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J^A-N FRAXCISKC Win. c. Kroun, ITintPr. .yo ,^„„s„„ie .< treet. PREFACE. 4 "Pacific Coast Collection Laws." A revised edition for 1890. has been rendered necessary, owing to the nian>- important changes that have been made in onr statute laws since the last Issue of the work The list of attorneys contained therein has been carefull\' revised. The following practicing attorneys kindly assisted in the undertaking. DoLPH, Bi-.ij.ixc'.iCK, Mai.i.okv ^: vSimon. - - Portland, Or. Marshall ^K: Rovlk, ----- Salt Lake City, Utah. Pkterson & Pi:.\.\];FATiiKK, - - - vSeattle, Wa.shington. McCuTCHKOX & McIntirk, - - - Ikkna, Montana. C. N. PoTTKR, -------- Chexennc, Wyoming. Jo.N'AS W. Brown, - Boise Cit}-, Idaho, i\L W. T. Drake, of Drake, Jackson .S: Helmcken, Victoria, B. C. Hernuon & Hawkins, ------- Prescotl, A. T. A. A. Jones, -------- Las \'egas. New Mexico. R. D. Thompson, -------- Deiuer, Colorado. Shook «S: \'andI':r IIoi;vi:n. - - - San Antonio, Texas. J. \V. Whitcher, ------ Virginia City, Nevada. J. H. Jl-LIJ'.TT. S(V/ Fraz/nsco, .l/^nV. rSga. .1^ 4 i; 11 tu It'll iiC'cnicliUK to Act of Cdiikioss in tlio yuar Iv.n) hy ,1. H. .IKI.I.KTT. In tlu' olUcf of tlic I.ilinirian of ('onijivss at Wasliinuton. I>. C. CONTENTS. Part I. PACIFIC COAST ATTORNEYS AND A NOTARY PUBLIC FOR SAN FRANCISCO. Part IJ. JURISDICTION OF U. S. COURTS. I'.VHK CirAPi'EB I. Courts ami tlieir Jurisdiction ] Part III. CALIFORNIA. ('itAPTER I. Courts and Their Jurisdiction ; '■> II. Terms of Courts, When and Wiiere Held li III. Place of Trial of Civil Actions !•_> ly. Limitation of Civil Actions !•"> V. Parlies to Suits — Commencement of Actions 1'.' Vi. Form of Civil Actions — Pleadings •_'•'! VII. Attachments -J^ \'1II. Claim and Delivery of Personal Property ;>.> IX. Arrest and Bail .'?(> X . Injmict ions ;>> XI. Judgments and Judgment Liens .">.> XII. Execution — Sale and Redemption 4f'' XIII. Proceedings Supplementary to Kxecution 'yA Xl\'. Costs 5o XV. Appeals in Civil .Vctions W XVL New Trials til X\"II. Estates of Deceased Persons <)2 vi XVIll. XIX. XX. XXI. XXll. XXIII. XXIV. XXV. XXVI. XXVI I. XXVIII. XXIX. XXX. XXXI. XXXII. XXXIII. XXXIV. XXXV. XXXVI. XXXVII. XXXVIII. XXXIX. XL. XLI. XLII. XLllI. XLIV. XLV. CONTKXTS. I'A(.K ,, , 7(1 Desceut.'i Liens of Mechanics and Others upon Real Property TA Liens for Salaries and Wages '•' .Vrbitrations ; ' " Homesteads S4 Corporal ions yUAe of Taking Testimony of Witnesses ^i* Judicial Records, How Proval ^^ Acknowledgments '^'' Partnerships - Married Women '^'' Minors '' Stoppage in Transit •'" Bills of Lading '■)'' Interest *'*^ Common ('arriei"s 100 Mortgages of Personal Property 1^1 Pledge l*^'^ Guaranty and Suretyship I""! Sale 1*'" Contracts t ^^^ Negotiable Instruments I "'' Principal and Agent 1 '7 Fraudulent Instruments and Transfers H^ Assignments for the Benefit of Creditors 1 1 9 Commission Merchants, etc 1--I Insolvency '-•1 Legal Holidays 1"><> ^R P.\RT IV. NEVADA. Chapter I. Courts — Jurisdiction and Terms of Courts 1")1 II. Time Allowed to Answer — Service by Publication — Place of Trial loi} III. Limitation of Actions lo3 IV. Attachments l.'itJ V. Arrests in Civil ,\ctions |.')»t VI. Judgments and Judgment Liens ]'>7 Vn. Exef'utions, Exemi)ti(» X. Appeals Kil XL Kstates of Deceased i'ersons 1(12 CfiNTKNTS Vll I'Al.l. XII. lli)iiit'sU'iuls ](;;> XIII. Of Witnesses imd Depositioii.s 104 XI\'. .IiKJiciiil lleconis — llow I'roveil 1(17 X\'. .\('kiiowU'(lj{muiils I('»S XVI. .Mlidiivits, I'.efore Wlioiii to be Tiikoii Itiil X\'II. Mmlteil I'aitnersiiips ICK XVIII. .Married Women 170 XIX. Corponitions 170 XX. Cliiittel Mortgages 171 XXI. Interest and I'snry 171 XXII. Promissory Xote.s and Kills of Exchange 171 XX II I. Mortgages 17li XXIV. Joint Debtors— Release of 172 XX\'. Insolvent Debtors 17.'} Part V. OREGON. i'UAi'TKK I. Courts and Their Jiirisdietion . 177 II. Tennsof Courts— When and Where ileld 178 III. ( 'onnneneenicn t of Suits 1 80 IV. I'laceof Trial of Civil Actions 181 V. Limitation of Actions 181 VI. .Vttachments 18o VII. Arrest in Civil Actions 183 VIII. .Judgment and .Judgment Liens 185 IX. Kxccnt ions, K.xemptions, Sale and Redemption 185 X. I'roeeedings Supplementary to Kxecution 186 XI. Security for Costs 187 XII. Appeals 187 XIII. Estates of I )ecexsed I'ei'sons 188 XIV. Descent of Real Property 1»9 -W. Descent of Personal Property 190 .\ VI. Homesteads and Dower 191 XVII. Depositions 191 XVIII. .Judicial Records 19.3 .\IX. .Vcknowledgments 19;{ .\X. Limited Partnerships 194 XXI. Married Women 195 XXII. Corporations 190 XXIII. Chattel Mortgages 196 X X I \'. Interest and Isury 1 97 X .\ \'. .Assignments for Heneti f of ( reditors 1 97 viii Contents. Paut VI. IDAHO. V.M.K ■C'ltAPTEK I. Courts. Tlielr Jiuisdiition and Terim -•^'•^ II. Liniitution of Actions -^•' III. Parties to (,'ivil Actions 210 IV. I'lacesof Trial of Civil Actions 211 V. Coninioncement of Civil .Actions 214 VI. Pieudings in Civil .Actions "-1. VII. Attachments "-17 VIII. Claim and Delivery 21S l.X. K.xeni|)tions from Kxecution '-I'.* X. Kedeiuption, etc ''''l Xi. Appeals '2.-2-1 Xll. Liens 22ti XIII. Estates of Deceased Persons 22.S XIV. Succession ■-.'?.'< XV. Homesteads "-liT X \' I. ( 'orporations 'ilih XVII. Acknowledgments 2:?!» XVIIl. Depositions 241 XIX. .Judicial Records 242 XX. Special Partnership 24;> XX!. Chattel Mortgages 244 XXII. Intere,st 24") XXIII. Insolvency 24") Paht VIT. WYOMING. i'liAi'TEK I. Courts and Their .Jurisdiction 2.")1 II. Terms of Courts — When and Where Held 2")2 III. Comnjenceinent of .\ctions, Time to .\nswer, Place f)f Trial... 2")2 IV. Linntation of Actions 2")H \'. Attachments 2.')4 \'l. Arrest in Civil Actions 2")') VII, .Judgment Liens 2")7 VIII. K.xecuf ions, Sale, Redemption and Exemptions 2")S IX. Proceedings in Aid of E.xecutions 2')'.) X. Security for (Josts 2")H XI. Appeals 2.")',> XII. Estates of Deceased Persons 2t)() ^ XIII. I )epositions 2()() XIV. .Judicial Records 2<)1 XV. Acknowledgments 2t»l XVI. Limited Partnership 2<):i CJoNTKXTS. ix V.Mih XVII. Nfiirried Women 'M'.l XVI 11. CluUtcl McrtKiiges '2»i4 XIX. Interest ami I'siiry '2M XX. As^signinents tJlU Paht VIII. MONTANA. (Jhaptkr I. Courts — Their Jurisdiilioii II. Time Allowed Defemlant to .Viiswer— I lace of Trial of Civil .\ctions III. Limitations of Actions IV. Attachments -.\rrests in Civil Cases.. V. Judgment Liens — Kxccutions, Kxeinpti'nis, Sale and Redemp- tion VI. Proceedings Supplementary to Exe< \itions VII. Security for Costs — Appeals Vlll. Estates of Decease•>•-' Connueneement of Suits and Time Allowed Defendant to Plead 'f-^ Limitations of Actions ■'"•' Attachments •'•^•' Arrests in Civil Actions •'^'^"^ Judgments and Judgment Liens •^"•' Fxecutiims, Exemptions, Sale and Redemption •'5<'•' Appeals ■'"■' Estates of Decea.sed Persons •>! 1 Homesteads o 1 2 Depositions •> 1 - Judicial Records — How Proven ;>14 .Aclinowledgments •> 1 •• Partnerships •{ 1 " Married Women -5 1 " Corporations •> 1 >"^ Chattel Mortgages -JIS Interest and Tsury 'VIO Insolvency oiiu Part XI. BRITISH COLUMBIA. CiiAPTEUI. Courts — Their Jurisdiction and Terms 321 II. Commencement of Suits ;52'J III, Limitation of Actions '.iSA iV. Attachments — .\rrest in Civil .Vctions '.Vl'A V. Judgments and Judgment Liens ;!24 VL Executions, Exemptions, Redemption. Sale ;}24 VIl. Security for Costs ',',2'} Vlli. Appeals ;J2."> IX. Estates of Deceased Persons ;i'2'i X . Homesteads ;;'jt j XI. Dcposi*ions ;{2(i XII. Judicial Records— .Acknowledgments ;{27 Xlll. Limited Partnerships, etc ;!27 Contents. xi I'A(ii-; XIV. Miirried WonitMi •'!-7 X V. Morljjages •>-'H XVI. Interest and I'sury ^VJH XVII. Ivunil Laws, also Liens ;>'29 X \' 11 1 . Mnnieipality Laws ^>•lO XIX. Ships and Shipping •>'>0 XX. 1 nsol veney ■'•'0 XXI. Mines, otf •^■">^ Part XIT. COLORADO .s:?.s Part XIII. NEW MEXICO .i.K Part XIV. TEXAS. :54l Part XV. WASHINGTON. CiiAPTKU I. Courts and their Jiirisiliction •'•^•'J II. Terms of Coiuts— When and Where llehi 1^47 III. Coninieneement of Suits— Time Allowed to Answer ;?48 IV. Place of Trial of Civil Actions -i-^'J V. Limitation of .Vctions •'•_>'* \'L Attachments and (iarnishmen' ■'•■^^ VIL Arrest in Civil Actions •|-_''_' VIII. Judgmcntsand .JndKmont Leins •'•"J IX. Liens of Mechanics and others •''_>*> X. Fxecntions, K.xeiuptious, Sales and Redemptions :l")7 XI. Proceedings Supplementary to Kxecution •'>•>! XII. Heplevin '"'^ xu XIII. XIV XV. XVI. XVII. XVIII. XIX. XX. XXI. XXII. XXIIl. XXIV. XXV. XXVI. XXVII. XXVIII. » Contents. . . P.V(!K , ,, , 302 Security lor Losts .^^..^ Appeals iind Writs of Error \^^^^^ PMates of Deceased Persons ;^^|j. Wills : 'J , 00/ Homesteails . . Ml Depositions Judicial Kecord,s-How Proved ' ''^ Conveyances and Acknowledgments • ' Limited Partnerships '' Man.cu Persons ;5/4 Corporations Chattel Mortgages ' '^ , ^ i/ 1 Interest Bills of Exchange and Promissory Notes yj Insolvent Laws " '' Aliens; PART I. PACIFIC CO^^ST ATTORNEYS AND A NOTARY PUBLIC FOR SAN FRANCISCO. The Following are Recommended as Reliable. CALIFORNIA. COUNTY. KESIDENCK NAME. Alameda Oakland |J. C. Phiid-cett Livermore Pleo.santon Amador Jackson . Butte Oroville Chico (Jalaveras. . . .iVallecito Colu.sa. Contra Costa Colusa . . . Willows . . Martinez. . Geo. W. Tjangan. J. K. Palmer. Eo'an & Rust. Gray & Sexton. Camper & (^)star, Collectors. . B. H. Lewis. . H. M. Albery, B. F. Geis. W. S. Tinning. XJV Attorneys. CALIFORNIA— Continued. [Part 1 COUNTY. ItKSIDKNC'K. NAMK. Contra Costa. Autioch A. C. Hartley. Del Norte . . . Crescent Citv.jW. A. Han)ilton. El Dorado. . . Placerville. . Jlr\vin k lr\Yin. Fresno Humboldt Fresno Selnia. Church & Corey W. B. Good. Kingsburg. . .'W. B. Coocl. Eureka Fred W. Bell, I Collector. Hyde.sville...'j. W. Maxwell, Colk'ctdiiinii (icniTrtl .\sc!il. Inyo Independence. A. H. Conklin. Kern Lake Ijassen Los Anyeles. Marin Marijiosa . . . . Mendocino . . . Merced BakersfielLl...jC. C. CowgiJl; Lakeport Woods Crawford. Susan ville . . .'E. K. Do(lost. Yuba . |Mary.sville . . . , W m. (t. Murjjliy. NEVADA. COUNTY. RESIDEXCIC. NAME. Elko jElko Tall)ot & Farrinoton. i i Esmeralda . . .iJlawthorne . . A. W. Crocker. Eureka Eureka A. E. Cheney Hiunboldt . . .iWinnemucca .JM. S. Ijonnitit-ld. Lander Battle Mt . . . James F. Dennis. Lyon * Day ton John Lathrop. Ormsby Car.son City. . Treninor Coffin. Storey Viririuia City. J. W. Whitcher. Waslioe Reno C. W. Jones, (■ollcntor. White Pine.. Ely F. X. Murpiiy. XVIU Attorneys. OREGON. [Part 1 COUNTY. RESIDENCE. 3aker CUty . . 1 NAME. Baker....... 1 Hyde Johns & Olmsted. 1. Beiitoii Corvallis - F. M. Johnson. Coos ^ Marsh field . . . Henrv Sengstackou, ' Nolivry I'liblio tiiid (Dllcclor. Clatsop A.storia J. Q. A. Bowlby. Currv Denmark . . . . i J. H. TTpton, Also Notiiiy I'ulilii'. Douglas Rosebiirg .... 1 Hamilton k Hamilton. Jackson Jacksonville. . P. P. Prim. Jo.sephine .... (xrants Pass. . S. IT. Mitchell. Klamath Linkville . . . . Cogswell & Hale. Lake Lakeview. . . . Cogswell & Ross. Lane Eugene City. George B. Dorris. Linn Albany 'Hewitt, Bryants Irvine Marion.. .... Salem P. H. D'Arey. Multnomah . . Portland, . . . :Doli)h, Bellinger, i Mallorv & Simon Polk Independence .IA. M. Hurley. Umatilla. . . . Pendleton. . . . jBailey ct Balleray. Union . La Grande. . i .Baker & Baker. Part I] COUNTY. Attohnkys. OREGON— Continued. RESIDENCK. NAMK. Wasco The Dalles. . . W. S. Myers. WasliinL,'U)ii. . Hillsboro' .... Tho.s. H. Toiio-iie. i Yamhill JMcMiniiville.. L. Loughary. UTAH TERRITORY. COUNTY. RKSIDEKCE. NAME. Salt Lake. . , . .Salt Lake City; Marshall & Roylc. WASHINGTON. COUNTY. KKSIDKXCK. NAMK. XI. \ Chehalis Monte.sano. . . George J. Moody. ! i Clarke Vancouver. . . W. Byron Daniels. i Colmnhia .... Dayton E. H. Fox. Cowlitz Kelso .1. F. Van Name. GarHeld . ... Pomeroy jS. G. Cosgrove. Jefferson P't Townsend. Kays & Plundey. King Seattle Peterson & Pennetatlier, Kittitas 'Ellensbnrg. . . M. Gilliam. Lewis iChehalis Daniel C. M illett. I XX Attoknkys. WASHINGTON— Continued. \ Villi I COUNTY. RESIDENCE. NAME. Lewis ■: Ccntralia .... GeorL^e E Rhodes. Lincoln Spraij^uc . . . . T. A. Wickham. Piorco lacoma Garretson. Tarkcr & Roslin«. Spokane Falls J. Kennedy Stout. Thurston .... Olympia Allen cV Ayer. Walla Walla . Walla Walla . D. J. Crowley. Whatcom .... Whatcom .... James P. de Matto.s. Whitman .... Colfax Sullivan, Chadwick & FuUerton. Yakima North Yakima Edward Whitson. MONTANA. COUNTY. HKSn)KN( K. Deer Lodixe . . NAME. Wm. K. Sloan & Co. Lewis&Clarke| Helena ;McCutcheon & McLitire. I Madison Vir<:jinia City.jTheo. Muffley. Silver Bow . .Butte City. . .Ciia.s. (). Donnell. I'lllt 1 A'lTOUNEYS. X.\l IDAHO TERRITORY. COUNTY. re8IDENc;k. NAME. Ada Boise Citv . . . Jonas W. Brown. Alturas Mt. Home . . . StuU & McCarty. Rocky Bar . . . Stull & McCarty. Nez Forces . . Lewiston .... Jasper Rand. ARIZONA TERRITORY. (•OINTV, RESIDKN'CE. Gila .Globe NAME. J. D. McCabe. Marico|)a Phcenix |H. N. Alexander. 1 ! Pima Tucson G. W. Ticher ... Pinal Florence ; W. H. Benson. Yavapai Flacjstaff Ross k Van Horn. ' ^ i Prescott Herndon& Hawkins. Yuma Yuma O. F. Townsend. WYOMING TERRITORY. ('OIWTY. RESIDEN<'E. Cheyenne .... NAME. Ijaramie C. N. Potter. XXll Attohnkvs, BRITISH COLUMBIA. [Part 1 rOHNTV. RKSIDKNOK. Victoria 'Victoria NAME. Drake, Jack.soii k Hcliiickun. COLORADO. COUNTY. RKSIUK.VrK. Arapalioe. . . . Denver. . . . I Lake iLeadville . . NAMK. R. D. Thompson. Wni. H. Nasli. NEW MEXICO. COUNTY. RESIDENCE. NAME. Bernalillo. . . . Albuquer(|ue. Bernard S. Kodey. Dona Ana . . . huty Cruce.s. . . S. B. Newconib, Grant 8an Mi<(uel . . Silver City.. . La;? Vegas . . . Mr.s 0. S. Warren. Ccilleiior. A. A. Jones. Socorro i Socorro Isaac S. Tifianv. ALASKA. COUNTY. RESIDENCE. NAME. Juneau JDelaney k (ininel. TEXAS. COUNTY. RESIDEXlK. NAMK Bexar San Antonio .Shook k Ditmar. GEORGE T. KNOX, NOTKRY PUBLIC. 444 California Street, SAN KKANlISCU. Also Commissioner of Deeds Jor all the Stales and Territories. PART II. Jurisdiction of United States Courts. CHAPTER I. CIRCUIT COURTS. rmU'r Act of US,S7. The Circuit Court of the United States shall have orioinal cognizance, concurrent with the Courts of the several States, of all suits of a civil nature, at connnon law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arisino- under che Con,'^:titution or laws of the United States, or treaties maile, or which shji.ll be made, under their authority; or in which controversy the United States are plaintiffs or petitioners; or in which there shall be a controversy between citizens of dif- ferent States, in which the matter in dispute exceeds, exclusive of interest ami costs, the sum or value aforesaid; or a contro- versy between citizens ( *^' the same State, claiming lands under gra'\ts of different States; or a controversy between citizens of a State and foreign States, citizens or subjects, in which the matter in dispute exceeds, exclusive of interests and costs, the sum or value aforesaid; and shall have exclusive cog- nizance of all crimes and offenses cognizable under the author- ity of the United States, except as otherwise provided by law, and concurrent jurisdiction with the District Courts of the crimes and offenses, cognizable by them. But no person shall lie arrested ir: one district for trial in another, in any civil action before a Circuit or District Court; and no civil suit shall ': % United States Courts. [Part 2 be brought before either of said Cour 5 against any person by any original process of proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of diiferent States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant; nor shall any Circuit or District Court have cognizance of any suit ex- cept upon foreign bills of exchange, to recover the contents of any promissory note or other chose in action in favor of any assignee, or of any subsequent holder if such instrument be payable to bearer and be not made by any corporation, un- less such suit mighi, have been prosecuted in such Court to recover the said contents if no assignment or transfer had been made; and the Circuit Courts shall also have appellate juris- diction from the District Coui-ts, under the regulations and restrictions prescribed by law. Removal of Causes from State Courts. That any suit of a civil nature, at aw or in Cijuity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the Circuit Courts of the United States are given original jurisdiction, as above, which may now be pending, or which maj' hereafter be brought, in any State Court, may be removed 1)}' the defendant or defendants therein to the Circuit Court of the United States, for tht,' proper district. Any other suit of a civil nature, at law or in e(|uity, of which the Circuit Courts of the United States arc given jurisdiction, as above, and which are now pending, or which may hereafter be brought in any State Court, may be removed into the Circuit Court of the United States, for the proper district, l)y the defendant or de- fene allowed. DISTRICT COURTS. District Courts of the United States have jurisdiction — Of suits for the collection of the Internal Revenue. Of all suits for penalties and forfeitures incurrerl under the law of the United States. Of all causes of action arising under the postal laws of the United States. Of certain admiralty cases, etc., etc. PART III. State of California. CHAPTER I. COURTS an:^ their jurisdiction. The following are the Courts of justice of this State : The Court of Impeachment ; The Supreme Court ; The Superior Courts ; The Justices' Courts ; The Police Courts, and such other inferior Courts as the Legislature may establish in an}- incorporated city or town, or city and county. Tlie three first -named Courts are Courts of Record. 1. 2. :i 4. .5. Court of Impeachment. The Court of Impeachment is the Senate; when sitting as such Court the Senators shall be upon oath; and at least two- thirds of the members elected shall be necessary to constitute a quorum. The Court has jurisdiction to try impeachments, when pre- sented by tlie Assembly, of the Governor, Lieutenant-Governor, Secretary of State, Controller, Treasurer, Attorney-General, Surveyor-General, Chief Justice of the Supreme Court, Asso- California. [Part 3 ciate Justices of the Supreme Court, and Judges of the Superior Courts, for any misdemeanor in office. The officers of the Senate are the officers of the Court. ii Supreme Court. The Supreme Court .shall consist of a Chief Justice and si.\ A.ssociate Justices. There shall be two departments of the Supreme Court, de- nominated respectively Department One and Department Two. The Chief Justice shall assign three of the Associated Justices to each department, and such assignment may be changetl by him from time to time; provided, that the Associate Justices shall be competent to sit in either department, and may inter- change with one another by agreement among themselves, or if no such ajireement be made, as ordered bv the Chief Justice. The Chief Justice may sit in cither department, and shall pre- side when so sitting; but the Justices assigned to each depart- ment ^hall select one of their number as presiding Justice. Each of the departments shall have the power to hear and f the county : in any township or city wherein he may l)e found. (I. When the defendant is a non-resident of the State : in any townshiji or city in the State. 7. When a person has contracted to perform an obligation at a particular place, antl, o)- t..- m individual anil the State, except where the statute imposinj' \i prescrilies a ditftTent limitation. Chap. 4] California. 17 pec- :r'^ If 2. An action for libel, slander, assault, battery, false im- prisonment, or seduction. 3. An action against a Sheritt" or other officer for the escape of a prisoner arrestetl or imprisoned on civil process. 4. An action against a municipal corporation for damages for injuries to property caused Ity a mob or riot. Within Six Months. An action against an officer, or officer (Je facto — 1. To recover any goo accrues, either within the age of majority, in- sane, imprisoned on a criminal charge, or in execution under the sentence 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 ex- piration of the time limited for the connnencement thereof , and the cause of action survive, an action nuiy be connnenced by his representatives, after the expiration of that time, and with- in six months from his death. If a person against whom an action may be brought, die before the expiration of the tiiiif limited for the connnencement thereof, and the cause of action survive, an action ma}' be connnenced against his represent- atives after the expiration of that time, and within one year after the issuing of letters testamentary or of administration. When a pei'son is an alien subject, or citizen of a country at war with the United States, the time of the contiiniance of the war is not part of the period limited for the conimence- ment of the action. WlitMi the commencement of an action is staycil by injunc- lion or statutory prohiltition, the tiuK- of the continuanec of the injunction 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 foreign country: and by the laws thereof an action thereon can- not there be maintained against a person l>y reason of the laj of time, an acticm thereon shull not be maintained against hii in this State, except in favor of our who has been a citi/en ot )SC 11 ^ Chap. 4] California. 19 this State, and who has held the cause of action from the time it accrued. No acknowledr^enient or promise is sufficient evidence 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 V. PARTIES TO SUITS. COMMENCEMENT OF ACTIONS, ETC. 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 pL-rson expressly authorized by statute, who ma}' sue with- out 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 ofi'or other defense existing at the time of, or before notice of, the assignment ; Imt 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, nuiy all or any of them be included in the same action, at the option of the plaintifl". Civil actions in the Courts of this State are commenced ly filing a complaint. In the Justices* Courts, by filing a com- plaint and i.ssuing a sunnnons thereon, or by tlie vohmtaiy np- jiearance and pleading of the parties. 1 ■ \M\ I 20 California. [Part ,'3 The plaintiff may have summons issued . y time within one year after the complaint is Hied with the Clerk or Justice. In the Superior Courts the tlefeiidant is allowed ten days after the service of suunnons and complaint to appear and an- swer the complaint, where service is made within the county in which the action is brour,dit, and thirty days if served elsewhere. In the Superior Courts thesunnnons and copy of complaint may be served by the Sheritf of the county where defendant may be found, or by any other person over the auje of eighteen- not a party to the action. On Whom Summons 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 compa'n^or association, doing business and having a man- aging 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, re- siding within this State : such minor personally, and also his father, mother, or guardian; or if there be none within this State, then any person having the care or control of such minor, or with whom he resides, or in whose service he is employed. 4. If against a ])"rson residing within this .State, who has been ju)i: oy the assignment 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, denuir to the answ."!r of the defend- ant, or to one or more of the several defenses or counter-claims set up in the answer. The demurrer may be taken on one or more of the follow- ing grounds: 1. That .several causes of counter-claims have been impro])- erly joined. 26 California. [Part :\ I ill 2. That the answer r is pay- e or lien nal prop- without security Ll,a<:ainst ty of the un<4 sum- Before issuing the writ of attachment the Clerk of the Court, or Justice, must require an affidavit by, or on behalf of the plaintiH", showing : 1. That the defendant is indebted to the plaintiti' (specify- inir the amount of such indebtedness, over and above all leaal set-offs or counter-claims) upon a contract, express or implieij. 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 .uortgage or lien upon any real or pers ^nal property, or any pledge of personal propt-rty : or if originally so secured, that such security has, without any act of the plaintiti", or person to whom the .security was given, become valueless ; or, 2. That the defendant is indebted to the plaintiti' (specify- ing the amount of such indelitedness, over and above all leiial set-otls or countei'-claims), and that the defendant is a non-resi- dent of the State; and, 'i. That the ati.ichment is not sought and the action is not prost.'cutcd to hinder, delay, or defraud any creditor of the de- fendant. The Clerk or Justice must also riMpiire, before issuing the writ, a written undertaking, on the \M\vt of the plaintiti' (in tin Superior Court, in a sum of not less than two hundred dollars anil no* exceeding the amount claimed by the plaintiti'; and in the Justices' Court in a sum not less than lifty fendant mav be ; or to tin' Slieritf or Constable in the county where the suit is California. [Part :i brought; and must require him to attach and safelj' keep all the property of the defendant within his county, not exempt from execution, or so much thereof as may lie sufficient to sat- isfy the plaintiff's demand — the amount of which must be stated in conformity with the complaint, unless the defendant rrives him security, bv the undertakingof at least two sufficient sureties, in an amount sufficient to satisfy such demand, besides costs, or in an amount 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 nuist 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, nuist be attached by filing with the Recordei- of the county, a copy of the writ, together with a description of the property attached, and a notice that it is at- tached, and by leaving a similar copy of the writ, description aiul notice with an occupant of the property, if there is one ; if not, then by posting the same in a conspicuous place on the property attached. 2. Real property, or an interest therein, biilonging to the defendant, and held by any other person, or standing on the records of the county in the name of any other person, nnist be attached by filing with the Recorder of the county a ropy of the writ, together with a description of the property, and a no- tice that such real property and any interest of the il property belonging to the defendant, or is owing any debt to tlie defendant, the Sheriff must serve upon such person a copy of tin- wri* and a notice that such credits or other property or debts, as the case mav be, are attached in pursuance of such writ. All persons having in their possession or under their control, any cretlits or other personal property, belonging to the def.iid- ant, or owing any debts to the defendant at the time of .siivice upon them of a copy of the writ and notice, as above directed, shall be, unless such ^)r()j)erty be delivered up or transferred or such debts be paid to the Sheriff, liable to the plainti'' the amount of such credits, projx'rty, or debts, until the attach- ment be discharged, or any judgment recovered by him be satisfied. Any person owing debts to the defendant, or having in his possession, or tuider his control, any credits or other personal property belonging to the defen-. The defendant may, within two days after the service of a copy of the affidavit and un.iertaking, give notice to the Sheriff that he excepts to the sufficiency of the sureties. If he fails t(» do so, he is dcenicrl to have waived ,il| objections in them. When the def.Midant excei)ts, the sureties must justify ,„i notice before the Judge or County Clerk ; and the Slieriff is responsi- Chap. 8] California. 35 ble for the sufficiency of the sureties until the objection to them is either waived or until they ju.stify. At any tinie before the delivery of the property to the plaint- itf' the defendant may, if he do not except to the sureties of the plaintiti', retiuire 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 deliver}- thereof to the plaintiff, if such delivery be adjudged : and for the payment to him of such sum as may, for any cause, be recovered against the defendant. If a return of the proper- ty V>e not so re(]uired within live days after the taking and service of notice to the defendant, it must be delivered to the plaintiff, unless claimed liy a third party, as hereafter set forth. The defendant'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 property to the defendant. The Sheriff is responsi- 1)1l' for the defendant's sureties until they justify, or until the justification 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 plaintiff. If the property taken be claimed by any other person than the defendant or his agent, and such person make affidavit of his title t'.ereto, or right to the possession thereof, .stating the grounds of such title or right, and serve the .same upon the Slieriff, the Sheriff is not bound to keep the property or deliver it to the plaintiff, unless the plaintiff, on demand of him, or his a^cnt, indenniify the Sheriff against such claim, by an under- taking, by two sufficient sureties; and no claim to such prop- erty by ajiy othe'- person than the defendant or his agent is valid against the Shcritf, unless so made. The provisions contained in this chapter are applicable to cases in Justices' Courts, the won) "Constable" being .substi- tute^ (liately thereafter enter jiul^'incnt for tlie amount specified in the sunnnons, including tiie 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 summons is served on one or more, and not on all of them ; in which case the plaintiff' may proceed against the defendants served in the same manner as if they were the only efendant to Comproniiae. The defendant may, at any time before the trial or judix- ment, serve upon the plaintiti'an otier to all(»w judgment tc^ l»o taken against him for the sum or property, or to t'le etfect therein specified. If the plaintiti* accept the otter, and give no- tice thereof within five days, he may file the oti'er, with proof of notice of accoptauce, and the Clerk must thereupon enter judgment acdrdiugly. If tlic notice of acceptance be not given, the otter is to be deemed \vith county, owned by liim at the time, or which he may aftcwards acquire, until the lien cease.s. The lien continues for two years, unless the enforcement of the judgment be stayed on appeal by execution of a sufiicient under- taking, in which case the lien of the judgment ceases. [See elsewhere, how judg'iients in Justice's Court are made a lien upon real property] A transcript of the original document, certified by the Clerk, may be filed with the Recorder of ajiv other county ; and from th*. time of the filing of the judgment becomes a lien upon all tlie real property of the judgment debtor, not exempt fiom execution, m such county, owned by him at he time, or which he may afterward, and before the time expires, actjuire. The lien contitmes for two years. 44 California. [Part ;3 ' : i; PROVISIONS IN JUSTICES' COURTS. Judgment by Default. If the defendant fail to appear and to answer or demur at the time specified in the summons, tlien, 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 recovery of money or damages only, the Court must render judgment in favor of plaintiff for the sum specified in the sununons. 2. In all other actions, the Court nmst hear the evidence offered by the plaintitt', and must render judgment in his favor for such a sum (not exceeding the amount stated in the sum- mons) as appears by such evidence to be just. In the following cases the same proceedings must be had, and judgment must be rendered in like manner, as if the de- fendant failed to appear and answer or demur : 1. If the complaint has been amended, and the defendant fails to answer it, as amended, within the time allowed by the Court. 2. If the denmrrer to the complaint is overruled, and the defendant fails to answer at once. 3. If the demurrer to the answer is sustained, and the •lefendant fails to amend the answer in the time allowed bv the Court. Judgments other than by Default. Judgments upon confession, may be entered up in any Jus- tices' Court, specified in the confe.ssion. Judgment that the action be dismi.sse.1 without prejudice to a new action, may be entered, with costs, in the following cases : 1. When the plaintifi" voluntarily dismisses the action be- fore it is finally suiiiuitted. 2. When he fails to appear at the time specititid in the summims, or at the time to which the action lias been post- poned, cr within one hour thereafter. Chap. 11] California. :{. When, after a domurrer to the complaint has been sus- tained, the plaintiff fails to amend it within the time allowed by tlie Court. 4. When it is objected to at the trial, and appears by the evidence, that the action is brought in the wrong county, dk township, or city ; b\it if the objection is taken and overruled, it is cause only of reversal on appeal, and does not otherwise' invalidate the judgment ; if not taken at the trial, it is waived. When a trial by jury has been had, judgment must l)e entered by the Justice, at once, in conformity with the verdict. When the trial is by the Court, judgment must be entered at the end of the trial. VVnien the amount f'^und duo to either party exceeds the sum for which the Justice is authorized to enter judgment, such party may reiiut the excess, and judgment may be entered for the residue. If the detendant, at any time before the trial, offer in writ- ing U) allow judgment to l)e taken against him for a specitie sum, the plaintitf may innnetor, if the judgment be for the recovery of real or personal property, or the (enforce- ment of a lien thereon. W'hen any judgment has been rendei'ed for or against tlx' testator or intestate in his lifetime, no execution shall issut thereon after his death, except as above provided. If execution ■^ Chap. 12] California. 47 is actually 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 nni.st account to the executor or administrator for any .surplu.s in hi.s hands. The following property is exempt from execution, except upon a judgment recovered for its prici' or upon a mortgage thereon : 1. Chairs, tables, desks and books, to the value of two hundred dollars, belonging to the judgment debtor. ± Neces.sary hou.sehold, table, and kitchen furniture be- longing to the judgment dt btor, including : one sewing machine, stoves, stovepipes, and furniture, wearing apparel, beds, bed- ding, and bedsteads, hanging pictures, oil paintings and draw- ings, drawn or painted liv any member of the fandly, and fam- ily portraits and tlieir necessary frames, provisions actually provided for individual or family u.se sufficient for three months, anil three cows and their sucking calves, four hogs with their sucking pigs, and food fm- such cows and hogs for one month. 8. The farndng utensils or implements of hu.sbandry of the juilgment debtor ; also, two oxen, or two horses, or two mules, and their harness, one cart or wagon, and food for such oxen, horses, or uniles, for one month ; also, all seed, grain, or vegetables actually provided, re.servcid, or on hand for the pur- pose of planting or sowing at any time within the ensuing .six months, not exceeding in value the sum of two hundred dollars, anil seventy-tive beehives, and one horse and vehicle belonging to any person who is maimeil or crippled, and the same is nec- essary in his business. 4. The tools or implements of a mechanic or artisan neces- sary to carry on his trade ; the notarial seal, records, and office furniture of a Notar}' Public; the instruments imd chest of a surgeon, phj'sician, surveyor, or dentist, neces.sary to the exer- cise of their profession, witli their professional libraries anii neces.sary office furniture; the professional libraries of attor- neys, judges, ministers of the gospel, editors, school teachers, and uuisic teachers, and their necessary office furniture ; also. ■ .Iji 1. 48 California. [Part 3 the musical instruments of music teachers actually used hy them in givincj instructions, and all the indexes, abstracts, books, papers, maps, and office furniture of a Searcher of Records, 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 mining operations, not exceeding 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 n«!cessary to be used in any whim, windlass, derrick, car, pump, or hoisting gear ; and also his mining claim, actually worked by him, not exceed- intr in value the sum of one thousand dollars. G. Two horses, two oxen, or two mules, and their harness, and one cart or wagon, one dray or truck, one coupe, one hack or carriage, for one or two horses, by the use of which a cart- man, drayman truckman, huckster, peddler, hackman, teamster, or other laborer habitually earns hi.s living, and one horse, with vehicle and harness or other e(|uipnients, used by a ])hy- sician, surgeon, constable, or minister of the gospel, in the legitimate practice of his profession (jr business, with food for such oxen, horses, or mules for one month. 7. One fishing boat and net, not exceeding the total value of five hundred dollars, the property of any fisherman, by the lawful use of which he earns a livelihood. (S. Poultry not exceeding in value twenty-five dollars. 9. The earnings of the juflgment debtor for his personal services rendered at any time within thirty days next preced- ing the levy of execution or attachment, when it appears, by the debtors' affidavit or otherwise, that such earnings are necessary for the use of his family, residing in this State, suji- ported in whole oi" in part by his labor; but where debts are incurred by any s\u'h person, or his wife or family, for the commtm necessaries of life, the one-half of such earnings above mentioned are nevertheless sulij(!ct to execution, garnishment, or attachment to satisfy debts so incurred. Chap. 12] California. 49 10. The shares held by a member of a homesteail associ- ation duly incorporated, not exceeding in value one thousand ilollars, it' the person holding the shares is not the owner of a liomestcad under the laws of thi.s State. All the nautical in- struments and wearing apparel of any master, officer, or sea- man of any steamer or other vessel. 11. All moneys, benefits, privileges, or immunities accru- ing 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 luindred dollars. 12. All fire engines, hooks and ladders, with the carts, trucks, and carriages, hose, buckets, implements, and apparatus thereunto appertaining, and all furniture and uniforms of any Hre company or department organized under any laws of this State. i:i All arms, uniforms, and accouterments required by law to l)e kept by any person, and also one gun to be selected l)y the debtor. 14. All Court-houses, jails, public offices, and building.s, lots, grounds, and per.sonal property, the fixtures, furniture, books, papers, and appurtenances belonging and pertaining to the jail and public offices, belonging to any county or to any city and county, of this State, and all cemeteries, public s(|uares parks and places, public buildings, town halls, markets, build- ings for the u.se of fire d(.'})artments 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 u.se of fire or military company, organized under the laws of this State. For exemptions of homesteads, sec " Homesteads." Notice of Sale. Before the sale of property on execution, notice thereof must be given as follows : [Same in Justice-Court actions.] 50 California. [Part :i wj'i I! t! 1 . In the case of perishable property : by posting written notice 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, considering the character and con- dition of the property. 2. In case of other personal property : by posting a similar notice in three public places in the township or city where 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 particularly describing the property, for twenty days, in three public places of the township or city where the property is sit- uated, and also where the property is to be sold, and publishing a copy thereof once a week for the same period, in some news- paper published in the county if there be one. Sale of Real Property — When Absolute or Not. Upon a sale of real property 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 fi leasehold of two years' unexpired term, the sale is absolute. In other cases the property is subject to redemption. '1.1' Certificate of Sale of Real Estate. The officer must give the purchaser a certificate of sale, and a duplicate of such certificate must be filed b}' the ofticer in tlu' office of the Recorder of the count}'. By Whom Property may be Redeemed, and When. Property sold, subject to redemption, as above provided, or any part sold separately, maybe redeemed in the manner here- inafter provide^, by the following persons or their successors in interest : 1. The judgment debtor or his successor in interest, in thi' whole or any part of the property. Chap. 12] California. .-)] 2. A creditor liaving a lien by jucl(j;nicnt or mortgage, on the property .sold, or on .some shave 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 at any time witliin six months after the sale, on paying the purchaser the amount of the purchase, with two per cent, a month thereon in addition, up to the time of redemption, together with the amount of any a.ssessment or taxe.s which the purchaser may have paid thereon after the purchase, and interest on such amount ; and if the purcha.ser be also a creditor, having a prior lien to that of the redemptioner.- other than the judgment under which such purcha.se was made, the amount of such lien, with interest. If property be so redeemed by a redemptioner, another re- ileiujitioner 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 aildition, and the amount of any as.se.ssment 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 i-edemptioner 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 ajain, and as often as a redemptioner is so dispcsed, redeemed from any pi'cvious redemptioner within sixty days after the last redemption, on paying the sum paid on the last previous redemption, with four per cent, thereon in addition, and the amount ol" anj" assessments or taxes which the last previous reilemptioner paid after the retlemption by him, with interest thereon; and tlie anjount of any liens, other than the judgment under which the property was sold, held by the last redemp- tioiu'r previous to his own, with interest. Written notice of ivdcmption must be given to the Sheriff, and a duplicate filed with the Recorder of the county; and if any taxes or assess- ments are paid by the redeniptioner, or if he has or acijuires uiiy lien other than that upon which the redemption was made, notice thereof nmst in like manner be given to the Hheriff", and T 52 California. [Part :i filed with the Recorder; and if such notice be not filed, the property may be redeemed without payin<,' such tax, assess- ment, or lien. If no redemption be made within six months after the .sale, the purchaser or his assignee is entitled to a con- veyance ; or, if so redeemed, whenever si.xty days have elapsed, and no other redemption has been made, and notice thereof given, and the time for redemption has expired, the la.st re- demptioner or his assignee is entitled to a Sheriffs deed; but in all cases the judgment 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 pay- ments as are required to effect a redemption by a redemptioner. If the debtor redeem, tiie efi'ect of the sale is terminated, and he is restored to his estate. Upon a redemption by the debtor, the person to whom the payment is made nuist execute and tleliver to him a certificate of redemption, acknowledged or proved before an oHiicer 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 property is situated. Payment maj' 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 .serve with his notice to the Sheriff: 1. A copy of th(! docket of the judgment under which he claims the right to redeem, certified by the Clerk of the Court, or of the county where the judgment is docketed ; or if he redeem upoii a mortgage or other lien, a note of the record thereof certified by the Recorder. 2. A copy of any assignment necessary to establish hi.s claims, verifiey an order made to that cfh'ct, the judgment creditor to institute an action against sucii person or corporatioii tor the recovery of such interest or deht ! and the Court or Judge may, by order, forbid a transfer or other disposition of such interest or debt, until an action can lie connnenced and prosecuted to judgment. If any person, party, or witness disobey an order of the referee, properly made, in proceedings before him, he muj' be [)unished by the Court m* Judge ordering the refcu'ence, fcjr a contempt. CHAPTER XIV. COSTS. The general rule is that judgment carries cost. When, in an action for the recovery of money only, the ilefendant alleges in his answer that iK'fore 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 plaintili' the amount so tendered, and the allegation be found to be true, the plaintiti' cannot recover costs, but m.ist pay costs to the defendant. When several actions are brought on one bond, undertaking, promissory note, bill of exchange, or other instrument in writ- ing, or in any other case for the same cause of action, against several parties who might have been joineil as defendants in the same action, no costs can be allowed to the plaintiti' in more than one of such actions, which may be at his election, if the parties proceeded ajrainst in tlie other actions were, at the com- mencement of the previous action, openlj' within this .State ; but the disbursements of the plaintiff must be allowed to hiui in each action. • 50 California. [Par :J Security for Costs. Wliun the pluiiitifi' in an action resides out of the State, or is a foivif^n corporation, security for the costs and charges, which may he awarded a^^jainst such phvintitf, may be reijuircd hy the defendant. When required, all proceedings in the action must he stayed until an undertaking, ex(!cuted by two or more persons, is filed with the Clerk, to the ettect that they will pay such costs and charges as may be awarded against the plaintiti* by judgment, or in the progress of the action, not exceeding the .sum of three hnmlred dollars. A new or additional undertaking nuiy be ordered liy the C )urt or Jtidge, upon proof that the original undertaking is insutlicient security, and proceedings in the action staved imtil .«uch new or additional undertakin<' is exe- cuted and filed. W such .security is not given by the plaintiti" within thirty days after notice that security is required, the Court or Judge may order the action dismi.ssed. P %m CHAPTER XV. APPEALS IN CIVIL ACTIONS. f Appeals in General. Within what time a[)peals may be taken : 1. From a final jutigment in an action or spjcial proceed- ing eoiumeneed in the Court in which the same is rendered, within one year after the entry of judgment, liut an excep- tion to the decision or verdict, on the ground that it is not sup- ported l)y the eviflence, cannot be revieweil on an appeal from the judgment, unless the appeal is tak»ni within sixty days after the rendition of the judgment. 2. From a judgment rendered on an appeal from an in- ferior Court, within ninety days after the entry of such judg- mi nU Clmi). 1--)] California. •>/ •S. From un (jnler <;ranUnn- or refusing a new trial; from an order ^nantinj^ or dissolving an injunet.ion; from an order refusing to grant or dissolve an injunction ; from an order dis- solviniT or refusini; to dissolve an attadnnont ; from an order granting or refusing to grant a change of tlie place of trial : from any special order made aft.iM' ''.■■ final judgment and from an interlocutory ju together with the interest that may bo flue thereon, and tlw; damages and costs which ma}' l)e awarded against the appellant upon the appeal If the judgment or ord(;r appeale taken to the Suprcm»> Court from ii Jiuperii>r Court, in the foliinving ca.ses : Chap. 15] Califohxia. '.!► 1. From a final judj^incnt cntorcil in an action or s|Hriul proceeding conunenced in a Superior Court, or brouent of a debt, claim, or legacy, or tlistributive share; or confirming or n'fusing to confirm a report of an appraiser .setting a])art a homestead. The foregoing does not apply in cases appealed from Jus- tices', Police, or other inferior ('ourts, except cases of (orcil'le entry and detainer, and cases involving the legality of any tax, impost, as.sessinent, toll, or nuniicipal tine; or in which the de- mand, exclusive of interest or the value of tlie property in (■(lutrover.sy, amounts to three hundred dollars. Appeals from Justices* or Police Courts. Any party dissatisfied with a judgment r'UiK-red in a civil action in a Police or .lustice's Court, may appeal therefrom to the Superior Court of the county, at any time within thirty days after the rendition of the judgment 1111'^ 60 California. [Part 8 ii i- ^•■ 1 j! ■■ ¥\ M (I i >« 1 :' km i Parties appealing' on (piostions of law alone, must, within ten days from rendition of juf po.s.session AY t :i Clwjp. 1.')] California. 61 rithin ;nt of When : both [ must ectual Avo »<;• 10 pay- ^eilini!:^ D judji- lu'nt of nr costs )(',rsonal , for the lount of ipeal 1 >«• cnt ami •suporior to cn- irty, thf will pay order of I or (Us- ■ocoveH'tl will obey iidifment eal pvop- ^s a writ- ant, with session <»1 !• snlh'V to il lie lUs- hrment/ bi' Court, h.' property, possession thereof, or that he will pay any ju(l<,'ment any which either party was prevented from having a fair trial. 2, Miscond^iet of the jury, and whenever any one or more •if tlie jumi-K ha\" Imi'U indut-ed to assent to any general or (J2 Caufdunia. [Pnrt .'i special verdict, or to finding on any (jucstion submitted to them by the Court by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. .'}. Accident or surprise, which onlinary prudence could not have guarded against. 4. Newly discovered evidence, material for the party making the application, which he could nuf with reasonable diligence, have discovered and produced at the trial. 5. Excessive damages, appearing to have been given under the influence of passion or prejudice. (5. Insufficiency of the evidence to justify the verdict oi' other decision, or that it is against law. 7. Error in law occurring at the trial and excepted to l»y 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 wore trietl without a jury, Mlo witli the Clerk and serve upon the adverse party a notice of his intention, designating tbo ground upon which the motion will V)e made. li CHAPTER XVII. fl ESTATES OF DECEASED PERSONS. In what CDUiity wills puist Ije approved and letters testi- mentary or of administration granteil: 1. In the county of which the deceaserl was a resident at tha 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. a. In till- ct)unty in which any part of the estate may \>v. the deceased having died out of the State and not resident therein at the time of his death. 11: Chap. 17] Califouma. i»»> ().> 4. In the CDunty in which any part of thu estate may lie, the (Jeceascd not being a resident of the State, and not leaving estate in the county in which he died. ."). In all other cases, in the county where application for letters is first made. Order of persons entitled to administer : 1. The surviving husband or wife, or some competent per- son whom lie or she may recjuest to have appointed. •2. The children. 3. The father or mother. 4. The brothers. 5. The sisters. (). The grandchildren. 7. The next of kin entitleil to share in the distribution of the estate. H. The Public Ailininistrator. i>. The creilitors. 10. Any person legally competent. ' Atlministration may be granted to one or more competent persons, although not otherwise entitled to the same, at the written request of the person entitled. Hied in the Court. No person is competent or entitled to .serve as administra- tor who is: 1st. Under the age of majority. 2d. Not a boiut fide, resident of the State. •id. Convicted of an infamous crime. 4th. Adjudged by the Court incompetent to execute the iluties of the trust l»y 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 ap- pointed administrator of his estate. A married woman must not be appointed administratrix. Letters of udininistration must l)e granted to any applicant, though it api>ear.s that there are other persons having better rights to the administration, wlien such person fail to appear and c in the issuiuir of letters to themselves. ¥ \m • mu 64 Califouxia. [Part 3 The administrator must give bonds, with two or more suffi- cient sureties, to be approveil by tlie Superior Judj^e, the penalty to be not less than twice the value of the personal property, and twice the probable vabie of the annual rents, profits aneen presented to him, such refusal or neglect may, at the opt'.m of the claimant, be deemed o(|uivalent to a rejection on the tenth day; and if the presentation be made by a Notary, the certificate of such Notary, under seal, shall be prima faci< evidence of such presentation and the date thereof. If tlic claim bj presented to the executor or administrator before the expiration of the time limited for the presentation of claim>', the same is presented in time, though acted upon by the execu- tor or administrator, and by the Judge after the expiration r : proofs tati' 1'f -)on any than is I against cutor . '<^. <%'/ -"-■ O >% / Photographic Sciences Corporation i\ s V >>? 4^ "\ :\ 33 WEST MAIN STREET WEBSTER, NY. MS80 (716) 872-4503 ^9) V O^ > ''J)^ ^ \ i; ^i f lii ' mi I 68 California. [Part 3 part, he must state in his indorsement the amount he is willing to allow. If the creditor refuse to accept the amount allowed in satisfaction of his claim, he shall recover no costs in any action therefor brought against the executor or administrator unless he recover a greater amount than that offered to be, allowed. A judgment rendered against an executor or administrator, upon any claim for money against the estate of his testator or or intestate, only establishes the claim in the same manner as if it had been allowed by the executor or administrator and a Judge; and the judgment must be that the executor or administrator pay, in due course of administration, the amount ascertained to be due. A certified transcript of the original docket of the judgment must be filed among the papers of the estate in Court. No execution must issue upon such judgment, nor shall it create any lien upon the property of the estate, or give to the judgment creditor any priority of payment. Six months after his appointment, and at any time when required by the Court, either upon its own motion or upon the application of any person interested in the estate, the executoi or administrator must render, for the information of the Court, an exhibit under oath, showing the amount of money received and expended by him, the amount of all claims presentorl against the estate, and the names of the claimants, and all other matters necessaiy to the condition of its affairs. Every executor or administrator must render a full account and a report of his administration at the expiration of one year from the time of his appointment. Upon the settlement of the accounts at the end of the year, as required, the Court must make an order for the payment of the debts, as the circumstances of the estate require. In case of the death of any employer, the wages of eacli miner, mechanic, salesman, clerk, servant and laborer, for services rendered within the sixty days next precoeding tlie 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 Chap. 17] California. 69 estate, and the allowance to the widow and infant children, and must be paid before other claims against the estate of the deceased person. The debts of the estate, subject to the foregoing provision, must be 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. 4f, Judgments rendered against the decedent in his life time, and mortgages in the order of their date. 5. All other demands against the estate. The preference in the case of a mortgage onlj- extends to the proceeds of the property mortgaged. The deficiency, if any, must be classed with the other demands against the estate. Compensation to Executors a^rl AHmir.ic.trqfn^'Q .. Compensation to Executors and Administrators. When no conij)ensation is provided by the will, or the executor renonnce,-? all olaini thereto, he must be allowed commibsion upon the amount of the estate lucounted for by him as follows: on first $1000, seven per cent.; for all above that sum and not exceeding |10,000, five per cent.; for all above *10,00()and not exceeding $20,000, four per cent; for all above $20,000 not exceeding $50,000, three percent.; for all above $.50,000 and not exceeding $100,000, two per cent., and for all above $1L>0,000 one per cent. Same commiasion allowed to administrators. Power to Mortgage or Lease. Whenever, in any estate now being administered, or that may hereafter be administered, it shall appear to the Superior Court, or a Judge thereof, to be for the advantage of the estate to raise m.cney by a mortgage of the real property of the de- ceJuut, or any part thereof, or to make a lease of said realty, or any part thereof, the Court or Judge, as often as occasion thereof shall arise in the administration of any estate, may, on a petition, notice, and hearing as provided for, authorize, em- power, and direct the executor or administrator to mortgage or lease such real estate, or any part thereof. 70 California. [Part 3 CHAPTER XVIII. • SUCCESSION. The property, both real and personal, of one who dies with- out disposing of 5t by will, passes to the heirs of the intestate subject to the control of the Probate Court, and to the possession of any administrator appointed by that Court for the purpose of administration. When any person having title to any estate not otherwise limited by marriage contract dies, without disposing of tlie estate by will, it is succeeded to, and must be distributed, subject to the payment of his debts, in the following manner : 1. If the decedent leaving a surviving husband or wife, and only one child, or the lawful issue of one child, in equal shares to the surviving husband or wife and child, or issue of sucli child. If the decedent leave a surviving husband or wife, and more than one child living, or one child living and the lawful issue of one or more deceased children, one-third to the surviving husband or wife, and the remainder in equal shares to his children, and to the lawful issue of any deceased cliild by right of representation ; but if there be no child of the decedent living at his rleath, the remainder goes to all of his lineal descendants ; and if all the descendants are in the same degree of kindred to the decedent, they .share equally ; other- wise they take according to the right of representation. If the decedent leave no surviving husband or wife, but leave issue, the whole estate goes to such issue ; and if such issue consists of more than one ch'lil living, or one child living and the lawful issue of one or more deceased children, then the estate goes in eciual shares to the children living, or to the child living, and the issue of the deceased child or children, by right of representation. 2. If the decedent leaves no issue, the estate goes, one-half to the surviving husband or wife, and the other half to tlie Chap. 18] California. 71 decedent's father and mother, in equal shares, and if eitlier bo (load, the whole of said half goes to the other ; if there be no father or mother, then one-half goes in equal shares to the brothers and sisters of the decedei>v, and to the ehildeen of any- deceased brother or sister by right of representation. If the decedent leave no issue, nor husband, nor wife, the estate must go to his father and mother, in e(iual shares, or if either be dead, then to the other. 3. If there be neither issue, husband, wife, father nor mother, then in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister by right of representation. 5. If the decedent leave a surviving husband or wife, and neither issue, father, mother, brother, nor sister, the whole estate goes to the surviving husband or wife. G. If the decedent leave neither issue, husband, wife; father, mother, brother, nor sister, the estate must go to the next of kin in equal degree, excepting that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claimed through the nearest an- cestors must be preferred to those claiming through an ancestor more remote. 7. If the decedent leaves several children, or one child, and the issue of one or more children, and any such surviving child dies under age, and not having been married, all the estate that came to the deceased child by inheritance from such 'iocedent, descends in e(|ual 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 under age, not having been married, all the other children of his parents arc also dead, and any of them have left issue, the estate that came to such child by inheritance from his parents descends to the issue of all other children of the same parent ; and if all the issue are in the same degree of kindred to the child, they share the estate e(|ually, otherwise they take according to the right of representation. |;ii ■li i |i 1 iM u ^j u)9^9'^ ^^A. 78 California. [Part 3 9. If the decedent be a widow or widower, and leave no kindred, and the estate, or any portion thereof, wps common property of such decedent, and his or her deceased spouse, while such spouse was living, such common property shall go to the father of such deceased spouse, or if he be dead, to the mother. If there be no father nor mother, then such property shall go to the brothers and sisters of such deceased spouse, in equal shares, and to the lawful issue of any deceased brother or sister of such deceased spouse, by right of representation. 10. If the decedent have no husband, wife or kindred, and there be no heirs to take his estate, or any portion thereof, under subdivision nine of this section, the same 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 death of the wife, the entire community property, without administration, belongs to the surviving husband, except such portion thereof as may have been set apart to her by judicial decree, for her support and maintenance, which portion is subject to her testamentary disposition, and in the absence of such disposition goes to her descendents 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 the husband, and in the absence of such disposition goes to his descendants equally, if such descendants are in the same degree of kindred to the decedent ; otherwise, according to the right of representation , and in the absence of botli such dispositions, and such descendants, is subject to distribution in the same manner as the separate property of the husband. In case of the dissolution of the community by the death of the husband, the entire community property is equally subject to his debts, the family allowance, and the charges and expenses of administration. Every illegitimate child is an heir of the person who, in writing. signed in the presence of a competent witness, •art 3 Chap. 18] California. 73 ive no H mmon H while H to the H :iother. H Iiall go ■ I e(iual r sister 1 ed, and I thereof, H s to the I lUsband I )roporty I roper ty, lUsband, 1 apart to ;e, which I d in the H , or heirs 1 nununity 1 r half is H id, and in ' ''i^™ s equally, red to the 1 J sentation : "■3 1 and such ' nanner as ■ ■.*■ lissolution ■A the entire ■ 'I the family ration. [ 1 on who, in it witness, r ■ '■—. acknowledges himself to be the father of such child ; and in all cases is an heir of his mother; and inherits his or her estate, in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock; but he does not represent his father or mother by inheriting any part of the e-state of his or her kindred, either lineal or collateral, unless, before his death, his parents shall have intermarried, and his father, after such marriage, acknowledges him as his child, or adopts him into his family; in which case such child and all the legitimate children are considered brothers and sisters, and on the death of either of them intestate, and without issue, the others inherit his estate, and are heirs, as hereinbefore provided, in like manner, as if all the childx'en had been legitimate; saving to the father and mother, respectively, their rights in the estates of all the children in like manner as if all had been legitimate. The issue of all marriages null in law, or dissolved by divorce, are legitimate. If an illegitimate child, who has not been acknowledged or adopted by his father,' dies intestate, without lawful issue, his estate goes to his mother, or in case of her decease, to her heirs at law. CHAPTER XIX. LIENS OF MECHANICS AND OTHERS UPON REAL PROPERTY. Mechanics, material men, contractors, sub -contractors, artisans, architects, machinists, builders, miners, and all persons and laborers of every class, performing labor upon or furnishing materials to be used in the construction, alteration, addition to, or repair, either in whole or in part, of any building, wharf, bridge, ditch, flume, aqueduct, tunnel, fence, machinery, railroad, wagon road, or other structure, .shall have a lien upon the property upon which they have bestowed labor, or furnished materials, for the value of such labor done and materials i'urnished, whether at the instance of the owner or of any other 'M!' 74 California. [Part 3 person acting bj' his authority, or under him, as contractor or otherwise; and any person who performs labor in any mining claim or claims, has a lien upon the same, and the works owned and used by the owners for reducing the ores from such mining claim or claims, for the work or labor done, or materials furnished by each respectively, whether done or furnished at the instance of the owner of the building or other improvement, or his agent; and every contractor, sub-contractor, architect, builder, or other person, having charge of any mining, or of the construction, alteration, addition to, or repair, either in whole or in part, of any building or other improvement as aforesaid, shall be held to be the agent of the owner, for purposes of this chapter. In case of a contract for the work, between the reputed owner and his contractor, the lien shall extend to the entire contract price, and such contract shall operate as a lien in favor of all persons, except the contractor, to the extent of the whole contract price; and after all such liens are satisfied, then as a lien for any balance of the coix.ract price in favor of the contractor. All such contracts shall bo in writing when the amount agreed to be paid thereunder exceeds one thousand dollars, and shall bo subscribed by the parties thereto, and the said contract, or a memorandum thereof, setting forth the names of all the parties to the contract, a description of the property to be affected thereby, together with a statement of the general character of the work to be done, the total amount to be paid thereunder, and the amounts of all partial payments, together with the times when such payments shall be due and payable, shall, before the work is commenced, be tiled in the office of the County Recorder of the county, or city and county, where the property is situated, who shall receive one dollar for such filing; otherwise they shall be wholly void, and no recovery shall be had thereon by either party thereto; and in such case, the lab(jr done and materials furnished by all persons aforesaid, except the contractor, shall be deemed to have been done and furnisheil at the personal instance of the owner, and they shall huvo n lien for the value thereof Chap. 19] California. n No part of the contract price shall, by the terms of any such contract, be made payable, nor shall the same or any part thereof be paid in advance of the commencement of the work, liut the contract price shall, by the terms of the contract, be made payable in installments at specified times after the commencement of the work, or on the completion of specified portions of the work, or on the completion of the whole work; provided, that at least twenty-five per cent, of the whole con- tract price shall be made payable at least thirty-five days after the final completion of the contract. No payment made prior to the time when the same is due, under the terms and con- ditions of the contract, shall be valid for the purpose of defeat- ing, diminishing, or discharging any lien in favor of any person, except the contractor, but as to such liens, such payment shall be deemed as if no^ made, and shall be applicable to such liens, notwithstanding that the contractor to whom it was paid may thereafter abandon his contract, or be or become indebted to the reputed owner in any amount for damages or otherwise, . for non-performance of his contract or otherwise. As to all liens, except that of the contractor, the whole contract price shall be payable in money, and shall not be diminished by any prior or subsequent indebtedness, offset, or counterclaim, in favor of the reputed owner and against the contractor ; no alteration of any such contract shall affect any lien acquired under the provisions of this chapter. In case such contracts and altera- tions thereof do not conform substantially to the provisions of this section, the labor done and materials furnished by all persons except the contractor shall be deemed to have been done and furnished at the personal instance and request of the person who contracted with the contractor, and they shall have a lien for the value thereof. Any of the persons mentioned in section eleven hundred and eighty-three, except the contractor, may at any time give to the reputed owner a written notice that they have performed labor or furnished materials, or both, to the contractor, or other person acting by authority of the reputed owner, or that they have agreed to do so, stating in general terms the kind of labor and materials, and the name of ii I i' I f ii 76 California. [Part .3 the person to or for whom the same was done or furnished, or both, and the amount in value, as near as may be, of that al- ready done or furnished, or both, and of the whole agreed to be done or furnished, or both. Such notice may be given by delivering the same to the reputed owner personally, or by leaving it at his residence or place of business, with some per- son in charge, or by delivering it to his architects, or by leaving it at their residence or place of business, with some person in charge, or by posting it in a conspicuous place upon the mining claim or improvement. No such notice shall be invalid bj- reason of any defect of form, provided it is sufficient to inform the reputed owner of the substantial matters herein provided for, or to put him upon inquiry as to such matters. Upon such notice being given, it shall be the duty of the person who con- tracted with the contractor to, and he shall, withhold from his contractor, or from any other person, acting under such reputed owner, and to whom by said notice the said labor or materials, or both, have been furnished, or agreed to be furnished, suffi- cient money due, or that may become due to such contractor, or other person, to answer such claim and any lien that maj' be filed therefor for record under this chapter, including counsel fees not exceeding one hundred dollars in each case, besides reasonable costs provided for. Every original contractor, within sixty days after the com- pletion of his contract, and every person, .save the original contractor, 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, addition to, or repair thereof, or the performance of any labor in a min- ing claim, file for record with the County Recorder of the county in which such property, 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 he was employed, or to whom he furnished the materials, with a statement of the terms, time given, and conditions of his con- tract, and also a description of the property to be charged with Chap. 19] California. W the lien sufficient for identification, which claim must be veri- fi jd by the oath of himself, or of some other person ; any trivial imperfection in the said work, or in the construction of any building, improvement, or structure, or of the alteration, addi- tion to, or repair thereof, shall not be deemed such a lack of completion as to prevent the filing of any lien ; and in case of contracts, the occupation or use of the building, improvement, or structure by the owner, or his representative, or the ac- ceptance by said owner or his agent of said building, improve- ment, or structure, shall be deemed conclusive evidence of completion ; and cessation from labor for thirty days upon any unfinished contract or upon any unfinished building, improve- ment, or structure, or the alteration, addition to, or repair thereof, shall be deemed equivalent to a completion thereof for all the purposes herein. The land upon which any building, improvement, or structure is constructed, together with a convenient space about the same, or so much as may be required for the convenient use and occupation thereof, to be determined by the court on rendering judgment, is also subject to the lien, if, at the conmiencement of the work, or of the furnishing of the materials for the same, the land belonged to the person who caused said building, improvement, orstructure to be constructed, altered, or repaired; but if such person owned less than a fee simple estate in such land, then only his interest therein is subject to such lien. Improvements constructed upon any land with the knowledge of the owner are held to be constructed at the instance of the ownur of the lands, unless he, within three days after he shall have received knowledge of the construction, alteration, or re- pair, or intended construction, alteration, or repair, give notice that -he will not be responsible for the same, by posting a notice in writing on the premises in a conspicuous place to that effect. Such liens are preferred to any lien, mortgage or other incumbrance which may have attached sub.sequent to the time when the building, improvement or structure was commenced 11 wt \ •■ I i ; 1 ^ j ii^ i * ^lil 11 1 '' \ i i ', iiffi 1 \ j 1 iffli 1 1 1 ■ 1 ( 1 1 1 1 1 7s California. [Part ti work done, or materials wore coinuiencod to be furnished ; also, to any lien, mortgage or other incumbrance, of which the lien- holder had no notice, and which was unrecorded at the time the building, improvement or structure was commenced, work done, or the niaterials were commenced to be furnished. The lien does not bind any building, minin ' claim, improve- ment or structure, for a longer period than ninety days after the same has been filed, unless proceedings be commenced in si proper Court within that time to enforce the same ; or if a credit be given, tlien ninety days after the expiration of sucli credit; but no lien continues in force for a longer time than two years from the time the work is completed, by an agreement to give credit. In every case in which different liens are asserted against any property, the Court in the judgment must declare the rank of each lien or class of liens, which shall be in the following order, viz.: First — All persons performing manual labor in, on or about the same. Second — Persons furni.shing materials. Third — Sub-contractors. Fourth — Original contractors. And the proceeds of the sale of the property must be applied to each lien, or class of liens, in the order of its rank ; and whenever, in, the sale of the property subject to the lien, there is a deficiency of proceeds, judgment may be docketed for tlie 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 must also allow as part of the costs the money paid for filing and recording the lien, and reasonable attorney's fees in the Superior and Supreme Courts, such costs and attorney's fees to be allowed to each lien claim- ant, whose lien is established, whether he be plaintiflf or de- fendant, or whether they all join in one action, or separate actions are consolidated. Whenever materials shall have been fur- Chap. 1!)] California. n nishu'' for use in the construction, alteration, or repair of any l)uililing or other iniprovement, such materials shall not be subject to attachment, execution, or other hjgal process, to en- force any debt due by the purchaser of such materials, except a debt due for the purchase money thereof, so long as in good faith the same are about to be applied to th«. ■ nstruction, alteration, or repair of such building, mining clai;>j. or other improvement. In a judgment enforcing a mechanics' lien > per.su.ial judg- ment cannr>tbe rendered against those defendants against whom no persoiiui claim ia established. CHAPTER XX. LIENS FOR SALARIES AND WAGES AND OTHER LIENS. In all assignments of property, made bj- any person to trus- tees 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, servants, clerks or laborers employed by such person, to the amount of one hundred dollars each, and for service rendered within sixty days previously, are preferred claims, and must be paid by such trustees or assignees before any other creditor or creditors of the assignor. In case of the death of any employer, the wages of each miner, mechanic, salesman, clerk, servant and laborer, for ser- vices rendered within the sixty days next preceding the death of the employer, not exceeding one hundred ^^ollars, 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, and nmst be paid before other claims against the estate of the deceased person. California. [Part 3 In cases of execution, attachments, and writs of a similar nature, 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 executing either of such writs, at any time before the actual sale of the property levied upon ; and unless such claim is disputed 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 preceeding 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 recovery thereof, and must pros- ecute his action with due diligence, or be forever barred from any claim of priority of payment 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 such action ; and in case judgment be had for the claim, or any part thereof, carrying costs, the costs taxable therein shall like- wise be a preferred claim, with the same rank as the original claim. The debtor or creditor intending to dispute a claim pre- .sented shall, within ten days after receiving notice of such claim, serve upon the claimant and the officer executing the writ, a statement in writing, verified by the oath of the debtor or the person disputing such claim, setting forth that no part of said claim, or not exceeding a sum specified, is justly due from the debtor to the claimant, for services rendered within the sixty days next preceding the levy of the writ. If tlu' claimant bring suit on a claim which is cMsputed in part only, and fail to recover a sum exceeding that which was admitted to be due, he shall not recover costs, but costs shall be adjudged against him. I 1 ■St I Chap. 20] California. m other Liens. One who sells personal property has a special lien thereon, dependent on possession, for its price, if in his possession, when the price becomes payable. Every person who, while lawfully in possession of an article of personal property, renders any service to the owner thereof by labor or skill employed for the protection, improvement, safekeeping, or carriage thereof, has a special lien thereon, dependent on possession for the compensation, if any, which is due to him from the ownei for such service ; and livery or boarding or feed-stable proprietors, and persons pasturing horses and stock, have liens, dependent on possession, for their compensation in caring for, boarding, or pasturing such horses or stock. Any person who makes, alters, or repairs any article of personal 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 lion, dependent on possession, upon all property in his hands belonging to a customer, for the bal- ance due to him from such customer in the course of the business. Hotel men, boarding-house and lodging-house keepers, have a lien on baggage and other property of their guests, dependent on possession, for board, lodging and room rent. A person who labors at cutting, hauling, rafting, or driving logs or lumber, or who performs any labor in o^ .:*bout a log- ging-camp, necessary for the getting out or transportation of logs or lumber, shall have a lien thereon for the amount due for his personal services, vvhich shall take precedence of all other claims, to continue for thirty days after the logs or lumber i.i. ^ I, P !| !^:|i; 82 California. [Part 3 arrive at the place of destination, for sale or manufacture ; suit to foreclose the same shall be commenced in the proper Court within twenty-five da3's from the time the same is filed. CHAPTER XXI. ARBITRATIONS. Persons capable of contracting may submit to arbitration any contx'over.sy which might be the subject of a civil action between them, except a question of title to real property in fee or for life. The submission to arbitration must be in writing, and may be made to one or more persons. CHAPTER XXn. HOMESTEADS. 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 exceeding one thousand dollars in value, by any other person. The phrase " head of a family," includes within its meaninn': 1. The husband, when the claimant is a married person. 2. Every person 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. Chap. 22] California. 83 (2.) A minor brother or sister, or the minor child of a deceased brother or sister. (3.) A father, mother, grandfather, or grandmother. (4.) The father, mother, grandfather, or grandmother of a deceased husband or wife. (.5.) An unmarried .sister, or any other of the relatives mentioned who have attained the age of majority, and are unable to support themselves. The declaration of homestead must be executed, acknowl- edged, 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 subject to execution or forced sale, in .satisfaction of judgments obtained : 1. Before the delaration of homestead was filed for record, and which constitute liens upon the premises. 2. On debts secured by mechanics, contractors, sub-con- tractors, artisins, architects, builders, laborers of every class, material men's or vendors' liens upon the premises. .'}. On debts secured by mortgages upon the premises, exe- cuted and acknowledged by the husband and wife, or an unmarried claimant. 4. On debts secured by mortgages upon the premises, exe- cuted and recorded before the declaration of homestead was filed for record. The homestead of a married person cannot be conveyed or encumbered, unless the instrument is executed and acknowl- edo'ed by both hu.sband and wife. If the homestead exceed in value the amount of the home- stead exemption, the excess may be reached on execution, but the property must be first appraised, upon application to the Superior Judge. The homestead may be abandoned by filing in the office where the declaration is filed, a declaration of abandonment duly executed. 84 California, [Part 3 CHAPTER XXIII. CORPORATIONS. Corporations are either public or private. Public corpor- ations are formed or organized for the government of a portion of the State; all other corporations 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 themselves. The owners of shares in a coporation which has a capital stock are called stockholders. If a corporation has no capital stock, the corporators and their successors are called members. Each stockholder of a corporation is individually and per- sonally liable for such portions of its debts and liabilities as the amount of stock or shares owned by him bears to tlie whole of the subscribed capital stock or shares of the corpor- ation, and for a like proportion only of each debt or claim against the corporation. Any creditor of the corporation may institute joint or several actions against any of its stockholders, for the proportion of his claim payable by each, and in such action the Court nmst ascertain the proportion of the claim or debt for which each defendant is liable, and a several judgment must be rendered against each in conformity therewith. If any stockhoMer pays his proportion of any debt due from the corporation, incurred while he was such stockholder, he is re- lieved from any further personal liability for such debt; and if an action has been brought against him upon such debt, it shall be dismissed, as to him, upon his paying the costs, or such pro- portion 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 Chap. 23] California. 85 liability was incurred; and such liability is not released by any subsequent transfer of stock. The term stockholder, as used in this section, shall apply not only to such persons as appear by the books of the corporation to be such, but also to every equitable 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 provis- ions of this section, by reason of any such investment, nor shall the person for whose benefit the investment is made be responsible in respect to the stock until he becomes competent and able to control the same, but the responsibility of the guar- dian or trustee making the investment shall continue until that period. Stock held as collateral security, 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 proportion of the debts or liabilities of the corporation; hut the pledgor, or person, or estate represented, is to be deemed the stockholder, as respects such liability. In corporations having no capital stock, each member is individually and per- son>illy liable for his pioportion of its debts and liabilities, and suuuar actions may bo brought against him, either alone or jointly with other members, to enforce such liability, as by this section may be brought against one or more stockholders, 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 umler the Constitution and laws of this State. The directors or trustees of corporations and joint-stock associations shall be jointly and severally liable to the creditors and stockholders for all moneys embezzled or misappropriated ? m 86 California. [Part 3 by the officers of such corporation or joint-stock associations during the term of office of such director or trustee. Contracts to relieve directors or trustees from this liability are null and void. A corporation may be dissolved by the Superior Court of the county where its principle place of business is situated, ur on its voluntary application for that purpose. CHAPTER XXIV. MODE OF TAKING TESTIMONY OP 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 without 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 him 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 testimony being heard by the jui'y 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 different mode. Affidavits are used to verify pleadings, or to prove service of papers, and such like. Testimony of witnesses out of this State may be taken by deposition at any time after service of summons, or the appearance of the defendant. Testimony of witnesses in this State may be taken by de- position, in any action, at any time after the service of the Chap. 24] California. 87 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 testimony is to be used. 3. When a 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. 5. When the testimony is required upon a motion, or in any other case where the oral examination of the witness is not required. 6. When the witness is the only one who can establish facts, or a fact material to the issue ; provided, that the deposi- tion 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 Court, or a Judge thereof, 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 Commissioner, selected by the Court or Judge issuing it. If issued to any country out of the United States, it may be directed to a Minister, Embassador, Consul, Vice-Consul, or Consular Agent of the United States in such country, or to any person agreed upon by the parties. 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 affi- iSlMi 88 California. [Part 3 davit, showing that it is a case wherein deposition may be used. Such notice must be at least five days, adding also one day for every twenty-five miles of the distance of the place of exami- nation from the residence of the person to whom the notice is given, unless for a cause shown, a Judge, by order, prescribes 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 entiy of the pro- ceedings in a Court of Justice, or of the official act of a judicial officer, 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 thereof, certified by the Clerk or other person having the legal custody thereof. That of a sister State may be proved by the attesta- tion 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 Magistrate, that the attestation is in due form. A judicial record of a foreign country may be proved by the attestation of the Clerk, with the seal of the Court annexed, if there be a Cle^'k 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 making the attestation is the Clerk of the Court or the legal keeper of the recoixl ; and in either case, that the signature of such person is genuine, and that the attestation is in due form. The signature of the chief Justice or presiding Magistrate must be authenticated by the certificate of the Min- ister or Embassador, or a Consul, Vice-Consul, or Consular Agent of the United States in such foreign country. 'art 3 Chap. 25] California. 89 3 used. lay for Bxami- otice is •ribes a ' of the the pro- i judicial ites, may \f thereof, I custody e attesta- f there be ief Judge form. )roved by annexed, the record, together Magistrate, ; tlie Court e, that the testation is presiding of the Min- Consulav A copy of the judicial record of a foreign country is also 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, 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, or Judge of a Superior Court. The proof or acknowledgment of an instrument may be made in this State within the city, city and county, county or district, for which the officer was elected or appointed, before either : A Clerk of a Court of Record ; or, A Court Commissioner; or, A County Recorder; or, A Notary Public; or, 0. 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 juri.sdiction of the officer, before either : 1. A Justice, Judge, or Clerk of any Court of Record of the United States; or, 2. A Justice, Judge, or Clerk of any Court of Record of any State ; or. 1. 2. 3. 4. 90 California. [Part 3 |T^ 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 acknowledff- ment is made, authorized by its laws, to take such proof (n- acknowledgment. A proof or acknowledgment of an instrument may be made without the United States, before either: 1. 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 acknowledg- ment is made; or, 3. A Judge of a Court of Record of the county where the proof or acknowledgment is made ; or, 4. Commissioners appointed for such purposes by the Governor 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, or has satisfactory evidence on the oath or affirmation of a credible witness, that the person making such acknowledgment is the individual who is de- scribed in and who executed the instrument; or if executed by a corporation, that the person making such acknowledgment is the President or Secretary of such corporation. The acknowledgment of a married woman to an instrument purporting to be executed by her must not be taken, unless she is 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. >art 3 } State wledg- •oof ov te maJe j of the f where ', United owleclg- y where by the d by law may be : I Chap. 26] State of- California. General Form of Certificate. 91 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 v;ithin instrument, and acknowledged to me that he [or they] executed the same. Form of Certificate of Acknowledgment by Married Women. State of- CouNTY of On this day of iss. -, in the year before me, [here insert the name and quality of the officer] personally ap- peared , known to me [or proved to me on the oath of ] to be the person whose name is subscribed to the within instrument, described as a married woman; and upon an exam- ination without the hearing of her husband, I made x' acquainted with the contents of the instrument; and thereupon she acknowledged to me that she executed the same, and that she does not wish to retract such execution. Form of Certificate of Acknowledgment by a Corporation. State of "| County of On this day of- J ss. -, in the year before me, [here insert the name and quality of the officer] personally ap- peared , known to me [or proved to me on the oath of -] to be the President [or the Secretary] of the corpora- tion that executed the written instrument, and acknowledged to me that such corporation executed the same. t :i t! i H. , **:' i 02 California. [Part .'i Form of Certificate of Acknowledgment by Attorney in Fact. State of- COUNTY OF- On this — ss. ■ day of in th e year before mo ]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 whoso name is subscribed to the within instrument as the attorney in fact of , and acknowledged to me that he subscribed the name thereto, as principal, and his own name as attorney in fact. Officers mustauthenticate 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 country where the acknowledgment or proof is taken, or bj' 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 thai 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 handwrit- ing, and believes that the signature to the orignal certificate is genuine. CHAPTER XXVII. PARTNERSHIPS. Partnership is the association of two or more persons for the purpose of carrying on business together, and dividing its profits between them. Every partnership that is not formed in accordance with the law concerning mining or special partnerships, and evory Chap. 27] California. 93 special partner.ship, so far only as the general partners are concerned, is a general partnership. Every general partner is agent for the partnership in the transaction of its business, and has authority to do whatever is necessary to carry on such business in the ordinary manner, and for this purpose may bind his co-partners by an agreement in writing. A partner, as such, has not authority to do any of the fol- lowing acts, unless his co-partners have wholly abandoned the business 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. '^o dispose of the good will 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. G. To submit a partnership claim to arbitration. 7. To do any act which is not necessary to carry on such l)usiness in the ordinary manner. Every general partner is liable to third persons for all the obligations of the partnership, jointly with his co-partners. Any one permitting 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. The liability of a general partner for the acts of his co-part- ners continues, even after a dissolution of the co-partnership, in favor of persons 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 such dissolution has been advertised in a news- paper published in every county where the partnership, at the time of its dissolution, had a place of business, if a newspaper is there published, to the extent in either case to which such PI !■; ii fl m California. [Part 3 persons part with value in good faith, and in the belief that such partner is still a member of the firm. After the dissolution of partnership, any general partner may act in liquidation of its affairs, unless the liquidation is committed, 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, compromise, or release any debts due to the partnership, pay or compromise any claims against it, and dispose 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 thereon 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 such persons interested as partners in such business, nmst file with the Clerk of the county in which its principal place of business is situated, a certificate stating the names m 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, without filing the certificate or making the publication hereto- fore mentioned, use in this State the partnership 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 partners, and acknowledged before some officer authorized to take the acknowledgment of conveyances of real property. Where the partnership is formed after the first of July, eighteen Chap. 27] California. hundred and seventy-four, the certificate must be filed and the publication 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 lias been formed prior to the first of July, eighteen hundred and seventy-four, the certi- ficate 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 transact- ing business in this State under a fictitious name, or a designa- tion 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 State)., a new certificate must bo filed and a new publication made, as is required 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 certi- ficate and made the publication required. Copies of the entries of a County C.Vrk, when cetcified by him, and affidavits of publication made by the printer, publisher, or chief clerk of a newspaper, are presumptive evidence of the facts therein stated. Special partnerships are formed by filing a certificate with the County Clerk and Recorder, severally signed, stating : 1. The name under which partnership is to be conducted- 2. The general nature of the business intended to be transacted. 3. The names of all the partners, and their residence, specifying which are general and which are special partners. 4. The amount of capital which each special partner has contributed to the capital 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. ip •vi ;!! 1 !■ li^ iSl ;■ 'I |k 1 1 ' ' '- iiiii i:! Mi ■; .'If i ■ i III m\ ' :ij 1 ll 1. J '1 1 - j- ;■ ■! ■' r 5" ,■:!' ,1 - ' ij 1 : : 1 1 11 li 96 California. [Part 3 The certificate mentioned must be puolished in a newspaper in the county, once a week for four successive weeks. The general partners in a special partnership are liable to the same extent as partners in a general partnership. The contribution of a special partner to the capital of the firm, and the increase thereof, is liable for its debts, but he is not other- wise liable therefor. CHAPTER XXVIII. MARRIED WOMEN. All property of the wife owned by '^er before marriage, and that acquired afterward by gift, bequjst, devise, or descent with the rents, issues, and profits thereof, is her separate prop- erty. All property owned by the husband before marriage and that acquired afterward by gift, beqvest, devise, or descent with the rents, issues, and profits thereof, is his separate prop- erty. All other property acquired after marriage, by either husband or wife, or both, is community property. The earn- ings 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 lier 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 bo- 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 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 community property, with the like absolute power of disposi- c * \ .ill Chap. 28] California. 97 tion (other than testamentary) as he has of his separate estate. No estate in dower is allotted to ti^e wife upon the death of her husband. If the liusband neglects to make adecjuate provision for the support of his wife, any other person may, in ^ood faith, supply her with articles necessary for her support, and recover the reasonable value thereof from the husband; except that a husband abandoned hy his wife is not liable for her support until she otiers to return, unless she was justified hy his mis- conduct, 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 judg- ment of the Superior 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 county where the business is to be carried on. A sole trader is entitled to carry on the business specified, in her name, and the property, revenues, moneys and credits so l)y her invested, and the profits thereof, belonging exclusively to her, and are not liable for any debts of her husband. The husband of a sole trader is not liable for any debts contracted by her in the course of her sole trader's business, unless con- tracted upon his written consent. CHAPTER XXIX. MINORS. 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 iige of eighteen make a contract relating to real property, oi' any interest therein, or relating to any personal property not in his immediate possession or control. A minor may nuxke any other contract in thes ame manner as an adult, subject to 98 California. [Part 3 I . ( : , I I i'l -. T^ 1 i i' his power of disaffirmness. A minor cannot disaffirm a con- tract, otherwise valid, to pay the reasonable value of things necessary for his support, or that of his family entered 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 obli- gation, otherwise valid, entered into by him under the express authority or direction 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 be- fore his majority, or within a reasonable time afterward ; 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 circumstance.^ 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 guaixlian must conduct the same. 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 insol- vency of the buj'er or consignee becoming known to him after parting with the property, stop it while on its transit to the buyer or consignee, and resume possession thereof. A person is insolvent, within the meaning of the above term, when he ceases to pay his debts in the manner usual with persons of hi> business, or when he declares his inability or unwillingness to do so. The transit of property is at an end when it comes into Chap. 30] California. 99 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 effected only by notice to the carrier or depositary of the property, or bj' 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 consignor. CHAPTER XXXI. BILLS OF LADING. A bill of lading is an instrument in writing, signed by a carrier, or his agent, describing the freight so as to identify it, stating the name of the consignor, the terms of the contract for carriage, and agreeing or directing that the freight be delivered to the order or assigns of a specified person, at a specified place. The title to the freight which the first holder of a bill of lading had when he received it, passes to every subsequent in- dorsee 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 diti'eront 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 M l!i: ? . i i1- ; ri ' 100 California. [Part :i 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 yeai*. Interest is payable on judgments recovered in the Courts of this State at the rate of seven per cent, per annum, and mi j^reater 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 lie 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. CHAPTER XXXIII. COMMON CARRIERS. Unless the consignor accompanies the freight, and retains exclusive control thereof, an inland common carrier of property is liable, from the time that he accepts until he relieves him- self from liability, for the lo.ss or injury thereof, except : 1. An inherent defect, vice, or weakness, or a spontaneous action of the property itself. 2. The act of a pfiblic enemy of the United States, or of this State. 3 The act of the law ; or, 4. An iresistible 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 [Part 8 m which ( the use nation nf ind sixty \e Courts n, and no ed in any ! any rate i terms of >y may, in ired to l»e Dunctually thereafter Chap. 33] California. 101 and retains ■ of property relieves hini- ccept : , .spontaneous States, ov of if hi.s ordinary E 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 and injury caused by the perils of the sea or fire. 4. 5. G. 7. 8. CHAPTER XXXIV. MORTGAGES OP PERSONAL PROPERTY. Mortgages may be made upon: 1. Locomotives, engines, and other stock of a railroad. 2. Steamboat machinery, the machinery used by machin- ists, foundrymen, and mechanics. 8. Steam-engines and boilers. • Mining machinery. Printing presses and material. , ■ Professional libraries. Instruments of surveyor.s, physicians, or dentists. Upholstery and furniture used in hotels, lodging or boarding 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 photograph gallery. 12. The machinery, casks, pipes, tubes, and utensils used in the manufacture or storage of wine, fruit brandy, fruit syruj^ >, or sugar; also, wines, fruit brandy, fruit syrup, or sugar, with Ihe cooperage in which the same is contained. 13. Pianos and organs. Every person who, after mortgaging any of the property above mentioned, except locomotives, engines, rolling stock of a railroad, steamboat machinery in actual use, and vessels, voluntarily removes or permits the removal of the mortgaged !« : H 102 California. [Part 3 property from the place where it was situated at the time it was mortgaged, without the written consent of the mortgagee, with intent to deprive the mortgagee of his interest therein, is guilty of a misdemeanor. A mortgage of personal property is void as against creditors of the mortgagor, and subsequent purchasers and incum- brancers 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. It is acknowledged or proved, certified and recorded. A mortgage of personal property must be recorded in tlic 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 onoo recorded may be Yecorded in any other county, and when so recorded, the record thereof has the same force and effect as thouffh it was of the orijrinal mortfraffe. "o^o"- When property mortgaged is thereafter by the mortgan'oi" removed from the county in which it is situatetl, it is, except as between the parties to the mortgage, exempt from the operation thereof, unless either: 1. The mortgagee, within thirty days after such removal, causes the mortgage to be recorded in the county to which the property has been removed; or, 2. The mortgagee, within thirty days after such renunal, 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 wjiich it was situated at the time it was mortgaged, the mortgagee may take pos.session and dispose of the property as a pledge for the pay- ment of the debt, though the debt is not due. Personal property mortgaged may be taken under attach- ment or execution issued at the suit of a creditor. Before the [Part 3 Chap. 34] California. 103 time it rtgagee, lerein. is jreclitors incum- nless: Q parties ly clesif,'n orded. ?.d in the the mort- proporty I. lerty once I when so I effect us property is so taken the officer must pay or 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 i.s sold under process, the officer must apply the proceeds of sale as follow-s : 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 I'ight of redemption by 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 com- petent Court. mortga;j;oi- :, is, except from tho ch removal, ) which tho ch removal. n the next the removal k'Juch it was ;cc may take for the pay- mder attach- Before the CHAPTER XXXV. PLEDGE. A pledge is a deposit of personal property by way of secur- ity for the performance of another act. When a debtor has obtained credit, or an extension of time, by a fradulent 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 actually due. When performance of the act for which a pledge is given is due, in whole or in part, the pledgee may collect what is due to him by a sale of the property pledged. Before property pledged can be sold, and after performance of the act for which it is security is due, the pledgee must 104 California. [Part 3 I I' demand performance thereof from the debtor, if the debtor can be found. A pledgee must give actual notice to the pledgor of tlic time and place at which the property pledged will be sold, at such a reasonable time beibre the sale as will enable the pledgor to attend. The sale by a pledgee of property pledged must be made 1 ly public auction, in the manner and upon the notice to the pub- Mc usual at the place of sale, in respect to auction sales of sim- ilar 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 pro- vided, a pledgee may foreclose the right of redemption by !i Judicial sale, under the directions of a competent Court; and in that case maj' be authorized by the Court to purchase at the sale. in!'- CHAPTER XXXVI. GUARANTY AND SURETYSHIP. A guarantj'' is a promise to answer for the debt, default, or miscarriage of another person. Where a guaranty is entered into at tlie same time witli tlie original obligation, or with the acceptance of the latter by the guarantee, and forms with that obligation a part of the consid- eration to him, no other considei-ation need exist. In all other cases there m.ust be a consideration distinct from that of tlie original obligation. Part :i jtor can • of tlu' sold, at pledgor raadelty the pul'- s of siiii- price. [1 to him, jorations ; when it he pledge. property ime with the atterby the f the consid- Inall other that of the Chap. 36] California. 105 Except as Iiercinafter described, a guaranty must be in writing, and signed by the guarantor; but the writing need not express 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 property 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. ± Where the creditor parts with value, or enters into an obligation in consideration of the obligation in respect to which the promise is made, in terms or under circumstances such as to render the party making the promise the pi'incipal debtor, and tlie 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 now promise as a substitute therefor; or upon the consideration tliat the part}' receiving it releases the property from a levy, or his person from imprisonment, under an execution on a judgment obtained 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 merchandise and guarantee the sale. 0. Where the holder of an instrument for the payment of money, upon which a third person is or may become liable to him, transfers it in payment of a jrecedent 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 indemnified by tlic principal, if by any act of the creditor with- 106 California. [Part :} out the consent of the guarantor the original obligation of the principal is altered in any respect, or the remedies or rights of the creditor against the principal in respect thereto are in any way impaired 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 thinl 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 rem- edies of the surety, or inconsistent with his rights, or which lessens his security; or, 3. To the extent to which he i.s 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 principal, or to pursue any other remedy in his power, which the surety cannot himself piusue, and which would lighten his burden; and if in such ease .;he creditor neglects to do so the surety is exonerated it:* Tae extent to which he is therely prejudiced. A surety may compel his principal to perform the obliga- tion when due. A surety, upon satisfying the obligation of the principal, is entitled to enforce every remedy which the creditor then luis against the principal, to the extent of reimbursing what he has expended, and also to require all his co-sureties to contrib- ute thereto, without regard to the order of time in which they become such. Whenever property of a surety is hypothecated with prop- erty of the principal, the surety is entitled to have the piop- erty of the principal first applied to the discharge of the obligation. urt :i »f tlu« its of n any or tin* tie t'»ir b thirtl Chap. SG] California, Letter of Credit. 107 A letter of credit is a written instrument, addressed by one person to another, recjuostinj,' the latter to give credit to the person in whose favor it is drawn. The writer of the letter of credit is, upon the default of the ilebtor, liable to those who gave credit in compliance with its terms. { act of ,he rom- V which jmissiDii ; surety, ainst tl\e ev, which d lighten to do so is therohy lie obliu'ii- rincipal. is : then hns ft what he to contvih- vhich they CHAPTER XXXVn. 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 subscribe*! 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 the sale, pays a part of the price. The foregoing provisions do not effect an agreement to man- ufacture a thing from materials furnished by the manufac- turer or by another person. No agi'eement for the sale of real property, or of an interest therein, is valid unless tne same, or some note or memoran- dum thereof, be in writing, and subscribed by the party to bo charged, or his agent thereunto authorized in writing. If a buyer of personal property does not pay for it accord- ing 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. m 108 California. [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 siifficient cause of consideration. A written instrument i,s presumptive evidence of con- sideration. Contracts are either expressed 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 .^ome note or memorandum thereof, be in writing, and sub- scribed by the party to be charged, or by his agent. 1. An agreement that, by its terms, is not to be perforineil within a year from the making thereof. 2. A special promise to answer for the debts, default or miscarriage of another, except in the case mentioned in Chap- ter XXXVI. 3. An agreement made upon consideration of niarriaui' other ilian a mutual promise to marry. 4. An agreement for the sale of goods, chattels, or thino:- in action, at a price not less than two hundred dollars, unksi the buyer accept or receive part of such goods 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 Jiuction, an entry by the auctioneer in his sale be: at the time of the sale, of the kind of property sold, the term i^ir '« i- xxi 3 Chap. 88] California. 109 certain ,t there ot con- of sale, the price, and the names of the purchaser and person on whose account the sale is made, is a sufficient memorandum. 5. An agreemen* lor 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 especially required by statute to be in writing. irc stated terras of same, or and sub- performctl default or \ in Chap- o{ marriage IS, or thiu'j )\lars, unless I chattels, or ction, or pay when a sale lis sale br.: \d, the term CHAPTER XXXIX. NEGOTIABLE INSTRUMENTS. A bill of exchange is an instrument negotiable in form by which one, who is called the drawer, requests another, called tlie drawee, to pay a specified sum of money. A bill of exchange is payable: 1. At the place wheve, 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 I'osidcnce 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 excased, 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 rea.sonable dili- gence it is practical )le: 1. The bill must be presented by the holder or liis agent. no California. [Part :] ; 1 :'!i^ I" !■ -I 2. It must be presented on a business day, and within reasonable hours. 3. It must be presented to the drawee, or if he be absent fi'om his place of residence or business, to some person having' charge thererf, or employed therein; and, 4. The drawee, on such presentment, may postpone his acceptance or refusal until the next day. If the drawee have no place of business, or if his place of business or residence can- not, with reasonable diligence, be ascertained, presentment i'ov acceptance is excused, and the bill may be protested for n r acceptance. When a bill of exchange is payable at a specified time after sight, the drawer and endorsers are exonerated if it is not pre- sented for acceptance within ten days ^after the time which would suflSce, with ordinary diligence, to forward it for accept- unco, unless presentment is excused. Am acceptance of a bill must be niade 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 exchange, is a sufficient acceptance theroof, in favor of every person who, upon tlie faith thereof, has ti. en 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 1ms been duly protested, it may be accepted or paid bj'- any person for the honor of any party thereto. If a bill of exchange, payable at siglit or on demand, with- out interest, is not duly presented for payment within ten days after the time in wiiich it could, with reasonable diligence, be transmitted to the proper place for presentment, the drawer and indorsers are exonerated unless such presentment i'^ excused. The presentment of a bill of exchange for acceptance is excused if the drawee has not capacity to accept it. Delay in the presentment of a bil! of 'ixchanj;*' for accept- ance is excused wlion ''imsed by circumstances ov'» vhicli tlio owner has no control. Chap. 39] California. Ill f^ Presentment of a bill of exchange for acceptance or pay- ment, and notice of its dishonor, are excused as to the drawer, it' he forbids the drawee to accept, or the acceptor to pay the bill; or if, at the time of drawing, he had no rea.son to believe that the drawee would accept or pay the same. An inland bill of exchange is one dri\wn and payable with- in this State. All others are foreign. 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 acceptance, and a protest for non-payment in the city or town in which it is presented for payment. One who pays a foreign bill for honor must declare, oefore payment, in the presence of a person authorized to maKc pro- test, for whose honor ho pays the same, in order to entitle him to reimbursement. Damaores on foreign bills of exchanoje are allowed as here- irnticr prescribed, as a full compensation for interest accrued jfove notice of dishonor, re-exchange, expenses, and all other dam ^rps, in favor of holders for value only, upon bills of f\rh-'-.ge drawn or negotiated within the State, and protested i^r .;ofi-acceptance or non-payment. Damages art 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 one hundred dollars of the principal sum specified in <>l0^i!l. 'i If drawn upon any person in any of the United States ea.st uf the Rocky Mountains, ten dollars upon each one Imndred dollars of the principal sum .specified in the bill. ri \ m 112 California. [Part 3 4. If drawn upon any person in any place in a foreign country, fifteen dollars upon each one hundred dollars of the principal sum specified in the bill. From the time of notice of dishonor and demand of pay- ment, lawful interest must be allowed upon the aggregate amount of the principal sum specified in the bill, and the dam- ages abovt J !<"■' med. A promi-. note is an instrument negotiable in form, "Avhereby the sim he acquired it. The want of consideration for the undertaking of a maker, acceptor, or indorser of a negotiable instrument, does not exon- erate him from liability thereon to an indorsee in good faith for a consideration. It i.s not necessary to make a demand of payment upon the principal (lel)tor in a negotiable instrument in order to charge Wm; but if the instrument is, by its terms, payable at a speci- fied place, and he is able and willing to pay it there at nmtur- ity, such ability and willingness are equivalent to an otter of payment on his part. L /J f * rim 114 Califorxia. [Part 3 Presentment of a negotiable instrument . ' 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 instrument 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 must be presented to some other person having charge thereof, or emploj^ed therein, if one can be found there. 3. An instrument which specifies a place for its payment must be presented there ; and if the place specified includes more 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 payment must be presented at the place of residence or busi- ness of the principal debtor, or wherever he may be found, at the option of the presentor, and, 5. The iiiotrument must be presented upon the day of its maturity, or if it be payaljle on demand, it may be presented on any daj'. It must be presented within reasonable hoius: and if it be payable at a banking-hou.se, v.'ithin the usual bank- ing-hours of the vicinity; but by the consent 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 it' his place of business or residence cannot, with reasonable dili- gence, be ascertained, presentment for payment is excused. The apparent maturity of a negotiable instrument, payabk at a particular time, is the day on which, by its terms, it be- comes due, or when that is a holiday, the next business day. A bill of exchange, payable at a certain time after sight which is not accepted within tendpys after its date, in adlitioii to the time which would suffice, with ordinary diligence, to for- ward it for acceptance, is presumed to have been dishonored. The apparent maturity of a bill of exchange, payable at sifrht or on demand, is: 1. If it bears interest one year after its date ; or. Chap. 39] California. 115 2. If it does not bear interest, teM day.s after its date, in addition to the time which would suffice, with ordinary dili- gence, to forward it 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 dishonored 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. Notice of the dishonor of a negotiable instrument may be given: 1. By a holder thereof; or, 2. By any party to the instrument who might be com- pelled 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 sub- stantially informs the party receiving it that the instrument has been dishonored. A notice of dishonor may be given: 1. By delivering it to the party 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 act- ing for him ; or, . 3. By properly folding the notice, directing it to the party to be charged, at his place of residence, according to the best information that the person giving the notice can obtain, depos- iting it in the Post-office most conveniently accessible from the place where the presentment was made, and paying the post- ajie thereon. l;.j IHi to ffil 1 f^M 1 1 1 1 1 1 ^^|iHB 1 m ^ 116 California. [Part 3 In case of 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 nny member of his family who resided with him at his death ; or if there is none, then it must be mailed at his last place of residence. A notice of dishonor given otherwise then by mail must he given on the day of dishonor, or on the next business day. When given by mail, it must be deposited in the Post-offico 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 whieli the notice should be sent. Every party to a negotiable instrument, receivinj^ notice nf its dishonor, has the like time thereafter to give similar noticu to prior parties as the original holder had after its dishonor, But this additional time is available only to the particular party entitled thereto. A notice of the dishonor of a negotiable instrument, if vali, the assignee may, in his discretion, declare and pay diviriend< to the creditxDrs whose claims have l)een presently! and allowed. No dividend already declared shall be disturbed by reason ot claims being subsequently presented and allowed ; but tln' creditor presenting such claim shall bo entitled to a dividend equal to the per cent already declared and paid before any further dividend is maii' ities. In his petition he shall set forth his place of rcsidenci his inability to pay all his debts in full, his willingness to sm- Chap, ii] California. 125 render all his estate and etFects for the benefit of his creditors, and his desire to obtain a discharge from his debts and liabil- ities, and shall annex thereto a schedule and inventory, and val- uation, in compliance with the provision of this Act. The fil- ing of .said petition shall be an act of insolvency, and there- upon such petitioner shall be adjudged an insolvent debtor. Sec. 3. Schedule, xohat to contain. — Said schedule must contain a full and true statement of all his debts and liabilities, exhibiting to the best of his knowledge and belief to whom said debts or liabilities are due, the place of residence of his creditors, and the sum due to each; the nature of the indebted- ness or demand, whether founded on written security, obliga- tion, contract, or otherwise; the true cause and consi(leration thereof, and the time and place where said indebtedness accrued, and a statement of any exi.sting pledge, lien, mortgage, judg- ment, or other security for the payment of the same. Sec. 4. Inventory. — Said inventory must contain ;iii accur- ate description of all the estate, both real and ] i)nal, of the petitioner, including his homestead, if any, an>i ' property exempt l)y law from execution, and where the .sauio is .situatfd, and all incumbrances thereon. Sec. 5. Apidnvit. — The petition, schedule, and inventor} must be verified by the affidavit of the petitioner annexed thereto, and shall be in form substantially as follows: I, , do solenmly swear that the .schedule and inventory now deliv- ered Ijy 1110 contain a full, perfect, and true discovery of all the estate, real, personal, and mixeil, goods and efiects, 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, and contracts wliereliy any money may hereafter hecoine payable, or any benefit or advantage accrue to me or to I'ly use, or to any other person or persons in trust for me; that 1 have no lands, money, stock, or estate, reversion or expect- ancy besides that set forth in my .schedule and inventory: that I liave in no instance, created or acknowledged a debt for a ;,'reater sum than I honestly and truly owe; that I liave not, II 126 California. [Part 8 It ]>< i. 1: J directly or indirectly, sold, or otherwise disposed of, or con- cealed 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 anj' profit or advantage therefrom, or to defraud or deceive any creditor to whohi I am indebted in any manner. So help me God. Sec". 6. Order of Court. — Upon receiving and filing sueii petition, schedule and inventory, the Court shall make an order declaring the petitioner insolvent, and directing the Sheriff" of the county to take possession of all the estate, real and per- sonal, of the debtor, except such as may be bj'' law exempt from execution, and of all liis deeds, vouchers, books of account and papers, and to keep the same safely until the appointment of an assignee. Said order shall further forbid the payment of any debts, and the delivery of any property belonging to such debtor, to him, or for his use, and the transfer of any pro- perty by him; and shall further appoint a time and place for a meeting of the creditors to prove tiieir debts, and choose one oi- more assignees of the estate, which shall not be less than thirty days after the making of said order, and shall designate a newspaper or newspapers of general circulation in whicli publication thereof shall be made. Upon the granting of said order all proceedings against the said insolvent shall be stayed. Sec 7. PuhliciUion. — A copy of said order shall immedi- ately be publislied by the Clerk of said Court in the newspa- per or newspapers designated therein, as often as the news- paper is printed before the meeting of creditors, and b(> ser\ efl by the Clerk forthwith by United States mail, postage prepaid, or personally, on all creditors named in the schedule. Tin- order of adjudication shall direct the pubHcation thereof in a newspaper published in the county or city and county, in which the petition is filed, if there be one, and if there be hone, in a newspaper published nearest to such county, or city and county; provided, thai no order of iiljudication upon creditors' petition .shall b(> entered, unless there first be deposited with the Clerk, in addition to the usual cost of commencing said pro- Chap. 44] California. 127 ceedings, a sum of money sufficient to defraj' the cost of the publication ordered by the Court, and ten cents for each copy, to be mailed to or served on the creditors, which latter sum is hereby constituted the legal fee of the Clerk for the mailing or service required in this section. 11 Involuntary Insolvency. Sec. 8. An adjudication of insovlency maybe made on the petition of five or more creditors, residents of this State, whose debts or demands accrued in this State, and amount in the aggregate to not less than five hundred dollars; iirovuled, that said creditors, or either of them, have not become creditors by assignment within thirty days prior to the filing of said peti- tion. Such petition must be filed in the Superior Court of the county, or city and county, in which the debtor resides or has his place of business, and must be verified by at least three of the petitioners, setting forth that sucli person is about to do- part from the State with 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 con- ceals or is removing any of his property to avoid its being attached or taken on legal process; or being insolvent has suf- fered his property to remain under attachment or legal pro- cess for four days; or has confes .;d or offered to allow judg- ment in favor of any creditors; or wilfully suffered judgment to be taken against him by default; or has suffered or procured his property to be taken on legal process with intent to give a preference to one or more of his creditors; or has made an assignment, gift, sale, conveyance, or tranfer of his estate, pro- perty, rights, or credits, with intent to delay, defraud or hin- der his creditors; or in contemplation of insolvency has made any payment, gift, grant, .sale, conveyance, or transfer of his estate, property, rights or credits; or has been arrested and held in custodj' by virtue of any civil process of Court founded on any debt or demand, and such process remains in force, and not discharged by payment or otherwise for a period of four mm '4 r: If ril'ir »1 128 California. [Part 3 (lays; or being a merchant or tradesman has stopped or sus- pended, and not resumed payment within a period of forty days after maturity of any written acknowledgment of indebt- edness, unless the party holding such acknowledgment has, in writing, waived the right to proceed under this subdivision ; or being a bank or banker, agent, broker, factor, or commis- sion merchant, has failed for forty days to pay any moneys deposited with or received by him in a fiduciary capacity, upon demand of payment, except savings and loan banks, or associa- tions who loan the money of their stockholders and depositors on real estate, and provide iu their by-laws for the re-payment of such deposits. The petitioners may, from time to time, amend and correct the petition, so that the same shall conform to the facts, by leave of the Court befoi'e which the proceed- ings are pending, but nothing in this section shall be construed to invalidate any loan of actual value, or the security therefor, made in good faith upon security taken upon good faith on the occasion of making of such loan; the said petition shall be accompanied by a bond, with two sureties in the penal sum of at least five hundred dollars, conditioned that if the debtor should not be declaretl an insoh cut, the petitioners will pay all costs and damages, including a reasonable attorney's fee, that the debtor may sustain by reason of the filing of said petition. The Court may, upon motion, direct the filing of an additional bond with different sureties when deemed necessary. Sec, 9. Order Court — Upon the filing of such creditors' petition the Court shall issue an order requiring such debtor to show cause, at a time and place to be fixed by said Court, why he should not be adjudged an insolvent debtor, and at the same time, or thereafter, upon good cause shown therefor, said Court may make an order forbidding the payment of any debts, and the delivery of any property belonging to such debtor to him or for his use, or the transfer of any property by him. Sec. 10. Cojn/ of petition to he served on debtor. — A copy of said petition, with a copy of the order to show cause, shall be served on the debtor in the same manner as is provided Chap. 44] California. 129 ,ide(l by law for the .service of summons in civil actions, but such •service shall be made at least ten days before the time fixed for the hearing; provided, that if for any reason the service is not made, the order may be renewed, and the time and place of hearing changed; or by a supplemental order by the Court; or if such debtor cannot be found, or his place of abode ascer- tained, service .shall be made by publication as is provided in the Code of Civil Procedure for service of suunnons by publication. Sec. 11. Demurrer. — At the time fixed for the hearing of said order to show cause, or such other time as it may be adjourned to, the debtor may demur to the petition for the same causes as is provided for demurrer in other cases by the Code of Civil Procedure. [See elsewhere.] If the de".!'irrer be overruled, the debtor shall have ten days thereaftc. in which to answer the petition. If the debtor answer the petition, such answer shall contain a specific denial of the material allega- tions of the petition controverted by him, and shall be verified in the same manner as pleadings in civil actions; and the issues raised thereon may be tried with or without a jury, according to the practice provided bj' law for the trial of civil actions. Sec;. 12. Court to require debtor to file schedule, etc. — If the respondent shall make default, or if, after a trial, the issues are found in favor of the petitioners, the Court shall make an order adjudging that said respondent is, and was at the time of filing the petition, an insolvent debtor, and shall require said y them, as follows: For the first thousand dollars, at the rate of seven per cent.; for all above that sum and not exceeding ten tlu)Usund dollurs, at the rate of five per cent; and for all ahove thjit sum at the rate oi four per cent. SE'.'. 29. Assignee to make e.clnhU tu thr Court.— A.t t)ie expiration of three months fvom the appt)intment of the assignee in any case, or as much earlier as the Court may di- rect, the assignee .shall exhibit to the court and to the creditors, and file just and true accounts of all his receipts and payments, verified by his oath, and a statement of the property outstand- ing, specifying the cause of its outstanding, also what debts or claims are yet undetermined, and stating what sum remains in his po.s.se.ssion ; i.,nd thereupon a dividend shall be made, unless for cause the Court .shall otherwise order. Thereafter further accounts, statements, and dividends shall be made in like num- ner as occasion requires. Sec. .so. Court may order assignee to file account. — The Court .shall, at any time, upon the motion of any two or more creditors, re(|uire the as.signee to file his account, and if he has funds subject to distribution he shall be retpiired to distribute them without delay. Sec. 31. Creditors to .share pro rata. — All creditors whose debts are duly proved and allowed .shall be entitled to share in the property and estate j>ro rata without prioritj' or prefer- ence whatever, other than as provided in tliis Act, and in .sec- tion one thousand two hundred and four of the Code of Civil Procedure; provided, that any debt provetl by any person liable as bail .surety, guarantor, or otherwise, for the debtor, shall not be paid to the person so proving the same until satisfac- tory evidence shall be produced of the payment of such debt by such person so liable; and the share to which such debt would be entitled may be paid into Court, or otherwise held for the benefit of the party entitled thereto, as the Court n»ay Ui', it 'D^' ^i :'rt 13() California, [Part 3 : 1, 81 V - fti^ direct. [Sect' ' ' 1204 of the Civil Code declares wages to the amount of $100 for services performed within sixty days to be preferred.] Sec. 32. No dividend already declared shall be distributed by reason of debts being sub-sequently proved, but the creditors proving such debts .shall be entitled to a dividend equal to those already received by tlie other creditors, before any fur- ther dividend is made to iie latter; provided, the failure to prove such claim shall not have re.sulted from his own neglect. SEt;. 33. DiscluD'ife of assiynee — Should the assignee refuse or neglect to render his accounts as required by sections tnirty and thirty-one, or pay over a dividend when he shall have, in the opinion of the Court, sufficient funds for that purpose, the Court shall immediately diocharge such a.ssignee from his trust, and shall have power to appoint another in his place. The assignee so discharged shall forthwith deliver over ^o the assignee appointed by the Court all the funds, property books, vouchers, or securities l)el<>nging to the insolxent, ..lihout chargnig or retaining any counuissiou or compensation for his personal .services. Sec. 34. Final dcvount of aasiijnee — Preparatory to the final account and dividend, the a.ssignee shall submit hi.s account to the Court an 1 file the same, and shall, at the time of filing, accompany the same with an affidavit that notice by mail has been given to all creditors who proved their claims; that he will apply for a settlement of his account, and for a discharge from all liab'lity as a.ssignee at a thne specified in such notice, which time shall be not less than ten nor more than twcntv days from such fili.isj. At the hcarinir the Court shall auartners siiall be cimducted in the like manner as if they had been conunenced and pro.secuted by or again.st «)ne person alone. If .such copartners reside in ditferent coun- ts i 138 California. [Part 3 lli 1 It [I El ' if ties, that Court in which the petition is first filed shall retain exclusive jurisdiction over the case. If the petition be filed by less than all the partners of a copartnership, those partners who do not join in the petition shall be ordered to show cause why they should not be adjudfred to be in.solvent in the same manner as other debtors are required to show cause upon a •creditor's petition, as in this Act provided. Sec. 36. Applicable to covporotions. — The provisions of this Act shall apply to corporations, and upon the petition of any officer of any corporation, duly authorized by the vote of the Board of Directors or Trustees, at a meeting specially called for that purpose, or by the assent in writinjf of a majority of the Directors or Trustees, as the case may be, or upon a creditor's petition made and presented in the manner provided in respect to debtors, the like proceedinf^s shall be had and taken as are provided in the case of debtors. All the provisions of this Act which shall apply to the debtor, or set forth his duties, examination, ami liabilities, or prescribe penalties, or relate to fraudulent conveyances, payments, and assignments, apply to each and every officer of any corporation in relatiini to the same matters concerning the corporation. Whenever any cor- poration is declared insolvent, all its property and assets shall be distributed to the creditors; but no discharge shall be granted to any corporation. , Proof of Debts. Sec. 37. All debts due and pa3'able from the doctor at the time of the adjudication of insolvency, and all debts then e.\ist- ing but not payabh' until a future time, a rdtate of interest being made, when no interest is payable by the terms of th(j contract, may be proved against the estate of the debtor. Sec. 3(S. Proof <>/ ilcmandx iuiainut t/ir ilebtor. — All demands auainst the debtor for or on account of anv sjfoods or chattels wrongfully taken, converted, or withheld by him, may be proved and allowetl as debts to the amount of the value i)f the property so withheld, from the time of the conversion. Chap. 44] California, 139 Sec. 39. If the debtor shall be bound as indorser, suretj', bail, or guarantor, upon any bill, bond, note, or other specialt}- or contract, or for any debt of another person, and his liability shall not have become absolute until the adjudication of insolv- ency, the creditor may prove the same after such liability shall have become fixed, and before the final dividend shall have be(in declared. Sec. 40. In all cases of contingent debts, and contingent liabilities contracted by the debtor, and not herein otherwise provided for, the creditor may make claim therefor and have his claim allowed, with the right to share in the dividends if the contingency shall happen before the order for the final dividend, or he may at any time apply to the Court to have the present value of the debt or liability ascertained and licjui- dated, which shall be done in such manner as the Court shall order, and shall be allowed to prove for the amount so ascer- tained. Sec:. 41. Any person liable as bail, surety, or guarantor, or otherwise, for the debtor who shall have paid the debt, or any part thereof, in discharge of the whole, shall be entitled to prove such debt, or to stand in the place of the creditor, if he .shall have proved the same, although such payments shall have been made after the proceedings in insolvency were commenced : and any person so liable for the t i.s provable under this Act .shall be allowed, after the com- mencement of proceedings in insolvency, to prosecute to final judgment any action therefor against the debtor until the (juestion of the debtor'.s discharge shall have boen determined, and any .such suit or proceeding shall, upon the application of the debtor, or any creditor, d of the a.s.signee, be stayed to await the determination of the Court in insolvency on the question of discharge; provided, there be no unreasonable delay on the part of the debtor, or of the petitioning creditors, as the case may be, in prosecuting the case to its conclusion : and 'provided, (dno, that if the amount due the creditor is in dispute, the suit, by leave of the Court in insolvency, may pro- ceed to judgment for the purpose of ascertaining the amount due, which amount may be proven in insolvency, but execution shall be stayed as aforesaid; provided, further, that where a valid lien or attachment has been accjuired oi- secured in any such action, anMIIft ■Bfr--»1 144 California. [Part 3 m th r < I •* ( Sec. 51. Certificate of Discharge. — If it shall appear to the Court that the debtor has in all things conformed to his duty under this Act, and that he is entitled under the provis- ions thereof to receive a discharge, the Court shall grant him u discharge from all his debts, except as hereinafter provided, and shall give him a certiHcato thereof, under the seal of the Court, in substance as follows: In the Superior Court of the County of , State of California. Whereas, has been duly adjudged an insolvent under the insolvent laws of this State, and appears to have conformed to all the reiiuirements of law in that behalf, it is therefore ordered by the Court that said be forever discharged from all debts and claims, which by said insolvent laws are made provable against his estate, and which existed on the day of , on which the petition for adjudiaition was filed by (or against) him, excepting such debts, if any, as are by said insolvent laws excepted from the operation of a discharge in insolvency. Given under my hand, and the seal of the Court, this day of , A. D. 18—. Attest, Clerk. [Seal.] Judge. Sec. 52. Fvawlnlent Debts, etc , not discharged. — No debt created by fraud or eml)ezzlement of the debtor, or by his defalcations as a public officer, or while acting in a fiduciary character, shall be discharged under this Act, but the debt may be proved, and the dividend thereon shall lie a payment on account of .said debt; and no discharge granteil tmder this Act shall release, discharge, or affect any person liable fof the same debt for or with the debtor, either as partner, joint contractor, indor.ser, surety, or otherwise. Sec. 53. Discharge releases debtor, for ivhat. — A discharge, duly granted under this Act, .shall, with the exceptions afore- said, release the debtor from all claims, debts, liabilities and demands .set forth in his schedule;, or which were or might have been proved against his estate in insolvency, and may be pleaded by a simple averment, that on the day of its date such discharge was granted to him, setting forth the same in full, and the same shall be a complete bar to all suits brought on Chap. 44] California. 145 any such debts, claims, liabilities, or demands, and the certifi- cate shall be imnut facie evidence in favor of such fact, and of the regularity of such discharge; provided, however, that any creditor of said debtor, whose debt was proved, or provable, against the estate in insolvency, who shall see fit to contest the validity of such discharge on the ground that it was fraudu- lently obtained, and who has discovered the facts constituting the fraud subsetjuent to the discharge, may, at any time within two years after the date thereof, apply to the Court which granted it, to set aside and annul the same, or if the same shall have been pleaded, the effect thereof may be avoided collater- ally upon any such ground. Sec. 54. The refusal of a discharge to the debtor shall not affect the administration and distribution of his estate under the provisions of this act. ' full, on Fraudulent Preferences and Transfers. Se(!. 55. If any person being insolvent, or in contempla- tion of insolvency, within one month 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, sequestered, or seized on execution, or makes any payment, 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 benefited thereby, or by such attachment or seizure, having reasonable cause to believe that such person is insolvent, and that such attachment, seizure, pay- ment, pledge, conveyance, transfer, or assignment is made with a view to prevent his property from coming to his assignee in insolvency, or to prevent the same frona being distributed rat- ably among his creditors, or to defeat the object of, or in any way hinder, impede, or delay the operation of, or to evade any of the provisions of this Act, such transfer, payment, convey- ^1 kCi 14G California. [Part 3 ml Pit,, ance, 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, tranfer, or con- veyance is not made in the usual and ordinary course of busi- ness of the debtor, that fact shall be p/'twia facie evidence of fraud. Penal Glauses. fil: I t ■ •• & Sec. 56. From and after the taking eftect of this Act, if any debtor or insolvent shall, after the commencement of pro- ceedings in insolvency, secrete or conceal any property belong- ing to his estate, or part with, conceal, or destroy, alter, muti- late, or falsif}', or cause to be concealed, destroyed, altered, mutilated, or falsified, any book, deed, document, or writing relating thereto, or remove or cause to be removed, the sana- or any part thereof, with intent to prevent it from coming into the po.s.session of the assignee in insolvency, or to hinder, impede, or delay his assignee in recovering or receiving the same, or make any payment, gift, sale, assignment, transfer, oi conveyance of any property belonging to his estate, with like intent, or shall spend any part thereof in gaming; or shall. with intent to defraud, willfully and fraudulently conceal from his assignee, or fraudulently or designedly omit from his schedule any property or effects whatsoever; or if, in case of any person having to his knowledge or belief provetl a false or fictitious debt against his estate, he .shall fail to disclo.se the same to his assignee within one month after coining to the knowledge or belief thereof; or .shall attempt to account for any of his property by fictitious losses or expenses; or shall, within three months before the conuiiencement of proceedings in insolvenc}', under the false preten.se of carrying on business and dealing in the ordinary course of trade, obtain on credit from any person any goods or chattels, with intent to deframl: or shall, with intent to defraud his creditors, within thrcr months next before the conunencement of proceedings in Ohap. ' ^] Calik»rnu. 147 insolvency, pawn, pledge, or dispose of, otherwise than by bona fide transactions in the ordinary way of his trade, any of his goods or chattels, which have been obtained on credit and remain unpaid for, he shall be deemed guilty of misdemeanor, and, upon conviction thereof, shall be punished by imprison- ment in the County Jail for not less than three months nor more than two years. Miscellaneous. Sec. 57. Decfh of rovlded, however, that such repeal shall in no man- ner invalidate or affect any case in insolvency in.stituted and pending in any Court prior to the day when this Act shall take effect 4 150 California. [Part 3 CHAPTER XLV. LEGAL HOLIDAYS. 11 i Every Sunday, first day of January, twenty-second day of February, thirlieth day of May, fourtli day of July, ninth day of September, twenty-fifth day of December, and every day on which an election is held throughout the State, and every day appointed by the President of the United States, or bj' the Governor of the State for a public fast, thanksgiving or holiday. If the first of January, twenty-second of February, thirtieth of May, fourth of July, ninth of September, or twenty-fifth of December, fall upon a Sunday, the Monday following is a holidav. Chap. 1] Nevada. l.-)l PAET IV. State of Nevada. • H4 Prepared Expressly for this Work by J, W. Whitcher, Attorney, Virginia City, Nevada. CHAPTER I. COURTS, JURISDICTION, AND TERMS OF COURTS. United States Courts. Terms of U. S. Circuit Court. — At Carson City, thinl Mon- day in March.and // j'.s< Monday in Novenilx-r of each year. TertiiH of U. S. District Cmrt. — At Carson City, first Mon- itay.s in February, May and )ctober. (For the jurisdiction of the l^nitcective districts. Times for Holding District Oourts. Tlie Di.Htrlc'i jUoyH |s always open, Chap 1] Nevada. Justices' Courts. US Justices of the Peace have juri.siliction in all civil cases when the demand (exclusive of interest) does ni)t exceed three hundred dollars. Are alway.s open. CHAPTER II. TIME ALLOWED TO ANSWER — SERVICE BY PUBUCATION— PLACE OF TRIAL. Defendant has ten day.s to answor sununons, exclusive of day of service, from date of service, when served within the county; twenty days when served in the district but in another countj' than the one where the action was connnenced; and in all other cases forty days, when personal service is had. ?lace of Trial. All actions pertaininjj to r(!al estate, or to the recovery thereof, or anv interest thereiii, nmst Vte connnenced in the county wherein the real estate is situated. Transitory actions follow the person. Provisions in Justices' Courts. Defendant must he sucmI in the township in which he lives, unless he is .served with summons in the county-.seat, or has contracted to perform an oblij^ation at a particular place; in which case he may be sued in the township, city, or precinct where such obli<;ation is to be performed, or in the township in which he resides. CHAPTER III. LIMITATION OF ACTIONS. Civil actions, except for recovery of real property, can onlv b(.! connnenced a.s follows: lo4 Nevada. [Part 4 ■}% Within Six Years. — 1. Upon a judgment or decree of any Court of the United States, or of any State or Territory, within the United States. 2. Upon a contract, obligation, or liability founded upon a written instrument. Within Four Yearn. — 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 Yearn. — 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 recovery of per.sonal property; for relief on the ground of fraud — the cause of action not clecmed to have accrued until discovery by party aggrieved of facts constituting a fraud. Within Tico Years. — Against a Sheriff, Coronor, or Con- stable, upon the liability incurred by the 7 to his own use Ity a public othcer, or au ofHcci- of a corporatiini or an attorney, factor, broker, ufjent, or clerk, in the coursi' df his employment as sucli, or by any other perstm in a fiilucinry capacity, or for nii.sconduct or neglect in office, or in professional employment, or for wilful violation of dut}'. 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 Sherifi". 4. When the defendant has been guilty of a fraud in contracting the debt, or incurring the obligati(m for which the action is brought, or in concealing or disposing of the property, for the ttiking, detention, or conversion of which the action is brouglit. 5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. The order of arrest is only issued upon tiling an affi »! f^^ V s \ X \ % .V ^:^. o >^^ O^ % v^ 23 WEST MAIN STREET WEBSTER, iM.Y. 14580 (716) 872-4503 mh W-?.-> ^ f'lVf] 1,9; -.,■ 162 Nevada. [Part 4 f 1':;^ , m CHAPTER XI. ESTATES OF DECEASED PERSONS. Claims against estates of deceased persons must be pre- sented proved and allowed within ten moiiths after the first publication of administrator's or executor's notice to creditors, 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. But when the value of the estate does not exceed $2000, the Court may shorten the time for ci-editors to file their claims, and if the value of the estate does not exceed ^500, the Court may order it assigned to the widow and children. Claims may be verified by residents 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 administrator or executor reside, must, to entitle it to be used or filed, contain a certificate of the Clerk of the county where such Justice lO- sides, reciting the facts that said Justice is duly commissioned 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 claiins, when made out of the State of Nevada, must, 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 (jualified, of the State of Nevada; or before a Notary Pub- lic, 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 bv statute; it is subject to the order of the Court. District Courts have sole jurisdiction of all original proceed- ings in probate matters. Ghap. 12] Nevada. 103 CHAPTER XII. HOMESTEADS. The homestead of a judgment debtor, consisting of a quant- ity of land, together with the dwelling-house thereon, and its appurtenances, 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 them, or other head of a family, declaring their inten- tion in writing to claim the same as a homestead. The same to be duly acknowledged and recorded as conveyances affect- ing real estate. Declarations 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 mort- gage upon the premises executed by husband and wife; or where the judgment 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 ofKce of the County Recorder, in the same manner as the d3claration 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 husband or wife, and his or her legiti- mate children. In cases where homestead property is appraised at a sum exceeding five thousand dollars, the same may be sold, and the sum realized on sale in excess of five thousand dollars and costs pass to judgment creditor. 164 Nevada. [Part i m CHAPTER Xni. PI' Mr-'-' i : 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 therei;i, when the opposite party is the representative of a deceased person, when the facts to be proved transpired before the death of such deceased person. 2. Persons convicted of felony, unless pardoned, or the judgment is reversed on appeal, cannot be witnesses. 3. Attorneys or counseloi^s cannot, except by consent of their client, be examined as to any confidential communications made to them in the course of their professional employ inoiit, and the like rule applies to physicians, surgeons, clergymen or priests, with respect to conlidential communications made to them in their professional capacity. 4. Husband or wife cannot be witnesses for or against each other without the consent of each other, except in actions brought by one against the other. 5. Public officers cannot be examined as witnesses in reference to communicauons made to them in official confidence, when the public interest would, by such disclosure, be injured. 6. Laws relative to the attestation of instruments required to be attested are reserved from the operation of the statute allowing parties in interebt 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 sununons, or the appearance 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, P'J Chap. 13] Nevada. 165 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 tiicV 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 serving upon the adverse party previous notice of the time and place of the examination, together with a copy of an affidavit showing that the case is one mentioned as above stated. Such notice .shall be at least five davs, and in addition one day for every twenty-five miles of the distance of the place of examination 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 deposition, 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 deposition may be used bj' either party upon the trial against any partj* giving or receiving 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, by 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. 166 Nevada. [Part 4 Depositions thus taken may be also read in case of the death of the witness. When a deposition has been once taken, it nay be read in anj'^ stage of the same action or proceeding by either party, and shall then be deemed the evidence of the party reading it. K 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 summons, 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 live 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 appointed by the Governor of this State to take affidavits and depositions in other States or Territories. Such proper interrogatories, direct and cross, as the respect- ive parties may prepare to be settled, if the parties disagree as to their form, by the Judge or officer granting the order for the commission, at a day fixed in the order, or at the time of granting the order for connnission, may be annexed to the com- mission; or, when the parties agree to that mode, the examin- ation may be without written interrogatories. The commission shall authorize the Commissioner to admin- ister an oath to the witness, and to take his deposition in an- swer to the interrogatories, or when the examination is to be without interrogatories in respect to the ([uestions in dispute, and to certify the deposition to the Court, in a sealed envelope, directed to the Clerk or other person designated or agreed upon, and forward to him by mail or other usual channel of convey- ance. V Chap. 14] Nevada. 167 CHAPTER XIV. JUDICIAL RECORDS, HOW PROVED. A judicial record of tliis State, or the United States, or any Territory, may be proved by the pro(biction 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 proved or admitted in the Courts of this State, by the attesta- tion of the Clerk, and a seal of the Court annexed, if there be a seal; together with a certificate of the Judge, Chief Justice, or presiding Magistrate, as the case may be, that the 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 annexed, if there be a seal — or by the legal keeper of the record, with the seal of his office 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 certifi- cate 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, specifying 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 country shall also be admi.ssible 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, B M w 168 Nevada. [Part 4 8. That the copy is duly attested by a seal, which is proved to be the seal of the Court whore 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 signature of the legal keeper of the original. CHAPTER XV. 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 State, by some Judge or Clerk of a Court having a seal, or some Notary Public, or Justice of the Peace; 2>^'ovicled, when the acknowl- edgment 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 certificate of the Clerk of the District Court of such county, as to the official character of the Justice taking the proof or acknowledgment, and the authen- ticity of his signature. 2. If acknowledged or proved without this State, Vjut within tiie 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 Pt;ace, or by any Conunissionei' appointed by the Governor of this State for that purpose; provided, that when the acknowledgment is taken by 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 acknovvledg3d or proved without the United States, by .some Judge or Clerk of any Court of any State, Kingdom or Empire having a S3al, or by any Notary Public therein, or by any Minister, Cou.missioner, or Consul of the United States, appointed to reside therein. Chap. IG] Nevada. 100 CHAPTER XVI. AFFIDAVITS, BEFORE "y\?^HOM TO BE TAKEN. An affidavit to be used before any Court, Judge, or officer of this State may Ijc taken before any Judge or Clerk of any Court, or any Justice of the Peace, 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 Conunissioner appointed by the Governor of this State to take affidavits and depositions in such other State or Territory, or before any Notary Public, Judge of a Court of record having a seal. An affi 'nvit taken in a foreign country, to be used in this State, shall be taken before an Embassador, Minister, or Consul of the United States, or befcic any Judge of a Court of record having a seal, in such foreign countrv. When an affidavit is taken before a Judge of a Court in another State, or in a Territorv of the United States, or in a foreign country, the genuineness of the signature of the Judge, the existence of Court, and the fact that such Judge is a member thereof, shall bo certified by the Clerk of the Court, under the seal thereof. CHAPTER XVII. LIMITED PARTNERSHIPS. May be formed for the transaction of mercantile, mechan- ical, mining, or manufacturing business by two or more persons, as provided for by special statute. But nothing con- tained in the Act .shall authorize such partner.ships for the purpose of banking or insurance. In partner.ships of this character there shall be one or more members of the firm to be known as general partners, and m v.- 170 Nevada. [Part -t they are individually liable for the debts of the firm. The special partners are liable for the firm debts to the extent of their interest in the firm property or as.sets; 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 f,'eneral partners only shall be inserted, and the general partners onl}' shall ti'ansact the busines.s. If the name of any special partner .shall be used in said firm with his consent or privity, or if he shall person- ally make any contract respecting the concerns of the partner- ship with any person except the general partners, he shall be deemed and treated as a general partner. II ^; ^-( CHAPTER XVIII. MARRIED WOMEN. May become sole traders upon petition, and by order of District Court. When they are sole traders they become liable for debts incurred in the conduct of the business authorized to be car- ried 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. , - , Chap. 20] Nevada. 171 CHAPTER XX. CHATTEL MORTGAGES. No chattel mortgage upon any personal property shall be valid for any purpose, except possession of the property mort- gaged be given to and continuously retained by the mortgagee. Growing crops, however, may b.; mortgaged. CHAPTER XXI. INTEREST AND USURY. Where there is no express contract in writing fixing a different rate of interest, interest shall be allowed at the rate of seven per cent, per annum for all moneys after they become due upon any bond, bill, or promissory note, or other instru- ment 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 conform thereto, and bear the interest agreed upon by the parties, which shall be specified in the judgment; 'provideil, only the amount of the original claim or demand shall draw interest after judgment. CHAPTER XXn. 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 I' 172 Nevada. [Part 4 Sinn of money therein mentioned, sluiU be due and payable as therein expressed, and sliall have tiie same eti'ect, and be nego- tiable in like manner, as inland bills of exchange, according to the custona of merchants. Days of grace arc 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 per.sons in any of the Uiuted f^tates ea.st of the Rocky Mount- ains, fifteen dollars 'Jpon the hundred upon the principal sum specified in such bill. If such )ill shall have been d)'awn 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. CHAPTER XXIII. 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. m CHAPTER XXIV. JOINT DEBTORS— RELEASE 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 iudgment 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, ex- Cha]) 24] Nevada. 173 cept as to tho relenHCcl debtor's proportion of such liability or debt, estimated upon the basis of the number of such debtors; Vnit such release shall operate only as a release of all liability of such debtor to the creditor in such contractor juilgmcnt, and as a credit upon the same of such proportionate sum as lierein provided. It shall not be necessary to make the ^aity released, as pro- vided in the foregoing section, a party to an>' action upon such contract, but the creditor or creditors aforesaid may pursue tho remaining debtors for the remaining ^ tion ox such debt, the sapvj as thouith no such release had been mauo, CHAPTER XXV. INSOLVENT DEBTORS. Insolvent debtors may be dischargeil from their debts by petitioning the District Court and executing an assignment for benefit of creditors; providing it be made in good faith and without fraud. All attachments on the property of the debtor levied within one month prior to the tiling of the petition, are dissolved, and attaching creditors shall pro rate with other creditors, except that their costs shall be paid in full. The assignee is appointed by a majority vote, in amount, of the proved claims of creditors. Assignee to give bonds; the amount thereof to be fixed by the creditors, and if not by them, then by the Judge. Assifjnee to be allowed commissions on net amount realized as follows: eight per cent, upon a sum not exceeding $10,000; five per cent, upon .sums above $10,000, and not exceeding $30,000; three per cent, upon all sums ai.Dve $30,000. No dischargj shall be granted, unless at the time of filing- petition the debtor shall have surrendered property (not exempt) the cash value of which shall amount to at least fifty per cent, of the amount of liabilities, unless three-fourths in 174 Nevada. [Part 4 hs It- number of his creditors, and one-third in amount consent, in ■writing, to his discharge. If the debtor has already received the benefit of this insolvent law, he shall not be discharged unless the property surrendered by him amounts to at least fifty per cent, of his liabilities, or unless three-fourths of his creditors, in number and amount, consent thereto in writing. An adjudication of insolvency may be made on the petition of five or more creditors, residents of this State, whose debts or demands accrued in this State, and amount in the aggregate to not less than five hundred dollars; irrovided, that said creditors, or either of them, have not become creditors by assignment within thirty days prior to the filing of said petition; such petition must be filed iri the District Court of the count}', or city and county, in which the debtor resides or has his place of business, and must be verified by at least three of the petitioners, setting forth that such person is about to depart from the State with 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, being insolvent, has suffered his property to remain under attachment or legal process for four days, or has confessed or offered to allow judgment in favor of any creditors, or willfully suffered judgment to be taken against him by default, or has suffered or procured his property to be taken on legal process with intent to give a preference to one or more of his creditors, or has made an assignment, gift, sale, conveyance or transfer of his estate, property, rights or credits, with intent to delay, defraud or hinder his creditors, or, in contemplution of in- solvency, has made any payment, gift, grant, sale, conveyance or transfer of his estate, property, rights or credits, or has been arrested or held in custody by virtue of any civil process of Court founded on any debt or demand, and such process remains in force and not discharged by payment or otherwise for a period of four days, or, being a merchant or tradesman, has stopped or suspended and not resumed payment within a period of forty days after maturity of any written acknowl- Chap. 25] Nevada. 175 edgment of indebtedness, unless the party holdino- such acknovvledgment has, in writing, M^aived the right to proceed under this subdivision; or, being a bank or banker, agent, broker, factor, or commission merchant, has failed for forty days to pay any moneys deposited with, or receixed by hiiu in a fiduciary capacity, upon demand of payment, except savings and loan banks, or associations who loan the money of their stockholders and depositors, on real estate, and provided in their by-laws for the repayment of such deposits. Partnerships and corporations are included in the provisions of this insolvent la^v, except that corporations shall not receive a dischai'ge r t* ^ PART V. State of Oregon. Prepared Expressly for this Work by Dolph, Bellinger, Malony and Simon, Portland, Oregon. CHAPTER I. COURTS AND THEIR JURISDICTION. The judicial power of the Stale 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 regulations of incorporated towns and cities. The Supreme Court consists of three Justices, who are elected by the electors throughout the State, and who hold their offices for six years. The Supreme Court has jurisdiction only to revise the final decisions of the Circuit Courts. There are one or more Circuit Judges in each Juclicial Dis- trict, who hold their offices for six years, and are elected by the electors in each District. The Circuit Courts are held at least twice in each year, in each county, organized for judicial purposes, b)'^ a Circuit Jutlge of the District wherein such county is situate. All judicial power, authority and jurisdiction not vested exclusive- ly in some other Court belongs to the Circuit Courts, and they have appellate jurisdiction and supervisory control over the 178 Oregon. [Part Ik'' i U' County Courts, and all other inferior Courts, officers and tribunals. County Courts have jurisdiction, but not exclusive, of ac- tions at law, and ail proceedings therein and connected there- with, 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 property, when the value of the property claimed and the damages for the detention do not exceed $250. 3. For the recovery of a penalty or forfeiture, not exceed- ing $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 prose- cution, criminal conversation, seduction, or upon a promise to marrv. 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 arc held at Portland on the second Monday in April and first Monday in October. Judges: Hon. Stephen J. Field, As.s(jciate Justice of the Supreme Court, and Hon. Lorenzo Sawyer, Circuit Judge; Clerk, R. H. Lamson; Marshal, John Meyers. Chap. 2] Oregon. 179 United States District Court, District of Oregon. Regular terms held at Portland on the first Monday of March, July and November. Judge, Hon. Matthew P. Deady; Clerk,* R. H. Lamson; Marshal, John Meyers; U. S. District Attorney, L. L. McArthur; RegLirter in Bankruptcy, H. H. Northup. Supreme Court of Oregon. The Supreme Court consists of three Judges: Chief Justice, Hon. W. W. Thayer; A.ssociate Justices, Hon. W. P. Lord and Hon. R. S. Strahan. Regular terms held at Salem on the first Monday in March and October of each year, and at Pendleton on the first Monday in May of each year. Circuit Judges: 1st District, Hon. L. R. Webster; 2d Dis- trict, Hon. R. S. Bean; 3d District, Hon. R. P. Boise; 4th Dis- trict, Hon. E. D. Shattuck and L. B. Stearns; oth District. Hon. F. J. Taylor; 6th District, Hon. L. B. Ison and J. A. Fee; 7th District, Hon. J. H. Bird. Circuit Courts of the State of Oregon. COUNTIES. Baker Benton Clackamas.... Clatsop Columbia Coos Crook Curry Douglas Gilliam Grant Harney .lackson .Josephine Klamath Lake Lane Linn Malheur Jtarion Jlorrow ..I..... JIultnomah.. Polk Sherman Tillamook.. .. VmatiUn fnion Wallowa AVasco Washington.. Yamhill TIMf;S OF HOLDING. First Monday in December, first Monday in June. Second Monday in April, second Monday in November. Third Monday in April, tlrsl Monday in November. Third Monday in February, June and September. First Tuesday after second Monday in May and October. l'"'''st Monday in May, tirst Monday in October. First Monday in May, third Monday in September. Third Monday in September. Third Mon. in March, fourth Mon. in June, and first Mon. in December. Second Monday in April, third Monday in September. First Monday in March, tirst Monday in September. Third Monday in May, second Monday in October. First Monday in April, September and December. First Monday in Marcli and August. Second Monday in June, and first Mondaj in November. Third Monday "in May, .second Monday in October. First Mon. in March, second Mon. in June, and fourth Mon. in October. Second .Mon. in March, fourth >[oii. in ,lune, and Iburth Men. in October. Second Monday in January, fourth Monday in ,Iune. Second Monday in February-, Jmie and October. , I'ourth Monday in March, first Monday in September. Third Mon. in January, first Mon. in May, and first Mon. in September. Second Monday in May, first Monday in Docciuber. Second Monday in -March, first Monday in October. Fourth Monday in Aiifjiist. Third Jlonday in January. May and September. Second Moinlay in February, fourth Monday in September. Third Monday in April, third Monday in October. Second Mon. in February, fourth Mon. in May, and second Mon. in Nov. Third Mon. in March, third Mon. in .luly, and fourth .Mon. in November. Fourth Monday in March, and fourth Monday in September. 180 Oregon. Terms of the County Courts. [Part 5 The terms of the County Courts of the several counties shall be held annually as follows: In the Counties of Josephine, Curry, Coos, Columbia, Clat- sop and Wallowa, on the first Monday in January, April, July and September. In the Counties of Grant, Baker, Lake, Douglas, Crook, Morrow, Gilliam, Malheur, Tillamook, Umatilla, Klamath and Wasco, on the first Monday in January, March, May, July, September and November. In the Counties of Linn, Jackson, Lane, Benton, Polk^ Marion, Washington, Yamhill, Clackamas and Multnomah, on the first Monday of each month. In the County of Union on the first Monday in January, March, July, September and November. In the County of Harney on the first Monday in April, June, August, October, December and February. In the County of Sherman on the first Monday in January, April, July and October. If* 4, 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 action is commenced the plaintiff' may cause a summons to be served on the defendant. The summons must contain the name of the Court in which the complaint is fi^ ?d, 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 its Chap. 3] Okegon. 181 appear and answer the complaint, or the plaintiff will take judgment 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 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 service. CHAPTER IV. PLACE OF TRIAL OF CIVIL ACTIONS. Actions for the recovery of real property, or an estate, or interest therein, or for injury thereto, and for the recovery of any personal property distrained for any cause, shall be com- menced 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 pei'iods prescribed for the commencement of actions are as follows: Within Ten Years: Actions for the recovery of real property, or for the recovery of the possession thereof. 182 Oregon. [Part 5 Actions upon a judgment 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, excepting those already mentioned. An action upon a liability created by statut , jther than a penalty or forfeiture. An action for waste or trespass upon real property. An action for taking, detaining or injuring personal pro- perty, 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 penalty or forfeiture. Within Two Years: An action for libel, slander, assault, battery, or false im- prisonment; 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 or penalty to the State. Within One Year: An action against a Sheriff or other officer for the escape of a prisoner arrested or imprisoned on civil process. An action for any cause not hereinbefore provided for shall be commenced within ten years after the cause of action accrued. Chap. G] Oregon. 183 CHAPTER VI. ATTACHMENTS. Tlic plaintiff, at the time of issuing the summons, or at any time afterward, but before judgment, may have the property of the defendant attached, by filing with the Clerk of the Court an undertaking, with one or more sureties, in a sum equal to the amount for which the plaintiff demands judgment, and not less than $100; and 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, or without sufficient cause, not exceeding the amount specified in the undertaking; and the plaintiff, or some one in his behalf, making and filing an affidavit showinir: 1. That the defendant is indebted to the plaintiff (speci- fying 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 the pay- ment of the same has not been secured by any mortgage, lien, or pledge upon real or personal property; or, 2. That the sum for which the attachment is asked is an actual bona fide existing debt due and owing from the de- fendant to the plaintiff, and that the attachment is not sought, and the action prosecuted to hinder, delay or defraud any creditor of the defendant. CHAPTER VII. ARREST m CIVIL ACTIONS. The Constitution provides that there shall be no imprison- ment for debt, except in cases of fraud or absconding debtors. The defendant may be arrested in the following cases: 184 Oregon. [Part' 5 In an action for the recovery of money or damages, on a cause of action arising out of contract, wlien the defendant is not a resident of the State, or is about to remove therefrom ; or when the action is for an injury to person or character, or for injuring or wrongfully taking, detaining, or converting property. In an action for a fine or penalty, or on a promise to marry, or for money received or property embezzled, or fraudulently misapplied or con\'ertcd to his own use by a public officer, or an attorney, officer or agent of a corporation, factor, agent, or broker, or other person in a fiduciary capacity. In an action to recover the possession of any personal property unjustly detained, when the property or any portion thereof has been concealed, removed, or disposed of. When the defendant has been guilty of a fraud in con- tracting the debt, or incurring the obligation for which the action is brouficht. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. No female can be arrested in any action, except for an injury to person, character or property. At any time after the conmiencement of the action, and before judgment, the plaintift' may obtain the ari'est of the defendant l)y making and filing with the Clerk of the Court in which the action is pending, an affidavit that the plaintifiT has a sufficient cause of action therein, and that the case is one of those above-mentioned; and making and filing with such Clerk an undertaking with one or more sureties, in a sum not less than one hundred dollars, and equal to the amount for which plaintifi" prays judgment, conditioned that plaintiff will pay all costs that maybe 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 amount specified in the undertaking. Chap. 8] Oregon. 185 CHAPTER VIII. JUDGMENTS AND JUDGMENT LIENS. A judgment, when entered becomes a lien upon the real estate owned by the defendant in the county at the time of the entry, and such as he may subsetjuently acquire. The lien continues for ten years. CHAPTER IX. EXECUTIONS, EXEMPTIONS, SALE AND REDEMPTION. The party in whose favor a judgment is given which re- quires the payment- of money, the deliver}' of real or personal property, or either of them, maj', at any time after the entry thereof, have a writ of execution issued for its enforcement. There are three kinds of executions: one agaiuov, the prop- erty of the judgment debtor, another against his person, and the third for the delivery of real or personal property. In the Circuit and County Courts executions are return- able in .sixty days, and in Justices' Courts in thirty daj^s. In the Circuit and County Courts there is no stay of ex- ecution, except pending an appeal; in Justices' Courts execu- tion may be stayed for thirty days upon filing bond. The following personal property is exempt from sale under an execution: Books, pictures, and musical instruments to the value of $75; wearing apparel to the value of SlOO, and if a house- holder to the value of 850 for each member of the family; tools, implements, apparatus, team, vehicle, harness, or librarj' — when necessary in the occupation or profession of a judg- ment debtor — to the amount of S400; if the judgment debtor Pi *l 186 Oregon. [Part o be a househoUler, ten sheep with one year's fleece, two cows, five swine, household j^'oods, furniture, and utensils, to the value of $800. No article of property is exempt from execu- tion 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 re- deem such property within four months from the date of tlie order confirming the sale, by paying the amount of the pur- chase money, with interest at the rate ( f ten per cent, per annum from the time of sale, together with the amount of taxes the purchaser may have paid thereon. A creditor hfiving a lien by judgment, decree or mortgage, on any portion of the property subsecjuent in time to that on which the property was sold, may also redeem within sixty days from the date of the order confirming the sale. CHAPTER X. PROCEEDINGS SUPPLEMENTARY TO EXECUTION. After the issuing of an execution against property, and upon proof by the affidavit of the plaintiff", in the writ or otherv/ise, to the satisfaction of the C'ourt or Judge thereof, that the judgment debtor has property liable to execution which he refuses to apply toward the satisfaction of the judgment, such Court or Judge may, by an order, retjuire the judgment debtor to appear and answer under oath concerning the same. If it appear from such examination that the judg- ment 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 may be punished as for a contempt. if> Chap. 11] Oregon. m CHAPTER XI. SECURITY FOR COSTS. Security for costs can only bo rof|uired in Justices' Courts. If the plaintitt is a non-resident of the county, the Justice may require him to give an undertaking with one or more sureties for the costs and disbursements of the action before issuing tlio summons, and if at any time before the commencement of the trial the defendant apply therefor, the Justice must recjuiro such plaintiff to give such undertaking. Upor application of defendant, and in the discretion of the Justice, the plaintiff' if a resident of the county, may be re(iuired to give an under- taking 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 bcp adjudged to him in this action." The sureties must possess the qualifications of bail upon arrest, and if required by the defendant, must justify in a sum not less than §50. I'll m 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 be taken by serving and filing a notice of appeal within six months from the entry of the judgment or decree appealed from, or to the Circuit Court, within thirty days after such entry, and not otherwise. Appeals from the Circuit Courts are taken to the Supreme Court, and from County Courts and Justices' Courts to the Circuit Court of the county. Upon an appeal from the Circuit or County Court, the appellant must file an undertaking, with one or more sureties, to the effect that the appellant will pay all damages, costs and 188 Oregon. [Part if m disbursements which may be awarded against him on the appeal; and if the judgment or decree appealed from be for the recovery of money or personal property, or the value thereof, to obtain a stay of proceedings, the undertaking must further provide, that if the judgment or decree appealed from be affirmed, the appellant will satisfy it so far as affirmed. Upon an appeal from Justices' Court, the undertaking is to the effect that the appellant will pay all costs and disburse- ments that may be awarded against him on the appeal, and that he will satisfy any judgment that may be given against him in the appellate Court on the appeal. ig^ CHAPTER XIII. ESTATES OP DECEASED PERSONS: Every executor or administrator must, immediately after his appointment, publish a notice thereof in some newspaper pub- lished in the county, for four successive weeks. Such notice must require all persons having claims against the estate to present them to the administrator or executor, within six months from the date of such notice, with the proper vouchers. A claim not presented within six months is not barred, but it cannot be paid until the claims presented within that period have been satisfied. A claim not due or contingent must, nev- ertheless, be presented as any other claim. Until administra- tion has been completed, a claim against the estate may be presented, allowed and paid out of any assets not otherwise appropriated or liable. Every claim must be verified by the affidavit of the claim- ant, or some one on his behalf, who has personal knowledge ol' the facts, to the effect that the amount claimed is justly due, that no payments have been made thereon except as stated, and that there is no just counter-claim to the same. There is no specified time in which estates are required to be settled. Chap. 14] Oregon 189 CHAPTER XIV. DESCENT OF REAL PROPERTY. When any person dies, seized of any real property, or any right thereto, or any interest therein, not having lawfully devised the same, such real property descends, subject to his debts, as follows: 1. In equal shares to his children, and to the issue of any deceased child by right of representation; and if there be no child of the intestate living at the time of his death, such real property descends to all his other lineal descendants; and if all such descendants are in the same degree of kindred to the intestate, they take such real property equally ; or otherwise, they take according to the right of representation. 2. If the intestate leave no lineal descendants, such prop- erty descends to his wife; and if he leaves no wife it descends to his father. 3. Ii the intestate leave no lineal descendants, wife nor father, :-uch real property descends in equal shares to his brothers and sisters, and to the issue of any deceased brother or sister by right of representation ; but if the intestate leaves a mother also, she takes an equal share with such brothers and sisters. 4. If the intestate kv..\os no lineal descendants, wife, father, brother nor sister living at his death, such real property descends to his mother, to the exclusion of the issue of his deceased brothers or sisters. 5. If the intestate leave no lineal descendants, wife, father, mother, brother nor sister, such real property descends to his next of kin in erjual degree, excepting that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor are preferred to those claiming through a more remote ancestor. hi'.' 11 ? * '■- 190 Oregon. [Part 6. If the intestate leaves one o more children and the issue of one or more deceased children, and any of such surviving children shall die under age, without having been married, all such real propei'ty that came to such deceased child by inher- itance 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 repre- sentation; 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 ; otherwise 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. ■If 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 articles 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. 8. The residue, if any, of the personal property, is r States or countries. The com- mission may be issued by the Clerk of the Court, or the Justice, in any cause ponding in a Justices' Court, on the appli- cation of either party, upon five days' previous notice to the other. It is issued to a pei'son agreed upon by the parties, or if they do not agree, to a Judge, Justice of the Peace, Notary 192 Oregon. [Part n Public, or Clerk of a Court selected by the officer issuing it. Such interrogatories, direct and cross, as the parties may pre- pare may be annexed to the commission. The following form may be used : In the Court of the State of Oregon for County. A B, Plaintiff, vs. C D, Defendant. Deposition of E F, a witness on behalf of the m the above entitled action, taken before me, a Commissioner named in the attached commission, and a (Notary Public) in and for county. State of , on the day of , 18 — , 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 attaclied to said com- mission 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 , ss. County of 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 witness was duly sworn to tell the truth, the whole truth, and nothing but the truth ; tliat at the same time and place I propounded to sjvid witness the interrogatories attached to said commission in their order, and reduced his answers thereto to writing, and that when completed, the deposition was carefully ^■$r Chap. 17] Oregon. 193 read over by me to said witness, and then by him subscribed. In witness whereof, I have hereunto set my hand and oflRcial seal, this day of 18 — . [seal.] , Notary Public, etc., . and Commissioner. Indorse 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 pro- duction 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 a certifi- cate of the chief Judge, or presiding Magisti'ate, that the certificate is in due form and made by the Clerk or other person having the legal custody of the original. CHAPTER XIX. 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 acknowledg- ment of any conveyance having been executed shall be taken by any officer, unless he shall know or have satisfactory evidence that the person 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 situ- w 194 Oregon. [Part 5 I: ated within this State, she shall acknowledge that she executed such deed freely and voluntary. 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 com- missioner appointed by the Governor of this State for such purpose ; and unless the acknowledgment be taken before such Commissioner, such deed shall have attached thereto a certificate of the Clerk or other 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 ac- knowledgment 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 PARTNERSHIPS. Limited partnerships for the transaction of mercantile, mechanical and manufacturing business may be formed in this State. The persons forming such partnership make and sever- ally subscribe and acknowledge a certiticace in duplicate, which contains the name assumed by the partnership, the names and respective places of residence of all the general and special partners, the amount of capital which each special partner contributes, the general nature of the business to be transacted, and the time when the partnership is to commence and termi- nate ; one copy of such certificate is filed with the Clerk of the county in which the principal place of business of the partner- ship is to be. A copy of the same is reijuired to be published for four weeks in some weekly newspaper published in the county. The business must be conducted under a name in Chap. 20] Oregon. 19; which the names of the general partners only shall be inserted, without the addition of the word company, or any other gen- eral term. Special 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 sura stated in the certificate. CHAPTER XXI. MARRIED WOMEN. ,1" i The Constitution of the State provides that the property and pecuniary rights of every married woman at the time of marriage, or afterward 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 per- sonal property; which has been done. The property, both real and personal, acquired by any married woman during covert- ure, is free from and not liable for the debts, liabilities, or contracts of her husband. She can manage, sell, convey, or devise the same by will, to the same extent and in the same manner that her husband can property belonging to him. A married woman is entitled to receive the wages of her personal labor, and may maintain an action therefor in her own name. She can also prosecute and defend all actions at law or in equity, for the preservation and protection of her rights and property, as if unmarried. Contracts may be made and liabilities incurred by a mar- ried woman, and the same enforced by or against hor, to the same extent and in the same manner as if she were unmarried. .! 196 Oregon, [Part 5 CHAPTER XXII. CORPORATIONS. Corporations are only formed under general laws, and can- not be created by special laws. The stockholders of all corporations and joint-stock com- panies are liable for the indebtedness 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 exist in the State w^ith the privilege of making, issuing, or putting in circulation any bill, check, certificate, promissory note or other paper, or the paper of any bank, company or person, to circulate as money. CHAPTER XXIII. CHATTEL MORTGAGES. 01 m 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, unless within thirty days 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 effect of such affidavit does not continue beyond one year, when a similar affidavit must be made. fl Chap. 24] Oregon. 197 CHAPTER XXIV. INTEREST AND USURY. Eight per cent, per annum is the legal rate of interest ; but on contracts, interest at the rate of ten per cent, per annum may be charged by express agreement of the parties. Usury entails the forfeiture of the principal sum, without interest, to the school fund of the county in which the suit is brought. CHAPTER XXV. ASSIGNMENTS FOR BENEFIT OF CREDITORS. No general assignment of property by an insolvent, or in contemplation of insolvency, for the benefit of creditors shall be valid, unless it be made for the benefit of all his creditors in proportion to the amount of their respective claims. And such assignments shall have the effect to discharge any and all attachments on which judgment shall not have been taken at the date of such assignment; and after the payment of the costs, and disbursements thereof, including attorneys' fees al- lowed by law, in case of judgment, out of the estate of the in- solvent, such claim or claims shall be deemed as presented, and share pro rata with other claims, as hereinafter provided. In the case of an assignment for the benefit of all the cred- itors of the assignor, the assent of the creditors shall be presumed. The debtor shall annex to such assignment an inventory^ under oath, of his estate, real and personal, according to the best of his knowledge, and also a list of his creditors and the amount of their respective demands, but such inventory shall not be conclusive as to the amount of the debtor's estate, and such assignment shall vest in the assignee the title to any other property belonging to the debtor at the time of making the assignment. Every assignment shall be in writing and duly acknowledged in the same manner as conveyances of real li--^ m If ' h ' 198 Oregon. [Part 5 estate, and recorded in the county where the person making the same resides, or where the business in respect of which tlio same is made has been carried on. The assignee shall also forthwith file with the Clerk of the Circuit Court of the county where such assignment shall be recorded, a true and full inventory and valuation of said es- tate under oath, so far as the same has come to his knowledge, and shall then and there enter into a bond to the State of Ore- gon, for the use of the creditors, in doijble the amount of the inventory and valuation, with two or more sufficient sureties, to be approved by said Clerk, for the faithful performance of said trust; and the assignee may thereupon proceed to per- form any duty necessary to carry into effect the intention of said assignment. The assignee shall forthwith give notice of such assignment by publication in some newspaper in the county, if any, and if none, then in the nearest county thereto ; which publication shall be continued at least six weeks; and shall forthwith serve a notice by mail to each creditor of whom he shall be informed, directed to their usual place of residence, and noti- fying the creditors to present their claims, under oath, to him within three months thereafter. At the expiration of three months from the time of lirst publishing notice, the assignee shall report and file with the Clerk of the Court a true and full list, under oath, of all such creditors of the assignor as shall have claimed to be such, with a statement of their claims, and also an affidavit of publication of notice, and a list of the creditors, with their places of lesi- dence, to whom notice has been sent by mail, and the date of mailing, duly verified. Any person interested may appear within three months after filing such report, and file with said Clerk any exceptions to the claim or demand of any creditor, and the Clerk shall forthwith cause notice thereof to be given to the creditor, which shall be served as in case of a sununons, returnable at the next term ; and the said Court shall, at such term, proceed Chap. 25] OllEOON 199 to hear the proofs an 202 Oregon. [Part in all respects, that his estate has been made to realize the fullest amount possible, and not less than fifty per cent, of the full amount of his indebtedness over and above all expenses of the assignment, the said Court or Judge thereof shall, upon the allowance of the final account of said assignee, make an order cHscharging the assignor from any further liability on account of any indebtedness existing against him prior to the malcing of such assignment, and thereafter such assignor shall be freed from any liability on account of any unsatisfied por- tion of the indebtedness against him prior to the making of his assignment. PART VI. I Idaho Territory. Prepared Expressly for this Work by Jonas W. Brown^ Boise City. CHAPTER I. COURTS, THEIR JURISDICTION 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, District and Probate Courts are Courts of record. The Supreme Court. Has original and appellate jurisdiction. Its original jurisdiction extends to the issuance of writs of mandate, review, prohibition, habeas corpus, and all writs necessary to the exercise of its appellate jurisdiction. Its appellate jurisdiction extends to a review of all cases removed to it under such regulations as are or may be pre- scribed by law from the final decisions of the District Courts. There must be at least one term in each year, to bo held at the Capitol of the Territory, at such time as the Court may by rule or order designate. Additional terms may also be hold by order of the Court. J' 204 Idaho. [Part G District Courts. The jurisdiction of the District 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 in which the subject of litigation is capable of pecuniary estimation, which involve the title or ros- session of real estate; or the legality of any tax, unju>*t •? -t? ■ ment, toll or municipal fine, or in which the demand ■ \\,>- value of the property in controversy exceeds one hundred dollars. 4. To all special proceedings. 5. To the issuance of writs of mandate, review, prohibition, habeas corpus, and all writs necessary to the exercise of its powers. G. To the trial of all indictments. 7. Its appellate jurisdiction extends to all cases arising in Probate Courts or Justices' Courts; and to all other matters and cases wherein an appeal is allowed by law. There are two terms of District Court held in each c unty each year; terms are tixed by the Supreme Court. Probate Courts. There must be a Probate Court held in e.«ch of the counties. The Probate Court has jurisdiction in all probate matters. In addition to their probate jurisdiction, to hear and determine all civil causes wherein the damage or debt claimed does not ex- ceed the sum of five hundred dollars, exclusive of interest, and concurrent jurisdiction with Justices of the Peace in criminal cases. Justices' Courts. The civil jurisdiction of these Courts within their respect- ive precincts or cities extends: - 1. To an action arising on contract, for i,]i?i recovery of money only, if tlie sum claimed does lot exciie i 'hroe hun- dred dollars. i Chap. 1] Idaho. 205 2. To an action for damages to the person, or for taking or detaining personal property, or for injuring personal pro- perty, or for an injury to real property, where no issue is raised by the answer involving the plaintiffs title, or possession of the same, if the damages claimed do not exceed three hundred dollars. 3. To an action for a fine, penalty or forfeiture, not ex- ceeding three hundred dollars, given by statute or the ordin- ance of an incorporated city. 4. To an action upon a bond or undertaking conditioned for the payment of money not exceeding 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 install- ment as it becomes due. 5. To an action to recover the possession c personal prop- erty when the value of such property does not exceed three hundred dollar.s. 6. To take and enter judgment on confession of a defend- ant when the amount confes,sed does not exceed three hundred dollars. The jurisdiction conferred shall not extend, however, to a civil action in which the title or possession of real property is put in issue. CHAPTER II. LIMITATION OF ACTIONS. I For the recovery of real property. The people of this Territory will not sue any person for or in respect to any real property, or the issues or profits thereof, by reason of the right or title of the people to the same, unless: 1. Such right or title shall have accrued within ten years before any action or other proceeding for the same is com- menced; or, Fir m > m^ m Idaho. [Part 6 2. The people or those from whom they claim, shall have received the rents and profits of such real property, or of some part thereof within the space of ten years. No action for the recovery of real property, or for the re- covery of the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor or grantor, was sei : ' "''■ nossessed of the property in questic-- within five years belo .e commencement of the action; and this section includes possessory rights to lands and mining claims. No cause of action, or defense to an action, arising out of the title to real property, or to rents or profits out of the same, can be effectual unless it appears that the person prosecuting the action, or making the defense, or under whose title the action is prosecuted or the defense is made, or the ancestor, predecessor, or grantor, of such person was seized or possessed of the premises in question within five years before the com- mencement of the act in respect to which such action is pro- secuted ot defense made. If a person entitled to commence an action for the recov- ery of real property, or for the recovery of the possession thereof, or to make any entry or defense founded on the title to real property, or to rents or services out of the same, be at the time such title first descend." or accrues either — 1. Within the age of majority; or, 2. Insane; or, 3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offense for a term less than for life; or, 4. A married woman and her husband be a necessary \ .trty with her in commencing such action or making such entry or defense. The term during which such disability continues is not deemed any portion of the time in this title limited for the commencement of such action or the making of such entry or defense; but such action may be commenced, or entry or de- fense made within the period of five years after such dis- ability shall cease, or after the death of the person entitled Chap. 2] Idaho. 2or who shall die under such disability; but such action shall not be commenced, or entry or defense made, after that period. The periods prescribed for the commencement of actions other than for real property, are as follows : . Within Six Y^ ears: 1. An action upon a judgment or decree of any Court of the United States, or of any State or Territory within the United States. 2. An action for mesne profits of real property. Within Five Years: An action upon any contract, obligation, or liability, found- ed upon an instrument in writing. Within Four Years: An action upon a contract, obligation, or liability not founded upon an instrument of writing. Within Three Years: 1. An action upon a liability created b^v 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 per- sonal property. 4. An action for relief on the ground of fraud or mistake. The cause of action in such case is not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake. ' Within Two Years: 1. An action against a Sheriff*, Coroner, or Constable, up- on 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, including the non-payment of money collected upon an execution. % hiUji I if hi V 208 Idaho. [Part 6 Ma 2. An action upon a statute for a ^jcnalty or forfeiture, where the action is given to an individual, or to an individual and the Territory, except where the statute imposing it pre- scribes a different limitation. 3. An action upon a statute, or upon an undertaking in a criminal action for a forfeiture or penalty to a county or the people of the Territory. 4. An action to recover damages for the death of one caused by the wrongful act of another. 5. An action for libel, slander, assault, battery, false im- prisonment, or seduction. 6. An action against a Sheriff or other officer for the es- cape of a prisoner arrested or imprisoned on civil process. Within One Year: An action against an officer or officer defacto: 1. To recover any goods, wares, merchandise, or any other property seized by any such officer in his official capacity as tax collector, or to recover the price or value of any goods, wares, merchandise, or any other 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 mak- ing any such seizure. 2. For money paid to any such officer under protest, or seized by such officer in his official capacity as a collector of taxes, and which, it is claimed, ought to be refunded. [I *f Within Six Monties. Actions on claims against a County, which have been re- jected by the Board of Commissioners, must be commenced within six months after the first rejection thereof by such Board. In an action brought to recover a balance due upon a mutual, open and current account, where there have been re- ciprocal demands between the parties, the cause of action is Chap. 2] Idaho. 209 deemed to have accrued froii the time of the last item proved in the account on either side. To actions brought to recover money or other property de- posited with any bank, banker, trust company, or savings and loan society, no limitation begins to run until after an author- ized demand. An action for I'elief not hereinbefore provided for, must be commenced within four years after the cause of action shall have accrued. General Provisions. An action is commenced within the meaninfr of the title, when the complaint is tiled. If, when the cause of action accrues against a person, he is out of the Territory, the action may be commenced within tlie 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 is not part of the time limited for the commencement of the action. If a person entitled to bring an action bo, at the time the cause of action accrues, either within the age of majority, in- .sane, imprisoned on a criminal charge, or in execution under the sentence 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 pei'son entitled to bring an action die before the expir- ation 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 with- in 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 representa- tives after the expiration of that time, and within one year after the issuing of letters testamentary or of administration. rr'i I- 'Ml'. I; II M 210 Idaho. [Part G 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 commence- ment of the action. When the connnencemcnt of an action is stayed by injunc- tion or statutory prohibition, the time of the continuance of the injunction 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 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 Territory, except in favor of one who has been a citizen of this Territory, and who has held the "ause of action from the time it accrued. No acknowlodgnient or promise is sufficient evidence 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 III. PARTIES TO CIVIL ACTIONS. Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in the Code. In the case of an assignment of a thing in action, the action by the assignee is without prejue- fore whom the action is pending, by affidavit of either p that such Justice is a material witness for either party. 2. When either party makes and tiles an affidavit that he believes that he cannot have a fair and impartial trial before such Justice by reason of the interest, prejudice or bias of the Justice. 8. When, from any cause, the Justice is disqualitied from acting. CHAPTER V. COMMENCEMENT OP CIVIL ACTIONS, ETC. Civil actions in the Courts of this Territory are commenced by filing a complaint. 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 an- swer 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 elsewliere. Chap. 5] Idaho. i>15 In the District Courts tho summons and copy of comjihiint may be .served by the Sheriff of the county whore defeuthint may bo found, or by any otlier person over the age of eighteen, not a party to tlie action. In Justices' Courts summons for aj)pt'Hrance is as follows: 1. If an order of arrest is endorsed upon the summons fortliwith. 2. In all other cases, not less than three nor more than twenty days from date. On Whom Summons to be Served. 1. If the suit is against a corpoi'a' on formed under the laws of this Territory: the president nv (jther head of the cor- poration, secretary, cashier, or managing agent thereof. 2. If a suit is against a foreign corporation, or a non- resident joint stock company or a.ssociation, doing Inisiness and having a managing or business agent, cashier or secretary within this Territory, to such agent, cashier or secretary, or to any station, ticket, or other agent of such corporation, trans- acting business therefor in the county where the action is com- menced, and if there is no such agent in said county, then ser- vice may be had upon any such agent in any other county. 'i. If against a minor under the age of fourteen years, re- siding within this Territory: such minor personally, and also his father, mother, or guardian; or if there be none within this Territory, then any person having the care or control of such nnnor, or with whom he resides, or in whose service he is em- ployed. 4. If against a person, residing within this Territory, who has been judicially declared to be of unsound mind, or incap- able of conductiuir his own affairs, and for whom a guardian has been appointed: such person, ami also his guardian. a. 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. 0. In all other cases the defendant nuist be .served personally. I m 1 tf. Idaho. [Part 6 Service by Publication. When tliv- person on whom tlie service is to l)e made resides out of the Tciritory, or has departed from the Territory, or can- not, after due diligence, be found within the Territory, or con- ceals himself to avoid service, or is a foreign corporation hav- ing no managing or business agent, cashier, or secretary within the Territory, and the fact appears by affidavit to the satisfac- tion of the Court, or a Judge thereof, or a Probate 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 service 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 service be made by the publica- tion of the summons. In Justice Court actions the summons cannot be .served out of the county of the Justice before whom the action is brought, except when the action is brought upon a joint contract or obligation of two or more persons who reside in different coun- ties, and the summons ha.s been served upon the defendant res- ident of the county, in which case the summons may be served upon the other defendants out of the county; and except also when an action is brought against a party who has contracted to perform an obligation at a particular place, and resides in a different county, in which case sunnnons may be .served in the county where he resides; and except also, where an action is brou<.'ht for injury to person or property, and the defendant resides in a different count}*, in which case sunnnons may be served in the county where the defendant resides. The Justice may, within a year from the date of filing the complaint, issue as many alias summons as may be demanded by the plaintiff. The summons in a Justice's Court action may be scrvcvl by a Sheriff or Constable of any of the counties of this Territory, 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 sum- mons i."^ issued by a Justice of the Peace for service out of the Chap, o] Idaho. 217 county in which it was issued, the summons sliall have attached to it a certificate, under seal by the Clerk of the District Court of such county, to the effect that the person issuing the same was an actiny Justice of the Peace at the date of the summons. CHAPTER VI. PLEADINGS IN CIVIL ACTIONS. The 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. And on the part of the defendant : 1. The demurrer to the complaint. 2. The answer. CHAPTER VII. ATTACHMENTS. The plaintiff at the time of issuing he summons, or at anj'" time afterwards, may have the prop-ity of the defendant at- tached, as security for the satisfaction of any judgment that may be recovered, unless the defendant gives security to pay such judgment, in the following cases: 1. In an action upon a judgment, or upon contract, ex- press or implied, for the direct payment of money, where the contract Is not secured by any mortgage or lien uj)on real or personal property, or any pledge of personal property, or, if origina'iy so secured, such seciirity has. without any act of plaintiff, or the person to whom the security was given, be- come valueless. w 218 Idaho. [Part 6 If. ^M ii 2. In an action upon a judgment or upon contract ex- press or implied against a defendant not residing in this Territory. Affidavit for attachment must set forth : 1. That the defendant is indebted to the plaintiff (specify- ing the amount of such indebtedness over and above all legal set-offs or counter claims), and whether upon a judgment or upon a contract for the direct payment of money, and that the payment of the same has not been secured by any mort- gage or lien upon real or personal property, or any pledge of personal property, or, if originally secured, that such secur- ity 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 (specify- ing such indebtedness over and above all legal set-offs or coun- ter claims), and that the defendant is a non-resident of the Territory; and. That the attachment is not sought, and the action not pro- secuted, to hinder, delay or defraud any creditor of the de- fendant. ' Before an attachment can issue, plaintif!' must file an un- dertaking in District Court in a sum not le^s than S200, and not to exceed the amount claimed. In Probate and Justices' Courts, in a sum not less than SlOO, and not to exceed the amount of claim. CHAPTER VIII. CLAIM AND DELIVERY, ETC. Claim and delivery of personal property. Arrest and bail. Injunctions Judgment and judgment liens. Ju^ter of the gospel, in making his professional visits, with food for such oxen, horses or mules, for one month. 7. The earnings of the judgment debtor for his personal services rendered at any time witliin thirty days next preced- ing the levy of execution or levy of attachment, when it appears by the debtor's affidavit or otherwise, that such earn- ings are necessary for the use of his family residing in this Territory, supported wholly or in part ' y his labor. 8. The shares held by a member of a homestead associ- ation duly incorporated, not exceedinu in value one thousand dollars, if the person holding the slirnc is not the owner of a homestead under the laws of this 'J'ciritory. 9. All moneys, benefits, privileges or immunities accruing, or in any manner growing out of any life insurance on the life Chap. 9] Idaho. of the debtor, to an amount represented by an annual prem- ium, not exceeding two hundred and fifty dollars. 10. All fire engines, hooks and ladders, with the carts, trucks and carriages, hose, buckets, implements and apparatus thereto appertaining, and all furniture and uniforms of any fire company or department organized under any law of this Territory. 11. All arms, uniforms and accoutrements required by law to be kept by any person; also one gun. 12. All court houses, jails, public offices and buildings, school house, lots, grounds and personal property appertaining thereto; the fixtures, furniture, books, papers, and appurten- ances belonging and pertaining to the court house, jail and public offices belonging to any county of this Territory, or for the use of schools, and all cemeteries, public s([uares, 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 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 Territory. No article or species of property mentioned in this section is exempt from execution issued upon a judgment recovered for its price, or upon a mortgage thereon. For exemption of homesteads so" "Homesteads." CHAPTER X. REDEMPTION, ETC. By whom real property may be redeemed and when. Proceedings supplementary to execution. Costs. Security for costs. Statute regardincr each of the above is same as Culifornin. in IW w I ti:{: 222 Idaho. [Part G CHAPTER XI. APPEALS. Appeals to Supreme Court from a District Court. Within what time appeals may be taken: 1. Fiom a final judgment in an action or special proceed- ing commenced in the Court in which the same is rendereci, within one year after the entry of judgmeni^. But an excep- tion to the decision or verdict, on the ground that it is not sup- ported by the evidence, cannot be reviewed on an appeal from the judgment, unless the appeal is taken within sixty days after the rendition of the judgment. 2. From a judgment rendered on an appeal from an in- ferior 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 refusing to grant or dissolve an injunction; from an order dis- solving or refusing 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 the final judgment, and from an interlocutory judgment in actions for partition of real prop- erty, within sixty days after the order or interlocutory judg- ment is 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 notic;? stating the appeal from the same, or some specific part thereof, and serving a .similar notice on the adverse party or his attor- ney. The order of service is immaterial, but the appeal is in- eff^ectual 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 provide certificate of the minister or embassador, or a consul, vicf-consul, or consular agent of the United States in such foreign ccjuntry. art Chap. 10] Idaho. 243 Llmin- in lui- with- ,e, anil k'olopt', aj^recil inel of A copy of tho ju•' of' tin- with a that the foreign rk, with seal, or of office an- e of the II making keeper of such pcr- mr^n. Tlu- , unist be iibassador, ted States CHAPTER XX. . SPECIAL PARTNERSHIP. Special partnerships for the transaction of mercantile, mechanical, mining or manufacturing business may be formed, but not for the purpo.se of banking or insurance. No .such partnership shall be deemed to have been formed until a certiHcat'3 which .shall contain the name or firm under which said purtner.shij) is t(j be conrty mortgaged in pursuance of the provisions of this chapter, while such mort- gage remains unsatisfied, in whole or in part, willfully removes from the county or counties where the mortgage is reconled, destroys, cancels, sells, or in imy manner disposes of the prop- erty m«trtgaged, or any part thereof, without consei't of the liolder of said moi-tgage, is guilty of larceny, and such sale or transfer is void. Chap. 22] Idaho. CHAPTER XXII. INTEREST. Parties may agree in w ;ng for the payment of any rate of intere.st on money due ov to beoine duo on any contract not exceeding the sum of one and one-liaif per cent, per month ; any judgment on said contract bears ten per cent, per annum. Any viohition '^■.y charging a greater rate of mteri-st than above specitiod works a forfeiture of ten cents on the hun- dred by the year for the benefit of the school fund. The plaintiff is entitled to judgment on such contracts for the principal sum less all payments of principal or interest theretofore made, and without Interest or costs. The (-ourt must enter judgn»ent in said action for ten per cent, per annum upon the entire principal of said contract against the defendant in favor of the Territory, for the use of the .school fund of the county, whether the unlawful interest is contested or not. (Is or mort- )f the dt.'d in vged in mort- re moves ■ecorded, le prop- of the sale ov CHAPTER XXIII. OP PROCEEDINGS IN INSOLVENCY. Every insolvent debtor may, upon compliance with the pro- visions of this title, be discharged from his debts and liabilities. An insolvent debtor, owing debts exceeding in amount the sum of three hundred lollars, may apply by petition to the District Court of the county in which he has resided for six months next preceding the tiling of his petition, to be dis- charged from his debts and liabilities. In his petition lu- nnist set forth his place of ivsidence, his inability to pay all his debts in full, his willingness to surrender all his estate and eiii?cts for the bonetit of his creditors, and his desire to ol)tain a dl«(c}mrge from his debts and lialiilities, and must anriev ♦! t<\ a .scheil- ule a>id inventory and valuation in compli*"*!' the pro- visions of this title. The iiling of such pctiikm m an act of in- 246 Idaho. [Part G ;* .^i m . ii ' solvency, and thereupon such petitioner must be adjudged an insolvent debtor. The petition, schedule and inventory must be verified by the affidavit of tiie petitioner annexed thereto. Upon rcceiviiij,' and tilinfjf such petiti(m, .schedule and in- ventory, the Coui't or the Judge thereof, must make an order declaring the petitioner in.solvent, and directing the Sheritt of the county to take possession of all the estate, real and j)er- sonal, of the debtor, except such as may be by law exempt from execution, and of all his deed,s, vouchers, books of account and papers, and to keep the same .safely until the appointment of an as.signee. Such onler must further forbid the payment of any debts, and the delivery of any property belonging to such debtor, to him, or for his use, and the transfer of any property l»y him; and mu.st further appoint a time and place for a nu.'oting of the creditors to prove their debts and clioose one or mon; assignees of the estate, which must not be less than thirty days after the making of saiil order, and shall des- ignate a newspaper or newspapers of general circulation in which publication thereof mu.st be nmde. Upon the granting of said order, all proceedings against the .said in.solvent are stayed. The Clerk of Court shall publi.sh a copy of said order, and .serve the same through the U. S. mail, postage prepaid, or personally, on all creditors named in the .schedtde. At a mei.'t- ing of the creditors in open Court, those creditors who hii\ c proven their clainvs nuist proceed to elect one assignee, who must be a resurpose, and show cause why a di'charge should not be granted the debtor; said notice nnist be given by mail, and by publication at least once a week for foin' wrcks, in a newspajur pnlilished in the county, or if then; be none, ii'. a newspaper publishccl nearest sucii county; provided, tluu if no del»ts have been pioveii, such notice is not recpiired. No discharge nnist be granted, or if granted is valid, if tlu' debtor has sworn falsely in hisatlidavit aiuiexcd to his petition .schedule or inventory, or upon any examination in the course Chap. 23] Id.mi (). 249 of the proceodinfjs in insolvency, in rchition to any iniitcrial fact concL'rnini,' hi.s estate* or his dehts, or to any other material fact or if he lias concealed any ])art of his estate, or ettects, or any books or writin<,'s relating' thereto; or if he has been <^uiit3' of any fraud or willful nejjjlect in the care, custody or ilelivery to the assifjnce of Mie property bel()nifiii«.f to him at the time of the presentation of his petition and inventory, exerptin^ such property as he is peiinitted to retain under the provisi()r,« of this title; or if he has caused or pernntted any loss or destruction thereof; or if, within one month before the commencement of such jjroceedinjrs, he has procured his lands, goods, mone}', or chattels to be attaciied, or seized, on execu- tion; or, if he has tlestroyed, mutilated, altered, or falsified any of his books, documents, papers, writings, or securities, oi" has made or been privy to the making of any false or fraudulent entry in any book of account or other document with intent to defraud his creditois; or if he has made any fraudulent gift, transfer, conveyance, or assignment of any part of his proper- ty, or has admitted a false or fictitious debt against his estate; or if, having knowledge that any person has proven such false or fictitious debt, ho has not disclosed the sauie to his assignee within one month after such knowledge; or if, btMiig a mer- chant or tradesman, he has not, subsecpiently to the passage of this title, kept proper books of »ceount: or if he or any other person on his account, or in his behalf, has influenced the action of any crulitor at any stage; of the jnoceedings, by any pecuniary consideraiion or obligation; oi- if In- has, in contem- plation of iKJComing insolvent, made any ple«lge, transfer, &>r signinent, or conveyance of any part of his property. - &?/ i 256 Wyoming. f'Vli [Part 7 i^i 5. That he fraudulently contracted the debt, or incurred the obli<:fation, for which suit is about to be or has been brought. 6. That the money, or other valuable thing, for which a recovery is sought in the action, was lost by playing any game or by means of a bet or wager. The affidavit must contain a statement of the facts claimed to justify the belief in the exist- ence of one or more of such particulars. Before the order of ari'est is issued there must be executed, by sufficient sureties of the plaintiff, a written undei-taking to the effect that the plaintiit shall pay to the defendant all dam- ages, not exceeding douljle the amount of plaintiff's claim stated in the affidavit, which he may sustain by reason of the arrest, if the order prove to have been wrongfully obtained. Bail may be given by the defendant on his arrest, or at any tin; afterward, before judgment. It shall be done by causing sufficient bail to execute a written undertaking to the plaintiff in the pi;esence of the sherifl' to the effect, if judgment be rendered in the action against the defendant he will render himself amenable to the process of the Com-t thereon. Bail may be objected to for insufficiency at any time within ten days by serving upon the sheriff a written notice to that effect. After judgment an execution against the person of the debtor may be issued upon any judgment for the payment of money. 1. Where the debtor has removed or begun to remove any of his property out of the jurisdiction of the Court, with iritent to prevent the collection of the money due on the judgment. 2. When he has property or rights in action, evidence of debt, or interest or stock in a corporati(jn or company, which he fraudulently conceals with like intent. 8. When he has assigned or disposed of all or part of liis property, or I'ights in action, or has converted the sanu; into money with intent to defraud his creditors, or with intent to prevent such jiroperty from being taken in execution. 4. When he fraudiilentiy contracted the debt upon which judgment is rendered. Chap. G] Wyoming. 257 0. Wlion the judgment was reiidored for money, or otliev vahiahle thino- lost by playing at any game, or by means of any bet or wager. G. When lie was arrested on an order before judgment, and has not been discharged as an insolvent debtor, or the order has not been set aside as improperly made. Such execution against the person can be issued only wlien allowed by the District Court or any Judge thereof, upon be- ing satisfied, by affidavit of tlie judgment creditor or liis attoi'- ney and such other evi00. There is also exempt the necessary wearing apparel of everj' person, not exceeding in value $i')0. The tools, team and implements, or stock in trade of any mechanic, miner, or other person, used and, kept for the pur- pose of carrying on his trade or business, not exceeding in Chap. 8] Wyoming. 259 value S300. Also the library, instruments and implements of any professional man, not exceeding in value $800. There is no exemption in favor of a person not an actual resident of the Territory, nor ono "bout to remove or abscond therefrom. And no article or property is exempt from attachment or sale, upon execution, for the purchase money of said article of property. witli CHAPTER IX. 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 a]i])ropriate 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 property of the judgment debtor that may ^^e unearthed on examination, either legal or equitable, and appropriate the proceeds to the payment of the judgment. ned by nitiire, deVjtor i of any the pur- ding in CHAPTER X. SECURITY FOR COSTS. In all cases where the plaintiff is a non-i'esident of the county in which the action is brought, he nuist furnish security for costs before commencing such action. Security need not bo furnished, provided costs are paid as they accrue. CHAPTER XI. APPEALS. In actions at law, final judgments and orders may be revitnved on writ of error or petition in error sued out at any time within two years after rendition. 260 Wyoming. [Part 7 Where the jiulgment or decree sought to be reviewed is for the payment of money to stu}' execution, security must be given in double the amount of the decree or jutlgment. In other cases the amount of security is fixed by tlie Court. CHAPTER XII. ESTATES OF DECEASED PERSONS. Estates of deceased persons are settled in the Probate Courts throuu'h the usual means of executors and administia- tors. Claims against the estate must be presented within one year after the granting of letters testamentary or of adminis- tration, and if not so })resented, are forevi'r barred. Every executoi" and administrator must exhibit a .statement of the accounts of his administrati(,n for settlement, with proper vouchers, to the Probate (-ourt, at its first term aftcsr the end of six months from the date of his letters, and at the corresponding term of Court every six months until adniinis- tration be completed. r '■ CHAPTER XIII. DEPOSITIONS. No person is dis(iualiHed as a witness b}^ reason of his in- terest in the event of suit. Depositions may be taken as soon as a case is conmienced, and may be used when the witness doe.s not reside in the county where the action is pending, or is al)sent 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. Chap. 13] Wyoming. 2G1 Tliey may be taken in or out of the Territory, before a Justice of the Peace, Chancellor, or Judge of any Court of rec- ord, Notary Public, Mayor, Chief Mai^istrate of any city or town corporate, a Commissioner appointed by the Governor of the Territory, or any person authorizt'd by special connnission from the Territory. They may be taken in narrative form, or by questions and answers. In all cases they may bo taken on notice or com- nussion i.ssued by the Clerk of the Court. CHAPTER XIV. JUDICIAL RECORDS. The judicial records of another State must be proven in accordance with the provisions of the Act of Congress, except judgments of Justices of the Peace, whose proceedings may be authenticated by their own certiHeate, supported by the official certificate of the Clerk of any Court of Record in the county in which such Justice resides, that his sinnature is genuine and that he is an acting Justice of the Peace of that county. •■■fel il CHAPTER XV. ACKNOWLEDGMENTS. Deeds or mortgages, executed within this Territor}', of lands or any interest in lands, shrdl be executed in the pres- ence of GTv. witness, who shall subscribe his name to the same as such; an;l the person executing such deeds or mortgages may acknowledge the execution thereof before any Judge or Clerk of a Coui t. of Record, or before any County Clerk, or be- fore any Notary Public or Justice of the Peace within the '^m il i wr 2G2 Wyoming. [Part 7 Territory; and the officer taking such acknowledgment shall indorse 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 appointed by the Governor of this Territory for such purposes; provided, that unless the acknowledgment be taken before a Coiiunissioner appointed by the Governor for that purpose, or before a Clerk of a Court of record, or County Clerk, such deed or mortgage shall have attached thereto a certificate of the Clerk or other proper certifying officer of the Court of record, or County Clerk 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; that he knows the signature of such person sul)scribed thereto to be genuine, and that the deed or mortgage is executed and acknowledged according to the laws of such State, Territory or District. If any such deed, mortgage or conveyance, executed as aforesaid, be acknowledged before a Clerk of a Court of record, County Clerk, or Commissionei" appointed as aforesaid, then the officer taking the acknowledgment shall certify that such deed, mortirafje or conveyance is executed and acknowledged accord- ing to the laws of such State, Territory, district or county. Any deed, mortgage or conveyance executed in any other State. Territory, district or county, which shall be executed accordin* ^ ^^Bv't^i* ^^^^•^ ' ■if< ;, ^Bi ' ' »■ PART VIII. Montana. Prepared Expressly for this Work by McOu^ Attorneys at Law, Helena. eon 61, Mclntire, CHAPTER I. COURTS AND THEIR JURISDICTION. The Courts of the State are a Supreme Court, Di.strict Courts, and Justices of the Peace. There are also the U. S. Circuit Courts and the U. S. District Courts. The Supreme Court has appellate jurisdiction only. The District Courts of the State have original jurisdiction of all civil cases where the amount in controversy exceeds fifty dollars, of probate matters, and of all felonies; also appellate jurisdiction from Justices' Courts. Justices of the Peace have jurisdiction where the title of land is not in dispute, and where the debt or sum claimed does not exceed three hundred dollars. CHAPTER II. TIME ALLOWED DEFENDx.NT TO ANSWER — PLACE OF TRIAL OF CIVIL ACTIONS. Time Allowed Defendant to Answer. Ten days if served in the county; twenty days if served outside the county, but in the district; forty days in all other cases. £08 Montana. Place of Trial of Civil Actions. [Part 8 Actions for recovery of real estate, or for injuries thereto, for partition thereof, or for foreclosure of mortgage thereon, must be tried in the county where the same is situated. Actions for tlie recovery of a penalty or forfeiture imposed hy statute, or against a public officer, must be tried in the county where the cause arose. In all other cases the action is to be tried in the county in which tlie defendant may reside, or in the county where the plaintiff resides and the defendant may be found. lU ' w. n CHAPTER III. LIMITATION OF ACTIONS. Upon a judgment or decree of a United States Court, or of any State or Territory, six years Upon any contraat, obligation or liability, founded upon an instrument of writinn', six years. Acticjns for the recovery of real property, or the possession thereof, must be commenced within live years. Actions for waste or trespass upon real property; for a liability created by statute, other than a penalty or forfeiture for taking, detaining or injuring goods or chattels, and for re- lief on the ground of fraud, iinist be commenced within two 3'ears. Actio?Ts against a Sheriff, Coroner or Constable, for any act in his official capacity, must be commenced witliin two years. Actions upon an account, contract, obligation or liability not founded upon an instrument of writing, must be com- menced within three years. An action for libel, slander, assaidt, battery, or false im- prisonment, must be commcncecl within two years. An action upon a statute for a penalty or forfeiture, or an action against a Sheriff or other officer for the escape of a Chap. 3] Montana. 2G9 prisoner, arrested upon a civil process, must Le commenced within one year. There is no limitation upon the right to maintain an action for the recovery of money or other property deposited with any bank, banker, trust company, or savings and loan .society Actions for relief not provided for, as above, must be com- menced within three years after the cause of action accrued. If the party against whom the action accrues is out of the State at the time, the statute does not I'mi until his return and if, after the action has accrued, he departs from the .State, the time of his absence is not a part of the time limitetl for the commencement of an action. A part payment revives a debt which has been barred. No acknowledgment or promise is sufficient to take a case out of the statute, imless it be in writ- ing and signeil by tlie party to be charged. A cause of action arising in any other State or Teri'itory, and barred by the laws of such State or Territory, cannot be maintained here. CHAPTER IV. ATTACHMENTS— ARRESTS IN CIVIL CASES. Attachments. An attachment will issue in all cases where an affidavit is made by or on behalf of the plaintiff', that the defendant is in- debted to Mie plaintiff upon a contract for the payment of money, gold dust or other property then due, which is not seciu'cd by a mortgage, lien or pledge upon either real or per- sonal property: and upon giving an undertaking hi double the amount of the debt sought to be recovered, «...iless the sum claimed exceeds one thousand dollars, in which case the under- taking is ovdy required to be eipial to such amount, but in no CKHi to exceed ten thousand dollars, conditioned that the plain- tiff will pay all costs that maybe awarded to the defendant, and all damages which he may su.stain by reason of such at- 'ft' 5 -, I' 270 Montana. [Part 8 tachment, if the defendant recovers judgment, or the Court finally decides that the plaintiff was not entitled to an at- tachment. Arrests in Civil Cases. Arrests may be had in all cases of fraud, or when the action is for willful injury to person or character, or to pro- perty, knowing the property to belong to another. CHAPTER V. JUDGMENT LIENS, EXECUTIONS, EXEMPTIONS, SALE AND REDEMPTION. A judgment rendered by the District Court is a lien upon all the real estate of defendant in tlie county wherein it is docketed, and is such lien for the period of six years. Execution may be issued at any time within six years after the entry of the judgment. Executions may be issued to several counties at tlie same time. The following articles are exempt from execution: Wearing apparel of judgment debtor and family; also all chairs, tables, desks to the value of SI 00; all necessary household and kitchen furniture, including stoves, stovepipes and stove furniture, beds, bedding and provisions, and fuel actually provided for use sufficient for two months; and also one horse, two cows with their calves, two swine and fifty domestic fowls; also to a fai'mer, farming utensils not exceeding in value six hundred dollars, also two oxen, or one horse or mule, and their harness, two cows, one cart or wagon, and food for such animals for three months; 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 carry on his tiade. , k Chap. 5] Montana, 271 To a physician, surgeon or dentist, the instruments and chest necessary to the exercise of his profession, together with his library. To an attorne}'^ at law, or a minister of the gospel, their libraries. To a miner, his cabin, not to exceed in value $500; also his sluices, pipes, hose, windlasses, derrick, cars, pumps, tools, implements 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 harness, when necessary to be used for any windlass, derrick or pump. To a cartman, truckstcr, 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, residing in this State, supported wholly or in part by his la1)or. A homestead not exceeding in value $2500; if acfricultural land, not more than IGO 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 posting notice of the time and place of such sale in three pub- lic places of the township or city where the sale is to take place, for such time as may be reasonable in case of perishable property; in case of other personal pi'operty, 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 teiui of a two years' lease, the same may be redeemed within six months froin such sale, by — first, the judgment debtor; second, a creditor having a lien by judg- ment or mortgage on the property sold, or some part thereof. n : W ■■Mi W- r »;., 272 Montana. [Part 8 CHAPTER VI. PROCEEDINGS SUPPLEMENTARY TO EXECUTIONS. When an execution is returned unsatisfied, tlie judf]fment creditor may compel the debtor to appear before a Judge and answer concerning his property, and upon such liearing witnesses may be examined. If any property is found tlie Judge may order the same applied on execution. P ii CHAPTER Vn. SECURITY FOR COSTS— APPEALS. Security for Costs. Security may be recjuired in all cases where suit is brought by a non-resident; and where such security is required, all proceedings are stayed, and the action will be dismissed unless an undertaking is filed in such amoxuit 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 homestoaunty in which the seat of government may be. 19. Suits against any private corporation, association or joint stock company, may be commenced in any county in which the cause of afHion or a part thereof arose, or in which sucli corporation, association or company has an agent or I'epresentative, or in whicli its prhioipal office is situated, and suits against a railroad corporation, or against any assignee, trustee or receiver operating its railway, may also be brought in any county through which or into which the railroad of t uch corporation extends or is operated. 20. Suits against fire, marine or inland insurance companies ma}'^ be commenced in any county in which any part of the in- surcti property was situated, and suits against life and accident insurance companies or associations, may be couunenced in the county in which the p.^.son insured or any of them resided at the time of the death or injury. 'm \d If: Jv ! 284 Arizona. Venue in Justice's Com •-. [Part 9 The rules governing venue of civil causes in the District Court shall govern in Justices' Courts, the word "precinct" being substituted for the word "county" wherever applicable; provided that suits against administrators, executors, or guardians as such, and suits against counties must be brought in the precinct in which the county seat is situated. Suits against transient persons, non-residents of the Territory, or persons whope residence is unknown, may be brought in the precinct where the plaintiff resides. CHAPTER V. LIMITATION OF ACTIONS. The periods prescribed for the commencement of actions are as follows: Within Five Years: 1. Actions for debt where the indebtedness is evidenced by or founded upon any contrat^t in writing, executed within this Territory. • 2. Actions for the recovery of real property, where the adverse party claims under deeds duly registered. Within Four Years: 1. Actions for tlie penalty or for damages on the penal clause of a bond to convey x-eal estate. 2. Actions by one partner against his co-partner for set- tlement of the partnership accomit, or upon mutual and cur- rent accounts (^oncerninir the trade of merchandise between merchant and mcreliant, their factors or agents, and the cause of action sliall be considereil as having accrued on a cci^sation of tlie dealings in which they were interested to- gether. Chap. 5] Arizona. 285 3. Suits on the bond of any executor, administrator or guardian. 4. Actions for the speciiic performance of a contract for the conveyance of real estate. 5. Actions to contest the validity of a will. Within Three Years: 1. Actions for debt where the indebtedness is not evidenced by a contract in writing. 2. Actions upon stated or open accounts other than such mutual and current accounts as concern the trade of merchan- dise between merchant and merchant, their factors or agents. ■■'.'It: Within Two Years: 1. Actions of trespass for injury done to the estate or the property of another. 2. Actions for detaining of the personal property of another, and for converting such property to ones own use. 3. Actions for taking or carrying away the goods and chattels of another. 4. Actions upon a judgment or decree of any Court rendered without this Territory, or upon an instrument in writing executed without this Territory, the time to be computed from the arrival of the party pleading "^he statute in the Territory. iJI! Within One Yea )•: 1. Actions for injuries done to the person of another. 2. For malicious prosecution, false imprisonment, for in- juries done to the character or reputation of another by libel or slander. 3. For damages for seduction or breach of promise in marriage. 4. Actions for injuries done to the person of another where death ensued from such injuries; and the cau.se of action shall be considered as having accrued at the death of the party injured. • .J|.i Arizona. [Part 9 pv; The statute begins to run from the time the cause of action accrued. Part payment does not prevent the statute run ling; but in an action brought to recover a balance clue 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 cessation of the dealings in which they were interested together. Every action upon a judgment or decree rendered in any other State or Territory of the United States, in the District of Columbia, or in any foreign country, shall be barred if by the laws of such State or country such action would there be barred, and the judgment or decree be incapable of being otherwise enforced there. If, when the cause of action accrues against a person, he is out of the Toi'ritory, 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 couuuencement of the action. CHAPTER VI. ATTACHMENTS. The Judges and Clerks of the District Courts and Justices of the Peace may issue writs of original attachment, returnable to their respective Courts, upon tlie plaintiti* his agent or attorney, making an affidavit in writing, stating one or more of the following grounds: 1. That the defendant is justly indebted to the plaintitt" and the amount of the demand; and, 2. That the defendant is not a resident of the Territory, or is a foreign corporation, or is acting as such; or, Chap. 6] Arizona. 287 3. That he is about to remove permanently out of the Territory, and has refused to pay or secure the debt due the plaintiff; or, 4. That he secretes himself, so that the ordinary process of law cannot be served on him ; or, 5. That he has secreted his property for the purpose of defrauding his creditors; or, G. That he is about to secrete his property for the purpose of defrauding his creditors; or, 7. That he is about to remove his propertj' out of the Territory, without leaving sufficient reinainiiig for the payment of his debts ; or, 8. That he is about to remove his propert}-, or a part thereof, out of the county where the suit is brought, with intent to defraud his creditors- or, 9. That he has disposed of his property, in whole or in a part, with intent to defi-aud his creditors; or, 10. That he is about to dispose of his property with intent to defraud his creditors; or, 11. That he is about to convert his property, or a part thereof, into money, for the pui-pose of placing it beyond the reach of his creditors; or, 12. That the debt is due for property obtained under false pretenses. The affidavit shall further state: 1. That the attachment is not sued out for the purpose of iniurmfj: or harnssins: the defendant; and, 2. That the plaintifi' will probably lose his debt unless such attachment is issued. No such attachment shall issue until the suit has been duly in.stituted, but it may be issued in a proper case either at the conmiencement of the suit or at any time during its progress. The writ of attachment above provided for .shall issue, although th(> plaintiff's di'bt or demand be not due, ami the same proceeding shall be had thereon as in otiier cases, except that no final judgment shall be rendered against the defendant until such debt or demand shall become due. m m m 4 288 Arizona. [Part 9 \i\ Before the issuance of any writ of attachment the plaintiff must execute a bond, with two or more good and sufBcient sureties, payable to the defendant, in a sum not less tlan double the debt sworn to be due, conditioned that the plaintiff" will prosecute his suit to effect, and will pay all such damages and costs as shall be adjudged against him, for wrongfully suing out such attachment. Ir i! CHAPTER VIT. GARNISHMENT. The Clerks of the District Courts and Justices of the Peace may issue wx'its of gai'nishment, returnable to their respective courts, in the following cases : 1. Where an original attachment has been issued as herein- before provided. 2. Where the plaintiff" sues for a debt, and makes affidavit that such debt is just, due and unpaid, and that the defendant has not, within his knowledge, property in his possession, with- in this Territory, subject to execution, sufficient to satisfy such debt, and that the garnishment applied for is not sued out to injure either the defendant or the garnishee. 3. Where the plaintiff has a judgment and makes affidavit that the defendant has not, within his knowledge, property in his possession within this Territoiy, subject to execution, suffi- cient to satisfy such judgment. In the case mentioned in subdivision two of the preceding section, the plaintiff" shall execute a bond, with two or more good and sufficient sureties, to be approved by the officer issuing the writ, payable the defendant in the suit, in double the amount of the debt claimed therein, conditioned that he will prosecute this suit to eff'ect and pay all damages and costs that may be adjudged against him for wrongfully suing out such garnishment. Before the issuance of the writ of garnishment the plaintiff" shall make application therefor in writing, under oath, signed Chap. 7] Arizona. 289 by him, stating the facts authorizing the issuance of the writ, and that the plaintiti" has reason to believe that the garnishee, stating his name and residence, is indebted to the defendant; or that he has in his hands etiects belonging to the defendant; or that the garnishee is an incorporated or joint stock company, and that the defendant is the owner of shares in such company, or has an interest therein. The time in which the writ shall be returned is the same as summons in civil cases. CHAPTER VIII. JUDGMENT LIENS. The Clerk of a Court or a Justice of the Peace, when the person in whose favor the judgment was rendered, his agent, attorney, or assignee, applies therefor, shall make out and de- liver to such applicant, upon the payment of the fee allowed therefor by law, an abstract of such judgment, and certify thereto under his hand and official seal, or if a Justice, under his hand. The abstract shall show: 1. The names of the plaintift'and defendant in such judg- ment. 2. The number of the suit in which the judgment was rendered. 3. The date when such judgment was rendered. 4. The amount for which the same was rendered, and the amount still due upon the same. 5. The rate of interest, if any, is specified in the judgment, v^hen any such abstract is presented to the County Recorder for record, he shall file and immediately record the same in the judgment record, and shall also at the same time enter it upon the index. When any judgment has been recorded and indexed, it shall, from the date of such record and index, operate us a lien I !.:X '- It :v(|i —4-,; I I ill f'l 290 Arizona. [Part 9 upon all of the real estate of the defendant situated in the county where such record and index are made, and upon all the real estate which the defendant may thereafter acquire situated in said county. When a lien has been accjuired as provided in this Act, it shall continue for five years from the date of such record and index unless the plaintiff shall fail to have execution issued upon his judgment within twelve months after the rendition thereof, in which case said lien shall cease to exist. ill 1 CHAPTER IX.. EXECUTIONS, EXEMPTIONS, SALE AND REDEMPTION. Execution may be issued at any time within five years after the entry of judgment. The following property is exempt from execution: 1. The homestead, consisting of a quantity of land, to- gether with the dwelling-house thereon, and its appurtenances, and the water rights and privileges peitaining thereto, suffi- cient to irrigate the lands, not exceeding in value the .sum of four tliousand dollars, allowed to the head of the family. The homestead may be selected by the debtor, or by appraisers duly appointed for that purpose. 2. $1000 worth of personal property, to be selected by himself. If the officer holding execution and defendant disagree as to value of property selected, each shall select an appraiser, who shall appraise the property, and if they disagree they may select a third party, and the decision of the three as to the value shall be final. If the defendant fail to select a person to act as an appraiser, the officer shall summon three disinterested property holders, neighbors of defendant, who shall designate aneal shall be regarded as i.'" not taken. Upon trial in the appellate Court, the successful party is entitled to lia\i' the jodgment remitted to the Court from which the appeal was taken for execution. ii'uM CHAPTER XII. EST\TES OF DECEASED PERSONS. Claims against deceased estates must be made within ten months after notice of administi-atioti is given Satisfactory proof of the amount due must iie made to the Administrator and Probate Court. 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 busi- ness t)f the estate. The widow or other members of the family are entitled to the homesteail, and such further allowances as the Probate Court ma}' decir proper for the maintenance of the widow. The largest discretion is given the t?ourt in making orders respecting i\w estate. 312 Utah. [Part 10 ■( * ;■ CHAPTER XIII. HOMESTEADS. T ,ere shall be allowed homestead exemptions, 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 premises amount in value to more than the homestead ex- emption, it may be ordered sold or partitioned, and in case of sale, the excess over the exemption valuation is subject to execution; and in case of partition, the part divided off from the homestead is subject to sale on execution, the valuation to be made by persons chosen by the debtor and the officers hav- ing the execution. CHAPTER XIV. DEPOSITIONS. May be taken in any action at any time after service of sununons, or the appearance of the tlefendant, and in a special proceeding after a question of fact has arisen therein,, in the following cases: 1. When a witness is a party to the action or proceeding, or a person for whose inunediate benefit the action or proceed- ing is prosecuted or defended. 2. When the witness resides out of the county in vhieli his testimony is to ho used. 3. When the witness is about to leave the county where the action is to be tried, and will probably continue aUsent when liis testimony is retjuircij. Chap. 14] Utah. 313 4. When the witnes.s, 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 be- fore 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 affi- davit 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 ex- amination 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 testimony carefully examined and read to him, he shall sign it; and the officer taking the deposition shall certify it up to the proper Court, inclosed 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 trnnsniit through the mail ; and such deposition may be used h\ r party on the trial. No objections to the form of an int^ iioj^atory at t>e trial will be heard, unless made at the time of tak' ; if the partv making the objection is in attendance at the takini; If a deposition be taken on account of the absence from the county, or intended absence, or because the witness is too infirm to attenil, before V)eing used proof must be made by affidavit or oral testimony that the witness' disability contin- ues, to the best of affiant's knowledge. The deposition may be read in case of his deatli. Depositions once taken may be read in any stage of the cause by either party, and sliall be deemed evidence of the party reading them. If a deposition be taken out of the Territory, it must be upon a commission issued V)y the Court, under its seal, upon five days' notice to the at entitled to an <'xemi)tion of five hundred dol- lars in p(!rsonaIty. For homestcH to the value of 32.50 an acre, and residing on the land; and on a survey being made, a grant in fee .simple is issued without charge, or can purcha.9e in surveyed districts at !?1 an acre. Aliens. Foreign citizens can be naturalized after three years' resi- dence and taking the oath of allegiance. Aliens have full power to take up land without the neces- sity of taking the oath of allegiance, but they must declare their intention of becoming a British subject. They have all the same privileges as natural-born persons except the right of voting for the Legislature, and holding municipal offices. Any one can buy lands at !?2.r)0 per acre. In the case of timber lands, any one can acquire a timber license at the rate of 8-)0 a year for 1000 acres, or can pur- chase timber lands at !?2.50 per acre, paying ')0c. per M for all timber cut. Lien. Every person furnishing materials or doing work for an- other is entitled to a lien on the building or erection, and on the land on which such building or work has been performed. Such lien has to be registered within thirty days, and no paj"- mt'nt made to a contractor within thirty days of the comple- tion of the work shall \»: valid against the lien holder. There are (jther provisions for the protection of the workman and supplier of materials which give an ample protection again.st dishonest contractors. 330 British Columbia. [Part 11 ' CHAPTER XVm. MUNICIPALITY LAWS. Commercial travelers have to pay a license of $10 for every six months. All other businesses pay a license varying from So to 8100 a year. The municipalities have only a limited power of taxation; in other respects they have complete self government. CHAPTER XIX. SHIPS AND SHIPPING. Foreign vessels sold to a British subject can be registered in the Dominion, subject to a tariff of ten per cent. The navigation laws are those of Great Britain. CHAPTER XX. INSOLVENCY. At the present time there are no bankruptcy or insolvent laws in tlio Dominion of Canada, but the local Legislature have passed acts intended to assist creditors by rendering void all judgments by confession or assignments of chattels given by a debtor in insolvent circumstances. Chap. 21] British Columbia. 381 CHAPTER XXI. MINES, ETC. Free miners have to pay a license fee of So a year. A free miner is entitled to 100 feet sc^uare of dry diggings or bench claims wherever found; 1.500 feet by GOO feet for mineral claims. All claims have to be recorded. Disputes are decided on the ground by the Gold Commis- sioners, with or without a jury of live. Crown grants are issued for mineral claims upon fulfilling certain simple requisitions. >;ij Goal Mines. Coal land can be bought at the same price as ordinary Crown lands, and a royalty of five cents per ton on all coals raised. ■' •^:i| ■: il PART XII. Colorado. Prepared Expressly for this Work by R. D. Thompson, Denver, Colorado. JURISDICTION OF COURTS. Justice Courts, up to S300; County Courts, up to 82000; District Courts, unlimited as to amount involved. TIME TO ANSWER. In Di.strict and County Court suits the defendant has twenty days to answer, where summons is served in the county where suit is brought: if served out of the county thirty days. If copy of complaint bo not served with the sunnuons, ten day,s additional time allowed for appearance. In Justices' Courts not less than five nor more than fifteen days after date of summons. ATTACHMENTS. An attachment may be had where it is shown by affidavit that debtor is a non-resident; or a foreign corporation; or a corporation whose chief office or place of business is out of the State; or that debtor conceals himself or stands in defiance of an officer so that process cannot be .served on him; or that debtor has been more than four months absent from the State, or that for such length of time his whereabouts has been un- known, and that the indebtedness has been due during all said period; or that debtor is about to remove his property, or a material part thereof, out of this State with intent to defraud. i *s 1+' 884 Colorado. [Part 12 ik. hinder, or delay his creditors; or that debtor Ims or is about to fraudulently convey, transfer or assign his property or eftects so as to hinder or delay his creditors; or that debtor has or is about fraudulently to conceal or remove, or dispose of liis pro- perty so as to hinder or delay his creditors; or that debtor has departed or is about to depart from the State with the inten- tion of having his effects removed from this State; or that debtor has failed or refused to pay the price or value of any article delivered to him, which he should have paid for upon the delivery thereof; or that debtor has failed or refused to pay the price or value of any work or labor done or performed; or for any services rendered by plaintiff at the instance of th(; shown by affidavit: When debtor is a non-resident of the Ten-itory; when debtor has concot led himself, or abscondee arrested in a civil action, where he i.s about to leave the Territ\' a family, ami not the owner of a homesteail. m.i , hold exempt frmn 1«'\ y and sale, real or personal pi-operty to lie selected by such per- son, his a'^ent or attorney, at any timr iN-fon- sale, not cKfei-d- ini; five hundreil dollars in value, in adilition to the amuuttt of t'liattel property othervise V»y law exempted. ESTATES OP DECEASED PERSONS A year is allowed to .-:ettle estates. Claims against estates of deceased persons unist he presented within one year from date of death of dccoaseil, and suits inu.st b(? hrouf^ht within IM months. BILLS OP EXCHANGE, Etc. No days of grace allowed; if they mature on !*>ujjday or legal holiday, the following busines;. day will be the day pay- able. ACKNOWLEDGMENTS. If taken within the Territor,-, before a .ludge or Clerk of a ('o irt of record having a .seal, or before a Justice of the Peace, cv . is Ju\ law cxi-iiipt from salo under execution, to any i»urs(»n in trust for the henetit of his creditors, hut such assi<,'nment shall lu- for tin- henetit of all the creditors of the assij^nor: and every such assijjfnmi.'Ut shall he proved, or ac- knowh'ilrjcd and eertitie(l and ivcorded in the same manner as is preserihcd \>y law in eases wherein real estate is conveyed. The assij^'uee shall i.d\e a hond to be approved l»y the .Fudge; of the District Court. >«id said Judtoi"s, and every judj^'Micnt suffered by any detendant, or any act or ilevice done oi- roorted to by a debttir in contfuiplation of insolvency, and with the (lesit;n to prefer one or more creditors, shall oper- ate as an assi;^nment and transfer of all the property and effects of such debtor, and shall inure to the l)enetit of all his cred- itors in pi'oportion to the amount of their respi-etive denumds. All such transfers sliall be subjfet to tin- control of (-ourts of e<|uity upon the bill of any person interested, lilcd within six months after the mortgage or transfer is legally lodged for record, or the delivery of the property or ettects tran.sferred. PART XIV. Texas. Prepared Expressly for this Work by Shook & VanderHoeven, San Antonio, Texas. JURISDICTION OF COURTS. Jiistict's" Courts, up to :*200. J)istrict Courts above !?20(), unliiniti'd. Cyounty Courts liavi; jurisd'ctioii of proltate nuittors, etc., anil in sonio counties have orij.,anal civil jurisdiction up to >*.')<)(), and concurrent jurisdiction with J^istrict Court up to $1 ()()(). TIME TO ANSWER. Defendant, after .service on him of sunnaons, niu.st answer. Time to answer is five days after the return day of the Cojut, called appearance day. ATTACHMENTS. May is,sue when sliown hy aHitiavit that debtor is not a resident of the State, or is a forei|^n corporation; when he is about to remove pernuvnently out of the State, anil has refusi-d to pay or secure the debt; when he secretes himself, so that the ordinary proce.ss of law cannot be s»>rved upon him; wln'ii the debtor has secreted his pn)p«'rty for the purpose of ilefraiidinjf his creditors; when he is ai»tut to secret.^ his propi-rty for the purpose of defraudintj his creditors; when he is ab(»ut to re- move his property out of the .State without leavin;^ sutficient 342 Texas. [Part 14 roiiiaiiiin exceed 'welve ju'r cent, per anuum niav b- agn-.il upon. U !»'y forfeits nil interest. Texas. lUt] ESTATES OF DECEASED PERSONS. Cluiiiis against (jstaU's to be j)r('sente(l within twclvi' months from planting oi letters; and if verified out of tins State, to lie sworn to hefore a Commissioner for tliis State, or before a Notary PuMie. or he'ore a Jiidire or a ('lerk of a Court of reeoni. Letters of administration must be "ranted within four years after dcatli, and not after. BILLS OF EXCHANGE AND PROMISSORY NOTES. Three days of grace arc aUowed. ACKNOWLDGEMENTS. Taken in this State may be taken before: Firnl. — A Clerk of the District Court. ScrtHiil. ~\ Judge or Clerk of the CJounty Court, or Justice of the Peace. Thini.—A Notary Public. Taken out of the State, but within tlie Unite il'A /i taken: a Cons»d-(J.tieral, Consul, Vice-Con.sul, Com- mercial Agent. N'ice-CoMunercial Agent, Deputy Consul orC'(»n- >ulnr Agent of the I'nited States, resident in the country will re the proof or acknowledtimiut is made. The otHecr IteVore whom an acknowledgiueut is taken must certify tlmt tht> party "is known to liim.' i4 344 Tkxas. [Part 14 INSOLVENT AND ASSIGNMENT LAWS. There is no insolvent law in this State, Init tliere is an assiginneiit hiw for henefit of creditors. A creilitor may or may not accept under tlie assij^niiiicnt. ii' he accepts lie uivi-s his consent in writinjj; to the assignee witliin fonr months after notice of tlie assignment is pub- lished, and within six months after such notice is pul)lished, must tih his chiim duly verified hy affidavit. If the assignee pays to an accepting creditor as much as :{:{.', per cent, of the claim it t»perates as a full release thereof, liut any less amount is only a credit on the claim. The creditor who refuses to consent to (he assignment re- ceives none of the assigned estate; hut his remedy at law against the assignor is unimpaired. PART XV. State of Washington. Prepared Expressly for this Work by Peterson & Pennefather Seattle. Article XVII, section 2, of the Constitution of thr State of Wasltinfjton, provides: "AH laws now in force in the IVrritorv of Washington, which are not repugnant to this Constitution, shall remain in force until the)' expire by their own limitation, or are altered or repealed by the Legislature; prorldeil, that thi.s .section shall not be so construed as to validate any act of the Legislature of Washington Territorv. granting shore or title lands to any person, company, or any municipal or private corporation." CHAPTER I. COURTS AND THEIR JURISDICTION. Umler the Constitution of Washington, the Judicial power of the State is vested in a Supreme Court, Supei'ior Courts, .Just'ces of the Peace, and such inferior ('ourts as the Legisjatuii' may provide. Tlie Supreme Court is an appellate Court, but has original juri.sdiction in habeas corpus, and (]Uo warranto and mandamus, as to all State orticers. It has appellate jurisdiction in all actions an»i proceedings, excepting that its appellatt' jurisdiction shall not ;tend to civil actions at law for tlie recovery of money or '( M 84() Washinoton. [Part !") personal property, when the original amount in controversy iloe.s not exceed the suiu of $200, unless the action involves the legality of a tax, impost, assessment, toll, municipal tine, or the validity of a statute. (Constitution, Art. IV, Sec. 4.) The Superior Court has original jurisdiction in all cases in eipiity and in all ca.ses at law which involve the title or pcssession of real property, or the legality of any tax, impost, a-ssessment, toll or municipal fine, anu in all other cases in which the demand or the value of the property in controversy amounts to one hundred dollars, and in all criminal cases amounting to felony, of actions of forcible entry and detainei", of proceedings in insolvency, and ef matters of probate and divorce. (Const. Art. IV, Sec. G.) There is a Probate Court in each county, holding six terms i-ach per annum, having statutory /.irisdiction in all matters pertaining to decedents' estates, and the guardianship and •estates of minors and insane persons. They have n(» common law jurisdiction exe(?pt .such as is .strictly neces.sary to carry out and enforce that defined by statute. The constitution provides that the Probati; Court shall be merged into the Superior Court after the si-eond Motiday in .January, 18!>I. Justices of the Peace: the Legislature shall prescribe by law the powers, duties and jm'isdietion of Justices of the Peace; l)Ut such jurisdiction granted by the Legislatun; shall Jiot trench upon tin.' jurisdiction of Superi(»r or other Courts of record^ (Const. Art. IV, See. 10.) .Insticesof the Peace have juri.sdietion co-extensive with the limits of their respective counties, over all causes arising on contract for the recovery of money oidy. when the sum claimed does not exceed one hundred dollars, ami in actions for damages for injury to per.scni or pioperty, or for taking or detaining or injuring personal projierty, if the damages claimed do not exci'ed one hundred dollars; also in actions to recovei- the possession of personal property where the value does not Jimoimt to one hundred dollars; also in actions on undertakings or bonds, when the penalty or amoiuit claimed ^ '' o .V ,Aj "^0- 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 4. ■^0 '%sr,'> (/j .<^' 350 Washington. [Part 15 r » Actions for a penalty or forfeiture imposed by statue, or against pi;blic officers or person specially appointed to execute his duties, for an act done by him in virtue of his office, shall be tried in the county or district where the cause of action or some part thereof arose. (Sec. 48, Code 1881.) Actions against corporations may be brought in an}' county where tlie corporation has an office foi' the transaction of businer^s, or any pcr.son resides upon whom process against sudi corporation may bo served. In all other cases the action uuist be tried in the county in which the defendants or some of them reside at the commencement of the action, or where they may he served with process. CHAPTER V. LIMITATION OF ACTIONS. The period prescribed for the limitation of actions from the time the cause of action accrues, is as follows: For the recovery of real property, or the pos.session thereof, ten years; upon a judgment or decree of any Court of the United States, or of any State or Territory within the United States, or upon a contract in writing or liability, express or implied, 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 injuring personal property, including an action fo)- the spe- cific 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 Sheriffi, Coroner or ConstaV)le upon a liability incurred l»y tin; doing of an act in his official capacity, and by virtue of his office, or by the omission of an official duty, including the non-payment of money collected upon execution ; upon a statute for a penalty Chap. ()] Washington. 35! oi' forfeiture, and for seduction and breach of marriage con- tract, tlu'ee years; for libel, slander, assault, assault and bat- tery and false iuiprisoinnent, actions upon a statute for a for- feiture or penalty to the State, two years; against a Sheriff oi- other officer for the escape of a prisoner arrested or imprisonoil on civil process, one year. An action by an heir, legatee, creditor or other party inter- ested against an executor or administrator for alleged misfeas- ance, uialfeasance or mismanagement of the estate, within one year from the time of final settlement or the time such alleged misconduct was discovered. An appeal from any order of a Board of County Connnis- sioners; or upon a claim rejected by said Board; and upon claims against an estate rejected by an executor or adminis- trator, within three months after the rejection. When the cause of action arises in another State or Terri- tory, between a resident of that State or Territory and of this State, the foregoing limitations apply. When the cause of ac- tion arises in another State or Territory between non-residents of this State, and the same would be barred there by the lapse^ of time, it will be barred here. An action shall be deemed connnenced as to each defendant when the complaint is filed. Section 33, Code, provides: An action for relief not here- inbefore provided, shall be commenced within two years after the cause of action shall have accrued. CHAPTER VI. ATTACHMENTS AND GARNISHMENTS. The plaintiff', at the time of connnencing an action, or at any time thereafter, and before judgment, may have the pro]> erty of the defendant attached as security for the satisfaction of such judgment as he may recover; but before such writ of attachment shall issue, the plaintiff or some one in his belialf shall make and tile an affidavit showing that the defendant is ill fr 1 5 352 Washington. [Part 15 indebted to the plaintiff, specifying amount of indebtedness over and above all just credits and off-sets; and tliat the attach- ment is not sought, and the action not prosecuted, to hinder, delay or defraud any creditor of the defendant; and either: 1. That the defendant is a foreign corporation; or 2. . That the defendant is not a resident of this State; or .S. That the defendant conceals liimself so that the ordi- nary process of law can not be served upon him; or 4. That the defendant Iias absconded or absented himself from his usual place of abode in this State, so that the ordinary process of law can not Ije servetl upon him; or 5. That tlie defendant has removed or is about to remove any of his property from this State with intent to delay or defraud his creditors: or (i. That the defendant has assigned, secreted or disposed of, or is about to assign, secrete or dispose of, any of his prop- erty with intent to delay or defraud his creditors; or 7. That the defendant is about to convert his property, or a part thereof, into monej' for the purpose of placing it beyond the reach of his creditors: or oat with oars, sails and rigging, not exceeding in the aggregate $250 gold coin. To a teamster or drayman, engaged in that business for the support of himself or his family, his team, con.sisting of a span of horses, or mules, or two yoke of oxen, or a horse and mule, with harness, yokes, one wagon, truck, cart oi 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 quantity of hay, grain or feed to keep the animals herein exempt for six weeks. No property shall be exempt from an execution issued on a judgment for the price thereof, or any part of the pi'ice thereof, or for any tax levied thereon. Sale of Property under Execution. Personal property is sold by the Sheriff' upon ten days' no- tice of the time and place of such sale, posted in three public places of the county where such sale is to take place ; real es- tate, by posting similar notices, particularly describing the property, for four weeks, successively, in three public places of the county where the property is to be sold, and publishing 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 newspaper pub- lished nearest to the place of sale. All sales of property upon execution shall be by auction. When the sale is of personal property capable of manual delivery, it shall be in view of those who attend the sale, and of real estate, at the Court- house door. Chap. 10] Washington. Redemption. 3(il Sales of " ^l estate are confirmed at the next term of tlie Superior Court following the return of the execution ; or if re- turned in term time, then at such term. The judgment debtor, or his .successor in interest, may redeem any real estate sold under execution or foreclosure of mortgage at any time within one year from tiie date of the sale, by paying the amount v" ,.ur- chase money, with one per cent, per month interest from the date of sale, together with the taxes which the purchaser may have paid. CHAPTER XI. PROOEEDINGS SUPPLEMENTARY TO EXECUTION The plaintiff, in proceedings supplementary to execution, may, upon a proper showing to the Court or Judge, have an order recjuiring defendant to appear and answer as to any propei'ty 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 in the sum exceeding fifty dollars, may be required to appear and answer concerning the same. CHAPTER XII. REPLEVIN. In an action to recover the possession of personcl property, the plaintiff, or some one in his behalf, shall make an aflfidavit showing: 1. That the plaintiff is the owner of the property claimed, or is lawfully entitled to the possession thereof. i J 862 Washington. [Part 15 iK- m '■I 1^ :| 1:;: I'r 2. Tliat the property is wrongfully detained by defendant. 3. Tliat the same has not been taken for a tax, assessment, tine, or seized under execution or attachment. 4. The actual value of tlie property. The Sheriff shall, upon receipt of the affidavit and a bond executed by one or more sureties in double the value of the property, take the property into liis possession. The defend- ant may, within three days after the service of tlie bond and affidavit, object to the sufficiency of the sureties. The defend- ant may demand a return of the property hy furnishing an indemnity bond, witli two or more sufficient sureties, to the Sheriff in double the value of the pi'operty. CHAPTER XIII. SECURITY FOP COSTS. When the plaintiff resides out of the county, or is a foreign corporation, security for costs may be required by the defend- ant; when recjuired, all proceedings in the action shall bo stayed until a bond, executed by two or more persons, be tiled with the Clerk, conditioned that they will pay such costs and charges as may be awarded against plaintift', not exceeding tlie sum of 8200. (Sec. 527, Code lcS81.) 111 'l\ CHAPTER XIV. APPEALS AND WRITS OF ERROR. May be taken from the Superior Court to the Supreme Court at any time within six months from the rendition of the order, judgment, or decree appealed from, and not afterward. To stay proceedings in the Court below, the appellant or ])laint- ifi'in error nuist file a bond with sureties to the satisfaction of the Clerk. Appeals from the Probate Court to the Superior Court mu9t be taken within sixty days from the rendition of the decision or judgment; and from Justices of the Peace to Chap. 14] Washington. •SCS tlie Superior Court, within twenty r ncknowledged in anj' other State or Territory of the United States, in tlie form prescribed for executing and acknowledg- ing deeds in this State, and tlie execution thereof may be ac- kiiowledgt.'d liefoie an}^ person authorized to take acknowledg- ments of deeds by the laws of the State or Territory wherein the acknowledgment is taken,, or before any Commissionei* Mppointed by the Governor of Washington for such purpose. Unless such acknowledgment be taken before such Connnis- sioner, or by the Clerk of a Court of record of said State or Territory, or by a Notary Public or other officer having a seal of office, then such deed shall have attached thereto a certificate of the Clerk of a Court of record, under the seal of said Court of said county or district, or a certificate of any other proper certifying officer of said district or county, within which the acknowledgment was taken, under the seal of his (jffice, that the |)erson wIkjsc nam; is subscribed to the cei'tificate of ac- knowledgment was, at the date thereof, such officer as he is therein represented to be; that he is authorized by law to take acknowledgments of deeds; and that he verily believes the signature of the person subscribed thereto to be genuine. Aeknowledjjjments of all deeds, mortoaces, and other instru- ments in writing may be nuide and taken in any foreign coun- try, beyond the limits of the United States, before any Minis- ter Plenipotentiary, Secretary of Legation, C/ntrye d' Affaires, Consul, Consul-General, Vice-Consul, or Commercial Agent appointed by the Government of the United State, or the proper officer of any (Jourt of .said country, or the Mayor or other chief Magistrate of any city, town, or other municipal corporation therein. A deed shall be in writing, signed by the party bound thereby, and acknowledged by the party making it, before some person authorized by the laws of this State to take the acknowledgment of deeds. The use of private .seals to the signature of the grantor or grantors is abolished. (Laws liS87-8.) A married woman shall not be bound by any deed afiecting her own real estate, or releasing dower, unless .she shall be joined in the conveyance by her husband, and shall acknowl- Clia)). 20] Washington. :37l vih^r that she did vohmtarily of lier own free will execute the deed. (2313.) All deeds and mortgages shall be i-ecorded in the office of the County Auditor where the land is .situated, and when so filed and recorded shall be notice to the world. (2314.) A certificate of acknowledgment suVistantially in the fol- lowintf f(jrm shall V)e sufficient: S'iatf: of- County of- I. s. I (here give name of otiicei' and official title) do hereby certify, that on this day of , 180 — , personally ap- peared before me (name of grantor, and if acknowledged by wife, her name, and add "his wife"), to me known to be the individual (or individuals) described in, and who executed the Avithin instrument, and acknowledged that he (she or they) sigiuMl and sealed the same as (his, her or their) free and vol- untaiy act and deed, for the uses and purposes therein men- tioned. Given under my hand and official seal, this day of A. I). 189—. [seal.] (Signature of officer.) Place of residence, and date of expiration of commission. In case the owner of a homestead voluntaril)' mortgages the same, said mortgage shall not be valid against his wife, who may be occupying said homestead with him. unless she shall freely and voluntarily, separate and apart from her husband, sign and acknowledge it, and the officer taking the acknowl- edgement shall fully appri.se her of lier rights, and of the effect of .signing such mortgage. CHAPTER XXI. LIMITED PARTNERSHIPS— CODE OF 1881. Limited pai'tnorships for the transaction of mercantile, mechanical, or manufacturing business, may be formed within this State by two or more persons, who are known and called .S72 Washinc/ion. [Part J.-) i I ,i,'eneral paitncrs, and are generally and jcnntly liable as genei al partners; and of two or more persons who shall contribute to the eonnuon stock a specific sum in actual money as capital, and are known and called special partners, and are not peison- ally liable for any del)ts of the partnership, except as hereafter stated. The persons forming such partnership shall make and severally subscribe in duplicate a certificate, and each partner shall acknowledge the same, and file one with the County Auditor, so subscribed and acknowledged. Such certificate must contain the name of the partnership, and under which its business is to be conducted, names and residences of all gene)'!il and special partnei's, amount of capital which each special ])artner has contributed to the common stock, the general nature of the business to be transacted, time of commencement and termination thereof. Cannot commence before tiling certificate: if false statement is made, all subscribing partners become liable as general partners. Partners must publi.sh in weekly newspaper in county for four consecutive weeks, a copy of certificate of partnership, and until published for the full time, partnership considered general. The business may be conducted in name of general partners, witliout the word company or any other general term. A .special partner is liable as a general partner if his name is used, or if he personally makes any contract respecting the concerns of the partnership with persons except general partners ; unless he acted and was recognized as a special partner only. No part of the capital stock shall be withdrawn, nor .shall it be reduced below the sum mentioned in the certificate of partner- ship. If during the continuance, or at the termination, the assets are not sufficient to satisfy partnership debts, then the special partners are liable for all sums by them received or withdrawn from the capital stock. Limited partnership shall not be dissolved before the time specified in the cei'tificate of partnership, unless a notice of such dissolution subscriV)ed l^y all the partners is filed, and a copy of .such notice is publi.shed in the manner prescribed for the publication of the certificate of partnership. Chap. '2-1] Washington. ' a?:} CHAPTER XXII. MARRIED PERSONS. .Married persons have the same riglit and liberty to acquire, hi)ld, enjoy, and dispose of every species of property, and to sue and be sued, as if they were unmarried. All laws which impose or recognize civil di.sabilities upon a wife, which are not imposed or recognized as existing against the husband, are abolished. A wife may receive, maintain an action for, and hold in her own right, the wages of her personal labor. Neither hus- banod, not to exceed one year's supply, is exempt. Personal prope ^y, which has been consigned from any place out of tlu^ State, tr> be .sold in the State, is subject to taxation. Taxes are delin- quent on the first day of March in each year, after which the Sheriff shall collect all delinquent taxes, with the per cent, penalty, and interest at the rate of ten per cent, until paid. Tax sales commence on the first Monday in August of each year; the Sheriff must give notice by publication for three consecutive weeks, or by posting printed notices. Lands sold for taxes may be redeemed by former owner, mortgagor, execu- tion or attaching creditors, witlun three years, on paynient of delinquent taxes, with interest at twenty per cent, per annunii and costs, eharges, and accruing taxes. CHAPTER XXVII. INSOLVENT LAWS. Every insolvent debter may Ite discharged from his debts on executing an assignment of all his property, real, personal or mixed, for the benefit of all his creditors, in compliar.ee witli Part XV.— Washington. INSOLVENT DEBTORS — LAWS 1890. SYNOPSIS. No {general assignment of property by an insolvent, or in contemplation of insolvency, for the benefit of creditors, shall be valid unless it be made for the benefit of all his creditors in proportion to the amount of their respective claims. And such assignment shall have the effect to dischar"e anv and all attachments on which judgments have not been taken at tiie date of such assignment; and after the payment of costs and disbursements thereof, including the attorneys' fees allowed by law in case of judgment out of the estate of the insolvent, such claim or claims shall be deemed as presented, and shall pro rata with other claims. Every assignment shall be in writing, acknowledged and recorded. Two or more creditors may, within thirty days fi-om the making or recording of the assignment, through the Judge of Superior Court, have a meetin"^ of creaiiv,rs called to choose an assignee in lieu of the f ^signee nameil in the assignment. Such creditors may appe> r in person or by proxy with verified claims, and a majority ir niunber anil value of said creditors attending such meeting (Jiall select one or more assignees. Assignee shall give bonds. ' Assignee shall give notice to creditors to Hie their claims under oath within three months. All creditors who shall not exhibit their claims witliin the three months shall not partic- ipate in the dividends until aftei- paynuuit in full of all claims presented within the three months and allowed by the Court. If estate realizes fifty per cent, net of allowed claims, and there is no fraud on the part of the debtor, he shall be entitled to a discharge from his debts. All laws in conflict with this are repealed. Chap. 27] Washington. 37!) ■A the provisions of the Act oi" the Legislative Asseinl)ly, approved January 81. 1(S(J7, provided said assignment "be made hoixt tide and withoiit fraud." The Superior Court lias original jurisdiction in matters of insolvency. The insolvent debtor petitions the Judge having original jurisdiction within his place of domicile or usual resi- dence, briefly .stating the causes which compel him to surrender his property to his creditors, and prays to niake a cession of his estate and be discharged from his debts; he shall annex to said petition a schedule containing a summary .statement of his aflFairs, a list of the losses he may have sustained, giving the names of his creditors, if known, amount due to each creditor, the cause and nature of such indebtedness and when it accrued, and a statement of any existing judgment, mortgage, collateral or other securities for the payment of any .such debt: it shall contain a full, complete and perfect inventory of all his property, real, personal and mixed ; of all chose.s in action; debts due and to become due, and all moneys on hand, and a full statement of all incumbrances on his property. He .shall estimate and set forth in said schedule his property at its cash value. He shall subscribe and swear to the schedule. (The form of the oath is given in the statute, and it is exceedingly strong and forcible.) The Judge then makes an order requiring all the creditors to show cause why an assignment should not be made, and the insolvent discharged from his debts. The homestead, if any, and property exempt from execution, shall be set forth, included in the schedule, but it is the dutj- of the Judge to set it apart for the use and benefit of the in- solvent. The insolvent .shall, on or before the day appointed for the meeting of his ci'editors, deliver to the Court all his books of account, and vouchers, notes, bonds, bills, securities, or other evidences of debt, bearing on the property surrendered, and they .shall be filed and ultimately delivered to the assignee who may be appointed. A notice is published by the Clerk of the Court directing 380 Washtn(jtox. [Part 15 the creditors to appear before the Judge at chambers or in open Court within 80 days from the date of publication, to show cause why tlie petition should not be granted; meantime all proceedings against the insolvent are stayed, which does not, however, pi-event the appointment of a receiver by the Judge to take possession of all the insolvent's property; provided, one or more of his ci'editors shall show cause therefor by prelimin- ary affidavit, and satisfactory proof of the facts on which it is founded. At the creditors' meeting they first certify "on oath that their respective claims are legitimate and true," and then ap- point one or more assignees, not exceeding three. In appoint- ing assignees, "the opinion of the majority of said creditors, in sums or in claims, shall prevail," and any creditor may be rep- resented by his "duly authorized agent or attorney." When the assignee or assignees have been appointed, and the surrender of the property accepted of, the assignees file in the Clerk's office "a certified statement of the deliberations of said creditors on the appointment of said assignees," and they shall give bond in sucli sum as the majority of the creditors may have determined; or if they have not fixed on any amount, the Judge .shall determine it. The insolvent's property is sold at public auction by ths.' assignees, on twenty days' notice by publication in a news- paper of the count}', or if none, in the one nearest thereto. Perishable property may be sold on five days' notice. The assignees (if more than one) shall deposit all funds "beloni'ini'' to the failure ' in their joint names, and they shall never be used, loaned, or mixed with the per.sonal affairs of the assijLcnees, and are distributed accordina- to the directions of the Court: they may sue or be sued in respect to the insolvent or his creilitors, and all suits against the insolvent shall be transferred to the Court having jurisdicticm of the insolvency. Whenever a dividend shall be declared the assignee shall make out a statement eontaininl 0,000, and not exceeding $30,000; six percent, on sums above .S30,00(). and not exceeding $60,000; and four per cent, on sums exceed- ing §60,000. Such commissions shall be allowed on such sums as come actually in their hands, or are distributed bv them. If, after the appointment of assignees, any one of the cred- itors deems it necessary to oppose the assignment on account of fraud of the insolvent, or the assignnient not having been legally made, he shall, within ten days aftei- the appointment, lay before the Judge or Court his written opposition, specify- ing the facts on which it is based, and in case of fraud, a trial is hail before a jury of six men, at which the objecting creditor "shall have the right to interrogate the insolvent 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 havr "been engaged anterior to his failui'e, as he shall think proper, "and the insolvent shall answer in writing the said interroga- "tories in a pertinent and distinct manner, and every equivocal "answer on his part shall be construed against him.' If the jury find the insolvent guilty of fraud, he shall forever be de- barred fr! n the benefit of tlie insolvent laws. 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; or of liaving con- cealed or altered their books or papers with like intention; or of having passed sham deeds with intent to deprive 382 Washington. [Part 1.") tliL'ir ereclitois of the whole or any part of their prop- erty; (jr of intentionally omitting any of his property from his scliedule; or of having purloined his books or any of them; or of having altered, changed, or made them anew with intent to defraud his creditors; or of having fraudulently alienated, mortgaged, or pledged any of his property; or of having "com- "mitted any othei* kind of fraud to the prejudice of his credi- "tors." The insolvent shall be debarred from the privileges of the act, if he sliall be convicterl of having at any time within three months preceeding his failure, "fraudulently sold, engaged or "mortgaged anj' of his goods or effects, or of having otherwise "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 others " (whereby to receive aiiv advantages in anticipation of his failure) to the prejudice of his creditors. All debtors insolvent accountable for public funds, all "unfaithful depositeries," all who refuse or neglect to pay all funds received b}' them as bankers, brokers, commission merchants, or in any fiduciary capacity, are denied the benefits of the Act. The insolvent must give a just and true account of property sold or transferred, and money collected after presentation of his petition, and pay the same over to the assignees within ten days after their appointr^ent and demand made by them, otherwise said debtor shall not receive the benefit of the insolvent law. If, after the insolvent has had the benefit of the Act, it be made thereafter 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 the Act, he forfeits all its benefits, and cannot "avail himself of any of its provisions in "bar to any claim that may be instituted against him." After the surrender of the property of the insolvent it vests in the assignees. The insolvent must surrender to the assignees all the Chap. 27] Wi^SHINGTON. UK] prupiiity contairitjcl in his scliodule; if not, tlie Jiulge shall oicU-r tin; sheriti' to take the propertj' and deliver it to the assignees, or may imprison the insolvent till lie surrenders it. The assignees shall make out and v(,'rifv an account of their disbursements, which, if approved, the; Judge shall certify, and allow the amount tliereof out of the insolvent's property. A member of a firm may make an assignment of co-part- nership property with the consent in writing of the otlier members: when all join they may include in the assignment all their individual as well as partnership property, and may be discharged from both classes of debts in the same proceeding, but partnershij) property shall be applied to ])artncrship debts, and individual property to individual debts. No assignment shall Ix- legal or binding upon creditors other than provided as above. In ease the insolvent debtor has no property to surrender, or the appraised value of the property mentioned in his schedule does not exceed (Jiie-third of his debts then e.\istin I«]Htates of Deceaset! Person ,'{2') Kxecutions 324 Kxeniittions from Execntion 324 HomeHtead ;i2il insolvency 330 Interest 32S Joint Stocli Conipanies 327 JndgnientH 324 .1 ndgnien t Liens 324 Judicial Records 327 Jurisdiction of Conrtt; 321 Land Laws 32'.) License Law 330 Liens 321) Liens of Jndgnients 324 Limited Partnerships 327 Limitation of Actions 323 Married Women 327 Mines 331 Mortgages 328 Mortgages of Land 328 Mniiicipal Law 330 Naturalization 329 Partnerships — Limited 327 Pleadings 322 Redemption 324 Sale — I'nder Execution 324 Ships and Shipping 330 Security for Costs 32o Terms of Courts 321 Time for Api>earance 322 Usnrv 1^28 CALIFORNIA. Part III. Acknowledgments 81> Acknowledgments — Forms of. 91 Affidavits 80 Agent and Principal 117 Answer — Time Allowed -" Answer — Time Allowed in Justices' Court 21 Appeals in General •">'> ^ 388 Index. Appeals from Superior t^urts Appeals from Justices' or Police Courts Arbitrations Arrest and Bail Assignments — For Benefit of Creditors Assignment without Predjudice to Set-offor defense. .Attachments Bail — see Arrest and Bail Bankruptcy Bills of Exciiange — see Negotiable Instruments Bills of Lading Certificate of Sale of Real Estate ( 'hattel Mortgages Claim and Delivery of Personal Property Cor.ipron.ise — Proceedings on Ofler of Defendant.... Commencement of -Actions Commission Merchants ( 'ommon ( 'arrier.^ Compensation of Executors and Administrators Confession of Judgments Contracts Corporations ( 'osts PA(iK. .. 58 .. 59 .. 82 .. ?'.', 119 .. 19 .. 28 .. 36 .. 124 .. 109 .. 99 .. 50 .. 101 .. 33 .. 42 .. 19 .. 124 .. 100 .. G9 .. 40 .. 108 ,. 84 Con rts " Their Jurisdiction " When and Whe.-e Held Currency Judgments Deceased Persons — I^etatts of Depositions Descents Estates of Deceased Persons Examination of Judgment Debtor Executions Executions — Proceedings Supplementary lo. Exemptions from Execution Form of Civil Actions Fraudulent Representations Fraudulent Transfers (Jold Coin Judgments (iuaranty and Suretyship , 1 loi id iiys — 1 ^egal 1 li iinesteads Injunctions ,. Insolvency Insolvency — I n voluntary 00 ") 5 n 42 62 86 70 (52 53 46 53 47 23 118 118 42 104 150 82 38 124 127 f Index. 389 f Insolvencv— Voluntary _ 29^ Interest o() Joint Debtors— Proceedings Against 40 Judgments . 00 Judgments after Verdict 4] Judgments by Confession ^q Judgment by Default in Justices' Court 44 Judgments in Justices' Courts 44 Judgments in Justices' Courts otlier than by Default 44 Judgments in Eeplevin 4.. Judgment Liens 43 Judgment Liens, Justices' Courts 4,5 Judgment on Proceedings without Action 4] Judgment on Failure to Answer 39 Judicial Records gg Judicial Records — How I'roved g,S Jurisdiction of Courts -, Legal Holidays ^r^Q Letters of ('red it Iq- Liens yq Liens for fjahiry and Wages 75) Liens of Mechanics and Others upon Real Estate 7;i Limitation of Civil Actions 1.-, Married Women gj; Mechanics' Liens 7;^ Minors ' (jy Mode of Taking Testimony of Witnesses 8(! ^fortgages of Personal P.operty ]01 Negotiable LiHtrunsents IQ9 Xew Trials gj Parties to Suits y) Partnereliips 92 Personal Property— Mortgages of loi Place of Trial, Civil Actions 12 Pleadings 23 Pleadings— Provisions in Justice's Court 2(-> I^'edge lO;; Principal and Agent II7 Proceedings on Ofler of Defendant to Compromise 42 Proceedings Sujjplementary to Execution ,j,'? Promissory Notes— See Negotiable Instruments lOlt Publication — Service by 20 Kedempt ion -,(j Replevin — See Claim and Delivery 3;{ Replevin — Judgment in 43 I 390 Index. Page. Salaries — Liens for 79 Sale 107 Sale of Real Estate — when Absolute ornot oO Sale of Real Estate — Certificate of oO Sale on Execution -It) Sale— When Fraudulent 118 Security for Costs 55 Service for Publication 20 Sole Traders 07 Stoppage in Transit OS Submission of Controversy without Action 41 Succession 70 Summons — on Whom to be Served 20 Summons — Service by Whom Made in .Justices' Courts 22 Summons — Who may Serve 20 Summons — Within What Time to Issue 20 Suretyship 104 Terms of Courts 1 1 Circuit Court U. S 12 Superior Courts 11 District Court U. S 12 Justices' Courts 11 Supreme Court 11 Testimony of Witnes.ses by Affidavit 80 Time of Holding Courts 11 Trial of Civil .Actions — Where to be Tried 12 Verification of Pleadings 2(> COLORADO. Part XII. Acknowledgraents 3H5 Answer — Time to 333 A tt ach ments 333 Hills of Exchange 335 Courts — J 11 risdict ion 333 Estates of Deceased Persons 335 Homesteads 334 Interest 384 I nsol vency ^"i' Limitation of Actions 3.''4 Time to Answer .'-33 I Index. 891 IDAHO. Part VI. Vm:k Acknowledgments ." '23'.) Answer — Time Allowed 214 Appeals 222 Arrest in Civil Actions 218 Attachments 217 Bankruptcy 245 Chattel Mortgages 244 Claim and Delivery 218 Commencement of Actions 214 Corporations 238 Courts 203 Courts — Terms of 203 ( 'ourts — Their Jurisdiction 203 Deceased Persons — Estates of 228 Depositions 241 Descent 233 Estates of Deceased Persons 228 Examination of Judgment Debtor 221 Executions 210 'Exemptions from Execution 219 H omesteads 237 1 •'.solvency 245 I ' Judgment Liens 270 Judicial Records 274 Jurisdiction of Courts 267 Liens of Judgment 270 Limitation of Actions 26.S Limited Partnerships 274 Married Women 27") Partnerships — Limited 274 1 5*' i: Index. 893 Page- Place ofTrial of Civil Actions 268 Proceedings Supplementary to Execution 272 Kedeniption 270 Sale— Under Execution 270 Security for Costs 272 Time Allowed to Answer 267 Trial, Place of 268 Usury 276 NEVADA. Part IV. A ckno wledgments 1 68 Affidavits — Before Whom to be Taken 161t Answer — Time Allowed 1.5:5 Appeals 161 Arrest in C'vil .Actions 156 Attachments 156 Bankruptcy 173 Bills of Exchange 171 Chattel Mortgages 171 ■Courts 151 " Terms of 151 " Their Jurisdiction 151 'Corporations 170 Docca.sed Persons — p^tates of 162 Depositions 164 I )e{K)sit ions Taken Out of State 1 66 Estates of Deceased Pereons 162 Examination oi" Judgment Debtor 160 Exemptions from Executions 158 Executions 158 I lomesteads 1 63 Insolvency 173 Interest and Usurv 171 Joint Debtors— Release of. i: Jurisdiction of Courts 151 Judgments anJ Judgment Liens 157 J ud icial Itecords— I low Proved 1 67 Liens of Judgments 157 Li m itation of Act ions 1 53 Limited Partnerships 1 69 Married Women 170 394 Index. 1'. E, Mortgages of Personal Property 171 Mortgages of Real Property 172 Partnerships — Limited 169 Place of Trial 153 Proceedings Supplementary to Execution 160 Promissory Notes 171 Redemption 160 Release of Joint Debtors 172 Sale under Execvition 160 Security for Costs 160 Terms of Courts 151 Time Allowed to Answer 153 Trial— Place of. 153 Usury 171 Witnesses 164 NEW MEXICO. Part XIII. Acknowledgments 339 Answer — Time to 337 Arrest and Imprisonment for Debt 338 Assignment — Laws 340 Attacliments 337 Bills of E.xcliange 339 Courts — Jurisdiction 337 Estates of Decea.sed Persons 339 Exemptions 339 Homesteads 338 Interest 338 Limitation of Actions 338 OREGON. Part V. Acknowledgments 193 Actions — Commencement of 180 Actions— Place of Trial 181 Answer— Within What Time 181 Appeals 187 Arrest in Civil Actions 183 Assignments — For Benefit of Creditors 197 Attachments 183 < Index. 895 ,. PA(iE. Chattel Mortgages 196 Commencement of Suits 180, Courts and their Jurisdiction 177 (kiurts — Terms of 178 Corporations 196 Deceased Persons — Estates of 188 Depositions 191 Descent of Personal Property 190 Descent of Keal Property 189' Dower 191 Estates of Deceased Persons 188 Examination of Judgment Debtor 186 Executions 185 Exemptions from Execution 185 Homesteads 191 Insolvency, see Assignments 197 Interest 197 .Uidgment Liens 1 85 Judicial Records 19S .hirisdiction of Courts 177 Liens of Judgments 1 85 Limitation of Actions 181 Limited Partn erships 1 94 Married Women 195 Mortgages of Personal Property 196 Partnerships — Limited 194 Place of Trial of Civil Actions 181 Proceedings Supplementary to Execution 186 Redemption ^^'^ Sale — Under Execution 185 Security for Costs 18' Suits — Commencement of 180 Summons 1°" Terms of Courts 1"* Usurv l^*" TEXAS. Part XIV. Acknowlalgments '^'*^ Answer — Time to "^'*^ Arrest and Imprisonment for Debt 3"^2 Assignment — Laws '^'** Attachments ^'*^ 29Q Index. Paok. Bills of Exchange 343 Courts — Jurisdiction 34I Estates of Deceased Persons 343 Homesteads 342 Interest 342 Insolvency 344 Limitation of Actions 342 Promissory Notes 343 UTAH. Part X. Acknowledgments 315 Answer — Time Allowed 302 Appeals 309 Arrest in Civil Actions 304 Attachments 303 Bankruptcy 320 Chattel Mortgages 318 ■Commencement of Suits 302 Corporations 31,S Courts 301 " Place of Holding 302 " Terms of 302 " Their Jurisdiction 301 Deceased Persons — Estates of 311 Depositions 312 Estates of Deceased Persons 311 Examination of Judgment Debtor 308 Executions 306 Executions — Proceedings in Aid of 308 Exemptions 306 Homesteads 312 Insolvency 320 Interest and Usury 320 Judgments , 305 Judgment Liens 305 Judicial Records — How Proved 314 Jurisdiction of Courts 301 Liens of Judgment 305 Limitation of Actions 303 Married Women 317 Mortgages of Personal Property 318 Index. 397 Partnerships 317 Partners — How may be Sued, etc 317 Partners — Liability of Private Property for Firm Debts o 1 7 Partners — Assignment and Jiffect ;)17 Proceedings in Aid of Executions 308 Redemption 308 Sale — Under Execution 306 Security for Costs 30& Terms of Courts 302 Time Allowed to Plead or Answer 302 Usury 320 WASHINGTON. Part XV. Acknowledgments. Aliens 369 383 Answer — Time Allowed 348 Appeals and Writs of Error 362. Arrest in Civil Actions 355 .Vttacliments 3o] I'.ankruptcy 378 Bills of Exchange 377 ( 'battel Mortgages 376 ( '( )mmcncement of Suits 348 ( 'onveyances 369 ( "orporations 374 Courts 345 " Terms of 347 • " Their Jurisdiction 345 " Where Held 347 Deceased Pei"sons — P^states of 363 Depositions 367 Estates of Deceased Persons 363 Examination of Judgment Debtor 361 Execution ^57 Exemptions from Executions 357 (iarnishments 354 Homesteads ^(57 Insolvency 378 Interest 377 Judgments 3oo Judgment Liens 355 Judicial Kecords of Other States— How Proved 369 398 Index. Paub. Juriwliction of Courts ."4") Liens of Judgments S'y'i Liens of Mechanics and Others .'?ot) Limitation of Actions .'JoO Limited Partnerships STl Married Persons .S7H Mortgages of Personal Property IJTfi Partnerships — Limited .'t71 Place of Trial— Civil Action ;?4'.i Proceedings Supplementary to Execntion 3(>1 Promissory Notes 377 Redemption .T)7 Replevin 301 Sale Under Execution 357 Security for Costs 3t)2 Terms of Courts 347 Time Allowed to Answer 34S Trial— Place of 34H Wills 3t)() Writs of Error 3G:i P A WYOMING Part VII. Acknowledgments 2(51 Answer — Time Allowed 2V2 Appeals i)'.) Arrest in Civil Actions 2.>") Assignments 2fi4 Attachments '2'A Chattel Mortgages 264 Commencemer.t of Actions 2.")2 Courts 251 " Terms of and Where Held 252 " Their Jurisdicti(m 251 Deceased Persons — Estates of 2(50 Deposition 2(50 Estates of Deceased Persons 260 Examination of Judgment Debtor 25!) Executions 258 J)xemi)tions from Execution 25S Interest 2(M Judgment Liens 257 Judicial Records 26 1 Index. 399 Paok. ''ol Jurisdiction of Courts Liens of Judgments V'^ Limitations of Actions ' ' Limited Partnerships "'^ Married Women " ' Mortgages of Personal Property ^^^^^ Partnersliips— Limited ^^.[^ Place of Trial of Civil Actions -|.'- Proceedings in Aid of Executions '^^ Kedeniption ",.^ Sale Under Execution ''.',. Security for Costs ,,.;, Terms of Courts ,'J'.|J Time to Answer ^l", Trial— Place of ,,' " Usurv