPTER V. LIMITATION OF ACTIONS. The i)eriod prescribed for the limitation dI actions, from the time the cause of action accrues, is as follows: For the recovery of real property, or the possession thereof, twenty years; upon a judgment or decree of any Court of the United States, or of any State or Territory within the United 266 WASHINGTON. [Part 9. U' States, or upon a contract in writing or liability, express or im- plied, arising out of a written agreement, or for the rents and profits, or use and occupation of real estate, six years; for waste or trespass upon real property, or for taking, detaining, or in- juring personal property, including an action for the recovery thereof, or for any other injury to the person or rights of another not hereinafter enumerated ; upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument ; for relief upon the ground of fraud, (the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud) against a ministerial officer upon a liability incurred by the doing an act in his official capacity, or by the omission of an official duty, including the non-payment of money collected upon execution ; upon a statute for a penalty or forfeiture, and for seduction and breach of marriage contract, three years ; for libel, slander, assault, assault and battery and false imprisonment, actions upon a statute for a forfeiture or penalty to the Territory, two years ; against a sheriflF or other officer, for the escape of a prisoner arrested or imprisoned on civil process, one year. When the cause of action arises in another*State or Territory, between a resident of that State or Territory and of this Terri- tory, the foregoing limitations apply. When the cause of action arises in another State or Territory between non-residents of this Territory, and the same would be barred there by the lapse of time, it will be barred here. An action shall be deemed com- menced as to each defendant when the complaint is filed. ?^ Chap. 6]. WASHINGTON. 267 CHAPTER VI. ATTACHMENTS. The plaintiff, at the time of issuing the summons, or at any time thereafter, and before judgment, may have the property of the defendant attached as security for the satisfaction of such judgment as he may recover, whenever he or any one on his behalf shall make and file an affidavit that a cause of action exists against the defendant, and the grounds thereof, and that the defendant is either — first, a foreign corporation; or second, that he is not a resident of this Territory, or has departed therefrom with in- tent to delay or defraud his creditors, or to avoid the service of process, or tseps himself concealed therein with like intent; or third, that he has removed or is about to remove any of his property from the Territory with intent to delay or defraud his his creditors; or fouiih, that he has assigned, secreted or dis- posed of any of his property, or is about to assign, secrete or dispose of it with intent to delay or defraud his creditors; or fifth, that the defendant has been guilty of a fraud in contract- ing the debt or incurring the obligation for which the action is brought. Before the writ issues the plaintiff must file with the clerk a bond, with one or more sureties, in a sum not less than one hundred dollars and equal to the amount for which the plaintiff demands judgment, to the effect that the plaintiff will pay all costs that may be adjudged to the defendant, and all damages which he may sustain by reason of the attachment, if the same be wrongful, oppressive, or without sufficient cause. All prop- erty may be attached not by law exempt from execution, includ- ing debts owing to dofendiuit. The defendant may have the property att'^.ched delivered to him by executing to the shei'iff a bond, with surety approved b} him, to the effect that such prop- erty shall bo properly kept and delivered upon demand, to be held on execution; or that he will pay the apprniKcd value there- of; or the defendant may, before the time for answering ex- 268 WASraNOTON. [Part 9. pires, apply to the Court or judge for the discharge of the attachment, on the grounds that it was improperly or improvi- dently issued. Writs of attachment may be issued by justices of the peace, upon any of the foregoing grounds, except that the debt was contracted in fraud, and on the additional grounds that the de- fendant is a non-resident of the county, or is secretly leaving or has left the county, with the intent to hinder, delay, or defraud his creditors. CHAPTER VII. ARREST IN CIVIL ACTIONS. The defendant, upon an order of the Coiirt or judge of the Supreme Court, may be arrested in the following cases, and no other: 1. In an action for the recovery of damages on a cause of ac- tion not arising out of contract, where the defendant is a non- resident of the Territory, or is about to remove therefrom, or where the action is for an injury to person or character, or for injuring or wrongfully taking, detaining, or converting prop- erty. 2. In an action for a fine or penalty, or on a promise to marry, or for money received, or property embezzled or fraudu- lently misapplied, or converted to his own use by a public offi- cer, or by an attorney, or by an officer or agent of a corporation in the course of his employment as such, or by any factor, agent, broker, or other person in a fiduciary capacity, or for any misconduct or neglect in office, or in a professional employ- ment. 3. In an action to recover the possession of pergonal prop erty unjustly detained, when the property, or any part thereof, has been concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff, with the intent that it should h. Chap. 7.1 WA8HINGTON. 259 not be so found or taken, or with the intent to deprive the plain- tiff of the benefit thereof, 4. When the defendant has been guilty of fraud in contract- ing the debt or incurring the obligation for which the action is brought, or in concealing or disposing of the property for the taking, detention, or conversion of which the action is brouglit. 5. When the defendant has removed or disposed of his prop- erty, or is about to do ho, with lutent to defraud his creditors. 6. When the action is to prevent threatened injury to, or de- struction of, property, and the danger is imminent that such property will be destroyed, or its value impaired, to the injury of plaintiflF. 7. On the final judgment or order of any Court in the Territory, when the defendant having no property subject to execution, or not sufficient to satisfy the judgment, has money which he ought to apply in payment upon such judgment, which he re- fuses to apply, with intent to defraud plaintiff; or when he refuHCS to comply with the legal order of the Court, with intent to defraud the plaintiff. The Court or judge making the order shall first be satisfied by affidavit of the party, his agent or attorney, and other proof in writing, that one or more of the above causes exist. Before the order of arrest issues, the plaintiff, or some one in his be- half, shall file a bond with the clerk in such amount as the Court or judge may have fixed in the order, with sureties to the satisfaction of the clerk, conditioned to pay to the defendant all damages he shall suffer and all expenses he shall incur by reason of such arrest and imprisonment, if the order be vacated, or if the plaintiff fail to recover in his action. The defendant may, on motion, apply to the Court to vacate the order of arrest on the ground of iasvifficiency of the proof, or he may show that the facts alleged ai*e untrue, or he may give bail. The grounds for issuing a warrant of arrest by a justice of the peace are the same as above. I ' 260 WASHINGTON. [Part {). CHAPTER VIII. JUDGMENTS AND JUDGMENT LIENS. In addition to judgments of non-suit and judgments upon the merits, either on trial by jury or by the Court, the plaintiff may have judgment by failure of the defendant to appear and answer, or upon the confession of judgment by defendant. A judg- ment in the District Court is a direct lien on the real estate of the defendant in the county where the judgment is rendered for twenty days after its rendition. The plaintiff, to continue the lien, must, at the expiration of said twenty days, file a transcript of the judgment in the office of the county auditor of any county where the real estate is situated, which lien shall continue for five years from the date of the judgment. To make a judgment in Justices' Courts a lien on real estate, the plaintiff must file a transcript of such judgment in the office of the clerk of the District Court, and file such transcript, certi- fied by the clerkj in the office of the county auditor of the county where the real estate is situated. CHAPTER IX. EXECUTIOI'3. EXEMPTIONS, SALES, TIONS. AND REDEMP- The plaintiff may have execution on a judgment at any time within five years after its rendition; if the period of five years shall have elapsed without an execution having been issued, none shall issue unless the creditor or his assignee shall file a motion with the clerk of the Court to issue an execution, verified in like manner as a complaint, and shall cause notice of such motion to be served on the judgment debtor in like manner and Chap. 9]. WASHINGTON. 261 -with like effect as a summons. The motion shall be tried as any other action. Upon hearing the motion, the Court may order that judgment be entered and docketed as other judgments. Executions require the sheriff to exhaust the personal property of the defendant, not exempt from execution, before levying on real estate. They can be issued to any sheriff in the Territory, when the defendant has property, by plaintiff, his agent or attorney, making an affidavit that the defendant has not sufficient property in the county where the execution is issued, to satisfy the judg- ment, but that he has property subject to execution in such other county. Execution may be stayed by defendant on giving a bond to the opposite party in double the amount of the judg- ment and costs, with surety to the satisfaction of the clerk, con- ditioned to pay said judgment, interest, costs, and increased costs, at the expiration of the ptriod of the stay, which is as follows : In the Supreme Court, on all sums under $500, thirty days ; on all sums over $500 and under $1500, sixty days ; on all «ums over $1500, ninety days. In the District Court, on all sums under $300, two months ; on all sums over $300 and under $1000, five months ; on all sums over $1000, six months. In -Justices' Courts, on any sum not exceeding twenty-five dollars, •one month ; more than twenty-five dollars, two months. Exemptions. All property, real and personal, belonging to a married woman at the time of her marriage, and all which she may subsequently Acquire in her own right, and all the pei'sonal earnings, and all the issues, rents, and profits of such real estate, shall not be liable to attachment or execution upon any liability or judgment against the husband, so long as she or any minor heir of her body shall be living. Every householder being the head of a family is entitled, as exempt from attachment and execution, to a homestead not exceeding in value the sum of one thousand dollars, while occupied as such by the owner thereof, or his or her family. The following property shall also be exempt from exc'jution : All wearing apparol, private libraries, family pictures, and keepsakes ; to each householder one bed and bedding, and on« additional bed and bedding for every two members of the 262 WASHINGTON. [Part 9. K'l' i family, and other household goods, utensils, any furniture not exceeding $150, coin, in value ; two cows and calves, five swiue, two stands of bees, twenty-five domestic fowls, and provisions and fuel for the comfortable maintenance of such householder and family for six months. To a farmer, one span of horses and harness, or two yoke of oxen, with yokes and chains, and one wagon; also farming utensils, actually used about the farm, not exceeding in value $200 in coin. To a mechanic, the tools of his trade, also material not exceeding in value $500 coin. To a physician, his library not exceeding in value $500 coin; also one horse and buggy, the instru- ments used in his practice, and medicines not exceeding in value $200 coin. To attorneys, clergymen, and other professional men, their libraries, not exceeding $500 coin value, and office furniture, fuel, and stationery, not exceeding $200 coin value. All firearms kept for the use of any person or family. To all persons, a canoe, skiff, or small boat, with its oars, sails and rigging, not exceeding $50 coin. To a person engaged in light- ering for his support, one or more lighters, barges, or scows, and a small boat with oars, sails and rigging, not exceeding in the aggregate $250 coin value. To a teamster or drayman, his team: the word team meaning a span of horses, harness, and one wagon or dray. To a person engaged in logging for the support of himself and family, three yoke of work cattle, with their yokes, and axes, chains, implements for the business and camp equipments, not exceeding $300 coin in value; a sufficient quantify of hay, grain or feed to keep the animals herein ex- empt for six months. No property shall be exempt from, an execution issued on a judgment for the price of any part of the price thereof. Sales. Personal property is sold by the sheriff upon ten days' notice of the time and place of such sale, posted in three public places of the county: real estate, by posting similar notices, par- ticularly describing the property, for four weeks in three public places of the county where the property is to be sold, and pub- lishing a copy thereof once a week, for the same period, in a newspaper of the county, if there be one, if not, then in a Chap. 9.] WASHINGTON. 263 . newspaper published nearest to the place of sale. All sales of property upon execution shall be by auction. Sales of personal property shall be in view of the property, and of real estate, at the Court-house door. Redemption. Sales of real estate are confirmed at the next term of the District Court, and the defendant, or his successor in interest, or any person having a lien thereon, may redeem such real estate within six months after confirmation, by paying the amount, with two per cent, interest per month. ' CHAPTER X. PROCEEDINGS SUPPLEMENTARY TO EXECUTION. The plaintiff in proceedings supplemtary to execution may, upon a proper showing to the Court or judge, have an order re- quiring defendant to aj)pear and answer as to any property which he may have subject to execution, and which ought to be applied on the judgment; or if it appears there is danger of the defendant absconding, the order may require his arrest, and upon being brought before the judge he may be ordered to enter into bond, with surety, that he will appear from time to time during such proceedings, and will not in the meantime dispose of any of his property subject to execution. Any person indebted to the defendant iu a sum exceeding fifty dollars, may be re- quired to appear and answer concerning the same. i 1 1 264 WASHINGTON. [Part 9. CHAPTER XL SECURITY FOR COSTS. tl; When the plaintiff resides out of the district or county, or is a foreign corporation, security for costs may be required by the defendant; when required, all proceedings in the action shall be stayed until a bond, executed by two or more persons, be filed with the clerk, conditioned that they will pay such costs and charges as may be awarded against plaintiff, not exceeding the sum of $200. CHAPTER XII. APPEALS AND WRITS OF ERROR. May be taken from the District Courts to the Supreme Court of the Territory within six months from the date of the order, judgment or decree appealed from, and not afterwards. Ta stay proceedings in the Court below, the appellant or plain- tiff in error must file a bond with sureties to the satisfaction of the clerk. Appeals from the Probate Court to the District Court must be taken within sixty days from the rendition of the decision or judgment, and from Justices of the Peace to the District Court, within twenty days from the date of the judg- ment. The party appealing shall execute and file with the justice a bond with one or more sureties in the sum of |100, to the effect that the appellant will pay all costs ; or if a stay of proceedings be claimed, a bond with two or more sureties in a sum equal to twice the amount of the judgment. Chap. 13.] WASHINGTON. 265 CHAPTER XIII. ESTATES OF DECEASED PERSONS. Claims against decedents' estates must be filod within one yoar from the publication of notice tocreditorH. The Court may , how- ever, in its discretion, order a shorter time in any particular case, but not less than six months frotu tho date of notice. To entitle a claim to be filed, it must be supported by the afii davit of the claim- ant that the amount is justly due, that no payments have been made thereon, and that there are no offsets to the same to the knowledge of the claimant. The oath may bo taken before any officer authorized to administer oaths, and in a neighboring State or Territory, the oath, if not adniinistereu by a commis- sioner for the Territory, must be i)roperly authentic ated, the certificate stating that such person is authorized to administer oaths, and that his signature is genuine, with the seal of u Court of record to such certificate. The claim being thus proved, must be presented to the administrator for his allowance; if he allow it, it is presented to the probate judge for his allowance, when, if allowed by him, the samo is filed. If either the admin- istrator or probate judge reject it, the party has three mouths within which to bring suit on it. Estates must be settled within one year, unless further time be granted by the Court. Husband or wife can only dispose of by will, their separate property. On the death of either, the whole of the community property, subject to the community debt, goes to the survivor. 2G6 WASHIMOTON. [Part 9. CHAPTET. XIV. HOMESTEADS. I i See Exemptions. A homestead may consist of a house and lot, or lots, in any city, or of a farm of any number of acres, so that their value does not exceed $1000. To entitle a peraon to a homestead, he or she shall cause the word " homestead" to be entered of record in the margin of his or her recorded title to the same, and the date of such entry. CHAPTER XV. DEPOSITIONS Of witnesses residing in the Territory may be taken, when the witness resides out of the sub-district, and more than twenty miles from the place of trial ; or when the witness is about to leave the district, and go more than twenty miles from the place of trial, and there is a probability that he will continue absent when the testimony is required ; or when he is sick, infirm, or aged, so as to make it probable he will not be able to attend the trial before any judge of the District Court, justice of the peace, clerk of the Supreme or District Courts, mayor of a city or notary public, upon serving on the adverse party, or his attorney, three days' notice of the time and place of examination, and one day (Sundays excepted), for every ten miles of the distanct^ of the place of examination from the residence of the person to whom notice is given. The deposition shall be written by the officer taking the same, or by the witness, or by some disinter- ested person in the presence and under the direction of such officer. When completed it shall be carefully read to or by the Chap. 16.] WASHINGTON. 987 witness, corrected if desired, subscribed by him, and certified by the officer substantially as follows : Territory of Washington, Cobisry OF 88. I, A B, Justice of the Peace, in and for said county, (or judge's clerk, etc., as the case may be), do hereby certify, that the above deposition wuh taken before me and reduced to writ- ing by myself (or witness, as the case may be), at in said county, on the day of 18 — at o'clock, in pursuance of notice hereto annexed ; that the above named witness before examination, was sworn (or affirmed), to testify the truth, tlie whole truth, and nothing but the truth, and that the said depo- sition was carefully read to, (or by) said witness, and then sub- scribed by him. A. B, Justice of the Peace. Dated at the day of 18 — . The deposition shall be enclosed in a sealed envelope by the officer taking the same, and directed to the clerk of the court, arbitrators, referee or justice of the i)eace before whom the action is pending, and either delivered to the clerk of the court or other person, or transmitted through the mails, or by some private opportunity. Depositions may be taken out of the Territory, by a judge, justice or chanc(?llor, or clerk of any court of record, a justice of the peace, notai'y public, mayor or chief magistrate of any city or town, or any person authorized In special commission from any court of the Territory ; any court of record or the judge thereof ie authorized to grant a connnission to take depo- sitions in or ont of the Territory ; prior to the taking of any deposition, unlefcs taken under a special commission, a written or printed noti'-e specifying the action or proceeding, the name of the court or tribunal in which it is to be used, and the time and place ®f taking the same shall be served on the adverse party, his agent, or attorney, of record or left at his usual place of abode; said notice shall be served so as to allow the adverse party sufficient time l)y the usual route of travel to attend, and one da} for prei^aration, exclusive of Sun- day and the day of service, and the examination may, if so stated I [ 208 WA8HINOTON. [Part J . in the notice, be adjourned from day to day. If the party, against whom the deposition is to be read, is absent from or a non-resident of the Territory, and has no agent or attorney of record therein, he may be notified of the taking the deposition by publication for three consecutive weeks in some newspaper, printed in the county where the action is ponding; and if none be print/Od there, in some newspaper printed in the Territory of general circulation in that county. The publication must con- tain all that is required in the written or printed notice. Tie deposition should be written and certified as above. CHArTER XVI. JUDICIAL RECORDS 01*' OTHER STATES, HOW PROVED. The records and proceedings of any Court of the United States, or any State or Territory, shall be admissible in evidence in all cases in Washington Territory, when authenticated by the attestation of the dork, prothomifcary, or other officer having charge of the records of such Court, with the seal of such Court annexed. CHAPTER XVII. ACKNOWLEDGMENTS. All deeds affecting the title to real estate, or of any interest therein, and ail contracts creating or evidencing any encum- brance on real estate, shall be by deed. All deeds must be ac- knowledged l)efore one of the following officers, if made in the Territory: a judge of the Supreme Court, a judge of the Probate Court, a justice of the peace, a county auditor, a clerk of the District or Supreme Court, or a notary public, dub' ;ualihed. -,!% Chap. 17. J WA8HINOTON. 2(;9 If made out of the TeiTitorj', but in the United States, they may be acknowledged before any person authorized to take ac- knowledgments of deeds l)y the lav/H of the State or Territory wherein the acknowledgment is taken, or before any commia- sioner appointed by the Gov rnor of WaHliington Territory for such purpoHe. UnlesH such tu.h aowU-dgment be taken before such commiHsioner or by the clerk of a ('ourt of record of said State or Teri'itory, or by a notary pul)li(; or oth^jr officer laving a seal of office, then Mvich deed hIuiU have attached thereto ut ♦Ttiti'-ati.'of the clerk of a Court jf record of the county or district within which the acknowledgment was taken, under the seal of his office, that the person whose name is subscribed to the cei-titicate of ac- knowledgment was, at the date thereof, sudi officer as he is therein represented to be; that lie is autliorized by law to take acknowlodgments of deeds; and that he believes tlie signature of the person subscribeil thereto to be genuine. If made in a foreign countiy, out of the United States, they shall b« acknow- ledged or proved by two witnesses beiore any minister plenipo- tentiary, c/iarcfe (V affaires , consul, " general consul," vice-(!on- sul, or couuuercial agent appointed by tlie government y the erroneous judgment or order. The District Courts have jurisdiction as follows : Original jurisdiction in all civil cases where the amount exceeds one hundred dollars, exclusive of interest, and in cases involving the title or possession of real property. Appellate jurisdiction in Justice Court actions, and ordei-s of judgments of the Probate Courts in certain cases. The Probate Courts have jurisdiction of estates of deceased persons. Justices' Courts have jurisdiction as follows. 1. Of an action arising on contract for the recovery of nioney only, if the sum claimed does not exceed three hundred dollars. 2. Of an action for damages for injury to tho person, or for taking or detaining personal property, or for injuring real or per- sonal property, if the damages claimed do not exceed three hun- dred dollars. 3. Of un action upon a bond conditioned for tho payment of money not exceeding three hundred dollars, though the jjenalty exceed that sum, the judgment to bo given for tho sum actually due ; when the payments aro to be made by installments, an action may be brought for each installment as it becomes due. 4. Of an action for the foreclosure of any moi*tgage, or tho enforcement of any lien on personal property, where the debt secured does not exceed three hundred dollars. 5. Of an action to recover pergonal projjerty, when the value of sucl. personal property does not exceed three hundred dollars. Their jurisdiction does not extend to civil actions in which the title to real property is brought in question. Nor to an action or proceeding against ships, vessels or boats, or against the owners or matters thereof, when the suit or proceeding is for the recovery of wages for a voyage performed in whole or in part without the waters of this Territory. Chap. 2.1 ARIZONA. 270 CHAPTER II. TERMS OF. COURTS— WHEN AND W HERE HELD. The Supreme Court is held at the seat of governmen*, (now Prt'Hcott,) commencing on the tirst Monday in January of each year. The District Courts in the several counties ore held as follows : 1. County of Pinm, on the second Monday in Februai"y, and the second Monday in October. 2. County of Yuma, on the second Monday in March, and the first Monday in November. 8. County of Yavapai, first Monday in June, and first Mon- day in November. 4. County of Maricopa, on the first Monday in April, and second Monday in October. 5. County of Mohave, on the tirst Monday in May, and first Monday in October. G. County of Pinal, on the second Monday in March, and the second Mondav in November. District Court is held at the county seat of each county. Probate Court is held at the county seat of each county, on the first Monday of January, April, July and October, in each y«ar, and the judge may hold such adjourned or special terms as he thinks proper. Justices' Courts are always open for the transaction of business. IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I 125 I 2.8 us 1^ 2.5 2.2 2.0 i.8 U 11.6 V ^ ;\ \ iv i^>;^^^ V ^ 23 WEST MAIN STREi? WEBSTER, N.Y. 14580 (716) 872-4503 V % ^ 280 ABIZONA. [Part 10. CHAPTER III. COMMENCEMENT OF SUITS. Civil actions are commeuced by filing a complaint with the Court or justice. The defendant is required to answer the complaint in District Court actions as follows : 1. If the defendant is served within the county in which the action is brought — twenty days. 2. If the defendant is served out of the county, but in the district in which the action is brought — thirty days. 3. In all other cases — forty days. Where p'*r8onal service cannot be had, by reason of the defend- ant being out of the Territory, or where he conceals himself to avoid service of process, service is made by publication, upon an order made by the judge or justice of the peace. In District Court actions the order shall direct the publica- tion to be made in some newspaper to be desigrated as most likely to give notice to the defendant; the last of such inser- tions to be sixty days from the first; the order prescribes the time for publication. In Justice Court actions the publication shall be once a week fctr at least four weeks, and the justice shall issue a new sum^nons returnable in not less than sixty, nor more than seventy days from its date. In Justice Court actions the time mentioned in the summons for the appearance of the defendant and the time of service shall be as follows : 1. When tha summons is accompanied by an order to arrest the defendant, it shall be returnable immediately. 2. When the defendant is not a resident of the county, it shall be returnable not more than two days from its date, and shall be served at least one day before the time for appearance. 3. In all other cases it shall be returnable in not less than six nor more than ten days from its date, and shall be served at least four days before the time for appearance. Ohap. 4.] ABIZONA. 281 CHAPTER IV. PLACE OF TRIAL OF CIVIL ACTIONS. Actions for the following causes shall be tried in the county in which the subject of the action, or some part thereof, is sit- uated : i. For the recovery of real property, or of an estate or in- terest therein, or for the determination in any form of such right or interest, and for injuries to real property. 2. For the partition of real property. 3. For the foreclosure of a mortgage of real property. Actions, for the following causes shall be tried in the county where the cause, or some part thereof, arose: 1. For the recovery of a penalty or forfeiture imposed by statute. 2. Against a public oflScer. In other cases the action shall be tried in the county in which the parties, or some of them, reside, at the commencement of the action, or the defendant may be found; or if none of the parties reside in the Territory, the same may be tried in any county which the plaintiff may designate in his complaint. The Court may, on motion, change the place of trial. 1. When the county designated in the complaint is not the proper county. 2. When there is reason to believe that an impartial trial can- not be had therein. 3. When the convenience of witnesses and the ends of justice would be promoted by the change. 4. When from any case the judge is disqualified from acting in the action. No person shall be held to answer to any summons issued against him from a Justice's Court in a civil action, in any precinct other than the one in which he or the plaintiff shall reside, except in the cases following: 1. When there shull be no Justice's Court for the precinct or i 282 ABIZONA. [Part 10. village in which the defendant or plaintiff may reside, or no jus- tice competent to act in the case. 2. When two or more persons shall be jointly or jointly and severally bound in any debt or contract, or otherwise jointly lia- ble in the same action, and reside in different precincts of the same county, or in different counties, the plaintiff may prosecute his action in a Justice's Court of the precinct or county in which any of the debtors or other persons liable may reside. 3. In case of injury to the person, or to real and personal property, the plaintiff may prosecute his action in the precinct where the injury was committed, or where the defendant may be found. 4. "Where personal property, unjustly taken or detained, is claimed, or damages therefor are claimed, the plaintiff may bring his action in any precinct or county in which the property may be found, or in which the property was taken. 5. When the defendant is a non-resident of the county, he may be sued in any precinct, village or city wherein he may be found. 6. When a person has contracted to perform any obligation at a particular place, and resides in another, he may be sued in the precinct in which such obligation is to be performed or in which he resides. 7. When the foreclosure of a mortgage, or the enforcement of a lien upon personal property, is sought by the action, the plaintiff may sue in the precinct, village or city where the prop- erty is situated. CHAPTER V. LIMITATION OF ACTIONS. The periods prescribed for the commencement of actions are as follows ; Within five years — An action for the recovery of real property Chap. 5.] ARIZONA. 288 or the possession thereof ; an action upon a judgment or decree of any Court of the United States, or of any State or Territory within the United States. Within four years — An a'^Hon upon any contract, obligation, or liability founded upon an instrument of writing. Within three years — An action for trespass upon real property ; an action for taking, detaining or injuring any goods or chattels ; including actions for the specific recovery of personal property ; an action for relief on the ground of fraud, the cause of action in such case not to be deemed to have accrued until the dis- covery by the aggrieved party of the facts constituting the fraud. Within two years — An action upon a contract, obligation or liability, not founded upon an instrument of writing; also, an action against a sheriff, coroner, or constable, upon the liability incurred by the doing of an act in his official capacity, and in virtue of his office, or by the omission of an official duty, in- cluding the non-payment of money collected upon an execution. An action on an open account, for goods, wares and merchan- dise sold and delivered; an action for any article charged in a store account. Within one year — An action for libel, slander, assault, bat- tery, or false imprisonment; an action against a sheriff or other officer for the escape of a prisoner arrested on civil process. The statute begins to run from the time the cause of action accrued. Part payment does not prevent the statute running; but in an action brought to recover a balance due upon a mutual open account, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side. • An action upon a contract, obligation or liability for the pay- ment of money, founded upon an instrument of writing, exe- cuted out of this Territory', can only be commenced as follows: First. Within one year, when more than two and less than five years have elapsed since the cauae of action accrued. Second. Within six months, when more than five years have elapsed since the cause of action accrued. IP ^ 284 ARIZONA. [Part 10. When the cause of action has arisen in another State, Ter- ritory, or foreign country, and is there outlawed, no action will lie in this Territory. If when the cause of action accrues against a person, he is out of the Territory, the action may be commenced within the term herein limited, after his return to the Territory; and if after the cause of action accrues he departs from the Territory, the time of his absence shall not be part of the time limited for the commencement of the action. CHAPTER VI. ATTACHMENTS. The plaintiff at the time of issuing his summons, or any time afterward, may have the property of the defendant attached as security for the satisfaction of any judgment that may be recov- ered, unless the defendant give security to pay such judgment as hereinafter provided in the following cases : 1. In an action upon a contract, express or implied, for the di- rect payment of money, which contract was made, or is payable in this Territory, and is not secured by a mortgage, lien or pledge, upon real or personal property, or if so secured, that such security has been rendered nugatory by the act of the de- fendant. 2. In an action upon a contract, express or implied, for the direct payment of money, against a defendant not residing in this Territory. The clerk of the Court shall issue the writ of attachment upon receiving an affidavit by, or on behalf of the plaintiff, which shall be filed, showing: 1. That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness, over and above all legal set- offs or counter-claims) upon a contract, express or implied, for the direct payment of money, and that such contract was made, or is payable in this Territory, and that the payment of the same Chap. 6. J ABIZONA. 285 lias not been secured by any mortgage, lien or pledge upon real or personal property; or 2. That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness, as near as may be, over and above all legal set-offs or counter-claims), and that the defendant is a non-resident of this Territory; and 3. That the sum for which the attachment is asked is a bona fide existing debt due, and owing from the defendant to the plaintiff, and that the attachment is not sought, and the action is not prostcuted to hinder, delay or defraud any creditor or creditors of the defendant. A written undertaking is required on behalf of the plaintiff, in a sum not less than double the amount claimed, with suffi- cient sureties, to the effect that if the defendant recover judg- ment the plaintiff will pay all costs awarded the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the amount specified in the undertaking. CHAPTER VII. ARREST IN CIVIL ACTIONS. The defendant may be arrested in the following cases : 1. In an action for the recovery of money or damages, in a cause of action arising upon contract, express or implied, when the defendant is about to depart from the Territory with intent to defraud his creditors ; or when the action is for willful injury to person, to 'jharacter, or tu property known to belong to an- other. 2. In an action for a fine or penalty, or for money or property embezzled, or fraudulently misapplied, or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capac- I 286 ABIZONA. [Part 10. ity, or for misconduct or neglect in oflSce, or in a professional employment, or for a willful violation of duty, 3. In an action to recover the possession of personal property unjustly detained, when the property, or any part thereof, has been concealed, removed, or disposed of, so that it cannot be found or taken by the officer. 4. When the defendant has been guilty of a fraud in con- tracting the debt or incurring the obligation for which the ac- tion is brought, or in concealing or disposing of the property, for the taking, detention, or conversion of which the action is brought. 5. When the defendant has removed or disposed of his prop- erty, or is about to do so, with intent to defraud his creditors. An affidavit is required on behalf of the plaintiff, setting forth the grounds of arrest, and also an undertaking with suffi- cient sureties, in an amount of at least five hundred dollars. CHAPTER VIII. JUDGMENTS AND JUDGMENT LIENS. A judgment is the final determination of the rights of the parties in an action or proceeding. Immediately upon the docketing of a judgment it becomes a lien upon all the real estate of the judgment debtor not exempt from execution in the county, owned by him at the time, or which he may afterwards acquire, until the lien expires. The lien continues two years. A transcripf, of the original docket, certi- fied by the clerk, may be filed with the recorder of any other county, and thereby constitute a lien upon the lands of the judgment debtor in such county. . Chap. 9.1 ARIZONA. 287 CHAPTER IX. EXECUTIONS, EXEMPTIONS, SALE AND REDEMPTION. Executton may be issued at any time within five years after the entry of judgment. Until a levy is made, property is not affected by execution. The following property is exempt from execution : 1. The homestead, consisting of a quantity of land, together with the dwelling house thereon and its appurtenances, and the water rights and privileges pertaining thereto, sufficient to irri- gate the land, not exceeding in value the sum of five thousand dollars, allowe : to the head of a family. The homestead may be set apart after execution levied. 2. All spinning-wheels, weaving-looms with the apparatus, and stoves put up and kept for use in any dwelling-house. 3. A seat, pew, or slip occupied by such person or family in any house or place of public worship. 4. All cemeteries, tombs, and rights of burial, while in use as repositories of the dead. 5. All arms and accoutrements kept for use ; all wearing apparel of every person or family. 6. The library and school books of every individual and family, not exceeding one hundred and fifty dollars, and all family pictures. 7. To each householder ten goats or sheep, with their fleeces, and the yarn or cloth manufactured from the same ; two cows, five swine, and provisions and fuel f«r the comfortable subsistence of such household and family for six months. 8. To each householder, all household goods, furniture and utensils, not exceeding in value six hundred dollars. 9. The tools, implements, materials, stock, apparatus, team, vehicle, horses, harness, or other things to enable any person to cany on the profession, trade, occupation or business in which he is wholly or principally engaged, not exceeding in value six hundred dollars. 288 ARIZONA. [Part 10. 10. One sewing machine and one musical instrument. 11. A sufficient quantity of hay, grain, feed, and roots for properly keeping the above named animals for three months. An execution may be made returnable in not less than ten nor more than sixty days after its receipt by the sheriff. Notice of sale must be given as follows: 1. In case of perishable property, a reasonable time. 2. In case of personal property, not less than five nor more than ten days. 3. In case of real property, twenty days. Upon the sale of real property, when the estate is less than a freehold of two years unexpired term, the sale shall be absolute. In all other cases, the real property is subject to redemption within six months after the sale, upon paying to the purchaser the amount of the purchase, with eighteen per cent, in addition^ and all taxes or assessments paid by the purchaser. CHAPTER X. PROCEEDINGS SUPPLEMENTARY TO EXECUTION. "When an execution is returned unsatisfied in whole or in part,, the judgment creditor, at any time after such return is made, is entitled to an order from the judge of the Court, requiring such judgment debtor to appear and answer concerning his property before such judge or a referee appointed. I« Chap. 11.1 AfilZONA. 289 CHAPTER XL ESTATES OF DECEASED PERSONS. Immediately after the appointment of the executor or admin- istrator, he shall give notice thrcigh a newspaper published in the county, if ther« be one, and if not, then in such newspaper designated by the Court, requiring all persons having claims against the deceased to present them, with the necessary vouch- ers, within ten months after publication of the notice. If a claim be not presented within the ten months, it shall be forever barred ; however, if it be not then due or is contingent, it may be presented within ten months after it shall become due or absolute ; and when it shall be made to appear by the affidavit of the claimant, to the satisfaction of the executor or adminis- trator, and the probate judge, that the claimant had no notice by reason of being out of the Territory, it may be presented at any time before a decree of distribution is entered. Every claim presented to the executor or administrator shall be supported by the affidavit of the claimant, that the amount is justly due, that no payments have been made thereon, and that there are no offsets to the same to the knowledge of the claimant or other affiant ; provided, that when the affidavit is made by any other person thao the claimant, he shall set forth in the affidavit the reason it is not made by the claimant. The affidavit may be sworn to before any officer authorized to take oaths. When a claim is presented and allowed by the executor or ad- ministrator, it shall then be presented to the probate judge for his approval, and within thirty days thereafter filed with the Probate Court. If a claim be founded upon a bond, note, or other instrument, the original instrument shall be presented. If the claim be se- cured by a mortgage or other lien, such mortgage or other evi- dence of liens shall be attached to the claim, and filed therewith, unless the same be recorded in the office of the recorder of the 290 ARIZONA. [Part 10. county in which the land lies, in which case it shall be sufficient to describe the mortgage or lien, and refer to the date, volume and page of its record. In all cases the claimant may withdraw his claim from file on leaving a certified copy, with a receipt en- dorsed thereon by himself or agent. After a claim is rejected, suit must be brought thereon within three months or it is forever barred; if it be not then due, suit must be brought within three months from the time it falls due. An outlawed claim must not be allowed. When a judgment has been rendered against the testator or intestate in his life-time, no execu{>ion shall issue thereon after his death; but a certified copy oi such judgment shall be pre- sented to the executor or administrator, and be allowed, and filed and rejected, as any other claim, but need not be supported by the affidavit of the claimant; and if justly due and unsatis- fied, shall be paid in due course of administration; provided, however, that if the execution shall have been actually levied upon any property of the deceased, the same may be sold for the satisfaction thoreof, and the officer making the sale shall accovnt to the executor or administrator for any surplus in his hands. The executor or administrator may, however, require the affida- vit of the claimant, or other satisfactory proof, that the judg- ment, or any portion thereof, is justly due and unsatisfied. CHAPTER XII. AFFIDAVITS AND DEPOSITIONS. An affidavit takes in another State or Territory, to be used in this Territory, shall be taken before a commissioner appointed by the Governor of this Territory to take affidavits and deposi- tions in such State or Territory, or before any judge, or notar;' public, or clerk of a Court having a seal ; when taken before a judge the genuineness of the judge's signature, the existence of the Court, and the fact that such judge is a member thereof, Ohap. 12.] \RIZONA. 291 shall be certified by the clerk of the Court under the seal thereof. The deposition of a witness out of the Territory may be taken in an action at any time after the service of the summons or the appearance of the defendant. It shall be taken under a com- mission issued from the Court under the seal of smch Court. It shall be issued to a person agreed upon by the parties, or if they do not agree, to any judge or justict / the peace selected by the officer granting the commission, Ox ,o a commissioner appointed by the Governor of this TerritOi.'y to take affidavits and depositions. The deposition mup' oe retarneJ in a sealed envel'^pe, directed to the clerk or other person designated or • agioud upon, by mail or other usual chanv.el of conveyance. CHAPTER XIII. ACKNOWLEDGMENTS, The proof or acknowledgment of every conveyance affecting any real estate shall be taken by some one of the following officers : 1. If acknowledged or proved within this Territory, by some judge or clerk of a Court having a seal, or some notary public, or justice of the peace of the proper county. 2. If acknowledged or proved without this Territory, and within the United States, by some judge or clerk of any Court of the United States, or of any State or Territory having a seal, or by any commissioner appointed by the Governor of this Ter- ritory for that purpose. 3. If acknowledged or proved withoiit the United States, by some judge or clerk of any Court of any State, Kingdom, or Empire having a seal, or by any notarj' public therein, or by any minister, commissioner, or consul of the United States appointed to reride therein. Every officer who shall take the proof or acknowledgment of any conveyance affecting any real estate, shall grant a certificate 292 ARIZONA. [Part 10. thereof, and cause such certificate to be indorsed or annexed to such conveyance. Such certificate shall be: 1. When granted by any judge or clerk — under the hand of such clerk or judge. 2. When granted by an officer who has a seal of office — under the hand and official seal of such officer. The certificate of such acknowledgment shall state the fact of acknowledgment, and that the person making the same was per- sonally known to the officer granting the certificate to be the person whose nafae is subscribed to the conveyance as a party thereto, or was proved to be such by the oath or affirmation of a credible witness, whose name shall be inserted in the certificate. ' A married woman may convey her real estate, her husband joining in the conveyance. No acknowledgment to ba made by a married woman unless she be personally known to the officer taking the same to be the person whose name is subscribed to such conveyance as a party thereto, or shall be proved to be such by a credible witness; nor unless such married woman shall be made acquainted with the contents of such conveyance, and shall acknowledge on an examination, apart from and without the hearing of her husband, that she executed the same freely and voluntarily, wijbliout fear or compulsion, or undue influence of her husband, and that she does not wish to retract the execu- tion of the sam«. CHAPTER XIV. MARRIED WOMEN. All property, both real and personal, of the wife, owned by her before marriage, and that acquired afterwards by gift, be- quest, devise, or descent, shall be her separate property, and is not subject to the debts of her husband. All property acquired after marriage, by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property. Chap. 14.] ARIZONA. 293 The separate property of the husband is not liable for the debts of the wife contracted before marriage, but the separate property of the wife shall be and continue liable for all such debts. CHAPTER. XV. CHATTEL MORTGAGES Chattel mortgages Liay be made on the following property, viz: Upholsteiy and furniture used in hotels and public boarding- houses, when mortgaged to secure the purchase money of the identical articles mortgaged, and not otherwise ; saw mill, grist mill, and steamboat machinery; tools and machinery used by machinists, foundry men, and other mechanics; steam boilers, steam engines, locomotives, engines, and the rol- ling stock of railroads ; printing presses and other print- ing material ; instruments and chests of a surgeon, physi- cian or dentist ; libraries of all persons ; machinery and apparatus for mining purposes; growing crops grain in store or field ; teams and implements pertaining to farming; stock of all kinds on farm. No chattel mortgage made shall have any legal force or effect, (except between the parties thereto) unless the residence of the mortagor and mortagee, their profession, trade, or occupation, the sum to be secured, the rate of interest to be paid, when and where p^iyable, shall be set out in the mortgage ; and the mort- gagor and mortgagee shall make affidavit that the mortgage is bona fide, and without any design to defr "d or delay creditors, which affidavit shall be attached to such mortgage. Mortgage not valid as to third parties, unless duly recorded, or ui^less the mortgagee receives and retains the actual posses- sion of the property. 294 ABIZOKA. [Part 10. CHAPTER XVI. INTEREST. When there is no express agreement fixing a different rate of nterest, interest sha^^ be allowed at the rate of ten per cent, per annum, on all moneys after they become due on any bond, bill, promissory note, or other instrument of writing, or any judgment recovered before any Court in this Territory for money lent, for money due on the settlement of accounts from the day on which the balance is ascertained, and for money received for the use of another. Parties may agree, in writing, for the payment of any rate of interest whatever on money due or to become due on any con- tract ; any judgment rendered on such contract shall conform thereto, and shall bear the interest agreed upon by the parties, and which shall be specified in the judgment. Parties may agree, in writing, to compound interest. CHAPTER XVn. BILLS OP EXCHANGE. Three days' grace allowed on notes and bills, except sight drafts. The rate of damages to be allowed and paid upon the usual protest for the non-payment of bills of exchange, drawn or negotiated within this Territory, shall be as follows: 1. If such bill shall have been drawn upon any person or persons in any of the United States or Territories east of the Rocky Mountains, fifteen dollars upon the hundred ujjon the principal sum specified in such bill. 2. If such bill shall have been drawn on any person or per- ■■■iillliaiilHiiiiiH Chap. 17.] ARIZONA. 295 sons in any port or place in Europe or any foreign country, twenty dollars upon the hundred upon the principal sum speci- fied in such bill. Such damages shall be in lieu of interest, charges of protest, and all other charges incurred previous to and at the time of giving notice of non-payment; but the holder of such bill shall be entitled to demand and recover lawful interest upon the aggregate amount of the principal sum specified in such bill and of the damages thereon, from the time notice of protest for non- payment shall have been given, and payment of such principal sum shall have been demanded. All notes in writing made and signed by any person whereby he shall promise to pay to any other person, or to his own order, or to the ordej of any other person, or unto the bearer any sum of money therein expressed, shall be due and payable as therein expressed, and shall have the same effect and be negotiable in like manner as inland bills of exchange, according to the cus- toms of merchants. No person in this Territory shall be charged as an acceptor on a bill of exchange unless his acceptance shall be in writing signed by himself or his lawful agent. Every holder of a bill presenting the same for acceptance may requiie that the acceptance be written on the bill; a refusal to comply with such request shall be deemed a refusal to ac- cept, and the bill may be protested for non-acceptance. CHAPTER XVIII. INSOLVENCY. There is no insolvency law in this Territory. PART XI. UTAH TERRITORY, PREPARED EXPRESSLY FOR THIS WORK BY LEWIS BURNES, SALT LAKE CITY. CHAPTER I. THE COUETS AND THEIR JURISDICTION. Tlie Supreme Court of the Territory has general appellate jurisdiction only. There are three United States District Courts in the Territory, with unlimited jurisdiction in all chancery and law actions. The Probate Courts, One in each county : Their jurisdiction is limited to strictly probate business, except that they may try divorce cases where both parties agree upon that forum ; removable, however, at the pleasure of either party, to the District Court. The judges have the right to enter town sites, and preside over the board of selectmen ; in other words, the County Court. 298 UTAH. [Part 11. Justices' Courts Have jurisdiction in all actions where the amount involved is less than three hundred dollars, except in cases involving titles to real estate. CHAPTER II. THE TERMS OF COURTS AND PLACES OF HOLDING SAME. The Supreme Court sits the first Monday of January, and the second Monday of June, of each year, at Salt Lake City. The District Courts sit as follows : 1st District, comprising the counties of Millard, Sevier, San Pete, Juab, Utah and Wasatch, is held at Prove City, Utah County, on third Mondays in September, November, February and May. Second District, comprising the counties of Kane, Washing- ton, Piute, Iron and Beaver, is held at Beaver City, Beaver Co.^ on first Mondays in March, May, September and December. Third District, comprising the counties of Salt Lake, Tooele, Summit, Davis, Morgan, Weber, Box Elder, Cache and Rich- land, is held in the city and county of Salt Lake, on the second Monday in April, fourth Thursday in September, second Mon- day in November, and first Monday in February. The Probate Courts and Justices' Courts are always open for the transaction of business ; the former at their respective county court houses, and the latter in their respective precincts. Chap. 3.] UTAH. 299 CHAPTER III. COMMENCEMENTS OF SUITS AND TIME ALLOWED DEFENDANTS TO PLEAD. Suits may be commenced at any time. Ten days after service are allowed the defendants to plead, answer, demur, or file motions in cases in the District Courts and Supreme Court. In Justices' Courts, defendants may be required to answer within two days after service, and not longer than ten days after service. CHAPTER IV. LIMITATIONS OF ACTIONS. Actions for the recovery of real estate can only be brought within seven years after the plaintiffs having been lawfully seized and possessed of the premises by himself, grantor, ances- tor, or predecessor. Actions for the recovery of money on notes or written obli- gations must be brought within four years after the cause of ac- tion accrued ; on accounts within two years ; and on a judgment of a Court of record, five years. 30Q -> UTAH. [Part 11. CHAPTER V. ATTACHMENTS Can only issue upon the filing of an affidavit on behalf of the plaintiff, showing the existence of a debt upon contract, sj . '- fying the nature and amount thereof, as near as may be, ^r and above all legal set-offs or counter-claims ; that the same has not been secured by any mortgage, lien, or pledge upon real or personal estate within the Territory, or if so secured, that such security has been rendered nugatory by the act of the defend- ant; that the defendant is not residing in this Territory, or that the defendant has departed the Territory or county where the action is brought, or that the defendant stands in defiance of an officer, or conceals himself so that process cannot be served upon him, or that he is disposing of his property with the intent to defraud his creditors; that the debt is an actual bona fide ex- isting demand due and owing from the defendant to the plain- tiff, and that the action is not sought or prosecuted to hinder, d«lay, or defraud any creditor of the defendant. There must also be executed and filed an undertaking, with two sufficient securities, in a sum not less than $200, nor exceed- ing the amount claimed by the plaintiff, conditioned, that if the defendant recover judgment in the action, the plaintiff will pay all costs that may be awarded to the defendant, not exceeding ihfi amount specified in the undertaking. CHAPTER VI. AEEESTS IN CIVIL ACTIONS Are issued upon filing an undertaking and affidavit, the same in effect as those required in attachment cases, except that in addi- ■■j^iil . Chap. 6.1 UTAH. 301 tion to the liability of sureties in attachment cases for costs, in cases of arrest they are liable for any damage which the defend- ant may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, and the undertaking must be in a sum not less than $500. In either case, the sureties must an- nex an affidavit to the undertaking; that he is a resident and householder, or freeholder within the Territory, and worth double the sum specified in the undertaking, over and above all his debts and liabilities, exclusive of property exempt from execution. The affidavit in cases of arrest differs from attachment affida- vits only in this, that the arrest may be made in any action for a fine, or for money or property embezzled, or fraudulently mis- applied, or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, or broker, agent or clerk, in the course of his employment, or by any person in a fiduciary capacity for misconduct or neglect in office, or in a professional employment, or for a willful violation of duty or 4n an action to recover the possession of personal property, unjustly detained; when the property, or any part thereof, has been con- cealed, removed or disposed of, so that it cannot be found or taken by the Territorial marshal, his deputy, or the sheriff or his deputy; or where the defendant has been guilty of fraud in contracting the debt or incurring the obligation for which the action is brought, or is concealing or disposing of the property for the taking, detention or conversion of which the action is brought ; or when the defendant has removed or disposed of bis property or is about to do so, with the intent to defraud his creditors. CHAPTER VII. JUDGMENTS AND JUDGMENT LIENS. A judgment is collectable by execution, and is a lien upon the real estate of the defendant within the county where it is 809 m'AH. [Part 11. rendered, from its rendition ; executions may be issued to other counties, but the judgment constitutes a lien there, only from the time of filing a transcript of the judgment for record in the office of the county recorder of the county to which it is sent. CHAPTER VIII. EXECUTIONS, EXEMPTIONS, SALES, AND REDEMP- TION. Property, real or personal, maybe sold on twenty days' notice, under execution, but the execution may issue returnable in not less than ten days nor more than ninety days, and the execution may require the officer to satisfy the judgment in the particular kind of money ordered in the judgment. The following property is exempt from execution : 1. Chairs, tables, desks and books, to the value of one hun- dred dollars belonging to the judgment debtor. 2. Necessary household, table and kitchen furniture belonging to the judgment debtor, including stoves, not to exceed one stove for every five persons of the family. Stovepipe and stove furniture, wearing apparel, one bedstead, one bed, and the necessary bedding for every two persons in the family, and pro- visions and fuel for the family sufficient for sixty days. 3. The farming utensils or implements of husbandry of the judgment debtor. Also, two oxen or two horses, or two mules and their harness ; one cow and calf for every five persons in the family ; one cart or wagon, and food for such oxen, horses, cows, or mules, for sixty days ; also all seed grain, or vegetables, actually provided, reserved, or on hand, for the purpose of planting or sowing at any time within the ensuing six months, not exceeding in value one hundred dollars. 4. The tools, tool chest, and implements of a mechanic or artisan, necessary to carry on his trade. The instruments and Chap. 8. J UTAH. 303 chests of a surgeon, physician, surveyor or dentist, necessary to the exercise of their professions, with their scientific and profes- sional libraries, and the law library of an attorney or counsellor, and the libraries of ministers of the gospel. 5. The tent or cabin of a miner, including a table, camp stools, a bed and bedding, and necessary tools used in mining, not exceed- ing the value of four hundred dollars, with provisions necessary to his support for thirty days. 6. Two oxen or two horses or two mules, and their harness, and one cart and wagon, by the use of which a cartman, team- ster or other laborer habitually earns his living, and food for such oxen, horses, or mules for sixty days; and a horse, har- ness, and vehicle used by a physician, surgeon, or minister of the gospel, in making his professional visits. 7. One sewing machine not to exceed in value $100.00, in actual use by the debtor or his family. If the debtor be head of a family, then there shall be a further exemption of five head of sheep and the wool therefrom for every person in his family, two hogs and three pigs under three months old, and the neces- sary food for all such animals for sixty days. All flax raised by the debtor and the manufactures therefrom, and a - jloth manu- factured in the family of the debtor for their own use; all spin- ning wheels and looms and other instruments of domestic labor kept for family use. The earnings of such debtor for his per- sonal service, or those of his family, at aay time within sixty days next preceding the levy. 8. All fire engines, hooks and ladders, with the carts, trucks, and carriages, hose, buckets, implements and apparatus. All furniture and uniforms of any fire company or department now existing, or which may be under the laws of this Territory here- after organized. 9. All arms, ammunitions, uniforms, and accoutrements, re- quired by law to be kept by a person. 10. All court houses, jails, public offices and buildings, school houses, and houses of public worship, lots, grounds and per- sonal property appertaining thereto. The fixtures, furniture, books, papers, and appurtenances belonging and appertaining to the court-house, jail, and public offices belonging to any 304 UTAH. [Part 11. county, or for the use of schools or houses of public vrorahip ; and all cemeteries, public squares, parks and places, town halls, markets for the use of fire departments and military organiza- tions, and the lots and grounds thereto belonging, or held by any town or incorporated city, or dedicated to such town or city to health, ornament, or public use, to the use of any fire or military company now existing or hereafter organized. 11. For homestead exemption, see " Homestead." Redemption Of real property may be made by the defendant, or any creditor subsequent to plaintiffs lien, any time within six months from the day of sale. CHAPTER IX. PROCEEDINGS IN AID OF EXECUTIONS. On the return by a sheriff or marshal of an execution " un- satisfied," the judgment creditor upon affidavit or otherwise showing to the satisfaction of the Court, or of the judge thereof, that the judgment debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment, may apply, and the Court or judge may, by an order, require the judgment debtor to appear at a specified time and place before such judge, or a referee appointed by him, to answer under oath concerning the same; and such proceedings may thereupon be had for the application of the property of the judgment debtor towards the satisfaction of the judgment, as are provided upon the return of an execution; that is, to require the appearance of witnesses, and hear the same, and make orders in relation thereto. And on proof by affidavit, or otherwise, that any person or corpora- tion has property of such judgment debtor, or is indebted to him in an amount exceeding $50, the judge may by order require such person, or corporation, or any officer or member thereof, ta Chap. 9]. UTAH. 305 appear at a specified time and place before hiiu, or a referee ap- pointed by him, and answer concerning the same. The judge or referee may order any property of the judgment debtor not exempt from execution in the hands of such debtor, or any other person, or due to the judgment debtor, to be apphed towards the satisfaction of the judgment. If it appear that a person or corporation, alleged to have property of the judgment debtor or indebted to him, claims an interest in the property adverse to him, or denies the debt, the Court or judge may authorize, by an order mad'j to that effect, the judgment creditor to institute an action against such parson or corporation for the recovery of such interest or debt ; and the Court or judge may, by order, forbid a transfer or other disposi- tion of such interest or debt, until an action can be commenced a d prosecuted to judgment. Such order may be modified or vacated by the judge granting the same, or the Court in which the action is brought, at any time, on such terms as may be just. CHAPTER X. SECURITY FOR COSTS. It is made the duty of the clerk of the District Court, in all civil actions, to require the party commencing the suit to pay in advance or secure by bond with security the payment of the probable amount of the costs of the action, provided that the said costs shall at the conclusion of the trial be paid by the party against whom said costs are adjudged by the Court. 306 UTAH. [Part 11. CHAPTER XL APPEALS From Justices' Courts to the proper District Court may be taken any time within thirty days after rendition of judgment, except where the judgment is for an amount less than $20, by filing a notice of such appeal, and serving a copy on the oppo- site party; and by filing with the justice, within five days after filing the notice of appeal, an undertaking with two good sure- ties, who shall justify under oath. Appeals from the District Court May be taken to the Supreme Court from any final judgment or order in a civil action, except when expressly made final by the act, any time within one year after the rendition of judgment. From any order granting or refusing a new trial, or from an order granting or dissolving an injunction, or from an order re- fusing to grant or dissolve an injunction, and from any special order made after the final judgment, within sixty days after the order is made and entered upon the minutes of the Court; or from any interlocutory judgment or order in cases of partition, sale or division, to be taken within sixty days after the rendition of the same. The appeal is taken by filing with the clerk of the Court with whom the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a copy of the notice on the adverse party or his at- torney. To render the appeal effectual for any purpose, in any case, a written undertaking shall be executed on the part of the appellant, by at least two sureties, to the effect that the appel-^ lant will pay all damages and costs which may be awarded against him on the appeal; or a sum not exceeding $100 shall be deposited with the clerk with whom the judgment or order was entered, to abide the event of the appeal; such undertaking shall be filed, or such deposit made with the clerk, within at loast five days after the notice of appeal is filed. . ^ Chap. 11.1 UTAH. 307 An appeal from a judgment or order for the payment of money shall not stay the execution of the judgment or order, unless a written undertaking is executed on the part of the ap- pellant, by two or more sureties, stating their places of residence and occupation, to the effect that they ara bound in double the amount named in the judgment or order appealed from; and should the judgment or order appealed from, or any part thereof, be affirmed, the appellant shall pay the amount directed to be paid by the judgment or order, or the part thereof which shall be affirmed, and all damages and costs which may be awarded against the appellant, and in the kind of money in which the Court to which it is appealed shall order the payment thereof. The sureties shall file affidavit as to their worth, over all just debts and liabilities, exclusive of pioperty exempt from execu- tion. When the appeal shall be thus perfected, it shall stay all pro- ceedings upon the judgment, until the action of the appellate Court shall be had. The appellee may object to the sureties, as to their sufficiency, and if the objection be well taken, and the appellant, upon five days' notice, fail to give additional security, the appeal shall be regarded as if not taken.^ Upon trial in the appellate Court, the successful party is en- titled to have the judgment remitted to the Court from which the appeal was taken, for execution. CHAPTER XII. ESTATES OF DECEASED PERSONS. Claims against deceased estates must be made within two years after administration begins. Satisfactoiy proof of the amount due must be made to the 308 UTAH. [Part 11. Probate Court; this may be made after expirf'ion of two years, provided notice of the claim be given within the two years. The executor or administrator of the estate has as long to make final settlement in, as the Probate Court will permit, which is usually, as long as he can show any unsettled business of the estate. The widow or ^ther members of tho family are entitled to the homestead, and such further allowances as the Probate Court may deem proper for the maintenance of the widow. The largest discretion is given the Court in making orders respecting the estate. CHATER XITI. HOMESTEADS. There shall be allowed homestead exemption, to be selected by the debtor, consisting of lands and appurtenances thereon not exceeding in value one thousand dollars for the judgment debtor, and the further sum of two hundred and fifty dollars for each member of the family, (which, in some instances, amount to thirty or forty, including wives and children). If the j)remises amount in value to more than the homestead exemp- tion, it may be ordered sold or partitioned, and in case of sale, the excess over the exemption valuation is subject to execution ; anci in case of partition, the part divided off from the homestead is 3ubject to sale on execution, the valuation to be made by per- sons chosen by the debtor and the oflScers having the execution. Chap. U.] UTAH. 309 CHAPTER XIV. DEPOSITIONS May be taken in any action at any time after service of sum- mons, or the appearance of the defendant, and in a special pro- ceeding after a question of fact has arisen therein, in the follow- ing cases: 1. When the witness is a party to the action or proceeding, or a person for whose immediate benefit the action or proceeding is prosecuted or defended. 2; When the witness resides out of the county in which his testimony is to be used. 3. When the witness is about to leave the county where the action is to be tried, and will probably continue absent when his testimony is required. 4. When the witness, otherwise liable to attend the trial, is too infirm to attend, or resides within the county but more than fifty miles from the place of trial. Either party may have a deposition of a witness taken before a notary public, justice of the peace, judge, or clerk of a Court, by serving notice on the adverse party of the time and place of the examination, together with a copy of the affidavit showing the case to be one of the kind above mentioned. The notice must be served at least five days, and one additional day for every twenty-five miles of distance of the place of examination from the residence of the person served, unless for cause the Court prescribes a shorter time. The witness may be cross-examined, and after having his tes- timony carefully examined and read to him, he shall sign it ; and the officer taking the deposition shall certify it up to the proper Court, enclosed in an envelope, and addressed to the clerk of the Court in which the action is pending, or to such person as the parties may agree upon, or transmit through the mail ; and such deposition may be used by either party on the trial. No objections to the form of an interrogatory at the trial will be beard, unless, made at the time of taking, if the party making the objection is in attendance at the taking. 310 UTAH. [Part 11. If a deposition be taken on account of the absence from the county, or intended absence, or because the witness is too infirm to attend, before being used proof must be made by affi- davit or oral testimony that the witness' disability continues, to the best of affiant's knowledge. The deposition may be read in case of his death. Depositions once taken may be read in any stage of the cause by either party, and shall be deemed evidence of the party read- ing them. If a deposition be taken out of the Territory, it must be upon a commission issued by the Court, under its seal, upon five days' notice to the adverse party of the application for a commission, and shall be issued to a person to be agreed upon between the parties ; and in case of disagreement, then to such person as the Court may appoint, or to a commissioner appointed by the Governor of this Territory to take affidavits and depositions in the States or Territories. Such interrogatories, direct and cross, as the parties prepare, or, in case of disagreement, such as the Court shall settle, shall be annexed to the commission. The cause shall not be con- tinued on account of the non-return of the commission and deposition, unless upon evidence satisfactory to the Court, that the testimony of the witness is necessary, and that proper dili- gence has been used to obtain it. The statute also provides for the taking of testimony, and lor its perpetuation, upon application to the Co art, showing that the applicant expects to be a party to an action in this Territory, and giving the names of persons whom he expects will be adverse parties ; that the proof of some facts is necessary to perfect the , title to property in which he is interested, or to establish a mar- riage, descent, heirship, or any other matter which it may here- after become material to establish ; though no suit may at the time be anticipated. The names of the witnesses and the gen- eral outline of the facts expected to be proven, to be stated. Affidavits or other proofs filed with the testimony shall be prima facte evidence of the facts stated therein. No particular form of the certificate of the officer taking the deposition is prescribed by the statute. Chap. 15]. UTAH. 311 CHAPTER XV. JUDICIAL BECORDS, HOW PROVEN. A judicial record of this Territory, or of the United States, or of any State or Territory of the United State ■^, may be admitted in the Courts of this Territory by the attestation of the clerk, with the seal of the Court annexed, together with the certificate of the judge, chief justice, or presiding magistrate, as the case may be, that said attestation is in due form. A judicial record of a foreign country may be proved by the production of a copy thereof, certified by the clerk, with the seal of the Court annexer' , if there be a clerk and seal, to be a true copy of such record, together with a certificate of the judge of the Court, that the person making the certificate is the clerk of the Court, or the legal keeper of the records; and in either case, that the signature is genuine, and the cortificate in due form; together with the certificate of the minister or embas- sador of the United States, or of a consul of the United States, in such foreign country, that there is such a Court, specifying generally its jurisdiction, and verifying the signatiire of the judge and clerk, or other legal keeper of the record. A copy of the judicial record of a foreign country shall also be admissible in evidence, upon proof, first, that the copy offered has been compared by the witness with the original, and is an exact transcript ef the whole of it; and that such original was in the custody of the clerk of the Court, or other lega keeper of the same; and that the copy is duly attested by the seal which is proved to be the seal of the Court where the record remains, if it be the record of a Court; or if there be no such seal, or if it be not a record of a Court, by the signature of the legal keeper of the original. 312 UTAH. [Part 11. CHAPTER XVI. ACKNOWLEDGMENTS. Deeds, mortgages, powers of attorney, or other instruments afi'ecting the title to real estate, must be acknowledged or proved before they can legally be placed upon record. The following is the form of the acknowledgment certificate : State or Territory of- -COUNTY. ss. On this- fore me — -day of- -A. D. 187 , personally appeared be- , a notary public in and for said county, , who is personally known to me to be the person described in and who executed the foregoing instrument, who acknowledged to me that he executed the same freely and voluntarily, and for the uses and purposes therein mentioned. In witness whereof, I have hereunto set my hand and official seal, on the day and year last above written. , [seal.] Notary Public. The following officers are authorized to take acknowledgments, and certify to them: If acknowledged or proven within this Territory, by some judge or clerk of a Court having a seal, or some notary public, or county recorder, or by a justice of the peace of the county where the conveyance is executed, and to be recorded. If acknowledged or proved out of this Territory, and within any State or Territory in the United States, by some judge or clerk of any Court of the United States, or of any State or Territory having a seal, or by a notary public, or^ by a commis- sioner appointed by the Governor of this Territory for that pur- pose. If acknowledged or proved without the United States, by some judge or clerk of any Court of any State, Kingdom, or Empire haying a seal, any notary public therein, or any minister, com- Chap. 16. J UTAH. 318 missioner, or consul of the United States appointed to reside therein. Such oflOieers may take and certify such proofs or ac- knowledgments by their respective deputies, in the names of their principals. When granted by a judge or clerk, the certificate shall be under the seal of his Court. When granted by an officer who has an official seal, it shall be under such seal. By a justice of the peace, under his hand. CHAPTER XVII. PAETNERSHIPS. The statute provides how partners may be summoned, and how judgments against partners may be rendered, but is thus brief and pointed. When two or more persons, associated in any business, trans- act such business in a common name, whether it comprises the names of such persons or not, the associates may be sued by such common name, the summons in such cases being served on one or more of the associates, but the judgment in such cases shall bind only the joint property of the associates. The piivate property of persons engaged in copartnership shall be held liable for the debts of the firm, only whan the partnership prop- erty shall prove insufficient to pay them. The assignment of a partner in trade to satisfy a creditor of the firm shall be deemed valid in law, but is not to be construed to authorize the assign- ment of partnership eflfects to satisfy individual claims of any of the parties. 314 UTAH. [Part 11. CHAPTER XVIII. MABRIED WOMEN All property owned by either spouse before marriage, and that acquired after marriage by gift, bequest, devise, or descent, is the separate property of that spouse by whom the same is owned or acquired ; and as such, may be held, owned and con- trolled, and transferred and disposed of by the spouse so own- ing or acquiring it, without any limitation or restriction by reason of marriage. Either spouse may sue and be sued in law. No right of dower shall be allowed. CHAPTER XIX. CORPOEATIONS. Any number of persons, not less than six, one-third of whom being residents of the Territory, may incorporate for purposes of manufacturiiig, mining, or conducting any commercial or other industrial pursuits, or for constructing roads, ditches, colo- nization and improvements for lands, colleges, seminaries, churches, libraries, or any benevolent, charitable, christian or scientific associationSj or for any rightful subject consistent with the Constitution of the United States, and the laws of the Ter- ritory. Stock may be subscribed and paid up in property. No indi- vidual liability upon stockholders. The probate judge is the the officiating officer in elTeccing an incorporation. Chap. 20.] UTAH. 315 CHAPTER XX. CHATTEL MORTGAGES We have no statute defining what property is the subject of chattel mortgage, but an action for the recovery of debts secured by a mortgage on either real or personal property, or both, is provided for by statute, giving power to the Courts to render judgment and make decree of foreclosure, and order of sale of the mortgaged property, in satisfaction of the debt, and provid- ing for an ordinary judgment lien and execution for unpaid bal- ance, after sale of the mortgaged property. Chattel mortgages are void as to creditors or innocent purcha- sers, where the possession of the mortgaged property remains in the mortgagor, though good as between mortgagee and mortga- gor. CHAPTER XXI. INTEREST AND USURY. Ten per cent, per annum interest is allowed on debts due, where no contract as to interest exists. There is no usury stat- ute, and parties are at liberty to contract for rates of interest without limit, and any agreed rate is collectable. CHAPTER XXH. INSOLVENCY. There is no insolvency law in this Territory. » ' I PART XII. BRITISH COLUMBIA. PREPARED EXPRESSLY FOR THIS WORK BY M. W. T. DRAKE, VICTORIA. CHAPTER I. COURTS— THEIR JURISDICTION AND TERMS. The Supreme Court is presided over by a chief justice and two pusne judges. This court exercises a legal and equitable jurisdiction in all matters. It has sole control over the estate of infants, lunatics and deceased persons, and claims a jurisdic- tion in divorce and matrimonial causes. The admiralty juris- diction of the Province is vested in the chief justice alone. It is the Court of Appeal from all inferior tribunals, and from it there is an appeal to the Supreme Court of Canada and Privy Council of England. The judges also sit as judges of assize for the trial of criminals. The Court holds three terms annually for the purpose of dis- posing of law points reserved at trials, for hearing motions for new trials, appeals, special cases, etc., etc. These sittings are held at Victoria, and the terms are held in February, April and November. For matters of procedure the judges sit constantly. 818 BRITISH COLUMBIA. [Part 12. The Assize Courts are held three times a year, for the trial of prisoners and civil causes with a jury. The Assize Courts are held all through the Province, the judges going on circuit for the purpose. All matters not jury cases are disposed of by the Court on application. The County Court is held for the trial of actions of debt or damage up to $500. Actions of ejectment, libel, false imprison- ment, and some others, are excluded from the cognizance of these Courts. This Court is held every month, and disposes of the cases brought before it without pleadings, and in a summary and ex- peditious manner. The province is divided into six districts for this purpose. The justices of the peace have no civil jurisdiction. All prisoners have to be committed by the justices before they can be tried. At the assizes, and after committal, the case goes be- fore the grand jury, and if a true bill is found the prisoner is put on his tiial; if no bill is found he is at once discharged. The municipalities have also a limited jurisdiction for enforc- ing their by-laws. CHAPTER II. COMMENCEMENT OF SUITS. Civil suits in the Supreme Court are commenced by writ of summons, to which the defendant has to appear in eight days; if he fails to appear after due service, the plaintiff signs judg- ment for his debt; if he appears, the plaintiff proceeds to state his cause of action in a pleading called a declaration, to which the defendant replies by a plea, and in the majority of cases the action being thus put in issue is set down for trial ; but any neglect of the defendant to proceed according to the rule, sub- jects him to the penalty of having judgment signed against him. Chap. 2.] BRITISH COLUMBIA. 819 In some cases the pleadings extend considerably beyond this, until at last they arrive at issue and are then ripe for trial. In the generality of cases a jury is not summoned unless at the request of either plaintiff or defendant, but the judge dis- poses of both law and fact. In actions on bills of exchange and promissory notes, if brought within six months of the due date of the bill or note, the defend- ants are not allowed to defend except on special ground shown in affidavits. All writs must be personally served, unless the defendant is keeping out of the way to avoid service, and then the Court allows substituted service. If the defendant is abroad, whether a foreigner or not, special forms of writ are provided, but the service must be personal. In equity cases proceedings are commenced by bill of com- plaint, being a narrative of the circumstances on which the plain- tiff relies for relief. The defendant has a month to answer, and after answer there are several different modes of bringing the suit to a hearing. The evidence is generally taken on af&davit, but may be viva voce. A single judge disposes of equity cases without a jury. Equity suits can be disposed of at any place the plaintiff fixes ; liable to be changed on good cause shown. CHAPTER III. LIMITATIONS OF ACTIONS. Six years is the limitation for all simple contract debts ; twenty years for all specialty debts. In case the cause of action arose in a foreign country, the defendant may plead the statute of limitations of such country as a bar. A foreign judgment is placed on the same footing as a simple contract debt, and has to be sued within the same time. 890 BBITISH OOLUMBU. [Part 12. CHAPTER IV. ATTACHMENTS— ABEEST IN CIVIL ACTIONS. Attachments are not allowed except under the Insolvency Act, and then it practically binds the property for the benefit of all creditors. Arrest in civil actions is in practice only resorted to for the purpose of compelling a defendant who is about to loave the ju- jisd'cfcion to give security for the alleged debt. The sheriff keeps him in charge until he has put in security, or until the trial of the action. There is no imprisonment for debt. But the County Court judges have power of committal for disobedi- ence of orders for payment of money. CHAPTER V. JUDGMENTS AND JUDGMENT LIENS. A judgment binds the lauds of a debtor when registered. It also enables a creditor to seize the goods of his debtor, or to com- pel payment of debts due to the debtor, to himself, under what are called garnishee proceedings; but a judgment does not bind the personal property of the debtoi" until the writ of execution is in the hands of the sheriff. Chap. 6.] BBITISH COLUMBIA. 321 CHAPTER VI. EXECUTIONS, EXEMPTIONS, REDEMPTION SALE. Executions are enforced against the land and personalty of the debtor. The debtor is entitled to an exemption of five hundred dollars in personalty. For homestead exemption, see " Homesteads." The debtor may redeem his property at any time before sale. Personal property has to be sold without any delay, and by public auction. Real property is advertised thirty days. CHAPTER VII. SECURITY FOR COSTS. Is always required when the plaintiff is resident out of the jurisdiction of tlie Court, in an amount of five hundrbd dollars; but if within the jurisdiction, he may commence actions in forma pauperis, if he is not in a position to pay fees. CHAPTER VHI. APPEALS Are allowed from the County Courts to the Supreme Court, if made within forty-eight hours after the decision is objected to ; from the Police and Magistrate Courts to the Supreme Court, if applied for in four days ; from the Supreme Court to the Privy 322 BRITISH COLUMBIA. [Part 12. Council of England, or the Supreme Court of Canada, if the amount in dispute is over fifteen hundred dollars. Security re- quired is five hundred dollars in the two latter cases. CHAPTER IX. ESTATES OF DECEASED PERSONS. Intestate estates, where there is no next of kin or creditor who desires administration, are managed by the registrar of the Supreme Court as official administrator. There is no statuteablo time for sending in claims, but every estate is advertised and a time fixed. The claims have to be sworn to — if from a foreign country, before a notary public, attested by the British ambassa- dor, consul, or charge d'affaires. Twelve months is the time al- lowed to settle the estate, whether the deceased died intestate or not. If the deceased left a will legally executed, 'us executors manage the estate without filing any security, and only file ac- counts at the end of the twelve months. If they neglect their duty, the devisees have a legal remedy, but the Court does not control them. By a Provincial Statute, lands of an intestate descend to the same persons who would be next of kin of personal estate, but in such a case the widow is only entitled to dower, whifih ia a life interest in one third. A testator may devise lands as he pleases by Lis will. Neither the widow or children are entitled by law to any interest. Chap. 10.] BRITISH COLUMBIA. 323 CHAPTER X. HOMESTEADS. Land to the value of twenty five hundred dollars may be made a homestead, if duly registered as such at a time when the owner was free from debt. CHAPTER XL DEPOSITIONS. For matters in civil suits, evidence abroad is generally taken by commissioners appointed by a judge of the Supreme Court. In other matters, affidavits can be taken before any minister, ambassador, consul, vice-consul, or consular agent, and if there is no one representing these functionaries, then before a notary public v.uly certified to be such by the Governor or Secretary of State. CHAPTER XH. JUDICIAL RECORDS— ACKNOWLEDGMENTS. Judicial records of foreign States can be proved by examined copies, sealed with the seal of the State if relating to State 324 BRITISH COLUMBIA. [Part 12. documents, or the seal of the Court if relating to judicial records. Acknowledgments of deeds can be taken before a notary pub- lic, duly certified to be such by the British consul. CHAPTER XIII. LIMITED PAKTNERSHIPS. Joint stock companies can limit the liability of their share- holders to the amount subscribed for by each, by registering un- der the statute. The law of private partnerships now allows a person to invest money in a business concern and receive a share of the profits, without being liable as a partner. CHAPTER XIV. MARRIED WOMEN Can invest the loney earned by any trade or occupation, and the same is free from the debts, control or engagements of the husband ; and landed property, held before marriage or acquired subsequent thereto, can be dealt with by a married woman as if she were a femme sole, with this exception that she cannot dis- pose of the same by will unless the husband consents. Chap. 15.] BRITISH COLUMBIA. 325 '>s- 'V/r ''i J^ ■i ^^ ^' ^ '/' CHAPTER XV. MORTGAGES. Chattel mortgages must be registered withiu twenty-one days after execution, and an affidavit filed of tbe day and date of ex- ecution, in order to protect the property from execution creditors of the grantor. A mortgage unregistered is good between the parties, and if the mortgagee take the property into his own custody an execution creditor cannot seize it. Furniture, goods, merchandise, etc., can be mortgaged. Farming stock and crops are not subject to the Act. Mortgages of Land. A mortgagee of laud is a specialty creditor ; he can sue his debtor for the amount due, sell the mortgage property, or fore- close the mortgage ; if he sells the mortgage property, it is doubtful whether his remedy against the mortgagor has not gone, ill case the sale fails to realize the whole amount due. CHAPTER XVI. INTEREST AND USURY. The legal rate of interest is twelve per cent, per annum. All judgments carry this rate ; so do accounts, after notice that in- terest will be charged ; but any higher rate of interest is per- fectly legal, as there are no usury laws in force. 326 BRITISH COLUMBIA. [Part 12. CHAPTER XVII. LAND LAWS. Persons can acquire land (three hundred and tweuty acres) by pre-emption, and on a survey being made, a grant in fee simple is issued without charge, or can purchase in surveyed districts at $1 an acre. Aliens. Foreign citizens can be naturalized after three years' residence and taking the oath of allegiance. L INDEX ^ INDEX. ARIZONA. Part X. Paos. Acknowledgments 291 Affidavits 290 Answer — Time Allowed 280 Arrest in Civil Actions 285 Attachments 284 Bankruptcy 295 Bills of Exchange 294 Chattel Mortgages 293 Commencement of Suits 280 Courts 277 *« Terms of 279 " Their Jurisdiction 277 " Where held...; 279 Deceased Persons — Estates of 289 Depositions 290 Estates of Deceased Persons 289 Examination of Judgment Debtor 288 Executions 287 Exemptions fi-om Execution 287 Insolvency 295 Interest 294 Judgments 286 Judgment Liens 286 Jurisdiction of Courts 277 Liens of Judgments 286 Limitation of Actions 282 830 INDEX. Faor. Married Women 292 Mortgagef) of Personal Property 293 Place of Trial of Civil Actions 281 Proceedings Supplementary to Ez-xsution 288 Promissory Notes— Days of Grace •. 294 Redemption 287 Sale— Under Execution 287 Terms of Courts '. 279 Time Allowed to Answer \ 280 Trial— Place of. 281 ATTORNEYS. Part I. Arizona 18 British Columbia 18 California 11 Idaho 17 Montana 17 Nevada 16 Oregon 15 Utah 16 Washington 16 Wyoming 18 BRITISH COLUMBIA. Part XII. Acknowledgments ; 828 Affidavits 828 Aliens 826 Appeals 321 Arrest in Civil Actions 820 Attachments 320 INDEX. 881 Paob. Chattel Mortgages 326 Commencement of Suits 818 Courts 817 " Terms of 817 •' Their Jurisdiction 817 Deceased Persona — Estates of 822 Depositions 328 Estates of Deceased Persons 322 Executions 321 Exemptions from Execution 321 Homesteads 328 Interest 326 Joint Stock Companies 324 Judgments 320 Judgmijnt Liens , 320 Judicial Records 323 Jurisdiction of Courts 317 Land Laws 326 Liens of Judgments 320 Limited Partnerships 324 Limitation of Actions 319 Married Women 324 Mortgages 325 Mortgages of Land 325 Naturalization , 326 Partnerships — Limited 324 Pleadings 318 Rtidomption 321 Sale— Under Execution 321 Security for Costs 321 Terms of Courts 317 Time for Appearance 318 Usury 325 CALIFORNIA. Part III. Acknowledgments 95 Acknowledgments— Forms of 97 Affidavits 93 Agent and Principal 123 Answer— Time Allowed 35 832 INDEX. ■ » ! Pam. Answer— Time Allowed in Justice's Court 86 Appeals in General 09 Appeals from District Court... 71 Appeals from County Courts 72 Appeals from Probate Courts 72 Appeals from Justices' or Police Courts 73 Arbitrations — .' 88 Arrest and Bail 50 Assignments— For Benefit of Creditors 124 Assignment without Prejudice to Set-off or Defense 34 Attachments 43 Bail— see Arrest and Bail 50 Bankruptcy 126 Bills of Exchange— see Negotiable Instruments 115 Bills of Lading 105 Certificate of Sale of Real Estate 63 Chattel Mortgages 107 Claim and Delivery of Personal Properly 48 Compromise — Proceedings on offer of Defendant 60 Commencement of Actions 34 Common Carriers 107 Complaint, on whom to be Served 35 Confession of Judgments 54 Contracts 114 Corporations 90 Costs 68 Courts 21 " their Jurisdiction 21 " When and Where Held 24 Currency Judgments 56 Deceased Persons— Estates of 75 Depositions 92 Descents 80 Estates of Deceased Persons 75 Examination of Judgment Debtor 66 Executions 59 Executions — Proceedings Supplementary to 66 Exemptions from Execution 60 Form of Civil Actions . 38 Fraudulent Transfeis 124 Gold Coin Judgments 56 Guaranty and Suretyship 110 Homesteads 89 Injunctions 52 Insolvency 126 Insolvency — Involuntary 137 Insolvency— Voluntary. 126 I INDEX. 383 Paoi. Interest 106 Joint Debtors— ProceedingB Against 66 Judgments 62 Jndgmonts after Verdict 66 Judgments by Confession 64 Judgment by Default in Justice's Court 67 Judgments injustices' Courts 67 Judgments in Justices' Courts other than by Default , 68 Judgments in Replevin 56 Judgment Liens 57 Judgment Liens, Justices' CourtH 50 Judgment on Proceedings without Action 55 Judgment on Failure to Answer , 53 Judicial Records 94 Judicial Records— How Proved 94 Jurisdiction of Courts 21 Letter of Credit 112 Liens .'.... 87 Liens for Salaries and Wages 86 Liens of Mechanics' and others upon Real Estate 84 Limitation of Civil Actions 31 Married Women 102 Mechanics' Liens 84 Minors 104 Mode of talcing Testimony of Witnesses 92 Mortgages of Personal Property 107 Negotiable Instruments 115 New Trials 74 Parties to Suits 34 Partnerships 99 Personal Property — Mortgages of. 107 Place of Trial, Civil Actions 27 Pleadings 38 Pleadings — Provisions in Justices' Courts 41 Pledge 109 Principal and Agent 123 Proceedings on Offer of Defendant to Compromise 56 Pioceedings Supplementary to Execution 66 Promissory Notes see Negotiable Instruments 115 Publication — Service by 36, 37 Redemption 63 Replevin— see Claim and Delivery 48 Replevin — Judgment in 56 Salaries — Liens for 86 Sale 113 Sale of Real Estate — when Absolute or not 63 J3aleof Real Estate— Certificate of. 63 334 INDEX. Paob. Sale on Execution 63- Sale— when Fraudulent 124 Security for Costs 68 Service by Publicetior... ,..86,87 Sole Traders. 103 Stoppage in Transit ;. 106 Submission of Controversy without Action 56 Summons— on Whom to be Served 85 Summons — on Whom to be Served in Justices' Courts 37 Summons — Service When to be Made in Justices' Courts , 8V Summons — Service by Whom Made in Justices' Courts 37 Summons — Who may Serve 35 Summons— Within What Time to Issue 35 Suretyships 110 Terms of Courte 24 Circuft Court U. S 27 District Courts 26 . Di.«trict Court U. S 27 Justices' Courts 27 Probate and County Courts 26 Supreme Court 24 Testimony of Witnesses by Affidavit 92 Time of Holding Courts 24 Trial of Civil Actions— Where to be Tried 27 Verification of Pleadings 41 IDAHO. Part VI. Acknowledgments 208 Affidavits— Before Whom to be Taken 213 Answer — Time Allowed 198 Appeals 202 Arrest in Civil Actions 197 Attachments 196 Bankruptcy , 216 Chattel Mortgages 212: Commencement of /..ctions 192 Corporations 211 INDEX. ^5 Courts 191 Courts— Terms of. 191 Courts — Their Jurisdiction 191 Deceased Persons— Estates of. ...204 Depositions 207 Estates of Deceased Persons 204 Examination of Judgment Debtor 201 Executions 199 Exemptions from Execution 19& Homesteads 203 Insolvency 216 Interest and Usury 213 Judgments 198 Judgment Liens 198 Judicial Records 208 Jurisdiction of Courts 191 Liens of Judgments 198 Limitation of Civil Actions 194 Limited Partnerships 209 Married "Women., 210 Mortgages of Persorial Property 212 Partnerships— Limited 209 Place of Trial of Civil Actions 198 Proceedings Supplementary to Execution 201 Redemption ..,,„„„,,„., 201 Sales—Under Execution 200 Security for Costs 202 Sole Traders 214 Ten. s of Courts 191 Time Allowed to Answer 193 Tiial— Place of. 193 Usury 213 JURISDICTION OF U. S. COURTS. Part II. Courts 19 Jurisdiction of Courts 19 Removal of Suits into U. S. Courts 19 336 INDEX. MONTANA. Part VIII. Page. Acknowledgments 247 Answer— Time Allowed 240 Appeals , 245 Arrest in Civil Actions 242 Attachments 242 Bankruptcy 249 Chattel Mortgages 248 Corporations 248 Courts 239 Courts— Terms of 239 Courts and their Jurisdiction 239 Deceased Persons— Estates ot 245 Depositions , 246 Estates of Deceased Persons 245 Jlxaminatioii of Judgment Debtor 244 Executions 243 Exemption from Execution 243 Insolvency 249 Interest 249 Judgment Liens 243 Judicial Records , 247 Jurisdiction of Courts 239 Liens of Judgments 243 Limitation of Actions 241 Limited Partnerships 247 Married Women 248 Partnerships— Limited 247 Place of Trial of Civil Actions 240 Proceedings Supplementary to Execution 244 Redemption* 243 Sale under Execution 243 Security for Costs 245 Termaof Courts •. 239 Time Allowed to Answer 240 Trial, Place of. 240 Usury 249 ^ INDEX. 387 NEVADA. Part IV. Paob. Acknowledgments 160 Affidavits— Before Whom to be Taken 161 Answer — Time Allowed 145 Appeals 153 Arrest in Civil Actions 149 Attachments 148 Bankruptcy 165 Bills of Exchange 164 Chattel Mortgages 163 Court? 141 Courts— Terms of 141 Courts — Their Jurisdiction 141 Corporations 162 Deceased Persons — Estates of 1 *4 Depositions 156 Depositions Taken Out of the State 158 Estates of Deceased Persons — 154 Examination of Judgment Debtor 152 Exemptions from Exi'cution ^'JO Executions ^^ Homesteads 155 Insolvency 156 Interest and Usury 168 Joint Debtors— Release of. ••• 166 Jurisdiction of Courts. • ...141 Judgments and Judgment Liens 150 Judicial Records— How Proved 159 Liens of Judgments 150 Limitation of Actions 146 Limited Partnerships 161 Married Women 162 Mortgages of Personal Property 163 Mortgages of Real Property 164 Partnerships— Limited 161 Place of Trial 1*5 Proceedings Supplementary to Execution 152 Promissory Notes 164 Publication— Service by 145 338 INDEX. Paob Bedemption i 152 Release of Joint Debtors 165 Sale under Execution 152 Security for Costs 153 Service by Publication 145 Terms of Courts 141 Time Allowed to Answer 145 Trial— Place of. 145 Usury 163 Witnesses 156 OREGON. Part V. Acknowledgments 185 Actions— Commencement of. 172 Actions— Place of Trial 173 Answer- Within What Time 172 Appeals..... 179 Arrest in Civil Actions 175 Attachments 175 Bankruptcy 189 Chattel Mortgages 188 Commencement of Suits 172 Courts and Jurisdiction 169 Courts— Terms of 170 Corporations 188 Deceased Persons — Estatesof. «. 180 Depositions 188 Descent of Personal Property 182 Descent of Real Property,... 181 Dower 183 Estates of Deceased Persons 180 Examination of Judgment Debtor 178 Executions 177 Exemptions from Execution 177 Homesteads 188 INDEX. 339 Paob. Insolvency 189 Interest 189 Judgment Liens 176 Judicial Records 185 Jurisdiction of Courts 169 Liens of Judgments 176 Limitation of Actions 173 Limited Partnerships 186 Married Women 187 Mortgages of Personal Property 188 Partnerships — Limited 186 Place of Trial of Civil Actions 173 Proceedings Supplementary to Execution 178 Redemption 177 Sak— Under Execution 177 Security for Costs 178 S'lits— Commencement of. 172 Summons 172 Terms of Courts 170 Usury 189 UTAH. Par-t XI. Acknowledgments 812 Answer—Time Allowed 299 Appeals 306 Arrest in Civil Actions 300 Attachments 300 Bankruptcy 315 Chattel Mortgages 315 Commencement of Suits 299 Corporations 814 Courts 297 Courts— Place of Holding 298 Courts— Terms of. 298 Courts— Their Jurisdiction 297 Z 340 INDEX. Paoe Deceased Penong-^Estates of 307 Depositions. .> 309 Estates of Deceased Persons 807 Examination of Judgment Debtor 304 Executions 302 Executions— Proceedings in Aid of 304 Exemptions 302 Homesteads 308 Insolvency 316 Interest and Usury 815 Judgments 301 Judgment Liens 301 Judicial Records— How Proved 811 Jurisdiction of Courts 1297 Liens of Judgments 301 Limitations of Actions 299 Married Women 314 Mortgages of Personal Property 815 Partnerships 818 Partners — How may be Sued, &c 818 Partners— Liability of Private Property tor Firm Debts 813 Partners — Assignment and Effect 313 Proceedings in Aid of Executions 304 Redemption 304 Sale— Under Execution , 302 Security for Costs 305 Terms of Courts 298 Time Allowed to Plead or Answer 29& Usury 315 WASHINGTON TERRITORY. Part IX. Acknowledgments 268 Answei^Time Allowed 264 Appeals and Writs of Error 264 Arrest in Civil Actions 258 Attachments 257 1 Paoi ....307 ,...309 ...807 ...304 ...302 ...304 .. 302 ...308 ...315 ..815 ..801 ..sol .811 ..1597 ..801 ..299 ..814 .815 .313 .813 .313 .313 .304 .304 .302 ,806 ,298 29& 31& INDEX. JyUL Paoi. Bankruptcy 272 Chattel Mortgages , 271 CJommencement of Suits 253 Corporations 270 Courts 251 Courts— Terms of. 252 Courts — Their Jurisdiction 251 Courts— Where Held 252 Deceased Persons— Estates of. 265 Depositions 266 Estatesof Deceased Persons 265 Examination of Judgment Debtor 263 Executions 260 Exemptions from Execution 261 Homesteads 266 Insolvency 272 Interest 271 Judgments 260 Judgment Liens 260 Judicial Records of other States — How Proved 288 Jurisdiction of Courts 2.51 Liens of Judgments 260 Limitation of Actions 255 Limited Partnerships 270 Married Women , 270 Mortgages of Personal Property 271 Partnerships — Limited 270 Place of Trial— Civil Action 255 Proceedings Supplementary to Execution 263 Redemption 263 Sale— Under Execution 262 Security for Costs 264 Sole Traders 270 Terms of Courts 252 Time Allowed to Answer.... 253 Trial-Place of. 255 Writs of Error 264 .268 .254 .264 .258 .257 842 INDEX. WYOMING. Part VII. Paor. Acknowledgments 233 Answeiv-Time Allowed 222 Appeals 228 Arrest in Civil Actions ,,^ 226 Assignments 236 Attachments 228 Chattel Mortgages 236 Commencement of Actions 222 Courts 221 Courts— Terms of and Where Held 222 Courts— Their Jurisdiction 221 Deceased Persons— Estates of 228 Depositions 232 Descents and Distribution of Property 229 Estates of Deceased Persons 228 Examination of Judgment Debtor , 227 Executions 226 Exemptions fW)m Execution 226 Interest 236 Judgment Li«ns 226 Judicial Records 233 Jurisdiction of Courts 221 Liens of Judgments 226 Limitations of Actions 223 Limited Partnerships 234 Married Women 235 Mortgages of Personal Property 236 Partnershins— Limited 234 Place of Trial of Civil Actions 222 Proceedings in Aid of Executions 227 Redemption 226 Sale under Execution 226 Security for Costs 228 Terms of Courts 222 Time to Answer 222 Trial— Place of. 222 Usury 286 ^Jk^ Paob. ..283 ..222 ..228 ..226 ..286 ..223 ..236 ..222 ..221 ..222 ,.221 ..228 .232 .229 .228 .227 .226 .226 .236 .226 .233 .221 .226 .223 .234 .235 .236 .234 .222 .227 .226 ,226 ,228 ,222 222 222 286 '5 I