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J 32X 1 2 3 1 2 3 4 5 6 c T] ^m Pacific Coast COLLECTION LAWS A SUMMARY OF THE t LAWS OF CALIFORNIA, NEVADA, OREGON, WASHINGTSn TERRITORY, IDAHO, MONTANA, UTAH, WYOMING, ARI- ZONA, AND BRITISH COLUMBIA, AND OF THE UNITED STATES, IN RELATION TO BANKRUPTCY; ALSO, THE JURISDICTION OF U. S. COURTS, WITH THE NAMES OF RELIABLE ATTORNEYS IN THE PRINCIPAL CITIES AND TOWNS THROUGHOUT THE PACIFIC COAST. BY J. H. JELLliTT, Attorney at Law. SAN FRANCISCO: BACON & COMPANY, BOOK AND JOB PRINTERS, Comer of Clay and Sausomo StreetB. 1876. Entered according to Act of Congress in the year 1875, by J. H. JELLETT, In the office of the Librarian of Congress at Washington, D. C. PREFACE. Having for upwards of six years been in charge of the Law and Collection Department of " The Mercantile Agency " of K. G. Dun & Co., San Francisco, the compiling of this work has sug- gested itself to me as important to Bankers, Merchants, and Man- ufacturers having business transactions in the Pacific States and Territories, including British Columbia. Further, it has been prepared with a view to aid Attorneys and Notaries in matters arising outside of their own State or Territory. I have endeavored to give a concise statement of the laws relat- ing to the collection of debts, together with the names of carefully selected attorneys ; and in compiling the work have been assisted by the following named practicing attorneys : DoLPH, Bronouqh, Dolph & Simon Portland, Oregon. Bishop & Sabin Pioche, Nevada. Lewis Burnes Salt Lake City, Utah. Hon. James K. Kennedy . . Walla Walla, W ashington Territory. D. E. Cullbn Helena, Montana. E. P. Johnson „ Cheyenne, Wyoming. Jonas W. Brown Idaho City, Idaho. M. W. T. Drake, of Drake & Jackson Victoria, B. C. J. H. JELLETT. San Francisco, J Hiiuary, 1876. am CONTENTS. Part I. A-TTORISrEYS. Part II. JURISDICTION OF U. S. COURTS AND BANKRUPTCY PROCEEDINGS. Chaiteh I. Courts and their Jurisdiction 19 n. Bankruptcy 21 Part III. O^LIFORISriiL. GnAFTBH I. Courts and their Jurisdiction 29 II. Terms of Courts, When and Where Held 32 m. Place of Trial of Civil Actions 35 rV. Limitation of Civil Actions 39 V. Parties to Suit s — Commencement of Actions 42 VI. Form, of Civil Actions — Pleadings 46 VII. Attachments 51 Vm. Claim and Delivery of Personal Property 56 IX. Arrest and B'.il 58 CONTENTS. 6 Chaptek X. Injunctions 60 XI. JudgmcntH and Judgment Liens 60 XII. Execution — Stile und Redemption 67 Xin. Proceedings Supplementary to Execution 74 XIV. Costs 76 XV. Appeals in Civil Actions 77 XVI. New Trials 82 XVII. Estates of Deceased Persons 83 XVm. Descents 88 XIX. Ijiens of Me<3hanic8 and others upon Ileal Property 91 XX. Liens for Salaries and Wages 94 XXI. Arbitrations 95 XXIL Homesteads ', 95 XXm. Corporations 97 XXIV. Mode of taking Testimony of Witnesses 99 XXV. Judicial Records, How Proved 100 XXVI. Acknowledgments 102 XXVII. Partnerships 105 XXVIII. Married Women 108 XXIX. Minors 110 XXX. Sto^^j^ Age in transit. Ill XXXL Bills of Lading 112 XXXIL Interest 112 XXXIIL Common Carriers 113 XXXrV. ^Mortgages of Personal Property 114 XXXV. Pledge 116 XXXVI. Guarantee and Suretyship 117 XXXVn. Sale 119 XXXVHT. Contracts 120 XXXIX. Negotiable Instruments 121 XL. Principal and Agent 129 Part IV. Chatter I. Courts — Jurisdiction and Terms of Courts 131 IL Time allowed to Answer-^Service by Publication — Place of Trial 134 in. Limitation of Actions 135 rV. Attachments 137 V. Arrest in Civil Actions 137 VI. Judgments and Judgment Liens 138 VII. Executions, Exemptions, Sale and Redemption 139 Vni. Proceedings Supplementary to Execution 141 IX. Security for Costs 142 6 CONTENTS. CiiAi'TEU X. Appeals. 142 XI. EMtutcB of DecoaHcd FcrflonB 14:3 XII. Humesteadfl 144 Xm. Of Witnesses and D»>positionH 145 y IV. Judicial Records, How Proved 148 XV. Ackuowledg'meuts 149 XVI. Affidiivitfl, before whom to bo taken 150 XVII. Limited Partnerships 151 XVIII. Married Women 152 XIX, Corporations 152 XX. Chattel Mortgages 153 XXI. Interest and Usury 153 XXTI. Promissory Notes and Bills t)f Exchange 154 XXIII. Mortgages 154 Part V. OREGOIS'. CnAVTKU I. Courts and their Jurisdiction 155 II. Terms of Courts, When and Where Held 156 III. Commencement of Suitn 158 rV. Place of Trial of Civil Actions 159 V. Limitation of Actions 159 VI. Attachments 161 VTI. Arrest in Civil Actions 161 Vni. Judgments and Judgment Liens 102 IX. Executions, Exemptions, Sale and Redemption 163 X. Proceedings Supplementary to Execution 164 XI. Security for Costs 164 • XII. Appeals 165 XIII. Estates of Deceased Persons 166 XIV. Descent of Real Property 167 XV. Descent of Personal Property 168 XVI. Homesteads and Dower 169 XVII. Depositions 169 XVIII. Judicial Records 171 XIX. Acknowledgments » 171 XX. Limited Partnerships 172 XXL Married Women 173 XXn. Corporations '. 174 XXIII. Chattel Mortgages 174 XXIV. Interest and Usury 175 CONTENTS. Part VI. CliAi'TKU T. Tho Courts and their Jurisdiction 177 n. Tho Terms of Courts, and Places of Holding same 178 ITT. Commencement of Suits, '/ud Time allowed Defendants to Plead 178 IV. Limitations of Actions 179 "V. Attachments, ITJ VI. Arrests in Civil Actions 180 Vn. Judgments and Judgment Liens 181 VIII. Executions, Exemptions, Sales and Redemption 182 IX. Proceedings in Aid of Executions 184 X. Security for Costs 185 XI. Appeals 186 XII. Estates of Deceased Persons 187 XIIL Homesteads 188 XrV. Depositions 189 XV. Judicial Records, How Proven 191 XVr. Acknowledgments 192 XVII. Partnerships 193 XVni. Married Women 194 XIX. Corporations 194 XX. Chattel Mortgages 195 XXI. Interest and Usury 195 Part VII. CiiAiTKK I, Courts, Their Jurisdiction and Terms 197 n. Commencement of Actions 198 in. Place of Trial of Civil Actions 199 IV. Limitations of Civil Actions 200 V. Attachments ; 202 VI. Arrest in Civil Actions 203 VII. Judgments and Judgment Liens 204 Vni. Executions, Exemptions, Sale and Redemption 205 IX Proceedings Supplementary to Execution 208 X. Security for Costs 208 8 CONTENTS. Chapter XI. Appeals in General 209 XII. HomeHt<-adH 210 XIII. EHttttoH of Duoooaod Porsons 210 XIV. Dupositions 213 XV. Judicial Rooords 214 XVI. Aoknowlodgments 215 XVII. Limited Partnerahipx 21« XVIII. Married Women 217 XIX. (Jorporation.s 218 XX. Chattel Mortgages 219 XXI. Interest and Usury 219 XXir. Alfldavits 220 XXIII. Sole Traders 220 Part VIII. vv^YOMiisra. Chapter I. Courts and their Jurisdiction 223 XL Terras of Courts, When and Where Hold 224 HL Commencement of Actions, Time to Answer, Place of Trial . 224 rV. Limitation of Actions 225 V. Attachments 226 VI. Arrest in Civil Actions 227 VII. Judgment Liens 228 Vni. Executions, Sale, Redemption and Exemptions 228 IX. Proceedings in aid of Executions 230 X. Security for Costa 230 XL Appeala 231 Xn. Estates of Deceased Persons 231 XIII. Descents and Distribution of Property 232 XrV, Depositions 235 XV. Judicial Records 23C XVI. Acknowledgments , 23C XVTI. Limited Partnerships 237 XVin. Married Women 238 XIX. Chattel Mortgages 238 XX. Interest and Usury 239 CONTENTS. 9 Part IX. ClIAKmu T. Courts, their JiiriHdiction and Toims 241 11. Timo nllowfd IXjfendani to Answer — Plttce of Trial of Civil Actions 242 III. Limitation of Ac'tio'.s 243 IV, Attachments — Arrests in Civil Cases . . 244 v. Judgment Liens — Executions, Exi iptionn, Sale and Tie- demptiou 245 VI. Proceedings Supplementary to Executions 247 Vn. Security for Cotts— Appeals 247 Vni. Estates of Deceased Persons — Homesteads 248 IX. Depositions — Judicial Records — A'lkno-wledgments 248 X. Limited Partnerships 249 XL Married Women 550 XII. Corporations — Chattel Mortgages — Interest 250. Part X. WASHINGTON TERRITORY. CuAPTOK I. Courts and their Jurisdiction 253" n. Terms of Courts, When and Where Hold 254 III. Commencement of Suits — Timo allowed to Answer., 255 IV. Place of Trial of Civil Actions 256 V. Limitation of Actions 257 ' VI. Attachments 258 VII. Arrest in Civil Actions 260 Vni. Judgments and Judgment Liena 261 IX. Executions, Exemptions, Sales and Redemptions 262 X. Proceedings Supplementary to Execution 265 XL Security for Costs 265 Xn. Appeals and Writs of Error 266 XIII. Estates of Deceased Pei, . ns 266 XrV. Homesteads 267 XV. Depositions 238 XVI. Judicial Record of other States, How Proved 269 XVII. Acknowledgments 269 XVin. Limited Partnerships 271 XIX. Married Women 271 XX. Corporations 271 XXL Chpttel Mortgages 272 XXIL Interest 272 10 CONIBNTS. Part XI ARIZONA. Chapter I. Courts and their Jurisdiction 273 n. Terms of Courts, When and Where Held 274 ■ m. Commencement of Suits 275 rV. Place of Trial of Civil Actions 276 , V. Limitation of Actions 278 VI. Attachments 280 Vn. Arrest in Civil Actions % 281 VIII. Judgments and Judgment Liens 282 IX. Executions, Exemptions, Sale and Redemption 283 X. Proceedings Supplementary to Execution 284 XI. Estates of Decreased Persons 285 XII. Affidavits and Depositions 287 XIII. Acknowledgments 287 XrV. Married Women 289 XV. Chattel Mortgages 289 XVI. Interest 290 XVn. BUls 3f Exchange 291 Part XII. BKITISH COLUMBIA. Chapteu I. Courts, their Jurisdiction and Terms 293 H. Commencement of Suits 294 in. Limitation of Actions 295 rV. Attachments — Arrest in Civil Actions 290 V. Judgments and Judgment Liens 296 VI. Executions, Exemptions, Redemption, Sale .... 297 VIL Security for Costs 297 VIII. Appeals 298 IX. Estates of Deceased Persons 298 X. Homesteads 299 XI. Depositions. 299 Xn. Judicial Records — Acknowledgments 299 Xin . Limited Partnerships 300 XrV. Married Women 300 XV. Mortgages 301 XVr, Interest and Usury 301 XVIL LandLaws. 302 Part I. ATTORNEYS, THE FOLLOWING ARE RECOMMENDED AS RELIABLE. • CALIFORNIA. COHNTT. Residence. Name. Alameda * Oakland Livermore .... Pleasanton . . . J. C. Plunkett. E. Aubury. J. R. Palmer. Also Notary Public. Amador Jackson J. M. Porter. Butte Oroville Chico John C. Gray. Park Henshaw. Colusa Colusa John T. Harrington. Contra Cpsta. . Martinez Antioch Mills & Jones. James T. Cruikshank. Del Norte Crescent City . W. A. Hamilton. El Dorado Placerville .... George G. Blanchard Fresno Fresno H. S. Dixon. Humboldt .... Eureka James Hanna. 12 ATTORNEYS. CALIFORNIA— (Jontinued. [Part 1. County. Residenck. Name. Inyo Kern Lake Lassen ...... Los Angeles. Marin Mariposa .... Mendocino . . Merced . . Modoc . . . Monterey , Napa . . . Nevada . Placer . Plumas , Independence Bakersfield . . Lakeport .... Susanville . . . Los Angeles. San Rafael ... Mariposa .... Ukiah Merced Dorris Bridge Salinas Napa . Reddy & Conklin. J. W. Freeman. A. P. McCarty. J. S. Chapman. Henry T. Hazard. Hepburn Wilkins. John M. Corcoran. Thos. L. Carothers. Samuel C. Bates, Geo. F. Harris. M. Farley. R. Burnell. Collector. Sacramento . . . Nevada City. .ijno. I. Caldwell. Grass Valley. Truckee Ophir, (Near Auburn.) Quincy La Porte Sacramento . . . A. J. Ridge. C. F. McGlashan. James Moore. J. D, Goodwin. G. G. Clough. Edgerton, Tubbs & /•""-.l^ Successors to Heatty ^UlC, & Demon. Part 1.] ATTORNEYS. CALIFORNIA— Continued. 18 County. Residence. Name. San Benito. . . . Hollister N. C. Briggs. San Bernardino San Bernardino H. C. Rolfe. San Diego .... San Diego .... Chase & Leach. San Francisco . San Francisco. Campbell, Fox & Camp- bell. E. H. Rixford. San Joaquin . Stockton Jos. M. Cavis. San Luis Obis- po San Luis Obis- po Harrison & McMurtry Geo. W. Fox. r San Mateo .... r" Redwood City . Santa Barbara. Santa Barbara Jarrett T. Richards. Santa Clara. . . San Jose Gilroy C.D.Wright. W. W. Hoover. ' Santa Cruz . . . Santa Cruz .... Watsonville . . . E. L. Williams. J. A. Barham. Shasta Shasta Ephraim Garter. Sierra Downieville . . . E. Barry. Siskiyou Yreka E. Steele. Solano Suisun Vallejo Joseph McKenna. S. G. Hilborn. Sonoma Santa Rosa . . . Healdsburg . . . James H. McGee. H. C. Firebaugh. 14 ATTORNEYS. CALIFORNIA— Continued. [Part 1. County. Residence. Name. Sonoma Petaluma W. D. Bliss. Stanislaus .... Modesto ..... A. Hewel. Sutter Yuba City .... Stabler & Bayne. Tehama Red Bluff W. Henry Jones. Tulare Visalia Brown & Daggett. Tuolumne .... Sonora C. L. Street. Ventura San Buenaven- tura Henry Robinson. Yolo Woodland .... C. S. Frost. Yuba Marysville .... Van Clief & Cowden. NEVAD A. County. Resipence. Namf. Douglas Genoa D. W. Virgin. Elko Elko R. R. Bigelow. Esmeralda .... Aurora ..... A. L. Greeley. Eureka Eureka Geo. W. Baker. Humboldt .... Winnemucca . W. L. French, Collector. Lander Austin Henry Mayenbaum. Lincoln Pioche Bishop & Sabin. Part 1.] ATTORNEYS. NEVADA— Cort^nued. 15 COUNTT. Residknce. Name. Lyon Dayton Geo. W. Keith. Nve Belmont Williams & Owen. v^ Ormsby Carson City . . . Wm. Patterson. Storey Virginia City . . W. E. F. Deal. Washoe Reno C. W. Jones, Collector. OREGON. County. Resipence. Name. Baker Baker City. . . . L. O. Sterns. Also Notary Public. Benton Corvallis F. A. Chenoweth. Clackamas .... Oregon City . . Johnson & Cowan. Coos Empire City . . Roseburg D. L. W^atson. Douglas J. F. Watson. Jackson Jacksonville. . . H. K. Hanna. Lane Eugene City . . George B. Dorr is. Linn Albany Powell & Flinn. Marion Salem Knight & Lord. Multnomah . . . Portland Dolph, Bronough, - Dolph & Simon. 16 ATTORNEYS. OREGOlii— Continued. [Part 1. County. Residence. Name. Polk Dallas J. L. Collins. J. H. Turner. Umatilla Pendleton .... Union La Grande . . . B. W. Lichtenthaler. Wasco The Dalles . . . J. B. Condon. Washington., . Hillsboro Thos. H. Tongue. Yam Hill La Fayette . . . H. Hurley. UTAH TERRITORY. County. Residence. Name. Salt Lake .... Box Elder Salt Lake City . Corinne Lewis Burnes. E. P. Johnson. ^\^ASIlING^TON TERRITORY. County. Residence. Name. Clarke Jefferson King '... Vancouver. . . . Port Townsend Seattle Charles Brown, Collector. Judson & Kuhn. Leary & McNaught. Part 1.] ATTORNEYS. WASHINGTON TERRITORY— Continued. County. Residence. Name. Pierce Thurston Walla Walla.. Steilacoom Jacob Hoover. Olympia ijohn P. Judson. 17 Walla Walla. Kennedy & George. James K. Kennedy, Lntf Jii.lis'e District Court, First Judici.ii District. Wyatt A. George. MONTANA TERRITORY County. Rejidesoe. Name. Gallatin' Bozeman Sharp & Napton. Lewis & Clarke Helena W. E. Cullen. Madison Virginia City . . Thco. Muffly. IDAHO TERRITORY. County. Residence. Name. Ada . Boise Boise City Idaho City Nez Perces . . .[Lewiston 2 H. E. Prickett. Jonas W. Brown. J. M. Howe. 18 ATTORNEYS. , [Part 1. ARIZONA TERRITORY. i County. Residenck. N.»ME. Pima Tucson Farley & Pomroy. ^VYOMINO TERRITORY. County. Residence. Name. Laramie Cheyenne E. P. Johnson. BRITISH COLUMBIA. District. Residenck. Name. Victoria 1 ...___ .. . Victoria Drake & Jackson. * [Part 1. - —rtyww**^ *rtl'VM Part II. mroy. JURISDICTION OF U. S. COURTS AND BANK- RUPTCY PROCEEDINGS. )n. :kson. Chapter I. COURTS / ND THEIR JURISDICTION. The Circuit Courts of the United States have jurisdiction — Of all suits of a civil nature at common law or in equity, where the matfer in dispute, exclusive of costs, exceeds the sum or value of five hundred dollars, and an alien is a party, or the suit is be- tween a citizen of the State where it is brought and a citizen of another State : Provided, that no Circuit Court shall have cog- nizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such Court to recover the said contents if no assignment had been made, except in case of foreign bills of ex- change. In all suits at law or in equity arising under the patent or copy- right laws of the United States. Of all suits by or against any banking association established in the district for which the Court is held, under any law providing for national banking associations. In matters of bankruptcy, a general superintendence and juris- diction. Any suit commenced in a State Court, Avhen the amount in dis- pute, exclusive of costs, exceeds the sum or value of five hundred 20 JURISDICTION U. S. COURTS. [Part 2. I dollars, to be made to appear to the satisfaction of said Court, may be removed, for trial, into the Circuit Court for the district where such suit is pending, next to be held after the filing of the petition for such removal, in the cases following : 1. When the suit is against an alien, or is by a citizen of the State wherein it is brought, and against a citizen of another State, on the petition of the defendant. 2. When the suit is against an alien and a citizen of the State where it is brought, or is by a citizen of such State against a citizen of the same and the citizen of another State, it may be so removed, as against said alien or citizen of another State, upon the petition of such defendant, lint such removal shall not take away or prejudice the right of the plaintiff to proceed at the same time ■with the suit in the State Court, as against the other defendants. 3. When a suit is between a citizen of the State in which it is brought and a citizen of another State, it may be removed on the petition of the latter, whether he be plaintitf or defendant, if he makes and files in said State Court an affidavit, stating that he has reason to believe, and docs believe, that, from prejudice or local influence, he will not be able to obtain justice in such State Court. The District Courts of the United States have jurisdiction — In all suits by or against any association established under any law providing for national banking associations, within the district for which the Court is held. The District Courts are constituted Courts of Bankruptcy, and shall have, in their respective districts, original jurisdiction in all matters and proceedings in Bankruptcy. It also has jurisdiction of suits for the collection of the Internal Eevenue, and is the Court of Admiralty. ( ! Chap. 2.] BANKRUPTCY. 21 ClIArTER II. BANKRUPTCY. Involuntary Bankruptcy — Acts oi-' Bankruptcy. f the Internal When any person departs from the State, district, or territory of which he is an inhabitant, with intent to defraud his creditors ; or, hciu^ absent, shall, with such intent, remain absent ; or shall conceal himself to avoid the service of legal process in any action for the recovery of a debt or demand provable under tlie bank- ruptcy act ; or shall conceal or remove any of his property to avoid its being attached, taken, or sequestered on legal process ; or shall make any assignment, gift, sale, conveyance, or transfer of his estate, property, rights, or credits, either within the United States or else- Avhere, with intent to delay, defraud, or hinder his creditors ; or who has been arrested and held in Custody under, or by virtue of, mesne process or execution, issued out of any Court of the United States, or of any State, district, or territory within which such debtor resides or has property, founded upon a demand in its' :ure provable against a bankrupt's estate under this act, and for a sum exceeding one hundred dollars, and such process is remaining in force and not discharged by payment, or in any other manner provided by the law of the United States or of such State, district, or territory, applicable thereto, for a period of twenty days, "Or has been actually imprisoned for more than twenty days in a civil action founded on contract for the sum of one hundred dollars or upwards ; or who, being bankrupt or insolvent, or in contemplation of bankruptcy or insolvency, shall make any payment, gift, grant, sale, conveyance, or transfer of money, or other property, estate, rights, or credits, or confess judgment, or give any warrant to confess judgment, or procure his property to be taken on legal process, with intent to give a preference to one or more of his creditors, or to any person or persons who are or may be liable for him as indorsers, bail, sureties, or otherwise ; or with the intent by such disposition of his property to defeat or delay the operation of the bankruptcy act ; 22 BANKRUPTCY. [Part 2. or wlio, being a bank, banker, broker, morcliant, trader, manufact- urer, or minor, has fraudulontly stopped payment, or bein^ a bank, banker, broker, morclmnt, trader, manufacturer, or miner, has stoppiMl or suspended and not resumed payment, within a period of forty days, of his commercial paper, (made or passed in the course of his business as sucli) or who, being a bank or banker, shall fail for forty days to pay any do[)ositor upon demand of payment law- ' fully made, shall be deemed to have committed an act of bank- ruptcy, and shall be adjudged a bankrupt on the petition of one or more of his creditors, who shall constitute one-fourth thereof, at least, in number, and the aggregate of whose debts, provable under this act, amounts to at least one-third of the debts so provable : Provided, that such petition is brought within six months after such act of bankruptcy. The petition of creditors may be sufficiently verified by the oaths of the first five signers thereof, if so many there be, and if any of the first five signers shall not reside in the district in which such petition is to bo filed, the same may bo signed and verified by the oath or oaths of the attorney or attorneys, ngent or agents, of such signers ; and in computing the number of creditors, as aforesaid, who shall join in such petition, creditors whose respective debts do not exceed two hundred and fifty dollars shall not be received. But if there be no creditors whoso debts exceed said sum of two hundred and fifty dollars, or if the requisite number of creditors holding debts exceeding two hundred and fifty dollars fail to sign the petition, the creditors having debts of a less amount shall be received for the purposes aforesaid. I Voluntary Bankruptcy. Any person residing within the jurisdiction of the United States, owing debts provable under the bankruptcy act, exceeding the amount of three hundred dollars, may file his petition in bankruptcy. Preferences and Fraudulent Conveyances. If any person, being insolvent, or in contemplation of insolvency, within two months before the filing of the petition by or against "^ [Part 2. er, maimfact- l)oin^ a bank, V minor, has in a period of in the coiirso ikcr, shall fail payment law- ' act of bank- tition of one th thereof, at rovable uniler so provable : ths after such ified by the ;here be, and 1 the district signed and )rneys, ;t^ent ! number of on, creditors 1 fifty dollars whoso debts the recjuisito red and fifty iihta of a less Chap. 2.] nANKRUPTCY. 28 nited States, ;ceeding the bankruptcy. lis. ' insolv^ ency, 1 him, with a view to give a preference to any creditor or person having a claim against him, or who is nndcr any Iial)ility for him, ))rocures any part of his property to be attached, seijucstcrcd, or seized on execution, or makes any payment, pledge, assignment, transfer, or conveyance of any part of his property, either directly or indirectly, absolutely or conditionally, the person receiving such payment, pledge, assignment, transfer, or conveyance, or to be benefited thereby, or by such attachment, having reasonable cause to believe such person is insolvent, and knowing that such attach- ment, sequestration, seizure, payment, pledge, assignment, or con- veyance, is made in fraud of the provisions of the act, th j same shall be void, and the assignee may recover the property, o* the value of it, from the person so receiving it, or so to be benefited ; and if any person being insolvent, or in contemplation of insolvency or bankruptcy, within three months before the filing of the petition by or against him, makes any payment, sale, assignment, transfer, conveyance, or other disposition of any part of his projjcrty to any person who then has reasonable cause to believe liim to be insolvent, or to bo acting in contemplation of insolvency, and knowing that such payment, sale, assignment, transfer, or other conveyance is made with a view to prevent his property from coming to his asr signce in bankruptcy, or to prevent the same from being distributed under the bankruptcy act, or to defeat the object of, or in any way impair, hinder, impede, or delay the operation and effect of, or to evade any of the provisions of, the bankruptcy act, the sale, assign- ment, transfer, or conveyance shall be void, and the assignee may recover the property or the value thereof, as assets of the bankrupt — and if such sale, assignment, transfer or conveyance is not made in the usual and ordinary course of business of the debtor, the fact shall be prima facie evidence of fraud. Per Cent, to be Paid by Bankrupt. re- or agamst In cases of involuntary bankruptcy, the bankrupt is not quired to pay a percentage of the claims proved against the estate in order to entitle him to a discharge. In cases of voluntary bankruptcy, no discharge shall be granted to a debtor whose assets shall not be equal to thirty per centum of 24 BANKRUPTCY. [Part 2. the claims proved against his estate, upon which he shall be liable as principal debtor, without the assent of at least one-fourth of his creditors in number, and one- third in valu§. I Proofs of Debts. Proofs of debts against the estate of the bankrupt, by or on be- half of creditors residing Avithin the judicial district where the pro- ceedings in bankruptcy are pending, shall be made before one of the registers of the Court in said district, or before a notary pub- lic ; such proof to be certified by the notary and attested by his signature and official seal ; and by or on behalf of non-resident creditors, before any register in bankruptcy in the judicial district where such creditors, or either of them, reside, or before any com- haissioner of the Circuit Court authorized to administer oaths in anv district, or before a notary public ; certified and attested as afore- said. The affidavit inproof of claim shall be made by the claimant, un- less he be absent from the United States, or is prevented by some other good cause from testifying, in which case the demand may be verified by the attorney or authorized agent of the claimant. When a claim is presented for proof before the election of the assignee, and the judge entertains doubts of its validity, or of the right of the creditor to prove it, and is of opinion that such validity or right o'l^rht to be investigated by the assignee, he may postpone the proof of the claim until the assignee is chosen — any person who, after the approval of the act, shall have accepted any prefer- ence, having reasonable cause to believe that the same was made or given by the debtor, contrary to any provision of the act, sliall not prove the debt or claim on account of which the preference was made or given ; nor shall he receive any dividend therefrom until he shall first have surrendered to the assignee all property, money, benefit or advantage received by him under such preference. . When any person who, being bankrupt or insolvent, or in con- templation of bankruptcy or insolvency, shall make any payment, gift, grant, sa,le, conveyance or transfer of money or oth jr property, estate, rights or credits, with intent to give a preference, and upon Chap. 2.] PANKRUPTCY. 2S 4 being adjudged a bankrupt, the assignee may recover back the money or property so paid, conveyed, sold, assigned, or transferred, contrary to the act; provided, that the person receiving'such pay- ment or conveyance had reasonable cause to believe that the debtor was insolvent, and knew that a fraud on the act was intended ; and such person, if a creditor, shall not, in case of actual fraud on hib part, be allowed to prove for more than a moiety of his debt. Liens. The lien of a levy made under an execution, issued under a final judgment, obtained in good faith and without collusion, is preserved, provided such lien attached before petition in bankruptcy is filed ; but the lien is not preserved when it does not attach until after petition filed. Discharge. At any time after the expiration of six months from the adjudi- cation of bankruptcy, or if no debts have been jjroved against the bankrupt, or if no assets have come to the hands of the assignee, at any time after the expiration of sixty days, and within one year from the adjudication of bankruptcy, the bankrupt may apply to the Court foi' a discharge frcT. his debts, and the Court shall there- upon order notice to be given by mail to all creditors who have proved their debts, and by publication at least once a week in such newspapers as the Court shall designate, to appear on a day ap- pointed for that purpose, and show cause why a discharge should not be granted to tiie bankrupt. iNo discharge shall be granted, or, if granted, bo valid, if the bankrupt has willfully sworn falsely in his affidavit attached to his petition, schedule, or inventory, or upon any examination in the course of the proceedings in bank- ruptcy, in relation to any material fact concerning his estate or bis debts, or to any otlier material fact ; or if he has concealed any part of his estate or effects, or any books or writings relating there- ivj , or if he has been guilty of any fraud or negligence in the care, custody, or delivery to the assignee of the property belonging to him at the time of the presentation to him of his petition and in- 26 BANKRUPTCY. [Part 2. i ventory, excepting such property as he is permitted to retain under the provisions of the act ; or if he has aused, permitted, or suffered any loss,Vaste, or destruction thereof; or if within four months before the commencement of such proceedings, he has procured his lands, goods, moneys, or chattels to be attached, sequestered, or seized on execution ; or if he has destroyed, mutilated, altered, or fals- ified any of his books, documents, papers, writings, o • securities, or has made or been privy to the making of any false or fraudulent entry in any book of account or oilier document, with intent to defraud his creditors ; or has removed or caused to be removed any part of his property from the district, with intent to defraud his creditors ; or if he has given any fraudulent preference contrary to the pro- visions of this act, or made any fraudulent payment, gift, transfer, conveyance, or assign Jient of any part of his property, or has lost any part thereof in gaming, or has admitted a false ur fictitious debt against his estate ; or if, having knowledge that any person has proved such false or fictitious debt, he has not disclosed the same to his assignee within one month aft • such knowledge ; or if, being a merchant or tradesman, he has not, subsequently to the passage of the act, kept proper books of account ; or if he, or any person in his behalf, has procured the ass< nt of any creditor to the discharge, or influenced the action of an/ creditor at any stage of the proceedings, by any pecuniary consideration or obligation ; or if he has, in contemplation of becoming bankrupt, made any pledge, payment, transfer, assignment, or conveyance of any part of his property, directly or indirectly, absolutely or conditionally, for the purpose of preferring any creditor or person having a claim against him, or who is or may be under liability for him, or for the purpose of preventing the property from coming into the hands of the assignee, or of being distributed under the act in satisfaction of his debts ; or if he has been convicted of any misdemeanor under this act, or has been guilty of any fraud whatever, contrary to the true intent of the act : and before any discharge is granted, the bank- rupt shall take and subscribe an oath to the eftect that he has not done, suffered, or been privy to any act, matter, or thing specified in the act as a ground for withholding such discharge, or as invali- dating such discharge, if granted. [Part 2. etain under , or siiflFered four months [13 procured uestered, or cred,or fals- lecurities, or dulent entry it to defraud any part of is creditors ; f to the pro- lift, transfer, yr, or has lost or fictitious t any person lisclosed the ledge ; or if, ently to the if he, or any ■editor to the any stage of iligation ; or any pledge, part of his lally, for the aim against the purpose lands of the action of his 3r under this to the true d, the bank- t he has not ing specified or as invali- Chap. 2.] .1 BANKRUPTCY. Composition. 27 A meeting of creditors may be called under the direction of the Court, and the creditors resolve that a composition proposed by the debtor shall be accepted in satisfaction o'' the debts due to them from the debtor. And such resolution shall, to be operative, have been passed by a majority in number, and three-fourths in value of the creditors of the debtor assembled at such meeting, eithe.'' in person or by proxy, and shall be confirmed by the signatures thereto of the debtor and two-thirds in number and one-half in value of all the creditors of the debtor. And in calculating a majority for the purposes of a composition, creditors whose debts amount to sums not exceeding fifty dollars shall be reckoned in the majority in value, but not in the majority in number ; and the value of the debts of secured creditors above the amount of such security, to bo de- termined by the Court, shall, as nearly as circumstances admit, be estimated in the same way. And creditors Avhose debts are fully secured shall not be entitled to vote upon or to sign such resolution, without first relinquishing such security for the benefit of the estate. The resolution must be approved by the Court and recorded, and until so approved and recorded shall be of no validity. The provisions of a composition accepted by such a resolution shall be binding on all the creditors whose names and addresses, and the amounts of the debts due to whom, are shown in the state- ment of the debtor, produced at he meeting at which the resolu- tion shall have been passed ; but shall not affect or prejudice the rights of any other creditors. iim> I I • ill ;5 . iil (1.1 \ Part III. STATE OF CALIFORNIA, CHiPTER I. COURTS AND THEIR JURISDICTION. The Supreme Court op the State op Calipornia has original and appellate jurisdiction. Its original jurisdiction extends— To the issuance of writs of mandamus, certiorari, prohibition, and habeas corpus, and all other writs necessary or proper to the com- plete exercise of its appellate jurisdiction. Its appellate jurisdiction extends — ' - . ■ 1. To all civil actions for relief formerly given in courts of equity. 2. To all civil actions in which the subject of litigation is not capable of pecuniary estimation. 3 To all civil actions in which the subject of litigation is capa- ble of pecuniary estimation, which involve the title or possession of real estate, or the legality of any tax, impost, assessment, toll or mumc.pal Bne, or in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hundred dol- lars. 4. To all special proceedings. ' 5. To all cases arising in the Probate Courts. lili 1 m 80 CALIFORNIA. District Courts. [Part 3. The jurisdiction of these Courts extends — 1. To all civil actions for relief formerly given in courts of equity. 2. To all civil actions in which the subject of litigation is not capable of pecuniary estimation. 3. To all civil actions (except actions of forcible entry and de- tainer) in which the subject of litigation is capable of pecuniary es- timation, which involve the title of possession of real estate, or the legality of any tax, impost, assessment, toll or municipal fine, or in which the demand, exclusive of interest, or the value of the prop- erty in controversy, amounts to three hundred dollars. 4. To special proceedings not within the jurisdiction of the County and Probate Courts. 5. To the issuance of writs of mandamus, certiorari, prohibition, habeas corpus, and all writs necessary to the exercise of its powers. County Courts • Have original and appellate jurisdiction. Their original jurisdic- tion extends — 1. To actions to prevent or abate a nuisance. 2. To actions cf forcible entry and detainer. 3. To proceedings in insolvency. 4. To all special cases or proceedings in which the law, giving the remedy or authorizing the proceedings, confers the jurisdiction upon it. 5. To the issuance of writs of habeas corpus, and all writs neces- sary to the exercise of its powers. 6. To inquire, by the intervention of a grand jury, of all public offenses committed, or triable in the county. 7. Their appellate jurisdiction extends to all cases arising in Justices' or Police Courts. [Part 3. Chap. 1.] CALIFORNIA. 31 Prorate Courts. 'ts of equity, gation is not itry and de- lecuniary es- istate, or the il fine, or in of the prop- 3tion of the , prohibition, )f its powers. lal jurisdic- Probate Courts have jurisdiction — 1. To open and receive proof of last wills and testaments, and to admit them to probate. 2. To grant letters testamentary, of administration and of guar- dianship, and to revoke the same. 3. To appoint appraisers of estates of deceased persons. 4. To compel executors, administrators and guardians to render accounts. 5. To order the sale of property of estates, or belonging to minors. 6. To order the payment of debts due from estates. 7. To order and regulate all distributions and partitions of prop- erty, or estates of deceased persons. 8. To compel the attendance of witnesses, and the production of title deeds, papers, and other property of an estate, or of a minor. 9. To make such orders as may be necessary to the exercise of the powers conferred upon it. 10. To exercise jurisdiction in all matters of probate and guar- dianship. Justices' Courts. law, givnig jurisdiction writs neces- )f all public ansmg ui The civil jurisdiction of these Courts within their respective townships or cities extends — 1. To an action arieing on contract, for the recovery of money only, if the sura claimed, exclusive of interest, does not amount to three hundred dollars. 2. To an action for damages for injury to the person, or for tak- ing or detaining personal property, or for injuring personal prop- erty, or for an injury to real property, where no issue is raised by .he answer involving the plaintiff's title or possession of the same, if the damages claimed do not amount to three hundred dollars. 3. To all actions for a fine, penalty, or forfeiture, not amounting to three hundred dollars, given by statute or the ordinance of an incorporated city or town. 4. To an action upon a bond or undertaking conditioned for the 32 CALIFORNIA. [Part 3. payment of money, not amounting to three hundred dollars, though the penalty exceed that sura ; the judgment to be given for the sum actually due. When the payments are to be made by installments, an action mav be brought for each installment as it falls dae. */ CD 5. To an action to recover the possession of personal property, when the value of such property does not amount to three hundred dollars. 6. To take and enter judgment on the confession of a defend- ant, when the amount confessed, exclusive of interest, does not amount to thi-ec hundred dollars. The jurisdiction above does not extend, however — 1. To a civil action in which the title or possession of real prop- erty is put in issue. 2. Nor to an action or proceeding against ships, vessels, or boats, when the suit or proceeding is for the recovery of seamen's wages for a voyage performed in whole or in part without the waters of this State. Chapter II. TERMS OF COURTS, WHEN AND WHERE HELD. Supreme Court. There must be four terms in each year for the hearing of causes, to commence on the second Monday of January, April, July, and October. The January and July terras are held at the city of San Francisco. The April and October terma are held at the city of Sacramento. Additional terms may be held by order of the Court. Chap. 2.] CALIFORNIA. 88 District Courts. of a defend- est, does not isels, or boats, amen's wages the waters of The State is divided into twenty judicial districts. There is a District Court in each of the judicial districts, and Court is held at the county seat of each county, as follows : COUNTY. Aliiincda Alpiiii' Ainndor ]!uttc ('uliivcras CullIKll Coiili'ii C':>Bta . . Pol Norto El Donido Fn'sno Himilxildt Inyo K( rn KliMiiatli I.lllcr LasKi'ii LoK AiigolcB . . ^^.■ll'iu Mariposa M 'iiilociiio. . , Mcrccil M'uloc, M mo llontcrcy Xapa Nevada I'laccr PlmiiaH Suoraiuento . . San Hcnito Kan Hrrnai-diuo, Sau Dii'go San Fi'anciBco San Joaquin, San T.nis Obispo San Jtatio Santa liarbara.. Santa Clara Santa Cruz Sliasta Siirra Siskivo\i Solano Sonoma . . . Stanislaus. Sutter Tclinma Trinity Tulare Tnoliiiiine Ventura Yolo Yuba Third Sixteenth . . Kleventh... Second Eleventh. . , Tenth Fifteenth . . EiKhth Eleventh, .. Thirteenth. Eighth Sixteenth . . Sixteenth . . Ei«htli .Seventh Serond . . . . Seventeenth Seventh .... Thirteenth. Siventh.... Thirteenth. Ninth Sixtc^enth . . Twentieth . Seventh.... Fourteenth. Fourteenth. Se<-ond Sixth Twentieth . Eighteentli, Eighteenth Fifth First Twelfth... First I'wentieth Twentieth -Ninth Tenth Ninth Seventh. . . Seventh... Fifth Tenth Second Ninth Thirteenth Fifth First Sixth Tenth WHKN HELD, ;)d Monday February, .June, and October. 1st .Monday April and Oitober. 2d Monday March, .June, September, and Deeendier. 1st Monday March; Ud Monday NovendxT; 2d Monday July, 2d Monday January, Ajiril, July, and October. 4th Monday Aiiril ; 2d Monday AuHU^' ; Ist iMonday December. :!d Tui'Kiliiy Aipril, July, and November. 2d ]\Ionday May, .Xn^ust, and November. 2d Moiulay February, and May ; 3d Monday August, and No- vend)er. lid Monday February, Jiini^ and October. 2d Alonday March, .June, September, and December. 1st Monday May and November. :id .Monday May and November. 2d Monday .\pril, July, and October. ;)d Monday .\])ril; 2d Monday November. 2d Jfonday June ; 2d Monday September. 1st Monday l''ebruary, ^lay, .Vugu.st, aiul Novendier. 1st Monday March and July; :Jd Monday Novendier. ;id Monday April; M Monday .\ugu.st ; 2d Monday December, 2d Monday April ; lid .Monday July ; 1st Monday November. :id Monday JIarcli, July, and November, 2d ."Monday July ; ltd Monday October. 3d Jlunilay April and ()etol)er. :!d Monday JIarch, July, and November. 1st Monday February, .hme, and October. 2d Monday March, June, September, and Decend)er, 1st Jlonday February. .May, August, and November. 4tli Monilay May ; 1st Monday (October. lat Jlonday February, .Vpril, June, .\ugUPt, October ceiuber. 1st Monday April, .\ugust, and December. 2(1 Monday March, June. Septi mber. and December. 2il Monday January, April, July, anil October. 3d D. O. — lid Monday April, August, Decendier. Monday February, :\lay, August, Drcendxr. 12th- day ,Ianuary, April, July, Octolxr. 15th — 1st Monday Man h, June,.Septend)er. December. 19th— 1st Monday .\pril, Au- gust, and December, 1st Monday T^cbruary. May, .\ugUBt ; 3d Monday October. 2d Monday May, September, and Januai-y. 2d Stonday February; 4tli Mcjnday May, Angu8t, and Novem- ber. li.l Monday March, July, and Nove)nber. 1st Monday Jaiuiary, May, and Septend)er. 2d Monday February, Jum . and tictober. 2d M'inday March. June, and November. Isl MonihiV .\pril ; 2il Jlonday July ; 4th Monday October. 3d Monday January, May, and September. At Lake City — 2d Monday July. lid Monday January, Jliiy, and September. 3d M mday February, June, and October. 2d Monday January, April, and Sel)tember. 4th Monijay February ; 3d Monday June; 2d Monday Novem- ber. 4tli Monday October ; 4fh ^londay January ; 1st Monday May. 2d 'Monday .\pril, .Vugust. ami December. 3d Monday January, Jlay, Jind Deemiber. 1st Monday JIarcli and July ; liil Jlonilay November. 1st Monday March, Jnly, and Novendier. lid Monday January, May. and Si ptember. 3d Monilay January ; 3d Monday May ; 1st Monday October. and De- 4th-lst -1st .Mon- 8 CALIFORNIA. [Part 8. County and Probate Courts. The terms of these Courts are held at the county seat of each county, as follows : Alaiiiedn Aljiiiu' Aniiidor Uiittc ClllllVCI'tlB ColuMii Ci)litrii CoKttt. . n.l Norte Kl Dcmulo Fresno HiiiiibuUU Inyo Ktrii Kliiniuth Lake LaKsen LoH AugeU-s. . . Marin MariiMmu Menddcino . .. . Mptrnd")er. ln'cember 1st Mouilay Jan., Mih.. May, July, Sept., Nov. 1st Monday February. J\ine. October 1st Monday January. .May. September l8t Monday March.May," July, Sept., Nov 1st Monday Mch., Sejit., Dec. ; :!d Monday June 1st Monday February, May, .\uuust. Novciubn Sessions may be held at Truckee at the diijcre- tion of the Juukc. 1st Monday Jan., Mch., M;iy, July, Sept., Nov. 1st Monday March, June. Sepienibir, Dec .... 1st Monday January, April, July, O, lobcr 1st Monday February, ilay ; lid Monday .\UK- Ust ; 1st Monday November 1st Monday Jan., Alch., May, July, Sept., Nov. 1st Monday Jan.. :\Iih.,Miy. July, S( pt., Nov. 1st Momlay Jan.. Mch , :\['iy. July, SipU, Nov. 1st Monday J.in., Mch., JIay. July, Sepf., Nov. 1st Alonday March, Jun<' ; lid Monday .VuKUst ; 1st Monday December 2d Monday March, June, Septeiid)cr, Dec 1st Monday Alarch, June, Siptember. Dec :l(l Monday February, May, .\>ij,'nst, November 1st Monday .Ian., JI. h.. May. July. S( pt.. Nov 1st Monday January, May, Septeiubir Hd Monday April, June. Sept,; 2d Monday Deo. 1st Monday Jan.. Mch., May, Jidy, Sept., Nov. At l.uke City 2,1 Monday of July lid Monday .\pril, .\ui,'ust, liecembi-r 1st Mondav January, .-^pril. Jidy, Octcdar 1st JIond::y Jan., Mch., May, July, Sept., Nov. 1st MoiKhiv Jainiarv, April, July, October Ist M-ndii'v Jan.,:\ich..Mav. Julv, S,'i)l.. Nov. 1st M ombiy J -n., Mch., May. July.Selit., Nov. 1st Moiida.V Jlch., Junes Septituher, December 1st Monday January, May, ScpteudKr 1st Monday February. July, Octobi-r 1st Mond.ay anuary, April, July, October 1st Monday Jju., April, July ; 2d Monday Oct, PnOBATE COUnTB, Same as Cotinty Court, Same as Co-.nly Court, Same as Counly Court, Same as (!onnty (!oiirt. .Same as (^onnty Court. Same as County (Jourt. Same as Cotinty (Jonrt. ISame as Coimlv Court. j2d Jan., April, July, Oct, 'S line as Cmiiity Ciurt. .Same as County Court. Same as (Vuinty (Jic.irt. jSame as (Nuinty Court, ISanie as (,'oiiiity Court. Same as County Court. Same as Ciuuity Court. Same as County Court. Same a-^ County Court. Same as County Court. Same as Cininty ('oiirt. Sami' as County Court. When necessity rei|uires. San.e as County (,'ourt. Ist Monday each month. Sime as County Court. 1st Monday each month. Same as County CMiuty (\)urt. Jouuty Court, bounty Court. Iiuiuty (Nnirt. .bounty Court. ii'ssity ri'ijuires. ;'cuiiity Court, iiy lach luoutli. l.'(Uinty Court. luy eHcli luoutli. oviuty Court. i\iiity Court. lounty Court. ■ of cncli iiioutli. ■ of (lull uioutli. uuuty Court. of "fiic'h uiouth. ipuuty Court. luuty Cmirt. muty Co\u't. ■ uuty (durt. of riiiOi luontl). lUuty Court. F. iiruury, April. .^ust, Oct.. Pif. of I'licll UlOIltll. )\iuly Court. iiunty Cotirt. of ( lull nninth. iniily Court. y of (11 -li mouth. !iuuty (^cmrt. Diiiity Court, luuiy (;ourt. ly of" I'luli mouth. •'s^!ly v ipiiri/s. nmty Court. V of riich uiontU. Justices' Courts. Those Courts may be held at any place selected by the justice hoMiu;; the same, in the township or city for which he is elected, and they are always open for the transaction of business. The Circuit Court op the U.vited St.vtes — Dist.uot of California. The regular terms shall be held at San Francisco as follows : On the second Monday in February, July, and December of each year. The circuit judge may appoint special sessions of the Circuit Court, to be held at the place where the regular session is held. The District Court of the United States — DiiiTrict of California. The regular terms shall be held at San Francisco as follows : On the first Monday in April, on the second Monday in August, and on the first Monday in December. Whenever the judge fails to hold any regular terra thereof, it shall be his duty, if it appears that the business of the Court re- quires it, to hold an intermediate terra. The Court is always open for the transaction of business under the bankruptcy act. Chapter III. PLACE OF TRIAL OF CIVIL ACTIONS. Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated : 1. For the recovery of real property, or of an estate or interest 86 CALIFORXrA. [Part 8. therein, or for the dotcrmlnatioii, in any form, of sucli rij^lit or in- terest, and for injuries to real [jroperty. 2. For the ))artition of real property. 8. For the foreclosure of a mortgage of real property. Where the real property is situated partly in one county and partly in another, the plaintiff may select either of the counties, and the comity so selected is the pn)i)er county for the trial of such action. Actions for the following causes must be tried in the county whore the cause or some part thereof arose. 1. For the recovery of a penalty or forfeiture imposed by stat- ute, except that when it is imi)033d f)r an oSonso committed on a lake, river, or other stream of water situated in two or more coun- ties, the action may be brought in any county bordering on such lake, river, or stream, and opposite to the place where the offense was committed. 2. Against a public officer or person especially ai)point('d to execute his duties, for an act done by him in virtue of his office, or against a person who, by his command, or in his aid, does any- thing touching the duties of such officer. Actions against counties may be commenced and tried in any county in the judicial district in which such county is situated, unless sucti actions are between counties, in which case they may be commenced and tried in any oe>^nty not a party thereto. All other actions must be tried iu the countv in which the defend- ants, or some of them, resid" a' the commencement of the action ; or if none of the defendants reside in the State, or if residing in this State, the county in which they reside is unknown to the plaintiff", the same may be tried in any county which the jdaintiff" may designate in his complaint ; and if the defendant is about to 'depart from the State, such action may be tried in any county ■where either of the parties reside, or where service is had. If the county in which the action is commenced is not the proper county for the trial thereof, the action may, notwithstanding, b3 tried therein, unless the defendant, at the time he appears and an- : swers or demurs, files an affidavit of merits, and demands in writing .that the trial be had in the proper county. Chap. 8.] CALIFORNIA. 87 The ])laco of trial may he cliangod in the followin;^ cases : 1. When tlio county desii^natcd in the comiiUiint is not the proper county. 2. Wlion tliero is reason to believe that an impartial trial can- not be had tiierein. 3. When the convenience of witnesses and the ends of justice would he promoted by the change. 4. Wiion from any cause the judge is dis([ualified for acting. )scd hv stat- Place of Trial of Actions in Justices' Courts. 1. If there be no Justices' Courts for the township or city in which the defendant resides : in any city or township of the county in which he resides. 2. When two or more persons are jointly, or jointly and several- ly, bound in any debt or contract, or otherwise jointly liable in the same action, and reside in different townships or different cities of the same county, or in different counties : in the township or city in which any of the persons liable may resiile. 3. In case of injury to the person or property : in the town- ship or city where the injury was committed, or wliere the defend- ant resides. 4. If for the recovery of personal pi'oporty, or the value thereof, or damages for taking or detaining the same ; in the township or city in which the property may be found, or in which the property was taken, or in which the defendant resides. 5. When the defendant is a non-resident of the county : in any township or city wherein he may be found. 6. When the defendant is a non-resident of the State : in any township or city in the State. • 7. When a person has contracted to perform an obligation at a particular place, and resides in another county, township or city ; in the township or city in which such obligation is to be performed, or in which he resides ; and the township or city in which the obliga- tion is incurred shall be deemed to be the township or city in which it is to be performed, unless there is a special contract to the con- trary. 38 CALIFORNIA. [Part 3. 8. When the parties voluntarily appear and plead without sum- mons : in any township or city in the State. 9. In all other cases : in the township or city in which the de- fendant resides. The place of trial may be changed in the following cases : 1. When it appears to the satisfaction of the jubtico before whom the action is pending, by affidavit of either party, that such justice is a material witness for either party. 2. When either party makes and files an affidavit that he be- lieves that he cannot have a fair and impartial trial before such justice, by reason of the interest, prejudice, or bias of the justice. 3. When a jury has been demanded, and either party makes and files an affidavit that he cannot have a fair and imparcial trial on account of the bias or prejudice of the citizens of the township or city against him. 4. When from any cause the justice is dis(;[ualified from acting. 5. When the justice is sick or unable to act. Probate Court. In what county wills must be proved and letters testamentary or of administration granted : 1. In the county of which the deceased was a resident at the time of his death, in whatever place he may have died. 2. In the county in which the deceased may have died, leaving estate therein, he not being a resident of the State. 3. In the county in which any part of the estate may be, the deceased having died out of the State and not resident therein at the time of his death. 4. In the county in which any part of the estate may be, the deceased not being a resident of the State, and not leaving estate in the county in which he died. 5. In all other cases, in the county where application for letters is first mode. >i-^ [Part 3. without sum- ^hich the de- cases : ibticc before :y, that such that he be- before such the justice, party makes nparcial trial ! township or Dm acting. Chap. 4.] CALIFORNIA. 29 amentary or ident at the ied, leaving may be, the therein at may be, the aving estate 1 for letters Chapter IV. LIMITATION OF CIVIL ACTIONS. The periods prescribed for the commencement of civil actions are as follows : ' Within five years : 1. An action upon a judgment or decree of any Court of the United States or of any State within the United States. 2. An action for mesne profits of real properly. Within four years : An action upon any contract, obligation, or liability founded upon an instrument in writing executed in this State, (promissory notes included). WitJ: 'n three years : 1. An action upon a liability created by statute, other than a penalty or forfeiture, 2. An action for trespass upon real property. 3. An action for taking, detainintj, or injuring any goods or chattels, including actions for the specific recovery of personal l)roperty. 4. An action for rel^of on the ground of fraud or mistake. In tliis case the time begins to run fropa the discovery, by the ag- grieved party, of the facts constituting the fraud or mistake. Within tivo years : 1. An action upon a- contract, obligation, or liability, not founded upon an instrument of writing, made within or out of this State, (accounts included). 2. An action founded upon an instrument of writing executed out of this State, (promissory notes included ). 3. An action against a sheriff, coroner, or constable, upon a 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, mcluding the non-payment of money collected upon an execution — except for an escape, «i* 40 CALIFORNIA. [Part 3. 4. An action to recover damages for the death of one caused by the wrongful act or neglect of another. Within one year : 1. An action upon a statute for a penalty or forfeiture, where the action is given to an individual, or to an individual and the State, except where the statute imposing it prescribes a different limitation. 2. An action for libel, slander, assault, battery, fajse imprison- ment, or seduction. 3. An action against a sheriff or other officer for the escape oi .; prisoner arrested or imprisoned on civil process. 4. An action against a municipal corporation for damages for injuries to property caused by a mob or riot. Within six months : An action against an officer, or officer de facto — 1. To recover any goods, wares, merchandise, or other ^property, seized by such officer in his official capacity as tax collector, or to recover the price or value of any goods, wares, merchandise, or 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 sei/ftd, or for damages done ij any person or property in making any such seizure. 2. To recover stock sold for a delin(pient assessment, upon the ground of irregularity in the assessment, or irregularity or defect of the notice of sale, or defect or irregularity in the sale. No limitatioa : To actions for the recovery of money or other property dei)0s- ited with any bank, banker, trust company, or savings and loan society. General 2)rovisions : The period of limitation begins to run from the time the cau>e of action accrues, or in other words, from the time when suit can be brought. A partiid payment of an amount due under an agreement in writing, (promissory notes included) or und'u* ai. agr^emvui not in writing, (book accounts included) does not pnvent the ( ute [Part 3. ne caused by 'eiture, where dual and the les a different ijsc iinprison- le escape ci .i damages for Chap. 4.] CALIFORNIA. 41 ther^property, olloctor, or to ?rchandiso, or • the seizure, ^rchandise, or J any person ent, upon the rity or defect sale. pcrty dopos- ; and loan le the cause Hien suit can l^reemciit in Iv-jom- ill not the r . ute running; but where a balance is due upon a mutual, op^n, and cur rent account, where there have been reciprocal demands between the parties, the statute begins to run from the last item proved in the account on either side. If when the cause of action accrues against a person, he is out of the State, the action may be commenced within the time above limited, al'ler his return to the State, an 1 if, after the cause of action ficcrues, ho departs from the State, the time of his absence is not par' of the time limited for the conmiencement of the action. If a person entitled to bring an action be, at the time the cause of action accrues, either within the age of majority, insane, im- prisoned 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 com- mencing such action, the time of such disability is not a part of the time limited. If a jierson entitled to bring an action die before the exjiiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his representa- ti''es, after the expiration of that time, and within six months from ')".? death. If a person, against whom an action may be brought, d\' before the exjiiration of the time limited for the commenco- n 'vii thereof, and the cause of action survive, an action may be '■■ '<■ oenced against his representatives after the expiration of that ^. (0, fiud within one year after the issuing of letters testamentaiy 01 0. adminisiiaiion. When a person is an alien subject, or citizen of a country at war with the United States, the time of the continuance of the war is not part of the period limited for the commencement of the action. When the commencement of an action is stayed by injunction Oi statutory prohibition, the time of the continuance of the in- ' inction or prohibition is not part of the time limited for the com- nienc 'ment of the action. When a cause of action has arisen in another State, or in a for- eign country, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of f .42 CALIFORNIA. [Part 3. time, an action thereon shall not be maintained against hira in this State, except in favor of one who has been a citizen of this State, and who has held the cause of action from the time it accrued. No acknowledgment or promise is sufficient evidence of a new or continuing contract, by which to take the case out of the opera- tion of the statute, unless the same is contained in some writing, signed by the party to bo charged thereby. Chapter V. « PARTIES TO SUITS— COMMENCEMENT OF ACTIONS. Every action must be prosecuted in the name of the ro;\l party in interest, except in the case of an executor, or administrator, or trustee of an express trust, (including a person with whom, or in whose name, a contract is made for the benefit of another) or a person expressly authorized by statute, who may sue without joining with him the person or persons for whose benefit the action is brought. In the case of an assignment of a right to recover money or other personal property by a judicial proceeding, the action by the assignee is without prejudice to any set-off or other defense ex- isting at the time of, or before notice of, tie assignment; but this doe? not apply to a negotiable promissory note or bill of exchange, tran .ferred, in good faith and upon good consideration, before ma- turity. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and sureties on the same or separate instruments, may all or any of them be included in the same action, at the option of the jjlaintiff. Civil actions in the Courts of this State are commenced by filing Chap. 5.] CALIFORNIA. 43 a complaint. In the Justices' Courts, by filing a complaint and issuing a summons thereon, or by the voluntary appearance and pleading of the parties. • The plaintiff may have summons issued any time within one year after the complaint is filed with the clerk or justice. In the District Courts the defendant is allowed ten days after the service of summons and complai.it to appear and answer the complaint, where service is made within the county in which the action is brought ; twenty days if served out of the county but in the district in which the action is brought, and forty days if served elsewhere. In the District Courts, the summons and copy of complaint may be served by the sheriff of the county where defendant may be found, or by any other person over the age of eighteen, not a party to the action. On wliorn 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, secre- tary, cashier, or managing agent thereof. 2. If against a foreign corporation, or a non-resident joint-stock company or association, doing business and having a laanaging or business agent, cashier, or secretary within this State : the agent, cashier, or secretary. 3. If against a minor under the age of fourteen years, residing within this State : such minor personally, and also his father, mother, or guardian ; or if there be none within this State, then any person having the care or control of such minor, or with whom he resides, cr in whose service he is emploped. 4. If against a person, residing within this State, who has been judicially declared to bo of unsounsi mind, or incapable of conduct- ing his own affairs, and for whom a guardian has been appointed: such person, and also his guardian. 5. If against a county, city, or town : the president of the board of supervisors, president of the council, or trustees, or other head of the legislative department thereof. 6. In all other cases the defendant must be served persortally. I ■I i ^i % I !lfi 44 CALIFORNIA. [Part 3. Service by publication: When the person on whom the service i^ oO be made resides out of the State, or has departed from the State, or cannot, after due diligence, be found within the State, or conceals himself to avoid service, or is a foreign corporation having no managing or business agent, cashier, or secretary Avithin the State, and the fact appears by affidavit to the satisfaction of the Court, or a judge thereof, or a county judge, and it also appears by such affidavit, or by the verified coin[)laint 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 publication of the summons. The order must direct the publication to be made in a news- paper, to be designated as most likely to give notice to the person to be served, and for such length of time as may be deemed reason- able, at least once a week ; but publication against a defendant re- siding out of the State, or absent therefrom, must not be less than two months. In case of publication, where the residence of a non- resident or absent defendant is known, the Court or a judge must direct a copy of the summons and complaint to be forthwith de- posited in the postoffice, directed to the person to be served, at his place of residence. When publication is ordered, personal service of a copy of the summons and complaint out of the State is equivalent to publication and deposit in the postoffice. In either case, the service of the summons is complete at the expira- tion of the time prescribed by the order for publication. Provisions in Justices' Courts. In Justices' Courts, the time for the ap{)earancc of tlip defend- ant must be set forth in the summons, and must be as follows : — 1. Forthwith, if an order of arrest is indorsed upon the sum- mons. 2. Not less than twenty nor more than thirty days from its date, if the defendant is not a resident of the county in which the action is brought. «!! Chap. 5.] CALIl'OHNIA. 45 3. In all other cases, not less tha/i three nor more than twelve clays from its date. On whom summons to be served in Justice Court actions : see rule for service in District Courts. Service hy publication : Rule in District Courts apiilicablo to Justices' Coui'ts. In Justice Court actions the summons cannot be served out of the county of the justice before whom the action is brou;;ht, ex- cept when the action is brought upon a joint contract or obligation of two or more persons who reside in different counties, and the summons has been served upon the defendant resident of the county, in which case the summons may be served upon the other defendants out of the county ; and except also when an action is brought against a party Avho has contracted to perform an obliga- tion at a particular place, and i-tsides in a diftereut county, in which case summons may be served in the county where he re- sides. When the defendant resides in the county, the summons cannot bo served within two days of the time fixed for the ap- pearance of the defendant ; and when he resides out of the county and the summons is served out of the county, the sum- mons cannot be served within twenty days of such time. The justice may, within a year from the date of filing the com- })laint, issue as many alias summons as may be demanded by the plaintiff. The summons in a Justice Court action may be served by a sheriff or constable of any of the counties of this State, or by any male resident over the age of twenty-one years, not a party to the suit, and within the county where the action is brought, or it may be served by publication. When a summons is issued by a justice of the peace for service out of the county in which it was issued, the summons shall have attached to it a certificate, under seal by the county clerk of such county, to the effect that the person issuing the same was an acting justice of the peace at the date of the summons. 46 CALIFORNIA. [Part 3. Chapter VI. FORM OF CIVIL ACTIONS— PLEADINGS. There is in this State but one form of civil actions for the en- forcement or protection of private rights and the redress or prevention of private wrongs. In siicli action the party complaining is known as the plaintiff, and the adverse party as the defendant. I L Pleadings. Pleadings are the formal allegations by the parties of their res- pective claims and defenses, for (he judgment of the Court. The only pleadings allowed on the part of the plaintiff are — 1. The comi)laint. 2. The demurrer to the answer. 3. Demurrer r.nd answer to a cross-complaint. Those allowed on the part of the defendant are — 1. The demurrer to the complaint. 2. The answer. 3. Cross-complaint. A demurrer raises an issue of law. An answer raises an issue of fact. An issue of law is tried by the Court. An issue of fact is tried by a jury, unless a jury trial is waived. The complaint must contain a concise statement, in writing, of the facts constituting the cause of action. In the Justice Court a copy of the account, note, bill, bond, or instrument upon which the action is based, is sufficient. The plaintiff" ni'ay unite several causes of ac*^ion in the same complaint where they all arise out of — 1. Contracts, express or implied. 2. Claims to recover specific real property, with or without damages for the withholding thereof, or for waste committed there- on, and the rents and profits of the same Chap, r..] CALIFORNIA. 47 3. Claims to recover specific personal property, with or without damages for the withholding thereof. 4. Claims against a trustee by virtue of a contract or by opera- tion of law. 5. Injuries to character. 0. Injuries to person. 7. Injuries to property. The causes of action so united must all bclon"; to one onlv of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated. The defendant may demur to the complaint within the time re- quired in the summons to answoi-, when it appears upon the face thereof, either — 1. That the Court has no jurisdiction of the person of the de- fendant, or the subject of the action ; or, 2. That the plaintiff" has not legal capacity to sue; or, 3. That there is another action pending between the same par- ties for the same cause ; or, 4. That there is a defect or misjoinder of parties plaintiff or de- fendant ; or, 5. That several causes of action have been improperly united ; or 6. That the complaint does not state facts sufficient to constitute a cause of action ; or, 7. That the comjilaint is ambiguous, unintelligible, or uncertain. Unless the demurrer distinctly specify the grounds upon which any of the objections to the complaint are taken, it may be dis- regarded. , • The defendant may demur and answer at the same time. The answer of the defendant shall contain — 1. A general or specific denial of the material allegations of the complaint controverted by the defendant. 2. A statement of any new matter constituting a defense or counter claim. If the complaint be verified, the denial of each allegation controverted must be specific, and be made positively, or according to the information and belief of the defendant. If the defendant has no information or belief upon the subject sufficient to enable him to answer an allegation of the complaint, he may so ■18 CALIFOK>fIA. [Part 3. liiiiii state in liis answer, and place his denial on that ,!j;round. If the complaint be not verified, a general denial is suftioieut, Imt only puts in issue the material allegations of the complaint. The counter-claim ahove mentioned must be one existing in favor of a defendant, and ayiinst a plaiutilf, between whom a several judgment might bo had in the action, and arising out of one of the following causes of action : 1. A cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the sul)ject of the action. 2. In an action arising ujion contract; any other causj of action arising upon contract, and existing at the commencement of the action. If the defendant omit to set up a counter-claim arising out -^f the transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action, neither he nor his assi;inee can afterwards maintain an action a;raiiist the plaintiff therefor. When cross-demands have existed between persons under such circumstances that, if one had brought an action against the other, a counter-claim could have liecn set up, the two demands shall be deemed compensated, so far as they ecpial eacli other, and neither can bo deprived of the benefit thereof l)y the assignment or death of the other. The [ilaiutiff may, within the same length of time after the ser- vice of the answer as the defendant is allowed to answer after service of summons, demur to the answer of the defendant, or to one or more of the several defenses or counter-claims set up in the answer. The demurrer may be taken upon one or more of the following grounds : 1. That several causes of counter-claim have been improperly joined. 2. That the answer does not state facts sufficient to constitute a defense or counter claim. 3. That the answer is ambiguous, unintelligible, or uncertain. Mi ""^Pf^J^PT lll«.«|(p,,Wpif^JPiilJ|lllL"«.PPV%_^l..i| ijp>iv>^.W.iM«<^MWuq^,«!,^^ieriffs of different counties. The writ of attachment must be executed, without delay, by the sheriff to whom it is directed : 1. Meal [jroperty, standing upon the records of the county in the name of the defendant, must be attached by filing witii the re- corder of the county a copy of the writ, togetiier with a descrip- tion of the property attached, and a notice that it is attached, aad by leaving a similar copy of the writ, description and notice with an occ>i|)ant of the property, if there is one ; if not, then l)y post- ing the same in a conspicuous place on the property attached. f<,ii|iuL.^ii>vjiuj..at,i.>q wi.iu «»< 1^ iiiFijimf«i4. r- Chap. 7.] CALIFORNIA. §8 2. Real property, or an interest therein, belonging to the detend- ant, and held by any other person, or standing on the records of the county in the name of any other person, must he attached by filing with the recorder of the county a copy of the writ, together with a description of the property, and a notice that such real pro[)erty and any interest of the defendant therein, held by or standing in the name of such other person, (naming him) are attached ; and by leaving with the occupant, if any, and with such other person or his agent, if known and within the county, or at the residence of either, if witliin the count};, a copy of the writ, with a similar description and notice. If there is no occupant of the property, a copy of the writ, together with such description and notice, must be posted in a conspicuous place upon the property. The recorder must index such attachment when filed, in the names both of the defendant and of the person by whom the property is held, or in whose name it stands on the records. 3. Personal property, capable of manual delivery, must be at- tached by taking it into custody. 4. Stocks or shares, or miurest in stocks or shares of any cor- poration or company, must be attached by leaving with the presi- dent or other head of the aame, or the secretary, cashier, or other managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the defendant is attached, in pursuance of such writ. 5. L)el). and credits, and other personal property not capable of manual delivery, must be attached by leaving with the person own- ing such debts, or having in his possession, or under his control, such credits and other personal property, or wi'ii his agent, a co[)y of the writ, and a notice that the debts owin , by him to the defend- ant, or the credits and other personal property in his possession or under his control, belonging to the defendant, are attached in pur- suance of such writ. Upon receiving information, in writing, from the plaintitf or his attorney, that any person has in his possession, or under his con- trol, any credits or other personal property belonging to the de- fendant, or i? owing any debt to the defendant, the sheriff must serve upon ^uch person a copy of the writ, and a notice that such 54 CALIFORNIA. [Part 3. credits or other proi)erty or debts, as the case may be, are attached in pursuance of such writ. All persons having in their possession, or under their control, any credits or other personal property belonging to the defendant, or owing any debts to the defendant at the time of service upon them of a copy of the writ and notice, as above directed, shall be, unless such property be delivered up or transferred, or such debts be paid to the sheriff, liable to the plaintiff for the amount of such credits, property, or debts, until the attachment be discharged, or any judgment recovered by him be satisfied. Any person owing debts to the defendant, or having in his pos- session, or under his control, any credits or other personal property belonging to the defendant, may be required to attend before the Court or judge, or a referee appointed by the Court or judge, and be examined on oath respecting the same. The defendant may also be required to attend for the purpose of giving information res[>ect- ing his property, and may be examined on oath. The Court or judge may, after such examination, order personal property, ca[)able of mfuiual delivery, to be delivered to the sheriff on such terms as may be just, having reference to any liens thereon, or any claims against the same, and a memorandum to be given of all other personal property, containing the amount and description thereof. Perishable property attached must be sold by the sheriff. The proceeds, and other property attached, must be retained by him to answer any judgment that may be recovered in the action, unless sooner subjected to execution upon another judgment re- covered previous to the issuing of the attachment. Debts and cretlits attached may be collected by him, if the same can be done without suit. The sheriff's receipt is a sufficient discharge for the amount jtaid. Wlieucver property has been taken by an office • under a writ of attacluu'jnt, and it is made to appear satisfactorily to the Court, or a judge thereof, or a county judge, that the interest oi the jjarties to the action will bo subserved by a sale thereof, the Court or a judge may order such property to bo sold in the same manner as pro[)erty is sold under an execution, and the proceeds to be de- posited in the Court, to abide the judgment in the actiun. i_,W))l ■IB^Ip.JH , Chap. 7.] CALIFORNIA. 55 If any personal property attached be claimed by a third person as his property, the sheriff may summon a jury of six men to try the validity of such claim. Whenever the defendant has appeared in the action, he may, upon reasonable notice to the plaintiff, apply to the Court in which the action is pending, or to the judge thereof, or to a county judge, for an order to discharge the attachment, wholly or in part ; and, upon the execution of the undertaking mentioned here- after, an order may be made, releasing from the operation of the attachment any or all of the property attached ; and all the prop- erty so released, and all of the proceeds of the sales thereof, must be dehvered to the defendant, upon the justification of the sureties on the undertaking, if required by the plaintiff. Before making such order, the Court or judge must require an undertaking on behalf of the defendant, by at least two sureties, residents and freeholders, or householders, in the State, to the effect that, in case the plaintiff recover judgment in the action, the defendant will, on demand, re-deliver the attachi'd property so re- leased to the proper officer, to be applied to the payment of the judgment; or, in default thereof, that tli i*4*endant and sureties will, on demand, pay to the plaintiff the full .alue of the property released. The Court or judge making such order iiiay fix the bura for which the undertaking must be executed, and if t'^^cessary, in fixing such sum, to know the value of the property released, the same may be appraised by one or more disinterested persons, to be appointed for that purpose. The sureties may be recjuired to jus- tify before the Court or judge, and the property cannot be released without their justification, if the same be recpiired. The defendant may also, at any time, either before or after tho release of the attached property, or before any attachment sha have been actually levied, apply on motion, upon reasonable notice to the plaintiff", to the Court in which the action is brought, or to the judge thereof, or to a county judge, that the writ of attach- ment be discharged, on the ground that the same was improperly or irregularly issued. If, upon such application, it satisfactorily appears that the writ of attachment was improperly or irregularly issued, it must be dis- charged. 56 CALIFORNIA. [Part 3. Chapter VIII. CLAIM AND DELIVERY OF PERSONAL PROPERTY. mi' |i: I The plaintiff in an action to recover the possession of personal property may, at the time of issuing the summons, or at any time before answer, claim the delivery of such property to him. Where a delivery is claimed, an affidavit must be made by the plaintiff, or by some one on his behalf, showing — 1. That the plaintiff is the owner of the property claimed, (par- ticularly describing it) or is entitled to the possesion thereof. 2. That the property is wrongfully detained by the defendant. 3. The alleged cause of the detention thereof, according to bia best knowledge, information, and belief. 4. That it has not been tal.. the property to the plaintiff. If the property taken be claimed by any other person than the defend;! nt or his agent, and such person make affidavit of his title thereto, or right to the possession thereof, stating the grounds of such title or right, and serve the same upon the sheriff, the sheriff is not bound to keep the property or deliver it to the jtlaintiff, un- less the plaintiff, on demand of him, or his agent, indemnify the sheriff against such claim, by an undertaking, by two sufficient sureties ; and no claim to such property by any other person than the defendant or his agent is valid agahist the sheriff, unless so made. 58 CALIFORNIA. [Part 3. The provisions contained in this chapter are applicable to oases in Justices' Courts, the word " constable " being substituted for " sherifiF," and " justice " for "judge." Chapter IX. ARREST AND BAIL. The defendant may be arrested in a civil action in the following cases : 1. In an action for the recovery of money or damages on a cause of action arising npon contract, express or implied, when the defendant is about to depart from the State, with intent to defraud his creditors. 2. In an action for a fine or penalty, or for money or property embezzled, or fraudulently misapplied, or converted to liis own us^-, by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity ; or for mis- conduct or neglect in office, or in a professional employment, or for a willful violation of duty. 3. In an action to recover the possession of personal property unjustly detained, when the property or any part thereof has been concealed, removed, or disposed of, to prevent its being found or taken by the sheriff. 4. When the defendant has been guilty of a fraud in contract- ing the debt, or incurring the obligation for which the action is brought ; or in concealing or disposing of the property, for the tak- ing, detention, or conversion of which the action is brought. 5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. Chap. 9.] CALIFORNIA. 59 The order of arrest is made upon affidavit of the phiintifF, or some other person, that a sufficient cause of action exists, and the case is one of those mentioned above. Before making the order of arrest, the judge must require a written undertaking on the part of the plaintiff, with sureties in an amount to be fixed by the judge, which must be at least five hun- dred dollars, to the eifcct that the plaintiff will pay all costs which may be adjudged to the defendant, and all damages which he may sustain by reason of the arrest, if the same be wrongful, or without sufficient cause, not exceeding the sum specified in the undertaking. In the Justice's Court, the defendant may be arrested in a civil action, in the following cases : 1. In an action for the recovery of money or damages, on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the State, with intent to defraud his creditors. 2. In an action for a fine or penalty, or for money or property embezzled or fraudulently misapplied, or converted to his own use, by one who received it in a fiduciary capacity. 3. When the defendant has been guilty of a fraud in conlRact- ing the debt or incurring the obligation for which the action is brought. 4. When the defendant has removed, concealed, or disposed of his property, or is about to do so, with intent to defraud his cred- itors. No female can be arrested in an action in the Justice's Court. Before an order of arrest can be made, the party applying must prove to the satisfaction of the justice, by the affidavit of himself, or some other person, the facts upon which the application is found- ed, and the plaintiff must execute and dehver to the justice a written undertaking in the sum of three hundred dollars, with suf- ficient sureties, to the effect that the plaintiff will pay all costs that may be adjudged to the defendant, and all damages which he may sustai.i by reason of the arrest, if the same bo wrongful or without sufficient cause, not exceeding the sum specified in the undertaking. 00 CALIFORNIA. [I'arto. Chapter X. INJUNCTIONS. An injunction is a writ or order re([uinng a person to refrain from a particular act. It may be granted in the following cases : 1. When it appears by the coin[)laint that the plaintiff" is entitled to the relief demanded, and such relief, or any proof thereof, con- sists in restraining the commission or continuance of the act com- plained of, either for a limited period or perpetually. 2. When it appears by the complaint or affidavit, that the com- mission or continuance of some act during the litigation would jiro- duce waste, great or irreparable injury to the plaintiff. 3. When it appears, during the litigation, that the defendant is doing or threatens, or is about to do, or is procuring or suffv3nng to be done, some act in violation of the plaintiff's rights resj)ecting the subject of the action, and tending to render the judgment inef- fectual. Chapter XI. JUDGMENTS AND JUDGMENT LIENS. A judgment is the final determination of the rights of the par- ties in K.. action or proceeding. A judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants ; and it may, when the justice of the case reijuires it, determine the ultimate rights of the parties on each side, as between them- selves. Chap. 11.] CALIFORNIA. 61 In an action against several defendants, the Court may, in its dis- cretion, render jud<^ment against one or more of them, leaving the action to proceed against the others, whenever a several judgment ia proper. — The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint ; but in any other case, the Court may grant him any relief cunsistent with the case made by the complaint and embraced within the issue. An action maybe dismissed or a judgment of nou-suic entered in the I'ullowing cases : 1. \'^y the plaintiff himself, at any time before trial, upon tho payment of costs, if a counter-claim has not been made. 2. l\y eitlier pjirty, upon the written consent of the other. 3. Dy the Court, when the plaintiff fails to appear on tho trial, and the defendant appears and asks for the dismissal. 4. By tho Court, when, upon the trial, and before the final sub- mission of the case, the plaintiff abandons it. 5. ] the Court, upon motion of the defendant, when, ujHm the trial, tiiu plaintiff fails to prove a sufficient case for the jury. In all other cases, judgment must be rendered on the merits. Judgment upon Failure to Answer. Judgment may be had if the defendant fail to answer or demur to tho complaint witliin the time specified in the summons, or withiu such iiuther time as may have been granted, as follows : 1. In an action arising upon contract for the rocovery of money or damages only, the clerk, upon a[)plication of the plaintiff, must enter the default of the defendant, and immediately thereafter enter judgment for tho amount S{)ecified in the summons, including the 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 jtroceed against the defendants served in the same manner as if thoy were the only defendants. 2. In other actions, the clerk must enter the default of the de- 62 CALIFORNIA. [Part 3. fcndant : and thereafter the plaintilT may apply at the first or any 8ul)se(iucnt term of tlie Conrt fur the relief demanded in the com- plaint. If the taking of an account, or the proof of any fact, is necessary to enable the Court to give judgment, or to carry the judgment into effect, the Court may take the account or hear the proof; or may, in its discretion, order a reference for that purpose. And when the action is for damages, in whole or in part, the Court may order the damages to he assessed by a jury ; or if, to determine the amount of damages, the examination of a long account be in- volved, by a reference as above provided. 3. In an action where the service of summons was by publica- tion, the plaintiff, upon the expiration of the time for answering, may, upon proof of the publication, and that no answer has been filed, apply for judgment ; and the Court must thereupon rerpiire proof to be made of the demand mentioned in the complaint ; and if the defendant be not a resident of the State, must require the plaintiff or his agent to be examined on oath respecting any pay- ments that have been made to the plaintiff, or to any one for his use, on account of such demand, and may render judgment for the amount which he is entitled to recover. JUDaMKXT BY CONFESSION. ii*;^ A judgment by confession may be entered without action, either for money due or to become due, or to secure any person against contingent liability on belialf of the defendant, or both. A statement in writing must be made, signed by the defendant and verified by his oath, to the following effect : 1. It must authorize the entry of judgment for a specified sum. 2. If it be for money due, or to become due, it must state con- cisely the facts out of which it arose, and show that the sum con- fessed therefor is justly due, or to become due. 3. If it be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts constituting the liability, and show that the sum confessed therefor does not exceed the same. i tii Chap. 11.] CALIFORNIA. 63 5 defendant Judgment on rROCEEDiNos Without Action by Submission of A Controversy. Parties to a question in difference, which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy de}iends, and present a sub- mission of the same to any Court which would havo jurisdiction, if an action had been brought ; but it nnist appear by affidavit that the controversy is real, and the proceedings in good faith to deter- mine the rights of the parties. The Court must, tliereupon, hear and determine the case, and render judgment thereon, as if an action were pending. Judgment after Verdict. When trial by jury has been had, judgment nmst bo entered by the Clerk in conformity to the verdict, within twenty-four hours after tlie rendition of the verdict, unless the Court order the case to be reserved for argument for further consideration, or grant a stay of proceedings. Upon the trial of a question of fact by the Court, its decision must bo given in writing, and filed with the clerk, within thirty days after the cause is submitted for decision. Judgment upon the decision must be entered accordingly. On a judgment for the plaintiff upon an issue of law, he may proceed as in the case of judgment upon failure to answer. If judgment be for the defendant upon an issue of law, and the taking of an account or the proof of any fact be necessary to enable tlie Court to complete the judgment, a reference may be ordered. iff against a "or does not Proceedings against Joint Debtors. When a judgment is recovered against one or more of several persons, jointly indebted upon an obligation, those who were not originally served with the summons, and did not appear to the ac- tion, may be summoned to show cause why they should not be bound by the judgment in the same manner as though they had been origiiinlly served with the sunniions. 04 CALIFORNIA. [I'art 3. j I PuOCERDINaS ON OfFER OF DEFENDANT TO COMPROMISE. The (lofcndant may, at any timo before the trial or jiul^^mont, serve upon the phvintiflf an offer to allow jud^^tncnt to be taken against him for the sum or property, or to the effect therein speci- fied. If the plaintiff accept the oIToM', and give notice thereof within five days, ho may file the ol!or, with proof of notice of ac- ceptance, and ttia clerk must thereupon enter judmnont accord- ingly. If the notice of acceptance bo not given, the ofter is to bo deemed withdrawn, and cannot be given in evidence upon the trial ; and if the plaintiff fiiil to obtain a more favorable judgment, he cannot recover costs, but must pay the defendant's costs from the time of the offer. Gold Coin or Currency Judgment. In an action on a contract or obligation in writing, for the direct payment of money, made payable in a spi cifiiid kind of money or currency, judgment for the plaintiff, whether it be by dof'ault or after verdict, may follow the contract or obligation, a)jd bo made payable in the kind of money or currency specified therein ; and in all actions for the recovery of money, if the plaintiff allege in his complaint that the same was understood and agreed by the respect- ive parties to be payable in a specified kind of money or currency, and this fact is admitted by the default of the defendant or estal)lish- od by evidence, the judgment for the plaintiff must be made pay- able in the kind of money or currency so alleged in the complaint ; and in an action against any person for the recovery of money re- ceived by such person in a fiduciary capacity, or to the use of another, judgment for the plaintiff must be made payable in the kind of money or curreney so received by such person. Judgment in Replevin. In an action to recover the possession of personal property, judg- ment for the plaintiff may be for the possession or value thereof, in case a delivery cannot be had, and damages for the detention. If the Chap. 11.] OALIFORNr\. es property has boon (hTivercd to tlio plaiiitilF, ami the (lefijiidant claim a return thereof, jiKt^inoiit for th(! (h'ttMnlaut may ho for a return of the property, or the vahie thereof, in cii^)0 a return cannot be had, and damages for taking and witlihohling the same. JuDQMRNT Lien. From tho tirio the judgment is docketed it becomes a lien ujion all tho real pro[)crty of the judgment debtor, not exempt from ex- ecution in the county, owned by him at the time, or which he may afterwards acipiirc, until the lien ceases. The lien continues for two years, unless the enforcement of tho judgment be stayed on appeal by execution of a sufficient undertaking, in which case the lien of the judgment ceases. 8ee elsewhere, how judgments in Justices' Courts are made a lien on real property. A transcript of the original docket, certified by the clerk, may be filed with the recorder of any other county ; and from the time of the filing the jungment becomes a lien upon all the real prop- erty of the judgment debtor, not exempt from execution, in such county, owned by hiin at the time, or which ho may after- wards, and before the lien expires, acquire. The lien continues for two years. Provisions in Justices' Courts. . , Judgment by default. When the defendant fails to appear and answer or demur at the time specified in the summons, or within one hour thereafter, then, upon proof of service of the summons, the following proceedings must be had : 1. If the action is based upon a contract, and is for the recov- ery of money or damages only, the Court must render judgment in favor of plaintiff for the sum specified in the summons. 2. In all other actions, the Court mu^t hear the evidence offered by the jilaintiflf, and must render judgment for such a sum (not ex- ceeding the amount stated in the sununons) as appears by such evidence to be just. In the following cases the same proceedings must be had, and 6 G6 CALIFORNIA. [Part 3. !ars after the entry thereof, have a writ of execution issued for its enforcement — same in Justice Court actions. The execution uiay he made returnable at any time not less than ten nor more than sixty days after its receipt by the --lieriff or constable. Executions may at the same time be issued to different counties. In Justices' Courts, the justice before whom the action is brought may issue an execution directed to the sh(;riff or constable of the county in which judgment is olttained ; when it is desired to issue execution directed to the sheriff of another county, it is necessary 68 CALIFORNIA. [Part 3. W\\ to file an ahstract of the judgment with the county clerk of the county within which the judgment is obtained, and liave him issue the execution. Notwithstanding the death of a party after the judgment, execu- tion thereon may be issued, or it may be enforced as follows : 1. In the case of the death of the judgment creditor, upon the application of his executor or administrator, or successor in interest. 2 In the case of the judgment debtor, if the judgment be for the recovery of real or personal property, or the enforcement of a lien thereon. When any judgment has been rendered for or against the testa- tor or intestate in his lifetime, no execution shall issue thereon after his death, except as above provided. If execution is actually lev- ied upon any property of the decedent before his death, the same may be sold for the satisfaction thereof ; and vhe officer making the sale must account to the executor or administrator for any surplus in his hands. The following property is exempt from execution except upon a judgment recovered for its price, or upon a mortgage thereon : 1. Chairs, tables, desks and books, to the value of two hundred dollars. 2. Necessary household, table and kitchen furniture, including ^ one sewing machine and one piano, in actual use in a family, or belonging to a womam ; stoves, stove-pipes and stove furniture, wearing apparel, beds, bedding and bedsteads, and provisions actually |)rovidod for intlividual or family use, sufficient for one month. 3. The forming utensils or implements of husbandry of the judgment debtor ; also, two oxen or two horses, or two mules and their harness, one cart or wagon, and food for such oxen, horses, or mules for one month ; also, all seed grain or vegetal)los actually provided, reserved or on hand, for the purpose of planting or sow- ing at any time within the ensuing six months, not exceeding in value the sum of two hundred dollars. 4. Tools or implements of a moohanic or artisan, necessary to •carry on traealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party or his attorney. The order of 78 CALtFOUNIA. [I'mt 3. M m service Is immaterial, l)ut the appeal in iiiefTectdal for any jmipose unless within five days after service uf the notice of appeal, an un- dertaking be filed, or a deposit of money be made with the clerk, as hereinafter jtrovided, or the undertaking he waived by the ad- verse party iu writing. 1'he undertaking on a|»pcal must he in writing, and must ho ex- ecuted on the jiart of the ap[iellant by at least two sureties, to the effect that the appellant will pay all damages and costs which may be awarded against him on the apjical, or on a dismissal tliereof, not exceeding three hundred dollars ; or that sum must be depos- ited w ith the clerk with whom the judgment or order was entered, to abide the event of tha appeal. If the appeal be from a judgment or order directing the payment of money, it does not stay the execution of the judgment or oider, unless a written undertaking l)e executed on the part of the appel- lant, by two or more sureties, to the effect that they are bound in double the amount named in the judgment or order, that if tho judgment or order aitpealed from, or any part thereof, be allirmed, or the appeal bo dismissed, the appellant will pay the amount directed to be paid by the judgment or order, or the part of such amount as to which the judgment or order is affirmed, if affirmed only in part, and all damages and costs which may Ijc awarded against tlie appellant upon the appeal ; and that if the appellant does not make such payment within thirty days after the filing of the remittitur from the ISupremo Court, in the Court from which the appeal is taken, judgment may be entered on motion of the re- spondent in his favor against the sureties, for such amount, together with the interest that may be due thereon, and the damages and costs whicli may be awarded against the appellant upon ^he api)eal. If the judgment or order appealed from be for a greater amount than twc thousand dollars, and the sureties do not state iu their affidavits of justification accompanying the undertaking, that they are each worth the sum specified iu tho undertaking, the stipulation may be tliat the judgment to be entered against the sureties shall be for such amounts only as iu their affidavits they may state that they are severally worth, and judgment may be entered against the sureties by the Court from which the appeal is taken, Chap. 15.] CALIFORNIA. ro pursuant to the stiimlixtions therein peal is taken on N Chap. 15.] CALIFORNIA. 81 questions of fact, or rpiestions of botli law ami fact, no atatcmont nood be made, but the action must be tried anew in the County Court. An appeal from a Justice's or Police C-ourt w not effectual for any purpose, unless an undertaking be filed., with two or more sureties, in the sura of one hundred dollars, for the payment of the costs on the a["peal ; or if a stay of ... pro(;eedin;^3 be claimed, in a suin etjual to twice the amount of the judgment, including costs, when the judgment i.s for the payment of moiK'y ; or ! wico the \ ilue of the property, including costs, when the judgment is for the recovery of 8|)ecific persor'al property ; and must be conditioned, when the action is for the recovery of money, that the appellant will pay the amount of the judgment appealed from, and all costs, if the appeal be withdrawn or dismissed, or the amount of any judgment and all costs that may be recovered agaitist him in the County Court. When the action is for the recovery of ,s[)('cific personal property, the undertaking must be conditioned that the appellant will pay the judgment and costs appealed from, and obey . the order of the Court made therein, if the appeal l>e withdrawn or dismissed, or any judgment and costs that may be recovered against him in said action in the County Court, and will '>'>ey any order made by the Court therein. A deposit of the amount of the* judgment, iiicbie party may e.xce[)t to the sufficiency of the sureties within five days after the filing of the undertaking. anpfais that there are other persons having better rights to the administration, when such persons fail to appear and claim the issuing of letters to themselves. The administrator must give bonds, with two or more sufficient sureties, to be approved by the proliate judge, the jienalty to be unt less than twice the value of the personal prt»perty, and twice the probable value of the annual rents, profitK. ami issues of the real property : additional bonds may be retpiirod, when a sale ot real estate is ordered. CALIFORNIA. [Part 3. ¥m I J' ■''■; Wlion a person dies leaving a widow or minor cliildren, until letters are granted and the inventory is returned, they are entitled to remain in possession of the homestead, of the wearing apparel of tlie family, and of all the household furniture of the decedent, and are also entitled to a reasonable provision for their support, to be allowed hy the prohate judge. The Court or probate judge may set apart for the use of the surviving husband or wife, or the minor children of the decedent, all j)roperty exempt from execution, including the homestead selected, designated and recorded. If no homestead has been 8ele(!ted, designated and recorded, the judge or the Court must select, d'.'signate, set apart and cause to be recorded, a homestead for the use of the persons before named. If the amount set apart be insufficient for the support of the widow anil children, or either, the Probate Court or judge must make such reasonable allowance out of the estate as shall be neces- sary for the juaintenance of the family, according to their circum- stances, during the progress of the settlement of the estate ; which, in case of an insolvent estate, must not be longer than one year after granting of letters. If on the return of the inventory of the estate of an intestate, it apjiears that tlie value of the whole estate does not exceed the sum of fifteen hundred dollars, it must be assigned for the use of the widow and minor child or children, after the payment of the expenses of bis last illness, funeral charges, and the expenses of the administration. If it appear that the value of the whole estate does not exceed the sum of three thousand dolhirs, there may by a summary ad- ministratiim of the estate, and an order of distribution at the end of six months after the issuing of letters. Claims against the estate must be presented to the executor or administrator wiMiin tlie time specified in the notice to creditors, re(pu'sting them to present tls'^lr claims ; when tlio value of the estate exceeds ten thousand dollars, the time expressed in the no- tice must be ten months ; when it does not exceed ten thousand dollars, four months. If a claim be not presented within the time limited in the notice, it is barred forivfr ; exi.t.pt where it is niade to appear, by the alfii'-ivit of the claiuiunt, io tlrj satisfaction of Chap. 17.] CAI.IFOKNIA. 85 the executor or administrator, and the probate jiirl^o, tliat the claimant had no notice, by reason of hoin<; out of the State, it may be presented at any time before a decree of distriliution is en- tered. A claim for i\ deficiency remaining unpaid after a sale of property of the estate, mortgaged or pledged, must be presented within one month after such deficiency is ascertained. Kvery claim which is due wh«.u presented to the ailministratnr must be supported by the affidavit of the claimant, or some one in his behalf, that the amount is justly due, that no payments have been made theroon whieli are not credited, and that there an- no offsets to the same, to the knowledge of the claimant or affiant. If the claim be not due when presented, or be contingent, the |>ar- ticulars of such claim must be stated. When the affidavit is made by a person other than the claimant, he must set forth in the affi- davit the reasons v.hy it is not made by the claimant. The oath maybe taken by any officer authorized to administer oaths, 'i'ho executor or administrator may also reipiire satisfactory vouchers or proofs to be produced in support of the chiim. If the estate bo insolvent, no greater rate of interest shall be allowed upon any claim, after the first publication of notice to creditors, than seven per cent. When a claim, accompanied by the affidavit reipiiiod as afore- said, is presented to the executor or administrator, he must endorse thereon his allowance or rejection, with the day and date thereof. If he allows the claim, it must be presented to the probate judge for his approval, who must, in the same manner, indorse upon it his al- lowance or rejection. If the executor, or administrator, or judge, ;'e- fuso or neglect to endorse such allowance or rejection, for ten days after the claim has been presented to him, such refusal or neglect is e(iuivalent to a rejection on the tcinth day ; and if the pn?ser.talion Ix* made by a notary, the certificate of such notary, under seal, is prima facie evidence of such presentation and rejection. If the claim W prpointed by that Court for the purposes of administra- tion. When any person having title to any estate not otherwise limited by marriage contract dies without disposing of the estate by will, the rule of distribution is as follows, subjoct to the payment of his debts : 1. If the decedent leave a surviving husband or wife, and only one child, or the lawful issue of one child, in e;;itiiiiato. 'I'liu issue of all inaniagea null in law, or dissolved hy divorce, arc legiti- mate. If nn illegitimate child, who has not heen ackiiowlcMlged or adopted hy his father, dies intestate, without lawful issue, his estate goes to his mother, or in case of her decease, to her heire at law. Chapter XIX. LIENS OF MKCIIANICS AND OTHERS UPON REAL PROPERTY. " Every person ])erforming labor upon, or furnishing materials to be iised in the constnution, alteration, or repair of any mining claim, building, wharf, bridge, ditch, Hume, tunnel, fence, ma- chinery, railroad, wagon-road, acpieduct to create hydraulic power, or any other structure, or who performs labor in any mining claim, has a lien upon the same for his 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, or re|iair, either in whole or in part, of any building or other iniprovement, an aforesaid, shall bo held to be the agent of the owner. The lanil upon which any building, improvement, or structure is constructed, together with a convenient si)ace about the .same, or 80 much as may bo re(piired for the convenient use and occ(i|iation thereof, to be determined by the Court on rendering judgment, is also subject to the lien, if, at the commencement of the work, or IMAGE EVALUATION TEST TARGET (MT-3) 1.0 m 111^ 1^ I.I iilllM i^ 12.0 1.8 1.25 1.4 1.6 < 6" ► Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER NY. 14580 (716) 872-4503 ^ l^. ^ fa :i!ll' 92 CALIFORNIA. [Part 3. of the furnishing of the materials for the same, the land belonged to the person who caused said building, improvement, or structure to be constructed, altered, or re[)aired ; 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 are held to be constructed at the instance of the owner. of the lands, unless he, within three days after he shall have received knowledge of the construction, alteration, or repair, 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 cons{)icuous place to that effect. Such liens are preferred to any lien, mortgage or other incum- brance which may have attached subsequent to the time when the buildhig, improvement or structure was commenced, Avork done, or materials were commenced to be furnished ; also, to any lien, mort- gage or other incumbrance, of which the Hen-holder had no notice, and which was unrecorded at the time the building, improvement or structure was commenced, work done, or the materials were commenced to be furnished. Every original contractor, within sixty doys after the completioji of his contract, and every person, save the original contractor, claiming the benefit of this chapter, must, withm thirty days after the completion of any builditjg, improvement or structure, or after the comfdetion of the alteration or repair thereof, or the perlbrm- ance ot any labor in a mining 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 de- ducting all just credits and offsets, with the name of the owner in- reputed owner, if known, and also the name of the person by whom he Avas emi)loyed, or to whom he furnished the materials, with a statement of the terms, time given, and conditions of his contract, and also a description of the property to be charged witli the lien, sufficient for identification, which claim must be verified by the oath of himself or of some other person. The lien does not bind any building, mining claim, improvement or structure, for a longer period than ninety days after the same has been filed, unless proceedings be commenced in a proper Court Hfi,\mi"tJiablc for his ons may be nembers, to more stock- Chap. 24.] CiiLIFOHNIA. 99 Chapter XXIV, MODE OF TAKING TESTIMONY OF WITNESSES. The testimony of witnesses is taken in three modes, viz : 1. By affidavit. 2. V>y 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 at- tend 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 beujg hoard by tho jury or tribunal from the lips of the witness. Depositions must be taken in the form of cpiestion and answer, and the words of the witness must be written down, unless the par- ties agree to a diffijrent 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 deposi- tion, at any time after service of summons, or the appearance of the defendant. Teslanony of witnesses in this State may be taken by deposition, in any action, at any time after the service of the summons, or the appearance of the defendant, in the following cases : 1. When the witness is a party to the action or proceeding, or a person for whose iiumodiate beneat the action or proceeding is prosecuted or defended. 2. When the witness resides out of the county in which the tes- timony is to be used. 3. Wlien the witness is about to leave the county where the ac- tion is to be tried, and will probably continue absent when the tes- timony is required. I 100 CALIFORNIA. [Parts. 4. When tlio witness, otherwise liable to attend the trial, is nev- ertlielc.ss too infirm to attend. 5. Wlion the testimony is reiinired npon a motion, or in any other case where the oral examination of the witness is not required. The deposition of a witness out of this State may be taken npon commission issued from the Court, under the seal of the Court, upon an order of the judge or Court, or county judge, on the appli- cation of either party, upon five days previous notice to the other. If issued to any plaee 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 officer 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. TIic deposition of a witness in this State may be taken by either party before a judge or olficer authorizeil to administer oaths, on serving upon the adversj party previous notice of the time and place of examination, together with a copy of an affidavit, showing that it is a case wherein deposition may be used. Such notice must be at least five days, adiling also one day for every twenty-five miles of the distance of the place of examination from the residence of the person to wliom the notice is given, unless, for a cause shown, a judge, by order, prescribe a sliorter time. Wlien a shorter time is prescribed, a copy of the order must be served with the notice. Chapter XXV. JUDICtVL RECORDS, HOW PROVED, A judicial record i-i the record or official entry of the proceed- ings in a Court of justice, or of the official act of a judicial officer, in an action or special proceeding. Chap. 25.] CALIFORNIA. 101 A judicial record of this State, or of the United States, mny be proved hy the production of the ori;^inal, or of a copy thereof cer- tified by tlie ckM'k or other person haviii;f the lc;^al custody tliereof. That of a sister State may be proved by tlie attestation of the clerk and the seal of the Court annexed, if there lie a clerk and seal, together witli 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 jlerk, with the seal of the Court aimexed, if there be a clerk and seal, or of the legal keeper of the record, with ihe 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 record ; 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 judge or presiding magistrate must be authenticated by the certificate of the minister or embassador, or a consul, vice-consul, or consular agent of the United States in such foreign country. A copy of the judicial record of a foreign country is also ad- missible in evidence, upon proof: 1. That the copy offered has been compared by the witness with the original, and is an exact transcript of Uie 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 tlie 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. 102 CALIFORNIA. [Part 3. Chapter XXVI. ACKNOWLEDGMENTS. ;i ' !!i Iji'' MlH: The proof or acknowledgment of an instrument may he made at any phico within this ^)tate, .before a justice or clerk of the Supreme Court. The proof or acknowledgment of an instrument may be made in this State wit*<.iii the city, county or district for which the olficor was fclocted or appoiited, before cither: 1. A judge or clerk of a Court of record ; or, 2. A mayor or recorder of a city ; or, 3. A court commissioner ; or, 4. A county recorder ; or, 5. A notary public ; or, 6. A justice of the peace. The proof or acknowle Igment of an instrument may be made without this State, but within the United States, and within the jurisdiction of the officer, before eithor : 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, 3. A commissioner appointed by the Governor of this State for that purpose ; or, 4. A notary public ; or, 5. Any other officer of the State where the acknowledgment is made, authorized by its laws to take such proof or acknowledgment. A proof or acknowledgment of an instrument may be made with- out 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 acknowledgment is made; or, m ,»■■»■-(*'■'.»' *-■" Chap. 2(3.] CALIFORNIA. 103 3. A ju(ln;e of a Court of record of the county where the proof or acktiowled^tneiit is made; or, 4. Comtnissioners 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 arc authorized by law to ap- point a deputy, the acknowledgment or proof may be taken by such dejjuty in the name ff his priaci mI. The acknowledgment of an insii iinent must not bo taken, unless the officer taking it knows, or hfu satisfactory evidence, on the oath or affirmation of a credi' ' witness, that the person making such acknowledgment is the individual who is described 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 lu an instrument pur- porting to be executed by her must not be taken, unless she is made aciiuainted by tlie officer with the contents of the instrument on an examination without the hearing of her husband ; nor certified, un- less she thereupon acknowledges to the officer that she executed the instrument, and that she does not wish to retract such execution. General Form op Certificate. lodgment is •wledyiment. State of- COUNTY OF On this day of- ss. — , in the year , before me, [here insert the name and quality of the officer] personally appeared , known to me [or proved to me on the oath of ] to be the person whose name is subscribed to the within instrument, and acknowledged to me that he [or tlieyj executed the same. Form of Certificate of Acknowledgment by Married Woman. State of- County of- On this day of- ss. in the year , before me, [here 104 CALIFORNIA. [Part 3. -'i ■> insert the name and quality of the officer] personally appeared , known to me [or proved to me on the oath of ] to be the person whose name is subscribed to the within instrument, described as a married woman ; and upon an examination without the hearing of her husband, I made her acquainted with the con- tents 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 op Acknowledgment by a Corporation. State of- COUNTY OF On this day of- f ss. — , in the year , before me [here insert the name and quality of the officer] personally a|i[)eared known to me [or proved to me on the oath of ] to be the president [or the secretary] of the corporation that exe- cuted the written instrument, and acknowledged to me that such corporation executed the same. Form of Certificate of Acknowledgment by Attorney in i'ACT. State of- |n w I' County of- ss. On this 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 Avhose name is subscribed to the within instrument as the attorney in fact of , and acknowledged to me that he subscribed the name of thereto, as principal, and his own name as attorney in fact. Officers must authenticate their certificates by affixing thereto their signatures, followed by the names of their offices ; also their seals of office, if by the laws of the State or country where the acknowledgment or proof is taken, or by authority of which they are acting, they are required to have official seals. : ft- Chap. 27.] CALIFORNIA. 105 The certificate of proof or acknowledgment, if made before a justice of the peace, when used in any county other than that in which he resides, must be accompanied by a certificate under the hand and seal of the clerk of the county in Avhich the justice resides, setting forth that such justice, at the time of taking such proof or acknowledgment, was authorized to take the same, and that the clerk is acquainted with his hand-writing, and believes that the sig- nature to the original certificate is genuine. Chapter XXVII. PARTNERSHIPS. Partnership is the association of two or more persons for the pur- pose of carrying on business together, and dividing its profits be- tween them. Every partnership that is not formed in accordance with the law concerning mining or special partnerships, and every special part- nership, so far only as the general partners are concerned, is a gen- eral partnership. Every general partner is agent for the partnership in the trans- action of its business, and has authority to do whatever is necessary to carry on such business in the ordinary manner, and For this pur- pose may bind his copartners by an agreement in writing. A partner, as such, has not authority to do any of the follow- ing acts, unless his copartners have wholly abandoned the business to him, or are incapable of actu" ; : 1. To make an assignment of the partnership property or any portion thereof to a creditor, or to a third person in trust, for the benefit of a creditor or of all creditors. 2. To dispose of the good will of the business. 106 CALIFORNIA. [Part 3. ./. i; iilir ili'i m Vt\f.h 3. To dispose of the whole of the partnership property at once, unless it consists entirely of merchandise. 4. To do any act which would make it impossible to carry on the ordinary business of the partnership. 5. To confess a judgment. 6. To submit a partnership claim to arbitration. 7. To do any act which is not necessary to carry on such busi- ness in the (u-dinary manner. Every j^eneral partner is liable to third persons for all the obli- gations of the partnership, jointly with his copartners. Any one permitting himself to be represented as a partner, gen- eral or special, is liable as such to third persons to whom such rep- resentation is communicated, and who, on the faith thereof, give credit to the partnership. The liability of a general partner for the acts of his copartners continues, even after a dissolution of the copartnership, in favor of persons who have had dealings with and given credit to the partner- ship 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 newspaper published in every county where the partnership, at the time of its dissolution, had a place of busi- ness, if a newspaper is there published, to the extent in either case to which such persons part^ with value in good faith, and in the belief that such partner is still a member of the firm. After the dissolution of a partnership, any general partner may act in rKjuidation of its affairs, unless the li(iaidation 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 vaUd in favor of persons parting with value, in good faith, upon credit thereof. A partner authorized to act in li(iuidation may collect, compro- mise, or release any debts due to the partnership, pay or compro- mise any claims against it, and dispose of the {jartncrship property ; and he may indorse, in the name of the firm, promissory notes or other obligations held by the partnership, for the purjjose of collect- ing the same ; but he caruiot create any new obligation in its name, or revive a debt against the firm by an ackuowledgment, when an action thereon is barred. Chap. 27.] CALIFORNIA. 107 Except as hereafter provided, every partnership transacting business in this State under a fictitious name, or a designation not showing the names of the persons interested as partners in such business, must file with the clerk of the county in which its principal place of business is situated a certificate stating the names in full of all the members of such partnership and their places of residence, and publish the same once a week for four successive weeks in a newspaper published in the county, if there be one, and if there be none in such county, then in a newspaper published in an adjoining county. A commercial or banking partnership, established and transact- ing business in a place without tlie United States, may, without filing the certificate, or making the publication heretofore men- tioned, 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 part- ners, 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 hundred and seventy-four, the certificate must be filed and the publication made witliin one month after the formation of the partnership, or within one month from the time designated in the agreement of its members for the commencement of the partnership. Where the partnership has been formed prior to the first of July, eighteen hundred and seventy-four, the certificate must be filed and the publication made within six months after the first of July aforesaid. On every change in the members of a partnership transacting business in this State under a fictitious name, or a designation which does not show the names of the persons interested as part- ners in its business ; except in the case of a commercial or bank- ing partnership, established and transacting business in a place without the United States, as well as in this State, a new certificate must be filed and a new publication made, as is required on the formation of such partnership. Persons doing business as partners contrary to the aforesaid provisons, shall not maintain any action upon or on account of any 108 CALIFORNIA. [Part . IP: K contract marie or transactions had in their partnership name, in any Court of this State, until they have first filed the certificate and made the publication required. Copies of the entries of a county clerk, when certified by him, and affidavits of publication made by the printer, publisher, or chief clerk of a newspaper, are presump- tive 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 the 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 residences, specify- ing which are general and which are special partners. 4. The amount of capital which each special partner has con- tributed to the common stock. 5. The periods at which such partnerships shall begin and end. Vffidavits must be made and filed, setting forth the amount act- ually contributed by the special partners. The certificate mentioned must be published in a newspaper in the county, once a week for four successive weeks. The general partners in a special partnership are liable to the same extent as partners in a general partnership. The contribu- tion of a special partner to the capital of the firm, and the increase thereof, is liable for its debts, but he is not otherwise liable therefor. Chapter XXYIII. MARRIED WOMEN. All property of the wife owned by her before marriage, and that acquired afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is her separate property. All Hii.-. Chap. 28.] CALIFORNIA. 109 property owned by tlie husband before marriage, and that acquired afterwards by gift, bequesu, devise, or descent, wiih the rents, issues, and profits thereof, is his separate property. All other property acquired afttr marriage, by either husband or wife, or both, is community property. The earnings of the wife are not liable for the debts of the husband. The earnings and accumula- tions of the wife, and her minor children living with her and in her custody, while she is living separate from her husband, are the separate property of the wife. The separate property of the wife is not liable for the debts of her husband, but is liable for her own debts, contracted before 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 disposition (other than testamentary) as he has of his separate estate. No estate in dower is allotted to the wife upon the death of her husband. If the husband neglects to make adequate provision for the sup- port of his wife, any other person may, in good faith, supply her with articles necessary for her supjiort, and recover the reasonable value thereof from the husband ; except that a husband abandoned by his wife is not liable for her support until she offers to return, unless she was justified, by his misconduct, in abandoning him ; nor is he liable for her support when she is living separate from him, by agreement, unless such support is stipulated in the agree- ment. A married woman may become a sole trader by the judgment of the County Court of the county in which she has resided for six months next preceding the application. A certified copy of the decree of the Court must be recorded in the office of the recorder of the county where the business is to be carried on. A sole trader is entitled to carry on the business specified in her own name, and the property, revenues, moneys and credits so by :'i 110 CALIFORNIA. [Part 3. her invested, and the profits thereof, belong exchisively 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 contracted ui)on his written consent. »«/' Hi l-i': v.}\ ,! r II; PI 1 If ' fiP > liUf 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 age of eighteen, make a contract relating to real property, or any interest therein, or relating to any personal property not in his immediate possession or control. A minor may make any other contract, in the same manner as an adult, subject to his power of disaffirmance. A minor cannot disaffirm a contract, 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 obligation, 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 before his majority, or within a reasonable time afterwards ; or in case of his death within that period, by his heirs or personal representa- tives ; and if the contract bo made bv the minor whilst he is over . . . "... I 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. Chap. 80.] CALIFORNIA. Ill who is under his charge, according to his circumstances, a third person may in good faith supply such necessaries, and recover the reasonable value thereof from the parent. A minor may enforce his rights by civil action, or other legal proceedings, in the same manner as a person of full age, except that a guardian must conduct the same. Chapter XXX. STOPPAGE IN TRANSrr. A seller or consignor of property, whose claim for its price or proceeds has not been extinguished, may, upon the insolvency of the buyer or consignee becoming known to him after parting with the property, stop it while on its transit to the buyer or consignee, and resume possession thereof. A person is insolvent, within the meaning of the above terra, when he ceases to pay his debts in the manner usual with persons of his business, or when he declares his inability or unwillingness to do so. The transit of property is at an end when it comes into the possession of the consignee, or into that of his agent, unless such agent is employed merely to forward the property to the consignee. Stopjiagc in transit can be effected only by notice to the carrier or depositary of the property, or by taking actual possession thereof. Stoppage in transit does not, of itself, rescind a sale, but is a means of enforcing the lien of the seller. A bona fide transfer of a bill of lading defeats the right of stoppage in transit, if such transfer is made before the right of stoppage has been actually exercised by the consignor. CALIFORNIA. [Part 3. Chapter XXXI. BILLS OF LADING. ii;: u. 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 e contract for carriage, and agreein"? or directing that the frei^ r 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 indorsee there- of, 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 ex- change. If a bill of lading is made payable to " bearer," it is transferable by delivery. Chapter XXXII. ih i Si " 1 '' \>': l[ Ij: ;j Ii INTEREST. Unless there is an express contract in writing fixing a different rate, interest is payable on all moneys at the rate of ten per cent, per annum, after they become due, on any instrument of writing except a judgment, and on moneys lent or due on ary settlement of accounts from the day on which the balance is ascertained, and on moneys received to the use of another, and detained from him. In the computation of interest for a period less than a year, three hundred and sixty days are deemed to constitute a year. Interest is payable on judgments recovered in the Courts of this Chap. 33.] CALIFORNIA. 113 State at the rate of seven per cent, per annum, and no greater rate ; but such interest must not be corapounrled in any manner or form. Parties may agree in writing for the payment of any rate of in- terest, and it shall be allowed, according to the terms of the agree- ment, until the entry of judgment ; and they may, in any contract in writing whereby any debt is secured to be i)aid, 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 exclu- sive control thereof, an inland common carrier of property is liable, from the time that he accepts until he relieves himself from liabiUty, for the loss or injury thereof, except : 1. An inherent defect, vice, or weakness, or a spontaneous ac- tion of the property itself. 2. The act of a public enemy of the United States, or of this State. 3. The act of the law ; or 4. Any irresistible superhuman cause. He is liable, even in the cases above excepted, if his ordi- nary negligence exposes the property to the cause of the loss. A common carrier is liable for delay only when it is caused by his want of ordinary care and diligence. A marine carrier is liable in like manner as an inland carrier, except for loss or injury caused by the perils of the sea or firo. 8 114 CALIFORNIA. [Part 3. ■I ' Chapter XXXIV. MORTGAGES OF PKRSONAL PROPERTY. 0' rft' !!H J hi I- ■ It! Mortgages mcay be made upon : 1. Locomotives, engines, and the other rolling stock of a rail- road. 2. Steamboat machinery, and machinery used by machinists, foundrymen, and mechanics. 3. Steam engines and boilers. 4. Mining machinery. 5. Printing presses and material. 6. Professional libraries. 7. Instruments of a surgeon, physician, or dentist. 8. Upliolstery and furniture used in hotels or boarding houses, when mortgaged to secure the purcliase money of the articles mort- gaged. 9. Growing crops. 10. Vessels of more than five tons' burden. A mortgage of personal property is void as against creditors of the mortgagor, and subsecpient purchasers and incumbrancers of the property in good fiiith 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, de- lay, or defraud creditors. 2. It is acknowledged or proved, certified and recorded. A mortgage of personal property must be recorded in the office of the county recorder of the county in which the mortgagor re- sides, and also of the county in which the property mortgaged is situated, or to which it may be removed. A certified copy of a mortgage of personal 'property once re- corded may be recorded in any other county, and when su recorded, the record thereof has the same force and effect as though it was of the original mortgage. ^V^hen property mortgaged is thereafter by the mortgagor re- Chap. 34.] califohnia. 115 movod from the county in which it is situated, it is, except as between the parties to tlio inort;^a;^e, exempt from the ojieration thereof, unless either : 1. Tlie mort;:;ageo, within thirty days after such removal, causes the mortgage to he recorded in the county to which the property lias been removed ; or, 2. The mortgagee, witliin tliirty days after such removal, takes possession of the property, as prescribed in the next paragraiih. If the mortgagor voluntarily removes or permits the removal of the mortgaged [troperty from the county in which it was situated at the time it was mortgaged, the mortgagee may take possi.'ssion and dispose of the property as a pledge for the j)ayment of the debt, though the debt is not duo. Personal property mortgaged may be taken under attachment or execution issued at the suit of a creditor. Before the property is so taken, the officer must pay or tender to the mortgagee the amount of the mortgage del)t and interest, or must deposit the amount tliereof witli tiie county clerk or treasurer, jiayable to the order of the mortgagee. \\'hen the property thus taken is sold under process, the officer must apply the proceeds of sale as follows : 1. To the re{)ayment of the sum paid t-^ "^he mortgagee, with in- terest from the date of sucli jiayment ; and, 2. Tiie balance, if any, in like manner as the proceeds of sales under execution are applied in other cases. A mortgagee of personal pro|;orty, when the debt to secure ■which the mortgage was executed becomes due, may foreclose the mortgagor's right of redemption by a sale of the property made in the manner [)rescribed in the chapter on "pledge," or may proceed by a judicial sale under the direction of a competent Court. IIG CALIFOUNIA. [Part 3. Chapter XXXV. PLEDGE. m m .J' I'ff' Mr. i: f:-: A pled;;o is a deposit of personal property by way of security for the performance of another act. Where a debtor has obtained credit, or an extension of time, by a fraudulent misrepresentation of the value of property pledged by or tor him, the creditor may doniand a further [)led;^e 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 pledj^e is given is due, in whole or in part, the pledgee may collect what is duo to him by a sale of the property pled;^ed. Before property plod;j;od can l)o sold, and after performance of the act for which it is security is due, the pledgee must demand performance thereof from the debtor, if the del)tor can be found. A pledgee must give actual notice to ine pledgor of the time and j)lace at which the property pledged will be sold, at such a reasonable time before the sale as will enable the pledgor to at- tend. The sale by a pledgee of property pledged must be made by public auction, in the manner and upon the notice to the public usual at the place of sale, in respect to auction sales of similar property ; and must be for the highest obtainable price. A pledgee cannot sell any evidence of debt pledged to him, except the obligations of governments, States, or corporations ; but he may collect the same when due. The pledgor may recpiire the property to be sold when it will bring a sufficient amount to satisfy the claim of the pledgee. A pledgee or [)ledge holder cannot purchase the property pledged, except by direct dealings with the pledgor. Instead of selling [)roperty pledged, as hereinbefore provided, a pledgee may foreclose the right of redemption by a judicial sale, under the directions of a competent Court ; and in that case may be authorized by the Court to purchase at the sale. Chap. 3(3.] CALIF0H..'IA. 117 ClI AFTER XXXVI. GUARANTY AND SURETYSHIP. A ;^uaranty is a promise to answer for the debt, default, or mis- carriage of another persi.tn. Where a guaranty is entered into at the same time with the orig- inal obligation, or with the acceptance of the latter by the guarantee, and forms with that obligation a part of the consideration to him, no other consideration need exist. Ir all other cases there must be a consiileration distinct from that of the original obligation. lixcept as hereinafter described, a guaranty must be in writing, and signed by the guarantor ; but the writing need not exjireas a consideration. A promise to answer for the obligation of another, in any of the following eases, 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 umiortaking to apply it pursuant to such |irora- ise ; or by one who has received a discharge from an oI)ligation in whole or in part, in consideration of such promise. 2. Where the creditor parts with value, or enters into an obli- gation in consideration of the obligation in respect to which the promise is made, in terms or under circumstances such as to ren- der the party making the promise the principal debtor, and the person in whose behalf it is made his surety. 3. Where the promise, being for an antecedent obligation of another, is made upon the consideration that the. party receiving it cancels the antecedent obligation, accepting the new promise as a substitute therefor ; or upon the consideration that the party receiv- ing it releases the property from a levy, or his person from imprison- ment, under an execution on a judgment obtained upon the antece- dent obligation ; or upon a consideration beneficial to the promisor, ■whether moving from either party to the antecedent obligation, or from another person. 118 CALIFORNIA. [Part 3. Ih ml 'S ! 4. Whore a fiictor undertakes, for a commission, to sell merchan- dise and guarantee the sale, -i , 5. 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 precedent debt of his own, or for a new consid- eration, and in connection with such transfer enters into a promise respecting such instrument. A guarantor is exonerated, exept so far as he may be indemnified by tlie principal, if by any act of the creditor without the consent of the guarantor the original obUgation 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 sus- pended. A surety is one who, at the request of another, and for the purpose of securing to him a benefit, becomes responsible for the performance, by the latter, of some act in favor of a third person, or hypothecates property as security therefor. A surety is exonerated : , , 1. In like manner with a guarantor. 2. To the extent to which he is prejudiced by any act of the creditor which would niiturally prove injurious to the remedies of the surety, or inconsistent with his rights, or which lessens his security ; or, 3. To the extent to which he is prejudiced by an omission of the creditor to do anything, when required by the surety, which it is his duty to do. • A surety has all the rights of a guarantor. , V A surety may require his creditor to proceed against the princi- pal, or to pursue any other remedy in his power which the s irety cannot himself pursue, and which would lighten his burden ; and if in such case the creditor neglects to do so, the surety is exon- erated t> the extent to which he is thereby prejudiced. A surety may compel his principal to perform the obligation when due. A surety, upon satisfying the obligation of the princira', '" entitled to enforce every remedy which the creditor then has against the principal, to the extent of reimbursing what he lias Chap. 37.] CALIFORNIA. expended, and also to require all his co-sureties to contribute thereto, without regard to the order of time in which they became such. Whenever property of a surety is hypothecated with property of the principal, the surety is entitled to have the property of the principal first applied to the discharge of the obligation. Letter of Credit. A letter of credit is a written instrument, addressed by one person to another, requesting the latter to give credit to the person in whose favor it is drawn. The writer of a letter of credit is, upon the default of the debtor, liable to those who gave credit in compliance with its terms. Chapter XXXVII. SALE. No sale of personal property, or agreement to buy or sell it, for a price of two hundred dollars or more, is valid, unless : 1. The agreement, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged, or by his agent ; or, 2. The buyer accepts and receives part of the thing sold, or when it consists of a thing in action, part of the evidences thereof or some of them ; or, 3. The buyer, at the time of sale, pays a part of the price. The foregoing provisions do not affect an agreement to manufac- ture a thing from materials furnished by the manufacturer or by another person. • ; ■ ■! -^ .^^ f, r,: 120 CALIFORNIA. [Part 3. No agreement for the sale of real property, or of an interest therein, is validj.unle^-i the same, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged, or his agent thereunto authorized in writing. If a buyer of personal property does not pay for it according to contract, and it remains in the possession of the seller after pay- ment is due, the seller may rescind ihe sale, ov. 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 continued change of possession. Chapter XXXYIII. CONTRACTS. if lii A contract is an agreement to do or not to do a certain thing. It is essential to the existence of a c»ntract that there should be : 1. Parties capable of contracting. 2. Their consent. 3. A lawful object. 4. A sufficient cause of consideration. A written instrument is presumjitive evidence of consideration. Contracts are either express or implied. An express contract is one, the terms of which are stated in words. An implied contract is one, the existence and terms of which are manifested by conduct. The following contracts are invalid, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged, or by his agent : i il! Chap. 39.] CALIFORNIA. 121 1. An agreement that by its terms is not to be performed with- in a year from the making thereof. 2. A special promise to answer for the debts, default or miscarri- age of another,, except in the cases mentioned in Chapter XXXVI. 3. An agreement made upon consideration of marriage, other than a mutual promise to marry. 4. An agreement for the sale of goods, chattels, or things in action, at a price not less than two hundred dollars, unless the buyer accept or receive part of such goods and chattels, or the evidences, or some of them, of such things in action, or pty at the time some part of the purchase money ; but when a sale is made by auction, an entry by the auctioneer in his sale book, at the time of the sale, of the kind of property sold, the terms of sale, the price, and the names of the purchaser and person on whose account the sale is made, is a sufficient memorandum. 5. An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein ; and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent be in writing, subscribed by the party sought to be charged. All contracts may be oral, except such as are specially required by statute to be in writing. Chapter XXXTX. NEGOTIABLE INSTRUMENTS. A bill of exchang3 is an instrument negotiable in form, by which one, who is called th-^ drawer, recpiests another, called the drawee, to pay a specified sum of money. . 122 CALIFORNIA. [Part 3. A bill of exchange is payable : 1. At the place where, by its terms, it is made payable ; or, 2. If it specify no place of payment, then at the place to which it is addressed ; or, 3. If it is not addressed to any place, then at the place of resi- dence 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, pre- sentment for payment is excused, and the bill may be protested for non-payment. Presentment of a bill of exchange for acceptance must be made in the following manner, as nearly as by reasonable diligence it ia practicable : 1. The bill must be presented by the holder or his agent. 2. It must be presented on a business day, and within reasona- ble hours. 3. It must be presented to the drawee, or if he be absent from his place of residence or business, to some person having charge thereof, or employed therein ; and, 4. The drawee, on such presentment, may postpone his ac- ceptance or refusal until the next day. If the drawee have no place of business, or if his place of business or residence cannot, with reasonable diligence, be ascertained, presentment for accept- ance is excused, and the bill may be protested for non-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 suffice, Avith ordinary diligence, to forward it for acceptance, unless presentment is excused. An acceptance of a bill must be made in writing, and may be made by the acceptor writing his name across the face of the bill, with or without other words. An unconditional promise, in writing, to accept a bill of ex- change, is a sufficient acceptance thereof, in favor of every person who u[)ou the faith thereof has taken the bill for value or other good consideration. On the dishonor of a bill of exchange by the drawee, and in 1. Si' Chap. 39.] CALIFORNIA. 123 case of a foreign bill, after it has been duly protested, it may be accepted or paid by any person, for the honor of any party thereto. If a bill of exchange, payable at sight or on demand, without in- terest, is not duly presented for payment within ten days after the time in which it could, with reasonable diligence, bo transmitted to the proper place fof presentment, the drawer and endorsers are ex- onerated unless such presentment is excused. The presentment of a bill of exchange for acceptance is excused if the drawee has not capacity to accept it. Delay in the presentmer.L of a bill of exchange for acceptance is excused, when caused by circumstances over which the owner has no control. Presentment of a bill of exchange for acceptance or payment, and notice of its dijhonor, are excused as to the drawer, if he for- bids the draw <} to accept, or the acceptor to pay the bill ; or if, at the time of c .'awing, he had no reason to believe that the drawee would accept or pay the same. An inland bill of exchange is one drawn and payable within 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 ob- tained ; and if not, then by any reputable person, in the presence of two witnesses. Protest for non-acceptanoe 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. Ouv) who pays a foreign bill for honor must declare, before pay- ment, in the presence of a person authorized to make protest, for whose honor he pays the same, in order to entitle him to reim- bursement. Damages on foreign bills of exchange are allowed as hereinafter prescribed, as a full compensation for interest accrued before notice of dishonor, re-exchange, expenses, and all other damages, in favor of holders for value only, upon bills of exchange drawn or nego- tiated within this State, and protested for non-acceptance or non- payment. 124 CALIFORNIA. [Part 3. h t '• > li' Damages are allowed as follows : 1. If drawn upon any person in this State, two dollars upon each one huudred dollars of the principal sura specified in tlie hill. 2. If drawn upon any person out of this State, but in any other of the States west of the RocliKtin lielniont Eureka }{aniilton Pioehe Eureka White Pine. Linroln KHiuorahlii . . . .Xurora of June and Deccuibi r. Elko Elko. of February, June, ;iud October. Justices' Courts. Jiv'tices of the peace have jurisdiction in all civil cases when the demand, (exclusive of interest) does not exceed three hundred dol- lars. Are always open. 134 NEVADA. [Part 4. ) a f. vi\i w m ill . II r •II, Chapter II. TIME ALLOWED TO ANSWER— SERVICE BY PUBLI- CATION—PLACE OF TRIAL. Defendant has ten days to answer summons, exclusive of day of service, from date of service, when serveu ■^vii' "i* Hio cqjinty, twenty days when served in the district but i-^ ■ . ^junty than the one where the action was commenced, ana in ..ill other cases forty days, Avhen personal service is had. Service by publication may be had on defendant, upon filing of proper affidavit therefor. Summons to be published once a week for at least one month, against defendants residing in the States of California or Oregon, and the Territories of Utah and Wash- ington ; in all other cases the publication of summons to be for not less than three months. Place of Trial. All actions pertaining to real estate, or to the recovery ■\i^i(-n, or any interest therein, must be commenced in the cout^ y v. --.a the real estate is situated. Transitory actions follow ^he :>e) v/;. iii*,. , Provisions in Justices' Courts. ir • \M Defendant must be sued in the township in which he lives, unless he is served with summons in the county-seat, or has contracted to perform an obligation at a particular place ; in which case he may bo sued in the towns'iip, city, or precinct where such obligation is to be performed, or in the township in which he re^'^^'- Service must be made from one to ten days before returns ■: sun- moQS. -, Chap. 3.] NEVADA. 135 Chapter III. LIMITATION OF ACTIONS. Civil actions, except for recovery of real property, can only be commenced as follows : Within Five Years. — Upon a judgment or decree of any Court of the United States, or of any State or Territory within the Unit- ed States. Within Four Years. — Upon any contract, obligation, or liability founded upon an instrument in writing. Within Three Years. — Upon a liability created by statute, other than a penalty or forfeiture ; for trespass upon real property ; for taking, detaining, or injuring any goods or chattels ; including actions for the specific recovery of pi-rsonal property ; for relief on the ground of fraud ; the cause of action not deemed to have ac- crued until discovery by party aggrieved of facts constituting a fraud. Within Two Years. — Upon a contract, obligation, or liability not founded upon a written instrument. Against a sheriff, coroner, or constable, upon the liability incur- ed by the doing of an act in his official capacity and in virtue of his office, or an omission of an official duty, including non-pay- ment of money collected upon execution. Upon statute for a pen- alty or forfeiture where the action is given to an individual, or to an individual and the State, except when the statute imposing it fixes a different limitation. For libel, slander, assault, battery, or false imprisonment. Upon statute for forfeiture or penalty to the State. Against a slieriff or other officer, for escape of a prisoner arrested or imprisoned on civil process. On open account for goods, wares or merchandise sold and delivered. For any article charged in a store account. In case of mutual accounts, the statute begins to run from date of last entry in account of either party. In all other cases, within four years after cause of action accrued. ■• \ 136 NEVADA. [Part 4. 11 ; u ,*';• /! if! General Provisions. Limitation does not run against a party during absence from State, and if when a cause of action shall accrue against a party, he be out of the State, the action may be comnenced within the time hmited after his return to the State. The statute does not run against a married woman, or a person under the age of twenty-one years ; one insane, or imprisoned on criminal charge, where term of imprisonment does not extend to 'ife. An action upon a judgment, contract, obligation, or liability, for the payment of money or damages obtained, made, executed, or issued out of the State, can only be commenced as followj : 1. Within one year, when prior to passage of the act, (March 6, 1867) more than two and less than five years have elapsed since the cause of action accrued. 2. Within six months, when prior to the passage of the act, more than five years have elapsed since the cause of action ac- crued. 3. Within two years, in all other cases, after the cause of action accrued ; a right of action shall be deemed to have accrued on a judgment at the time of its rendition. When the cause of action has arisen in any other State or Ter- ritory of the United States, or in a foreign country, and by the laws thereof an action cannot be maintained against a persQu by reason of the lapse of time, no action thereon shall be maintained against him in this State. No acknowledgment or new promise shall take the case out of the statute, exco[)t it be in writing, signed by the party to be charged. Actions ibr recovery of possession of real estate must be com- menced within five years, except actions for the recovery of mining ground, which must be commenced within two years, from time cause of action accrued. Chaps. 4, 5.] NEVADA. 137 Chapter IV. ATTACHMENTS. • Writ of attachment may be issued with summons, or at any time afterwards : 1. In an action upon a contract for the direct payment of money, made, or by the terms thereof, payable in this State, which is not secured by raorti^age, lien, or pledge upon real or personal property, situated or being in the State ; if so secured, when such security has been rendered nugatory by the act of the defendant. 2. In an action upon a contract against a defendant not residing in this State. Writ to be issued upon filing of an affidavit to be made by plaint- iff, or some one on his behalf, setting forth the statutory grounds for issuance of the writ. Plaintiff must give bond to secure defendant against damage arising from the issuance of the writ, in case the attachment is dis- missed, or the defendant recover in the action. Real and personal property, debts and credits, stoclcs or shares in any corporation, may be attached in the manner pointed out by the statute. Chapter V. ARREST IN CIVIL ACTIONS. The defendant may be arrested in the following cases : 1. In an action for the recovery of money or damages, on a cause of action arising upon contract, express or implied, when the 138 NEVADA. [Part 4. m defendant is about to depart from the State with intent to defraud his creditors, or when the actioi. is for libel or slander. 2. In an action for a fine or penalty, or for money or property embezzled, or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for miscon- duct or neglect in office, or in professional employment, or for will- ful violation of duty. 3. In an action to recover the possession of personal property unjustly detained, when the property or any part thereof has been concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff. 4. When the defendant has been guilty of a fraud in contract- ing the debt or incurring the obligation for Avhich the action is brought, or in concealing or disposing of the property, for the tak- ing, detention, or conversion of which the action is brought. . 5. When tlie 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 filing an affidavit and bond as required by statute — bond to be for a sum not less than four hundred dollars. * m i ,1 Chapter VI. JUDGMENTS AND JUDGMENT LIENS. if. il^ m From time judgment is docketed it becomes a lien upon all real property of the judgment debtor, not exempted from execution in the county, owned by him at the time, or which he may afterwards acquire, until the fien expires. Lion of judgment continues for two years, unless the judgment be previously satisfied. Personal prop- Chap. 7.] NEVADA. 139 erty, not exempt f.'om execution, is only held for satisfaction of judg- ment after the levy of execution thereon. Chapter YII. EXECUTIONS, EXEMPTIONS, SALE, AND REDEMP- TION. Execution niay.isSue for the enforcement of a judgment at any time within five years after the entry thereof, and may be issued to the sheriff of any county in the State in proper cases. i Exemptions. * The following property of the judgment debtor is exempt from execution : 1. Chairs, tables, desks, and books to the value of $100. 2. Necessary household furniture, wearing apparel, beds, bed- ding, provisions, and firewood sufficient for one month. 3. Farming utensils ; also two oxen or two horses, or two mules and their harnesses ; two cows, one cart or wagon ; and food for such oxen, horses, cows or mules, for one month ; also all seed grain or vegetables actually provided, reserved, or on hand for the purpose of planting or sowing, at any time Avithin the ensuing six months, not exceeding in value $400. 4. The tools and implements of a mechanic or artisan necessary to carry on his trade ; the instruments and chests of a surgeon, physician, surveyor, and dentist, necessary to the exercise of their profession, with their scientific and professional libraries, and the libraries of an attorney or counsellor, and the libraries of min- isters of the gospel. uo NEVADA. [Part 4. I !il P' - 5. The cabin or dwelling of a miner, not exceeding in value •$500 ; also all tools and implements necessary for carrying on any mining operation not exceeding in value $300 ; and two horses, mules, or oxen, with their harnesses, and food for the same for one month, when necessary to be used in such mining operations. 6. Two oxen, two horses, or two mules, and their harness, and one cart or wagon, by the use of which a cartman, huckster, ped- dler, teamster, or other laborer, habitually earns his living ; and one horse, with vehicle and harness, or other equipments used by a physician or surgeon or minister of the gos|)el in making his pro- fessional visits, and food for such oxen, mules, or horses, for one month. 7. One sewing machine, not exceeding in value $150, in actual use by the debtor or his family. 8. All fire engines, hooks and ladders, and all apparatus and furniture belonging to any fire company or department. 9. All arms, uniforms, and accoutrements required by law to be kept by any person. 10. All court houses, jails, public offices and buildings, lots, grounds, and personal property ; the fixtures, furniture, books, papers, and appurtenances belonging and pertaining to the court house, jail, and public offices belonging to any county in this State ; and all cemeteries, public squares, parks and places, public build- ings, town halls, public markets, buildings for the use of the fire departments and military organizations, and the lots and grounds thereto belonging and appertaining, owned or held by any town or incorporated city, or dedicated by such town or city to health, or- nament, or public use, or for the use of any fire or military com- pany organized under the laws of this State. 11. None of the above articles or species of property are exempt from execution issued upon a judgment recovered for its price, or upon a mortgage thereon. 12. The earnings of a judgment debtor arising from his personal services for the thirty days preceding the making of the order, (in supplemental proceedings) to the extent of fifty dollars, are exompt, when it shall be made to appear by the debtor's affidavit, or other- f hi'' Chap. 8.] NEVADA. 141 wise, that such earnings are necessary for the use of a family sup- ported wholly or partially by his labor. For homestead exemption, see " Homesteads." Sale. Real property may be sold upon twenty days' notice, given aa required by law ; and personal property after five days' notice of the time and place of sale, as required by law. Redemption. Real estate sold upon execution or order of sale, upon mort"age or otherwise, may be redeemed by the judgment debtor, or his suc- cessoi'S in interest in the whole or any part of the property ; or by a creditor having a lien by judgment or mortgage upon the prop- erty sold, or some share or part thereof subsequent to that upon which the jiroperty was sold, within six months from the date of sale. Real property sold for taxes is not subject to redemption. Personal property, sold upon execution, is not subject to redemption. Chapter VIIL PROCEEDINGS SUPPLEMENTARY TO EXECUTION. Upon return of execution unsatisfied, in whole or in part, issued upon any judgment, the defendant may be required to appear be- fore the Court, and answer under oath concerning his property. 142 ' NEVADA. • Chapter IX. SECURITY FOR COSTS. [Part 4. When plaintiff is a non-resident, or is a foreign corporation, security for costs may be recjuired. Chapter X. APPEALS. ' (it M'l W '■' An appeal from a judgment rendered in a Justice's Court may be taken to the district court witliin thirty days after entry of judg- ment, upon filing a bond with two sufficient sureties for double the amount of judgment and costs, in case stay of execution is de- manded. An appeal may be taken from the District to the Supreme Court : 1. From a final judgment in action or special proceeding com- menced in the Court in which the judgment is rendered, within one year after the rendition of judgment. 2. From an order granting or refusing a new trial, from an order granting or dissolving an injunction, and from an order refusing to grant or dissolve an injunction, and from any special order made after the final judgment, within sixty days after the order is made and entered in the minutes of the Court. 3. From an interlocutory judgment or order in cases of parti- tion which determines the rights of the several parties, and directs partition, sale, or division to be made, within sixty days after the rendition of the same. Chap. 11.] NEVADA. 148 .In all cases of appeal to the Supreme Court, a bond must be filed in the sura of $300 for payment of costs of appeal ; and in case a stay of execution is demanded, then an additional bond must be filed in a sum for double the amount of the judgment and costs. Bonds to be given by appellant, and to be executed by two or more sureties. Chapter XI. ESTATES OF DECEASED PERSONS. Claims against estates of deceased persons must be presented, proved, and allowed within ten months after the first publication of administrator's or executor's notice to 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. 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 re- sides, must, to entitle it to be used or filed ) ,tain a certificate of the clerk of the county where such justice resides, 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 bis official acts. , , Affidavits to correctness of accounts and claims, 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 qualified, of the State of Nevada, or before a notary public whose official character 144 NEVADA. [Part 4. is (Idly certified to by the secretary of State or Territory in which he aufl the party making proof reside. Time in which the estate must be settled not limited by statute ; it is subject to the order of the Court. District Courts have sole jurisdiction of all original proceedings in probate matters. Chapter XTI. HOMESTEADS. r: The homestead of a judgment debtor, consisting of a quantity of land, together with the dwelling house thereon and its appurte- nances, not exceeding in value five thousand dollars, to be selected by husband and wife, or either of them, or other head of thefam- ily, is exempt from forced sale on execution or other process from any Court. Homesteads are declared as follows : The selection to be made by cither the husband or wife, or both of them, or other head of a family, declaring their intention in writing to claim the same as a homestead. The same to be duly acknowledged and recorded as conveyances alFecting real estate. Declaration of intention to claim and hold a horaestcJad may be made at any time prior to sale on execution or other process, ex- cepting on sale of premises, on foreclosure of mortgage uj)on the premises executed by husband and wife ; or where the judgmerit 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 .••' Chap. 1:5.] NEVADA. Uo the office of the county recordtM-, in the same manner as the dec- laration to cliiiin the same i.s rc(iuired to be acknowledged and re- corded. On the death of husbiuidor wife, the homestead and other property exempt from sale on execution is reipiired to !)e set apart by the Court for the benefit of the surviving husband or wife, and his or her legitimate children. . In cases where homestead property is appraised at a sum ex- ceeding five thousand dollars, the same may be sold, and the sum realized on sale in excess of five thousand dollars and costs will pass to judgment creditor. Chapter XII 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 therein, 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 judg- ment is reversed on appeal, cannot be witnesses. 3. Attorneys or counsellors cannot, except" by consent of their client, be examined as to any confidential communications made to them in the course of their professional employment, and the like rule ap})lies to physicians, surgeons, clergymen or priests, with respect to confidential communications made to them in their pro- fessional capacity. 4. Husband or wife cannot be witnesses for or against each other, except in actions brought'by one against the other. 10 1 '1* 146 NEVADA. [Part 4. i>h> L hi ■'' ". Public officers cannot b** examined as witnesses in reference to communications uiiide to them in official confidence, Avhen the public interest would, by such disclosures, be injured. G. Laws relative to the attestation of instruments required to bo attested are i-eserved from the oneration of the statute allowing parties in interest to testify. Negroes can testify in all cases where whites are permitted to act as witnesses. The testimony of a witness in this State may be taken in an action at any time after the service of the summons, or the appear- ance of the defendant ; and in a special proceeding, after a question of fact has arisen therein, in the following cases : 1. When the witness is a party to the action or proceeding, or a person for whose immediate benefit the action or proceeding is prosecuted or defended. 2. When the witness resides out of the county in which his tes- timony is to be used. 3. When the witness is about to leave the county where the ac- tion is to be tried, and will probably continue absent .when the tes- timony is required. 4. When the witness, otherwise liable to attend the trial, is nev- ertheless too infirm to attend ; or resides within the couuty, 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 show- ing that the case is one mentioned as above stated. Such notice shall be at least five days, and in addition one day fore ery twen- ty-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. I'^ither party may attend such examination, and put such ((ucstions, 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 Chap. 13.]. NEVADA. 147 writing, may agree upon, and citiier delivered by the offirer taking the same to the clerk or such ])erson, or transmitted tlinmgh tlic mail, or by some safe private oppor^inity ; and such deposition may be used by either party upon the trial a;:aiust any party givin;:'- or receiving such notice, subject to all legal objections. It" the par- ties attend at the examination, no objection to the form of an inter- rogatory shall be made at the trial, unless the same was stated at the time of the examination. If the de[)osition to be taken be by the reason of the absence or in- tended 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. Depositions thus taken may be also read, in case of the death of the witness. Wlien a deposition has been once taken, it may l)c read in any stage of the same action or proceeding by either party, and shall then be deemed the evidence of the party reading it. Depositions Taken Out of the State. The testimony of a witness out of the State may be taken by deposition in an action at -any time after the service of the sum- mons, or the appearance of the defendant ; and in a special pro- ceeding, at any time after a question of foct has arisen therein. The deposition of a witness out of the State shall be taken ujion commission issued from the Court, under the seal of the Court, up- on an order of the judge or Co .,t, on the application of either par- ty, upon five days' previous n /tice to the other. It shall be issued to a person agreed upon by she 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 Ter- ritories. Such proper interrogatories, direct and cross, as the resjteclive parties may prepare, to be settled, if the parties disagree us to their form, by the judge or olficer granting the order for the commission, 148 NEVADA. [Part 4. at a day fixed in the order, or at the time of granting the order for conimissiou, may be annexed to the commission ; or, when the par- ties agree to that mode, the examination may bo without written in- terrogatories. The connnission shall antliorize tlie commissioner to administer an oath to the witness, and to take his de[iosition in answer to the interrogatories, or when tlie examination is to be witliout interroga- tories in respect to the questions in dispute, and to certify the depo- sition to the Court, in a sealed envelo]ie directed to the clerk or other person designed or agreed upon, and forward to him by mail, or other usual channel of conveyance. Chapter XIV. JUDICIAL RECORDS, IIOW PROVED. A judicial record of this State, or the United States, or any Ter- ritory, may be proved by the production of the original, or a copy thereof, certified by the clerk or other person having the legal cus- tody 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 an) Territory, may l)e proved or admitted in the Courts of tl is State, bv the attestation of the clerk and seal of tlie Court aimexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may I)c, 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 \>y 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 ollice annexed, if there be a seal, Chap. 15.] NEVADA. 149 to be a true copy of such record, together with a certificate of a judge of the Court that the person making the certificate is the clerk of the Court, or the legal keeper of the record, and in either case that the signature is genuine, and the certificate in due form; and, also, together with the certificate of the minister or embassa- dor of the United States, or of a consul of the United States, in such foreign country, that there is such a Court, specifying genprally the nature of its jurisdiction, and verifying the signa- ture of the clerk and judge, or other legal keeper of the recurd. Second. A copy of the judicial record of a foreign country shall also be admissil)le 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 bo the seal of the Court wliere 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 Ci>urt, by the signature of the legal keeper of the original. _ • . Chapter XV. ACKNO\VLEDG^[ENTS. The proof or acknowledgment of every conveyance affecting any real estate shall be taken by some one of the following offic- ers: 1. If acknowledged or proved within this State, by some judge or clerk of a Court having a seal, or some notary public, or j\i3tice of the peace : Provided, when the acknowledgment is taken bo- fore a justice of the peace in any other county than tlmt in which 150 NEVADA. [Part 4. the real estate is situated, the same shall bo accompanied witk the certificate of the clerk of the Disirict Court of such county, as to the oifieial character of the justice taking the proof or acknowledg- ment, and the authenticity of his signature. 2. If acknowledged or proved without this State, but within the United States, shall be taken by some one of the following, offi- cers : A judge or clerk of a Court having a seal, or some notary public or justice of the peace, or by any commissioner appointed by the Governor of this State for that purpose : Provided, that wlien 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 acknowledged or proved without the United States, by some judge or clerk of any Court of any State, Kii'gdi'm or Km- piro having a seal, or by any notary public therein, or by any minister, commissioner, or consul of the United States, appointed to reside therein. Chapter XYI. AFFIDAVITS, BEFORE WHOM TO BE TAKEN. An affiilavit to be used Ijefore any Court, judge, or officer of this State may be taken before any judge or clerk of any Court, or any justice of the peace, or notary pubHc iu this State. An affidavit taken in mother State, or in a Territory of the Unit(!il States, tojjo vnod in this State, shall be taken before a commissioner appointed iiy the Governor of this State to take affi- davits and deposition- in such other State or Territory, or before any judge of a Court of record having a seal. Chap. 17.] NEVADA. 151 An affidavit 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 before any judge of a Court of record having a seal, in such foreign country. When an affidavit is taken before a judge of a Court in another State, or in a Territory of the United States, or in a foreign coun- try, the genuineness of the signature of the judge, the existence of Court, and the fact that such judge is a member thereof, shall be certified by the clerk of the Court, under the seal thereof. Chapter XYII. LIMITED PARTNERSHIPS May be formed for the transaction of mercantile, mechanical, mining, or manufacturing business by two or more persons, as provided for by special statute. But nothing contained in the act shall authorize such partnerships for the purpose of banking or insurance. In partnerships of thi^ character there shall be one or more members of the firm to i»o known as general partners, and they are individually liable for the debts of the firm. The special part- ners are liable for the firm debts to the extent of their interest in the firm property or assets ; also to the extent of any suras of money by them received, withdrawn, *or divided, with interest thereon from the time they were so withdrawn from the firm. The business of the partnership shall be conducted under a firm name, in which the names of the general partners only shall be in- scrtod, and the general partners only shall transact the business. If the name of any special partner shall be used in said firm with his consent or privity, or if he shall personally make any contract 152 NEVADA. [Part 4. respecting the concerns of the partnership with any person except the general partners, he shall be deemed and treated as a general partner. Chapter XVIII. MARRIED WOMEN May become sole traders upon petition, and by order of District Court. When they are sole traders, they become liable for debts in- curred in the conduct of the business authorized to be carried on by them as such. Chapter XIX. CORPORATIONS May be formed for all purposes under general statute. Stockholders are not individually liable for any debt of the corporation. Chaps. 20, 21.] NEVADA. 153 Chapter XX. CHATTEL MORTGAGES. No chattel mortgage upon any personal property shall be valid for any purpose, except possession of the property mortgaged be given to and continuously retained by the mortgagee, exce[)t that grow- ing crops may be mortgaged by the execution, acknowledgment and record of a mortgage, with delivery of possession. 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 ten per cent, per annum for all moneys after they become due upon any bond, bill, or promissory note, or other instrument in writing, on any judgment recovered before any Court in this State, for money lent, money due on settlement of acconiits from the day on which the balance is ascertained, and for monev received for the use of another. Parties may agree in writing for the payment of any rate of in- terest whatever upon money due, or to become due on any con- tract. Judgments rendered upon contracts shall conform thereto, and bear the interest agreed upon by the parties, which shall be specified in the judgment : Provided, only the amount of the origi- nal claim or demand shall draw interest after judgment. 154 NEVADA. [Part 4. Chapter XXII. PROMISSORY NOTES AND BILLS OF EXCHANGE. All notes in writing made and signed by any person, whereby he shall promise to pay to any other person, or to his order, or to the order of any other person, or to the bearer, any sum of money therein mentioned, shall be due and payable as therein expressed, and shall have the same effect, and be negotiable in like manner, as inland bills of exchange, according to the custom of merchants. Days of grace are allowed upon bills and promissory notes, where not otherwise expressed. Damages for non-acceptance of bills of exchange upon the usual protest are as follows, when drawn or negotiated in this State : If such bills shall have been drawn upon any person or persons in any of the United States east of the Rocky Mountains, fifteen dol- lars upon the hundred upon the principal sum specified in such bill. If such bill shall have been drawn upon any person or persons in any part or place in Europe, or in any foreign country, twenty dol- lars 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. Part Y. STATE OF OREGON. PREPjiRF.D EXPRE?FI,Y FOR THIS WORK BY DOLRH, BRONOUGH, DOLni & SIMUX, rOKTLAXD, OKEGUxX. Chapter I. C0URT8 AND THEIR JURISDICTION. The judicial power of the State is vested in a Supreme Court, Circuit Courts, and County Courts, which are Courts of record. Justices of the peace are invested with Hmited judicial powers, and Municipal Courts may be created to administer the regula- tions of incorporated towns and cities. The Supreme Court consists of five justices, who are elected by the electors in each district, and who hold their offices for six years. The Supreme Court has jurisdiction only to revise the final de- ' cisions of the Circuit Courts. The Circuit Courts are held at least twice in each year, in each county organized for judicial purposes, by one of the justices of the Supreme Court. All judicial power, authority, and jurisdiction not vested exclusively in some other Court belongs to the Circuit Courts, and they have appellate jurisdiction and supervisory con- 15G OREGON. [Part 5. ; ll' li" I u JI a 1 1 ?|^ ;■ ■-^■ ')■■ ■('■ S V '. y- 1 if: I trol over the County Courts, and all other inferior Courts, officers anil tribunals. County Courts have jurisdiction, hut not exclusive, of actions at law. and all proceedings therein and connected therewith, when the claim or subject of the controversy does not exceed the value of live hundred dollars. Justices' Courts have jurisdiction, but not exclusive, of the fol- lowing actions : 1. For the recovery of money or damages only, whore the amount claimed does not exceed •f250. 2. For the recovery of specific personal property, when the value of the property claimed and the damages for the detention do not exceed 1250. • 3. For the recovery of a penalty or forfeiture, not exceeding •'J<2;')0. 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 prosecution, criminal conversation, seduction, or upon a promise to marry. Chapter II.- TERMS OF COURT, WHEN AND WHERE HELD. The following are the times and places of holding Courts, both Federal and State, in the several counties and districts of the State : United States Circuit Court, District op Oregon. Regular terms held at Portland, on the second Monday of ApriJ, August and November. Chap. 2.] OREGON. lA )l Judges, Hon. Stephen J. Fiekl, Associate Justice of the Supreme Court, anil Hon. L')renzo Sawyer, Circuit Judge. Clerk, Ralph Wilcox. Marshal, D. J. Malarkey. United States District Court, District of Oregox, IJegular terms held at Portland, on the first Monday of March, July and November. Judge, Hon. Matthew P. Deady. Clerk, Ralph Wilcox. Mar- shal, I). J. Malarkey. U. S. District Attorney, Rufus Mallory. Piegister in Bankruptcy, H. H. Northup. Supreme Court of Oregon. Regular terms held at Salem, on the second Monday in Decem- ber of each year, and special terms held at such other times as the Court appoints. Circuit Courts of the State of Oregon. Bakor Hintcn Clni'liiiiiias . . . . ClHtKcl|) Ciihiiuliia Ci)im Cnny PoiikIhk Oi'.iiit Jjit'lison Ji>s(i)hiuc Lnki^ L;ili(' Linn M:irii>ii Miiliiioiiiiili. . . I'olk riiiiiiiiift Tnioii Wjisco.. Wii-liiiii!toii. . . ViiinliiU TIMES OF HOLDING. First Mmiiliiy of Oitobor ntid tliiid AFoiidny of May. Third Mi>iiil;iy of Xovi'iiibir mid Kci-mid Moiidny of A^ril. Fourth Monday of April and fourth Moiiiiay of September. Se<'oiid Tiiesilay of August and fourtli Tuei-day of January. Second Monilay of Anril. , Koiirth Monday of Mny and eocoud Monday of Si'p^<"nl><-'r. First Mmday of June. Third Momlay of Oetober and Hecond Monday of May. 'i'hird M mday of S-pteniber and first ■^^onlhly of June. Si'conil Monday of February. June :iiul November. Fourth K 'iiday of April and tourtli Monday of October. Fourth Monday of Juni- and Novcolier. Third M mday'of A)iril and first Monday in November. S conil M iUdiiy in M:ireli and fourtli M iiiday in Oetober. Fourtli Monriay of Feb., seeond Monday of .Fune, and third Monday of Oct. Second M 'iiday of February, June, ami October. -eeond Monday of May and tirst MModay of Ueccnibpr. Fourtli Monday of (jctober and last Monday of April. Third Jfoiiday of Oi-tober and lirst Momliiy of May. Second Mniday of November and third Monday of June. Foifth M nday of May and first Monday of October. Fourtli Monday of March and first Monday of October. Terms of the County Courts. In the counties of Josephine, Curry, Coos, Columbia, Clatsop, 158 OREGON. [Part 5. TillaiTiDok ami Umatilla — on tho first Monday of January, April, July ajul Scptomber. In the counties of Grant, Balcer, Lane ami Wasco — on the first Monday of January, March, May, July, September and Novem- ber. In the county of Lake — on tho first Monday of every alternate month. . In the county of Union — on the second Monday of May uml the first Monday of January, March, July, September and Novem- ber. In tho counties of Jackson, Douglas, Linn, Benton, Polk, Mar- ion, Yamhill, Clackamas, Washington and Multnomah — ju the first Monday of each month. Chapter III. COMMENCEMENT OF SUITS. '\ Actions at law are commenced by filing a complaint with the clerk of the Court. At any tim'j after tho action is cominonced, 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 filed, the names of tho parties to the action, and the title thereof; it must be subscribed by the jilaintiff or his attorney, and directed to the defendant, and reipiire him to appear and an- swer 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 tho complaint within ten days from the date of the service ; but if served in any other n Chaps. 4, 5.] OUEOON. ir)9 county in tlio State, lie must appear and answer the cotniilaiut within twenty days fro;a the date of service. Chapter IV. PLACE OF TKIAT. OF CIVIL ACTIONS. Actions for the recovery of real proper:y, or an estate, or inter- est therein, or for injury thereto, and for tlie recovery of any per- sonal property distrained for any cause, shall be commenced and tried in the county in which the subject of the action, or some part tnereof, 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 par- ties reside in this State, tho same may be tried iu any county which the plaintiff may designate in his complaint. tit 5 I Chapter V. LIMITATION OF ACTIONS. The [)eriod3 prescribed for the coramencem mt of actions are as follows : Within Twenty Years : - Actions for the recovery of real property, or for the recovery of the possession thereof. 160 OUEGON. [Part 5 igi mi j.it" S:i Iv ill- "ill Within Ten Years: Actions upon a judgment or decree of any Court of the United kj-tates, nr of any State or Territory within tlie United States. Actions upon sealed instruments. Within Six Years: An action upon a contract or liability express or implied, ex- cepting those already mentioned. An action upon a liability created by statute, other than a penalty or forfeiture. An action for waste or trespass upon real property. An action for taking, detaining or injuring personal property, including an action for the specific recovery thereof. Within Three Years : An action against a siieriff, con3tal)le or 'joroner, 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 ♦'-r a penalty or forfeiture. Within Two Years: An action for libel, slandor, assault, battery, or false imprison- ment ; for criminal conversation, or for an injury to the person or ri;:hts of anotiier not arisiii;: on contract. An actio*! upon a statute for a forfeiture or [ enalty to the State. Within One Year : An action against a slierift" or other officer tor tho escape of a prisoner arrested or imprisoned on civil process. An action for any cause not hereinbefore provided for shall bo commeiicud within tun years after the cause of action accrued. I; Chaps. 6, 7.] OREGON. 161 Chapter VI. ^ ATTACHMENTS. In an action for the recovery of money or damages, the plaintiff, at any time after the commencement of the action, and before judg- ment, may have the property of the defendant attached, by filing with the clerk of the Court an undertaking with one or more sure-t ties equal to the amount for which the plaintiff demands judgment, and not less than flOO ; and the plaintiff, or some one in his behalf, making and filing an affidavit that the defendant is cither a foreign corporation or a non-resident of the State, or has departed there- from witii intent to delay or defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with like intent, or has removed or is about to remove his property from the State with intent to delay or defraud his creditors, or has assigned, secreted, or disposed of any of his property, or is about to do so, with intent to delay or defraud his creditors, or that the debt was fraudulently contracted. Chapter YII. ARRESTS IN CIVIL ACTIONS. The defendant may be arrested in the following caaef" : In an action for the recovery of money or damages on a cause of action arising out of contract, when the defendant is not a resi- dent 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 11 ^- 162 OREOON. [Part 5. wrongfully taking, detaining, or converting property. In an action for a fine or penalty, or on a promise to marry, or for money re- ceived, or property embezzled or fraudulently misapplied or con- verted to his own use hy a public officer, or an attorney, officer, or agent of a corporation, factor, agent or broker, or other person in a tiduciary capacity. In an action to recover the possession of any personal property unjustly detained, when the property or any por- tion thereof has been concealed, removed, or disposed of. When the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought. When the defendant has removed or disposed of his i)ropcrty, or is about to do so, Avith intent to defraud his creditors. No female can be arrested in any action, except for an injury to person, character, or property. 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 subseciuently acal, togetlier with the certificate of tlio chief judge, or presiding ii,,igistrate, 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 Supremo Court, county judge, justice of the peace, notary puhHc, or clerk of a Court. No acknowledgment of any convey- 172 OREQON. [Part 5. ance having been executed shall bo taken by any officer, unless he shall know or have satisfactory evidence that the person making such acknowlcdifincnt is the individual described in and who exe- cuted such conveyance. When a married woman, residin;^ in this State, shall join with her husband in a deed of conveyance of real estate situated within this State, the acknowledgment of the wife shall be taken seji- arately and apart from her husband, and she shall acknowledge that she executed such deed freely and without fear or coni|)ul.sion from any one. If any deed shall be executed in any other State, Territory or District of the United States, sueh deed may be exe- cuted and acknowledged according to the laws of such State, Ter- ritory or District, or before any commissioner appointed by the governor of this State for such purpose ; and uidess the acknowledg- ment bo taken before such commissioner, it must be certified by 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 sub- scribed to the certificate of acknowledgment was, at the date there- of, such officer as he is therein represented to be, and that ho be- lieves 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 rARTNEllSIIIPS. Limited partnerships for the transaction of mercantile, mechan- ical and manufacturing business may be formed in this State. The persons forming such partnership make and severally subscribe Chap. 21.] OREGON. 173 and aclviiowlcfl^c a certificate in duplicate, wliich contains the name assiunod hy the purtiicrrthip, the names and respective phices of residenco of all the j^eneral and special partners, the amount of ca[iitiil which each special partner contributes, the general nature of the business to be transacted, and the time when the partnership is to commence and terminate ; one copy of such certificate is filed with the clerk of the county in which the [)rincipal place of busi- ness of the partnersliip is to be. A copy of the same is reijuired to bo published for four weeks in some weekly newspaper published in the county. The business must be conducted under a name in which the names of the general partners only shall bo inserted, without the addition of the word company, or any other general 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 jirofits made, so as to reduce such capital stock below the sum stated in the certificate. 'ClIArTLR XXI. MARUIED WOMEN. The constitution of the State provides that the property and pecu.iiary rights of every married woman at the time of marriage, or afterwards accjuired by gift, devise or inheritance, shall not be subject to the debts or contracts Of the husband, and laws shall bo passed providing for the registration of personal property : which has been done. The property, both real and personal, ac(iuired by any married v;oman during coverture, is free from and not liable for the debts, liabilities or contracts of her husband. ^^■1 17-1. OBEUON. [Part 5. ClIAPTKIl XXII. CORPORATIONS. '•' Corporations are only formed under general laws, and cannot ho created by special laws. Tlie stockholders of all corporations and joint stock companies are liahle for the indehtedness of such ccjrporations to the amount of tlseir stock subscribed and unpaid, and no moni. No buid<, hanking company or moneyed institution can ho creat- ed under the laws of this State ; nor can any l)ank, company or institution exist in the State with the privilej^e of making;, isHuin;:;, cv puttini^ in circulation any bill, check, certificate, promissory :ioto or other paper, or the pa|)er of any bank, company or perdou, to circulate as money. CiiArTEU XXIII. CIIATTKT MORTGAGES. Chattel mort;»aj:;e9 are valid a<;ainst thinl parties when the prop- erty is retained in the possession of th<' mort^^at^or, ]irovided the lHort;^ii;j;e or a copy thereof is filed iit the oiKco of th>' county clerk. Kuch mort<.^age, however, ceases to be valid as aj;aiiist creditors and subse(juent jjurchasers, or mortj^ai^ors in ^ood faith, after th«' expiration of one year from -the filin;r of the same, unless wi:hin thirty days [irecodinj^ the expiration of the year an affidavit, se tin^ forth the interest which the inortga^^eo has in the propc '*y by Chap. 24.] OREflON. 176 virtue of such mortgaf^e, is made and annexed to the instrument or copy on file. The effect of such aifidavit does not contiuae beyond one year, when a similar allidavit must be made. ciiArTER xx^v^ INTEREST AND USURY. Ten per cent, per annum is Iho legal rate of interest ; but on con- tracts, interest at the rate of one per cent, jier month may bo charged by express agreement of the parties. Uf^ury entails the forfeiture of the principal sura, without interest, to the school fund of the county in whicii the suit is brought. rART YI. UTAH TERRITORY. PRKPARED EXPRI-ySl-Y FOR THIS WORK BY LEWIS BUR^fES. SALT LAKE CITY. Chapter I. THE COURTS AND THEIR .JURISDICTION. The Supreme Court of the Territory Ims general appellate juris- diction only. There are three United States District Courts in the Territory, with unlimited juriddiotion in all chancery and law actions. The PuoiiATE Courts, One in each county : Their jurisdiction is limited to strictly pro- bate business, except that they may try divorce cases where both parties agn-c upon that forum ; romovable, however, at the pleasure of either party, to the District Court. The judges have the right to enter town sites, and preside over tha board of selectmen ; in other words, the County Court. li 178 UTAH. [Part 6. Justices' Courts Have jurisdiction in all actions where the amount involved is less than three hundred dollars, except in cases involving titles to real estate. Chapter II. THE TERMS OF COURTS AND PLACES OF HOLDING SAME. The Supreme Court sits the first Monday of January, and the second Monday of June, of each year, at Salt Lake City. The District Courts sit at Salt Lake City, third district ; Provo, second district ; Beaver City, first district. The times arc fixed hy the Governor at pleasure, and often chan;^e to suit convenience or al)sence of the judges, and now the assignment is only tem- porary. The Probate Courts and Justices' Courts are always open for the transaction of business ; the former at their respective county court houses, ai;d the latter in their respective precincts. ClI AFTER III. COMMENCEMENTS OF SUITS AND TIME ALLOWED DEFENDANTS TO PLEAD. Suit? may be commenced at any time. Ten days after service are allowed the defendants to plead, an^^wer, demur, or file motions in cases in the District Couj .a and Niipremc Court. Chaps. 4, 5.] UTAH. 179 un In Justices' Courts, defendants may he recjuired to answer witl two days after service, and not longer than ten days after service. Chapter IV. LIMITATIONS OF ACTIONS. Actions for tlie recovery of real estate can only be hronght with- in seven years after the {.laiiitiff 's having been lawfully seized and possessed of the premises by himself, grantor, ancestor, or prede- cessor. Actions for the recovery of money on notes, bonds, or judgments recovered in a foreign State must bo brought within four years after the cause of action accrued ; and on accounts, within two years. Chapter V. ATTACHMENTS Can only issue upon the filing of an affidavit ^n behalf of the plaiutiif, showing the existence of a debt upon contract, specifying the nature and amount thereof, aj near as may be, over and above all legal set-offs or counter-claims ; that the same has not been se- cured by any nuatgage, lien, (u- pledge upon real or pers.mal estate within the Territory, or If so secured, that such security has 180 UTAH. [Part 6. been rendered nugatory by the act of the defendant ; that tlie defeiKhiut is not residing in this Territory, or that the defendant lias departed the Territory or county where the action is brouglit, or that the defendant stands in defiance of an officer, or conceals him- self so that process cannot be served upon iiim, or that he is dis- posing of his propeity with the intent to defraud his creditors ; that the debt is aji actual bona fide existing demand due and owing from the defendant to the [)laintiff, and that the action is not sought or prosecuted to hinder, delay, or defraud any creditor of the de- fendant. 'i'here must also be executed and filed an undertaking, with two tnfficient sureties, in a sum not less than $200, nor exceeding the amount claimed by the plaintiff, conditioned, that if the defendant recover judgment in the action, the plaintilT will pay all costs that may be awarded to the defendant, not exceeding the amount sj)eci- fied in the undertakinj'. Chapter VI. ARRESTS IN CIVIL ACTIONS Are issued u|)on filing an undertaking and affidavit, the same in effect as those roipiircd iii attachiH'ut cases, except that iu adili- tion to the liability of sureties in attachment cases for costs, in cases of arrest they are liable for any damage which the defendant may sustain by reason of tlie arrest, not exceeding the sum specified ia the undertaking, and the undertaking must be in a sum nut less than !j.',00. In either case, the sureties must an- nex an affidavit to the undertaking ; that ho \i a resident and householder, or freeholder within the Territory, and worth double the sum specified in the undertaking, over and above all his debts and liabilities, exclusive of property exempt from execution. Chap. 7.] UTAH. 181 The affidavit in cases of arrest diflfors from attaclimeiit affidavits only in this, that the arrest may ho made in any action for a fine, or for money or property embezzled, or fraudulently misapplied, or converted to his own use by rofcs ional em]iloyment, or for a willnd violation of duty >;v in an action to recover the |H»sses- sion of personal property, unjustly detained ; when the propeity, or any part tliereof, has been concealed, removed or disposed of, so that it cannot be found or taken by the Territorial marslial, his deputy, or the shcriflf or his deputy ; or where the defonchmt has been guilty of fraud in contracting the debtor incurring the obliga- tit)n for which tlie action is brought, or is concealing or disposing of the property for the taking, d(;tention or conversion of wiiich the action is brought ; or when the defendant has removed or dis- posed of his property or is about to do so, with the intent to de- fraud his creditors. Chapter VII. JUDGMENTS AND JUDGMENT LIENS. A judgment is collectable by execution, which may be issued any time after judgment, within three years after its reixlition, and is alien upon the real estate of the defendant within the coun- ty where it is rendered, from its rendition ; executions may be issued to other counties, but the judgment constitutes a lieu there, only from the time of filing a transcript of the judgment for record in the office of the county recorder of the county to which it is sent. 182 UTAH. [Part G. Chapter VIII. EXECUTIONS, EXEMPTIONS, SALES, AND REDEMP- TION. Property, real or personal, may bo sold on twenty days' notice, under execution, but the execution may issuo returnable in not less tlien ten days nor more than ninety days, and the execution may rcijuire the officer to satisfy the jud^^ment in tiie particular Ivind oF money ordered in the jud^^ment. The followinj; property is exempt from execution : 1. Chairs, tat)le9, desks and books, to the value of one hundred dollars belon;^in;^ to thejud^^ment debtor. 2. Necessary household, table and kitchen furniture belonging to the judgment debtor, including stoves, not to exceed one stove lor every live persons of the faiiiily. Stove pipe and stove furni- ture, wearing ap.parel, one bedstead, one bed, and the necessary bediling for every two persons in the family, and provisions and fuel for the family sufficient for sixty days. 3. The farming utensils or imi)lemonts of husbandry of the judgment debtor. Also, two oxen or two homos, or two mules and their liarncss ; one cow and calf for every live persons in the family ; one cart or wagon, and food for such oxen, horses, cows, or mules, for sixty days ; also all seed grain, or vegetal)les, actually provided, re- served, or on hand, for the purpose of planting or sowing at any time within the ensuing six months, not ccceeding in value one hundred dollars. 4. The tools, tool chest, and implements of a mechanic or artisan, necessary to carry on his trade. The instruments and chests of a surgeon, physician, surveyor, or dentist, necessary to the exercise of their professions, with their scientific and profes- sional libraries, and the law lil)rary of an attorney or counsellor, and the li!)raries of ministers of the gospel. f). The tent or cabin of a miner, including a table, cam[) stools, a bed and bedding, and necessary tools used in mining, not exceed- Chap, 8.] UTAH. 183 ing tlie value of four hundred dollars, with jtrovisions necessary to his support for thirty days. 0. 'i'wo oxen or two horses or two mules, and their harness, and one cart and wagon, by the use of which a cartman, teamster, or other laborer habitually earns his living, and food for such oxen, horses, or mules for sixty days ; and a horse, harness, and vehicle used by a physician, surgeon, or minister of tiie gospel, in making his professional visits. 7. One sewing machine not to exceed in value sf 100.00, in actual use by tiie debtor or bis family. If the debtor be head of a family, then there shall be a further exemption of five head of sheep and tha wool therefrom for every person in his family, two hogs and three pigs under three months old, a!id the necessary food for all such animals for sixty days. All flax raised by the debtor and the manufactures therefrom, and all cloth manufactured in the family of the debtor f'»r their own use ; all spinning wheels and looms and i>ther instruments of domestic labor kept for family use. The earnings of such debtor for his personal service, or those of his family, at any time within sixty days next preceding the levy. 8. All fire engines, hooks and ladders, with the carts, trucks and carriages, hose, buckets, implements and apparatus. All fur- niture and imiforms of any fire company or department now exist- ing, or which may be under the laws of this territory iieroafter organized. 9. Al! arms, ammunitions, uniforms, and accoutrements, re- quired by law to be kept by a {)erson. 10. All court-houses, jails, public offices and buildings, school houses, and houses of public worship, lots, grounds and personal property appertaining thereto. The fixtures, furniture, books, papers, and ap{>urtenances belonging and appertaining to the court-house, jail, and public offices belonging to any county, or for the use of schools or houses of public worship ; and all cemeteries, public s(iuares, parks and i)luces, town halls, markets for the use of fire departments and military organizations, and the lots and grounds thereto belonging, or held 'ly any town or incorporated city, or dedicated to such town or city to health, ornament, or public use, to the use of any fire or military company now existing or hereafter or^ianized. 184 UTAH. [Parte. 11. For fiomestead cxoraption, soo " II):nj3tea'l." Redemption Of real property may bo raado by the dofondant, or uiiy creilitor subsequent to plaiatiff's lien, any time within six monthd from the day of sale. Chapter IX. PROCEEDINGS IN AID OF EXECUTIONS. On the return by a sheriflF or marshal of an execution " unsatis- fied," the judgment creditor upon affidavit or otherwise showing to the satisfaction of the Court, or of the ju'lge thereof, that the judg- ment debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment, may apply, and the Court or judge may, by an order, recjuire the judgment debtor to appear at a specified time and place before such judge, or a referee appointed by him, to answer under oath concerning the same ; and such proceedings may theretipon be had for the application of the property of the judgment debtor towards the satisfaction of the judgment, as are provided upon the return of an i-xecution ; that is, to require the appearance of witnesses, and hear the same, and make orders in relation thereto. And on proof by affidavit, or otherwise, that any jierson or corporation has property of such judg- ment debtor, or is indebted to him in an amount exceeding J^oO, the judge may by order recjuire such person, or corporation, or any officer or member thereof, to appear at a specified time and place before him, or a referee appointed by him, and answer concerning the same. The judge or referee may order any property of the judgment Chap. lO.J UTAH. 185 debtor not exempt from oxocatlon in the liana^k^ 188 UTAH. [Part 6. bate Court ; this may be made after expiration of two years, pro- vided notice of the ckiira be given v/ithin the two years. The executor or administrator of the estate has as long to make final settlement in, as the Probate Court will permit, which is usually, as long as he can show any unsettled business of tho estate. The widow or other members of the family are entitled to the homestead, and such further allowance as the Probate Court may deem proper for the maintenance of the widow. The largest discretion is given the Court in making orders re- specting the estate. i^ib Chapter XIII. HOMESTEADS. There shall be allowed homestead exemption, to bo selected by the debtor, consisting of lands and appurtenances thereon not ex- ceeding 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 promises amount in value to more than the homestead exemption, it may be ordered sold or par- titioned, and in case of sale, the excess over the exemption valua- tion is subject to execution ; and ii. case of partition, the part divid- ed off from the homestead is su'yect to sale on execution, the valu- ation to be made by persons chosen by the debtor and the officers havinii the execution. i.JMPilU.M VflV. iJ Wfl Chap. 14.] UTAH. 180 Chapter XIV. DEPOSITIONS May be taken in any action at any time after service of summons, or the appearance of the defendant, and in a special proceeding after a (piestion 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 whoso immediate benefit the action or proceeding is prosecuted or defended. 2. When the witness resides out of the county in which his tes- timony is to be used. 3. When the witness is about to leave the county where the action is to be tried, and will probably continue absent when his testimony is required. 4. When the witness, otherwise liable to attend the trial, is too infirm to attend, or resides within the county but more than fifty miles from the place of trial. Either party may have a deposition of a witness taken before a notary public, justice of the peace, judge, or clerk of a court, by serving notice on the adverse party of the time and place of ex- amination, together with a copy of the affidavit showing the case to be one of the kind above mentioned. The notice must be served at least five days, and one additional day for every twenty-five miles of distance of the place of examination from the residence of the person served, unless for cause the Court prescribes a shorter time. The witness may be cross-examuied, and after having his testi- mony carefully examined and read to him, he shall sign it ; and the officer taking the dei)Osition shall certify it up to the proper Court, enclosed in an envelope, and addressed to the clerk of the Court in which the action is pending, or to such person as the par- transmit through the mail ; and such de- ties may upon position may be used by either party on the trial. No objections to the form of an interrogatory at the trial will be heard, unless H.- li 190 UTAH. r'vt G. is made at the time of taking, if the party making the ohjection is in attendance at the taking. If a deposition be taken on account of the absence from the county, or intended absence, or because the witness is too iufinn to attend, before being used proof must be made by affidavit or oral testimony that the witness' disabiUty continues, to the best of affi- ant's knowledge. The deposition may be read in case of his death. Depositions once taken may be read in any stage of the cause by either party, and shall be deemed evidence of the party read- ing them. If a deposition be taken out of the Territory, it must be upon a commission issued by the Court, under its seal, upon five days' notice to the adverse party of the application for a commission, and shall be issued to a person to be agreed upon between tlic parties ; and, in case of disagreement, then to such person as the Court may appoint, or to a commissioner appointed l)y the Governor of this Territory to take affidavits and depositions in the IStates cr Territories. Such interrogatories, direct and cross, as the parties prepare, or, in case of disagreement, such as the Court sliall settle, shall be an- nexed to the commission. The cause shall not be continued on ac- ' count of the non-return of the commission and deposition, unless upon evidence satisfactory to the Court, that the testimony of the witness is necessary, and that proper diHgence has been used to ob- tain it. The statute also provides for the taking of testimony, and for its perpetuation, upon amplication to the Court, s'lowing that the appli- cant exjiects to be a party to an action in this Territory, and giv- ing the names of persons whom he expects will be adverse i)artie3; that the proof of some facts is necessary to perfect the title to property in which he is interested, or to establish a marriage, de- scent, heirship, or any other matter which it may hereafter become material to establish ; though no suit may at the time be anticipated. The names of the witnesses and the general outhiic of the facts ex- pected to be proven, to be stated. Affidavits or other proofs filed with the testimony shall 1)e prima facie evidence of the facts stated therein. No particular form of the certificate of the officer taking the deposition is prescribed by the statute. iT»!P"M«H«lj>(i^j.i"»l I. _sip»j|j|Pi,i,if»wiTl«H!i^.V' • M!JP'. ppi.iiii|!f«i"ljW!j^i^ii(^Hj«Hlfl;^ Chap. 15.] UTAH. 191 Chapter XY. JUDICIAL RECORDS, HOW PROVEN. A judicial record of this Territory, or of the United States, or,of any State or Territory of the United States, may be admitted in the Courts of this Territory by the attestation of the clei-k, with the seal of the Court annexed, together with the certificate of tlie judge, chief justice, or presiding magistrate, as the case may be, that said attestation is in due form. A judicial record of a foreign country may be proved by the production of a copy thereof, certified by the clerk, with the seal of the Court annexed, if there be a clerk and seal, to be a true copy of such record, together with a certificate of the judge of the Court that the person making the certificate is the clerk of the Court, or the legal keeper of the records ; and in either case, that the signature is genuine, and the certificate in due form ; together with the certificate of the minister or embassador of the United States, or of a consul of the United States, in such foreign country, that there is such a Court, specifying generally its jurisdiction, and verifying the signature of the judge and clerk, or other legal keeper of the record. A copy of the judicial record of a foreign country shall also be admissible in evidence, upon proof, first, that the copy offered has been compared by the witness with the original, and is an exact transcript of the whole of it ; and that sueh original was in the cus- tody of the clerk of the Court, or other legal keeper of the same ; and that the copy is duly attested by the 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 a record of a Court, by the signature of the legal keeper of the original. M a: m R t t^ *K Katm^OMl. ■Jfc.jfc,.».StJtlfc 192 UTAH. [Part 6. Chapter XYI. ACKNOWLEDGMENTS. I i ! Deeds, mortgages, powers of attorney, or other instruments affecting the title to real estate, must be acknowledged or proved before they can legally be placed ui)on record. The following is the form of the acknowledgment certificate : State or Territory of- ss. . County, On this day of A. D. 187 , personally appeared be- fore me , a notary public in and for said county, , ■who is personally known to me to be the person described in and ■who executed the foregoing instrument, who acknowledged to mo that he executed the same freely and voluntarily, and for the uses and purposes therein mentioned. In witness whereof, I have here- unto set my hand and official seal, on the day and year last above written. , [seal.] Notary Public. The following officers are authorized to take acknowledgments, and certify to them : If acknowledged or proven within this Territory, by some judge or clerk of a Court having a seal, or some notary public, or county recorder, or by a justice of the peace of the county where the con- veyance is executed, i:nd to be recorded. If acknowledged or proved out of this Territory, and within any State or Territory in the United States, by some judge or clerk of any Court of the United States, or of any State or Territory having a seal, or by a notary public, or by a commissioner appointed by the Governor of this Territory for that purpose. • If acknowledged or proved without the United States, by some judge or clerk of any Court of any State, Kingdom, or Empire having a seal, any notary public tin rein, or any minister, com- ■wm 9ft^mm9'i"in Chap. 17.] UTAH. 193 raissionor, or consul of the United States appointed to reside tliere- in. 8uch officers may take and certify such proofs or acknowledg- ments by their respective deputies, In the names of their prlncl[)alg. When granted by a judge or clerk, the certificate shall be under the seal of his Court. When granted by an officer who has an official seal, It shall be under such seal. By a justice of the peace, under his hand. Chaf^t.r XVII. PARTNERSHIPS. The statute provides how partners may bo summoned, and how judgments against partners may be rendered, but is thus brief and pointed. When two or more persons, associated in any business, transact such basiness in a common name, whether it comprises the names of such persons or not, the associates may be sued by such common name, the summons in such cases being served on one or more of the associates, but the judgment in such cases shall bind only the joint property of the associates. The private property of per- sons engaged in copartnership shall be held liable for the debts of the firm, only when the partnersliip property shall prove insuffi- cient to pay them. The assignment of a partner in trade to satisfy a creditor of tiie firm shall be deemed valid in law, but is not to bo construed to authorize the assignment of partnership effects to satisfy individual, claims of any of the parties. 18 ^isi f > 10^ UTAH. [Part 6. Chapter XYIII. MARRIED WOMEN. All property owned by either spouse before marriage, and that ac(iuired after marriage by gift, becjuest, devise, or descent, is the separate i roperty of that spouse by whom the same is owned or ac(piired ; and as such, may be held, owned and controlled, and trausfcrt'd and disposed of by the spouse so owning or acquiring it, witlmnt any limitation or restriction by reason of marriage. Either spouse may sue and be sued in law. No right of dower shall be allowed. Chapter XIX. CORPORATIONS. • Any number of persons, not less than six, one-third of whom be- ing residents of the Territory, may incorporate for purposes of manufacturing, mining, or conducting any commercial or other in- dustrial pursuit, or for constructing roads, ditches, colonization and improvements for lands, colleges, semiiuiries, churches, libraries, or any benevolent, charitable, christian or scientific associations, or for any rightful subject consistent with the Constitution of the United States, and the laws of the Territory. Stock may be subscribed and paid up in property. No individ- ual liiibility upon stockholders. The probate judge is the officiat- ing officer in effecting an incorporation. Chaps. 20, 21.] UTAH. 195 Chapter XX. CHATTEL MORTGAGES. We have no statute defining what property is the subject of chattel mortgage, but an action for the recovery of debts secured by a mortgage on cither real or personal property, or ooth, is pro- vided for l)y statute, giving power to the (Courts to render judg- ment, and make decree of foreclosure, and order of sale of the mortgaged property, in satisfaction of the debt, and providing for an ordinary j\idgment lien and execution for unpaid balance, alter sale of the mortgaged property. Chapter XXI. INTEREST AND USURY. ■ \ Ten per cent, per annum interest is allowed on dfebts due, where no contract as to interest exists. There is no usury statute, and parties are at liberty to contract for rates of interest without limit, and any agreed rate is collectable. 1 PI th of E di a tl d -^p|flff(Pipip^!K«SBn»"«.ii ■« -,|iiM«jH. mv, ■! ■>ii> Part VII. IDAHO TERRITORY. PREPARED i^^PRESSLY FOR THIS WORK BY JONAS W. BROWN, IDAHO CITY. I, 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 Court Has appellate jurisdiction in all civil cases where the amount in dispute exceeds in value one hundred dollars, and in all criminal cases tried in District Courts. Meets at Boise City annually, on the first Monday of January. District Courts Have original jurisdiction in all civil cases where the amount in dispute exceeds one hundred dollars, and in all criminal cases 198 IDAHO. [Part 7. prc-ecuted by indictment. Their appellate jurisdiction extends to hearing all cases on appeal from Probate Courts and Justices' Courts. They have exclusive jurisdiction in all equity cases, and in all cases involving the title to real estate. The terms of the District Courts are fixed annually for the sev- eral counties by the Supreme Court. The Probate Courts Have jurisdiction of all probate matters, same as in California. They have also concurrent juriodiction (by special act of Con- gress) with the District Courts in all civil actions, when the amount in controversy shall not exceed five hundred dollars, exclusive of interest ; and the same rules of practice govern in Probate Courts in civil cases as in the District Courts, except in the matter of appeals to the District Court. 1'he terras of the Probate Courts commence on the fourth Monday in each month. Justices' Courts Have jurisdiction in all civil actions where the sura or damages claimed do not exceed one hundred dollars, excepting matters where the boundaries of land are in dispute. These Courts are always open for business. Chapter II. COMMENCEMENT OF ACTIONS. Civil actions in the District Courts ami the Probate Courts shall be commenced by the filing of a complaint with the clerk of the Court in which the action is broudit ; Provided, that after the Chap. 3.] IDAHO. 199 filing of the complaint, a defendant in the action may appeal*, answer, or demur, whether the summons has been issued or not, and such appearance, answer, or demurrer be deemed a ^taiver of summons 'rhe clerk shall indorse on the complaint the day, month, and year the same is filed ; and at any time within one year after the filing of the same, the plaintiff may have a summons issued. The act defining jurisdiction of Probate Courts provides that the sum- mons may be issued at any time within six months from the filing of the complaint. In the District Court the defendant must answer in ten days, if served within the county in which the action is brought ; in twenty days, if served without the county, but \vithin the judicial district in which the action is- brought. In all other cases, thirty days. In the Probate Court, answer must be filed in ten days. Chapter III. PLACE OF TRIAL OF CIVIL ACTIONS. Actions for the following causes shall be tried in the county in which tlie subject of the action, or some part thereof, is situated, subject to the power of the Court to change the place of trial : 1. For the recoverv of real property, or of an estate or interest therein, or for the determination, in any form, of such right or in- terest, or for injuries to real property. 2. For the partition of '"al projierty. 3. For the foreclosui'e of a mortgage of real property ; provided, when such real property is situate partly in one county and partly in another, the plaintiff may select either of said counties, and tlie county so selected shall be the pr'>per county for the trial of such action. 200 IDAHO. [Part 7. Actions for the following causes shall be tried in. the county where the cause, or some part thereof, arose ; subject to the like power of the Court to chau'^e the place of trial : 1. For the recovery of a penalty or forfeiture imposed by a stat- iate, except that when it is imposed for an offense committed on a lake, river, or other stream of water situated in two or more coun- ties, the. action may be brou^';ht in any county bordering on such lake, river, or other stream, and opposite the place where the offense ■was committed. 2. Against a public officer, or person especially appointed to exe- ecute his duties, for an act done by him in virtue of his office, or against a person who, by his connnand, or in his aid, does anything touching the duties of such officer. In all other cases, the action shall be tried in the county in which the defendants, or any of tliem, may rc-ide at the commence- ment of the action; or if none of the defendants reside in this Ter- ritory, or, if residing in this Territory, the county in which they so reside be unknown to the plaintiff, the same may be tried in any county which the plaintiff may designate in his complaint ; and if any defendant or defendants may be about to depart from the Territory, such action may be tried in any county where either of the parties reside or may be found, or service be had ; subject, however, to the power of the Court to change the place of trial, as provided in the act. ill r '* I II CiiArxER lY. * LIMITATIONS OF CIVIL ACTIONS. Five Years : Real estate, including quartz mines or lodes, judgments or de- crees of any Court of tlie United States, or of any State or Terri- tory of the United States. Chap. 4.] IDAHO. 201 Four Years : • Any contract, obligation, or liability founded upon an instrument of writing. • Three Years : Trespass upon real property, taking, detaining or injuring goods or chattels or for the specitic recovery of personal property. Relief on ground of fraud. Two Years : Contract or liability not founded on an instrument of writing, in- cluding accounts. An action for libel or slander. One Year : Placer mining claims. General Provisions : An action upon any contract, obligation or liability for the pay- ment of money, founded upon an instrument of Avriting executed out of this Territory, or any other Territory from which this Terri- tory is in part formed, can only be commenced as follows : 1. Within one year, when more than two and less than five years have elapsed since the cause of action accrued. An action upon any judgment, contract, obligation or liability for the payment of money or damages, obtained, executed, or made out of this Territory, or any other Territory from which this Terri- tory is in part formed, shall only be commenced within three years after the party making such liabilities shall be a resident of this Territory. No acknowledgment of promise shall be sufficient evidence of a new continuing contract, whereby to take the case out of the oper- ation of the statute, unless the same be contained in some writing signed by the party to be charged thereby. 202 IDAHO. [Part 7. Chapter V. ATTACHMENTS. The plaintiff, at the time of issuing the summons, or at any time afterward, may have the property of the defendant attached as security for the satisfaction of any judgment that may he recovered, unless the defendant give security to pay such judgment, in the following cases : 1. In an action upon a contract, express or implied, for the di- rect payment of money, which contract is not secured by a mort- gage, lien, or pledge upon real or personal property ; or if so secured, that such security has, with ut any act of the plaintiff, or the person to whom the security was given, become valueless. 2. In an action upon a contract, express or implied, against a defendant not residing in this Territory. The clerk of the Court shall issue the writ of attachment upon receiving an affidavit by or on behalf of the plaintiff, which shall be filed, setting forth — 1. That the defendant is indebted to the plaintiff, specifying the amount of such indebtedness over and above all legal set-offs and counter-claims, upon a contract, express or implied, for the direct payment of money ; and that the payment of the same has not been secured by any mortgage, lien, or pledge upon real or [)ersonal property ; or, if so secured, that such security has, without any act of the plaintiff, or the person to whom the security was given, be- come valueless ; or, 2. That the defendant is indebted to the plaintiff, specifying the amount of the indebtedness as near as may be, over and above all legal set-offs and counter-claims, and that the defendant is a non- resident of the Territory ; and, 3. That the attachment is not sought, and the action is not prose- cuted, '.0 hinder, delay, or defraud any creditor or creditors of tho defendant. Chap. 6.] IDAHO. 203 Before issuing the Avrit, the clerk must require a written under- taking on the part of the plaintiff, in a sum not less than two hun dred dollars, and not exceeding the amount claimed by the plaintiff, with sufficient sureties, to the effect that if the defenoant recover judgment, ihe plaintiff will pay all costs that he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking, if the attachment be wrongfully issued. Chapter YI. ARREST l!f CIVIL ACTION. The defendant may be arrested, as hei'einafter provided, in the following cases : 1. In an action for the recovery of money or damages on a cause of action arising upon contract, express or implied, when the de- fendant is about to depart from the Territory, with intent to de- fraud his creditors ; or when the action is for willful injury to person, to character, or to property, knowing the property to beflong to another. 2. In "'^ action for a fine or penalty, or on a promise to marry, or for monoy or property embezzled, or fraudulently applied, or converted to his own use by a public officer, or an officer of a cor- poration, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for misconduct or neglect in office, or in a professional omploymont, or for a willful violation of duty. 3. In an action to recover the possession of personal property unjustly detained, when the property, or any part thereof, has been concealed, removed, or disposed of, to prevent its being found or taken by the sheriff. r ■li 204 IDAHO. [Part 7. 4. When the defendant has been guilty of fraud in contracting the debt or incurrin"; the oblii'ation for which the action is broimht, or in concealing or disposing of the property, for the taking, deten- tion, or conversion of which tlie action is brought. 5. When the defendant has removed or disposed of his. property, or is about to do so, with intent to defraud his creditors. To obtain an order of arrest, it must appear to the judge, by the affidavit of the plaintiff or some other person, that a sufficient cause of action exists, and that the case is one of those above mentioned. The affidavit irast be positive, or upon information and belief. Be- fore making an order, the judge must require a written undertak- ing on tlie part of })laintiff, with sureties in an amount to be fixed by the judge, which must be at least five hundred dollars. gSVi m n lb Chapter VII. JUDGMENTS AND JUDGMENT LIENS. ■i a ''K' I. In an action on a contract or obligation, in writing, for the direct payment of money, made payable in a specified kind of money or currency, judgment for the plaintiff may follow the contract or obli- gation, and be made payable in the kind of money or currency specified therein. From the time the judgment is docketed it becomes a lien upon all the real property of the judgment debtor, not exem[)t from exe- cution in the jounty, owned by him at the time, or which he may afterwards acquire, until the lien expires. The lien continues for two years. A transcript of the original docket, certified by the clerk, and filed with the recorder of any other v^ounty, becomes a lien on the property of the judgment debtor in such county, and continues for two years. fing Chap. 8.] IDAHO. 205 A transcript of a judgment of a Probate Court, filed and dock- eted in the office of the district clerk, becomes a lien upon the real estate of the judgment debtor for two years from date of filing and docketing. A transcript of a judgment of a justice of the peace becomes a lien upon real estate by being filed and recorded in the county re- corder's office. By filing and docketing same in district clerk's office, the clerk may issue execution to any other county in the Ter- ritory. Chapter VIII. EXECUTIONS, EXEMPTIONS, SALE AND REDEMP- TION. A writ of execution to enforce the judgment may be issued at any time within five years after the entry thereof. In all cases other than for the recovery of money, the judgment may be en- forced or carried into execution after the lapse of five years from the date of its entry, by leave of the Court, upon motion or by judgment for that purpose, founded upon supplemental pleadings. Exemptions from Execution. 1. Chairs, tables, desks and books, to the value of one hundred dollars, belonging to the judgment debtor. 2. Necessary household, table and kitchen furniture belonging to the judgment debtor, including stove, stovepipe, and stove furni- ture of whatever kind, wearing apparel, beds, bedding and bed- steads, and provisions actually provided for individual or family use sufficient for three months. 3. The farming utensils or implements of husbandry of the 206 IDAHO. [Part 7. judgment debtor ; also, two oxen, or two horses, or two mules, and their harness; two cows, one cart or wagon, and food for such oxen, horses, cows or mules for three months ; also, all seed grain or vegetables actually provided, reserved, or on hand for the pur- pose of planting or sowing at any time within the ensuing six months, not exceeding in value the sura of two hundred dollars ; the tools . and implements of a mechanic necessary to carry on his trade ; the instruments and chests of a surgeon, physician, surveyor, and dentist necessary to the exercise of their profession, with the professional library, and the law libraries of an attorney and counsellor ; also, the wardrobe and books of an actor, 4. The tents and furniture, including a table, camp stools, bed and bedding of a miner ; also his rocker, shovels, spades, wheel- barrows, pumps, and other instruments used in mining, with provis- ions necessary for his support for three months. 5. Two oxen, two horses, or two mules, and their harness, and one cart or wagon, by the use of which a cartman, teamster, or other laborer habitually earns his living, and the food for such oxen, horses, or mules, for three months ; and a horse used by a physician in making his professional visits. 6. All fire engines, with carts, buckets, hose, and apparatus thereto appertaining, of any fire company or department organized under any law of this Territory. 7. All arms and accoutrements required by law to be kept by any person. 8. All court-houses, jails, public offices and buildings, lots, ground and personal property, the fixtures, furniture, books, papers, and appurtenances belonging to any county in this Terri- tory ; and all cemeteries, public S([uares, parks and public buildings, town halls, markets, buildings anpertaining to the fire departments, and the lots and grounds thereto belonging and appertaining, owned or held by any town or incorporated city, or dedicated by such town or city to health, ornament, or public use. No article above mentioned shall be exempt from execution issued upon a judgment recovered for its price, or upon a mort- gage thereon. Chap. 8.] IDAHO. 207 Sale of Property Under Execution. In case of perishable property, by posting written notices of the time and place of sale in three public places of the precinct, for a reasonable time, considering the condition of property. In case of other personal property, by posting similar notices in three public places of the precinct, township or city where the sale is to take place, not less than five, nor more than ten days successively. In case of real property, by posting similar notices, particularly des- cribing the property, for twenty days successi\'ely, in three public places of the precinct, township, or city where the property is situated, and also where the property is to be sold, and publishing a copy thereof once a week for the same period in some newspaper published in the county, if there be one. All sales of property under execution shall be made at auction to the highest bidder, and shall be made between the hours of nine in the morning and five in the afternoon. Redemption. Real estate sold on execution under a judgment may be redeem- ed within six months from the date of the sale, either by the judg- ment debtor or his successor in interest in the whole or any part of the property, or by a creditor having a lien by judgment or mort- gage on the property sold, by paying to the purchaser the amount of his purchase with eighteen per cent, thereon in addition. The pur- chaser is entitled to the rents, issues, and profits. Sale upon foreclosure of mortgage held to be final. No re- demption. m 1 i 208 IDAHO. [Part 7. Chapter IX. PROCEEDINGS SUPPLEMENTARY TO EXECUTION. After return of execution unsatisfied, the judgment debtor may be recjuircd to answer concerning his property. A judgment debtor unjustly refusing to apply property which he has to the satisfaction of a judgment against him, may be required to appear and answer concerning the same. After the issuing or return of execution, or upon proof by affidavit or otherwise, to the satisfaction of the judge, that any person or corporation has property of judgment debtor, or is in- debted to him in an amount exceeding fifty dollars, such person or corporation may be re([uired to appear and answer concerning same. Chapter X. SECURITY FOR COSTS. \Yhen the plaintiff in ait action residos'out of the Territory, or is a foreign corporation, security for costs and charges that may be awarded against such plaintiff may be required by the defendant. When re(pured, all proceedings shall be stayed until an undertak- ing, as required, be filed to pay all costs, not exceeding the sura of three hundred dollars, with two sureties. If such security be not given within thirty days from the service of notice that security is required, the Court may order the action dismissed. cc pi Chai). 11.] IDAHO, 200 Chapter XI. APPEALS IN GENERAL. An appeal may bo taken : 1. From a final judgment in an action or special proceeding, commenced in the Court in which the judgment is rendered, within one year after the entry of judgment. But an exception to the decision or verdict, on the ground that it is not supported by the evidence, cannot be reviewed on appeal from the judgment, unless the appeal is taken within sixty days, after the rendition of the judgment. 2. From a judgment rendered by a Probate or Justice's Courfc, within twenty-one days from the entry of judgment. 3. From an order granting or refusing a new trial ; from an order granting or dissjlving an injunction ; from an order refusin'-^ to grant or dissolve an injunction ; from an order dissolving 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 final judgment, and from an interlocutory judg- ment in actions for partition of real property, within thirty days after the order or interlocutory judgment is made and entered in the minutes of the Court, or fded with the clerk. Li the District Court, an undertaking must be filed on the part of the appellant by at least two sureties, to the effect that the appellant will pay all the damages and costs, not exceeding three hundred dollars : or that sum must be deposited with the clerk. If a stay of proceedings is desired, an undertaking m double the amount of the judgment and costs must be filed. In tiie Probate and Justices' Courts, appeals are allowed in all cases where the demand, exclusive of interest, or the value of the property in controversy, amounts to twenty-five dollars. Appeals in Probate and Justices' Courts must be taken in twenty days from the rendition of the judgment. 14 210 IDAHO. [Part 7. Chapter XII. HOMESTEADS. The homestoad c ngisiin^ of a qnantity of land, together with the dwelling hoiido thereon and its apimrtenances, not exceeding in value the sum of fi\o thousand dollars, to bo selected hy the husband and wife, or either of them, or other head of a family, shall not be subject to forced sale in execution, or any final i)roce83 from any Court. The person or persons claiming a homestead shall do so by writ- ten declaration, setting forth that they, or cither of them, are mar- ried, or if not married, that he or she is the head of a family ; that they or either of them, as the case may be, are, at the time of making such declaration, residing with their family, or nith the person under their care and maintenance, on tho premises, particu- larly describing said premises, and it is their intention to use and claim the same as a homestead, which declaration shall be signed by the party making the same, and acknowledged and recorded in the office of the county recorder. Such exemption shall not extend to any mechanic's, laborer's or vendor's lien, lawfully obtained, nor to a mortgage or alienation to secure the purchase money or pay the purchase money, if the signature of the wife be obtained to the same, and acknowledged by her separate and apart from her hus- band. Chapter XIII. ESTATES OF DECEASED PERSONS. Every executor or administrator shall, immediately after his ap- pointment, cause to be published in some newspaper published in •^^rwr^^t^ CIiiip. 18.] IDAHO. 211 signed the comity — if tlioro ho ono ; if not, then in such newspnyior as may he designated hy the Court — n notice to the creditors of the deceased re(|ninng all [icnsona having claims against the deceased to oxliiliit tlicai, with the necessary vouchers, within ten months after the first puldication of the notice to such executor or adminis- trator, at the j)lacc of his residence or transaction of husiness, to ho specified in the notice. If a claim bo not presented within ten montlis — tude.«3 the value of the estate docs not exceed fifteen hundred dollars ; in which case notice to creditors shall he given to present their claims within four montlis — after the first piihlication of the notice, it shall he harred forever: pnundtd, if it be not then due, or if it he contingent, it may be ytrescnted within ten months after it shall become due or ahsdluto : and providi'd further, that when it shall be made to apfiear by the affidavit of the claimant, to the satisfaction oi" the executor or administrator and the jirohate judge, liat the claimant had no notice. ■< provided in this act, by reason of absence from this Territory, it may be presented at any time before a decree of distribution is entered. Every claim presented to the administrator shall be supported by the affidavit of the claimant that the amount is justly due, that no payments lu^vo been made thereon, and that there are no off-sets to the same to the knowledge of the claimant or affiunt : providfdi that when the affidavit is made by any other person than the claim- ant, he shall set forth in the affidavit the reason it is not made by the claimant. The oath may be taken before any officer author- ized to admhiistcr oaths. (If the claimant is a non-resident, the affidavit must be made before a judge or clerk of a Court having a seal, or a commissioner for T^aho Territory.) The executor or ad- ministi-ator shall also reriuirc satisfactory vou'ihers or proofs to be produced in support of the claim. The amount of interest shall be computed and included in the statement of the claim, and the rate of interest determined ; pro- vid(d, that no claim which shall have been due and payable thu'ty days prior to the death of the deceased shall bear greater interest than ten per cent, per annum from and after the time of issuing letters. 212 IDAHO. [Part 7. When a claim, accompanied by the affidavit required, has been presented to the executor or administrator he shall endorse thereon his alloAvance or rejection, ■with the day and date thereof. If he allow the claim, it shall be presented to the judge for his approval, ■who shall in the same manner endorse u|)on it his allowance or re- jection. If the executor or administrator, or the judge, refuse or neglect to endorse such allowance or rejection for ten days after the claim shall have been presented to him, such refusal or neglect shall he deemed a rejection ; if allowed and approved, it must be filed in the Probate Court within thirty days. If the claim be founded oii a boml, bill, note, or other instrument, the original instrument shall be presented, and the allowance and approval, or rejection, shall be endorsed thereon or attached thereto. If iho claim, or any part thereof, be secured by a mortgage or other lieUj such mortgage or evidence of lien shall be attached to the claim and filed therewith, unless the same be recorded in the office of the recorder of the county in which the land lies ; in which case it shall be sufficient to describe the mortgage or lien, and refer to the date, volume and page of its record. In all cases the claimant m-iy withdraw his claim from file on leaving a certified copy, with a receipt endorsed thereon, by him- self or bis agent. If the original instrument be lost or destroyed, then, in lieu thereof, the clainiant shall be required to file his affi- davit particularly desci-i'Mng such instrument, and stating the loss or destruction thereof. When a claim is rejected, either by the executor or administra- tor or probate judge, the holder shall bring suit in the proper Court against the executor or administrator, within three months after the date of its rejection, if it be then due, or within three months after it becomes due, otherwise the claim shall be forever barred. No claim shall be allowed which is barred by the statute of limi- tations. Tlie executor, administrator or probate judge may allow a claim in part, and if the chiimaut fail to recover a greater sum he is al- lowed no costs. The debts of the estate are paid in the following order : 1. Funeral expenses. , Chap. 14.] IDAHO. 218 2. Tlie expenses cf the last sickness. 3. Debts having preference by the laws of the United States. 4. Jiidgmcnts rendered against the deceased in his lifetime, and mortgages in the order of their date. • o. All other demands against the estate. The mortgages in preference extend only to tlie proceeds of the property mortgaged; any deficiency must be classified and [laid un- der the fifth head. Executors and admiiiistrators should make a settlement of the estate at the expiration of one year; except where the value of the estate does not exceed fifteen hundred dollars, the Court may order the estate settled in six months. Chapter XIY. DEPOSITIONS. The deposition of a witness in this Territory, who is a party to the action or proceeding ; or who resides out of the county, or is about to leave the county where the action is to be tried ; or is too infirm tc attend the trial ; or when the testimony is required upon a motion, or in any otlier case where the oral examination of the witness is not required, may be taken by either party, before any judge or clerk, or any justice of the peace, or notary public in this Territory, on serving upon the adverse party previous notice of the time and place of the examination, together with a copy of an athdavit, showing that the case is one of the above mentioned. Such noti'^e sluiU be at least five days, and in addition one day for every twenty-five miles of the distance of the place of examination from the residence of the iierson to whom the notice is >:iven. un- less a shorter time is prescribed by the judge. 214 IDAHO. [Part 7. The deposition of a witness out of tliis Territory may be talcen upon commission issued from the Court, under tV ' seal of tlie Court, upon an order of the judge or Court, or probate judge, on the application of either party, upon five days' notice to the other. If issued to any place within the United States, it may be directed to a person agreed upon by the parties, or if they do not agree, to any judge or justice of the peace, or commissioner selected by the officer issuing it. If issued to any country out of the United States, it may be di- rected to a minister, ambassador, consul, vice consul, or consular agent of the United States in such country, or to any person agreed on by the parties. The commission shall autliorizo the commissioner to administer an oath to witness, and to take his deposition in answer to the in- terrogatories ; or when the cxauiiuation is to be made without in- terrogatories, in respect to the matter in dis|)ute ; and to certify the deposition to the Court, in a sealed envelope, directed to the clerk or other person desiguated or agreed upon, and forward ';o him by mail or other usual channel of conveyance. Chapter XV. JUDICIAL RECORDS. A judicial record of this Territory or of the United States may be proved by the production of the original or copy thereof, certi- fied by the clerk, or other person having the legal custody thereof, under the seal of the Court, to be a true copy of such record. The records or judicial proceedings of the Courts of any State of the United States may ho jirovcd or admitted in the Courts of this Territory, by the attestation of the clerk and the seal of the Chap. 16.] IDAHO. 215 Court annexed, (if there be a seal) together with the certificate of the judge, chief justice or presiding magistrate, as the case may be, that the attestation is in due form. A seal of a Court or public officer, when required, may be im- pressed with wax, wafer or any other substance, and then attached to the instrument or document ; or it may be impressed on the pa- per alone. Chapter XYI. ACKNOWLEDGMENTS. Acknowledgments are required in all conveyances affecting real estate. The same certificate required as in California. May be taken by : 1. If acknowledged or proved within this Territory, by some judge or clerk of a Court having a seal, or some notary public, re- corder or justice of the peace of the proper county. 2. If acknowledged or proved without this Territory, and within the United States, by some judge or clerk of any Court of the United States, or of any State or Territory Laving a seal, or by any commissioner appointed by the Governor of this Territory. 3. If acknowledged or proved witliout the United States, by some judge or clerk of any Court, (having a seal) of any State, Kingdom or Empire, or by a notary public therein, or by any min- ister, commissioner, or consul of the United States appointed to reside therein. The act concerning conveyances of real estate, or any interest therein, and mortgages, is the same as in California. Mi 216 IDAHO. [Part 7. Chapter XYII. LIMITED PARTNERSHIPS. Limited pavtncrsliips for the transaction of mercantile, mecliani- cal, mining or raaunfacturing business may l)e formed, but not for the purpose of banking or insurance. No such partnership shall be deemed to have been formed until a certificate which shall contain the name or firm under which said partnership is to be conducted, the names and respective [)!ace3 of residence of all the general and special [jartners, distinguishing who are general, and who are special partners, the amount of capi- tal which each special partner has contributed to the capital stock, the general nature of the business to be transacted, the time when the partnership is to commence and terminate, shall be made and severally signed and acknowledged by ail the partners, before an officer authorized to take acknowledgment of deeds, and recorded in the office of the recorder of tlie county in which the [)rincipal place of business of the partnership is located. If there shall be a place of business in difFercnt counties, said certificate shall be re- corded in each of such counties ; a copy of such certificate shall be published three successive weeks in the comity where the principal place of business is located. Any fiilse statement in the certificate makes all the partners Ha- ble as general partners. The special partners shall not be personally liable for any debts of the partnership, except their names be used in said firm with their consent or privity, or shall [)ersonally make any contract re- specting the concerns of the partnership with any person except the general partner. Chap. 18.] IDAHO. 217 Chapter XVIII. MARRIED WOMEN. All property both real and personal, of the wife before marriage, and that acquired afterwards, by gift, bequest, devise or descent, is her separate property, and all the husband's is his separate prop- erty. All other property acquired after marriage is common prop- erty. The wife is required to make, sign, acknowledge, and have re- corded a complete inventory of her separate property, in the office of the recorder of the county wliere the property is situated. The husband has the management and control of the wife's separate property during marriage, but cannot a'' jnate or create a lien or inciuiibrance on the same, except by instrument signed and ac- knowledged by both husband and wile. The District Court may, on application of the wife, appoint a trustee to take charge of and manage her separate property, if the husband mismanages it or commits waste. The husband has entire control of common property and his own separate property, and the rents and profits of all the separate pro[)crty of both husband and wife are deemed common pro{)erty, unless expressly provided in the instrument or devise to the con- trary. Upon dissolution of tlio community by death, half of the common property goes to the survivor and half to the descendants, if there are any ; if not, all to the survivor. Upon dissolution by decree of Court, the common property must be equally divided, unless the decree is granted on the groinid of adultery or extreme cruelty, when the division of the same is left to the discretion of the Court granting the decree. The separate property of the husband is not liable for the debta of the wife contracted before marriage, but the separate property of the wife is liable for all such debts. i it ■3 li 218 IDAHO. [Part 7. Chapter XIX. CORPORATIONS. There is a general law for the formation of corporations, by which three or more persons may form a corporation by filing a certificate in writing with the cleric of the District Court of the district in which the principal place of business of the corporation is intended to be located, and a certified copy of the same, under the hand of the clerk and the seal of the Court, in the olfice of the secretary of the Territory. 8aid certificate must state tlie cor- porate name of the company, the object for which it is formed, amount of capital stock, term of existence, (not to exceed fifty years) num- ber of shares, number of trustees and their names who shall man- age the concerns of the corporation for the first three months, and principal place of business. The total amount of the debts of the corporation shall not, at any time, exceed the amount of the capital stock actually paid in ; and in case of any excess, the trustees under whose administration the same may have happened, except those who have caused their dissent therefrom to be entered at large on the minutes of the board of trustees at the time, and except those not present at the time when the same did happen, shall, in their individual and pri- vate capacities, be liable jointly and severally to the said corpora- tion, and in the event of its dissolution, to any of the creditors thereof, for the full amount of such excess. Each stockholder shall be individually and personally liable for his proportion of all the debt^ and liabilities of the corporation, contracted or incurred dr.ring the time that he was a stockholder, for the recovery of which joint or several actions may be instituted ; and when a judgment in such action shall be recovered against joint stockholders, the Court on the trial thereof shall apportion the amount of the liability of each, and in the execution thereof no stockholder shall be liable beyond his proportion so ascertained. Chaps. 20, 21.] IDAHO. 219 H Chapter XX. CHATTEL MORTGAGES May be given upon all kinds of personal property. To be valid against subsequent incumbrancers, or purchasers in good faith, for a valuable consideration, the mortgage must show the residence, and the profession, trade or occui)ation of both the mortgagor and mortgagee, and each of the i)arties must make affidavit thereto, that the mortgage is made in good faith, and without any design to hinder, delay or defraud creditors. When so made and recorded in the office of the recorder of deeds, such mortgage is good against all persons. Chapter XXI. INTEREST AND USURY. Ten per cent, per annum is the legal rate of interest. Parties may agree in writing for any rate of interest not exceeding two per cent, per month, but any judgment rendered upon such con- tract bears only ten per cent, per annum. The penalty for a greater rate than above specified is th: ee times the amount so paid, and the person receiving a greater rate than two per cent, per month is lia- ble to a fine of tliroo hundred dollars, or six months' imprisonment, or both. Interest does not commence to run on open accounts un- til a balance is struck and agreed to, or a settlement is had. 220 IDAHO. [Part 7. Chapter XXII. ■ AFFIDAVITS. An affidavit to be used before any Court, judge or officer of tliig Territory may be taken before any judge or clerk of any Court, or any justice of the peace or notary public in this Territory. An affidavit taken in another State or Territory of the United States, to be used in this Territory, shall be taken before a coni- missicncr appointed by the Governor of this Territory to take affi- davits and depositions in such other State or Territory, or before, the judge of a Court of record having a seal. An affidavit taken in a foreign country, to be used in this Territory, sliall be taken before an ambassador, minister, or consid of the United States, or before any judge of a Court of record having a seal in such for- eign country, or before a commsssioner of deeds appointed by the governor. When an affidavit is taken before a judge of a Court in another State or Territory, or a foreign country, the genuineness of the signature of the judge, the existence of the Court, and f'e fact that such judge is a member thereof, shall be certified by the cleric of the Court under the seal thereof. Chapter XXIII. SOLE TRADERS. A married woman may become a solo trader by the judgment of the Probate Court of the county in which she has resided for six months next preceding the application. i Chap. 23.] IDAHO. 221 A person iiitontling to malcc ap[)lication to become a sole trader must piblisli ni)tioe of such intention in a newspaper published in the county, or if there be none, then in a newspaper published in an adjoining county, for four successive weeks. The notice must specify the term and the day upon which appli- cation will be made, the nature and place of the business proposed to be conducted by her, and the name of her husband. 'J'cn days prior to the day named in the notice, the applicant must file a verified petition, setting forth : 1. That the application is made in good faith, to enable the ap- plicant to support herself, and others dependent upon her, giving their names and relation. 2. The fact of insullicient support from her husband, and the causes thereof, if known. 8. Any other grounds for application, which are good causes for a divorce, with the reason why a divorce is not sought ; and, 4. The nature of the business proposed to be conducted, and the capital to be invested therein, if any, and the sources from which it is derived. The applicant may invest in the business proposed to be conduct- ed a sum derived from the community pro|)erty or of the separate property of the husband, not exceeding five hundred dollars. Any creditor of the husband may oppose the application by fil- ing in the Court (prior to the day named in the notice) a written opposition, verified, containing either: 1. A specific denial of the truth of any material allegation of the petition, or setting forth — 2. That the a^jplication is made for the purpose of defrauding the opponent ; or, 3. That the ap[)lication is made to prevent, or will prevent him from collecting his debt. Issues of fact must be tried as in other cases. If the facts found sustain the petition, the Court must render judgment, authorizing the ajiplicant to carry on in her own name and on her own account, the business specified in the notice and petition. The sole trader nnist make and file with the clerk of the Court an affidavit, in the following form : ii'i 222 IDAHO. [Part 7. " I, A B, do, in presence of Almighty God, solemnly swear that this application was made in good faith, for tlie purpose of enabling me to support myself, (and any dependent, such as hus- band, parent, sister, child, or the like, naming them, if any) and not with any view to defraud, delay or hinder any creditor or cred- itors of my husband ; and that, of the moneys so to be used by me in business, not over five hundred dollars have come, either di- rectly or indirectly, from my husband ; so help me God." A certified copy of the decree, with this oath endorsed thereon, must be recorded in the office of the recorder of the county where the business is to be carried on. A married woman who is adjudged a sole trader is responsible and liable for the maintenance of her minor children. The husband of a sole trader is not liable for any debt contract- ed by her in the course of her sole trader's business, unless con- tracted upon his written consent. Part VIII. WYOMING TERRITORY. PREPARED EXPRESSLY FOR THIS WORK BY E. P. JOHNSON, CHEYENNE. Chapter I. COURTS AND THEIR JURISDICTION. Tlie Courts provided for this Territory are a Supreme Court, District Courts, Probate Courts, and Justices of the l*eace. The Supreme Court has no original jurisdiction, except in ha- beas corpus cases. It exercises an appellate jurisdiction, princi- pally in cases coming up from the District Courts. The District Courts have chancery and common law jurisdiction, and jurisdiction in appeals from the Justice and Probate Courts. The Probate Court has no jurisdiction, except over probate busi- ness proper. The Justices of the Peace have no jurisdiction of any matter in controversy where the title or boundaries of land may be in dispute, or where the debt or sum claimed shall excoed one hundred dollars. Hi 224 WYOMIN'O. [Part 8. ClIArTEIl II. TEIIMS OF COURTS, WHEN AND WHERE HELD. The Territory is divided into throe judicial districts. Laramie county composes tlio first ; All)any and Carbon the second ; Sweet- water and Uinta the third. Terms of Court are held in each, as follows : At Cheyenne, commencing on the fourth Monday of May and first Monday of November of each year. At Laramie, commencing on the first Monday of February and August of each year. At Rawlins, commencing on the first Monday of April and sec- ond Monday of September of each year. At Areen River, on the first Monday of May and October of each year. At Evanston, commencing on tlie first Monday of January and July of each year. Chapter IJT. COMMENCEMENT OF ACTIONS, TIME TO ANSWER, PLACE OF TRIAL. Actions are commenced by filing in the office of the clerk of the proper Court a petition, and causing a summons thereon to be is- sued. The summons is returnable on the second Monday after the day of its date, and the answer or demurrer of the defendant shall be filed on or before the third Saturday after the return day of the summons. ^ .1 exceeding in value $50. Tb' toi . team, and im[ilements, or stock in trade of any met a; ' \ ^f;;t"}r or other jierson, used and ke[)t for the purpose of Carry. ..^ ^ hu'. trade or business, not exceeding in value $300. Also the i' 'V y, instri"- "nts and implements of any professional man, not exceeding in value $300. There is no exerajttion in favor of a person not an actual resident of the Territory, nor one about to remove or abscond therefrom. And no article of property is exempt from attachment or sale, upon execution for the purchase money of said article of property. mi- 230 WYOMING. [Part 8. Chapter IX. PROCEEDINGS IN AID OF EXECUTIONS. Proceedings in ai t f executions may be had, in wliicli tlio debtor may be cxamiii < compelled to disclose and appropriate to the payment of the ju > 'int any property which he may have unjustly refused to apply to that purpose. A receiver may be apyiointcd to take and dispose of such proi> erty of the judgment debtor that may be unearthed on examination, either legal or equitable, and appropriate the proceeds to the pay- riierit of the judgment. Chapter X. SECURITY FOR COSTS. In all cases in whicli the plaintiff is a resident of the county in ■which the action is brought, he must furnish security far costs be- fore commencing such action. Chaps. 11, 12.] WYOMING. 231 Chapter XI. APPEALS. In actions at law, final judgments and orders may be reviewed on writ of error, or petition in error sued out any time within three years after rendition. In chancery cases, review may be had by appeal, if the appeal is perfected within thirty days after the decree comi)lained of. Where the judgment or decree souglit to be reviewed is for the payment of money, security must be given in double the amount of the decree or judgment. In other cases the amount of security is fixed by the Court. Chapter XII. ESTATES OF DECEASED PERSONS. Estates of deceased persons are settled in the Probate Courts through the usual moans of executors and administrators. Claims against the estate must be presented within one year after the granting of letters testamentary or of administration, and if not so presented, are forevei barred. Every executor and administrator must exhibit a statement of the accounts of his administration for settlement, with i>roper vouchers, to the Probate Court, at its first term after the end of six months from the date of his letters, and at the corresponding term of Court every six months until administration be completed. ' a 232 WYOMING. [I'art 8. Chapter XIII. DESCENTS AND DISTRIBUTION OF PROPERTY. 1. Whenever any person having title to any real estate, or prop- erty having the nature or legal character of real estate, or |)ersonal estate undisposed or otherwise limited by marriage settlement, shall die intestate as to such estate, it shall descend and be distributed in parcenary to his kindred, male and female, subject to the pay- ment of his debts, in the following course and manner, n.'imoly : If such intestate leave a husband or wife and children, or the de- scendants of any children, him or her surviving, one-half of such estate sliall descend to such surviving husband or wife, and the resi- due thereof to such surviving children and descendants of children as hereinafter limited ; if such intestate leave a husband or wife and no child nor descendants of any child, then the real and per- sonal estate of such intesWuo shall descend as follows, to wit : Three-fourths thereof to such s\irviving husband or wife, aud one- fourth thereof to the father and mother of the intestate, or the sur- vivor of them. Provided, That if the estate of such intestate, real and personal, does not exceed in value the sura of ten thousand dollars, then the whole thereof shall descend to and vest in the surviving husband or wife as his or her absolute estate, sul)ject to the payment of debts as aforesaid. Dower and the tenancy l)y the courtesy are abolished, and neither husband nor wife shall have any share in the estate of the other save as herein provided. Ex- cept in cases above enumerated, the estate of any intestate shall descend and be distributed as follows : First. — To his children surviving, and the descendants of his children who are dead, (the descendants collectively taking the share their parent would have taken if living). Second. — If there be no children nor their descendants, then to his father, mother, brothers and sisters, and to the descendants of brothers and sisters who are dead, (the descendant? collectively tak- Chap. 13.] WYOMING. 233 ing the share their parent would have taker if living) in equal parts. Third. — If there be no children nor their descendants, nor fa- ther, mother, brothers, sisters, nor descendants of deceased l)rothers or sisters, nor husband nor wife living, then to the grandfather, grandmother, uncles, aunts and their descendants, (the descend- ants taking collectively the shai-e of their immediate ancestors) in equal parts. 2. All posthumous children or descendants of the intestate shall inherit in like manner as if born in the lifetime of the intestate ; but no right of inheritance shall accrue to any person other than the children or descendants of the intestate, unless they are in be- ing, and capable in law of taking as heirs at the time of the intes- .tate's death. 3. Children, and descendants of children of the half-blood, shall inherit the same as children and descendants of the whole blood, but collateral relations of the half-blood shall 'nherit only half the measure of collateral relatives of the whole blood, if there be any of the last named class living. 4. Where any of the children of the intestate shall have re- ceived in his lifetime any real or personal estate, by way of ad- vancement, and the other heirs desire it to be charged to him, the probate judge shall cite the parties to appear before him, shall hear proof upon the subject, and shall determine the amount of such ad- vancement or advancements to be thus charged. 5. The maintenance, education or supply of money to a child under the age of majority, without any view to apportion or settle- ment in life, shall not be deemed an advancement under section four. 6. The alienage of the descendants shall not invalidate any title to real estate which shall descend from him or her. 7. Illegitimate children shall inherit the same as those born in wedlock, if the parents subsequently intermarry, and such children be recognized after such intermarriage by the father to be his. Illegitimate children inherit from the mother, and the mother from the children. 8. Divorcer of husband and wife shall not affect the right of children personally together, to inherit their property. m i 234 WYOMING. [Part 8. ill: 9. Probate jiulges and administrators of the estates of persons dying intestate within tliis Torritor}', shall apportion and distribute estates of intestates according to this Act. 10. The rule of descent of all property of whatsoever kind or nature, real or personal, of any bastard or illegitimate ])crson, dy- ing intestate in this Territory, and leaving property and effects therein, shall be as follows, to wit : On the death of any such per- son intestate, his or lier property, estate and effects shall descend to and vest in the widow, or the surviving husband and children, as the property and effects of other persons in like cases. In case of the death of any such illegitimate person leaving no children, or de- scendants of a child or children, then the whole property and estate, rights, credits and effects shall descend to and vest in the widow or Surviving husband. In case of any such illegitimate person leaving no widow, surviving husband, or descendants, then the property and estate of such person shall descend to and vest in the mother and her children, and their descendants : to the mother one-half, and the other half to be e(iually divided between her children and their descendants, the descendants of a child taking the share of their deceased parent or ancestors. In case of the death of any such illegitimate person leaving no heirs as above provided, then the property and effects, of whatsoever kind or nature, shall pass to and vest in the next of kin to the mother of such illegitimate person, in the same manner as the estate of a legitimate person would, by law, pass to the next of kin. 11. If any decedent leaves a widow residing in this Territory, in all cases she shall be allowed to have and retain as her sole and separate pro[)erty one bed and t)edding, wearing apparel for herself and family, two cows, her saddle and bridle, one horse, hoiisehold furniture for herself and family, and also the same amount and spe- cies of i)roperty, real and personal, as is or may be by law exempt from execution. Said property shall be retained by the widow, and set apart to her by the executor or administrator, and shall in no case be subject to the payment of debts of the deceased. 12. When an inventory shall have been made of the personal es- tate of any testator or intestate, the widow may reliniiuish her right to all of the specified articles of property allowed to her by Chap. 14.] WYOMING. 235 the preceding section ; or in case the intestate shall not leave any or all of the articles specified, in either case she shall be entitled to other property, or the value of the same in money ; and it shall be the duty of the administrator or Court of probate to allow the value of the articles specified by law to be set apart to the widow of any intestate, to be allowed her in money, or other personal property, at her election. 13. The right of a widow to her separate property shall in no case be affected by her renouncing, or failing to renounce, the bene- fit of the provisions made for her in the will of her husband, or other- wise. Chapter XIV/ DEPOSITIONS. No person is disqualified as a witness by reason of his interest in the event of suit. De[)ositions may be taken as soon as a case is commenced, and may be used when the witness does not reside in the bounty where the action is pending, or is absent therefrom ; or when from age or infirmity or imprisonment of the witness he is unable to attend Court, or is dead ; or when in any case oral examination is not rc(iuired ; or in cases of appeal from Justices' Courts. They may be taken in or out of the Territory, before a justice of the peace, chancellor, or judge of any Court of record, notary public, mayor, or chief magistrate of any city or town corporate, a commissioner appointed by the Governor of the Territory, or any person authorized by special commission from the Territory. They may be taken in narrative form or by questions and answers, except in chancery cases, in which they must be taken on interrogatories and cross-interrogatories, settled before issuing the llf 236 WYOMING, [Part 8. conunission. In law casos tlicv may bo taken on notice or com- mission issued by the clerk of the Court. fil % t' Chapter XV. JUDICIAL RECORDS. The judicial records of another State must be proven in accord- ance with the provisions of the Act of Congress, e.\ce[)t judgments of justices of the peace, whose proceedings may be autiicnticated by his own certificate, supported by the official certificate of the clerk of any Court of record in the county in which such justice resides, that his signature is genuine, and that he is an acting justice of the peace of that county. Chapter XVI. ACKNOWLEDGMENTS. Deeds or mortgages, executed within this Territory, of lands or any interest in lands, shall be executed in the presence of two witnesses, who shall subscribe their names to the same as such ; and the person executing such deeds or mortgages may acknowledge the execution thereof before any judge or commissioner of a Court of record, or before any notary public or justice of the peace Chiip. 17.] WYOMING!. 287 witliin the Territory ; and tlic officer takln;^ 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. In the cases provided for in the last preceding section, unless the acknowledgment be taken before a commissioner appointed by the Governor of this Territory for that purpose, such deed or mortgage shall have attached thereto a certificate of the clerk or other proper certifying officer of the Court of record of the county or 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 subscribed thereto to be genuine, and that the deed or mortgage is executed and acknowledged according to the laws of such State, Territory, or District. Chapter XVII. LIMITED PARTNERSHIPS. There is no statute concerning limited partnerships in the Territory. t If; m 238 WYOMING. [Part 8. Chapter XVIII. MARRIED WOMEN. Married women retain their property, real and personal, wliich they had at raarriai;e, or wliieh they acciuirc thereafter from any person other than their husband, in good faith, as their own, free from the husband's control, and free from liability for his debts. They may bargain, sell and convey personal property as if they were sole ; may make a will, be sued and sue as if they were sole ; may carry on any trade or business on their own account. The husband is not liable for the debts of the wife contracted before marriage. When judgment is rendered against both for the tort of the wife, the judgment must bo satisfied first out of the property of the wife, if she have any. Chapter XIX. CHATTEL MORTGAGES. Chattel mortgages must bo executed in the presence of two v/itnesscs, and acknowledged before some one authorized to take acknowledgment of deeds, and filed in the office of the comity re- corder of the county where the property is ; and it then l)ecomes a lien on the property described therein for one year ; and if it so provide, the property mortgaged may be left in possession of the mortgagor. All goods and chattels may be mortgaged. . Chap. 20.] WYOMING. 239 Chapter XX. INTEREST AND USURY. The legal rate of interest is twelve per cent, per annum ; but any rate that may be agreeil on i.'^ legal. Judgments draw twelve per cent, from the date of their rendition. ii'M ' *1 M JBT Part IX. MONTANA TERRITORY. PRr.PARKD EXPRESSLY FOR THIS WORK BY W. E. CULLEX, HBLENAv,. Chapter I. COURTS, THEIR TURISDICTIOX AND TERMS. Tlie Courts of the Territory are a Siinreme Oourt, District Courts, Probate Court, and Justices of the Peace. The Supreme Court has appeHate jurisdiction only. The District Courts have original jurisdiction of all civil cases where the amount in controversy exceeds fifty dollars, and of all felonies ; also appellate jurisdiction ft-om the Probate and Justices' Courts. The Probate Court, in addition to probate matters, has ' '-isdic- tion In civil actions to the amount of five hundred dollar-, except where the title or right to the possession of land is in qut ition, and in chancery and divorce cases. The Probate Court also has juris- diction of sucii criminal cases arising under the laws of the Terri- tory as do not retpiire the intervention of a grand jury. Justices of the Peace have jurisdiction whore the title of land is not in dispute, and where the debt or sum claimed ifoes not exceed one hundred dollars. The District Court, wl.en sitting at Helena, Deer Lodge, and 242 MONTANA. [Part 9. Bozeman, has the same jurisdiction as the Circuit and District Courts of the United States, and the first six days of each term at said places are appropriated to the trial of causes arising under the constitution and laws of the United States. Terms of District Courts, 1876. COUNTY. COUNTY BEAT. DIST. -.VHF.N HELD. BeavorhcBcl... Baunack 2d.... Firi't M'inday in June, Reeond Monday in Ootfiber. Dmr Lodge... YlpvT Lodge 2d.... Second Monday in April, first Monday in September. OaUutiu IkiZfiiinn 1st ... First Moiulay in May, sdcind Monday in October. Jcft'ertion Kadcrsljurii MX.... I'irst Mniidny in April, first Monday in Octolnr. Madison Virginia City. . . Iht... 'I'liird M' ndiiy in Miirch, third JFonday in Siptcnibcr. Meagher Diniuond City... 3d.... Fourtli Monday in May, fourth M.>nday in October. Mi'iiiBoiila Meissoula 2d.... Hdurth Monday in .lime, Second Monday in November. LewiBfc Clurk. Htlc:ia 3d.... First Monday in March, second Monday in September, and tirst Monday in November. Terms of the Supreme Court are held at the capital, Helena, on first Monday in January and second Monday in August. Chapter II. TIME ALLOWED DEFENDANT TO ANSWER—PLACE OF TIUAL OF CIVIL ACTIONS. Time Allowed Defendant to Answer. Ten days if served in the county, twenty days if served outside the county hut in the district ; forty days in all other cases. 1'lace of Trial op Civil Actions. um Actions for the recovery of real estate, or for injuries thereto, i|W|iM,»W Chap. 3.] MONTANA. 2-43 for pnrtition thereof, or for foreclosure of mortgage thereon, must be tried in the county where the same is situated. Actions for the recovery of a penalty or forfeiture imposed by statute, or against a public officer, must be tried iu the county where the cause arose. In all other cases the action is to be tried in the county in which the defendant may reside, or in the county where the plain- tiff resides and the defendant may be found. Chapter HI. LIMITATION OF ACTIONS. Upon a judgment or decree of a United States C , u ar of any State or Territory, ten years. Upon any contract, obligation or liability, founded upon an iu- Strument of writing, ten 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 relief on the ground of fraud, must be commenced within three years. Actions against a sheriff, coroner or constable, for any act in his official capacity, must be commenced within two years. Actions upon an account, contract, obligation or liability not groumlcd upon an instrument of writhig, must be commenced with- in five years. An action for a ])onalty or forfeiture given by statute, or for libel, slander, assault, battery or false imprisonment, must be com- menced within two years. Actions for reliei not provided for, a3 above, must be com- menced within throe years after the cause of action accrued. 244 MONTANA. [Part 9. If the party against wliom the action accrues is out of the Territory at the time, the statute does not run until his return, and if, alter the action has accrued, he de[)art from the Territory, the time of his absence is not a {lart of tlie time limited for the com- mencement of an action. A {lart jiayment revives a debt which ha? ''C'cn barred. No acknowledgment or promise is sufficient to take a case out of the statute, unless it be in writing and signed by the party to be charged, A cause of action arising in any other State or Territory, and barred by the laws of such State or Terri- tory, 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 indebted to the plaintiff upon a contract for the payment of money, gold dust or other property then due, which is not secured by a mortgage, lien or pledge upon either real or personal property ; and u|i(in giving an undertaking in double the amount of the delit sought to be recovered, if the same does not exceed in amount $'10U0, and in the amount sought to be recovered if over if* 1000, conditioned that the j)laintiff will pay all costs that may be awarded to the de- fendant, and all damages which he may sustain by reason of such at- tachment, if the defendant recovers jutlgment, or the ' ourt tinally decides that the plaintiff was not entitled to an attac' uient. Chap. 5.] MONTANA. 245 Arl:l^ts in Civil Cases. Arrest may be had in all cases of fraud, or when the action is for willful injury to person or character, or to property, 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 the county wherein it is docketed, and is such lien for the period of two years. Execution may be issued at any time within five years after the entry of the judgment. Executions may be issued to several counties at the same time. Tiie following articles are exempt from execution : wearing ap- parel of judgment debtor and family, also all chairs, libles, desks, to the value of flOO; all necessary household and Icitchen furni- ture, including stoves, stove[>ip')s and stove furniture, beds, bedding and provisions, and fuel actually provided for use sufficient for one month ; and also one horse, two cows with their calves, two swine and fifty domestic fowls ; one sewing machine not exceeding the value of -f 100, in actual use by the debtor or his family ; also to a farmer, farming utensils, also two oxen or horses, or two mules and their harness, two cows, one cart or wagon, and food for such ani- mals for one month ; also all seed grain or vegetables actually re- served for [»lanting. To a mechanic or artisan, tools or implements necessary to carry on hid trade. 246 MONTANA. [Part 9. To a physician, the instruments and chest necessary to tlie exer- cise of his profession, together with his library and one horse and vehicle. To an attorney at law, or a minister of the Gospel, their lil)raries, To a mhier, his cabin, sluices, mining tools and appliances not to exceed in value $300 ; also two horses, mules or oxen, and food for the same for one month, and their harness, when necessary to be used for any windlass, derrick or pump. To a cartman, truckster, peddler, teamster or laborer, two horses, two mules, or two oxen and their harness, and one cart or wagon, by the use of which such person habitually earns his living. Also the earnings of the judgment debtor for thirty days' next preceding the levy of execution, when such earnings are necessary for the support of the debtor's family. A homestead not exceeding in value $2500 ; if agricultural land, not more than eighty acres ; if within the limit of a town or city or village, not more than one-fourth of an acre. The sheriff is required to give notice of sale as follows : by post- ing notice of the time and place of such sale in three public {)lace3 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 property, not less than five nor more than ten days. In case of real property, by posting a similar notice for twenty days, and publishing a copy thereof once a week for the serty, when the debt 'curod does not exceed one hundred dollars ; also in actions for damages for fraud and deceit in the sale, purchase, or exchange of personal nroperty, when the damages claimed do not exceed one hundred dollars ; also in actions of forcible entry and detainer ; also in actions to try the right of possession to mining cluim-?. They may also take and enter judgment on the confession of a defendant, or upon default for a failure to appear or answer. Chapter II. TERMS OF COURTS— WHEN AND WHERE HELD. The Supreme Court holds one term in each year, at Olympin, commencing on the second Monday of July. The District Ciiurt of the first juilieial dis^r ,t. Hon. S. C. Wi'.igard, judge, is held for the oou'itifs of Walla \\ alia and Columhia, at Walla Walla CJity, on the first Monday of May and thinl Monday of October ; ibr the ntunty of Yakima, at Yakima City, on the first .Monday of Octo'Mjr of each year; for the counties of Stevens and Whitman, at Colfax, on the first .Monday of June of each year. H Chap. 3.] WASHINGTON. 255 The District Court of tlie second judicial district, Hon. R. S. Green, jud;^e, is held for the counties of Klickitat, iSkamania and Clark, at Vancouver, oa the third Monday of March and third Monday of N^wenaber of each year ; for the counties of Cowlitz, Wahkiakum and l*acific, at Kalama, on the first Monday in January and the fourtli Monday in June ; for the counties of Thurston, Lewis, INFason and Chehalis, at Olympia, on the first Monday in Ajiril and first jNConday in December. The District Court of the third judicial district, Hon, J. B. Lewis, C. J., jud^e, is held for the coutity of Pierce, at Steilacoom, on the first Monday of January and first Monday of August; for the counties of King, Kitsap am' Saohomish, at Seattle, on the fourth Mondiiy of January and third Monday of Augvist ; for the counties of Jeft'erson, Island, Whatcom, San Juan and Clallam, at Poit Townsend, on the fourth Monday of February and fourth Monday of September. In addition to the above terms of Court, prescribed by Act of the Legislative Assembly, power is given to the judges of each dis- trict to appoini , bj rule from time to time, tAvo special terms in each year, at which to transact all business, except trials by jury, and the hearing causes on their merits. Terms of the Probate Courts are held at the county seat of each county on the fourth Mondays of January, April, July and October, of each year. Justices' Courts are always open for the transaction of business. CiiArTi:R III. COMMENCEMENT OF SUITS— TIME ALLOWED TO ANSWER. Actions in the District Courts arc commenced by filing the com- plamt \W\x the clerk, and the issuing a summons thereon at any 256 WASHINGTON. [Part 10. time within one year of such filin;^. The defendant is required to answer the cora[)hunt as foHows : it' served within the county where the action is brought, twenty days ; if served out of the county but in the district in which the action is brought, thirty days ; in all other cases, sixty days. If the defendant fails to appear and an- swer according to the requirements of the summons, the plaintiff is entitled to have the default entered, and judgment for the amount specified in the summons, or for the relief prayed for in the com- plaint. The complaint and all subseiiuent proceedings in an action, except a demurrer, must be verified by the party, (his agent or attorney, in the county where the action is brought) to the effect that ho believes it to be true. All common law forma of pleadings, and all distinctions between law and equity as to form, are abolish- ed, and the code system adoj)ted. In Probate Court, most of the business can be commenced, pre- liminary orders granted, and writs issued by the judge in vacation. Orders or decrees for the sale of real estate, the settlement of estates, and discharge of executors, administrators, or guardians, and final orders and decrees generally, must bo heard and decided in term time. Actions are commenced in Justices' Courts by filing with the justice a complaint or account, verified by the party, his agent or attorne}', to the effect that he believes it to be true, and the issuance of a summons or notice thereon. The summons or notice is re- turnable in not less than six, nor more than twenty days, from the filing the complaint. Chapter IV. PLACE OF TRIAL OF CIVIL ACTIONS. Actions for the recovery of the possession of, or for the fore- closure of a mortgage on, or in any wise affecting the title to real Chap. 5.] WASHINGTON. 257 property, and all questions involving the right or title to personal property, or for the detention or injury to such property, shall be broii^rht ill the county in which the subject of the action or some part thereof is situated. Actions for a jienalty or forfeiture imposed by statute, or against public (itficers, shall be tried in the county or diitrict where the cause of action or some part thereof arose. Actions against corporations may be brought in any county where the corporation has an office for the transaction uf business, or any person residi-s upon whom process against such cor[ioration may- be served. In all other cases the actioti shall be C)mmenced and tried in the district embracing the county in which the defendants; or either of them reside, or may be served with process ; or if none of them reside in the Territory, the same ni;iy be tried in any dis- trict or county which the plaintiff may designate in his complaint^ ClI.\PTER V. LIMITATION OF ACTIONS. The period prescribed for the limitation of actions, from the time the cause of action accrues, is as follows : For tlio recovery of real property, or the possession tliereof, twenty 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 oecujiation of real estate, six years; for waste or trespass upon real property, or for taking, detaining, or injuring personal property, including an arlion for the recovery thereof, or for any other iiijiiiy to the person or rights of anoth.;r not hereinafter i7 258 WASHINGTON. [Part 10. 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 niin- isteriitl officer upon a lial)ility incurred by the doing an act in his official. capacity, or by the omitision of an official duty, inchnling the non-payment of money collected upon execution ; upon a statute for a penalty or forfeiture, and for seduction and breach of marriage contract, three years ; for libel, slander, assault, assault and bat- tery and false imprisonment, actions upon a statute for a forfeiture or penalty to the Territory, two years ; against a sheriff* or other officer, for the escape of a prisoner arrested or imprisoned on civil process, one year. When the cause of acti ::» arises in another State or Territory, between a resident of that State or Territory and of this Territory, the foregoing limitations apply. When the cause of action arises in another State or Territory between non-residents of this Terri- tory, and the same wou*ld be barred there by the lapse of time, it will be barred here. An action shall be deemed commenced as to each defendant when the complaint is filed. Chapter VI, ATTACIIMKNTS. The plaintiff, at the time of issuing the aummons, or at any time thereafter, and befjre judgment, may have the property of the de- fendant attached as security for the satisfaction of such judgment as he may recover, whenever he or any one oi» his behalf shall make and file an affidavit that a cause of action exists against the de- Chap. C] WASIIIN'GTOJI. 2r>9 foiidiuit. Jind the gpound.^ thereof, uikI tliat tlie dcfondant is eitlior — firat, a foreii^n CDi'poration ; or second, that lie is not a resident of this Territory, or has departed therefrom with intent to delay or de- fraud his creditors, or to avoid the sjrvii,-,; of pnnjjss, or keeps hiniiidf concealed therein with like intent : or third, tiiat he has removed or is about to renuve any of his property from the Ter- ritory with intent to delay or defraud his creditors; or fourth, that he has assigned, secreted or disposed of any of his property, or is about to assi;^n, secrete or dis|)ose of it with intent to delay or de- fraud his creditors ; or fifth, that the defendant has been guilty of a fraud in contrasting the debt or incurring the obligation for which the action is brought. Before the writ issues the plaintiff must file with the clerk a bond, with one or more sureties, in a sum not less than one hun- dred dollars and ecpial to the amount for which the ))laintiff demanils judgment, to the effect that the plaintiff will pay all costs that m:iy be adjidged to the defendant, and all damages which he may sus- tain by reason of the attachment, if the same be wrongful, oppres- sive, or without sufficient cause. All pl-operty may be attached not by law exempt from execution, iuchnling debts owing to de- feiulant. The defendant may have the property attached delivered to him by executing to the shoriff" a bond, with surety approved by him, to the elfjct tliat such property shall l)e properly kept and de- livered upon demand, to be held on execution ; or that he will pay the apjiraised value thereof; or the defendant may, before the time for answering expires, apply to the Court or judge for the discharge of the jittachment, on the grounds that it was imi)roper'y or improvi- dently issued. Writs of attachment may bo issued by justices of the peace, upon any of the foregoing grounds, except that the debt was con- traet(Ml in fraud, and on ihe additional grounds that the defendant is a non-resident of the county, or is secretly leaving or has left the county, with the intent to hinder, delay, or defraud his creditors. 200 WASIIIVGTON. [Part 10. Chapter VII. . ARllEST IN CIVIL ACTIONS. The rlefendaiit, upon an order of tlic Court or judge of the Su- proinc Court, may he arrested in tlie following cases, and nooth'f: 1. In an action for the recovery of damages on a cause of action not arising out of contract, wliere the dofondant is a non-resident of the Territory, or is ahout to remove therefrom, or where the action is for an injury to person or character, or lor injuring or wrongfully taking, detaining, or converting property. 2. In an action for a fine or iienalty, or on a promise to marry, or for money received, or property embezzkd or fraudulently tuis- a])plied, or converted to his own use by a public officer, or by an attorney, or by an officer or agent of a corporation in the course of his employment as such, or by any factor, agent, broker, or other person in a fiduciary capacity, or for any misconduct or neglect in office, or in a professional einpli)yment. 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 tlie sheriff, with the intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof. 4. ^^ lien the defenilant has been guilty of fraud in contracting the del)t or incurring the obligation for which the action is brought, or in concealing or disposing of the property for the taking, deten- tion, or conversion of which the action is brought. .0. When the driendant has removed or dis|-osed of his projierty, or is about to do so, with intent to defraud his creditors. or T('rrit of the peace, a cnunty auditor, a clerk or a regularly appointed deputy clerk of the District or Supreme Court, or a notary ptihlic, duly (jualifu'd. If made out of the Territory, but in the United States, they may he acknowledged before any person a>ithorized to take ackni)wlepoint m1 by the (lovenior of Washington Territory for smcIi pur- pose v.'nlc8s such acknowledgment be taken before a eoiiimissioner, 270 WASHLVOTON. [Part 10. audi (iced shall Imvo attuchcd thereto a certificate of tlie clerk )r other proper ccrliCyiiig olficcr of a Court of record of the county or district within which the acknowledgement was taken, under the seal of his olfice, that the person whose name is subscribed to the cer- tificate of ncknowled;emont was, at the date thereof, aiich otficcr as he is therein represented to be ; that he is authorized l>y law to take acknowledgments of deols ', and that he believes the signature of the person subscribed thereto to be genuine. If made in a foreign country, out of the United States, they shall bo acknowledged or proved by two witnesses before any minister plenipotentiary, chiirye d'dff'iires, consul, " general consul," vice-consul, or commercial agent appointed l)y the government of the United States to any foreign country, or the proper officer of any Court of such country, or the mayor or other chief magistrate of iMiy city, town, or cor|io- ratiou therein. Such officer shall make and sign officially a cer- tificate of acknowledgment, or of the proof by two witiiesses, as the case may be, which shall be aiuiexcd to the deed. ^ There are no particular reay agree upoM. mmga rAKT XI. ARIZONA TERRITORY ClIAPTKR I. COURTS AND TlIEIll JURISDICTION. The following arc the Courts of justico for the Territory : 1. The Supreme Court. 2. The District Courts. 3. The Probate Courts. 4. The Juntioos' Courts. The Supreuie Court hm appellate jurisdiction in all eases wherein the legality of any tax, toil, impost, or municipal rtue is in (piestion. It also li. IS jurisdiction to review upon appeal — First. .V judgment in actioii or proceeding coraiaonced in a Dis- trict C"»irt, or Itrought into tluit Court from another Court, where the nialter in dispute exceeds one hundred dollars, or when the possessitMi of, or title to lands or tenements is in controversy ; and to review upon the appeal from such judgment any intermediate or collateral order of the (Jourt or judge at ehamher."^, involving the uierius and necessarily affi-cting the judguiont. Seconal. An order granting nt of the action, or the defendant may bo found ; or if none of the pai-tie.s reside in the Territory, the same may be tried in any county which the [tlaintifT may desi;L!;nate in his complaint. The Court may, on motion, chan;^c the place of trial. 1. When the county designated in the complaint is not the proper county. 2. When there is reason to believe that an impartial trial cannot be had then in. 3. When the convenience of witnesses and the ends of justice would lie promoted by the chan;^o. 4. When from any cause the judge is disqualified from acting in the action. No person shall be hold to answer to any summons issued against him from a Justice's (.'ourt in a civil action, in any precinct other than the one in which he or the [ilaintiff shall reside, cxco[)t in the cases following: 1. Where there shall bo no Justice's Court for the precinct or village in which the defendant or plaintiff may reside, or no justice competent to act in the case. 2. Wiien two or more [)ersons shall be jointly or jointly and sev- erally bound in any debt or contract, or otherwise jointly liable in the same action, and reside in different jirecincts of the same coun- ty, or in different counties, the plaintiff" may [)rosecute his action in a .Ju^ijj's Court of the pi'ojincb or ouuty in which any of the debtors or other persons liable may reside. 3. In case of injury to the person, or to real and personal prop- erty, the plaintiff may prosecute his action in the precinct where the injury was committed, or where the defendant may be found. 4. Where personal property, unjustly taken or detained, is 278 ARIZONA. [I'art 11. claiinod, ordamagos tlierefor aro claim^il, tlio plaintiff in\y I)nng his action in any precinct or county in which the property may he found, or in which the [)roperty was taken. 5. When the defenthant is a non-resident of the county, lie may be sued in any precinct, village or city wherein ho may be found. 0. When a [)er8on has contracted to perform any obligation at a particular place, and resides in another, lie may bo sued in the precinct in which such obligation is to be performed or in which he resides. 7. When the foreclosure of a mortgage, or the enforcement of a lien upon personal property, is a)ii^'»t by the action, tho plaintiff may sue in the precinct, village or city where the property is situ- ated. Chapter V. LIMITATION OF ACTIONS. The periods prescribed for the commencement of actions are as follows : Within five years — An action for the recovery of real property or the possession thereof; an action n[)on a judgment or decree of any Court of the United States, or of any State or Territory with- in the United States. Within four years — An action upon any contract, obligation, or liability founded upon an instrument of writing. Within three years — An action for trespass upon real property ; an action for taking, detaining or injuring any goods or chattels, in- cluding actions for the specific recovery of personal property ; an action for relief on the ground of fraud, tho cause of action in such case not to be deemed to have aocruoil until the discovery by the aggrieved party of tho facts constituting the fraud. Chap. 5.] AUIZONA. 279 Witliin two years — An action upon a contract, oMigation nr lia- bility, not fouiiiUMl upon an instrument of writing ; also, an action against a slicriff, coroner, or constable, upon the liability incurred by the doing of an act in his ddioial capacity, I'ml in virtue of his office, or by the omission of an official duty, inchuling the non- payment of money collected vipon an execution. The above does not apply to open accounts for goods, wares and merchandise sold and delivered, nor to an action for an escape. Within one year — An action for libel, slander, assault, battery, or false imprisonment ; an action against a sheriff or other ollicer for the escape of a pris(»ncr arrested on civil |)r()cess ; an action on an open account for goods, wares and mercliandiso sold and de- livered. The statute begins to run from the time the cause of action ac- crued. Part payment does not prevent t)ie statute running ; but in an action brought to recover a balance due upon a mutual, oj»en ac- count, where there have been reciprocal demamls between tho parties, the cause of action shall be deemi'd to have accrued from the time of the last item proved in the account on either side. An action upon a contract, obligntion or liability for the payment of money, founded upon an iiistrunuMit of writing, executed out of this Teriitorv, can only be commenced as follows: First. Within one year* when more than two and less than five years have elapsed since the cause of action accrued. Second. Within six months, when more than five years have elapsed since the cause of action accrued. When the cause of action has arisen in another State, Territory, or foreign country, and is there outlawed, no action will lie in this Territory. If when the cause of action accrues against a person, he is out of the Territory, the action may be c mmenced 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 al>seuce shall not be part of the time limited for the cora- meneenient of the action. V. <9 /2 "c-l ^ / r^ / IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I - IIIIM li4 M 1 2.0 1.8 Photograptiic Sciences Corporation 1.25 1.4 1.6 ^ 6" — ► M ^^ V ^v \\ ^9) V Cv 6^ % V % V 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 280 ARIZONA. [Part 11. Chapter YI. ATTACHMENTS. Attachments in District Court actions can only be issued : 1. In an action upon a contract, express or implieil, for the direct payment of money, and which is not secured by a mortgage upon real or personal property. 2. In an action u]ion a contract, express or implied, against a defendant not residing in this Territory. Before issuing the writ of attachment, an affidavit on the part of the plaintiff must be filed, showing : That the defendant is indebted to the plaintiff (specifying the amount of the indebtedness over and above all legal set-offs or counter claims) upon a contract, express or implied, for the direct payment of money, and that such contract was made or is payable in the Territory, and that the payment of the same has not been secured by any mortgage on real or [lersonal property, and showing also the existence of either of the following causes : 1. That the defendant is not a resident of this Territory. 2. That he is about to remove his property and effects beyond the limits of this Territory. 3. That he has absconded from his usual place of abode in this Territory, so that the ordinary process of law cannot be served upon him. 4. That he is about fraudulently to conceal or make away with his property and effects, so as to defraud, hinder, or delay his creditors. 6. That he has fraudulently concealed or made away with his projierty and effects, so as to defraud, binder, or delay his creditors. 6. '''hat he is about fraudulently to convey, assign, or dispose of his property, so as to defraud, hinder, or dehiy his creditors. 7. That he has fraudulently conveyed, assigned, and disposed of his property, to defraud, hinder, or delay his creditors. 8. That the defendant is a non-resident corporate body. Chap. 7.] ARIZONA. 281 9. That he 's about to remove from this Territory to avoid the ordinary process of Liw. A written undertaking is required on behalf of the phiintiff, in a sum not less than double the amount claimed, with sufficient sureties, to the effect that if the defendant recover judgment the plaintiff will pay all costs awarded the defendant, and all damages which ho may sustain by reason of the attachment, not exceeding the amount specified in the undertaking. In Justices' Courts, an attachment may be issued in an action upon a contract, express or implied, for the direct payment of money, which contract is made or is payable n this Territory, and is not secured by a mortgage upon real or personal property. Upon filing with the justice an affidavit, on the part of the plaintiff, setting forth the pbove facts, and the amount of such indebtedness over and above all legal set-offs and counter claims ; and upon the filing of an undertaking on the part of the plaintiff, with two or more sufficient sureties, to the effect that if the defend- ant recover judgment the plaintiff will pay all costs awarded the defendant, and all damages which he may sustain by reason of the attachment, the writ shall issue. Chapter YII. ARREST IN CIVIL ACTIONS. The defendant may be arrested in the following cases : 1. In an action for the rcc very of money or damages, in a cause of action arising upon contract, express or implied, when the defend- ant is about to depart from the Territory with intent to defraud his creditors ; or when the action is for willful injury to person, to char- acter, or to pro[)erty known to belong to another. 282 ARIZONA. [Part 11. 2. In an action for a fine or penalty, or for money or property embezzled, or fraudulently misapplied, or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for miscon- duct or neglect in office, or in a professional employment, or for a willful violation of duty. 3. In an action to recover the possession of personal property unjustly detained, when the property, or any part thereof, has been concealed, removed, or disposed of, so that it cannot be found or taken by the officer. 4. When the defendant has been guilty of a fraud iri contracting the debt or incurring the obligation for which the action is brought, or in concealing or disposing of the property, for the taking, deten- tion, or conversion of which the action is brought. 5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. An affidavit is required on behalf of the plaintiff", setting forth the grounds of arrest, and also an undertaking with sufficient sure- ties, in an amount of at least five hundred dollars. Chapter YIII. JUDGMENTS AND JUDGMENT LIENS. A judgment is the final determination of the rights of the parties in an action or proceeding. Immediately upon the docketing of a judgment it becomes a lien upon all the real estate of the judgment debtor not exempt from execution in the county, owned by him at the time, or which he may afterwards accjuire, until the lien ex[)ires. The lien con- wsiifve-' Chap. 9.] ARIZONA. 283 tinucs two years, A transcript of the original docket, certified by the clerk, may be filed witli the recorder of any other county, and thereby constitute a Hen upon the lands of the judgment debtor in such county. Chapter IX. EXECUTIONS, EXEMPTIONS, SALE, AND REDEMP- TION. Execution may be issued at any time within five years after the entry of judgment. Until a levy is made, property is not affected by execution. The following property is exempt from execution : 1. The homestead, consisting of a quantity of land, together •with the dwelling house thereon and its appurtenances, and the water rights and privileges ))crtaining thereto sufficient to irrigate the land, not exceeding in value the sum of five thousand dollars, allowed to the head of a family. The homestead may be set apart after execution levied. 2. All S{)inning-wheels, weaving-looms with the apparatus, and stoves put up and kept for use in any dwelling-house. 3. A seat, pew, or slip occupied by such person or family in any house or place of public worship. 4. All cemeteries, tombs, and rights o^ burial, while in use as repositories of the dead. 5. All arras and accoutrements kept for use ; all Avearing ap- parel of every person or family. 6. Tlie library and school books of every individual and family, not exceeding one hundred and fifty dollars, and all family pictures. 7. To each householder ten goats or sheep, with their fleeces, and the yarn or cloth manufactured from the same ; two cows, five 284 ARIZONA. [Part 11. swine, and provisions and fuel for the comfortable subsistence such household and family for six months. 8. To each householder, all household ^oods, furniture and uten- sils, not exceeding in value six hundred dollars. 9. The tools, implements, materials, stock, apparatus, team, ve- hicle, horses, harness, or other things to enable any person to carry on tho profession, trade, occupation or business in which lie is wholly or principally engaged, not exceeding in value six hundred dollars. 10. One sewing machine and one musical instrument. 11. A sufficient quantity of hay, grain, feed, and roots for prop- erly keeping the above named animals three months. An execution may be made returnable in not less than ten nor more than sixty days after its receipt by the sheriff. Notice of sale must be given as follows : 1. In case of perishable property, a reasonable time. 2. In case of personal property, not less than five nor more than ten days. 3. In case of real property, twenty days. Upon the sale of real property, when the estate is less than a freehold of two years unexpired term, the sale shall be absolute. In all other cases, the real property is subject to redemption within six months after the sale, upon [taying to the purchaser the amount of the purchase, with eighteen per cent, in addition, and all ta,\e3 or assessments paid by the purchaser. Chapter X. PROCEEDINGS SUPPLEMENTARY TO EXECUTION. When an execution is returned unsatisfied in whole or in part, the judgment creditor, at any time after such return is made, is en- titled to au order from the judge of the Court, requiring such judg- "^plr Chap. 11.] ARIZONA. 285 mcnt debtor to appear and answer concerning his property before sucli judge or a referee appointed. Chapter XI. ESTATES OF DECEASED PERSONS. Immediately after the appointment of the executor or adminis- trator, he shall give notice through a newspaper published in the county, if there be one, and if not, then in such newspaper desig- nated by the Court, requiring all persons having claims against the deceased to present them, with the necessary vouchers, within ten months after publication of the notice. If a claim be not presented within the ten months, it shall be forever barred ; however, if it be not then due or is contingent, it may be presented within ten months after it shall become due or absolute ; and when it shall be made to ap[)ear by the affiilavit of the claimant, to the satisfaction of the executor or administrator, and the probate judge, that the claimant had no notice by reason of being out of the Territory, it may be presented at any time before a decree of distribution is en- tered. Every claim presented to the executor or administrator shall be supported by the affidavit of the claimant, that the amount is justly due, that no payments have been made thereon, and that there are no off^Jets to the same to the knowledge of the claimant or other affiant ; provided^ that .when the affidavit is made by any other person than the claimant, he shall set forth in the affidavit the reason it is not made by the claimant. The affidavit may be sworn to before any officer authorized to take oaths. When a claim is presented and allowed by the executor or ad- ministrator, it shall then be presented to the probate judge for his 286 ARIZONA. [Part 11. approval, and within thirty days thereafter filed with the Prabate Court. If a claim be founded upon a bond, note, or other instrument, the original instrument shall be presented. If the claim be secured by a mortgage or other lien, such mortgage or other evidence of liens shall be attached to the claim, and filed therewith, uidess the same be recorded in the office of the recorder of the county in which the land lies, in which case it shall be sufficient to describe the mortgage or lien, and refer to the date, volume and page of its record. In all cases the claimant may withdraw his claim from file on leaving a certified copy, with a receipt endorsed thereon by himself or agent. After a claim is rejected, suit must be brought thereon within three months or it is forever barred ; if it be not then due, suit must be brought within three months from the time it falls due. An outlawed claim must not be allowed. When a judgment has been rendered against the testator c ■ in- testate in his life-time, no execution shall issue thereon after his death ; but a certified copy of such judgment shall be presented to the executor or admniistrator, and be allowed, and filed and re- jected, as any other claim, but need not be supported by the affi- davit of the claimant; and if justly due and unsatisfied, shall be paid in due course of administration : provided^ however, that if the execution shall have been actually levied upon any property of the deceased, the same may be sold for the satisfaction thereof, and the officer making the sale shall account to the executor or admin- istrator for any surplus in his hands. The executor or adminis- trator may, however, require the affidavit of the claimant, or other satisfactory proof, that the judgment, or any portion thereof, is justly due and unsatisfied. Chaps. 12, 13.] ARIZONA. 287 CiiArxER XII. AFFIDAVITS AND DEPOSITIONS. An affidavit taken in another State or Territory, to be used in this Territory, shall be taken before a commissioner appointed by the Governor of this Territory to take affidavits and de[)osition3 in such State or Territory, or before any judge, or notary public, or clerk of a Court having a seal ; when taken before a judge the genuineness of the judge's signature, the existence of the Court, and the ftict that such judge is a member thereof, shall be cer- tified by the clerk of the Court under the seal thereof. The deposition of a witness out of the Territory may be taken in an action at any time after the service of the summons or the appearance of the defendant. It shall be taken under a commission issued from the Court under the seal of such Court. It shall bo 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 Territory to take affidavits and depositions. 'J'he deposition must be returned in a sealed envelope, directed to the clerk or other person designated or agreed upon, by mail or other usual channel of conveyance. Chapter XIII. ACKNOWLEDGMEj^TS. The proof or acknowledgment of every conveyance affijcting any real estate shall be taken by some one of the following officers : 1. If acknowledged or proved within this Territory, by some riMip ^ lVI.II>^eing a narrative of the circumstances on which the plaintift" relies for relief. The defendant has a month to answer, and after answer there are several diftcrcnt modes of bringing the suit to a hearing. The evidence is generally taken on affidavit, but may be viva voce. A single judge disposes of e(iuity cases without a jury. Equity suits x;an be disposed of at any place the plaintiff fixes ; liable to be changed on good cause shown. Chapter III. * LDHTATIONS OF ACTIONS. Six years is the limitation for all simple contract debts ; twenty years for all specialty debts. In case the cause of action arose in a foreign country, the defendant may [tlcad the statute of limita- 296 BRITISH COLUMBIA. [Part 12. tions of such country as a bar. A foreign judgment is placed on the same footing as a simple contract debt, and has to be sued within the same time. Chapter IV. ATTACHMENTS— ARREST IN CIVIL ACTIONS. Attachments are not allowed except under the Insolvency Act, and then it practically binds the property for the benefit of all creditors. Arrest in civil actions is in practice only resorted to for the pur- pose of compelling a defendant Avho is about to leave the jurisdic- tion to give security for the alleged debt. The sheriff keeps him in charge until he has put in security, or until the trial of the writ. There is no imprisonment for debt. But the County Court judges have power of committal for disobedience of orders for pay- ment of money. Chapter Y. JUDGMENTS AND JUDGMENT LIENS. A judgment binds the lands of a debtor when registered. It also enables a creditor to seize the goods of his debtor, or to com- pel payment of debts due to the debtor, to himself, under what are Chaps. 6, 7.] BRITISH COLUMBIA. 297 called garnishee proceedings ; but a judgment does not bind the pbrsonal property of the debtor until the Avrit of execution is in the hands of the sheriff. Chapter YI. EXECUTIONS, EXEMPTIONS, REDEMPTION, SALE. Executions are enforced against the land and personalty of the debtor. The debtor is entitled to an exemption of five hundred dollars in personalty. For homestead exemption, see " Homesteads." The debtor may redeem his property at any time before sale. Personal property has to be sold without any delay, and by public auction. Real property is advertised thirty days. Chapter YII. SECURITY FOR COSTS la always required when the plaintiff is resident out of the juris- diction of the Court, in an amount of five hundred dollars ; but if within the jurisdiction, he may commence actions in forma pau- peris, if he is not in a position to pay fees. •298 BRITISH COLUMBIA. [Part 12. Chapter VIII. APPEALS Are allowed from the County Courts to the Supreme Court, if made within forty-eight hours after the decision is objected to ; from the Police and Magistrate Courts to the Supreme Court, if applied for in four days ; from the Supreme Court to the Privy Council of England, or the Supreme Court of Canada, if the amount in dispute is over fifteen hundred dollars. Security re- quired is five hundred dollars. Chapter IX. ESTATES OF DECEASED PERSONS. Intestate estates, where there is no next of kin or creditor who desires administration, are managed by the registrar of the Supreme Court as official administrator. There is no statutcable time for sending in claims, but every estate is advertised and a time fixed. The claims have to be sworn to — if from a foreign country, before a notary public, attested by the British ambassador, consul, or charge d'affaires. Twelve months is the time allowed to settle the estate, whether the deceased died intestate or not. If the deceased left a will legally executed, his executors manage the estate without filing any security, and only file accounts at the end of the twelve months. If they neglect their duty, the devisees have a legal re- medy, but the Court docs not control them. Chaps. 10-12.] BRITISH COLUMBIA. 299 Chapter X. HOxMESTEADS. Land to the value of twenty-five hundred dollars may be home- stead, if duly registered as such at a time when the owner was free from debt. Chapter XI. DEPOSITIONS. For matters in civil suits, evidence abroad is generally taken by commissioners appointed by a judge of the Supreme Court. In other matters, affidavits can be taken before any minister, ambassa- dor, consul, vice-consul, or consular agent, and if there is no one representing these functionaries, then before a notary public duly certified to be such by the Governor or Secretary of State. Chapter XII. JUDICIAL RECORDS— ACKNOWLEDGMENTS. Judicial records of foreign States can be proved by examined copies, sealed with the seal of the State if relating to State docu ments, or the seal of the Court if relating to judicial records. Acknowledgments of deeds can be taken before a notary pub- lic, duly certified to be such by the British consul. J ^WWMW PMW*— 300 BRITISH COLUMBIA. [Part 1-2-. Chapter XIII. LIMITED PARTNERSHIPS. Joint stock companies can limit the liability of their sharehold- ers to the amount scribed for by each, by registering under the statute. The law of private partnerships now allows a persou to invest money in '{i business concern and receive a share of the profits, with- out being liable as a partner. Chapter XIV. MARRIED W0:MEN Can invest the money earned by any trade or occupation, and the same is free from the debts, control or engagements of the hus- band ; and landed property, held before marriage or acquired sub- sequent thereto, can be dealt with by a married woman as if she were a femme sole. Chaps. 15, 16.] BRITISH COLUMBIA. 301 Chapter XV. MORTGAGES. [■ Chattel mortgages must be registered within twenty-one days after execution, and an affidavit filed of the day and date of execu- tion, in order to protect the property ^'•om execution creditors of the grantor. A mortgage unregistered is good between the parties, and if the mortgagee take the property into his own custody an execu- tion creditor cannot seize it. Furniture, goods, merchandise, etc., can be mortgaged. Farming stock and crops are not subject to the Act. Mortgages of Land. A mortgagee of land is a specialty creditor ; he can sue his debtor for the amount due, sell the mortgage property, or foreclose the mortgage ; if he sells the mortgage property, it is doubtful whether his remedy against the mortgagor has not gone, in case the sale fails to realize the whole amount due. Chapter XYI. INTEREST AND USURY. The legal rate of interest is twelve per cenu. per annum. All judgments carry this rate ; so do accounts, after notice that inter- est will be charged ; but any higher rate of interest is perfectly legal, as there are Ao usury laws in force. ■i 302 BRITISH COLUMBIA. [Part 12. Chapter XVII. LAND LAWS. Persons can acquire land (three hundred and twenty acres) by pre-emption, and on a survey being made, a grant in fee simple is issued without charge. INDEX. li INDEX. JlTIIZOIS^ Js.. Part XI. Paqe. Ackiiowlodjifraents '287 AffidavitH 287 Answer — Time Allowed 275 Arrest in Civil Actions 281 Attachments 280 Bills of Exchange 291 Chattel Mortgages 28U Commencement of Suits 275 Courts 273 " Terms of 274 " Their Jurisdiction 273 " Where held...., 274 Deceased Persons — Estates of 285 Depositions ..287 Estates of Deceased Persons 285 Examination of Judgment Debtor 284 Executions 283 Exemptions from Execution 283 Interest 290 Judgments 282 Judgment Liens 282 Jurisdiction of Courts ^ 273 Liens of Judgments 282 Limitation of Actions 278 Married Women 289 20 zm INDEX. Page. Mortgages of Personal rroperty 289 Place of Trial of Civil Actions 27G Proceedings Supplomeiitary to Execution 2Hi Promissory Notes — Days of Grace 291 Redemption ?83 Sale— Under Execution 283 Terms of Courts*. 274 Time Allowed to Answer 275 Trial— Place of 27G A.TTOKNEYS. Part I. Ari.-^ona 18 British Col umbia 18 California 11 Idaho 17 Montana 17 Nevada 15 Oregon 15 Utah IG Wiishington 10 Wyoming 18 Sm So BRITISH COLUMBIA. Part XII. Aoknowlodgmonta 299 Affilavits a 299 Appi-als 298 Arrest, in Civil Actions '" o Attachments 29G INDEX. 807 Paok. Chattfc! Mortgages 301 Commonoement of Suits 294 Courts 293 " Terms of 293 " Their Jurisdiction 293 Doceaseii Persons — Estates of 298 Depositions t 299 Estates of Deceased Persons 298 Executions 297 Exemp'^^ions from Execution 297 Homesteads 299 Interest 301 Joint Stock Companies 300 Judjj^meuts , 296 Judgment Lions 29G Judicial Records 299 Jurisdiction of Courts 293 Land Laws 302 Liens of Judgments 29G Limited PartneroMps 300 Limitations of Actions 295 Married Women 300 Mortgages 301 Mortgages of Land , 301 Partnerships — Limited . 300 Pleadings 291-295 Redemption 297 Sale — Under Execution 297 Security for Costs 297 Terms of Courts 293 Time for Appearance 294 Usury 301 C^LIFOHNIJV. Part III. \cknowletlgmontB , 102 Ackuowlodgmonts — Forms of 103 Affidavits 99 Agent and Principal 129 ■ii ' 308 INDEX. Paob. Answer — Time Allowed 43 An wer — Time Allowed in Justice's Court 44 Appeals in General 77 Appeals from District Court 79 Appeals from County Courts 79 Appeals from Probate Courts 80 Appeals fr^ Justices' or Police Courts 80 Arbitrations 95 Arrest and Bail ■ 58 Attachments 51 Assignment without Prejudice to Set-off or Defense 42 Bail — see Arrest and Bail 58 Bills of Exchange — see Negotiable Instruments 121 Bills of Lading 112 Certificate of Sale of Real Estate 71 Chattel Mortgages 114 Claim and Delivery of Personal Property 56 Compromise — Proceedings on offer of Defendant 64 Commencement of Actions ... 42 Common Carriers 113 Complaint, on Whom to be Served 43 ConfcF^'on of Judgments 62 Conti, ^ts 120 Corporations 97 Costs 76 Court. 29 " their Jurisdiction 28 " When and Where Held 32 Currency Judgments 64 Deceased Persons — Estates of 83 Depositions 99 Descents 88 Estates of Deceased Persons 83 Examination of Judgment Debtor 74 Executions , 67 Executions — Proceedings Supplementary to 74 Exemptions from Execution 68 Form of Civil Actions 46 Gold Coin Judgments 64 Guaranty and Suretyship 1 17 Homesteads 95 Injunctions 60 Interest 112 Joint Debtors — Proceedings against 63 Judgments 60 Judgments after Verdict 63 Judgments by Confession 62 Ju(igmeut by Default in Justice's Court 65 INDEX. 309 Paqe. Judgments in Justices' Courts 65 Judgments in Justices' Courts other than by Default 06 Judgments in Replevin G4 Judgment Liens fio Judgment Liens, Justices' Courts G7 Judgment on Proceedings without Action 63 Judgment on Failure to Answer 61 J jdicial Records 100 Judicial Records — How Proved 101 Jurisdiction of Courts 29 Letter of Credit 119 Liens for Salaries and Wages 94 Liens of Mechanics and otnera upon Real Estate 91 Limitation of Civil Actions . 39 Married Women 108 Mechanics' Liens 91 Minors 110 Mode of taking Testimony of Witnesses 99 Mortgages of Personal Property 114 Negotiable Instruments 121 New Trials 82 Parties to Suits - 42 Partnerships 105 Personal Property — IMortgages of 114 Place of Trial, Civil Actions 35 Pleadings , 46 Pleadings — Provisions in Justices' Courts ^ 49 Pledge 116 Principal and Agent 129 Proceedings on Offer of Defendant to Compromise 64 Proceedings Supplementary to Execution 74 Promissory Notes, see Negotiable Instruments 121 Publication — Service by 44-45 Redemption 71 Replevin — see Claim and Delivery 56 Rd Women i 152 Mortgages of Personal Property 153 Mortgages of Real Property 154 Partnerships — Limited 151 Place of Trial 134 Proceedings Supplementary to Executions 141 21 314 INDEX. - f Page. Fromissory Notes 154 Publication — Service by 134 Kedemption 141 Sale under Execution 141 Security for Costn 142 Service by Publication 134 Terms of Courts 131 Time allowed to Answer 134 Trial— Place of 134 Usury 153 Witnesses <• 145 OREGOlSr. Part V. Acknowledgments 171 Actions — Commencement of 158 Actions — Place of Trial 159 Answer— Within What Time 158 Appeals 1G5 Arrest in Civil Actions 161 Attachments IGl Chattel Mortgages 174 Commencement of Suits 158 Courts and Jurisdiction 155 Courts — Terms of 156 Corporations 174 Deceased Persons — Estates of 166 Depositions 169 Descent of Personal Property 168 Descent of Real Property 167 Dower 168 Estates of Deceased Persons 166 Examination of Judgment Debtor 164 Executions 163 Exemptions from Execution 163 Homesteads 169 Interest 175 Judgment Liens t 1G2 Judicial Records , 171 Iff. I- INDEX, 315 Paok. Jurisdiction of Courts 155 Liens of Judgments 102 Limitation of Actions 159 Limited Partnerships 172 Married Women 173 Mortgages of Personal Property 174 Partnerships — Limited 172 Place of Trial of Civil Actions 159 Proceedings Supplementary to Execution 1 1 M Redemption 163 Sale — Under Execution 104 Security for Costs 164 Suits — Commencement of ' 158 Summons 158 Terms of Courts 150 Usury 175 UTA^EE. Part VI. Acknowledgements 192 Answer — Time Allowed 178 Appeals 186 Arrest in Civil Actions 180 Attachments 179 Chattel Mortgages 195 Commencement of Suits 178 Corporations 194 Courts 177 Courts— Place of Holding 178 Courts— Terms of 178 Courts — Tlieir Jurisdiction 177 Deceased Persons — Estates of 187 Depositions 189 Estates of Deceased Persons 187 Examination of Judgment Debtor 184 Executions .' 182 Exo(!ution8 — Proceedings in Aid of 184 Exemptions 182 Homesteads 188 816 INDEX. Paos. Interest and Usury 195 Judgments 181 Judgment Liens 181 Judicial Records — How Proved 191 Jurisdiction of Courts 177 LieiiH of Judgment 181 Limitation of Actions 179 Married Women 194 Mortgages of Personal Property 195 Partnerships 1 93 Partners --How may be Sued, Ac 193 Partners — Liability of Private Property for Firm Debts 193 Partners — Assijjnnient and Effect 193 Procee(lii)g8 iit Aid of Executions 1 84 Redemption 184 Sale — Under Execution 182 Security for Costs 185 Terms of Courts 178 Time Allowed to Plead or Answer 178 U«ury 196 WASHINGTON TERRITORY. Part X. Acknowledgments 269 Answer — Time Allowed 255-256 Appeals and Writs of Error 266 Arrest in Civil Actions 260 Attachments 258 Chattel Mortgages 272 Commencement of Suits 255 Corporations 271 Courts 253 Courts— Terms of , 254 Courts — Their Jurisdiction 253 Courts— Where Held 254 Deceased Persons — Estates of , 266 Depositions 268 Estates of Deceased Persons 266 \ I INDEX. ai7 Paoc. Exnmination of Jud{?mont Debtor 2G5 Exf(cution8 2ri2 Exemptions from Execution 2(J3 HomcHteada 207 Interest 272 Judjfmeuts 2(il Judgment Lious 201 Judicial Records of other States — How Proved '-(I'J Jurisdiction of Courts 2r)3 Liens of Judgments ■ 2C1 Limitation of Actions 257 Limited Partnerships 271 Married Women 271 Mortgages of I'orsonal Property 272 Partnerships — Limited 271 Place of Trial— Civil Action 256 Proceedings Supplementary to Execution 2C5 Redemption 2C4 Sale — Under Execution . . 264 Security for Costs 265 Sole Traders 271 Terms of Courts 254 Time Allowed to Answer 256 Trial— Place of 256 Writs of Error 266 ^\rYOMiisra. Part VIII. Acknowledgments 236 Answer — Time Allowed 224 Appeals 231 Arrest in Civil Actions 227 Attachments 226 Chattel Mortgages 238 Commencement of Actions 224 Courts 223 Courts — Terms of and Where Held 224 Courts — Their Jurisdiction 223 Deceased Persons — Estates of 231 318 INDEX. ' Paok. Dciwsif iniiH 235 ])ijwc<'utn and Distribution of Prop'rty 23U Kstiitoa of D(!i)ouHi'(l IVrnonx 231 Kxiimination of Judgment Debtor 230 ExecutiouN 228 ExL'inptiouH from Execution 229 lutoriiHt 23!) Judf^mrnt Liens 228 JiuU(!iiil Records 23G Jurisdiction of Courts , _. 223 Lii'ns of Judgments 228 Limitations of Actions 22(5 Limited riirta(>ivhips 237 Married Women 238 Mortfjageff of IVrsouiil Property 2' '^ Partnerships — Limited 237 Place of Trial of Civil Actions ; 225 Proceedings in Aid of Executions 230 Bedomption 229 Sale under I'/Xecution 229 Security for Costs 230 Terms of Courts 224 Time to Answer • 224 Trial— Place of 225 Usury 239